William H. Rehnquist: We'll hear argument next in No. 87-1201, Myles Osterneck v. Ernst & Whinney. Wait just a moment unitl the Court clears a little bit. Very well. You may proceed whenever you're ready, Ms. Daniel.
Laurie Webb Daniel: Thank you, Mr. Chief Justice, and may it please the Court: This case is before the Court on writ of certiorari to the Eleventh Circuit. The principal issue to be decided by this Court is whether the Osternecks' request for prejudgment interest, which was made immediately after a trial of the Osternecks' claims, is a motion falling under Rule 59(e) of the Federal Rules of Civil Procedure. This question is crucial to this case because if the Osternecks' request for prejudgment interest is considered a Rule 59(e) motion, then under Rule 4(a)(4) of the Federal Rules of Appellate Procedure, the motion would have the effect of suspending the finality of the judgment and of nullifying the Osternecks' notice of appeal which was filed within 30 days of the judgment. The Eleventh Circuit found that the Osternecks' request for prejudgment interest is a Rule 59(e) motion which prevented it from having jurisdiction to hear the Osternecks' appeal from the judgment entered in favor of Ernst & Whinney. The Osternecks are asking this Court to reverse and demand for three basic reasons. First, the Osternecks' request simply does not fit the definition of a Rule 59(e) motion as explained by the legislative history and the decisions of this Court. Second, the Osternecks' request cannot be distinguished from a request for attorney's fees, which this Court has found does not fall within the scope of Rule 59(e). Third, to hold in the Osternecks' favor would be consistent with traditional principles of finality and appellate procedure. There are few background facts which may be helpful to this Court in deciding this issue. The background facts are brief and, and undisputed. This case was litigated for almost 10 years before a jury trial was finally reached. The jury trial lasted three-and-a-half months. Every issue was completely litigated during that time. After three-and-a-half months of trial, the jury returned a verdict on all of the Osternecks' claims. The jury found that certain of the defendants were liable for damages. However, the jury found that Ernst & Whinney was not liable. Immediately after the jury determined the liability and damages on the Osternecks' claims, the Osternecks' asked the trial judge to add prejudgment interest to the amount awarded by the jury. The trial judge at that point determined that the prejudgment interest issue should be handled separately, and the trial judge instructed the Osternecks to submit briefs on this issue. At the same time, the trial judge instructed the clerk of the court to enter final judgment pursuant to the jury verdict determining liability and damages on all of the Osternecks' claims.
William H. Rehnquist: The jury had exonerated Ernst & Whinney. Is that right?
Laurie Webb Daniel: That's correct. Ernst & Whinney... as far as Ernst & Whinney was concerned, the case was over. They had won the case at trial. The Osternecks' request for prejudgment interest didn't affect anything that the jury decided with regard to any of the defendants as a matter of fact. The request, in fact, accepted the jury's determination of liability and damages. The request was based on the jury's determination of liability and damages. In fact, in the... in the written motion and in the briefs, the Osternecks told the trial court this is what the jury found and we want prejudgment interest based on that to be calculated.
William H. Rehnquist: But now the Eleventh Circuit said that under Georgia law, prejudgment interest is discretionary with the trial judge?
Laurie Webb Daniel: It's... under the... this was a federal securities law case. So, it's under the rule that... in a 10(b)(5) case where... that prejudgment interest is not a matter of right; it is a discretionary matter for the trial judge to decide.
Harry A. Blackmun: Bring me up to date. Is the... is Ernst & Whinney an outgrowth of the old Ernst & Ernst firm?
Laurie Webb Daniel: That's correct, Your Honor.
Harry A. Blackmun: One, one of the... one of the Big Eight?
Laurie Webb Daniel: That's correct, Your Honor. Originally when this case was filed in 1975, I believe that Ernst & Ernst was the named defendant. Subsequently it became Ernst & Whinney. All parties considered the judgment entered on the jury verdict to be a final judgment and an appealable judgment. All parties, in fact, did file notices of appeal from that judgment. When the prejudgment interest was added several months later, the trial court was careful in his order to make it clear that he was not changing any of the decisions embodied in the judgment that was entered on the jury verdict. He specified that other than the addition of the prejudgment interest, the judgment entered on the jury verdict was to remain the same in all respects.
Antonin Scalia: What difference does that make? Part of your argument is that it has to change the... the prior judgment in some way? What if he had added punitive damages? That wouldn't change anything in the prior judgment either, but you wouldn't assert that that somehow is not a new judgment, does not extend the judgment.
Laurie Webb Daniel: The punitive damage question... I don't think that the trial judge would be able to award punitive damages. That's something that the jury--
Antonin Scalia: No, I understand that. But assume he did. Assume he did. Assume he did erroneously. The question would be whether the judgment is appealable or when the judgment is appealable.
Laurie Webb Daniel: --If the trial judge added punitive damages--
Speaker: He added punitive damages.
Laurie Webb Daniel: --on his, on his... on request?
Speaker: Uh-hum.
Laurie Webb Daniel: If the, if the Osternecks had asked the trial judge after judgment to award punitive damages.
Antonin Scalia: And he had said you asked for it, you got it. Incorrectly, but nonetheless would that, that wouldn't change the--
Laurie Webb Daniel: Well, that would not affect the finality of the, the judgment that was entered on the jury verdict. If it was an incorrect award of punitive damages, then the defendants would be able to appeal.
Antonin Scalia: --It wouldn't affect the finality of it?
Laurie Webb Daniel: Not of the decisions embodied in the, the judgment entered on the jury verdict. Those... that decision and determination of liability and damages would remain intact.
Antonin Scalia: What about a federal statute that specifically authorizes the judge to impose punitive damages? The judge, as opposed to the jury. You get a jury verdict, and the judge says I'm going to take under advisement the punitive damages issue. And then a month later he awards punitive damages. When is that matter appealable?
Laurie Webb Daniel: Well, if... I believe that if that were, in fact, possible that... that under traditional principles of finality and appealability would not affect the finality of the judgment. What--
Antonin Scalia: So, we'd have two appeals up here: one from the jury verdict, and one from the punitive damages?
Laurie Webb Daniel: --Well, it's possible. As a practical matter, however, in this sort of situation where you've had a trial and, and you have a jury verdict and a case has been litigated to this extent, the substantive issues and the merits issues really have, have been exhausted. This Court in a fairly recent decision in Stringfellow v. Concerned Neighbors... I believe that was decided in 1977... elaborated on the purpose of--
Speaker: Nineteen eighty-seven.
Laurie Webb Daniel: --Nineteen eighty-seven I believe it was. Yes. Elaborated on the purposes of the finality rule of Section 1291. And the Court said in that case: "As we have noted in the past, the finality rule of Section 1291 protects a variety of interests that contribute to the efficiency of the legal system. " "Pretrial appeals may cause disruption, delay and expense for the litigants. " "They also burden appellate courts by requiring immediate consideration of issues that may become moot or irrelevant by the end of trial. " "In addition, the finality doctrine protects the strong interests in allowing trial judges to supervise pretrial and trial procedures without undue interference. " I think that the... this summary shows the primary concern with piecemeal appeals is directed at appeals that, that would disrupt the trial process or the pretrial process. But as a practical matter, where you've had a trial on all claims and you have a determination of liability and damages on all claims as to all parties, that the risk of piecemeal appeals, as a practical matter, is not great.
William H. Rehnquist: Isn't it going to be quite difficult for, say, the, the Court of Appeals to decide in a separate appeal from an award of prejudgment interest... to decide that question without getting back to the merits of, of the litigation which was concluded in the judgment of the jury?
Laurie Webb Daniel: No, Your Honor. Basically the question of prejudgment interest is... prejudgment interest is meant to compensate the plaintiff for the loss of use of his money between the time of the wrongdoing until the time of the judgment.
Sandra Day O'Connor: Well, it's... it remedies the injury giving rise to the cause of action, doesn't it?
Laurie Webb Daniel: Well, Your Honor, that... that is what the Eleventh Circuit found. However, I believe that the Ninth Circuit aptly pointed out it's not really the underlying wrongdoing, it's the delay in really the litigation process itself. And in fact, in this case that is what the trial judge did look to in assessing whether prejudgment interest should be allowed.
Sandra Day O'Connor: Well, I think the general rule is that prejudgment interest does arise from the operative facts that created the right to recover the principal. In other words, if you didn't have that right, you wouldn't have prejudgment interest; and they're linked, as compensation. Isn't that right?
Laurie Webb Daniel: Well, of course, if there had never been any wrongdoing, you wouldn't have any request for prejudgment interest. But in the Blau v. Lehman case, which is the case where this Court made it clear that interest is not entitled as a matter of right in a securities fraud claim, this Court described interest as follows. It says: "This Court has said in a kindred situation that interest is not recovered according to a rigid theory of compensation from money withheld, but is given in response to considerations of fairness. " It's not strictly for... it's not really compensation of the underlying injury. Like attorney's fees, it does compensate. Attorney's fees compensate also. They're necessary to make the prevailing party whole.
William H. Rehnquist: But what does... what does the trial judge take into consideration then in deciding whether or not to award prejudgment interest in a Securities Act case like this?
Laurie Webb Daniel: Well, as the trial judge in this court took into consideration, whether there was some responsibility for the delay on... you know, doing... due as a result of the Plaintiff's actions or other circumstances, such as in this case where we had I think five or six district court judges and the turnover in, in judicial personnel during the course of litigation contributed to the delay of this litigation. These are factors that are collateral matters. They're not related to the wrongdoing itself, but they are factors that the judge could consider in his, his... under his equitable powers. In fact, the prejudgment interest question, like attorney's fees, is, is uniquely separable from the underlying cause of action. Here the jury did not have the power to determine prejudgment interest. It could not even be decided at the... determined at the same time as the jury decided the merits of the underlying cause of action. Of necessity, it has to be decided in a separate proceeding by the trial judge. A separate decision had to be made as far as that. The merits decision... the... what the case was all about had already been determined by the jury, and all issues had been, been determined on the merits. There was liability and damages determined as to all parties. The case was, was essentially over, and of necessity, we had to have a decision on the merits before we could even ask for prejudgment interest. Prejudgment interest is like attorney's--
John Paul Stevens: Ms. Daniel, in your brief in the trial court, I think you argued that one of the factors that should be taken into account in deciding whether to grant prejudgment interest was the degree of personal wrongdoing on the part of the defendants. Isn't that related to the merits?
Laurie Webb Daniel: --Your Honor, that is related to the merits. However, the trial judge does not actually reconsider... make a separate determination of that.
John Paul Stevens: No, but you can't tell by looking at the jury verdict what that degree was. You have to know something about the facts of the case, don't you?
Laurie Webb Daniel: That's right. And in that respect it really is no different from a trial judge determining whether to award attorney's fees in a civil rights case. I believe under the Johnson test, the trial judge has to look to, or can look to, such things as the underlying wrongdoing, the nature of the wrongdoing, how egregious it was, how unpopular the case might have been, how difficult it might have been to obtain counsel in that type of case, whether the party actually prevailed on the civil rights cause of action as opposed to a different cause of action that might be alleged in the... in the complaint. All of these things would involve a consideration of the merits of that action.
Antonin Scalia: But, Ms. Daniel, I think we said in Budinich or we conceded in Budinich that there is some elements of the attorney's fees point that seem maybe not, not part of... not part of the merits. Some do and some don't. And we said we were just going to cut the Gordian knot and treat all attorney's fees awards the same for purposes of consistency. So, the mere fact that there are some elements of attorney's fees that may... that may support your case doesn't prove anything. We acknowledged that in Budinich.
Laurie Webb Daniel: Well, I think in the Budinich case, certainly you did make that acknowledgement. But the reason why you, you made that decision, as far as all attorneys' fees goes, is to look at, at the reason why attorney's fees and costs should be treated as a separable issue. And this goes back I think... what we need to keep in mind when we're talking about whether the Osternecks' motion was a Rule 59(e) motion, that is the definition of what a Rule 59(e) motion is. In the White v. New Hampshire case, this Court explained Rule 59(e) was adopted to allow a trial court to correct an error in a decision embodied in the judgment, but it was not meant to apply to motions which did not challenge any of the decisions embodied in the judgment. It does not apply to a motion which merely seeks what is due because of the judgment. And the costs and attorney's fees fit that, that category of cases that don't fall within the scope of Rule 59(e) because they don't challenge any of the decisions embodied in the judgment. They merely seek what is due because of the judgment.
Harry A. Blackmun: Ms. Daniel, if you should not prevail here, are you completely out of court so far as Ernst & Whinney are concerned?
Laurie Webb Daniel: Well, Your Honor, if, if we don't... if we don't prevail at all, yes, that's correct.
Harry A. Blackmun: Well, somewhere... I think it was in the Eleventh Circuit's opinion... I saw a reference to a pending motion in the district court for an extension of time in which to file a new appeal. What has happened to that?
Laurie Webb Daniel: You Honor, after the Eleventh Circuit dismissed appeal, the trial judge at that point determined that the Osternecks would not have additional time to file another notice of appeal.
Harry A. Blackmun: Would you say that again?
Laurie Webb Daniel: The trial judge did rule on that, on the Osternecks' request for additional time to file another notice of appeal, and denied the Osternecks' request. So, the Osternecks would not have the opportunity in the trial court to file a new notice of appeal.
Byron R. White: But you could lose on your... on your major argument and perhaps still win based on unique circumstances?
Laurie Webb Daniel: That's right, Your Honor. There are unique circumstances in this case. The trial judge characterized the prejudgment interest request as a separate issue. He did direct the clerk to enter final judgment on the jury verdict at the same time. He ordered the clerk to do that as soon as possible. All parties considered the final judgment... or the judgment on the jury verdict to be final for purposes of appeal. There were parties who stipulated that the Osternecks' notice of appeal was timely filed, Ernst & Whinney--
John Paul Stevens: Ms. Daniel, supposing that we conclude that you're wrong on the major issue... I'm not saying we will... and then this same sequence of events happened in the future, notwithstanding our ruling to the contrary, would that make any difference? I mean, could special circumstances overrule a general holding that this is or is not a Rule 59(e) motion if we made it clear in this--
Laurie Webb Daniel: --There is a very, very narrow doctrine that was announced in the Thompson case that will allow a circuit court of appeals... in fact, commands them... to take jurisdiction over a case where a party has filed its notice of appeal in reliance of action... on actions of the district court and other parties and other unique circumstances. We believe that the facts surrounding this case does put this case within that very, very narrow exception. There's an additional fact that I didn't mention, and that is that a second notice of appeal was, in fact, filed in this case on the prejudgment interest award.
Thurgood Marshall: --But, counsel, if you go back to the Thompson case, in that case the judge had already ruled on the point.
Laurie Webb Daniel: That's correct, Your Honor. And--
Thurgood Marshall: Doesn't that... that doesn't help you at all, does it?
Laurie Webb Daniel: --Well, in the Thompson case, the judge had characterized the... a post-judgment motion as being timely which then affected the time when the parties determined when to file their notices of appeal. The--
Thurgood Marshall: The new trial motion had been made in ample time.
Laurie Webb Daniel: --That was the characterization made by the trial court. In fact, the motion was tardy.
Thurgood Marshall: And that limits the opinion, doesn't it?
Laurie Webb Daniel: Excuse me?
Thurgood Marshall: Doesn't that limit the opinion to a case like that?
Laurie Webb Daniel: Well, the court did note that the--
Thurgood Marshall: Do you have any court of appeals other than the Ninth Circuit on your side?
Laurie Webb Daniel: --Not directly on this issue. The other cases cited by Ernst & Whinney are distinguishable, and most of them involve situations where prejudgment interest was included in the judgment and the party in their post-judgment motion was seeking to delete or change the rate of interest which was included in the judgment. In that situation you would have exactly what Rule 59(e) was meant to apply to. You would have a motion seeking to change something that was embodied in the judgment. The Osternecks' motion does not fall in that type of category since it did not challenge the underlying judgment in any way.
Anthony M. Kennedy: Well, on your unique circumstances argument, you recited for us the factors in your favor. I suppose on the other side of the scale is the fact that the district judge said that he would have to amend the judgment if your motion was granted. That, I take it, weighs against you in this calculus.
Laurie Webb Daniel: That, that would be something to consider. However, the trial judge also characterized the, the earlier judgment as the final judgment even in awarding the prejudgment interest and there are these additional facts. None of the parties ever questioned it. The trial judge didn't ever question it. I think that there is an additional unique circumstance in this case and that is that the Osternecks did file a second notice of appeal from the prejudgment interest award. And it was captioned as against the defendants who were liable for damages. However, it summed up saying that the Osternecks were appealing from all prior judgments. The Eleventh Circuit found that it was not sufficient to preserve an appeal against Ernst & Whinney. However, Ernst & Whinney knew that the Osternecks were appealing against them. We had had discussions about designating the record continuously during all this time, and the second notice of appeal did, did say that it was appealing from all prior judgments. And that--
William H. Rehnquist: Did it denominate Ernst & Whinney by name?
Laurie Webb Daniel: --It did not denominate Ernst & Whinney by name. However, Ernst & Whinney did know there was another notice of appeal outstanding which it had also considered to be final, a final... a valid appeal from a final judgment. So, Ernst & Whinney knew it was being... facing an appeal. There was a second notice of appeal which referred to the... all prior judgments, and Ernst & Whinney wouldn't have been prejudiced if the second notice of appeal could be deemed to preserve a... an appeal against it. I, I think that the important thing in this case is to keep in mind the definition of a Rule 59(e) motion. The Congress intended a Rule 59(e) motion to cover only those motions seeking to correct an error in the judgment or to change a decision embodied in the judgment and not to apply to what... something that seeks some thing new.
William H. Rehnquist: Actually 59(e) is just very bare of any meaning in, in the way it's set out. It doesn't really say what it's for, does it?
Laurie Webb Daniel: The rule itself does not but this Court has looked to the legislative history in the White decision and explained that that is what it is, is meant to deal with. And as a... as a practical matter, the Budinich case reiterated a well-established principle that where you have a litigation that has effectively terminated on the merits, the reservation of an issue that will not moot or alter any decisions in that judgment will not suspend the finality. As a practical matter, that's what we had here. This case had gone on for over 10 years, we had had a jury trial. The jury had returned a verdict on the merits. The judgment embodied that. The Osternecks' request for prejudgment interest could not change any of those decisions.
Antonin Scalia: Ms. Daniel, I don't, I don't... I keep coming back to that. I really can't believe it's... I can't believe it's true. Suppose you have a bench trial, the trial is to the judge. And let's assume there are... there are 10 injuries that the plaintiff received, and the... and the judge issues a judgment dealing with 10 of them. he says nothing at all about the eleventh. He deals with 10 and he awards a certain amount of money damages for each of the 10. Then there's a motion. Your Honor, you forgot about the eleventh. Will you amend the judgment to include the eleventh injury and to give us monetary damages for that eleventh injury? Now, the previous judgment said nothing at all about that eleventh. It just... just left it out. Now, you would say that would not be covered by 59(e)?
Laurie Webb Daniel: That... that would not be covered by either the traditional principle I just mentioned or Rule 59(e) because in that event, the litigation would not have been over. One of the main claims would have been left unresolved. And we don't... in our situation there was nothing left for the finder of fact to do. The trier of fact could not determine the prejudgment interest.
William H. Rehnquist: Justice Scalla's motion that he just described on behalf of the plaintiffs in that case... would that be a Rule 59(e) motion?
Laurie Webb Daniel: That would not be a Rule 59(e) motion because the... there would be no final judgment. The litigation would not be over. There would be an underlying claim that, that would not have been resolved. In our case be had a, a verdict on all claims on... as to all to all parties. The litigation was over in that respect. It's, it's not... it's not something that, that the trier of fact could determine at the same time. It was something that, that had to be determined separately. I'd like to reserve any remaining time for rebuttal.
William H. Rehnquist: Thank you, Ms. Daniel. Mr. Garrett, we'll hear now from you.
Gordon Lee Garrett, Jr.: Mr. Chief Justice, and may it please the Court: Although couched in Rule 59(e) terms, the real question presented here is whether a judgment of determining plaintiff' compensatory damages can be appealed while there is a pending request for additional compensation on the very same claim in the form of prejudgment interest. Specifically, the issue is whether a post-judgment motion seeking to change the original judgment by adding discretionary prejudgment interest to plaintiffs' recovery is properly denominated as a motion to alter or amend the judgment pursuant to Rule 59(e). Petitioners' post-judgment motion filed within 10 days after the entry of judgment sought, based on the literal language of Rule 59(e), to alter or amend the judgment by increasing the compensatory damages awarded. In addition to Rule 59(e)'s literal language, we believe that important principles of finality require treatment of Petitioners' motion to increase their compensatory damage award within Rule 59(e) except in rare circumstances--
William H. Rehnquist: You, you describe it, Mr. Garrett, as a motion to increase compensatory damages. Yet, it's, it's styled a motion for prejudgment interest.
Gordon Lee Garrett, Jr.: --That's correct. And it seems to me that it makes no difference how one styles a motion. The effect of that motion was to increase by nearly a million dollars the damages awarded to the plaintiffs for the injury they claimed they received.
William H. Rehnquist: Well, but supposing a judgment awards me of a, a particular amount in damages but fails to specify interest from the date of judgment. Is that automatic, or do I have to move under Rule <fifty-nine e@l> [= 59(e)] to incorporate a provision for interest from the date of judgment?
Gordon Lee Garrett, Jr.: It depends on whether or not, it seems to me, Your Honor, that you're entitled prejudgment interest under either case law or statutory law.
William H. Rehnquist: Well now, I'm talking about interest, post-judgment interest.
Gordon Lee Garrett, Jr.: Oh, post-judgment? I'm sorry, Your Honor.
Speaker: Yes.
Gordon Lee Garrett, Jr.: Post-judgment interest can be handled simply as a clerical mistake. You're entitled to--
Speaker: Under Rule--
Gordon Lee Garrett, Jr.: --Under Rule 60. Post-judgment interest, of course, is automatic under most State and federal laws, and that could be handled as a ministerial or clerical mistake as I believe the decisions of the courts have so held.
Sandra Day O'Connor: --What if the State rule on prejudgment interest made it mandatory and automatic?
Gordon Lee Garrett, Jr.: It seems--
Sandra Day O'Connor: Then would its omission be treated as a clerical error under Rule 60(a)?
Gordon Lee Garrett, Jr.: --It seems to me, Your Honor, that most State statutes which do mandate prejudgment interest are very specific. They describe an interest rate and state that one is automatically entitled.
Speaker: All right, and if--
Gordon Lee Garrett, Jr.: They would not--
Sandra Day O'Connor: --And if that were omitted, would it fall within a clerical error under Rule 60(a)?
Gordon Lee Garrett, Jr.: --That is correct, Your Honor, because to me it is no different than the post-judgment interest, which is also mandatory. As I was saying--
John Paul Stevens: Mr. Garrett, can I ask you a question about the facts that puzzle me? Did the... I understand the defendants against whom the judgment and the prejudgment interest was awarded... they also appealed, did they not?
Gordon Lee Garrett, Jr.: --Messrs. Talley and Kellar appealed. Barwick Industries and Barwick appealed, although their appeals were later abandoned because of failure to comply with Eleventh Circuit rules.
John Paul Stevens: But as to the first two that did appeal, they appealed from the original judgment, not the one after the... the prejudgment interest.
Gordon Lee Garrett, Jr.: No, Your Honor. They appealed on July 29, my recollection is, from not only the original judgment on January 30th--
John Paul Stevens: And also the prejudgment interest award?
Gordon Lee Garrett, Jr.: --The prejudgment interest award and the amended judgment which came out on July, July the 9th, which was a result of the increase.
John Paul Stevens: So they, in effect, filed two notices of appeal.
Gordon Lee Garrett, Jr.: That is correct, Your Honor.
John Paul Stevens: And if the... if the plaintiff had filed a second notice of appeal at the same time, we wouldn't have all this fussing.
Gordon Lee Garrett, Jr.: We wouldn't have all this fussing and we wouldn't be here.
John Paul Stevens: Okay.
Gordon Lee Garrett, Jr.: Rule 59(e) and Rule 4(a)(4) of the Federal Rules of Appellate Procedure help implement the requirement of finality by precluding premature appeals by any party until the district court has had an opportunity to resolve post-judgment issues. Once resolved in the district court, the issues raised in the post-judgment motion seeking to alter or amend the judgment can be reviewed, along with all other issues before the district court in a single appeal to the circuit court. The longstanding policy precluding piecemeal appeals is particularly appropriate in cases such as the one here involving multiple parties and issues. Here the Eleventh Circuit correctly determined that a post-judgment motion filed within the 10 days prescribed by Rule 59(e) seeking to and prejudgment interest is a Rule 59(e) motion. Accordingly, the Eleventh Circuit correctly held that under Rule 4 of the Rules of Appellate Procedure, Petitioners' notices of appeal filed before the resolution of their post-judgment motion had no effect and properly dismissed the appeal against Ernst & Whinney for lack of jurisdiction. We believe that this case presents a clear opportunity for the Court to ensure that Rule 59(e) and Appellate Rule 4(a)(4) are applied consistently to achieve prompt resolution and unified appeal of issues which should be decided together. The Court has established that attorney's fees and costs, divorced from the merits by tradition in Rule 58, are outside Rule 59(e). Here the Court can confirm that post-judgment motions for relief traditionally encompassed within the merits relating to a plaintiff's compensatory damage award remain within Rule 59(e). Section 1291 of the Judicial Code--
Thurgood Marshall: --Counsel, do you have any case that says that a punitive damage is compensatory?
Gordon Lee Garrett, Jr.: No, Your Honor. I do not believe it's compensatory.
Thurgood Marshall: Well, why do you have to keep using that? You want us to use that word?
Gordon Lee Garrett, Jr.: No, I don't think it's necessary, but in this particular case--
Speaker: Well, in this--
Gordon Lee Garrett, Jr.: --It is compensatory in nature. Prejudgment interest is compensatory in this particular case. I think the decision dealing with 59(e) can be certainly much broader. Section 1291 of the judicial Code confers appellate jurisdiction upon the courts of appeal only from final decisions. The Court has consistently recognized that the final judgment rule is the dominant rule in federal appellate practice. The purpose of the rule is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results. Rule 59(e) and 4(a)(4) help implement this policy by securing complete decisions for unified relief. 59(e) requires that motions to alter or amend a judgment be filed within 10 days. That's the same time limitation found in Rule 50(b), a motion for judgment notwithstanding the verdict; Rule 52(b), a motion to amend findings; and Rule 59(b), a motion for new trial. These rules, together with Rule 4(a)(4), ensure that requests to the trial court for further decisions affecting a judgment are made promptly after entry of judgment. And, of course, under Rule 4(a)(4), which was amended in 1979, where any party files any of those motions, the time for appeal by all parties runs from entry of the order resolving the motion. A new notice of appeal must be filed from the entry of the order. As this Court recognized in Griggs, that is mandatory and jurisdictional. By precluding appellate jurisdiction until the district court completely resolves all issues affecting the judgment, Rule 4(a)(4) and Civil Rule 59(e) implement the final judgment rule. Here until Petitioners' motion for prejudgment interest was decided, the litigation on the merits was not over and the judgment was not yet right for execution. The district court had not yet resolved all of the elements of their damage claim recoverable by Petitioners, nor did it finally establish the amount of that recovery. To allow an appeal of a judgment before a plaintiff's entitlement to discretionary prejudgment interest is resolved by the district court, we believe would contravene the requirements of Section 1291 to effect simultaneous appeals. Thus, the traditional treatment of post-judgment requests for discretionary prejudgment interest as within 59(e) and not independently appealable is consistent with the unitary appeal rule set forth in Section 1291. Treating Petitioners' request for prejudgment interest as an independent proceeding and permitting a separate appeal from the judgment establishing other elements of compensation on the very same claim ignores important considerations of finality. And most importantly, Petitioners advance no cogent reason why an award of discretionary prejudgment interest should be an exception to 1291 requirement of a unified appeal. Narrow exceptions to the requirement of a single appeal exist only pursuant to statutory authorization or where certain decisions of the district court are completely separate from the merits and necessity or long tradition mandate separate appellate review.
William H. Rehnquist: --Well, Mr. Garrett, before the decision in White against New Hampshire, certainly people would have said that attorney's fees were not an exception to the rule you're talking about I think.
Gordon Lee Garrett, Jr.: Well, it seems to me that if one had examined attorney's fees, they have traditionally been associated with costs. They are taxed as costs. And costs by statute are... excuse me... the judgment is not delayed for entry because of costs. Now, some courts split on that, but it's clear if you follow the traditional analysis of attorney's fees and costs, you would come to the conclusion that the White... Court did in White. As I said, narrow exceptions do exist to the final judgment rule. Most of the exceptions are statutory in nature relating to review of pre-verdict and prejudgment orders where, for example, under Rule 54(b) in an action involving multiple claims of parties, the district court makes an express determination, or under 28 U.S.C. 1292(b) where the district court specifically finds that the order involves a controlling question of law, the court of appeals in its discretion may take the appeal. We are aware of no statutory provision which authorizes a separate appeal of a district court's discretionary award of prejudgment interest. Prejudgment interest is not a collateral order, and it does not fit within the narrow category of cases supporting appellate review.
John Paul Stevens: Mr. Garrett, can I ask you a, a question? I mentioned... supposing one looked at the judgment of this case and said it really is three separate judgments rather than three paragraphs of one judgment, and the third judgment is the one in favor of your client as against the Plaintiff, and there was no motion to alter or amend that judgment?
Gordon Lee Garrett, Jr.: Well, it seems to me, Your Honor, that Rule 54(b) directly addresses that issue. Where there are multiple claims or a party, no judgment is entered until all claims against all parties are resolved until... unless specific steps are followed by the district court. It seems to me 54(b) answers that question, Your Honor.
John Paul Stevens: Do you think the judge could have entered three separate judgments rather than one in three paragraphs?
Gordon Lee Garrett, Jr.: I've long since--
John Paul Stevens: In which event your case would collapse.
Gordon Lee Garrett, Jr.: --I've long since learned that judges can do most anything. [Laughter] But it seems to me that that would be improper under Rule 54, that you can't enter three separate judgments based on a single trial against multiple parties, that that would be improper under the rule.
John Paul Stevens: Well, there are times when a judge will enter a judgment as to one party. Say, at the end of the plaintiff's case, he might enter a judgment totally and a 54(b) order to go with it and dispose of that portion of the litigation.
Gordon Lee Garrett, Jr.: That's correct, but that's not appealable by the very terms of the rule.
John Paul Stevens: Well, it would be if he made the right order under <fifty-four b@l> [= 54(b)].
Gordon Lee Garrett, Jr.: That's correct. And, of course, the issue before this Court does not relate to 54(b). There was no--
John Paul Stevens: No.
Gordon Lee Garrett, Jr.: --express finding.
John Paul Stevens: But you're really fortunate that he put it all in one, one judgment, I guess, in your position.
Gordon Lee Garrett, Jr.: I, I think--
Speaker: You think he had to do it?
Gordon Lee Garrett, Jr.: --I think he had to do it. I think that's exactly what the rules require.
Antonin Scalia: Yes. Well, 54(b) really only speaks of, of when not, not how. It says may direct entry as to one or more, but fewer than all, only upon an express determination, that there is no just reason for delay and upon express direction for the entry of judgment. I mean, it seems to me what it's talking about is you can't do it sooner as to some than, than as to others. But I don't think it really speaks to whether you can enter a separate judgment for each of them simultaneously, which is what Justice Stevens is asking about.
Gordon Lee Garrett, Jr.: Well, I think that's true. But, of course, Rule 54(b) really relates to prejudgment and pre-verdict matters. There is really no reason at all to have separate judgments once you've had a trial and you have a pending motion to change the compensatory damages.
John Paul Stevens: Except for the, the judge might think, well, the case is over as to Ernst & Whinney, and I don't want to be fussing around with prejudgment interest. That was no reason to delay the appeal relating to them because they're not involved in the prejudgment interest fight.
Gordon Lee Garrett, Jr.: That's correct. And he may have done that if he had done it properly and, of course, he did not do that here. And that brings us directly, we believe, within Rule 59 and in the mandatory provisions of Rule A(a)(4). This case, as I said, does not comply with the very limited collateral order doctrine. The order is not... or excuse me... the issue as to prejudgment interest is not completely separate and independent from the merits, and there are no strong affirmative reasons... and Petitioners point to none... mandating a separate appellate review. Indeed, the most recent cases from this Court seem to have narrowed the collateral order doctrine even further. The order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be so that it is effectively unreviewable on appeal. Of course, that definition does not fit this case. As discussed earlier, the Federal Rules of Civil and Appellate Procedure mandate except in narrow circumstances that the district court consider post-trial motions that may affect the verdict or judgment before a unified appeal on the merits. Separate review of post-verdict and post-judgment motions are even more limited than pre-verdict and judgment review. By statute, Rule 58, of course entry of judgment shall not be delayed for the taxing of cost. Therefore, you can have a final judgment even though tax are not... excuse me... costs are not taxed. And this Court we believe effectively importing the narrow exceptions in Cohen into the construction of Rule 59(e) held that a prevailing party's request for attorney's fees raised legal issues basically collateral to the main cause of action, put forward a bright line test that their award was separable, and that the judgment not including attorney's fees was final. We do not believe that the Court's decisions in White or Budinich are support for prejudgment interest. As Justice Scalia mentioned, we believe that this is no different than punitive damages. For example, the Fair Credit Reporting Act specifically states that punitive damages shall be decided by the court. If that were the case and the jury returned a verdict for the defendant, it is clear that you could not appeal from the judgment entered on that verdict until the puritive damage issue was decided. We do not believe--
William H. Rehnquist: Unless you wish to waive the puritive--
Gordon Lee Garrett, Jr.: --Unless you wish to waive it. That is absolutely correct, because once you file your notice of appeal, and you have not properly moved the court, then the district court loses its jurisdiction and the case goes to the court of appeals. That's correct, Your Honor. Of course, as the Court said in Budinich, a claim for attorney's fees is not a part of the merits to which the fees pertain. It does not remedy the injury giving rise to the action. At common law, attorney's fees were regarded as an element of costs awarded to the prevailing party. The Court in White and Budinich also identified positive, affirmative reasons for separating attorney's fees. To hold otherwise would have encouraged piecemeal litigation. A counsel would have been filing fee requests after what appeared to be final orders in lengthy civil rights litigation. Litigations who... excuse me. The problem also occurred because counsel would not have an opportunity to negotiate private settlements of their fee. Now here, unlike the affirmative policy reading supporting appeals of collateral orders, there are no affirmative reasons why an award of prejudgment interest is independent of any other aspects of a plaintiff's damage case. Here an award of prejudgment interest is not separable from fine merits. It is awarded to the plaintiff based on the conduct of the defendant. Unlike attorney's fees and costs, it is not awarded to a prevailing party. A defendant is not entitled to prejudgment interest. The Court considers in determining whether prejudgment interest should be awarded the very conduct of the defendant. Evidence concerning the factors can be presented at the trial court during the trial with all of the aspects... all other aspects of the plaintiff's claim. Petitioners failed to advance any affirmative reasons why prejudgment interest should be--
William H. Rehnquist: --Mr.... Mr. Garrett, have you had experience in responding or making these motions for prejudgment interest in cases like this? What I'm curious about, does the trial court actually hold a hearing and hear witnesses, or... as you suggest? Or does he simply base his ruling on what he heard at the trial?
Gordon Lee Garrett, Jr.: --Well, it seems to me there are several ways to do it. Obviously, he hears the underlying evidence of the conduct of the defendants.
William H. Rehnquist: At trial.
Gordon Lee Garrett, Jr.: At trial. If the court is concerned that the jury should not hear interest rates and the lost use of money, then he can hold a separate hearing outside the presence of the jury during one day of the trial, and you can have all the evidence relating to the prejudgment interest issue before the trial judge so he can make a decision on that depending on what the jury does. Alternatively, if the issue is protracted, he may wait until the jury returns a verdict. If the jury returns a verdict for the defendants, all of them, the issue is not right for his review obviously. Otherwise, he could do what he did here and hold a very short post-judgment hearing dealing with the merits and then amend the judgment to reflect that. So, I think there are several ways to do it. We also believe that the test suggested by the Petitioners is one which this Court has rejected and we believe that they fail. Basically, as we understand it, Petitioners, state that any motion which will then not affect a previous judgment or ruling of the court is not a Rule 59(e) motion. Of course, that clashes with the Court's interpretation of 1291 and would render such things a partial summary judgment on liability appealable because then compensatory damages would not affect that particular issue. And, of course, it would permit summary judgment for one defendant in a multiparty action to be appealed. Of course, the drafters of Rule 54(b) preclude this result as well as decisions of this Court. Finally, we believe that the unique circumstances in Thompson do not merit reversal of this case. That decision we believe should be strictly limited to its facts where a judge affirmatively misled a party believing that a post-trial motion was timely filed, therefore, indicating to the party that it did not file a notice of appeal within 30 days but rather file it within the time period after the pretrial motion was disposed of. In that case, four judges dissented, we believe quite correctly, pointing cut that to... the more exceptions we have to the rules, the more mischief we'll have in our system. The rules are technical and they need to be to ensure accuracy in appeals. Thank you.
William H. Rehnquist: Thank you, Mr. Garrett. Ms. Daniel, you have two minutes remaining.
Laurie Webb Daniel: Thank you, Your Honor. First of all, I'd like to point out we are not seeking this Court to reverse under the doctrine... the collateral order doctrine espoused by the Cohen case. That deals with pretrial collateral issues. We're in this case dealing with a post-trial motion when all other issues had been decided. And as a practical matter, the concern for piecemeal appeals is not great where you have... you have resolved the main issues. We're not advocating separate appeals. In this situation where you've had a trial, all the other issues have been decided, a post-judgment motion like this could easily be consolidated with the prior appeal as it was done in this case. The Eleventh Circuit heard oral argument on the merits of the Osternecks' appeal against Ernst & Whinney along with the prejudgment interest questions. It was consolidated. Where you have had a trial, that is often the case.
Antonin Scalia: Well, that's... that's a solution for all piecemeal appeals. I mean, you could shrug your shoulder about any piecemeal appeal by saying, well, you can... you know, if it's any problem, you can consolidate it.
Laurie Webb Daniel: Your Honor, I would respectfully disagree that when you do have a trial and have had the litigation and a judgment entered on the merits of the case, that that is not a practical concern. As this Court found in the Budinich case with the attorney's fees issue where you, you resolved the case on the merits, the threat of piecemeal appeals is, is not as a practical matter great. I think that the Blau case and then the old case of Stewart v. Barnes that we cited in our brief show that prejudgment interest is a collateral issue. It's not... it does not form the substance or the basis of the cause of action, but is awarded only in respect... with respect to the detention of the principal amount and is... is to compensate for the delay. The trial judge in, in our case did only look to the delay in the litigation process itself. He did not conduct any kind of lengthy hearing on the merits of the case, in fact, did not focus on the merits of the case at all. With regard to the 54(b) issue, this case does not fall within the classic 54(b) situation because it was over. It was not a pretrial situation. Prejudgment interest is not a claim. It's what is due because of, of prevailing on a claim. However, if it was considered a 54(b) situation, the trial judge did specifically state on the record that--
William H. Rehnquist: Ms. Daniel, your time has expired.
Laurie Webb Daniel: --Thank you.
William H. Rehnquist: The case is submitted.


Warren E. Burger: We will hear arguments next in 76-750 Sears, Roebuck against San Diego County Council. Mr. Siegel, I think you may proceed when you are ready.
H. Warren Siegel: Thank you Mr. Chief Justice and may it please the Court. The facts of this case are relatively simple. They arise out of the Sears Chula Vista store which is located somewhat South of San Diego. The store is a free standing store, not a part of the shopping center, surrounded on three sides by a parking lot and public streets and side walks on the fourth side by block wall separating the commercial property from private residences. In October of 1973, representatives of the Carpenters Union appeared at the store and demanded of the store manager Mr. Ochoa (ph) that Sears remove its employees from doing work which the union considered to be within the carpenter's jurisdiction and either obtain carpenters from a licensed contractor who would obtain those carpenters from union hiring hall or in the alternative that the store manager should sign what was called a short form contract with the union. Mr Ochoa indicated that he would get back to the union, apparently for some reason he did not. The union then placed pickets on the private property of Sears, Roebuck & Co. signs indicating simply that they were sanctioned by the FFL-CIO and that they were from the Carpenters Union.
Speaker: Mr. Siegel, does the record show whether Sears was a member of the Building Trades Council?
H. Warren Siegel: The record does not show that Your Honor.
Speaker: Or has it signed the master agreement?
H. Warren Siegel: No. Sears is however -- is not but I do not believe that is in the record. If it had been so the union, I think would have had other alternatives such as arbitration provisions and so on, Sears would have had also. In any case, the pickets were requested to leave. They refused to do so. They did leave after a while for a very short time, apparently some phone calls were made and they then re-appeared on the property and indicated they would not leave unless compelled to do so by legal process. Sears did not challenge the objective of the picketing. It decides themselves we are not precise as to what the objective were but the conversations had before hand indicated several alternative objectives. Sears did protest the location of the picketing. Sears then apply to the San Diego County Superior Court for temporary restraining order which in California is a notice type hearing. The court issued a temporary restraining order subsequently held a hearing which was on written record in California affidavits and in November 1973 issued a preliminary injunction the sole effect of which was to confine the picketing to the public streets and side walks surrounding the store and not the private property. In doing so the Superior Court considered not only issues that arose under California State Law such as whether this was commercial property or industrial property. It considered also the necessity for maintaining the peace, the potential for violence in a trespass type situation. It applied a balancing standard, not unlike the Babcock & Wilcox standard of this court. After the temporary restraining order was issued, the unions did picket on the public sidewalks surrounding the store. At this point, we come to perhaps the only issue that was really in dispute in the record before Superior Court. Sears had affidavits which indicated that there had been effective picketing, people did decline to enter Sears property including some who were making commercial deliveries to the store. The union said that the picketing on the public sidewalks was not effective, pointed to no specific instance of its lack of effect. The Superior Court weighing that conflicting affidavits believe that Sears testimony which had pointed to several specific instances of effectiveness and did issue the preliminary injunction. At no time, during the entire process of this proceeding which began in October finally resulting in the preliminary injunction on November 21st, 1973 or any time thereafter, as the union filed a charge with the National Labor Relations Board.
Speaker: Is it fairly common in the California Superior Court, injunctive procedures for a temporary injunction to be issued on the basis of the written record with the consideration affidavits?
H. Warren Siegel: Yes. Your Honor. It would be unusual. The court has discretion to take oral testimony but it is highly unusual to do so. The issue therefore in this case has basically one of the procedure by which the rights of private parties have to be resolved in a peaceful picketing situation. While this arises in a picketing context, the same problems would of course, be existing and whether its hand building or organizational activity such as Central Hardware solicitation activities. The same basic problem arises in any kind of activity occurring on private property. It is the position of the petitioner that the state court should have concurrent jurisdiction with the National Labor Relations Board to resolve these kinds of issues. In many respects the type of resolution that occurred in this case on a motion for an injunction is not unlike the situation where these issues are presented to a state court, for example, if an arrest have been effected. If Sears had called the Sheriff and had the pickets arrested for trespass or for some other act, the state court would ultimately and I don't think there would be an issue that it would have jurisdiction to do so, resolve the criminal case and in so doing would have to consider not only the elements of state law that were involved in the particular crime but would also become involved in -- but undoubtedly be a defense and that is that the activity on the property was not some way privileged or protected by the National Labor Relations Act. Same thing would be true for example, if in the process of ejecting a union representative from the property, there was a lawsuit against the ejector for assault of battery. Again the state court would be called upon not only to resolve the state elements of those torts but undoubtedly have to resolve the factual issues that would be raised in defense that the activity of the person being ejected was not some way protected. Viewed in that context, the type of issues that the state court would resolve on an injunction motion are no different than those issues which very clearly and as to which there is no argument, the state court already has jurisdiction, even though the matter may have originated out of a labor dispute at some time. Under Garmon, if we view this in the context the backdrop of state law, these are the kinds of issues that state courts have been resolving, since before there were states in effect, going back to the very earliest common law actions involving trespass. The advantage of allowing the state court to resolve this type of dispute is of course that it channels the dispute into a neutral form avoiding the necessity of self help. The court would be very concerned that should self-help be exercised that that could very quickly lead to an active violence. There is no issue under the current state of the law that the ejector could use (Inaudible). That has been suggested by many of the commentators, and it has been mentioned in decisions of this court. If in fact one could use self-help to affect the removal of pickets from the premises and thereby channel the dispute at least as to the criminal aspects or the tort aspects of the case in to the state court, it seems illogical not to allow Sears in this particular circumstance, property owner to go into state court initially to have that dispute resolved without the necessity of exercising self-help. The significance or the benefit of state court in this particular circumstance, I think is very obvious under the act for two reasons. First, under the particular factual circumstances under which this case arose, there was no availability of any NLRB relief. Since Sears was not challenging the objective of the picketing, merely its location, there was no way that Sears initially obtain a forum before the board to resolve this dispute but even if there were some procedure for doing that, at best, the board might at sometime find that in fact the union activity on Sears premises was not protected. Sears, at that point would simply have to go into court to enforce the board orders since the board order is not self executing and would be right back where we were fighting it out in a court at some later time rather than at some earlier that at least would have the advantage of placing the issues at peace between the parties without exercising self-help. If this proceeding for example, had gotten back into the California State Courts or to a Federal District Court to enforce a board order, the board -- rather the court would not of course necessarily be bound by the NLRB decision. There might be other issues that would have to be raised either under state law or federal law. One would hope that the court would give due deference to the board decision but the fact of the matter is that a determination of the board on and on for a labor practice charge is not res judicata or collateral estoppel in a subsequent precision. So neither from terms of an access to a forum nor if they were a forum is a proceeding before the board and a remedy, an effective remedy where the circumstances involved location of the picketing rather than its objective.
Speaker: What if 30 days have gone by before Sears moved?
H. Warren Siegel: That would be fine if the sole object was organizational, of course, at that point the union could simply change the object of the picketing to informational picketing and therefore that would not be in a fairly good practice.
Speaker: Do you want to pursue to my question. Let us suppose that there were picketing for organizational purposes.
H. Warren Siegel: Solely?
Speaker: Yes.
H. Warren Siegel: If they were picketing solely for organizational purposes at that point in time, Sears could have gone to the board however --
Speaker: Well, I know but what if it would have gone to state court?
H. Warren Siegel: I submit Your Honor that our position would be the same for this reason.
Speaker: That is what I want to get to -- why?
H. Warren Siegel: Because in the interim of time, between 30 days Sears could have exercised self-help and removed the pickets from the premises. Now granted that may have engendered the quicker filing of an unfair labor practice charge by the union although it did not do so in this case. But if that had happened, if an unfair labor practice charge had been filed, the issues as to the exercise of self-help which still have had to been resolved in state court. If Sears for example had affected --
Speaker: I suppose, nothing had started, Sears just did not get around to doing anything until after 30 days and then it decided that it was tired of this recognition picketing and went to state court for an injunction, claiming that they were trespassing and the union answered, well this is arguably prohibited by -- if these have not --
H. Warren Siegel: Your Honor, I think the circumstances would not change in effect --
Speaker: So, you would say, you are just urging us then to go even that far and saying that even if it is arguably prohibited or is prohibited on anybody's prediction that the state court should be free to go ahead or even though the general council in that circumstance can go right to court and get an injunction.
H. Warren Siegel: All the more reason, Your Honor why access to state court should be permitted. I think it is unreasonable to assume that a state court will ignore the implications of the act or any other principle that would be brought to its attention either by the union or the board in an appropriate case, if the state court should err in the balancing of the effectiveness of the location of the picketing or in any other issue. Ultimately, the remedy of the board would be to go in and get an injunction against the further effectiveness of the state court injunction. There is a remedy for the board and the union under those circumstances. There really is no remedy for the employer, if one must to wait any ultimate determination of the board. But Your Honor's question, I think points out the necessity of the position that we have taken in this case. In effect, when these issues reach state court on the self-help or a tort claim and the courts are considering the defense, the activity is protected under the act, there is in effect, a determination whether the activity is actually protected rather than merely arguable. So in this particular circumstance that decision as to whether the activity is truly protected would be made at an earlier stage which is to everybody's advantage. Again, if the state court errs a petition could be made to modify the injunction under state law and ultimately if the board or the union felt that the state court was not properly deferring to some federal principle, there are remedies available right now under the presence to that law for going in, getting injunction and on the principles of supremacy of the state court injunction would dissipate.
Speaker: Mr. Siegel, help me out a little bit -- Sears asked the pickets to leave premises. At that time was the union in a position to file an unfair labor practice claim under 8 (a) (1)?
H. Warren Siegel: I would suggest Your Honor that if they felt that they truly were engaging in activity which was protected or arguably protected, yes they could have.
Speaker: But, would Sears then be satisfied if we had a rule, let me put in another way, if Sears feel adequately protected. If we held that the union could not claim pre-emption unless it had filed an unfair labor practice claim.
H. Warren Siegel: That effectively is the alternative suggested by the union after the long discussion on the basic pre-emption doctrine.
Speaker: Would you believe it is fine with it?
H. Warren Siegel: No, I would not Your Honor because under the current state of the law where you exercise self-help, the burden of a delay in obtaining a board decision is already with the union. So allowing this dispute to be resolved in a civil proceeding does not shift the burden of a delay, anymore than it is under current law. It makes it a more peaceable forum but it does not shift the burden of delay, and as I mentioned before even if the board decided in Sears favor in this particular case and refused to issue a complain, that would not resolve the underlying issue. Sears would still have to go into court at that point and obtain some type of injunctive or other relief as to which the board --
Speaker: Unless it wanted to exercise self-help?
H. Warren Siegel: Unless it wanted to exercise self-help which you could do from the very beginning.
Speaker: Why did Sears not protect itself that way? Just the threat of violence?
H. Warren Siegel: I would submit Your Honor that it would be unwise policy to encourage violence and that is why we try to get this dispute into some forum to resolve it without the physical force that would be involved in self-help.
Warren E. Burger: Well, when you ordered them off the premises, was that not the first step in self-help?
H. Warren Siegel: Yes it was. Although I would not characterize it as an order, it was a request ultimately and in fact the invitation to go to court might be said to abend the unions and because they said they would not get off without legal process. Well, at that point in time, self-help is not legal process in the sense of any kind of a judicial or administrative proceeding. We could not go to the board, we had to go to state court. I submit that the policy should be since there is already these kinds of issues being resolved in state proceedings of various kinds, the policy should be to encourage the dispute into a neutral forum into a forum that will be able to hear the issues, decide the issues and as to which the burden of delay and the resolution in the state court is already with the union. It is simply an alternative between self-help and a peaceable resolution.
Speaker: Well, I suppose if the union were arguing that just an order to get off was not an adequate premise for filing a charge that when you went to court, would add something substantial for that action, I suppose? At least then the union's right to file if it had one, should mature?
H. Warren Siegel: I believe it would have existed at both stages Your Honor but most certainly I would not dispute that they could have chosen the file charge, if they wanted to. The fact that they did not do so is discussed in the trial court record and may have been one of the factors that the court considered in determining whether in fact the location to which the court ultimately limited the picketing would be an effective one or whether the union really believed that it was engaging in protected activity. We do not know that but it is discussed in the Superior Court record. If in fact, we had a rule in this situation where, in response of Justice White's question Sears had to wait until the board resolved the issue, which I have indicated would not truly protect Sears right. In effect, we are condoning what may be in proper conduct by the union and leaving the property owner without a remedy. It seems that it would be more effective to channel it into the forum of the state court. Now, it is interesting to note that all of the briefs in this case including the brief of the board do concede, I believe that trespass, the regulation of trespass is a valid state interest, a very one deeply routed state interest. So I submit that under Garmon, under one of the exceptions that the court announced that the fact that trespass has historically been a matter of deep state interest, every state has laws concerning trespass is a valid ground for invoking the jurisdiction of the court.
Speaker: It used to be that the board had no declaratory judgment procedure and like some agencies does it have any now?
H. Warren Siegel: Only in jurisdictional questions Your Honor, and rarely exercised but again even if it did have declaratory --
Speaker: But, my question is does it have any?
H. Warren Siegel: No it does not Your Honor. Even if it did, we go back to the problem, I mentioned earlier --
Speaker: I understand that.
Thurgood Marshall: If they did, it would take so long --
H. Warren Siegel: I believe that is true Your Honor but still would not be self executing and that is the essential problem here.
Speaker: Mr. Siegel, may I ask you a factual question? Did the the union represent any Sears employees?
H. Warren Siegel: None whatsoever Your Honor. I would reserve the rest of my time.
Warren E. Burger: Very well, Mr. Siegel, Mr. Williams?
Jerry J. Williams: Mr. Chief Justice, may it please the court. I want to start, if I May, by responding to some of the contentions made by the council for the petitioner with which we are in dispute. There is nothing in the record, for example, to show that the Superior Court believed that the Sears affidavits were correct and that the union affidavits were incorrect, that kind of determination was not made. As a matter of fact, I was unaware until after the ruling had been made that any affidavits have been filed to effect that anyone had interrupted deliveries assuming that that was a union objective in the course of the picketing at the relocated areas.
Warren E. Burger: What order did the court issue on those affidavits?
Jerry J. Williams: Well, there is a temporary restraining order which was issued, as I recollect ex parte whereas we remember the forum going down on the matter because it seemed so simplistic nature. Then there was a preliminary injunction after hearing, then there was demur on the basis of the court's jurisdiction. And we had two different Superior Court judges involved in those proceedings which were unduly progressed and rather prolonged. The union sue sponte discontinued the picketing as being totally un-factual, after the court had ordered that the pickets to be relocated to the outlying areas. I think the briefs in the appendix show that there is a great distance from the sidewalks around Sears store to the actual so called public sidewalk, if that is an appropriate term in this context. So that the cars where they were shooting in out from the public street to the public areas which were in all respects identical to any other area of Chula Vista which was in fact public. Some of them perhaps just going to the red, white and blue mailbox in the so called private area of the Sears sidewalk which was the sidewalk around the store. I had no idea that there have been any interruption under those reasons, so I read the affidavits after the order had been issued.
Warren E. Burger: Well is it not a reasonable assumption that the judge believed them or he would not have signed the order?
Jerry J. Williams: No. I think Your Honor what the judge believed and I think, he was demonstrably incorrect in this regard as evidenced by the finding of the California Supreme Court and also case has later cited, that Section 552.1 of the California Penal Code required that the issue at injunction on the theory that the union was trespassing on property other than posted industrial property. The California Supreme Court decisions been raised in Schwartz-Torrance Investment Corporation versus Bakery's union dealing with Shopping Center type situations and also providing an interpret of judicial loss to 552.1 make clear that those exceptions on behalf of labor organizations apply not only to posted industrial property but fortiori, as the court has itself a reason, I am speaking of the California Supreme Court. As the court has itself a reason if it applies an exception in favor of labor organization picketing to the general trespass statute, section 602 of the California Penal Code to posted Industrial Property, a fortiori that exception applies to property other than posted industrial property. That was the mistake that the court made as I said the case started out --
Speaker: This point urged upon the Superior Court judge in San Diego County in the hearing before the preliminary injunction was issued. Were these decisions of Supreme Court of California called those attentions?
Jerry J. Williams: The end result of the case was I have no independent recollection as to whether Schwartz-Torrance case was, it is my recollection however my best guess that it was --
Speaker: Is it not reasonable to assume that he would have followed the decision of Supreme Court of California that you contend is right in the forum?
Jerry J. Williams: No Your Honor I wish that had been the case. It would not be here now. What happened as the appendix, I think clearly indicates in those portions of the transcript which were cited by counsel for the petitioner, the Superior Court judge said in effect, well I really hate to issue this injunction. It seems wrong to me but this is not posted industrial property and under 552.1 the exemption for labor organization trespass picketing apparently applies only to posted industrial property. He was clearly wrong in that.
Speaker: Do you think to review that sort of a point here. What the California Law was on the subject?
Jerry J. Williams: Well, the question was asked, I was responding to a question from the Chief Justice. Yes, I think we quite clearly had raised the question of an independent state ground as a basis of this decision.
Speaker: Well, as I understood, the opinion of the Supreme Court of California, it falls a little bit under the mold of the human cannonball case that my brother White wrote for us last term, that is that -- where it appears that the State Court may feel itself bound to reach a particular conclusion as a result of a principle of Federal Law. This court will decide the principle of Federal Law and send it back so that the state court will -- if federal law does not preclude the state court from reaching its own result and its own law but state court is then free to do that?
Jerry J. Williams: Well, I think perhaps, if this is response Your Honor. The short answer is the trial judge made a mistake and the record clearly shows that, the appendix which is before this court clearly shows that. The law of the State of California quite clearly in Schwartz-Torrance Investment Corporation places an interpretive loss on 552.1.
Speaker: Why did not the Supreme Court of California reverse on that basis?
Jerry J. Williams: I have asked myself that question.
Speaker: They did?
Jerry J. Williams: No. They did not. They seemed determined to raise this specific question whether or not the Garmon doctrine as recently restated in the Farmer & Hill case, the Hill case which became a Farmer case and now perhaps the Farmer and Hill case. Whether or not the doctrine of federal pre-emption or the supremacy clause of the United States constitution applied to trespassory picketing, a question specifically reserved in the Fairline contrary against the assertion of counsel that has uniformly conceded that this is interest deeply rooted in local feeling. Certainly is not an interest deeply routed in local feeling of California which has both, a line of cases saying that labor unions may trespass so to use that word advisedly on private property and also as most recently enacted a statute after the submission of briefs to the California Supreme Court, 527.3 of the California Court of Civil Procedure to further illuminate the judicial gloss placed on 552.1 to it. The labor organizations may trespass for labor organizational purposes and no preliminary injunctions may be issued to stop them.
Speaker: Well, all of those grounds would remain open for the California Court's decision if we were to reverse on a federal ground here?
Jerry J. Williams: I am not sure I can answer that in the manner which it is posed Your Honor for this reason. As I understand that one of the questions which is raised by petitioners whether or not trespassory picketing is in fact deeply rooted in local feeling. California says it is not. The issue was reserved in Fairline. We are talking here about arguably protected activity under section 7 of the amended Labor Management Relations Act.
Speaker: Do you suggest that the pre-emption doctrine will vary from state to state depending on how deeply rooted the trespass feeling appears from an examination of state statute?
Jerry J. Williams: On the contrary Your Honor, I am suggesting that in a line of the decisions starting with Garmon 2 at least in 1959 reiterated most recently in the Farmer Hill case if I may use that terminology. Last term the court has been unanimous on the point that what we are talking about arguably protected activities, here peaceful picketing, concededly peaceful picketing that the activity is pre-empted and that the NLRB's jurisdiction is exclusive or as the court has itself said the NLRB may not have the last but they must have the first.
Speaker: What is the deeply rooted state feeling got to do with it at all that you mentioned a moment ago?
Jerry J. Williams: The point had been made by petitioner Your Honor that everybody knows or everybody conceives which I pick issue with that this is an area deeply rooted in state feeling and that area is deeply rooted in state feeling are exemptions to the Garmon doctrine of federal preemption. Everybody does not know that, I do not know that. The State of California does not know that. That is a point that I was making.
Speaker: Well, so then your response to petitioner would be, even if he is right, it would go on a state to state basis?
Jerry J. Williams: No Your Honor. I am saying this, I am saying that from Garmon 2 to Farmer Hill, even though in Garmon 2, there were Justice Harland wrote a concurring opinion on the point of arguably protected activity in contradistinction to arguably prohibited activity. The court was unanimous in holding that as to arguably protected activity under section 7 and in this case section 13, the board's jurisdiction is exclusive and state court's must deal.
Warren E. Burger: Could the union have gone to the board as soon as they were requested or ordered to leave the premises and terminate the trespass, allege trespass?
Jerry J. Williams: Frankly Your Honor I did not know that in 1973. I have discovered it from reading the board's amicus brief, that that is the board's position from the moment that the employer orders the union off premises that gives rise to an arguable 8 (a) 1 thereby providing a forum for the employer which has been apparently a concern of the petitioner in this case providing a forum for the employer to determine whether the picketing was trespassory in nature or whether it was protected under section 7 --
Speaker: But only if the union filed.
Jerry J. Williams: Yes, Your Honor if the 8 (a) (1) were filed. However, I might add in response to question asked earlier by Your Honor that with regard to the 30-day rule had that occurred of course that would give immediate rise to 8(b)(7) petition and a consequent 10 (l) injunction under the Board's jurisdiction to apply in Federal Court for a subject 10 (l) injunction and those injunctions --
Speaker: That is after 30 days?
Jerry J. Williams: Yes, Your Honor that was the question as I recall it.
Speaker: If in your view, and belief at that time there was no basis for going to the board when you were ordered off the premises, did you have a basis for going to the board when the Sears went to the state court?
Jerry J. Williams: When Sears obtained the injunction Your Honor? I would suppose, as I now understand the board's position that in 8(a)(1) injunction -- an 8(a)(1) unfair labor practice charge will be entertained by the region on the basis of any action to interfere with the section 7 rights of the picketers. That we did not understand at the time of the case. As a matter of fact, as I say because it was very simple matter since the state law was so clear.
Speaker: You answered my brother White that only if the union had filed -- had gone to the board, at page 17 of its amicus brief, board says the union's activity here was arguably prohibited, Sears could have filed the charge.
Jerry J. Williams: Yes Your Honor. I recall that portion in the brief, Sears did not file a charge.
Speaker: You had answered my brother White, only if the union filed a charge. The board's position is that Sears could have filed a charge?
Jerry J. Williams: Yes Your Honor, the board's position is we were both remiss in not filing charges.
Speaker: Well, now what would have been the basis for an employer to file a charge prior to the end of 30 days?
Jerry J. Williams: The board suggested that a charge could be filed under 8 (b) (2) and that we are trying to coerce the employer and to discharging employees in favor of union adherence. The board suggested several other basis on which section 8 (b) unfair labor practice charges could have been filed, outlined I believe at page 17 of that petition.
Speaker: But, would have had to do very little with where they are picketing?
Jerry J. Williams: With the location of the picketing Your Honor, it might depending on what charge was filed and what action the board sought to take.
Speaker: Mr. Williams could you help me on the theory of the union's 8 (a) (1) charge which someone suggested had been filed. If the union did not represent any employees, how could they file an 8 (a) (1) charge?
Jerry J. Williams: On the theory that the section 7 rights of the union adherence, the picketers were being invaded. As I understand it, everyone has section 7 rights of employees and non-employee organizers, parking back to Babcock & Wilcox, also Republic Aviation and alternative line of cases.
Speaker: Is that settled I am just -- I have to confess my agreements on it -- because the statutory language speaks of employees and I did not realize it.
Jerry J. Williams: Yes. As I say, the board takes the position of both the petitioner and the respondent were equally remiss in not filing charges under those circumstances. Of course, it has never part of the Garmon doctrine or the doctrine of federal preemption under the Supremacy Clause that the filing of a charge was a condition perceiving to the exercise of arguably protected a contradistinction to arguably prohibited activities. Also under the circumstances of this case, since we were dealing with arguably protected activities which were nullified by the effect of the preliminary injunction, it was seemed clear that this was a matter which fell within the line of cases originating with Garmon 1 in 1953, I believe and recently expressed by this court in the Farmer Hill decision. Another point that has been made or urged is that after all its much more expeditious for an attorney representing an employer to go to Superior Court and get an injunction. Well, that is true, it certainly is but the vice of that is that the injunction is almost invariably dispositive, the terms temporary injunction or preliminary injunction are misnomers. That of course was a point made years ago by Justice Frankfurter and Mr. Greenan (ph). The labor injunction which led to the Norris-La Guardia Act. We had no similar such statute in California until the recent passage of the statute adverted to in our brief CCP section 527.3, pointing out that the so called preliminary injunction is anything but preliminary or was said to me when I was going to law school there is nothing more permanent than a temporary building. If I may then de into resume the order of my argument, I should like to point out to the court that what we are talking about here are arguably protected activities, the activities is beyond dispute and I think conceded by council. We are talking about peaceful picketing on walkways generally open to the public. There was a US mailbox, big red, white and blue mailbox in the area denominated by the petitioner as private. There was no obstruction of traffic whatsoever at anytime.
Warren E. Burger: Does that make it to public because they put a mailbox there?
Jerry J. Williams: It seems to me Your Honor that the term private property -- it raises a tautology when we are talking about section 7 rights.
Warren E. Burger: But a hotel has a mailbox in the side of it.
Jerry J. Williams: Red, white and blue mailbox, US mailbox?
Warren E. Burger: I do not know what colors they are and that is a mailbox outside the hotel.
Jerry J. Williams: There may be a mail slot Your Honor, one of those brass things with a slot in it. Yes, in a hotel.
Warren E. Burger: What is the difference?
Jerry J. Williams: Well, the difference is that the big red, white and blue mailbox mounted anchored to the curb of a sidewalk is an invitation to all comers to come on the premises and to say under those circumstances that the property is private --
Warren E. Burger: It is an invitation to come on the premises to mail a letter perhaps.
Jerry J. Williams: Well, may be some of the pickets wish to do so.
Warren E. Burger: Is that shown in the record here? The claim of that was --
Jerry J. Williams: The red, white and blue mailbox is part of the appendix picture D. It came out very poorly in the Polaroid, I wish I could do something about that. I think the fact that there was a red, white and blue mailbox anchored to the sidewalk denominated by the petitioner as --
Thurgood Marshall: Let me put it in another way, any difference if it was green?
Jerry J. Williams: It would not have been a mailbox then Your Honor and I do not think it would have been -- well if it were green then we would be back to prior to Garmon I think we would be in serious trouble.
Warren E. Burger: Well, to our plan, what difference it makes to your case whether there was or was not any mailbox there?
Jerry J. Williams: Just this Your Honor, I think it is a tautology to talk about section 7 rights versus private property rights because it is a true as a jury's prudence then in a true sense when we are talk about private property, we are talking about the right to exclude others. What we are talking here is under what circumstances do individuals be the union adherence, employees of the employer or otherwise have the right of access and to use, I know that the term private property is sacrosanct in English common law and it has been carried over to United States but no matter how metaphysically we treat it, property has no rights. So we are talking here about rights of access of individuals be the union adherence or otherwise in a situation of peaceful picketing which is arguably protected, admittedly peaceful picketing under section 7 and 13 of the Act.
Speaker: I think that the trial court did not agree with you on California Law ?
Jerry J. Williams: I think the trial court was confused and I think the record indicates that.
Speaker: Well, anyway the answer is they did not agree with you. Did you ever present a claim under California Law Court?
Jerry J. Williams: I did not personally.
Speaker: Or did the Union say that it was contrary to California law to reach the injunction?
Jerry J. Williams: Yes.
Speaker: Did it present that claim to the District Court of Appeals?
Jerry J. Williams: Yes.
Speaker: And to the Supreme Court?
Jerry J. Williams: Yes.
Speaker: And neither court reached it?
Jerry J. Williams: The State of California decided the case of course on the basis --
Speaker: How about the District Court of Appeal?
Jerry J. Williams: The District Court of Appeal distinguished the Schwartz-Torrance and the other cases.
Speaker: So it disagreed with the union also on the California law?
Jerry J. Williams: Yes. That is correct.
Speaker: But you say, you are correct?
Jerry J. Williams: I say that the California Supreme Court is correct in holding that under state law there is a proper basis for allowing the so called trespassory picketing. They did not choose that basis of decision.
Speaker: But they did not hold that in this case.
Jerry J. Williams: No they have held it --
Speaker: And it did not say whether the District Court of Appeals was correct in distinguishing the priorities?
Jerry J. Williams: No, it did an interesting thing, the first time they assumed jurisdiction --
Speaker: Well they did not say that the District Court was wrong. Did they?
Jerry J. Williams: In effect they did. They remanded to the District Court with instructions to view the case in light of Musicians Local 6 versus Oakland Stadium in which those kinds of issues were raised. The District Court of Appeals made a second decision in which they chose not to follow that direction and that second time the California Supreme Court asserted jurisdiction, they decided it exclusively on the basis of the federal preemption issue.
Speaker: But never did say the District Court was wrong on the California Law?
Jerry J. Williams: No Your Honor.
Speaker: Mr. Williams, you started out by pointed out that either the record was unclear there was no finding as to whether the picketing had any effect on interrupting deliveries? What difference does that make, do we not have to assume that the picketing is for some reason either interfere with the patronage of the store, ought to interfere with delivery?
Jerry J. Williams: Oh, surely Your Honor.
Speaker: I do not know what point you were making that is why I did not write that.
Jerry J. Williams: The point, I was contesting the observation of the petitioner that the court believed the employer --
Speaker: But did we not assume for the purpose of decision that he did, would that not be better?
Jerry J. Williams: Yes.
Speaker: May I continue?
Warren E. Burger: Very well.
Jerry J. Williams: I think also there has been an equation made between trespass and other kinds of tortuous activity which this court has found to be exceptions to the Garmon doctrine now and each one of those cases such as Linn versus Plant Guards dealing with malicious libel or the Farmer Hill case dealing with outrageous infliction of emotional distress or even Youngdahl versus Rainfair dealing with violent picketing. We've dealt with outrageous, particularly outrageous conduct. You might even say unconscionable conduct and even there the court has been careful to distinguish between the unconscionable conduct and the conduct which is protected as in Youngdahl for example, which says that the violence is certainly subject to the police power of the state but not the right to picket it. So in sum, on that aspect of our case Your Honor contrary to the contentions of the petitioner, the exclusive jurisdiction of the National Labor Relations Board under Garmon is not displaced by the mere incantation of the phrase violence, liable, tortuous infliction of emotional distress or trespass. In other words, there is another such equation that has been made and that particular blunderbuss approach has been studiously avoided by this court in a line of decisions as recently as the Farmer case. I should also like to point out Your Honor that with regard to the reply brief, I had hope that the court would regard it is untimely since it apparently does not comply with the time requirements of Rule 41 that -- since that apparently has not occurred that hastily reviewed that brief and I find that there is at page 9, the misstatement of the law. Last sentence of the first paragraph arguably protected has been the pre-emption rule not actually protected. Also the two cases cited --
Speaker: Say that again whether you on the top of page 9?
Jerry J. Williams: Yes Your Honor
Speaker: I do not See the sentence to which you are referring. This court has consistently recognized in effect?
Jerry J. Williams: Yes this court has consistently recognized in effect that even though conduct is arguably protected it may nevertheless not be preempted absent the determination that it has actually protected. Well, that with all due respect Your Honor for the concurring opinion in the Ariadne case, such has not been the Garmon doctrine rule. The two cases which were cited are in opposite at page 11, one deals with the public employees strike, the other deals with violence and mass picketing, neither deal with the interpretation of 527.3 appropriate here. That Your Honor concludes my presentation. Thank You.
Warren E. Burger: very well. Do you have anything further Mr. Siegel?
H. Warren Siegel: Yes Your Honor. In response to the question I believe as asked by Mr .Justice White, the problem with the proposal of the board that Sears file a charge under 8(b) is of course I believe, I mentioned earlier that that goes only to the objective. It does not deal at all with the location, so even in this case, if the board had found some impermissible objective, the union could simply have changed that objective to a valid one and we would be right back where we started now. It is interesting to note that both the board and the union have conceded in the briefs that there are some trespass situations which are already subject to injunction under state law, They give the example, of the Marshall Field case where you actually have people coming in to physical confines of the store, having made that concession that the state would have jurisdiction there, I assume that must be on the basis that there is already a board decision that that activity is actually not protected, therefore it is not very far adjunct to allowing the court to determine that same thing in the context of a preliminary injunction. For the very reasons, I mentioned earlier, that whenever a court either a state or federal, ultimately resolves these issues. In effect, they are deciding whether there is actual protection, not merely arguable protection and many times of course they do disagree with the board, as to that concept. I do not want to burden this argument too lengthy by arguably state law because, I do believe that that The California Supreme Court had an opportunity to resolve the issues of state law raised by the union. As a matter of fact the statute to which they refer became effective January 1, '76. So this case was argued, if my memory serves me correct that before the California Supreme court April of '76, the California Supreme court decision was in September of '76. If the court had felt compelled by any of the arguments under state law, that were raised now by the union, it is to be assumed they would have resolved them not having done so, apparently there was agreement with the Court of Appeal in this case the California state law did not preclude the issue of the injunction and in fact we have cited two Court of Appeal decisions in California interpreting the new statute, while although they deal with somewhat factually different situations in construing the intent of the law, the new law, say was not intended to change preexisting law, there still must be a determination for example whether the pickets have a right to lawfully be at the location of which they---
Speaker: Did the union present the state law questions to the state supreme court ?
H. Warren Siegel: Not the new statute Your Honor.
Speaker: But the one the Court of Appeal decided.
H. Warren Siegel: Yes. In any case both of those California Court of Appeal decisions which indicate that the new law does not change the preexisting law were denied hearings by the California Supreme court which in California is equivalent to a decision on the merits, not necessarily agreeing with the reasoning of the court but with the decision, and citable as precedent.
Speaker: Well, that statute seems to prevent injunctions where the union is entitled to be where it is --
H. Warren Siegel: Where it may lawfully be and therefore still leaves open the entire issues presented in this case, can they lawfully be where we say they could not lawfully be, correct.
Warren E. Burger: Do you think your situation in terms of the trespassers, any different from hotel workers lobbying -- the picketing in the lobby of the hotel, because there is a mail box there?
H. Warren Siegel: I do not think, the mail box situation has anything to do with this case at all. I had the impression that we were perhaps re-arguing Central Hardware and those cases during the argument of that issue, certainly it is not --
Warren E. Burger: I am wondered why counsel is resting so much on mail box.
H. Warren Siegel: I do not know, the post office requested serious permission to put it there according to the record and Sears said yes, there is -- stack situations does not prevent the union from requesting permission, at least conceivably, I doubt it, but conceivably getting permission, but the point in there is even the post office recognized Sears property right to that location by requesting permission to put it there and Sears did consent. I see my time is up and I really have nothing further there. Thank you .
Warren E. Burger: Thank you gentlemen. The case is submitted.