William H. Rehnquist: Ms. Van Amburg, you may proceed whenever you're ready.
Lisa S. Van Amburg: Thank you, Mr. Chief Justice, and may it please the Court: For over 75 years since this Court's decision in National Home v. Parrish, it's been the general rule that an agency authorized by Congress to sue and be sued is liable for prejudgment interest in the same way and under the same circumstances as a private enterprise would be. The Government today seeks an exception to this general rule to deny interest to employees of sue and be-sued agencies who have been the victims of employment discrimination. We believe that the issue in this case, that is, whether or not an employee may recover prejudgment interest in a Title VII case against the Postal Service is flatly resolved by the application of a longstanding principle governing resolution of claims against sue and be-sued agencies. And that principle is one first articulated by this Court in a 1940 case, FHA v. Burr known as the "liberal construction rule". And that rule is that a sue and be-sued clause in the charter of a Federal agency effects a broad waiver of immunity and subjects that agency to suit and the natural incidence of suit which a private enterprise would be liable for in the same circumstances. That rule was more recently reaffirmed by this Court in a suit against the Postal Service, the Franchise Tax Board case in 1984 interpreting the scope of the waiver of immunity in the charter of the Postal Service. The no-interest rule, which is another longstanding rule which is to the effect that interest cannot be recovered against the Government absent an express statutory waiver, is not applicable to the Postal Service. This Court, in another Title VII case the last term, Library of Congress v. Shaw, noted that the no-interest rule doesn't apply to agencies which have assumed the status of a private commercial enterprise. And typically Congress has waived the immunity of the agency by inserting into its charter, a sue and be-sued clause. We believe that the Postal Service is one such agency noted by this Court in footnote 5 of the Shaw opinion. The no-interest rule doesn't apply to it because it does not have the status of a sovereign for these purposes. The Government's position is that there is not one agency which fits within the footnote 5 exception of the Shaw decision to the no-interest rule. We don't believe that footnote 5 is superfluous; we think it's a reflection of this Court's understanding of the 75-year-old rule that interest is recoverable against a sue and be-sued agency. Is the Postal Service a footnote 5 agency? Clearly, the Franchise Tax Board case answers that question squarely. It is such an agency. Congress intended the Postal Service, when it chartered it in the 1970 Postal Reorganization Act, to operate as much like a private business as possible. In Franchise Tax Board, this Court stated that because of the Charter of the Postal Reorganization Act, because of the legislative history, we must assume that the Postal Service's liability is the same as a private business. And we must also assume that Congress did not intend to preserve sovereign immunity for the Postal Service.
Byron R. White: Well, if this weren't a Title VII case, don't you think that the Government would agree with you, with everything you've said so far?
Lisa S. Van Amburg: I don't know if they'd admit it, that interest is recoverable against a sue and be-sued agency, but I would think they'd have to.
Byron R. White: What about the Postal Service, would they agree with you in the Postal Service if this were an ordinary lawsuit, rather than a Title VII case?
Lisa S. Van Amburg: I would hope they would because there's so many consistent court decisions to the effect that interest is recoverable against a sue and be-sued agency. Those decisions have followed in the breach of contract actions, other back pay actions. Their position is based upon an inference, Justice White, that under section 717, Congress intended to impose equal liability upon all Federal Agencies regardless of whether it's a sue and be-sued agency.
John Paul Stevens: I think their argument follows from Title VII in Shaw.
Lisa S. Van Amburg: That's right. But they don't acknowledge that the Postal Service is a footnote 5 agency where the no-interest rule doesn't apply. Because all Section 717 does is lays out a statutory scheme for processing charges for Federal employees. But once that employee gets to the Federal courtroom, the remedies are the same. The only thing that prevents an employee of the Federal Government from getting interest is the no-interest rule. And that rule simply doesn't apply to the Postal Service.
Sandra Day O'Connor: Well, Ms. Van Amburg, I suppose at bottom, we're dealing with waiver of sovereign immunity and the extent to which it's been waived. And I suppose you can take the position that when Congress enacted Section 717 in Title VII, that it was adopting a more limited waiver of sovereign immunity, and that that more limited waiver should be read as limiting the more general waiver enacted in the sue and be-sued clause for the Postal Service.
Lisa S. Van Amburg: That's correct. That's what the Postal Service's position is. However, Congress is experienced in legislating against the backdrop of liberal construction rule, and Congress knows how to express in a statute what it wants to do if it wants to delimit the general waiver of a sue and be sued agency. It did that in the Federal Tort Claims Act back in 1945. Section 2679 of the Federal Tort Claims Act explicitly states that the authority of any Federal agency to sue and be sued in its own name shall not be construed to authorize suits against such agency on claims cognizable under the Federal Tort Claims Act. And the remedies provided by the Federal Tort Claims Act shall be the exclusive remedies. So here Congress in the Federal Tort Claims Act acknowledges that a sue and be sued clause in the charter of a Federal agency can be a separate source of authority for proceeding under suit or for certain remedies. And Congress did not do that in Title VII. Not that it wouldn't have known how to, but it simply is silent in Title VII about how to treat sue and be sued agencies. So I think that we have to defer to Congress' experience in legislating against this long-standing liberal construction rule which tells us that it's up to Congress to draw the line on these delimitations of a general waiver effected by a sue and be sued clause. It shouldn't be the Court's inferring any delimitations absent plain evidence of Congress' intent to delimit the general waiver, or absent a grave interference with a Governmental function, which I don't think we have in this case. There's certainly no policy reason for drawing the line on interest here. This Court's recognized in General Motors v. Devex that interest can be a catalyst to avoiding prolonged litigation. The Postal Service is one of the most frequently sued employers under Title VII. Making them liable for prejudgment interest might further earlier settlement of meritorious claims. I might note that this case was appealed on the merits to the United States Court of Appeals on issues of credibility findings of the trial judge. If Federal Express takes interest into consideration as to whether to settle a claim, why shouldn't the Postal Service. I think that Congress intended the Postal Service to bring its management decisionmaking as nearly as possible up to the level of private enterprise. And so there really is no policy reason to draw the line by inference here. And Justice O'Connor's point about Section 717 is correct; that's the Government's argument. The Government wants the Court to infer a delimitation on the general waiver from the language of Section 717, but all that that language does is tell us how to process the charges for the employee. Once that employee gets into the Federal courtroom, that employee's entitled to the same remedies as a private employee would be.
Antonin Scalia: As the Government points out, you sued the Postmaster General by name, rather than the Post Office, and had 717 not spoken to what happens in the courtroom, that was incorrect.
Lisa S. Van Amburg: Well, that is a procedural distinction, and--
Antonin Scalia: Well, you acknowledge 717 has some bearing in the courtroom, then?
Lisa S. Van Amburg: --It does.
Antonin Scalia: Or maybe you made a mistake.
Lisa S. Van Amburg: More by what it doesn't say than what it does say. I think its silence on the issue of whether interest is recoverable is not particularly instructive, because as this Court noted in the Shaw case, interest is an element of damages that's historically been viewed as separate from damages on a separate claim. But its silence on the exclusiveness of the damages or the remedy for sue and be sued agencies is more instructive, given what Congress had done in the Federal Tort Claims Act. So if we are to conclude that the no-interest rule applies to the Postal Service, we would be doing so undermining this liberal construction rule which has been in place for 48 years now. The fact that it's in different names is, I think, an irrelevant procedural distinction.
John Paul Stevens: May I ask you a different question. The sue and be sued clause for this entity was enacted in 1970, is that right?
Lisa S. Van Amburg: Yes, that's correct.
John Paul Stevens: And the Title VII amendment was 1972.
Lisa S. Van Amburg: 1972.
John Paul Stevens: Now, in 1971 say this lawsuit had been brought, could your client have recovered from the Postal Service, and I guess the answer is, no.
Lisa S. Van Amburg: In 1971, if we had brought an action under Title VII?
John Paul Stevens: Yes.
Lisa S. Van Amburg: I would have to say the answer is, no, because we didn't have a right to proceed under Title VII at that time.
John Paul Stevens: And is the reason that you had no right, did that have anything to do with sovereign immunity?
Lisa S. Van Amburg: No.
John Paul Stevens: Your position is the only relevant sovereign immunity was waived in 1970?
Lisa S. Van Amburg: That's correct.
John Paul Stevens: And what happened in '72 was you got a cause of action you didn't previously have.
Lisa S. Van Amburg: That's right. It added a cause of action against the Federal Agencies that did not previously exist. But the Postal Service comes into the 1972 law as a private enterprise, with the status of a private enterprise for the purposes of interest and damages.
John Paul Stevens: Why couldn't they have been sued as a private enterprise under Title VII in 1971?
Lisa S. Van Amburg: Well, because of what we know of the legislative history of the Postal Reorganization Act, Congress expressly listed those Federal labor laws applicable to the Postal Service in its charter and left out Title VII. And there was some debate about it. The debate was not over sovereign immunity; it was a debate whether to leave the employees of the Postal Service under the Executive Order or to put them under Title VII. Which shows, I think, that Congress is viewing Title VII as a different kind of agency, the fact that they even talked about putting them under Title VII. But the issue was where would the employees be better off, under the Executive Order or under Title VII, and that was the debate. But they later changed their mind about where they'd be better off. The issue of sue and be sued in the official name versus the name of the Postmaster's the exact kind of issue that was raised in FHA v. Burr, and dismissed by the Court. Courts have been reluctant to draw procedural distinctions that would sabotage this rule construing sue and be sued clauses broadly. I think that this Court rejected a similar procedural distinction in the Franchise Tax Board case when you said we're really not going to say that a suit in an administrative proceeding is not covered under the sue and be sued clause versus a suit in the courtroom. That's the kind of procedural distinction the courts have rejected.
Antonin Scalia: Why do you say that in 1972, Congress created a cause of action, rather than eliminate the cause of action?
Lisa S. Van Amburg: I didn't mean to say that if I did.
Antonin Scalia: Well, I thought you did.
Lisa S. Van Amburg: The right of proceeding into the courtroom.
Antonin Scalia: Well, Justice Stevens made you do it. That's the question he asked and you agreed with that.
Lisa S. Van Amburg: I don't think so. I think that there was a cause of action for employment discrimination back then.
Antonin Scalia: Against the Post Office?
Lisa S. Van Amburg: It's certainly debatable, however, under Title VII whether an employee could have gotten back pay. An employee could have complained through the Executive Order administrative process back then.
John Paul Stevens: Was there a cause of action for damages by an employee who was discriminated against by the Postal Service in 1971?
Lisa S. Van Amburg: Possibly under 1981, possibly under 42 U.S.C. 1981 there might have been.
John Paul Stevens: Against the Federal Government?
Lisa S. Van Amburg: Against the Postal Service.
John Paul Stevens: Well, I mean the Postal Service as stated, I mean, how would you sue the Postal Service under 1981?
Lisa S. Van Amburg: Well, in the same way you would sue a private enterprise if you assume that the Postal Service occupies the status of a private commercial enterprise, which has not really been decided by this Court. But in that two years, I don't think we know the answer to that question.
John Paul Stevens: What's your position on whether they were suable in 1971? I'm really not quite clear.
Lisa S. Van Amburg: Well, there were some cases that went into the Court of Claims under the Executive Order for back pay, and I would say that they were suable back then, at least in the Court of Claims. Although this Court has, in Brown v. GSA settled that in terms of forums, that Title VII would be the exclusive remedy. So, yes, I think they were suable back in 1971,--
John Paul Stevens: In other words, you say the Executive Order created a duty not to discriminate and a violation of that duty, since the sovereign immunity had been waived, gave rise to a cause of action in 1971.
Lisa S. Van Amburg: --That's right.
John Paul Stevens: All that Title VII did was change the procedure a little bit and make it a statutory duty instead of an administrative duty?
Lisa S. Van Amburg: That's correct, that's our position. And really all Title VII is is an exclusive administrative scheme for getting into the Federal courtroom, but once the employee's there, the damages are the same against a sue and be sued agency. If there are no further questions, I'll reserve some time for rebuttal.
William H. Rehnquist: Thank you, Ms. Van Amburg. Mr. Rothfeld, we'll hear now from you.
Charles A. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court: Both sides in this case agree that the so-called no interest rule or the aptly named no-interest rule prevents the award of interest to virtually all Federal employees who obtain Title VII judgments against the United States. The only question in this case is whether Congress created a special exception to this limitation on Title VII for the benefit of the Federal workers who are employed by the Postal Service, a benefit that gives those workers, in contrast to all other Federal employees, a right to interest on a Title VII awards.
Byron R. White: Well, if this weren't a Title VII suit, say it was a contract action against the Postal Service.
Charles A. Rothfeld: We don't disagree with the petitioners as a general matter a sue and be sued clause in that sort of proceeding, a contract-type proceeding is a waiver of sovereign immunity which may entitle it to--
Byron R. White: So your submission is that the Title VII 717 really took away that waiver to some extent?
Charles A. Rothfeld: --Well, I wouldn't say that it took away the waiver. We think that Section 717 is a separate waiver and it is the dispositive waiver in this case. Also I think the way in which Congress created the Postal Service and the way in which it regulated the relationship between the Postal Service and its employees provide an independent reason.
Byron R. White: So you should look at this 717 just as a waive with respect to Title VII suits?
Charles A. Rothfeld: We think that's right. We think this is a case about Title VII, it was brought under Title VII, it is a Title VII case. Now, obviously before anyone obtains any kind of judgment against the United States, there must be two things; there must be a waiver of sovereign immunity and there must be a cause of action. To resolve this case, the Court must do two things; it must find a waiver of sovereign immunity and decide if the waiver which is controlling here is broad enough to allow for awards of interest.
John Paul Stevens: I really am puzzled because if the sue and be sued clause enacted in 1970 was a general waiver of sovereign immunity for any claims for which there was a cause of action and a remedy, why wasn't, to the extent that sovereign immunity would otherwise bar the recovery of interest, why hadn't that been waived? There just simply, there was no cause of action, but you don't really contend that in '72, they cut back on the waiver?
Charles A. Rothfeld: No, not at all.
John Paul Stevens: You're saying that all they did in '72 was create a cause of action which hadn't been created.
Charles A. Rothfeld: Well, I don't think that's a proper characterization.
John Paul Stevens: At least that's one... isn't that an argument, at least?
Charles A. Rothfeld: That is the argument that petitioner makes.
John Paul Stevens: Well, she waivers a little on it, but I guess that's her argument.
Charles A. Rothfeld: Well, I think that was the final landing place for the petitioner. And I think that there are two responses to that. One involves the nature of the waiver which is controlling here. The other involves the nature of the Postal Service and its relationship to its employees. Answering your question now, in particular, we think that that analysis that it was the sue and be sued clause which was the waiver here and that Title VII simply created a cause of action is not the proper way to view this case. And the relationship between the two statutes makes that quite clear. Congress passed Title VII in 1964 and at the time, it preserved the sovereign immunity of the United States by excepting from the definition of employer, the Federal Government including the old Post Office Department. Therefore, no part of the Federal Government could be sued under Title VII after its enactment in 1964. Six years later in 1970--
Antonin Scalia: Well, you could regard that as reserving sovereign immunity, or you could regard that as not creating a cause of action. And I don't know how to--
Charles A. Rothfeld: --Well, I think it was both, Justice Scalia. Congress typically waives the sovereign immunity of the United States as we think it did in this case by enacting a cause of action. The cause of action waives the sovereign immunity to the extent that the cause of action has been created, and therefore they are two sides of the same coin. The Court, in Shaw, for example, characterized the 1972 provision of Title VII as a waiver of sovereign immunity. It was those provisions which created the cause of action. In the usual case, there's no point in distinguishing between the waiver and the cause of action.
Antonin Scalia: --Yes, but there, there had been no preceding waiver of sovereign immunity for the Library of Congress. Isn't there a difference when the sovereign immunity's already been waived, you don't need a second waiver. But you did need the first waiver there.
Charles A. Rothfeld: Well, I think there are two answers to that, Justice Stevens. First, let me just spell out a little bit how the system worked from 1964 to 1972. In 1970, when Congress created the Postal Service it preserved, we think, the sovereign immunity as to employment discrimination claims. Congress specifically considered extending to the Postal Service the existing private sector provisions of Title VII. It decided not to do that. So in 1970, it was quite clear that a Postal employee could not sue the Federal Government under Title VII.
John Paul Stevens: But can't you describe that in either of two ways: one, as you do now, they were preserving a portion of sovereign immunity; or simply say, they just didn't create the cause of action?
Charles A. Rothfeld: Well, I think they were doing both.
John Paul Stevens: Supposing you had a statute passed today that created a cause of action against the Postal Service for late delivery of mail? Say there's an implied promise that the mail be delivered within a week, and if it's over 30 days late, well, you get a dollar a day or something. Could you get interest on that?
Charles A. Rothfeld: I think you might if you're suing under the sue or be sued clause. But again, we think it's--
John Paul Stevens: Brand new cause of action, you just waived sovereign immunity as to late delivery of mail.
Charles A. Rothfeld: --That's quite right, Justice Stevens, but the crucial point is not when the cause of action was created. We certainly agree that causes of action created after the enactment of the sue and be sued clause may be brought under that clause. But there are two reasons why the clause here is not the waiver of sovereign immunity. First, Congress in 1972 when it enacted the Federal sector provisions of Title VII which grant a remedy for employment discrimination to all Federal employees, Congress viewed that as you say, as creating a cause of action. It also clearly said at the time, and the Court has since recognized that that was a blanket waiver of sovereign immunity. It is that blanket waiver of immunity that allows all Title VII actions against the Government, including this one, to proceed. Now, the fact that Title VII was extended to an agency like the Postal Service that already had a sue and be sued clause in its charter, I think, is a matter of happenstance. It doesn't affect the identity of the waiver of the statute that's waiving immunity. Congress viewed that blanket waiver as the waiver which made these suits possible. And I think there is clear textual evidence of that, and that is the second reason for saying that it is Title VII and not the sue and be sued clause that is the waiver here. Those two provisions actually authorize suits against different named defendants, as Justice Scalia noted. Section 717(c) of Title VII waives the Government's immunity in suits brought against the head of the defendant's agency. That is why this case is captioned, Loeffler v. Tisch, Postmaster General. In contrast, the sue and be sued clause makes the Postal Service amenable to suit in its official name. And that is why a typical suit that is brought pursuant to the clause in which the clause is the waiver is captioned something like, Freed v. U.S. Postal Service. Now, this obviously is a technical distinction but it has real significance. The courts will uniformly dismiss Title VII actions that are brought against the agency rather than against the agency head. That means that this case can proceed only because it is Title VII that makes the Postmaster General amenable to process. And if it is Title VII that makes the defendant amenable to suit, it must be Title VII itself that provides the relevant waiver of immunity here. Now, in turn, the Court has made it quite clear repeatedly that it is the statute waiving immunity that sets out the conditions under which the Government has agreed to be sued. And Shaw held clearly that one of the conditions under the Title VII waiver is that it does not authorize awards of interest to employees suing any part of the Federal Government.
John Paul Stevens: Mr. Rothfeld, who pays the judgment if your client loses?
Charles A. Rothfeld: Well, the short answer is that the judgment comes out of the U.S. Treasury.
John Paul Stevens: It does come out of the Treasury, not out of the Postal Service?
Charles A. Rothfeld: Well, the judgment comes in particular out of something called the "Postal Service Fund" which is a fund created in the Postal Reorganization Act in which Postal revenues are placed and Postal expenditures are made. That fund, in turn, is specifically labeled by the Postal Reorganization Act as part of the United States Treasury.
John Paul Stevens: If it were a non-discrimination suit that arose in 1971 for something that you could sue the Post Office for then, maybe rent, would it come out of the same source?
Charles A. Rothfeld: Yes, it would--
John Paul Stevens: It would. So it's money basically allocated to this particular entity, and obviously the Postmaster General doesn't pay it individually?
Charles A. Rothfeld: --No, that's correct.
John Paul Stevens: And neither does the United States generally?
Charles A. Rothfeld: Well, again, it comes out of the United States Treasury.
John Paul Stevens: Yes, in the same sense that a rent payment might, or a suit for rent might?
Charles A. Rothfeld: Well, that's true. That's true. But I mean, I should emphasize that the Postal budget is part of the budget of the United States. The Postal Service in allocating expenditures from the Postal fund, which as I said is part of the Federal Treasury, will send its budget to the President. The President, through the Office of Management and Budget, will send it on to Congress. Congress approves that budget as part of the United States' budget. The money comes out of the Federal Treasury, out of the Postal Service comes out of the Federal Treasury and therefore adds to the Federal budget deficit, one reason why Congress is now tinkering with the Postal budget. In fact, in Section 409 of the Postal Reorganization Act which deals with suits against the Postal Service, Congress specifically categorized judgments paid from the Postal fund as judgments against the United States which are paid out of the Postal fund. So I think the money that's at stake here must be characterized as Federal money, money coming out of the United States Treasury. Certainly, without a waiver of sovereign immunity, an express waiver somewhere, petitioner could not sue and get its hands on that cash. And that we think is the first dispositive reason for ruling for the Postal Service here. The waiver of sovereign immunity in this case is Title VII. That waiver does not allow for awards of interest. Therefore, the express waiver of sovereign immunity, the only waiver that allows the suit to proceed, is not broad enough to allow them to obtain awards of interest under this Court's holding in Shaw. And there is also, as I suggested, a second independent reason for ruling for the Postal Service in this case, which is not at all technical or sophisticated. It's a simple matter of Congressional intent. Even if it is true that the sue and be sued clause is the source of the waiver here... and we don't think that it is... but even if that were true, all that would mean is that the clause allows petitioner to bring the Postal Service into court. It would remain Title VII that provides the cause of action. It would remain Title VII that defines the scope of the relief here. And there's nothing controversial about this point. If Congress had said expressly in Title VII that Federal employees could not obtain interest under that statute, it is quite clear that nothing in the sue and be sued clause could change that outcome. But that is essentially this case. The Court has already held in Shaw that Title VII does not authorize awards of interest to Federal employees. Therefore... it did that of course not by expressly withholding interest, but by omitting any mention of interest from the statute... that means that petitioner is not entitled to interest, simply because his cause of action does not provide interest as part of the relief. Now, Ms. Van Amburg's response to that point this morning has been to suggest that the Federal sector provisions of Title VII have a split personality. That those same provisions should be interpreted to withhold interest from other Federal employees, while granting interest to employees of the Postal Service. And her rationale for that assertion is the suggestion that Congress viewed the Postal Service as being just like a private commercial corporation and that it therefore must have wanted Postal employees to be treated just like private sector workers under Title VII. Now, we think there are several fundamental problems with that approach. First, it oversimplifies the nature of what is a very complicated Federal Agency. It is certainly true that, as petitioner effectively lays out in its brief, that there are many ways in which the Postal Service is like a private corporation. But it is equally true, as we point out in our brief and in an enormously long footnote on pages 19 and 20, it is equally true that there are a great many ways in which the Postal Service is nothing like a private corporation. Among many other things, the Postal Service exercises power of eminent domain, and enters into international agreements, and investigates criminal violations. Obviously it's represented by the Solicitor General when it appears in this Court. And in a variety of other ways, the Postal Service is just like all other Federal agencies. Now, the second more fundamental problem with petitioner's suggestion that the Postal Service is very much like a private corporation is that we think it is beside the point here. We think that petitioner's list of Postal Service characteristics and our competing list are essentially irrelevant. It would not be a sensible approach for the Court to add up the number of statutes cited by each brief and decide on the basis of who has the longer list that for all time and all purposes, the Postal Service is more like a private corporation or is more like a Government agency. The question here is a much narrower one. It concerns how Congress wanted Postal employees to resolve their complaints of employment discrimination. On that we think the answer is quite clear; Postal employees are Federal employees. They are in the Postal Service which is expressly made by statute, a part of the Civil Service. In particular, and of dispositive importance here, Congress has always treated Postal Service employees identically to all other Federal employees for purposes of equal employment opportunity. In 1970, Congress specifically considered protecting Postal Service employees by the private sector provisions of Title VII. It decided not to. It decided to extend the existing Federal sector antidiscrimination provisions. In 1972 of course Congress placed the Postal Service in the Federal sector and not in the private sector provisions of Title VII.
Thurgood Marshall: The employees, did they get the two percent raise?
Charles A. Rothfeld: Well, for purposes of equal employment opportunity they are treated identically to Federal employees. As I suggested,--
Thurgood Marshall: They are or they are not?
Charles A. Rothfeld: --Well, they clearly are Federal employees. They were--
Thurgood Marshall: But do they get the two, the raise?
Charles A. Rothfeld: --Well, the Labor Relations section of the Postal Service is modeled to a certain extent on the private sector, and therefore their pay is not awarded under the same standards as that used for other Federal employees. But as I say, Congress was quite clear that they were Federal employees. They were characterized repeatedly as Federal employees in the Congressional debates and particularly for purposes of equal employment opportunity, as well as for many other public rights and obligations of Federal employees.
John Paul Stevens: May I ask, following up on Justice Marshall's thought, do you suppose it would be permissible as a matter of Federal law for their collective bargaining agent to negotiate an agreement which authorized the award of prejudgment interest in all litigation against their employer?
Charles A. Rothfeld: As far as I'm aware--
John Paul Stevens: Or would they say they couldn't do it because sovereign immunity would preclude it?
Charles A. Rothfeld: --Well, to the extent that that was being done to redress employment discrimination claims which are cognizable now under Title VII, I think that would be appropriate because--
John Paul Stevens: Well, the question wasn't whether it was inappropriate, the question was would there be as a matter of Federal law, would it be prohibited. I think that's your position.
Charles A. Rothfeld: --I think it would be prohibited if it was something which is cognizable under Title VII, because the Postal Service clearly cannot by its own action waive sovereign immunity when Congress has declined to do so, and Congress has declined to do so. As I suggested, Congress has treated Postal employees identically to other Federal employees for purposes of equal employment opportunity. And Postal employees must bring their claims of employment discrimination under the Federal sector provisions of Title VII.
John Paul Stevens: For most other terms and conditions of employment, they're treated differently from Federal employees?
Charles A. Rothfeld: Well,--
John Paul Stevens: They do have collective bargaining rights that are different.
Charles A. Rothfeld: --Well, there are a long list of ways in the Postal Reorganization Act and in Title V which we set out in our brief, in which they are treated identically to other Federal employees. The Civil Service Reform Act of 1978, which was the basic charter of rights of Federal employees, applies to most to Postal employees who are veterans preferences, and applies to other Federal Postal Employees except to the extent that it's displaced by a collective bargaining agreement. There are also as I say a wide variety of independent provisions of personnel laws that apply to Postal employees. And in particular, in the Title VII contracts, the differences between Postal Service employees and Federal employees on the one hand, and private sector employees on the other, will remain whether or not the Postal Service is viewed as being like a private corporation, and whether or not the rights of Postal employees are otherwise viewed as being similar to the rights of private as opposed to public sector employees. And there's no answer to this, we think, to suggest as petitioner does, that Congress' inclusion of the sue and be sued clause in the Postal Charter can somehow change that and signal a Congressional intention that Postal employees should be treated identically to private sector workers under Title VII.
Sandra Day O'Connor: What do you suppose the Court had in mind in its footnote 5? Are there some agencies that would fall under that?
Charles A. Rothfeld: Well, I think that the Court had two things in mind, Justice O'Connor. First, it clearly had in mind the long line of cases cited by the petitioner in which a cause of action is brought pursuant to a sue and be sued clause in a setting in which the relationship between the agency being sued, and the person bringing the suit is the same as one in the private sector. That was the case, for example, in the Franchise Tax Board case where the Postal Service's relationship to the Franchise Tax Board was the same as that of any other employer. I think the best example of what the Court had in mind is the illustration provided in Footnote 5, a case called Standard Oil Company v. United States, in which the Federal government had essentially gone into the insurance business, into the rural risk insurance business in competition with private insurers using contracts identical to those used by private insurers. And the Court said in that case, the relationship between an insured party and the Government was identical to the relationship between an insured party and a private insurer, and therefore the terms of the lawsuit should be the same. Now, that is clearly not true in the case of a Title VII suit which as been brought against the Postal Service. It must be brought pursuant to the Federal sector provisions of Title VII, which differ in a variety of significant ways from the private sector provisions of Title VII. Federal employees, including Postal workers, for example, must use the administrative mechanism set out in the Federal sector provision. Federal employees including Postal workers, unlike private sector workers, must use Title VII exclusively as their remedy for employment discrimination. Those differences will remain however the nature of the Postal Service is characterized. And as I suggested, the existence of the sue and be sued clause can't change that. It can't magically move the Postal Service from one provision of Title VII, the Federal sector provision, to another provision, the private sector provision. That means that Postal employees must bring their employment discrimination claims pursuant to the Federal sector provision, using Federal sector administrative remedies against the Federal defendant like other Federal employees, but unlike workers in the private sector. They must use Title VII exclusively as their remedy for employment discrimination. Now, we think the clearest indication of how Congress wanted to treat Postal employees under Title VII is how it actually did treat them. It treated them identically to all other Federal workers. Those Federal workers cannot get interest under Title VII. Now, by giving petitioner the special benefit of interest, it will introduce an incoherence into the statutory scheme which is now nicely symmetrical dividing private sector and Federal sector workers. It would also give employees in the Postal Service a special benefit and distinction which is not awarded to any other Federal sector employee, any other employee of the Executive Branch. Now, the Court of Appeals properly declined to give this special and unique benefit to Postal Service employees, and we think that this Court should affirm that decision. If there are no further questions?
John Paul Stevens: I have a question. Maybe it's too far off in left field, but there are a lot of sue and be sued agencies and a lot of them are not mentioned in Section 717. I guess Federal Housing Agency, aren't there? Am I not right, there are quite a few of these agencies?
Charles A. Rothfeld: That's correct.
John Paul Stevens: What requires them, if anything, to obey non-discrimination laws, most of those? I'm just wondering if whatever we decide in this case would apply to a lot of other agencies, or is it really pretty unique to the Postal Service?
Charles A. Rothfeld: Well, I think that this case would apply essentially to any component of the Federal Government which is sued pursuant to Section 717(c). We think that that is (a) the dispositive waiver of sovereign immunity, and (b) clearly embodies the Congressional intention that all employees of the Federal Government should be treated in one way for purposes of employment discrimination.
John Paul Stevens: But does this statutory provision apply to all these other sue and be sued agencies in much the same way?
Charles A. Rothfeld: Well, I'm actually not sure of the answer to that question.
John Paul Stevens: I don't think... it doesn't seem to on the face of the statute. I was just puzzled by it as I was just looking at it.
Charles A. Rothfeld: Well, that would be a difficult question of interpretation for the Court, because the way in which the private sector provision of Title VII is written, it specifically excludes, as I said from the definition of employer,--
John Paul Stevens: All Federal agencies.
Charles A. Rothfeld: --all, not only the United States, itself, but all Federally-owned corporations and instrumentalities, and therefore, it is quite clear that an employee of the Federal Government cannot bring a Title VII action pursuant to the private sector provision.
William H. Rehnquist: Thank you, Mr. Rothfeld. Ms. Van Amburg, you have fourteen minutes remaining.
Lisa S. Van Amburg: Thank you. Mr. Rothfeld suggests that this Court must make a decision between the two waivers, the waiver in the Postal Service Charter, or Title VII, which one applies. I don't agree that the two are mutually exclusive. I think that the Court can take into consideration and give effect to each waiver. The waiver that occurs in the Postal Reorganization Act is a waiver of the status of the agency as the sovereign. The waiver that occurs in Title VII concerns a substantive right to proceed. Both can be taken into consideration. Title VII doesn't tell us anything, however, regarding interplay of these two waivers. Congress has expressed interplay in the Federal Tort Claims Act, but has not done so in Title VII. So then we are left to infer a wavy line as to what the Postal Service is immune to and what it isn't by Mr. Rothfeld's argument. Under the longstanding liberal construction rule, no inferences to that broad waiver of the Postal Reorganization Act should be lightly drawn. And it's clearly a rule that's very functional for the courts in the sense that if you assume that Congress is experienced in legislating against this liberal construction rule, they you really don't have to draw wavy lines. Maybe they're liable for punitive damages, maybe they're liable for costs, for interest. That's up to Congress to draw the line. Congress knows how to do it, it's done it before. It's expressed it before. And Congress understands that a sue and be sued clause can be a separate source of authority for proceeding even as to certain damages, elements of damages which interest theoretically is an element of damages. So the Government's position is based upon a mere inference, not upon any express statutory language. And the fact that interest is not articulated in Title VII isn't particularly instructive. It doesn't mean that Congress did not want sue and be sued employees to get interest. It's a function of the fact that interest has historically been viewed as an element of damages separate and apart from the substantive claim. So a as a natural incident of Title VII suits, interest should be recoverable against the Postal Service because it occupies the status of a private commercial enterprise for these purposes. I don't think that the Court needs to make a broad decision that would affect over 124 sue and be sued agencies because of the unique character of the Postal Service. It's clearly one of those agencies the Court had in mind in footnote 5 of the Shaw opinion. Congress when it created it, removed the cloak of sovereign immunity and launched it into the world of private commercial enterprise. There are a lot of sue and be sued agencies. The first interest case was against the National Home for Disabled Volunteer Soldiers which I don't think was a commercial enterprise. But this Court need not define the holding so broadly because of the unique character of the Postal Service. I would like to just for one moment note something I found in the legislative history of the Postal Reorganization Act, which I think is an indication of Congress' understanding that there would be new causes of action created in the future which would affect the Postal Service in the same way as a private enterprise would be affected. In discussing the applicability of the National Labor Relations Act to the Postal Service, which is correct, the National Labor Relations Act applies to the Postal Service except for the right to strike. Congress discussed the applicability of right to work laws of the various States and recognized that these laws applied to the Postal Service in the same way as they would a private enterprise. And then it said, in the legislative history, if the National Labor Relations Act should be further amended at some future time,--
Antonin Scalia: What are you quoting, you said it said, Congress said in what? What are we talking about? It is a floor statement or?
Lisa S. Van Amburg: --Committee Report, the Conference Committee Report in the United States Congressional and Administrative News, Vol. 2, page 3664. If the National Labor Relations Act should be further amended at some future time either to extend or to restrict right to work provisions, that amendment presumably would apply to the Postal Service in the same way that it applies to other Federal entities. I think Congress understood that there would be changes in the future and the Postal Service would be affected by these changes in the same way as a private business would be. And that's the key there, that the Postal Service came into Title VII effectively as a private business. Thank you.
William H. Rehnquist: Thank you, Ms. Van Amburg. The case is submitted.


John G. Roberts, Jr.: We'll hear argument next in Case 08-214, Atlantic Sounding v. Townsend. Mr. McCreadie.
David W. McCreadie: Mr. Chief Justice, and may it please the Court: Mr. Townsend is a Jones Act seaman who seeks punitive damages for the willful failure to pay maintenance and cure. Like the unseaworthiness claim in Miles, Mr. Townsend's maintenance and cure claim is a general maritime law cause of action. Mr. Townsend cannot recover punitive damages under his general maritime law cause of action because those damages are unavailable under the Jones Act FELA, and to a lesser extent DOHSA. This Court's decision in Miles requires uniformity between the damages that a seaman can recover under general maritime law and the damages that a seaman can recover under the guiding statutes. Those guiding statutes again are the Jones Act, the FELA, and the DOHSA. Those statutes--
Ruth Bader Ginsburg: Mr. McCreadie, in this case, why is it necessary to get into that, whether they are punitive damages under FELA and the Jones Act? If we accept, as I think we must, Townsend's allegations to be true, he has said that Atlantic, as a matter of routine, puts in a boilerplate complaint for declaratory relief, reciting all the reasons why somebody could not get maintenance and cure, even though that is patently false, the allegation, for example, that he deserted his post. He says it's false. He says the allegation that he falsified his application for employment is false. Accepting the -- that to be true at this stage, isn't there some kind of punitive measure to be taken against a litigant who abuses the court process in that way?
David W. McCreadie: --First, Justice Ginsburg, those are just allegations. There's no evidence--
Ruth Bader Ginsburg: Yes, but -- but now we're at the pretrial stage, and we're supposed to assume the truth of the allegations in Townsend's complaint. We're assuming -- they may well turn out to be false; but at the threshold under 12(b)6 we accept those allegations as true and then determine whether a claim is stated.
David W. McCreadie: --Well, if -- if those allegations are true, there's no distinction between the willful wanton misconduct that traditionally has been the subject of the dispute about maintenance and cure and punitive damages as opposed to those allegations.
Ruth Bader Ginsburg: But let's take this out of the maintenance and cure spot altogether. Litigation generally, if a court determines that a litigant is abusing the court's process by filing false pleadings, is there a remedy; and if so, what is it?
David W. McCreadie: Yes, Justice Ginsburg, there is a remedy. And that's what Vaughan v. Atkinson provides. In that case the -- this Court looked at abuse of the litigation process and determined that the plaintiff in that case was entitled to attorneys' fees.
Ruth Bader Ginsburg: I thought that all that was at stake there was whether the employer wrongfully withheld maintenance and cure that was owing. The allegations made by Townsend go far beyond that they just unreasonably denied him maintenance and cure. They suggest that this litigant, as a matter practice, standard operating procedure, makes false claims before a court. And my question to you is, isn't across the board there a sanction, wholly apart from the particular claim, for a litigant who abuses the court's processes?
David W. McCreadie: I think there's a -- there's a number of potential sanctions. I mean, there is Rule 11. There's the natural discretion of the court.
Antonin Scalia: Is any of them called punitive damages? Do you know of any case in which a court has--
David W. McCreadie: No, I do not.
Antonin Scalia: --And punitive damages, of course, requires that you first find the guilty person to lose the case. So what if a person makes these terrible allegations, but ends up winning the case anyway, and -- and -- well, you couldn't impose punitive damages.
David W. McCreadie: I -- I agree with--
Antonin Scalia: We've got to call it something else, don't we?
David W. McCreadie: --I agree with your position there. And what I was trying to answer the question is if someone does abuse the litigation process, that is what Vaughan v. Atkinson addressed. And it -- it awarded attorneys' fees, which -- which are unusual. It is an exception to the American rule. And it is a deterrent for anyone to try to play fast and loose with--
Ruth Bader Ginsburg: How many--
Anthony M. Kennedy: But do you read Vaughan v. Atkinson as necessarily implying punitive damages would be inappropriate? I -- I can't quite find the negative that you want me to find, I think, in Atkinson. True, they didn't talk about punitive damages. They said damages are appropriate, and attorneys' fees in this case is what the district court gave, we are going to affirm it. But there's nothing there that said punitive damages are inappropriate.
David W. McCreadie: --No. The -- the dissent mentioned that. But you cannot speak for the majority opinion. But up until Vaughan v. Atkinson, in the history of the United States there was never a holding where punitive damages were awarded to a Jones Act seaman for the failure to pay maintenance and cure. It was only after Vaughan v. Atkinson, after the dissent mentioned that concept, that the issue ever arose in the history of Supreme Court precedent, circuit precedent, in -- in this country.
Antonin Scalia: Whose dissent was that? I had forgotten that. Whose dissent was it? Do you recall? Stewart?
David W. McCreadie: I do -- I do not believe -- it is coming Justice Harlan, but I just -- I just cannot say off the top of my head who wrote the dissent.
Ruth Bader Ginsburg: --But you said never in the history. I mean, there -- there are examples like the ancient Nancy case, where the damages, where they were called exemplary -- but when you say never has there been before or after punitive awards. But there -- there is precedent, the Nancy case in this Court, cases in lower courts, there have been punitive damages awards in -- in maintenance and cure cases.
David W. McCreadie: Justice Ginsburg, I made the distinction between there's no case in the history of the United States before Vaughan v. Atkinson awarding punitive damages to a seaman, a Jones Act seaman, for the failure to pay maintenance and cure. The case that you refer to, the Amiable Nancy, and other cases, they apply to general maritime law with respect to collisions, now with respect to pollution, and that's a broader context. But if we look at the history of general maritime law, if we look at, for example, Calhoun, there's the critical distinction between non-seafarers and seafarers. If we look at Latsis, there's the critical distinction between seaman and longshoremen. In those status, they define the class of persons that we're looking at to see whether they can recover punitive damages. And this case involves a Jones Act seaman. And because it involves a Jones Act seaman, that's the class of claimant that we're looking at. And when we have a Jones Act seaman the primary statute that we look at is the Jones Act. Of course, the Jones Act incorporates FELA by reference. And the DOHSA, as Miles points out, also has an impact on the -- on the case.
Ruth Bader Ginsburg: Did this Court ever hold that under FELA or under the Jones Act there are no punitive damages? Do we -- do we have any holding to that effect?
David W. McCreadie: No -- no, there is no specific holding, and I would point out that if there was, that would answer our question today and we wouldn't be here. But that we do have is Miles, which is very clear and specific about what damages are available to a seaman; and those damages are compensatory damages. Miles is clear that the seaman can be compensated for pecuniary loss, the seaman can be compensated for his pre-death pain and suffering. Because punitive damages are not compensatory damages, because punitive damages do not compensate for pecuniary loss, and because punitive damages do not compensate for pre-death pain and suffering, they are not available to a Jones Act seaman.
Anthony M. Kennedy: Well, but that -- but that was a common law wrongful death action, correct, Miles?
David W. McCreadie: Miles was--
Anthony M. Kennedy: It was not admiralty maintenance and cure.
David W. McCreadie: --Justice Kennedy, Miles was a wrongful death action. But when we look at Miles and we question, well, that is a wrongful death action, it is very clear, should Miles apply in a personal injury action, then we need to -- we -- first we know -- we look at the -- the cases that have addressed that point. And first off, Miles does not say that the uniformity principle applies only to wrongful death actions. Secondly, Cortes, Supreme Court precedent, tells us that the rules are the same for personal injury and death actions for maintenance and cure under the Jones Act. In Cortes, the opposite argument was made: That the maintenance and cure claim could proceed for personal injury but not for a death action. Here, the Respondent is making the argument--
Antonin Scalia: Excuse me, that the maintenance and cure claim could proceed or that the punitive damages claim could be made?
David W. McCreadie: --You're absolutely correct. Here they are making the argument that the punitive damages claim could -- can proceed under the personal injury side of the case but not the death side. And Cortes has already addressed that issue. And--
Ruth Bader Ginsburg: Mr. McCreadie, there's a question about this case, a troublesome feature of it. That is, you are saying because there are no punitive damages available under FELA and under the Jones Act, then there certainly should not be any under maintenance and cure. But if we have to answer those questions, whether there are punitive damages available under FELA and the Jones Act, in the context of a maintenance and cure claim, then we're deciding a much larger question than are punitive damages available for willful refusal to pay maintenance and cure. We're deciding a question under the Jones Act, a question under the FELA, and there are a lot of people who would be interested -- and the seamen are a sizable group that the law cares about particularly -- but there would be a larger interest, a larger interest in the answer in the Jones Act context and FELA. And to decide those questions in a case that doesn't present any claim under FELA or any claim under the Jones Act is troublesome.
David W. McCreadie: --I certainly agree with you, Justice Ginsburg, that the answer to this case answers the question of what damages are available under the Jones Act and -- and FELA. But, again, if you look at Miles, which analyzing both FELA cases, Vreeland, for example, and Kraft, which is a railroad case, it -- it has already specifically stated what compensatory -- that compensatory damages alone are available under the death side, admittedly, and that the compensation for a seaman and, therefore, for a FELA employee is limited to compensation for pecuniary loss and for pre-death pain and suffering. Also, if we look at another string of Supreme Court precedent, it's not as clear as Miles, but if we look at the -- the other string, it -- it -- this Court has stated over and over that compensatory damages are -- are what is available under the Jones Act; compensatory damages are available under the FELA; and compensatory damages are available under DOHSA. For example, Zicherman is a post-Miles case, and it's written and states the principles very clearly: The Jones Act provides -- permits, I should say, compensation only for pecuniary losses. And then it discusses Vreeland, which is a FELA case, and it says that the FELA permits compensation only for pecuniary losses. And so, again, if we -- if we look at the history on the death side, which Miles summarizes, but if we look on the personal injury side, at the Osceola, the Iroquois, Peterson mentions compensatory damages nine times in expressing what remedies are available to seamen. And so those railroad cases, those Jones Act cases, have been decided and have been a part of our precedent for 60, 70, 80 years. And, of course, it is important to note that the Congress has amended the Jones Act in 1982, with no tampering with this history. It has amended the Jones Act in 2006 with no tampering with the history, and it has amended the Jones Act in 2008 without any change. And that's in light of Guevara, decided in 1995; that's in light of Roy Al, decided in 1995, and 10 years plus for the cases to percolate and for Congress to decide whether they agree with those policy determinations.
Anthony M. Kennedy: As -- as I read your reply brief -- and please correct me if it's a misimpression -- you didn't dispute the fact that punitive damages were available historically for the shipowner's wrongful refusal to provide maintenance and cure, or am I wrong about that?
David W. McCreadie: I -- that must have been the Respondent's brief, because our position is -- is -- hopefully was clearer than that, that punitive damages have never been awarded in the history of the United States for the willful failure to pay maintenance and cure until after -- until after Vaughan v. Atkinson.
Anthony M. Kennedy: And what about English admiralty, under the English precedents?
David W. McCreadie: The -- the English precedents we did not analyze. We took Miles when it analyzes Lord Campbell's Act, and then that was analyzed in Vreeland. And from that point forward, Miles took that, that line of cases--
Anthony M. Kennedy: Of course, in Miles -- again, we're coming back -- was wrongful death, not maintenance and cure.
David W. McCreadie: --Miles was a wrongful death case that analyzed an unseaworthiness cause of action, which is brought under general maritime law. We are looking at maintenance and cure, which is a claim brought under general maritime law. Both existed before the Jones Act, unseaworthiness and maintenance and cure, and again both are general maritime law claims.
John G. Roberts, Jr.: Of course, your friend on the other side distinguishes that argument by noting that death is different. As he puts it, we're all going to die, so--
David W. McCreadie: In that case--
John G. Roberts, Jr.: --you have different considerations under the maintenance and cure.
David W. McCreadie: --Mr. Chief Justice, that take us back again to Cortes, which this Court has already decided and analyzed. Should we distinguish between a death action, maintenance and cure action under the Jones Act, from a personal injury action? And the unequivocal answer from this Court is no, that -- that you should not treat them differently. There's no logic for treating them differently. We also need to remember that one of the anomalies that was -- that was -- that was cured by Moragne -- the first anomaly cured by Moragne was an anomaly where the unseaworthiness action would exist in State territorial waters but not in -- I'm sorry, it would exist in State territorial waters, but not on the high seas. And that troubled the Moragne Court, that you would have a discrepancy between personal injury and death, and that's one of the issues that they tried to -- tried to reconcile.
Ruth Bader Ginsburg: I thought there was -- it was on the high seas. They had DOHSA. At the time of Moragne, there was DOHSA, but then it was when you weren't on the high seas that was the gap. Wasn't that the case?
David W. McCreadie: That's correct. My point is there was a difference of what right you had under -- in territorial waters under unseaworthiness that Moragne described as one of the anomalies. And the anomaly was that if the person was injured, they could get an unseaworthiness claim; if they died, they could not. And Moragne was clear that distinguishing between death and personal injury, it made no sense.
Ruth Bader Ginsburg: But that's what the common law was. That's why we had Lord Campbell's Act. That was if you die, too bad; if you're injured, you correct -- collect. That was fixed by statute on the high seas, DOHSA. Because there was the gap, there was no Lord Campbell's Act, the Court effectively made one up, right? That's what it did in Moragne.
David W. McCreadie: Moragne did create some law, yes. Let me try to answer the question in a different way--
Anthony M. Kennedy: But I just -- and you can go ahead and answer that question without my interrupting. But my assumption from reading the amicus briefs in this case is that punitive damages were awarded in some maintenance and cure cases, (a) as simply part of the overall award -- they weren't separated out, but it was part of the measure -- and, (b) that some American courts, American judges, including noted admiralty judges, awarded in some cases punitive damages in maintenance and cure before the modern cases, Moragne and so forth that you're -- and Miles -- that you're talking about. Is that incorrect?
David W. McCreadie: --That is incorrect. If -- if you read the cases cited, and they have their roots in some law review articles that are critical of Miles, that -- that don't like the Miles decision, but if you read those cases--
Anthony M. Kennedy: I'm talking pre-Miles.
David W. McCreadie: --And I'm saying the cases that are cited in those law review articles -- the purpose of the articles is to criticize Miles. Those cases do not stand for the proposition that they're presented for in the law review article and they do not stand for the propositions that they have been presented to this Court. They are not holding -- they are not giving an award of punitive damages for maintenance and cure in any of those cases.
Stephen G. Breyer: Is -- how many -- how many would you say there are in a typical year, maintenance and cure cases? About, roughly? I mean, say in the late twentieth century, 18 -- 1980, 1990. Have you have any guess at all?
David W. McCreadie: Justice Breyer, because maintenance and cure is so often linked to the Jones Act and the unseaworthy cause of action, and because of the leverage that seems to be brought with punitive damages, they are virtually included in every seaman's case--
Stephen G. Breyer: All right.
David W. McCreadie: --from the get-go.
Stephen G. Breyer: So how many would you guess?
David W. McCreadie: And -- and I would have to estimate, just extrapolating from my own experience, thousands of Jones Act cases are filed in the country every year.
Stephen G. Breyer: Uh-huh. And they usually have maintenance and cure aspects.
David W. McCreadie: Necessarily they do.
Stephen G. Breyer: Can you get punitives under the Jones Act or not?
David W. McCreadie: You cannot recover punitive damages under the--
Stephen G. Breyer: What about unseaworthiness?
David W. McCreadie: --You cannot recover punitive damages under unseaworthiness because that's the same rule that Miles already decided. Miles decided in unseaworthiness--
Stephen G. Breyer: Okay, so if I have about 30 cases -- no, I had, actually, to be honest, I thought we found about 12 in the period around 1980-2000, where they do give some punitive damages.
David W. McCreadie: --And -- and -- and I hope I was clear that the can of worms was opened by Vaughan. No one awarded it. No one thought about it, until after Vaughan.
Stephen G. Breyer: All right. Then I found about 10 cases in the period before the Jones Act where there was something given -- punitive damages being given for something, and there was something sort of like maintenance and cure in there.
David W. McCreadie: There -- there are some pre-Jones Act cases, like the Amiable Nancy, that -- that talk about punitive damages; and there are some cases where some seamen have not been treated very well. But a specific look at the cases reveals that there is no pre-Jones Act case awarding punitive damages--
Stephen G. Breyer: Over here, there is one called -- Unica v. U.S. The master should have put the libelant into the hospital, give him $1,500. It was partly punitive. Considering -- called The Troop -- I mean, I found some that are sort of -- sort of -- I don't know what to say. I mean, I don't know what to make of it.
David W. McCreadie: --The Troop is on the list. It is a case that we have looked at, and it is -- and again, it is a case that I can say that if you look at all of them -- it is a very tedious process; there are a lot of cases, and wading through each one, none of them hold or award punitive damages for the failure to pay maintenance and cure. And--
Stephen G. Breyer: The Troop gave them $4,000. Considering all the circumstances of the aggravation. Gross neglect, mistreatment. "It is useless to parade more of the sickening details. "
David W. McCreadie: --And our position is that even if there is -- and there is not; let me be clear -- but even if there was one rogue case, one individual case, that does not create general maritime law. Something more is needed. For example, a decision from this Court would create general maritime law. The -- the -- the Wilburn Boat case is an insurance case. There's an example where there are some cases on the subject of marine insurance, but there's not enough for the court to conclude that there is a general maritime law on that subject. And so returning again to this -- this pocket of cases, they do not stand for the proposition -- even if they did, if you'll notice, two of them, it's the same district court judge who is making the noise that he would have done this or he might have done this. And -- and -- and our position is that one district court judge does not create general maritime law by mentioning the possibility of punitive damages in one case. We're much more comfortable relying on this Court's precedents, the line of cases that builds from Moragne to Higgingbotham and culminates in Miles, we're much more comfortable looking at the history of the damages awarded by this Court to seamen, where it uses the term compensatory damages, compensation for, over and over and over without any mention whatsoever of punitive damages. The punitive damages problem did not crop up until Vaughan, even though now everyone seems to agree Vaughan did not hold that punitive damages were available. I would also just like to mention all the circuit court cases addressing this issue hold that Jones Act precludes punitive damages, and any circuit court that has addressed this issue since Miles, likewise specifically holds punitive damages are not available for the willful failure to pay maintenance and cure. I'd like to reserve my remaining time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Sullivan.
Gj Rod Sullivan Jr.: Mr. Chief Justice, may it please the Court: I would like to start by answering the question that was raised by Justice Ginsburg. This Court does not need to reach the question of whether or not punitive damages are available under the Jones Act or under the FELA in order to decide this issue, because maintenance and cure is different. It precedes the Jones Act by centuries, perhaps even a thousand years, and it deals with a distinctly different problem. Maintenance and cure deals with a situation as what do we do with an injured seaman to get him back to health and get him into the workforce? And the law has provided since Catherine of Aragon went to Greece in the 1200s that the shipowner has a responsibility, in its capacity as a shipowner, to provide that seaman with medical care and to provide that seaman with a living allowance so that he can get better and get back into the work force. Now, in 1920, Senator Jones intended to make the United States Merchant Marine the world's greatest merchant marine. He was dealing in a factual scenario where 12 years earlier, on April 12th of 1912, the Titanic had sunk; 1,900 people had died. Virtually every member of the Senate and Congress knew somebody who was on the Titanic, and during the intervening eight years, certain points of law became obvious. First of all, the people who died on the Titanic could not recover for anything except their lost baggage. They could not recover for the fact that their loved ones had passed away, because there was no cause of action. Secondly, because the Titanic hit an iceberg and was not unseaworthy, there was no cause of action for negligence. So Senator Jones set around to correct these two anomalies in the law, and said what we are going to do is we're going to create a new class of beneficiaries, who are dependents of people who die at sea, and we are going to give them the right to recover pecuniary damages. That's the only place where pecuniary damages are mentioned in the law. And then it said, and as to seamen, we're going to give them an additional right, a cumulative right on top of unseaworthiness, and that's going to be negligence. It never sought out to touch maintenance and cure. Maintenance and cure has been something that's been monitored by the courts ever since its inception, and it is a self-regulating system. Before Guevara, shipowners regularly provided their employees with medical care without asking the question. If there was a close call, they provided the medical care without running to the court. They provided maintenance. Then came Guevara, and Guevara decided for the first time there were no punitive damages, and now you have a growing problem in this country. You have a problem with shipowners providing less and less medical care without resort to the courts. Now, our position here is that a seaman should be not ever have to come before a court to seek maintenance and cure, and the court should never, ever have to award punitive damages.
Anthony M. Kennedy: Well, surely there will be some incidents in which the employer in good faith thinks that there's no illness, that there's no basis for maintenance and cure.
Gj Rod Sullivan Jr.: And absolute--
Anthony M. Kennedy: For you to tell me, oh, this will just never happen, I mean, that's -- that's not the way the world works.
Gj Rod Sullivan Jr.: --No. And, Judge, when a -- when an employer comes to the court in good faith and says there's no entitlement to maintenance and cure, and there -- the court finds that -- or the finder of facts finds there's good faith, there's no basis for punitive damages. Then you merely have a dispute. But the situation--
Anthony M. Kennedy: Well, of course, there are going to be disputes, and the question is whether or not, just from the standpoint of fulfilling professional responsibility, in almost any maintenance and cure action where the counsel for the plaintiff thinks that -- for the seaman thinks that the employer has been remiss, he doesn't add the punitive damages complaint, if we -- if we agree with your position, which changes completely the settlement and the bargaining aspect. But you can address -- you can address that.
Gj Rod Sullivan Jr.: --Well -- and I agree, Your Honor, that is a prospect and a possibility, something which I personally abhor doing. I mean, you should only plead punitive damages when you have a good faith basis for doing it; you believe you will survive a directed verdict. It should not be thrown in to every single complaint, and I'm not denying that some counsel will do that. But what I'm saying is that today, in 2009, in 2006, there are actually shipowners who are, as a regular practice, denying their seamen medical care. I don't know why that is. Perhaps it's because it is expensive now, more expensive than it has ever been. Perhaps it is because there are safety nets that will allow the seamen to seek Medicaid, and so the taxpayer will pay for it. Whatever the motivations are, it is a growing trend that we are seeing.
Ruth Bader Ginsburg: How many of these seamen who seek maintenance and cure are represented? I mean, what is the incidence of representation for maintenance and cure claims as distinguished from Jones Act negligence type claims with the -- the possibility of large recoveries for pain and suffering?
Gj Rod Sullivan Jr.: Judge, I'd be picking a number out of the air, but I can give you anecdotal evidence of this. In the Fifth Circuit attorneys who regularly do maritime personal injury work tell each other -- we talk about the fact that you can't afford to represent somebody who's got a maintenance and cure case that's not combined with a Jones Act case. And there are a number of practical reasons for that. You have to pay all the experts, and it is very expensive to bring these cases. You have to hire the orthopedic surgeons, the -- the radiologists. You have to pay for the tests. And then, as an attorney, these are never recoverable as costs. And then you are working on a contingent hourly fee. If you win your case and you prove that they were willful, wanton and callous in -- in denying maintenance and cure, then you might get a portion of your attorneys' fees back. Now, you may do that as a pro bono matter on occasion. But you cannot rely upon the fact that attorneys will take these cases.
Antonin Scalia: Well, why -- why does joining it to a Jones Act case help?
Gj Rod Sullivan Jr.: Well, because when you join it to a Jones Act case, you have the substantial possibility of getting either a settlement or a verdict at the end of the case which is going to compensate the attorneys for taking on the maintenance and cure case as a portion of it. And so, consequently, if somebody has a serious accident, it falls under the Jones Act and there is a maintenance and cure count, the attorney will handle all of those together and feel adequately compensated.
Ruth Bader Ginsburg: Well, the -- the point you are making is that the recovery under the Jones Act can be very large, and the attorney on a contingent basis would get a piece of that.
Gj Rod Sullivan Jr.: Exactly, Your Honor.
Ruth Bader Ginsburg: Because it would be swelled by the pain and suffering damages which are not available in maintenance and cure.
Gj Rod Sullivan Jr.: That's correct, Your Honor.
John G. Roberts, Jr.: What is the pre-Vaughan case that awarded punitive damages -- awarded punitive damages in a maintenance and cure case?
Gj Rod Sullivan Jr.: Judge, first of all, I would cite to you two cases: The Rolf case, which is a 1924 Ninth Circuit case--
John G. Roberts, Jr.: I am -- what -- which -- any case from this Court?
Gj Rod Sullivan Jr.: --No.
John G. Roberts, Jr.: Okay.
Gj Rod Sullivan Jr.: This issue did not come before this Court.
John G. Roberts, Jr.: Right.
Ruth Bader Ginsburg: It hasn't come before this Court under FELA or the Jones Act, either, the punitive damage question?
Gj Rod Sullivan Jr.: It hasn't -- it has not, Your Honor.
Stephen G. Breyer: Rolf -- Rolf is not a -- Rolf was maintenance and cure and personal injury and unseaworthiness. So we don't know which aspect of the case led to the punitives.
Gj Rod Sullivan Jr.: We don't, but we know that there was outrage on behalf of the court. And, unfortunately, in -- and I think, as Justice Souter pointed out--
Stephen G. Breyer: Is it the case that we can't find a single pre-Jones Act case where punitives were awarded and what was sought was maintenance and cure? I -- I found some, but they seem ambiguous to me.
Gj Rod Sullivan Jr.: --Well, Judge, I would say that--
Stephen G. Breyer: What is your best?
Gj Rod Sullivan Jr.: --Yes. I would say that the best are the Rolf and the Margharita, which were denials of medical care where the damages were enhanced because of outrageous conduct. But to say that, Judge, is there a case that says this is maintenance and cure, we are going to award punitive damages, that's not been done.
Stephen G. Breyer: So we have a history all the way back to Catherine of Aragon, and what we've been able to find in these pre-Jones Act cases is really two or three, or maybe -- I found ten actually, that I couldn't say--
Gj Rod Sullivan Jr.: Judge--
Stephen G. Breyer: --Leaning over in your direction, I could take maybe three or four. And they show a little ambiguity. But give them all ten, and that's still ten out of hundreds of years of history.
Gj Rod Sullivan Jr.: --Well, let me -- let me respond to that in a couple of ways. First of all, punitive damages were part of the common law until taken away by Congress. And -- and it could be asserted that maintenance and cure punitive damages were not necessary because the threat was enough to -- to require shipowners to go ahead and provide this. And I would point out to the Court that this had not been a problem prior to Guevara. Shipowners did self-regulate. They didn't -- seamen didn't run to the courts every time they wanted maintenance and cure; whereas, today they have to. The leading scholar in this whole area is Professor Robertson at the University of Texas who wrote the AHA brief. And his brief, on pages 7 through 11, catalogs the cases where he suggests punitive damages or exemplary damages were awarded for outrageous conduct involving failure to provide medical care. And I would suggest that those show that punitive damages were unexceptional before Vaughan. They were part of the common law. They -- they were before this Court in the Amiable Nancy, even though it didn't involve medical care. There is no reason to assume that if punitive damages are accepted in maritime law as part of the common law, that they weren't also accepted for the willful, wanton, egregious failure to provide a seaman with medical care.
Anthony M. Kennedy: If I thought that the lack of counsel in maintenance and cure cases was a pivotal point or a relevant point for our decision, other than the representations of counsel, where would I look to verify that?
Gj Rod Sullivan Jr.: The existence of prior maintenance and cure cases?
Anthony M. Kennedy: The -- the -- that there is a problem in seamen finding attorneys who will take maintenance and cure cases.
Gj Rod Sullivan Jr.: Yes, Judge, there is not empirical evidence out there. Nobody has done studies. I'm not aware of any. But do we really want to wait for the situation where we have hundreds and hundreds of seamen who are -- are, you know, living homeless or living in their cars or unable to obtain medical care before this Court decides that if somebody does this, it is something that can be punished? And -- and I think that's the situation we're at today. It is a growing problem. And it is a growing problem because Guevara is a relatively new case, and it has spread to the other circuits.
John G. Roberts, Jr.: Well, if -- if the -- if the existence of the punitive damages and maintenance cure were as well established, why wasn't that mentioned in terms in the Vaughan majority? It only comes up in the Vaughan dissent.
Gj Rod Sullivan Jr.: Well, it does come up in the Vaughan dissent because it was not requested by the low -- in the -- in the lower courts. And this Court would not consider a claim for punitive damages for the first time on appeal. I -- I think what Justice Stewart was saying is we have a question before -- before us where somebody is requesting attorneys' fees in -- in derogation of the American Rule. The majority is saying we are going to find an exception to the American Rule and give attorneys' fees. And Justice Stewart is saying, I don't want to do that. I think that the better--
Antonin Scalia: Do you think Stewart knew more about these -- these obscure, ancient cases than we do?
Gj Rod Sullivan Jr.: --I'm sorry? Was he more--
Antonin Scalia: Do you think he knew more about these obscure, ancient cases than we do?
Gj Rod Sullivan Jr.: --No, I -- I think--
Antonin Scalia: Had he had the benefit of briefs by Professor Robertson and -- I think not, right?
Gj Rod Sullivan Jr.: --No. No. I--
Antonin Scalia: It was just sort of off the top of his head that he thought there should be punitive damages.
Gj Rod Sullivan Jr.: --He was quoting from McCormick on damages and some basic treatises. And I think he was taking the position that punitive damages are in our quiver of weapons that we can use to deter--
Antonin Scalia: They -- they normally are, but the question is whether there -- whether this -- this is a different quiver.
Gj Rod Sullivan Jr.: --Well, I think that he was saying that this is one of the weapons we have. Instead of creating an exception to the American Rule, we ought to just give them punitive damages to account for this egregious conduct.
Ruth Bader Ginsburg: And that -- that was not argued by anybody. It wasn't raised in the lower court. It wasn't a punitive damages case.
Gj Rod Sullivan Jr.: No, it wasn't. It wasn't. The first time counsel for Mr. Vaughan raised the question of punitive damages was on remand. And then the district court said, hey, look, you didn't raise it before. Just because Justice Stewart suggested this is a -- as a -- as an alternative to attorneys' fees doesn't mean we're going to award punitive damages now.
Stephen G. Breyer: With attorneys' fees there is a compensatory aspect. The -- the basic obligation is to keep this seaman alive and well, and then you give him some wages if necessary, and, you know, you give him medical care. And -- and now he's going to be out that attorneys' fees as a result of his sickness. So I understand that. Punitives does not compensate him for anything. It is a policy matter for the State. He's a beneficiary of a windfall. And it seems a more radical step to make something up out of whole cloth here with punitives than it does with attorneys' fees.
Gj Rod Sullivan Jr.: Judge, I would like you to look at how Congress treats this problem. If you had, for example, a bridge-building project where a seaman, a longshoreman and a State worker all got injured identically in the same accident side by side, and the shipowner failed to provide medical care for the longshoreman, the shipowner could go to jail. If the shipowner provided -- or failed to provide medical care to the State worker, he could be, again, subject to criminal penalties. On top of the criminal penalties, Congress has established these administrative agencies to assure that those workers get medical care. On top of that, if they don't get medical care, they lose their defense of workers' compensation immunity. They lose the defense of assumption of risk, contributory negligence, and they are subject to personal liability, not just corporate liability.
Stephen G. Breyer: Maybe it would be a good thing.
Gj Rod Sullivan Jr.: Yes.
Stephen G. Breyer: But the -- the problem here is it has pros and cons. I was quite moved by the brief -- the citation that Professor Robertson made of all of those old cases until we looked them up. And -- and then I found they seem to stand for a little bit less than I had the impression they stood for.
Gj Rod Sullivan Jr.: That--
Stephen G. Breyer: And so we'd be making this up out of whole cloth, it seems to me.
Gj Rod Sullivan Jr.: --I don't think so, Your Honor. What I think he would be saying is this is part of our power as a common law court. And just because we haven't--
Antonin Scalia: We've abandoned that.
Stephen G. Breyer: --because Miles says don't do that.
Antonin Scalia: Exactly. We've abandoned that in this area. We've said that what we do with these admiralty causes of action we should be guided by what Congress has done in the Death on the High Seas Act and in the Jones Act.
Gj Rod Sullivan Jr.: --Well--
Antonin Scalia: Do you acknowledge that there are no punitive damages available in the event of death?
Gj Rod Sullivan Jr.: --Yes.
Antonin Scalia: Well, that -- that -- now, you want to talk about what's a sensible system and what is not a sensible system. In the days when Massachusetts used to have a -- when I was in law school, they had a compensation limit for wrongful death, but to limit for -- for pain and suffering, for negligence; and -- and, you know, the line was back her up again -- back her up again, Sam, she's not quite dead yet. [Laughter] I mean, is--
Gj Rod Sullivan Jr.: Judge, I--
Antonin Scalia: --Is -- is -- is this going to be the same thing, where -- where the shipowner says, well, you know, if -- if -- if I treat him badly enough that he dies, I don't get hit with the punitive damages?
Gj Rod Sullivan Jr.: --I would -- I would hope that would not be the case, Your Honor.
Antonin Scalia: Yeah, but it is invited, isn't it?
Gj Rod Sullivan Jr.: Well, I don't think it is invited, Judge. There are reasons why that there is this anomaly that there are no punitive damages for death. And that's because in 1920 when Congress created the Death on the High Seas Act there were no -- any kind of damages. There was no recovery at all. And so, Congress preempted this field of death. And it said that death cases shall be decided under the Death on the High Seas Act. But Congress has completely stayed away from the area of maintenance and cure. It hasn't enacted administrative remedies because the Court has always been the one who has decided what's appropriate. And this Court, as a matter of its -- as maintaining its court docket and maintaining these remedies, has the right and I think the obligation to say we're going to keep these cases out of court by awarding punitive damages when somebody willfully denies this right, when somebody willfully withholds medical care. And I think if you do that, you're going to see these cases are going to disappear. Seamen are going to start getting their medical care again. They are not going to be coming to the court every time they get injured and saying, I haven't gotten my back surgery. I haven't gotten my rotator cuff surgery. And it is sort of a matter of court administration to -- to--
John G. Roberts, Jr.: Well, I'm not sure as sure -- I'm not sure I follow that. Where -- in other areas where we allow punitive damages it hasn't resulted in the cases going away. Quite the opposite. It seems it has given rise to a variety of claims on both sides.
Gj Rod Sullivan Jr.: --This is a very narrow area of law, Your Honor. We are talking about are you giving the seaman the medical care he needs to get the maximum medical improvement? And that's all it is.
John G. Roberts, Jr.: Yeah, but the normal medical malpractice area has given rise to a lot of punitive damage litigation. I don't know why this would be any different.
Gj Rod Sullivan Jr.: I think this would be different because all we're talking about is does the seaman get the surgery he needs. If he doesn't get the surgery he needs and he gets worse or he continues to stay ill or he continues to stay in pain, then the shipowner should be punished. But--
Antonin Scalia: Well, it certainly -- it certainly makes these maintenance and care cases a lot more attractive to the plaintiffs' bar, doesn't it? I mean, one of your complaints is there's just no money in it. The claim is not for that much.
Gj Rod Sullivan Jr.: --The goal here, Judge, is not money. The goal here, I think--
Antonin Scalia: Of course it shouldn't be the goal. But we're -- we're inquiring into the question of whether granting punitive damages will increase or decrease the number of lawsuits. I -- I -- I would think it would be astounding if it would decrease the number of lawsuits.
Gj Rod Sullivan Jr.: --I think it would decrease the incidence when -- when medical care is denied.
Ruth Bader Ginsburg: There -- there wouldn't be any maintenance and cure claim if the system worked as it was intended; that is, that if you have a sailor who is injured, the shipowner pays room and board and medical expenses.
Gj Rod Sullivan Jr.: That's all it is, Your Honor. Just say if the -- if the shipowner will treat the seaman fairly, will follow the doctor's recommendations, get him to a doctor, give him treatment so he gets better, there's -- I mean, you are saying there may be more claims for punitive damages, but there will be more awards of punitive damages because there won't be this willful and wanton, callous disregard of the seaman's rights. And so, I would suggest that, in fact, in this narrow area of the law, if you impose punitive damages, actual punitive conduct, conduct that deserves punishment will go down and it will go down rapidly.
Antonin Scalia: I -- I wish it were as clearcut as that. I mean, what -- what if the seaman says, you know, I should have had this very expensive treatment? And the shipowner's medical counsel said, no, this treatment is -- is not necessary. Is that -- is that a punitive damages claim? I bet it is.
Gj Rod Sullivan Jr.: I don't think so, Judge. I think those kind of cases should be weeded out on summary judgment by the courts -- by the district court, because we're only talking about the willful, wanton and callous withholding--
Antonin Scalia: He's going to say that was willful and wanton. I obviously needed this -- this more expensive treatment. He just didn't want to pay the money.
Gj Rod Sullivan Jr.: --And the court is going to have to -- the district courts are going to have to make a judgment as to the bona fides of that case. But I think that you are going to find that it is very rare when somebody is going to act callously when the potential on the other side is that they are going to be awarded -- have punitive damages awarded against them. And that, therefore, this is going to be a corrective mechanism that's going to do away with the problem we currently have now and make the plaintiffs even better.
John G. Roberts, Jr.: Well, I mean, it -- whether it gives rise to more litigation or not, it is still a significant and it will give rise to greater costs on the part of the -- the shipper which will be passed on, as is the case in a lot of areas where you have punitive damages, it will be passed on to the consumer. awarded.
Gj Rod Sullivan Jr.: If the punitive damages are But the hope, of course, is that--
John G. Roberts, Jr.: No, no, even if they're not. In other words, you were saying, look, to avoid punitive damages, the shipowner is going to make sure that there -- that that more expensive test is provided.
Gj Rod Sullivan Jr.: --It's going to err on behalf of the seaman.
John G. Roberts, Jr.: Yeah.
Gj Rod Sullivan Jr.: Yes.
John G. Roberts, Jr.: But that doesn't make -- that doesn't mean there are no costs involved in ruling in your favor.
Gj Rod Sullivan Jr.: That's true, Judge. But here again, we're balancing the interest of somebody who is injured and whose condition may become permanent and incurable by virtue of not getting prompt care as opposed to the limited costs to the shipowner of -- of providing a doctor who is going to determine what the best care is. And that's all we asking for, is the best care that medical care can currently provide to get the seaman to maximum cure. If there are no further questions--
John G. Roberts, Jr.: Thank you, counsel.
Gj Rod Sullivan Jr.: --Thank you, Your Honor.
John G. Roberts, Jr.: Mr. McCreadie, you have three minutes remaining.
David W. McCreadie: Justice Ginsburg, I wanted to respond first to a question that you asked that I think there may have been some confusion with respect to the answer. There is pain and suffering available in a maintenance and cure claim if the failure to pay the maintenance and cure causes injury, causes hurt. That's what we understand from reading the Osceola and the Iroquois as interpreted by Cortes. So, I didn't want you to be left with the impression that even if a maintenance and cure claim was brought by itself, if there's some injury, some damage beyond the failure to receive the maintenance and cure, there is a cause of action that could lead to, I think as you put it, the higher award and, hence, attorneys'--
Anthony M. Kennedy: Is that a separate cause of action? Or is it just part of the maintenance and cure act?
David W. McCreadie: --It's -- it's maintenance and cure and it can be brought either under the maintenance and cure with an injury or it can be brought under the Jones Act. You can choose your cause of action. You just don't recover twice.
Ruth Bader Ginsburg: Are you -- are you then disputing what your colleague said about lawyers being reluctant to take maintenance and cure claims that are not tied with a Jones Act claim?
David W. McCreadie: Justice Ginsburg, we're relying on Supreme Court precedent as opposed to anecdotal information. But to answer your question specifically, that's why I'm explaining that they do have the right to bring a personal injury component to a maintenance and cure claim. And the other point I wanted to make, in the Ninth and Fifth Circuits those are the circuits of Guevara and Roy Al, where punitive damages have been clearly eliminated from a maintenance and cure claim for willful failure to pay. Since 1995 there's no dearth of cases. Those remain two of the most active circuits in the country for seamen's cases. And whether they are filing as just maintenance and cure or combining with the Jones Act, the ratio would probably be the same as any other circuit. There was also a -- a question about the Vaughan and -- and what the dissent knew or didn't know; and -- and reference to McCormick on damages. I think, again, it is -- it is a small point but it is interesting to point out that McCormick on damages, the same volume that the dissent referred to, specifically states that punitive damages are not available under FELA -- under the FELA. And, of course, the Jones Act incorporates FELA by reference. Really the Vaughan dissent did not have the benefit of Miles when it reached its decision. If that court had had the benefit, we believe they would have found punitive damages are not available.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.