John G. Roberts, Jr.: We will hear argument next in Case 07-463, Summers v. Earth Island Institute. Mr. Kneedler.
Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: The Ninth Circuit's affirmance of a nationwide injunction in this case is contrary to bedrock principles of Article III standing, of the availability and scope of judicial review under the Administrative Procedure Act, and the granting of equitable relief. As this case was decided by the district court and as it comes to this Court, it involves a stand-alone challenge to two regulations that govern the procedures to be followed by the Forest Service in deciding whether to approve individual site-specific activities in national forests. The two regulations provide that site-specific actions that are excluded from either an environmental impact requirement or even an EA under NEPA are also not subject to special noticing and comment and administrative appeal provisions applicable to the Forest Service. The Ninth Circuit sustained the district court's nationwide injunction as to those procedural regulations standing alone, not as part of a challenge to a specific site-specific activity. The court did so, moreover, on the basis of an affidavit from one member of one of the organizations who could not begin to establish standing under this Court's decisions by showing an imminent injury by virtue of harm to a site-specific activity; and the Court affirmed the nationwide injunction applicable to all forests with respect to all projects listed in ten categories identified by the district court, including national forests and projects that don't even -- that are not even included within that one declarant's generalized interests in certain natural forests. For the multiple combination -- combination of multiple reasons, we think the Ninth Circuit's decision cannot stand. First, as with respect to standing, the one declaration on which both the district court and the court of appeals rely is the declaration of Mr. Bensman, which is reproduced in the petition appendix. And on page 70A and 71A are the only allegations of -- that go to injury at all with respect to the particular regulations at issue here from paragraph 15 on to -- the bottom of 71A on, those are allegations concerning other regulations that are no longer at issue.
Stephen G. Breyer: Standing itself, I mean, it's a little unusual. Suppose -- I mean, Congress here has passed a statute and the statute specifically aims at a class of litigants. And it says to the class of litigants, if you are a member of it, we are telling you what we want the agency to do and that is to promulgate a certain appeal procedure. Now, if you are a member of the class that frequently litigates and you frequently take advantage of that procedure, why aren't you heard as a litigant, at least enough for Article III? And we know as far as prudential standing is concerned, Congress wanted to give you standing, so I think would it take care of that. Are you saying no matter -- that just normal litigants in the courts who reappear time and time again in certain kinds of cases, don't have standing to challenge a procedural rule, if Congress under Article III and Congress specifically tells them they can?
Edwin S. Kneedler: Congress has not specifically said that they may challenge--
Stephen G. Breyer: Let's imagine that Congress did, Congress did say: By the way, lawyers who have handled 17 tort cases in the last year where the value has been more than $500,000 and who will sign an affidavit saying they intend to continue in that branch may appeal from the court's promulgation of the following general rule, dah, dah, dah. And that Constitution prohibits Congress from doing that?
Edwin S. Kneedler: --Well, first of all, I don't think it could be lawyers. It has to be a party.
Stephen G. Breyer: Right. Those who -- fine, forget that, yeah.
Edwin S. Kneedler: I think there would be substantial doubt that Congress could do that, because let me explain why, and this goes to a point that Justice Scalia was making in the prior argument. Procedural wrong is not Article III injury. The injury in this case comes from the application of the regulation in a specific site-specific--
Stephen G. Breyer: You mean Article III and at Westminster -- at Westminster, when Westminster, whatever they had, they must have had some procedural rules, and sometimes they had general procedural rules -- I don't know what the history is; I could look it up. But I would be amazed if the lawyers at that time or the clients who had certain cases were not permitted to challenge those rules as contrary to some other rules. Do we know the answer to that?
Edwin S. Kneedler: --Well, if -- if Congress--
Antonin Scalia: In a particular case, I suppose.
Stephen G. Breyer: No, no, no. Generally. Because you have a special procedure, here's what you can generally challenge our rules.
Edwin S. Kneedler: --Well, if I could make, again, several points. Congress has not passed such a statute. And there may be room in particular situations for Congress to pass a special statute that would identify particular interests that could then be taken into account in terms of whether Article III standing would be established.
Stephen G. Breyer: Okay, then your answer is, if Congress says you can do it, have a general challenge to people who generally appear, your answer is if Congress says they could do it, Article III doesn't stop them?
Edwin S. Kneedler: No, I -- what I said, that would be a different question.
Stephen G. Breyer: Ah. What's the answer to that different question?
Edwin S. Kneedler: Well, it might depend on a particular -- it might depend on a particular case. In the Whitman case the court says that the statutes providing for direct review of regulations eliminate prudential limitations on ripeness in that case, but they wouldn't eliminate the bedrock principle of standing. It would be necessary to show a threatened injury. Now, it--
David H. Souter: Mr. Kneedler, don't we have to assess the need for -- for showing a specific threatened injury on a -- on a somewhat elastic standard in a case like this? Because the claim is made on the other side that if we do not allow, if we do not find standing to challenge the regulation per se, there are going to be a number of specific instances which in practical terms can never be challenged when that regulation is applied. There were one or two instances, as I recall, of cases in which on your theory there could be no challenge because the announcement of the action was made on the very date that the action was taken. So that if we do not find sufficient elasticity and standing to allow a challenge to the regulation on behalf of people of the sort that Justice Breyer described, there will, in fact, be a preclusion of any challenge to a lot of specific actions. What's your answer to that?
Edwin S. Kneedler: --Several answers if I may. In the declaration on which standing was based in this case, that claim is not made. And that is the only declaration that was made -- that was submitted before the district court entered its judgment. There was an argument made like that after, after the fact.
David H. Souter: Assume for the sake of argument that it is made in this case.
Edwin S. Kneedler: Okay. Then--
David H. Souter: What should you respond?
Edwin S. Kneedler: --It is conceivable in a particular case that a person who -- who claims to be injured by that could sue to prevent that injury, but it would not be a challenge to the regulation as regulation. It would be because specific, threatened, site-specific activities in which there would not be notice given in advance or there wouldn't be -- wouldn't be time, threatened to injure them. It would again be a challenge to the application--
David H. Souter: But your response to that is going to be, I presume, that in fact, absent a specific activity before the court, the -- the challenge is not ripe. So that if you are going to stick to your position elsewhere in this case, they are going to fail in that enterprise.
Edwin S. Kneedler: --And -- and -- and that may -- that may well be right, but that would be a separate question.
Antonin Scalia: I don't understand -- I don't understand your response. If -- if someone has an interest in -- in stopping a particular action that would be governed by -- by -- by this general regulation, surely that person could -- and is -- is -- is threatened proximately by that action, that person could certainly bring an action seeking to stop the action on the ground that this regulation is invalid.
Edwin S. Kneedler: That was my -- that was my -- and that was my point.
Antonin Scalia: And that would govern that particular action, but it would also be -- be precedent for invalidating the regulation in other cases. I -- presumably other courts would -- would similarly say that the regulation is invalid.
Edwin S. Kneedler: Right. And that was the point I was trying to make. And if I -- if I could explain -- if I could explain the same point--
John Paul Stevens: May I ask -- may I ask this one follow-up question, because I want to be sure I understand your position. Supposing the plaintiff in his declaration cites three or four cases in which the action was taken so promptly they didn't have notice in order to object. And then he says but so -- they -- all this was too fast for me. Now I want to -- want to do just what the plaintiffs are trying to do in this case. Would he have standing then?
Edwin S. Kneedler: --I -- I -- if there was -- if there was a category of cases in which that was likely to happen. Most of the -- most of the -- he may well have standing in that situation to challenge maybe an upcoming -- it's an unusual APA suit because -- because only final agency action can be challenged, but conceivably a threatened final agency action--
John Paul Stevens: You would agree that with that scenario he would have standing if his only injury in this is exactly the same as the plaintiff in this case?
Edwin S. Kneedler: --No. The injury would come from the threatened on-the-ground activity, not the actual--
David H. Souter: He doesn't know that in advance. That is the premise of Justice Stevens's question, and it is the premise of mine. There -- the point is being made by them that this happened so fast that the threat has been realized before they could respond to it.
Edwin S. Kneedler: --If -- if I -- if I could make a broader point here because there -- there may be certain categories, certain instances in which that might happen, but it is -- it is the exception, not the rule. And -- and the--
David H. Souter: I will -- I will assume for sake of argument it is the exception, not the rule.
Edwin S. Kneedler: --But--
David H. Souter: Let's assume we have got the exceptional case. Would there be standing?
Edwin S. Kneedler: --In -- in the exceptional case there probably would be standing.
David H. Souter: So that if in Justice Stevens's hypo one could show that there had been three or four or five instances of action so fast it was impossible to challenge it, there would with that as a predicate be standing to challenge the regulation as these people are trying to challenge it?
Edwin S. Kneedler: Not -- no, and that -- and that was the point I was--
David H. Souter: Okay.
Edwin S. Kneedler: --not -- not in the way they are trying to challenge it, because they are trying to challenge it across the board.
David H. Souter: Tell us how they could challenge it, then? Tell us the right way?
Edwin S. Kneedler: What they would have to do is bring a -- a -- on a -- a particular national forest where a particular person visited and visited a particular area and there has been a pattern of particular activities that occurred without his knowing, he -- he -- in that situation he might well have standing to challenge a similar--
David H. Souter: Well, if it's the forest next door that he is worried about and they have not tried a -- a -- a kind of quickie lumbering action in the forest next door before, he would not be able to challenge it.
Edwin S. Kneedler: --That's correct. The -- the -- standing has to focus on the particular site-specific place where the individual has visited and if there is a repeated pattern of a similar type of activity that he doesn't know about and maybe--
Ruth Bader Ginsburg: Mr. Kneedler, why -- why -- why is that so? I am reading this ARA statute, and it seems to give people a right to notice, an opportunity to comment, and to undertake an administrative appeal. Why isn't this statute that says, interested public, you have those rights, you have essentially a right to a seat at the table, why isn't this statute like FOIA, like the statute that the Court considered in the Atkins case, in the FEC case involving information about APAC? These were people who said: We are concerned about saving our forests. That's why Congress said that before these actions occur, there should be notice to the interested public, comment, and we are being cut out from that seat at the table. It doesn't do us any good after the project has been authorized. We want to be there when the decision is made to take action.
Edwin S. Kneedler: --If I could respond in several ways. First of all, the due process clause imposes limitations on agency action, but that doesn't mean that -- that somebody can go into court and challenge agency procedures as violative of the due process clause until there is a specific proceeding going on and -- and completed in which there has been a violation.
Ruth Bader Ginsburg: But this statute says says before there is a specific action you have a right to notice, comment, and administrative procedures.
Edwin S. Kneedler: There is no indication at all in the passage of that statute that Congress meant to confer a judicially enforceable right to obtain those without complying with the usual APA provisions for judicial review.
Ruth Bader Ginsburg: Maybe he has no--
Antonin Scalia: Suppose the statute says anybody in the country can sue to stop a violation of the due -- due process clause. Would that statute be valid?
Edwin S. Kneedler: No. You -- you would have to -- you would have to show a particular injury and--
Antonin Scalia: The Article III requirements cannot be eliminated by Congress?
Edwin S. Kneedler: --That is -- that is correct. And -- and there is no indication at all that in this statute, which was just intended to modify the Forest Service's intent to change its internal decision-making processes -- and Congress wanted to restrict what -- what the Forest Service was going to do -- that it thereby meant to change the fundamental nature of the agency's own internal regulations which would not--
Ruth Bader Ginsburg: --Why is that different from FOIA? I mean there anybody can request anything. You don't have to show anything beyond -- well, you only have to show curiosity. You say: The statute gives me a right to ask for this information.
Edwin S. Kneedler: --Well -- and the -- the Forest Service has -- has procedures for notifying people of -- of proposed projects that were in fact invoked in this case, and we point this out in our brief. There are really two separate types of procedures. One is the so-called Schedule Of Proposed Actions, which includes all the actions in which there would be a decision memo issued by the Forest Service, which includes at least all of the projects that respondents are claiming should be -- should be covered. That is published quarterly. It -- it is available on the web. It is also available in person. One of Respondents' declarants here on behalf of the Sierra Club says that by using that so-called SOPA, that schedule, he reviews every project in all 11 national forests in California. There is also, in addition to the SOPA -- and will submit comments when necessary. In addition to the SOPA, the Forest Service has what are called scoping regulations which -- in which every on-the-ground project is looked at to see whether it needs -- there needs to be NEPA compliance through an EA or an EIS, but also what is the nature of public participation that is required. In that scoping process the Forest Service, the -- the local personnel at the Forest Service, will look to see who is interested in the particular project. The way this works on the ground is an organization like the Sierra Club through its declarant in the -- in the joint appendix will have somebody monitoring this SOPA, the Schedule of Proposed Events, and will say: I see that you have a -- a certain project listed. I am interested in that. Please notify me when you are about to take action to thin this -- this area or restore this burned area. Please notify me. When that happens, the Forest Service then sends out a letter, a so-called scoping letter, asking for comments. So this is not a situation in which the -- the organizations of the declarants in this case have been excluded. To the contrary, these are all people who pay very, very close attention to what the Forest Service is doing. The one declarant on which the court of appeals relied for standing on page 71a of the -- of the petition appendix, he specifically refers -- the only specific projects he refers to are timber projects, and the injunction here goes much broader than timber projects -- but he said that for example, in the Allegheny National Forest they put out scoping comments for a series of 20 timber sales. He knew about those timber sales and he was able to comment on them. And the -- the declarants on whom the standing was based to challenge the Burnt Ridge Project, which is no longer in this case, in that case the Forest Service -- and this is in the administrative record -- sent out 1,300 letters to people who had expressed an interest in that project before it was undertaken. Mr. Marderosian, who also monitors forest projects--
Anthony M. Kennedy: Could any one of those have brought suit?
Edwin S. Kneedler: --Anyone -- anyone who claimed to have used that area could have brought suit. Some of the -- some of those -- some of the people -- people submit comments.
Anthony M. Kennedy: But I mean -- but the letter alone, I don't know what the criteria were for the addresses.
Edwin S. Kneedler: Those were people who had expressed an interest in the -- in the project.
Anthony M. Kennedy: Oh, okay. Okay.
Edwin S. Kneedler: And Mr. Marderosian submitted a 23-page comment to the Forest Service with respect to the Burnt Ridge Project, and that is the other declarant. These are people whose profession or avocation -- serious avocation is following the Forest Service. So this is not an instance in which -- in which notice is not generally furnished. I would like to make the same point I was making about standing in connection with the -- with the Administrative Procedure Act as well. Section 702 of the -- of the APA says that a person who is aggrieved by agency action is -- may seek judicial review thereof. The -- the agency action that is subject to judicial review has to be the agency action that causes the injury. The procedural regulation does not cause the injury. It is the on-the-ground activity, the site-specific decision -- the action, the agency action approving the site-specific action that causes the injury. That is what the person is entitled to judicial review on.
Ruth Bader Ginsburg: Then you are saying that this statute is just unenforceable, because the statute is supposed to operate before the project?
Edwin S. Kneedler: It's -- it's -- it's by no means unenforceable. In the Burnt Ridge Project that was at issue in this -- in this case, the plaintiffs challenged the Burnt Ridge Project when it was completed on a number of grounds, that it was not properly categorically excluded from NEPA, that it didn't comply with the forest plan, but also that it had been approved without complying with the -- with the ARA appeals procedures.
John G. Roberts, Jr.: And that was before the project was undertaken?
Edwin S. Kneedler: Yes. An injunction, a preliminary injunction was obtained, and tellingly, and I think this is also instructive for ripeness purposes, there was a PI issued but not because of a violation of the -- of the ARA; the district court concluded there was a likelihood of success on some of these other objections, substantive objections to the project, not procedural objections--
Stephen G. Breyer: Ah, but--
Edwin S. Kneedler: --and enjoined it and then the Forest Service withdrew the project and the -- and the plaintiffs dropped their challenge.
Stephen G. Breyer: --And I am pursuing this, but I'm actually having a hard time with this. Suppose -- suppose Congress passes a statute; the statute says every citizen of the United States has a right to receive notice of a certain set of Forest Service actions. Everybody. We want everybody who wants it to have notice. Now, if somebody really wants that notice and they don't get it, can they sue?
Edwin S. Kneedler: At some point that would begin to look like FOIA, yes. But--
Stephen G. Breyer: Yes. Sorry.
Edwin S. Kneedler: --But--
Stephen G. Breyer: In any case, I'm trying to make it look like FOIA.
Edwin S. Kneedler: --But--
Stephen G. Breyer: That's just what I am trying to do, and you say yes, they probably could, at least if you are just supposed to get a piece of paper that says "Notice". Now suppose Congress says, if you can show you are the kind of person who regularly asks and needs such notices, and if a regulation is promulgated interpreting this statute, you can challenge that reg prior to enforcement. Now does that violate Article III?
Edwin S. Kneedler: --I believe it -- I believe it probably does, unless you can show that there is an imminent--
Stephen G. Breyer: Suppose they did this. Suppose they said each agency has the legal power to promulgate regs interpreting FOIA as to when you get the thing, and when you don't, and moreover people who are regular FOIA requesters can challenge those regs prior to enforcement; what about that one?
Edwin S. Kneedler: --Conceivably. But I -- what -- what I--
Stephen G. Breyer: I am looking for a principle that is going to help me.
Edwin S. Kneedler: --Congress has not done that here and this is why I wanted to shift to the APA, because this is subject to review under the general standards of the APA. Even if we can assume that there would be Article III standing to challenge a threatened -- a threatened, another one in a series of similar projects like off-road vehicle use or something which might occur before someone would be able to -- to -- to challenge it, that doesn't apply to timber projects and other things that take much longer to plan.
Antonin Scalia: Mr. Kneedler, I don't even agree with you that a -- that a citizen-wide notice provision confers standing, because it's close to the APA.
Edwin S. Kneedler: No, I didn't say--
Antonin Scalia: Close -- close to the FOIA. In FOIA, an individual citizen demands a certain document which the law entitles that person to. This is a concrete deprivation--
Edwin S. Kneedler: --Right.
Antonin Scalia: --Of something concrete. And--
Edwin S. Kneedler: I didn't -- I didn't -- I didn't mean to concede that there would be standing.
Antonin Scalia: --Well, I thought you were doing it. And I certainly don't--
Edwin S. Kneedler: No, because you are right. And here the agency's procedures allow somebody to request to be put on the mailing list about a particular project. And that's the way you make it -- make it known and in fact that happened here. And also the one declarant -- it's perhaps instructive, the only other kind of notice other than this sort of situation where a person says I want to be notified when a particular project is going -- is going to take place, the only other form of notice is publication in a local newspaper of record that each national forest has which shows that this is -- that this notice provision is localized with respect to people who are going to be aware of what's going on in the forest and who are following it. But the declarant Mr. Bensman, when -- for another purpose is noticing or is pointing out this publication requirement in a local newspaper, says that his organization doesn't want to subscribe to local newspapers, that would be too much of a burden for them to have to follow what is going on in newspapers. That's the -- that's the only kind of additional notice the statute ever provides for. The other kind of notice is the notice you get if you previously expressed an interest in the project, in which you basically demanded something along the FOIA lines that Justice Scalia was referring to. But again, back to -- back to the -- you call it ripeness, you call it the proper subject of judicial review as this Court said in National Wildlife Federation, based on section 702 of the APA, ordinarily a regulation may be challenged only when it has been reduced to manageable proportions by a concrete application of the regulation to the individual's particular circumstances. It's the application to the person's circumstances that gets challenged. In this context, it would be the application of the regulation that says there is no right of appeal in connection with the approval of a site-specific activity. If you think the project was approved in violation of the ARA because you weren't given a right -- after you got your notice you weren't given a right to appeal, then you could challenge that in court on the ground that it was approved without following the agency's procedures.
John G. Roberts, Jr.: Your friend on the other side says that that doesn't make too much sense because the issue in every case is going to be the same, a purely legal issue, and so waiting for the application doesn't make any sense.
Edwin S. Kneedler: Well, I don't think it is a purely legal issue. The Respondents concede that not all projects are subject to this statute, and the district court--
Ruth Bader Ginsburg: The question is where do you draw the line?
Edwin S. Kneedler: --And that -- that's why it can't be purely a legal question. As soon as you -- and the district court acknowledged that environmentally insignificant projects are not covered by the act, and so that requires them an as-applied determination as to whether a particular type of project or even the particular project is one that is -- that is covered by the act. And not only that--
Ruth Bader Ginsburg: I thought that you said the government's position is that the line is to be drawn for cases that don't require either an EIS or an EA. Those -- in those cases you don't have to do this notice, comment, appeal thing. And I thought the other side is saying, no, that's the wrong place to draw the line. It would be the same thing in every case, from the government's point of view, no environmental impact statement, no environmental assessment required, no notice and comment. And they are saying you put the line in the wrong place.
Edwin S. Kneedler: --But -- but that doesn't answer where the line ought to be. And even if the government is wrong as to a particular project, that means the line has to be somewhere else. It may be that certain kinds of timber projects should be subject to appeal but that doesn't mean that some other road maintenance project should be subject to appeal. If I may reserve the balance of my time.
John G. Roberts, Jr.: Thank you, Mr. Kneedler. Mr. Kenna.
Matt Kenna: Mr. Chief Justice, and may it please the Court. This facial challenge to the Appeals Reform Act regulations could have been brought outside the context of the Burnt Ridge Project, as long as we had shown that it had been applied to a project and continued to be applied to the plaintiffs on an ongoing basis.
Antonin Scalia: What if there -- what if there was not a regulation on this subject, but the agency, by its constant practice, applies a certain procedure in all of these cases, would you have it -- the power in the abstract to challenge the agency's consistent application of a certain procedure? You could certainly do it in a particular case, if the agency did something that was unlawful, you could certainly challenge it? But let's assume you don't have a particular case, you just object to the fact that in all of its cases the agency is doing this thing that is wrong. Will you have standing to challenge that?
Matt Kenna: The question of rightness in standing need to be treated a little differently for that. As far as the rightness question I think it would be a much more difficult case than here, but I would think could you do that.
Antonin Scalia: You would have standing?
Matt Kenna: You would have to show, as Your Honor is indicating--
Antonin Scalia: Your complaint is I don't like the way the agency behaves?
Matt Kenna: --Not on that pure basis. No. You would have to show that -- or we would have to show some concrete harm from where it's been applied.
Antonin Scalia: Why do you make a difference with respect to the regulation? Why does the mere fact that this agency lawlessness happens to be reflected in a regulation, why does that suddenly alter the standing calculation? You either have been harmed or you haven't been harmed.
Matt Kenna: Justice Scalia, I don't think it changes the standing calculation. I think it does change the rightness and final agency action especially question somewhat, makes it much more clear. But we don't rely on procedural injury here. Even though I think there is potentially room for it along the lines of Freedom of Information Act.
John G. Roberts, Jr.: The Ninth Circuit relied on it at least as an alternative ground, correct?
Matt Kenna: Well, I think what the Ninth Circuit did was similar to what the court did recently in the Winkelman v. Parma School District case where most of the discussion was about the procedural harms that the parents of the autistic school children were suffering. There was only one brief sentence tying it to the concrete harm, but it did tie it to the concrete harm. And I think that's what the Ninth Circuit did here. And certainly the district court very much went into tying the procedural harm to the on the ground harm, and that's what it based its decision on.
John G. Roberts, Jr.: Counsel, to read just one sentence to you from the National Wildlife Federation case, because I think it's the biggest hurdle you face. It's on page 15 of the government's brief. It says: "A regulation is not ordinarily considered the type of agency action ripe for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions and it's factual components flushed out by some concrete action applying the regulation to the claimant's situation. " It seems like a high hurdle for you to surmount.
Matt Kenna: Mr. Chief Justice, I think that needs to be read in combination with the footnote 2 to that decision, which says of course if you have a regulation applying a particular measure across the board--
John G. Roberts, Jr.: That's the Abbott Labs exception, isn't it? I don't think anybody suggests that that is applicable here.
Matt Kenna: --No, I don't think that's the -- I think the Abbott labs exception is an exception to where the plaintiff cannot show that the regulation has been applied to its situation yet.
John G. Roberts, Jr.: But that's when his primary conduct is nonetheless going to be affected?
Matt Kenna: Right.
John G. Roberts, Jr.: You know, the drug companies have to do something. Well, they don't -- you know, they have to do it before they can -- they don't have to wait until they are sent to jail to say that their conduct has been affected.
Matt Kenna: Yes. But I think where as here the regulation has been applied to the plaintiffs on an ongoing basis, it's conceded that it was applied thousands of times nationwide.
John G. Roberts, Jr.: But you have not pointed to a particular fact under any of these affidavits when it was applied to any of the plaintiffs. In what the National Wildlife Federation case said, "Some concrete action applying the regulation to the claimant's situation. "
Matt Kenna: We have the Burnt Ridge Project itself. And then once we have shown standing, it becomes a matter of mootness.
John G. Roberts, Jr.: You haven't shown any standing with respect to the Burnt Ridge Project on an ongoing basis because that has been settled. It's outweighed -- it's out the door.
Matt Kenna: Right. I think the court's initial standing analysis is at the time the complaint is filed.
John G. Roberts, Jr.: So it's in for a penny, in for a pound. If you show standing with respect to discreet action D, you can challenge A, B, and C?
Matt Kenna: No, Your Honor, I would respectfully say that the focus is on the beginning. And then as the -- as this Court said last term in Davis v. FEC, then it becomes a matter of mootness, and between that case and the Laidlaw case, that is a lower hurdle. So once we had the standing -- and the Marderosian declaration is worth looking at, because it talks about harm from the Burnt Ridge Project itself, which the government concedes, as well as from application of the regulations to be denied notice, comment and appeal throughout the Sequoia National Forest.
David H. Souter: I think you never completed your answer in commenting on the National Wildlife Federation statement with reference to footnote 2. What is it that footnote 2 tells us in light of which we must read what the Chief Justice quoted?
Matt Kenna: Well, the footnote 2 says, of course, if you have a particular regulation applied to a particular -- to a category of circumstances across the board, of course you may challenge it. And I think--
Antonin Scalia: Is that all it says? No, I think it speaks of categories across the board that affect -- that immediately, concretely affect the person complaining of the regulation, which is the case in these areas where you have a regulation requiring drug companies to have certain -- on pain of criminal penalty to print certain things on labels. That immediately affects them. I think that is what footnote 2 is about, not about -- not about any regulation that is across the board. That wouldn't make any sense. Where is footnote 2. Let's read it. [Laughter]
Matt Kenna: --There is many cases where it was not an effect on primary conduct yet a facial challenge was permitted. In fact, this Court has never rejected before a facial challenge to a regulation that is published in the Code of Federal Regulations where it has been applied on an ongoing basis. So, in Sullivan v. Zebley, it was child disability benefits, it was a benefit referring regulation, which said we see no reason to force as applied challenges instead of a facial challenge. You have Thomas v. Union Carbide, which was not a regulation telling Union Carbide how it had to manufacture its pesticides, but rather how it would affect arbitration -- it's arbitration when it got into disputes, which is like National Park's case, which was held unright not because of that fact, but because it had not yet been applied. When you look at all of these cases that rejects facial challenge where either the regulation has been applied and has not -- and then the court gets to the question of whether it affects primary conduct.
Stephen G. Breyer: The problem they are asking you on this -- it was at least a problem for me -- I think it's tough on rightness is because the government is saying here: Look, you want to challenge it outside the context of a particular action that you don't like. Well, there's never going to be an action, never going to be such an action that we are going to take that you won't find out about, that you will not be able to challenge in that context if you are really hurt. There isn't one. You can't name one that's ever been or imagine one that ever will be, okay? Now, is that so?
Matt Kenna: No, Justice Breyer, that's not so. The joint appendix at page 101 discusses an instance where Mr. Bensman did not get notice at all. The issue with--
Stephen G. Breyer: You see where they are going next. And if you -- suppose that the thing you just told me, too, has problems or suppose it's pretty hard to find one, then the -- why this has never been decided and why it's difficult. Because I would start with Abbott Labs and say there are three considerations. How easy is it now to solve the legal problem? Here? Perfectly easy. Nothing's going to change. Factor two, how likely is it that they will work with this legal rule and change it around here? Zero. But three, what kind of harm is it going to cause to the plaintiff if you were to deny him relief now? And they are saying here that's also zero or next to zero. So what do you do if the factor that cuts one way is zero and the factor that cuts the other way is zero, or near zero? Now, I have to admit I have never seen a case on that. I don't know if there has been one before, and I don't know exactly what to do. And if you can go read the appendix, maybe I can escape the zero.
Matt Kenna: --Well, I think even apart from the appendix, even apart from the assertion that there are -- the fact that there are certain actions that will receive no notice, I think the fact of the matter is we did what the court has instructed us to do, and that is we brought a facial challenge in a concrete example with the Burnt Ridge timber sale project. Now, it's passed. Now it becomes a question of mootness, and I think the mootness question is easier to solve because the Court has said that it's a lesser hurdle than standing, and we have shown through the Bensman declaration that it's continuing to be applied to the plaintiffs on an ongoing basis, that they suffer harm by not being able to get these procedures which caused them on-the-ground harm because the forest is not protected as well as it would be with it.
John G. Roberts, Jr.: Counsel, I now have footnote 2, and it refers, as you say, to a particular measure that applies across the board to all individual classifications. It goes on to say, which is final, "and has become ripe for review in the manner we discussed in the text. " Then we say, or Justice Scalia says, "it can of course be challenged under the APA by a person adversely affected. " "And although that may have the effect when they get a general decision invalidating a program, it says that a quite different from permitting a generic challenge to all aspects of the program as though that itself constituted a final agency action. " So you still have to become ripe for review in the manner discussed, which was the sentence that I read to you earlier, and the challenge can only be brought by a person adversely affected. I don't see how footnote 2 undermines the sentence I have read to you at all.
Matt Kenna: Well, in that footnote, it's saying it's quite different from permitting a generic challenge to all aspects of the land-withdrawal review program. And I think that was the problem in Ohio Forestry, where you had this broad program left with facts to sort through and apply, but the opinion in Ohio Forestry said, of course, though, if the plan had cut out someone's right to object to trees being cut, that would be the kind of action that would be challengeable. And so I think what that later part is talking about, in National Wildlife is saying, this isn't the kind of action we allow challenges to. It's not final agency action. It's not--
John G. Roberts, Jr.: Well, it says -- it says, if it's become ripe for review in the manner discussed in text. In other words, if it has been applied to a particular individual adversely affected then, quote, "a person adversely affected may bring a challenge. " And I don't -- that seems to me to be a restatement of the sentence I read you earlier.
Matt Kenna: --But that gets us to the standing question. And here the Marderosian declaration showed he was affected both with regard to the Burnt Ridge Project and other projects on the Sequoia National Forest. We have the Bensman declaration that talks about how he was harmed in his local forest from not being able to comment on timber sales, and we have the subsequent declarations. And I would also point out in the Lujan v. Defenders case, both in the note 8 and Justice Kennedy's concurrence, there's a discussion about how, in Robertson v. Methow Valley, for instance, a standing declaration didn't even need to be raised because it was obvious that, in that case, that the plaintiffs were amongst the injured because they were a local group in their local forest. You know, here we have an assertion uncontroverted by the government that these are being applied on every forest on an ongoing basis -- it's stipulated to that. To contend that the Sierra Club is not injured, especially in light of the declarations that we've submitted--
John G. Roberts, Jr.: That would be like in footnote 2, the general program. Yes, they are saying these types of activities we don't do the notice and comment and appeal. That's the general program. But you have to wait until it's applied to a particular individual who is adversely affected.
Matt Kenna: --Well, all I can say, Your Honor, is I thought we did that by bringing it in the context of the Burnt Ridge sale and then it's a matter of--
Ruth Bader Ginsburg: If you had had a ruling on where you draw the line in the Burnt Ridge case, then that would have been precedent for all these other cases, but it was settled, right, so you didn't get a determination?
Matt Kenna: --Yes, Your Honor, we never brought an as-applied challenge to these regulations in the context of the Burnt Ridge sale.
Ruth Bader Ginsburg: But you are seeking a different line. And, by the way, I don't know what the line is that you are seeking. But the government says if you don't need an EA, then you don't have to give notice, comment, et cetera. What would be your standard for when you need notice and comment?
Matt Kenna: Well, it's right in the language of the Appeals Reform Act. There are two parts that are important. One is, it says, "a proposed decision implementing a forest plan shall be made subject to notice and comment. " And then section C states that "any decision approving such an action shall be subject to appeal. " So you have two elements: That there is a decision approving something and it implements a forest plan. Now, that's the way it worked under the Forest Service before the Appeals Reform Act was passed and what Congress meant to keep in place substantively with a different procedure through the ARA. So a Christmas tree permit, for instance, an original Christmas tree permit is exempt, not because it's insignificant. We've never conceded, and that's what the whole merits were about, that it's--
Antonin Scalia: You need a permit to have a Christmas tree? Where is this? [Laughter]
Matt Kenna: --I'm sorry, Your Honor. So if you want to go and cut your own Christmas tree--
Antonin Scalia: I know what you're talking about.
Matt Kenna: --You know, I get one every year. I just go down to the local Kreger's hardware store; I pay my $7 to the clerk. There's no exercise of discretion, and you can you go and cut your own tree. Now, that is exempt, not because it's environmentally insignificant, which, you know, it probably is in most cases, but because there is no decision approving it. And that's the way it has always worked, and that's where we think the line needs to be drawn, although, of course, the merits were not raised by the government here.
John G. Roberts, Jr.: You cut down a tree in the national forest without approval? [Laughter]
Matt Kenna: I did get the permit, Your Honor.
John G. Roberts, Jr.: Oh. [Laughter]
Matt Kenna: I think the other kinds of cases that are useful to look at are, for instance, Blum v. Yaretsky for standing, and that was the nursing home case where nursing home residents that had been denied -- they had been sent to lesser nursing home facilities, they were on assistance -- challenged the way in which that was being handled. And the Court said, you know, the historical basis for these plaintiffs is that they have been denied their -- they have been in these situations and it's perfectly likely that they are going to be in again. Another case would be the Northeastern Florida Chapter of Contractors v. Jacksonville case, which I am afraid we did not put in our brief, but that was where victims of reverse discrimination had been regular bidders on construction contracts, and they were held to have standing because it was obvious they were going to suffer these harms again and there was not even a discussion of the declarations. Here, we--
Antonin Scalia: That's not unusual. I mean, standing looks not just to harm that has already been suffered but to harm that is imminent. And if these people are regular bidders and they say, you know, I'm likely to bid on this next project, that's fine. But these people are -- you don't know any specific project. They are just people interested in forests throughout the United States.
Matt Kenna: --Well--
Antonin Scalia: That's quite different from saying, "I am about to suffer harm, imminent harm, to me. " I don't see anything -- you know, anything except in the case that was settled that has that kind of a connection.
Matt Kenna: --Well, Justice Scalia, I would suggest that the way those two cases I discussed the plaintiffs were treated is similar to here, where you have members who -- it's uncontroverted that they are constantly using the national forests and commenting on forest appeals. And we have a reference to 20 specific timber sales. They weren't mentioned by name, but it's always been this Court's jurisprudence to elevate form -- I mean, elevate substance over form -- so it's not a creative pleading exercise that can either get you in or out of standing; it's a commonsense inquiry.
Antonin Scalia: Tell me the two cases again that you are relying on for this.
Matt Kenna: Blum v. Yaretsky, and that we cite in our brief; and then Northeastern Florida Chamber of Contractors v. Jacksonville. That's a 1993 case.
Antonin Scalia: And what's that? What's the cite for it?
Matt Kenna: 508 U.S. 656 1993. Now, getting back to the ripeness issue in particular, as we go through the list of cases, it seems that the facial challenges have always been permitted in situations similar to this. The key question is, has it been applied? So National Parks Conservation Association hasn't been applied. No prediction that it might be applied, therefore not ripe. Thomas v. Union Carbide, I think, is particularly instructive because there the case preceding that was held unripe because there had not yet been an arbitration under the federal insecticide law. But by the time the case came to the Court, there had been an arbitration that had passed, and on that basis the Court said yes, this is a ripe controversy because here it's been applied, and there was no finding of mootness even though that arbitration was done, and that's the same situation that we have here.
Stephen G. Breyer: Can I go back to standing for a minute.
Matt Kenna: Yes, Your Honor.
Stephen G. Breyer: You may have looked this up and may have found something here. Suppose an organization that has a purely ideological interest, so it can't get into Federal court, nonetheless can go before an agency; but they are not going to get into Federal court. Now, suppose that agency then has a reg that they think is lawful and makes their life more difficult. I guess that the fact that they suffer a procedural injury would not get them into court. They are already somebody who doesn't; they don't. So I can imagine cases saying that. Contrast that with the case with a person who has a very concrete specific injury, a terrible allergy to chemical X, and they often litigate that there is too much chemical X, and now they are before an agency and they frequently complain about chemical X, but they don't have a particular case, but they will often be there. Now, the agency promulgates a procedural regulation that hurts those people who normally have a concrete injury. All right? There I wonder if that purely procedural injury cannot serve as a basis for standing. Now, do the cases ask -- so I am contrasting the two kinds of questions, and I wonder what you found in the cases as to the second kind, as opposed to the first kind; and you are free to answer this as one word "nothing; go look it up yourself, which is a fair comment. " [Laughter]
Matt Kenna: Well, Justice Breyer, you know, of course our case is not that typical because we think we have on the--
Stephen G. Breyer: You think you are like the second?
Matt Kenna: --Right. I think there is room under the -- so the FEC v. Atkins cases is the informational injury case. Then there is the Havens case which stated that groups that sought to fight redlining in loaning for -- discriminatorily loaning in neighborhoods had organizational standing, not representational as we claim here through our members, but actual representation in and of themselves. And I think when you combine those cases together, I think there is some room for that finding that there is that injury. But I would -- I would point out here that the -- we don't claim it, and even though the court of appeals, again, talks quite a bit about it, it ultimately tied it back. And even if it didn't do a job that this Court found to be sufficient, I think the focus really has to be on the district court, as that is what originally looked at the declarations and did a very good job of discussing the on-the-ground injuries suffered combined with procedural injuries.
Antonin Scalia: Can I ask you about Northeastern Florida? I have dug that out. I don't think it -- it supports what you say. In its complaint what was going on here is that there was a -- a minority business preference adopted by the City of Jacksonville, and some contractors who were not minorities sued saying that this was in -- in violation of the Constitution. And what happened -- what the Court said about standing was in its complaint petitioner alleged that many of its members regularly bid on and perform construction works. Now, if it had stopped there it might fit your case, but then it went on to say, "and that they would have bid on designated set-aside contracts but for the restrictions imposed. " As I read the case there were designated contracts, of which they said we would have bid on them but we didn't because of this -- what the case involved was the assertion by the city that you don't have standing unless you can show you would have been awarded the contract. And we said, no, no, you don't have to be awarded it, but if indeed you were -- you would have been a bidder in that contract but for this law, that's enough for standing. So that's not this case.
Matt Kenna: But I think the record supports the same kind of assertion. So, for instance, if you look at Tim Bensman's declaration at page 71a of the petition appendix, it says how on those timber sales he would have commented and appealed them if he was given the opportunity, and he would like to go back there if he could preserve the quality of those areas that he visited.
John G. Roberts, Jr.: And where is "there"? He would like to go back where?
Matt Kenna: He would like to go back to the areas in -- where those 20 timber sales are, some of which he had been to before and would like to return to. And I -- and the supplemental declarations, when this came up again and the government pressed, because they asked for more specifics, those specifics were provided. And so, for instance, at the joint appendix at page 90 you have Eric Wiberg using the Weiser River drainage and talking about he wasn't going to get notice of that. Only because he happened to be personally familiar with the area was he able to communicate his views to the Forest Service, and it actually ended up changing what the Forest Service did because he just happened to find out and he happened to know it. So that's a specific--
John G. Roberts, Jr.: This isn't one of those after-submitted declarations, is it?
Matt Kenna: --That -- that latest one I referred to is. Yes, Your Honor.
John G. Roberts, Jr.: Well, don't we generally not look at after-submitted declarations in determining standing?
Matt Kenna: Your Honor, I don't think that is correct. I think the Court can look at any documents in the record which show standing at the time of the suit.
John G. Roberts, Jr.: So if you -- if yesterday you submitted a declaration, we would look at that?
Matt Kenna: Well, the cases that the government provided for rejecting declarations were offers submitted to this Court or certainly an appellate court and I agree that is more problematic, or it would have been more problematic if the district court had excluded the documents and said it's not going to look at them. We would be looking at an abuse of discretion standard as was at issue in Lujan v National Wildlife Federation. But certainly when a, an appellate court takes up a record from a district court it is entitled to look at all the evidence submitted and especially when it's a case like standing -- or an issue like standing where it's a constitutional question that is important and you may look at all the circumstances -- there is no reason to reject a later filed declaration. But again, we don't rely on those alone. We think it's the totality of everything that supports--
John G. Roberts, Jr.: The later filed, where along the district court proceedings were they filed?
Matt Kenna: --They were submitted -- after the judgment setting aside the regulations, there was litigation over the government's stay motion pending appeal.
John G. Roberts, Jr.: So if you lose that again, you figure, well, I've got some more -- I can get some more declarations. The reason we don't look at after-submitted declarations is because there has to be under the normal rule, an end to litigation at a particular time. It seems to me this would be an endless process. You know, every time the district court identifies a particular flaw, you would say okay, here's a declaration, and then they say, well, here's another basis, well, here's another declaration. I'm not sure that that's what our cases sanction.
Matt Kenna: Well, the -- the district court didn't find a flaw. It found that we had standing. It was -- the government reiterated its standing argument in the context of the stay. This essentially opened the door by arguing again, "hey, you have no standing. " in addition to "we should get a stay because of the equities. " And so it seems perfectly appropriate in that circumstance to submit additional declarations. We didn't just file them out of the blue because we thought--
John G. Roberts, Jr.: You filed them after judgment, right?
Matt Kenna: --We did. But they -- I think also the issue is there's been the many decisions of the Court which say, you know, standing after the fact isn't going to do you any good. And what I think it's important to keep clear here is that the declarations were later filed, but they referred to events going on before the judgment came down. So, we have declarations at the time of the complaint, very specific; the government concedes they are very specific; they talked about both the Burnt Ridge sale and the regulations. We have the Bensman declaration at the time of the merits consideration, which showed the case was not moot, that he was still being subjected to these regulations and being denied notice and comment. And then we have additional declarations after the fact of the government -- I'm sorry of the district court's decision, which buttressed all of the above. And it seems appropriate under that circumstance in light of the statements by the Court that I discussed in the Defenders case and elsewhere, that standing is a practical inquiry, that standing should be found in such circumstances.
Ruth Bader Ginsburg: Do you want to say a word about the Ninth Circuit making a law for the entire nation, on a controversial question that normally the court would just rule for its own area?
Matt Kenna: Well, I think there is a difference, Your Honor, between setting aside a regulation under the Administrative Procedure Act and what would normally be some sort of nationwide injunction such as where you had, say, challenged a local timber -- local forest service district for not analyzing NEPA correctly, and the Court not only set aside that action but said, and "oh, by the way anywhere else in the country that's doing it like this, you are enjoined, too. " I think it's a very different question where you have a regulation that's being challenged under the APA. And it's always been the Court's assumption that setting aside a regulation, which the APA commands a district court to do, also using its discretion, means that it is set aside without geographic limitation. And so I think, you know, the Ninth Circuit may have said a bit much to saying it was compelled by the text of the APA but I do believe the district court properly weighed the Mendoza interests.
John G. Roberts, Jr.: Thank you, counsel.
Matt Kenna: Thank you, Your Honors.
John G. Roberts, Jr.: Mr. Kneedler, you have three minutes.
Edwin S. Kneedler: Several points, Mr. Chief Justice. First, the Burnt Ridge Project illustrates the way that we think an issue like this should be resolved and shows why the sentence from National Wildlife Federation that you quoted, Mr. Chief Justice, disposes of the case, and that is that a regulation -- particularly a procedural regulation whose only relevance is in an agency proceeding for approving a site-specific activity -- that can only be challenged in connection with that site-specific activity. That's what the sentence in National Wildlife Federation was driving at; that is what Section 702 says; when you can challenge the agency action that aggrieves you and that is consistent with what the Court said in National Wildlife Federation, that a -- a court should intervene only when and to the extent that someone is harmed. This regulation can only harm someone in connection with--
John Paul Stevens: That is not what it says. It says this is our ordinary practice it doesn't say it's the limit on our practice.
Edwin S. Kneedler: --He was talking about injunction. I was talking about--
John Paul Stevens: I thought you were talking about--
Edwin S. Kneedler: --ripeness under the APA but it ties in -- it ties into the injunctive relief if I just could address that for the moment. Injunctive relief is -- is discretionary and Section 702 of the APA says nothing in the statute limit a court's ability to deny relief on appropriate equitable grounds. And this is best illustrated by the -- suppose a regulation was challenged by the defendant in a criminal conviction and the plaintiff says the regulation is invalid on its face. The APA says set it aside, but surely the district court dismissing that indictment would not be setting aside the regulation on a nationwide basis. The effect of a declaratory judgment even one rendered in the course of dismissing an indictment, if you call that a declaration, is -- is governed by the law of judgments, not by -- not by a court reaching out and extending its ruling to people and forests and projects that are not before -- not before the Court. And the Burnt Ridge Project shows the way in which this could be challenged. A particular project where there was not an appeal, if someone wants to object to the project on that ground or any other ground, he -- he can challenge that project, and there may be other grounds on which that project might be invalid which is an additional reason not to anticipate a legal defect but to -- but to wait until it's applied. The final thing I wanted to say is about the claim of procedural injury and that this might be like FOIA or something like this. I think it's instructive that the -- that the ARA is not written in terms of conferring rights on individuals. It's a direction to the Forest Service to prepare a -- to establish an appeal mechanism, in other words, do what the agency normally does to establish procedures for administering things. There is certainly nothing in the text that suggests that it was intended to confer the extraordinary sort of right of immediate access to the court for purely procedural grounds. It was just meant to fine-tune the agency's own internal administrative procedures, which Section 706 of the APA makes clear can only be challenged in a challenge to the final agency action in which the procedures are applied.
John G. Roberts, Jr.: Thank you Mr. Kneedler. The case is submitted.


Earl Warren: Number 211, Textile Workers Union of America, Petitioner, versus Lincoln Mills of Alabama. Mr. Goldberg.
Arthur J. Goldberg: May it please the Court. The ultimate question presented for decision in this case is raised by the decision of the Court of Appeals for the Fifth Circuit. That question is whether the Federal District Court has authority in a suit brought under Section 301 (a) of the Labor Management Relations Act to compel compliance by an employer with his contract to arbitrate disputes, arising under the collective bargaining agreement with the union, which union represents employees in an industry affecting commerce. The same question with some minor variations is presented in the two cases which follow on the docket. I shall not, of course, attempt to argue those cases for counseling those cases, although one is my colleague, but I should like to indicate to the Court what questions are common to all three cases in presenting the Lincoln Mills case to the Court. Before doing so, however, I think it would be helpful and appropriate if I give a resume of the salient facts. The petitioner, Textile Workers Union of America, formerly CIO and now AFL-CIO, is a labor organization representing the employees of the respondent, Lincoln Mills of Huntsville, Alabama. This company owns and operates a textile mill in Huntsville. The company is engaged in an industry affecting commerce and is subject to the Labor Relations Act of 1947. In June of 1953, the parties entered into a collective bargaining agreement. The agreement which is reproduced in the record, is the usual type of collective bargaining agreement and key to the argument and decision of this case as the fact that this agreement contained a no-strike clause on the part of the union and a common agreement as a consideration therefore to arbitrate disputes arising in the construction and termination of the contract. The agreement contains the usual grievance machinery, which is applicable today to most collective bargaining agreements. It is a three-step grievance machinery, and the fourth step of the grievance machinery is arbitration. And I want in a moment to distinguish between the different types of arbitration involved and particularly the one involved in this case. The complaint in this case and the controversy in this case involves 10 grievances, filed by the union in the first step of the grievance procedure in June of 1954. The grievances, and it is important to note what they are, are found on page 19 to 28 of the record. These grievances are concerned with workloads and work assignments, not an uncommon grievance in a textile plant or for that matter, in other plants.
Felix Frankfurter: Why -- why is it important to know what grievances are?
Arthur J. Goldberg: Well, I think later, when I discuss the impact of the Westinghouse case, I will develop the relevancy of the type of grievance to the issues in this case.
Felix Frankfurter: Do you mean different grievances may lead to different results?
Arthur J. Goldberg: I hope not, but I am constrained by the Westinghouse decision to mention that fact.
Felix Frankfurter: Yes.
Arthur J. Goldberg: I might say, Your Honors, that just the other day, too late to include in the brief, I received the annual report of the American Arbitration Association for this year. The type of grievance involved here is becoming an increasingly large part of grievances which are subject to arbitration proceedings and collective bargaining agreement. And it may be interesting to note what these grievances are according to the history of the American Arbitration Association. 25% of the total amount of grievance arbitrations heard in 1956 relate to discharge and other forms of discipline. 23% include job evaluation, workload and wage incentives in which category of these grievances rest. 30% of the total, relate to seniority, and 6% of the total are overtime and then there's a minor amount. This is contained in the 1956 annual report of the American Arbitration Association. I want to ask counsel if you might want to look at it. Now, the -- the grievances in this case are covered by a special section of the labor contract. This is Article V which is found in the record on pages 11 and 13. The reason for the special treatment is that in conjunction with any arbitration proceeding of grievances of this character, it was provide -- it was provided that while the American Arbitration Association might select the arbitrator, it should be done from -- the arbitrator should be a person having special knowledge of this particular type of problem. This also is not uncommon because there are many contracts that with reference to matters of industrial engineering, call for this type of special arbitration machinery, although many contracts, of course, do not. Now, under Article V of the agreement, the company had the right to make changes of this type based upon some management and engineering practice upon written notice. The union was required and the employees in the plant were required to work under the change made by the management for a four-week period to give it a fair try. And then, if they were not satisfied with the situation that developed, the grievance could be filed and ultimately, arbitration could be held. The -- in the -- in the instant case, the grievances were processed by the union through various steps of the grievance procedure. They were finally denied by the company on July 14th, 15th and 22nd of 1954. The collective bargaining agreement had expired pursuant to notice under its terms on July 3rd, 1954. The -- I have tried to check independently of the record as to what happened to the collective bargaining agreement for the information of the Court. Mr. Constangy has greater familiarity than I do with that subject since he represents the company locally. My understanding is that for a while after the exploration, there was no agreement then there was a strike. Ultimately, the strike was settled and sometime later in 1955, the agreement was reinstated with some changes, but nonmaterial to the work assignment and workload clause and that there was a provision in the settlement agreement that provided that these particular grievances, which were then pending in Court, would be determined with respect to arbitrality -- arbitrability by the decision of the Court. They were preserved in that manner.
Felix Frankfurter: Let's see if I understand that. These are not grievances pertaining to individual wages of individual employees?
Arthur J. Goldberg: There are -- in the -- the grievances were filed. The record shows, by the Grievance Committee in the plant. They're related to jobs. However, there were people on the jobs and four of the 10 grievances asked for compensation. In the event, the grievance was adjusted in accordance with the union's demand.
Felix Frankfurter: For past nonpayment, which the union is right, they were entitled to?
Arthur J. Goldberg: For -- yes, that is right.
Felix Frankfurter: To that extent, to that extent it's Westinghouse, is it not?
Arthur J. Goldberg: Not entirely as I will --
Felix Frankfurter: No. I mean, to that extent.
Arthur J. Goldberg: To the extent that back pay was asked, yes.
Felix Frankfurter: Yes, definitely on this.
Arthur J. Goldberg: But not entirely for reasons that I will like to cover after.
Felix Frankfurter: But back pay payments of -- some of these grievances are back pay payments.
Arthur J. Goldberg: For -- in part.
Felix Frankfurter: In part? That's understandable.
Arthur J. Goldberg: Not entirely. Yes.
Felix Frankfurter: So, what are the people --
Arthur J. Goldberg: They asked --
Felix Frankfurter: And I say as the back pay, it's back pay. Isn't it?
Arthur J. Goldberg: Yes, all the grievances asked for adjustment A and I should also add to the Court, that as I read the contract, the arbitrator is going to award back pay if appropriate at all of the cases.
Felix Frankfurter: But I want to know is, you say that the new agreement reserved to grievances.
Arthur J. Goldberg: Yes.
Felix Frankfurter: What I want to know is --
Arthur J. Goldberg: Only if -- only if arbitration was ordered by the Court.
Felix Frankfurter: Yes, I understood that. It's something that should be understood. Of course, if they -- if the union wins, then, certain grievances were reserved. Is that right?
Arthur J. Goldberg: Right.
Felix Frankfurter: The -- the satisfaction of certain grievances was then -- was reserved.
Arthur J. Goldberg: That is right, Your Honor.
Felix Frankfurter: What I want to know is what actually happens if the union should win. What kind of -- would some men lose their jobs and someone gave their jobs? Would there be if you mind, explaining me that. What --
Arthur J. Goldberg: Yes.
Felix Frankfurter: -- is the present effectiveness of that provision of reservation?
Arthur J. Goldberg: There would -- there will be two consequences or perhaps three. One is that in the work assignment cases and in the workload cases, there would be an adjudication, for example, if the workload was too great. This might -- this might lead to a loss of job or it might lead to a discontinue of the practice of putting these additional burdens on the working force. And the second consequence is that there might be some compensation in all.
Felix Frankfurter: Well, then -- let's see if I'm correct about this. Actually, this raises the question, what kind of a case we've got.
Arthur J. Goldberg: That is correct.
Felix Frankfurter: Do I understand from what you have said, that what is involved here is in case the union should prevail, not merely back pay, the back pay would come to some men or all members for all I know. But also, that certain -- certain labor condition, certain conditions of employment affecting men now and employed would have been suspended as if it were or have been put in, if I may use an analogy, have been put in escrow as it were for determination in this suit.
Arthur J. Goldberg: That is correct and beyond that, working conditions, which might cover the people not now on the job, might be effective, since this is related not to the individual worker but to the type of work being done -- done on the job.
Felix Frankfurter: You made out -- assuming what you say so as I do, you made out an existing living controversy that is part of this inquiry.
Arthur J. Goldberg: Yes.
Felix Frankfurter: All right.
Arthur J. Goldberg: I will deal with that later. Now, after the company refused to submit the controversy to arbitration, the union brought a suit in the United States District Court for the Northern District of Alabama, Eastern -- Northeastern Division, citing jurisdiction under Section 301 (a) of the National Labor Relations Act and based upon the violation of a contract to arbitrate and seeking specific performance of the contract and in addition, damages. Now, the company conceded and there is no argument about these essential facts and defended on two basic rounds. One, the Court was without jurisdiction to grant the relief requested, and the second was that the contract had expired and hence, the agreement to arbitrate could no longer be enforced. These were the two defenses.
Speaker: (Inaudible)
Arthur J. Goldberg: I -- I think the defense is both, although, stated in terms of no jurisdiction to proceed. But I think as counsel has developed his argument in his brief, it is both, and I shall deal with both aspects later. The District Court Judge Grooms, on April 29th, 1955, issued the findings of fact then inclusions of law. The Court concluded it had jurisdiction and that the union had a right to maintain an action to compel arbitration by virtue of Section 301 (a) of the Labor Management Relations Act. The expiration of the collective bargaining agreement, the District Judge held and found he did not relieve the company of its obligation to arbitrate, particularly in the view of the District Judge because of the fact that the grievances were in fact processed in the grievance machinery after the expiration of the agreement. You will remember, I said, that the third step and the final decision in the third step was in July after the contract had expired. The Court awarded no damages, finding that the union had not proved any damage. An appeal to the Fifth Circuit, the Court of Appeals, reversed by a two-to-one decision, the opinion of the majority was delivered by Judge Jones and the dissent by Judge Brown. Now, all of the judges agreed that the District Court had jurisdiction of the suit under 301 (a). They also expressly agreed that the Norris-LaGuardia Act did not prevent the issuance of the order, which had been granted by the District Court. The majority held that in the suit brought under Section 301, however, an executory agreement to submit disputes to arbitrations would not be specifically enforced in the absence of a showing that such agreements were enforceable under the laws of the State of Alabama. I might say that we concede that an agreement to arbitrate future disputes is not enforceable as we read the law of Alabama. Apparently as I also read it, but I do not profess to be by any means an Alabama lawyer, an agreement to arbitrate an existing dispute is enforceable in Alabama. In reaching this concusion, the majority --
Felix Frankfurter: Was this an existing dispute? Was this not an existing dispute?
Arthur J. Goldberg: Pardon?
Felix Frankfurter: Was this not an existing --
Arthur J. Goldberg: It was an existing dispute.
Felix Frankfurter: And I don't -- and I'm bothered by your assurance by your -- by your qualified assurance that Alabama law does allow this.
Arthur J. Goldberg: Yes.
Felix Frankfurter: If the -- what's the trouble?
Arthur J. Goldberg: Well, the trouble I think is that they -- the agreement itself related to future disputes and I think that because the agreement was entered into before the disputes arose. And as I read -- as I read the decisions of the Court, they were acting upon the labor agreement as it read.
Felix Frankfurter: Do I understand as you say that Alabama law says after the grievance has risen between the builder and a -- and a house owner, you can then submit it to arbitration but you could -- cannot in advance say, “If agreement should arise, we will submit.”
Arthur J. Goldberg: That's as I understand the Alabama law.
Felix Frankfurter: Well, then -- then if Alabama law governed, the Court of Appeals was within Alabama law.
Arthur J. Goldberg: I would think so.
Felix Frankfurter: All right.
Arthur J. Goldberg: And I accept their interpretation as I must of Alabama law. In reaching the conclusion, the Court of Appeals first conclude that the United States Arbitration Act doesn't authorize enforcement of arbitration provisions in collective bargaining contracts, and I will deal with that problem subsequently. It then proceeded to consider whether Section 301 (a) itself could be provided as the basis upon which such agreements could be enforced. In reading this Court's opinion in Westinghouse, the majority concluded that Section 301 (a) created neither substantive right nor remedy and finding neither a federal common law nor a remedy authorized under Alabama law for specific enforcement of agreements to arbitrate, the Court concluded that there was no basis upon which it could grant relief in this case.
Felix Frankfurter: How could they all have jurisdiction if there was no basis under the statute under which they can entertain it?
Arthur J. Goldberg: They say they had jurisdiction to entertain the cause, but they have no jurisdiction to entertain this particular case.
Felix Frankfurter: You mean to say they had jurisdiction, this time they had no jurisdiction, of course --
Arthur J. Goldberg: Jurisdiction to make -- to make the overall decision as to whether this case applies.
Felix Frankfurter: May I ask you one more thing before you would involve under law?
Arthur J. Goldberg: Certainly, yes.
Felix Frankfurter: The Arbitration Act, to which you will have to address to, which you will have --
Arthur J. Goldberg: Which I will.
Felix Frankfurter: These words thus require -- it's applicable to commerce -- commerce among the several states. Out of this, does your case raise the question whether these people, whether they're textile workers working for the Lincoln Mills was a case of commerce among the several states? I know you've said it's subject to jurisdiction of the Labor Board but that raises the question affecting the commerce.
Arthur J. Goldberg: Yes, this is not --
Felix Frankfurter: That wasn't in the case.
Arthur J. Goldberg: This is not a case of commerce within the several -- in the several states. This is a case of commerce affecting commerce.
Felix Frankfurter: Well, then, is it -- is it no longer an opening question whether the Arbitration Act of 1924, when it says commerce among the several states meant that as a technical term, they're in the case too?
Arthur J. Goldberg: There are two -- there are two sections involved.
Felix Frankfurter: Are you going to deal with that?
Arthur J. Goldberg: Pardon.
Felix Frankfurter: Will you deal with that?
Arthur J. Goldberg: I will deal with that and there are two -- two sections of the Act involved. One in my opinion deals with commerce between the several states and the other is so worded that it encompasses commerce affecting an industry, affecting commerce.
Felix Frankfurter: That is still an open question in the court below, isn't it, as to whether commerce among the several states in the Arbitration Act is now as wide as the jurisdiction of the Labor Board?
Arthur J. Goldberg: Yes, and I want to, in a little while give --
Felix Frankfurter: All right.
Arthur J. Goldberg: -- you a rundown of the opinions in the various circuits on this point which is --
Felix Frankfurter: And -- and --
Arthur J. Goldberg: -- which is very right.
Felix Frankfurter: And that's involved in this case.
Arthur J. Goldberg: That's involved very much in this case.
Felix Frankfurter: Well, what questions aren't involved in this case?
Arthur J. Goldberg: I don't know. It seems we were -- as I -- as I list the questions in a few minutes, we will see we have a multiplicity of important questions. Judge Brown dissented and in his dissent, he drew his right and what he thought the Court should have done from Section 301 (a) saying that construing that section in light of what Congress in his opinion intended to do, that this independently of the Federal Arbitration Act authorized the enforcement of this agreement by application of the union to grant relief.
Harold Burton: Is that the ground you take?
Arthur J. Goldberg: I do. I take that but I also say that if I am not well-founded, and I think I am, in that situation, we also buttress our claim through relief on the Arbitration Act. We have a double-barrel approach in that respect. The certiorari was sought and granted because of the square conflict between the decisions of the Fifth Circuit and the decision of the Court of Appeals for the First Circuit, which are here before you. I might say and I won't intrude upon the First Circuit -- the circuit decisions, but in the First Circuit cases, the Court speaking through Chief Judge Magruder, held -- held in his opinion that while there was no authority to compel arbitration by virtue of the provisions of Section 301 alone, such authority could be found under the terms of the United States Arbitration Act. Now, there are -- as I read it, there are four questions involved, common to all three cases. There are a few questions involved of particular interest to one case or another. And the questions involved are these, which this Court indicated in granting certiorari in the Goodall case which is next and then the General Electric case. Whether Section 301 of the Labor Management Relations Act of 1957 granted to the District Courts of the United States jurisdiction where no other ground for federal jurisdiction is alleged or claimed. Two, whether Section 301 (a) of the Labor Management Relations Act of 1947 granted to the District Court of the United States equitable jurisdiction to compel specific performance of arbitration clauses in a collective bargaining agreement or was limited to damage or law of jurisdiction. Three, whether the District Court has jurisdiction to decree specific performance of an agreement to arbitrate such a dispute despite the prohibitions of the Norris-La Guardia Act. Four, whether the United States Arbitration Act is applicable to the agreement to arbitrate in a collective agreement or a collective bargaining agreement, I use the terms synonymously. Now, five, which is peculiar to this case and perhaps the Goodall case, but as I understand counsel in the General Electric case not to that case, although, the statement appears in our brief which is erroneous in light of the statement to me this morning, whether there is a duty to arbitrate approved grievances after the agreement on which they are based has expired. As I understand in General Electric, the -- the agreement has not expired.
Felix Frankfurter: Under which one of your four heads would you deal with the question assuming the federal court has jurisdiction, whether or not, it may exercise it depending on whether a general or federal law applies or the state law? Under which one is that?
Arthur J. Goldberg: I will -- I will deal with that under the first aspect of the -- of the --
Felix Frankfurter: That's a subordinate question.
Arthur J. Goldberg: That is a subordinate question. I have not, Your Honors, attempted to -- to outline all of the subordinate questions involved, but there are many subordinate questions.
Felix Frankfurter: I'm trying -- I'm trying to construct the Grand Central Station in my mind so that your argument can run on the tracks provided.
Arthur J. Goldberg: Yes. That -- that fits under the first discussion of 301, whether state or federal law is applicable and what affect that has upon the -- the case. Now, under 301 -- before I do that, I would like to take advantage of a brief chart to indicate where we stay under this area throughout the country. This is a much litigated and much difficult area as it occurred from the following. Almost, in fact, I think every circuit with the exception of an opinion in one circuit by two judges where the opinion is the other way in this case, all the circuits First, Second, Third, Fourth, Fifth, Sixth and Seventh, not all, but those circuits, assumed that there is jurisdiction under 301 to bring a suit. This again, Mr. Justice Frankfurter, leads to your question for what purpose, but then I will have to develop. Now, with request -- with respect --
Felix Frankfurter: With the Courts of Appeals.
Arthur J. Goldberg: Courts of Appeal. These are Courts of Appeal, although, one in the Fourth Circuit is -- is not quite clear, but it seems to give favorable inference to a district decision to this effect by commenting favorably about it in the case which we cite in our brief.
Felix Frankfurter: What -- what do you do with the third? The third got all sorts of opinions.
Arthur J. Goldberg: Yes, it has, but I think I've tried to round it out as to how I interpret these other opinions.
Felix Frankfurter: Do you think you could reconcile on the Third Circuit opinions if you will?
Arthur J. Goldberg: That's very difficult. I'll try to find what I think now is the prevailing trend. The question of whether equitable relief may be afforded in 301 as against limiting it to damage relief or law relief is decided, yes, in the First Circuit. It's not spoken about in the Second. It's decided, yes, in the Third. Yes, in the Fourth in his way of indicating approval for a lower court's judgment. Yes, in the Fifth, except this is the case where two judges, not on the panel in this case, seemed to indicate that their reading of Westinghouse deprives them of -- of authority to say that equitable relief may be granted.
Felix Frankfurter: Are all these on the syntax of Westinghouse? Some of them are pre-Westinghouse.
Arthur J. Goldberg: Some are pre. Some have come down since.
Felix Frankfurter: Yes, but --
Arthur J. Goldberg: The Sixth Circuit, the answer is yes. In the Seventh Circuit, the answer is yes. The Seventh Circuit, for example, they had a recent case just handed down and we mentioned that in one of the reply briefs. Now, the question of whether an Norris-LaGuardia Act is a bar, is a bar, is no bar as was held here. It's not a bar. The First Circuit says it is not a bar. The Third Circuit says this is not a bar. The Fourth Circuit says this is not a bar. Fifth Circuit says it's not a bar. The Sixth Circuit says it is not a bar and the Seventh Circuit says this is not a bar. Now, under the Arbitration Act --
Felix Frankfurter: I think you will agree won't you, Mr. Goldberg, that in a problem that is difficult as this, this isn't merely a question of how the Court of Appeals had for those who are coming and seeing what the reasoning is, the District Court in which they're multitudinous.
Arthur J. Goldberg: I think that's absolutely correct. I am just doing this to furnish a background of our problem, which is very far reaching. In construing the Arbitration Act, the -- they -- there are two essential problems. One is as to whether the collective agreement is excluded as a contract of employment under a -- an exemption in the statute. And there, the First Circuit says it is not excluded as a contract of employment. Now, what the Congress meant was an individual contract of employment, not a collective agreement. That is Judge Magruder's opinion in the G.E. case. The -- the Second Circuit says it is -- the Second Circuit on that point says no. Third --
Felix Frankfurter: Has -- has the Second Circuit decided yet? They decide -- In the -- in the case that came here on another connection, they held that a manager isn't a -- the contract of employment of workers that he isn't a worker and then they flatly decided that.
Arthur J. Goldberg: Well, now, maybe I misread this. I want to go back because I -- implicit in your question. The -- the yes or no should relate to this formulation, not excluded as a contract of employment. And the answer to the First Circuit is, yes, it is not excluded as a contract of employment. And as I read the Second Circuit in single step, their answer would be no. In the Third Circuit, it would be no, in the Fourth Circuit, no, in Lincoln Mills, no, in the -- in the Sixth Circuit, yes, and in the Seventh Circuit, no. Now, on the exclusion limited to workers in commerce.
Felix Frankfurter: Yes.
Arthur J. Goldberg: This is another -- another thing. I want to move along. There is a difference between three of the circuits or one way to the other and relief under 301, which is the first point I argue here. The First Circuit says, “There is no relief under 301, although, there is jurisdiction under 301.” The Fourth Circuit, “There is a relief under 301.” Fifth Circuit says, “There is no relief under 301.” And the Seventh Circuit says, “In this recent case, there is no relief under 301.” Now, I want to move quickly now to the legal issues involved and only mention one other fact which may be of great interest to you, and that is the importance beyond the question of the conflicts in these circuits on these various points, the whole importance to the public, to the labor movement, to employers of the -- and the prevalence of this type of arbitration contracts. The recent studies by the Bureau of Labor Statistics and other government agencies and private agencies like the BNA, which have circulated and they examined many contracts, seems to be that 90% of contracts today contained provisions for arbitration of grievances. Now, I think we -- we ought to distinguish since I'll have to make reference to it a little later on the question of contract arbitrations and grievance arbitrations. A contract arbitration is an arbitration where the parties agree that upon termination of the agreement, they will arbitrate the terms of a new agreement. That's called contract arbitration. Historically, that was what we thought we were talking about 25 years ago, by in large, when we dealt with arbitrations. We go back 50 years when we talked about arbitrations. We probably meant mediation and conciliation.
Felix Frankfurter: You totally know of -- of arbitration of provisions of one sort or another, touching labor collective bargains?
Arthur J. Goldberg: Labor -- I'm talking about labor agreements, collective agreements or collective bargaining agreements.Grievance arbitration is an arbitration arising under the contract and in interpretation of the contract. So, we can see the wide importance of this question to the business and labor community. Now, the issue -- I would like first to deal with the question of jurisdiction and 301. The issue tendered here is whether 301 is to be interpreted as a grant of federal jurisdiction in a case such as like this such as this and in related cases. Now, this Court dealt not with this problem. I hasten to add the arbitrability of a clause running to the union and not to an individual employee. And by the way, I should mention that the record shows that the right to arbitrate in this labor agreement is reserved to the union and the company and is not a right of the individual employees. Now, the initial objection to the assertion of jurisdiction, which is always made now since Westinghouse is Westinghouse. I do not read Westinghouse as controlling the decision in this case. I read Westinghouse in all of the opinions that were rendered as asserting that the right of an employee to recover wages due is a right which was not encompassed within the grant made in 301 for unions and employers to sue each other. I do not believe that any reading in the case leads to any conclusion that anything beyond that was decided in Westinghouse.
Felix Frankfurter: Well, that isn't quite it, is it? There was no suit by an employee in Westinghouse.
Arthur J. Goldberg: No, but there was suit by union and it was held there was no jurisdiction under 301 because the union was seeking to assert a right, personal to the employee.
Felix Frankfurter: That's the difference about it. It was a suit by the union.
Arthur J. Goldberg: There was a suit.
Felix Frankfurter: Or what it claims to be its right under the collective bargaining to assert rights to its member.
Arthur J. Goldberg: That is correct. It was held there that that was not its right and therefore, West -- and therefore, 301 did not encompass the type of situation there before the Court. Of new impression is the question here which can be faced on its merits and that is does it encompass a right which clearly is in the union here to arbitrate with the employer. Now, here there are -- I think we ought to turn to 301 because there are several arguments made which questioned this right, which I shall talk about in a minute. Section 301 (a) is not limited in its terms. It provides -- Section 301 of the Labor Relations Act, it provides that suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act or between any such labor organizations may be brought in any District Court of the United States having jurisdiction of the parties without regard to the amount of controversy or without regard to the citizenship of the parties. Now, there are several objections raised with respect to the applicability of that section and there is a --
Earl Warren: We'll recess now.