John G. Roberts, Jr.: We'll hear argument first in Will v. Hallock. Mr. Hallward Driemeier.
Douglas Hallward-Driemeier: Mr. Chief Justice, and may it please the Court-- In enacting the Federal Tort Claims Act, Congress recognized that suits against Federal employees, based upon their official conduct, constituted a very real attack upon the morale of the Civil Service. Congress addressed that concern in two ways. First, it allowed plaintiffs to sue the United States directly, but secondly and importantly, it provided that a plaintiff who took up that opportunity, the judgment in the suit against the United States would constitute a complete bar to any action against the employee.
John G. Roberts, Jr.: And in enacting section 1291, Congress specified that only final decisions would be appealable.
Douglas Hallward-Driemeier: That's right, Your Honor, and this Court has adopted a practical rather than technical construction of that statute. And the Court has recognized in... in numerous cases that claims of official immunity are... warrant immediate appellate review because they can only be effectively vindicated by review at the motion to dismiss stage. And... and that is the kind of protection that section 2676 provides. It establishes that the judgment in the suit against the United States shall be a complete bar against any action against the employee. So it's the action itself that is precluded, and it is precluded completely. And that--
David H. Souter: Well, you can... you can say the same thing of... of res judicata, that there is a complete bar. I guess my concern here is that this seems to be, with respect to the employee, something much closer to a res judicata case than to an immunity per se case.
Douglas Hallward-Driemeier: --Well, Your Honor, the... the Court recognized in the Digital Equipment case that even a claim of res judicata could correctly be characterized as a right to be free from suit, but it said that that wasn't enough. One had to look at the importance of the... of the value protected, and the--
David H. Souter: Digital I remember.
Douglas Hallward-Driemeier: --And... and the Court--
Antonin Scalia: So do I. [Laughter]
Douglas Hallward-Driemeier: --I'm sure you do. And the Court has recognized in any number of cases that claims of official immunity are the kind that present sufficiently important public interests to warrant an exception to the... the otherwise rule that appeals can only be had at the final judgment.
Sandra Day O'Connor: But in Digital Equipment, I think that we said that the collateral order doctrine is narrow, it should stay that way, and that we should give it... we should be very reluctant to expand the practical construction of section 1291. And this certainly would be an expansion, would it not?
Douglas Hallward-Driemeier: Well, I don't think so, Your Honor, because this is like the other claims of immunity that the Court has recognized warrant collateral appeal in Mitchell v. Forsyth or Nixon v. Fitzgerald. It's a kind of official--
Antonin Scalia: It's certainly broader... it's certainly broader than res judicata anyway, isn't it? Because if the Government... suit against the Government is dismissed on jurisdictional grounds, what would be res judicata is only the jurisdictional question, and... and this doesn't... this goes beyond that, doesn't it?
Douglas Hallward-Driemeier: --That's right, Your Honor. We point out any number of ways in which section 2676 confers an immunity on employees that is broader than the traditional common law rule of res judicata. For example, res judicata would not bar a suit against another party that could not have been joined in the first suit, but by its plain terms, section 2676 would bar such a claim. Likewise, common law res judicata would not bar a second suit to... to recover a kind of damages that were unavailable in the first, but whereas punitive damages are unavailable in a suit against the United States, section 2676 would plainly bar a second suit against the employee to cover punitive damages.
David H. Souter: Well, I'm... I'm assuming that it's not res judicata in... in the narrow sense of the doctrine, but it's... it's still a bar that depends upon a... a prior judgment. And in that respect, it's sort of res judicata like. Conversely, there is... there is no immunity in the first instance conferred directly on the employee as such. And so that's... that's why I... it seems to me that there's an argument that this is a lot closer to res judicata than it is to classic immunity.
Douglas Hallward-Driemeier: Well, certainly there is no categorical rule that claims in the nature of claim preclusion are not eligible for immediate appeal under collateral order. In Abney v. United States, for example, the Court upheld immediate appeal of the denial of a... of a double jeopardy claim, which likewise depends upon the existence of a prior action.
David H. Souter: But a double jeopardy claim is... is a claim in which there is an... a... an immunity textually conferred by the... the Constitution, or at least, we... we have thought it... the guarantee does not make an awful lot of practical sense, unless you read it that way. You don't have that... that situation here.
Douglas Hallward-Driemeier: Well, the Constitution does not use the word immunity, nor does the Westfall Act use the word immunity.
Ruth Bader Ginsburg: And there is... in fact, there's no immunity. That's what makes this different. Suppose the Bivens action had been brought first. The officers would not have been immune from suit. It's not like an officer who has qualified immunity and doesn't depend upon the suit order. Here, there would have been no immunity at all if you'd sued the officers directly and not brought that Federal Tort Claims Act suit first.
Douglas Hallward-Driemeier: That's right. Like the claim of double jeopardy in Abney, the claim of immunity here depends upon the existence of a prior litigation, but as in Abney, the... the interests that it protects are the interests to be free from the... the cost burdens distraction of litigation.
Anthony M. Kennedy: Well, I... I take it Justice Ginsburg's point... and it's my concern as well... is that if the Bivens action is brought first, there's no protection of the Government against multiple actions. So... so the policy that you're arguing for just is dependent on which suit happens to be brought first.
Douglas Hallward-Driemeier: Well, I'm not sure that--
Anthony M. Kennedy: And that's not... that's not a very strong policy interest to vindicate by expanding the collateral order doctrine.
Douglas Hallward-Driemeier: --Well, it... it's... it's not entirely clear that the United States would be subject to a second suit. It... the... the susceptibility of the United States to a further suit would be governed by collateral--
Anthony M. Kennedy: Well, it depends on... it depends on... on how the case was resolved.
Douglas Hallward-Driemeier: --That's... that's right. But... but what's important here is that the interest protected is the interest of the employee against the... the distraction... against the attack on morale. That was the language that the Assistant Attorney General used.
Ruth Bader Ginsburg: It's hard to accept that argument given that if the lawyer had sued in the reverse order, there would be the same morale. All the rest would follow. So here it's... it's a question of the lawyer brought the wrong lawsuit first, and the attack on the morale... there's no difference if a Bivens action had been brought and no other action. Is there any... why is this morale changed by the Government having gotten the first case dismissed for lack of subject matter jurisdiction with no consideration of the merits at all?
Douglas Hallward-Driemeier: Well, Your Honor, the... the statute protects against the... the cost of repetitive litigation, the harassment of the employee of multiple suits. These are the exact same types of interest that the Court has recognized--
Ruth Bader Ginsburg: What was the harassment that this employee experienced in the... in the FTCA claim that was dismissed?
Douglas Hallward-Driemeier: --It... well, in this particular FTCA claim, there... there was no discovery. But as we point out in... in our brief, FTCA cases, even those dismissed on the basis of the 2680 exceptions, are often resolved only after years of litigation, including often trial. So... so the harassment is... is the same. On... on respondents' view, the judgment bar would not kick in. For example, in a case like Varig Airlines, where this Court upheld the Government's assertion of the... the discretionary function exception only after 8 years of litigation when the case had been... gone to the Ninth Circuit two times where there had been a trial and final judgment and--
Ruth Bader Ginsburg: Did that... did that involve the employee or it was just legal argument involving lawyers representing the United States?
Douglas Hallward-Driemeier: --It would certainly involve the employee. Any trial would... would inevitably involve the employee in discovery, in... in appearing at trials as a witness. The... the Government also is protected by section 2676, as the Assistant Attorney General said. The... the burden on the Government, because the Government is often called upon to defend employees against suit... and... and the Government, having litigated once and obtained a judgment in the first FTCA suit, should not be forced to expend all those resources again in a second suit, this time styled as one against the employee.
John Paul Stevens: Counsel, can I ask you sort of a basic question that I don't really think is adequately addressed in the briefs? You contend, as I understand it, that the exception in 2680(c) covers this case.
Douglas Hallward-Driemeier: Yes.
John Paul Stevens: And 2680... the introductory language of 2680 is the provisions of this chapter shall not apply to such cases. And is it not true that 2676 is in this chapter, and does it not, therefore, follow that 2676 does not apply to this case?
Douglas Hallward-Driemeier: 2676 makes the... the scope of its application turn on whether there has been a judgment and an action under section 1346(b).
John Paul Stevens: But my first question is how does 2676 apply if it's in the chapter that 2680 says shall not apply to... to things in the exception?
Douglas Hallward-Driemeier: Well, Your Honor, the... that view of the language, shall not apply, would be inconsistent with this Court's decisions both in United States v. Smith and in FDIC v. Meyer. In United States v. Smith, for example, the plaintiffs had made exactly that argument with respect to shall not apply. They said that... that 1346 shall not apply to an action that arises in a foreign country. Therefore, section 1346 cannot provide the remedy to which we are supposed to be limited. And the Court rejected precisely that argument.
John Paul Stevens: But they held that the... the action simply didn't apply in... in that case. There was no... there was no recovery under the... basically it held the foreign... foreign country exception precluded the statute from applying--
Douglas Hallward-Driemeier: Well, what they--
John Paul Stevens: --which is what also happens here.
Douglas Hallward-Driemeier: --Well, take another example why... why you couldn't read the... the shall not apply language in that way. The first exclusivity provision of section 2679(a) with respect to sue and be sued agencies... if you said that 1346(b) shall not apply to a suit against the Postal Service because the suits against the Postal Service regarding miscarriage of letters is excluded from 1346(b) by that same language, shall not apply, well, that would render the Postal Service exception meaningless and you would sue the... the Postal Service pursuant to its sue and be sued authority instead of suing the United States under 1346(b).
Antonin Scalia: Go... go through that again, would you?
Douglas Hallward-Driemeier: The... the... 2679(a) says that the authority of an agency to sue and be sued in its own name shall not extend to claims cognizable under section 1346(b). The argument might be made, with respect to a suit against the Postal Service for miscarriage of the mail, that... that claim is not cognizable under section 1346(b) because section 2680(b) says that 1346(b) shall not apply to claims related to the miscarriage of mail. So by the same reading of shall not apply, one would come to the conclusion that... that the claim relating to the miscarriage of mail is not cognizable under 1346(b), and therefore you sue the... the Postal Service.
John Paul Stevens: No. It only says it shall not apply if it comes within the exception.
Douglas Hallward-Driemeier: And... and a... a claim with respect to the miscarriage of mail is one that comes within the exception. And so that reading of shall not apply has been rejected by the Court in Smith v. United States, likewise is inconsistent with the Court's decision, FDIC v. Meyer, and would render it simply ridiculous with respect to claims against the Postal Service.
Stephen G. Breyer: I guess it's true, is it... I'm testing my own understanding of this... that if, in fact, shall not apply meant anything in that chapter, if you had a State and that State gave a State law remedy for, say, detaining property or for loss of mail or something, then that State law remedy would continue in existence because the thing in the law that sets aside that State court remedy is a different part of the same chapter--
Douglas Hallward-Driemeier: That's right.
Stephen G. Breyer: --namely 2679(b)?
Douglas Hallward-Driemeier: Right. And... and--
Stephen G. Breyer: But the whole point of the Westfall Act is to get rid of those State causes of action.
Douglas Hallward-Driemeier: --Exactly, and in that sense, that reading of shall not apply is simply inconsistent with the Court's holding in United States v. Smith.
Stephen G. Breyer: But the language does seem to say it.
Douglas Hallward-Driemeier: Well, I think what it... what it means is that... what it... what it has been understood to mean is that the United States' waiver of sovereign immunity. It... the United States has not subjected itself to liability on claims of the nature of those exceptions. And that's how the Court has described it in any number of cases, that the exceptions in 2680 mark the limits of the extent to which the United States--
Stephen G. Breyer: All right. Well, then... then to get to the main point here, if we are going to get to that, the question that I would have for you is... is the following. If we accept your interpretation, it's pretty anomalous. I mean, someone who brings his Bivens action first, of course, can sue the individual employee, and you agree to that. But if he brings his Bivens action second, because he made a mistake and went into the wrong court or he brought the wrong action or it was a borderline case, frankly, and he didn't know how it would end up, that person is out of luck. Now, there's nothing in this statute that says that the Government... that the Congress wanted to achieve that result. What order you bring the suit in shouldn't really make any difference here. The Bivens action is totally different from all the other tort actions in that respect, and it's listed separately in 2679 to make clear that it isn't... it is different. So why? I mean, why read it your way? The burden that reading it their way would impose on the Government is minuscule. The number of such suits is tiny, I would imagine. Now, what is wrong with my question?
Douglas Hallward-Driemeier: --Well, there--
Stephen G. Breyer: A lot of things.
Douglas Hallward-Driemeier: --there are any number of things wrong in our view. First, Congress has, as Your Honor recognized, created an express exception for Bivens claims in 2679(b), but it has created no similar exception to... to 2676 even though prior to passage of the Westfall Act, any number of courts of appeals had construed 2676 to apply to Bivens claims. Further, as respondents recognize, 2676's application at this point is virtually limited because of the Westfall Act to a second case that raises a Bivens claim. So their--
Ruth Bader Ginsburg: Could the two claims have been brought together? This is... if an employee is in an uncertain situation, doesn't know if the FTCA act applies, it certainly doesn't want to be without any defendant for conduct of the kind that... that this complaint charges. Could such an employee say I want to bring my Tort Claims Act against the United States, but I'd like to have in that same lawsuit, in case the court says it comes under an exception, my Bivens claim? Would it be possible to bring those suits together?
Douglas Hallward-Driemeier: --Well, Your Honor, obviously that... that issue is not presented here because here we have two separate litigation--
Ruth Bader Ginsburg: I'm... I'm asking--
Douglas Hallward-Driemeier: --But--
Ruth Bader Ginsburg: --does the Government have a position on that, whether you can combine a suit against the United States under the Tort Claims Act with a suit against the individual officers under Bivens.
Douglas Hallward-Driemeier: --Well, the... the consistent view of the courts of appeals and district courts over 50 years has been that the judgment bar does have some application even when the claims are litigated simultaneously. For example, it's the universal rule among those courts of appeals that have decided the issue that if the plaintiff obtains a judgment against the United States, that that judgment immediately--
Ruth Bader Ginsburg: But I want you to go back before we get to a judgment. Can such a suit be brought?
Douglas Hallward-Driemeier: --Can it be brought? It can be brought.
Ruth Bader Ginsburg: Could this lawyer have brought the FTCA act complaint and pled in the alternative the Bivens claim?
Douglas Hallward-Driemeier: It... it can certainly be brought because the judgment bar only comes into effect when there's been a judgment. So it could be brought. But as I was saying, the... the courts are unanimous in holding that if both of those claims were to proceed through litigation and to trial and there were to be a judgment in the action under the FTCA against the United States, that that would immediately bar any recovery against the employee. And that's been the view, again, for some 50 years now. So--
John G. Roberts, Jr.: Counsel, what if the first case against the Government were dismissed because of a finding that the employee was acting beyond the scope of his authority? Should that really bar a subsequent action against the employee in an individual capacity?
Douglas Hallward-Driemeier: --Well, in... in a footnote--
John G. Roberts, Jr.: I read your--
Douglas Hallward-Driemeier: --in our brief we suggest it might not--
John G. Roberts, Jr.: --I read footnote 5. You said it didn't. But I don't see how that's consistent with the language of the statute.
Douglas Hallward-Driemeier: --And... and in fact, in... in re reading FDIC v. Meyer in preparation for oral argument, footnote 7 of that decision suggests that that would be a judgment in an action under 1346(b). FDIC v. Meyer was saying that it would, nonetheless, be cognizable under 1346(b) because the allegation was that they were acting within the scope. So... so perhaps we should not have conceded that. But it could still be that the... the judgment bar wouldn't apply. It would be an action in... under... a judgment in an action under 1346(b), but the judgment bar protects an employee of the Government. And... and that's a defined term and it's defined in the way that suggests the person acting within the scope of their employment, advancing the purposes of the agency. So there... there might be a reason why the judgment bar itself would not apply to a claim where the determination was that the person was not acting within the scope of employment.
Ruth Bader Ginsburg: Your theory would cover the case where the FTCA claim drops out because the employee didn't file the administrative claim within the... what is it? 6 months?
Douglas Hallward-Driemeier: It... Your Honor, it would not, I think, cover a claim that... where the dismissal was curable, where the person could go and exhaust their claim. But the test of whether--
Ruth Bader Ginsburg: But don't they have a short span where they have to bring that administrative claim?
Douglas Hallward-Driemeier: --They have... they have 2 years to bring the administrative claim. They have 6 months to bring the suit in court after the administrative claim has been resolved. And the... the reason--
Ruth Bader Ginsburg: And the suit is tossed out because one of those deadlines was met. It would follow, I think, under your reasoning that there could be no subsequent Bivens claim.
Douglas Hallward-Driemeier: --That's right. The... the statute makes the test whether there has been a judgment in an action under 1346(b), and plainly, under any reading of that language, it means where there is a judgment that finally resolves the liability of the United States under section 1346(b), there has been a judgment in an action under 1346(b). And I don't think that the language is susceptible to any other reading. So if the claim, as Your Honor suggested, finally resolves whether the United States could be liable under section 1346(b), then the judgment bar applies. Unless there are no further questions--
John Paul Stevens: I'd like to pursue the question I asked you earlier because I really didn't fully understand your answer. It seems to me, as I read 2680, it simply says that if one of the exceptions applies, there's no waiver of sovereign immunity, basically. That's what... what the scope of it is. And therefore, none of the other provisions of... of this chapter apply, and if none of the provisions of this chapter apply, clearly the judgment bar provision is one of those.
Douglas Hallward-Driemeier: --I... I think I'm going to borrow Justice Breyer's response because it's... it's a little clearer than the... than the point I was trying to make. And that... by that same logic, that would mean that the provisions of 2679(b) would not apply to the claim, and that is--
John Paul Stevens: That's correct.
Douglas Hallward-Driemeier: --precisely the question that was addressed in... in United States v. Smith, and the Court said that... that it did apply.
John Paul Stevens: It follows that 2679(b) does not apply, but you're just have... working on a blank slate with no provision of the Federal Tort Claims Act affecting a waiver of sovereign immunity or imposing any kind of judgment bar.
Douglas Hallward-Driemeier: But if 2679(b) did not apply, there would be no basis for substituting the United States and having the claim dismissed. And that was precisely the issue that was addressed in... in United States v. Smith. So... so plainly you cannot read it to mean that... that all of the provisions of the FTCA are simply a nullity or nugatory with respect to such a claim. That... that... rather, as Your Honor suggested, what it means is that the United States has not waived its sovereign immunity.
John Paul Stevens: Correct.
Douglas Hallward-Driemeier: But in FDIC v. Meyer, the Court was very clear that the FTCA is the kind of case which defines jurisdiction by the scope of the waiver of immunity and to... the claims to which the United States has rendered itself liable. So... so all of those issues are interrelated, and... and it reflects the substantive nature of those exclusions. It could not be--
Stephen G. Breyer: But you left out one word that I think is important there. To test it to see if I'm right about this is I thought 2679(b) was focusing in large part upon State tort suits. Is that right?
Douglas Hallward-Driemeier: --It is true that--
Stephen G. Breyer: They wanted to get rid of the State tort suits--
Douglas Hallward-Driemeier: --The... the--
Stephen G. Breyer: --in part. Am I right about that or not?
Douglas Hallward-Driemeier: --2679(b) applies only to... to State law causes of action.
Stephen G. Breyer: All right. So, therefore, if in fact we had words mean what they seem to mean, Congress would have both removed the State lawsuits in 2679(b) and reinstated them or set them in the exceptions. But that would have the statute defeat itself, and therefore, that case that you're citing came to a correct result.
Douglas Hallward-Driemeier: That's right.
Stephen G. Breyer: That's right?
Douglas Hallward-Driemeier: I--
Stephen G. Breyer: Okay. Don't tell me it's right if it's not right is all I want--
Douglas Hallward-Driemeier: --Well, certainly--
Stephen G. Breyer: --Okay.
Douglas Hallward-Driemeier: --we... we believe that United States v. Smith was right, and that shall not apply cannot have the meaning that Justice Stevens was trying to attribute to it for that reason. If there are no further questions, I'd like to reserve the balance of my time.
John G. Roberts, Jr.: Thank you, counsel. Ms. Zieve.
Allison M. Zieve: Mr. Chief Justice, and may it please the Court-- To begin with, the court of appeals did not have jurisdiction under the final judgment rule to review the district court's order. Petitioners do not contest that they could have been sued under Bivens initially or that the Hallocks could have filed simultaneous FTCA claims and a Bivens claim. Petitioners' argument is that they cannot now be sued only because the Hallocks first filed a different suit against the United States. That situation, which hinges on the sequence of lawsuits, does not describe an immunity or a right not to stand trial. Petitioners try hard to paint the purpose of the judgment bar as the same as the purpose of qualified immunity, avoiding distraction and inhibition of Federal employees from their work. But--
Anthony M. Kennedy: But what... what significance do you give to the word to complete, as to whether it's a complete bar? Doesn't that indicate that the... the statute is... is a bar to all... all further actions after a judgment?
Allison M. Zieve: --I don't think complete bar means anything more than bar. Res judicata is a complete bar and a statute of limitations is a complete bar. And I... I think the statute would mean the same thing without that word. And there's--
Ruth Bader Ginsburg: Well, not... there... there are exceptions to the statute of limitations. You could have tolling, and there are exceptions to a preclusion doctrine. So those doctrines aren't complete in the sense that they are without exceptions.
Allison M. Zieve: --That's right, but when... when the bar applies, it's... it's an absolute bar. I don't... I agree that if the bar has been triggered, it is a... it completely precludes any further action on any claims, but I don't think the word complete gives us much guidance about when the bar is triggered. And the purpose behind the bar generally is not the same as the purpose of qualified immunity because although the FTCA, in general, and the legislative history of the FTCA indicates that the act as a whole was intended to protect employee morale and distraction from employment, that's not the purpose behind the judgment bar. And the judgment bar would be a poor vehicle for accomplishing that purpose since it allows not only a Bivens suit as an initial matter and, when it was enacted, allowed... still allowed employees to be sued for State torts, but also would allow two suits, as long as the Bivens suit were litigated before.
Stephen G. Breyer: Yes, but that... that... see, that's what's... I'm not at all certain about this, whether they have an appeal, whether they don't have an appeal. I'm testing it out. But it seems to me if we take your position, we're going to make things awfully complicated. That is, the... the basic idea here is in the vast mine run of employee suits, go sue the Government, and you can't sue the employee at all. That's true of the State actions. That's true of ordinary tort actions. And so ordinarily, if you sued the... the employee, whether you sued him first, second, or third, you're not supposed to and he ought to have an appeal right away to get you out of court. Now, there is an exception there with the Bivens because you can bring your suit first and then there's no problem. But if we make an exception in the appealability rule for that, people are going to get mixed up. It's a kind of curlicue, and even in the Bivens case, it has a basic objective of trying to prevent people from harassing the employee because the instances in which you bring a Bivens suit first, as a practical matter, are probably small. Now, what's the response to that? I'm just nervous about making these collateral rules so complicated as to whether... you'd have to do it whether it's a Bivens suit or some other kind of suit under this, and nobody is going to understand it.
Allison M. Zieve: Well--
Stephen G. Breyer: So put in--
Allison M. Zieve: --I don't--
Stephen G. Breyer: --put in the whole bag. Say give the employee his appeal because most of the time it's totally to help him from being harassed. Now, what's the answer to that? And I'm not... I'm putting it because I want to get your answer.
Allison M. Zieve: --Well, a couple things. First of all, the... the bar to State law tort suits is in 2679(b), which was passed in 1988, 42 years after the judgment bar and the... and the bulk of FTCA. It was passed as an express effort to overturn this Court's decision in Westfall, which held that employees did not have immunity from State law... certain State law torts. And in the findings that are incorporated into section 2 of the statute, Congress specifically called 2679(b) an immunity provision, and this Court has since recognized that, for instance, in Gutierrez de Martinez. There is no comparable legislative history indicating immunity for... for... under 2676. So I... I don't think it's that complicated to figure out now whether someone is proceeding... whether the claim arises... whether the claim to appealability, whether the defense arises under 2679(b) or under the judgment bar because they just really get at very different things. And the courts haven't shown... there's not a lot of case law in either direction, but the... the courts haven't exhibited much confusion about that. The other thing is that when you're... when you're construing the scope of the judgment bar, it's important to remember that this was passed in 1946, and it was intended... at that time some 25 years... 35 years before Bivens, what the... what Congress was getting at was State law suits against the employees versus State law suits against the United States. And the effort was to shift the liability to the United States. That effort to shift liability, yes, was for morale, to protect employees from being distracted, but that... that was, again, the purpose of the shift of liability, the waiver of sovereign immunity in general. The only real explanation of the judgment bar appears in the background of where the drafters explained that the bar is intended to... as a bar to... bar to further suit not only against the Government, as would have been true under the prior bill. This is around page 14 of my brief, the quote from... from the 1945 report. Not... a bar to liability not only against the Government, as would have been true under the prior version, but also against the employee. And there was no bar to suit in the prior version of the bill. So the drafters' explanation could only have been referring to the normal operation of res judicata. And this Court has used res judicata in Digital as sort of the quintessential example of a defense that is not subject to immediate appeal.
Stephen G. Breyer: Your rule would be this. It's such a complicated area. I'm sorry. But if a plaintiff brings a lawsuit, tort suit, against a Government employee and the Westfall Act bars the lawsuit, period, you can't sue him at all because of... of (b). He gets an immediate appeal if the district court doesn't agree.
Allison M. Zieve: That's--
Stephen G. Breyer: But if under the Westfall Act you could sue him, depending on the order, he doesn't get an appeal.
Allison M. Zieve: --That's right because defense is based on the order of suits. Those are preclusion defenses, and preclusion defenses are not immediately appealable. And, you know, I think this follows from the Court's decision in... in Irwin that... that certain defenses that are available to private parties in litigation should also be available, treated the same way, have the same rules when the Government is being sued like a private party.
John G. Roberts, Jr.: What... what's wrong with the Government's distinction of Digital that here you have a policy embodied in a statute as opposed to a private settlement agreement?
Allison M. Zieve: The... Digital explains that if you have a right not to stand trial that is set forth in a statute or constitutional provision, that the court isn't going to second guess the importance of that right. It's... it's unclear whether the importance prong of the collateral order test should be part of... part of that effective reviewability or whether it's part of the second prong about separate from the merits of the case. But in any event, what Digital doesn't say is just because something is in a statute... a right is in a statute... it's... it... it is correct to characterize it as a right not to stand trial. To the contrary, Digital cautions that so many defenses could be called rights not to stand trial, and so the court will look... will apply the test very stringently. Statute of limitations, for instance, are in statutes and when the statute has expired, you could say that is a statutory bar to a right to stand trial. But statute of limitations, like the res judicata defense, are just not appealable under the collateral order doctrine.
Sandra Day O'Connor: Well, I suppose if there was no appellate court jurisdiction, we're not going to resolve the merits of that question.
Allison M. Zieve: That's right. If there's no appellate court jurisdiction, the Court doesn't have to go on to construe the scope of the judgment bar. But--
Ruth Bader Ginsburg: Well, you would at the end of the road. If... if you go to the Bivens claim and if the plaintiffs prevail, you could still appeal from that and say that that suit was barred. It should never have gone forward.
Allison M. Zieve: --That's right, Justice Ginsburg, and that's exactly why this defense is effectively reviewable after final judgment as opposed to now.
Ruth Bader Ginsburg: There's no question that it would be... it doesn't die if you don't have an interlocutory review. It's there but you've wasted a lot of time going through the whole trial to find out the answer.
Allison M. Zieve: That's true to this... just as is true with defenses based on statute of limitations or res judicata or, you know, a whole host of defenses--
Sandra Day O'Connor: Could the district court have certified the question?
Allison M. Zieve: --The district court could have certified it and... and--
Sandra Day O'Connor: And was there a request made to do that or--
Allison M. Zieve: --Yes. The district court denied that.
Anthony M. Kennedy: Yes, but the petitioners requested it. Did... did you oppose that request below?
Allison M. Zieve: I don't know. I don't remember.
Ruth Bader Ginsburg: The district judge said I'm not going to give you 1292(b) certification, but... but there's Cohen against Beneficial out there. Why don't you try that route? It was the district judge who... who mentioned that possibility, wasn't it?
Allison M. Zieve: Well, actually the petitioners filed a notice of appeal before the 1292(b) motion had been decided and then sought a 1292(b) certification. I think they were trying to protect themselves by doing it both ways--
Ruth Bader Ginsburg: But I think the district... the district judge was aware of Cohen against Beneficial, and I think referred to it. Maybe I'm... I don't remember correctly.
Anthony M. Kennedy: Yes. I... I thought... I thought the district court said I'm going to deny the motion to certify because the issue is clear in my view, but if you think you have a collateral order doctrine, then go ahead and take your appeal.
Allison M. Zieve: --Well, I don't think he expressed any view about whether the case satisfied the Cohen doctrine.
Ruth Bader Ginsburg: No, but he mentioned that there was... he mentioned Cohen.
Allison M. Zieve: Yes, but he... he didn't think the issue warranted an immediate appeal. He made that clear by denying the 1292(b) motion. And... and I think that would have been the... the appropriate way to appeal would have been 1292(b), and having been denied that route, petitioners should wait till the end of the case because, as you say, this issue will be effectively reviewable at the conclusion of the litigation.
John G. Roberts, Jr.: Is it... is it... maybe this is an incorrect way to look at it, but there is a relationship between the merits and the interlocutory review decision. I would suppose if we agreed on the merits with the Government... in other words, adopted a fairly clear and categorical rule... the need for an interlocutory appeal would diminish because the district courts would almost always get it right. But if we adopt a standard for the application of this bar that, you know, depends on a lot of different things, then the appellate court is going to disagree with the district court in a greater number of circumstances, and maybe we should allow an interlocutory review of that.
Allison M. Zieve: The Court's cases allowing and disallowing collateral order appeals don't turn on the... the litigation efficiencies that will be obtained if the court goes forward, but rather on whether the issue or the defense that... that the petitioner is seeking to appeal actually fits the stringent requirements of the Cohen doctrine. And the Court has, in its more recent cases, cautioned against broadening collateral order appeals and indicated that 1292(b) and the rule's enabling act provisions 2092 that allows the court to identify categories of cases that are appropriate for interlocutory appeal as a categorical matter, but those are the preferred ways to go rather than stretching the final judgment rule really beyond the bounds of its language.
Ruth Bader Ginsburg: Perhaps you should go on now to the question, assuming that it is immediately appealable.
Allison M. Zieve: If the Court reaches the second question, the res judicata foundation of the bar shows as well why the Second Circuit's decision on the substantive question should be affirmed. The... the text... the language of the text uses classic res judicata terminology, judgment and bar, and the historical context of the statute makes that reading by far the most reasonable. The... when the act was passed in... in 1946, until then, Federal employees had been sued for State law torts, the biggest category of cases involving auto accidents with postal workers. And Congress set about trying to waive sovereign immunity so that the Government could step in to defend the suits and be sued in their place, which it thought was fair and would help morale. And so that plaintiffs would no longer have to seek private bills in Congress, which was considered a... a burden. When the... when the... the FTCA allows the United States to stand in the shoes of the employee for purposes of a State law tort suit. And then the judgment bar extends to the employee the preclusion benefit of that suit so that the employee gets the same res judicata effect that he would have had absent the shift of... of the defense to the Government. The... again, the... the one clear explanation in the background for why the judgment... what the judgment bar does is that it... it applies to the employee the same bar that would have applied to the Government under... under prior bills which, again, was only the bar of res judicata. Because res--
John G. Roberts, Jr.: Did you... did you make the argument or the point that Justice Stevens articulated earlier about the... the provisions of this chapter not applying and that including 2676?
Allison M. Zieve: --No, we didn't make it, and--
John G. Roberts, Jr.: Does it sound good or bad to you now? [Laughter]
Allison M. Zieve: --We did make a similar argument that 2680 states that 1346(b) shall not apply and because the judgment bar only applies to actions under 1346(b), it's something of a contradiction to say that an action that... to which 1346(b) shall not apply at the same time an action under 1346(b). As for Justice Stevens' broader argument that... that chapter... chapter 171, which is the rest of the FTCA, other than... than 1346(b), shall not... shall not apply to claims arising from the exceptions, I don't think that Smith, which I think was Mr. Hallward Driemeier's response... Smith doesn't really provide a full answer to why that argument might be wrong because Smith really... Smith did say that an action that... an action to which the chapter does not apply at the same time can be one to which the exclusive remedy provision has been applied. But one difference is the... the order in which those things happened. First, you would get the 2679(b) exclusive remedy provision invoked before the question of whether 2680 applied would arise. And the other point is that Smith, which construed the exclusive remedy provision to apply even if the exceptions would then preclude a suit entirely, was based on the purpose of the exclusive remedy provision. The legislative history's relatively clear statements that it was intended to provide an immunity from State law tort suits for Federal employees acting within the scope of their employment and looks to two other provisions of 2679, neither of which would come... have any role here or were even adopted or enacted until 42 years after the judgment bar was enacted.
Stephen G. Breyer: I don't... I don't understand. If we were to take that, wouldn't we have to overturn Smith? You think not. You just said not. But as I... then as I understand Smith, we look to (b) and (b) says, plaintiff, you cannot bring an action under anything. Okay? You can't bring a State tort law action. You can't bring an action under Federal law against the employee, with certain exceptions where you can like Bivens and where there's a specific statute. Then we have over here the exceptions section. And over here in the exceptions section, it says there is no Federal action for, among other things, the case in front of us and, among other things, actions in a foreign country. And so the court says, one, this is in a foreign country, so you can't bring it under Federal Tort Claims Act, and now we'll go look to see whether this bar that you can't bring it, period, applies. They say it does apply. Now, Justice Stevens dissented, but he didn't dissent on that ground. And... and so... so I don't see how we could reach the result with this other exception without overturning Smith because Smith said (b) does apply. And so if the fact that it falls within an exception means the whole thing doesn't apply, then they would have held (b) doesn't apply. But they said (b) does apply. So how do we get there given Smith?
Allison M. Zieve: Well, like application of the judgment bar, one distinction would be that it turns on the order in which things occur, and in--
Stephen G. Breyer: I mean, that... that would be to overturn the reasoning of Smith. It would say--
Allison M. Zieve: --But the reasoning--
Stephen G. Breyer: --Yes.
Allison M. Zieve: --Well, the reasoning of Smith is not based on the language of 2680. The reasoning of Smith is based on the statement of legislative purpose, the background under which 2679(b) was enacted, and based on 2679(b)(2), which has... stating exceptions, and 2679(d)(4), which has procedures for the United States to certify and step into the shoes of the United States. So--
Stephen G. Breyer: So, in effect, they didn't... the Court didn't consider this argument in Smith.
Allison M. Zieve: --Right. What the Court did in Smith... and I think this applies to much of the Court's jurisprudence to construing the--
John Paul Stevens: The main holding in Smith was that the foreign country exception applied. That's all they held in Smith, wasn't it?
Allison M. Zieve: --Right. Smith held the foreign country exception applied even though the employee would... the... the plaintiff would have no remedy.
John Paul Stevens: And the... and the plaintiff couldn't... I don't see how that is at all inconsistent with what I'm suggesting here. I really don't.
Allison M. Zieve: Well, I don't think it's inconsistent. I think one thing that's important is that the Court... both in that case and in Meyer and in Gutierrez de Martinez, the Court looked at provisions of the FTCA that are not models of clarity and attempted to give a sensible reading, given the... the purposes that Congress was trying to achieve and the context and structure of the specific provisions.
John Paul Stevens: Well, looking at it very broadly, it doesn't seem to me that if the United States did not waive sovereign immunity for a particular category of tort case, that a dismissal of such a tort case should bar an... an action by an individual against an individual defendant, just looking at it in... in a global sense. And that's what the plain language of the statute also says. So I don't really see any tension. I... maybe I'm missing something obvious here.
Allison M. Zieve: I agree entirely. As the Court said in Meyer, the jurisdiction under the FTCA is defined by the scope of the waiver of sovereign immunity, and without question--
Ruth Bader Ginsburg: But we... this case is about the interpretation of 2676, as we took it. And before your time runs out, if we can get to the nub of your difference, your reading and the Government's, you say judgment in 2676 means judgment on the merits, and the Government says it means any judgment. So to buy your interpretation, we would have to put a caret mark after judgment and put on the merits. But the statute doesn't say on the merits.
Allison M. Zieve: --No, the statute doesn't say what it means by judgment. And I... and I don't think judgment has a clear meaning, and that's why it's appropriate to look to the context of the provision, what Congress was trying to achieve in the provision to interpret the scope of the bar and the meaning of... of that word and all the words together. The... the purpose of the statute is to shift suits from the employees to the Government, and the background of this specific provision, little as it is, and the comparison in a couple places to this provision discussing a parallel way to the administrative settlement provision... we think the most sensible reading is that Congress was trying to extend the preclusion effect of the suit against the Government so that although the employee would no longer be sued and would get that benefit in the first instance, if the plaintiff chose to go against the Government first, the employee wouldn't have... there would be no second suit against the employee for those same State law torts because in... in 1946, the only torts Congress was considering were State law torts. Am I going to sue the Government for negligence or my mail carrier for negligence? And to... both for efficiency reasons, to protect the Government, which was concerned about... about the burden on it of having to go... to litigate twice, the preclusion effect would be carried to the employee, so that once there was a resolution of the State law torts against the Government, that would be the end of the matter. I think the end of the matter is actually a phrase that the Assistant Attorney General uses in the legislative history.
John G. Roberts, Jr.: What is the... as a practical matter, though, what is the great burden on the plaintiffs in requiring them to sue the individual defendants first if they're concerned about the judgment bar?
Allison M. Zieve: In... in many cases, if not most cases, an... a plaintiff won't have both remedies available. So it's only a... a small universe of cases anyway in which a plaintiff would want to sue in Bivens and sue under the FTCA. But at the beginning of the case, before discovery, when all you've done is file your administrative claim to which, in many cases as in this one, the Government has never even responded, the plaintiffs and the lawyers may have no idea that they actually have a Bivens claim. In this case, when they thought they had one, they filed it. Also, the Government's view in... in other cases is not that your... it doesn't help the plaintiffs to sue simultaneously because the Government's position in other cases has been... and courts have largely agreed... that once the judgment in the... on the FTCA claim comes down, the Bivens suit is then precluded, in some cases even if the judgment in the Bivens suit has preceded the judgment in the FTCA suit. So bringing them simultaneously, while in some cases might... might be feasible and seem like a good idea, is not necessarily going to protect the plaintiffs, given the scope of the Government's arguments.
John G. Roberts, Jr.: Well, you don't... you don't have to bring them simultaneously. You can bring the individual action first, separately.
Allison M. Zieve: Bring the individual... bring suit... the Bivens suit first? If the... if the statute of limitations work out, you could bring the Bivens suit first, but again, you'd have to--
Ruth Bader Ginsburg: A Bivens suit is pretty hard to prove, a lot harder than proving a case of negligence.
Allison M. Zieve: --Yes. And since, either way, you're only going to get one satisfaction for your claim, it seems odd to adopt a construction that encourages plaintiffs to go first after the employees when the purpose of the FTCA was try to encourage plaintiffs to go after the Government instead.
John Paul Stevens: And plaintiffs, generally, like to sue... sue solvent defendants too I think. [Laughter]
Allison M. Zieve: Yes. And... and if the Government had responded in this case to the administrative claim in... in a timely manner or at all, the plaintiffs would have had a better sense of where they stood on the FTCA claim before they filed suit. I'd like to mention, although the Government has sort of retracted it, that footnote 5 of their reply brief concedes that claims wholly outside the purview of the FTCA, to use their phrase... that judgments based on claims wholly outside the purview of the FTCA do not trigger the judgment bar. Claims based on... claims that arise under the exceptions of 2680 are surely outside the purview of the FTA... FTCA. The... the 1945 committee report, which is the last one before the statute was enacted, actually describes the FTCA 2680 exceptions as excepting certain classes of torts from the grant of the right to sue. Not only does that make clear that they're outside the purview of the FTCA, but that they are matters of subject matter jurisdiction. As this Court has explained in cases like Scarborough and last month in Everhart, subject matter jurisdiction refers to classes of cases that the court has authority to adjudicate. The court... the district court did not have authority to adjudicate the FTCA claim filed by the Hallocks because it fell within an exception. For that reason, res judicata would not apply. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Hallward Driemeier, you have 5-and-a-half minutes left.
Douglas Hallward-Driemeier: Thank you, Your Honor. First, I think it's important to note that respondents concede that the Westfall Act confers a form of official immunity. That statute, like 2676, does not use the word immunity. Rather, it uses the word, any action related to the same subject matter is precluded. And that is virtually indistinguishable from the language of 2676 that... that establishes a complete bar to any action by reason of the same subject matter. So there is no requirement that Congress invoked particular language to create an immunity. The question is what are the underlying concerns that are protected. And the respondents have admitted that 2676, like the Westfall Act, was intended to protect employee morale against the threat of personal liability when they were acting for the Government, as well as the distraction and cost of defending against suit. This Court, in fact, in Gilman--
Antonin Scalia: The thing you haven't answered that I think is troubling everybody is why is... why is that... I mean, if you could come up with some explanation of why that concern for morale only arises after there has been a... a judgment in the suit against the Government. Why... if that were the concern and if the Government wanted total immunity, why wouldn't they have extended it to a... a 1983 suit brought before the FTCA suit?
Douglas Hallward-Driemeier: --Well, Your Honor, I... I admit that Congress--
Antonin Scalia: Give me a good reason for that.
Douglas Hallward-Driemeier: --Congress addressed the... only part of... of the problem. But as Justice Stevens recognized, plaintiffs would want to sue the solvent defendant, and that's why the... making the Government itself subject to suit was part of the deal. And... and Congress understood that plaintiffs were going to take up that option. And that's why, up until the... this Court's adoption of Bivens, there were virtually no decisions about 2676 because plaintiffs just didn't try. This Court in Gilman, an early case relating to 2676, recognizes that... that the statutory provision was intended to address precisely these types of concerns, morale of employees, the same concerns that have led this Court and Congress in other contexts to recognize other forms of... of official immunity. And this one is equally subject to immediate review. Respondents suggest, considering for a moment, what Congress would have expected in 1946 when it initially enacted this, and... and I think that that is helpful. There is... it is quite clear 2676 is explicit, that Congress did not expect the end of the litigation against the United States under the FTCA to mark the beginning of the litigation against the employee in his personal suit. And... and respondents offer the example of the postal carrier as one of those quintessential cases that Congress meant to address. But, of course, the postal exception to the FTCA, another exception in 2680, 2680(b), would bar many claims against the United States relating to a postal carrier's misdirection of the mail. Now, respondents would have the Court believe that if that suit was brought against the United States and the United States was found not to be liable because of that exception, that the plaintiffs were free... and Congress intended that the plaintiff be free... to then go sue the poor mail carrier himself personally.
Ruth Bader Ginsburg: What about 2679(b)(2) of the Westfall Act which says the Government doesn't get substituted for the employee in a Bivens claim? Westfall... the Congress was... was quite concerned, it seems, with preserving an action brought for violation of the Constitution of the United States.
Douglas Hallward-Driemeier: With respect to section 2676, Bivens claims today, after the enactment of the Westfall Act, stand in the same footing as common law claims stood prior to the enactment of the Westfall Act. In other words, prior to Westfall, you could bring a common law claim against an employee, but if you brought a suit against the United States, the judgment in that suit would bar the common law claim against the employee. In other words, the plaintiff had to make a choice. Likewise, when Congress enacted Westfall and said you no longer have a choice with respect to common law claims, those have to be brought against the United States, it left the plaintiffs with a choice with respect to constitutional claims. They could choose to pursue a Bivens remedy, but if they sue the United States on those claims, the judgment and the action under 1346 would be a complete bar to any action against the employee.
John G. Roberts, Jr.: And if... if they decided to pursue a Bivens claims... a Bivens claim, doesn't the... the Government often undertake the representation of the Government employees in those cases?
Douglas Hallward-Driemeier: That's right. And an additional concern of Congress was that the Government would be forced to defend against the suit twice. In effect, the cost of litigation might be borne by the Government in both cases.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Warren E. Burger: We will hear arguments next in Ristaino against Ross. Mrs. Smith you may proceed whenever you are ready.
Barbara A. H. Smith: Mr. Chief Justice and may it please the Court. I am Barbara A. H. Smith, Assistant Attorney General for the Commonwealth of Massachusetts. I represent the Petitioners Theodore Ristaino and Frank Hall in this case. The procedural history of this case began in June of 1970, when James Ross and two co-defendants were brought to trial in the Superior Court of Massachusetts, upon indictments charging armed robbery, assault and battery with a dangerous weapon and assault with intent to murder. Prior to trial, counsel for the defendant James Ross as well as counsel for the co-defendants requested that the trial judge impose certain questions to the perspective jurors upon voir dire. One of the seven questions proposed by council for Ross touched upon the issue of possible racial bias. The question was, are there any of you who would believe that a white person is more likely to tell the truth than a black person. The trial judge declined to pose any of these questions. Following trial at which the defendants did not testify or offer a defense, they were convicted.
Potter Stewart: Were any questions propounded to the perspective jurors along these lines at all?
Barbara A. H. Smith: A general question as to this, whether the jurors were sensible of any bias or prejudice was propounded to the jurors. This was coupled with instructions as to the meaning of the first question to be posed by the jury. That is the trial judge in this case is as opposed to the Ham case, did not simply say, I have the clerk answer the question, are you sensible to any bias or prejudice but in an effort to focus their attention on what this question meant, he did explain the instructions as this panel of voir dire.
Potter Stewart: Where is that in these pages?
Barbara A. H. Smith: That is on pages thirteen, beginning on page twelve in my brief, Your Honor, and thirteen and set out. The entire voir dire procedure is set out in the appendix.
Speaker: (Inaudible) to the panel not individually members of the panel? The question were put to the panel—
Barbara A. H. Smith: As a whole, Your Honor.
William H. Rehnquist: It is statutory to I think which came as a surprise to me coming from a western state but we will take a day or two to making a jury-- are there just so many questions that are put in their prescribing a statute?
Barbara A. H. Smith: Yes, You Honor. And anything additional is left within the digression of the trial judge. I may continue with procedural history. Following conviction, the Supreme Judicial Court affirmed that conviction, Ross then filed a petition for writ of certiorari in this course raising the issue of the refusal of the trial judge to ask a proposed question. On January 22nd 1973 this court granted certiorari and summarily vacated the judgment of conviction and remanded the case to the Supreme Judicial Court for reconsideration in light of Ham versus South Carolina, which this court decided five days previously. Upon remand the Supreme Judicial Court addressed the issue of whether the Ham decision required reversal on that ground that the trial judge refused to ask perspective jurors questions concerning possible racial prejudice, and again they affirmed. Ross then filed the second petition for writ of certiorari in this court with Justice’s Marshall, Brennan and Douglas dissenting. In January of 1974, Ross filed a petition for writ of habeas corpus in the Federal District Court, in District of Massachusetts. In June of 1974, the Court ordered that the writ shall issue, based upon the theory of the trial judge to ask the proposed questions. The respondent below Ristaino appealed to the First Circuit Court of Appeals which affirmed visiting Judge Moore from the Second Circuit dissenting. A petition for certiorari on behalf of Ristaino was then filed in this court and granted in May of 1975. The principle issue in this case involves the conflicting interpretations, accorded this court’s decision in Ham versus South Carolina by the Supreme Judicial Court of Massachusetts and the Federal District Court and First Circuit Court of Appeals. These interpretations involved the scope and the applicability of the Ham decision, and a resulting retroactive or prospective application to be accorded at that decision even in fact the Federal Court’s interpretation is correct. On remand, Supreme Court of Massachusetts, considered this case in the light of the Ham decision and held this to the scope with the Ham decision. We do not believe that the Ham case announced a new broad constitutional principle requiring the questions designed to discover possible racial prejudice, be put to perspective jurors in all state criminal trials when the defendant is black. Such questions are constitutionally required only when the defendant is a special target for racial prejudice. As to complying with fundamental fairness the court found that the judges questions and the instructions to the perspective jurors, were under the circumstances of the Ross case, commensurate with Fourteenth Amendment Requirements. However, the Federal District Court held that the petitioner Ross had a constitutional right to have the issue of racial prejudice specifically call to the attention of the perspective jurors on the voir dire examination, and on that basis ordered that the writ issue. The First Circuit held in substance that where the defendant is black and charged with a violent crime against a white, in this particular case a security officer, failure to ask specific questions is error of constitutional dimension requiring release of a convicted defendant. The petitioners submit that the Supreme Judicial Court’s interpretations of the scope of Ham is correct for following reasons. In Ham this court was presented with a very novel fact pattern. Jean Ham was a young, bearded, black civil rights activist, he was well known in the community from South Carolina, he was well known for his civil rights activities. His sole defense was that he had been framed, and that law enforcement officers were out to get him because of his civil rights activities. Thus, the court was presented a case in which race was a consideration, in which the credibility of dark defendant was directly pitted against the white law enforcement officers who he maintain were out to get him and framing him. Within this factual framework, the trial judge in Ham, refused to pose the questions requested. And nor did he give any instructions as to the meaning of the general question, as to bias or prejudice. Now the majority opinion in Ham utilized very specific language, this court held in this case under the facts shown by this record, due process of the Fourteenth Amendment required that the defendant be permitted to have the jurors interrogated on the issue of racial bias. Petitioners suggest that this language is not to be dismissed as mere common judicial locutions, as did the federal district court. But this Court meant what exactly what it said, that the Court traditionally uses such words of limitation when they are rendering a decision which is required by the particular fact pattern presented to them, when they are rendering a decision solely within the confines of the Due Process clause, fundamental fairness. We would suggest that this court neither held nor suggested that the constitution conferred a right in every case to have this specific question address the possible racial prejudice put to perspective jurors We further suggest that by basing its decision on the Fourteenth Amendment, rather than the Six Amendment right to an impartial jury as urged by petitioner Ham in his petition for certiorari and in the brief to this court. That the Court indicated its intention to limit its decision to cases involving special circumstances, as did the case in Ham. Finally, we would suggest that this Court’s action on Ross’ initial petition for writ of certiorari indicates that its rule in Ham was in fact limited to a particular fact pattern, and that no new per se constitutional rule was there in announced. For this court vacated the Ross decision and remanded, it did not reverse outright, and we would suggest that the vacation was made so that the Supreme Judicial Court could reconsider the fact pattern in Ross within light of Ham. Petitioners therefore suggest that the scope of the Ham decision is limited to those cases involving circumstances with the probability of prejudice. It is not sufficient to mention to require a deviation from the normal voir dire procedure, which is traditionally left within the digression of the trial judge. We would suggest that the voir dire procedure employed in this case complied with fundamental fairness, as required by the Due Process clause. In course of the discussion between counsel and the trial judge as to whether this questions would be asked. The trial judge asked the counsel for a co-defendant whether there was anything peculiar to the circumstances of this case. The response was no, just as the victim is white and the defendants are black. Counsel for Ross brought no peculiar or special circumstances with the attention of the trial judge. Further, the trial judge indicated he would give preliminary instructions on the meaning of the first question to be asked by the clerk. In substance then instruction was that each of the jurors must remember they were under oath, that they had an absolute duty to render a fair and impartial verdict based upon the evidence heard in the courtroom, not on any extraneous factors, no bias, or prejudice of any kind. That the clerk in asking the first question would be given an opportunity to inform the court if you cannot or if you serious doubt that you can render a fair and impartial verdict. He directed them to examine all aspects of the case, quoting; everything you know about the case, both in the courtroom from what I have said. If any doubt, you have the duty to inform the court by standing or raising your hand. The defendants were then asked to stand, so clearly the jurors were aware that they were in fact black. In fact, a number of jurors did raise their hands and indicate their inability to render a fair and impartial jury. One for admitted racial prejudice, two for general prejudice, seven for previously formed opinion, seven because their relationship with law enforcement authorities, and one because of employment at the University where the crime originally occurred.
William H. Rehnquist: Mrs. Smith, what does general prejudice means, is that a term under Massachusetts law?
Barbara A. H. Smith: General Prejudice?
William H. Rehnquist: Yes.
Barbara A. H. Smith: The question is are you conscious of any bias or prejudice? Not general, no.
William H. Rehnquist: And then that the juror raises his hand?
Barbara A. H. Smith: And then is question-- approaches the bench and states to the judge the reason he feels that he could not render an impartial --
William H. Rehnquist: Well then, but in the case of one juror, we know he said that he was racially prejudiced. Do we have any indication of what those of whom you described as being excused for general prejudice’s said?
Barbara A. H. Smith: No, Your Honor. The language was vague, just that I know enough about this case I couldn’t mender an impartial verdict, something to that effect.
Speaker: (Inaudible) against the people who were charged with the killing or assaulting the policeman, that could be one of the general, I suppose?
Barbara A. H. Smith: Yes, Your Honor, I think that would. In a further effort to—
Speaker: Did the, did the offense get a great deal of publicity?
Barbara A. H. Smith: There was no allegation in this case of any extensive free trial publicity; nothing in the record indicates that it was an extraordinary case in any way. And one further effort to keep the element of racial prejudice from the jurors, the trial judge declined to use the Muslim names of the two co-defendants of James Ross. Therefore I submit that the procedure employed in this case complied with fundamental fairness, that Ham requires nothing more than that the jurors attentions are focused on the possibility of bias or prejudice. Therefore, if the voir dire proceeding complied with fundamental fairness, the court below erred in vacating the state conviction absent of demonstration of actual likelihood of prejudice; flowing from the trial judge’s refusal to ask the proposed questions. This case came in the Federal Court collateral review of a State Court conviction pursuant to a petition for writ of habeas corpus. Therefore, the actual likelihood of prejudice must be demonstrated. Those cases, which have held to the contrary, would suggest involved in every instance circumstances, which were such as to create a serious probability of unfairness. In the instant case no such circumstances have been demonstrated, and the petitioners submit that it was error for the Federal Court to void the State conviction, merely upon speculation or the mere possibility of prejudice flowing from the refusal to ask this one question. If however, the Ham case did enunciate a new broad constitutional mandate or per se rule, requiring that questions specifically address to racial prejudice be posed in every instance in which the defendant is black. The question of the prospective or retrospective application to be accorded that rule must be answered. We submit that the First Circuit’s resolution of this question is without support. As I stated early, or the First Circuit held it by vacating and remanding the Ross case for reconsideration, this Court impliedly held the rule of Ham to retroactive. We suggest that the only inference to be drawn from this Court’s action is that Ham was limited to its facts and would require a case by case examination based on that particular fact or pattern involved.
William H. Rehnquist: Well Mrs. Smith, you-you kind of tried to have both, both pieces of the cake, don’t you. Because earlier you say that by vacating and not reversing we indicated that we didn’t think this was directly applicable. And yet know you say that because vacated a kind of inconsistent consequence follows or that that the First Circuit’s view of inconsistent consequence followed?
Barbara A. H. Smith: I believe that is consistent with what I have said before, Your Honor. I think what your court, this court’s action in vacating indicates was limit to the particular fact pattern. The First Circuit inferred that one, the court had enunciated across the board per se rule and by vacating held this new rule to be retroactive.
William H. Rehnquist: I would suggest there is a possibility perhaps that is embraced neither by your view nor by that of the First Circuit, and that is that when we have these holes we just frequently vacate without perhaps, quite that much fine-tuning as is to the result.
Barbara A. H. Smith: Under that circumstance and, Your Honor, I would still say that there is little support for the First Circuit’s determination that you were making a ruling on retroactivity, by your action in your first petition.
Speaker: (Inaudible) That would foreclose you from acting that should only be hunched only be perspective.
Barbara A. H. Smith: That is right, Your Honor, that is my position.
Potter Stewart: (Inaudible) remanded so that the lower court may first address the retroactivity question?
Barbara A. H. Smith: Yes, Your Honor. But I think—
Potter Stewart: Without our having, without our having decided that one way or the other.
Barbara A. H. Smith: That is true, Your Honor. If there is a new rule to announce in this case, I would submit that it is a procedural rule only. That is not a rule designed to guarantee that defendant has specifically enumerated constitutional right. There was not a rule based on the Sixth Amendment right to an impartial jury, but it is designed only to expand the voir dire procedure which is not in self constitutionally required. Therefore we submit that there is no basis for granting more extensive application to a rule enunciated in Ham, if in fact the rule was so enunciated, then given to those decisions, which did in fact rest upon the Sixth Amendment right to an impartial jury. And therefore the decision on this question falls within the cases of De Stefano versus Wood, holding Duncan versus Louisiana, and Bloom versus Illinois granting the right to jury trial and the right to jury trial in serious criminal contempt to be prospective only. And Daniel versus Louisiana, holding the Terry versus Louisiana, was not to be applied retroactively to convictions obtained by jurors and panel prior to the date of that decision. First instance we suggest that the purpose behind the Taylor rule and the De Stefano rule or Duncan rule, goes no further than the rule announced in Ham. In Taylor, the Court stated its purpose was to prevent arbitrariness, repression on the part of the prosecution. There is nothing --no greater purpose founded for the rule in Ham case. Second, the reliance factor is equally as great as in the both cited cases. The sole proposer of this rule is found in Aldridge versus United States, which was decided solely within this court’s jurisdiction over the lower federal courts over 44 years ago. Since that time there has been no indication that the constitution mandated the interjection of racial prejudice issue into a procedure traditionally resting within the discretion of the trial judge.
William H. Rehnquist: What, what has been the attitude of the Supreme Judicial Court of Massachusetts in treating voir dire, does that encourage trial judges to go outside of the statutory questions, or does it leave it completely up to their discretion?
Barbara A. H. Smith: Since these cases have a reason, it has indicated to the courts that the better practice is to allow the question to be put if the defendant so requests. However,
William H. Rehnquist: How about, how about before that for purposes of retroactivity analysis?
Barbara A. H. Smith: Before that it was traditionally very limited to the three specified questions that are set out in my briefs. That it was a rare, very rare instance when the trial judge went outside of that. And then only when shown that particular circumstances involved in the case required that these questions be asked.
Speaker: (Inaudible)
Barbara A. H. Smith: They are set out page 12 of my brief, whether he was related to either party or has any interest in the case, or has expressed or formed an opinion, or sensible of any bias or prejudice.
Speaker: Footnote four of that.
Barbara A. H. Smith: Yes, Your Honor.
Speaker: What about footnote five? On the next page.
Barbara A. H. Smith: That is a additional question that the trial judge did agree to put in this case, at the request of counsel, because the victim had been a white security guard, he did agree to ask the jurors, if they were involved with law enforcement authorities.
Speaker: So that, in this case whether it non-statutory additional, and-
Barbara A. H. Smith: Yes, Your Honor. Because of the circumstances of having a quasi - law enforcement, official being --
Speaker: Did the clerk answers these questions?
Barbara A. H. Smith: The clerk answered questions, yes, Your Honor.
Speaker: Not the Judge?
Barbara A. H. Smith: No, Your Honor.
Speaker: And never counsel?
Barbara A. H. Smith: No, never to my knowledge.
Speaker: The Judge (Inaudible)
Barbara A. H. Smith: Oh yes, Your Honor.
Speaker: (Inaudible)
Barbara A. H. Smith: Yes he is, first in this case he gave the general instructions and, rather specific instructions as to the duty of the jurors. Then the clerk reads the questions, then if a juror wants to respond he raises his hand and comes up to the bench for a bench conference with the judge.
Speaker: (Inaudible)
Barbara A. H. Smith: To my knowledge, it is always the clerk who does it.
Speaker: -- panel is very large, does that differ by—
Barbara A. H. Smith: That differs, in this case some of the panels were rather small because it was, at least I believe five panels questioned.
Warren E. Burger: Suppose the judge wouldn’t be violating the statute if he put the questions himself would he?
Barbara A. H. Smith: No, I don’t believe he would not.
Speaker: How long did he serve as juror?
Barbara A. H. Smith: I believe it—
Speaker: Does the record showed that?
Barbara A. H. Smith: It shows that some of the jurors had said on previous cases.
Speaker: Yes, I thought so.
Barbara A. H. Smith: And in a number of instances they were then excused because they have been locked up and it is a lock up situation in this case. I can't say definitely how long?
Speaker: You know what the term for petty jurors is?
Barbara A. H. Smith: Your Honor, I don’t.
Speaker: --is there in this county?
Barbara A. H. Smith: I don't know in this county what the terms. I would just like to make one other point, and that is the effect that the retroactive application would be substantial on the administration of justice in the commonwealth. And in fact the Chief Justice himself stayed in the case of Commonwealth versus Lumley that it would be calamitous indeed. Thank you.
Warren E. Burger: Mr. West.
Michael G. West: Mr. Chief Justice may it please the court. My name is Michael West, and by appointment of this Court I represent the respondent James Ross Jr., in these proceedings. If I may before formal argument, there are two misprints in my brief and I would like to bring those to the attention of the court. The first is on page four, under the statement of the case, where it indicates that James Ross was convicted and received terms, it said of 18 to 20 years in this state prison, actually it was 18 to 30 years. And lastly on page 42, and that is the second line, I refer to chapter 234 section 228, it is actually section 28.
Speaker: I don’t have a 41 or 42 of your brief, anybody else has got that?
Michael G. West: Your Honor, this brief was printed by authority of the Court by your own printers.
Speaker: How about (Inaudible)
Michael G. West: Yes, that is correct.
Warren E. Burger: —it is not the court’s printer, it is ours I am aware. It doesn’t have the capability of printing this material.
Michael G. West: Since apparently is this court’s practice when presented with a case dealing with both retroactivity and the application of a constitutional principle, and to deal with the retroactivity issue first, I shall do that in my argument dealing with the retrospective application of Ham versus South Carolina to the Ross situation. The test stated by counsel for the Commonwealth is found in Stovall versus Deno, and that sets out a three-prong test. Setting out the purpose to be served by the new standards, the effect upon the reliance of the old standards, and the effect upon the administration of justice. Believe this test was further clarified in the Desist versus the United States. In that the three-prong, of the three-prong test. The first prong, and that is the purpose to be served by the new rule is to be given foremost importance. And then in William versus the United States, this Court said that if the major purpose of the constitutional rule goes to the truth finding function and substantially affects the accuracy of the guilty verdicts. Then with the rule be given complete retroactive application, without regard to the effect on the administration justice or the good faith reliance by the court below. Now it is interesting to know that the issue of retroactivity of Ham was never raised by the commonwealth, in either the second Supreme Judicial Court case after remand by this Court, or by the First Circuit in the First Circuit Court of Appeals or in the United States District Court for the District of Massachusetts, based on the petition for habeas corpus. It was raised in the First Circuit only as a side and never briefed by the commonwealth. I think what this indicates, is that the commonwealth first of all assumed retroactivity of the Ham case and second I think it dilutes their claim of the calamitous effect on the administration of justice. Because that issue was never raised, never briefed in any of the court except this one. In fact the Supreme Judicial Court for the commonwealth in the recent case of Commonwealth versus Lumley, states that they believe the limited rule announced by Ham is to be given complete retroactive application. Ross believes that the denial of the impartial jury or even the likelihood of an impartial jury or the denial of an impartial jury, goes to the heart of the truth-finding function. And so effects the accuracy of guilty verdicts that Ham should be given complete retrospective application. The commonwealth relies on two cases in this regard; one is Daniels versus Louisiana and the second is De Stefano versus Woods, to establish the argument that Ham is not the be give retrospective application. Now the question presented in Daniels was the retrospective application of Taylor versus Louisiana. This Court denied retroactive application of Taylor, saying that until Taylor no cases held that the exclusion of women from a jury deprive the defendant of a Sixth Amendment right to an impartial trial. That is not true here, there was no previous case? This Court said that reliance on past decisions of this court such as Hoyt versus Florida, precluded retroactive application. Here there is no previous decision to the contrary, in fact the previous decision to Ham, Aldridge versus United States, was in support of the Ross claim. They also say—you also said in Taylor that the substantial impact on the administration of justice and it would cause enormous burdens for the state. The commonwealth in its brief on page nine says that therefore the retroactive application of the Ham case would require reversal of every case in the commonwealth, involving a defendant who is a member of the minority class. That is not just correct. In this regard, the First Circuit decision in Ross is much narrower than the Commonwealth asserts. First, it only applies to black defendants. Second, only black defendants who are convicted of a violent crime, and third it only applies to jury trials. Fourth, it only provides for a application where the judge or the clerk asks questions, it is not where a counsel does. It is my research that approximately in those effects, approximately 17 States. And only when the defendant's counsel has submitted a question as to racial prejudice, and the court had denied that question.
Speaker: And only when the victim was white or of the different race?
Michael G. West: Well it doesn’t say that, but certainly that is the Ross case, and only of a violent crime.
William H. Rehnquist: What about a witness being black, say in a white community? Or being white in a largely black community?
Michael G. West: Well that in fact is the Ross case, Mr. Justice Rehnquist. The only witness against Ross was no the victim, he could not identify Ross at all, it was only a white gas station attendant who was the witness against Ross. And so I think the First Circuit decision would certainly apply in that circumstance.
William H. Rehnquist: Well, what if you have those, say a white defendant in a largely white community but the white defendant proposes to call a black witness?
Michael G. West: Well I think that would still apply, Your Honor. I think decisions of your court have indicated that the color of the petitioner does not affect the decision whether to allow or not to allow the questions to be asked or challenge to the jury, such as in Peters versus Kiff.
William H. Rehnquist: If it is an absolute rule as you suggest, then it isn’t just limited to cases of black defendants.
Michael G. West: No, you are right, Your Honor. But it would certainly be limited to in this First Circuit to violent crimes, they feel that the --
Warren E. Burger: We will resume there at 10 o' clock.
Michael G. West: Thank You, Your Honor.
Speaker: The Court is now adjourned we will resume tomorrow morning in 10 o'clock.