Earl Warren: Number 174, United States of America, Petitioner, versus Embassy Restaurant, et al. Mr. Davis.
John F . Davis: Mr. Chief Justice, if the Court please. The issue here is whether a sum of money owed by a bankrupt restaurant to the trustees of a union welfare fund, whether these sums of money are wages due to workmen within the terms of the Bankruptcy Act so that they will be entitled to a priority of payment. If these sums due to the welfare fund are to be considered as wages due to workmen, then they are entitled to a priority to be paid immediately after the expenses of administering the estate. If on the other hand they are not wages, then they will share with the other secured creditors. Now, the Embassy Restaurant in Philadelphia had contracted to pay to the trustees of the welfare plans for the local unions, which represented their chefs, theirs cooks and the local union representing the waiters and waitresses, the sum of $8 a month for each union employee. This obligation arose from a collective bargaining agreement which had been entered into between the Greater Philadelphia Restaurant Operators, Inc., representing the restaurants generally, and the Local Joint Executive Board of Philadelphia which was made up of the unions of the workers who worked in the restaurants and the hotels. And the purpose of these -- the purpose of these payments and it's set forth, page 30 of the record, and this is quoted from the collective bargaining agreement under (b) and this is all what is stated about the purpose. “These funds shall be maintained and utilized to promote life insurance, weekly sick benefits, hospital and surgical benefits and other benefits for the employees who are members of locals,” and it names them, “in the employee of the employer as in that practice.” Now, the funds were to be operated -- were to be used in accordance with a trust agreement which is also set forth in the record at pages 9 to -- 9 to 24. The restaurants are not a direct party to these trust agreements. The trust agreement entered into by the local union, in this case, the chefs and cooks union, and the Board of Trustees for the welfare fund. And this is the document under which the recipients of these payments from the -- from the restaurant were to be governed in -- in the administration of their trust. This, too, is stated in the most general terms. I call the attention of the Court to the provision on page 11, which names the purpose of the trust and to Article II, Section 2. It says, “The purposes of the chefs, cooks, pastry cooks and assistants' local union -- Local 111 welfare plan shall be provide welfare benefits for employee who use -- who meet the eligibility requirements for coverage as such eligible -- eligibility requirements presently exist or are amended. Almost a cut blank but they don't define welfare benefits other than just welfare benefits as such.And then, in the duties of the trustees, the trustees are given authority to determine how these funds shall be used.” And Article IV on page 13 states -- gives these trustees the -- the authority to make the determination as to what welfare purposes they shall be used for. It's one of the item in the -- in the trust agreement and that is with respect to the rights, the beneficial rights of the union members. On page 22, this was specifically stated, “The money is to be paid in the said Local 111 welfare plan shall not constitute or be deemed moneys due to the individual employees.
Hugo L. Black: Where is that?
John F . Davis: Page 22 of the record, Mr. Justice Black. Now these, I think, are -- are all the facts which we have before us in -- in this case. And the question which we have to answer is whether this $8 per employee, which was not paid, is to be considered wages within the provisions of 64 (a) of the Bankruptcy Act. The language of that section is not helpful. It merely says that there shall be a priority for wages due to workmen. Legislative history of that section is also, as far as any reference to congressional debates or reports, is also not helpful. The words have been in the statute in these words since about 1841, although there have been some changes in the details. But as far as interpretation goes, it's always just referred to wages to employees. So far as judicial interpretations of this section are concerned, there is a split between the Second Circuit which in a case named Local 140 against Hack in 242 F.2d, decided that these funds were not wages on facts which are very close to this case. And the decision of the Court of Appeals for the Third Circuit in the -- in this very case which recognize the conflict and came to the office with result. There are several District Court opinions in New York, in New Jersey and in Southern California. New York and New Jersey going one way, California the other, and these opinions are divided on it. I find them unusually -- unusually helpful in -- in analyzing the question, they're good opinions and they raised the issues very close -- very, very carefully. As far as this Court is concerned, the closest that this Court has come to this question, I think, is in United States against Carter in 353 U.S. 210. You did not have before you at that time priorities under the Bankruptcy Act. You had a question as to whether a bond given to secure a payment in connection with construction of federal buildings, a bond which secured amounts justly to the persons for labor, would include an obligation to pay funds to a welfare plan. And the Court in deciding that the bond did cover those payments, was specific in saying that it covered more than wages. And that even though these particular payments were designated as not being wages, they were still covered by the bond. So that the case, insofar as it has any application, is not -- is not inconsistent with the position which we take here. I think that it is note -- noteworthy that in other statutes, however, payments to welfare funds are generally not treated as wages. Thus, they are not taxable to the employee under the Income Tax Law. They're not taxable to the employee under the Social Security taxes. Under the Fair Labor Standards Act, payments made to welfare funds are not considered to be part of the regular wages which would be doubled for over time.
Charles E. Whittaker: (Inaudible)
John F . Davis: These -- these are statutory provisions, Your Honor.
Charles E. Whittaker: (Inaudible)
John F . Davis: I'd say under the statute, under -- for example, the Income Tax Law under the 20 -- under the Revenue Code, 26 U.S.C. 106. It specifically provided that these shall not be taxable to the employee.
Charles E. Whittaker: (Inaudible)
John F . Davis: No, the Fair Labor Standards Act doesn't contain the provision, but it has been interpreted that these are not the standard wages, the -- the administrator has -- has so interpreted it. There's -- as far as I know, there's no judicial decision on that but it's -- that's the way it's been administered throughout. I mean similarly, under the Walsh-Healey Act, it's been administered by the Department of Labor where there is a provision for the payment of prevailing minimum wages. That too has been always interpreted as not including welfare benefits within the term prevailing wages.
Charles E. Whittaker: (Inaudible)
John F . Davis: Yes, I think that is so, but on this --
Charles E. Whittaker: (Inaudible)
John F . Davis: That is -- that is right. That is right.
William J. Brennan, Jr.: I suppose, Mr. Davis, bargaining on something like this would be mandatory under the obligation of the --
John F . Davis: Yes, its is --
William J. Brennan, Jr.: -- National Labor Relations.
John F . Davis: -- it is clear that it would be mandatory. There are several cases holding that this does fall within the fair labor -- the NLRB as a -- as a subject which they must bargain on. But I may call your attention there that it's not that -- it's not necessarily because they are wages, because the cases themselves speak not only of wages but other conditions of employment, so that -- and the case has -- in discussing whether this is a subject which must be bargained upon, say most of them say this is wages or it is other conditions of -- of employment, so it must be -- they must bargain on it. There is a First Circuit -- First Circuit case, however, which just says that for the purposes of the NLRB, it is wages. It leaves out the Second -- the Second Circuit.
William J. Brennan, Jr.: Well, would there be any relevance in our consideration on how they answer this question that sometimes, perhaps even in this case, provisions of this kind compromise wage demands.
John F . Davis: Well, yes. I think it has some pertinency, but I think that you should have this in mind that many things are bargained for. This -- this particular welfare plan was a subject as I -- as I pointed out of a collective bargain -- bargaining agreement. Many things are bargained for and are required to be bargained for which are not wages. And even if it may be taken into consideration in the amount of wages.
William J. Brennan, Jr.: No, what I had in mind was and I write sometimes to be the demand of X cents per hour increase which is resolved by an agreemen to this kind in lieu of a cents per hour increase?
John F . Davis: That's right. In many times, the fringe benefits are taken into consideration in how much -- how much they will be given in -- in the direct wages. Now, that -- I'm not sure if that that helps us in the statute. It shows that they are aligned, they have some relation to wages, but whether they are part of wages or instead of wages, I don't know. It's almost a question of semantics whether you say that they are part of the wages or instead of wages. You don't have to give as much wages because you give other benefits.
Felix Frankfurter: Would you say that abolishing the act, has been interpreted or specifically deals with these problems?
John F . Davis: No, it's been interpreted, Your Honor.
Felix Frankfurter: Interpreted. And you also said the federal -- the Fair Labor Standards Act has been interpreted.
John F . Davis: That's right.
Felix Frankfurter: And in both -- and --
John F . Davis: And the Fair Labor Standards Act is by regulation, I think in --
Felix Frankfurter: Yes, was by regulation. And for some -- for some duration, both interpretation?
John F . Davis: Yes. It's been the consistent interpretation of both --
Felix Frankfurter: And both interpretations are as it weren't -- both interpretations implicitly are not taking what might be called the literal or latitude (Inaudible) view.
John F . Davis: That -- well --
Felix Frankfurter: That is correct, isn't it? Well, I mean if -- or just as a fact. If -- if these were included --
John F . Davis: It would make larger -- higher wages.
Felix Frankfurter: It would make higher wages. That's right.
John F . Davis: And more over time or higher percentage --
Felix Frankfurter: That's what I'm saying.
John F . Davis: That's right. And --
Felix Frankfurter: So that so far as any general talk about things should be construed infavorably. Those two practical illustrations go against it.
John F . Davis: That is right. Now, I think that the basic purpose of this provision for priority is -- is quite clear. It was clearly intended to recompense in cash, employees who were thrown out of work by reason of the bankruptcy of their employers and who had money due from the employers. And the idea was that these people were entitled to something more than -- than other creditors. They were not in as good a bargaining position perhaps and any way, they should get taxed. Now, to give this kind of priority for a welfare fund, and to give this kind of a debt for a welfare fund, that priority probably fulfills that -- that purpose. The workers cannot buy bread with a priority given them for a welfare fund. I think that if we --
William J. Brennan, Jr.: But tell me though, Mr. Davis, if this debt isn't paid through the funds, I take it that it will have some effect perhaps more, but some effect, will it not, on the benefits payable or to the affected employee and are eligible to see those.
John F . Davis: I think it -- I think we must assume that it will be a detriment to these -- to these employees if they will have less protection from the welfare fund.
William J. Brennan, Jr.: So now, is there any concept of payments of this kind? Is there really in the sense of preferred wages?
John F . Davis: Well, there are --
William J. Brennan, Jr.: (Voice Overlap) --
John F . Davis: There are with pensions. There are with pensions, but not with respect to this -- not with -- with respect to this kind of welfare payment of such a --
William J. Brennan, Jr.: Well, what kind -- what -- what is the assignment?
John F . Davis: Well, it's actually -- welfare plans and this is pretty much the standard -- in some respects, the standard plan, is for group life insurance, sick benefits, hospitalization, surgery benefits, and sometimes insurance to pay them while they're out of work, while they're sick. I mean, that -- that sickness insurance, that kind of disability insurance. That's the kind of thing which is generally covered by these welfare plans and which seems to be contemplated in this contract.
Potter Stewart: And of course, the -- the beneficiaries of this plan included not only the -- the employees of the bankrupt but many, many other people, isn't that true?
John F . Davis: That is true. It included the -- well, I -- I don't want to overstate that. It included the members in the Philadelphia area of these locals. It wasn't a national welfare plan in the sense of the -- of the -- John L. Lewis has called welfare plan.
Potter Stewart: But --
John F . Davis: It was -- it was -- there were -- the -- the employees of the Bellevue Stratford and -- and book binders, had just as much interest in these payments by the Embassy Restaurant, as the pastry cook and the onion peeler in -- in the --
Potter Stewart: In the Embassy.
John F . Davis: -- in the Embassy Restaurant itself.
Potter Stewart: So to that extent, too, you -- could you not distinguish this from the policy behind giving a priority to wage payments. That's for the exclusive benefit of employees of the bankrupt.
John F . Davis: That's right. This would give the same benefit to the other members of the union who would have an interest in the plan that it would to the particular employees who are threw -- thrown out of work--
William O. Douglas: The -- the employees of the union.
John F . Davis: Well, the union, too, are included in this. I'm sorry, I didn't mean employees of the union, but that is another feature of this plan that it includes not only employees --
William O. Douglas: I'm just asking. I --
John F . Davis: They are included, yes. The employees of the other restaurants and the employees of the union. The terms of the trust in defining employees on page 10 of the record, show that the employee shall include employees employed by the union who don't work for any restaurant.
Felix Frankfurter: Mr. Davis, may I ask you, perhaps two general questions? I was wondering how is the Court to decide this case, this kind of a case. On the one hand, you can't say as -- you can't say this is an old statute. The term wages comes down from 100 years and nobody thought about wages to include these fringe benefits in 1841 or whatever it was. That's no good because the term in the statute is ambulatory and -- and creates to itself whatever new menu may properly be applied with. That's -- that's --
John F . Davis: That's right.
Felix Frankfurter: Then one can say, “Well, this ought to be what is called liberally construed,” and you bring forth other cognate statutes, which in practice could have been construed to include this (Inaudible), but that's on the other side. Then also, that is the preference for me, very strong consideration, an element that this priority statute has been construed certainly by this Court to make 1% out of Shylock. On the whole, that statute has been very strictly and closely construed to -- to give Uncle Sam, if I may use the colloquialism, every break. I am in that -- in that odd mixture of consideration, how do you -- how do you resolve those conflicting considerations?
John F . Davis: Well --
Felix Frankfurter: If you tell me that, I know how to answer your problem.
John F . Davis: Well, I -- I think that -- I think that two ways that we have to approach the -- this interpretation. One is by the rather painstaking way of looking at the attributes of these payments and the attributes of wages. These are paid not measured by the labor of the individual but paid by the person. They're not paid to these individuals, they're paid to somebody else, someone else. We look at these attributes and put them against wages and say, “Do we think these look like wages?” Now, that's what I say is a narrow thought of in --
Felix Frankfurter: On the other hand, other consideration of Justice Brennan.
John F . Davis: That's right. And on the other hand, you say that they are bargained.
Felix Frankfurter: (Voice Overlap) wages, that's the form of wages.
John F . Davis: We say that they're bargained for and they take the place of wages and that way is on the other side. Now, there is the broader way of looking at this thing and that is. I think whether -- and this I think is -- is the -- the type of interpretation this Court often looks at and that is what is the -- what is Congress really getting at in this kind of thing is it -- does Congress want to favor these welfare plans? Does Congress want to -- want this Court to give its broader construction to wages as possible because Congress is in favor of welfare plans. And it's argued in some of the cases below and -- and the respondent argues that there is a congressional policy that favors these so that we should -- in order to achieve that policy in this setting, we should give wages a broad interpretation. Well, I think that's a -- that's the appropriate thing to inquire into, but I believe that if you have -- one look at what the congressional position is on welfare plans that you will not find that there is a general policy to favor the union welfare plans as such. Good welfare plans, yes, bad welfare plans, no. And Congress, in -- in legislating in this field has been selective. It has encouraged some and it has discouraged others. The Taft-Hartley Act , for example, in providing for employer contributions makes it illegal to contribute -- for an employer to contribute to an employee welfare plan, unless there's joint control of that plan by the employer and the employee. Unless the funds are used exclusively for the benefit of the employees and unless there is an audit, I think it's an annual audit of the plan which is made available to the employees. If -- unless a plan meets those conditions under the Taft-Hartley Act, it's an unfair labor practice for an employer to make a contribution to the plan. This is what I mean by saying that Congress picks and chooses among the plans to decide which plans it believes are beneficent and which are bad.
Felix Frankfurter: So that even if --
Earl Warren: I'm just going to say that that indicates that -- that Congres is less favorable to these plans or -- or on the other hand, they just wants to see that the -- that the plans serves the purposes designed for and what's that regulation on.
John F . Davis: Well, I think that's -- I think that's right. It -- it puts that regulation on it. It -- may I say this plan would not fit -- would not fill that fill at all. This -- on this plan, if this -- if this company were subject to the National Labor Relations Act and Taft-Hartley Act, this -- this would be an unfair practice for the employer to make a contribution in this case. What I'm suggesting is that Congress hasn't put a blessing on welfare plans as such. It has put a blessing on welfare plans which work for the welfare of -- of the employees.
Felix Frankfurter: Are you suggesting that we might make a distinction? Do you think that would or would not be unfair labor practices? Do this Court grantins priorities that promote unfair labor practice?
John F . Davis: No. I think this Court should probably -- what I'm suggesting really is that you should leave to the Court, leave to the -- leave to Congress a determination as to whether it wants to include this as one of the benefits to be given to welfare plans or whether -- if it does want to give it to them, it wants to be selective. There was a bill introduced at last -- the last session of -- of Congress. It didn't pass, but Congressman Cellar introduced it. And I -- I understand it was introduced with the -- with the approval of the CI -- of the AFL-CIO. And this bill would have granted a priority to employee welfare plans. But it also provided that it would it would grant the priority only to welfare plans where the contributions were made proportionate to the hours of labor of wages paid for the employee. And where the welfare plan would be a -- recognized as a proper one for a deduction by the employer in the income tax plot.
Felix Frankfurter: And those are the considerations, I was wondering if you would illumin that -- that Judge Hallanan set forth in his opinion in the District Court. And you've quoted on page 24 and 25 of your brief. Says, if this is to be done, then it can't be the one way or the other, there might be all sorts of qualifying to that duration.
John F . Davis: That's -- that's right. Now, I do not think that is an inappropriate judicial process to -- there's a possible one to look at each one of these plans and say, “There's enough of the benefit that these go to the employees so that we should call this wages.”
Felix Frankfurter: That's an impossible way --
John F . Davis: It's a difficult one. And therefore I suggest that what should happen is that it should be left to Congress. Now, there's just one -- one other feature on this question of the policy of -- of aiding a labor in this case. To give a priority in this case, undoubtedly in one sense is a -- is a help to labor. And another sense however, it tucks into a right which is already given. Under the present priority statutes, employees are limited to $600 a piece in the priority which they would receive. If this is to be considered as part of their wages, it would seem to me that it would result in cutting that much into the direct benefits and -- and siphoning it into the -- into the welfare payments.
William J. Brennan, Jr.: Well, Mr. Davis, do you suppose if this came within -- in this instance, wages that to those plans that some employers have usually not for workers who are members of labor organizations but for executive and other personnel under which the employer voluntarily supports programs of this kind , would they also have to come within the sweep of wages for the -- in the event the employer then would think (Voice Overlap) --
John F . Davis: I would think they would be even closer -- even more closely wages than this, Your Honor, because they would be cases where at least the benefits would be going specifically to employees of this -- of this employer.
William J. Brennan, Jr.: And not -- there, and those instances of course is -- is not -- nothing that in that type of employer ordinarily that involves the National Labor Relations Act to -- in the other statues (Voice Overlap) --
John F . Davis: I think that's right. I'd like to reserve the rest of my time.
Earl Warren: Mr. Markowitz.
Richard H. Markowitz: May it please the Court. I think that the first and essential consideration and problem which we must face in this case is a definition of the term “wages” as it appears to the Bankruptcy Act. Congress has never defined this term in this Bankruptcy Act but has left it to the definition of courts for many years. And courts have consistently, beginning back in 1903, defined the term as meaning compensation for services rendered, reward for labor performed. And this is the meaning which is attached and described to the term wages. And I think it's critically important that it be considered in this fashion in the context of this case. Because, the term wages, as Mr. Justice Frankfurter pointed out, has been an ambulatory one. It's expanded tremendously as are industrial economy has expanded. Then there's various and new types of compensation have been developed in the field of collective bargaining. Vacation pay , severance pays, sick leave pay, holiday pay and numerous kinds of fringe benefits all exist and are all today considered by our Court's to be wages for the purposes of the Bankruptcy Act. It's well settled. For example, as vacation pay is wages. As Mr. Justice Brennan pointed out, it's deferred wages. The courts have said, the Third Circuit said in the early Public Ledger case. And I think that concept of compensation of reward for labor performed is one which is inherit in the definition of the term wages as it appears in the Bankruptcy Act. Now, how does that relate to this case?
Felix Frankfurter: What if -- may I ask you this point? Would any that I'm concerned. Then it was out of business plans, be included in the income tax of the employee's annual report.
Richard H. Markowitz: No, sir. Congress has accepted benefits such as hospitalization benefits, sickness and accident benefits which are received from disability from income tax. And it's gone even further insofar as the contributions themselves are concerned as I'll point out if I may in a few moments. But I think we must consider how this contribution, as welfare contribution arises here. It arises from the product of collective bargaining. It's due to the welfare fund as a result of the compensation and as part of the compensation due to employees. In normal situation, an employer and a union sit down to negotiate a collective bargaining agreement. Union makes numerous demands. The employees want 20 cents an hour increase and they want a welfare fund contribution and they want more vacation pay and they want additional holidays. And as the parties gradually meet and counter proposals are made and they merge toward a middle ground where there's going to be a meeting in their minds. The employer says to himself, “I have so much money to spend for a two-year agreement. I can afford to pay 20 cents an hour for labor fees for two years.” And he in effect, says to the union, “You do what -- what you want with this amount.” You can take 8 cents in wages this year and 5 cents next year and somewhat 2 cents which will cover increase vacation cost and 5 cents to a welfare fund or have it anyway you please within certain limitations. If you want to take 10 cents this year and 5 cents to welfare fund, that's up to you.” But the union and the employees of course and the union acting as collective bargaining agent for the employees decide that they want so much money in welfare fund contribution. If they want 5 cents an hour or in this case $2 a week or $8 a month to go to the welfare fund, and this is a part of their compensation. This is the part of the reward for the labor that they performed. Just as if they put this 5 cents an hour in their pocket as part of their wages, is added to their hourly rate of pay. So they take 5 cents and had -- and asked the employer to give it directly to the welfare fund as part of the compensation for the labor that they performed.
Potter Stewart: We can agree that it's a part of their compensation. So with the various other fringed benefits be part of compensation. But the statute doesn't use the word compensation, doesn't it?
Richard H. Markowitz: Statute uses the term wages, sir. And wages is defined as compensation due to employees for labor performed.
William J. Brennan, Jr.: Well tell me, Mr. Markowitz. I think I am correct, am I not? That sometimes, negotiations of this kind will result in agreements by the employer to provide at his expense only group insurance. And suppose in the event of bankruptcy, there's -- owing premiums on that group insurance to the insurance company.Doesn't your reasoning suggest that the premiums unpaid then constitute wages for the purposes of -- of this section?
Richard H. Markowitz: Yes, sir. It does. And I -- I would go further and point out the -- it seems to me that the -- the fact that the Government's position does not withstand logical analysis. Because suppose we take this 5 cents per hour that the employer and the union have negotiated to be contributed to the collective bargaining agreement. Now, the Government says, “When you take this 5 cents per hour, you pay it directly to the welfare fund. It's not wages, it's not entitled the priority.” But suppose that the 5 cents per hour were paid directly to the employee who then signed an authorization and said, “Please pay 5 cents per hour to the welfare fund or to the insurance company or whatever the direction in order to obtain the same benefits.” Now, the Government says in the -- the Ross case in California and the Second Circuit case which the Government supports all say that this is entitled a priority, this is wages. And the analogy goes even further because in this case, we have a -- a direct proof, the record shows, that this welfare fund contribution is a direct substitute for sick leave which is direct payment to employees. The employees at these establishments enjoy seven days sick leave per year and the collective bargaining agreement on page -- on page 29 points out that the article as to welfare plan shall be operative only in the event that -- or because of the fact that the sick leave provisions have been given up. So the employ --
Hugo L. Black: I beg your pardon.
Richard H. Markowitz: Excuse me.
Hugo L. Black: I think it's --
Richard H. Markowitz: The employees have given up their right to receive sick leave directly in return for the employer contribution to the welfare fund.
Felix Frankfurter: And you (Inaudible) would be logical, can be logical in the sense that abrstractly logical. Take -- take the reason settlement and deliver a man in New York, they wanted to have some extra holiday instead of extra money.
Richard H. Markowitz: Yes, sir.
Felix Frankfurter: Now, can you translate the value of those extra holidays in dollars and cents --
Richard H. Markowitz: Yes, sir.
Felix Frankfurter: -- they just want to be?
Richard H. Markowitz: Yes, sir, directly.
Felix Frankfurter: Can you?
Richard H. Markowitz: And it's done consistently by employers in collective bargaining.
Felix Frankfurter: I -- I mean, but -- if it is done if they figure it out, but they say, “We just want Columbus day and Kosciusko day and so on.” And that's translated into dollars and cents?
Richard H. Markowitz: Yes, sir. And -- and that's their right to -- to desire that amount in terms of a fringe benefit. Now, suppose the employer went bankrupt and did not pay the holiday pay. I think that clearly, there'd be no question for -- to that holiday pay.
Felix Frankfurter: Yes, if he -- if he assured it is to be paid. If you -- if he goes bankcrupt and then he owes them for -- that's not -- that's true. But suppose it's just a holiday of his own, they want more holidays.
Richard H. Markowitz: Well they have a right to ask that just as they ask for more vacation.
Felix Frankfurter: Yes, but would it then translate the value of that holiday for which the employer doesn't pay?
Richard H. Markowitz: The employer does pay, sir because it's a paid holiday. When you talk about holidays under a collective --
Felix Frankfurter: I mean, and --
Richard H. Markowitz: -- the employer pays.
Felix Frankfurter: I knew some holidays that are not paid.
Richard H. Markowitz: Well, I don't --
Felix Frankfurter: They were --
Richard H. Markowitz: -- I don't know of any such holidays -- [Laughs]
Felix Frankfurter: Do they want --
Richard H. Markowitz: -- that are not paid, sir in collective bargaining.
Felix Frankfurter: They want -- they want to be free on certain days. You can take some holidays from the Government and not be paid for it.
Richard H. Markowitz: While you -- that that maybe where the sick leave. I dont know that -- that example exist in -- in collective bargaining relationships, sir. When -- you have holidays, they are paid for by the employer and represent a cost to the employer.
Potter Stewart: No, what I'm talking about -- taking an equivalent example would be shorter working hours, wouldn't it be?
Richard H. Markowitz: Yes, sir. Where -- which would increase the hourly rate that which they'd take home.
Potter Stewart: Which you might make through the necessity of more employees, doesn't it?
Richard H. Markowitz: Yes.
Potter Stewart: For example the --
Richard H. Markowitz: Yes.
Potter Stewart: I don't know anything about except from what I read from papers but the airplane pilots want a maximum of 75 hours a month instead of 85, which would mean that perhaps hiring more pilots. But that wouldn't increase the -- it would be monetarily measurable from the point of view of the employer, but it would not increase --
Richard H. Markowitz: Oh, yes.
Potter Stewart: -- be measurable from the point of view of the -- it wouldn't be wages to the employee, would it?
Richard H. Markowitz: Well, decreased working hours --
Potter Stewart: That increases.
Richard H. Markowitz: -- can't be compensated except in the increase in the hourly rate to the employer for the time which is worth, assuming the same take home pay is involved.
Potter Stewart: That's Mr. Justice Frankfurter's example really in -- on paid holidays --
Richard H. Markowitz: Well, there's no -- there's no --
Potter Stewart: -- in short, of working hours.
Richard H. Markowitz: Well, there's no compensation I suppose that can be given for a holiday which is not paid for. But then actually, it's -- it's not paid for so there's no pay involved in it.
Felix Frankfurter: But there's benefit involved?
Richard H. Markowitz: Well, I don't know that there's benefit sir if there's no pay.
William J. Brennan, Jr.: Why would this --
Richard H. Markowitz: But --
William J. Brennan, Jr.: I think there are a number of employers who provide recreational facilities in camps, in that sort of thing for their employees that the employees use without cost to themselves but the expense of the employer. Suppose in such circumstances, an employer goes bankrupt and owes the butchers, the bakers, the coalman and all the others who have serviced that facility. Do the claims of those people come within the category of wages for the purposes of fairness?
Richard H. Markowitz: I don't think so, sir. It seems to me, they are normal business claims and as a general -- their -- their debtor-creditor relationships.
William J. Brennan, Jr.: Well, I -- I'm thinking -- thinking that the --
Richard H. Markowitz: They're not -- they're not -- they don't arise out of the employer-employee relationships.
William J. Brennan, Jr.: Well, I'm suggesting they do.
Richard H. Markowitz: There's no relation to compensation for services rendered.
William J. Brennan, Jr.: I'm suggesting they do. That the employer provides them in lieu of higher wages than otherwise.
Felix Frankfurter: For the men themselves.
Richard H. Markowitz: Well, yes. But -- but they aren't -- it -- it is true that they maybe or I -- I think I misunderstood your question for which -- I am sorry. It is true certainly that the employer provides them that their part in a sense of compensation, although that -- although they don't -- there's no direct benefit to the employee derived from this form of compensation so to speak. They're -- they're more or less of an attribute, more than -- more perhaps in the form of compensation, I think.
Hugo L. Black: Suppose he gets so much?
Richard H. Markowitz: Well, that's a form of compensation, certainly. And -- and it's computed actually for income tax purposes, particulary in the restaurant industry, if Your Honor please.
Tom C. Clark: But he was the caterer. He was bankrupt and he was a caterer to that (Inaudible) lunch, would that be what it is?
Richard H. Markowitz: The -- if the employee, he also cater -- I suspect not, because that's not -- that's not part of the compensation of the employee. If the employee has already eaten a lunch, he's gotten a compensation.
Tom C. Clark: You think [Laughs]
Richard H. Markowitz: Now (Inaudible) --
Tom C. Clark: -- they included on the compensation (Inaudible)
Richard H. Markowitz: Well, I just -- there's no question but that compensation may achieve many forms and can perhaps be expanded. But it seems to me that where the Bankruptcy Act talks about wages due to workmen and that with the term wages, while certainly it means compensation. I think it means in terms of employer cost for labor performed. Now, the Internal Revenue Code which Mr. Davis mentioned and a number of other taxing statutes all specifically accept wages from the definition of income. And we contend that this doesn't show that these contributions are not -- weigh also specifically accept -- excuse me -- welfare fund contributions from the definition of income. So that an employee is not taxed for the benefit that he receives by virtue of the employer contribution to the welfare fund. Now, this shows it seems to us, number one, a recognition by Congress that where the exception not made, this welfare fund contributions would be income, would be wages to the employee. But the need for a specific exception from the definition of income shows that -- shows the Congressional recognition of the fact that otherwise, they would be interpreted to be wages. And in fact, the -- the congressional purpose of benefiting welfare funds by encouraging contributions is to be found in this exception in the Internal Revenue Code, the Social Security Act nor the other taxing statutes. And if we take this 5 cents which I mentioned before and pay it directly to the employee and have him assign it to the welfare fund or have it -- have him assign it to the insurance company or to the welfare fund where the Government says, “This is entitled a priority,” he there has to pay taxes on that money because it's paid to him. But if it's paid directly by the employer to the welfare fund there is no tax on it.
Felix Frankfurter: I suggest, it merely showed the Congress in the great enactments have addressed itself directly to that question, and you're trying to prove it here argumentatively.
Richard H. Markowitz: Well, by analogy perhaps except in the recent welfare fund and Pension Fund Disclosure Act which was passed and approved last August, the legislative history of that statute shows without a doubt that Congress recognized that welfare fund contributions are part of the compensation to employees that they are part of the wages which employees earned. And they're earned by employees by virtue of their labor. Now, I cited the -- the Senate Committee reports in our brief and there's no sense repeating them here. I would like to call the Court's attention to the Carter case which we think is most important and in which we think the analysis and the rationale of the Court clearly points the way to defining these welfare fund contributions as wages. In the Carter case, there was a collective bargaining relationship obligating the employer to make a welfare fund contribution. And the Miller Act under which that case arose provided that a contractor who engages in construction work for the Government must file a bond guaranteeing to labor and material men, all sums justly due to them. Now, the employer did not make his welfare fund contributions and the trustees of the welfare fund brought suit against the bonding company, against the surety, saying that you're responsible for this welfare fund contributions. And the bonding company defended on the ground that these aren't sums justly to the employees who performed the work. And the both -- this Court reversed both the District Court and the Court of Appeals and said that the trustees in the welfare fund stand in the shoes of the employees who performed labor to receive these contributions. And the trustees to the welfare fund have the right to collect these benefits because they are in a sense, although perhaps not the formal or technical assignees to the employees, they are -- they stand in the shoes of the -- the exact phrased used. And they -- the - -the trustees, the welfare fund have as much right to receive these benefits as the employees did to receive their wages in cash. Now, I believe that contrary to the Government's position, the original purpose of the wage priority is fulfilled by granting a priority to these welfare fund contriubutions because the very purpose of these contributions is to give protection to the employee against illness, accident, hospitalization, not only of himself but also of his family in a time when he most needs it. Because certainly, when illness strikes at times -- at time of unemployment, that certainly is when the benefit is most needed and there is a direct benefit to the employee, because of the contribution.
Potter Stewart: Suppose the (Inaudible) but there's no indication, is there, in this record as to how many beneficiaries they were of this welfare fund and how many employees of this bankcrupt if there are?
Richard H. Markowitz: I don't -- I don't think the record gives any indication, sir, of that fact. As a matter of fact, that this covers just the restaurants in Philadelphia. It does not cover the Bellevue Stratford (Voice Overlap) --
Potter Stewart: But there are many, many restaurants in Philadelphia.
Richard H. Markowitz: Pardon?
Potter Stewart: There are good many of those in Philadelphia.
Richard H. Markowitz: Yes, sir, there are.
Potter Stewart: And -- so presumably, the -- the benefit accruing to the former employees of this bankrupt corporaton would be diluted by maybe one to ten or (Voice Overlap) --
Richard H. Markowitz: Well there's no question about it because the eligibility rules of the welfare fund may -- may make the determination in the receipt of benefits dependent upon the receipt of contributions for so many hours of employment. And if those contributions aren't received, an employee may not be eligible to receive benefits unless if they aren't granted a priority, he may not be entitled to the funds which the welfare fund would pay him in case of accident, illness, hospitalization and so on. And -- and this Court recognized that fact in the Carter case where in a footnote it's pointed out, that eligibility may depend upon receipt of contributions for certain number of hours work. So that essentially and basically, the position of the welfare funds here is that the contributions are part of the collective bargaining package. They're part of the wage picture. They can't be divorced from the labor rendered in the services performed by employees, and they are just as much wages within the meaning of the Bankruptcy Act as vacation pay or as the money actually received in the pocket of the employee pursuant to his daily rate. Thank you.
Earl Warren: Mr. Davis.
John F . Davis: Mr. Chief Justice, and may -- if the Court please. I made a mistatement in my reply to Mr. Justice Whittaker with respect to the Fair Labor Standards Act. The Fair Labor Standards Act provides that this type of payment shall not be considered in the regular wage. It makes a specific statutory provision to that effect rather than it being a matter of interpretation and regulation. And the citation of that is 41 U.S.C. Section 35. I made a -- a list of the kind of benefits which employers give sometimes which are growing up today in which have more or less comparable to what we have here. And it -- I think it's the -- it shows what kind of things we're getting into if we consider all this kind of thing wages. In this particular case, they bargained for one free meal a day. When they -- when they were an employee in the restaurant with a specific provision that this would not be taxable to the employee as income. They bargained for locker space in this particular thing and frequently, they are these provisions with respect to -- to working conditions.
William J. Brennan, Jr.: Well, this is the part (Inaudible) those things are paid whether or not the expense of supplying it. In fact, the employees have receipts.
John F . Davis: That's right.
William J. Brennan, Jr.: Into the locker then eat the meals?
John F . Davis: That -- that is right.
William J. Brennan, Jr.: 4(Inaudible)
John F . Davis: Yes of course. The -- but when you come to considering whether or not these things are wages not in this sense but in the general sense of wages for the Fair Labors Standards Act, for the other purposes. They're not generally treated as wages, they are fringed benefits. They go beyond what is ordinarily wages. We don't -- I don't think we really have any question of the priority under the Bankruptcy Act with respect to these things.
William J. Brennan, Jr.: Well, I think --
Felix Frankfurter: What do you say to the suggestion -- the sole argument is that wages must be read to equal compensation in the priority statute. And substitue strike out wages, according to the first compensation because wages has now had -- has received a judicial gloss. That's what wages mean.
John F . Davis: Well, I don't think it has received that gloss. I think that he uses compensation, really to mean the benefits by which an employee -- employees bargain. And in a sense, that is a compensation but I don't think that that's necessarily the same as wages, that's really the question which is before us. Now, just one other thing, if the Court is interested in what the nature of this type of plan is. What the benefits are, the United States Department of Labor Bureau of Labor Statistics has put out a bulletin, Bulletin Number 1221 which I don't think is cited in any of our -- in our briefs which gives a description of the type of insurance plans which are covered in these collective bargaining agreements. I can leave this copy of it with the -- with the clerk or the marshall if it would be helpful.
William J. Brennan, Jr.: Bulletin Number 1211?
John F . Davis: 1221 -- 1221, Bulletin Number 1221.
Earl Warren: Very well, Mr. Davis. We'll adjourn now.
John F . Davis: Well, thank you.


Warren E. Burger: We'll hear arguments next in Hudson against Palmer and the consolidated case. Mr. Broaddus, you may proceed when you are ready.
William G. Broaddus: Mr. Chief Justice, and may it please the Court: The two petitions in this case bring before this Court two important constitutional issues pertaining to prison administration. The first issue, that presented by the Petitioner, is whether a prison inmate has some reasonable and legitimate expectation of privacy while in prison so that he is entitled to the protection of the Fourth Amendment and Fourteenth Amendments against allegedly unreasonable searches. The second issue, that presented by the Cross Petitioner, is whether a prison inmate whose property has been destroyed by the random unauthorized but unanticipated act of a guard has in law been deprived of property without due process when the state provides adequate post-deprivation remedies which are adequate to make the inmate whole. These issues arose out of an incident which occurred at Bland Correctional Institution in September, 1981. Bland is a state run penal facility which houses 450 felons. According to the inmate's complaint the prison guard conducted a shakedown, that is, a search of his locker but the shakedown was not routine and was conducted for purposes of harassment. He further alleged that the guard destroyed some of his property. Although the guard denied these allegations the District Court accepted them as true for purposes of ruling upon the guard's motion for summary judgment. The trial court concluded that the allegations of deprivation of property did not constitute a taking without due process because of this Court's reasoning in the case of Parratt v. Taylor. The trial court also concluded that the allegations of harassment did not rise to the level of a constitutional violation. The Court of Appeals affirmed both of those rulings. The Court of Appeals found that the inmate had some minimal right of privacy entitled to protection under the Fourteenth Amendment, and the Court of Appeals ruled that a guard could not search unless there was an established program or policy for random searches or in the alternative that the guard had some reasonable basis for believing that the prisoner possessed contraband. The Petitioner submits the Court of Appeals erred with respect to this conclusion, and I would like first to address this issue. It is clear from this Court's prior opinions that an iron curtain does not exist between the Constitution and our nation's prison. It is equally clear, however, that prisoners suffer a substantial reduction and even loss in many rights and privileges. In each case before the Court determines that an inmate possesses a right it carefully weighs that claim in light of the acute need of prison administration for prison security because that is the paramount need which prison administration is charged with. Secondarily, it will weigh the claim in light of the effect upon the prison inmate. With respect to the claim that a prison inmate possesses a right of privacy this Court is well aware from its many cases that prisons are dangerous places. They are used to house dangerous men. Inmates may seek to assault, to brutalize other inmates. They may seek to assault guards. They may seek to escape. The introduction of drugs and weapons into this situation can only exacerbate an already dangerous place and situation.
John Paul Stevens: General Broaddus, can I ask you a question about the scope of your submission?
William G. Broaddus: Yes, sir.
John Paul Stevens: As I understood your opening statement you were suggesting that the Fourth Amendment has no application to searches in the prison. You also say that there is no protection for the prisoner against seizures in searches. I notice the complaint alleges that the officer shook down my locker and destroyed a lot of my property, that is, legal materials, letters and other personal property. It is not so much the search as the destruction of property. Is there a protection against unreasonable seizures... That is what I am asking... as opposed to searches.
William G. Broaddus: Justice Stevens, with respect to the destruction of property aspect, that, of course, will be controlled by Parrat v. Taylor. With respect to the seizure of property we would submit that because there is no legitimate expectation or right of privacy that the Fourth Amendment does not apply and that, therefore, a seizure would not be controlled by the Fourth Amendment but by some other aspect, if at all, such as the taking of property without due process.
William H. Rehnquist: Mr. Broaddus, I suppose that if I am a policeman and you are a suspect I may have a probable cause that would justify my searching for and seizing a gold ring in your possession that is maybe worth $20,000, but the fact I may seize it in the Fourth Amendment sense does not justify me in keeping it.
William G. Broaddus: That is correct.
William H. Rehnquist: That is what you meant by the Parrat rather than Fourth Amendment being applicable to the property destruction?
William G. Broaddus: Yes, sir. Of course, in Virginia there would be many other ways in which the inmate might recover that particular property, through the inmate grievance procedure or through state actions. So he is certainly not without remedies to recover in that situation. In order to minimize the problems which are brought about by the introduction of drugs and weapons into prisons official surveillance is and as this Court has noted traditionally always has been the order of the day in prisons. If one follows the analysis which this Court has established for Fourth Amendment cases which emanated out of Katz and applied more recently in United States versus Knox and before that in Smith v. Maryland, one can only conclude that a prisoner does not have a legitimate expectation of privacy in prison. First, does the prisoner himself actually expect privacy? In this particular situation we know from the prisoner's affidavit that he and I quote, "realizes routine shakedowns are necessary to properly run a prison. " So he himself had no actual expectation of privacy, but even if he did certainly society is not prepared to legitimize such an expectation because society has recognized the paramount needs of prison administrators to search, to seek out weapons, to seek out drugs and contraband. Both society and inmates want prisons to be a safe place, but they can only be safe if weapons and drugs and contraband are kept out. So we would contend that because the prisoner does not expect privacy and because society is not prepared and has not in any way legitimized an expectation that he has no basis for claiming privacy entitled to Fourth Amendment protection.
Byron R. White: What if in a shakedown which you say is perfectly permissible, a random shakedown, suppose it is and the officer enters his cell and is searching around and he just picks up a radio and carries it out. He doesn't destroy it, he just... You say the Fourth Amendment protection of effects just does not apply in a prison?
William G. Broaddus: We would take the position, Justice White, that it does not apply. Of course, that is not the case here. That was simply an allegation of destruction of property without due process--
Byron R. White: I know, but there was a seizure of it. There is no question that there was a seizure, and I guess as the case comes to us we assume that it was destroyed.
William G. Broaddus: --That is the allegation, yes, sir, which was--
Byron R. White: At least it was seized. You say that the prison authorities are completely free from any Fourth Amendment restraints from seizing a prisoner's effects even if they are not contraband or even if their possession is wholly consistent with prison rules.
William G. Broaddus: --Under the Fourth Amendment--
Byron R. White: Is that right?
William G. Broaddus: --Under the Fourth Amendment, yes, sir, we would. I think that the Fourth Amendment right of freedom from seizures must be something different and separate and apart from the taking of property without due process.
Byron R. White: But it certainly is a separate question from the search.
William G. Broaddus: Yes, sir. In, for example, Delaware v. Prouse which could be analyzed as a seizure case the Court was concerned with the intrusion upon the driver of a motor vehicle, his freedom from anxiety, the limitation upon his movement and what not. Those concerns simply are not present in prisons.
Byron R. White: That may be. That is the argument going to the search, the shakedown.
William G. Broaddus: Yes, sir.
John Paul Stevens: But even on the search supposing you had a prison system whereby they censored all the incoming mail so it was all read before the prisoner was permitted to have it and he gets his mail. Could a guard go in and say, "I think I'll read your mail? "
William G. Broaddus: There would be no Fourth Amendment prohibition in that situation.
John Paul Stevens: There would be no prohibition at all then would there?
William G. Broaddus: Well, if that were to constitute abuse then under the Virginia regulations which prohibit guards from abusing inmates the inmate would have redress under the inmate grievance procedure which has been approved by the Attorney General of the United States. So he would have redress there, but he would not have it under the Fourth Amendment of the Constitution.
Sandra Day O'Connor: Just what remedies are available under state law in Virginia for redressing the property deprivations, just the grievance procedure?
William G. Broaddus: Justice O'Connor, it would be far more than that. The grievance procedure would be but the first which would be available. Also in state courts an inmate may sue in detinue or he may sue in conversion and recover damages for destruction of property or recover the property itself in the state court.
Sandra Day O'Connor: If the Court were to agree with your view is there any danger that a state might alter its grievance procedure--
William G. Broaddus: I would certainly--
Sandra Day O'Connor: --So that some of the same protections would not be available?
William G. Broaddus: --I would certainly think not, Justice O'Connor. If anything we would insure that that grievance procedure operates the way it is intended to operate because it benefits not only Virginia but also federal courts and--
William J. Brennan, Jr.: What is the remedy if he prevails in a grievance procedure?
William G. Broaddus: --Under the grievance procedure he would be entitled either to recover the property and have it returned to him assuming it is still in existence or to be made whole through payment of the value of the property. If the radio could be valued he would be made whole by payment of the value of the radio.
William J. Brennan, Jr.: Payments out of state funds?
William G. Broaddus: Yes, sir. Funds are made available to the various institutions, and that is the source of the payment.
William J. Brennan, Jr.: Who is it that makes the final judgment in the grievance procedure?
William G. Broaddus: That ultimately goes up... It is a hierarchy level, if you will, sir, and depending upon the nature of the claim it may be the superintendent of the particular facility or it may be the regional superintendent who has control of many various facilities or it might be the deputy director of the overall Department of Corrections. If there is no right of privacy under the Fourth Amendment then surely there must be no right of privacy in a prison inmate--
William J. Brennan, Jr.: Forgive my interrupting you again. I gather there is no judicial review?
William G. Broaddus: --Under the grievance procedure?
William J. Brennan, Jr.: Yes.
William G. Broaddus: That is correct, sir. There is none. We submit that there is no right of privacy which a prison inmate possesses under the Fourteenth Amendment. To suggest that an inmate has an intimate right of privacy in his locker comparable to a woman's fundamental privacy to an abortion or a couple's right of privacy to practice birth control simply is novel at best and to find such in a prison setting is simply untenable. The Court of Appeals' approach seemed to be calculated to give a little bit to the prison administrator and something to the prison inmate as well. We suggest that that approach not only splits the baby but is simply unworkable. Under the Court of Appeals' approach the prison inmate would not have any greater enhanced freedom from searches. He would still be subject to random searches, but the Court of Appeals' approach would certainly limit the capability of the guard to make a search in a meaningful manner such that it would deter the introduction to prisons of weapons and drugs and other contraband. Now the unreasonableness of the Court of Appeals' approach is demonstrated we believe by a 1976 University of Virginia Law Review article by Gianelli and Galligan which was cited with approval by the court below. That article suggested that a plan should be promulgated on constitutional grounds before prison guards may search. It would require limitations upon the frequency and the intensity of the search. It would suggest that if a guard was searching for a knife that he would be able to search only in those places where a knife might be found, and once the knife was found the search would have to cease. We submit that such an approach is unreasonable and unworkable. It simply tranforms the Fourth Amendment into a font of tort law without any privacy interest being present to be implicated. Such an approach would simply increase federal litigation without substantially advancing the rights of prison inmates. As I have indicated we do not suggest that the prisoner is without any protection whatsoever. We do contend, however, that he may not wrap himself in the Fourth Amendment and use the Fourth Amendment to erect a wall between his activities and necessary security activities undertaken to a properly run prison. We urge this Court to hold that the Fourth Amendment is not applicable in a prison. If the Court rejects this position then we would further urge that it should reject the requirement of the Court of Appeals that random searches can be conducted only pursuant to an established program or policy for such. We would urge this Court to adopt an approach which would say that all prison searches for security purposes undertaken in a reasonable manner are per se constitutional under the reasonableness clause of th Fourth Amendment. That approach would be comparable to what this Court has utilized in the 1972 case of United States v. Biswolf which is not cited in our brief but one in which the Court upheld warrantless administrative searches in the gun industry even though probable cause and reasonable suspicion were not present and there was no plan for such searches. Finally on this point we would also urge the Court to clarify that the normal rules of proof and going forward in civil cases should control a 1983 claim such as this and not the burden shifting approach which the Court of Appeals seemed to adopt in what be more appropriate in criminal suppression motions in criminal cases. I would like to turn now to a second issue, that of the Parrat v. Taylor. The Petitioner submits that the line of cases beginning with Paul v. Davis and going through Zimmerman Brush do not depend upon the state of mind of the state actor or the state public official charged with the wrongful conduct. Indeed Paul v. Davis, Ingraham v. Wright, and McCollan v. Baker, the action was at least arguably intentionally undertaken. The analysis we submit must depend instead upon whether the state was logically able to anticipate the wrongful act. If the state was not able to anticipate the wrongful act then it was not in a position to provide in a meaningful manner a predeprivation hearing. In that situation if it does go forward and provide in a meaningful manner a post-deprivation remedy which is capable of making the victim of the tort whole under Parrat v. Taylor, the person has not been deprived of procedural due process and has not lost property without due process of law. In this situation we have only an allegation of random conduct which was not sanctioned or condoned by the state. It was not pursuant to an official scheme or plan. Accordingly the state action is not complete, and because the state action was not complete and the state has provided meaningful remedies there has not been a taking of property without due process of law. In the reply brief the Cross Petitioner suggests that the Petitioner seeks to constitutionalize the deprivation of property without our argument. If the state condoned the action here then perhaps it would fall under Zimmerman Brush, but that is not the case. As I have indicated we have only the random isolated single allegation of wrongful conduct depriving someone of property, and due process has been provided. So the deprivation was not without due process of law. In conclusion, we would ask this Court to reverse the judgment of the Court of Appeals so that the matter may be sent back to the District Court and have that decision upheld dismissing the complaint.
Warren E. Burger: What is the grievance procedure that was referred to, the procedure on which a prisoner can call for some kind of remedy?
William G. Broaddus: Mr. Chief Justice, at the time of this particular incident we had a grievance procedure in place which was similar to what is presently in place. It is not identical to the one that is presently in place. The one that is presently in place now has been approved by the Attorney General of the United States under the Kripp Act, 42 U.S.C. 1997 I believe, and provides to the inmate the opportunity to file complaints with respect to the manner in which the prison is run and to seek redress of any grievance that he might have through that procedure and provided an opportunity for a meaningful hearing and depending upon the nature of the claim he may indeed have an opportunity to be made whole.
Warren E. Burger: Very well. We will resume here at 1 o'clock. Ms. Wyatt, I think you may proceed whenever you are ready.
Deborah C. Wyatt: Mr. Chief Justice, and may it please the Court: This case is here on summary judgment from a suit against a guard himself who conducted what has been described as a ransacking search of my client's locker and destruction of his property for harassment purposes. It presents two questions. First, whether there is now to be drawn around prison walls an iron curtain for purposes of the Fourth Amendment.
Warren E. Burger: What would you say if in searching the locker or the cell of the prisoner they found a pistol or narcotics in an examination and seizure of these things without a warrant? What would you say about that?
Deborah C. Wyatt: I do not believe that under the analysis of search and seizures and prisons that a warrant is required, but I think we still might focus on the justification. If somebody went in to search to harass I think it would still be a harassing search and seizure--
Warren E. Burger: Would it be admissible against him in evidence?
Deborah C. Wyatt: --The pistol? I think if it violated the Fourth Amendment as the law stands now it would not be admissible against him.
Warren E. Burger: Would not be admissible? Is that your answer?
Deborah C. Wyatt: Yes, Your Honor. It could be confiscated. Obviously it could be, but--
Warren E. Burger: How about heroin, 14 packages of heroin in small packages for delivery?
Deborah C. Wyatt: --I think all of that would be analyzed the same. If the search is a legitimate search, and that is quite broad in a prison context. You can search randomly if that is your pattern in the prison. You can search an individual if you have a particular suspicion, and under either of those circumstances if you find the heroin, if you find the gun they are, of course, admissible because that is a reasonable search and seizure under prison circumstances. But if you search to harass for no other purpose but to harass then you have violated the Fourth Amendment, and therefore the suppression issues would Apply.
William H. Rehnquist: What do you take the search to harass to mean?
Deborah C. Wyatt: A search for no legitimate purpose at all.
William H. Rehnquist: Not looking for anything in effect?
Deborah C. Wyatt: That is correct. Not expecting to find, not looking for contraband, not even doing this as a deterrent. I think prisons would have the right to have a search policy as a deterrent, random searches, and I believe the Fourth Circuit recognized that and said that you could have a system of random cell searches but there must be a system pursuant to which the individual is being searched. If you did it--
William H. Rehnquist: Now there certainly is a middle ground between a system for searching, a prescribed set of rules, and the harassing search that you say is a search simply to no purpose whatever. I take then in that case a guard would simply figure he had nothing else to do and would just want to wander through people's cells.
Deborah C. Wyatt: --I believe if there is no legitimate purpose it would be analyzed as unreasonable, and I think in a prison situation we have obviously a very broad standard of reasonableness.
William H. Rehnquist: Are harassing and no legitimate purpose equivalent in the way you are using the terms?
Deborah C. Wyatt: Yes, Your Honor. It would be the same. Harrassing as I use it means not for a legitimate purpose. If you have a suspicion that someone has contraband even if you are lethally searching him for that contraband that is not for a harassment purpose. The way I am using it is an abusive purpose. You are picking on someone in your custody. You are not doing it for any legitimate prison security or administrative purpose. That is what we have on summary judgment in this case.
William H. Rehnquist: So that is apart from any requirement that there be rules or anything else? I take it your view is the Fourth Circuit could be affirmed without laying down any requirement that there be rules for Fourth Amendment searches in prisons.
Deborah C. Wyatt: Absolutely. In fact the question presented is simply whether the Fourth Amendment applies within prison, and that is what the Fourth Circuit held. The Fourth Circuit did proceed to address such issues as burden of proof and, of course, Petitioner has argued that that has been shifted and shifted incorrectly. I read the Fourth Circuit's opinion differently, and I read it to be that a prisoner must allege an unreasonable search and seizure which is going to be a very small range of searches or seizures in a prison setting that will be unreasonable. Once he has alleged that then the state can justify it if they do honestly justify it by saying that we have a pattern of random searches or I had a particular suspicion about this individual. But to pick on the person, to do it abusively for only the purpose of harassment would be I think a classic case of an unreasonable search and seizure and perhaps one of the only cases of an unreasonable search and seizure within a prison setting. I believe that is why Petitioner is retreated to a bright line request for this Court. I certainly suspect that Petitioner is not in a position to request a bright line because Petitioner knew that what Petitioner was doing was wrong, but even if this Court felt that a bright line was needed I can suggest another line that I think is equally bright in a prison setting which is that it is unconstitutional to search and seize for the purpose of harassment. I think that Petitioner's position on the Fourth Amendment is unwarranted. It is unsound, and I think that for that reason the Court should decline the invitation to sweep away this constitutional right any more broadly than necessary. Again, the only question that has been framed for this Court is whether the Fourth Amendment applies in prisons, and indeed it should even though that may only provide limited protection to a prisoner. With regard to the second question in this case, that is, the due process issue and the question of whether a due process violation, whether an intentional abusive deprivation can ever violate the due process clause when it violates a state's own laws which is to say when a state--
Warren E. Burger: I am not sure, Ms. Wyatt, I observe that in your cross petition you stated the question only in terms of the due process violation, not a Fourth Amendment.
Deborah C. Wyatt: --That is correct, Your Honor, in my cross petition. The Fourth Amendment issue was raised in the original petition by the Attorney General's Office, and I am addressing now the issue I raised which is the due process, whether an intentional, abusive deprivation is totally unprotected by the due process clause. I think Petitioner who alleged that it does not has totally missed a major distinction in this case which is a distinction between suits against higher supervisory officials or otherwise against general policies or procedures and challenges directly to individuals who themselves have abused. In the former case understandably the analysis is going to turn on whether a wrongful deprivation was pursuant to that policy or was instead a random act not authorized by the procedure, a fluke, or even an abuse under a procedure where the risk of abuse is low as in Ingraham. But that is not this case, and that analysis does not apply to this case. This case is a challenge directly to the individual who abused, and in that sense this case is governed by Screws v. United States and Monroe v. Pape. Both of those cases involved challenges directly to the officials who abused, not to supervisory officials. In both of those cases the Court said that it is no defense that the act is unauthorized. It is no defense that it is unauthorized even if that means that a state then provides remedies and that, therefore, one might be able to receive compensation in state courts. This was rejected in Screws v. United States where the Court cleanly held under a challenge to the individual official that that intentional wrongful deprivation violated the due process clause immediately and state court remedies are completely and totally irrelevant.
John Paul Stevens: Is there not a difference between the facts in Screws and the facts here, though?
Deborah C. Wyatt: There is a difference. That was a criminal prosecution among--
John Paul Stevens: A different kind of deprivation, too, was it not?
Deborah C. Wyatt: --That was a life deprivation.
John Paul Stevens: It was all completed before there was any possibility of a hearing.
Deborah C. Wyatt: I think there could always be a wrongful death action, for example, in state court.
John Paul Stevens: Well, would that make the person who suffered the deprivation of life whole? You cannot restore his life can you?
Deborah C. Wyatt: I think our principles of tort law except the fiction that, for example, a suit for wrongful death does make that deprivation whole, but I certainly acknowledge that that is life and that when we are looking at a procedure whether we are talking about life, liberty or property may enter a Matthews v. Eldridge analysis because that is the weight of the particular interest at stake. But this Court has never severed property off from the other rights, and the due process clause, of course, mentions them in the same breath. What Screws held was that it did not matter whether there were remedies after the fact, that the deprivation immediately at once violated the due process clause. In Monroe v. Pape, of course, we are talking about the Fourth Amendment although the Court does not focus very often and in fact I think gives only a paragraph to which particular constitutional violation was at issue. Another factor that both those cases made very clear is the fact that abuse of power is really at the heart of the Fourteenth Amendment.
Warren E. Burger: I am a little confused, Ms. Wyatt. You probably can clarify it very quickly. I can understand the Attorney General's Office in Virginia appearing in the case because it is one of their guards, one of their attendants that is involved, but is the state as such a party to the litigation?
Deborah C. Wyatt: Absolutely not, Your Honor.
Warren E. Burger: What is the source of authority for the court, any court, to lay down any regulations about random searches or any other kind of searches in a private law suit between a prisoner and a guard?
Deborah C. Wyatt: Your Honor, I think that that points out a very important distinction in this case. This case is not against a prison warden as in Parrat. It is against the guard himself. As in Monroe v. Pape there was an action against the officials themselves, but the Court did not find it difficult in that case to say the Fourth Amendment had been violated.
Warren E. Burger: Can the Fourth Amendment be violated by private parties?
Deborah C. Wyatt: This is not a private party, Your Honor, and that is one thing that Screws and Monroe both made clear. He acted without authority, but he was--
Warren E. Burger: I was taking you up on your statement that this was private.
Deborah C. Wyatt: --I did not mean to--
Warren E. Burger: A private suit.
Deborah C. Wyatt: --I never meant to indicate it is a private party, Your Honor. He sued the guard. He sued the official who abused, but not the people who should have controlled the guard, not higher supervisory officials. He sued the guard, however, who quite clearly under Screws and Monroe was acting under pretense of law and would be a proper defendant under 1983 from that standpoint. To the extent that he violated either the Fourth Amendment or the due process clause I think both are proper for adjudication.
William H. Rehnquist: Your claim has to be that the state acting through this guard deprived your client of his property without due process of law. It is not a... The Constitution does not say no prison guard shall deprive a person of property. It says no state.
Deborah C. Wyatt: Correct, Your Honor. That is exactly why I say that this case is mostly governed by Screws and Monroe because that argument was presented in both of those cases, and in both of those cases as in United States v. Classic before the courted stated that the misuse of state power, the intentional misuse of state power can be attributable to the state itself in the sense of the--
William H. Rehnquist: I think the law on that is quite clear, but I think the Parrat case says the final judgment on the state's deprivation of due process is not to be pronounced solely on the basis of the action of a guard or a warden. It is what opportunity the state offers to alleviate the claimed deprivation.
Deborah C. Wyatt: --Your Honor, if this were a Parrat case I think the result would be the same. If this were a case suing the prison warden for having allowed this prison guard to do this then we would look at how frequently did the guard do this, did they know that the guard was going to do this, or was this a random, unauthorized, unpredictable act by the guard under otherwise normal procedures. But that is not this case. This case is a suit against the fellow who did it. This is a suit against the abusive guard himself. The only cases that are that are very notable which present such a challenge are Screws and Monroe, and the analysis is not, therefore, the risk of error. It is not, therefore, whether this was random, an unauthorized and uncontrollable by the state. Once you are suing the guard himself who abused then you turn to Screws and Monroe when you say does it matter that it is unauthorized, if it is intentional--
William H. Rehnquist: Do you think Parrat would have come out different if the two assistant wardens or guards in the mail room had been sued rather than the warden?
Deborah C. Wyatt: --Parrat was a negligent case, and I believe if you sued an individual who had negligently lost property, and he said "Yes, I negligently lost the property. " that you would have no due process violation but you would have no due process violation because that is negligent. It is not an abuse of power. I think that when you are looking at the local level, when you are looking at the specific officer it makes all the difference in the world whether he is abusing his power and acting under pretense of law or is really involved in an automobile accident or computer error. Those are not under pretense of law.
William H. Rehnquist: Then to your mind the distinction really turns on negligence versus intent, not the superior versus the actual actor.
Deborah C. Wyatt: Your Honor, I believe it is both. As I understood your question if I were suing... If we were suing the guard himself and said, "You lost this property. " "You hit me with your police car. " and it is a negligence, not that he was trying to run him over, that would simply not be a due process violation. What we have, of course, at this level is an intentional abusive taking, but both of those situations are different from a situation where we are holding higher people to account for policies, where we are saying the procedures you have enacted do or do not have a high risk of error. In Logan there was a too high risk of error. In Ingraham there was not. There were many safeguards in Ingraham which prevented this, but in all of those cases and in fact in most of the cases that have been before this Court in due process situations we have been looking at supervisory officials for their policies and whether they allowed too many things to happen. In that context I think negligence can state a cause of action. But if we are looking to the individual himself for his own particular action I do not think due process is implicated unless we are talking about an abuse of power, and I think Screws and Monroe made it very clear that an abuse of power was the very target of the Fourteenth Amendment. If you follow Petitioner's argument an officer... We must remember that this is not just in prison settings. The due process issue is not confined to the prison setting. It applies to officers out on the street as well. If an officer can walk up to someone and grab his glasses off his face because he does not like him and grind them into the ground, Petitioner's argument would say as long as there is a state tort of conversion the victim of that abuse is confined to state court exactly as if his neighbor had done that.
Thurgood Marshall: Ms. Wyatt, on that very point is this locker in his cell?
Deborah C. Wyatt: Pardon me?
Thurgood Marshall: The locker involved in this case.
Deborah C. Wyatt: Is that his cell?
Thurgood Marshall: Was that in his cell?
Deborah C. Wyatt: Your Honor, to be candid I was a little confused from the record. I became involved in this case in the Fourth Circuit, and the references in the record refer to locker and indicate that there was a dormitory. So I am assuming from the record that the locker was within a dormitory.
Thurgood Marshall: I have great problem with the search and seizure. If these things had been laying out there would that have been a search and seizure, if they had been laying on his table, on his bed?
Deborah C. Wyatt: Your Honor--
Thurgood Marshall: Would it have been a search and seizure?
Deborah C. Wyatt: --If it were searched or seized for no legitimate purpose... Well, it would have been a search and seizure, yes. The question of whether--
Thurgood Marshall: If he just picked it up off the bed?
Deborah C. Wyatt: --Yes.
Thurgood Marshall: That would be a search and a seizure, search and a seizure?
Deborah C. Wyatt: I am not sure if it would be a search. I think if he read it it might be a search, yes.
Thurgood Marshall: How could it be a search? It is laying right there.
Deborah C. Wyatt: Is Your Honor talking about a plain view kind of exception then to a search a seizure? Perhaps then it would not be--
Thurgood Marshall: I understand your complaint that the guard mistreated this man, but I do not understand where the search and seizure comes in.
Deborah C. Wyatt: --The allegations are--
Thurgood Marshall: Your allegations do not help me. What does the evidence show?
Deborah C. Wyatt: --My understanding from the record is that there is a locker and that the guard went into that locker and as the descriptions from the affidavits indicate ransacked the locker, went through the locker. My client on summary judgment says it was for no purpose. It was not searching for contraband. It was only to harass. That to me would indicate--
Thurgood Marshall: The guard agrees to that?
Deborah C. Wyatt: --The guard, of course, denied that, but we are here on summary judgment so for purposes of this case at this point that would be taken as true. There were some affidavits filed in support of that saying, yes, he conducted a ransacking search of this man's locker. From the facts I do not believe it was in plain view. He deliberately went in there. Now if he went in for a legitimate purpose we would have a different analysis, but he went in to abuse--
Thurgood Marshall: The door could have been wide open.
Deborah C. Wyatt: --It could have been wide open, and if the regulations allow the guard to go in there--
Thurgood Marshall: How can we decide what we do not know?
Deborah C. Wyatt: --Your Honor, my--
Thurgood Marshall: Suppose I need to know to decide whether it is a search and seizure whether it was sitting out in plain view.
Deborah C. Wyatt: --The facts--
Thurgood Marshall: There is nothing in this evidence of this case to show whether it was or was not in plain view.
Deborah C. Wyatt: --There has been no indication that it was in plain view from either side.
William J. Brennan, Jr.: Is that not open? Was this not remanded for a hearing?
Deborah C. Wyatt: This was remanded on the issue of whether there could be--
William J. Brennan, Jr.: On the Fourth Amendment issue?
Deborah C. Wyatt: --On the Fourth Amendment issue.
William J. Brennan, Jr.: The things that my brother was inquiring about, would they be open to proof at the hearing?
Deborah C. Wyatt: They certainly could be. There are many issues left open to proof at the District Court level.
Thurgood Marshall: Is it or is it not, not could be.
Deborah C. Wyatt: Your Honor, the Fourth Circuit remanded primarily on the issue of whether there was a Fourth Amendment violation under the guidelines it set forth, but there are many factual matters in dispute. I do not believe it is in dispute that it was a search. Plain view was never raised by the guard. Instead he said it was a legitimate search for contraband, and my client said it was an illegitimate search for harassment purposes. I think that they both conceded then that it was a search for purposes of the Fourth Amendment, but again this will be remanded and there will be more factual evidence taken at that level. I do not know whether my client would prevail once we get back there, but here for purposes of summary judgment it was a search and it was a harassment search.
William J. Brennan, Jr.: Did you rely on Pape and Screws in the Court of Appeals on the issue you raised in your cross appeal?
Deborah C. Wyatt: I did not rely so strongly. I did urge that abuse of power was an important factor.
William J. Brennan, Jr.: I notice neither are cited nor addressed as I see it.
Deborah C. Wyatt: I believe Monroe v. Pape as I recall was cited. I did urge the distinguishing feature. There was the abuse of power.
Thurgood Marshall: You relied on Screws?
Deborah C. Wyatt: I do not recall. Perhaps I did not. Obviously if it is not cited in the Fourth Circuit level I did not.
Thurgood Marshall: I understand Screws to say that in order to deny a federal right you have to make it explicit that you are doing it for that purpose.
Deborah C. Wyatt: There is a willfulness requirement in Screws because of the criminal nature of that particular civil rights--
Thurgood Marshall: No, Screws says you have to say so.
Deborah C. Wyatt: --That the Civil Rights Act--
Thurgood Marshall: Screws says if you are an officer and you are denying a prisoner or an individual his rights you have to make it clear that you are beating him up for the sole purpose of denying him his rights.
Deborah C. Wyatt: --Your Honor, I believe--
Thurgood Marshall: Is that not what Screws said?
Deborah C. Wyatt: --I believe we have Screws although it is not life. It is property. We have at this point in this Court the facts that this was deprived... Property was destroyed for an abusive purpose only, and by abusive I mean under pretense of law but for an unauthorized or illegitimate purpose. The hypothetical I was giving I think would show that there is something inherently fundamentally unfair about an officer on the street being able... to go back to the glasses analogy... to do that and to confine somebody solely to state court.
John Paul Stevens: Why is that fundamentally unfair if he will get paid at state court the same thing he will get paid at federal court?
Deborah C. Wyatt: Because there is something different that has happened. To say that is to say that the action by the official is not different than the action by the neighbor. I think Justice Harland very well put it in his concurrence in Monroe as well as his later concurrence in Bivens that an action such as that is different in kind from an action, the same action, by a civilian.
John Paul Stevens: But the injured party gets compensated in full under the hypothesis. So I am asking why is it so obviously unfair?
Deborah C. Wyatt: I am not sure what compensated in full means. I think there is another problem, however. If it is a constitutional violation you can also sue for injunctive relief. If we are saying that this is no constitutional violation because you can get full compensation in the sate court then we are also saying you cannot get injunctive relief. The state's duty is complete upon the compensation, and the guard can keep on doing that day after day. This Court recognized earlier this year that the due process clause protects against the arbitrary use of power in Collander v. Lawson. If it protects against the arbitrary use of power certainly it protects no less against the abusive use of power.
John Paul Stevens: May I ask you another question about the Screws case? Which of the opinions in the Screws case do you primarily rely on?
Deborah C. Wyatt: I think that which makes my point most clear is obviously that of Justice Rutledge in concurrence.
John Paul Stevens: Does he refer at all to deprivations of property in that opinion do you know?
Deborah C. Wyatt: No. He does not that I know of, but I again do not know of any opinion of this Court and I would also caution the Court if we are to make a new distinction here the area of due process I do not think anyone would doubt has many complexities already. I think if we start also a new sort of layer of distinctions here between property and life and liberty it is going to be all the more confusing although it may enter the analysis when we are looking at a procedure about how much process is due and when and how under Matthews v. Eldgridge. What we have here is no process. When there is no process, when there is an abusive taking it should not matter whether it is life or liberty or this pen here. If this is my pen and an officer takes it I should not be relegated to state court to sue for its value back, and once I have done that the due process clause is silent and an officer can keep on taking that forever. I recognize that--
John Paul Stevens: Well, he cannot do that if you are right in your Fourth Amendment position.
Deborah C. Wyatt: --I think they are two entirely different guarantees.
John Paul Stevens: Is that not right? If you are correct on your Fourth Amendment submission he would not keep doing it over an over.
Deborah C. Wyatt: If this is a seizure, no, he could not because we would have a constitutional violation. But I think they are two separate ones. I think again that the due process clause itself recognizes a prohibition against arbitrary use of power, and I simply cannot believe that it any less protects against power not arbitrary but abusive. It says that an officer cannot pick on someone for no reason. Certainly it cannot say any less that someone... that an officer should be able to pick on someone for a bad reason, for an abusive reason. I think this Court has recognized in many cases that this very conduct, an abusive deprivation, is at the heart of the due process clause. It is conduct which was the target of the Fourteenth Amendment, and as Screws did hold though, yes, that was a life deprivation--
Sandra Day O'Connor: Ms. Wyatt.
Deborah C. Wyatt: --Yes.
Sandra Day O'Connor: I guess the Court held in Ingraham v. Wright that state court remedies were an adequate process for students subjected to corporal punishment in school, and that of course is even a liberty interest, not even a property interest. How is the interest you are talking about more significant than that?
Deborah C. Wyatt: Justice O'Connor, I think that is a very important question because I read Ingraham a little bit differently. I do not read Ingraham as saying that state court remedies are going to be always sufficient and, of course, Ingraham clearly does not address substantive due process. Ingraham was one of these challenges to higher supervisory officials, the school principal, an assistant principal and at one point I believe even the school board though they got dismissed before they reached this Court. They were the defendants, not the teacher who spanked. That is a case, therefore, where the Court looked at the risk of abuse and said, "We've got state remedies that are a deterrent. " "We've got openness. " "We've got a number of other reasons that the risk of abuse is very small and, therefore, the procedure satisfies due process-- "
Sandra Day O'Connor: Well, might that not be true here, too, for a deprivation of property with state remedies that could be considered adequate?
Deborah C. Wyatt: --I think it would be if we were challenging the prison that allowed it. I think the prison could say, "We had no idea that this guard was abusive. " "This was random, and the procedures we've instilled are basically secure against such abuse. " But that is not this--
Sandra Day O'Connor: You think Ingraham would have been a different result had one of the teachers who had administered the punishment were a defendant?
Deborah C. Wyatt: --I think it absolutely would have and should have been. I think at that case we might have been talking about something more substantive. That teacher who had done the spanking to a hematoma might be held accountable in a way that somebody who had adopted the policy would not be. That is exactly the distinction that I think is very important in this case and that has been missed by Petitioner. This is not a challenge to supervisory officials. This is a challenge to the officer himself. There is no excuse for his failure to deny due process. If he wanted to take he knew how to do it. He did not do it legally, and he violated at once the due process clause. Accordingly, I would ask this Court to affirm the decision of the Fourth Circuit holding that the Fourth Amendment applies to prisoners and reversing the faulty due process ruling of the Fourth Circuit below. Thank you.
Lewis F. Powell, Jr.: Counsel, may I ask a question about the facts?
Deborah C. Wyatt: Yes, sir.
Lewis F. Powell, Jr.: There was another guard or officer with Hudson at the time was there not?
Deborah C. Wyatt: I am not aware of that, Your Honor.
Lewis F. Powell, Jr.: The affidavit from Mr. Hudson on page 14 of the appendix... Perhaps I am misreading it.
Deborah C. Wyatt: I do see where it says Officer Lephew.
Lewis F. Powell, Jr.: The third paragraph.
Deborah C. Wyatt: Yes, Your Honor.
Lewis F. Powell, Jr.: Why was he not sued?
Deborah C. Wyatt: Your Honor, again I was appointed at the Fourth Circuit level. I believe from all of the pleadings I certainly get the clear indication that it was Guard Hudson's abuse, Guard Hudson's repeated harassment that my client was most concerned with and in fact he primarily sought injunctive relief against Guard Hudson. It may be that another officer assisted or participated, but he was not suing everybody for everything. He was suing--
Lewis F. Powell, Jr.: Did you request an affidavit from this other officer also?
Deborah C. Wyatt: --Your Honor, I was not involved at the District Court level.
Lewis F. Powell, Jr.: You were not involved?
Deborah C. Wyatt: No, I was not. I was appointed at the Fourth Circuit level.
Lewis F. Powell, Jr.: Does it suggest at all that there may be not have harassment if there were two of them there and one of them was not even sued?
Deborah C. Wyatt: Your Honor, I believe his complaint goes on to give a number of instances of how this officer abused. Of course, they most clearly involved the search and seizure. They also involved the destruction of his property, and although another officer I see is included in one of the incidents I think it really adds credibility to my client's claim that he wanted Guard Hudson removed. That was--
Lewis F. Powell, Jr.: You only sued on the one instance.
Deborah C. Wyatt: --He included a number of different harassment incidents.
Lewis F. Powell, Jr.: In his suit?
Deborah C. Wyatt: In his suit, in his original suit. He talks about something that happened on September 16 and 17. He talks about the fact that a false charge was brought against him by Guard Hudson, that Guard Hudson had harassed him before, that he said "Next time I'll really mess your cell up. " He did a number of things on the 16th and I believe also the 17th--
Lewis F. Powell, Jr.: He referred to the 16th and the 17th only I think.
Deborah C. Wyatt: --Perhaps so, Your Honor. But he makes comments there that it was more than that. Again, I think it is important and telling that he sued primarily for injunctive relief.
John Paul Stevens: May I ask... You were appointed at the Fourth Circuit.
Deborah C. Wyatt: That is correct.
John Paul Stevens: Was he represented by counsel in the District Court?
Deborah C. Wyatt: No. He was proceeding pro se. If there are no further questions, thank you.
Warren E. Burger: Do you have anything further, counsel?
William G. Broaddus: Not unless the Court has questions.
Warren E. Burger: Thank you, counsel. The case is submitted.