John G. Roberts, Jr.: We will hear argument first this morning in Case 13-975, T-Mobile South v. the City of Roswell, Georgia. Mr. Fisher.
Jeffrey L. Fisher: Mr. Chief Justice, and may it please the Court: Local governments violate the in-writing requirement of Section 332 when they fail to issue a document separate from the administrative record that specifies the reasons for denying an application to construct a personal wireless facility. Any other construction would flout the very purpose of this provision, which is to enable meaningful judicial review. Indeed, allowing local governments to deny applications without specifying their reasons would require district courts across the country to embark--
Sonia Sotomayor: That's not actually what the court below said. It said that it could discern the reasons from the record. That's a very different statement than saying there are no reasons set forth.
Jeffrey L. Fisher: --Justice Sotomayor, I'm not sure the Eleventh Circuit did actually specify what the reasons were. It did pronounce that it believed that the administrative record contained reasons. We don't deny that there are a bevy of potential reasons in the district courts -- I'm sorry, in the administrative record. I counted nine or ten as I read the transcript and the minutes. The problem is we don't know which one of those were the City's real reasons for denying the permit, and therefore, we can't have the expedited proceeding that Section 332 contemplates.
Samuel A. Alito, Jr.: Well, how far does your argument go? Suppose the -- suppose the instrument of denial, the letter, does not list any reasons, but it incorporates by reference or makes reference to some other document that sets out the reasons? Is that sufficient?
Jeffrey L. Fisher: We think that if the denial letter clearly -- clearly directed us to some other document and said -- and said where the reasons were, and that document was contemporaneously available, we think that would be enough. Now, neither of those things are present here. There's no explicit reference to any particular reasons in the minutes. It just simply says the reasons are available, and of course, as the Solicitor General has pointed out, the minutes were not available.
Samuel A. Alito, Jr.: All right. Well, suppose that--
John G. Roberts, Jr.: Justice Alito.
Samuel A. Alito, Jr.: --Just to follow up, I'm sorry to interrupt. Suppose the letter doesn't make a specific reference to some other document, but there is some other document known to the parties that has been approved by the town council and sets out the reasons, that would not be sufficient. There has to be an express reference in the instrument of denial.
Jeffrey L. Fisher: Right. I think the question is, what does the decision say? That's the statutory term. And so, the decision needs to provide the reasons. Now, you could have a situation like the Omnipoint case in the Sixth Circuit where instead of getting a separate letter like we got in this case, you get a resolution from the city council specifying the reasons, and we think that would be enough as well. All we want to know is why -- why the application was denied so that we can decide, first of all, whether to bring a suit or try to negotiate with the local government. And second of all--
John G. Roberts, Jr.: No, that's not -- I'm sorry, go ahead.
Jeffrey L. Fisher: --And second of all, so the district court can do the streamlined work that Section 332 contemplates.
John G. Roberts, Jr.: But that's not all you want. Let's say on Monday you get a letter that says your application is denied. And on Friday the city council says the reasons we denied the application were because of this, this, and this. Is that enough for you?
Jeffrey L. Fisher: No, it would not be enough--
John G. Roberts, Jr.: No.
Jeffrey L. Fisher: --because the letter needs to tell us why.
John G. Roberts, Jr.: It doesn't matter that four days or three days, whatever is later, there is a resolution that doesn't say it's denied, it says the reason we denied it is this. That's not good enough?
Jeffrey L. Fisher: Well, I think you'd have it in a timing question, the Solicitor General frames, whether that was substantially contemporaneous. We think that it--
John G. Roberts, Jr.: I know.
Jeffrey L. Fisher: --needs to be in a single document.
John G. Roberts, Jr.: It has to be in a single document. What if it's stapled together? You know, here's one, it says denied. And here's one saying, the next day, the reasons we denied it is are these.
Jeffrey L. Fisher: I think stapled together would be just fine.
John G. Roberts, Jr.: No, no. What if they're not stapled together?
Jeffrey L. Fisher: Oh, I'm sorry. I misunderstood. [Laughter] Make it easier for myself. No, we think that the statutory term is definition -- sorry, is decision, is a singular. So it needs to be put together.
Ruth Bader Ginsburg: But decision -- decision, Mr. Fisher, often means just denied. There -- there is one statute was mentioned in the brief at -- this is 47 U.S.C. 546 (c)(3), "The franchising authority shall issue a written decision. " That's one sentence. Next sentence, "Such decision shall state the reasons therefore. " So the requirement of a decision alone doesn't necessitate that reasons be given.
Jeffrey L. Fisher: Justice Ginsburg, we think it's fine to look at other provisions of the Communications Act. That one particular provision stands apart from the several other provisions that the Chamber of Commerce cited around page 10 of its brief and that we cite in our brief where the word “ decision ” is used by itself and in context clearly to mean a specification of reasons. Where the Communications Act contemplates no statement of reasons, it uses words like “ notify ” or “ order ”. And so we think it's perfectly fine to look at the whole Act. That one provision is the only countervailing piece of evidence.
Ruth Bader Ginsburg: Your bottom line is because of this supposed default, you get your -- your application is granted, and that seems odd when the thrust of this arrangement is that the decision should be in the hands of the local governing board or the local council or something. And then to say because of the procedural lapse, then you emerge the winner and it doesn't matter what good reasons the town might have had.
Jeffrey L. Fisher: Well, there's two important things about that, Justice Ginsburg. First is the ordinary remedy is an injunction. We think that's the ordinary remedy. That's an equitable remedy that, of course, isn't absolute. And the second reason is, is why that's the remedy. Remember, the whole purpose of this Act is to defeat local intransigents. In other words, process is the problem, not the solution. So simply requiring additional process, additional time, additional reasons, that's exactly what the Act is designed to solve, that problem that existed before 1996.
Anthony M. Kennedy: Well, I suppose that could be left up to the district court on remand.
Jeffrey L. Fisher: Of course, Justice Kennedy. The Eleventh Circuit didn't reach the remedy question.
Anthony M. Kennedy: Let me ask you, I think we would have a much different case if at the time of the written notice, they appended the official copy of the transcript. Is the problem here that the transcript was too late?
Jeffrey L. Fisher: That's one problem, but it's not the only problem.
Anthony M. Kennedy: Because it seems to me you don't make the lateness part -- you don't make the lateness argument that the government makes in your 22 in your question presented. You do say that there has to be a -- whether documents stating the application has been denied but providing no reasons. So I suppose we can imply from that that you think that the later copy of the transcript is -- is just not applicable.
Jeffrey L. Fisher: That's right, Justice Kennedy. We think that's one problem, but it's not the only problem. Even if the--
John G. Roberts, Jr.: But do you I'm sorry.
Jeffrey L. Fisher: --Even if the transcript had been attached, there still wouldn't have been, based on this letter, a specification of reasons. And I'd be happy to walk the Court through exactly why that's so if you have a question.
John G. Roberts, Jr.: Well, before you do so, why is the transcript required? They had minutes that summarized the testimony. Your position is not that the transcript had to be attached.
Jeffrey L. Fisher: No, it's not. I think Justice Kennedy asked me if the transcript had been attached, and so I was saying that -- taking -- taking that question as as I got it.
John G. Roberts, Jr.: But if the -- I'm sorry.
Jeffrey L. Fisher: The minutes would be enough--
John G. Roberts, Jr.: I may not have followed this. If the transcript were attached, what?
Jeffrey L. Fisher: --Then that would not be enough on its own--
John G. Roberts, Jr.: Oh, okay.
Jeffrey L. Fisher: --because the letter would still need to tell us where in the transcript the reasons were. And I'd like to walk the Court through--
Elena Kagan: Mr. Fisher, you're deriving all this from the word “ decision ” and “ decision ” as even the dictionary you principally cite, Blacks Law Dictionary states, “ decision ”, you know, can mean one of two things. It can mean an opinion or it can mean a judgment, and people refer to -- it use that word to refer to either. So why should we interpret it your way?
Jeffrey L. Fisher: --For two reasons, Justice Kagan. One is because the overall context of the Act and the substantial evidence review requirement and the overall purpose tell us that “ decision ” needs to specify reasons. You can't conduct substantial evidence review until you know what the reasons are.
Elena Kagan: Well, that only suggests that you need reasons. It doesn't suggest that the reasons have to appear in a decision as opposed to some other document.
Jeffrey L. Fisher: Fair enough. So one other part of the Act, which is the expedited review provision, I think, also is instructive. The idea that Congress had in mind was that parties could show up in a district court and go straight to the question whether evidence in the record supported the city's decision. Congress did not contemplate what we would have under the City's approach or even the Solicitor General's approach, which is an entire first phase of litigation devoted to figuring out what those reasons are.
Anthony M. Kennedy: But the larger problem here, of course, is that under your view, the Federal statute says that a local legislative body has to act like an administrative agency, and that raises very serious concern under Federalism. In the in the law of zoning, generally -- forget this Act -- in the law of zoning generally, if you go to the board of supervisors and want to rezone the property from agriculture to multifamily residential, do we say that due process requires them to give some reason? Is there anything in the law of zoning generally that says you have to give reasons?
Jeffrey L. Fisher: I don't think generally. If there were a liberty interest or a property interest at stake--
Anthony M. Kennedy: It would be like Goldberg v. Kelley for--
Jeffrey L. Fisher: --Right. And we cite in our brief the Wolff v. McDonnell case, which says that when liberty or property interests are at stake, minimal due process requires a specification of reasons. And it's not the only time that cities provide specifications of reasons. They do it on their own. If you look at J (a)(84) and if you look at Footnote 4 of our reply brief, we cite numerous instances where the city takes it upon itself already to provide reasons for denials of permits. They do it--
Ruth Bader Ginsburg: Mr. Fisher, could you explain how you are disadvantaged? Now, first of all, what happens on remand to the district court in your view? The Eleventh Circuit rendered its decision, the case is remanded, what happens on remand?
Jeffrey L. Fisher: --Well, as the case stands now, we prevailed in the district court and the district court gave us an injunction allowing the site to be constructed. The city took an appeal to the Eleventh Circuit which reversed on the question of whether the Act was violated. So I think what would happen, after this Court rules, it would go back to the Eleventh Circuit with the case in that -- in that posture. If I could say a couple more things about--
Ruth Bader Ginsburg: Then what would -- then if this Court should uphold the Eleventh Circuit, then what happens?
Jeffrey L. Fisher: --If you uphold the Eleventh Circuit, then we go back down to the district court and are going to--
Ruth Bader Ginsburg: And what happens there?
Jeffrey L. Fisher: --And I think there we're going to have to have one of these prolonged proceedings to decide what -- first of all, what the reasons are. The city has already filed one brief in the district court, before this case started to go up on appeal, where it took the position that there were three reasons for its denial: Property values, the fact that T-Mobile allegedly already had sufficient service in the area, and compatibility with the neighborhood. The city, in this Court, has offered some different reasons. The Solicitor General offers a still different take on the transcript and the minutes. And so, first we have to have in the district court one of these first mini hearings that I've been describing. And then we would, perhaps, then be able to litigate the question Congress contemplated, which is substantial evidence followed by some other arguments we might make.
Sonia Sotomayor: Mr. Fisher, assume, and just for the sake of argument, that we do say that a separate writing that clearly sets forth or sets forth the reasons for denial is adequate. I understand you to say that this is not adequate because it's not clear presumably; am I correct?
Jeffrey L. Fisher: Yes.
Sonia Sotomayor: Under this board's rules, do -- I'm assuming the board has to be unanimous, majoritarian voting rules, but why does every council member have to have the same reason? Can't different people say no for different reasons?
Jeffrey L. Fisher: I think, Justice Sotomayor, they might be able to. The ordinary course would be a letter that provides reasons that speak for the entire council. But I wouldn't deem it impossible for a letter to come to us that says two city council members voted to deny the application for this reason and two others voted to deny the application for another reason. We can still use that to go into district court and the district court could still do its job.
Sonia Sotomayor: Oh. So your--
Antonin Scalia: But you say you can't use it in this case. You say that that factor renders the -- the giving of reasons inadequate.
Jeffrey L. Fisher: No, Justice Scalia, it's not just the multiplicity of people on the board stating different things. It's the fact that we don't know whether those statements constitute reasons. And this is one thing I really would love to give you a couple of examples. There are many problems, first of all, arising out of the first question whether or not what citizens and experts say can constitute reasons. The Solicitor General says: Well, there has to be a clear indication that the voting members agree with that. Well, what if somebody just says, that's a good point, we'll take it into consideration? Or, thanks, you know, I'll -- I'll think about that? What about the fact that a member, him or herself, might say something with an equivocal tone. For example, Dr. Price said: I'm not sure how to assess property values here.
Elena Kagan: Well, doesn't that--
Jeffrey L. Fisher: Does that count as a reason?
Elena Kagan: --All of these kinds of examples, don't they only suggest that a State or a locality would be well advised to write up a little paragraph that clearly states its reasons? But, you know, if they want to take the risk that a district court is going to say, gosh, I just can't find the reasons in this record, it's all too muddled. If they want to take that risk, what in the statute prevents it?
Jeffrey L. Fisher: The nature of substantial evidence review, which has a limiting principle--
Elena Kagan: No. But I mean, substantial evidence review requires reasons. If they want to take the risk that their that their minutes or their transcript will not allow the district court to do substantial evidence review, then, you know, they'll lose.
Jeffrey L. Fisher: --But, Justice Kagan, substantial evidence review requires them to defend only on their actual reasons. And what the city wants to do is have a record of over a hundred pages where anything it can find a foothold in, the lawyers can come in and make an argument that that's why they denied something. That not only frustrates process, but even, Justice Kennedy, to your question about Federalism, it starts to frustrate Federalism, because now Federal courts are deciding why local government -- local governments--
Antonin Scalia: Well, I'm surprised that -- that you're willing to accept that there does not have to be a reason or a number of reasons that -- that the city council agrees on, that, you know, seven members of the city council, each -- each one of them has a different reason, and that's okay. Do you think that that's what the statute means?
Jeffrey L. Fisher: --Well, I'm not sure, Justice Kennedy -- Justice Scalia. It -- you don't have to decide that in this case. The Solicitor General reserves it in a footnote. I'm not sure that just like this voting body can reach a decision without a single reason -- you know, these local government boards I think are really acting in an adjudicatory posture here, so I wouldn't want to preclude that.
Antonin Scalia: Yes. But one can interpret the statute as demanding that they have a reason. Now, to be sure, that's contrary to normal legislative action. Congress doesn't have to have a particular reason for a statute. Every every congressman can have a different reason, and it's still valid. But I -- I would read this as saying the city needs to -- when it denies, it has to have a reason for denying. I don't -- I don't know how else you read it.
Jeffrey L. Fisher: I certainly won't argue with that.
Stephen G. Breyer: Well, then what's the disagreement? I mean, what's the disagreement between you and the Solicitor General? Justice Brandeis said years ago, which I thought was a great statement of law which doesn't ordinarily appear: Before we can say whether an agency decision is right or wrong, we have to understand what it means.
Jeffrey L. Fisher: Uh-huh.
Stephen G. Breyer: You get some piece of paper, you can't figure out what it means, well, then they'll send it back or they say no. That's what judges do with administrative agencies all the time. Your question says, do they have to have reasons? Yeah. Their question says can it appear in a separate document? Why not, as long as the document is given about the same time? So what's the problem?
Jeffrey L. Fisher: The problem -- we do agree with the Solicitor General, you need reasons. We also agree with the Solicitor General that they need to be clear. Where we part ways with the Solicitor General is on the proposition that the ordinary administrative record can meet that clarity standard.
Stephen G. Breyer: Sometimes it could, sometimes it couldn't. It depends on what it says.
Jeffrey L. Fisher: Well, let me -- let me just talk about the record in this case, Justice Breyer.
Stephen G. Breyer: But that's the -- I know. You want -- that's what you really want to say. You want to say the record here isn't good enough. But it seems to me that the one thing we're not deciding is whether the record here is good enough. Rather, the questions have been put to us in general terms; we can answer them in general terms. We probably even might be able to write an opinion in three paragraphs, clear.
Jeffrey L. Fisher: What I want to use is the record here to be illustrative, Justice Breyer. There's nothing unusual about this record in the sense that--
Stephen G. Breyer: Ah, yes. But to do that, I would have to know quite a lot, wouldn't I, about -- about the situation of your client, about the situation of the city council, about what was actually meant by what they said about the context. You understand the problem.
Jeffrey L. Fisher: --Well, let me -- let me just give you a few examples. At JA 336, 338, and 340 are the parts of the minutes that the city and the Solicitor General rely on. And they say things, for example, in equivocal ways, as I was describing. We don't know whether that was a reason. We also have a temporal problem that arises sometimes.
Elena Kagan: As I understand the SG's position, the SG says there were five members of the council, three of them talked about the incompatibility of this tower with the neighborhood. So what in that statement do you contest?
Jeffrey L. Fisher: That statement is--
Elena Kagan: Do you think that three of them did not base this on the incompatibility of the fake tree with the neighborhood?
Jeffrey L. Fisher: --I'm not a hundred percent certain they did, because the motion, as is set forth in JA 340, comes after all of those statements. There are many other statements, Justice Kagan. One -- one -- one council member said: I don't think cell towers should ever be able to be built in a residential neighborhood. Another asked whether T-Mobile could use different technology to establish the cell site. So we don't know whether these statements, which also were right around the same time, also are things the city could defend on. And I'm not sure the Solicitor General even has taken a position as to whether or not there are any other reasons in the record. The Solicitor General has told us there's one thing we can consider.
Elena Kagan: The Solicitor General only needs one.
Jeffrey L. Fisher: Well, no. They don't necessarily need one, Justice Kagan, because in the district court we're going to challenge for substantial evidence those reasons. So it's going to be very important if in the district court we can show, as we think we can, that substantial evidence does not support the city's incompatibility argument. Then the question is going to be is there another reason in the record, and we haven't -- we have, perhaps, conflicting answers from the -- from the other two lawyers in the room today.
Elena Kagan: Well, then you're going to reach the question that Justice Scalia had a view of, which was, you know, if two people think X and two people think Y and one person thinks Z, is that sufficient? But as long as you have something that three people think, why isn't that sufficient?
Jeffrey L. Fisher: It's not sufficient because we can't guarantee that that is why they voted. These are statements that come before a vote. And just like in this oral argument today, there's going to be many concerns and questions that precede the vote. The vote may be for a different reason. You don't know -- I'd like to think that every answer I give today is going to assuage any question that I get, but that's not necessarily the case. And it's not necessarily the case that something a local council person says for a round of applause in the room is exactly why they're going to vote 10 minutes later on the application. If I could reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, counsel. Ms. O'Connell.
Ann O'Connell: Mr. Chief Justice, and may it please the Court: It's our position that a local government must provide reasons when it denies permission to construct a cell tower so that a court can conduct substantial evidence review as contemplated by the statute, but those reasons don't necessarily need to be included in the same document as the city's written denial of the application. It's fine for the city to give its reasons in some other document like meeting minutes. If the local government relies on a separate document, that document must be available at the time the written decision is issued.
Ruth Bader Ginsburg: Where does that come from? There's nothing -- Ms. O'Connell, there's nothing in the statute that says that the decision doesn't have to have the reasons, something has to have the reasons. It has to be, you say, fairly contemporaneous. I don't see anything -- you -- you are inserting something into the statute that is not there.
Ann O'Connell: The -- the primary reason why we're saying it has to come out at the same time is because otherwise it would frustrate the judicial review provision, where the applicant has 30 days under the statute to decide what action to take based on the denial.
Ruth Bader Ginsburg: But wouldn't it more sensible, then, to take a suggestion that has been made that we run the 30 days from when reasons are given, run 30 days from when the minutes are available? I don't know why you have chosen a route that would say this applicant wins automatically, no hearing, no nothing. It doesn't matter that town's council had good reasons for it, they weren't contemporaneous, that's the end of it.
Ann O'Connell: I think one reason why, Justice Ginsburg, is because it's difficult to read the statute that way. The 30 days runs from the final action of the local government, and the local government has to issue a decision in writing. It would be difficult to say once you have a letter in hand that says, dear applicant, your application has been denied, that you don't have a written decision. The applicant would be left to wonder whether reasons are coming at all, and if so, what those reasons are going to be. And I think if you follow that to its logical conclusion, if -- if you didn't have reasons and didn't know if they were coming, I guess what you would do, then, is wait 150 days from the day you filed your application and then file a lawsuit saying, they didn't act on my application in a reasonable time, which seems not correct, given that they sent--
Stephen G. Breyer: How does it work in -- in the ordinary agency, which I should know but I don't? The Federal Power Commission, a blessed memory, is faced with an application by El Paso Natural Gas to add an extension in a little area of New Mexico. The power commission denies. There are five votes. One person says I'm denying because we don't need the gas; a second person says I'm denying because it's ugly; a third person says I'm denying because it blocks certain animals from getting to their feeding place; and the other two vote to grant, all right? That's arisen in the course of the last 100 years, something like that. How do the courts handle that?
Ann O'Connell: --In footnote 6 of our brief we describe some cases along those lines, where -- I mean, in this case we think that you have a majority, three of five given the same reason--
Stephen G. Breyer: But if -- I just want to know how it works in the case I put.
Ann O'Connell: --Right. In -- in the cases we describe in footnote 6, some courts have said and the D.C. Circuit did assume in one case that we cited that you need a majority, but other courts have said that it's okay as long as if everybody gives a different rationale, as long as you can get to a majority; you can conduct substantial evidence review of each of those rationales. And we think that makes sense here because the statute gives reasons why you can't deny an application. It doesn't say there are only certain permissible reasons why you can't.
Antonin Scalia: But doesn't the Administrative Procedure Act require providing reasons when -- when there's a grant or a denial?
Ann O'Connell: Yes. And we agree that reasons are required. The question Justice Breyer was asking was what if you don't have a majority in -- in support of any particular rationale, and the response is we've cited some cases in footnote 6.
Antonin Scalia: Don't -- don't you have to give the reasons with the decision under the APA?
Ann O'Connell: Yes, but--
Antonin Scalia: So how can you give it if -- if there is no majority for any single reason?
Ann O'Connell: --You would just -- you would give the rationales of each individual council member. This is not -- it's not a problem that's unique.
Antonin Scalia: Has this Court ever held that? Because I would never hold that.
Ann O'Connell: No, no. It's not a--
Antonin Scalia: It's absurd.
Ann O'Connell: --Justice Scalia, we cited some cases in footnote 6 of our brief that indicate that other courts have allowed that to occur.
Sonia Sotomayor: I'm -- I'm a little bit confused by that because and this is what troubles me the most. You get five council members, five different reasons. At what point does he win, meaning if he proves that three of them were wrong in their reasons, so there wasn't a majority vote for anything? That's what he has to do?
Ann O'Connell: There weren't a majority of council members that gave a reason that wasn't prohibited by the statute or was not supported by substantial evidence.
Sonia Sotomayor: That's a--
Ann O'Connell: And it's not a problem that's unique to this particular context. That comes up sometimes in agency decisions where there's a multimember body that's heading the agency. The cases in footnote 6--
Anthony M. Kennedy: Do you want us to write an opinion that says under this Act agencies have to comply with SEC v. Chenery? Or pardon me, city councils have to comply with SEC v. Chenery?
Ann O'Connell: --We think that by requiring that decisions be in writing and supported by substantial evidence and then also by providing for judicial review of those decisions, implicit in the statute and explicit in the legislative history is that the local government has to give reasons.
Anthony M. Kennedy: Either under general laws of zoning or under any similar Federal statute, have we ever imposed -- has the Federal Government ever imposed requirements like this on a legislative body?
Ann O'Connell: I don't think so, but it's not -- I mean, we realize that this is a little bit of an anomaly in this statute, that normally a city council can do whatever it wants and it's not required to give reasons for its decisions unless it's--
Antonin Scalia: Is it just a legislative body?
Ann O'Connell: --No. In this case, we think it's acting sort of as a--
Antonin Scalia: Yes. I would -- I would consider this as an adjudicative body.
Ann O'Connell: --Right. It's it's not making laws that would apply prospectively, but taking a -- a specific ordinance that already exists and applying it to the facts of this case. But in any event, that is the one thing that we think the statute does require local governments to do that could be different from its normal procedure, is to give reasons.
Antonin Scalia: Do you think that--
Sonia Sotomayor: --What does the -- what does the Petitioner do with the one council member who didn't give reasons? What does that person count as?
Ann O'Connell: So -- so if he didn't give a reason, then I think you just don't count his -- his vote toward the -- the people that gave a rationale.
Samuel A. Alito, Jr.: What happens if--
Sonia Sotomayor: It was four people who were there.
Ann O'Connell: There were five.
Sonia Sotomayor: There were five. One didn't speak, so you don't count his or her vote. So it's a split vote.
Ann O'Connell: Yes, but there were still three people that gave incompatibility with the neighborhood as their -- as their reason.
Samuel A. Alito, Jr.: --What if -- what if three people say, this is -- this is incompatible with the neighborhood, and then later other -- another member or other members provide other reasons, and those other reasons are either invalid under the statute or not supported by substantial evidence? Under that circumstance, is it -- can it be inferred that the final vote of those who previously expressed the view that this was bad for aesthetic reasons was the reason for their vote? That seems to be Mr. Fisher's argument, and what's your answer to that?
Ann O'Connell: I think -- I want to make clear that we're not saying that when you look through the written administrative record to determine what the reasons are, that you read through the whole transcript and that anything that came up during the hearing, like what happens when the power goes out or can't you make these things smaller or something like that is the reason why a particular council member voted, just as we wouldn't think questions at oral argument are your reasons for voting to affirm or reverse. But in this case, you can pretty easily see that at the end of the hearing, the mayor said, okay, now, if everybody is finished giving their testimony, let's hear from the council, and they went down the line and everybody said what they thought about it. It's those that we think are the reasons the each person has given.
Elena Kagan: Ms. O'Connell, I think part of Mr. Fisher's arguments is that if everyone agrees that reasons have to be given, what sense does it make to require judges to scour the minutes and to scour the transcript and to try to make these judgment calls about, you know, when an individual council member has given a reason? Why not at that point, once we're in the mode of requiring things, why not just require that the reasons be stated in the two or three sentences that the council or other body promulgates?
Ann O'Connell: It's not our position that such a requirement would be difficult to comply with. The reason we oppose it is because we don't think Congress went that far. By requiring that decisions be supported by substantial evidence and providing for judicial review, we think Congress imposed a requirement that reasons be given. But other than that, they have a savings clause that says that, other than what they specifically said, nothing else should interfere with the decision-making process of local governments. And so if it's part of that decision-making process to normally talk about it at a meeting and give the decisions orally and then write up a summary that's written, then we don't think that the statute should be--
Antonin Scalia: --I think Justice Kagan is not disagreeing with you. She is saying, yes, reasons must be given. And reasons are given if there's just this exchange in which a congressman -- a councilman expresses a certain fondness for a particular view. What -- what is the big deal of requiring either that the full council give its reasons or if you think it's enough that different councilmen have different reasons, each councilman say, I am voting against this for this reason? What is the big deal about that?
Ann O'Connell: --There is certainly not a big deal about it.
Antonin Scalia: Especially since you're making the council do the same thing. You're making them give reasons, right?
Ann O'Connell: Right.
Antonin Scalia: So why not say you have to spell the reasons out?
Ann O'Connell: I think the -- that is part of substantial evidence review and part of Chenery, that the reasons have to be clear. That's not part of our test. It's inherent in substantial evidence review, and we do think the statement has to be sufficiently clear to conduct substantial evidence review.
John G. Roberts, Jr.: Thank you, counsel. Mr. Carothers.
Richard A. Carothers: Mr. Chief Justice, and may it please the Court: The Respondent in this case, the City of Roswell, its amicus, the Solicitor General, and the Eleventh, Fourth, and Eighth Circuits all agree that 332(c)(7)(B)(iii) neither explicitly nor implicitly requires that reasons be provided in the written denial itself as long as there are reasons provided elsewhere in the written minutes or transcript. In this case--
Sonia Sotomayor: So when do you think the statute of limitations runs?
Richard A. Carothers: --That's a very good question.
Sonia Sotomayor: The 30 days?
Richard A. Carothers: I have -- I have pondered that because it is an issue in this case, but also, it's an issue going forward. It's not really an issue in our case because the 30 days, when it ran, there had already been the approval of the minutes, the written denial had gone out, and the appeal was able to be timely. There seems to be a split in the Federal circuits as to whether that should be--
Antonin Scalia: Excuse me. Was -- was able to be timely, which means if all of that comes in 5 days before the deadline, it is still able to be timely? I thought they were given 30 days to decide whether -- whether to go forward or not and you're saying it's enough if before the 30 days has totally expired, they -- they can figure out what the city council decided.
Richard A. Carothers: --Justice Scalia, that is essentially correct, but what we are saying is we believe that the 30 days should run, as Justice Kagan suggested, from the approval of the minutes. If you have the minutes approved--
Anthony M. Kennedy: Well, in this case -- in this case, May 10th the minutes were approved, and May 13th the suit was filed because the time ran out on May 14th.
Richard A. Carothers: --That's correct.
Anthony M. Kennedy: And you think that's sufficient?
Richard A. Carothers: I think it is only sufficient for this case.
Anthony M. Kennedy: The 30-day period is so there can be a carefully reasoned decision whether or not to file a suit. Under your view, you have only 3 days.
Richard A. Carothers: Justice Kennedy, that -- that is what happened in this case. That is not--
Ruth Bader Ginsburg: I thought you were taking the position, in answer to the government, that says you have to have it contemporaneous because of the 30 days that the company has to make up its mind whether to seek judicial review. But I think you made the suggestion, which I then put to counsel, that just have the 30 days run from when the reasons are available. So instead of having it run from when they send you a letter that says denied, treat that as not final until the reasons are given. I thought that was your position.
Richard A. Carothers: --Justice Ginsburg, that is exactly what we're saying, and for three reasons. One, the approval of the minutes -- we've talked about substantial evidence, we've talked about the substantial evidence has to be affirmed by reasons given somewhere in the record. The way to know what that is, it doesn't talk about a letter. It talks about final action in (B)(iv) and, therefore, the final action of those minutes is the approval of those minutes. Secondarily what that does is, when the minutes are approved, the applicant, if unsuccessful, has the opportunity to have 30 full days, knowing what's in the record, in order to file the appeal, and that dovetails with the recommendation of the Solicitor General about the contemporaneous minutes.
John G. Roberts, Jr.: So are you saying--
Richard A. Carothers: Excuse me.
John G. Roberts, Jr.: --Are you saying that the actual decision is the minutes--
Richard A. Carothers: Yes.
John G. Roberts, Jr.: --as opposed to the letter you've sent?
Richard A. Carothers: That is correct. The letter is a more or less, while the Petitioner does not like this word, it is a notification. It is a statement that it has been denied. Why is that? Because, as this Court has referred to it and other courts have referred to it, this whole telecommunications jurisprudence across the country is a patchwork, and in this particular instance, there are jurisdictions that don't require any notification, there are jurisdictions that require something be entered on the minutes, there are jurisdictions that require a letter, there are jurisdictions that require a certified letter.
Anthony M. Kennedy: In your view, if they had waited 60 days before they approved the minutes, then we wait until then for the time period to run?
Richard A. Carothers: That is correct, Justice Kennedy. The only -- the only impediment to any of this is the shot clock, and I think that -- and I think that if the 150 days starts to run, there's going to be a problem if the local government hasn't approved their minutes by that time. That may well not give the applicant a record that does not have substantial evidence in it.
Stephen G. Breyer: The facility placing -- everyone loves cell phones, apparently. [Laughter] Nobody likes towers, apparently. So Congress passes a law. It says: You've got to have towers, I'm sorry, and the local community can stop it, but they can't stop it for one of three substantive reasons; and in addition, they have to show that their decision was rational, which is done -- or reasonable, which is done by having a record with substantial evidence. That's what this means to me. Now, your clients and others aren't used to being agencies, but they're being treated like agencies and, therefore, the simplest thing is to read this two things together, just what Justice Kagan said, write the decision and give your reasons because otherwise there is no way to know whether there's substantial evidence or not. It's in the same clause. It's in the same phrase. The words are right there. It says “ decision supported by substantial evidence ”. I know -- that's, I think, the basic argument. The Solicitor General doesn't go that far, but if we don't have simplicity, we'll have 2 million different ways of going about this between different cities and counties.
Sonia Sotomayor: So why couldn't the city council or this legislative body have waited until its official minutes and sent the letter that day with the minutes?
Richard A. Carothers: That they could have, and I think that is what the Solicitor General is recommending. That was certainly not the law at the time, but that that is -- the way to have contemporaneous minutes is to have the writing be basically at the time that it's approved. One of the problems is -- and one of the problems with this decision to deny a request is in order to state those reasons, it has to have the very minutes approved in order to look at it and say, these are the reasons. Now, I would suggest to this Court that that will only start a new inquiry, and that is the minutes -- excuse me, Justice Scalia.
Antonin Scalia: I don't understand -- I don't understand what you're saying, it requires a written decision. Okay. And the city council here issued a written decision to the phone company saying, we have decided to deny your request. Now -- and you're saying that is not a written decision, you have to wait until the minutes are written up. So, what, were they lying when they said, we've decided?
Richard A. Carothers: I think what I'm saying, Justice Scalia, is that the writing that is sent -- we've had a lot of verbiage in the briefs about what is a decision and how to characterize that decision and whether it has some sort of opinion to it or whether it's just, this is what we did. The statute requires substantial evidence in a written record which necessitates reasons. Those can only be ascertained by the official minutes.
Stephen G. Breyer: But then you're agreeing with your opponents, it seems to me. You have the document, the document says “ deny ”, and there it gives the reasons for denying so people can see if there's substantial evidence. You're just saying it was the later document. They're saying it was the earlier document. I don't know.
Richard A. Carothers: Well, Justice Breyer--
Stephen G. Breyer: But do you agree with them on that, that one document--
Richard A. Carothers: --I don't agree with him on that, Justice Breyer. But I agree with what you just stated, that the minutes, when approved, they have substantial--
Stephen G. Breyer: --Well, I don't know if they should be called “ the minutes ”. I'm not an expert on that area of city government. I don't know whether you want to call the document “ minutes ” or whether you want to call the document “ written decision ”. That seems to me not before us, but what is before us is whether the decision has to have in it the reasons so that we can tell if it's supported by substantial evidence. You agree on that one?
Richard A. Carothers: --Again, I agree, Justice Breyer, as you have stated it. I disagree that that particular decision is the one that is sent out right after the hearing, and in my proposal it wouldn't be sent right after the hearing. It would be sent after the minutes, and you would have the collective record which is referred to by the Eleventh Circuit, which could be--
Sonia Sotomayor: Well, that endorses more or less the SG's position. What you're saying, I think, in answer to the question presented, the written denial doesn't have to itself as a document, provide the reasons, but when it's sent it has to have attached to it, referenced, something that is available telling you the reasons.
Richard A. Carothers: --Well, and I'm not sure it has to tell the reasons if it attaches that, because the reasons will be in there and it'll be up to--
Sonia Sotomayor: Something that--
Richard A. Carothers: --the district court to either ascertain, glean, clearly indicate--
Antonin Scalia: And it's ineffective unless that exists. So that what was given here in writing was not a decision, but what? A we intend to decide when the minutes are finally written? A prediction? What was it then--
Richard A. Carothers: --I would characterize--
Antonin Scalia: --that the phone company got?
Richard A. Carothers: --it as a notification of the denial, but the specific--
Antonin Scalia: It hasn't been denied yet. You're saying it's not denied until the minutes are written--
Richard A. Carothers: --I would--
Antonin Scalia: --which is, you know, God knows when.
Richard A. Carothers: --Well, it has to be done with the minutes, and you've got the shot clock running, but you can't have -- you can't make the applicants--
Antonin Scalia: Well, you shouldn't send anything out then because according to you, there has been no decision. You shouldn't send out a notice that we've decided.
Richard A. Carothers: --Going forward, Justice Scalia, that is our recommendation--
Antonin Scalia: That's what you ought to do.
Richard A. Carothers: --and I think that if you adopt, as Omnipoint has and Helcher and some other Federal cases, that, in fact, it should be the approval of the minutes, then I think that whole issue goes away.
Anthony M. Kennedy: But it sounds like you're changing your position. Page 34 of the red brief, that given the plain wording of the statute, whether a document from a -- the question is, whether a document from a State or local government stating the application has been denied but providing no reasons can satisfy the statutory requirement. And the simple straightforward answer is yes. So now you're changing your position.
Richard A. Carothers: Justice Kennedy, I don't believe I am stating the position. What we're saying is it satisfies that portion of the statute. It doesn't satisfy the substantial evidence in the written record which has got to be -- which we contend, separated by the word “ and ”, the conjunctive, that is a separate requirement. And one of the things I think that I want to -- the point I want to make is--
Anthony M. Kennedy: But where but surely, under your view -- I'm not convinced that your position hasn't radically changed -- but surely under your view, what you've explained to us at page 34, the 30 days begins to run the minute the notice is given.
Richard A. Carothers: --Justice Kennedy, again, I think when we use words like “ notice ” and “ decision ”, the letter -- or the statute says, "Decision in writing of the denial. " That doesn't mean that is elevated to a decision by this Court or a decision by a lower court that has all of the findings and conclusions and the reasons, because the reasons are going to come from the minutes, and that's why we're advocating that the minutes be the start of the 30-day period, and there can be a confluence of the letter--
Sonia Sotomayor: --Could you--
Samuel A. Alito, Jr.: That may be what the -- what the statute means in light of the practicalities of the situation. Now, since it talks about substantial evidence review, there's an argument that a municipality, when it makes a decision like this, should be treated pretty much like a Federal administrative agency. But on the other hand, municipalities are sometimes very small. These -- these bodies are -- consist of lay people who are not learned in the law, they may not have attorneys available to them who are very knowledgeable about Federal telecommunications law. So can you say something about that situation? Is any of that true with respect to -- to Roswell? And what do you think Congress may have had in mind in a situation with respect to the treatment of local governing bodies like Federal administrative agencies?
Richard A. Carothers: --Well, Justice Alito, that is a multi-tiered question. Let me see if I can answer it. Number one, the amicus brief that was filed on behalf of the City of Roswell basically lays out the fact that you are exactly correct, there are lots of municipalities and local governments throughout this country that have trouble dealing with a pretty sophisticated Federal statute. The City of Roswell has a relative degree of sophistication, it has attorneys, and it has planners and can do that. But no court has ever held, including this Court, that the Chenery-type analysis for what needs to be an administrative decision has an application to a local government. If you look, for instance, that -- that -- there is lots of argument from Petitioner that there's something wrong with what Roswell did. And if you just look at, specifically, they had evidence in the record, they had people who said this, this, this, this, and this. You had four council members, three of whom said aesthetics, not right for the area, diminution of property value, and the other one--
Elena Kagan: Mr. Carothers, I wonder whether what Justice Alito pointed out about the nature of local governments, which you agreed with, whether that doesn't suggest that we should try to keep our rule quite simple. In other words, given that nobody in small local governments has access to great lawyers or knows a lot about communication, that we should just set up a rule that enables them to comply simply. And that rule, honestly, would be Mr. Fisher's rule. It would just say, in your decision, write a sentence or two saying why. Because otherwise, if we don't have that rule and every judge has to look through the minutes and the transcript and anything else in the record to decide whether a reason is clear enough, there are going to be a lot of local governments that are going to get kind of caught, and the judge is going to say, I'm sorry, it's not clear enough, even though if the government had spent just five minutes, it could have made it clear enough. And maybe we should just say, do that so that you don't get caught.
Richard A. Carothers: --Well, Justice Kagan, I -- I don't object to that as long as the minutes are the final decision and so the 30 days can run from there. But then you're going to have that decision that's not going to come out for a couple months until the city attorneys and the planners have time to digest the decision of the record in order to formulate that. And I will suggest to the Court that if, in fact, that occurs, it starts the process over because then the challenge is going to be the statements in the letter do not accurately reflect the minutes, they misstate the minutes, they mischaracterize the minutes. In fact, they're a post hoc rationalization of what was in the minutes. We are going to have yet another line of inquiry and challenge which could be avoided if we simply waited for the letter and approve the minutes--
Sonia Sotomayor: --So that inquiry and challenge will be left up to judges to figure out what the minutes say, don't say, and what the reasons were.
Richard A. Carothers: --Well, Justice Sotomayor, as -- as I read the jurisprudence, the fact is the substantial evidence in a written record and to see the reasons is pretty much left up to the district court.
Sonia Sotomayor: All right. Let's go back to, we had five members here. One didn't talk. Do you agree we don't count that person?
Richard A. Carothers: Correct.
Sonia Sotomayor: All right. Now, do we need a majority rule, a majority of the council people giving a reason?
Richard A. Carothers: I don't believe that is the case, Justice Sotomayor, and I will say it because of this. It could be, but let's leave that situation. The situation we have here was we had three persons of a pretty like mind, the aesthetics, the land use, the diminution of property values, that made a determination and said, we we think that these are real bad. Then you have a pretty long motion by Dr. Price--
Antonin Scalia: Well, they said that before the vote. We don't know why they voted. What -- what's the big deal of having a city council say, we deny this request for the following reasons: One, two, three? That would be very clear; there'd be no problem at all.
Richard A. Carothers: --Justice Scalia, I think that is exactly what happened in that -- in this case by the majority vote on Dr. Price's motion. Now, I will concede to you that the council members did not stand and say I'm voting for Dr. Price's motion because of this, this, and this.
Samuel A. Alito, Jr.: Well, suppose we issue an opinion in this case that says that the the formal instrument of denial must say in simple terms the reason or reasons for the denial. All right? Let's say we issue that opinion, and six months later something like this comes up in some rural municipality. Let's say they've got 1,000 people. And how likely is it that the members of the governing body there, or their attorney, if they have an attorney, will be familiar with our decision in T-Mobile South v. City of Roswell?
Richard A. Carothers: Well, I don't know the answer to that exactly, Justice Alito, but I will say that whatever the decision is in this case--
Samuel A. Alito, Jr.: You know, I know that everybody in the country hangs on our every word. [Laughter] And they're all going to read this opinion.
Richard A. Carothers: --What everybody in the country has, Justice Alito, is they have people knocking at the door to put up cell towers. So this is a topic that many, many cities are attuned to. But what I am attempting to say and urge the Court is to adopt, I think, all of the concerns the Court raises. If the 30 days runs from the approval of the minutes, then you have the opportunity to have a writing--
Sonia Sotomayor: Please articulate your rule, because you just said to us earlier that not every body of this type has -- has minutes, or minutes that become the statement of reasons. So what's the rule, a general rule about what's the final decision and when the time starts to run, assuming--
Richard A. Carothers: --Justice Sotomayor, what I would -- what I would craft and -- and what I believe to be the appropriate rule is the denial letter simply says denied. That's what the statute says. It doesn't require any reasons. It could have required reasons. So put that issue aside. And then that the approval of the minutes be the final action that triggers the running of the 30 days.
Sonia Sotomayor: --How does that rule -- now we're forcing minutes on every -- on every city council to have contained the statement of reasons?
Richard A. Carothers: Justice Sotomayor, I don't know how to answer that. I don't know of a jurisdiction that does not have some form of minutes or ratification of the previous actions and discussions they've taken, which are generally approved at the next meeting. I think, in fact, if they're going to have substantial evidence in the written record, whenever those minutes are approved, they had better get into doing minutes because that is what's going to be required.
Stephen G. Breyer: Why -- why do we have to say? Why don't we take word for word almost what the -- what the court said? What this statute requires is that there be a written denial -- well, we can forget whether it's separate or not -- describing the reasons for the denial and containing a sufficient explanation to permit the court to evaluate the evidence, period. Now, that's what the city has to do. And if they produce something that's a mess because it's a 98-page thing of minutes and the court can't figure out what it is, you'll get a decision like this. If, in fact, somebody summarizes at the beginning, these are the reasons that we have denied and therefore we do deny it, it won't be a problem.
Richard A. Carothers: Well, Justice Breyer, I simply would argue that the minutes have to have substantial evidence, which is -- or have to have the reasons, which is supported by the substantial evidence. And if the court can't discern what those are, they're not going to survive the substantial evidence test.
Antonin Scalia: Counsel, you you spoke of the -- the statutory requirement of a denial letter. Where -- where is that?
Richard A. Carothers: Justice Scalia, the -- the statute indicates that in (B)(iii), any decision by a state or local government or instrumentality therefore to deny a request--
Antonin Scalia: Right.
Richard A. Carothers: --shall be in writing. That is what I referred to as the denial letter.
Antonin Scalia: That's not the denial letter. That's what you're referring to as the minutes. You say it's the minutes that comply with that.
Richard A. Carothers: No, Your -- Your Honor, I am saying that the minutes do comply with this--
Antonin Scalia: Yes, and constitute it.
Richard A. Carothers: --But a simple notification letter of the denial does not comply with it.
Antonin Scalia: There's no requirement of a notification letter, whatever. There's just that provision that any decision shall be in writing and supported by substantial evidence. So why are you imposing this obligation of a denial letter on these poor, ignorant council members? [Laughter]
Richard A. Carothers: Your Honor, I am not trying to impose that on them, but we -- I think we have to take the statute as it's written. We have to have some meaning to what that is.
Antonin Scalia: I'm taking it as it's written. You're making up a denial letter. There's -- there's no requirement of a denial letter. So if, indeed, the decision is the minutes, you -- you don't have to do anything until the minutes are published.
Richard A. Carothers: And I--
Antonin Scalia: I suppose you have to give a copy of the minutes to -- to -- to the loser.
Richard A. Carothers: --That -- that is correct. And, Justice Scalia, to the extent we're talking about the same thing, I believe that the decision from when the time should run is, in fact, that approval of the minutes, which has the reasons based upon the substantial record. I don't see that that, whether it's a denial, whether it's a notification, whatever it is, it doesn't have to have reasons. So really, it doesn't help the applicant and doesn't help the city, but we're trying to give the words in the statute some effect. We do not want to give them the effect that it is a decision and glorify something because a decision can be no.
Antonin Scalia: Everybody else like you thinks that there has to be a denial letter, right? Is -- is that a unique perception that -- that you have come to, or is it generally thought that you have to have a denial letter?
Richard A. Carothers: I think -- I think there is a perception, because of what the statute says, that there has to be a denial letter, but it doesn't have to have reasons. And if you don't have the reasons in the denial letter, you -- it's not fair to the applicant to start the appeal time running for the 30 days.
Anthony M. Kennedy: Did you take that position in the district court?
Richard A. Carothers: Justice Kennedy, I'm struggling to answer that question because we didn't get very far in the district court. We never really got a chance to talk about substantial evidence because the court decided: I'm not going to reach that prong of (B)(iii); I'm going to say that I can't understand -- excuse me. Thank you very much.
John G. Roberts, Jr.: Thank you, counsel. Mr. Fisher, you have 4 minutes remaining.
Jeffrey L. Fisher: Thank you. I would like to make a point about our rule and then turn to the practicalities. First, to -- to -- I think that what came before me helped under -- helped explain why a separate letter specifying the reasons for denial is not only required by the statute, but is the only way to make it work. If you look at the minutes that the city issued here, and they're in the back of the Joint Appendix -- remember, as I think it's been noted, cities don't have to issue minutes, and so you're not always going to have minutes. But on the theory that the minutes here would have been enough, look at the minutes, and if you want to look later at J.A. 338, J.A. 336, and J.A. 340, there are some of the reasons, as the Solicitor General put it, potential reasons, offered by various council members before the vote. But if you look at J.A. 340, you'll see that all of those are separated from the motion, so the motion doesn't incorporate any of the reasons, not even what Dr. Price said before she made her motion. So imagine yourself a district judge getting this set of minutes. You don't know what the city's reasons were for denying the permit, and that's the problem that T-Mobile has and that's the problem the district judges have. And I want to turn to Justice Alito's question -- and, Justice Kennedy, I think you also asked about the Federalism implications for local governments. First of all, let me start with the City of Roswell. The City of Roswell's own code, and this is at J.A. 84, requires it to give a separate document with reasons if it denies an application to construct a cell site on city-owned property. All we're asking the city to do is do what it already does with respect to applications for city-owned property. Now, you also point out there are rural areas in the country that have smaller staffs and jurisdictions. At -- at page 13 of our reply brief we cite statutes from other States like New Hampshire, Nevada, Idaho, that already have as a matter of State law the rule that we pronounce -- I'm sorry, the rule that we propose. The rural jurisdictions in those States don't seem to have difficulty doing it, and I think the reason why is because, as has been said a few times today, it just requires a few sentences usually. Just tell us what the reasons are and tell the district court what the reasons are, so that when we get into court we can have the streamlined proceeding that Congress imagined, and that it can be done, as the statute itself requires, on an expedited basis. That's all we're asking for today, and we think that any other rule is going to create problems at the lower -- I'm sorry, before you ever get to court and even more problems once we get to court.
Elena Kagan: Mr. Fisher, suppose that I think that you're right about that, but then the question is did Congress require that. And I take it that the SG is really saying, no, Congress required reasons, it required that by saying that there was substantial evidence review, but that it didn't require the reasons to be in any particular form, and, indeed, there's a savings clause which says that all doubts go to the State and local governments in this area. So notwithstanding that this is going to actually get State and local governments into some trouble, and notwithstanding that district courts are going to struggle with it, we should go with the SG's rule rather than with yours.
Jeffrey L. Fisher: We think the best reading of sub (iii) is that Congress actually did require this. As the city itself pointed out, it separates the notion of a decision in writing from whether it has substantial evidence in the record that supports it. So when you ask what the decision in writing is, you need -- we think the best reading of that is that's the reasons. The reasons have to be supported by substantial evidence, and you can't ask the substantial evidence question until you know what the reasons are. And I think also, for the other reasons that we've pointed out and the Chamber of Commerce pointed out, how the Communications Act uses the word “ decision ” in a particular way. It uses the word “ decision ” in other statutes to signify that an explanation is -- is something embedded in that, not as -- as -- as is often the case, and the city itself characterized the denial letter today, I think aptly, as a notification. Well, the Communications Act uses the words “ notify ” and “ notification ” to refer to other kinds of advisements that need to be given. That's not the word Congress chose here. So, Justice Kagan, I agree, but if you look at this statute you might wonder to yourself if you misread the words in a vacuum which are -- which rule comes out of it, ours or the SG's. But we know from City of Arlington, as this Court said, that the limitations in sub (iii) are limitations that Congress did intend to impose and the best reading of those limitations are the ones that we have given.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: Charles Paul, Director of Agriculture of California, Appellants, versus United States. Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. When the Court rose yesterday, I was just beginning to develop the second of the three grounds on which we contend that these purchases were immune from California regulation. That ground Your Honor's will recall as the California Milk Control law is inconsistent with the federal procurement statutes and regulations and therefore must yield under the Supremacy Clause. Federal scheme as we read the statute and the regulations directs the procurement officers to acquire goods by a competitive bidding were possible and whereby negotiation, nevertheless, with enough negotiators to acquire the benefits of competition. In that view, I think appears quite clearly from a review of the statute and also, particularly the regulations that are set forth in the appendices to our brief.
Arthur J. Goldberg: (Inaudible) Solicitor General, if the Department has said is not (Inaudible)?
Archibald Cox: Because the regulations deal with the purchases of the Government and not with the purchases of the private handlers from the farmers. We're concerned as I sought -- show yesterday, we're getting the benefits of competition at the handler level. Now, we're not concerned with getting the benefits of competition at the producer level quite contrary.
Arthur J. Goldberg: Do you think that was (Inaudible)?
Archibald Cox: I think I would have an exceedingly difficult case and I think in view in the interpretation put on the regulations by the Secretary of Defense. At the present time, I would have a virtually impossible case because I should suppose that that interpretation by which is very firmly the view of the Defense Department at this time. It's been reported to Congress, should be read as a rubric. But this regulations deal with our purchasers from the distributors where we frankly do seek to get the benefits of competition so far as that margin is concerned. I might say in that connection it was mentioned yesterday that United States' attorneys were in the California's courts seeking to aid the cause of the handlers with respect to the enforcement of producer price. I've been able to find no evidence if that's so if theirs some misunderstanding here. I certainly going to assure the California authorities that there's no doubt in Washington about what our policy is. And we'll take steps to transmit those instructions if there had been any confusion. A question was raised in the reply brief about the procurement regulations. The reply brief states that the Government purports to quote them but the counsel was unable to find them in the code of federal Regulations. The source of the confusion is that what we print in the back of the brief is the regulations as they appear in the record and those were the regulations enforced at the time the suit was brought. Subsequently, there was a minor change made which involves some renumbering and the result is that unless you check through the numbers three -- 301 became 302 or 303 and things like that. It is confusing but these regulations were the once in effect at the time and indeed the ones effect the day also the numbers are different, are substantially the same.
Byron R. White: (Inaudible)
Archibald Cox: Well, I think its -- its certainly helpful to my case and we think that the same two differences that were pointed out in the Public Utilities case still exist today. At the time of the Penn Dairies case, the old version of the regulation said that appropriated funds might not be used for payments upon awards, upon invitations for bids containing requirement showing compliance to the state price laws. At least not until there'd been a final and authoritative determination that the state's statutes are applicable.
Speaker: (Inaudible)
Archibald Cox: That has been -- excuse me. That's been released. Then another difference was that the old version of the regulations had declared that competitive bids were not required when the price is fixed by federal, state, municipal or other competent legal authority. That too has been taken out. These differences were thought precisely by the court in the California Commission case. The same differences exist today and we think that the California Commission case therefore rather than the earlier case is controlling.
Speaker: (Inaudible)
Archibald Cox: Well, I'm -- but, yes clearly. Now, I don't see that there is any essential difference between milk and transportation in this respect. I don't think there's any difference between kinds of transportation in this respect. If we are talking about the policy and the procurement regulation, the same policy is laid down by the regulations in each case and it draws no difference between milk and transportation. Indeed if there is any, it's that the policy expressed than the regulation is applicable to the procurement of commodity is more emphatic and clearer than the policy declared in relation to transportation.
Byron R. White: What -- suppose there are (Inaudible) there if -- there is exclusive legislative authority in Congress. It might be an important requirement if Congress has given an intent, the procurement (Inaudible) to accept or to honor minimum prices in the state?
Archibald Cox: I think it might be relevant but hardly decisive because the question that certainly Congress has done nothing it would seem to give its consent to California to apply California legislation --
Byron R. White: Well, but (Voice Overlap) --
Archibald Cox: -- in the federal enclave. And I think this Section saying, nobody shall prepare to do anything unlawful in the enclave is equivalent as the Court said in the Pacific Coast Dairy case to -- attempting to regulate what happens in the enclave.
Byron R. White: Well, if Congress has said that to do that, if procurement officers do not try to bargain below the statement of the price fix (Inaudible) and then the procurement officer had and one of the distributors had given them a lower price. Would -- wouldn't you think California could take action against the --
Archibald Cox: I would think if this happened in the federal enclave over which there was exclusive federal jurisdiction that California could not take action that this would be a matter punishable or by reprimand or if it's an offense by an information or indictment by the Federal Government.
Byron R. White: (Inaudible)
Archibald Cox: It's still not the decision of legislative jurisdiction to California.
Byron R. White: A fortiori (Inaudible) do -- have the order which was given to (Inaudible) procurement officers to (Inaudible) California couldn't do it?
Archibald Cox: If my first ground is good I think California no longer could -- I think California could not intervene. Of course if they had given consent and expressed the policy of complying with state price control laws, then my second ground would be gone. But it seems to make quite clear that Congress did not give the consent and that the statute and especially the regulations expressly opposing view.
William J. Brennan, Jr.: Mr. Solicitor General, in that respect, you said to me yesterday that purchases from revolving funds are not governed by the procurement regulations. Is that by some exclusive provision in the regulations or is that also in the (Voice Overlap) --
Archibald Cox: The statute is applicable to purchases with appropriated funds.
William J. Brennan, Jr.: And that's the basis upon what --
Archibald Cox: That's the basis on which we rest. So that really there are three kinds of milk involved here in all candor. But firstly, the purchases were (Inaudible) branches then as to that my case stands just as I have stated. At the other extreme are the purchases of officers' clubs, and other activities at that time which remained from a revolving funds and not about of appropriated funds and as to those, I don't think we can fairly argue that the procurement policy is applicable. In between our certain purchases made for commissaries, purchases for resale. Now as to those, I think my argument on the procurement policy is somewhat weaker and still think it's a valid argument but there are two points which can be made against them. One is that Congress has indicated that where things are bought for resale, it is not -- is concerned with competitive bidding. Now second, it has indicated that a commissary should not be established in areas where goods can be purchased at local stores nearby for the same prices. Now Mr. Ford argues, I think with some parts that this indicates that -- or may indicate, that the milk bought for the commissaries, Congress wasn't so interested in competitive price. My reply is that the same regulations apply that what Congress was concerned with was perhaps not having the commissary but once you have them and that determination has been made then they're governed by the same procurement policies as all other case.
William J. Brennan, Jr.: But in any event, if your enclave argument prevails, these reaches all three --
Archibald Cox: Yes.
William J. Brennan, Jr.: (Inaudible)
Archibald Cox: (Inaudible) by enclave argument prevails it clearly reaches all three and if the third point which I simply mentioned now so as not to waive it prevails. This violates the constitutional immunity then it reaches all three. Accordingly, if it pleased the Court, we ask if the judgment be affirmed with such modification as being -- maybe necessary to reflect the concessions that we made in our brief and that I have made here in the oral argument.
Earl Warren: Very well. Mr. Fourt.
John Fourt: Mr. Chief Justice, if the Court please. The thrust of the Government's argument we feel is pertains to what has been described as the enclaved position. That is their claim that the United State has exclusive jurisdiction over these installations. Our position is that this is indeed a recondite and difficult question, a question of first impression. We want to illustrate that it is difficult by citation of two different lines authorities. First, in our brief, we have cited that the (Inaudible) General of the Army has issued two opinions which are inconsistent with the position now taken by the Government. Those opinions are cited in our brief so that we have inconsistent administrative interpretations by both California and the United States. And secondly, we want to briefly advert to the case cited yesterday, United States versus Cornell, 25 Federal cases, page 646. In that case, the Court had before it a 1791 Rhode Island statute. And this Rhode Island statute was a session statute not a solely a statute, such our 1872 statute but a session statute. In essence what it provided was that Rhode Island would make a session of exclusive jurisdiction in United States over lands purchased by the United States from the municipalities or private landowners with the consent given by the Government. Mr. Justice Stewart in this case, then as one of this alternative grounds held that the attempt by Rhode Island to condition that session, jurisdiction to make a reservation of that session was invalid because the consent to a purchase brought the land involved within Article I, Section 8, Clause 17 of the Constitution which was he felt exclusory of state law and therefore this attempted reservation of jurisdiction was invalid. This case was reviewed by this Court in James versus Dravo Contracting Company in 302 of United States and there the Court expressly disapproved this holding by Mr. Justice (Inaudible) sitting on Circuit that Clause 17 was exclusory to the extent that it would prohibit a state from making a condition to a session of jurisdiction. Now our point here is that if Clause 17 is construed by this Court was not exclusory so as to prevent a state from conditioning its consent then it is not exclusory at all except as implemented by Congress. Now, turning then to the procurement argument and particularly the question which Mr. Justice Goldberg --
Speaker: (Inaudible)
John Fourt: Yes, sir?
Arthur J. Goldberg: Are you asking (Inaudible)?
John Fourt: Yes.
Arthur J. Goldberg: Isn't that issue (Inaudible)?
John Fourt: Yes, yes. With respect to that point, it is our position that the 1940 Amendment to revise statutes Section 355 which is requires the notice requirement which the United States must give to a state. First required a notice and if a notice given here by United States was no notice at all because it said, “We accept jurisdictional where all lands owned by United States within California, give no notice at all to California what parcels were involved.” Secondly, that as construed by the Department of Justice in its brief to this Court in Adams versus United States that the language in revised Section 355, incorporated such applicable notice requirements of the state. And they actually mentioned that if a state has a requirement for the filing of a plats and meets in bounds then the United States should comply with that recording requirement. Therefore, (Inaudible) Congress has given that direction. We feel that in this case United States did not comply with the statutory direction. Secondly, the implementation by Congress of this power of exclusive legislation has not clearly superseded state law and one implementation of course is the procurement statutes. There are other regulations for example that a state warrant of arrest shall not be honored on a federal military installation except in the discretion of the Commanding Officer and there are a number of such regulations. Again, Congress has not come on forth and clearly said that our procurement statutes are invalid as applied to contractors with the Government. Now in response to your question, the Mr. Solicitor General said that the crux was whether the state can circumscribe to any extent the way which the Government can contract. Now, we take it here that what the United States is saying that, it is no concern of the governments whether the contractor with United States received so little on his Government contract that he is unable to pay his dairy farmers for his milk, his labor cost in a highly organized industry. Indeed, the Court has before it a brief of Petaluma Cooperative, a small cooperative in Northern California were on pages 4 and 6. It describes how it was driven from the market by virtue of this acute competition. Now, what caused this competition? Well, the Government is the largest purchaser of milk in California. And secondly, its contracts are tremendously powerful leverage in the hands of the Government. For example, the contract at Travis was for the amount of $500,000 worth of milk and that at Travis was for $450,000 worth of milk. Perhaps distributor was laughing but he said he'd burn his grandmother alive for that kind of money. Now, inevitably this law situation which the Government in driving a hard bargain will drive upon contracts with the Government will undermine the efforts of the State of California and other states to correct the very situation, the very economic instability which the Government seeks to take advantage of. In summary then, we feel that California has been rather sharply dealt with here. We have questions of statutory constructions of state law which were precluded from deciding under state courts. We feel that the action of the Government here prevents us from protecting our supply of a vital food which is also vital to the Government. We therefore ask the judgment be reversed.