Quern v. Jordan – Oral Argument – November 08, 1978

Media for Quern v. Jordan

Audio Transcription for Opinion Announcement – March 05, 1979 in Quern v. Jordan

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Warren E. Burger:

We will hear arguments next in 841, Quern against Jordan.

Mr. Wenzel you may proceed whenever you are ready.

William Wenzel:

Mr. Chief Justice and may it please the Court.

Petitioner, Arthur F. Quern, the current Director of the Illinois Department of Public Aid, requests this Court to review and overturn the en banc ruling of the Seventh Circuit Court of Appeals, which petitioner submits has undermined this Court’s ruling in this very litigation in Edelman v. Jordan, which established the state’s sovereign immunity from suit under the Eleventh Amendment to the Untied States Constitution.

The en banc ruling of the Seventh Circuit authorizes a Federal Court to mandate the issuance of a class notice regarding entitlement to retroactive welfare benefits to more than twenty thousand welfare recipients, relief, which petitioner contends is designed to secure indirectly the very same monetary award, which this Court prohibited under the Eleventh Amendment in Edelman.

The facts in this case are not in dispute.

In 1971, plaintiff filed the Civil Rights Class Action in the district court in the Northern District of Illinois, challenged the failure of the Illinois welfare officials to comply with federal time standards for processing applications for assistance under former Title 16 of the Social Security Act, the Aged, Blind and Disabled program.

Federal regulations have been issued by the department of Health, Education and Welfare in 1968, which established specific time standards for processing applications.

From 1968, until plaintiff filed his lawsuit, the defendant welfare officials had processed applications pursuant to state regulations, which were inconsistent with the federal time standards.

Accordingly, the district court on April 16, 1971, preliminarily enjoined the welfare officials from enforcing their own state standards and compelled them to follow the federal time standards issued by HEW.

In March of 1972, the preliminary injunction was made permanent.

In addition, the district court awarded equitable restitution for retroactive welfare benefits wrongfully withheld for all those applicants for AABD who had applied between the date of the issuance of the federal regulations in 1968 and April 16, 1971, the date that the state regulations had been declared invalid.

This award of equitable restitution was ultimately reversed by this Court in Edelman v. Jordan as violating the state sovereign immunity from suit under the Eleventh Amendment.

This Court reasoned that an award of equitable restitution is in all practical sense, relief against the state as the real party in interest.

This Court further reasoned that under the doctrine of ex parte Young, a federal court’s remedial powers consistent with the Eleventh Amendment are limited to perspective injunctive relief and may not include a retroactive award or relief which compensates for pre-litigation conduct or past misconduct, which is completed.

This Court accordingly reversed and remanded the Seventh Circuit decision to the contrary with instructions to have further proceedings not inconsistent with the Eleventh Amendment ruling.

However, on remand in the district court, plaintiff filed a motion to require the state defendant to issue a notice to each of the twenty thousand individuals or more whose applications for assistance had been delayed during the period of 1968 through 1971 and informed them of their possible entitlement to the very same retroactive welfare benefits, which this Court had denied and to inform them of their right to appeal through administrative proceedings, the denials of those welfare benefits.

This was over, of course, the state’s objection that it violated the law of this case as handed down in Edelman and that it violated sovereign immunity as embodied in the Eleventh Amendment.

The district court disagreed.

The district viewed notice relief as a relief which did not compensate per se, and that Edelman was limited to relief which compensated per se, and that this relief while related to the possibility of securing a retroactive monetary award was something different than an actual award itself.

On appeal to the Seventh Circuit, a three-judge panel of the Seventh Circuit disagreed.

It found that the actual notice that the district court had allowed contained a predetermination of state liability and that this sort of notice relief therefore violated the law of the case and violated the Eleventh Amendment.

Plaintiff sought a rehearing en banc, which was granted.

The Seventh Circuit sitting en banc, four judges to three, decided that the district court had in fact erred in the specific notice relief that it had envisioned, because it did contain a predetermination of the state’s liability.

However, the Seventh Circuit sitting en banc did feel that a Federal Court could authorize notice relief, which was related to retroactive welfare benefits, as long as it did not contain a predetermination of liability.

The Seventh Circuit in authorizing this some form of notice relief conceded they would operate against the state sovereign and not merely against the Director of the Department of Public Aid.

So, the issue now before the Court is whether or not retrospective equitable relief against a non-consenting sovereign in the form of a notice related to retroactive welfare benefits is consistent with this Court’s decision in Edelman or is consistent with the state’s sovereign immunity from suit under the Eleventh Amendment.

William H. Rehnquist:

How much of a case do you think we still have here in view of the majority of the en banc Seventh Circuit’s opinion, which on the state’s appeal, reversed the judgment of the district court, but said if the district court was so inclined, it could enter a more modest decree?

William Wenzel:

Your Honor, there is a case of controversy.

We do have a significant controversy, because we feel that any form of notice relief under this case which will ultimately secure members of the plaintiff class, the retroactive benefits which were denied by this Court will either violate this court’s ruling in Edelman or violate the Eleventh Amendment.

John Paul Stevens:

Mr. Wenzel as a matter of Illinois law, would the state have the power or authority to give some retroactive relief for a period prior to April 8, 1971?

William Wenzel:

As a matter of state law, during this very period in time you mentioned, 1968 to 1971 and up through 1974 as a matter of fact, Illinois did participate in a federal state scheme of cooperative federalism known as the Aid to Aged, Blind and Disabled Program.

At that time, as a mater of state law, Illinois would have permitted people who had been denied assistance to appeal and if they prevailed under administrative appeal or if they eventually prevailed in a judicial review, would have permitted the payment of retroactive relief.

This case, however, is not that simple because of the action of the United States Congress in 1974 in repealing former Title 16 of the Social Security Act and replacing it with a wholly federally funded and authorized supplemental security income program.

Therefore, at present and since 1974, Illinois has not been participating in a federal program.

So the question becomes, if a particular recipient were to seek administrative review today, and if he were to go into state court and this court were to consider the question whether he was entitled to retroactive relief, I think it would first have to deal with the threshold question of whether the state was still participating in the federal program and it is not today.

William H. Rehnquist:

Well, but the district, the Court of Seventh Circuit as I read its opinion, left that completely up to the state courts to determine.

It doesn’t say the state courts have to award retroactive relief.

It just says that this class of people may be told that they may have a claim in the state courts and remits them to the state courts?

William Wenzel:

Your Honor, we view notice relief as very closely related to an actual award of benefits themselves, but our position goes further than that.

We do not view the principles of sovereign immunity nor this Court’s decision in Edelman as to limit the application of the doctrine of sovereign immunity to only those cases involving an actual award of monetary relief.

We believe that the principles of sovereign immunity must include those cases, which require the sovereign to act affirmatively or which triggers the operation of governmental machinery.

We draw support for that proposition from this Court’s rulings under the issue of federal sovereign immunity from suit in the Larson versus Domestic & Foreign Commerce Corporation and —

John Paul Stevens:

Mr. Wenzel before you get too far into your argument, I want to be sure I got your entire answer to the question I put before.

Do I correctly summarize it by saying that if someone, whether he got this notice or not, who was did not receive benefits during the period prior to April 8, 1971 were now to file some kind of a claim in the Illinois state system, whether administrative or judicial, we don’t really know whether the state would pay him anything, is that right?

William Wenzel:

That is correct.

John Paul Stevens:

But either result is possible as far as we know from the record and the law that you may be able to point out what is right?

William Wenzel:

Yes and I really did not complete my exposition of the state procedures.

If I could back up to answer both Justice Stevens’ and Justice Rehnquist’s questions, notice relief will trigger governmental machinery and will intrude upon the sovereign state of Illinois in the following respects.

The notice will go out.

Twenty thousand or more welfare recipients will file request for appeals with the administrative agency.

The agency will hold hearings themselves and depending upon the conclusion or the final decisions in those agency hearings, the recipients will have a right to seek judicial review in the state courts.

If the state court should arrive at the conclusion that retroactive assistance should be paid to members of the plaintiff class, as a matter of state law, petitioner, the Director of the Department does not have the power to request the state comptroller to draw or the state treasurer to pay an assistance warrant, which relates to an appropriation which has lapsed.

We are talking here with obligations that relate to appropriations for the years 1968 through 1971.

Under Illinois law those appropriation members have lapsed.

The director does not have the power nor does the —

John Paul Stevens:

But isn’t that just like various other claims that are asserted against the state that the claim maybe asserted before the court of claims or whatever it is called, I forget, and it may be established and then the legislation – the general assembly in its wisdom decides whether or not to pay the claim.

So isn’t it possible that twenty thousand people who did not get the money they should have gotten, could establish this sort of claim and then they might have enough political influence to get the legislature to adopt or pass a Bill saying let’s pay this money?

William Wenzel:

That is correct, the next step —

John Paul Stevens:

But they really won’t have a chance to do this unless they initiate the claim in the first instance?

William Wenzel:

That is correct.

So, we are at the point at the court of claims perhaps even ruling in the favor of the members of the plaintiff’s class here, which under Illinois law is a mere recommendation to the general assembly to pay or not to pay, but the catch it seems to me, is that the Federal Court that has issued the notice relief stands ready to intervene at any particular point in these proceedings whether they be administrative, the judicial or the legislative and use its powers under Title 28, Section 2283 to protect or effectuate its judgments, to use its powers under Title 28, Section 2202 to grant further relief.

John Paul Stevens:

But the Court of the Appeals say that the one thing they can’t do is order payment?

William Wenzel:

That is correct, but I think that what they could do is at each step of the proceeding whether administrative or judicial [Voice Overlap] They can keep on intruding into legitimate state affairs and nudging this matter closer and closer to the point where payment will occur even though it couldn’t be said directly that the Federal Court actually ordered it.

It did everything, but in fact order it and we feel that, that is so closely tide up with the actual award of monetary relief itself that it really amounts to a subterfuge.

William H. Rehnquist:

I can understand why you would say that about the district court’s order in this case, but the Seventh Circuit majority rather substantially modified it, didn’t it?

William Wenzel:

It said that it envisioned a notice which would not contain a predetermination of the liability of the state.

It did, whatever notice it might send out however I think would include the right to appeal this denial of benefits in the period of 1968 to 1971.

Once we trigger the fair hearing process everything else follows, judicial review, court of claims, the legislative matters.

William H. Rehnquist:

But that is by virtue of state law?

William Wenzel:

But assuming that the Federal Court would retain power to enforce and protect its notice relief, it would seem to me that it – the court is not merely — the court stands ready to intrude into state law and state procedure to see the desired result of an eventual monetary award realized.

William H. Rehnquist:

I would think if the majority of the Seventh Circuit felt the way you think it felt, it would simply would have affirmed Judge Will’s order rather than reversed it.

I can see why you could say that about Judge Wills’ order, but I have some difficulty with your interpretation of Judge Wood’s opinion in the Seventh Circuit?

William Wenzel:

Maybe another way of approaching the problem is to attempt to delineate what Edelman precludes in the way of a Federal Court’s remedial power for relief.

This notice by any stretch of imagination is not perspective.

It must be deemed to be compensatory.

It is not perspective, because the only perspective injunctive relief that was dealt with in 1971 and 1972, were federal time standards.

There has never been a question of notice relief in this case.

That leaves us with notice relief which is designed to compensate for pre-litigation conduct.

And this Court said in Edelman that compensatory relief, dealing with past completed misconduct is beyond the powers of the Federal Court, when the objection of the Eleventh Amendment is raised.

John Paul Stevens:

Would there be any objection if some community organization decided to — say you win the case and then some community organization decides that well, these people, a lot of these are blind, disabled elderly people who were wrongfully denied some money about seven or eight years ago or ten, well, this community organization decides they ought to know what their rights are and send out precisely the same notice, would there be any — would that have a different consequence and if the answer is no, are we really talking about who pays for the notice?

William Wenzel:

The answer would be no.

It would I suppose they could come — the members of the plaintiff class would be able to come into the offices of public aid and request to appeal the denial of benefits —

John Paul Stevens:

No, my question is some do gooder, some organization says well, these people ought to know what their rights are and send out a bulletin in the same words as the notice that Court of Appeals apparently thought was appropriate, wouldn’t that produce all the consequences that you are concerned about?

William Wenzel:

Yes, but it would not be as a result of a Federal Court’s order over the objection of the state that it is in violation of its right to be free from suit under the Eleventh Amendment.

Warren E. Burger:

Seriously if a private association did it as they would when the court of appeals en banc does so?

William Wenzel:

Well, especially in the very litigation in which the prohibition of an award of monetary benefits had been precluded by this very Court, we feel that very strongly that what is happening here is they are attempting to achieve the ultimate goal of retroactive benefits by indirection and the Seventh Circuit Court of Appeals is aiding and abetting this indirection, we feel, in violation of this Courts’ decision and certainly inconsistently with the principles of sovereign immunity because, because of the federal order to grant notice relief, there will be a significant intrusion upon the state affairs.

These hearings would of necessity follow, judicial review would follow and I think it does matter significantly Mr. Justice Stevens that this would occur as a result of a Federal Court order and not merely because some do gooder at his own cost and expense —

John Paul Stevens:

But the do-gooder could say there has been a federal decision that the state of Illinois wrongfully denied you money that you are entitled to and that the do-gooder could tell all that and in fact in this Court of Appeals’ notice need not necessarily recite that it was ordered by the Court of Appeals?

William Wenzel:

There is one significant difference.

William Wenzel:

At this point in the proceedings, the only way that the names and identities of those people who have been denied benefits in the past would be able to be put together and disseminate it would be as result of a Federal Court order which viewed notice relief and the identity of members of the plaintiff class as part of some prospective relief which it had the power to require the state to put together and disseminate.

So a do-gooder really just putting out a notice as to your —

John Paul Stevens:

He might not be able to benefit the entire class, just those that don’t know their rights would just let them fall by the way side and we just protect those that are on the surface, I see.

William Wenzel:

I think that notice relief under the circumstance of this case in any form cannot be deemed to be consistent with the principles of federalism which are embodied in the Eleventh Amendment.

Those principles of federalism require that there be a respect for both the federal sovereigns and the state sovereigns and that each sovereign should to free to act consistently within its own sphere of operation under our constitution in Edelman versus Jordan and in Ex parte versus Young, this Court attempted to make sure that both the reaches and proper applications of the Fourteenth Amendment as well as Eleventh Amendment are given their full play as long as one does not require the lessening or the weakening of the other.

If we are to believe what plaintiff say in this case about the notions of federalism?

In effect, we will have federal courts’ being able to grant relief, which effectively renders the Eleventh Amendment a hollow shell.

Our notion of federalism as evidenced by the distinction between perspective equitable relief and retroactive relief recognized in Edelman we think is the proper balance and this Court was able to work with the Edelman distinction between retrospective and prospective in the Milliken versus Bradley case.

It was able to find a justification for wiping out ongoing incidences of any quality in the Detroit School System, by granting prospective relief which contained remedial reading programs.

The distinction between prospective and retroactive when applied to this particular case, however, shows that we are talking about relief, which is measured in the teams of past breach of legal duty.

Warren E. Burger:

We will resume there at 1 o’clock, counsel.

[Luncheon Break]

Mr. Wenzel you may resume.

You have about eight minutes left, I observe.

William Wenzel:

Mr. Chief Justices and may I please Court.

If there are no specific questions of petitioners counsel at this time, I would like to reserve the balance of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Roodman?

Sheldon Roodman:

Mr. Chief Justices and may I please the Court.

The central question presented to the Court today is whether the Eleventh Amendment immunity of the state of Illinois maybe invoked by a state official as a bar to an order, requiring him to send notices to members of a duly certified class.

This question arises as one aspect of three pronged relief, granted by the Federal Court.

First, there has been a declaration by the Federal Court that the Director of the Illinois Department of Public Aid promulgated his own administrative regulations contrary to the Social Security Act and therefore void under the Supremacy Clause.

Second, in light of this declaration, the Federal Court enjoined the future enforcement of these administrative regulations.

These two aspects of the relief have already been held by this Court to be consistent with the Eleventh Amendment.

On remand, from Jordan I, it must be emphasized, that members of the plaintiff class were wholly in the dark regarding this lawsuit.

Accordingly, the class representative in fulfillment of his fiduciary obligations to the class, sought an order requiring the petitioner to send notices to the members of the class merely explaining; one, that a federal suit had been filed on their behalf; two, that they have been denied certain AABD benefits; three, that there were preexisting state administrative procedures for challenging the denial of such benefits and four, the method by which they might trigger those procedures.

William H. Rehnquist:

Mr. Roodman, class action procedures have come into play largely since I left the private practice.

Is that ordinary that as you say members of the plaintiff class would be largely in the dark after a remand from this Court in Edelman, after decision on the merits?

Sheldon Roodman:

Yes your Honor, this was a B2 class on the federal —

William H. Rehnquist:

Injunctive —

Sheldon Roodman:

Correct, under the Federal Rules of Civil Procedure and therefore no notice is required under the federal rules and no notice had been sent to these members of the class.

So, after the decision of this Court in Jordan I they were ordered no notice, they had never received any notice during dependency of the case of the proceeding.

So, the notice that the respondents did seek on their behalf merely advised them that there had been this lawsuit pending.

It advised them of the declaration of the Court and then advised them of pre-existing administrative procedures by which they might challenge the denial of those benefits.

The Seventh Circuit approved the sending of such notices, but only to the extent that those notices in no way predetermined the liability of the state of Illinois.

The notices which were sent were appropriate both under Rule 23-D2 of the Federal Rules of Civil Procedure and also appropriate as an exercise of the general equitable discretion of the court.

Further, under the Declaratory Judgment Act, the federal courts have the authority after entering a declaratory judgment to give further necessary and proper relief, these notices fall within that Section as well.

William H. Rehnquist:

You are talking now about an affirmative basis for the district court’s authority to act.

Your opponents contend that whatever that affirmative authority might support in other cases, the Eleventh Amendment bars it here?

Sheldon Roodman:

That is correct Your Honor.

That is the sole basis of their argument before the Court today.

There could be in other cases, other equitable considerations that might compel a Federal Court to decline, to send notices to a class even after finding a violation of the Social Security Act.

Those are questions of equity, not of Eleventh Amendment jurisprudence.

The only question raised before the Court today is the Eleventh Amendment immunity of the state of Illinois.

We believe a close examination of the principles of sovereign immunity and federalism embodied in the Eleventh Amendment will show that the petitioner is seeking to use the Eleventh Amendment in a way in which it was never intended and contrary to the purposes of the Eleventh Amendment.

I will first discuss the Eleventh Amendment issues and then turn to the 1983 issues presented in this case.

In Jordan I, this Court reaffirmed the principle that the Eleventh Amendment bars a Federal Court from entering awards for money damages directly against the state.

This interpretation of the Eleventh Amendment fell within the historical purposes of the Eleventh Amendment, to protect state treasuries from Federal Court orders, both to avoid a potential clash between federal and state sovereigns and also to prevent a direct and substantial intrusion upon the sovereignty of the state by the Federal Courts, a question of federalism.

Neither of these historical purposes of the Eleventh Amendment, however, are in anyway jeopardized by the sending of the notices approved by the Seventh Circuit en banc.

The order challenged here by the petitioner does not result in any clash between the federal and state sovereigns.

On the contrary, the order respects the institutions of state government and leaves to the institutions of state government, the ultimate determination of the fiscal liability of the state.

William H. Rehnquist:

What if the order had provided in addition to what the Seventh Circuit said it could provide that can’t — although Illinois law did not provide for any hearing in this situation, as a matter of federal constitution law under the Goldberg versus Kelly line of cases, a hearing was mandated by the Constitution and therefore regardless of Illinois law, the Illinois state system would have to give hearings?

Sheldon Roodman:

Your Honor, we believe that that order is well would be permissible under the Eleventh Amendment.

That order would not displace the state from determining its own question of fiscal liability in accordance with state law to the extent that the order does not intrude upon central decisions of the state government that are central to its Sovereignty.

Such an order would —

William H. Rehnquist:

Certainly it would be imposing a rather substantial aspect of retrospect of relief, would it not?

Sheldon Roodman:

Your Honor, it would not necessarily be imposing such a burden, that question would be left to the state.

William H. Rehnquist:

Except that the state would be required to hold a hearing?

Sheldon Roodman:

Yes your Honor, there is the fact that the petitioner has violated the federal rights of the members of the plaintiff class is central.

There is a weighing of the federal interest in this case with the state interest.

Sheldon Roodman:

We have as a central finding in this case, a violation of the Supremacy Clause, a knowing violation of the Supremacy Clause, plus there are federal interests at stake in this case.

What the federal court here has done has accommodated and harmonized the federal interests with the state interests.

It has done so in a way that is not intrusive upon the state government.

It leaves to the state government that a final determination of fiscal matters that are central to state government.

The direct, excuse me —

Byron R. White:

Are you finished with Mr. Justice Rehnquist?

Sheldon Roodman:

Yes.

Byron R. White:

I just wondered if, what was the jurisdictional basis for this civil matter?

Sheldon Roodman:

The original jurisdictional base for the lawsuit is Section 13.43.

Byron R. White:

And your claim was based on the federal law?

Sheldon Roodman:

Your Honor, the original claim was based both on the Equal Protection Clause and the Supremacy Clause.

The federal court never reached the Equal Protection Clause.

They relied solely upon the Social Security Act and Supremacy Clause.

Your honor, we would submit that in fact the petitioner, a state officer is not here seeking to protect the Sovereignty of the State of Illinois.

What he seeks to do is block access by the respondents to the state created remedies.

The state, the Sovereign state of Illinois, (a) agreed to provide administrative remedies for all public aid recipients who wish to challenge the denial of benefits.

That requirement was part of the Social Security Act, but the state of Illinois went even one step further.

They provide for judicial review of the administrative decisions of the Director of the Illinois Department of Public Aid.

So the very procedures and remedies that the Sovereign state has adopted for members of the plaintiff class, the director here seeks to prevent them from utilizing.

We submit that there is no basis for assuming that the interests of the Sovereign state of Illinois are aligned with the interests of the Director of the Illinois Department of Public Aid.

The director of the Illinois Department of Public Aid originally violated the Social Security Act.

Warren E. Burger:

Who speaks for the state of Illinois in this Court?

Sheldon Roodman:

Your Honor, the Attorney General does represent the director of the Illinois Department of Public Aid before this Court.

Warren E. Burger:

Well, should we look to hear the views in the state of Illinois.

Sheldon Roodman:

Well that is the — Your Honor, that is the sole person before the Court today I think.

Warren E. Burger:

I’m not sure and I understand your prior statement.

Sheldon Roodman:

Your Honor we think that the —

Warren E. Burger:

I understood you, to say there is nothing to indicate or that the director is speaking for the Sovereign state of Illinois.

Sheldon Roodman:

We were maintaining your Honor that his interests and the interests of the Sovereign state of Illinois are not necessarily aligned.

The Sovereign state through its legislature has adopted explicit remedies for the respondents in this case to challenge denial of benefits.

Sheldon Roodman:

The director on the other hand is a state officer.

It is not true that in all cases, a state officer has the identical interests of the Sovereign, particularly when a state officer is responsible for the initial violation of law.

We think in cases of this kind, the state officer is seeking to block the respondents from utilizing procedures of the state through its legislature has expressly adopted.

Warren E. Burger:

How do we resolve this potential conflict that you are implying?

Sheldon Roodman:

Your Honor, I think —

Warren E. Burger:

Do we decide what is good for what the state of Illinois thinks about this?

Sheldon Roodman:

No the question is whether the state officer should be permitted to invoke the immunity of the state of Illinois.

Warren E. Burger:

Can the Attorney General invoke the immunity?

Sheldon Roodman:

No.

your Honor, the Attorney General in representing the state officer here, we think should not be permitted to invoke the immunity of the state of Illinois except in those cases in which there is a direct and substantial intrusion upon state government.

This Court held in Jordan I that money damages against the state are a direct intrusion upon the state and therefore it is appropriate for the state officer to be able to invoke the immunity of the state of Illinois.

In the tax cases of 1940s, which were claims for money judgments against the state, once again, a state officer could claim the immunity of the state.

However, in those cases in which if there are no cases other than money damages cases in which a state officer has been permitted to claim the immunity of the state of Illinois or any other state in this nation, the notice relief here, we submit, does not create a clash between the sovereign state of Illinois and the national government through its federal courts.

Instead, the notice remedy is a carefully tailored remedy, which is designed to avoid such a clash.

The remedy by sending the members of the class back to the state institutions avoids any clash between the sovereigns.

Ultimately, the question of whether they shall recover the benefits that have been denied them is a question for the state government to decide through its administrative agencies and through its judicial branch.

William H. Rehnquist:

The original district court decree in this case didn’t speak in terms of damage, did it?

It spoke in terms of equitable restitution, suggesting that you know, it wasn’t quiet as air-tight as an award of damages.

So, are you correct in saying that it’s just strictly and only damages that is forbidden by the Eleventh Amendment?

Sheldon Roodman:

Money judgments, Your Honor, are judgments that have a direct monetary impact upon the state for a past conduct.

This Court did hold and say that the equitable restitution was indistinguishable for money damages that have been barred previously or money judgments for the recovery on bonds or the tax cases in which a person sought to recover taxes that they claim had been illegally exacted from them.

In the absence of a money judgment and with the particular notices that have been ordered here, there can be no problems of enforcement that this Court was concerned about in cases involving money judgments.

The enforcement is solely against a state officer.

If in fact the plaintiff’s do not recover in this case, the state officer is not in contempt of the federal court.

The only requirement on the state officer is to send the notices.

After that the questions of liability are reserved to the state government.

Warren E. Burger:

Now what if the state’s executive branch pursuant to your suggestion, decides not to pay, then what?

Then they go on to the state courts?

Sheldon Roodman:

Yes your honor.

Warren E. Burger:

And what if the state court decides they should pay, then what happens?

Sheldon Roodman:

Well I would assume if the state courts decide that they should pay that the state officer would respect the judgments of the state.

Warren E. Burger:

What if the Attorney General says that the purposes of illustration that violates the Eleventh Amendment and our holdings?

Sheldon Roodman:

The Eleventh Amendment would not apply in the state courts, Your Honor.

Warren E. Burger:

And that’s why I posed it, what if he asserted that?

Sheldon Roodman:

Our only remedy your Honor would be for within the state court system, we might pursue the remedies of contempt within the state court system.

He would not be in violation of the federal court order and we would have no remedy of contempt in federal court and no potential clash between the state sovereign and the federal sovereign.

Warren E. Burger:

And conversely, if the state courts in that hypothetical decide no entitlement that’s the end of it, is it?

Sheldon Roodman:

Yes your Honor, that is correct.

William H. Rehnquist:

Mr. Roodman, what you do with cases like In Re Ayers and Hagood against Southern that was cited in Edelman against Jordan, where the Court refused to permit suit in federal court for specific performance of a contract which I take it could well not have involved monetary damages?

Sheldon Roodman:

Your Honor, those cases did involve collection on Bonds.

Those cases didn’t were intended specifically to recover the principal — payment of principal and interest on Bonds.

They did involve money judgment.

Those cases fell within the historical purposes of the Eleventh Amendment and the original case of Chisholm versus Georgia in which there was a suit for the collection of money.

William H. Rehnquist:

Would you allow — would you think the Eleventh Amendment allowed a district court in a case such as this to order a state official to specifically perform a contract in which the state had engaged so long as it did not involve actual payment of money, supposedly to involve furnishing of supplies to a group of people?

Sheldon Roodman:

The question, Your Honor, we think would turn on principles of federalism.

It would be the extent to which the federal court order was so intrusive upon the state sovereign that it should not stand within our federal system.

That we think is the basis — the balancing test that the federal court would have to apply in that situation.

The question is throughout though — almost two hundred years of the Eleventh Amendment has always been whether the particular relief is consistent with this nation’s federalism.

And federalism requires a sensitivity to both the state interest and the national interest.

In this case, in the absence of such relief as approved by the Seventh Circuit en banc, the federal court will be ignoring and condoning the violation of the federal rights of the plaintiff class.

In our federal system, the violation of federal rights cannot go un-redressed.

What the lower courts have done here is to tailor a remedy that is sensitive to those federal rights and to the Supremacy Clause of the Constitution while at the same time recognizing the interest of — the legitimate interest of the state government and not intruding upon the institutions of state government.

By leaving to the state government, the ultimate determination of liability, the federal court here has harmonized the interests of the federal government, the federal funds that are at stake in the AABD program, the federal rights that are involved in the Social Security Act and of course, the federal interests involved in seeing that the Supremacy Clause is adhered to.

The federal interests in this case are quite different from those in the tax cases of the 1940’s and the bond cases in the later part of the Nineteenth Century.

In those cases, it was not, there was no program that was based upon co-operative federalism.

There were no federal interests involved directly in those cases.

William H. Rehnquist:

Well, Mr. Roodman, in the tax cases wasn’t the claim of Ford motor company for example that the tax violated the federal constitution?

Sheldon Roodman:

Yes.

William H. Rehnquist:

Would you say that was not of federal interest?

Sheldon Roodman:

Your Honor, there is certainly is a federal interest in the Fourteenth Amendment.

Sheldon Roodman:

That question then could be raised and presented through the state court system and ultimately considered by this Court.

And what we seek here is no more than in that case, we seek to have the issues of liability referred back to the state court system and then determine within the context of state law in the federalism — in the state court system.

William H. Rehnquist:

Well, I was puzzled by your statement that there were no federal interests about the same magnitude involved in the tax cases in the 40s as they were in this case.

I would think the federal court set to vindicate the Fourteenth Amendment quiet as much as they do to the Supremacy Clause?

Sheldon Roodman:

I certainly would agree, Your Honor.

The point was that in this case there has been a finding of a violation of federal law that this Court has upheld.

So, there because of the free-prong nature of the relief, there is a finding of a violation of federal law whereas in the tax cases the entire matter is referred in ab initio to the state court system for consideration.

The petitioner here does not explain how the notice relief in any way undermines federalism.

Further, the petitioner cites no cases in support of his position.

The petitioner seems to suggest that the state is the real party in interest and that the notices will be a burden upon his office.

However, it is important to distinguish between equitable considerations and the Eleventh Amendment considerations.

If the class here involved only 500 persons, that is a question in comparison to the equities of the case.

It is a question that this Court would weigh in the balance in deciding whether to send notices, but the Eleventh Amendment community of the state does not turn on the question of the number of persons in the class.

What is important here is for the — is for the federal courts to provide a remedy that is co-extensive with the violation.

Unless the federal remedy here of notices to the members of the plaintiff class is approved then those persons who are actually harmed by the violation of law would seek — would receive no redress whatsoever.

The petitioner further argues that the respondents are seeking to accomplish by indirection what Jordan wanted barred directly.

It is not true that this Court held in Jordan I that the members of the plaintiff class were to be barred from recovering.

What this Court held only was that the federal court could not order such recovery and therefore the decision by the federal court en banc is consistent with the original decision in Jordan I.

Finally, it is important to take into account also the principles of federalism embodied in Section 1 of the Civil Rights Act of 1871, now codified as 1983.

In enacting that provision, Congress clearly intended to provide an effective federal remedy for infringement of federal rights by state officers, just as occurred in this case.

In doing so, Congress recognized that the federal courts would be (1) overriding certain state laws; (2) providing a federal remedy where state law was inadequate and (3) providing a federal remedy where the state remedy though adequate in theory was not available in practice and that is precisely the situation we have today.

A state remedy that is available in theory, but not in practice, it is a state remedy that is only triggered by the sending of a notice and unless the members of the plaintiff clause have such notice they would be unable to utilize those procedures.

Thus it is consistent with the intent of Congress in 1983 to provide for the sending of notices to these individuals.

For the state officer here, to frustrate the intent of Congress there is a heavy burden.

The state officer must be able to show that the remedy appropriate under 1983 is a direct intrusion upon the Sovereignty of the state.

In the absence of such a showing, the argument that the 1983 remedy should be frustrated must fail.

In conclusion then, we urge the Court to affirm the judgment of the Seventh Circuit en banc, to hold the Eleventh Amendment bars an order merely requiring a state official to send notices would be inconsistent with the historical purposes of the Eleventh Amendment, it would be inconsistent with our federalism and would be inconsistent with congressional mandate embodied in 1983.

Byron R. White:

Can I pursue my previous question with you for a moment?

Sheldon Roodman:

Yes sir.

Byron R. White:

Suppose that in this complaint there had been only the so-called statutory issue, it is the claim of conflict no equal protection issue.

Byron R. White:

Would there have been a jurisdiction under 1543?

Sheldon Roodman:

Your Honor, we believe there would be this question is —

Byron R. White:

Because?

Sheldon Roodman:

Because the Supremacy Clause is an integral part of the Constitution.

Violation of the Social Security Act is in fact a violation of the Supremacy Clause and therefore —

Byron R. White:

If you are wrong on that?

Sheldon Roodman:

If we are wrong on that question that would not disturb in anyway the Court’s affirmance of the order of the Seventh circuit.

Byron R. White:

Well, I didn’t — just take my example, only the statutory claim, that is in the complaint?

Sheldon Roodman:

Excuse me, you mean jurisdictionally?

Byron R. White:

Yes was there jury — is there any.

I will ask you two questions.

Do you think you state a cause of action if there was only that, that claim in the compliant and secondly if you did, would there be jurisdiction in the Federal Court?

Sheldon Roodman:

Yes, Your Honor, to both the questions.

This Court in fact and Jordan expressly held that 1983 was an appropriate cause of action for enforcing the Social Security Act.

We would find jurisdiction —

Byron R. White:

Under the — any law as part of 1983, is that it?

Sheldon Roodman:

Yes Your Honor, there is a dual, both under the constitutional language of 1983 as well as the and laws.

Byron R. White:

Let’s assume that 1983 did not reach and laws?

Sheldon Roodman:

Yes.

Byron R. White:

Would there be a jurisdictional problem in my example?

Sheldon Roodman:

Your Honor, we would have jurisdiction under 1331.

This is a question of rising under the Constitution.

We would claim that in this case there is an excess of $10,000.

Byron R. White:

Yeah, there your cause of action would be arising under the Social Security Act?

Sheldon Roodman:

If we were then to claim that the cause of action for the violation of the Social Security Act was not a question also under 1331?

Byron R. White:

Yes, if 1983 does not reach all federal statutes and the Social Security Act isn’t covered by 1983 and you went in under 1331 attempting to state of cause of action, you would have to successfully claim that the Social Security Act gives a private cause of action?

Sheldon Roodman:

Well, we would have to.

Your Honor, in addition there is the Declaratory Judgment Act.

We would have which provides a cause of action and we would seek equitable relief under first the declaratory judgment that the acts of state officer were contrary to federal law and the Supremacy Clause and pursuant to that declaration, we would seek equitable relief to enjoin the future violations of the Social Security Act.

So, we would have no remedy adequate at law.

Sheldon Roodman:

The plaintiff’s would be suffering irreparable injury and therefore we would meet the tests under equitable jurisdiction under normal equitable principles to secure an injunction against the acts of state officers in violation –

Byron R. White:

In any event, there has been no jurisdiction issue raised in this?

Sheldon Roodman:

That is correct, Your Honor.

Byron R. White:

But I suppose, we are permitted to raise it on our own?

Sheldon Roodman:

Well, the jurisdiction of the Federal Court here is clear.

It’s already been upheld in Jordan I.

We are clearly properly in Federal Court.

It is conceivable that in other cases now pending before the Court, Houston will offer rights on it.

Byron R. White:

Well, you maybe properly in the Federal Court on the constitutional issue that you asserted under 1530 or 1543.

The question is how about the appended claim.

Sheldon Roodman:

Well, Your Honor after seven years of this litigation, I think it is appropriate for the Court to exercise that pendent jurisdiction.

William J. Brennan, Jr.:

Did you say you thought that Edelman had sustained the cause of action under 1983?

Sheldon Roodman:

Yes, I did.

William J. Brennan, Jr.:

Merely because, the allegation was in violation of a federal law, namely the Social Security Act?

Sheldon Roodman:

That is correct, Your Honor.

William H. Rehnquist:

You also allege a constitutional violation in your compliant, so that you would we presume we have an argument for pendent jurisdiction under Hagans against Lavine?

Sheldon Roodman:

Precisely, that —

Byron R. White:

Yes, but there still has to be a cause of action?

I mean, for a cause of action to be appended, there has to be a cause of action?

Sheldon Roodman:

Yes.

Byron R. White:

And if 1983 doesn’t reach the Social Security Act, there is no cause of action —

Sheldon Roodman:

Well, declaratory judgment —

Byron R. White:

— and there is nothing to be appended?

Sheldon Roodman:

Well, if 1983 would be the proper cause of action for the constitutional claim, we would have a pendent claim under that Declaratory Judgment Act and under general equitable principles for what your denominating as solely the statutory claim.

William J. Brennan, Jr.:

Yes, but would you under 1983 have a claim that is the question for a violation of the Social Security Act?

Sheldon Roodman:

Yes it is –

William J. Brennan, Jr.:

You say and I think what you said was Jordan I said you did?

Sheldon Roodman:

Precisely.

Thank you.

Warren E. Burger:

Very well, if you have anything further Mr. Wenzel.

William Wenzel:

In response to counsel’s comments, I’d like to return to what I think are two crucial facts that are particular to this case which are decisive of the issue of whether any form of notice relief is appropriate under this Court’s decision in Edelman under the Eleventh Amendment.

Those two facts are; one, when plaintiff brought his compliant in Federal Court in 1971, he alleged that he had no available administrative remedies, paragraphs 27 and 39 of the compliant, appendix A12 and A14, he purposefully chose to ignore his right to seek a hearing in state court and now some six or seven years later he is back in court saying that now he is entitled to notice.

The second crucial fact —

Thurgood Marshall:

What he was now saying is the class was entitled —

William Wenzel:

That is correct in fact, the plaintiff Mr. Justice Marshall if Mr. Jordan has received his retroactive benefits, he would not even be seeking.

The second crucial fact I believe is that in 1974 Congress repealed former Title 16 of the Social Security Act.

Any right to notice or hearing which members of the plaintiff class may have had in 1971, I believe are extinguished by the fact that there are no longer any rights or obligations with respect to notice, which are binding in —

Potter Stewart:

Well, both of these propositions are propositions that maybe, that will only be considered and maybe accepted by the state administrative agencies, of course ie, that there is no administrative remedy or B if there may have once been, now Congress is repealed the law, so there now no longer is, but that is a matter for the state courts to determine.

That doesn’t really directly bear on the Eleventh Amendment question in this case, does it?

William Wenzel:

Well, we back up to whether or not the notice.

Whether or not it will also —

Potter Stewart:

Maybe the notice is a vain thing, may be it’s futility, but that again doesn’t directly bear on the Eleventh Amendment?

William Wenzel:

Insofar is noticeable trigger the request for hearings, the hearing themselves judicial review, possible action by the legislative is triggering governmental machinery, which is far as we are concerned substantially intrudes upon the Sovereign and violates the Sovereign’s freedom form suit.

Counsel for the plaintiff stated that the state officer is not seeking to protect the state, but to block access of state remedies and I think we have sufficiently dealt with that, for the fact that we no longer are operating under a formal Title 16.

Federalism, plaintiff’s assert requires a balancing of the competing interest of the states and the federal government.

I think what plaintiff is trying to do in this case is confuse the notion of federalism as used in cases in Younger v. Harris, which I understand is a prudential notion of federalism, with the federalism that is inherited in every Eleventh Amendment controversy.

Federalism here must take into account that the Eleventh Amendment renders an absolute bar to jurisdiction of the Federal Court.

This Court has said so in Monaco versus Mississippi and the Eleventh Amendment must be given effect as far as it reaches.

So, it is not really a question of balancing the interest and for ever violation of federal law there must be a remedy.

The point is that of the suit is essentially against the state.

The state is free to assert its Eleventh Amendment immunity from suit.

Thank you.

Warren E. Burger:

Thank you gentleman.

The case is submitted.