Claude L. Dawson: May it please the Court. In the brief filed by the respondents in this Court referred to the petitioner Howard as a Rear Admiral at the time of the release of the libelous memorandum in question, he was then a Captain in the -- employed in the Boston Naval Shipyard. Now, the respond -- respondent Lyons, the time that this memorandum was issued, was the National Commander of the Federal Employees Veterans Association which has posts in various government agencies from coast to coast. The other respondent, Mr. McAteer, was the Commander of the local post of the -- in the Boston Naval Shipyard. There have been considerable activities. The Federal Employees Veterans Association is composed of members all of whom have been -- have honorable discharges in the United States Army, Navy or the Marine Corps or the Air Force. No one else is eligible for membership in this organization and the -- there's no question about their loyalty to the Government of the United States. As a matter of fact, that is one of their cardinal principles that they have a 100% loyalty to the -- to the Government of the United States. Now, at that time that this memorandum was issued by the Petitioner Howard cancelling the recognition that have been given to the Federal Employees Veterans Association to represent members in various grievous matters -- grievance matters in the Boston Naval Shipyard. No notice was ever given to their respondents or to any members of the Federal Employees Veterans Association that he was passing upon a question of whether they were eligible to represent the members in the Boston Naval Shipyard. No order to show cause why they should -- the recognition should be canceled, was ever served upon the respondents or any of the officials of the FEVA prior to the issuance of the memorandum. Now, it seems that in this case the Government has taken a position that in issuing the memorandum in question, that the petitioner Howard was absolutely immune from -- in other words, he was absolutely privileged in issuing a memorandum in question. Now, in that respect, there is cited in our brief a number of cases in where this -- this Court and the other courts have extended the rule of absolute privilege in the matter of adjudicating anything that fell within the duties of a public official. But the rule is -- is very limited, and it has generally been applied by this Court and to -- and by other courts where the party issuing the libelous memorandum or the libelous statement was either charged with matters of policy. Now, the petitioner Howard was not in anyway charged with matters of policy. Policy of the Navy Department is made and directed by the Secretary of the Navy. He was simply the ranking officer in charged out of the Boston Naval Shipyard at that time. Now, his contention is, is entitled to complete immunity in libeling the respondents in this action.
Earl Warren: Now Mr. Dawson, a moment ago, you were speaking of issuing a report to this kind. Are you referring to the publication of it to others or are you referring to the writing of the opinion and sending it through channels to a higher officer?
Claude L. Dawson: It is my opinion, Mr. Chief Justice that if this report had probably have been made, gone to and then not gone to regular channels but have been directed to the Chief of the Bureau of Ships in Washington, they probably would have been a privileged communication. However, he didn't do that. He released it to the Commander-in-Charge of that naval district, who the affidavit shows it would be immediately released to the press and it was released to all the newspapers, and the Press Associations in the City of Boston, according to the allegations of our complaint.
Charles E. Whittaker: Do you think --
Claude L. Dawson: Not -- pardon me?
Charles E. Whittaker: Excuse me. May I ask, (Inaudible) that because petitioner was required by (Inaudible) to make this report in his (Inaudible) He was not responsible for what the (Inaudible) Do you disagree with that?
Claude L. Dawson: I disagree with that -- to this extent, Your Honor. And that is that where a person knows that if he releases a certain communication to another party and that he knows that the other party is immediately going to release that to the newspapers, that he's just as responsible for that action as a man who released it to the newspapers.
Charles E. Whittaker: (Inaudible) except in the case where the person who was trying to produce the report has no opportunity but to produce the report. Now, is that the case here?
Claude L. Dawson: Well, that's what Judge Magruder said in his opinion. I have no doubt about that, Your Honor. And -- but, of course our position is that the -- that the petitioner Howard could have said to his Chief, “This is for your information. Please do not release it to the press.”
Charles E. Whittaker: Could he have done that?
Claude L. Dawson: I think he could have done that. Now, I can't decide any regulations or --
Charles E. Whittaker: Other than (Voice Overlap) --
Claude L. Dawson: -- or order to that effect but that's my own personal opinion that he could have done that. Now, in this particular case, the release was made to the members of Congress --
Earl Warren: But before -- but before you --
Claude L. Dawson: -- apparently upon the theory (Voice Overlap) --
Earl Warren: Mr. Dawson, --
Claude L. Dawson: Yes.
Earl Warren: -- before you get to the release of Congress, I'd like to get this internal situation straightened out in my -- in my mind. Now, do you mean that there was a likelihood of a superior officer releasing this to the -- to the press that a subordinate officer such as Captain Lyons was in this -- in this case --
Claude L. Dawson: Captain Howard, Your Honor.
Earl Warren: But Captain Howard was in this case, would have no rights to issue as a privileged communication to his superior officer, a report that he was obliged by duty to make?
Claude L. Dawson: If it was his absolute duty to do that --
Earl Warren: All right.
Claude L. Dawson: -- which I have some considerable doubt.
Earl Warren: All right. Now in that --
Claude L. Dawson: He --
Earl Warren: -- let me -- let me take a break from there. If that is your answer, what does this record show and what are we bound by so far as his official duty in connection with this is? Now, not in the -- just from the record.
Claude L. Dawson: Well, the record is covered only by the affidavits passed to the motion for summary judgment, Your Honor. The -- it's on 20 and 21 of the record, paragraph 6, “Included among Rear Admiral Howard's official duties as Commander in Boston Naval Shipyard, he is -- and was on September 8th, 1955, the sharing of the information concerning his command be available to the public. And that to say the information be released to establish to the -- to official channels. During my official absence on leave, the then acting Commandant, First Naval District Captain John A. Glick, U.S. Navy authorized a routine release through the public information officer headquarters, First Naval District, to the editors of various newspapers in Boston, Massachusetts, copies the letters,” so and so forth. That is the only thing in the record as far as (Inaudible) about the release.
Earl Warren: And what --
Claude L. Dawson: To the favor now --
Earl Warren: Wasn't there a finding of some kind -- the Court to -- on that subject, too?
Claude L. Dawson: No, the finding was --
Earl Warren: Other this is one on page 23, the second paragraph in the --
Claude L. Dawson: The complaint in the affidavits and documents referred to, requirements for the motion shall conclusively be the statements interpreted to the defendant were opposed by him and the discharge of his official duties, and in relation, the matter commended to him for determination. Now, however, Your Honor, on the -- that issue was never determined except on the basis the affidavit file within. If you look at record on page 3 of the record in paragraph 3 of the complaint, you'll find that the eliminating part of it, it says, “Outside of his official duties on the day this memorandum, Exhibit A to release two copies of said memorandum to the United Press, the Associated Press, the International News Service, all of the daily papers in the City of Boston, and also -- and in -- and to the members of Congress. And in so departing and in so doing, departing from his official duties and act solely in a personal capacity and beyond his official duties.” Now, that allegation and in the -- in the complaint made an issue of fact as to whether or not they were within the line of his official duties. And as Your Honor well knows, and it doesn't need any citation of authority, that if there is any question of fact involved, and a motion for summary judgment, the motion for summary judgment cannot be branded.
Hugo L. Black: Does the --
Claude L. Dawson: That is the rule on (Voice Overlap)
Hugo L. Black: For summary judgment, however, require you to go behind that and if affidavits are made refuting it or it is -- not imposed on you and viewed it, to make affidavits of your own under motion for summary judgment?
Claude L. Dawson: It's possible and of course, I was not at the trial of this case --
Hugo L. Black: But I --
Claude L. Dawson: -- and I can't --
Hugo L. Black: I understood. I meant the counsel for the plaintiff.
Claude L. Dawson: Well, I think you can -- under the rules as I understand the rules in the District Court, you can move for a summary judgment either with or without supporting affidavits. And that is true, I see no reason why the -- how they can override the positive and -- allegations contained in the complaint by affidavits.
Hugo L. Black: I thought the very purpose of the motion for a summary judgment proceeding was to escape the burden of the trial on nothing -- where there was nothing on the plaintiff's side or the defendant's side except bear allegations unsupported by proof and for which -- to prove which nothing can be obtained.
Claude L. Dawson: Well, Your Honor maybe correct in that, but I've always taken the view points that if the allegations of the complaint conflict with the affidavits in question, you do have a question of fact for the jury --
William J. Brennan, Jr.: And how could you ever --
Claude L. Dawson: -- (Voice Overlap) court or a jury.
William J. Brennan, Jr.: And how could you ever have a successful motion for summary judgment if the issues raised by the pleadings supersede the motion --
Claude L. Dawson: Well --
William J. Brennan, Jr.: -- by creating a genuine issue (Inaudible)
Claude L. Dawson: You could -- on -- on the basis of -- of taking the deposition on the findings which is a very --
William J. Brennan, Jr.: But I understand your argument, Mr. Dawson is that an issue of fact was raised by the pleadings. If that's a genuine issue of fact and that of itself is sufficient deplete a motion for summary judgment. Is that your position?
Claude L. Dawson: Yes.
William J. Brennan, Jr.: Well, it --
Charles E. Whittaker: (Inaudible) as I understand, you're asking Justice Brennan, it is that the conflict is sufficient to defeat a motion or judgment on the pleading would also defeat a motion for a summary judgment. Is that right?
Claude L. Dawson: Well, that's the viewpoint that they're taking, some of the courts and I know that's primarily a viewpoint to take in one particular case I have in the Court of Claims. And the -- that's just my own viewpoint. I can't cite any authority at this time because I haven't any case to look it up. I want to go to another angle in this case which I think specifically shows that the judgment of the court below could be affirmed.
Earl Warren: Well, may I ask you before you get to that, Mr. Dawson. Is the issue of whether these -- this report was properly released to the press before us in this case now?
Claude L. Dawson: It wasn't argued, Your Honor in the -- in the Court of Appeals.
Earl Warren: The Court of Appeals said it had been abandoned at that time.
Claude L. Dawson: Well, I searched the record (Inaudible) Apparently they had -- they just -- just didn't argue within the Court of Appeals. And Your Honor said that in the (Inaudible) case, if you recall where the question was whether or not it was privilege, qualified to be privileged, that you permitted that question to be argued here again even though it wasn't referred too much in our -- in the Court of Appeals in the District of Columbia.
Earl Warren: Did you write it in the briefs below?
Claude L. Dawson: It was in -- I did not write the briefs --
Earl Warren: No -- no, I mean, was it raised --
Claude L. Dawson: It was not raised and that we (Voice Overlap)
Earl Warren: And it was not raised in the oral argument?
Claude L. Dawson: As far as I know it wasn't raised in the oral argument. I wasn't there, Your Honor. And I -- I don't know what they argued.
Earl Warren: Yes.
Claude L. Dawson: Yes.
Earl Warren: And was not passed upon by the Court.
Claude L. Dawson: Yes. Now --
Speaker: Moreover, you haven't crossed petition here either.
Claude L. Dawson: No, that's right.
William J. Brennan, Jr.: Nor there wasn't a motion for rehearing, I gather --
Claude L. Dawson: No, there was like (Voice Overlap) --
William J. Brennan, Jr.: -- like an issue with that.
Claude L. Dawson: As far as I know there was no motion for rehearing filed. Now, the thing that I -- I think that we can stand on in this case is a case that is recently decided by the Tenth Circuit Court of Appeals. It is cited in my brief, it's Iverson versus Frandsen, at page 4 of my brief. The -- memorandum which the petitioner Howard wrote in this case was not absolutely privileged, if at all it was qualified to be privileged. And if it was proper and a report within that issue without malice probably would be protected. Now, in this case, in the Tenth Circuit, which is a recent case, the Court -- the Tenth Circuit Court of Appeals says that there are only a very few cases where there are absolute privilege confined to a very narrow appeal such as the judiciary and the Cabinet members, people like that. It -- I think to say that a Captain of the Navy would have absolute privilege, in my opinion would be almost a judicial outrage.
Hugo L. Black: So why?
Claude L. Dawson: The --
Hugo L. Black: May I ask you this, because I want to get your answers on it. I would suppose that if the head of the department to have an absolute privilege particularly in the military, the naval -- the Navy and the Army, the lower ranking officers would have at least as much privilege because if they do not obey orders in effect, you can deduce, do not do their duty, they can be punished. They have no discretion about obeying orders, or performing their duties, do they?
Claude L. Dawson: I -- no, they have no discretion. They probably -- they have to perform their duties. But to perform their duties in a proper manner is another question, Your Honor.
Earl Warren: Well, but --
Claude L. Dawson: What I -- I'm trying to say here now -- if you just let me go for about five minutes --
Earl Warren: Yes.
Claude L. Dawson: -- I'll try and show a situation in the end. In this Frandsen case, the Tenth Circuit held that the report of a medical officer or psychiatrist who held that the plaintiff was a moron became a part of a public record, that the report was only qualified privilege, not -- not absolutely a privilege, and where it was free from malice. Now, there's a distinguishing line in this case. Whether the report made by the petitioner Howard was free from malice. If he had a qualified privilege or even if he had, he loses his privilege according to the authority cited in the brief. When he -- he parts from his report and make irrelevant statements and statements that have no business whatever being in the memorandum. Now, what we're complaining about is that these loyal Americans, in page 12, I direct Your Honor's attention that this was contained in the memorandum. They wondered why I'm asking what must be considered sound since the Navy Department condoned this existence, continues to permit a condition which amounts to overt subversion to exist, operate, and even deprive among moralities fall but nevertheless readily identified a group of shipyard employees. Whatever queries that Mr. Howard had when he made that statement which is not only false but is libelous per se and is malicious because it is libelous per se, he lost whatever privilege he had, that he had only a qualified queries or even he have an absolute immunity. The Sixth Circuit -- I mean, the Eight Circuit Court of Appeals in an early case, in Robertson versus Jordan, the Eight Circuit held in a very early case, 339 Federal 671, the old first federal --
Earl Warren: 339?
Claude L. Dawson: 239, Your Honor, 671. The plaintiff was in the service of the Indian Bureau and the defendant was a publisher of a national issue amongst newspaper devoted to the cause of national prohibition. The defendant was an employee of the (Inaudible). The article complained was published in -- on October 13th, 19 -- or October 13th, 1913. They charged the plaintiff directly with having a record for theft, attempted blackmail, and gross immorality in his early life. Now, the defendant suit for libel was based upon a letter of the Assistant Secretary of the Interior insisting it was a public record. The plaintiff recovered a judgment. Among other things, the Eighth Circuit Court of Appeals held that to be privileged as a public record, an entry of writing or document must be made by a public officer in the line of his official duty, and is not enough that he happened to be an official or that it's lodged among the records as a public notice. Now, there are number of other cases cited in my brief here that when a public official depart in a report from the duty that he had such as the -- the petitioner Howard did in this case, by saying that these men were subversive, all works subversive, a condition existed, which is a charge that they practically were guilty of treason and -- and he departed from -- from his facts -- it was a mere conclusion on his part which should fall -- which should not have been contained in any report to the Navy, and he released it not only to the newspaper of the country but he releases to all the members of Congress from the State of Massachusetts, and no -- and no -- for malicious libel could remain and made against any man would say against these loyal men who serve their country honorably during two wars to say that they were subversive against the interest of their country who they had served as so honorable.
Speaker: (Inaudible)
Claude L. Dawson: Well, the only thing -- the thing is that the -- that if there is, assuming that there was immunity from prosecution or from a -- from a liable suit in this case, the memorandum which the petitioner Howard issued and the conclusion in that memorandum of the charge of overt subversion destroyed any right he had of that immunity assuming that he had it in his other report. That's the point in the case and I have several cases in my brief citing to that effect. Now, the only thing that I have --
Earl Warren: I suppose again, you're speaking about the publication to the world, aren't you?
Claude L. Dawson: Yes, I am.
Earl Warren: And not -- not reporting to his superior officer?
Claude L. Dawson: Yes, that's right, yes.
Earl Warren: Yes.
Claude L. Dawson: And I think that under that phases alone the -- whatever -- there is no question -- excuse me, Your Honor -- there's no question that under the law of Massachusetts that this -- that the decision of the Court of Appeals is correct. There isn't any doubt. There can't be any doubt about that. It's all the decision cited in -- in the brief here exclusively showed that -- that the decision of -- opinion written by Judge Magruder in this case is proper and correct and according to the law of Massachusetts.
William J. Brennan, Jr.: (Voice Overlap) --
Earl Warren: What governs us here, Massachusetts law or federal law?
Claude L. Dawson: Well, Your Honor, in the case of Erie Railroad Company versus Tompkins, this Court held that the law of the civil action was the law of the State or the cause of action arose conversing over 100 years to the present to this Court. Now, I'm not prepared to argue that Erie Railroad and Tompkins case shouldn't be followed in this jurisdiction -- I mean in this case. But it seems to me that in a libel case, that it should be followed because what constitutes libel should be measured by the law of the jurisdiction where the libel occurred. I'm just putting that out to you, Your Honor, for I believe that that is the proper. I understand that this Court as in several cases exempted certain actions such as actions under the Federal Depositors of Insurance law and some other thing that the federal law applies and that the state law does not apply. However, in the -- in the case of this character, I think that the law of the Massachusetts should apply. Now, Your Honors, I think if you -- give that consideration to the opinion of the Court of Appeals for the First Circuit and the -- written by one of our most distinguished judges in the United States, Magruder, Justice Magruder, that we will finally conclude that the judgment of the -- of that court should be sustained. Thank you very much.
Earl Warren: Mr. Sweeney.
Paul A. Sweeney: May I please the Court. In a few minutes that I have remaining, I would like to clarify what we believe is the position that we take in the case, at least the position of the petitioner. May I state at the outset that this is a little unusual in the normal government case where we represent the United States or an official in this official capacity where there's an attempt to bring an action against the -- or to compel its action. In this case, Admiral Howard, should the decision go against him, will be held personally liable. Now, in that situation much as we might desire a broader decision in this case, we feel it's essential in deference to our client in his personal interest to have this case decided on this narrower ground as possible. And that is the reason why I stressed yesterday and wish to re-stress today that we believe, that under the motion for summary judgment here and the affidavits filed in support of it and the finding of the District Court, it is established that the actions of Admiral Howard, in this case, were in the performance of his duties and not in the exercise of a discretion. I -- I stressed that yesterday and I'm merely trying to re-emphasize that. We read that out of the motion, out of Admiral Schnackenberg's definite statement which appears on page 20 that it was a -- there's a -- at 21, I beg your pardon, that it was his duty to furnish copies. Out of Admiral Howard's affidavit on 22 which he said, “In the course of my official duties,” he furnished this information. Now, I have re-checked and there was no definite regulation if Your Honor please, dealing with matters of this kind. But again, I would like to stress and touch upon the proposition that not all matters inside the department are governed by specific regulations. There are lots of orders and duties that are assigned by either tradition or by word of mouth. But we have these two uncontradicted affidavits and on the basis of that, the District Court, on page 23, made a finding that the statements were published, and publication of course is what gives rise to an action for defamation in the discharge of his official duties. Now, we believe in those circumstances it was not opened to the Court of Appeals unless accept this finding aside on the ground that it was grossly erroneous and we would challenge that because the uncontradicted evidence discloses as supports this finding of the District Court, that these were actions performed with him in the carrying out of his official duties, that he was required to do it. Now, we think in the circumstances of this case that is the disposition which this Court should make on the fact that there's a narrow case whether there was -- they're on the part of the respondents in not filing counter affidavits and not raising an appeal, the question that the finding of the District Court was incorrect and should be set aside, those are not in this case. And that there is a simple finding of the District Court on reverse that the acts performed during the course of his duty. Now, turning to the second point of this case, and that also was --
Speaker: Can I ask you a question there just to --
Paul A. Sweeney: Yes, Your Honor.
Speaker: -- test the scope of your position. As I understand it, if the Department of Labor, for example, the Secretary of Labor issued a directive to all of the employees all over the country saying that it is important that the press and the public should be kept aware of what was going on in the field units. And if therefore, they were instructed, every employee was instructed whenever he thought that he had a news item going within the line of the -- the activity of this office to issue a press statement in the -- your view that would give every employee of the department a absolute privilege, is that it?
Paul A. Sweeney: Well, Your Honor, as writing into that, a second discretion every item that he thought was newsworthy. If there was a definite issuance of an order by the Secretary of Labor saying that in any labor dispute in which the Department is represented, he should make available to the press his comments upon that or his findings --
Speaker: Well, I (Voice Overlap) --
Paul A. Sweeney: -- any report of that. But suppose that he had no discretion in the circumstances. Yes, I would say that was the act of a superior officer that he was carrying into effect.
Speaker: I would suppose --
Paul A. Sweeney: And that --
Speaker: -- every -- every member of the Department of Labor all over the country with an absolute privilege, an absolute privilege.
Paul A. Sweeney: If he followed that particular instruction. That would be the thrust of it. Now, within the realms of that I find it in part as a -- there would be disciplinary measures, of course, inside the department. It would probably cost him his job if he indulged in any -- misused his office for that purpose. But the -- but the discipline, the punishment would have to be under departmental and not a pursuit of a private individual. I think the necessities of the case, I would like to stress one thing more though. The Military Department has much more strict rules of obedience and the orders passing from one person to another that are in question would be -- to be carried into effect. But I don't think that's particularly significant to the thrust of my argument.
Earl Warren: As I understand, Mr. Sweeney, it is your position in this -- in this case that the Admiral was not operating under any discretionary authority when he did that. But that this record show, and we're bound by it, to consider that he was doing this as a positive duty.
Paul A. Sweeney: In issuing the reports to the --
Earl Warren: As required by his superior.
Paul A. Sweeney: To the congressional delegation --
Earl Warren: Yes.
Paul A. Sweeney: -- that particular point.
Earl Warren: Yes.
Paul A. Sweeney: Now, I would like to touch on the other side, if there were some discretion in his action on that type. In other words, if it were within the scope of his duty but it was left to his discretion whether he should send it to the Congress or not, which is really the overall point and the point is in Spalding versus Vilas. If I could just read this short part from page 18 of the -- in the act -- as for my brief and this is a citation from Spalding versus Vilas and we think it applies definitely here except that that was the case of a Cabinet member and not on an inferior officer. In exercising the functions of his office, the head of an executive department keeping within the limits of his authority should not be under an apprehension, that the motives that controls his official conduct may at any time becomes the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the Executive branch of the Government if he were subjected to any such restraint. He may have the legal authority to act but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he was invested. But if he acts, having authority, this conduct cannot be made the foundation of a suit against him personally for damages even if the circumstances showed that he is not disagreeably impressed by the fact that his action endures the effect that of another official. Now, we think --
Earl Warren: Mr. Sweeney, I -- I'm still confused because I thought the -- you said that the opening of your argument this morning that you wanted this case decided on a very narrow issue --
Paul A. Sweeney: That's right, Your Honor.
Earl Warren: -- on the basis that this --
Paul A. Sweeney: Yes.
Earl Warren: -- was his positive duty --
Paul A. Sweeney: Yes.
Earl Warren: -- to do this, and that he was not exercising a discretion when he did it.
Paul A. Sweeney: That's right.
Earl Warren: Now, you've cited the Vilas case to show that it is a matter of discretion and as long as it's somewhere within the scope of his authority to put out statements of this kind that he does have a positive immunity.
Paul A. Sweeney: I made myself unclear, I'm afraid, Your Honor.
Earl Warren: Well, I -- I --
Paul A. Sweeney: That -- that is our -- that is our basic position, a narrow ground that I heard.
Earl Warren: Yes.
Paul A. Sweeney: I say if that is rejected by this Court, or I should have premised it on that basis. In other words, if this Court felt that notwithstanding the finding of the District Court, he was not under any duty to act but merely had authority to act, or not as a case might be, then in those circumstances, this Court we feel should then decide the Vilas -- the problem. In other words, this is a secondary position, if I might say, if the Court does not agree with the primary position that I urge. In other words, we think that if you hold that he was not under an absolute duty to this then this Court should consider the application of the Vilas case if it were only a discretion that he were exercising. We do not think it was a discretion. But if the Court disagrees with our position then we think you have to reach the Vilas case. Do I make myself clear on this alternative grounds?
Earl Warren: Yes. You make -- you make it clear to this extent, but do you think we ought to reach the Vilas question, but do you urge it?
Paul A. Sweeney: No, we do not. We do not think you need to reach the Vilas question.
Earl Warren: No. No, but let me put it this way. In the event that we don't agree with you on your major issue, and we must reach the Vilas issue, does the Government urge that under those circumstances, this man would have had an absolute privilege?
Paul A. Sweeney: Yes, Your Honor.
Earl Warren: You do urge that?
Paul A. Sweeney: We do urge that.
Earl Warren: But that I didn't understand --
Paul A. Sweeney: Well, that -- our point is that if you disagree with our basic problem and do reach the Vilas position then we urge that the discretion conferred in him under the Vilas case and in many cases in the Federal District Courts, the lower courts, sustain the proposition that he still should be accorded to absolute privilege so that he would have the freedom of acting undeterred by fear of a civil action.
Hugo L. Black: Was a -- was petitioner Howard an Admiral or a Captain?
Paul A. Sweeney: He was a captain at the time that this report was issued. He was subsequently promoted to an Admiral. He presently is an Admiral.
Hugo L. Black: Was he in command of the --
Paul A. Sweeney: He was in command of the Boston Navy Yard.
Hugo L. Black: And was his reported direct (Inaudible)
Paul A. Sweeney: It was directed to the Chief of the Bureau of Ships under the chief of the office of Industrial Relations to the Navy but it went through channels. His reports go -- he was under the -- immediately -- immediate military supervision of the Commandant of the First Naval District, so his reports, and according to Navy procedure would go from him to the Commandant of the First Naval District to probably would put an endorsement forwarded to the official to whom it was ultimately directed. It will go to channels that way but it was directed to the Chief of the Bureau of Ships and the Chief of the Office of Industrial Relations. If the Court have no further problem --


William H. Rehnquist: We'll hear argument now in number 86-1685, Florida versus Hughlan Long. Mr. Collette, you may proceed whenever you're ready.
Charles T. Collette: Thank you, Mr. Chief Justice, and may it please the Court. What this case is is simply the Norris non-retroactive liability holding revisited five years later. And this case deals solely with the relief aspect of Norris. It does not deal with the Norris liability holding. In this regard, our contention is that what this Court said about remedies in Norris, i.e., that pension plans would not be liable under Title VII for the payment of benefits attributable to pre-August 1, 1983 contributions, even though such benefits were calculated using sex distinct mortality tables. That what this Court said in Norris bars the award of relief herein because respondents before this Court are all pre-August 1, 1983 retirees whose benefits are therefore completely attributable to pre-August 1, 1983 contributions. In short, we are not proposing that a new rule of law be laid down in this case. Rather, we are simply asking that the Norris relief rule be most emphatically underscored herein. That prior to August 1, 1983, there will be no liability. But that subsequent to August 1, 1983, there will be and is liability if sex distinct mortality tables continue in the use of benefit calculation. By way of a brief road map to my argument, I intend principally, and possibly exclusively, to address this Norris non-retroactive, this Norris relief issue. I do not intend to cover the first and second alternative arguments in our Brief for Petitioners unless of course the Court has any questions. Those arguments deal with, respectively, whether in any event Manhart and Norris bar the award of relief to the pre-Manhart retirees in this case, and whether proration, at least under an accrued benefit methodology should have been applied to the award of relief to the post-Manhart retirees herein. If there remains time, I may briefly address our third alternative argument on the Title VII exhaustion and class scope limitation issues.
Sandra Day O'Connor: Mr. Collette, as a preliminary matter, would you explain to me the mechanics of the plan that led to males receiving lower monthly benefits than females? Normally, the application of a sex-based table would not yield that result.
Charles T. Collette: Your Honor, it is the result of the mechanics of a defined benefit pension plan. The primary benefit under a defined benefit plan, such as the FRS, is calculated pursuant to a formula. That produces an equal monthly retirement benefit for similarly situated males and females. When you go to joint annuitant options, then mortality tables are used. And to reduce the future expected single life benefit to a present dollar value, when sex distinct tables were used prior to August 1, 1983, the woman of course had a greater primary single life value because she was expected to live longer. Therefore, when you went to a joint annuitant option, it resulted in her receiving a greater monthly benefit in her joint annuitant than a similarly situated male and his joint annuitant. There's a good brief explanation in the 1983 Law Review article by Hager and Zempleman, and also in the Department of Labor's 1983 Cost Study. The basic facts with respect to this central issue are these. The FRS, as I mentioned, is a defined benefit pension plan with over 1100 plus Florida local governmental employers participating there. It is a relatively new or youthful pension plan created in 1970 out of the amalgamation of several earlier Florida retirement plans. From its inception in 1970 to present, it has always collected equal contributions from or on behalf of similarly situated males and females. From its inception in 1970 to present and as mentioned, it has always paid the same primary monthly retirement benefit to similarly situated males and females. From its inception in 1970 to present, in addition to its primary life benefit and as mentioned, it has had three joint annuitant benefits. Prior to August 1, 1983, the FRS calculated benefits thereunder which resulted in males and their joint annuitants, in response to your question, receiving a lesser monthly joint annuitant benefit than similarly situated males and females. However, effective August 1, 1983, and because of this Court's Norris decision, the FRS converted to unisex mortality tables for the calculation of its three joint annuitant benefits. And this has resulted in similarly situated males and females retiring since that time receiving the same monthly retirement benefit. It should also be noted that all retirees under the FRS obtain a vested contractual right to the full amount of their retirement benefits which vested contractual right arises as of the effective date of retirement and which vested contractual right prevents the State from thereafter ever subsequently reducing that retiree's benefits.
John Paul Stevens: May I ask at that point, is one of the options available, at least pre-August 1, 1983, a lump sum settlement?
Charles T. Collette: No, Your Honor. The options have not changed since creation. The primary life benefit and three joint annuitant options. There was no lump sum.
John Paul Stevens: If there had been, just to clarify the question Justice O'Connor raised, if there had been a lump sum, it would have meant that the female would have gotten a larger lump sum?
Charles T. Collette: That is absolutely right.
John Paul Stevens: Because it's calculated backwards from life expectancy at a fixed rate where they both get the same amount.
Charles T. Collette: Yes, sir.
John Paul Stevens: I see.
Charles T. Collette: I think it is also important to remember that there is no question that the award in this case were it to be implemented, will be paid by the FRS for its 1100 plus FRS participating Florida Governmental employers through increased contribution rates. In short, as of January 1983, the FRS was in exactly the same situation as 45 percent of defined benefit and 74 percent of defined contribution plans in this country. Which plans, as the Department of Labor pointed out in its 1983 cost study, had not yet as of such date converted to unisex mortality tables for benefit calculation. Moreover, and when Norris came down, Florida promptly complied therewith as mentioned by converting to unisex tables for its benefit calculation. On these facts, the District Court, disagreeing with the Ninth Circuit's decision in Probe v. State Teachers' Retirement System, awarded relief totalling approximately $43.6 million. The Eleventh Circuit, likewise disagreeing with the Ninth Circuit's Probe decision, affirmed this award of relief. In essence, what this case boils down to is simply whether Norris bars the award of retroactive relief in the form of both prospective and retrospective adjustment of pension benefits to pre-August 1, 1983 retirees under a State operated defined benefit pension plan. The Eleventh Circuit held, and plaintiffs argue, that Norris is a narrow decision limited on its facts to the Manhart open market exception and third party insurers. That Norris has no applicability to the FRS. In this regard, they argue that since the State of Florida administers the FRS, there is no third party issue in this case. That, however, overlooks that with respect to over half of its retirees, the State, through the FRS, is a third-party insurer. Specifically, over half the retirees of the FRS are employees of Florida local governments. And in this situation, the State and its FRS is in essence the same as a third party insurer. It is in essence in the same situation as the TIAA pref plan at issue in Spirt, and it is essence in the same position as the private insurance companies at issue in Norris. Plaintiffs, as said, argue Norris has no applicability and that Manhart clearly put pension plans such as the FRS on notice that it could not use sex distinct tables to calculate monthly benefits. However, and as Hager and Zempleman pointed out in their 1983 Drake Law Review article, Manhart created confusion and uncertainty in the pension industry as to whether sex distinct mortality tables could continue to be used in benefit calculations. And this confusion and uncertainty was only finally resolved by this Court's Norris decision. Indeed it was only until this Court's Norris decision that the issue of whether it was proper to do anything other than to top all the way up, in this situation top the male benefits up to the female benefits, only Norris settled that you could use unisex topping up. In fact, the lower court in Norris used the full topping up to the opposite sex's rate. The Manhart open market exception meant something entirely different to pension plan administrators in the time before Norris than that which it is argued it now here means today. In short, and without the benefit of the lens provided by Norris employed by the Eleventh Circuit in its analysis, and by plaintiffs in their argument, the Manhart open market exception in the period before Norris seemed to permit the calculation of benefits using sex distinct mortality tables, especially optional joint annuitant benefits in a defined benefit plan such as the FRS. For the use of such tables resulted in the largest benefit a retiree's... and I quote Manhart... "accumulated contributions could command". And I emphasize, command. Not purchase, could command on the open market. Judge Poole, writing for the Ninth Circuit in Probe certainly found such was the case when he held that the California State Teachers' Retirement System... and again I quote, "reasonably could have assumed that it was lawful to provide an optional annuity system that reflected plans offered by insurance companies on the open market. " Moreover, the facts belie that the pension industry viewed Manhart as requiring a wholesale conversion to unisex tables for benefit calculation. For one thing, the publications of the National Actuarial firms in the period after Manhart stated to the effect that Manhart created more problems than it resolved, and that the pension industry should take a wait and see position. For another thing, and as previously mentioned, as of January 1983, 45 percent of defined benefit and 74 percent of defined contribution plans in this country had not yet converted to sex neutral tables for benefit calculation. In any event, Norris was not a narrow decision limited on its facts solely to the issue of the Manhart open market exception and third party insurers. Rather, it is manifestly clear that the Norris non-retroactive liability holding was meant to apply to all pension plans throughout this country including the FRS. In other words, it is manifestly clear that in Norris this Court intended to wipe the slate clean as of August 1, 1983, for all pension plans in this country. That prior to that line, there would be no liability if sex distinct mortality tables had been used in benefit calculation, but that subsequent to August 1, 1983, there would be liability if such tables continued in benefit calculation. The primary concern for the Norris non-retroactive majority's denial of retroactive relief was its concern with the impact a retroactive holding could have on pension plans throughout this country, both private and public. And that concern was not misplaced, given the percentages of plans which the Department of Labor found in its cost study had not, as of January '83, yet converted to sex neutral tables. Moreover, I think the fact that this Court took a highly unusual action in Norris by delaying its judgment three weeks underscores that the Norris decision was intended to apply to all pension plans throughout this country. Since there was no reason to provide a grace period for the Arizona plan at issue in Norris because by the time that plan reached this Court, its objected to provisions had been eliminated. The key is that that grace period was effectively utilized by the FRS in this case to convert to unisex mortality tables for the calculation of its future retirement benefits. That grace period was also effectively utilized by the New York State Teachers' Retirement System in Hannahs v. New York State Teachers' Retirement System and no doubt that grace period was effectively utilized by thousands of pension plans throughout this country. In short, Norris announced a broad rule of relief founded on policy and clearly intended to prevent a regime of discretion which rule is applicable to all pension plans throughout this country, both defined benefit and defined contribution. Which rule allows those plans and says those plans could continue to pay their retirement benefits to pre-August 1, 1983 retirees even though those benefits had been calculated using sex distinct mortality tables. Because of this, and because respondents before this Court, i.e., plaintiffs and the plaintiff class, are all pre-August 1, 1983 retirees.
Byron R. White: Are some of them pre-Manhart?
Charles T. Collette: Yes, Your Honor, by the reason of the structure of the District Court's order, both prospective and retrospective adjustment of pension benefits were awarded. The class actually consists of all persons who retired from the date of Title VII up to but just prior to August 1, 1983. Prospective adjustment of benefits was awarded to the entire class.
Byron R. White: Including pre-Manhart?
Charles T. Collette: Yes. To the post-Manhart portion of the plaintiff class, both prospective and retrospective were awarded back to the date of Manhart. So in essence, the pre-Manhart retirees were awarded prospective adjustment of pension benefits, and the post-Manhart retirees were as well awarded retrospective.
Byron R. White: And you say all of that was wrong?
Charles T. Collette: Yes, Your Honor, particularly my concern is the pre-Manhart retirees. I simply can't conceive how Florida could know in 1975 or 1976 or 1977 anticipate Manhart, even arguing that Manhart was clear. How could it know? It couldn't. In fact, if we had done everything the District Court said we'd do; Manhart comes out, we convert to unisex tables right then for benefit calculation regardless of all the unanswered questions in the area at the time.
Byron R. White: But you say both retrospective and prospective awards were in error under Norris?
Charles T. Collette: Yes, Your Honor.
Byron R. White: Yes. All right.
Charles T. Collette: Specifically in Norris and Justice Marshall writing for the Court on the liability issue, pointed out that the--
Byron R. White: With me joining him.
Charles T. Collette: --Yes, Your Honor, I'm aware of that. Pointed out. And then Justice Powell concurring that when you award benefits, even prospectively, it's based on past contributions and it is in essence retroactive relief because it's going to require a funding that's already been fixed.
John Paul Stevens: May I ask a question about the pre-Manhart retirees. The award as to them only went back to the date of Manhart, though, didn't it?
Charles T. Collette: No.
John Paul Stevens: You mean if they got too low benefits, received benefits before Manhart, those are also adjusted?
Charles T. Collette: Yes, Your Honor. Let me explain.
Byron R. White: Benefits calculated on contributions prior to Manhart.
Charles T. Collette: The benefits were always calculated using sex distinct mortality tables until Norris.
Byron R. White: But these pre-Manhart people you're talking about are people whose contributions were made before Manhart.
Charles T. Collette: Yes.
John Paul Stevens: Yes. And benefits received before Manhart?
Charles T. Collette: Benefits, anybody who retired up to the date of Manhart benefits calculated as of date of retirement and payment so if somebody retired in '72, '73, '74, they get a full prospective award for all their--
John Paul Stevens: Full prospective award, but they did not get an adjustment of the award that was paid to them between the date of their retirement and the date of the Manhart decision?
Charles T. Collette: --If I understand, Your Honor--
John Paul Stevens: Well, let me put it this way. You retired in 1975, Manhart was decided when in '78?
Charles T. Collette: --Yes.
John Paul Stevens: And say they received $100 a month during those three years in benefits. Was that benefit increased later for those three years?
Charles T. Collette: Yes. But prospectively.
John Paul Stevens: Well, how can it be? If they got an addition on account of those checks, that wouldn't be prospective.
Charles T. Collette: No, there was nothing paid back. There was no retrospective relief.
John Paul Stevens: Okay.
Charles T. Collette: I think that's what you're talking about.
John Paul Stevens: Yes.
Charles T. Collette: There was no $100 we're going to--
John Paul Stevens: The only payments that were increased were those benefits that were paid after August 1, 1983?
Charles T. Collette: --No. Actually, the prospective award was effective as of April 30, 1986. It's been stayed in this case.
John Paul Stevens: Yes, but all I'm saying is that no one who received a benefit check prior to August 1, 1983 had that check adjusted.
Charles T. Collette: That is not entirely correct. The post-Manhart retirees had that check adjusted back to the October 1 Manhart effective date in this case.
John Paul Stevens: Okay. Right. Well, I don't want to add to the confusion but supposing that someone retired say before 1978, received retirement checks before the effective date of Manhart. Now does this decree augment any of the payments that person got for that period of time before '78?
Charles T. Collette: No, Your Honor. That person as of April 30, 1986, it would augment his payments from that date. But the funding and the actuarial evaluation it requires a funding, that prospective award requires a funding of liability that was not anticipated by the retirement system at the time the individual retired. Unless there are any further questions, I will reserve the balance of my time for rebuttal.
Sandra Day O'Connor: Just a small point. Does the plaintiff class include any male retirees who have chosen male joint annuitants? I take it it would.
Charles T. Collette: Very likely. The class size is roughly around 12,000 people. And most of them are joint annuitant, the vast majority 95 percent are spouses, but on the ten-year fixed which is a guaranteed joint annuity for ten years for the primary life, you can have a beneficiary that is a male. So it is a possibility.
Sandra Day O'Connor: And under the Eleventh Circuit's holding, do any retirees get lower benefits as a result of that holding, or is everything a topping up in effect?
Charles T. Collette: No. And as a matter of fact, it can't. That's why there's a funding impact on the FRS because of vested contractual rights. I thank you.
William H. Rehnquist: Thank you, Mr. Collette. We'll hear now from you, Mr. Melvin.
Woodrow M. Melvin, Jr.: Thank you, Mr. Chief Justice, and may it please the Court. With your permission, I will depart from the intended structure to comment on three features of my opponent's argument that will perhaps contribute to an understanding of the problem we are here to address. First, Justice O'Connor inquired about the apparent anomaly that it is the male here who has brought the claim and who is receiving the lower benefit. That can be simply explained perhaps by pointing out that the familiar phenomenon of an assumed longer life expectancy for the female which would require in typical circumstances that a fixed amount of benefit be extended over a longer assumed life time is precisely the same type of impact that produces the illegal result here. It's a bit disguised for the simple reason that it arose in this case as a consequence of the choice made by the men to elect a spousal protection option under which not the single lifetime of the retired employee is considered but the combined lifetimes of the two. As a consequence of that, for instance... and you can just work this out with a piece of paper should you care to, and I'll assume figures to make it simple... if you assume a 65 year old male retires and his life expectancy is 70, then that person has a five-year life assumption. But if he's designating the protection of a slightly younger female age 60, who would have a 75-year life expectancy, her life expectancy is some additional 15 years. The system simply looks at the longer of the two. Of course, it doesn't add them, just looks at the longer of the two. That's a 15 year payout. If you reverse that and you assume that you have a 65 year old retiring female who, with a 75 year life expectancy expects to live ten more years, and you add to that picture the identical other facts, i.e., that she designates the protection of a male spouse and give the male spouse the same age, 60, with his lower life expectancy of 70, he's expected to live ten years. Both the male and the female are expected to live ten years. Those are comparable, identically comparable opposite relationships between the male and the female retiring employee, but because of the 15 year payout that's assumed for the life expectancy that's extended by reason of sex, there results the familiar downgrading of the pension benefit. It is disguised in that it takes place in the male paycheck. The members of this class are not exclusively males. They are males and they are also the surviving joint annuitants of the males so in many instances, we have widows who are participating in this class. If I may mention another thing that has come up in the argument that I think requires some clarification, counsel has placed some considerable emphasis and twice cited to this Court, a statistic by which he advises you that I think some 45 percent of the pension plans in this country are defined benefit plans that as of 1983 when you decided the Norris case had not yet converted to unisex. He doesn't also advise this Court, so I shall, that he's using a statistic which by his own admission doesn't discriminate between employer operated plans and employer sponsored plans. So he's citing it to you to infer that throughout this country, even after Manhart, there were a huge number of defined benefit plans employer operated, we must assume if it's to be relevant to our case, which did not make the switch to unisex until 1983, inferring to you the enormity of a national impact. But the statistic on which he relies specifically says that there has been no attempt to distinguish between an employer operated plan and an employer sponsored plan in developing that statistic. And I invite you to look at the 33rd page of the State's brief, footnote 27, where they explain that in detail, stating, and I quote: "We'd quickly reveal that it covers all state, local government and private defined benefit and defined contribution pension plans with no distinction as to whether employer operated or employer sponsored. " So the inference urged by counsel is not supported by the statistic on which he relies. Counsel has also made an argument in his oral presentation to the Court that's not in the briefs and has never been made before in any of the earlier judicial proceedings affecting Florida v. Long. He says to us today for the first time that the State of Florida occupies a position analogous to that of a third party insurer because after all the State of Florida is an umbrella or parent governmental unit having enormous sub-tiers of other governmental units within the State of Florida. Clearly, this is something that's occurred to counsel just recently in preparing his argument. I would remind him, and I respectfully point out to this Court that a stipulation that they entered into, which appears in the Appendix, page 36, completely belies any argument that would be predicated upon it, and it's unfortunate that he has made that argument to you today. Stipulation No. 4, and I'm reading from the 39th page of the Appendix, expressly says the following: "The State of Florida for the purposes of Title VII is the employer of the members of the plaintiffs' class, and is authorized and charged under Florida statutes with the duty and responsibility of lawfully administering the FRS. " "No third party unrelated to the State of Florida is authorized to or does administer the FRS. " So counsel's argument, while it may have some appeal to him, has been placed to rest deep in--
William H. Rehnquist: Just a minute, Mr. Melvin.
Woodrow M. Melvin, Jr.: --Yes, sir.
William H. Rehnquist: That could have been for the purpose of indispensible parties. You know, when you talk about something being an employer for one purpose, it doesn't necessarily mean it's for another purpose.
Woodrow M. Melvin, Jr.: Your Honor, having tried the case, I can assure that that meaning of that stipulation is as I have just presented it to the Court. Not only did we not join any subunits of government but we did not get into the integral aspects of any of the subunits of government. We would have joined issue with them had they wanted to quarrel with that, but that idea is a new one before us this morning. It's not urged in the brief, it's not presented to the Eleventh Circuit, was not argued to the trial judge below. And I think the reason it never was is that the stipulation to which I've just referred does appear to have precluded it. The central theme of the argument that counsel has made in effect is that in 1983, this Court laid down a rule of amnesty with respect to pension plans. A rule of amnesty that said that a pardon is given with respect to Title VII violations through the use of a sex based mortality table for all kinds of plans, even those plans that had five years before that been the subject of an earlier ruling of this Court in Manhart.
Sandra Day O'Connor: Well, Mr. Melvin, what language in Manhart informed employers that they were forbidden to apply sex based tables to non-employee joint beneficiaries? I've reread the opinion and I had trouble finding anything in there that would address that.
Woodrow M. Melvin, Jr.: I find nothing in that that addresses that issue, either. Nor has the issue been phrased that way by the petitioner the employer before this Court. In the course of these proceedings, that question has never been asked of either of us, I don't believe. And we have not joined issue on it.
Sandra Day O'Connor: Are we dealing with that?
Woodrow M. Melvin, Jr.: In effect, you are dealing with the consequence of the choice of designating a joint annuitant, but the question cannot be isolated in that fashion as is evidenced by the fact that the class primarily consists of males... these are the retired employees themselves who are making this application on behalf of themselves and their joint annuitants, it's not only the joint annuitant following the death of the male who suffers a reduction in the pension payment. The reduction in the pension payment begins to occur from the occasion of retirement and affects the male as well as the female. And so as you have phrased it, that actually does not describe the manner in which the issue arises.
Antonin Scalia: But the male employee is not suffering discrimination because of his sex?
Woodrow M. Melvin, Jr.: That is correct. But he is suffering discrimination on the basis of sex.
Antonin Scalia: Of somebody's sex.
Woodrow M. Melvin, Jr.: The sex of his joint annuitant.
Antonin Scalia: But that's different from Manhart.
Woodrow M. Melvin, Jr.: Yes. Yes, that question is different from Manhart. I would suggest to this Court that that type of problem is not unlike two of the other questions that were raised in Norris, decided in Norris, and yet were not thought to be such a new and unforeseeable resolution of a rule of law as would have invoked concerns about retroactivity or would have led to discussions of proration. In the Norris decision, the Court looked backward at Manhart and found that there were two other questions in Manhart that had not been addressed and answered. Manhart of course dealt with the inequality in the required contributions in the pension system. It did not deal, as we do here, and as Norris did in 1983, with discrimination at the payout stage in the monthly benefit check. Nor did it deal specifically with the question of whether an otherwise liable employer for a violation of the Act could justify the practice by offering a non-discriminatory option in combination with the discriminatory option. When we read Manhart, we don't find answers to those questions either, necessarily. But when those questions were addressed five years later in Norris, this Court disposed of them without struggling over those questions as it did struggle and split on the question of whether to extend the liability on an employer operated plan to the employer sponsored plan, which were the facts before it in Norris. The Court said with respect to the issue of discrimination in the pay-in contribution stage versus discrimination in the payout stage, "we have no hesitation at holding, as have all but one of the other lower Courts. " and it went on to say that that type of new question could be answered rather forthrightly in the negative. It was illegal. Similarly, the Court said, "it is likewise irrelevant that the Arizona plan includes two options. " And went ahead to dispose of that question. If this is a question which the Court would address, I think it would address it and come to the conclusion that liability still attaches. And I would suggest that if that is the consideration that this body undertakes that when it reaches the conclusion, which I would submit should be that liability still attaches, that this Court will not conclude that it has announced a new and unforeseeable rule of law. Consequently, this Court would not conclude that to impose that conclusion upon the State of Florida at this time would lead to non-retroactivity considerations. Now, if I may, what's being argued here essentially is a per se rule of law. The State employer contends that there is a per se rule of defense beginning in 1983 as to which all prior possible liabilities for a Title VII pension violation are excused. We submit to the Court that that approach to the problem is not workable. That essentially is the outlook taken by the Ninth Circuit. And where there are conflicts between the Ninth and the Eleventh, it is largely in this area. The primary distinction between what occurred as our case came up through the court system and out of the Eleventh Circuit versus what took place in the Ninth Circuit is simply this. The Ninth read Norris, and we say misread Norris, to establish a per se rule of defense for all pension cases regardless of the type of fund that was involved, regardless of how much money the pension fund might have, regardless of whether the pension fund had an excess cash surplus, regardless of whether it was a defined benefit plan or defined contribution plan. In other words, a blanket rule. We submit to the Court that the imposition of a blanket rule is often an inappropriate way to get to the best judicial result. What occurred in this case was quite different. In this case, without the imposition of any blanket rule, the trial judge undertook to hear this case on its facts, and to let the State undertake to prove, if they could, what they now argue they have the right to assert to you as a a matter of law. He put them to the proof of it as a matter of fact. When he put them to the proof of it as a matter of fact, they failed. I submit to you that in looking in broad terms at which is the better result, that of the Eleventh or that of the Ninth, we should come to the conclusion that the benefit of taking the approach suggested by the Eleventh Circuit is simply that it does permit a case by case individual pension plan by pension plan analysis of impact, of the arguments in support of proration, and any other matter which may on behalf of an employer constitute a basis for an alleged defense. And it lets those defense occupy the posture of fact.
Antonin Scalia: We didn't do that in Norris, then. We were wrong in Norris, then, if the case by case approach is preferred. We certainly didn't treat it... did we treat it as a factual issue? I thought we announced a rule that would apply for you know generally in Norris, didn't we?
Woodrow M. Melvin, Jr.: Yes, you did, in many respects.
Antonin Scalia: So you're saying that was wrong?
Woodrow M. Melvin, Jr.: No, it's not wrong, I don't think. You announced a general rule of liability that what had been illegal since 1978 in Manhart for an employer operated plan was to now be extended to and similarly become illegal for an employer sponsored plan, as was the case in Norris. And then in Norris, the Court dealt with one of the very important aspects of that case which differ from ours. The Norris case was a defined contribution plan. There are some clear implications of that type of plan. And if we view Norris as a per se rule of law applying to a defined contribution plan, it does no violence to the judgment that you have before you in Florida v. Long. And it would seem to make good policy, because there are characteristics of a defined contribution plan which make it highly sensitive to being impacted by subsequent impositions of liability through changes of law. The primary concern--
William H. Rehnquist: Mr. Melvin, one sentence in the Court of Appeals opinion in this case, when it's dealing with retroactive relief says, "the District Court's refusal to consider evidence of the impact on pension funds on the national level is also not in error. " I gather then some evidence was offered to kind of make this a case by case thing and the district court didn't consider it?
Woodrow M. Melvin, Jr.: --No, I think that that's being misread there, Mr. Chief Justice. They offered some evidence... not unlike the statistic on which they relied a few minutes ago twice in their argument. In fact, that was some of the evidence, I believe, that was precluded below, and they continued to cite it because the Court would have the authority to notice it judicially whether it was stamped in evidence below or not. And they are simply saying that there ought to be a kind of national concern on how many other possible plans generically similar to this one might be impacted by an outcome in this case. I think that that's a wrong approach in that it, for instance, it overlooks the inferences that this Court in 1976 in the Bowman case put upon the fact that Title VII guarantees no claimant damages, guarantees no claimant any particular outcome. It grants to the Federal trial judge, the discretion to fashion such relief as the circumstances may require, and within his discretion, that might be merely declaratory, merely injunctive in certain respects. It may or may not in his discretion extend to the application of back pay concepts. And this flexibility is the desirable thing. And I think when we look at the facts of the case that were tried in Florida, we see why that was so desirable. And if I may, I'd like to turn to some of those facts because this fact unique case, when we look at some of those features, I think it becomes clear to us as to why the Federal trial judge was not convinced. Remember the difference between the Eleventh and the Ninth is that the Ninth reads Norris as giving a rule of law about the defense. The trial judge in the Eleventh Circuit and the Eleventh Circuit itself took the approach that there is no absolute rule but that there are these defenses of which you can avail yourself if you can prove the adequate facts. These people were unable to prove those adequate facts. The first thing that we put in proof below, which I think was especially convincing, was a memorandum written by the State Retirement Actuary two years before you decided the Manhart case. And in that memorandum, it's an absolutely prophetic memorandum written by the State Retirement Actuary, it's a statutory position in Florida. His job is what it sounds like it is. And he wrote it to his boss, the Pension Administrator of the State of Florida that he had attended a seminar about unisex tables. And he came back from that seminar convinced that an employer operated pension plan, such as the one that was in Florida, could not lawfully use sex based mortality tables. And since he didn't think so, he recommended that before the year 1977 began that they abolish them. And in that memorandum, he said, just briefly, that there was a general thrust taken by the Equal Employment Opportunity Commission by which their... and I'm quoting... "now is a very strong possibility that actuaries will no longer be permitted to use mortality standards which provide for the use of differentiation in the rate of mortality by sex. " And I think it's interesting because when Manhart came up about 24 months later, this Court divided on the liability questions. And some of the Justices in the minority on liability expressed some concerns about the validity of unisex actuarial tables, the availability of them to various employers, the general practicality of proceeding to require the use of unisex tables. In the facts of the Florida case, it's clear that those expressed concerns were not a problem for the Florida facts and this State Retirement Actuary explains. The use of mortality rates on a single unisex basis has been found quite practical for non-insured plans which have been shifting over to the use of approximate benefit factors anyway and thus getting away from the type of precise actuarial equivalent for early retirement and optional benefits. He went on to explain exactly what the probable illegality of the plan would be. That the EEOC is concerned that when actuarial tables are sex segregated, this frequently results in the payment of different periodic pension benefits to males and females under the guise of actuarial equivalence. He specifically said, this will violate the 1964 Civil Rights Act. And in the last page of his memorandum, his recommendation to his boss was, "in light of the strong possibility of the Federal Government mandating the use of such tables, I would recommend that we resolve this difference once and for all. " Now, that was two years before you wrote a word in Manhart. When the Manhart decision came down... and I might add the evidence was that he got no reply to that memo... when the Manhart decision came down, he wrote another memorandum. This one is dated May 19, 1978, and it was very short. He said, I am attaching some option factors that we can use to straighten out the sex based tables in Florida. And now, I'm quoting, he says, "this analysis will serve as a guide to developing a unisex table for option reduction factors. " "In light of the recent Supreme Court decision, it is not a question of, if, but when we adopt such factors. " The State of Florida was never puzzled about what Manhart meant. The State of Florida at that time was not struggling with payout versus pay-in. Was not struggling with the question of having a non-discriminatory option benefit combined in a package with discriminatory benefits. The State Retirement Actuary simply said, it is not a question of, if, but when we adopt such factors. What happened in Florida was a tragedy. The policy makers didn't agree with the pension administrators. Now, as we view the State of Florida in its context here as an employer, the State Government is in a role analogous to any other employer. Its legislature makes its policy. What did the Florida legislature do on the statement of the Manhart case in 1978? In 1979, the Florida legislature passed an anti-Manhart Act. Florida Statute 112.66, subsection 9. In their wisdom, they passed an Act that said first of all, the good part, no Florida Government pension plan shall discriminate in its benefit formula based on color, national origin, sex or marital status. And then here comes the hooker. Nothing here shall preclude a plan from actuarially adjusting benefits or offering options based on sex, age, early retirement or disability. So their reaction to Manhart in 1978 was to pass a piece of local policy in 1979 that is in effect an anti-Manhart Act. So the State Actuary warned them two years before you ruled that this was going to happen. When you did rule in Manhart, he says, looked it has happened. It's no longer a question of, if; it's a question of when. The reaction of the legislature was to say, oh, no, we'll just pass a law about it. And they made a statement of policy that says, we're going to continue to make sex based discriminatory differences in pension payments, notwithstanding the fact that Florida was an employer operated defined benefit plan, just like Manhart. So under those facts, those defendants knew that the plan was illegal. There is also a clear statement of proof as to what the motivation was when Florida refused to make the change. And since there's a comment about this in the Eleventh Circuit opinion, they suggested that this finding of fact was a conclusion of law. Because the Court in a conclusion of law section discusses this at some considerable length, I'd like to clear that up. In disputed finding of fact number ten, appearing in the Appendix at page 60, Judge Stafford, the Trial Court Judge in this case, said, and I am quoting, as a finding of fact, before he got to his conclusions and he built on this in his conclusions, but as a fact finding, he said, "on rebuttal, Mr. McMillian... who was a State Retirement Director who wouldn't answer those memos... identified the reason for not developing the no cost unisex approach before 1983. " That's referred to as a no cost unisex approach because if they had made that switch in 1978 when they knew they should have, you simply adopt a unisex table which is an averaged result of the higher male rate and the lower female rate or the reverse of that if you apply it here. Anyway, it's an aggregation of the two and since you're dealing with nonvested rights, you simply reduce one class and increase the second class, and you strike a unisex level of benefit for both sexes. And they're talking about that as a no-cost approach. And they said, "Mr. McMillian identified the reason for not developing a no-cost unisex approach before 1983. " "That reason was because the no cost approach would result in a reduction of benefits to over one-half of the membership, i.e., women. " "Those in charge did not want to take that step unless they had to. " The Court then went on to say, in its conclusions, "the State simply did not want to make the politically unpopular decision to reduce female benefits. " "The State chose to maintain the discriminatory status quo. " The key to it in my view is that the superior thing about the Eleventh Circuit conclusion has to do with the procedures used in arriving at that conclusion. It did not follow a per se rule of defense. It did not grant to this employer an absolute irrevocable assumption that its plan is just like the most sensitive of plans, or that its plan was just like the Norris plan. The trial judge quite correctly, and the Eleventh Circuit affirmed him for doing it, permitted a trial on the facts about those matters. Whereas in the Ninth Circuit, the Ninth Circuit overruled the trial judge as a matter of law. I would point out parenthetically that in my reading of those Ninth Circuit cases, I do notice that they were all summarily adjudicated below. And while we are critiquing such things, it might be well to say that it would have perhaps been better for the Ninth Circuit at the trial level to have had a full trial, rather than to have undertaken to summarily adjudicate some of those questions.
Antonin Scalia: Mr. Melvin, could I interrupt you for a minute? This letter that you read us from the... what was the fellow's title? The auditor? Do we know that he was pronouncing on you know what Title VII required and what Manhart held and so forth?
Woodrow M. Melvin, Jr.: He is the State Retirement Actuary. His job is created by State statute, and his responsibilities are described in the statute that creates that job and that's been in effect for many many years.
Antonin Scalia: Is he a lawyer?
Woodrow M. Melvin, Jr.: No. He is an enrolled actuary, a professional pension administrator. He is not an attorney.
Antonin Scalia: So for all we know, this may be one piece of advice that the managers of the system got, but they may well have taken that letter and consulted with their lawyers.
Woodrow M. Melvin, Jr.: Yes.
Antonin Scalia: And their lawyers may well have told them, you know, Manhart doesn't say this. Pre-Manhart it doesn't require, and Manhart doesn't say it. And who is this fellow who is just some actuary and we went to law school.
Woodrow M. Melvin, Jr.: Yes. We tried that case and we won that case on those facts. We convinced the trial judge that this advice was the real advice that they were getting that the administrators took the stand and they said that they had the oral advice of the general counsel of the Department of Administration and he also testified that it was his oral opinion that because in Manhart, you had not ruled that it was illegal to discriminate at the payout stage, that he had a doubt. And also in Manhart, you hadn't ruled that you couldn't combine a discriminatory and a non-discriminatory pension plan together and have both be legal. And so he had these questions. However, the trial judge wasn't convinced, and I'm emphasizing that finding of fact. He took all of that into account, because what you're suggesting did exactly occur.
Antonin Scalia: Wasn't convinced as to what?
Woodrow M. Melvin, Jr.: And in fact, there were lawyers' memos.
Antonin Scalia: Who had the burden of proof on this? This was a factual question. Who had the burden of proof on the factual question?
Woodrow M. Melvin, Jr.: I think it's an employer's burden because there is a presumption in favor of retroactivity, a presumption in favor of full relief that extends from your Albemarle decisions and so forth. I would not argue to you that those are per se rules that require retroactivity. I think it is error to accept an argument originating from the Ninth Circuit interpretation that says there is a per se rule of defense that applies to every employer regardless of the type of pension plan or the amount of money that he has in the plan. It was proven here that this plan has an excess of over $200 million.
William H. Rehnquist: Your time has expired, Mr. Melvin.
Woodrow M. Melvin, Jr.: Thank you, sir.
William H. Rehnquist: Mr. Collette, you have four minutes remaining.
Charles T. Collette: Thank you, Mr. Chief Justice. Just one point. The stipulation petition appendix, page A-106, paragraph 4, was simply made for the purposes of Title VII to recognize the use of the word, employer, as it's used in the definitional section of Title VII, which the law recognizes is quite broad, covers agents, etcetera. It resolved the issue that the only entity needed to be sued in this case was Title VII; that is all. Unless the Court has any additional questions, I'll waive--
John Paul Stevens: The only thing I'd ask about that is did you argue in the lower courts that the State was in the posture of a third party?
Charles T. Collette: --No. It's inherent in the facts that there are over 1100 and we kept reemphasizing that point factually that there are over 1100 plus local governmental employers.
John Paul Stevens: For what purpose did you emphasize that fact when you made this stipulation that the Court could regard the case as though it involved only one employer? Why would you be talking about 1100 employers?
Charles T. Collette: Because in point of fact, the FRS... there is no third party outside the State of Florida that administers the FRS. But it is in essence the agent of its local governments. That was the reason for the complication for the fact. The other reason for that 1100 plus is the local impact for which there was a concern expressed in Norris that if the relief is implemented, then these local governmental employers who have no choice will face increased contribution rates, and there is some expert testimony in this that as generally recognized in Norris, Florida local governments are in a crunch, fiscally. Thank you very much.
William H. Rehnquist: Thank you, Mr. Collette. The case is submitted.