Warren E. Burger: We will hear arguments next in Mitchell against Forsyth. Mr. Bator.
Paul M. Bator: Mr. Chief Justice, and may it please the Court, in this case the Solicitor General represents former Attorney General John N. Mitchell in a lawsuit that was filed 13 years ago, in 1972. During these 13 years the court system has been struggling to solve the question whether Mr. Mitchell should personally pay damages to the plaintiff because in 1970 he as Attorney General authorized a telephone tap on the phone of one Davidon. This was in December, 1970, and this telephone tap lead to the overhearing of three conversations to which the plaintiff was a party.
Warren E. Burger: Were those conversations the target at their inception?
Paul M. Bator: Not specifically. Davidon was the target of the tap, Your Honor. Davidon was tapped because the FBI had information that there was an organization called ECCSL, of which Davidon was a member, which was planning to blow up the utility tunnels under the Federal Triangle here in Washington, D.C.-- There was also FBI information that ECCL members, including Davidon, had discussed the possibility of kidnapping Dr. Henry Kissinger, who was then Assistant to the President for National Security Affairs. The District Court made an elaborate inquiry into the purpose of these taps, and explicitly found that they were installed in order to protect the national security by obtaining information and preventing these bombing and kidnapping activities. And I refer the Court to the District Court opinion at 56 to 60 of the Appendix to our Petition, where the District Court makes it clear that the purpose was prevention, not prosecution. Now, at the time these wiretaps were authorized, this Court's Keith case, which for the first time held that a warrant had to be obtained for wiretaps involving domestic national security concerns, that case had not yet been decided. The Keith case, in which the Court itself stated that it was deciding a question of first impression, came down in '72, a year and a half after these wiretaps were placed and removed. These wiretaps were placed on the basis of a legal position that had been maintained in an unbroken tradition by every Attorney General and every President for over 25 years.
Warren E. Burger: Does it not go back even more than that?
Paul M. Bator: My research, Your Honor, shows simply that it was... there are things in this record that indicate in 25 years--
Warren E. Burger: One case, I thought, in either this Court or the Court of Appeals referred to a memorandum from Franklin Roosevelt to the Attorney General Jackson.
Paul M. Bator: --That may very well be, Your Honor. In the packet that we have, the first thing we have is from Attorney General Brownell. The position was, the substance of the position was that the President did have constitutional authority without a judicial warrant to order electronic surveillances where he was acting to protect the national security against threats of domestic violence and terrorism. At the time the Davidon tap was installed, that position had never been rejected in any federal court, and had recently been upheld in two Federal District Courts. Now, of course that position was rejected by this Court in Keith, and this case is really one of a number of cases in which the Courts have been struggling with the question of what to do about pre-Keith taps, how do we untangle the question of what to do about these surveillances, that took place without a judicial warrant at a time when the legal situation was subject to fundamental uncertainty.
Sandra Day O'Connor: Well, Mr. Bator, even if you are 100 percent correct on the qualified immunity question, what about the review of that at this stage, the appealability question, which seems to me to be a tougher question than the one on the merits?
Paul M. Bator: Well, Your Honor, we agree, and I am happy to turn to it if you would like me to, although I do want to come back and say perhaps a word or two about the merits of the qualified immunity issue. The appealability issue arises because the Court of Appeals held that a District Judge's rejection of a defendant's claim of qualified immunity does not at that point become appealable. The defendant has to wait until the case goes to final judgment, that means usually after trial and after... after discovery and after trial, before he appeals. The Courts of Appeals are simply divided three to three on this issue, and that is why we are here, and I have four, I think, simple points to make about appealability, Justice O'Connor. The first one is about this Court's cases. This Court's cases on appealability are not easily organized into a tidy scheme, but the cases do convey one central unifying theme, and that is that if postponing appeal until the end of the case would in some serious way undermine or subvert the policies of the very rule whose correct application is in question, then the considerations are very strongly in favor of immediate appeal if certain technical requirements, if the Court of Appeals is in a position effectively and definitively to decide the question at this point. That, we think, is the thrust of Abney and Helstoski, United States v. Nixon, Nixon v. Fitzgerald. If a District Court rules, rejects a defense whose purpose is to give a threshold immunity to the burdens of discovery at trial, then appeal should be permitted.
Sandra Day O'Connor: Well, was there some factual dispute here about whether the wiretap was motivated by national security concerns, so is it enmeshed in the merits, and so forth?
Paul M. Bator: Your Honor, we do not think that there was really any relevant factual dispute at all. In fact, the District Court here ruled that qualified immunity may not be had as a matter of law. The District Court had no problem in ruling with this question as a matter of law, and we think it can be easily ruled on now as a matter of law. The record shows, without any problems, with multiple support, and the District Court found that the purpose of the wiretap was to find out about and prevent these threats to the national security. There is ample, ample basis on this record to do exactly what the Court in Harlow said the courts ought to try to do with these cases, which is to take the objective facts and determine whether on the basis of the objective facts there was or was not a violation of a clearly established constitutional rule. Now, the respondent says, no, you can't do that here and you can't do it anywhere, because these qualified immunity rulings are always mixed up and complicated issues of fact and purpose and motive, but we think that that is just another way of saying that this Court, when it tried in Harlow to create an objective test that could be determined on the basis of a threshold inquiry as a quick, if you will, a quick cure on the issue, in order to serve the very purposes of the rule, the Court said, we will try to structure the inquiry so we can have a definitive objective ruling. And what the respondent is really saying here is that this Court simply won't be allowed to do or simply didn't know what it was about when it was doing that. That is to say that that is not possible. We think it is totally unproblematical for an appellate court to do exactly what the District Court does at that point, which is to decide as a matter of law is the defendant entitled to qualified immunity, and we think that this quick appeal is absolutely crucial to achieving the purposes of Harlow. What was the point of Harlow?
William J. Brennan, Jr.: May I ask, Mr. Bator, are you going to argue the question whether 2520 limits the defense so that--
Paul M. Bator: I hadn't planned to, Your Honor, and I am not really prepared, 2520 being--
William J. Brennan, Jr.: --That's the one that--
Paul M. Bator: --the Title 3.
William J. Brennan, Jr.: --Yes, the only defense to the officials is those set forth in 2520?
Paul M. Bator: Your Honor, our position on that is that 2520 doesn't limit because Title 3 is basically inapplicable to this entire situation. That is, 2520 only is in play if the plaintiff has a good cause of action under Title 3.
William J. Brennan, Jr.: Well, if he did have a good cause of action under Title 3, would 2520 limit the--
Paul M. Bator: Then it may be that 2520 might limit, although we haven't briefed that issue, Your Honor, and it might be that the clearly established rule might still operate.
William J. Brennan, Jr.: --You haven't briefed it very fully. You have just brushed it aside. I wonder if we can do that. But you say Title 3 isn't involved at all because of Keith?
Paul M. Bator: Our position is that Title 3 is totally inapplicable--
William J. Brennan, Jr.: Because of Keith?
Paul M. Bator: --and this Court made that absolutely clear in Keith, so the Court doesn't really need to reach the question of what would be the situation with respect to immunity.
William J. Brennan, Jr.: Over dissent.
Paul M. Bator: I beg your pardon?
William J. Brennan, Jr.: Over dissent.
Paul M. Bator: Your Honor, our submission on the appealability question is--
John Paul Stevens: Let me ask you one other question, because I have been puzzled by the extent to which Title 3 is relevant. Is it clear that the only liability that the District Court was talking about was liability under a Bivens type claim?
Paul M. Bator: --I believe so, Your Honor.
John Paul Stevens: And everybody agrees with that?
Paul M. Bator: I believe so.
John Paul Stevens: There are some traces in your opponent's brief that I didn't read that way.
Paul M. Bator: We don't understand that the case really--
John Paul Stevens: That there is any Title 3 issue at all.
Paul M. Bator: --I don't believe so, Your Honor, and of course it is on the Bivens issue where the issue of qualified immunity and its appealability arises, so we believe that really is the only issue on which we are here, as far as our petition for certiorari goes. I want to return to appealability and its connection with the purpose of the Harlow rule, because that really is our central submission to this Court. The purpose of Harlow was to provide a definitive pretrial adjudication, and what all of this Court's cases say is that if the purpose of a rule is to prevent a defendant from having to undergo the burdens of discovery and trial, as in the case of qualified immunity, that that should be resolved as quickly as possible at--
John Paul Stevens: Doesn't that argument prove too much? Doesn't every motion to dismiss or motion for summary judgment have that very purpose?
Paul M. Bator: --Well, we think there is a critical distinction. That is to say, it is the case that there are a lot of defenses which have as a point the purpose of ending... preventing an unmeritorious trial, and we do agree that if that is the only claim that could be made, that is, appeal now in order to prevent the defendant from having to go through an unmeritorious trial, that would be the case with the statute of limitations defense or a res judicata defense. But we think there is a critical distinction. The qualified immunity doctrine has an additional element. Qualified immunity treats... allows defendants to evade the burdens of discovery at trial not simply as a matter of fairness to the individual defendant. There is a matter of general public policy here. That is to create a general rule, a general regime in which officials at the time they are making decisions are not unduly chilled and constrained in decisionmaking by the prospect of burdensome litigation, unmeritorious litigation, and possible ruinous personal recovery. Now, as the justification for expedited appeal in the context of qualified immunity is that if appeal is postponed this general public policy will be eroded and compromised. Now, that claim cannot be made about defenses such as 12(b)(6) or statute of limitations or res judicata.
John Paul Stevens: It could be made for a lot of statute of limitations defenses. A lot of times you like to plan things without worrying about contingent liability.
Paul M. Bator: I think, Your Honor, that the sort of the central, central theme of distinction is that it is not enough for a defendant to say I want to come up now, because otherwise I will have to go through a trial, and yet I have a good defense. I shouldn't have to do it.
Byron R. White: It is more like double jeopardy.
Paul M. Bator: It is more like double jeopardy. It is more like legislative immunity.
Warren E. Burger: Is it not equally true of the absolute immunity, for example, that the judiciary has--
Paul M. Bator: It is like--
Warren E. Burger: --that they are to be relieved of the expense and the annoyance and distress of defending a lawsuit so that they can carry on their judicial duties?
Paul M. Bator: --That is to say the central theme here is, what is the effect of the system of appeal on the underlying policy of the rule. The Harlow rule with the absolute immunity rule with the double jeopardy rule has the special public purpose.
John Paul Stevens: Do you just make this argument when there are no disputes on the facts? You can have, I suppose, disputed fact questions on a qualified immunity case.
Paul M. Bator: Your Honor, if I am going to be precise, I would make the argument not only where there are no disputes, but only insofar as there are no disputes. That is to say, even if there is a dispute about the fact, the District Court must rule whether the plaintiff's version of the facts, taking the plaintiff's complaint as true, whether the facts as stated in the plaintiff's complaint constitute a violation of a clearly established constitutional rule, so that even though the defendant disputes the facts, there is still the question whether even on the plaintiff's facts, qualified immunity does or does not obtain, and that would be available as an issue of law. This is an absolutely conventional problem both for the District Court and the Court of Appeals of passing only on those issues which it is now entitled to pass on as a matter of law, but the whole point of Harlow was to make as many of these issues into issues of law as possible. That was the whole point, because as the Court said in Davis and Scherer, and this is the central point, an official can be unburdened from the chilling effect of unmeritorious litigation only if the qualified immunity issue is, and I think I am quoting the Court's language, is quickly settled. Now, we think expedited appeal is an adjunct to the policy of Harlow in getting a quick settlement of the issue of qualified immunity, and we are not saying that every qualified immunity issue should be settled on appeal, because there will be case where it depends entirely on what the defendant did, but the Court is conventionally used to separating out the question of whether as a matter of law just on the plaintiff's complaint or on the undisputed facts the defendant is or is not entitled. Now, I would like to just supplement what I also said to the Chief Justice. It isn't just the immunity cases that present this central theme. The state court cases that come up to this Court under 1257, Potts and Tornelo and Curry and Landau, they also share this common theme. There we have various constitutional defenses that are rejected by the state court. The state litigation is not over, but the court always says, if the point of the constitutional defense is to prevent the defendant from being hauled into the state court system, that is a very strong argument in favor of expedited appeal, and what the court said in Cox was exactly. This is a case where if the constitutional defense has merit, there shouldn't be a trial at all. Now, where that is the strong public policy, we think that expedited appeal simply is an adjunct to that public policy, and that is why there should be expedited appeal. I think that this case presents a vivid example of why if qualified immunity is going to work, expedited appeal really is a necessary adjunct. Here is a case where one would think that qualified immunity ought to be an overwhelmingly accepted proposition. I mean, here is a case where Attorney General Mitchell acted on a question that the Court had explicitly reserved in the Katz case, a question as to which members of this Court had expressed disagreement individually. Justice White, Justice Douglas had written about it. The lower court authority was overwhelmingly in favor of the government position. Twenty-five years of executive practice, the position was controversial. Now, out of this picture, to concoct a so-called clearly established constitutional right, we submit, is to make the Harlow rule a joke. If this is a clearly established constitutional rule, we think that the Harlow rule becomes an empty shell, simply an invitation retroactively to sort of invent clearly established rights out of bits and pieces of what is in fact very controversial and uncertain law. Now, if it is the consequence of really such a patently unsupportable ruling that then the defendant has to go through the whole affair of a very burdensome process of discovery and trial, then it seems to me Harlow becomes a very, very attenuated rule in its purpose. We would also like on behalf of the government, Your Honors, to urge the Court if it finds that this issue is an appealable issue, that it should turn to the qualified immunity issue and decide it for itself and not remand it to get the Third Circuit's--
Thurgood Marshall: Mr. Bator, does the speech and debate clause procedure have anything to do with this?
Paul M. Bator: --Well, Your Honor, this Court in one of its precedents... it does not explicitly have anything to do with this case, but one of this Court's precedents, the Helstoski case, holds that there should be an immediate appeal if a speech and debate clause defense is rejected. Your Honor, we think that the materials are at hand for a resolution of the qualified immunity issue in this Court now. We don't think that it is an easy question. We don't think a remand would serve much purpose. Indeed, if there is a remand and the Third Circuit holds that there is no qualified immunity, that would produce a clear conflict between it and the Ninth and the D.C. Circuits, so the question would just come back up again. We hope, therefore, that if the Court finds that the qualified immunity issue is properly here, that is, was properly on appeal, that it should decide it without a remand. I want to say a quick word about the contention of the government that in any event Attorney General Mitchell should be shielded by absolute immunity in this case, and our submission on this case comes really from this Court's own words in Harlow, where the Court said that aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest. Very briefly, our submission is this. In this extremely sensitive and difficult area, a regime of qualified immunity, no matter how you tailor it, nevertheless still leaves open a wide degree of debilitating exposure to high government officials making discretionary determinations. This is not a bush league affair. Every Attorney General since Bivens has been decided has been beleaguered and bedeviled by these actions. This is not a matter that is just Vietnam. This is not a matter that is just Watergate. Judge Barrow left office with dozens of damage actions against him personally. Attorney General Levy was here for a year and a half. He left with 33 lawsuits, of which at least a dozen totalled $1 million hanging over him in personal damage actions. Now, that is a regime which we are not attacking generally. What we are saying is that if the government is faced with the question of dealing with domestic violence, assassination, and terrorism, and that is no joke any longer either, that to put our Attorneys General under the constraint of this kind of litigation seems to us to exact too great a sacrifice from the country. It is not our submission that the Attorney General should be above the law. It is simply that among the cluster of remedies available, the cost of the personal damage action exacts too high a cost.
John Paul Stevens: Would that absolute immunity submission on the government's part encompass a violation of Title 3, do you suppose? Or are we still just talking about Bivens claims? Does your submission pertaining to absolute immunity go so far as to claim absolute immunity for a statutory violation?
Paul M. Bator: Your Honor, our absolute immunity claim is generally with respect to preventive action in the national security field. Now, the wiretap situation is much more complicated, because in 1978 the Congress repealed the provision of Title 3 which this Court in Keith said took national security taps out of Title 3. Now, that then subdivides into two branches. Foreign security wiretaps have a regime of their own now under the '78 Act. I think the government is faced with the situation that as it reads the statute, as a result of that repeal a wiretap, a domestic national security wiretap that was placed today, after the '78 was passed, would come under Title 3.
Speaker: And would need a warrant.
Paul M. Bator: And you would need a warrant. That is because of the change in scene, but Congress made it perfectly plain in '78 that it was not dealing retroactively, so that the wiretap situation is really sui generis now, and there may be a very problematical gap in the whole situation, because Title 3... there may be very serious domestic national security cases where we can't satisfy Title 3 because there isn't probable cause, and there seems to be no basis.
William J. Brennan, Jr.: Well, if there is a violation, I gather my brother Stevens is asking you would you urge absolute immunity?
Paul M. Bator: In the case of--
William J. Brennan, Jr.: Violations of Title--
Paul M. Bator: --Of Title 3?
William J. Brennan, Jr.: --Yes.
Paul M. Bator: No, Your Honor. No, we absolutely concede Congress's power here to take the situation over and to determine what should be done about it. I would like to reserve the rest of my time.
Warren E. Burger: Very well. Mr. Rudovsky.
David Rudovsky: Mr. Chief Justice, and may it please the Court, I would like to address the appealability issue first. Before I do, I do want to correct one statement with respect to the question of whether this in fact, and it is a threshold question that has never been decided in this case, as to whether in fact this was a national security tap, and whether the District Court decided that it was. At Page 59A of the record appendix to the petition for certiorari in the District Court opinion, the District Court made it clear that it was leaving open that question when it said, regardless of whether the Davidon wiretap was motivated by a legitimate national security concern or a good faith belief that there existed a national security concern as the defendants contend, or was an invasion of the privacy of political dissidence conducted under the guise of national security is a question we don't have to reach. The District Court merely assumed that it may have been a national security tap to reach the issue of qualified immunity, since that was a threshold issue. In other words, there has been no determination in this litigation that this was even--
Byron R. White: Well, that may be so. That just goes, however, to what we would do if we happened to agree with the government.
David Rudovsky: --That's correct. The matter would have to be remanded for that determination.
Byron R. White: It just goes to whether we would decide it here or remand. It hasn't got anything to do with appealability.
David Rudovsky: That's correct, and it also leads to the question of where there is a Title 3 claim, which I will get to later on in the argument. We think there is because of that reason. With respect to appealability--
John Paul Stevens: Before you leave the Title 3, you say this is a Title 3 case?
David Rudovsky: --Yes, there is, Your Honor, if in fact we are correct in asserting that there was no legitimate national security predicate for this tap. In fact, I don't think the government disputes that contention. That is to say, if this was a normal criminal investigation, and the tap was used to discover criminal activity and there was no legitimate national security concern, then you have a violation of Title 3, which was--
Byron R. White: And Keith is irrelevant.
David Rudovsky: --Keith is irrelevant, there is a damage remedy, and there is no qualified immunity or absolute immunity available under 2520. That is an important issue in this case.
John Paul Stevens: But I am still puzzled, because I was under the impression that the District Court had entered a judgment finding a dollar of nominal damages.
David Rudovsky: No, sir.
John Paul Stevens: Was I wrong?
David Rudovsky: This matter was appealed before the District Court could enter damages in this case. Indeed, there are no further proceedings to go to in the District Court. Let me address that matter, because it relates directly to appealability. The government's theory for appealability is to protect a defendant from the rigors of trial, from the distraction of trial, from the expenses of trial. In this case, as in many cases in which a qualified immunity defense is denied on purely legal grounds, that is, there is no factual dispute, summary judgment will also be entered for the plaintiff, because there is no question but that there was a constitutional right violated. The only question is, was the right clearly established. Here, liability is clearly in favor of the plaintiff, as the District Court held, once the qualified immunity defense is rejected. If that is true as in this case, there are no further proceedings in the District Court except a legal determination as to the amount of damages to be imposed. That is the rationale for the rule of absolute and qualified immunity so the government defendant does not have to face trail evaporates in this case because the only proceedings left in the District Court was a legal assessment of damages. This case would have been over with one further legal argument, and then you would have had final judgment and all the issues could have gone up on appeal. It is not only true in this case, but as I just stated, it will be true in a wide variety of qualified immunity cases. Once qualified immunity is denied for the defendant, even erroneously, summary judgment will probably be entered for the plaintiff. Liability is over. There is no more trial. There is no more discovery. There are no more proceedings that the defendant is subjected to. So, the entire rationale for the rule evaporates, and there is no reason for an interlocutory appeal. More fundamentally, the government's position with respect to why this should be appealed on an interlocutory basis is twofold. Number One, they say that Harlow cautioned District Courts to terminate insubstantial suits at an early time. The government says that's one important factor. And Number Two, they say, parsing out those cases in which there is a factual dispute, where there is only a legal issue involved, a District Court and an Appellate Court only has to apply settled legal objective standards in determining whether there is qualified immunity. That, as Justice Stevens suggested in a question to the government, is exactly true for pretrial motions, dispositive motions filed by defendants in civil cases, motions to dismiss based on failure to state a claim, motions for lack of jurisdiction, statutes of limitations which also will terminate "insubstantial suits against government defendants". That is, if the theory is that the government defendant is entitled to termination of a suit, of an insubstantial suit at an early stage, the rationale for allowing appeals from qualified immunity would have to be extended if principally done to virtually every pretrial motion that a government official can make, statute of limitations, motions to dismiss, improper venue, and the like. There is no principal distinction that you can draw between the reasons that those motions are filed to terminate insubstantial suits and the rationale behind qualified immunity. Indeed, it is most anomalous to allow the government to appeal a qualified immunity denial when the issue clearly is substantial. Nobody contends that Mr. Forsythe's rights were not violated. They were violated. This is a substantial case in the sense that his Fourth Amendment rights were violated. Compare that to a 12(b)(6) motion which may concern a totally frivolous claim. If the motion is made under 21(b)(6) and the District Court erroneously denies that motion, as insubstantial as that case may be, and as easy as it is to determine that it is insubstantial by applying objective legal standards, there is no appeal. The official, like every other civil litigant, would have to face trial. Now, to be sure, a District Court can certify the issue, and there are other ways that the matter can go up, but the fact is that when you think about the reason behind allowing appeal, at least the reason the government suggests in this case, it would have to apply to virtually every pretrial issue, and would seriously distort the basic structure, the basic accommodation of responsibilities between District Courts and the Court of Appeals on initial pretrial motions.
Warren E. Burger: In what kinds of cases are you addressing that, all lawsuits or lawsuits where there is an immunity question lurking?
David Rudovsky: The government is suggesting that where there is an insubstantial claim against a government defendant, then in order to protect them from the insubstantial claim at trial, they ought to be allowed to appeal the qualified immunity claim pretrial, but that, I am suggesting to the Court, is exactly the same for virtually every other pretrial motion, including a motion to dismiss which this Court has clearly held for over 50 years.
Warren E. Burger: Does the government... at least I took it that the government's argument on that point was limited to cases where there is an immunity question.
David Rudovsky: But I am suggesting--
Warren E. Burger: Not just to any lawsuit.
David Rudovsky: --I am suggesting to the Court that there was no distinction between a qualified immunity decision by a District Court in that regard, if the theory is to get rid of insubstantial suits, and all the other issues I have mentioned. There is a dramatic difference between the rationale behind absolute immunity, where you have allowed appeals, speech and debate, legislative absolute immunity, prosecutorial immunity, and qualified immunity. This Court in Harlow, while cautioning against letting insubstantial claims go to trial, on the other hand made it very clear that where the claim is substantial, the claim must go to trial, so that if there is a substantial claim, it goes to trial. By contrast, absolute immunity, no matter how substantial the claim, forecloses suit because of the status and the function of the particular defendant. You don't even look at the question of substantiality. It could be the most substantial suit in the world with respect to a violation of constitutional rights.
Warren E. Burger: Translate that for me if you will, counsel, in a speech or debate clause in a hypothetical case where a Senator has made a speech on the floor of the House, so there is no question about it, and then suit is brought. Now, apply these principles to that.
David Rudovsky: Right. In that case clearly because there is absolute immunity, because of the function of the legislator in that act, no suit can be brought and no trial can be had even if the underlying action against that legislator would state a violation of a constitutional right. By contrast, qualified immunity is only a qualified protection, and this Court in Harlow made it clear that substantial suits should go to trial. It is not a question of the status or function solely of the defendant. It is a question of whether the law was clearly established. Harlow provided government defendants with a substantial added protection. It put on the same footing qualified immunity as a pretrial issue as opposed to a trial issue, which it was before Harlow. By doing that, this Court surely did not intend that it should be distinguished from all other pretrial dispositive motions which have to await final judgment before they can be appealed. Now, there is a serious question if you allowed appealability in this case of the number of appeals that you would soon face in this area. One of the criteria under Cone for allowing an interlocutory appeal is that it only create a small class of cases. Well, it is now boilerplate language in virtually every answer to a complaint to a civil rights action, whether it be under Bivens or 1983 that the defendant is clothed with qualified immunity. The government seeks to avoid the impact that these cases would have on the Courts of Appeals by suggesting, well, we are only saying that where there is only a legal issue as opposed to factual disputes, those cases should go up. Well, we suggest that determination is not always very easy to make, that is, whether there is a factual dispute involved in the case. This case is one example, because there is a dispute about whether in fact there was a national security predicate. If you look carefully at the Kenyata decision in the Fifth Circuit... that was the case in which the Fifth Circuit ruled that these cases were not appealable... in that case the Fifth Circuit not only ruled that the appeal should not be allowed on an interlocutory basis, but because a critical issue in that case was whether the defendants acted with racial animus was a Fourteenth Amendment claim, the Court of Appeals specifically said in its opinion unanimously there is a factual dispute which would bar an appeal even if we allowed appeals generally in these cases. The government--
Sandra Day O'Connor: Mr. Rudovsky--
David Rudovsky: --Yes.
Sandra Day O'Connor: --Does the record have anything in it that would really establish a dispute about the purpose? What is in the record factually?
David Rudovsky: There is an enormous amount of information in the record with respect to the purpose. Let me point just to a couple of factors from our side which would create at least a factual dispute on that point. Number One, it is clear that while this case was being investigated, and it eventually led to criminal indictment, a Justice attorney, a Department of Justice attorney who was in charge of the investigation suggested that there be a Title 3 tap installed, that is that the government go to a court and get a warrant. When you look at the underlying papers that were sent by FBI Director Hoover to Attorney General Mitchell requesting the tap, what you find in a lot of those papers are questions about legitimate political activity. Furthermore, and this is essential both to that point and to the question of Title 3, the question of whether there is a national security basis or not has to be measured against the language in Title 3 which requires at that point that the government was going to claim a national security predicate, that they show that there was a plot to overthrow the government or that there was a clear and present danger to the existence of government. Now, there is no possible evidence here of a plot to overthrow the government, and the government doesn't make that claim, nor is there any evidence of a clear and present danger to government because the government was well informed of everything the so-called conspirators were planning to do by an informant. They knew that if anything was going to happen, it was not going to happen until six months after they got their information. They had the power of indictment to prevent any action, and in fact three months before any plans were supposed to come to fruition, Director Hoover, in testimony before Congress told the nation and it was over the front pages of all the newspapers that we have uncovered this supposed scheme to blow up underground heating tunnels and to kidnap Dr. Henry Kissinger. In other words, there was under the statutory language, and this is the point of Justice White's concurrence in Keith, no evidence of a clear and present danger. All of that certainly creates at a minimum a factual dispute as to whether this was a legitimate national security tap or whether it was done under the guise of national security to further a criminal investigation or just obtain information about political dissidents. So, we suggest when you look at this record, and we have tried to spell it out in our brief in brief, there are substantial facts that make this a contested issue. The government's claim... I want to go back to the Kenyata matter, because there the government, after the Court of Appeals said clearly there is a factual dispute, the government then petitioned for rehearing. The Fifth Circuit has denied that petition for rehearing, and the government has now asked time to petition for certiorari. Regardless of who is right in Kenyata, whether the government is right as to whether there is no factual dispute, or whether the Fifth Circuit is right as to whether there is a factual dispute, that demonstrates clearly that it is not very easy even after a full review of the record by a Court of Appeals to determine which issues are in dispute factually and which are not, and if this Court signals by allowing every qualified immunity claim to be appealed on an interlocutory basis to civil defendants in these case that they can delay trial, and this case has now been delayed six years because of interlocutory appeals, by merely filing an appeal from the denial of the claim and then having the Court of Appeals review the entire record, hear briefs and arguments, you are going to create an enormous load on the Courts of Appeals. The Third Circuit recognized that, the Fifth Circuit recognized that, and in a very important decision recently from the Seventh Circuit, Powers versus Leitner, which is cited in the government's reply brief that came down January 16th, that Court also explicates the reasons behind not allowing an interlocutory appeal in this area. My final point as to why the Cone doctrine simply is not compatible with the claim for interlocutory--
Byron R. White: Well, I suppose sooner or later the Court of Appeals is going to get the case anyway on the qualified immunity issue. If the plaintiffs win, these cases are going to be there anyway.
David Rudovsky: --And in this case the plaintiff has already won. This case was about to go to a hearing on damages one month after decision. There would have been a short argument. Damages would have been assessed either in nominal damages or damages directly under the Constitution, and the case would have gone to the Court of Appeals, and indeed, if Harlow was in effect--
Byron R. White: That may be so. I was just responding to your saying that would be an unusual number of appeals on qualified immunity.
David Rudovsky: --No, because a lot of cases beyond the qualified immunity decision may get settled. There may not be appeal at the end of that case. There are a lot of reasons that cases go eventually to trial, and defendants don't take appeals. The fact is that some cases that would otherwise go to the Court of Appeals would not if you don't allow an interlocutory appeal.
Harry A. Blackmun: I am still puzzled. I must be lawfully thick. You say the case is all over except for damages, but don't you still have to get a finding on the national security issue to know whether you prevail on Title 3 or not?
David Rudovsky: We do only if we eventually lose our claim under the Constitution or Bivens. That is, the damage assessment would probably be the same whether it is under the Constitution or the Bivens claim or the statutory claim.
John Paul Stevens: Where did I get... maybe I just read something. Wasn't there something in the papers that said he did enter a judgment for a dollar nominal damages?
David Rudovsky: No, what there is in the record is a stipulation submitted by the plaintiff that he did not suffer any pecuniary loss in this case. Our position on damages would be either Title 3 damages, which is $1,000 or $100 a day, and in this case it would be $1,000 because there are only three days of overhearings, or damages directly under the Constitution, the issue left open in Kerry versus Pipus, if a substantive constitutional protection is violated, whether we are entitled to an award of damages for the violation of a constitutional right itself. The suggestion about nominal damages was that since there was only... there is no pecuniary loss here, that is one option.
John Paul Stevens: The thing that troubles me... Justice Brennan adverted to it earlier. It seems to me that conceivably the analysis of the whole case might be different depending on whether it is a statutory case or a constitutional case, and we don't have a finding. You have told us, although your opponent said otherwise, you say there is no finding yet on the national security issue, so we don't know which it is.
David Rudovsky: To take it further... that is correct. We don't know under Title 3--
Byron R. White: Well, if that's correct, why should a District Court... why shouldn't a District Court be obligated to decide the case under a statute before it even reaches the constitutional issue?
David Rudovsky: --I have no disagreement with that, Justice White.
Byron R. White: Well, in order to invoke the statute, you have to have a phony national security claim.
David Rudovsky: Well, the standard that you would apply is certainly questionable whether it is primary purpose or whether it has to be phony.
Byron R. White: Well, all right.
David Rudovsky: But putting that aside--
Byron R. White: You have to decide the national security issue.
David Rudovsky: --Your Honor, we urged the District Court throughout this case to at least decide at the same time the Title 3 claim. It chose not to, perhaps because the Court in Keith reached the constitutional issue without addressing your concerns about the statute.
Byron R. White: Why should appellate courts... this goes to appealability, too, I suppose. Why should appellate courts be wrestling with qualified immunity issues in Bivens claims if there is a statutory possibility that there wouldn't be any Bivens immunity issue at all?
David Rudovsky: I am not suggesting that you should. That is how this case came up. In fact, I pointed out in my opposing brief on certiorari and in my brief here that to find no national security predicate moots all these issues. It moots appealability, it moots absolute immunity, and it moots qualified immunity. It is a straightforward application. But the case is here at this point on those issues. My final point on appealability is--
Byron R. White: Well--
David Rudovsky: --I'm sorry.
Byron R. White: --You say the case was over and you were about to have a trial on damages for a Bivens... on a Bivens basis, right?
David Rudovsky: Yes, sir.
Byron R. White: Well, I am not sure the case should even have gotten to that point until you decided whether there was a statutory issue.
David Rudovsky: It certainly, as this Court has cautioned District Courts to decide the statutory issue first--
Byron R. White: Well, it cautioned lawyers, too.
David Rudovsky: --Your Honor, we did urge both points before the District Court. We did not urge the District Court just to decide the constitutional issue. We urged both the statutory claim and the constitutional issue. We certainly did not say avoid the statutory claim. That is a major claim we would have in this case. My final point on appealability is a critical question under the Cone doctrine. Cone says you may not allow interlocutory appeals if the issue to be appealed is intertwined with the facts or the law of the case. That is, it has to be completely collateral to the merits of the case. When you analyze a qualified immunity claim, it is easy to see that the issue on qualified immunity involves an analysis similar to the issue of whether a right was violated in the first place, that is, the merits of the claim. You have to see what right is claimed by the plaintiff, what acts are alleged by the plaintiff that may result in a violation of that right, and then examine the history of that right in the courts to determine whether the law was clearly established. If that is the analysis to be filed in determining a qualified immunity claim, that is inextricably intertwined with the decision on the merits.
Sandra Day O'Connor: Well, I suppose a court in considering it would just assume that the allegations of the complaint are true and then look at the law. What is the matter with that?
David Rudovsky: There is certainly nothing wrong with that, Justice O'Connor.
Sandra Day O'Connor: Well, that is what the government says ought to be done here.
David Rudovsky: But when you do that and you determine what the status of the law was at the time of the violation, that is the same kind of analysis, we suggest, on the merits, and I will get to the merits in a minute, in determining whether there was a violation at all, so that regardless of whether that is an easy task or not an easy task... that is not my point. My point is--
Sandra Day O'Connor: In this case, it looks like a pretty easy task on the law, because it wasn't clearly established.
David Rudovsky: --We have a much different approach, obviously, than the government does on that question. I will turn to that now to demonstrate both the intertwining of these issues and the merits. Our position in the District Court in this litigation on the question of whether this law was clearly established rested on perhaps the most cardinal principle in our constitutional system, that is, a principle repeatedly announced by this Court in case after case that all searches and seizures conducted without a warrant are per se unconstitutional unless subject to an already articulated exception. These exceptions, this Court has warned, are jealously guarded and specifically limited. In 1968 and 1970, when this case was decided, there was no articulated exception for national security searches.
Sandra Day O'Connor: Didn't Keith itself subsequently say that was an undecided question and had been?
David Rudovsky: Keith said that, yes. This Court in Keith also said that we reject the government's request for a new exception to the Fourth Amendment. Our position is straightforward. Where a particular constitutional provision has been construed for the long period that the Fourth Amendment has, and this Court has announced over and over again that it is the "point" of the Fourth Amendment to prohibit searches without warrants and they are per se illegal. Until there is a recognized exception, a government official violates established law when he takes risks with an individual's rights are trying to create an exception through conduct that was clearly illegal. There was no basis by any court decision to indicate that there was an established exception to Fourth Amendment jurisprudence allowing searches without warrants based on national security concerns. Indeed, what if the Attorney General in 1970 had decided based on national security, the same kinds of concerns he had here, that he could break into people's houses, seize their papers, or arrest "subversives" without probable cause? Certainly there was nothing to support such an action in 1970, and we suggest there is no principal distinction between that kind of action and wiretapping, which is an even more intrusive invasion of privacy. The Attorney General also knew in 1970 that this Court over 150 years had rejected the mere incantatio of national security as an exception to constitutional limitations. You had done it in the steel seizure case where you rejected inherent executive power. You had done it in the First Amendment cases in Robell. You had done it across the board in rejecting government claims that merely because national security was involved, somehow a government official did not have to follow and was not restricted by the Constitution. Our point again is straightforward. There was no exception. The Attorney General was trying to create an entirely new exception to the Fourth Amendment. There was no basis for that. And indeed, when the government argues that Presidents had followed this procedure for some 25 years or perhaps longer, they don't say at this point that in fact most of those orders were based with respect to foreign intelligence taps, and there is a complete distinction between foreign intelligence and domestic national security, which is this case, nor do they point out that for 25 years executive officials tried to get Congress to authorize these kinds of taps without a warrant, and Congress repeatedly, as we point out in our brief, for 25 years rejected every request by the executive for the power to tap without a warrant in national security areas. Indeed, the law was so clear in 1970 that the Solicitor General advised the Attorney Generala that any claim to exemption from the Fourth Amendment for national security wiretaps would face a disaster in the Supreme Court. There was no basis for such a claim, and therefore it should not be made. If I may in my time remaining, I do want to address the claim to absolute immunity which we think should be emphatically rejected by this Court. Number One, the government simply does not address the strongest reason there is for rejecting absolute immunity. You have been informed that in 1978 Congress repealed Section 2511.3 of Title 3, which was their only claim at the time Keith was decided against liability for national security taps without a warrant. Congress by Section 2520 and by its action in 1978 abolished any claim to absolute immunity for a government official who wiretaps without a warrant and seriously restricted any qualified immunity or good faith claim. The government's claim for absolute immunity is that a government official should not face trial, should not even have to fear a complaint or trial if he acts without a warrant in the national security area. Congress has said you must face trial, you must pay damages. If the Attorney General tomorrow instituted a national security tap without a warrant, he would have to face trial under Title 3, under Section 2520, and if the facts were true, he would have to pay damages for that. So, the reason, the rationale suggested by the government for giving him absolute immunity completely fades away. He would have to face trial anyway on the Title 3 claim. How can they say that granting him absolute immunity on the Bivens claim protects him in any way? They simply don't come to terms with our argument in our brief on that point. They push it off in a footnote in theirs, but they don't answer it. Nor is there a suggestion that the 1978 repeal was not retroactive meaningful at all. It is not a question of retroactivity. There is nothing in this record that John Mitchell, when he instituted this tap, relied on established law of absolute immunity. It is not a question of absolute immunity. It is a question of policy which this Court says Congress has plenary authority over in determining the scope of immunities. Congress has said as a matter of policy when a government official wiretaps without a warrant, no matter who that official is, probably with the exception of the President, given Nixon and Fitzgerald, everybody else is liable in damages. He must face trial. Given that, what claim can there possibly be for absolute immunity from the constitutional claim? He has to face trial anyway. Even if that wasn't true, even if Congress had not made this decision, this Court has made quite clear that before a government official can be granted absolute immunity, he must show that the specific function for which he claims absolute immunity is so sensitive as to require the granting of absolute immunity. That is to say, you cannot make an undifferentiated claim to absolute immunity, as the government has, by saying all national security decisions ought to be subject to absolute immunity. The specific function in this case is wiretapping without a warrant. Their claim for absolute immunity is that we ought to be able to act in the national security area without overlooking by the courts. It is totally within our authority. Keith rejected that rationale absolutely. The point of Keith was that you cannot electronically surveil somebody without getting a court's prior authorization. If that is true, their claim for absolute immunity on policy grounds is totally defeated, because that is the only thing they can assert in this Court. Indeed, when you look at the definition of national security that Attorney General Mitchell was operating under in 1970, it points up again the danger, the literal danger of this broad and bold claim that the government makes to this Court. In 1970, according to Attorney General Mitchell, who testified in this case, national security interests were defined, as he said, as those interests which protect the national security, and they would range over very, very wide areas. He can't even define national security, and when he was asked in that deposition, well, were there any guidelines, he said there were no other guidelines for me to follow. It was my determination... indeed, he didn't even follow the guidelines in 2511.3, which restricted it to overthrow the government or clear and present danger. The government would have this Court grant the Attorney General absolute immunity on the mere incantation of a claim that national security was involved. That would go against the entire thrust of every one of this Court's opinions on absolute immunity which insist on a specific functional analysis, that is, an analysis that is tied directly and completely to the claim that is involved. We suggest that the claim to absolute immunity simply is frivolous in this case given what Congress has already decided, and that this Court should reject it emphatically.
Warren E. Burger: Do you have anything further, Mr. Bator?
Paul M. Bator: Your Honor, I have a few matters. The first is the... try to throw a little more light on the question of whether there is a Title 3 case here. As we understand it, the plaintiff says Title 3 applies here because this is not a national security wiretap. We think that on this record this Court should find on its own that this can only be characterized as a national security tap.
John Paul Stevens: But on that, Mr. Bator, then do you agree with your opponent that the District Court did not find--
Paul M. Bator: No, Your Honor, we think the District Court did find. There was a remand.
John Paul Stevens: --What do you do with the bottom of Page 59A then?
Paul M. Bator: If there was a remand to the District Court in this case, Your Honor, about... from the Court of Appeals the first time around for the District Court to make an inquiry into the purpose of this wiretap, the reason the Court of Appeals said that should be inquired into is to find out whether the purpose of the wiretap was connected with prosecutorial decisionmaking which would give Attorney General Mitchell prosecutorial absolute immunity. The District Court--
John Paul Stevens: Even if it was a political pretext?
Paul M. Bator: --Can I get to that in just a second, Your Honor?
John Paul Stevens: I am sorry. Yes.
Paul M. Bator: The District Court inquired into the question whether the purpose was to gather evidence for prosecution or was primarily preventive. Now, the District Court didn't label that national security. The District Court said, we find that the purpose of these wiretaps was to prevent the blowing up of the tunnel, and to prevent the kidnapping of Kissinger. On Page 57A the Court says the purpose of the wiretap was prevention, not prosecution. Now, Judge Van Ardsdel, in dealing with this very same wiretap in the companion case, the Burkhart case, had to make the same inquiry and also said, whatever may be the proper definition of a national security wiretap, both the Davidon and the Black Panther Party wiretaps certainly qualify as a national security wiretap. That is on Page 150A of the appendix to the petition. Now, what the District Court then had to deal with was the assertion that even though on the objective record that was the purpose of the wiretap, they wanted to go into a proceeding in which Attorney General Mitchell would be cross examined on his subjective motivation, that he himself was being governed by a malicious purpose of political retaliation. Now, I think the Harlow case stands for the proposition that a mere allegation that a governmental conduct which on the objective record has substantial support as a legitimate governmental position, that you cannot in connection with qualified immunity go into the question that nevertheless there is some hidden malicious motive. And what the plaintiff does here, Your Honor, I think, is to conjure up what I think is an advantageous and irrelevant under Harlow allegation that even though the objective facts are as the District Court found them, there ought to be a further inquiry into whether those, the objective justification was tainted by a hidden malicious motive. Now, that, we say, was excluded by Harlow. I want to also add to my answer to Justice Brennan on 2520, the reason I fudged on that, Justice Brennan, is because the Court of Appeals in this circuit, the Court of Appeals for the District of Columbia, did hold in the Zweibaum litigation, which is the Jewish Defense League litigation, that, and we are now talking about pre-'78 wiretaps, it held that even if Title 3 applies, that is, even if Keith doesn't take national security wiretaps out from Title 3, it nevertheless equitable principles would compel the conclusion that qualified immunity should be read into the Title 3 case. That is to say that a broader defense than 2520 ought to be accorded on equitable grounds because the question of the applicability of Title 3 was itself so highly uncertain and so conjectural. So it was really a fairness problem.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.


Archibald Cox: Mr. Chief Justice, just before the recess, I was attempting to emphasize the judicial functions perform by the Court of Claims and particularly sought to call attention to the fact that at least in some instances, it seems to perform judicial duties which must be performed by a court. And I cited the determination of just compensation in the case of the taking is in illustration. I would add to that a second category of business which results from the fact that the Court of Claims has jurisdiction not only of suits against the Government but also of not only set-offs but counterclaims against as those citizens or other person who are plaintiffs in the Court of Claims. And without attempting to particularize, it seems to me that there could be little doubt not only that this is the kind of business which is the daily grist of courts but that undoubtedly some of those counterclaims would involve claims by the United States against the citizen which could not be adjudicated finally outside a court. And we think this emphasizes again that this Court's business is in truth the kind of business which was thought of as part of the judicial power of the United States of the kind of business that the court normally dealt with and was equipped to deal with. Hereto, I think when other distinction is important and then I plan to drop this point. There was well recognized that the time the Constitution was adapted and in the earlier English Law and later in our law, a difference between sovereign immunity and the existence of a legal cause of action, if you will, against the Government. And what Court of Claims has been set up to deal with is not the distribution of large gist but the adjudication of these causes of action against the Government of the kind of cause of action that was well-known and could be maintained where ever the sovereign choose waive it's immunity not only prior to the adoption of the Constitution but in this cou -- in England, but in this country about that time and in various types of cases afterwards that points develop with a history in our brief. And I simply allude to adhere as further evidence that controversies to which the United States may be a party as a matter of recognized usage at the time the Constitution was adopted involved not only controversies in which the United States might be the moving party but controversies in which the United States would be defendant. And in holding the contrary, it seems to us that the Williams case is wrong not only as a matter of logic but also as a matter of history.
Earl Warren: Let's assume -- if your argument being true to saying that Congress has imposed (Inaudible)
Archibald Cox: No, sir. It does not. I think not. I was just coming to the --
Earl Warren: Am I correct? Am I correct in (Inaudible) if I may say this true (Inaudible) to say that any respective court that Congress sets up (Inaudible) that it may impose upon those courts any constitutional law (Inaudible) to which claims (Inaudible) whether in fact biased?
Archibald Cox: Well, we do -- we do make that point. We do argue in our brief and I aser -- submit here that in the case of special courts set up that the seat of the Government with a limited jurisdiction that Congress may as held in the O'Donoghue case call upon them to perform non -- not strictly judicial duties. I don't think our case depends on that. And I think the Court of Claims can be held to be a constitutional court without reaching that conclusion. But the answer to Your Honor is yes, we do make that argument. May I suggest that, because I was just going to develop this directly, that I try to develop affirmatively where we do stand on this question. And then if I haven't answered all the questions to Your Honors' mind, I'll try to do my best. I was just about to say that what we have here is a tribunal which is a court like any Article III court or except in its place in the hierarchy like this Court in respect to all its business, in respect to all its powers, in respect to the tenure and compensation of its judges, in every respect except for this fringe congressional reference jurisdiction. And if it were not for that, it would seem to me there was really nothing to be arguing about here. The question then becomes how does this affect the case. Well, I would say first, Mr. Chief Justice, that just as the existence of this congressional reference jurisdiction has never been thought to prevent all the rest of the Court of Claims business from being judicial and justiciable and from being cases and controversies such as this Court could review. So it would seem to me that the existence of this fringed non-judicial duties should not be held to affect the quality of the judges' tenure that they have been set up predominantly for the purpose of exercising judicial power the Congress has sought in everyway that it could to give them constitutional tenure because it thought it was appropriate to the dispatch of the judicial business because, and it mentioned this specifically in 1953. It would make them available for assignment to other courts and finally because it declared this was to be a constitutional court. So I would submit that even if these other duties have been given that this should not take away from the judges their constitutional status. And I point out that that was the holding in the O'Donoghue case although since we are asking the Court to reexamine many authorities in this field. I think the reexamination necessarily involves the O'Donoghue case, too. Now, I would think that under --
Potter Stewart: What would be -- what would be your point Mr. Solicitor General that the -- the judges could simply decline if they wanted to to perform their --
Archibald Cox: Well --
Potter Stewart: congressional reference function?
Archibald Cox: My -- my argument up to this point leaves hanging the question what about this congressional reference function. And I would say first that I don't think there is any occasion to enter a part and inquiry into it, because the -- I do think that one could uphold the status of the judges without going into it. Still, it is here and I ought to go on.
Felix Frankfurter: What do you want to --
Archibald Cox: I was going to answer Justice Stewart's question. There are three possible answers, it seems to me. The first is that being a special tribunal and not like the normal courts this district and circuit courts that this fringed that the rule in Hayburn's Case does not apply in this fringe jurisdiction can be added.
Potter Stewart: Because it's in the District of Columbia or what?
Archibald Cox: Or because it is a primarily. Because it is a special court which doesn't have the general jurisdiction, the adding of the non-judicial business therefore seems to me not to involve all the problems of overloading the court and the risk of destroying its independence which would be involved if you are dealing with the District Court and the Courts of Appeals. And this is not after all a rule Hayb -- Hayburn's case is not a rule which is written into the Constitution. It's a matter of preserving the independence of the judiciary. But I think there's room for recognition of some questions of degree. The -- the ten --
Felix Frankfurter: The tenure part.
Archibald Cox: I was just going to say, the tenure part clearly is, and I think a verification also in the Constitution, is that you can't take all of what was regarded as judicial business in 1789 and give it to people who do not have the tenure.
Felix Frankfurter: (Inaudible)
Archibald Cox: Yes.
Felix Frankfurter: (Inaudible)
Archibald Cox: It -- well, the second possible conclusion is that the judges may not be required to do this but just as judges have from time to time all through history in this country, voluntarily taken on additional responsibility. So the judges of the Court of Claims may voluntarily take on this responsibility. Finally, there would be of course Mr. Justice Stewart that the possible conclusion that this part of the Court of Claims jurisdiction must be excise. I would make just one point with -- with respect to that. I think that Congress has attempted to make it a constitutional court. It has also attempted to give them this jurisdiction. Now, if you say you can't have both, it is quite clear to me that the primary intention of this difficulty was pointed out to the Congress hypothetically. The primary intention was to make them a constitutional court. And I would submit that if the Court should feel that it had to face this question of the congressional reference jurisdiction and if it felt it could not be given even to the specialized court and then it should give effect to the primary intention of Congress as it has declared it and the rule that the congressional reference jurisdiction could not be added to a constitutional court that if Congress wanted a tribunal that could do both, it would have to change its legislation around. But I think really the point which I can see the being most significant is the one I have made first to with that the -- had the -- that the status of the judges who have the judicial power to exercise is -- is clear and that that is the only question involved here and that the effect of this once a year congressional reference shouldn't alter their constitutional status or Judge Madden's power to sit therefore as a constitutional judge in the Second Circuit.
Felix Frankfurter: (Inaudible)
Archibald Cox: I wasn't --
Felix Frankfurter: (Inaudible)
Archibald Cox: No, no, what I said -- what I meant to say Your Honor was that I'm not asking the Court to reconsider anything in O'Donoghue. And I don't think my argument requires me to. I said I suggested that for me simply to say O'Donoghue holds you can add non-judicial duties to some Article III Judges was hardly an end of the matter because I was asking the Court to reexamine two other cases that hardly laid my mouth to say well, as to that one, it's a binding precedent but that was all I was saying.
Felix Frankfurter: (Inaudible)
Archibald Cox: I don't quarrel with anything in O'Donoghue.
Earl Warren: Mr. Shea.
Francis M. Shea: Mr. Chief Justice, may it please the Court. Mr. Justice Stewart may I add just a footnote to under mark the Solicitor General on his last point. The Court of Claims itself and in rescind considered that the exercise of the congressional reference power was as commissioners and so stated.
Earl Warren: As what (Inaudible)
Francis M. Shea: Has commissioners. But they exercised their powers as commissioners and Judge Madden when the 1953 Act was before the Congress indicated to the appropriate committee that they might well no longer be in a position to require the Court to exercise that jurisdiction although it was indicated that as a voluntary matter they would exercise it. And I suppose, since Hayburn's case itself, the -- as the Solicitor General has pointed out for judges to take on the three of the judges, at least in Hayburn's case Jay, Duane and Cushing, indicated that they could take on that function which was non-judicial as commissioners.
Potter Stewart: As a matter of grace or (Voice Overlap) --
Francis M. Shea: And it's a matter of grace. It couldn't be required to. Now, if the Court please, I wonder if in --
Felix Frankfurter: That's the trouble in trying that under the federal (Inaudible)
Francis M. Shea: And five of the judges who sat on and told them they had dispute could have declined. Now, I wonder if I might possibly, in my limited time, be most hopeful to the Court if I could seek some points of reference which might be considered still fixed in this maze of complexity. In the first place, it seems to me reasonably clear that the framers of the Constitution were in cant and anxious to be certain that those exercising judicial power were independent and could not be put under the coercion by the other two branches of the Government. They were thinking of judicial power, I suppose, in the traditional sense. Certainly, they could not have had in mind the kind of subtleties which we had been discussing today. If they were thinking in terms of the jurisdiction customarily exercised by the Courts in Westminster, they were competent lawyers there whom I assume knew that going back as far as the 14th Century the Courts of Westminster to with Court of Chancery and the King's Bench had exercised just the kind of jurisdiction that is exercised by the Court of Claims, the petition of right, monstrans de droit, the traverses of office.
Earl Warren: What was that?
Francis M. Shea: Traverses of office. In short, they were anxious to protect, it seems to me, the exercise of the kind of judicial power that the Court of Claims is exercising from -- from the coercion or influence of the other departments of the Government. And I would suppose that the Court of Claims needs the protection as much as any court in the judicial system that is likely to come into conflict with the Congress and the Executive Department. It's not -- it's passing on large problems involving large sums of money but it's also passing on critical constitutional rights involving the Bill of Rights problems, involving civil rights problems. There was before this Court in O'Donoghue the question of the independence of the judiciary coming up in the in the guise of the Pahy case. In the Lovett case, the question of the bill of attainder; there are recently been before the Court questions of whether or not a member of the Armed Forces in a courts martial case is entitled to the protection of the Sixth Amendment for instance. So that I would suppose that this was the kind of exercise of judicial power that the framers of the Constitution wanted to protect against the coercion of the other departments and that this Court would not deny that protection unless it's compelled by persuasive argument that the Constitution would not permit it. Now, let me go on to one or two other points that I should hope were still fixed points of reference. I would suppose that there was no contest about the proposition that the Constitution doesn't invest jurisdiction in any court except this. I suppose that it is -- it is clear that what the Constitution does is authorizing power the Congress and give the Congress discretion to create inferior courts to ordain and establish inferior courts. And I would have thought before the arguments in the Lurk case and this that there had never been any question that Congress might give as much or as little of the powers specified in the second section of Article III as it chose to give to such a court and that have ordained and established a court under Article III and give it nothing but the Tucker Act jurisdiction there'd be no doubt that it could established that as an Article III court.
Potter Stewart: Would there be --
Francis M. Shea: I --
Potter Stewart: -- would there be doubt if it did do that?
Francis M. Shea: Would there be what?
Potter Stewart: (Inaudible) if it did do that. If it gave -- if it set up a tribunal and denominated it a court and gave it only Tucker Act jurisdiction, would Congress have the power to -- to provide that the members of that tribunal should have anything else except life tenure?
Francis M. Shea: I should have thought that there was not the slightest doubt about that into argument advance today that Congress ordained and established an inferior tribunal and gave it only federal question jurisdiction. Indeed, I -- I have supposed that -- that the argument that in the Constitutional Convention was how much of this going to be taken, how much can Congress take away from the State. But it didn't have to take it away. I would have thought that clear, Your Honor. It seems to me that from the time of what is it Cary against Curtis right straight through the Lockerty case which was decided after Williams and -- and Bakelite that no doubt had ever been raised about this issue.
Potter Stewart: Well Mr. Shea, what about the Municipal Court of the District of Columbia?
Francis M. Shea: The Municipal Court of the District of Columbia, I think, is to be explained in terms of an exception. I think that -- that the Canter case was based on a reasonable -- a reasonable position and that is that the Congress in the territories may exercise both the national power and the power of the state legislature and can set up and that's all that was involved in the Canter that they could set up a government for the -- for the territory --
Potter Stewart: As I understand --
Francis M. Shea: -- and they have to set up legislature courts and so forth.
Potter Stewart: The national parts, their commissioners will agree on judicial power I suppose.
Francis M. Shea: Well --
Potter Stewart: I mean that couldn't constitutionally be.
Francis M. Shea: I -- it -- it seems to me that in the national part, in the territory which is not a part of the nation. What Canter says and it seems to me --
William J. Brennan, Jr.: But I think what Justice Stewart has reference to -- I don't know the fact in which you're -- you're suggesting.
Francis M. Shea: Well I'm not sure --
William J. Brennan, Jr.: What about (Voice Overlap) --
Francis M. Shea: I'm -- I'm not sure that I'm certainly familiar with it but I suppose territory -- where there has been taken out of -- of -- of the State's jurisdiction forth et cetera, et cetera that they're in a situation of a territory.
Felix Frankfurter: As I understand your position that Congress in concurring that both judicial power with reference to (Inaudible) United States has (Inaudible)
Francis M. Shea: This --
Felix Frankfurter: In what (Inaudible)
Francis M. Shea: I had thought that there was no doubt --
Felix Frankfurter: About what?
Francis M. Shea: -- about the proposition that Congress could ordain and establish an inferior court under Article III and give it only a federal question jurisdiction that is that they didn't have to give it -- they didn't -- don't have to give it that --
Earl Warren: Yes, but when -- but I thought --
Felix Frankfurter: Assuming not Congress should give all jurisdictions that the Court of Claims has with reference to the claims in dispute, that you have a tribunal make it (Inaudible) at the same time, there's no (Inaudible)
Francis M. Shea: I would have thought so, Your Honor. It seems to be that if they can do that --
Felix Frankfurter: (Inaudible)
Francis M. Shea: I would have thought that -- that it could not. I would have thought that if they could do that, it seems to me that if they can do that, they can just destroy the federal --
Felix Frankfurter: (Inaudible)
Francis M. Shea: -- system.
Felix Frankfurter: (Inaudible) Secretary of Commerce?
Francis M. Shea: Can confer it on the Secretary of Commerce. Yes, Your Honor. But may I -- may I suggest this in regard to that.
Felix Frankfurter: (Inaudible) permit your free with the Secretary of Commerce.
Francis M. Shea: No doubt about that.
Felix Frankfurter: (Inaudible)
Francis M. Shea: No time to for update, Your Honor.
Felix Frankfurter: Can you define what the administrative (Inaudible) in determining the claim?
Francis M. Shea: May I suggest this to Your Honor as a response I'm trying to make to the question, I would have thought that -- that -- that one of the fixed points was while to be sure administrative agencies may deal with matters that are within Section 2 of Article III that if Congress intend, if Congress puts that power in a judicial tribunal, the judicial tribunal --
Felix Frankfurter: In fact you're burning the whole question.
Francis M. Shea: Well --
Felix Frankfurter: I understand (Inaudible) is that Congress could if to a known judicial body, the same must follow that the fact on claims in the United States subject to the same kind of so called judicial procedure not entirely to be -- to be uphold in order to fix that. If it good to itself therefore those -- you are to give it to a non-judicial body.
Francis M. Shea: Well, I think it can give to a non-judicial body.
Felix Frankfurter: Well but if (Voice Overlap) --
Francis M. Shea: I have no -- I have no difference about that
Felix Frankfurter: (Inaudible)
Francis M. Shea: Well, that certainly was held in Canter. If it isn't -- if it doesn't give him life tenure, it's a non-judicial body but if -- if Congress attempts, if Congress sets up not in territories but if it sets up within the nation a judicial tribunal, now you -- you've raised the question as to what is judicial tribunal. But in any event, Your Honor --
Felix Frankfurter: The adjudication of claims against the United States which should be to recognized at all or itself may dispose of the legislation if not the case within (Inaudible) judicial power (Inaudible) what was necessarily judicial power? Congress then, as I understand it deposit with the Secretary of Commerce impediment of claims between Joe and Smith which was a staple of Westminster jurisdiction but since claim against the sovereign were not the same with Westminster jurisdictions, he can dispose of it in anyone (Inaudible)
Francis M. Shea: Well, the staple loop Westminster Hall jurisdiction, Westminster Hall certainly had a lot of jurisdiction. Under the petition of right that and the other --
Felix Frankfurter: You're getting it to well known very staple in which legal problems when we talk about the commissioner right. The Checker Court and what they are. That was not a staple suits against the sovereign enforce it in the Court or certainly nothing except by the devious way petitioner bribed the staple of Westminster jurisdiction.
Francis M. Shea: Well, all I can say is that it exercised the great deal of jurisdiction under the various --
Felix Frankfurter: -- (Voice Overlap) -- just as the Court of Claims in Westminster but I don't see why you take the burden of it at all and say Congress couldn't have a non-judicial body disposed of the claims against the Government.
Francis M. Shea: Well Your Honor, certainly this Court has repeatedly stated insofar as I know except for the footnote in -- in Mr. Chief Justice Vinson in the Tide -- Tidewater case has constantly asserted that -- that the judicial power of Article III in the nation, not in the territories, but in the nation can only be invested in Article III courts. But in any event, as you point out, I don't have to carry that burden on whether --
Earl Warren: (Inaudible)
Francis M. Shea: I'm sorry.
Earl Warren: (Inaudible)
Francis M. Shea: Well, may I only say this in conclusion, Your Honor. It does seem to me that -- that there are some fix points of reference left. The question presented is not whether Congress could put this in Article I court so called. The question is have they ordained and established an Article III court. Certainly, the jurisdiction as the Solicitor General has pointed out is jurisdiction that falls within the definition of those items in Section 2 of Article III. Can Congress -- why can't Congress ordain and establish an Article III court to exercise exclusively apart from these congressional reference cases exclusively power jurisdiction defined in the section -- second section of Article II? At least it is not to be set that there was a reasonable basis for Congress who had done everything they can to do this. They have a reasonable basis on which to do it even if arguments can be made to the country and that where Congress has done everything it can to exercise the power clearly invested in it. Why shouldn't the normal deference of this Court to the exercise of congressional power unless clearly it can't be done allow Congress to exercise the power given to it to ordain and establish such a court to exercise jurisdiction that could clearly be given. Thank you Your Honor.
Earl Warren: I want to ask (Inaudible) this traditional congressional reference power to the Court of Claims?
Francis M. Shea: Well now, I take it Your Honor is saying why can't they require them to do it.
Earl Warren: (Inaudible)
Francis M. Shea: Or -- or do you mean could -- could the courts throw up the country exercise?
Earl Warren: Might (Inaudible) the courts -- the courts of what they have done in the -- with the Court of Claims?
Francis M. Shea: Well, I would -- it seems to me the solidest ground, Your Honor. As you know, distinction has been made. The Solicitor General has -- has made it that on the basis of the O'Donoghue case. The specialized tribunal in the District of Columbia at least could be invested with power --
Earl Warren: That is a specific -- specific congressional power.
Francis M. Shea: Well, but what that case says is that the Article III while it's an Article III court, nevertheless, it may under Article I be given supplementary powers. Now, my own feeling is --
Earl Warren: But the Government's had another jurisdiction under the powers of the Congress.
Francis M. Shea: Yes, but I think O'Donoghue says Arti -- the court was created under Article III. It exercised Article III power but as Congress has plenary power of the district, it may exercise its Article I power to add some powers. Now, and -- and -- but this couldn't be done and said O'Donoghue in the States. Now, so far as the Court of Claims is concerned, I think the solidest ground to stand is the ground that Court of Claims itself stood on and in rescind. And so far as that's concerned Your Honors, so long as -- as -- it's not imposing the jurisdiction on the District Courts or the -- or the -- or the Circuit Courts of Appeal. I supposed since the Ferreira case, so long as it's being done as a commissioner is an act of grace on the part of the court, this doesn't -- this doesn't threaten the court system. And I -- I would feel that that was a -- a solidest ground to stand on in regard to that -- to that jurisdiction. Thank you, Your Honor.
Earl Warren: Mr. Robb.
Roger Robb: Mr. Chief Justice and members of the Court, I would first like to direct my attention to a -- statements that have been made with respect to the timeliness of the raising of the question as to the capacity of Judge Madden to sit in the United States Court of Appeals for the Second Circuit. In the first place, Mr. Cox in talking about the timeliness of raising this jurisdictional question stated that if it were a matter of jurisdiction relating to the subject matter of the lawsuit that he agreed, as I recall his statement, that that jurisdictional question could be raised at any time. I say with equal emphasis that if there'd be a constitutional lack of capacity on the part of Judge Madden to sit in an Article III court that that jurisdictional objection may likewise be raised at any time. Now in fact, the judges of the Court of Claims when we filed a petition for certiorari in this Court, a petition was also filed by the judges of that court as amici curiae in support of the petition filed by the petitioner here. And I would like briefly to call to Your Honors attention the statements contained on page 5 of that amici curiae brief in support of our petition. Our petitioner apparently did not bring to the attention of the Court of Appeals the objection now made to Judge Madden's participation in the hearing and decision of that court. But as Mr. Justice Frankfurter noted in his dissent on other grounds in the Lurk case, the question raised by the petitioner is jurisdictional in nature. Such a jurisdictional point may be raised at any time. See McGrath against Kristensen which one of the cases upon which we rely. If Judge Madden, and I'm still quoting from this brief of the judges of the Court of Claims, if Judge Madden because of constitutional prohibitions was not competent to serve, as petitioner contends, the judgment in which he participated is null and void. That is the end of my quote and the cited number of case upon which we rely and support of our position that we may raised this jurisdictional question at any time particularly during the course of these proceedings and particularly during the pendency of it and after this petition before this Court. And in -- thirdly in reply to that contention made by the opposition, I would like to call Your Honors' attention the ruling of this Court in the case of Lamar against the United States decided in 1960 where a Christian was presented to the Court as to the constitutionality of making an assignment of one circuit judge to another circuit. The case was tried. It's a criminal case. It was tried and went on appeal. It came to this Court. And there was a petition -- petition for certiorari to this Court I should say. And I think there were further proceedings taken in this Court and I would like to very, very briefly to note that this Court in a unanimous opinion held that the question they raised was properly and fully considered and was passed upon by this Court. We submit that authority along with the case of Donegan against Dyson which I have also quoted in my brief as authority to the effect that this Court has on numerous occasions or at least on a number of occasions considered that the making of application upon the hearing of a petition in this Court was timely. At least, no objection -- no objection was made this court undertook to hear and determine the particular objection which was raised as to the jurisdiction. Now, reference had been made to Section 1492 of Title 28 of the United States Code which grants to the Court of Claims the power and the function to pass on these congressional reference cases. At the time of the enactment of the Act of 1953 which undertook -- which was an undertaking by Congress to describe the Court of Claims as the -- an Article III court. Congress eliminated from Title 28 Chapter 91 the reference to the departmental reference cases which were to the heads of various departments. They eliminated that provision by the same Act but retain this congressional reference case. Now, it is interesting to note that, and I would like to call to Your Honors attention the remarks made by Senator Gore at the time of the hearings held with respect to this 1953 Legislation and I referred to a footnote on page 12 of the petitioner's reply brief, in which Senator Gore stated, “If in the future, judges of the Court of Claims should refused to act upon congressional reference cases on the ground that they are not within the proper scope of jurisdiction of a constitutional court. I suppose a simple remedy will be for Congress to redesignate the Court of Claims as a legislative court.” I refer that to Your Honors to indicate that Congress in describing this court as an Article III court has the feeling apparently that it may redesignate the court at anytime it sees fit to serve its purposes. I want to thank you.
Hugo L. Black: (Inaudible)
Roger Robb: I do sir.
Hugo L. Black: (Inaudible)
Roger Robb: I do except with respect to cases against the sovereign.
Hugo L. Black: (Inaudible)
Roger Robb: That is true but the sovereign cannot be sued without the sovereign's consent and may lay every condition it sees fit to lay upon.
Hugo L. Black: (Inaudible)
Roger Robb: That is correct, sir.
Hugo L. Black: Sovereign has implied that was an Article III court but (Inaudible)
Roger Robb: I would say yes. I think sovereign can lay any conditions --
Hugo L. Black: (Inaudible) of this?
Roger Robb: Including conditions of the type that Your Honor --
Hugo L. Black: (Inaudible)
Roger Robb: -- refers to.
Hugo L. Black: -- many claims, there can only (Inaudible)
Roger Robb: I'm afraid the only answer that I can make to that is that the sovereign can lay down any conditions that it sees fit to lay down with respect to being sued and not being sued.
Hugo L. Black: (Inaudible) you are willing what is (Inaudible)
Roger Robb: I'd say yes.
Potter Stewart: That was done under the Federal Tort Claims Act, was it not?
Hugo L. Black: (Inaudible)
Roger Robb: I say yes.
Felix Frankfurter: That's the answer to Justice Stewart's (Inaudible) unless the federal court, those courts were unconstitutional.
Roger Robb: That's right.
Felix Frankfurter: What we did this morning is about jurisdiction.
Roger Robb: Thank you, sir.