Earl Warren: Mr. Chadwell, you may proceed with your argument.
John T. Chadwell: Mr. Chief Justice, may it please the Court. The Court of Appeals of the Seventh Circuit issued its writ of mandamus in this case, may it please the Court. The cause in the opinion of the Court of Appeals, the record facts show a clear abuse of discretion on the part of the District Court in denying our motion to transfer this complex antitrust case from Danville where the Government chose to bring the case to St. Paul. From Danville, where the defendant has no office, plant, facility or employee, to Minnesota, where it has its main office, all employees, officers or directors who know anything about this, the issues in this case, where the Government has not alleged or stated in a single affidavit, contrary to what Mr. Friedman inadvertently stated, that a single witness, a single witness resides within the District -- Eastern District of Illinois. The Court of Appeals made its decision upon three -- that the Court had -- had clearly abused its discretion on the basis of three primary considerations. The first of which, as I understood Mr. Freedman today, he admits to have been improper. The first was that it was unlikely that the Government could secure a fair trial in Minnesota and admitted that that was an improper factor. That was one reason that the Court of Appeals thought that the District Court has abused its discretion. The second reason was that the denial of transfer was ordered despite the public policy sometimes referred to or referred to in the Johnson case as the constitutional concern of the courts for try out of a criminal case in the home district of the defendant in the absence of strong reasons to the contrary. And the third reason why the Court of Appeals thought that this was a clear abuse of discretion was that there was every reason for a trial in the home district of the defendant, St. Paul, Minnesota or the District of Minnesota, add no substantial reason for a trial in the Eastern District of Illinois. Now, why the Government chose to present this matter to a grand jury in the Eastern District of Illinois in Danville some 130 miles or so South of Chicago, why they did it? We don't know. We know the explanation they gave, this we do know. They did it in spite of the fact that they had to come to St. Paul over a period of something like 17 years intermittently. This investigation started back in 1945. It was quite active for a number of years then there was a period when it wasn't and then it was resumed and there -- there, it went on for a long period of time. They spent weeks and months in the offices of the company at St. Paul. They knew all about the fact that St. Paul was the situs of this whole thing, yet they choose to proceed in Danville. I say I don't know why they did, they did. We don't have to show that they shouldn't have proceeded in Danville. All we have to show under Rule 21 (b) is that we come within that rule after the indictment was return. And on that, if Your Honors please, I would like to make a brief statement about the provisions and purposes of Rule 21 (b). Rule 21 (b) differs from Section 1404 (a) which this Court has -- had before it in the preceding case. In that it, of course, that is Rule 21 (b), is a rule of this Court under the criminal rules of Rules of Criminal Procedure. This Section 1404 (a), of course, is a statute. It has also one additional significant, a difference in phraseology, I would submit and that is that Rule 1404 (a) is permissive. It says the Court may transfer, may transfer where the -- where the circumstances come within the provisions of the rule. In rule -- in this statute, in Rule 21 (b), the provision is that the Court shall transfer where it appears that in the interest of justice, a transfer should be made to another district in which a venue lies. Now, there is no doubt that the Court is vested with discretion of course in passing upon a motion of this kind and is entitled to way, what is said by the moving party in this case, Minnesota Mining, as against what it said by the Government, by a way of bill of particulars, allegations of the indictment or affidavits. But, if the trial court, passing on this motion, is unable to make a finding as to a single substantial reason why the case should not be transferred, then it is clearly a case of abuse of discretion and one which the Court of Appeals properly should've issued as it did, their writ of mandamus. Now on that point, I would like to state that the basic purpose of this rule, which has been recognized in a number of lower court decisions, this being the first time the case involving the rule directly has been before Your Honors, the basic purpose of this rule has been to reach this precise sort of a case. As a matter of fact, Judge Holtzoff, who was Secretary of the Advisory Committee, and Judge Medallia, who was a member of the Advisory Committee, each have made statements, which are referred to in our brief on the different seminars and so on shortly after the rules were adopted in which they stated that one of the principle reasons that the Advisory Committee recommended Rule 21 (b) to the Supreme Court was because of the practice followed. In the past, in the Antitrust Division of the United States Department of Justice in bringing criminal antitrust cases away from the home district of the defendant. That's exactly what these two judges, who were members of the committee, said and that is what the lower courts have recognized to have been a basic purpose of this rule when the Supreme Court adopted it. Now, the fact of the matter is, if Your Honor please -- Your Honors please, we do not argue that the defendant has an absolute right. We do not argue that the defendant has an absolute right to transfer to its home district. We do argue that that right of trial in the home district is recognized in Rule 21 (b) was a reason why it was adopted and that in the absence of reasons to the contrary, substantial reasons to the contrary, transfers should take place, should be ordered. And I -- I call to the Court's attention this fact that until Judge Platt denied transfer in this criminal case, not a single District Court and not a single Court of Appeals had refused to transfer a criminal antitrust case to the home district of the defendant or to a branch office of the defendant if the facts took place there rather than in the home district on motion of the defendant. The latter sort of a situation, the home -- the -- the branch office residence or situs of the defendant -- of a defendant is the General Motors case, which we cite in our brief. And I might say to Your Honors that we collect the cases on page 39 to 40 in our brief. Those cases bear out what I'm just saying to the Court. Now in the General Motors case, we had a situation that would've been similar to what we would've had here if at -- if at Danville, there'd been a branch office of Minnesota Mining, let us say and if the activities of the defendant related to that branch office. In General Motors, the locomotive case, electromotive case was brought against -- was brought against them in -- in New York, indictment was there. A move to transfer to Chicago and not Detroit because in Chicago, the locomotive division had its headquarters, the books and records were there, the witnesses were there and that in the interest of justice, it was contended and held by the District Court, should be the place of trial. That was where it was removed to. Now here, if Danville had been an area where there was a -- an important branch office or a branch office of this company or the activities had substantially taking place there, a great many of the witnesses were there, then of course, Danville would've been a proper situs for the trial of this case. But as I said, there's not a thing that connects this company with --with Danville except, except that the defendant -- that the Government claims that in Danville, they can prove venue. And venue they set forth in here as the most minimal amount and as Your Honors know, it is not required to show very much in order to prove venue. Well, assuming that they can prove venue, that is when Rule 21 comes into play. It's admitted for the purposes of this motion that venue was properly laid in Danville, that gives them no right to keep it there, that would be exercising the right to an absolute choice of forum which is the right that the Government had prior to the adoption of Rule 21 (b). If an indictment came down in a certain district and if venue lay there, there's nothing that could be done about it. Now, the Court has recognized the injustices stated by Judge Medallia, a member of the Advisory Committee, that existed prior to the adoption of Rule 21 (b) and has said that under these circumstances where it is in the interest of justice, a criminal case shall be transferred, shall be transferred to another district where venue lies. And I -- I urge to the Court that the facts here support the Court of Appeals completely and that there's no substantial reason why the case should've been kept in Danville. And with the Court's permission, I should like to review therefore the factual considerations, which caused me, if Your Honors please, to make that statement. The first is this. I've already said it. The home office, research laboratories, number of these manufacturing plants, all its records are in St. Paul. No office, plant, branch or employee in the Eastern District of Illinois. All officers in the company live in St. Paul or near St. Paul, none in the Eastern District of Illinois. The defendant's uncontradicted affidavits show that all officers and employees of the company, called before the grand jury during the extensive period of this investigation, came from St. Paul except one man who had retired and had previously lived in St. Paul and was then living in California. Everyone that the -- the fact is that the defendant has shown by affidavit that other witnesses known to the defendant, they were able to determine from appearances before the grand jury and the like, 24 of the employees of alleged co-conspirators come from the East Coast to which East Coast or Chicago not a one from Danville or in St. Paul. They come from the East Coast, Chicago or St. Paul, none from the Danville area. The -- the District Court did say that obviously, if Your Honors will read his opinion, that obviously, St. Paul would be more convenient for the defense witnesses than Danville and made that finding which of course was obvious. But he said as to the Government witnesses, and I quote, “The question of convenience is not so easily determined.” Now, he hadn't make a single finding, as indeed he could not, that it would be more convenient for the Government witnesses. He merely said it's not easy to determine it. And the reason it wasn't easy to determine it was because that the Government refused to give him any information from which he could make the determination except the general affidavit that they had a substantial number of witnesses who were within the 300-mile radius of the East District of Illinois, didn't say within the East District of Illinois, within 300 miles and they would be inconvenience by going to St. Paul rather than Danville where the 300 -- that's the conclusion of the find. In fact, the matter is that 300 miles in Danville include Chicago, and our affidavit show that it is much easier to get from Chicago to St. Paul as it -- than from Chicago to Danville. The error time on jets to St. Paul is about the same as the airtime from Chicago to -- to Danville approximately an hour in each instance. And then the frequency of the flights are much greater in the instance in the case of Chicago to St. Paul than from Chicago to Danville. Now, I say that the Government has a right to refuse to give any information on the facts in -- in contesting one of these motions. But one of the consequences of their failure to do so, I respectively submit, is that they're going to lose the motion because if they're unwilling to give any facts even without naming witnesses their location, how can they expect the Court to make any finding? Court can't make any finding and indeed Judge Platt didn't on that point which found that it's not so easy to determine the convenience of the Government witnesses. Well, assuming that the convenience of the Government witnesses should override the convenience of the defense, and I say in a criminal case that should not be the case, there is no finding against us on that point whatsoever. And I say that even though -- there -- it would be convenient for a number of the Government witnesses to go St. -- to go to Danville rather than St. Paul, that fact should not weigh a penny weight unless it's an overwhelming showing in view of the very strong showing that we have made here as to the convenience of our witnesses. We have shown by uncontradicted affidavits that the cost to us for trying this case in -- in Danville above the cost of try -- for trying the case in Minnesota would be over $100,000. No dispute on that whatsoever and it is perfectly obvious. That's a minimum figure I might say that we gave in the -- in the affidavit. And another point that we make which the Court of Appeals referred to in the opinion that it's obvious, of course, to -- to the Justices of this Court, is that in defending a complex criminal case of this kind. And as a reason for the home district rule, it is of the utmost importance for trial counsel to have constant immediate access to -- to officials, employees and -- and records of the defendant company. Now, I submit to the Court that this is far more important in a criminal case than in a civil case. We have tried, of course, those of us involved in -- in a good deal of antitrust litigation, have tried a great many civil cases away from the home of the home office of the defendant. Where do you have pretrial discovery, you're able to get the records of the Government or the opponent, you're able to find out about the witnesses, you can take depositions. And when the trial starts, you're pretty well set and you know what employees or officers of the defendant company should be at the situs of the trial, you know that from your pre-trial discovery. There is no pretrial discovery in this criminal cases, is a strong reason for the applicability of Rule 21 (b) here. I submit to Your Honors, if we had to try this complex case in Danville, which our record -- which our affidavit show will take four or five or six months to try, it's a matter involving the three separate product lines of this company, very important product lines. They're claiming that we filed 44 patent suits or defendant 44 patent suits over a period of 25 years and our good faith in our patent activities is at issue. If we had to try this case in Danville, we would not have the slightest idea in advance of trial just who we ought to have down there and who we shouldn't. It could very well be. We don't know the names of these witnesses. We don't know what the Government's going to say. We're not permitted to have pretrial discovery. It could very well be.But we get into court, we start the trial of this case, they will call to the stand some witness that I had never heard of. And how do I find out why I go to the -- to the people in the Minnesota Mining who has had to do with that transaction to find out? And I -- and I find that they we're -- he's up in St. Paul, we didn't know we're going to need him down here in Danville, so we didn't bring him down. Now, what about the record? Well, they're up in St. Paul. Now, that's undenied. There's no question what I'm stating to the Court from beginning to end here is undenied in the record in this case. Is it -- is it in the interest of justice under Rule 21 (b)? Is it within the discretion of a trial court? Were these facts are admitted, conceded, undenied? That the trial court should say, “Oh, well, maybe you can't defend this case as well in Danville", but the Government says, as the trial court said here, that they've got some records in St. Paul and they'd have to send him up to Minneapolis. Well, I'll tell you what records they've got in St. Paul. They've got some records that they subpoenaed from various people in this case.
Earl Warren: (Voice Overlap) Danville, right?
John T. Chadwell: I said Dan -- I'm sorry. In -- in Danville, they have some records that they subpoenaed from various witnesses who appeared before the grand jury and according to the size and weight of the boxes that they describe, it had cost $50 for them to send these records from -- from Danville up to St. Paul. The -- the Court, the District Court took note, took note of our contention, which I am making to Your Honors here, that we need a constant access to the record in the people in Minnesota Mining to defend this complex criminal case where we had no discovery prior to trial. He -- he recognized that but he said in view of the size of the defendant that should not make too much difference. Well, as the Court of Appeals said in -- in dealing with that subject, if Your Honors please, it does make a difference. And I would like to read to the Court from the opinion of the Court of Appeals on the facts, the facts of this case aside from the concededly improper factor, namely, the fair trial in Minnesota issue, concededly an improper. Aside from that, the Court found that there was no substantial reason to hold this case in Danville and here is what the Court said and I am reading from -- from page 248 of the record, if Your Honors please. The Court of Appeals said, “In the case at bar, in addition to the demonstration, by proof or admission of the essential elements of convenience, expense and early trial constituting the interest of justice in the civil case, this criminal case is impressed with the fundamental historical right of a defendant to be prosecuted in his own environment or district." Now, the -- the facts which are -- which are admitted or undenied is in Footnote 3 here and they are as follows. A trial in the Eastern District of Illinois would result on unjustifiable increased expenses to petitioner of at least $100,000, undenied, undenied in the record, great inconvenience of witnesses. I've stated the facts on that to the Court. Serious disruption of business, there be any question about that. We have the transfer records and witnesses and -- and executives and employees all -- from Danville to St. Paul for this protracted trial. Interferes of contact between petitioners, executives, and as trial attorneys in connection with protract and antitrust prosecution trial, that's the point which I've just argued to the Court. There is no dispute on a single one of these factors that the Court of Appeals found from this record then he -- then they go on. Petitioner has no office, plant or other facility in the Eastern District of Illinois. Well, that of course is undenied. There's no serious congestion of the docket of the District Court of Minnesota. And while a division of the case is pending in the Eastern District of Illinois between the two judges of that district, would've reveal a considerable case load for both of them. The fact is the dockets are current in both districts and -- but judge -- Judge Platt did say that he thought the trial in St. Paul would take a year -- the case would take year longer to come to trial in St. Paul than in Danville. And I submit to the Court that a year for the preparation of a trial of this magnitude is -- is not, in any way, unreasonable. And when the dockets are current, as the Court of Appeals found them to be, it makes no difference. Now, those are the facts upon which the Court of Appeals held that the trial court had abused his discretion aside from the concededly improper factor, had abused his discretion in -- in or denying the transfer of this case. Now, the Government's real point, the Government's real point here is, well, he -- maybe the trial court made a -- was guilty of abuse of discretion, maybe was. But and -- and perhaps, perhaps mandamus is a proper remedy under these circumstances. But they should -- the trial court should have just reversed and sent it back for reconsideration and should not have directed transfer, and I would like to deal with that in the time remaining to me. If Your Honors please, the Government has submitted in -- and as indeed it must, as indeed it must as follows. I'm reading from page 34 of their brief. It would be proper, I'm reversing it for the Court of Appeals to direct transfer if it, “Should be clear that without considering the improper factor,” reading from Page 34, "the District Court would've had no alternative but to transfer". They've said there. That --- that is correct. That's our position. That they say that unless it should be clear that without considering the improper factor, the District Court would've had no alternative but to transfer the direction of transfer should not have been, it should not have been incorporated in the writ. I say to Your Honors that on this record, the Court had no alternative but to transfer if he was going to be, as if he must be in exercising his discretion, if he was going to be governed by the record in this case rather than -- than something else. For the reasons that I've stated, suppose this goes back, suppose this goes back to the District Court as the Government would have, Your Honors, direct to reconsider this matter in the light of the opinion and the present concession of the Government that he had no business going into this fair trial matter. Suppose it did, what could he say as to a reason for holding it in Danville that he has already said? Now, I have a great respect for Judge Platt before whom I've tried a number of cases. But it would be only human, be only human having -- having denied transfer and considered this record as he did for him to say the second time, “Oh, well, sure I consider this fair trial in Minnesota business. But that isn't a real thing. I am going to keep this case anyway." And I say he couldn't keep it in anyway for any reason that's a substantial reason and no matter what he said, he couldn't controvert the facts that I read to the Court from the opinion of the United States Court of Appeals because there aren't any facts in this record contrary to that. I submit therefore, may it please the Court, that the decision of the Court of Appeals is correct and should be affirmed. Thank you.
Daniel M. Friedman: Mr. Chief --
Earl Warren: Mr. Friedman. Go ahead.
Daniel M. Friedman: I just like to say briefly in few seconds I have left that it may well be that if any members of this Court were sitting from the District Court in this case, Mr. Chadwell's argument would've been persuasive to them. But we think that contrary to what Mr. Chadwell has said here that there were factors which the District Court reverted to, reverted to. And I might just mention here that one of the things District Court said in the end of his memorandum was he said some facts mentioned by counsel have not been noted in order to like not to lengthen this memorandum. And we think there's no doubt in our mind that when the Court of Appeals in this case did what it did, it was basically substituting it's discretion from the District Court. And it think the clearest demonstration of that is the statement of the Court of Appeals in the next to the last paragraph of it's opinion in page 248 in -- after the stating the things with Mr. Chadwell stated says consequently. We are convinced that this multiple venue criminal prosecution should be tried in the District of Minnesota which is the home of petitioner. But the rule says, the rule says that it should be transferred only if the District Court is satisfied that it's in the interest of justice.
Earl Warren: Mr. Friedman, would you mind listing just precisely and without this argument this -- what Mr. Blanchford did? The things that the -- the judge relied upon to show this was at the interest of justice.
Daniel M. Friedman: Yes, Mr. Chief Justice, he stated -- I -- I can perhaps put it most effectively if I might read to the Court what Judge Platt himself stated in his response to the rule to show cause in which he said that he had given, this is at page 236 of the record, he said that he gave consideration to all the factors and found several which militated against transfer. The first fact he said that the trial of this case would be delayed at least a year if it were transferred and that --
Speaker: Mr. Friedman, may ask you -- ask you to read the rest of what the judge said --
Earl Warren: (Voice Overlap)
Speaker: -- when he made that statement. I mean in that -- in that (Voice Overlap)--
Daniel M. Friedman: It appeared to respondent that the trial of the case would be delayed at least a year by the transfer and the Government avowed a speedy trial was essential because some of the petitioners, competitors are in financial straights owing to petitioner's alleged conduct and to the fact that petitioner has refused to hold it's allegedly illegal activities. That's the first one. The --
Byron R. White: Where is it?
Daniel M. Friedman: This is at page 236, the paragraph numbered 6. The first one is that transfer of the case would delay at least for a year and that a speedy trial was important because the defendant has allegedly continuing this illegal activity.
Hugo L. Black: Did the Court state why it was delayed for a year?
Daniel M. Friedman: Well, he -- I assumed he did not stated in so many word but I assume the reason for he said in his previous opinion would delay and I take it that is because of the fact that he had a much smaller dockets than the average --
Hugo L. Black: Is that in the (Inaudible) if there is a smaller docket?
Daniel M. Friedman: Yes, Mr. Justice, that will be set forth.
Hugo L. Black: It's alright. That is all I want to know.
Daniel M. Friedman: Yes. The disagreement between us is as to whether they said there would not be any delay because they say that you average as between all the judges in the District of Minnesota and all the two judges in the Eastern District of Illinois. We say the proper standard for determining how soon you would have a trial before Judge Platt is what the state of Judge Platt's docket wasn't the state of Judge Platt's docket was much better than that of the average docket in the District of Minnesota. Now, the second point -- that was the first point, the second point Judge Platt made was that the Government witnesses maybe inconvenience if forced to travel to the northern city of St. Paul, Minnesota. That's two items. The third one, that the --
Earl Warren: (Voice Overlap) --
Hugo L. Black: Alright. You said there's no evidence of that?
Earl Warren: Yes.
Daniel M. Friedman: Well, there is. Just the affidavit of Mr. Jenkinson to which I've referred, which states at page 89 that although the Government would not reveal an advance of trial the names of its witnesses, it states that a substantial number of the Government's witnesses live within a 300-mile radius of Danville whereas only one or two of it's presently contemplated witnesses live within 300 miles of St. Paul, they are minor witnesses and that Danville is substantially closer and more convenient for the majority of the Government's key witnesses.
Hugo L. Black: No reference to the number?
Daniel M. Friedman: No, there is no reference to the number.
Earl Warren: How far is Chicago from St. Paul?
Daniel M. Friedman: About it think 350 miles, roughly.
John T. Chadwell: From 350 to 400, an hour by jet plane.
Daniel M. Friedman: Then he referred to the fact that the Government's documents are already in Danville in the custody of the Court. Fourth, and would have to be transferred to St. Paul. Then he stated the transfer would increase the Government's expenses because --
Earl Warren: Let me ask you, did he -- did he comment on the -- the records and documents of the company?
Daniel M. Friedman: Well, he had said, yes, in his earlier opinion, he had recognized that it would a burden on the company to have to transfer its records from St. Paul to Danville. He pointed out that a number of these records were already in the custody of counsel in Chicago but he recognized that there would be an additional burden. He is just at this point. At this point, he is explaining in response to the claim that the difficulties of obtaining the unfair trial where the principal basis for his decision, the other factors he relied on. The point then in the next one is a transfer to increase the Government's expenses because its witness fees would be greater. In other words, the Government has to pay witness fees, mileage witness fees and they would be greater as what its cost to transportation of the Government's staff and then finally it would be more difficult for the Government to get an impartial jury in St. Paul than in Danville. And then over in page 237 in paragraph (7), he pointed out to other factors which suggest the burden on Minnesota Mining would not be as great as they have suggested since a lot of this material deals with rather ancient history would not be present any serious burden on the company to have to take away from it's home office, old records which were not needed for current things.
Speaker: (Inaudible)
Daniel M. Friedman: The -- the allegations are basically misuse of patents that they use their patents -- they -- they had these critical patents and that under the threat of actual of threatened patent litigation, they coerced competitors into accepting licenses with a restricted provision.
Earl Warren: Mr. (Inaudible), would you like one minute or so just -- in response to that or -- or not?
Mr. Attorney General: I would just like to point out, if Your Honors please.
Earl Warren: Yes.
Mr. Attorney General: And I appreciate your suggestion. That the -- the first statement delayed at least a year is not supported by the record. He just -- even the Court said that, no doubt in good faith thinking that would be true. I don't question that at all.
Earl Warren: There's nothing in the record or anything?
Mr. Attorney General: No, Your Honor. Then he went on and accept -- accepted as true, denying us the presumption of innocence that a speedier trial in that was needed because of -- because of avowal of the Government that we're continuing these patent activities which are under attack. This second point, the Government's witnesses maybe inconvenienced, I've already dealt with it.
Earl Warren: Yes, you've dealt it.
Mr. Attorney General: Third point on the documents I have, and the transfer would increase the Government's expenses, my answer to that is that -- that is of no significance and as --because of the home district point and because of the facts found without contradiction to which I refer to my arguments, I think --
Byron R. White: (Inaudible)
Mr. Attorney General: Yes.
Byron R. White: (Inaudible)
Mr. Attorney General: I beg your pardon--
Byron R. White: (Inaudible)
Mr. Attorney General: Your Honor, there were two statements in the record on that and that's all. And if I'm not correct on this, I would like Mr. McGee to -- to correct me. One was that there are two letters written that deal with sales or purchases of the products involved in the indictment in the Eastern District of Illinois. Of course, there were hundreds of thousands of sales of these products of all over the United States.
Byron R. White: Including this?
Mr. Attorney General: Yes, but that I -- we --
Byron R. White: But in the record (Inaudible)
Mr. Attorney General: No question but the business we do in this district is minimal. And it -- it may give venue, as I argue to you -- to the Court.
Byron R. White: (Inaudible)
Mr. Attorney General: Well, because it is -- it is nothing com -- excuse me, I didn't mean to interrupt the Court.
Byron R. White: (Inaudible)
Mr. Attorney General: It's minimal compared to the home district to which we are -- to which we move the transfer of the case. That is where --
Byron R. White: (Voice Overlap)
Mr. Attorney General: Yes, sir, and in terms of witnesses, in terms of convenience of trial.
Byron R. White: (Inaudible)
Mr. Attorney General: We sell -- we sell tape. We sell tape all over the United States. And the -- the tape that it's in -- that we do sell all over the United States is sold in Danville as well as St.Paul, New York, Washington and everywhere else.
Byron R. White: (Inaudible)
Mr. Attorney General: I haven't the slightest idea, Your Honor. I -- I will say that I have frequently wondered why they bring suits where -- where they do. In this case, I don't know why. I have no idea why.
Byron R. White: (Inaudible)
Mr. Attorney General: Well, they won -- they won several down there and I think that maybe a reason why although I don't want to state that as -- as my view necessarily. The A&P case I might say was in Danville.
Speaker: General Motors?
Mr. Attorney General: The General Motors --
Hugo L. Black: (Inaudible)
Mr. Attorney General: Judge Lindley is not there any longer. That -- that trial was in Danville. There have been some other cases in Danville. That's the only protracted antitrust case tried in Danville so far as I know.
Speaker: (Inaudible)
Mr. Attorney General: Yes, sir, he's the only one in Danville. There are two judges in the Eastern District. Judge Jergens is in East St. Louis and Judge Platt is in Danville.
Speaker: (Inaudible)
Mr. Attorney General: Has he tried any? He has not tried any contested antitrust cases to the best of my knowledge. He has had a number of antitrust cases in which there'd been settlements.
Speaker: (Inaudible)
Mr. Attorney General: No, sir, that was tried in -- in St. Louis.
Speaker: (Inaudible)
Mr. Attorney General: Oh, yes, he's --
Speaker: (Inaudible)
Mr. Attorney General: To -- to Minnesota -- St. Paul, Minnesota which is the home district of the defendant.
Speaker: (Inaudible)
Mr. Attorney General: Four, yes, sir.
Speaker: How large is the district?
Mr. Attorney General: How large is the district?
Speaker: The whole state.
Mr. Attorney General: The whole state, yes, sir.
Byron R. White: (Inaudible)
Mr. Attorney General: They -- they hold court in various places, yes, sir. The -- they hold court, both in St. Paul and in Minneapolis and in other areas in the State.
Byron R. White: (Inaudible)
Mr. Attorney General: No, it's -- it's distributed around among the judges, the cases are and I might say to the Court --
Byron R. White: But you don't know (Inaudible)
Mr. Attorney General: Oh, no, no, no, and -- and I might -- and --and that wasn't the reason that were -- we've made a motion to transfer. No, no, we don't know and the -- and the fact is that the jury can be drawn from all over the State for any one of the areas. Although generally speaking, it's gone from the general proximity of (Inaudible)
Byron R. White: (Inaudible)
Mr. Attorney General: I -- I believe that's right, Your Honor. I believe it is. They hold court in other areas in the State and I'm not too sure about -- about that. I must say that I perhaps not given the Court exact information on that.
Speaker: (Inaudible)
Byron R. White: Oh, of course.
Speaker: (Inaudible)
Byron R. White: Oh, of course. We do have -- Mr. McGee has called my attention to the affidavit of Mr. Hunt (ph) which appears beginning on page 70 of our -- of the transcript which deals with this subject. Thank you, Your Honor.


William H. Rehnquist: We'll hear argument now in No. 90-918, Christine Franklin v. Gwinnett County Public Schools and William Prescott. Mr. Klein.
Joel I. Klein: Mr. Chief Justice, and may it please the Court: In 1972 Congress enacted title IX to give all individuals a right not to be discriminated against on the ground of sex by educational institutions receiving Federal funds. In 1979 this Court held in Cannon that the title IX right is judicially enforceable at the behest of an individual like petitioner whose right has been violated. In the case presented today the question is whether the means of redressing the violation of this legally enforceable right include the normal remedy of damages. We believe damages are available here for two reasons. First, this Court's consistent rule has been to permit all traditional judicial remedies, including damages, whenever a statute contains an implied right of action. That's a perfectly sensible rule, I would submit, because when the Court concludes, as it did in Cannon, that there are sufficient indicia of congressional intent to support an implied right of action, the natural inference, and indeed the only plausible rule, is that the courts can use their customary remedial powers. Second, we believe that a direct examination of congressional intent confirms the conclusion that damages are available under title IX. In 1972, when Congress expressly patterned title IX on title VI of the 1964 Civil Rights Act, title VI had been interpreted by the lower courts to include an implied right of action, and this Court's cases at that time made it absolutely clear that an implied right of action carries with it a right to pursue damages. I think it is fair to say that Congress can properly be said to have relied on these subtle principles when it enacted title IX, and that that intent should be given effect here. Furthermore, after Cannon was decided it seems that this view of congressional intent became much clearer, as Congress has since then passed two statutes relying on and endorsing its understanding that damages are available. There's been no reason given to suggest why these long-settled and relied-on expectations should now be disturbed. I'd like to return, then, to the general rule which authorizes damages under an implied right of action unless there is good evidence to suggest that Congress intends otherwise. That rule has been consistently applied by this Court both before and after title IX was passed, including well into the era when the Court tightened up its criteria for implying a right of action in the first place. In particular, in 1983 and 1984 the Court applied this rule in the Guardians and Darrone cases to hold that a back-pay remedy is available under both title VI of the 1964 Civil Rights Act and section 504 of the Rehabilitation Act of 1973.
William H. Rehnquist: Well, back pay, of course, is not the equivalent of damages.
Joel I. Klein: I agree with that, Mr. Chief Justice, but I think the principle is that in Guardians and Darrone the reason back pay was found to be available is that once the Court finds an implied right of action it infers the availability of traditional damages. So there is no doubt a difference in remedy, but I think there is not a difference in--
William H. Rehnquist: I don't see how you draw upon a case which allowed back pay as saying that therefore damages are available, unless just by a rather distant implication.
Joel I. Klein: --Well, I think it is by implication in the sense that I think the reasoning that led the Court to think... to conclude rather... that damages... that back pay is available, that same reasoning applies here. There was, for example, no direct legislative intent that the Court ruled on to say that title VI would include back pay. I mean, there was no specific or even indirect suggestion. What the Court really concluded is that once we find sufficient indication of a right of action we presume, it's just a natural presumption, that all the remedies are available. We don't pick and choose among them.
William H. Rehnquist: This was Guardians that you're talking about now?
Joel I. Klein: This is Guardians, which I think then was--
William H. Rehnquist: I think it's very difficult to draw any very compelling inference from Guardians. The Court was split so badly.
Joel I. Klein: --I think it is hard to draw it from Guardians alone. I agree with that, Mr. Chief Justice. But I think in--
William H. Rehnquist: What's the other case?
Joel I. Klein: --Darrone. The Consolidated Rail v. Darrone, which was the year after Guardians, where frankly a unanimous Court basically came together, I think, on these principles.
Sandra Day O'Connor: Mr. Klein, I think that our cases in Touche Ross and maybe the Sierra Club indicate that the Courts won't engraft a remedy on a statute that Congress didn't intent to provide. Do you think that notion has any applicability here?
Joel I. Klein: I don't in the following sense, Justice O'Connor. I think that Touche Ross and its progeny stand for the proposition that the Court won't imply a right of action unless it concludes that there is congressional intent to do so.
Sandra Day O'Connor: You think it has nothing to do with scope of the remedy?
Joel I. Klein: I don't, for the following reason. If we agree that once you imply a private right of action that must mean two things. One, Congress intended to allow a judicially enforceable right. That's what a private right, I think, means. It also must mean the fact that it's an implied right is that Congress has left the issue to the courts, because they haven't set it out in the statute or in the legislative history. Now, what I suggest, if you knew that much, which is I think what you know in an implied right of action case, the logical inference is that all remedies are going to be available.
Sandra Day O'Connor: Do you think that we have employed that notion even in statutes enacted under the Spending Clause?
Joel I. Klein: I do, because I think that notion explains the Guardians, Darrone cases, which is a Spending Clause statute.
Sandra Day O'Connor: Well, I thought under the Spending Clause theory we were a little more careful about binding a damages remedy if it might be beyond the scope of what we assume the States have contracted with the Federal Government to do.
Joel I. Klein: I think you have, but I think that distinction was drawn actually by Justice White in his opinion in Guardians. The point he made, I think--
Byron R. White: I'm not sure that was joined by anybody.
Joel I. Klein: --It was actually joined by the Chief Justice, but I think that--
Byron R. White: That part was?
Joel I. Klein: --I believe so, sir.
Byron R. White: I was fortunate. [Laughter]
Joel I. Klein: I think the point that Justice White made, which it seems to me is a fair point, that if you're talking about an imply... a damages remedy in a context where it's an unintentional violation, it's difficult, the Pennhurst concern about contractual understandings is appropriate. Now, in fact we allege, and I understand we have to prove an intentional violation. The other point I'd like to make, Justice O'Connor, is it at least seems strange to me the notion that when Congress provides Federal funds to a program it would want a less vigorous or less comprehensive scheme of enforcement with respect to civil rights. I think in fact we ought to basically think that it would be opposite where Federal monies may be misused.
Sandra Day O'Connor: Well, what would you do if you were faced with an unintentional violation, so to speak? Can there be an unintentional violation of title IX?
Joel I. Klein: Of title IX? Well, I think that is a question that certainly is left open after Darrone. Darrone suggests there can be an unintentional violation. Let me say I don't think, I think you do have an issue of contract interpretation, and that seems like a reasonable issue. In other words, if the States had no reason or the private institution had no reason to think what it was doing was a violation, then you may have a question of whether that's sufficient intent to enforce the Spending Clause legislation against it. But it seems a very different thing when we allege and if we prove that this is intentional. It can't be that the State here, or the school district rather, didn't know that this was a violation. In fact they didn't have in place a mechanism for students to go and complain or make known any concern about this kind of sexual harassment. They were in flat violation of the regulation. So any notion that they, so to speak, weren't contractually aware I don't think is indicated here.
Harry A. Blackmun: Mr. Klein, could the petitioner have pleaded a cause of action under section 1983?
Joel I. Klein: I believe she could have, Justice Blackmun. 1983 would apply here, of course, because this was a school board. Title IX, however, is far broader in its scope and applies to private institutions as well. And I guess one other point I'd just like to note there, Justice Blackmun, is that I think she is entitled to a claim under 1983, but I think she might run into the argument that, a Sea Clammers' type of argument that title IX has its own remedial scheme and so she might be preempted. I don't think that's a good argument, but I think it might be raised.
William H. Rehnquist: Well, wouldn't she have to show too that there was a policy on the part of the school board before she could sue the school board, rather than individuals who she claimed discriminated under Monell?
Joel I. Klein: Well, she would have to certainly meet the criteria under Monell, and I think we can meet those criteria in the--
William H. Rehnquist: But it's a criteria you would not have to meet under title IX.
Joel I. Klein: --Well, let me say I don't think we'd have to meet it under title IX. I agree with that. But I don't know that that issue is necessarily--
William H. Rehnquist: So that if, if we upheld your position here, people who had previously sued under 1983 and had to prove a policy under Monell would be relieved of that obligation?
Joel I. Klein: --I think that's right, Mr. Chief Justice, but I want to say I don't think that's surprising in the following sense. Of course, Congress has expressly abrogated the Eleventh Amendment under title IX. It hasn't done that under 1983. So I think the notion that Congress intended broader protection under title IX is at least consistent with the one action it took in that regard.
William H. Rehnquist: The Eleventh Amendment has never applied either to municipal corporations or to counties.
Joel I. Klein: That's correct, but it is applied to States.
William H. Rehnquist: Yes, but we're not talking about a State here and we're not talking about a State in the typical Monell situation. States aren't sued under section 1983.
Joel I. Klein: Right. Maybe I hadn't made myself clear, I don't believe. What I was trying to suggest is that the notion that Congress might have intended broader protections in general, not specifically with respect to municipalities, under title IX than under 1983 is consistent with the fact that under title IX they eliminated a protection conventionally available for the States. I agree that has no bearing directly on the cities.
Anthony M. Kennedy: Mr. Klein, what's your position on punitive damages?
Joel I. Klein: My position is that punitive damages would be allowed, but I will acknowledge, Justice Kennedy, that that doesn't follow inexorably from the conclusion that compensatory damages would be allowed. The Court, under section 1983 in cases like Facts Concert, has suggested that punitive damages are a different matter historically and otherwise with respect to municipalities. And it seems to me at least an argument could be made, it's not an argument I would make, but an argument could be made to that effect in the subsequent case. This case, of course, only presents compensatory damages.
Antonin Scalia: Mr. Klein, couldn't an argument be made that this isn't covered by 1983?
Joel I. Klein: Yes. That's what I suggested to--
Antonin Scalia: Have we held... have we held that sex discrimination is covered?
Joel I. Klein: --Have you held that sex discrimination is covered under 1983? Well, I don't... I guess what I would say is what you have held is that 1983 applies to the Constitution and the laws, and title IX is a law, and under title IX sex discrimination is barred. So my argument would be yes, it applies under 1983.
Antonin Scalia: I see what you're saying. Through title IX--
Joel I. Klein: Through title IX. Yeah. I don't think... well, I don't think 1983 gives you any independent rights. It's a remedial--
David H. Souter: --Mr. Klein, to the extent that the Eleventh Amendment waiver is at least a relevant consideration for us, is there any clear indication that the intention, the congressional intention in doing that was to open the States wide open to damage remedies as opposed to getting around a more limited Edelman and Jordan?
Joel I. Klein: --Yes. I think there are several... several reasons to come to that conclusion, Justice Souter, and I think they are quite strong. First of all, of course, Atascadero itself was a case involving compensatory damages and injunctive relief. Second of all, if you're only talking about an injunctive remedy it seems there'd be no reason to possibly abrogate the Eleventh Amendment.
David H. Souter: Well, there wouldn't to the extent that it was merely injunction, but to the extent that equity would be awarding any monetary relief there would be a reason.
Joel I. Klein: That is correct. And then I think, to address that question specifically, the legislative history and particularly this is a statute that was introduced on the floor, an amendment introduced on the floor and Senator Cranston introduced it. And he flatly states that the purpose of this is to allow all the remedies, including damages, which we have always intended. And so I think the clear consistent view is that. And let me suggest there's another at least inferential reason, Justice Souter, and aside from the direct evidence, which is frankly not quoted in my brief but quoted in the brief by the civil rights groups. But the other reason to infer that is in 1984 this Court hadn't simply upheld back pay under Darrone. It also said in Smith v. Robinson that the lower courts generally agree that damages are available under 504. So against the legal climate that Congress was arguing in, I think there's every reason to think it assumed, as the Court had indicated, that damages and back pay were available, once directly, once indirectly.
David H. Souter: Okay.
Joel I. Klein: I'd like to move back just a moment, if I could, because I think this issue of direct congressional intent bears some elaboration. I would like to move back and talk first about 1972 and then about post-Cannon congressional intent. I think they're consistent, but I think there's one difference that becomes important. Now, first of all, I think, without trying to re-argue the Cannon case, I think one or two key points bear emphasizing, and that is in 1972 when Congress enacted title IX there is no dispute it mirrored it on title VI of the 1964 Civil Rights Act. It was essentially an analog that substituted sex for race. Now, title VI... two things had happened, however, that were key between '64 and '72. Title VI had been consistently and frequently interpreted by the lower courts to provide a private right of action. Now, no lower court suggested a limitation on remedy. None. At the same time between '64 and '72, this Court's cases uniformly made clear that a private, an implied right of action means a right to damages. That's what the jurisprudence was. The Court had never uncoupled the notion of an implied right of action from damages. And in the case that must be most relevant, in Sullivan v. Little Hunting Park, the Court concluded that an 1866 Civil Rights Act included an implied remedy for damages. So it seems to me under conventional principles still applied by this Court that title IX basically has to be read as incorporating that congressional understanding.
William H. Rehnquist: Mr. Klein, was the language of section 1866... rather of the 1866 Civil Rights Act... with respect to remedies the same as the language of title IX?
Joel I. Klein: No, no, it was not, Mr. Chief Justice.
William H. Rehnquist: Then why does one bear on the other?
Joel I. Klein: Because the Court's principle in several cases... it was not just Sullivan, the 1982 case. What the Court had adopted in Borak, in Sullivan, in several other cases in this era, was if a statute indicates an intent to protect rights we will take that intent and the courts will fully enforce them. That was the rule.
William H. Rehnquist: Well, is that rule, for example, stated in the Sullivan case?
Joel I. Klein: I believe... I believe it's flatly stated. And the rule is, what the Court in Sullivan flatly states, is when there is a cause of action we will make available all remedies to effectuate it, and that was an implied cause of action case. 1982, of course, doesn't contain an express cause of action. So I think the law was really very settled. Now I realize that today the law is different with respect to when you might imply a right of action. But I'm looking at Congress' intent in 1972, and I would submit to the Court that the two principles, that title VI had a private right and that a private right had never been uncoupled from a damages remedy by this Court, were clear at that point. Then I think, and in fact I think the Court in Cannon itself relied on those cases expressly in reaching the conclusion that there was an implied right of action. But then I think we should look at post-1979, because it seems to me that whatever doubt Congress might have had about the scope of the remedies under title IX was cleared up in 1979 when Cannon came down because the Court then said yes, you do have a private right of action. And in 1979 there had never been a case in this Court that had uncoupled a private right of action from a damages remedy. And I suggest that Congress has taken two actions since then that supports their understanding that damages are available and as well the view that they endorse that understanding. One is the discussion I had with Justice Souter a few moments ago about the Atascadero statute, the Remedies Equalization Act which I think is fairly read, particularly in light of its legislative history, to support damages. And second, only last year in the Americans with Disabilities Act which Congress passed it extended section 504. Now, 504, just like title IX, is based on title VI, and this Court has held that the three statutes in terms of their remedial schemes are read in parry material. And what the Court held, what Congress did under 504 is to say... under the Americans with Disabilities, pardon me, is to say look, we are now applying a right to programs that don't get Federal monies. That is 504 said if you get Federal monies and discriminate on handicap, you're not allowed to discriminate on handicap. Then Congress says we're going to extend that to State and local programs that do not receive Federal monies, and in extending it it says we intend to extend the damages remedy that has been recognized under section 504. And I suggest to you again that that intent reflects a consistent understanding.
Antonin Scalia: Where is that in your brief?
Joel I. Klein: That, unfortunately, and I apologize, Mr., Justice Scalia, that is in the brief of the amici curiae, the American Council of the Blind, and it is discussed on pages 24 through 25.
Antonin Scalia: Does it have the text of the statute? Does the text of the statute--
Joel I. Klein: The statute, Justice Scalia, simply incorporates the remedies available under 504. It expressly does that.
Antonin Scalia: --So when you say that Congress said, you mean some of the legislative history says that?
Joel I. Klein: That's what I--
Antonin Scalia: I wish you'd make the distinction.
Joel I. Klein: --I apologize.
Antonin Scalia: Some of us think there's a difference. [Laughter]
Joel I. Klein: What I meant to suggest is the statute expressly incorporates the remedies available under 504. That's all it says, and what I'm saying is Congress reflected its understanding that that included a damages right. So it seems to me that we now have a 20-year relationship, basically from '72 to the present, where the Court and Congress have interacted in a way that indicates at least now that damages are under... available under title IX, and I don't think there is any good reason to undo that understanding. I would suggest that the contrary is actually true because in Cannon the case is almost unique in that this Court announced to Congress that it would apply the legal standards applicable in 1972 to title IX. That's what it said, and indeed I think it went on to suggest, at least in the concurring opinion, that in the future Congress ought to understand that new rules will govern new statutes. But that's a very different thing from saying that than telling Congress the 1970 rules apply to the context of this statute. Now, despite that clear direction to Congress, the Solicitor General and the United States... and the respondent, want to argue here that the Court should apply a completely new view of interpreting title IX. I would say in response that that... that position is not only unfair given the history we have discussed, but it also quite frankly is wrong under modern standards of applied right of action. That is to say I think it is fairly concluded based on Thompson v. Thompson that all nine members of the Court reaffirmed a view that Cannon's conclusion that Congress intended a private right of action, that that conclusion was supportable. In the view of two justices that was based upon the narrower title VI incorporation theory I discussed. Only then did Justice Scalia, in a separate, in a separate concurring opinion, say he would move the law further and would eliminate implied rights of action altogether. Under that view I recognize we would not be in court. However, Justice Scalia said that's not the law. And he further said if it were to become the law it would have to be applied only prospectively to new statutes when Congress understood what the rules of the game then were. If there are no further questions I'll reserve.
William H. Rehnquist: Very well, Mr. Klein. Mr. Pearson, we'll hear from you now.
Albert M. Pearson, III: Mr. Chief Justice, and may it please the Court: Our view of the case is that the law as it stands now has developed through the sequence of cases, Cannon, Guardians, and Darrone, to a point where at the most under title IX and similar conditional spending power statutes the relief that would be judicially available would be equitable in nature and nothing beyond that. We feel that this line between equitable and traditional damages remedies is a rational stopping point in the development of the law, and we would suggest that if... within the context of this case, the Court hold that nothing more than equitable relief be available in the context of a judicial proceeding. We think that the cases of this Court state the criteria for determining implied cause of action, and we argue also for remedy is governed by congressional intent. And under that method of analysis our view is no reading of the statute, no reading of the cases of this Court up until now, particularly under conditional spending power legislation, would authorize anything more than equitable relief.
John Paul Stevens: May I ask this one question? Nobody's talked about the facts of the case at all, and I understand why your argument might have a lot of force if somebody had been denied admission to the school and then injunction could get them in the school or reinstatement of a faculty member, but what kind of... what equitable relief would this plaintiff get?
Albert M. Pearson, III: Well, as far as equitable relief is concerned I think that there are a number of options available to a school system. Internal discipline of any individuals who would be responsible--
John Paul Stevens: You mean this student should bring suit or to get an order against a discharged employee to be disciplined? I don't understand--
Albert M. Pearson, III: --If necessary. Let's back up. It's a two-step process.
John Paul Stevens: --What in this particular case, what kind of equitable relief could possibly justify even filing the lawsuit?
Albert M. Pearson, III: Well, there are two steps to the process, and I think it's important to emphasize both. The first is that the agency responsible for enforcing title IX, the Office of Civil Rights, was called into the process, and the agency in the statute does have a role in trying to achieve voluntary compliance. That language is used in the statute and that is a predicate to the use of the agency remedy of funding termination. So I don't think you can lightly disregard what the agency can do administratively.
John Paul Stevens: No, no, I understand, but my question is devoted to a... the plaintiff in the case and the... I gather you assume there is an implied cause of action in the case.
Albert M. Pearson, III: Yeah, we don't question that.
John Paul Stevens: And what is the possible, even theoretical possible remedy that the individual plaintiff in this case could have available that would motivate even bringing the case? I understand you're saying--
Albert M. Pearson, III: It goes back to the agency remedy, is that the conciliation process can produce internal changes, discipline, restorative measures, restorative--
John Paul Stevens: --But that's not responsive to my question.
Albert M. Pearson, III: --It is because it moots the equity point. If you take that action and that action is curative and restorative, the action would moot a claim for equitable relief and render unnecessary going--
John Paul Stevens: Moot what claim for equitable... what is the claim for equitable relief that she could ever assert?
Albert M. Pearson, III: --Well, in the context of a student who has been sexually victimized in any way one issue is whether, as a result of the misconduct, she has been fully restored to the educational status she is entitled to under title IX. Our view of the statute is that the Federal interests vindicated by title IX go to protection and securing of the status of the student in the educational climate, and not beyond that.
John Paul Stevens: But those are arguments for saying there's no need for a private cause of action.
Albert M. Pearson, III: No, sir, they're not, because if the--
John Paul Stevens: You still haven't responded to my question, what equitable relief she could get if she has a cause of action.
Albert M. Pearson, III: --If the school does not restore her to a status that she would have enjoyed but for the discrimination, then she can go into court and say they have acknowledged misconduct but they have not taken enough action to restore me to my pre-act status, and then can ask for the district judge to give additional relief, require additional corrective measures to restore the student to the pre-misconduct status. That's the focus of title IX, that's the focus of agency oversight. And in the event that agency oversight doesn't produce sufficient correctives, Cannon allows the student to go into court and says... say OCR, school system, they've gotten together, they haven't done enough, I disagree, will you do more. That's where equitable relief does survive. But, I think the advantage of the title IX compliance mechanisms is that you have some way of resolving the issue of whether there has been a violation and what corrective measures need to be taken, and can obviate the necessity of litigation if you can find the remedy to equitable relief. Bear in mind that if you have a damages remedy it's never moot. Voluntary compliance can be pursued to the fullest extent possible, but that doesn't moot the damages claim. And that's the differentiating factor between the kind of mechanism that we have under title IX, and the kind of enforcement mechanism that they are arguing in our view ought to be engrafted onto title IX. In some cases equitable relief will be unnecessary. The--
David H. Souter: Well, this is one... isn't this one such case on your argument? In other words, isn't your answer to Justice Stevens' question no, there is no equitable relief which she will seek?
Albert M. Pearson, III: --Well, there is none needed, but steps were taken that were--
David H. Souter: Okay. But the answer is that the student would have no reason to seek equitable relief in this case.
Albert M. Pearson, III: --Not at this point, and that claim was dropped, and it was dropped by virtue of the compliance steps taken by the school system, which were the result of the extant enforcement mechanism. So we see the interplay between agency oversight and equitable relief to be a complementary enforcement mechanism quite rational in the way in which it operates.
Antonin Scalia: Mr. Pearson, it seems to me you're asking us to adopt a topsy-turvy implication from the statute. In our system of laws monetary damages is the usual relief. It's equitable relief that's extraordinary. You always have... you always have damages and the issue is do you have an equitable remedy here. You're asking us to just overturn a long historical tradition that I presume Congress has in mind when it legislates. Damages are the normal remedy. You argue about whether you have any equitable remedy.
Albert M. Pearson, III: No. The answer is we're not asking for an inversion of the law. Take into account the defendant that is being sued in this case. It is an institutional defendant, a governmental entity, and historically, since Ex parte Young all the way up until the time Monell was decided, the only relief that could be judicially obtained against governmental entities was injunctive in nature.
Antonin Scalia: It isn't that you wouldn't have a cause of action, it's that there was... there was a defense. It wouldn't lie. But you had a cause of action for equitable--
Albert M. Pearson, III: Well, we're not disputing the existence of cause of action, but the question is is the remedy that we're talking about in the context of this case somehow an inversion of traditional, established legal priorities, and the answer is in the law, by virtue of the longstanding existence of the law of immunities, equitable relief was in fact the primary exclusive relief against immune institutions, both State by virtue of the Eleventh Amendment and governmental.
Antonin Scalia: --And is this an immune institution? If it's an immune institution you wouldn't have any problem.
Albert M. Pearson, III: It will... it may be immune institution; it may not be. There is an argument here in the Court today that the Monell-type standards don't apply, and I assume that they would further argue that the reasoning in Monell ought to be extended to title IX at a minimum. Now, Mr. Klein's position is we don't want Monell-type standards at all. In effect what he wants is a damage action against the institution under a statute which provides no remedy against the wrongdoers as individuals. If you're talking about inverting priorities in terms of morals, at least 1983 provides a remedy directly against the individual wrongdoer, and there is a special, more particularized showing that has to be made in order to impute liability up to the institution. I think the inversion comes in their interpretation of title IX and the identity of the defendant, and then you look at who the wrongdoer is directly. And that would be, under their allegations in the case, the individuals who were involved with this student. So I would disagree with you in the suggestion that we're inverting classical law equity relationship. Suits against governmental entities have always been treated differently because remedies at law are inadequate and therefore equitable relief has been necessary. Ex parte Young fiction was the origin of that in modern litigation, and it is carried all the way forward into the contemporary era, and in fact lots of statutes view this, I would assume, as being such a strongly held principle that they exempted local subdivisions from the scope of their laws. Title VII, for example, was... did not cover State and local political subdivisions until it was modified in 1972. So we feel like that if you look at the contemporary context within which title IX was enacted and at statutory antecedent, title VI, the basic law was no damages remedies against governmental defendants. The structure of the Civil Rights Act of '64 is totally consistent with that premise. Injunctive relief... where legal relief is available under that statute, every title, every one, nothing more than equitable relief. Every title deals with intentional discrimination. And the conjunction of title VI with those other titles, it seems to me, argues powerfully that what was contemplated under title VI was injunctive relief, and the law that was being assimilated in title IX was injunctive relief. Look at the title VI litigation between 1964 and 1972. I tried to cite as many of the cases as I could find in my appendix. Not one case did we find where the litigants even asked for any remedy other than injunctive relief, except for the few cases that drew in the analogy of the title VI equitable relief model. And some of these cases are cases where the 1983 claim was a parallel claim, where you have a damages remedy. Nobody asked for conventional damages, and surely nobody asked for punitive damages. It seems to me when you look at these kinds of factors the case is compelling that neither title VI, title IX, or any similar legislation has ever contemplated the sort of damages remedy. We ask, then, that the Court affirm the ruling of the Eleventh Circuit. If there are no further questions, the Solicitor General has time allocated in this case.
William H. Rehnquist: Very well, Mr. Pearson. Mr. Nightingale.
Stephen L. Nightingale: Thank you, Mr. Chief Justice, and may it please the Court: The governing principle in this area, we submit, is that petitioner is entitled to pursue only those remedies that Congress has authorized, and in determining what Congress has intended we further submit that there is no factual or theoretical basis for presuming that Congress approaches statutory remedies on an all-or-nothing basis. In other words that it... when it sets out to create a private remedy it conceives of remedies in units called causes of action and delegates to courts the authority to fill out those causes of action in whatever manner courts consider appropriate. Indeed in the context relevant to this case, experience suggests precisely the opposite. There is no dispute that title IX was patterned after title VI of the Civil Rights Act of 1964. None of the titles, none of the private rights of action created in the Civil Rights Act of 1964 provided for traditional legal damages. Title VII provided for an expressed right of action for equitable remedies including back pay. Title II provided for preventive relief. Two other titles reserved whatever remedies were available from other sources but created no private remedies. And indeed the most aggressive advocates of private remedies in 1964 in the context of title VI suggested only a provision that would have authorized private parties to seek preventive relief. Justice Scalia, I submit that there is no basis for believing that Congress in this area conceives of the traditional legal remedy of damages as being the remedy of choice. The experience suggests that Congress has thought of equitable relief as the more likely remedy. The Court has also abandoned, in the context of statutory remedies, the presumption that a grant of subject matter jurisdiction authorizes the courts to grant whatever remedies courts may consider appropriate to vindicate rights. In Davis v. Passman the Court made clear that that... that it will continue general Federal subject matter jurisdiction as a basis for conferring remedies with respect to violations of constitutional rights, but it has made clear that at the same time that with respect to statutes the touchstone must be congressional intent. Indeed within a period of weeks after Davis v. Passman the Court issued its opinion in Touche Ross and Redington, indicating that the question of remedies is one of statutory interpretation.
William H. Rehnquist: Is it your position then that the language relied upon by the petitioner is from our decision in Bell against Hood is limited to constitutional violations?
Stephen L. Nightingale: It is, Your Honor. That is our position. In Davis v. Passman the Court said as much. We're... the petitioner suggests that title IX should be construed with respect to precedents preceding its enactment in 1972. I have a couple of points with respect to that. First of all, in Allen v. State Board of Elections, which is a case predating 1972, the Court did recognize a private right of action limited to declaratory... declaratory judgment and injunctive relief. There was, to be sure, no request for damages in that case, but it cannot fairly be said, I think, that the Court has never considered the possibility, even before 1972, that damages necessarily accompanied any private right of action. Secondly, last term in the Virginia Bankshares case, the Court indicated very clearly that although it would not overrule previously recognized causes of action, that in determining their scope and in rounding them out, if you will, it would refer to the principles that have informed its decisions in recent times. In that case it was dealing with a cause of action recognized in the Borak case. Rather than take... than consider principles that might have been in Congress' contemplation in the 1930's, it analyzed the case from the standpoint of its current jurisprudence. Again, I think the... I'd like to turn briefly to petitioner's reliance on the post-title IX statutes. I don't believe there is any suggestion that the private right of action that petitioner seeks was created at any time after 1972. The issue before the Court, in other words, is what Congress intended in 1972 when it enacted title IX. The 1986 congressional action on its face doesn't tell us very much about what the 1972 Congress itself meant, and therefore we believe that it should not displace the Court's consideration and the materials that were determinative as of 1972. Beyond that, on its face the text of the 19... 1986 act only says that remedies, including actions at equity and at law, will be available from State entities to the same extent as they would be applicable from private parties. The goal was to equalize remedies, whatever they might be. The statute on its face does not recognize any particular remedy against any particular defendant.
William H. Rehnquist: This is the 1986 act you're referring to?
Stephen L. Nightingale: Right, the Equalization Act.
John Paul Stevens: But in this case there would clearly be a remedy against a private school here, wouldn't there, on the facts of this case?
Stephen L. Nightingale: Not in damages, Your Honor, we submit. Our position is that the same remedies are available from all defendants under title IX, and they are limited to equitable relief. The... there is further the suggestion that there has been a unanimous judicial view that damages are recoverable under funding statutes. In truth there has not been anything of the sort that would justify the Court in assuming that Congress in 1986, or more recently when it passed the other statute on which my opponent relies, was ratifying a consensus here. Our brief at the petition stage sets forth the rather sharp division among the courts on this issue. After this Court's decision in Cannon, the Seventh Circuit held that damages were unavailable under title IX. There was a split among the circuits under the Handicap Act. And in considering those cases the Court should also be aware that a number of them were decided under the Education for All Handicapped Act and sought sums that in the school committee of Burlington in this case this Court said were not damages. So that in... casual references in many Handicapped Act cases to awards of damages we think should be taken carefully. There is at best a split among the courts under these three related statutes, title VI, title IX, and the Rehabilitation Act on the question whether damages, traditional legal damages, are available. Finally, as a matter of policy and in the context of this statute as a whole there is no reason, we submit, to ascribe to Congress the view that legal damages are necessary for effective enforcement of this statute. In the only express remedy for a violation of this statute--
Byron R. White: When you talk about this statute are you emphasizing the fact that it's a Spending Clause statute?
Stephen L. Nightingale: --We are emphasizing the fact that the obligation is tied to receipt of Federal funds and therefore we believe it is significant, as members of the Court have suggested, that entities be aware of what sorts of obligations they are accepting.
Byron R. White: Well, you're not... I gather then that you're not proposing that we adopt a general rule that anytime we find an implied cause of action in any statute damages are not authorized unless Congress has said so expressly?
Stephen L. Nightingale: The... what we suggest, Your Honor, is that the Court should approach the materials relating to each statute and determine what remedies Congress has authorized. We don't believe that Congress approaches this matter from the standpoint of an all-or-nothing analysis. Thank you very much.
William H. Rehnquist: Thank you, Mr. Nightingale. Mr. Klein, do you have rebuttal? You have 6 minutes remaining.
Joel I. Klein: Thank you, Mr. Chief Justice. The first point I'd like to make is that respondent and the Solicitor General are here today asking the Court to legislate between back pay on the one hand and damages on the other. They think that it's a better means of enforcement to allow for back pay and not for damages. I submit to the Court there is nothing in what we have talked about today, in the legislative history, in the enactments, in this Court's decisions, that would make that distinction tenable. And the Solicitor General significantly did not tell the Court what in the legislative history, what in the statute supports back pay and not damages. The second point that I want to emphasize is that respondent's argument about money not being available against cities and States is flatly inconsistent with the back-pay remedy. All of these arguments about immunity cannot be squared with back pay. They apply equally. Second of all in that regard, respondent tells us there was no back pay, there was no monetary remedies against States and cities during this era. Then he says let's look at the cases from '64 to '72 under title VI. And what does he say? He said they all had 1983 actions, but he's just told us that 1983 doesn't provide damages or back pay against the cities. So these title IX claims were the ones that provided for the monetary relief. Finally, I would submit, we have seen a fair amount of historical revisionism here. I asserted in my opening argument and I will stick by it, if you read the Court's precedents between '64 and '72, which I suggest is the critical period because that's when title VII, title VI, and title IX were passed, the one mirrored on the other, those cases say if you have an implied right of action you have damages. The Solicitor General says look at the Allen case. I welcome the opportunity. Allen provides... Allen was a case involving enforcement of section V of the Voting Rights Act. All that section V provides is for preclearance. So the only possible remedy in that statute would be an order declaring or enjoining the preclearance of the statute. There could not have been damages. The other cases that I discussed uniformly accept damages. Finally, during the period '68... during the period 1964 to 1972... again, the crucible I think we want to look at for '72 intent... not only had Congress passed the Fair Housing Act, which included expressly a damages... which included a damages remedy expressly under civil rights enforcement, not only had this Court come down with Little Hunting Park, Sullivan v. Little Hunting Park, which included a damages remedy under another civil rights statute, but in addition to those events the key point is that the notion that this would be an effective statute, Justice Stevens, without damages for students is an untenable one. And the reason I say that is, look, what does respondent and the Solicitor General say? Here we have a statute that applies to schools, and they say you can get back pay under it. But who are the beneficiaries, the primary beneficiaries? They are obviously students. That's what Congress had in mind. And for students back pay is useless. Now, to be sure, any remedy can be mooted out, as respondent suggests, if you give people what they want. And if they gave our client the damages she is entitled to we wouldn't go to court either, but it is strange to think that Congress would have implied a remedy for back pay and not for damages under a statute where back pay is meaningless for most people.
Antonin Scalia: Mr. Klein... unless they had teachers... they thought that most of the discrimination would be against teachers rather than students. I mean, that's one--
Joel I. Klein: That's a feasible hypothesis, but I think it's belied by the following, Justice Scalia, and that is of course the same year they passed 19... title IX they extended title VII to public and private... to public entities including schools. So they already had the teachers covered.
Antonin Scalia: --Can I ask you, Mr. Klein, whether any of the subsequent statutes that you talk about, the ones following title IX, you cite them to show Congress' understanding of... they imply an understanding of title IX. Is there any disposition that they provide for which would be altered if we did not adopt your understanding of title IX?
Joel I. Klein: I want to be careful in answering this question to you in particular because what I said before which I think is right is the Americans with Disabilities Act says that it incorporates the remedies under 504. Now, I understand that on its face that means whatever the remedies are, that's what they are. What I suggest to you is that Congress in the legislative history indicated that it understood and intended those remedies to include damages. On the face of the statute, no.
Antonin Scalia: So if we should change and provide a lesser remedy for title IX we would also produce a lesser remedy for later enacted legislation?
Joel I. Klein: That is my... I think that is a clear inference of what I've just said. And the final distinction, if I might before I sit down, is let's look at the difference between a statute like title VII on the one hand and the Fair Housing Act and title IX on the other. For most employees back pay is going to be a meaningful remedy. It may not be a complete remedy, but it's going to be a remedy that's going to ensure enforcement of the statute because it's a significant one. In Fair Housing, 4 years before title IX, Congress says you can get damages. And why does it say that? Because in the Fair Housing context, by the time you get an injunction, it's too late.
William H. Rehnquist: Your time has expired, Mr. Klein. The case is submitted.