Stafford v. Briggs – Oral Argument – April 24, 1979

Media for Stafford v. Briggs

Audio Transcription for Opinion Announcement – February 20, 1980 in Stafford v. Briggs
Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Warren E. Burger:

We’ll hear arguments next in Number 1546, Stafford against Briggs.

Mr. Brown, I think you may proceed whenever you’re ready.

Peter Megaree Brown:

Mr. Chief Justice, may it please the Court.

This is a case on writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia.

This case and Colby v. Driver set an argument in tandem.

Both involve the question, “did Congress intend in the enactment of the Mandamus and Venue Act of 1962 to grant United States District Courts nationwide personal jurisdiction over federal officers and employees in their private individual capacities, that is in essence, against them for acts allegedly performed under color of law?”

This is a civil rights tort action brought in the District of Columbia alleging unconstitutional acts and seeking money damages from the pocketbooks of four individuals who were and are federal employees.

All wrongful acts, alleged, took place in Florida.

The defendants below are petitioner Stafford, a United States attorney in the Northern District of Florida, now United States District Judge in the Northern District of Florida, petitioner Carrouth, an Assistant United States Attorney in the Northern District of Florida, now in private practice in Florida, Meadow, a federal FBI agent stationed then and now in the Northern District of Florida, and Goodwin, a trial attorney with the United States Department of Justice in Washington, D.C.

Plaintiffs are 10 individuals called to testify before a grand jury in Tallahassee, Florida in 1972.

A majority of the plaintiffs reside in Florida.

None of the plaintiffs reside in the District of Columbia.

Eight of the plaintiffs were indicted in Florida for conspiracy to riot.

After trial, each was acquitted.

They became known in the press as the Gainesville Eight.

Goodwin, who is not a petitioner here, was the prosecutor appointed as special attorney to act in Florida in connection with this investigation in Florida and the trial in Florida, out of which, this case arose.

Now, the complaint below alleges, and there has been no trial on this issue, the complaint alleges that Goodwin lied when examined in a course of the grand jury proceedings by the presiding judge in connection with the presence of government informants in the — among the subpoenaed witnesses in connection with this investigation.

Now, the complaint alleges that the petitioners knew and remained silent with regard to this alleged perjury and this constituted a conspiracy against the constitutional rights of the plaintiffs.

Plaintiffs here asked damages of 1.5 million out of the pockets of the petitioners.

They also asked for some declaratory rights and seek the appointment of a special prosecutor to bring indictments against petitioners and Goodwin.

The petitioners, having no affiliation with the District of Columbia, moved to dismiss insufficiency of jur– personal jurisdiction, insufficiency as a process, improper venue, and ultimately for a transfer of venue to Florida.

The District Court judge denied the transfer of the case to Florida, but granted the motion to dismiss.

The Circuit Court disag — Columbia Circuit Court reversed and denied rehearing.

It held that the petitioners were subject to the District of Columbia Court solely because of the use by the plaintiffs of the Mandamus and Venue Act of 1962, more precisely, 1391 (e).

The Court below determined, in effect —

William H. Rehnquist:

When you say 1391 (e) is more precisely the Mandamus and Venue Act, actually, the Mandamus and Venue Act incorp — in the statutes at large appears as two sections, doesn’t it; one creating Section 1361 and the other creating Section 1391 (e)?

Peter Megaree Brown:

Yes, Mr. Justice Rehnquist, that’s quite right.

The Mandamus and Venue Act of 1962 is comprised of 19 — of 1361 which grants the Mandamus Writ to the District Courts and, as an adjunct and to be read with it and as a part of it is Section 2 which is 1391 (e).

And, the legislative intent was that Section 2 would have as its purpose the same purpose as the first section.

They were to re — be read together and Judge Friendly in Natural Resources against TVA said they must be read together, the statute as a whole, and it’s absolutely correct.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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William H. Rehnquist:

Well, but when you say “the legislative intent was,” it’s a little bit hard to get your version of the legislative intent out of the language of 1391 (e)?

Peter Megaree Brown:

Well, 1391 (e) is cast in terms of Mandamus.

It provides an officer who is, it provides who is acting, is acting.

It doesn’t say who was acting.

It deals with ongoing present conduct.

It isn’t a model of clarity, Your Honor, but it does have language in it that has the cast of Mandamus and was intended so by the Congress in promulgating it, I submit.

William H. Rehnquist:

Except, in the Act, the– in one section, they used the word “mandamus” in 1361 and, in 1391 (e), they use the word “a civil action.”

Peter Megaree Brown:

Well, a – they — if they’re read together, it is necessary to be repetitive.

It is cast in terms of Mandamus and the — and mandamus, in promulgating it, they stated that it would be read with the same purpose as Mandamus.

And, the whole history — both the purpose and the history indicates that they were meant to be read together and, if read together, they become into perspective.

The — our petition was granted on January 15.

At the same time, the Colby v. Driver petition, a petition that I also filed, was to the Court of Appeals for the First Circuit was granted, raising for review the same statutory issues involving venue and jurisdiction and to avoid duplication with the tandem case.

And with the permission of the Court, I will make the thrust of my very brief argument, one point common to both cases and that is that the statutes simply does not apply to respondents’ suit against federal officers and employees’ pocketbooks.

My partner, Mr. Nemser, in the second case will focus on the due process point.

Now, basically, if Your Honors please, it is the language, the purpose and the history of the statute involved here that demonstrate that Congress did not intend its application to suits for money judgments against federal officers and employees.

When the statute is read in its full context with realization of its purpose, a narrow limited purpose, and in the light of its legislative history, it becomes clear that Congress did not direct or intend coverage of personal tort damage actions as a kind of the suit brought below.

As a matter of fact, the suit that is brought below by respondents didn’t exist in 1962 and it wasn’t established this Bevins type action until nine years later in 1971.

Now, respondents in the Court below misinterpret the language, purpose, and history of the statue as an unprecedented break with the past.

In proper perspective, the statute is not a sweeping general expansion of venue and jurisdiction.

Their interpretation which was embraced by the Court below would allow federal employees to become virtual shuttlecocks to be hit repeatedly in personal damage suits in scattered forms throughout the country so long as the acts complained of were alleged to have been performed under color of legal authority.

Now —

William H. Rehnquist:

Is there any recognized procedure pretrial to challenge the substance of the claim for relief other than summary judgment or motion to dismiss on the basis that it — that the venue is improper?

Peter Megaree Brown:

Well, those come to mind what Your Honor has mentioned, but in cases that I’ve been familiar with where 1391 has been used and it’s been used at least 17 times, as we put in our appendix, once you’re hit with a 1391 (e), you are going to be in pain and suffering and in danger of ultimate difficulties for a long time before you can extricate yourself even on a motion for summary judgment.

William H. Rehnquist:

You would at least have to come into the districts selected by the plaintiffs to — and file a motion for summary judgment or for impro —

Peter Megaree Brown:

Yes.

I can give Your Honor an example that I think is valid.

The — a non-petitioner here who is a defendant below is named Goodwin.

I also represent him in a — where he’s been hit as a shuttlecock in New York City.

He is sued twice there, not on the same fact situation, but he’s sort of a target because he’s a government prosecutor.

And, in those cases, the long arm statute was declared by the District Court judge not to be applicable because there wasn’t enough evidence to, at the threshold, to give jurisdiction on the long arm statute.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Peter Megaree Brown:

But Judge Hate in the Southern District of New York held that 1391 (e), without such evidence, was sufficient and he is held there in those cases because of that.

William H. Rehnquist:

And so, if he is to argue that the claim — this claim on its merits is frivolous or doesn’t state a claim for relief, he must at least go to the district which the plaintiffs have chosen and make that argument.

Peter Megaree Brown:

He will have to go to Nome.

He will have to go to Portland.

He will have to go to Albuquerque.

And, many people think that a government official is only sued once even if it’s the same facts, but in the tandem case, take Colby, for example, he was hit as a shuttlecock in Washington, D.C.

He lives in Maryland.

He was hit in Rhode Island in Driver against Helms in a billion-dollar case against him.

He was hit in San Francisco in Kipperman v. McCone.

And it was only because, after two years, we were able to persuade Judge Renshaw that 1391 (e) didn’t apply to money damage suits out of the pocketbooks of government officials.

It’s a different kind of a suit, so that, it can be difficult where you’re hit repeatedly with an easy statute.

Now, the tradition has always been that defendants, whether they are government officials or not, that they’re sued where they’re — they live, where they’re found and that’s true of all of us.

We’re sued that way.

By seizing on a mandamus type action statute in 1962, the civil rights bar here is attempting to hit government officials throughout the country in forums where, and this is significant, in forums where there is no contact either that– no contact where the action did not arise.

The statute is, if that’s 1391 (e), the venue section is drafted in such a way that wherever a plaintiff goes he may bring a 1391 action.

Take Colby.

In Colby, the plaintiffs, one of them lived in Rhode Island.

Nothing else happened in Rhode Island.

The mail openings didn’t happen in Rhode Island.

The defendants never been in Rhode Island and there are 25 of them.

William H. Rehnquist:

And none of the defendants lived in Rhode Island?

Peter Megaree Brown:

None of the defendants are in Rhode Island.

This is the “a misused” and “a misconstruction” of a statute that was meant to apply to judicial review actions, administrative actions where a historic anomaly caused them to be brought up to 1962 only in the District of Columbia.

And, wh–

Thurgood Marshall:

There was another problem.

Peter Megaree Brown:

Yes, Mr. Justice Marshall?

Thurgood Marshall:

Back in the good old days when you got on to a government official, they moved them.

Wasn’t it law for that purpose too?

I’m not talking about the “out of the pocket.”

I mean, when you want to bring mandamus against it.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Peter Megaree Brown:

The —

Thurgood Marshall:

He was gone.

Peter Megaree Brown:

Judicial review would make it possible to bring judicial review in a mandamus type action in every District Court, after 1962, and we’re not quarreling with that.

Thurgood Marshall:

You don’t object to that?

Peter Megaree Brown:

We don’t object to that at all.

The — there was good reason, Mr. Justice Marshall, and let me state the reason and I think it’s factual and it goes to the root of this case.

Hammer Budge was a Congressman from Idaho.

His constituents complained that they could not bring an action for judicial review in connection with land rights, grazing rights, wool rights, mineral rights, and because even though they had — the plaintiff was there, the local government official was there, the witnesses were in Idaho and the documents were in Idaho, he had to go to Washington, D.C. because of this anomaly.

And, he thought that was an outrage, and he was right.

It was an outrage.

So, Hammer Budge came to Washington and he went before this committee, and it’s on the first pages of the hearings.

The Court below didn’t have the benefit of the hearings, but Your Honors have the benefit of these hearings.

In the first pages, he says “let me tell you what my problem is.

We need judicial review out west, 3,000 miles away, and we can’t get any justice because if you say to us bring all those witnesses and bring all those documents and bring all those to Washington, why, then we don’t do it and we lose our day in Court.

Potter Stewart:

Well, that may be, and I assume it is, all very true so far as the historic genesis of this legislation goes, but the question is what does the legislation, as an enacted not by Hammer Budge, but by the entire Congress, both Houses of the Congress, the House and the Senate, what does it provide.

And, 1391 (e) seems, by its literal terms, to go considerably farther than — further than Hammer Budge’s original proposal, doesn’t it?

Peter Megaree Brown:

Well, I think that that was his intention and I think that his intention was–

Potter Stewart:

That’s what I said.

I assume that was his intention.

Peter Megaree Brown:

Yes.

The — Mr. Justice Stewart, this is not the first time that 1391 (e) has been before this Court.

This Court in Schlanger against Seamans, in 1971, examined the history of this statute and found that it was not literal.

You didn’t follow every word of the statute, but you look to the mischief at which it was directed and, there, it was found not to apply to habeas corpus actions.

And, Mr. Justice Douglas said explicitly at that time that 1391 (e) was to broaden venue in those civil actions that were restricted prior to 1962 to the District of Columbia.

Warren E. Burger:

But didn’t the President have something to say after the Bill was passed when he signed it?

Of course, the President can’t make legislative history and he can’t make a statute mean anything that the words do not mean, but when he signed the Bill, he made a statement that this, related to actions in the nature of mandamus.

Peter Megaree Brown:

He did.

Warren E. Burger:

Now, I suppose there —

Peter Megaree Brown:

He did, and —

Warren E. Burger:

— were a lot of slips between the time the statute — the Bill is first introduced and the time when the President signs it, but at least that suggests what the President thought what he was signing.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Peter Megaree Brown:

Mr. Chief Justice, that is very valid in the nature of mandamus was — that request to have the President do that was done because of the fear of the Deputy Attorney General at that time that there might conceivably be a misinterpretation of its narrow limits.

And, I think with hindsight, that that was present, but the cases have determined that it is limited to these kind of cases, mandamus type.

And, I think it’s interesting that in 1976, the only time I know that Congress reviewed the Mandamus and Venue Act, that, there, it stated in the hearings and the reports that it was limited to mandamus type actions.

It said that, limited to judicial review.

Now, the Second Circuit has also had occasion to review 1391 (e), and Judge Friendly, in Natural Resources and TVA, found that TVA and its officials in an injunction action was not within the ambit of the statute.

He — Judge Friendly said that the — this particular statute was not the kind of a text that could be parsed with the aid of a grammar and dictionary, but rather, what should be looked to was what was the mischief it tried to cure and what it was trying to cure here was to allow judicial review actions, mandamus type actions, in the District Courts outside the District of Columbia.

Now, the — this action brought by the respondents could not have been brought in the District of Columbia and was not in any way restricted.

Tort damage actions against public officials were never limited to the District of Columbia.

That’s a ridiculous position and it doesn’t fit.

What it — what must be done here is to examine the context of the reports.

They are preferred source.

In the context, it is clear that the problem related to providing judicial review actions of eliminating the problem of indispensible partings of allowing venue where there were actions against officials in the — in connection with their duties.

There were no personal jurisdiction problems and there were no problems of any kind in connection with a tort action against an official.

I submit to the Court that, in 1962, actions of this kind, I’ve said, didn’t exist.

They weren’t established until 1971, but actions against public officials for wrongdoing to a citizen were sueable.

They were rare because of the — of high immunity, official immunity.

The recovery was not always successful, but from Little against Barreme in 1804 to Yusalle against Goth, Barr against Mateo, Howard v. Lions, these cases all sued, usually in the State Courts, but or sometimes, transferred to the Federal Courts, but they were these suits but they were not restricted to the District of Columbia and they were not mandamus actions.

William H. Rehnquist:

Well, both Howard and Barr were diversity cases, weren’t they?

Barr was a District of Columbia general jurisdiction, but Howard was — Howard against Lions was diversity, wasn’t it?

Peter Megaree Brown:

Howard was my — that was in the Massachusetts District Court.

Howard against Lions, decided by Mr. Justice Harlan the same day as Barr against Mateo, but it was diversity.

I was simply showing that you did not have a jurisdiction problem and you did not have a venue problem.

You did not have a service problem if you’re suing in the kind of cases that the respondents are suing in, which are tort actions.

Even jumping over the fact that Bevins type actions didn’t exist at the time.

I submit that a fair reading of the preferred source, the House reports, and the Senate reports on this Bill show that these were, in essence, against the United States.

That was the keynote, and not in essence against an individual.

There is a sentence and this is the heart of the respondents’ case.

There is a sentence that you will find in the middle of the House report and you’ll find it in the middle of the Senate report, and that sentence says — it talks about damage actions against officials.

And, I submit that if you involve the venue people that the committees were discussing, that if you read the prior paragraph just once, and if you read the prio — the paragraph after that, you will see that what was being discussed there was the kind of an action which was brought before 1962 very often, and that is an action for damages against a government official in his individual capacity to circumvent what remained of the sovereign immunity and that it didn’t come out of his own pocket.

He was named.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Peter Megaree Brown:

It was a fiction.

But, I assure you that it is no fiction to be sued in one of these tort actions that respondents have brought where your mortgage is up for grabs, where your — you have to go all over the country to defend yourself and your personal reputation.

It is this type of pain and suffering that is — that occurs, that is entirely different than if you have a mandamus type action where you might not even appear in Court.

And, you — it goes in on affidavits and it’s a question of government policy and if you change jobs, the next fellow, he has to follow the new rules, if there are new rules.

But when you —

Potter Stewart:

Do you think really, Mr. Brown, that the heart of the respondents’ case are those two rather arid sentences in the midway in the committee reports of the two Houses of Congress or, rather, isn’t the heart of the respondents’ case the plain language of the statue as well as what the Deputy Attorney General of the United States told the committees the statute meant?

Peter Megaree Brown:

Which Deputy Attorney General, Mr —

Potter Stewart:

Well, three of them.

Peter Megaree Brown:

Well, I don’t agree, Mr. Justice Stewart, that —

Potter Stewart:

Lawrence Walsh, Lauren White, and Nicholas Katzenbach.

Peter Megaree Brown:

Deputy Attorney General Walsh, I submit, was merely relating what kind of actions could be brought.

He was making no recommendations.

Potter Stewart:

And how about Deputy Attorney General White?

Peter Megaree Brown:

And that fairly read, and I read it again last night, fairly read that letter of Deputy Attorney General White says that it is the understanding of the sp — it was his understanding of the sponsors that they did not intend a money judgment action against officials.

Potter Stewart:

And if they enacted this legislation?

Peter Megaree Brown:

And if legislation does not, as it is written, I’m talking about the language of 1391 (e) and also of 1361, the whole statute.

I don’t believe that that language does give the right to sue public officials in their pocketbooks in every District Court from one end of the country to another.

Potter Stewart:

Are you quoting the Attorney General or are you speaking now —

Peter Megaree Brown:

That’s the way I interpret it.

What they were doing viewed fairly, and, at the time, they were trying to be helpful and they weren’t making any recommendations.

And, I think to — if they recommend a certain procedure that isn’t followed, that doesn’t mean that — necessarily that that is an agreement.

These were slanderees to turnover, revolutionize, what has been a rule of this Court for 200 years since 1789.

It has been — thank you, Your Honors.

Harry A. Blackmun:

Mr. Brown, before you sit down, I was called out for a few minutes.

You may have covered it then, but did you comment on the 1976 amendment?

Peter Megaree Brown:

Yes, Your Honor.

The 1976 amendment was — they found a difficulty in connection with the 1962 law, and that is that, in a judicial review type of action, sometimes you had to bring in someone who was not a United States official.

You had to bring in a state agency or you had to bring in, if you had a land action in Idaho, the —

Harry A. Blackmun:

I understand all that, but where does it leave you with the 1976 amendment?

Peter Megaree Brown:

Well, the 1976 amendment, in reviewing the Mandamus Act of 1962, said that it was limited to mandamus type actions, judicial review actions, and that’s what it said. It said nothing else.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Peter Megaree Brown:

And, there is nothing, I submit, in the final remark, there is nothing about personal tort actions in these reports and there is nothing about civil rights.

There’s a lot about land rights and grazing rights, but nothing about civil rights.

Warren E. Burger:

Very well, Mr. Brown.

Mrs. Peterson.

Doris Peterson:

Mr. Chief Justice and may it please the Court.

This case is a civil damage action against four federal officials.

They are charged with a conspiracy to deny plaintiffs’ constitutional rights by a course of conduct which included the Commission of Perjury and the cover up thereof.

This case was filed in the United States District Court for the District of Columbia, the district where defendant Goodwin resides.

He was served by — personally in that district.

The three petitioners here reside in Florida.

They are charged as co-conspirators.

They are —

William H. Rehnquist:

It could’ve been filed anywhere in any district in which any of the plaintiffs resided, could it not?

Doris Peterson:

If there’s no real property involved in the action.

Warren E. Burger:

And, I take it, there’s no real property involved here?

Doris Peterson:

No.

Mr. Justice Rehnquist, that’s one of the four places that Congress provided.

It was where the plaintiffs reside, where the defendant resides, where the real property is, or where the cause of action arose.

The three defendants who are the petitioners here are also federal officials.

They resided in Florida where they were served by certified mail pursuant to the provisions of 28 USC 1391 (e).

It provides — it provided in relevant part, at the time that this action was filed, a civil action in which each defendant is an officer or employee of the United States acting in his official capacity or under color of legal authority, may be brought in any judicial district in which a defendant in the action resides.

It also provided that the delivery of the summons and complaint to the officer may be made by certified mail beyond the territorial limits of the District Court in which the action is filed.

This case fits exactly within the statute.

It is a civil action in which each defendant, at the time he committed the acts complained of, was a —

John Paul Stevens:

But, Mrs. Peterson, the statue doesn’t contain that language at the time he committed the acts complained of?

Doris Peterson:

No, Mr. —

John Paul Stevens:

You were showing how it went right within the language of the statute.

Then, you interpolated language which would’ve made it read exactly as you say but does not appear in the statute.

Doris Peterson:

The statute —

John Paul Stevens:

It doesn’t say “at the time of his conduct.”

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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John Paul Stevens:

It says “is at the time of the action.”

Doris Peterson:

Mr. Justice Stevens, it says “acting —

John Paul Stevens:

It says “is.”

Doris Peterson:

In his official capacity or under–

John Paul Stevens:

Well, are any of these people acting in official capacity at any time since the litigation started?

Doris Peterson:

They’ve all continued to act in their official capacity and we’re suing them, both in their official capacity and individual.

John Paul Stevens:

Well, I thought one of these defendants was a judge now?

Doris Peterson:

No.

John Paul Stevens:

Are you suing him as a judge?

Doris Peterson:

No, but he was still the United States prosecutor at the time the suit was filed.

John Paul Stevens:

I see.

Doris Peterson:

They were all in those same positions at that time.

John Paul Stevens:

I see.

Doris Peterson:

The other jobs that they have, have been jobs that they’ve taken subsequently.

Mr. Carrouth, as one of the petitioners, left government service and is now in private practice.

But, at the time we served him —

John Paul Stevens:

I see.

Doris Peterson:

— he was the Assistant US Attorney.

John Paul Stevens:

Is that response to my question?

Harry A. Blackmun:

Did you also say the statute said “each defendant?”

Doris Peterson:

It said “each defendant,” Your Honor, at the time that we filed this suit.

It was amended in 1976.

You’ll see that in the footnote to the statute in our brief.

In 1976, they changed it to “a defendant” because some Courts were interpreting it to mean that if they were non-federal officials as defendants, the 1391 (e) would not apply.

This action was brought in the District of Columbia where defendant Goodwin resides.

As the statute allowed us to do, we served the petitioners by certified mail.

As the Court below properly found the statutory mandate covers this case.

What this case is about is that, despite the clear language of the statute, petitioners asked the Court to read the words “a civil action” as meaning “a civil action other than a damage action.”

The flaw in petitioners’ argument is not only that it ignores the statutory language, but also that it is inconsistent with the legislative history.

The legislative —

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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William H. Rehnquist:

Mrs. Peterson, what do you do with the footnote 4 in Schlanger against Seamans which seems to suggest that, perhaps, a literal application is not required where it says this section was enacted to broaden the venue of civil actions which could previously have been brought only in the District of Columbia?

Now, certainly, previously, this was an action which could’ve been brought outside the District of Columbia, i.e. under the general venue statue where all the defendants resided?

Doris Peterson:

Mr. Justice Rehnquist, that goes to the confusion which comes when you try to follow petitioners’ approach because two statutes were enacted at the same time, 1361 and 1391 (e).

The part about “previously brought only in the District of Columbia” refers to 1361 which was a subject matter jurisdiction statute.

William H. Rehnquist:

Well, then it was this Court that was confused in Schlanger against Seamans, I take it?

Doris Peterson:

Yes.

Let me explain that case a little further because —

William H. Rehnquist:

Well, I’m curious just about the — what you do with that sentence in the footnote which doesn’t refer to 1361, but refers to 1391 (e)?

Doris Peterson:

Yes.

In the first place, this Court did not have the advantage of briefing on the legislative history of that statute.

There is one small paragraph in the government brief on the legislative history, and the — it’s just a reference to the House report.

There is nothing else in any of the briefs in Schlanger about the legislative history of this statute.

Furthermore, s —

William H. Rehnquist:

So, you feel the Court was simply wrong in Schlanger?

Doris Peterson:

No, I also believe that habeas is a different proceeding, if you go on with that footnote because —

William H. Rehnquist:

I know, but that sentence isn’t addressed to habeas.

It’s addressed to the purpose for which 1391 (e) was passed?

Doris Peterson:

Yes, but the Court did not have the advantage of many of the documents which have since become available which were not available at the time.

Things like the hearings were not yet typed up, and —

William H. Rehnquist:

Well, so you say it was a mistaken, I mean, it’s certainly been a mistake plenty times before?

Doris Peterson:

Yes, well as a matter of fact, in Monell, last year, this Court re-examined the history of a statute where it had more material available to it and I think that if the Court finds that that’s inconsistent with the approach that we take, they should re-examine it in view of the totality of the legislative history which is now available.

Also, the Court at —

Harry A. Blackmun:

So you know the material was always there.

It wasn’t anything new.

Doris Peterson:

No, Mr. Justice Blackmun, the memorandum from the Department of Justice, Nicholas D.B. Katzenbach’s memorandum, was not available until after the decision in our case when it was submitted as part — it was lodged with the Court as part of a petition for rehearing.

The hearings below had never been published and they were also made available after the decision in our case, about three weeks before the decision — the argument before the First Circuit in the Driver case.

Warren E. Burger:

How about President Kennedy’s opinion of what the statute was meant to be?

Is that available?

Doris Peterson:

Which opinion, Your Honor?

Warren E. Burger:

The opinion that Mr. Kennedy, President — the late President Kennedy, expressed the day he signed the Bill when he said it was a mandamus.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Doris Peterson:

Yes, as to that, that incidentally was recommended by the same Mr. Katzenbach who wrote the memorandum which said that damage actions were covered.

And, he did that because if you read the legislative history carefully, you’ll see that the Justice Department was very concerned that this sta — that 1361 would be interpreted to involve the discretionary acts of high level Cabinet officials, and they didn’t want it so interpreted.

So, they wanted to be sure that it would not include more subject matter jurisdiction.

1361 is a subject matter statute, 1391 (e) deals with problems of venue and personal jurisdiction.

William H. Rehnquist:

So you say President Kennedy’s signing statement is perfectly consistent with your position?

Doris Peterson:

Yes, it’s consistent with our position and, if it weren’t, it wouldn’t affect the legislative history bec–

William H. Rehnquist:

Well, that’s something I’m not all sure you’re right about because the President is a part of the legislative process just the way Congress is.

In other words, a Bill can’t become law without his signature anymore than it can when they were by passing it in both Houses.

And, if Houses of Congress, by reports, can make legislative history, why can’t the President, by a signing statement, make it?

Doris Peterson:

I don’t think presidents have a thing called the item veto.

I think a president has various options.

One is to sign legislation, two, is to veto it, or, three, he can veto it and send it back and say “I’ll sign it in this form,” but I really don’t think that it is important as far as our position is concerned because I think that what President Kennedy said is perfectly consistent with the purposes that we are suggesting here.

There were several purposes to the Bill, some related to 1361 and some related to 1391 (e). And, in order to make all of it consistent, you have to look at all of these purposes, otherwise, you get in the position that petitioners are wanting us to ignore certain parts of the legislative history and saying that they’re confusing or that this part of it is wrong.

John Paul Stevens:

Mrs. Peterson, could we go back to Seaman — Schlanger against Seamans for a moment?

Now, you suggest that what this language in the footnote was, more or less, inadvertent, but the holding of the case was that the Air Force officer could not bring a habeas corpus proceeding in the district in which his claim arose, his contract for enlistment have been breached or something.

And, if a habeas corpus proceeding is a civil action within the meaning of 1391 (e), he should have been permitted to bring that action.

So, don’t you have to either say we should overrule that decision or continue to accept habeas corpus as not being the kind of civil action that the statute refers to?

Doris Peterson:

Mr. Justice Douglas who wrote that opinion went on in the footnote to note that habeas is a unique proceeding.

He cited the Harris case.

John Paul Stevens:

Correct.

Doris Peterson:

And said that ordinary civil rules do not apply in a har — in habeas and, also, that it was a jurisdictional matter which is controlled by 28 USC 2241 in habeas power.

John Paul Stevens:

But he did say, and you apparently accept that part of the opinion, that a habeas proceeding is not a civil action within the meaning of 1391 (e)?

Doris Peterson:

Yes.

John Paul Stevens:

Although, literally, it would appear to be?

Doris Peterson:

Yes.

John Paul Stevens:

You would have, therefore, acknowledged, it would seem to me, that this section cannot be read in its full literal scope?

Doris Peterson:

Well —

John Paul Stevens:

And, as soon as you acknowledge that, then you say “well, what else should be left out?”

Isn’t it conceivable that Congress did not intend to include damage actions?

Doris Peterson:

There is a provision in the statute, in 1391 (e), “except as otherwise provided by law” and we maintain that habeas is “as otherwise provided by law.”

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Doris Peterson:

It’s provided in the habeas statute which limits jurisdiction of District Courts in habeas proceedings and, therefore, that it is consistent to maintain the Schlanger footnote.

The Court doesn’t have to overrule it if it doesn’t want to, and still take the position which we are asking for here which is in ordinary civil proceedings that 1391 (e) applies without restrictions.

John Paul Stevens:

The habeas language isn’t limiting language.

There is another statute describing the district in which it may be brought, and that’s an otherwise authorized place to bring it.

Isn’t it also true that there is other statutory language which authorizes this action to be brought?

In other words, isn’t there another section of the venue action which would say this action could be brought where the cause of action arose or where other plaintiffs reside, or something like that?

Doris Peterson:

The diversity section or the — now the federal question section —

John Paul Stevens:

Correct.

Doris Peterson:

— which, has long applied, yes, and it could’ve been brought under that.

Only, under that section, we could not have gotten a personal jurisdiction over the defendants and we needed 1391 (e) and its provisions for personal service, which the paragraph we could serve them by certified mail in order to get personal jurisdiction over the Florida defendants in this suit.

And —

William H. Rehnquist:

You could’ve served —

John Paul Stevens:

If you were suing them —

William H. Rehnquist:

You would’ve served where the claim arose?

Doris Peterson:

Yes, the defendants in this case all moved, including the defendant Goodwin, for a change of venue to Florida.

They made a 1404 (a) motion, and the District Court denied that motion, that’s a motion in the interest of justice.

And, he looked at the equities in the case and denied the motion for a change of venue, and we are now actively litigating this suit in the District Court against the defendant Goodwin.

We’re in the process of discovery.

William H. Rehnquist:

Well, but I thought you said you had to have 1391 (e) in order to get a pro — any sort of venue or jurisdiction over these people?

Doris Peterson:

Not over defendant Goodwin.

We had — we could’ve sued him in – with — totally without 1391 (e) in the District of Columbia.

William H. Rehnquist:

And you could’ve sued all of them in the District of Florida, the Northern District of Florida?

Doris Peterson:

Yes, well one of them is a federal district judge now and where they were very influential in their community.

Congress gave plaintiffs a choice of forum.

We chose a neutral form in which to bring this suit and we are suing in the District of Columbia.

And —

William H. Rehnquist:

When Congress gave it to you, you’re certainly entitled to it, but I don’t see how your argument that you had to have this in order to get any sort of a lawsuit follows from that?

Doris Peterson:

I’m sorry, Mr. Justice Rehnquist.

If I gave that impression, I did not mean that we could not have brought a suit in Florida.

We could have sued the defendants in Florida.

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Doris Peterson:

We chose to use the choice of forum which Congress gave to citizens when they’re litigating for abuse of government power by government officials.

Congress gave citizens that choice.

That’s why they passed this statute.

That’s what the legislative history is full of.

William H. Rehnquist:

Don’t you think that Hammer Budge would’ve been quite satisfied to be able to sue a government defendant in the district where the claim arose that his people out in Idaho had to — wouldn’t have to come back here and wa — to Washington.

They could’ve sued out in Idaho if that’s where the government of — government action took place?

Doris Peterson:

Congressman Budge had one intention when he introduced this statute, but Congressman Budge was only one of the Congress people in the whole process.

In the course, the Bill that he introduced would not have permitted this suit, but the Bill went through an evolutionary change in the course of its legislative history.

We set out on page 62 of our brief the changes that were made after the hearings.

After Mr. MacGuineas told them that if they added the “under color of law” language it would mean that the defendant would pay out of his own pocket and, after being warned about that and told that that’s what it would mean, they added that language.

Warren E. Burger:

Your emphasis on the Congressman who introduced it brings it up again, to my mind, that President Kennedy, as all presidents, is one of the essential components of the legislative process.

He added to the confusion, perhaps, by saying what he thought he was signing that day.

Now, if he mistakenly s — if he was mistaken, of course, what he signed is more important than what he thought he was signing, but —

Doris Peterson:

But —

Warren E. Burger:

It’s an element in the total legislative history, is it not?

Doris Peterson:

Yes, Mr. Chief Justice.

He was talking about the subject matter jurisdiction of Courts, and we do not maintain that 1391 (e) added to the subject matter jurisdiction of the Courts.

And, also, Deputy Attorney General White, in his letter, you will see when he talks about 1391 (e), that Section of the Bill, he says it deals with the entirely different subject, different from 1361, from the first section of the Bill which became 1361.

Warren E. Burger:

Perhaps he and Mr. Kennedy didn’t get on the same wavelength at some point?[Attempt to Laughter]

Doris Peterson:

The purposes of the —

John Paul Stevens:

Deputy Attorney General said the purpose, after saying it’s an entirely different subject, went on to say the purpose of this section of the Bill is to have officers who live in the capital, that’s Washington, subject to suits throughout the country to the extent that they can now be sued in the district.

That doesn’t fit your case.

That’s what jus — Byron White said in that letter, pages 9 (a) and 10 (a) of your —

Doris Peterson:

Yes, the second paragraph there, Your Honor?

John Paul Stevens:

Well, the one that begins in the bottom of 9 (a) —

Doris Peterson:

Yes.

John Paul Stevens:

— right after the language you read that has an entirely different subject in next sentences that, after exhausting remedies to challenged legality of that so — decision, the officer residing in Washington must be sued in Washington.

The purpose of this section of the Bill is to have officers who live in the capital subject to suit throughout the country to the same extent that they can now be sued in the district.

I don’t understand how that helps you.

Doris Peterson:

Yes, except that there were several purposes and this is one of the —

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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John Paul Stevens:

This is the one that the Deputy Attorney General had in mind when he said it was entirely different from Section 1, at least that’s what his letter said?

Doris Peterson:

It says it is generally made by an official residing in the District of Columbia, but in passing this legislation, Congress was concerned with citizens all over the country and wherever the decisions were being made and that the citizen would have the choice — would make — they would make government officials amenable in four different places.

On page 11 (a), if you will go on, Your Honor, it says the pending Bill would pace — place venue in any judicial district wherein the plaintiff resides.

And then, they — he was concerned about such a general grant of venue and he made some recommendations as to how the plaintiff’s choice should be limited.

Congress listened to him and they narrowed it, and they did not allow it to be wherever the plaintiff resided.

They only allowed it to be where the plaintiff resided if no real property was involved.

They were listening very carefully to the opinions that were coming from the Department of Justice and responding to them, but they did not react to the opinion from Deputy Attorney General White that they should tie this in to the Administrative Procedure Act.

In order to eliminate money damages, we get back to the question which was raised earlier by Mr. Justice Rehnquist and by Mr. Justice Stewart about the difference in the wording of the two Bills.

The two sections of the Bill —

Thurgood Marshall:

But this petitioner doesn’t disagree with you on that.

I understand the petitioner says you can sue them, but you can’t sue his pocketbook.

You can sue him for mandamus and anything else that doesn’t involve his money?

Doris Peterson:

But the Bill does not put in the restriction that limits it to — limits and eliminates suits out of his pocketbook.

And, as a matter of fact, Congress was warned as to what the language would mean.

Thurgood Marshall:

Do you think Congress really intended that this group of people should be the only people in the world in the United States can be sued any place?

Doris Peterson:

This group of people is in a unique situation.

Thurgood Marshall:

Well, do you think —

Doris Peterson:

And one of the things w —

Thurgood Marshall:

Do you think Congress meant that?

Doris Peterson:

Yes.

One of the things which Cong —

Thurgood Marshall:

Do you think Congress meant that?

Doris Peterson:

Yes, Mr. Justice Marshall, one of the things which Congress considered was that there would be free representation in these cases that the Department of Justice was all over the country and would be defending these suits, which they have been doing in this —

Thurgood Marshall:

Aren’t they defendants in this suit?

Doris Peterson:

Yes, they gave free representation on —

Thurgood Marshall:

Aren’t they defending this suit?

Doris Peterson:

Well, Mr. Justice Mar —

Thurgood Marshall:

Are they paying for it?

Doris Peterson:

Yes.

Thurgood Marshall:

Did counsel fees indicate it?

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Doris Peterson:

Yes, they are.

The Justice Department’s attorneys acted in this suit up until the point where a petition for certiorari —

Thurgood Marshall:

My question was now.

I didn’t say about on any day.

Doris Peterson:

Yes, and then what–

Thurgood Marshall:

I said “are they,” that means “now.”

Doris Peterson:

Yes.

Thurgood Marshall:

Are they now paying the lawyers in this case?

Doris Peterson:

Yes, Mr. Justice Marshall.

Thurgood Marshall:

For this action?

Are they paying Mr. Brown right now?

Doris Peterson:

Yes, they are, Mr. Justice Marshall.

They are paying his fees and expenses as they do in all of these cases when government officials are sued out of their pocket for acts that are beyond the scope of their duties, but in connection with their office.

Now, if a government official gets sued privately for private acts, they don’t represent him.

But —

Thurgood Marshall:

Will the government pay the judgment if there is one?

Doris Peterson:

Does the — I’m sorry?

Thurgood Marshall:

Will the jud — will the government pay the judgment if there is one?

Doris Peterson:

No — that’s down the road, but we are suing to obtain a judgment from the defendants individually, out of their pockets.

Thurgood Marshall:

I thought so.

That’s what I thought.

Doris Peterson:

Yes.

Thurgood Marshall:

And that’s what I’m worried about.

Doris Peterson:

I — there was a series of events in the legislative history.

Five crucial events, which are all set forth in our brief and which I do not have time to go through.

There’s the first letter from the Department of Justice making Congress aware of the problem.

There were the hearings in which damage actions were extensively discussed.

They were very concerned about damage actions because Barr v. Matteo had just come down and though it talked about a scope of immunity.

It talked about also the outer perimeters of it and they knew that there could be such suits beyond the perimeters.

And, also — then there was a redrafted Bill in which they added the very language which they were warned about, the “under color of law” language, and they put in the House report that their problem arises in damage actions seeking damages from him, from the government official, not from the government, but from him for actions which are claimed to be beyond the scope of the authority.

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Doris Peterson:

Then, there was the second Department of Justice letter from then Deputy Attorney General Byron White and the Senate report which put in again that paragraph about seeking damages from him, from the government official, and then we got the Department of Justice acknowledgment that damage actions were covered, written by the then Deputy Attorney General Katzenbach who also advised the President to issue that statement so as to be sure that the powers of the Cabinet were not interfered with.

We will not have time to deal with the issue as to personal jurisdiction.

On that issue, I’d just like to say, very briefly, that we got personal jurisdiction by a combination of two things, Rule 4 (f) which permits service beyond the territorial limits of a state when a statute so authorizes it, and 1391 (e) is the statute which authorized it.

And, we also will not deal with the petitioners’ due process claims, but I just want to say on that that the government has conceded that the Court below was right on this issue and petitioners have conceded that this Court’s decisions in the International Shoe Co. line of cases do not apply to the extraterrito — those cases which deal with the extraterritorial assertion of powers by states beyond its borders are not applicable here where Congress is using its power within the continental limits of the United States.

Congress has legislated to allow service of process on a nationwide basis as is done in other statutes.

William H. Rehnquist:

Well, they could do it in Hawaii, too?

Doris Peterson:

Yes, and in Hawaii, but — and in Alaska, but they are now states of the Union and–

William H. Rehnquist:

I thought you said the continental limits?

Doris Peterson:

No, I’m sorry.

I did, Your Honor, and it was an error.

I include, within that, all states.

It does not apply in the canals zone.

There’s been interpretation to that effect.

This Court has recognized it in Mississippi Publishing Corporation, United States against Union Pacific Railroad, Robertson, and Toland that nationwide service of process is something that Congress can authorize, and Congress did here.

And, we submit that petitioners’ argument about fair play and substantial justice do not rise to the level of a constitutional argument.

Here, the — in Shaffer, this fairness which is discussed there relates to the fairness that exercise of power by a particular sovereign and, here, the sovereign has exercised its power.

Petitioners are complaining about the great burden of litigating, but they have been represented either by the Department of Justice or by free counsel since this litigation began, and petitioners admi — have not yet once had to appear in a Court proceeding.

And, in response to Mr. Justice Rehnquist’s question earlier about what they can do pretrial, they can make a motion for a change of venue and have that considered —

William H. Rehnquist:

Or at least got to come down into the place where the plaintiffs picked to make their initial motion?

Doris Peterson:

No, the Department of Justice does it for them in these cases.

William H. Rehnquist:

Well, but there’s nothing in the statute that says the Department of Justice shall or will or —

Doris Peterson:

At the hearings, the Department of Justice represented to assure Congress that free representation has been provided in these beyond-scope suits to justice — government officials for over 100 years and they have been continuing to give the representation.

William H. Rehnquist:

But another Attorney General could change that policy at will?

Doris Peterson:

Yes, and Congress can decide to change the statute, too.

After — that can be another debate between the Department of Justice and Congress, but at the moment, Congress has decided that suits against government officials are possible in these four places.

William H. Rehnquist:

Well, how relevant is it to the reading of this statute whether or not the government is going to provide counsel and defense expenses?

Is that controlling?

Doris Peterson:

Mr. Chief Justice, would you repeat that question?

William H. Rehnquist:

Is it controlling whether the government is going to provide the representation?

Doris Peterson:

No, I don’t think that’s controlling.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Doris Peterson:

I think what is controlling is what Congress did.

William H. Rehnquist:

It takes — it might mitigate the hardship argument but it doesn’t have anything to do with the meaning of the statute, does it?

Doris Peterson:

No, it doesn’t.

William H. Rehnquist:

Mrs. Peterson, may I ask one other question to be sure I haven’t missed something?

The language that you stress, and it’s important language of course, is to seek damages from him personally for actions taken.

Now, that appeared in Deputy General Walsh’s letter which, in turn, was included as part of the exhibit to the committee reports, as I understand it.

Was it otherwise used?

Did the committee itself used that language independently of quoting Walsh’s letter?

Doris Peterson:

Yes, it was in all three Bills.

There were two House Bills —

William H. Rehnquist:

No, I know that.

Doris Peterson:

Two House reports, I’m sorry.

Two House reports —

William H. Rehnquist:

Independently of being quoted in — having a letter, as a whole, quote?

Doris Peterson:

Yes.

Within all of the reports themselves, there is a paragraph which says the venue problem also arises in an action against a government official seeking damages from him for actions which are claimed to be without legal authority but which were taken by official in the course of performing his duty, and that paragraph was left into the Senate report.

It was in both House reports and Senator Mansfield inserted it in the congressional record at the time that the Bill was passed.

There was no question that Congress clearly knew that damage actions were within the coverage of the Bill.

They were pulled there by the White letter right before the Bill was passed and they chose not to limit the statute and tie it into the Administrative Procedure Act.

Warren E. Burger:

Very well.

Thank you, counsel.

The case is submitted.

We’ll hear arguments next in Colby against Driver.

Mr. Nemser, I believe you can proceed whenever you’re ready.

Earl H. Nemser:

Mr. Chief Justice and may it please the Court.

I just want to pick up for a minute since we are talking about, really, the same issues on what Mrs. Peterson just mentioned and she talked about that one sentence from the legislative history which Mr. Brown referred to.

I don’t want the Court to be misled by the sentence because the First Circuit was misled by it and the District Court was misled by it.

So, let’s read it.

It says “the venue problem also arises in damage actions against federal officials.”

What was the venue problem?

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Earl H. Nemser:

The venue problem was that certain suits were limited to the District of Columbia only.

Right above that sentence, it says “the venue problem — the problem of venue in actions against government officials arises when the action must be brought against the official in the District of Columbia,” and the report says “that venue problem also arises in suits against federal officials for damages.”

So, to understand what Congress meant, we’ve got to say “think, where did that venue problem arise in suits against federal officials for damages?” Only in one type of damage action.

That type of damage action which was in the nature of mandamus and which sought to compel payment of money.

This Court referred to 1391 (e) in South Carolina against Pat Katzenbach, I believe, and it said when you sue federal officials, you could now sue them outside of Washington, D.C and, in a footnote, it said “see Stroud against Benson.”

Stroud against Benson was just that kind of damage action.

It sought to compel a payment in the nature of mandamus from a federal official and that damage action was, at the time this Act was enacted, limited to Section 1391 (e).

And, I think we had a serious problem that the First Circuit and respondents read this one sentence in isolation and didn’t read it in the context of the whole committee report.

John Paul Stevens:

Mr. Nemser, before you leave it, is that whole paragraph quoted in some of the papers?

I seemed to have missed it.

I only —

Earl H. Nemser:

Well, the respon — we quoted it — the respondents quoted it about every 10 pages.

John Paul Stevens:

Well, but they quote — I’m sure.[Attempt to Laughter]

— the whole thing you’ve read, where is that quote?

Earl H. Nemser:

Well, the House report is attached to our cert petition and, if you have that, it’s — will appear at page 92 (a) of our cert petition.

And, if you look just at the paragraph above that, there’s the venue problem they were talking about.

I just want to spend another minute on the clear wording of the statute which Mr. Justice Stewart raised some questions about.

Warren E. Burger:

Mr. Nemser before you go on, you said 92 (a) of your cert petition.

I’m not so sure that that has what I thought Mr. Justice Stevens was inquiring about.

Earl H. Nemser:

Second to the bottom paragraph.

Warren E. Burger:

Well, it isn’t — doesn’t purport to be quoted, does it?

Earl H. Nemser:

Well, that’s it, quoted, yes.

Warren E. Burger:

I see.

This is all quoted from 90 (a) onwards?

Earl H. Nemser:

Verbatim, yes.

The House report begins on page 89 (a), which is appendix E.

The plain wording of the statute, in our view, covers only actions in the nature of mandamus.

When you sue a federal official in a civil action acting in his official capacity or under color of law, he’s acting.

He’s acting like an official and you need a mandamus to force him to act correctly or an injunction to stop him from acting improperly.

If you’re going to sue him from damages, he has already acted.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Earl H. Nemser:

He acted a long time ago and now you want to get damages.

If Congress wanted to include damage actions, it would’ve left out the phrase acting in his official capacity or under color of legal authority and it would have just said, a civil action in which a defendant is an officer employee or an agency of the United States.

Potter Stewart:

Well, it’s that disjunctive phrase that you stated.

It’s kind of — it’s Duchesne, upon which reliance is had or under color of legal authority?

Earl H. Nemser:

Yes.

Take a look at what the House Committee report said about that.

It was very specific, the Senate report I think has the same language and, again, the First Circuit —

Warren E. Burger:

Where is it you’re looking at?

Give us the page.

Earl H. Nemser:

I’m taking a look at it, page 94 (a).

Potter Stewart:

Of the cert petition?

Earl H. Nemser:

Of the cert petition.

“By including the officer or employee, both in his official capacity and acting under color of legal authority, the committee intends to make 1391 (e) applicable to those cases where an action may be brought against an officer or employee in his official capacity,” and then we say “what else did it intend to do?”

Potter Stewart:

Well, you left out the “not only.”

Earl H. Nemser:

“Not only,” then what does it say?

“It intends to include also those cases where the action is nominally brought against the official in his individual capacity even though he was acting within the c — parent scope of his authority,” and then it says “these cases are, in essence, against the United States.”

The Driver case against Colby is not nominally against Colby.

It’s not nominally against Walters.

They’re not, in essence, against the United States.

They’re, in essence, against Colby’s pocketbook and Walter’s pocketbook.

William H. Rehnquist:

You say that what they were basically the old Custis-Lee Mansion type of case where you sue the official, but what you really want to do is avoid sovereign immunity?

Earl H. Nemser:

That’s exactly what the committee reports indicate that was in mind, and they could not have meant that these types of action were in mind, well for one reason, is that they didn’t exist then.

But, there’s not one mention of it, and if this is to be the most radical departure from our rules of in personam jurisdiction and if Congress intended to do this, there would’ve been a loud cry in 1962 and we’d all have known about it.

It would’ve been clearly expressed, and —

Potter Stewart:

Well, we might not have been allowed to cry if you’re correct in your submission that these cases were very rare in 1962?

Earl H. Nemser:

I guess that’s right.

I guess, since they didn’t exist, we really wouldn’t have even known it.

That means, Congress hadn’t been — had to have been legislating in this area without knowledge of it, and that brings us to the questions raised in NLRB against the Catholic Bishop of Chicago recently or Suede against Presley, “do we have a substantial constitutional issue that must be avoided?”

I think I’ve shown the statute is susceptible to two fair readings, at least.

Warren E. Burger:

Is not the last sentence of that 94 (a) paragraph somewhat important here? “there is no intention,” this is the committee speaking, I take it, “to alter the venue requirements of federal law insofar as suits resulting from the official’s private actions are concerned.”

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Earl H. Nemser:

And if you go back to, I guess, ex parte Young where they have the famous language “when an official acts beyond the scope of his authority, he’s stripped of his official capacity and he’s acting like an individual.

You’re trying to get damage from him, you’re trying to get damages against him as a private person.”

I think that language is important, but — I mean, it’s very important.

John Paul Stevens:

Mr. Nemser, you suggested earlier that if the — your opponent was correct, the Congress would’ve simply omitted the words “acting in his official capacity.”

Earl H. Nemser:

As a —

John Paul Stevens:

So, had they admitted it entirely, then you would’ve had — this would’ve applied to private litigation against a person who happens to be an officer of the —

Earl H. Nemser:

When you sue William Colby as —

John Paul Stevens:

— of the United States solely for breach of contract —

Earl H. Nemser:

When you sue William Colby as director of instel — Central Intelligence, you’re suing him as an official.

When you sue him as an individual —

John Paul Stevens:

No, but the statutory language, as you suggested, it would simply read “a simple act in which a defendant is an officer or an employee.”

Now, you say, William Colby happened to be sued because he didn’t make his mortgage payments or something like that.

The statute would’ve then applied to that situation.

Earl H. Nemser:

I don’t think it would’ve been read that way.

I think it would’ve been read to prove —

John Paul Stevens:

Well, I mean, it’s arguable but at least this language was included to avoid that reading, that’s your argument?

Earl H. Nemser:

Judge Petin said that one thing every Court’s opinion and it is about is that the statute isn’t clear on its face.

I don’t have a suggestion better than the one I gave you.

Maybe they should have said “in mandamus suits,” I don’t know.

I think they struggled.

Petin said it wasn’t clear in its face.

The First Circuit said the legislative history, at best, was ambiguous.

So, where do you go from there when you have Justice Brandais saying “you’ve got to clearly express exceptions from our general rules of in personam jurisdiction.”

To interpret Section 1391 (e) this way, and I want to spend a few minutes on the constitutional issue, would be the most radical departure from our traditions of in personam jurisdiction.

It would subject Colby and Walters to jurisdiction in Hawaii, in Alaska, in every state of the country even though they’ve had no contact whatsoever with those forums without regard to the question of whether or not —

Thurgood Marshall:

The Congress has that power, if it wants to?

Earl H. Nemser:

Well, I don’t think this Court ever said Congress had that power.

Thurgood Marshall:

But Congress —

Earl H. Nemser:

It doesn’t have that power.

It has that power in special classes —

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Thurgood Marshall:

Congress didn’t have power with the jurisdiction of Federal Courts?

Earl H. Nemser:

Congress has power to define the jurisdiction of Federal Courts.

Our question is, what limitation does the Fifth Amendment impose on the exercise of that power, if that power is to be exercised in a manner which places an intolerable burden —

Thurgood Marshall:

I don’t think you need to continue.

You don’t attack it on that basis, do you?

Earl H. Nemser:

I do.

Thurgood Marshall:

You say it’s unconstitutional?

Earl H. Nemser:

I do.

Thurgood Marshall:

You still do?

Earl H. Nemser:

I still do.[Attempt to Laughter]

This Court has never addressed it.

In Toland against Sprague, we were talking about whether a foreign attachment could be issued against a non-US domiciliary.

In Union Pacific Railroad, 100 years before Shaffer against Heitner and just after Pennoyer, we were talking about whether in one case the Attorney General could bring a suit against the railroad.

In Mississippi against Murphy, we were talking about whether someone could be sued in the Northern District rather than the Southern District of Mississippi.

We think that Justice Marshall’s decision in Shaffer —

Thurgood Marshall:

Took care of Pennoyer.

Earl H. Nemser:

Took care of Pennoyer, put it to rest forever, and said that territorial power, which the United States has over all of us, is no longer essential and sufficient for the exercise of jurisdiction.

Now, we’ve got to measure jurisdiction by our traditional notions of fair play, and substantial justice.

And, we say that to make Colby and Walters travel to Rhode Island to defend this suit would violate those principles and raise serious constitutional issues and, because it would impose an intolerable burden on the right to defend a right addressed in Boddie against Connecticut.

It would, in fact, violate Fifth Amendment Due Process in this case.

Thank you.

Warren E. Burger:

Mrs. Stillman.

Elinor Hadley Stillman:

Mr. Chief Justice and may it please the Court.

At the outset, perhaps I should make clear, it doesn’t go to the merits of the issue, but the United States is paying for private counsel for the petitioners in this case, but there is no guarantee that the United States will always do that.

In fact, there are some policy guidelines that the Department of Justice has issued that are — can be found at 28 CFR 50.15 and, Section A (2) says “upon receipt of the agency’s notification for request for counsel, the Civil Division will determine whether the employee’s action is reasonably appear to have been performed within the scope of his employment and whether providing representation is in the interest of the United States, and these people have no guarantee that that determination is going to be made in their favor or that future Attorneys General will continue this policy or that Congress won’t enact some law that would prevent it.

I’d like to begin with Schlanger because we believe that this Court has, in Schlanger, determined that the phrase “civil actions” in the statute does not shut us out on this issue.

In Schlanger, the Court did have certain important parts of the legislative history before it because, in footnote 4, it cites both the House report and the Senate report.

I’m talking about House Report 536 and Senate Report 1692, and both of those compl — contain this famous sentence we’ve all been discussing here about venue problems and suits for damages.

And, the Senate report contains Deputy Attorney General White’s letter that the Court below relied on and that respondents rely on, and that did not prevent this Court in Schlanger from saying, not respecting that habeas corpus could be considered a civil action, and it says it applies to civil actions.

We’re not going to assume that Congress made this sweeping change in habeas corpus venue.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Elinor Hadley Stillman:

Now, with respect to the question, which I believe Mr. Justice Stewart said when Hammer Budge was mentioned, “isn’t that just the genesis of this legislation and didn’t the Congress actually enact the staten — the statute later in 1962?

Don’t we have to look to the intent of Congress at that time?”

I think the 1960 hearings and what Hammer Budge and his colleagues on that committee intended are very important because, for one thing, the famous sentence that we’re talking about here appeared in the House report in 1936.

The first House report that was issued right after those hearings in that session of Congress, and that report evidently comes out of what the committee learned in the course of the hearings and determined in the course of the hearings.

If you go to the hearings, you will find in the transcripts of the hearings, you will find references to damage actions.

And, in the very early pages of the hearings, there are some sort of casual references to suits against a Congressman for slander and suits against a postman who slapped housewives while they’re delivering the mail, and so on.

But, as the hearings draw to the close, after they’ve heard the testimony of Judge Albert Maris and the testimony of the Justice Department representative and have considered all the problems that they needed to deal with here, Congressman Budge said at the very close of the hearing “people keep coming back to these slander type actions,” this is page 2 –102 of the transcript, “people keep coming back to these slander type actions and that’s not what I had in mind at all.”

He says what he did have in mind was review of administrative action, that the person out in Idaho can get that review without coming to the District of Columbia.

And, when he spoke of his Idaho constituent who had this problem that he wanted to remedy by this Act, Congressman Budge said “this is a constituent who wants to sue the federal officer in charge out there and he can’t sue the federal officer in charge out there because — the reason he can’t is if he tried to sue him in mandamus, of course only the District of Columbia had mandamus jurisdiction at that time and if the suit somehow escapes classification as a mandamus action, perhaps it’s viewed simply as an injunctant, enjoining him from doing something, the federal official in charge out in Idaho could simply say “well, I’m carrying out the orders of my superior in Washington.”

This would raise the indispensable party problem and the suit would be dismissed in Idaho.

Of course, if —

William H. Rehnquist:

That’s what happened in Tully against Regan, wasn’t it, where they dismissed the action against the FBI or President Agent in the District of Illinois because —

Elinor Hadley Stillman:

Yes.

William H. Rehnquist:

— the Attorney General was regarded as an indispensable party?

Elinor Hadley Stillman:

Exactly, and it’s what happened in Stroud v. Benson also.

This Court’s decision in Williams v. Fanning did not solve the problem. [Attempt to Laughter]

But, of course, if the citizen out in Idaho had wanted to sue that federal officer in damages, in the type of damage suit that ar — had risen before this Act was passed, these were typically trespass actions, ejectment actions, false imprisonment, they were common law torts, nothing would keep him from suing him in the State Court of Idaho, in which the case might be removed to Federal Court.

In fact, many of the damage actions that respondents cite in their brief are brought — were brought exactly this way.

US v. Lee that they cite was brought in the Circuit County Courts of Virginia and removed to the Federal Court.

So, that can’t have been the problem that Representative Budge was concerned with.

Also in the hearings, despite these early references to slander type actions and slapping — and postman slapping the housewives, Representative Doughty, who earlier had in a sort of moment of, I think, irritation at the Justice Department witness, said “well, maybe we want to cover all type of actions.”

But later on, Justice Doughty, being more fully advised, said “I don’t have inconsideration that what we have in mind here is money damage type suits.

Now, the question then I think it’s very clear from reading these hearings that what these congressmen intended was not the type of suit which the respondents have brought here or the type of damage suits that existed against the federal officials at that time.

The question then is, did that intent carryover when Congress passed the Mandamus and Venue statute in 1962?

Now, the House report in 1962 that contains that sentence that was in the earlier report is just sort of verbatim carried over from the earlier report.

There’s no evidence that somebody’s thought down and — sat down and thought about what that sentence meant anymore than they thought they carried over the report in toto.

I might say that the hearings throw some light on that sentence however because at page 87 of the transcript somebody brings up the question of money damages.

Judge Maris is testifying at that point and he said “well, there are some old damage type actions.

There are suits against collectors.”

And he said, “you pretend you’re suing the collector individually, but in fact, he has recoupment from the United States if he has just and reasonable cause.”

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Elinor Hadley Stillman:

It’s possible that the person who was directed to draw up this House report, wanting to make sure that he includes in the report everything that’s come up in the hearings which Congress hasn’t said — which the congressmen haven’t indicated that they didn’t want to cover, saw that remark and said “the venue problem may arise sometimes in suits for damages.”

It’s not —

Warren E. Burger:

You’re making a pretty strong case for not paying too much attention to legislative history?

Elinor Hadley Stillman:

Well, I think it’s in the–

Warren E. Burger:

I’m not sure, which is your objective?

Elinor Hadley Stillman:

Well, I think, Your Honor, that’s an explanation for that sentence and it’s an explanation for the sentence which suits our understanding of the statute, that it refers to damage type actions which, as Mr. Nemser said, are in essence against the United States and not the damage type actions which we have in this case, which don’t imply a fiction and which are not, in essence, against the United States.

Now, turning to the phrase “under color of legal authority,” this also came up during the hearings and it was first raised by Committee Counsel Drabkin.

Later on, it was picked up by Representative Poff said, because they’ve been raising the pra — the problem of, well, what do you do if the officers are named individually?

And, Poff said “why don’t we use this phrase” and Judge Maris, again, said “yes, use that phrase.

That’s a good phrase because, let’s get down to what we’re really doing here, reviewing administrative action.”

If they included that phrase, they would also cover those actions in which you name the federal officer, pretended to be suing him individually, but what you were doing using the fiction of ex parte Young, the fiction which the Larson Court said was a way of getting around sovereign immunity, but you were still essentially reviewing action of the federal officer and not suing him for damages.

You were going after equitable relief.

And, as Mr. Nemser has pointed out, the phrase “under color of legal authority” is specifically explained in the later House report.

They said what they meant by it.

What they meant by it is what we say it means, and we see no reason that the Court should adopt a contrary reading of it.

Now, concerning Mr. Justice White’s letter, the Court below and the respondents assume that that letter is essentially an ungranted request for a change in the statute with respect to damage actions.

I don’t think that’s a fair reading of the letter.

The letter says there will be less confusion if you didn’t use that language.

You could make it absolutely unmistakable that money damage suits against officers are not included, but the letter goes on to say “this, we assume, is in accord with the purpose of the Committee of the Congress.”

Now, I think, Mr. Justice White had the better of the argument.

It may be that the Congress kept the phrases in by pride of authorship or whatever other reason, and I think Mr. Justice White, then Deputy Attorney General White, probably had the better of the argument about what would’ve made the statute absolutely clear, but he was not — you can’t read that letter to mean that he was asking them to make a change, which they then refused to make.

Now, as to the memorandum by Attorney General Katzenbach, that’s a memorandum which, of course, is not part of the legislative history because it went out after the statute had passed, went out under his name.

It was a seven-page memorandum that went out to the various offices of US attorneys, explaining the author of the memorandum’s view of what the statute meant.

There’s no blinking the fact that it says it covers liable and slander actions, and we think that it’s wrong that the legislative history is powerful evidence.

Otherwise —

Potter Stewart:

It’s the memorandum referred to in the footnote 34 of your amicus brief?

Elinor Hadley Stillman:

Yes, Your Honor.

Potter Stewart:

In which, you say at the conclusion that the best explanation of this memorandum is that it’s wrong?

Elinor Hadley Stillman:

Yes, Your Honor, but it isn’t part of the legislative history and it simply doesn’t have the same weight.

If Attorney General Katzenbach had included that in the letter to the Congress before this — before the Act was passed and said “this is what we assume what you’re trying to and we don’t want you to do it” and Congress had then passed the Act, I think we would not be here today, but that’s not what happened.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Potter Stewart:

I’d be surprised if you weren’t.[Laughter]

Elinor Hadley Stillman:

Well —

Warren E. Burger:

In what category do you put the President’s observations about the Bill?

Elinor Hadley Stillman:

Well, the President —

Warren E. Burger:

And you put it in your — as an appendix to your brief, as I recall.

Potter Stewart:

It’s on page 48.

Elinor Hadley Stillman:

Yes.

I think the Pre — I think that indicates the understanding of the President and his advisers [Attempt to Laughter] that what he was signing was a Bill which extended to the District Courts, the jurisdiction hereto enjoyed solely by the District Court of Columbia.

I think he assumes, as we say the reports read, that this Bill and the Venues — including the Venue Section is only concerned with the types of suits which could formally have brought — been brought only in the District of Columbia.

Now, something has also been said about the letter that Lawrence Walsh, Deputy Attorney Walsh, wrote to the committee.

This was very early and I think you have to put that in perspective.

Deputy Attorney General Walsh had before him to comment on, at that time, the original Bill, HR10089, which spoke only to suing officers in their official capacity and did not extent mandamus jurisdiction, had no subject matter extension.

He just remarked on the Bill, “well, it looks to me as if this Bill won’t do what you want it to do because it won’t extend mandamus jurisdiction.”

He also observed that it wouldn’t cover the two types of suits which could then be brought against federal officers individually.

One of which, was damage suits, the other of which, were injunction suits where you’re naming them individually to get around sovereign immunity.

He said “I assume this is not the committee’s concern.”

Now, in fact, he was wrong about the second category, but he was right about the first category as the subsequent hearings and the explanation of the phrase “under color of legal authority” in all — in the House report show.

So, to put a lot of weight on what he says in that letter, operating at the very beginning of the process or to interpret it as showing that, somehow, the government was arguing with them at that point and ask — begging them not to include money damage suits I think would be — would put in improper interpretation on that particular bit of legislative history.

I think, in summing up, we submit that construing a federal statute such as this involves more than looking at its words and consulting a dictionary.

This Court has said in Schla — has said in cases such as American Trucking Associations such as Train versus Colorado Public Interest Research Group, that it’s not going to stop that language which, upon superficial examination, might tend to go in favor of one party.

Each statute has a history in the Plain Meaning Doctrine.

It’s not a warrant for disregarding what that history tells us.

We submit that what the history of 1391 (e) tells us, seen it in its entirety and not as a source of extractable fragments, is clear.

Congress wanted to make it possible for the aggrieved citizen in Idaho to challenge actions of his government without going to the District of Columbia to do so.

To litigate his rights under the Taylor Grazing Act or to compel a forest service officer to issue a permit to him out there if it was the duty of the officer to do so, the judgments should be reversed.

Thank you.

Warren E. Burger:

Very well.

Mr. Wulf.

Melvin L. Wulf:

Mr. Chief Justice and may it please the Court.

The argument has been proceeding in a very abstract kind of way and I would like to introduce a little concreteness to it for a moment, if I may.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Melvin L. Wulf:

I want to remind the Court what this suit is about and what the issues and problems are confronting the plaintiffs.

The suit grows out of a massive 20-year-program by the Central Intelligence Agency to secretly open first-class mail sent to and from the United States.

And, from 1953 until 1973 in the course of implementing that program, the Central Intelligence Agency, their officials and officers, opened about 215,000 pieces of first-class mail.

Warren E. Burger:

Now, when you say “to and from the United States,” I suppose there’s a great deal more than 250,000 letters over even a year, wouldn’t there be?

Melvin L. Wulf:

There are many more.

Warren E. Burger:

This was focused in certain places, was it?

Melvin L. Wulf:

There were letters going to and from the Soviet Union predominantly, Your Honor, yes.

215000 letters in the course of 20 years, no warrant, no permission, no consent, flagrantly in violation of the constitution.

20 years of lawless conduct, no question about it, established beyond per venture in the Church Committee Report and in the Rockefeller Committee Report.

What this suit — this suit was filed on behalf of a class of people whose mail was opened for the purpose of compensating them for the flagrant violation of their constitutional rights, the violation of the Fourth Amendment, and also to deter, hopefully, repetition of this same kind of flagrantly lawless conduct by these defendants in the future or by their successors.

The question in this case then, as it arises in this so very abstract contest — context, has a very concrete foundation to it.

And the question is whether the parties who were injured in this constitutionally fundamental way may seek vindication conveniently in a place — in a jurisdiction of their selection, in the jurisdiction where they reside, or whether vindication of their rights is to be made difficult, difficult by requiring them to chase defendants all around the country and try to track down those who they believed were responsible for the violation of their constitutional rights.

Warren E. Burger:

Do you think this process could be followed constitutionally during war time?

Melvin L. Wulf:

Opening the mail?

It was done during the Second World War and I think the conditions would be so different that there might well be an argument for it, but it has no application at all in the context of this CIA program which was not conducted during war time, and which has been conceded by the United States to, in fact, be illegal and in violation of the constitution.

William H. Rehnquist:

Mr. Wulf —

Warren E. Burger:

Well, my inquiry on this was to further ask, what provision of the constitution, if as you implied, it might be valid in war time, what provision of the constitution would render it valid during war time and render it invalid?

Melvin L. Wulf:

It might be that people wouldn’t object that there might be consent, Your Honor.

Warren E. Burger:

Well, that’s not a constitutional —

Melvin L. Wulf:

But there is no consent in this case.

Warren E. Burger:

But that’s not a constitutional re —

Melvin L. Wulf:

The war power might justify it, Your Honor.

But ,still, it has no application here because there was no war.

There was no war under way and this Court said in ex parte Jackson, over 100 years ago, and reaffirmed here in the United States versus Van Leeuwen, just several years ago, that opening mail without a warrant is a violation of the Fourth Amendment.

This is not a war time situation.

William H. Rehnquist:

Mr. Wulf, 1391 (b), as I understand it, would not require you to follow the defendants to where they lived.

You could’ve sued where the claim arose?

Melvin L. Wulf:

We could’ve done that, Your Honor, and that raises the question about the kind of case that this is.

This is a case which is being prosecuted along the plaintiffs’ side by the ACLU with no expense to the parties, the party plaintiffs, and being prosecuted — and being defended on the defendants’ side by the United States at no expense to the defendants.

It’s perfectly true that, in this case, we might have brought this action where the course of action arose, although I’m sure that the defendants would find some objection to that also.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Melvin L. Wulf:

That would have been in the Eastern District of New York where the program was largely implemented, but this is not the paradigmatic case.

This is a big case.

I would pose to the Court the paradigmatic case being the small case where the plaintiff has much less of a chance where his constitutional rights were violated.

Thurgood Marshall:

Mr. Wulf, you keep saying big case.

Why did you bring it in the small state? [Attempt to Laughter]

Melvin L. Wulf:

Well —

Thurgood Marshall:

I think it’s the smallest, isn’t it?

Melvin L. Wulf:

The actual answer is, if you want an actual answer –[Attempt to Laughter]

Is that the first complaint that we received was from Dr. Rodney Driver who lived in Rhode Island and then we decided to bring it there.

We did not think it was an inhospitable forum, as a matter of fact.

And, it’s — but, the case, I put, is the smaller case where a plaintiff is on his own and where expense and convenience is very critical to him.

If he has to go to New York, if Mr. Driver had to come down and litigate this in New York all by himself at his own expense from Rhode Island, it’s unlikely that he would do it.

William H. Rehnquist:

Well, you’ve got — but your venue statutes are traditionally defendant-oriented in civil cases, aren’t they?

And, it seems to me, both sides argue here on the basis of kind of special circumstances that — which should be read one way or another.

I don’t think we can take the fact that it’s a small case or a big case or that the government’s paying somebody’s expenses is really controlling of the meaning of 1391 (e), do you?

Melvin L. Wulf:

You’re quite right of course.

The venue statues are traditionally drawn to assist defendants.

This — in this case, Congress expressly said that the purpose of this one was to assist plaintiffs.

The Senate report says that the purpose of 1391 (e) is “to provide readily available inexpensive judicial remedies for the citizen who is aggrieved by the workings of government.”

In these kinds of cases where it was the government on one side inflicting injury on citizens and residents on the other side, Congress made this conscious determination that it was going to shift the balance of convenience where venue and jurisdiction was going to — was concerned and was going to simplify the process for the plaintiffs and impose what additional burdens might be necessary upon defendants.

William H. Rehnquist:

But don’t you think the reading Gibbon, Schlanger against Seamans was such a shift, although it doesn’t shift it enough for you?

Melvin L. Wulf:

Well, I think Schlanger was wrong.

There’s another — but, there’s another explanation for Schlanger, too, because the statute 1391 (e) does, of course, say that it applies except as otherwise provided by law.

There is a very long — it doesn’t say “by statute,” it says “by law.”

There is a very long tradition of habeas corpus of course, for hundreds and hundreds of years, back to, I’m sure, to England that habeas jurisdiction lies only where the petitioner is held in custody.

And, that is otherwise — as otherwise provided by law.

So that, this — there are many aspects of civil procedure which do not apply to habeas proceedings because of their special — because of its special characteristics.

I think this is just another example of that.

William H. Rehnquist:

But, the habeas venue statute has been — was changed on the last 20-25 years to make it — you have to go back before the sentencing judge rather than where the custodian is for federal habeas, don’t you?

Melvin L. Wulf:

Well, that’s the coram nobis provi — that–

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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William H. Rehnquist:

No, that —

Potter Stewart:

2255.

Melvin L. Wulf:

2255, where a federal prisoners are concerned, yes.

And this — yes, this Court upheld that as a departure from traditional habeas practice, but it was a — it was made explicit by — an explicit change by Congress.

No explicit change here in 1391 (e), making it applicable to habeas in prior practice and tradition controls.

If that’s not sufficient explanation, then it’s wrong.

It ought to be changed by — in this action.

Potter Stewart:

You don’t mean the decision in Schlanger is necessarily wrong.

You’re talking about the accuracy of that footnote.

Melvin L. Wulf:

The footnote is wrong, yes.

John Paul Stevens:

Of course, if the footnote’s wrong, you have to decide the case the other way.

Potter Stewart:

No.

Melvin L. Wulf:

Don’t —

John Paul Stevens:

Because if 1391 (e) applied, that —

Potter Stewart:

No, because of his first explanation.

Melvin L. Wulf:

Yes, the habeas is a special statute.

John Paul Stevens:

I see, the exception.

Melvin L. Wulf:

Yes, Your Honor.

I’m not going to review the whole legislative history, I assure you.

I do want to say that we continue to place confidence in that reference in the committee reports which refers to “the venue problem also arises in an action against a government official, seeking damages from him for actions which are claimed to be without legal authority, but taken in the course of performing his duty.”

Mr. Nemser would have you relate that very intimately to the preceding paragraph, but I can split hairs as well as the next lawyer, and there’s been much of that today.

It doesn’t say “the same venue problem.”

It doesn’t say “that venue problem.”

It says “the venue problem.”

That’s a different venue problem and it refers explicitly — I withdraw explicitly, arguably to the problem before us today.

I think the use of the phrase “under color of legal authority” is very telling in our — in support of our argument because that is, of course, the expression always used to impose personal liability upon government officials when they violate constitutional rights under the Civil Rights Acts and elsewhere.

The sub — the 1967 subcommittee hearings, I’m quick to confess, can be read and are being read by both sides for their own support.

I think there is sufficient reference in there by various Congressmen to indicate an interest in this ven — in simplifying the process whereby plaintiffs, injured citizens, can seek vindication of injuries inflicted upon them by government officials to support our position.

I think those letters by Mr. Justice White when he was Deputy Attorney General and the other two Deputy Attorney Generals are very influential because they’re contemporaneous.

They show what was in the minds of those members of the Department of Justice who were, at the time, concerned with what this meant.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Thurgood Marshall:

But they weren’t passing legislation?

Melvin L. Wulf:

I’m sorry?

Thurgood Marshall:

They were not passing legislations.

Melvin L. Wulf:

They were not.

They were asking that it be changed, and it was not changed, Your Honor.

I think that’s a —

Thurgood Marshall:

Well, but they weren’t passing legislation.

Melvin L. Wulf:

They surely were not, but they were trying to influence it.

Thurgood Marshall:

So, the Attorney General, after the Act was passed, had no place in legislative history, correct?

Melvin L. Wulf:

Correct, but it certainly shows what he thought it meant.

Warren E. Burger:

You have the hypothesis, Mr. Wulf, as to what was in President Kennedy’s mind or in the mind of the person who wrote his statement on the signing day?

Melvin L. Wulf:

I don’t, really.

I think that, whoever it was that had him — it may have been, I can’t remember whether it was Mr. Katzenbach or Justice White who might have submitted that to him, but I just don’t know, I don’t.

I’m just trying to understand, obviously trying to make a case.

Warren E. Burger:

It’s illusive enough subject for lawyers, and is there a reasonable basis for presumption that President Kennedy did not sit down with his pen and think this whole thing up on his own?

Melvin L. Wulf:

Well, I think we can assume that he did not think —

John Paul Stevens:

Well, I think the —

Melvin L. Wulf:

Think it up on his own or think of it at all perhaps.

Potter Stewart:

Form — on a basis of then-Deputy Attorney General Katzenbach’s note to the Director of the Bureau of the Budget, whose name in those days was Belle.

I guess, his name still is Belle, but there’s a different Director of the Budget saying “accordingly, we suggest that the President may wish to issue an announcement at the time he signs the Bill, making it clear that he considers the limited purpose controlling them.

That’s in page 48 of the government’s brief indicating pretty definitely where the President’s statement came from.

Melvin L. Wulf:

I can’t change, just can’t change a legislative history and legislative intent even expre — it could be a kind of a statement of hope perhaps, but —

Warren E. Burger:

Well, at best, all it shows that — is that we have legislative history which is perhaps more confused than usual, is it not —

Melvin L. Wulf:

It’s —

Warren E. Burger:

Unreasonable?

Melvin L. Wulf:

There is some confusion therein, some conflict here, surely, and the one would be less than frank if one didn’t admit it.

That’s why — but there’s enough on our side, I believe, to support our reading of the statute as a very, very reasonable interpretation of what we propose to the Court, but I think that that also can be informed by the Court’s — that the Court’s interpretation can be informed by the beneficial purpose which 1391 (e) will perform if it is read as we propose that it would be read.

And, that, of course is to simplify the process whereby citizens and residents of the United States can increase the quality of their access to the Courts in order to have their rights vindicated and Congress, as I read a moment ago, said that the purpose — one of the purposes of this was to facilitate, was to simplify the — that particular process.

And it is important it seems to me, to serve that purpose here because what we have is a direct clash.

This isn’t a case between opposing private parties.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Melvin L. Wulf:

It applies in cases where government officials are charged with official misconduct.

The Court can decide whether it wants to make it easier or harder for — it can partially base its decision in this case, its construction of the statute, on whether it wants to make it easier for harder for plaintiffs to seek — to get the kind of recompense which they’re seeking in this case.

And the equities, that, of course goes to the constitutional issue too, which Mr. Nemser argues that it’s essentially a balancing of the equities.

I don’t — I do not think myself that — I think the equities are all with the plaintiffs in these kinds of cases and that the defendants are not being treated unfairly if you do read this statute as we propose that it’d be read.

And, the reason is that these defendants are not your run-of-the mill private party defendants.

They —

William H. Rehnquist:

Do you have any doubt about the constitutionality of a statute that would require any defendant sued in a United States District Court to be sued where Congress provided?

Melvin L. Wulf:

I have no doubt at all in my mind.

Potter Stewart:

So long as it’s inside the United States.

Melvin L. Wulf:

Yes, sir.

William H. Rehnquist:

That’s where United States District Courts rely.

Melvin L. Wulf:

But should the Court — should a Court or any of its members have any doubt, I would simply say that when a public official — when an individual chooses to become a public official, chooses to occupy high office, takes an oath to uphold and defend the constitution, and then is charged with violating that high oath, as they are in this case, that they have assumed the risk, if you will, of being sued one place or another, wherever it is that their official misconduct inflicted the particular injury and is not unfair.

And, of course, it’s not — particularly not unfair in this case because the greatest burden of litigation for any of us is the cost of attorney’s fees, the cost of counsel.

And, all of defendants in this case are —

Thurgood Marshall:

Have you been paid the judgment recently?[Attempt to Laughter]

Melvin L. Wulf:

There’d be a judgment against them whether they’re sued — when they’re sued around the corner from where they live or whether they’re sued 3,000 miles away.

That doesn’t make any difference.

The question is the additional expense of trying to avoid that and it can often, as we know, cost more to avoid it than the judgment would’ve cost them in the long run too.

William H. Rehnquist:

Well, but they’re going to have to pay attorney’s fees wherever there is suit?

Melvin L. Wulf:

These defendants are not paying a cent in attorney’s fees, have not paid a cent in attorney’s fees and, as far as I can tell, will not pay a cent in attorney’s fees.

William H. Rehnquist:

Well, but then, you — I don’t see how your argument cuts one way or the other.

Melvin L. Wulf:

Well, just — what I’m saying is there’s no great burden on them in being sued elsewhere or someplace else than where they live.

That’s what I’m saying.

Warren E. Burger:

Well, that’s because the present policy of the Executive branch of the government, at least inferentially endorsed by the Appropriations Committees, but that policy might change.

Melvin L. Wulf:

It might be changed but, as Mr.–

Warren E. Burger:

The Department of Justice has had a variable policy on representing Committees of the Congress, for example.

Sometimes they do, sometimes they don’t represent them.

Melvin L. Wulf:

It could be changed, as Mrs. Peterson says that it’s been the policy for 100 years.

If they are paying the defendants’ the expenses in this case, Your Honor, I can’t think of a case where they wouldn’t pay them because this is a case, to go off the record for a moment but we can — but drawing upon the Church Committee Report and the other official reports, we know this program went on.

We know a lot of these people were involved in it and, still, they are paying the fees.

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Melvin L. Wulf:

So, if they’re paying it here, as I say, it seems to me, they would pay it in any other case.

So, it’s not unfair to them.

John Paul Stevens:

Well, the main objection in venue, I suppose, if you’re going to have a long trial and you live in California, you’re sued in New York, you’ve got to spend a couple of weeks in New York during the trial.

That’s sort of an inconvenience if you’re in business in California.

That’s what the defendants’ interest in being sued in his residence is, not have to spend a lot of time and money to be elsewhere litigating it.

Melvin L. Wulf:

Well–

John Paul Stevens:

Not on the attorney’s fees, or judgment, or anything.

It’s just where you’re going to have this trial.

Melvin L. Wulf:

A couple of weeks inconvenience to stand trial is–

John Paul Stevens:

You would think it’d be minimal.

Melvin L. Wulf:

I agree it’s more —

John Paul Stevens:

But the whole purpose of venue is to vindicate that very interest.

That’s why we have venue statutes.

Melvin L. Wulf:

Right.

John Paul Stevens:

We don’t just say “sue anybody wherever you feel like it.”

Melvin L. Wulf:

You’re quite right, Your Honor.

Of course, on the other hand, if we serve the defendants’ interest here, we have to disserve the plaintiffs’ interest.

And, I think that this, as — that this is a statute which was intended to serve the plaintiffs’ interest and to put —

John Paul Stevens:

And that’s the issue here.

Melvin L. Wulf:

And to put the defendants’ to the necessary inconvenience that might flow because of their assumption of special responsibility as government officials.

Warren E. Burger:

But there are always more burdens on the moving party, the initiating party than on the responding party in terms of burden of proof and a whole lot of other things, aren’t there?

The party who initiates carries a large burden of proof —

Melvin L. Wulf:

Surely.

Warren E. Burger:

— expense.

Well, these things aren’t really, except the venue aspect, who’s paying the defendants’ fees and who will pay the judgment perhaps is really not relevant to the basic issue here, is it?

Melvin L. Wulf:

I think it has some bearing on it, Your Honor, yes, because I — it certainly is to the constitutional argument because I think that the weight of the burden can determine whether a particular practice is fair or not fair.

Here, the burden I think is minimal.

Thank you.

Warren E. Burger:

Do you have anything further?

You have —

Audio Transcription for Oral Reargument – November 07, 1979 in Stafford v. Briggs

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Peter Megaree Brown:

I’d just like to point out one thing that Mr. Dirver, who would find it so burdensome to move, did sue in the Eastern District of New York under the Federal Tort Claims Act for the same facts and did get recovery.

So, it wasn’t so tough for Mr. Driver.

And, insofar as the acts of the petitioners in this case, I hesitate to go into the facts but Mr. Wulf went beyond the record.

We know from the Rockefeller Commission Report and that Senate’s Committee Report that Walters didn’t know about the mail intercept program until it was ended and Colby is the one who stopped it and he knew about it a week before he stopped it.

And, to make people travel around the country because they sock — stopped the program because Rodney Driver wants to bring them up in front of Judge Petin in Rhode Island seems to be not to be the purpose of the statute.

Warren E. Burger:

Thank you, counsel.

Peter Megaree Brown:

And, on attorney’s fees, they are not all being paid.

Patrick Grey is being sued in New York as an official.

He’s not being paid.

And, if you act beyond the color of your authority, you can’t be paid by the United States.

The regulations provide for that and that’s what Mr. Wulf alleges in this case.

Warren E. Burger:

Thank you, counsel.

The case is submitted.