Warren E. Burger: We will hear arguments next in United States against Testan and Zarrilli. Mr. Rupp you may proceed.
John P. Rupp: Mr. Chief Justice and may I please the Court. This case is here on the Government’s petition for writ of certiorari to review a decision by the Court of Claims. Two questions were presented in the petition. First, whether the Court of Claims had jurisdiction over this case and second, whether in determining the correctness of respondent's classifications, the Classification Act requires that there positions be compared with the positions held by employees in another Federal Agency. The relevant facts are both few and largely undisputed. Respondents were employed as trail attorneys by the Defense Supply Agency of the Defense Personnel Support Center in Philadelphia. There positions are subject to the Classification Act and under that Act, they were at all relevant times classified at civil service grade GS-13. On December 9, 1969, they submitted requests to their employing agency seeking reclassification to civil service grade GS-14. In support of those requests, they argued that they were entitled to reclassification at GS-14 under standards, the general standard promulgated by the Civil Service Commission. And secondly, that their positions were identical to positions occupied by attorneys employed by the Air Force Logistics Command in Dayton, Ohio, positions that were classified one grade higher than their own. After an audit by a position classification specialist, respondents' employing agency informed them that they were properly classified at GS-13. On appeal, the Civil Service Commission endorsed that conclusion, made the same finding and denied respondents request for a classification. The Commission also ruled and informed respondents that the comparisons that they had requested did not constitute a proper method of classification under the Classification Act. Respondents then filed the present suit in the Court of Claims, seeking an order directing their reclassification to GS-14 as of the date of the first administrative denial of their requests and backpay accrued from that date. The Court of Claims in a four to three decision ruled that it had jurisdiction over the case under the Tucker Act and on the merits that the Civil Service Commission had been arbitrary and capricious in not making the comparisons that respondents had requested, the Court therefore, remanded the case to the Civil Service Commission with instructions to undertake the requested comparisons and to report the results to the Court.
Harry A. Blackmun: Do you know by any chance whether there had been many requests for comparisons since the Testan case was decided by the Court of Claims?
John P. Rupp: I know of one.
Harry A. Blackmun: Just one?
John P. Rupp: There -- I know of one that resulted in a decision. There is case decided by the District of -- District Court in the District of Columbia Chapter in which the Court held the comparisons were not required, were not appropriate. I did not know and I may have misconceived your question initially. I did not know whether many such requests have been made directly to the Civil Service Commission and then had not been pursued after they have been denied. I do know that the Civil Service Commission’s policy is uniformly to deny such requests. As noted in our reply brief the central and in our judgment dispositive issue presented by this case is whether any federal statute or statutes gives respondents a substantive right to recover from the United States money damages for the period of a wrongful civil service classification. In assuming jurisdiction in this case, the Court of Claims conceded that the classification process involves substantial discretion, a concession which I think flows naturally from this case decision in the Ramsbeck case. The Court of Claims also conceded that it was without power to direct respondents for classification. The Court reasoned, however, that if respondents found administratively to be entitled to reclassification, that determination could create a right to money damages or right to reclassification which the Court could then force by way of a money judgment. Well, I think it’s fair to say that the Court of Claims dealt at best equivocally with the issue of its jurisdiction. The Court appeared to assume first that a substantive right to the recovery of money damages against the United States could appropriately be found by implication. And second, that the history of the relationship between the Federal Government and its employees, evidence is an intent on Congress’ part to permit the recovery of money damages for the period of wrongful Civil Service Classification. We submit that both of these assumptions which are together essential to what holding at the Court of Claims had jurisdiction over this case, so that the cause of action was stated are incorrect. It is settled of course that the jurisdiction of the Court of Claims under the Tucker Act is limited to cases in which the claimants seek actual presently due money damages, claims founded upon the Constitution, any federal statute, etcetera. To that extent then we acknowledge that Congress has waived in the Tucker Act a portion of the sovereign immunity or the historic immunity of the United States to suit. But its essential I think to recognize that the Tucker Act is not itself create any substantive rights to the recovery of money damages from the United States. Whether the claimants such as respondents are entitled to the recovery of money damages depends in our view, upon the existences of the statute or combination of statutes, a substantive provision of some sort in a statute expressly and unequivocally waiving the immunity of the United States to the recovery of money damages from the Public Treasury. It is not sufficient for these purposes in our view nor indeed is it even relevant that the existence of such a substantive right might be thought responsive to a particular conception of public policy. The settled rule followed in countless cases, many of which are cited in our main brief at pages six through eight, prohibits Courts from implying authority to collect upon the Public Treasury which is precisely what the Court of Claims did here and what respondents would have them do. Respondents' contention to the contrary apparently precedes from their view as the Tucker Act, of the Tucker Act as constituting not only a grant of jurisdiction to the Court of Claims over particular types of cases, that is those involving claims from money damages, but also is creating substantive rights to money damages whenever the provisions of any Federal statute have been violated. We submit that those are separate issues and that they must be analyzed separately. An example, in the Federal Tort Claims Act, it is quite clear that Congress there waived a portion of the historic immunity of the United States to suit. It incorporated the Law of the Place and gave to private parties a substantive right to proceed against the United States for certain types of tortuous activities. It did not, however, waive the immunity of the United States to suits in the Court to such suits in the Court of Claims. Respondents' failure to appreciate the distinction between substantive rights and a grant of jurisdiction leads them to the a conclusion that would render meaningless, the multitude of federal statutes in which Congress has expressly created a right to money damages in particular and clearly defines circumstances in favor of private parties. Respondents' view would render the Back Pay Act, certainly superfluous as would it render a meaningless -- a number of other statutory provisions, for example, the provision in the Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000 (e) (5) (g) which --
William H. Rehnquist: Of course if you read, if you read the Wickersham case, Mr. Rupp, you wonder if the Back Pay Act was not superfluous?
John P. Rupp: Well, the Wickersham case, it is important to recognize I think that the context in which the Wickersham case was decided. Prior to the passage of the Civil Service Act 1883, this Court held in several cases that federal employees who were discharged or not promoted stated no cause of action, were not entitled to judicial redress, notwithstanding the cause or reasons, the grounds for their suspension.
William H. Rehnquist: Keim and those case?
John P. Rupp: Keim and Hennan are the principal cases, I suppose. With the passage of the Civil Service Act of 1883, which was measurably strengthened by the Lloyd-LaFollette Act in 1912, this Court, beginning with the United States versus Wickersham, and other Courts recognized that federal -- and that Congress intended that federal employees should not be separated from their position wrongfully, that they were entitled to the privileges and emoluments of the position to which they were appointed until they were wrongfully separated. That is what those statutes meant, separation for cause and not otherwise. At the same time, however, the Courts have continued to recognize that people are not entitled to receive the salary of the position to which they have never been appointed.
William H. Rehnquist: But really, all the Back Pay Act does is say if you are wrongfully denied your emoluments, you’re entitled to backpay, I would have thought -- I thought that was established by Wickersham?
John P. Rupp: Well, to some extent it was. It certainly covered a -- some kinds of cases and maybe the kinds of cases that will arise in the majority kind of cases. Although the Back Pay Act extended protections to classes of employees who had not been there to -- for protected by judicial decision. If you look at the legislative history particularly of the Back Pay Act amendments passed in 1966, Congress thought it was filling in the gaps left by the Back Pay Act of 1948, which the legislative history indicated was tied to Section 7101 of the Lloyd-LaFollette Act and judicial decision. At the time they passed those amendments in 1966, they gave a rather careful consideration to the costs of the coverage that they were providing for. Now, if the violation of any federal statute, including the Classification Act gave rise to a cause of action for backpay, it would have been a hold if you liked to pass the Back Pay Act or any number of other federal statutes such as the --
Harry A. Blackmun: The Civil Service Commission is in fact paying different wages for the same work. What is the remedy of people such as these respondents?
John P. Rupp: Well, there are two, I suppose and they are or perhaps more properly stated they are part of the same process. The first thing they may do is file a request for reclassification with their employing agency. A position classifications specialist is then obligated to look at their positions to perform an audit of their positions and attempt to determine whether their positions have been properly classified. At that -- if the decision by the employing agency which draws upon the audit is not satisfactory to the employees, they have the right to appeal to the Civil Service Commission.
Harry A. Blackmun: Totally prospective?
John P. Rupp: Yes and I want to make that clear. We are not here saying simply that these employees are entitled to backpay. We are saying as well that they are not entitled to retroactive reclassification.
Harry A. Blackmun: What is the second route?
John P. Rupp: Well again it is part of the same route. Once the employees have exhausted their administrative remedies, I suppose that there might be cases in which they could file suit in the District Court seeking perspective equitable relief. Although I do not see any basis, any jurisdictional basis for such a suit other than the Mandamus Act 28, 1361 and I concede as well that the scope of review on mandamus is restrictive.
William H. Rehnquist: Certainly, it does not cover discretionary decisions then?
John P. Rupp: No, it does not. The claim that the --
Harry A. Blackmun: Maybe there just is no review. I mean. That would not be an appropriate remedy?
John P. Rupp: Well, if you have a case in which the Civil Service Commission says for the future we will not promote anyone with blue eyes or anyone who is black, I have little doubt that the District Court would entertain a suit under the mandamus action and would overturn that determination. If however it is --
William H. Rehnquist: There you would have 1331 jurisdiction?
John P. Rupp: And 1331, yes, that is right. In a case in which there were a decision within the discretion of the employing agency in the Civil Service Commission going to the duties and responsibilities performed and whether under the relevant standards those duties and responsibilities merited --
Warren E. Burger: (Inaudible)
John P. Rupp: Thank you.
Warren E. Burger: Mr. Rupp, you have about 15 minutes left.
John P. Rupp: Mr. Chief Justice and may it please the Court. The principal point of my argument this morning was that it is inappropriate to imply authority to collect from the Public Treasury of the United States. To complete that discussion let me only make a couple of additional points. The first is that the principles that are discussed this morning do not govern Fifth Amendment taking cases in the citation by respondents and amici in this case to those cases appears to us consequently to have been misplaced. The Fifth Amendment by its very terms is as this Court recognize in the Rail Reorganization Act Cases, a self executing waiver of sovereign immunity. It would mean nothing if it did not meant that. This Court has recognized that, beginning with the Cosby Case, and that view was reaffirmed in the Rail Reorganization Act Cases. The Fifth Amendment is not implicated in this case and those cases do not govern here. The second and the last point I would like to make in that regard is that neither is this a case like Bivens or Bell versus Hood where the immunity of the United States is not directly implicated. The issue in those cases, fundamentally, in those cases is fundamentally is whether the activities complained of the basis for the suit in those cases were Acts of the Sovereign with respect to which the defendants there were entitled to claim sovereign immunity. Although that issue may not be finally be disposed of, it seems relatively clear that if the person or a Federal employee is acting unconstitutionally or beyond the scope of his or her statutory authority, those allegations are not made here.
William H. Rehnquist: Must the United States be the only defendant in the Court of Claims?
John P. Rupp: Yes. This Court has so held. The importance of the Court of Claims, to the Court of Claims assumption of jurisdiction in this case of its being able to imply a cause of action against the United States stems precisely from the fact that there is no federal statute expressly and unequivocally waiving or implying a substantive right in favor of individual federal employees to collect from the Public Treasury for the period of an assuredly wrongful Civil Service Classification. Indeed the respondents in the amici had appeared to concede that there is no such substantive provision is explicitly so providing in the Classification Act, and in fact when the scheme provided for in the Classification Act, the classification process provided for in that Act is viewed as a whole, it seems to me apparent that Congress did not intend that classifications would operate either retroactively or that reclassification might provide a predicate for the recovery of backpay. For example, the Classification Acts provides in a number of provisions that the classification certificates issued by employing agencies in the first instance and on occasion in the event of review by the Civil Service Commission are to be binding on payroll, certifying and other officials with authority to disperse monies from the Public Treasury. There is no provision in the Classification Act, warning either at retroactive reclassification or the award of backpay. Neither, I should note, is there any suggestion, however, tenuous in the legislative history of the Classification Act supporting the claim made by respondents in this case. That omission it seems to me is particularly significant in light of the long standing rule that federal employees are entitled to receive only the salaries of the positions to which they were appointed, notwithstanding the fact that they may have performed duties of another higher paying position. Furthermore, although the Classification Act has been in effect for approximately 50 years, although significantly amended in 1948, but in its essential and effect for over 50 years, we have been able to locate only one of the case in which the Court of Claims or any other Court, we know of no other Court, that so held by implication as the Court of Claims did here. The only other case in which the Court of Claims appeared to assume in dicta and again without reaching the issue that the Classification Act might provide a warrant for a retroactive reclassification or the award of backpays, the case Bookman (ph) versus the United States. Prior to the decision in Bookman, the Court of Claims had consistently and repeatedly held that federal employees were only entitled to the salaries of the positions to which they were appointed. They so held in cases such as Bear versus the United States, Price versus the United State and Coleman versus United States and as recently as 1968, none of those cases were cited or discussed in the Court’s opinion in this case. In the series of decisions extending over 40 years, beginning shortly after passage of the Classification Act, the Comptroller General of the United States has taken the same position, that is that reclassifications may operate perspectively only and that federal employees may not recover back pay for the period of a wrongful classification. The only exception to this general rule that has been recognized has been for administrative errors, attributable to the failure of the subordinate to implement a valid classification decision made by the employing agency or the Civil Service Commission.
William H. Rehnquist: It is not often that the Justice Department relies on the Comptroller General to support its views, is it not?
John P. Rupp: No, that may be true. Although the Court of Claims in this case expressly disclaimed the erroneous on the Back Pay Act, let me make a couple points in that regard. Again the Back Pay Act is not explicitly provided for the payment of money damages for the period of a wrongful classification. The Back Pay Act authorizes the award of backpay and “to an employee subjected to an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction” of all or part of his compensation. That language does not cover the situation with which we have been presented here which does not involve the withdrawal or the reduction of compensation, but in assuredly wrongful failure to increase compensation. If there is any ambiguity in that language, and I think there is none, the legislative history of the Back Pay Act makes unmistakably clear that Congress meant that act to apply only to wrongful suspensions, demotions, removals and other unwarranted and unjustified personnel actions resulting from the reassignments or a transfer from full or part-time work. The Back Pay Act originally grew out of the Lloyd-LaFollette Act of 1912 which governed dismissals and suspensions. As amended in 1966, the Congress filled in a number of gaps in the Act, but did not provide for the recovery of backpay for persons wrongfully classified. The Court of Claims prior to this case has held as well that the Back Pay Act does not provide a predicate for the recovery by federal employees of backpay for the period of wrongful classifications. For it would have ruled otherwise other than it did in this case then it would have required to overrule a long line of its own decision, including Desmond versus United States, Dianish versus United States and Gaines versus the United States. Even if a substantive right to the recovery of money damages against the United States for the period of a wrongful classification could appropriately be found by implication and as I’ve argued this morning and in our briefs that it cannot be. I think that, we believe that the Court of Claims would no less assuredly have been without jurisdiction over this case. We have discussed in some detail the history of the relationship between the federal government and its employees. In our briefs, we discussed it a bit further this morning. The fact is that when Congress was considering the Classification Act and the Back Pay Act, the prevailing rule was that wrongfully classified Civil Service employees were not entitled to the recovery of backpay. Congress could have provided in either the Classification Act or the Back Pay Act, for such recovery, it did not. It seems to me that it is persuasive evidence of Congress' intent not permit the recovery of backpay such as that sought by respondents in this case in the circumstances presented in their compliant. One final point on the jurisdictional or cause of action aspect of this case, that is the argument made by the amici that our position in this case would leave respondents wholly without remedy for wrongful classifications. As their discussion of the substantive provisions of the Classification Act reveals, I think, Congress created in the Classification Act an elaborate set of administrative safeguards to ensure that the goals of the Act would be met in practice, including the goal of equal pay for substantially equal work. We have also acknowledged that a suit could be brought in District Courts seeking perspective classification, although that remedy, the scope of that remedy is of course a limited one. To the extent that persons wrongfully classified or assuredly wrongfully classified are without backpay for the period of that wrongful classification is a matter in our view to be left to Congress. They have resolved this far not to provide backpay under the circumstances. With respect to the merits of the contention that the Civil Commission was arbitrary and capricious in refusing to compare respondents’ positions with the positions held by employees in another federal agency, let me say only that that kind of position to position comparison was very substantially the kind of classification scheme which Congress rejected in 1923 when it enacted the Classification Act. They are inseparable in our view, practical difficulties associated with the suggestion that the Civil Service Commission has a duty to compare positions under any circumstances. The Court of Claims attempted to deal with these difficulties in part by suggesting that its holding was limited to circumstances which the complaining employees and employees referred to, had a large nexus of duties performed in common.
Byron R. White: If we agree with you in your first point, we do not reach this issue?
John P. Rupp: That is correct.
Byron R. White: But we would have to if we did not?
John P. Rupp: If you hold that the Court of Claims had jurisdiction in this case, you would have to reach point two. We believe the case is over as soon as you have looked at jurisdiction. The entire thrust of the Classification Act is to require the classification of positions by reference to generally applicable standards repeatedly in the Classification Act. The Civil Service Commission is required to promulgate generally applicable standards. Employing agencies are obligated to look at those classification standards in making classifications, in reviewing the appropriateness of classifications. The Civil Service Commission is required again to scrutinize the classification decisions reached by employing agencies in light of the General Classification Standards. One of the great problems that would be presented with the Civil Service Commission to have a duty to perform comparisons of the type requested by respondents is that the employing agency in the first instance would not have access to the kind of information it would need to make such comparisons. You would then have the decision made by -- a classification decision made by an employing agency not taking into account the full range of considerations made appropriate by the Court of Claims' decision in this case. Not only then would federal civil service employees have the prospect of to bite it said very largely the same apple, they would also have the prospect of review by a body obligated to take into account considerations that could not have been taken into account by the employing agency. We believe that there is a very great likelihood that that would stimulate appeals in a large number of cases in which appeals were not warranted.
Warren E. Burger: I suppose one of the considerations among many others would be the budget, would it not?
John P. Rupp: Well, yes, that is right and --
Warren E. Burger: If there was a sudden judicial order somewhere to move all of the class of 13s to grade 15, you would have quite a problem?
John P. Rupp: Well, that is a problem. There is a further problem then --
Warren E. Burger: There would be even more important problems over the budget?
John P. Rupp: Well, there is the problem that you suggest and we referred to that in our brief and another related problem is that the Civil Service Commission could not necessarily assume that the position appointed to by the complaining employees was properly classified. I suppose it would have prima facie, be entitled to prima facie considerations of proper classification, but to do the kind of job that the Court of Claims appeared to require in this case would require the Civil Service Commission not only to make the comparison that it had been requested, but to validate the classification of the positions being pointed out. At least in theory that is going to double the work of the Civil Service Commission.
William H. Rehnquist: I did not mean to interrupt. If a plaintiff files a complaint in the Court of Claims and says that the Back Pay Act and the Classification Act together, give me a claim for money damages against the United States and goes on to detail particulars. The Court of Claims decides that neither of those Acts does give a claim for money damages against United States. Does the Court of Claims dismiss for one of jurisdiction or for failure to stay the claim on which relief could be granted?
John P. Rupp: They do both.
William H. Rehnquist: I thought they had to do one or the other?
John P. Rupp: Well, in theory, of course they should do one or the other. Decisions from the Court of Claims --
William H. Rehnquist: I do not mean as a practice, but I mean, what should they do, largely under your argument?
John P. Rupp: Well, their support for either preposition; I think the Proper Courts to dismiss for failure to state a cause of action. Although there is support for the contrary, particularly given the implications of sovereign immunity.
Potter Stewart: But it says a jurisdiction is only to award monetary damages even though another Court might have a jurisdiction over a cause of action as to something else. Would not it proper dismissal be for one of jurisdiction or perhaps it is not worth assuming?
John P. Rupp: Well, it may not be. I think Mr. Justice Blackmun’s opinion in Gnotta would lead to that conclusion. I think the contrary of argument could be made with some reasonableness. It is without significance here.
Warren E. Burger: Congress’ determination that there was no cause of action stated in that Court would be essentially the same as jurisdictional determination, would it not?
John P. Rupp: That is correct and they would be obligated to do precisely the same having reached that conclusion.
Warren E. Burger: Very well.
Harry A. Blackmun: Mr. Rupp before you sit down, I ask this purely out of curiosity that Judge Consee (ph) did not sit on the case below, did he, and Senior Judge Larmour (ph) did. I just wondered why that juxtaposition through such a word. It is not important, but I just wondered if you happened to know?
John P. Rupp: I do not know. I am sorry.
Warren E. Burger: Mr. McDermott.
Edwin J. McDermott: Mr. Chief Justice and may I please the Court. The contentions of the petitioner are that the respondents are correctly classified as GS-13. Now, the issue depends upon the Civil Service Commission’s, General Attorney series and upon the equal pay for equal work statute. Now --
Warren E. Burger: You are starting with their second intention, are you not?
Edwin J. McDermott: Well, so far it is first --
Warren E. Burger: You can come back to jurisdiction (Voice Overlap)
Edwin J. McDermott: So far as jurisdiction is concerned, the Tucker Act gives the Court jurisdiction and we submit that it absolutely waives sovereign immunity insofar as it goes. Now, that provides that the Court of Claims who have jurisdiction to enter judgment upon any claim against the United States founded either upon the Constitution or any act of Congress or any regulation of the Executive Department or upon any express or implying contract with the Unites States or for liquidated or un-liquidated damages in case it is not sounding in tort. Now, we submit that our case is based upon one that Classification Act and also upon the equal pay for equal work at. Now, the Court of Claims below in the per curiam opinion in which the Chief Judge and Judges Davis and Joshua (ph) and --
Speaker: It was four to three?
Edwin J. McDermott: Four to three and Nichols joined, ruled this; they said that this case is peculiar in its facts. Whereas here, employees all belong to a small betterly manageable category. Their jobs have a large nexus of duties shared in common and other employees were specifically pointed out by the complaining employees, we deem the case to be different. Now, the case on which the Court of Claims depended was the Selman case, Selman against United States. In that case, Navy Captains had been assigned as Assistant Judge Advocate Generals of the Navy. And the statute provided that if an officer was assigned to that position, he was entitled to the pay of rear admiral-lower half. Nevertheless he was only paid at the rate of Navy Captain’s pay. Now, when it came to the Court of Claims, the Court of Claims ruled that the statute was mandatory and gave them the pay of a rear admiral-lower half for the period of their service and gave Selman backpay for 44 months. Now, this case, the plaintiffs are trial attorneys before the Armed Services Board of Contract Appeals. Now, the trial judge pointed out and he set forth the position, descriptions of both the plaintiffs which are under GS-13 and the Air Force Attorneys which are GS-14 and he said that there is really do difference between the position descriptions. The duties are the same. They prepare cases, try cases, file posturing briefs, file pre-trial briefs, interview witnesses, secure expert witnesses, they do everything, the same job is both of them. Now, he said that if you apply the equal pay for equal work statute and if you look at the General Attorney series, you come to the inescapable conclusion that the plaintiffs are entitled to be classified at grade GS-14.
William H. Rehnquist: You have to make two jumps though to have the Selman case control this case, do you not? You have got that there is language in either the Back Pay Act or the Classification Act that is equally mandatory and you have got to show that Selman is right in the light of our decision in the King case?
Edwin J. McDermott: Well, Selman is right because it was pursuant to a statute which provided for that pay, a pay of a rear admiral-lower half for an Assistant Judge Advocate General, it is a specific provision of a statute. Now, we say that whereas Selman depended upon the provisions of a statute, we depend upon the provisions of the General Attorney Series and the trial judge and he studied this case, I think very well, he said this, “that the action of the comparison of the position descriptions at the DPSC and the AFLC demonstrate that they are strikingly similar” and he was of the opinion that one classifier, for instance, how that Dayton would look at the General Attorney Series of the position description and come to the conclusion and it was properly classified at grade GS-14. Whereas the position classifier at the Defense Personnel Support Center will look at the same position description, the same General Attorney Series and come to the conclusion, that it was properly classified at GS-13. Now, he said the position descriptions are almost strikingly similar and the duties of the trial attorneys are the same. Now, also, Mr. Rupp argued that the Back Pay Act does not cover the situation. Now, in the amicus curiae brief, at page 16 on line 17, there is an analysis of the Back Pay Act. Now, it is submitted that the phrase unjustified or unwarranted personnel action within the meaning of the Back Pay Act applies as well to this action wrongly classifying the plaintiffs in this case as it would as if there were a removal or reduction in rank or a suspension. And he -- that is pointed out that the Congress left that phrase almost open for interpretation and that the Civil Service Commission did the same thing. And that there is no statement in any of the Congressional hearings or reports defining what is meant by unjustified or unwarranted personnel action. And that is merely a question of interpretation of the statute and we submit that, on that basis we are entitled to recover. Now, so far as jurisdiction is concerned, we depend on three things. One, the General Attorney Series and the trial judge has found that we are entitled to grade GS-14 there under. There are only two factors that are concerned there and that was and he went into them quite thoroughly in his opinion. Now, actually if you look at this case and you look at the Selman case, and in Selman, the Court said, that they were entitled to the rank of -- to the grade -- payable rear admiral-lower half because the statute so provided. We say that we are entitled to the grade of GS-14 because the General Attorney Series so provided and the equal pay for equal work statute so provides. Now actually, if you come down to the position of the Civil Service Commission, that says that we disregard the statute which says equal pay for equal work and we look at the position description of the person only under the series which is applicable to it. Now, the Court of Claims and the trial judge ruled that that was improper and arbitrary and capricious because the Commission actually refused to follow a Congressional Mandate of equal pay for equal work. And there are many cases, recorded claims where that provision has been established and enforced. Now, we submit also that the trial judge found that there was discrimination in this case and he specifically found that out, found that in his opinion where he said on the evidence in this case he has concluded that the refusal to classify plaintiffs to GS-14 is arbitrary, discriminatory and is not supported by substantial evidence. Now, if there be discrimination in this case, then we cite the decision of the Court of Claims in Chambers against United States, and that ruled that a black applicant for a position in the Social Security Administration who had been discriminated against was entitled to backpay. Now, that is a very well written opinion by Judge Nichols and I suggest that if that opinion be followed and fact of discrimination be found to have been adopted by the trial judge as a finding, based upon his review of the record then I suggest that we are entitled to relief. Now actually, if you look at what is referred to as the remand statute, all that the Court of Claims has done here has been to follow it. They found that the Civil Service Commission’s action was arbitrary and capricious and that the Commission should comply with the mandate of the statute calling for equal pay for equal work. And the Court of Claims ruled that the grades of other lawyers representing in other per curiam agencies before the Armed Services Board of Contract Appeals provide an essential benchmark and without consideration to them no confidence could be felt to the statute calling for equal pay for equal work has been obeyed. Now the statute, that is 92-415, that is what is referred to in Mr. Rupp’s brief as the remand statute, provides that in any case within its jurisdiction the Court of Claims shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper. And the senate report pointed out that the Act provides the United States Court of Claims with the necessary means to compel administrative or executive bodies to take further action where it is necessary to make an adequate record. And that is all that the Court of Claims has done here. It said that that it disagrees with the trial judge that the Court has the right to reclassify people, but that is a job for the Civil Service Commission and it remanded it back to the Civil Service Commission to take into consideration, the equal pay for equal work statute and to find if the plaintiffs using as a benchmark the grade applied to the trial attorneys from the Air Force at Dayton to determine whether or not they were entitled to grade GS-14 and that is all that the remand statute does. So we ask the Court in consideration of this case to find first all that the Court of Claims had jurisdiction. To consider this, it is never necessary for a statute to itself provide that for a breach of it, a person shall have an action against United States because that is what the Tucker Act does. The Tucker Act gives jurisdiction to the Court of Claims. And there are many statutes and regulations, the breach of which do not spell out the right to sue in the Court of Claims for damages. So we submit that there is -- first all there is jurisdiction and that it is a good thing for the practice of law generally to raise the grades of lawyers who appear before the Armed Services Board of Contract Appeals. Now, we have a letter from the chairman of the Armed services Board of Contract Appeals in which he says that generally most of the lawyers who appear before them are grade GS-14. The only exception appears to be the trial attorneys for the Defense Personnel Support Center and when they do the same work that other lawyers do before the Armed Services Board of Contract Appeals then I submit that they are entitled to the same pay because it is equal work, equal pay for equal work and that is a statutory definition and reinstate and I submit that the Court of Claims’ judgment should be affirmed. Thank you, sir.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: We'll hear arguments next in number 71-5255 Barker against Wingo. Mr. Milliman, you may proceed whenever you're ready.
James E. Milliman: Mr. Chief Justice and may it please the Court. First, I would like to reserve five minutes for rebuttal, if I may. The facts to this case are --
Warren E. Burger: The signal for that Mr. Milliman will be, when your white light goes on.
James E. Milliman: Thank you, Your Honor. The facts to this case are as follows. The petitioner Willie Mae Barker was indicted in September of 1958 for the murder of Orlena Denton, a vicious heinous crime which he was accused of bursting into her bedroom and beat her to death with a tire iron with an accomplice one Silas Manning who becomes very relevant. His case was originally set for trial in October of 1958. However, there occurred a series of 16 continuances granted the prosecution in this case. Willie Mae Barker was not brought to trial until October of 1963, a delay in excess of five years.
Warren E. Burger: When did he have counsel?
James E. Milliman: Counsel was appointed right after indictment, Your Honor. He was represented by counsel throughout this delay. We have no complaint in this regard. Petitioner --
Speaker: Did the counsel receive notice of the motions for continuance?
James E. Milliman: Yes, Your Honor. He had full notice to these motions for continuances.
Speaker: Does the record show whether or not he was present. Whether motion --
James E. Milliman: The record does not show whether he was present Your Honor for this continuances. There was no objection made to these continuances until 1962. At which point counsel started objecting to this continuances. But Barker was released on bail.
Speaker: How many of continuances were granted over the objection of your client?
James E. Milliman: I believe there were four or five, Your Honor. They began -- the first motion to dismiss in this case was filed on February 12, 1962 and this is on page 9 of the appendix and thereafter the counsel for Willie Mae Barker at that time objected to further continuances.
Speaker: There is some confusion as to whether or not it was 62 or 63.
James E. Milliman: Yes, Your Honor. The Kentucky Court of Appeals and both in the Sixth Circuit held it was 1963 that this motion was made February 12, 1963 but the -- and where they found this date I have no knowledge, the record clearly shows it was made on February 12, 1962.
Speaker: And the Federal Government's amicus brief, it's in to a little bit to but --
James E. Milliman: Yes Your Honor but the District Court, it's ironic to District Court on page 22 of the appendix pointed out that the motion was made in February 26, 1962 then talked about the resulting eight months delay but the delay was a resulting 19 months delay. So there is confusion as to this date. The petitioner was released on $5,000.00 bond in June of 1959 and remained free on $5,000.00 bond until he was finally convicted. Petitioner then appealed to the Court of Appeals of Kentucky alleging he was denied as right to a speedy trial and other errors in the trial court. The Kentucky Court of Appeals affirmed the conviction then later petitioner filed this habeas corpus proceeding in the District Court, the Western District of Kentucky which denied relief. He appealed to this United States Court of Appeals for the Sixth Circuit which affirmed the District Court decision and this Court granted certiorari January 18th of this year. The Court of Appeals for the Sixth Circuit decided this case on two grounds. They held that petitioner had waived his right to a speedy trial by failing to demand trial. That the demand rule states that the right to a speedy trial is guaranteed by the Sixth Amendment is a personal right which may be weighed. So the Sixth Circuit computed only the time after the first motion to dismiss was made in computing the length of the delay which had found to be nine months using the 1963 date. It also held that petitioner had not shown that he was prejudice by the delay. Petitioner's therefore raised two points on this appeal. First that the demand rule is inconsistent with constitutional safeguards and should not be required and the second issue is where there is a five year delay, prejudice should be presumed as inherent in the delay and it's important to emphasize in this case the two amicus briefs have been filed. We are concerned in this case with a five-year delay. We are not concerned with a one year delay or two-year delay. This case presents a five-year delay. The demand rule is applied in this case, is subject to attack on two grounds. This Court has consistently held that any waiver of a constitutional right must be voluntary and intelligent knowing and that it will not accept a passive waiver --
Speaker: That assumes you answer, doesn't it? That assumes that the right to a speedy trial exists without the demand.
James E. Milliman: This is correct Your Honor. And --
Speaker: Well then, how about the demand? Why should he let -- why shouldn't they have to demand that in order to trigger the right --
James E. Milliman: Your Honor in the present case, it is contended that the demand rule as such chills his right to a speedy trial. We had a man here who was indicted for willful murder. Now his accomplice had twice received the death penalty. This put him in the position of -- if he has to demand trial to protect his right to a speedy trial, he has possibly asking himself, asking the prosecution to give him the electric chair. The result if he is successful is death, this is a grisly choice which this Court condemned in Faye versus Noia, where --
Speaker: You're saying that he can't be required to come in and ask for what he will later contend, he should have been given automatically. I don't see that there's any chilling or burden there when you're dealing exactly with the thing that you're requesting.
James E. Milliman: Your Honor, your question if I understand it, supposed you said the right is a personal right which can be waived. Now, we are contending that to ask him to demand trial on the face of the death sentence is putting him in the same position that the defendant was in, in Faye versus Noia.
Warren E. Burger: Are you saying in effect that a trial is the last thing he wants and therefore he shouldn't be compelled to ask for what he doesn't want?
James E. Milliman: It may well be that trial is the last thing he wants Your Honor.
Warren E. Burger: Is that what you're arguing?
James E. Milliman: No we are not arguing this.
Warren E. Burger: That he should not be compelled to ask for it because he really doesn't want it. He wants to postpone that evil day.
James E. Milliman: Well, this is correct and I think this would be desired by any defendant.
Speaker: But nonetheless, he can come in and if he has been tried in a particular time even though he hasn't request and say now you got to dismiss the whole proceeding?
James E. Milliman: This is what we're contending, Your Honor.
Warren E. Burger: What if he had asked -- what if he had asked for all the continuances?
James E. Milliman: Then we would have an entirely different situation.
Warren E. Burger: Why is it different now --
James E. Milliman: In this case, the defendant did not in any way contribute to the delay. He had made no continuance himself, he made no dilatory motions. He merely --
Warren E. Burger: Oh!But going back to your proposition that the predicate of your whole argument here is that because death may await him down the end of the road, he therefore doesn't want to trial. That seems to be your predicate for now. That same urge might make him to come in every time that the case was set for trial and ask for a continuance. What you say, if he ask for it and got it that would be different from getting it without asking for it.
James E. Milliman: In that event Your Honor, he would have affirmatively contributed to the delay. He would have brought it about by his own affirmative actions by merely sitting back and doing nothing. He did nothing to contribute to the delay. Now he did file a motion to dismiss on February 12, 1962.
Speaker: Well do you say that have it be unconstitutional at the state had a rule, a court rule that says that continuances by the state and delay must be on notice to the defendant and that unless and that ---the defendant wants a trial, he isn't going to be responsible for the delay he must object.
James E. Milliman: Your Honor, in that event I would think there would be less, far less of a constitutional objection, in that case we would still have this grisly choice.
Speaker: Well, so you still claim it would be unconstitutional if the state said, look, we are going to give you an early trial or a late trial, now which one do you want? And he said I want the late trial.
James E. Milliman: I would contend in that event that it would still be unconstitutional but for less sufficient reason because there is another impelling reason in this case. When must the demand be made? The demand or rule or set of standard, it says a petitioner, a defendant must demand trial. But when must he make that demand, there are no guidelines, there are no standards. Florida has past a statute that says after three successive demands --
Speaker: Well, here at least for three or four years the continuances were unnoticed to him and he never objected to this.
James E. Milliman: This is correct Your Honor.
Speaker: And you say that you are -- you say the state nevertheless should be charged with that delay?
James E. Milliman: Your Honor, there are system of jurisprudence and burden of prosecution is on the state. To require this man, Willie Mae Barker to demand trial is imposing the burden upon him to bring about trial to prove his innocence. This is contrary to establish principles in this country. He should not have the burden of bringing to that trial. This is the burden of the prosecution. It is there duty, the American Bar Association has disapproved that the "demand rule" for this reason that the burden is on the prosecution to bring trial not on the defendant. But when does the defendant demand trial? Must he demand trial at the indictment after a year at every term of Court? Any waiver of a constitutional right must be made intelligently. Now, petitioner was represented by counsel. But I submit that even though he is represented by counsel, his counsel couldn't determine when the demand must be made. What if it would have been made at the indictment and no other demand had been made. What if it's done in many cases? In other words, what the demand rule is, it's treating the constitutional right as a procedural nicety which can be waive like they knew if you fail to demand it.
Speaker: We are treating it as something basically like a statute of limitations and it runs without regard to the defendants and a civil case giving notice to hear that said that he is invoking the statute limitations. It simply comes in after its run and said --
James E. Milliman: That's correct Your Honor.
Speaker: The problem as I see it with your position is that there isn't any fix time that you're talking about. The way there is with a statute of limitations at least the state has noticed that if they don't for constitutional purposes try with uncertain person and period and then they're through.
James E. Milliman: Well, Your Honor we submit that the burden -- since the burden is on the state to bring about trial but notice to the state is not merely as essential as notice to the defendant as to when the demand must be made. In this case, petitioner Willie Mae Barker had no idea as to when the demand must be made. He made a motion to dismiss on February 12, 1962. He filed another motion to dismiss prior to trial. Because it was denial of a right to a speedy trial but both cases --
Speaker: But he never did -- he never did ask for a speedy trial. He asked that the indictment be dismissed. Right?
James E. Milliman: This is correct Your Honor and this raises another problem, the Sixth Circuit held that the motion to dismiss was equated with the demand. The Solicitor General's brief on other course have held that a motion to dismiss is not a demand. What is a demand? There are no standards, there no guidelines. There are in Florida now three times. And you either try --
Speaker: Ant there are in the Circuit Court of Appeals I think?
James E. Milliman: Please.
Speaker: Aren't there are also in New York State and in the Second Circuit Court of Appeals, at least respectively?
James E. Milliman: This is correct. But petitioner had none of these guidelines to guide him in this choice. Petitioner responded to the Commonwealth of Kentucky. He submitted in their brief that any demand would have been superfluous that it wouldn't have been granted. That was a useless act to require him to demand trial and that requiring asking him to bring about his own prosecution to prove his innocence.
Speaker: You mean in this particular case?
James E. Milliman: In this particular case --
Speaker: That the key witness would have pleaded his compulsory self incrimination [Voice Overlap].
James E. Milliman: This is correct, Your Honor. Now this brings us to second issue, the issue of prejudice. Looking at the bare record in this case, there is no specific example of prejudice except for the testimony of one witness Martha Barber, sister-in-law of the accomplice, Silas Manning who could not recall certain specific events but otherwise testified with certainty.
Speaker: What kind of prejudice are you talking about? Is it at the trial?
James E. Milliman: Actual prejudice informed.
Speaker: At the trial, at the trial?
James E. Milliman: Yes Your Honor, in the form of lost witnesses, faded memories.
Speaker: But what about the -- What about other prejudice of the speedy trial provision as oppose to in fact the end?
James E. Milliman: The speedy trial provision as this Court has held in each speedy trial case brought before it pretrial anxiety, hostility in the community, lost of jobs, curtailment of associations, there's even more be specific pretrial prejudice here.
Warren E. Burger: How do you square with that with your earlier argument that he really doesn't want a trial and therefore should not be put to the burden of asking for what he doesn't want?
James E. Milliman: Simply because that he has the right under the Sixth Amendment to be brought quickly to trial whether he ask for it or not. Now, it may be that if he affirmatively does not want trial, he will make the motion for continuances. As everyone knows a defense lawyer can continue a trial indefinitely and if he had actually wanted or was afraid of being brought to trial, he would have moved for continuances. Now it's true that the reason for this delay was the Commonwealth of Kentucky desired to secure the testimony of the accomplice, Silas Manning. And it's true that if Silas Manning were never convicted, Willie Mae Barker would have never been convicted, we conceive this. Commonwealth admits it.
Speaker: Or if you had gone on trial before he did, you would defend it?
James E. Milliman: This is correct Your Honor, so what the Commonwealth is doing was postponing Willie Mae Barker's trial until they convicted Silas Manning. There is only one problem.
Speaker: Until they got the evidence to convict?
James E. Milliman: This is correct Your Honor. It only tipped them six trials to convict Silas Manning. And so there is prejudice even there that if he had been brought speedily to trial, of course the testimony of Silas Manning would not have been available to convict him but this does not appear in the black and white record. More fundamentally, petitioner is now released on parole. He was paroled in August of 1971 after serving eight years of a life sentence. Now, had he been brought to trial in 1959 in Kentucky the normal sentence is seven or eight years for a life imprisonment. Had he been brought to trial in 1959, it is very reasonable to assume that he would have been released four or five years ago to resume his right for place in society.
Speaker: I say that it's even more reasonable unless he might have been acquitted --
James E. Milliman: It is. Well, had he been brought to trial without the testimony of Silas Manning Your Honor, the Commonwealth of Kentucky has admitted specifically in its response to the motion to dismiss on October 9, 1963 that they cannot convict Willie Mae Barker without the testimony of Silas Manning. They admitted this.
Warren E. Burger: Suppose the witness that was needed for this conviction had been a fugitive from justice living in Algeria or Canada or some place where he couldn't be reached and brought back. Would you think that would alter the Gover -- the State's posture on the delay?
James E. Milliman: If Silas Manning had been a fugitive. It would have given some more sufficient reason for the delay. Whether it would have justified it for five years is highly debatable. There would be a burden on the prosecution to make every effort to bring this man back. But is certainly would be more sufficient reason than in the present case.
Warren E. Burger: Well is his test -- was his testimony in the circumstances of this case, any more or less available in realistic terms than if he'd been in Algeria?
James E. Milliman: Yes, Your Honor. It was available at all times. All the Commonwealth of Kentucky had to do was to convict him. With all due respects to the Commonwealth of Kentucky, the only reason for the delay here was their incompetence and their inability to convict this man. The errors they committed, one conviction was reversed because of the admission of illegally seized evidence and the admission of an involuntary confession. Another conviction was reversed because they insist about in trying the crime and the venue where the crime was committed at mid pretrial hostility. They made these motions, they tried Silas Manning. They committed these constitutional errors and procedural errors and an attempt to convict him for a procedural advantage, for strategically advantage but cannot succeed because the Court of Appeals would not affirm the convictions obtained under these grounds. So he was there, all they have to do is convict him legitimately.
Speaker: Mr. Milliman, you say in your brief that they cannot be a passive waiver of a right to a speedy trial. Do you consider that the failure of counsel to object to these 16 continuances was a passive waiver?
James E. Milliman: No, Your Honor. I do not. I think his failure to object was more than the grounds of perhaps a procedural error in the sense of an attorney fails to object to a hearsay statement or a leading question and as precluded from raising that --
Speaker: Are you suggesting that a continuance particularly one granted 16 times, if procedural so far as the right to a speedy trial?
James E. Milliman: No, Your Honor that -- I believe that is most substitute unconstitutionally in a constitutionally defined area. And that is why I say that his failure to object should not be and would not be a passive waiver of any kind. He did follow the motion to dismiss. He did make his motion to dismiss.
Speaker: He made that in 1962, what did he do between March of 1962 and March of 1963?
James E. Milliman: He did absolutely --
Speaker: As counsel for the petition?
James E. Milliman: Please?
Speaker: Counsel for the petition?
James E. Milliman: He filed his motion to dismiss in February of 1962, February 12. Then as the appendix shows that there were further continuances made on June 4, 1962.
Speaker: Did he object to that?
James E. Milliman: No he didn't Your Honor and then on February 11, 1963 the Commonwealth made the motion to continue and over the objection of defendant, he objected to this motion and then he objected to the motion I believe on June 17, 1963, they continued again over the objection of the defendant to the --
Speaker: That's when the witness was ill, wasn't it?
James E. Milliman: That was after the sheriff, the material witness was ill, the man who had arrested the petitioner, yes. And the Sixth Circuit held that this was a sufficient reason for delay and we don't deny this. We concede that this was sufficient for the delay from March 1963 to October but it does not explain the delay prior to that. But the question again Your Honor is when should he have made the demand? He didn't know. Counsel wouldn't know. Nobody was requiring counsel for petitioner to speculate and guess as to what he must do? What procedures he must take to protect and preserve the constitutional right of the accused and that is the issue.
Speaker: And you weren't the counsel on that?
James E. Milliman: Please?
Speaker: You weren't the counsel?
James E. Milliman: No, I'm not Your Honor and I'm glad I wasn't. But with respect to the prejudice issue, again he would have been released. There is no question he had pretrial anxiety and that we do not know as to what influence this delay had on the witnesses. We cannot tell from the record whether their memories faded even though the record doesn't show they said it. We don't from the record what facts were distorted. We don't know from the record what the attitude in the community was at that time whether it was still hostile or whether it had come calmed considerably. The only thing we can do to protect his right in this case is presume is to acknowledge that there was such a possibility of prejudice after five years. Everyone knows that memories are going to fade, that facts are going to become distorted. To protect his rights, we have to presume. After five years these things happen.
Warren E. Burger: Does this record show what happened to Mr. Manning?
James E. Milliman: Mr. Manning finding, the appendix doesn't show -- the transcript of record Your Honor would show that Mr. Manning was convicted in March of 1963 to life imprisonment and convicted in December -- or March of 1962, I'm sorry, for life imprisonment and December of 1962 to life imprisonment for the murder of the other party, there were two parties killed. And he served lives and I don't know if he is still in jail or not.
Speaker: And how many other trials were there Mr. Milliman?
James E. Milliman: Mr. Manning was tried six times, Your Honor. The first trial resulted in the hang jury. The second trial, he received the death penalty. The Court of Appeals of Kentucky reversed it because of the admission of illegally seized evidence and the admission with involuntary confession. I believe.
Speaker: But I suppose one can argue that with all these trials, the memory of witnesses is indeed kept alive.
James E. Milliman: It is possible that the memory of the witness is indeed kept alive and it is possible that the hostile attitude of the community was indeed kept alive also. This was a vicious crime of two prompted people in a rural community and it is very possible that Manning's trials kept alive the hostility of the community to the petitioner in this case. We don't know with this. I am speculating.
Speaker: You're not suggesting that the community of it, it would be more hostile in 1963 than it would have been in 1958?
James E. Milliman: Yes, Your Honor I am. For the simple reason here we have one indicted murderer tried six times. The Commonwealth Attorney of Kentucky is going to have a very difficult time explaining to the electorate why he can't convict this man and the fact that this man is not being convicted is going to stir the animosity of the community. In fact, petitioners first two trials were committed -- were tried at the scene of the crime at the county of the crime. His third trial, he requested the change of venue because of hostility which the Court refused.
Speaker: Barker had three times?
James E. Milliman: No, I'm talking about Manning now. So this leads me to believe that the hostilities increased as the time went by because nothing had been done to bring this two people to trial or nothing had been done to convict them and we have to understand the attitude of the circumstances at the time.
Warren E. Burger: Yet that attitude seems to have not interfered with his being placed on parole. When did he go on parole?
James E. Milliman: He went on parole in August of 1971 Your Honor and I submit to you that the attitudes of rural Kentucky have changed greatly from 1958 to 1970. There's a possible explanation why he has been paroled 1970 and why there was hostility in early 1960's.
Speaker: What was the site of Hopkinsville?
James E. Milliman: This was Christian County Kentucky, Hopkinsville County sit in Southern Kentucky.
Speaker: It's pretty good size town.
James E. Milliman: Yes it is and we won't into things not in the record Your Honor but thank you.
Warren E. Burger: Thank you Mr. Milliman. Mr. Willmott.
Robert W. Willmott, Jr.: Mr. Chief Justice and may it please the Court. The facts in this case are not in dispute. The Commonwealth did delay the trial of the petitioner for five years and I think a little more thorough explanation of why it delayed it as an order, the Commonwealth shows to prosecute Silas Manning first. Now this decision I don't know why it was made but the Commonwealth Attorney did make it and they had not by my brother he -- they did have a difficulty in obtaining a valid conviction. I don't think it can be blamed on any incompetence on the part of the Commonwealth Attorney. And after in December of 1962 when Manning's final trial was held, trial was set for the next term to Court to February term of the 1963 Christian County Circuit. The chief collaborating witness was the sheriff of Christian County, Sheriff McKinney. He became seriously ill with a stomach disorder, he was later admitted to the hospital and portions of his stomach were removed and he later underwent a gallbladder operation.
Warren E. Burger: When did that, that didn't come until 1963?
Robert W. Willmott, Jr.: Three, 1963.
Warren E. Burger: Well that doesn't explain 58 to 63 at all, doesn't affect that really does it?
Robert W. Willmott, Jr.: No. It's just an explanation of the last ten months or so of the delay. The first four years of the delay were due to Manning being unavailable for testimony.
Warren E. Burger: If we had a ten months delay, we probably wouldn't be here on this case. Would we, probably?
Robert W. Willmott, Jr.: Right. And the Commonwealth submits that the real issue in this case is not when the demand should be made or if a demand should be made but narrowest down to the fact made the Commonwealth delay a trial for any reason for this period of time. Now, there are several statutes from different states which call for a dismissal of the indictment similar to Federal Rule 48 (b) if a trial was not held within so many days or so many months or so many terms at Court. But every -- every rule or every statute also states in the final line unless good cause be shown and our contention is that the Commonwealth had good cause in this case. The -- it's a simple fact without Manning, we would not be here today because petitioner would not have been convicted and without the sheriff, the collaborating evidence would have been insufficient to support the testimony of an accomplice.
Speaker: Did Manning -- Manning didn't testify -- I mean the petitioner didn't testify at Manning's trial, did he?
Robert W. Willmott, Jr.: No, sir.[Voice Overlap]
Speaker: You, the state, the Commonwealth had other evidence against Manning. Is that right?
Robert W. Willmott, Jr.: Yes sir. They had -- they found his car -- or the --
Speaker: You're telling us that the petitioner could not have been convicted without confederate Manning's testimony?
Robert W. Willmott, Jr.: Yes sir. The --
Speaker: Or apparently Manning could be -- was convicted without his confederates.
Robert W. Willmott, Jr.: Well Manning came into the house covered with blood and there was tangible evidence to convict Manning but Manning was the --
Speaker: Well, that clearly shows why the Commonwealth chose to try Manning first. You said you didn't know, it's very clear why they did it, isn't?
Robert W. Willmott, Jr.: Well, yes sir. I believe that is the reason that they felt more assured of securing conviction of Manning. The evidence was stronger against Manning than it was against Barker.
Speaker: Unless they convicted Manning, they couldn't have convicted either of them?
Robert W. Willmott, Jr.: Right.
Speaker: And initially they were relying of his confessions, Manning's confession?
Robert W. Willmott, Jr.: In Barker case or the Manning case?
Speaker: The Manning case. That was one of -- was not that one of the reasons for reversal in one trial?
Robert W. Willmott, Jr.: No, sir. I believe the reasons for reversal were -- well yes, sir. One of -- he was improperly admitted evidences to result of a search and seizure and on involuntary confession, yes sir.
Speaker: That's right. So they did have a confession from Manning?
Robert W. Willmott, Jr.: Yes, sir.
Speaker: But not from (Inaudible)?
Robert W. Willmott, Jr.: This -- there was an admission made by Barker along reliance of -- when the sheriff came to arrest him, he boarded out before being asked or told anything. If you're wondering what happened to those old folks, Manning did it. And that was -- excuse me, the major portion of the sheriff's testimony was his admission. Now, as stated the reason for the delay in this case is legitimate and at my opinion, the interests of society have to be balanced against the interest of the accused and if there is a valid reason. If there can be any valid reason for postponement of a trial for five years, this case presents the same.
Speaker: And you would argue this if Barker had every week demanded a trial?
Robert W. Willmott, Jr.: Yes, Your Honor. If --
Speaker: I gather you -- your submission is that we don't have to deal -- it's not actually concession I take it, but on the premise that the speedy trial again does not require the accused to make a demand. Assuming that premise, you say nevertheless the state for good reason, may continue to trial until it's ready to go to trial.
Robert W. Willmott, Jr.: Right Your Honor, I have -- and I believe the demand issue is secondary. I do not feel that the accused should be allowed to play both ends against submittal and sit back and not take any affirmative action.
Speaker: But if the rule where you have to make a demand, we don't need this parole?
Robert W. Willmott, Jr.: I don't think -- I think you have to consider both of them in a case such as this.
Speaker: You could prevail on either point I take it, if the Court were to adopt the line of reasoning favorable to you?
Robert W. Willmott, Jr.: Right, Your Honor. I think initially, there's very little guidance on what constitutes good cause for the Government delaying the trial. There are ample evidences to the defendant filing dilatory pleadings or shuffling to street and avoiding trial, being a fugitive, being incompetent. These do not violate the right to a speedy trial. However, there is fair little guidance as to why the Government may delay a trial. The most decisions have followed the Gleichman (ph) case and which necessitates a demand and if a demand does not made, waiver his presumed.
Speaker: You could prevail I suppose still on the third round with or without demand, with or without good cause on the part of the Commonwealth unless the constitutional provision is not violated without a showing of prejudice.
Robert W. Willmott, Jr.: Yes, sir that is meant. There -- the only prejudice that could be assumed and my brother points out in his brief that possible prejudice may be presumed and that he suffered the scorn or the stigma of being under an indictment for five years for hearing his crime such as murder. There is no actual physical tangible prejudice shown. All the witnesses testified, they were also witnesses at Manning's trial and by the petitioner's trial they were thoroughly burst in their testimony. And one has but to read the evidence to see how concrete they were in answering their questions.
Warren E. Burger: But Manning did testify at the trial that was finally held?
Robert W. Willmott, Jr.: Yes Your Honor at Barker's trial.
Warren E. Burger: Yes and was - it be fair to say that his testimony and the sheriff's testimony were the two major factors --
Robert W. Willmott, Jr.: Yes there were -- there were other corroborating evidence but it was not what one would consider the major key witness.
Warren E. Burger: But I take it Manning described the crime that had been committed by the two men together. And then the sheriff's testimony with respect to the admissions, that was the corroborating evidence?
Robert W. Willmott, Jr.: Well the sheriff was also the one that found the car -- Barker's car parking from the house next door and he had some other investigative facts at the --
Warren E. Burger: But it was to meet the Kentucky requirement of corroborating testimony?
Robert W. Willmott, Jr.: Yes, sir. I think if -- I think his testimony alone would have been enough but I don't think that some of the other testimony would have been enough to corroborate Manning's testimony.
Speaker: This was not a felony murder, burglary or robbery?
Robert W. Willmott, Jr.: They initially were drinking and needed some money and they had heard that Mr. and Mrs. Denton kept large sums of money.
Speaker: So, they did break in to --
Robert W. Willmott, Jr.: Yes, sir. They went in the window with the tire and proceeded. I think they hit Mrs. Denton first while she was in bed but the --
Speaker: Excuse me. Did I interrupt you?
Robert W. Willmott, Jr.: No, sir. Go ahead.
Speaker: I understood you to say that there were one or more Kentucky statutes that related to speedy trial and in each instance provided that just cause would be an excuse the night going forward. Are those statutes cited in the briefs, in the record?
Robert W. Willmott, Jr.: Your Honor, may have mislead you, I didn't mean to say that Kentucky has some statutes there. I think California or Michigan other states have enacted.
Warren E. Burger: California and Illinois for example.
Robert W. Willmott, Jr.: Right in the model, the Model Penal Code I believe contains provision.
Speaker: May I ask this question, in kind of different matter. Would you refresh my recollection as to what motions were made after the petition as motion to dismiss in 1962? I think it was February of 1962 and the date of the trial?
Robert W. Willmott, Jr.: There were three others. Three -- there was initial in February of 1962, there is one in the summer I believe in July of 1962.
Speaker: Right.
Robert W. Willmott, Jr.: And then there was one in March of 1963 in the summer of 1963, June or July and then at the trial just before trial start.
Speaker: And the ground for all of those was unavailability of witnesses?
Robert W. Willmott, Jr.: Yes, Your Honor.
Speaker: Well the motion was the denial of a right to a speedy trial?
Robert W. Willmott, Jr.: Motion dismissed for lack of --
Speaker: Motion to dismiss?
Robert W. Willmott, Jr.: -- prosecution as to whether they --
Speaker: And then the prosecution defended against the motion saying that our witnesses are not available, is that it?
Robert W. Willmott, Jr.: Yes, sir. But the motions for continuance that I was asking --
Speaker: Oh! I beg your pardon? There were however, how many motions to dismiss on behalf of the defendant?
Robert W. Willmott, Jr.: Four motions.
Speaker: Four. Beginning in 1962?
Robert W. Willmott, Jr.: Yes sir, February of 1962 that is according to the record. I don't know how the Court, the District Court and the Sixth Circuit Court of Appeals got confused but they have cited and in it is the first demand being made in 1963.
Speaker: Mr. Willmott, the Court rendered in opinion in United States against Marion last December. This does not say that in your brief or in the other brief or in the main amicus brief. It is cited in the government's amicus brief. Is this -- are you familiar with this case?
Robert W. Willmott, Jr.: Your Honor, I picked up a slip this morning, when I became aware of it, we did not have the advance sheet in our office before I came in to Washington.
Speaker: What I want to ask you of course perhaps you can't comment on it is whether you feel that has any pertinency in this case. I'll ask the same question on your opponent when he is up in rebuttal.
Robert W. Willmott, Jr.: Well, as I understand Marion it was a pre-indictment delay and this Court held that the Sixth Amendment speedy trial clause was not applicable to pre-indictment delays. Now that the concurring opinion --
Speaker: Under all circumstances?
Robert W. Willmott, Jr.: That was my opinion that it did not - it was not applicable to the pre-indictment stage because a person had not become an accused. Back in the prejudice argument, we stated that there were no lost witnesses that the witnesses memory was -- there was no mnemonic loss and no lack of testimony to align this case with a case such as Dickey which states that if a persons defenses is impaired or just lost to some witnesses dying and disappearing or being unavailable and I think this would distinguish this case from Dickey. Though in the main, I think the Commonwealth contentions can be divided into three categories. The first is that if there is such a thing as a valid Government delay that this case must meet the standards and we base this on the fact that in applying the demand rule, the demand was made after almost four years, three and a half years had passed. That the reasons for the delay were valid, there would have been no conviction in this case if the Commonwealth had been forced to trial earlier than it was. There was no lack of diligence on the part of the Commonwealth in this case. I'm certain that the Commonwealth Attorney in Hopkins County, Christian County, excuse me, got very tired of this case, he was in Court with every open term of Court or else Manning had an appeal pending. He wanted to conclude this more than anyone I would assume.
Speaker: Mr. Willmott is the Kentucky State Court set up such that a Court is continuously sitting except for vacation time in Christian County or does it just sit on Circuit there at certain times of the year.
Robert W. Willmott, Jr.: In Christian County and it is not a continuous session.
Speaker: How many sessions of Court do they have each year in Christian County?
Robert W. Willmott, Jr.: Three sessions, I believe.
Speaker: And how long does an average session lasts? Approximately?
Robert W. Willmott, Jr.: I would say a month and a half or two months.
Speaker: So a Court would be sitting in Christian in maybe six months out of the 12 of each year?
Robert W. Willmott, Jr.: Unless, I think if there is provision for a prolong calendar if the docket load is heavy, unusually heavy. I don't think they are bound by a specific termination date on each call. So, the prejudice resulting from this delay has been argued was not great. Petitioner was not the object of prolonged delay in order to gain an advantage. The Government prosecuted this case with diligence, they -- it went to trial the first open term of Court that all the witnesses were available and it is very -- the petitioner was -- came very close to not being tried when Sheriff McKinney went in the hospital.
Warren E. Burger: When the -- how soon after the event was Manning tried the first time?
Robert W. Willmott, Jr.: He was tried at the first term of Court in October.
Warren E. Burger: For then, six months after the murders?
Robert W. Willmott, Jr.: Two months.
Warren E. Burger: Two months after the murder.
Robert W. Willmott, Jr.: I think the murder were on July the 20 and he was tried October 9, I believe is the date of his first trial and he was prosecuted every succeeding term of Court or had an appeal pending in the Kentucky Court of Appeals at every subsequent term of Court. So this couple with a fact that the petitioners defense was in no way impaired that the demand was not made until very late in the time period and the no lost of prejudice and the good cause for which the continuances were granted. The Commonwealth submits at these grounds are sufficient and adequate to affirm the Sixth Circuit opinion. Thank you.
Warren E. Burger: Thank you Mr. Willmott. Mr. Milliman, you have few minutes left, do you have anything further?
James E. Milliman: Yes Your Honor, I would like to express my opinion on the reason for delay. The Sixth Circuit Court of Appeals do not specifically decide this question. They decided simply that from the period of the time of the demand which they found to be February 12, 1963 to the time of trial but there was a sufficient reason. We do not specifically urge this point on our petition for certiorari for the simple reasons of the Court of Appeals do not really decide it. And that this Court could conceivably, if they wish remand to the Sixth Circuit of Appeals for further findings on that issue if they would strike that down the demand rule and hold the petitioner has shown or is not required to show prejudice. It could remand to the Sixth Circuit for further findings as to the reason for delay. As his Honor, I believe, Justice Blackmun referred to the U.S. versus Marion case. We would like to accept the good and reject the bad. The Marion case is not applicable to this case for the simple reason that in that case this Court held that the defendants were not an accused. Because they were talking about a pre-indictment delay and that the Sixth Amendment applies only to an accused and one does not become accused until he is indicted and there is still no question in this case that Willie Mae Barker fit the definition of an accused. The Marion case would be applicable and that it explained that the statute of limitations for example are designed to guarantee against stale claims and of course in Kentucky and most states, there is no statute limitations for murder. So there is no statute of limitations to apply in this case and it did point out again that reaffirmed the -- this Court's position of the prejudice resulting from the pretrial delays, the anxiety, the hostility and so forth. So in that respect, it is most applicable to this case.
Warren E. Burger: But after February 12, 1962, your anxiety and hostility arguments really don't square with your argument that you didn't want to have this confrontation to society and that is why you didn't ask for it.
James E. Milliman: Again Your Honor, I would refer to the American Bar Association project for minimum standards that this is no reason for delay that his acquiescence for the fact that he may desire --
Warren E. Burger: Quite right. That doesn't justify delay. I am simply was addressing that observation to the weight of your argument on that point.
James E. Milliman: Your Honor I would concede that Willie Mae Barker probably -- I don't know this for a fact, probably, did not want to be tried. I don't think any man wants to be tried and I don't consider this a liability on his behalf. I don't blame him. What he was trying to do is once he found Manning had been convicted then of course he wanted the case dismissed. There is no question about this.
Warren E. Burger: But you are not arguing that every accused person is in the posture of not wanting a trial, are you?
James E. Milliman: No, Your Honor. I'm sure that some accused people do but even to someone who is innocent, there is always a specter that he may be convicted, even though innocent and the fact that he is going to come to trial is going to cause him great apprehension, question --
Warren E. Burger: I expect there might be more accused if he knows he is guilty, wouldn't it be so that you can't really generalize on that.
James E. Milliman: I don't know if it would be more accused or not Your Honor. Guilty man made well be resigned to his faith.
Speaker: Well, you are making any claim that the -- that counsel was inadequate in this case?
James E. Milliman: No, Your Honor. I am not. I believe --
Speaker: Well , he was the counsel -- he was the counsel and if the states evidence were so weak, you would think there might have been interest in an early trial.
James E. Milliman: This is quite possible.
Warren E. Burger: Well have -- if counsel makes a decision, it's better to wait than to try now, that might be a gross error but it might not be a gross error.
James E. Milliman: Again Your Honor, to answer this question any affirmative would be to require the speculation from the record that he did take a -- make it strategical --
Speaker: Mr. Counsel turned to have the choice of either objecting or not objecting --
James E. Milliman: This is true, this is true.
Speaker: And he exercised that choice of not objecting?
James E. Milliman: We don't know whether he did that, he exercised that choice but we don't know if he did that for a strategical purpose or not.
Warren E. Burger: But isn't that reasonably assumed that he knew the problem of the unavailability of Manning until Manning's conviction was definite?
James E. Milliman: Well, Your Honor, it's possible that he thought that they had other grounds to convict based upon the testimony of the sheriff. Now, looking at the scene of the trial, it's quite possible that he thought, hostility prevailing at the time if there was such that the man would have been convicted based upon the testimony of the sheriff. We don't know his reasons for not demanding a speedy trial but we do know that it would have been superfluous.
Warren E. Burger: Well, is it reasonable to assume that when the prosecution asked for continuances, the -- they were required to give a reason and the reason was, that Manning was not available? That was known to everybody?
James E. Milliman: This is reasonable Your Honor.
Speaker: To the extent that the defense counsels consent to the continuances may have been based on the possibility of the future absence of a witness to the extent that the sheriff was important to the prosecution of this case. It almost paid off, I take.
James E. Milliman: It almost did Your Honor except for one thing if I may state this. It's important to note that Manning was convicted to the first murder in March of 1962 but they still didn't bring Barker to trial. They tried Manning again in December of 1962. There is no reason in the world they couldn't have brought Barker to trial after the first conviction of Manning but they refused.
Warren E. Burger: Well, do you mean that Manning would have been a willing witness just because he had a conviction with --
James E. Milliman: Your Honor, the record shows that Willie Mae Barker was keeping company with Mr. Manning's wife at the time and whether that would have made him a willing witness or not I think it would have made him more willing than otherwise.
Warren E. Burger: Very well, I think your time is up. Mr. Willmott, thank you.
James E. Milliman: Thank you, Your Honor.
Warren E. Burger: Thank you Mr. Milliman. The case is submitted.