Jefferson v. City of Tarrant

PETITIONER:Jefferson, Individually And As Administrator Of The Estate Of Jefferson, Deceased, et al.
RESPONDENT:City of Tarrant
LOCATION:United States Department of State

DOCKET NO.: 96-957
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Supreme Court of Alabama

CITATION: 522 US 75 (1997)
ARGUED: Nov 04, 1997
DECIDED: Dec 09, 1997

ADVOCATES:
John G. Roberts, Jr. – for respondent
Dennis G. Pantazis – on behalf of the Petitioners

Facts of the case

Alberta Jefferson, an African American woman, died as a result of a fire in her home in the city of Tarrant, Alabama. Her survivors filed multiple complaints against Tarrant City: two under state law and two under federal law. The state law complaints alleged wrongful death and the common-law tort of outrage, while the two federal claims brought under 42 U.S.C. Section 1983 alleged that Ms. Jefferson’s death was the direct result of indifference and racial discrimination in violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The City claimed that the complaints were governed by Alabama’s Wrongful Death Act, which the Alabama Supreme Court had interpreted to provide only for punitive damages. The City then argued that it could not be sued under Section 1983 because the Supreme Court had ruled that Section 1983 plaintiffs are not entitled to sue a municipality for punitive damages.

The state court ruled in favor of Jefferson, but the Alabama Supreme Court reversed and sent the case back to the state court after determining that the state Act did in fact govern the claims. The Supreme Court agreed to consider the federal complaints. The City contended that the Court lacked jurisdiction over the Alabama Supreme Court’s order because the case was not yet final.

Question

Are federal claims under 42 U.S.C. Section 1983 governed by the Alabama Wrongful Death Act?

William H. Rehnquist:

We’ll hear argument now in Number 96-957, Melvin Jefferson v. The City of Tarrant, Alabama.

Mr. Pantazis.

Dennis G. Pantazis:

Mr. Chief Justice, and may it please the Court:

The supreme court of Alabama has held there is no section 42 U.S.C. section 1983 claim for a cause of action if the victim dies from the perpetration of the act.

The issue before this Court is, when the decedent’s death results from the deprivation of a Federal right occurring in Alabama, does the Wrongful Death Act govern the recovery of the decedent’s estate?

David H. Souter:

Are you going to address the jurisdictional issue?

Dennis G. Pantazis:

I will, if… Your Honor.

David H. Souter:

I think you should.

Dennis G. Pantazis:

The Federal issue has been totally adjudicated by the supreme court of Alabama, and under the Cox case this Court has held an exception, or held that jurisdiction is found where there’s no further Federal issue to be adjudicated and cannot be adjudicated at the lower court.

Ruth Bader Ginsburg:

But the Federal issue could become academic if you go back and on the State claim there’s a determination that there was no wrongful conduct on the part of the city.

Dennis G. Pantazis:

Under… in Cox it’s my understanding, Your Honor, is that the Court held this exception: where the Federal claim has been finally decided and with further proceeding on the merits in the State court to come, but that which later review of the Federal issue cannot be had, whatever the ultimate outcome of the case.

That was the third exception.

Ruth Bader Ginsburg:

But here you could conceivably, if you should prevail on the State claim you could then bring up that you should also have had a 1983 claim.

Dennis G. Pantazis:

I don’t believe so.

I think the supreme court of Alabama has already adjudicated that in this particular case.

Ruth Bader Ginsburg:

And they would then say, it’s law of the case, and so we deny… in dealing with the appeal you would have a final disposition, and you could come here again.

In that respect it’s different from Cox v. Cohn.

Dennis G. Pantazis:

I think it is different, but I think the rational of Cox is, looking at this particular issue, this Court… the Alabama supreme court has adjudicated it to the fullest degree under the Federal issue.

Antonin Scalia:

The issue isn’t whether they have adjudicated it finally and will not come back to it.

You’re quite right that they wouldn’t come back to it.

The issue is whether we could pick it up later on, after they simply say, it’s law of the case, there is no Federal cause of action.

At that point you have a final judgment, the whole thing has been dismissed, and you could come here.

Is there some reason why you couldn’t come here?

Dennis G. Pantazis:

It would require duplication in trying the case twice, and I think that’s part of the rationale that Cox looked at.

Antonin Scalia:

Sure.

Well, that may well be, but we’re bound by the Federal statute, which says that the case has to be finally decided by the highest court of the State, finally decided, and the highest court of the State is going to have this case back again, or may well have the case back again on the State law claims, no?

Dennis G. Pantazis:

It could, but the problem, Your Honor, is that the third element in Cox specifically, I think, addressed that rationale.

It said that the Federal claim was adjudicated in the Federal… in the State court.

Anthony M. Kennedy:

But it says where further Federal… it says, but in which later review of the Federal issue cannot be had, and under the law of the case, Alabama could conceivably change its mind if there were some intervening decision, perhaps by the Eleventh Circuit.

Probably it won’t, but nevertheless, you can’t say, in which later review of the Federal issue cannot be had.

Anthony M. Kennedy:

that’s just not… that’s… you just haven’t complied with that exception.

Now… and maybe you might ask us to have some further exception and say, well, it’s duplicative, or something like that, but I don’t think you can come within exception 3.

Dennis G. Pantazis:

Well, I think, though, the rationale in exception 3, if it does not meet this case, it should meet this case, and maybe the Court should accept that as a further–

William H. Rehnquist:

I think perhaps the rationale of section 3 was your… a case called California v. Stewart that was decided on… where the State court says, this evidence is inadmissible because it was violative of Miranda.

The State wants to appeal that.

If it goes back to the trial court, the State is prevented from getting that evidence in, so it’s lost forever the right to review that claim because the trial court won’t accept it, and if there’s a guilty verdict, or a not guilty verdict, the State never will have an opportunity to review it.

You, on the other hand, will, as my colleagues have pointed out, have… could have an opportunity to have this reviewed in a later proceeding.

Dennis G. Pantazis:

–I think that, Your Honor, Mr. Chief Justice, I do not believe that we will, because I think the supreme court of Alabama has reviewed the issue and has accepted it for that particular purpose.

William H. Rehnquist:

Let’s assume that, as I think my colleagues have assumed, that the supreme court of Alabama is going to say, as Justice Ginsburg, this is the law of the case, we’ve decided it, but this is simply a necessary step for you to then bring the case to us, and you will not have the final judgment argument made against you at that time.

Dennis G. Pantazis:

If that rationale holds, then this case would be tried once with a State remedy, which would exclude the entire 1983 cause of action.

It would then go up before the supreme court of Alabama, and they, as Justice Scalia points out, would probably say, we’ve already covered this, you know, the issue is moot, and we’d be here again 2 or 3 years on the same issue, having gone through the system without any… moving the case any further.

Antonin Scalia:

Well, that’s always–

–That’s a happy ending.

You could lose on the State claim.

Dennis G. Pantazis:

That’s true.

Antonin Scalia:

And then the whole thing could be washed out, right?

Dennis G. Pantazis:

That’s true.

Stephen G. Breyer:

The problem is that’s always true when you take an interlocutory appeal.

Dennis G. Pantazis:

That’s correct.

Stephen G. Breyer:

It’s always true, so the statutes balance and allow you sometimes to take an interlocutory appeal, sometimes not, but we have a statute here that doesn’t allow it.

It says final, and is there anyway around that?

I mean, I don’t see… the word is final.

It doesn’t allow this interlocutory thing to come up.

Dennis G. Pantazis:

Well–

Stephen G. Breyer:

So how do we get around that?

Dennis G. Pantazis:

–I personally do not believe the supreme court of Alabama will adjudicate the same Federal issue again, and the reason is the defendants in this case are going to say, this case is already decided.

That was already addressed.

The parties were before it.

It was a final order on the 1983 issue.

That’s over with.

Dennis G. Pantazis:

And I–

Antonin Scalia:

We don’t resolve finality issue by issue.

I mean, our cases make it clear that if any of the claims in the case are still alive, the judgment is not final, and there are claims still alive here, the State claims.

Dennis G. Pantazis:

–The State claims are.

Antonin Scalia:

So the only way you can get out of the problem is to say, this comes within one of the exceptions, to wit, there’s no other way to appeal this Federal claim unless I can appeal it now, which was the situation in the case that the Chief Justice described, but I don’t see why that’s the situation here.

It seems to me you can come back up here.

I know it takes 2 more years, and we’re duplicating effort and all of that, but that’s what this statute envisions.

I mean–

Dennis G. Pantazis:

I believe the Court could expand, if that’s the term, in the Cox rationale and to allow this particular appeal.

Stephen G. Breyer:

–Yes, but how could… I mean, it’s like a trial judge.

The trial judge makes a ruling against you at the beginning of the case.

Dennis G. Pantazis:

Yes.

Stephen G. Breyer:

You run up to the court of appeals, you say, you know, judge, an awful lot of time and effort’s going to go by.

Why don’t you and the court of appeals reverse him now?

And if we have a statute that says final, we can’t do it.

We have to look to some other statute that gave us the interlocutory right, or that gave us, you know, the certificating right.

We couldn’t do it on a word that says final.

Dennis G. Pantazis:

Right.

Stephen G. Breyer:

And that’s the dilemma, it seems to me, here.

I’m putting that because maybe you can think of something.

Dennis G. Pantazis:

Well–

Stephen G. Breyer:

I don’t know what it is.

Dennis G. Pantazis:

–The difference in that is that if it is an issue, an evidentiary issue or something, it would be adjudicated and revisited at the end of the trial, as all evidentiary issues.

The issue of whether you have a cause of action has reached the highest level it can reach in Alabama, and it has been adjudicated at the highest level it can reach within the Alabama system, and that issue has been taken care of both from a fact standpoint and from a representation of the parties, and I don’t believe the supreme court of Alabama can go back and review it.

It’s already said, I’ve made that decision on that issue.

I think that we would be–

Anthony M. Kennedy:

Suppose there were some intervening decisions.

Couldn’t you tell the Alabama supreme court, you made a mistake here, there are some intervening decisions from this Court, or from a court of appeals of the Eleventh Circuit, which there might well be, please take another look at this?

They have the discretion to do that.

The rule of law of the case is discretionary, I take it, in Alabama.

Dennis G. Pantazis:

–They possibly could do that, Your Honor, but in… because the supreme court of Alabama has ruled on a motion to dismiss pleadings… this was not a summary judgment.

It was a motion to dismiss pleadings… it dismissed the counts in this case that involved 1983, and they’re forever gone, and the supreme court of Alabama has ruled that issue finality.

Those issues are no longer present in the State court and in the trial court.

Ruth Bader Ginsburg:

If you were to prevail on the State claim and then ultimately prevail here on your 1983 case, you wouldn’t have to have a whole new trial.

Couldn’t you get some mileage from the State, the trial on the State claim in which you succeeded so that you wouldn’t have to duplicate all that evidence?

Dennis G. Pantazis:

I would think not, and the reason is because the State measure of damages in Alabama for wrongful death is the wrongfulness of the conduct of the defendant.

It is not compensatory.

It is purely punitive, and if… 1983 against municipalities is compensatory damages only.

There is no compensatory damages for wrongful death.

Ruth Bader Ginsburg:

but with respect to the liability and fault–

Dennis G. Pantazis:

Well, the issues that would be tried in the case in the… for the wrongful death, the issues and the evidence and even the measure of damages, what the jury is allowed to consider, would totally be different.

Ruth Bader Ginsburg:

–Measure of damages would certainly be different, but I don’t understand why the–

Dennis G. Pantazis:

The conduct–

Ruth Bader Ginsburg:

–The fault issues would necessarily be different.

Dennis G. Pantazis:

–It may not, Your Honor.

It may… a lot of it would parallel, but a lot of it… there’s also issues that would be allowable in ’83 from an evidentiary standpoint that wouldn’t be allowable or relevant just for a wrongful death case.

Antonin Scalia:

Mr. Pantazis, just for fun, why don’t you tell us about the merits of the case.

[Laughter]

Dennis G. Pantazis:

Okay.

It is fun.

[Laughter]

Your Honor, this case involves a lady who was an elderly black lady in Tarrant, Alabama.

She died in a fire.

She had both legs amputated previously.

She died when her husband… when the house caught on fire and her husband tried to pull her to a first floor window, could not get her out.

The firefighters of Tarrant City arrived.

On two requests he asked them to pull her out.

On both requests, two different firefighters, they both refused.

His son and her son approached, and got there.

When he did, he pulled her out.

Dennis G. Pantazis:

She was laying on the ground.

They refused to administer any first aid.

They refused to even take her pulse.

The allegations in the complaint, and as the record reflects, this was a custom and practice of depriving black citizens in Tarrant, Alabama of fundamental equal protection rights under the Fourteenth Amendment, and we had filed a section 1983 cause of action, and as this Court knows, section 1983 does not provide a remedy, remedial damage remedy under that section.

We have to look for guidance to 1988.

1988 tells us that we look first, or consider first the State common law and State statutory law, and if that is not inconsistent with the purpose and policy of the Federal Constitution, the United States laws it’s intended to protect, then we apply it, but if it is, that is the balancing test, or that is the test that the courts must look at.

This Court in Robertson v. Wegman has held that the purpose and policy of 1983 is to compensate and to prevent prevention of abuses and power by those acting under color of State law, or in my words, deterrence, and if you apply that standard to what we have in Alabama, or we’re left with in Alabama… because what’s left are two State statutes.

One of them is the wrongful death statute, which is cited at 6-5-410, and as I’ve indicated is purely compensatory.

Even the supreme court’s decision in this case states that, I think, in the first or second paragraph… excuse me.

It’s purely punitive.

I said compensatory.

I misstated.

It’s purely punitive, and the jury charges, they’re admonished never to consider any compensatory aspects, just punitive, it certainly frustrates the purpose of compensation.

David H. Souter:

Why… you say it frustrates the purpose.

A moment ago you said the purpose is deterrence, and it certainly doesn’t frustrate the purpose of deterrence.

It’s a classic example of a deterrent remedy.

Dennis G. Pantazis:

That’s correct, it does satisfy the second element of deterrence, but it frustrates the first element of underlying policy of compensation.

There is a second statute that comes into play.

David H. Souter:

Well, it doesn’t satisfy it.

I don’t know that it frustrates it.

Dennis G. Pantazis:

Well, it runs in conflict with it, Your Honor.

There’s a second statute that frustrates both, is inconsistent with both policies, and that is section 11-93-2, which arbitrarily places a limit of $100,000 on any recovery against a municipality, which would apply in this case with no 1983 cause of action.

David H. Souter:

But we don’t get to that, do we?

Dennis G. Pantazis:

We do–

David H. Souter:

Well, we don’t get to it because of the Federal rule, right?

Dennis G. Pantazis:

–Well, if we have no 83 claim, as the supreme court of Alabama has said, it’s all State.

The supreme court did not modify its wrongful death–

David H. Souter:

No, but your argument, as I understand it, is that even to the extent of the deterrence there is a frustration of purpose here because the punitive damages cannot be recovered against the municipality.

Isn’t that your argument?

Dennis G. Pantazis:

–That is… that is an argument.

Dennis G. Pantazis:

We take the position, Your Honor, that because it’s purely punitive, that it doesn’t comply with the compensatory aspects, while it may comply with the deterrence.

The court, the supreme court of Alabama has said that in removing the 1983 action, and that’s what it did, it dismissed it, said that we are now under the wrongful death.

While we’re under that statute, we’re also under the statute that arbitrarily limits us to $100,000 damages, and that frustrates both deterrence as well as compensation.

David H. Souter:

Yes, but you never get to that limit because of the effect of the Federal law, do you?

Dennis G. Pantazis:

Well–

David H. Souter:

Because whether there is a limit or whether there isn’t a limit, you can’t get any punitive damages against the municipality–

Dennis G. Pantazis:

–Well–

David H. Souter:

–under 1983, and that’s a matter of Federal law, right?

Dennis G. Pantazis:

–I disagree, and the reason I disagree is, the supreme court said there is no 83 claim, so we’re not under any Federal law for this case, as it sits now at the trial level.

William H. Rehnquist:

Well, but you don’t claim an independent Federal basis for challenging the $100,000 limit on punitive damages for wrongful death in Alabama if it didn’t involve a Federal claim, do you?

Dennis G. Pantazis:

Exactly, Your Honor.

William H. Rehnquist:

When you say exactly, do you mean yes or no?

Dennis G. Pantazis:

Yes.

I do not challenge it.

I agree with your statement.

I do not challenge it because what we’re saying is, if we have a 1983 claim, then the limitation would not apply, and that’s why it’s so important that this Court consider and instruct the supreme court of Alabama that our 1983 claim is not satisfied by the Alabama wrongful death statute, because if it does apply, if we have an 83 claim, the arbitrary caps do not apply.

If we don’t have an 83 claim, if the case is as it’s left right now, without any reference to 1983, then all of the State laws would apply, and we would have a purely punitive remedy and a $100,000–

Sandra Day O’Connor:

Could I ask what you’re seeking under the 1983 claim?

Is it damages for Mrs. Jefferson’s death and pain and suffering, not the loss of association or consortium by the remaining family members?

Dennis G. Pantazis:

–Your Honor, we’re asking for the wrongful death statute to compensate the estate.

Sandra Day O’Connor:

Well, under the 1983 action, as I read the complaint, it seemed to be asking for damages for Mrs. Jefferson’s death and pain and suffering, as opposed to anything suffered by the children or the spouse.

Dennis G. Pantazis:

We are asking for the damages as listed in the Weeks case, which was a district court case in Alabama, which did say that the estate’s damages are the measure of the pain and suffering, the funeral expenses of the decedent’s heirs, or the descendents, and that is what we think the typical compensatory damage is that is encompassed in 49 States.

Sandra Day O’Connor:

I’m sorry, you say you are not asking, then, for her pain and suffering.

Dennis G. Pantazis:

No.

Sandra Day O’Connor:

Even though that’s what… how the complaint reads.

Dennis G. Pantazis:

If the complaint reads that way, that may be an inartful pleading, but we’re asking that the Court compensate the estate, and in compensating the estate, the Court look at traditional compensation measures for wrongful death, which, like we’ve indicated, 48 or 49 States… the only one I’m unsure of is Massachusetts… have held that when you compensate for death, the beneficiaries or the descendents are the ones whose… are the ones who suffer the loss and suffer the pain and also pay the medical bills and pay the funeral expenses.

Ruth Bader Ginsburg:

Mr. Pantazis, there’s a distinction, I’m sure you are aware, between survival statutes and wrongful death acts, and one is thought as compensating the bereaved family members, and the other is thought as going to the estate, as the claims that the decedent would have if she had survived, her pain and suffering, and that goes to the estate.

But you seem, in your answer to Justice O’Connor, to blend those two, and I was wondering why you cast your complaint in survival act terms, and yet in your response just now about the family members you seem to be shifting over to the wrongful death mode.

Dennis G. Pantazis:

I believe, Your Honor, the damages go to the decedent’s estate.

That’s the only… the wrongful death damages or the 1983 damages would go to the estate, and would be passed–

John Paul Stevens:

That’s quite wrong.

The decedent’s damages would go to her estate.

The wrongful death action is brought on behalf of the relatives and third parties.

You’re just asking for the latter?

Your complaint seems to cover both.

Dennis G. Pantazis:

–Well, we are–

John Paul Stevens:

Why would you limit yourself to one rather than both?

Dennis G. Pantazis:

–Well, we are asking for both, but the way you compensate a decedent for death in reality, and what most of the States have done, is by compensating the heirs for what they have lost, or the descendents for what they have lost.

John Paul Stevens:

Well, not in the normal survival action.

The money goes into the estate and, of course, whoever is the beneficiary of the estate gets the money, but that’s analytically quite distinct from a death action brought on behalf of the survivors.

I don’t… I… if you want to limit yourself to one, that’s your privilege, of course.

Dennis G. Pantazis:

Well–

Antonin Scalia:

And the money in the estate may never get to the family.

I mean, the decedent may owe a lot of money, and all the money in the estate would go to his creditors.

Dennis G. Pantazis:

–Under the Alabama wrongful death statute it goes directly to the descendents and not attached by debts.

Antonin Scalia:

That’s the wrongful death recovery.

Dennis G. Pantazis:

That’s correct.

Antonin Scalia:

But not survival recovery.

The survival recovery, the recovery that the decedent gets for the decedent’s own pain and suffering goes into the decedent’s estate, and the creditors can gobble it all up.

Dennis G. Pantazis:

The only… if you’re speaking of a Federal remedy, that would be correct, but the only remedy we have in Alabama is the wrongful death, which would not allow that under Alabama common law, statutory law.

Anthony M. Kennedy:

You say that under Alabama law, for a wrongful death, the proceeds have to go to the estate?

Dennis G. Pantazis:

No.

The proceeds are… the estate bring… is the property party to bring the cause of action, the personal representative through the estate, but the damages go directly to the descendents, and in Weeks the Court analysized that the compensatory aspect of 1983 is to compensate the decedent by the measure of damages that the descendents had suffered, and pay the… through that proceeds, through that process.

Antonin Scalia:

What a strange system.

I mean, I guess it’s the civil law, but I… why would the estate sue to get money for… not for the estate, but for relatives?

Dennis G. Pantazis:

It’s the only remedy available.

Antonin Scalia:

Well, I hope you have a sympathetic administrator of the estate, who likes the family, because it’s no money in his pocket.

Dennis G. Pantazis:

That happens often, Your Honor, that the administrator is in conflict with the heirs.

What we’re asking is that this Court instruct the supreme court of Alabama that the 19… that there cannot abolish the 1983 action, because in doing so it directly is inconsistent with the purpose of compensation and deterrence and, in doing so, we’re asking this Court to instruct the supreme court of Alabama that the 1983 cause of action is supplemental to the wrongful death statute, and that the damages that are allowable under 1983 are those typical compensatory damages that are found in 48 or 49 other States.

Ruth Bader Ginsburg:

Where would the Court be getting those rules from?

Ruth Bader Ginsburg:

They don’t get them from Alabama, because Alabama allows only a punitive damage recovery.

They don’t… and 1983 itself doesn’t tell us.

That’s why we usually plug in the State remedy.

So we don’t have a Federal remedy, we don’t have the State remedy, so where does the Court get the instruction, where does this Court get the instructions to give the Alabama supreme court?

Dennis G. Pantazis:

We ask that the Court use the rationale that has been decided or looked at in the Weeks case, the district court case in Alabama, and if I may I’ll quote that section.

It’s page 1309 of that decision.

It says, the compensatory damage award shall be measured by the losses incurred by the descendent survivors, who are entitled to recover under Alabama statute of distribution as a result of the death.

Such losses may include but are not restricted to expenses incurred in the treatment of or burial of the descendent, loss of income from the descendent, loss of companionship and consortium, pain and suffering of the survivors.

This particular case, the Weeks case, was brought simply on the claim of the executor of the estate.

William H. Rehnquist:

Where would the district court get its law from?

Dennis G. Pantazis:

These type of damages are what most of the State statutes hold as compensatory damages in wrongful death, the typical–

William H. Rehnquist:

So that you say is the source from which the district court obtained it?

It just polled the various States and decided what was the common denominator.

Dennis G. Pantazis:

–The briefs in the district court case did have… I mean, there are several cases that they looked at.

William H. Rehnquist:

Does the district court say where it got its law from?

Dennis G. Pantazis:

The district court… I’m only familiar with this… the opinion does not.

I’m familiar with it, but–

William H. Rehnquist:

I’m not asking you to–

Dennis G. Pantazis:

–Right.

William H. Rehnquist:

–examine the judge’s mind.

Does the opinion say where–

Dennis G. Pantazis:

The opinion does not.

I am aware that the briefs filed in this case show typical compensatory damages that are found in other States.

Alabama happens to be an unusual animal, to say the least, on wrongful death.

John Paul Stevens:

–May I ask this question as a matter of Alabama law?

Suppose you had a single person who was 90 years old, and a millionaire, no relatives at all.

The person is seriously injured and runs up $500,000 in hospital expenses and then dies.

Can the administrator of that person’s estate recover a dime?

Dennis G. Pantazis:

On the wrongful death?

No.

John Paul Stevens:

They have to… is there any provision under Alabama law for the estate to recover anything for that person?

Dennis G. Pantazis:

No, and it gets even worse than that, Your Honor, if I could explain.

The measure of damages–

John Paul Stevens:

I knew Alabama had its idiosyncracies, but this is really surprising.

Dennis G. Pantazis:

–The–

[Laughter]

The damages would go directly to the heirs.

It would not even pass through the estate.

John Paul Stevens:

No heirs in my case.

Dennis G. Pantazis:

Well, then there would be nobody getting… there would be somebody.

John Paul Stevens:

I mean, she had left a will leaving everything to Alabama University, or something like that, but Alabama University would get nothing.

Dennis G. Pantazis:

The will… the will wouldn’t apply.

It would go directly to the heirs at law.

John Paul Stevens:

But there are no heirs in my case.

Dennis G. Pantazis:

Then there would be no recovery.

It–

David H. Souter:

Mr…. oh, I’m sorry.

Dennis G. Pantazis:

–I was going to explain even further what problem we have in trying to implement a 1983 remedy here.

Because the wrongful death statute is purely punitive, it doesn’t take anything in nature from compensatory damages.

One example of two cases I have had.

One was a 32-year-old Georgia Tech engineer with children, making X dollars.

He dies in an accident that there was a slight negligence.

It was enough for a cause of action.

That recovery was very nominal, because the wrongfulness of the defendant’s conduct was minute, maybe applicable.

Another case in which I represented an 82-year-old Episcopal priest who was a ward of the church, was involved in an accident, but in that case the defendant’s conduct violated the law.

They put an unreasonably dangerous load, and as a result, that case had tremendous damages.

The point I’m trying to make is, the recovery, as you have indicated, is unfair in one regard.

It’s also unfair as to the compensation aspect.

It is the only State, and the reason I say that, Massachusetts used to have a similar rule, but I believe… I’m not sure… they have changed the rule.

It’s the only State that has this punitive damage statute, and it totally frustrates a 1983 action that deals with compensation for the injured, the person injured, as the statute says.

David H. Souter:

Mr. Pantazis, going back to the Chief Justice’s question about where the court in Weeks got its law, if I understand your answer, it got its law from sort of looking generally to the common law recovery rules beyond the State.

Dennis G. Pantazis:

That’s correct.

David H. Souter:

But it’s not authorized to do that under 1988, is it, which refers to the common law of the State in which the court having jurisdiction is held, so how does… how did the Weeks court make this leap to the rest of the republic?

Dennis G. Pantazis:

I believe it does through Robertson, Your Honor, that it’s the caveat of, where it states that it cannot be inconsistent with a policy–

David H. Souter:

Well, I know that puts a block on what it can borrow from the State in which it sits, but it doesn’t function as an affirmative authorization to travel to other States, does it?

Dennis G. Pantazis:

–Well–

David H. Souter:

Is it Federal common law?

Dennis G. Pantazis:

–It would be an establishment of some sort of Federal common law, similar to the–

David H. Souter:

So it’s not borrowing at all.

It’s a fashioning of Federal common law, pure and simple.

Dennis G. Pantazis:

–Well, where they are absent of those statutes, that’s what 88 I think envisions.

That’s what Robertson, and I think this Court has done so in Carlson earlier.

David H. Souter:

Then why did we need the 1988 provision in the first place?

Dennis G. Pantazis:

Well, you need the 1988 provision for the test.

The 1988 provision gives you the test.

You go… it says you consider first the State law and the State statutes, but where they’re inconsistent, and in this particular case not only inconsistent but totally devoid of the underlying purposes because of the two Alabama statutes that defeat them, you must supplement that with a Federal remedy, and that is what Weeks did, and that is what we’re asking this Court to instruct the supreme court of Alabama to do.

William H. Rehnquist:

Do you wish to reserve the rest of your time, Mr. Pantazis?

Dennis G. Pantazis:

I do.

Thank you, Your Honor.

William H. Rehnquist:

Thank you.

Mr. Roberts, we’ll hear from you.

John G. Roberts, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

The Court lacks jurisdiction to review the interlocutory decision of the Alabama supreme court.

Section 1257 of the Judicial Code limits this Court’s jurisdiction to review State court decisions to final judgments.

The Alabama supreme court in this case did not issue a final judgment.

It instead remanded the case back to the trial court for trial on the State law wrongful death claim, which remains pending.

This is also not a case of mere technical nonfinality, nor is it within any of the Cox exceptions.

Stephen G. Breyer:

What about like a… is… there is no doctrine here like waiver, because this particular argument I don’t think was raised in the petitioner’s reply… you were not the lawyer then, but the response–

John G. Roberts, Jr.:

The–

Stephen G. Breyer:

–The petition for cert, it didn’t raise this argument.

John G. Roberts, Jr.:

–I think that’s correct.

The best that can be said is–

Stephen G. Breyer:

If it had we might have caught it, but it didn’t, and–

John G. Roberts, Jr.:

–Well, the opposition–

Stephen G. Breyer:

–Is there any waiver principle or anything in–

John G. Roberts, Jr.:

–No, there is not.

The best that can be said is that the opposition that was filed did point out that the decision was interlocutory.

It did state that the case was remanded.

It did note that the State law claim remained pending.

But I think it’s fair to say that the finality issue was not argued.

It is, however, of course, a jurisdictional objection.

As this Court indicated in Flynt v. Ohio and also in O’Dell v. Espinoza, if there’s a lack of finality it goes to the jurisdiction of the Court, and therefore under this Court’s rule 15.2 cannot be waived.

Anthony M. Kennedy:

–Can he argue that he comes within your… the petitioner comes within the second exception because the Federal issue will necessarily survive on the grounds that the standard of care is different and less under the Federal cause of action that they want to apply?

John G. Roberts, Jr.:

I don’t think so, Your Honor.

There’s no–

Anthony M. Kennedy:

I mean, it seems to me that’s the only way they could do it, to come within section 2.

John G. Roberts, Jr.:

–Under the second exception it necessarily must be the case that the Federal cause of action would survive, and that’s not the case here, because this pending State law claim involves the same parties, and the same underlying allegations.

Under this Court’s decisions, that trial on a decision on that claim could well be preclusive of any 1983 claim, and therefore it is not necessarily the case that it would survive.

It may survive, again depending on the results of the State law proceedings, which is why it’s not within the third exception on which my brother relied.

The fact that it may or may not survive depending on the outcome of the pending proceedings is why it is not within any of the Cox exceptions.

It’s also not a rare situation.

I would suspect that in most cases in which you have 1983 claims they’re joined with State law claims, because conduct that violates section 1983 typically would also violate some State law, and most attorneys would bring both a State law claim and a Federal claim, so if the Court creates a new precedent here, a new exception to Cox, it would not be one of limited applicability, but would apply broadly to a wide range of 1983 cases.

Ruth Bader Ginsburg:

There was a case some years ago… Justice Powell’s decision in Pennsylvania v. Ritchie would seem to come pretty close to what is being sought here.

John G. Roberts, Jr.:

My understanding of Pennsylvania v. Ritchie, and it’s a very complicated case, but my understanding of it was that on the facts in that case the Federal claim could not survive regardless of the result on remand, which is why it was necessary to review it in the interlocutory posture.

Regardless of whether the petitioner in that case won or lost, the Federal claim would be gone, and that’s not the case here, because the 1983 claim could well survive the State law proceedings.

It may not, which is why it’s not within the second exception, but it may, which is why it’s not within the third.

Sandra Day O’Connor:

How do you understand the complaint with regard to the 1983 claim?

Is it a survival cause of action–

John G. Roberts, Jr.:

That’s how I read it, Your Honor, because the complaint seeks–

Sandra Day O’Connor:

–The deceased.

John G. Roberts, Jr.:

–relief for the injuries that the decedent suffered.

Although it’s brought under what’s called the Wrongful Death Act in Alabama, I believe that’s properly characterized as a survival action.

If you’re seeking relief for injuries to the decedent, it’s survival.

If you’re seeking relief on your own behalf, it’s a wrongful death action.

This is a survival action, as I understand it.

It was brought by the representative of the estate.

Sandra Day O’Connor:

And how do you understand Alabama law with regard to a survival action here under 1983?

John G. Roberts, Jr.:

Well, it would be under the wrongful death action, although again I think it’s properly classified as a survival claim, and the… must be brought by the representative of the estate, and they’re entitled to punitive damages to punish the wrongful death of the decedent.

Alabama’s view is that you cannot compensate the dead, and from the beginning… it’s a very old statute, almost going back as far as Lord Campbell’s Act… they’ve recognized that it’s punitive in nature.

It’s brought to punish.

It’s original title was An Act to Prevent Homicide, and they’ve adhered to that interpretation.

Sandra Day O’Connor:

But Federal law says you can’t recover that against a municipality.

John G. Roberts, Jr.:

That’s right.

This Court’s decision in Fact Concerts means that you can’t recover that, and that poses… if we reach the merits that poses the issue, is that Alabama rule inconsistent with Federal law?

Sandra Day O’Connor:

A real dilemma.

John G. Roberts, Jr.:

Yeah.

It is a dilemma, but we think the Alabama supreme court reached the correct result.

Under Robertson v. Wegman you look to the whether the policies under 1983, compensation.

John Paul Stevens:

Mr. Roberts, may I just go back to the final judgment question for a minute to be sure I have it in mind.

It is your view… is it your view that the only possibility for a second shot at the Federal claim will arise if the plaintiff prevails on the State law claim?

John G. Roberts, Jr.:

Well, that’s the most likely one.

I suppose there could be some argument, even if they lose on the State law claim, that it shouldn’t for some reason or another be given collateral estoppel effect.

I don’t… I can’t at this point–

Ruth Bader Ginsburg:

Well, that would depend on what the finding is, and if it turns out that the… the defense, as I understand it, is we did nothing wrong.

We came as quickly as we could.

She was already dead.

If those are the findings that are made, then there couldn’t be any 1983 claim.

John G. Roberts, Jr.:

–I think that’s right, yes.

I think that’s right.

It would be precluded because the 1983 claim is, just from a reading of the complaint is based on the same underlying allegations.

John Paul Stevens:

Right, but then your point… I want to be sure I have it fairly in mind.

Your point is that even though the denial of a Federal claim is the law of the case as far as Alabama courts are concerned, and there’s virtually… there’s always the possibility, but there’s… it’s already been decided.

The case would still be alive, so the plaintiff could come back here and make the same argument he’s making today.

John G. Roberts, Jr.:

Oh, yes.

Yes, and if they–

John Paul Stevens:

And you think that’s enough to… that’s enough not to come within any of the Cox exceptions.

John G. Roberts, Jr.:

–Yes.

Of course, unless… my brother pointed out they would have to go through the perhaps futile exercise of preserving the claim before the Alabama supreme court, but that’s true in every case of nonfinality.

You can expect that the court that has already decided the Federal issue will most likely adhere to its position.

If that were enough to get it outside the finality rule there would be no finality rule, because that’s true in every case.

John Paul Stevens:

Maybe Cox did cut way back on what the finality rule had been before, of course.

But anyway–

John G. Roberts, Jr.:

It recognized what some have said a more pragmatic approach, but my point is that this is not within any of those exceptions, largely because the underlying claim that still remains alive, although a State law claim, is based on the same underlying allegations and it involves the same parties.

It could well have an effect on whether the Federal claim survives.

Turning back again to the merits in Robertson v. Wegman, the policies of 1983 are compensation and deterrence.

There is no adverse impact on 1983’s compensation policy in this case for the reason recognized in Robertson, that when the only claim for compensation is by the representative of the estate, that compensation interest is not duplicated.

The reality is, you cannot compensate the dead.

Alabama law–

Ruth Bader Ginsburg:

–But Robertson was a peculiar case in that there were no surviving members of the family.

It was–

John G. Roberts, Jr.:

–Well–

Ruth Bader Ginsburg:

–idiosyncratic in that respect I thought, where here, there would be no case in which there could be a recovery.

John G. Roberts, Jr.:

–In Robertson there were no immediate relatives.

Survivor was limited to parent, child, or siblings, and there were none of those, but it’s… the language about the compensation policy not being implicated was not based on any finding that there were no heirs, legatees, other ancestors or descendants, though not within the narrow category.

It was simply based on the fact that the claim was brought by the representative of the estate and therefore, as the complaint in this case, looked to the injuries that the decedent suffered.

It recognized that–

Ruth Bader Ginsburg:

Mr. Roberts, I don’t have the opinion in Robertson in front of me, but I vaguely remember something in the opinion that pointed out that this was a peculiar case because there were no surviving members of the family.

John G. Roberts, Jr.:

–Justice Marshall’s opinion did point out that this was peculiar in the sense that the decedent, Mr. Shaw, was not survived by parent, child, or sibling.

That was what Louisiana limited survivorship to.

But it was not the case that there was any finding that he had no heirs at all, that he didn’t have a will… the case was brought after all by his executor… that there was nobody who stood to inherit if, in fact, he could get damages, but the Court said the compensation interest is not implicated because the person on whose behalf you’re suing as representative of the estate cannot be compensated.

John Paul Stevens:

Mr. Roberts, can I ask just a little more basic question?

Would you agree that the question whether punitive damages are available in the 1983 case is a Federal question, and that’s what both Smith v. Wade and Fact Concerts decide, so that if a State denied a punitive damage remedy 1983 would trump the State denial?

John G. Roberts, Jr.:

Well, it would depend under what guise.

Certainly if the State had a rule there are no punitive damages–

John Paul Stevens:

Right.

John G. Roberts, Jr.:

–in 1983 even against individuals, I would agree that would be inconsistent with Federal law.

But if it was a more narrowly applicable rule, for example–

John Paul Stevens:

Well, I’m just asking broadly.

In other words, if it were just a damage question in this case, the Federal law would trump the State, contrary State law.

If it was… for example, years ago there used to be, in the wrongful death field there would be a $10,000 limit on recovery.

If the State had such a limit on recovery, do you think that would defeat a larger recovery for… in the 1983 case?

John G. Roberts, Jr.:

–No, and I want to emphasize that that question, although it was adverted to earlier, is not before the Court today.

The Alabama supreme court did not address–

John Paul Stevens:

Well, it’s a question whether it’s before the Court as to whether one views this as a damage issue or a question of standing.

John G. Roberts, Jr.:

–Even if you view it as a damage issue, the validity of State caps on wrongful death recovery and whether they’re overridden by 1983 is a difficult issue.

It’s a different one than the one before the Court today, and it has to be informed by, for example, the fact that in 1871 many States had such caps.

John Paul Stevens:

Correct.

John G. Roberts, Jr.:

Congress, when it passed the one wrongful death provision it did pass in the Civil Rights Act in 1986 imposed a cap.

Those are different questions, whether the separate Alabama cap applies.

John Paul Stevens:

Okay.

But if you would agree that on the issue of punitive damages Federal law would trump the State law whichever way it went… here it’s kind of perverse… why isn’t the same rule appropriate for compensatory damages, that if a State denies compensatory damages and the Federal law generally allows it, why wouldn’t the State… Federal law trump it there–

John G. Roberts, Jr.:

I–

John Paul Stevens:

–just as it would in reverse, if a State granted it and… you couldn’t say… anyway, go ahead.

John G. Roberts, Jr.:

–I think it is, the same rule is applicable as a general matter, but not with respect to the wrongful death or survival question, because 1983 doesn’t address that more narrow category, what are the appropriate… what is the appropriate relief, if any, in a wrongful death or survival case.

Yes, if a State law purported to bar recovery of compensatory damages in a normal 1983 case we would… the Court should find that inconsistent with 1983, but it’s difficult to argue that a State limitation on recovery in a wrongful death action or a survival action is inconsistent with 1983, when 1983 has no survival or wrongful death provision.

John Paul Stevens:

No, but Alabama has provided a remedy that’s just some… but the damages it provided are unavailable, but the… if the Fact Concert had been decided the other way, the plaintiff would prevail.

John G. Roberts, Jr.:

I don’t think you can sever the damages from the remedy under the Alabama regime.

Alabama has provided a wrongful death remedy for punitive damages.

John Paul Stevens:

Well, it’s provided a wrongful death remedy for administrators of estates like this, but it does not allow damages.

That’s the one thing it doesn’t do.

John Paul Stevens:

It doesn’t allow the damages that would normally be recoverable in a 1983.

It allows the party to sue.

John G. Roberts, Jr.:

I’m not sure that the Court can sort of pick and choose which aspects of the Alabama remedy it wants to incorporate, saying we’re going to incorporate the fact that you allow a wrongful death action, but we’re not going to take the only way you allow it, which is for punitive damages.

Anthony M. Kennedy:

Well, the line of reasoning Justice Stevens is exploring was the reasoning of the court in… the district court in Weeks, was it not?

John G. Roberts, Jr.:

Yes.

It–

Anthony M. Kennedy:

As I read that… read that opinion, it says, well, there’s a wrongful death action, and that other problem, and so we’ll… and we’ll keep that.

That other problem is damages.

You can’t have punitive damages, but that’s a Federal rule.

You can’t have compensatory damages, that’s an Alabama rule, and we’ll set that aside.

John G. Roberts, Jr.:

–That is the approach of the court.

Anthony M. Kennedy:

That was the reasoning, anyway.

John G. Roberts, Jr.:

It is.

Anthony M. Kennedy:

And you think that’s wrong.

John G. Roberts, Jr.:

We do think that’s wrong, and we also think it’s inapplicable even in this case, because the one thing the court did in Weeks is say, you get no recovery for injuries to the decedent, because we’re going to give you wrongful death… we’re going to measure compensation based on your loss as a survivor.

Then you don’t get any recovery for losses to the decedent.

Here, the only claims that are sought are what are technically survival claims for injuries to the decedent, so even under the approach in Weeks there would be no recovery in this case.

David H. Souter:

Mr. Roberts, you said a second ago that you can’t separate… shouldn’t separate damages from remedy.

Do you mean you shouldn’t separate remedy from cause of action?

So that what in effect you’re arguing is, there isn’t a general cause of action here.

What there is, is a cause of action for certain punitive damages, period, and that’s the only cause of action.

John G. Roberts, Jr.:

Yes.

David H. Souter:

You can’t split the two in that respect.

John G. Roberts, Jr.:

I think that’s right.

David H. Souter:

Conceptually you’ve got to say the only thing Alabama allows here is a punitive remedy, in effect, period.

John G. Roberts, Jr.:

That’s right, and, of course, it’s not an approach that it’s adopted in any way discriminatory to 1983 or this Court’s decisions.

It adopted this rule long before anyone thought municipalities could be liable for anything under section 1983.

Stephen G. Breyer:

Did you come across any historical… I’m just curious historically.

Probably in 1880 or sometime like that, there probably were quite a few States that said what Alabama says basically.

A person who dies loses whatever tort actions that person may have had before the person died.

Stephen G. Breyer:

That was probably the basic rule.

Once you die, they’re gone.

If you didn’t bring them, it’s too late.

And there probably were a lot of States that hadn’t passed survivorship actions, statutes, which is what we’re talking about here.

John G. Roberts, Jr.:

Yes.

Stephen G. Breyer:

The names get us mixed up.

John G. Roberts, Jr.:

Yes.

Stephen G. Breyer:

But it’s a survival statute for any tort, or certain tort claims.

John G. Roberts, Jr.:

Yes.

Stephen G. Breyer:

There probably were quite a few that hadn’t.

What were the people thinking when they passed 1983?

I mean, they were worried about, say, like the local sheriff in the south might murder somebody, or might beat him up, and what were they thinking?

They were thinking that we give a cause of action to people when they’re beaten up but we don’t give a cause of action to people when they’re murdered.

That would be such an obvious question that maybe somebody thought about that and talked about it.

Was there anything historically that–

John G. Roberts, Jr.:

Not in the… there are references, of course, in the legislative history of 1983 to murders, lynchings, and of course Congress did provide remedies for those in the Civil Rights Act.

There’s a specific remedy in section 1986 which allows a cause of action for the widow or next of kin.

There is a criminal provision now codified at section 242 which could also be invoked in cases of murder, and there was 1988 which says, look to State law to fill gaps in this remedial program and, to the extent States allowed survival or wrongful death actions, perhaps the Congress thought that those would be invoked to recover in those situations.

Most States had survival and wrongful death provisions when 1983 was enacted.

I think it’s–

Stephen G. Breyer:

–But I wonder… it says the common law, too, doesn’t it?

John G. Roberts, Jr.:

–It says, if the laws of the United States are deficient, you look to the common law as modified.

Stephen G. Breyer:

So maybe it meant that there was Federal common law at that time.

It would have been Smith v. Tyson.

John G. Roberts, Jr.:

Well, but it’s the common law as modified by the statutes of the forum State, and my understanding is that if it’s–

Stephen G. Breyer:

There would be no modification in a State that hadn’t passed a survival action.

John G. Roberts, Jr.:

–That’s right.

Stephen G. Breyer:

So it wouldn’t be an issue of the common law as modified.

It would be a question of the common law.

John G. Roberts, Jr.:

In the–

Stephen G. Breyer:

At which time they might have thought Federal common law, or is that… that’s–

John G. Roberts, Jr.:

–Well, whether it was Federal common… whether it was Federal common law or State common law, it was unambiguous that in the absence of legislative change there was no recovery in the case of wrongful death.

William H. Rehnquist:

–Well, Swift v. Tyson didn’t cover statutes, did it?

I mean, if you had to have a statute for a wrongful death or a survival recovery, that wasn’t something that the Federal courts just undertook to provide for themselves.

John G. Roberts, Jr.:

No, not at all, and this Court recognized in the Brame case 6 years after 1983 was passed that at the common law… and it didn’t differentiate between State or Federal, but at the common law they thought it was beyond question that there was no wrongful death or survival action.

David H. Souter:

And of course they did not assume that there could be a separate concept, did they, of Federal common law at that point?

I mean, there was just a generalized concept of common law.

John G. Roberts, Jr.:

I think–

David H. Souter:

I asked your brother a question premised on exactly the opposite assumption, but I think I was wrong in doing that.

John G. Roberts, Jr.:

–I think at the time the decisions recognized… they didn’t break it down as Federal common law and State common law… that there were some issues that would be governed by the common law, more local issues–

John Paul Stevens:

Mr. Roberts, it was neither State nor Federal.

The common law was this mystical concept we inherited from England.

It was English common law, was what that term would normally refer to.

John G. Roberts, Jr.:

–And under 1988 it was applicable unless modified by the statutes… now, here, of course–

John Paul Stevens:

You would agree, wouldn’t you, Mr. Roberts, that if there was no survival statute or wrongful death statute in a State, a particular State in 1871, and they pass it in 1890, that would nevertheless control in cases after 1890?

John G. Roberts, Jr.:

–Yes, because it incorporates… it doesn’t stay frozen–

John Paul Stevens:

Modified from time to time.

John G. Roberts, Jr.:

–At the time.

Now, the other prong under Robertson v. Wegman they ask, what is the effect on deterrence, and here again there’s no adverse effect on 1983’s deterrence policy by application of the Alabama law.

To find an adverse effect, the Court has to hypothesize a city employee who is familiar with the intricacies of the wrongful death law and 1983 law and who, solely to avoid subjecting his employer to liability under 1983 for compensatory damages, would kill rather than injure the victim of his constitutional violation even though–

Ruth Bader Ginsburg:

Mr. Roberts, isn’t it… and this is a Federal claim, and it picks up on State law, auxiliary State law, that you could have a result on this… under this Federal claim for relief of no recovery at all in Alabama and a whopping recovery in the neighboring State, all under this Federal cause of action.

It seems to me that the State law that says no recovery would be inconsistent–

John G. Roberts, Jr.:

–Well–

Ruth Bader Ginsburg:

–and the Federal court would have to supplement it from some other source.

John G. Roberts, Jr.:

–The fact that you get a different result from State to State, as this Court recognized in Robertson, is, of course, a necessary consequence of the terms of 1988.

It says that you’re… if you’re borrowing State law.

You’re necessarily contemplating that there may be a different result in one State than in another State, and the Court reiterated that point in Carlson v. Green in distinguishing the remedy it was creating there.

Ruth Bader Ginsburg:

You could have minor variations, who are the survivors might be different in one State or another, some might have grandmothers and some might not, but this kind of basic variation of the question is, is it incompatible with the idea of a recovery to have this setup which says, you get… you end up getting nothing?

John G. Roberts, Jr.:

Well, I think it begs the question to say that 1983 assumes there’s going to be recovery in cases of survival and wrongful death.

198–

Ruth Bader Ginsburg:

Is there any other State in the union that has this situation where the only recovery under State law is punitive damages?

John G. Roberts, Jr.:

–Massachusetts used to have that rule.

It changed it.

At this point Alabama is the only State that remedies wrongful death through punitive damages alone.

That doesn’t make it an illegitimate policy, based on the–

Ruth Bader Ginsburg:

For an Alabama claim Alabama could do whatever it wants, have a cap on punitives and no cap on damages if one survives, which I understand is the law in Alabama.

John G. Roberts, Jr.:

–But the only way to have a survival or wrongful death cause of action under 1983 is by incorporating the State law, because when 1983 was passed there was no survival or wrongful death at common law.

The Congress knew that if it wanted to create an exception to that it had to be done legislatively, as it had been in Lord Campbell’s Act, as that Congress did in section 1986.

The opinion, Justice Ginsburg, you announced this morning indicated… and I’m going just on the basis of the announcement… that when Congress in the same statute provides a remedy in one section and not in the other, you don’t assume that–

Ruth Bader Ginsburg:

Ah, but we’ve already crossed that bridge, haven’t we, in this series of laws?

How about 1982 and [= 1983] with respect to damages?

1982, if I remember correctly, just speaks in terms of declaratory relief, and yet you can get damages for a violation of 1982, can’t you?

John G. Roberts, Jr.:

–I believe so, yes.

Ruth Bader Ginsburg:

Right next to 1983, which says damages.

John G. Roberts, Jr.:

But here you’re talking about an exception to the prevailing common law rule, and when you have a narrow exception in one section, I think the only logical inference is that Congress did not intend it in the other section.

There was no doubt Congress knew what the prevailing law was, no recovery for survival or wrongful death.

The most that can be said is that they would give you that right if you had one under State law.

1988 would provide it.

Here, Alabama does provide such a right, and it doesn’t leave them with no remedy.

Under the Alabama rule you still have a remedy under 1983 applying the Alabama rule against individuals, and this Court has recognized repeatedly in Robertson, in Carlson, and in Fact Concerts, that the most effective deterrent is an action against the individuals.

In fact, the situation–

Ruth Bader Ginsburg:

And that would be if you take Alabama law wholesale.

If you could identify the individual firefighters, then you would be subject to the $100,000 cap.

Is that right?

John G. Roberts, Jr.:

–Oh yes, and again, I don’t think that issue is before the Court because the only… because that’s not part of the wrongful death statute.

Those are general–

Ruth Bader Ginsburg:

But on your reasoning I take it there would be no incompatibility there.

John G. Roberts, Jr.:

–I think not, largely because at the time 1982 was passed many States… I’m not sure if there was quite a majority or not, but many had such caps.

Congress put a cap in in the only wrongful death provision it provided in 1986.

The situation in Alabama under the Wrongful Death Act is quite similar to the situation this Court has formulated under Bivens.

John G. Roberts, Jr.:

We know from FDIC v. Myer that you have a Bivens action against Federal officials, the individuals, but no Bivens action against the agency.

Here, applying the Alabama Wrongful Death Act you have a 1983 action in the case of wrongful death in Alabama against individuals for punitive damages, but you do not have one against the municipality.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Roberts.

Mr. Pantazis, you have 1 minute remaining.

Dennis G. Pantazis:

Thank you.

Your Honor, you had indicated that Robertson had an exception.

Robertson does have an exception.

On page 1997 it says, we intimate no view, moreover, about whether abatement based on State law could be allowed in a situation in which the deprivation of the Federal right causes a death, which is exactly what we have here.

One final statement.

If 1988 did not intend for this Court to review the State court’s common law and statutes to determine whether or not they were inconsistent, they would have left that sentence out, but they didn’t.

The sentence, a statement that this Court and all Federal courts are to view the State common law and the State statutory laws for their inconsistency to the policy of the Federal 1983, and that I think answers Your Honor’s question of why and how this Court has to review the State laws.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Pantazis.

The case is submitted.