1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - -X 3 JAMES F. LEWIS, : 4 Petitioner : 5 v. : No. 99-1331 6 LEWIS & CLARK MARINE, INC., : 7 ETC. : 8 - - - - - - - - - - - - - - - -X 9 Washington, D.C. 10 Wednesday, November 29, 2000 11 The above-entitled matter came on for oral 12 argument before the Supreme Court of the United States at 13 11:05 a.m. 14 APPEARANCES: 15 ROY C. DRIPPS, III, ESQ., Wood River, Illinois; on behalf 16 of the Petitioner. 17 JAMES V. O'BRIEN, ESQ., St. Louis, Missouri; on behalf of 18 the Respondent. 19 20 21 22 23 24 25 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 ROY C. DRIPPS, III, ESQ. 4 On behalf of the Petitioner 3 5 ORAL ARGUMENT OF 6 JAMES V. O'BRIEN, ESQ. 7 On behalf of the Respondent 21 8 REBUTTAL ARGUMENT OF 9 ROY C. DRIPPS, ESQ. 10 On behalf of the Petitioner 43 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 P R O C E E D I N G S 2 (11:05 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 next in Number 1999 -- correction, 1331, James Lewis v. 5 Lewis & Clark Marine. 6 Mr. Dripps. 7 ORAL ARGUMENT OF ROY C. DRIPPS, III 8 ON BEHALF OF THE PETITIONER 9 MR. DRIPPS: Mr. Chief Justice, and may it 10 please the Court: 11 Both the Jones Act and the Limited Liability Act 12 can and should be given effect in this single-claimant 13 case, yet respondent seeks to use the Limited Liability 14 Act to destroy rights conferred by Congress on Lewis as a 15 seaman. The Jones Act incorporates the provisions of the 16 Federal Employers Liability Act guaranteeing the employee 17 a choice of a State or Federal forum. In addition, it 18 guarantees him the freedom from removal to Federal court 19 in the event he chooses a State court forum. 20 QUESTION: That's true of both the Jones Act and 21 FELA, is it? 22 MR. DRIPPS: Yes, sir, and that statutory remedy 23 is saved to Lewis by the saving to suitors clause, yet it 24 can only be preserved in this case by dissolving the 25 injunction against State court proceedings. This Court's 3 1 decision in the 1931 Langnes case held that the 2 injunction, even without stipulations, should be dissolved 3 to allow the State court suit to proceed, and that the 4 admiralty court would resume jurisdiction only in the 5 event that the State court judgment exceeded the amount of 6 the limitation fund. 7 QUESTION: Well, under what circumstances could 8 the district court exercise its discretion and not 9 dissolve the injunction and require litigation of 10 liability in Federal court? 11 MR. DRIPPS: Justice O'Connor, it would be only 12 in a multiple-claimant excess fund situation, and even 13 then under the Jones Act there might be a question with 14 regard to preserving multiple suitors claims under the 15 Jones Act, but generally in a non-Jones Act multiple- 16 claimant excess fund situation the vessel owner does have 17 the right to maintain the exclusive jurisdiction of the 18 admiralty court. 19 QUESTION: Well, what if you have excess funds, 20 multiple, and the Jones Act? Are you saying that the 21 Jones Act would prevent a liability determination in all 22 of those situations? 23 MR. DRIPPS: Not necessarily. I'm saying that 24 it's a question that potentially could be raised, but it 25 hasn't been. That's, of course, not this case. This is a 4 1 single-claimant case, and part of the court's discretion 2 at the district court level certainly was finding that it 3 could be a single-claimant case, which the district court 4 order did note in footnote 3. 5 QUESTION: Do you think that the courts and rule 6 (f) preclude a single-claimant exception? 7 MR. DRIPPS: Oh, absolutely not, Justice 8 O'Connor. I think that was made clear in the Langnes 9 case, because in the Langnes case the district court in 10 fact exonerated the vessel owner, and were that -- were 11 rule (f) to preclude dissolution of the injunction, 12 certainly the court would have simply relied on the 13 exoneration finding. 14 QUESTION: But you think that rule (f) is 15 invalid? 16 MR. DRIPPS: I do. However, and I want to make 17 this clear, the Court need not reach that issue if it 18 simply follows the Langnes analysis. The Rules Enabling 19 Act analysis only comes into play in this case if the 20 respondent's position is adopted, in that they say that we 21 have no right to go to State court. At that point, I am 22 forced to attack the rule which gives them the right to 23 have a liability and damage determination made in the 24 Federal court, which I do say is invalid as violation of 25 the rulemaking powers of this Court. 5 1 QUESTION: But it's possible to rule for you 2 here without holding that rule (f) is invalid just as a 3 matter of interpretation, isn't it? 4 MR. DRIPPS: Mr. Chief Justice, I agree 5 completely that if the Court simply follows the Langnes 6 case and says that the Jones Act allows this case to be 7 brought in State court, and that that statutory remedy is 8 preserved by the saving to suitors clause, and that the 9 injunction should be dissolved on that basis, the Court 10 need not reach the issue of the invalidity of rule (f) in 11 this case. 12 QUESTION: But it might not -- but it might not 13 go that far if you had a mass disaster and there were many 14 sailors injured and the vessel wasn't worth enough to 15 cover all the claims. 16 MR. DRIPPS: Justice Ginsburg, I think that in 17 that case the plain language of the limitation statute in 18 anything other than fire requires the vessel owner to 19 admit liability and cannot use the limitation statute as a 20 method to shift the forum and then contest liability. The 21 shipowner has a choice of one or the other in that 22 circumstance. 23 QUESTION: How does it work in practice? You 24 have a single claimant, and there's adequate, adequate 25 funds to cover the claim and it goes to the State court. 6 1 Then 6 weeks later somebody else has a slip and fall, and 2 then there's another suit. Does that make everything 3 start all over again? How does this work in -- it seems 4 to me that there's great merit to your position, but that 5 on the other hand there's going to be problems down the 6 line when you have subsequent claims, or is that maybe not 7 a problem? 8 MR. DRIPPS: Justice Kennedy, I don't believe 9 that's a problem, because normally when you have a case 10 like this you have separate or serial funds. Each time 11 the vessel owner wishes to file a limitation case there's 12 a separate valuation made, and it's a separate proceeding. 13 Now, the seaman's claims will become liens in 14 priority of the time they arise, but that's a separate 15 issue, and I -- 16 QUESTION: Okay, so the priority is what solves 17 the problem, then. 18 MR. DRIPPS: Exactly. There's a priority based 19 on chronology. 20 QUESTION: And also -- 21 QUESTION: A chronology of when the claim was 22 filed, or when the injury occurred? 23 MR. DRIPPS: I believe that it is of the time of 24 the judgment, except for wages, when it's a -- wages are a 25 lien that accrue as of the time -- 7 1 QUESTION: Well, then I think there might be a 2 problem with successive claims. We need not get into it. 3 It's in the background, it seems to me, of the rule we 4 must make, because if we ship it all off to the State 5 court, and then there are going to be subsequent claims, 6 you might have to start the -- stop the State proceeding 7 midway. 8 MR. DRIPPS: Well, Justice Kennedy, I believe 9 that would only be a problem if the vessel owner tenders 10 the vessel to a trustee rather than posting security for 11 value, which is what was done in this case. 12 If, in fact, the vessel is turned over to a 13 trustee, though, the likelihood is that it's not going to 14 be employed by the owner, and so that owner won't be 15 allowed to have a subsequent claim, and if they post 16 security for value, I think that solves the problem, 17 because there is a fund posted, and we won't be in a 18 situation where we have competing claims for the same 19 fund. In other words, they will be different funds. 20 QUESTION: Do I understand the limitation 21 correctly? I mean, the typical use would be if you have a 22 collision and lots of people are hurt, but this is a 23 single -- this is a tripping on wire, so we know it 24 isn't -- it isn't disputed in this case, is it, that we're 25 dealing with a single-sailor accident? There was -- he 8 1 tripped over a wire on the deck. 2 MR. DRIPPS: There is no dispute concerning 3 that, Justice Ginsburg. In the motion to dissolve the 4 restraining order, which is in the joint appendix on page 5 70, and I believe it's at page 71, paragraph 6, Lewis made 6 the specific claim that this was a single-claimant 7 accident. That claim has never been rebutted or 8 contradicted by the opposing side, by the vessel owner, so 9 this is clearly a single-claimant case. 10 Now, what your question suggests then, is why 11 was this case filed, and it was filed simply as a forum- 12 shifting device. 13 QUESTION: But you sued later. Oh, you think 14 that they came in precipitously so that the forum would be 15 where they wanted it, rather than where you chose to sue? 16 MR. DRIPPS: Well, Justice Ginsburg, I wouldn't 17 use the term precipitously, but the complaint was filed on 18 March 24 of 1998. Normally, in the case of a mass 19 disaster, for example, there would be immediately a motion 20 for an injunction and a notice to potential claimants that 21 goes out. That was not done in this case until May 11, 6 22 weeks or so after the initial complaint, and it was not 23 done until after the State court case had been filed. 24 What they did was, they filed a limitation case 25 in the Federal court and then sat on it, waited to see if 9 1 Lewis was going to institute suit or not. When he did, 2 they obtained the injunction restraining prosecution of 3 the suit, and -- 4 QUESTION: And their limitation proceeding was 5 filed in which court? 6 MR. DRIPPS: It was filed in the Eastern 7 District of Missouri, United States District Court for the 8 Eastern District of Missouri, across the river from 9 Madison County, Illinois. 10 QUESTION: And -- 11 MR. DRIPPS: Rather than filing it in the 12 Southern District of Illinois. 13 QUESTION: There was -- seemed to be a 14 concession that if only you had asked for a jury trial 15 you'd be home free, because you can't get a jury trial in 16 admiralty and that's what the savings to suitors clause 17 saved. 18 MR. DRIPPS: And I think the Linton case from 19 the Fifth Circuit in 1992 addresses that point 20 specifically, Justice Ginsburg, and they say that the 21 saving clause saves a nonjury Jones Act case because 22 that's part of the seaman's remedy under the Jones Act. 23 The Jones Act's election language says the seaman has the 24 right to maintain an action at law or -- with or without a 25 jury and, by incorporating the Federal Employees Liability 10 1 Act, he can do it in State or Federal court. 2 QUESTION: The defendant cannot ask for a jury 3 trial in that situation? 4 MR. DRIPPS: That's true, Chief Justice. The -- 5 and I think the Linton case goes on at great length to 6 discuss that, and the significance of that I think is 7 perhaps made more clear by the antiremoval provision in 28 8 U.S.C. 1445(a). The defendant cannot remove that case to 9 Federal court where he would be able to trigger the 10 Seventh Amendment and get a jury trial. 11 QUESTION: Yes, but it's one thing to say, for 12 Congress to say it can't be removed, but it seems to me 13 it's quite another, a separate thing for Congress to say 14 that the plaintiff can have a nonjury trial and the 15 defendant cannot move for a jury. 16 MR. DRIPPS: That is what the Linton case said, 17 and that point wasn't specifically brought up in the 18 briefs, although I believe this Court has addressed that 19 issue. I'd have to go outside the briefs to give you a 20 case cite. 21 QUESTION: Yes, well, it certainly isn't 22 directly involved here, is it? 23 MR. DRIPPS: No, sir. No, sir, but this Court 24 has addressed it. 25 QUESTION: Well, we said in Singer, that Singer 11 1 case, in the criminal case that the Government can move 2 for a jury trial even though the defendant doesn't want 3 one. 4 MR. DRIPPS: And in this case Congress has 5 specifically said that the injured employee has the option 6 of determining whether or not it should be a jury or 7 nonjury trial. That's what this Court said in the Panama 8 Railroad case v. Johnson, from 1920. The Linton case 9 simply followed that, and said that the fact that the 10 seaman chooses the nonjury remedy in State court does not 11 transform the case into something that is now removable 12 because it's outside the scope of the saving to suitors 13 clause. 14 And that ties in with this Court's decision in 15 the Red Cross Lines case, where it concluded that 16 statutory remedies are saved remedies, and in this case 17 Mr. Lewis is a seaman invoking his rights under the Jones 18 Act, which is a Federal statute. Accordingly, that remedy 19 is saved to him by the saving to suitors clause, and 20 Congress' decision to confer the right to select the forum 21 and the form of trial on the seaman is also saved by the 22 saving to suitors clause. 23 In contrast, the vessel-owner's rights in this 24 case have been fully protected by Lewis' stipulations. 25 We've guaranteed their right to seek the exclusive 12 1 jurisdiction of the Federal admiralty court, and in that 2 case their Federal statutory rights are fully protected, 3 but by precluding us from being able to preclude in State 4 court, they are destroying the rights that Congress has 5 conferred upon us in the Jones Act and preserved from the 6 exclusive Federal jurisdiction through the savings clause. 7 QUESTION: Well, what have you conceded with 8 respect to the limitation forum, because there'll be 9 nothing -- there'll be nothing -- the only -- this is the 10 only lawsuit, this Jones -- this is the only claim, so 11 they have a shell of an action, but there's nothing to 12 fill the shell because this case will go on in the State 13 court, there'll be a decision, there's more than enough 14 money in the till to pay the judgment, so what have you 15 conceded by letting them keep the limitation action? 16 MR. DRIPPS: Justice Ginsburg, what we've done 17 is guaranteed that their limitation action will be 18 successful. They have limited their liability. They've 19 capped their liability. 20 QUESTION: That your -- that's your concession, 21 that your claim is for less than the -- 22 MR. DRIPPS: Absolutely, although -- and I don't 23 think that's necessary, though, to a resolution of the 24 case. If we look back at the Langnes case, which was a 25 Jones Act case, the Court's decision simply hinged on 13 1 applying the saving to suitors clause so that both 2 statutory doctrines could be implemented, which is what 3 I'm asking this Court to do now, rather than to pick one 4 in an effort to destroy the other, and that is the goal, I 5 think, of this case. 6 QUESTION: Well, your -- what's left of the -- 7 what's in the shell, I guess, is a kind of interrorum 8 jurisdiction to, in effect to guarantee the concessions, 9 and it may never have to be -- presumably it will never 10 have to be exercised, but you're conceding that it could 11 be. 12 MR. DRIPPS: Justice Souter, that's right. 13 The -- in the event that a State court judgment would be 14 entered in excess of the limitation fund I think they have 15 an absolute right to go back into the Federal court and 16 say, wait a minute, Lewis agreed that in order to get to 17 State court his -- our liability would be capped, and at 18 that point the Federal judge would have the right to enter 19 an order limiting their liability. I don't think there's 20 any dispute about that. 21 QUESTION: All right. To keep it simple, on res 22 judicata they could simply enjoin collection beyond the 23 conceded limitation. 24 MR. DRIPPS: Sure. 25 QUESTION: Yes. 14 1 MR. DRIPPS: But they don't have the right to go 2 beyond capping their liability, which is what they're 3 seeking to do. They're seeking to shift the forum from 4 the State court, which has been guaranteed to us by 5 Congress, into the Federal court so that the liability and 6 damage determination can be made there, and that's what we 7 say is improper. 8 QUESTION: Do I correctly understand the picture 9 on this exoneration that would go on if you -- say you did 10 have a collision, would go on in the admiralty forum, that 11 the function is served by the defense that the shipowner 12 can put into the Jones Act claim that is, there was no 13 negligence here, and that is effectively what the 14 exoneration plea would do? 15 MR. DRIPPS: In some ways, Justice Ginsburg. 16 Now, if I understand the question correctly, I don't 17 believe that the exoneration rule is an incorporation of 18 Congress' allowing them a defense under the Jones Act. I 19 think that defense has to be taken in the context of the 20 statute, and they can choose to defend and require us to 21 put on our proof of negligence, but only in the context of 22 the forum grant that is given to the employee by Congress. 23 QUESTION: From the shipowner's point of view, 24 it's one thing to say the shipowner itself had no 25 involvement in the negligence, it was the other deck 15 1 hands. It's a respondeat superior situation. That's one 2 thing. 3 Another thing is, there was no negligence by 4 anybody at all, and I thought that that was the equivalent 5 of the exoneration plea, that nobody was negligent at all, 6 as distinguished from, maybe we have respondeat superior 7 liability, but we should be allowed to limit that. 8 MR. DRIPPS: That's true, that is the essence of 9 the exoneration claim, and that's what they want the 10 Federal court to decide. The two responses to that are, 11 first of all, the Langnes case from this Court essentially 12 held that the exoneration claim was not sufficient to 13 preclude dissolution of the injunction because, as I noted 14 earlier, in Langnes the district court had, in fact, 15 exonerated the vessel owner. This Court nonetheless 16 required the injunction to be dissolved and the case to go 17 back to State court. 18 QUESTION: Well, that I don't follow, because if 19 there was a determination of exoneration, that is, no 20 liability at all, not limited but no liability at all, why 21 wouldn't that have been preclusive in State court? 22 MR. DRIPPS: If it had not been reversed by this 23 Court it would have been preclusive. 24 QUESTION: Ah. 25 MR. DRIPPS: But this Court said that 16 1 determination has to be made in State court and not in 2 Federal court. 3 QUESTION: What determination? 4 MR. DRIPPS: The determination of liability and 5 damage, and once it's made in State court, it is 6 preclusive of the exoneration claim in Federal court under 7 the rule of the Benefactor, which this Court decided in 8 1880. 9 QUESTION: But if the Federal court had made the 10 determination first, and that -- and hadn't been reversed, 11 then that would be preclusive. 12 MR. DRIPPS: Yes, it would, but the Court 13 reversed it because the determination should have been 14 made by the State court in the first instance rather than 15 the Federal court, and that's the essence of the Langnes 16 holding, that we're implementing the Jones Act's grant to 17 the seamen, preserved through the saving to suitors 18 clause, of the right to proceed in State court, rather 19 than be forced into Federal court by the shipowner, and 20 that holding was made without the presence of any 21 stipulations regarding res judicata, and this Court said 22 that the case will go back to State court for that 23 determination. 24 The other -- 25 QUESTION: Well, that sounds like, entirely in 17 1 sync with my suggestion that the defense of no negligence 2 at all, which can be put into the Jones Act proceeding, is 3 the equivalent of getting, in the Federal court, 4 exoneration. 5 MR. DRIPPS: That's absolutely true, Justice 6 Ginsburg. They have the right in State court to defend, 7 require the plaintiff to prove negligence, causation, and 8 damage. They will be getting in the State court the 9 benefit of that defense that they seek to assert in 10 Federal court. 11 They are not being deprived of any rights by 12 proceeding in State court, and their Federal right of 13 limitation will be guaranteed to them by the stipulations 14 that we filed waiving res judicata with regard to the 15 issue of limited liability and stipulating to the 16 exclusive jurisdiction of the district court to decide the 17 limitation issues. Those protect their Federal rights, 18 and their right to defend and require proof of negligence 19 and the other elements of the plaintiff's case are all 20 things they can assert in the State court. 21 The other reason that the exoneration rule 22 should not be permitted to control disposition of this 23 case and we're required to be brought into Federal court 24 is because at that point we do get into the rules enabling 25 analysis and I simply wanted to mention the Henderson case 18 1 that this Court decided in 1996, which set forth four 2 factors that the Court considers in determining whether or 3 not a provision is substantive or procedural. Rule (f) 4 meets each and every one of those. 5 The Henderson Court indicated that the factors 6 are, who may sue, which is answered by rule (f)(1), which 7 says any vessel owner, on what claims, the amount of all 8 demands in conflict, tort or otherwise, rule (f)(2), for 9 what relief, exoneration, or limitation from liability 10 under rule (f)(2), and within what limitations period, not 11 later than 6 months after receipt of a written notice 12 of -- 13 QUESTION: When you say it meets every test. It 14 meets every test for being procedural, is that what you're 15 saying? 16 MR. DRIPPS: For being substantive. 17 QUESTION: For being substantive? 18 MR. DRIPPS: Yes, Your Honor, and that's why I 19 say that if the Court adopts the analysis that the 20 respondent has offered, then we need to grapple with the 21 Rules Enabling Act analysis, and in that case the 22 provision of conferring a substantive right to sue by rule 23 violates the Rules Enabling Act because it conflicts with 24 the congressional statutory scheme of the Jones Act by 25 abridging or modifying Lewis' right to sue in State court 19 1 and enlarges the vessel owner's right to seek limited 2 liability in Federal court. 3 QUESTION: I'm not following your argument to 4 this extent. I thought all this came up originally not 5 because of statutes, but because of court-made doctrine in 6 admiralty, and then that doctrine gets reflected 7 eventually into rule (f). It's not a like a rule in place 8 of a statute, where I would follow your argument very 9 well, but it is taking what was, indeed, substantive law, 10 but substantive law originally made up by courts. 11 MR. DRIPPS: Well, normally, Justice Ginsburg, I 12 would agree with you that that is what the rules do. In 13 this particular case, however, this Court's decision in 14 the Benefactor specifically said that the fifty-sixth rule 15 in admiralty, which was the predecessor of current rule 16 (f), was designed to circumvent the prevailing English 17 rule requiring the vessel owner to admit liability. 18 So in fact the rule has done the opposite of 19 what you suggest. It has created a substantive right to 20 sue for a determination of liability and damage, where in 21 fact the common law, or the prevailing admiralty law, 22 required the opposite, that the vessel owner admit 23 liability, and that was the decision specifically of this 24 Court. 25 If there are no further questions, Mr. Chief 20 1 Justice, I'd like to reserve the balance of my time. 2 QUESTION: Very well, Mr. Dripps. 3 Mr. O'Brien, we'll hear from you. 4 ORAL ARGUMENT OF JAMES V. O'BRIEN 5 ON BEHALF OF THE RESPONDENT 6 MR. O'BRIEN: Mr. Chief Justice, and may it 7 please the Court: 8 The issue that is presented on certiorari grant 9 from this Court in this case is whether the district court 10 in this case abused its discretion in lifting the 11 injunction that was imposed upon the filing of the 12 limitation of liability case and allowing the claimant to 13 proceed with a nonjury case in Illinois State court, where 14 he was a single claimant in the limitation and where the 15 fund was, at least after the initial filing, deemed 16 adequate. 17 The Eighth Circuit answered this question in the 18 affirmative, and held that since the remedy sought by the 19 claimant, a nonjury trial, was already available in the 20 limitation of liability court, that there was no saved 21 remedy. In other words, there was no statutory right of 22 the claimant implicated, and therefore the Federal 23 district court in the limitation case was bound by its 24 grant of jurisdiction under Article 3, section 2 -- 25 QUESTION: Well, do you think the district 21 1 court's view would have been different had the right to 2 jury trial not been given up? 3 MR. O'BRIEN: Mr. Chief Justice, our position in 4 the case, and I believe the position of the Eighth Circuit 5 was that if a jury trial had been requested, then a remedy 6 that was not available in the district court would have 7 been sought and therefore a saved remedy would have been 8 sought, and therefore the stay, assuming the single 9 claimant exception and the adequate fund exceptions were 10 met, would have been allowed to proceed in Illinois State 11 court. 12 QUESTION: So this case hinges, in your view at 13 any rate, on the fact that the plaintiff had waived the 14 right to a jury trial. 15 MR. O'BRIEN: To a large extent it does. If I 16 may -- 17 QUESTION: You say that because you say, well 18 then he doesn't need the State forum because he can get a 19 nonjury trial in admiralty, but wouldn't one say equally, 20 once the Jones Act plaintiff stipulates that he's not 21 going to seek more than X amount of damages, you don't 22 need the limitation proceeding? 23 MR. O'BRIEN: Our position takes a step back, 24 and our position looks back at the original origin of the 25 single claimant exception that was set forth by this Court 22 1 in Langnes v. Green, and what we say is that we know a 2 number of things about what this Court -- what the 3 district courts have to do under the Limitation of 4 Liability Act. 5 Unlike some of the cases cited by the 6 petitioner, where there is no limitation case, we know 7 that when there's a limitation case on file there is 8 exclusive Federal jurisdiction, and we know that the 9 district courts are therefore bound to -- exclusively to 10 administer the rights of the limitation claimant and 11 all -- the limitation petitioner, excuse me, and all those 12 claimants who make claim. 13 The only way for any given claimant to exit from 14 the limitation case is if they can, for lack of a better 15 word, trump the limitation petitioner's rights to an 16 exclusive determination in the Federal court with some 17 statutory right, and in this case that would be -- the 18 source of that right would be 28 U.S.C. section 1333, the 19 saving to suitors clause. 20 Now -- 21 QUESTION: I'd like to back up a little bit, 22 because I don't think I followed you that far down the 23 trail. That is, as I understand it, the whole reason for 24 being of a limitation action is so that the shipowner will 25 be able to limit the extent of his economic loss to the 23 1 value of the ship. 2 Now, once it is certain that that will in fact 3 be the case, that there is no exposure beyond the value of 4 the ship, what function does a limitation proceeding 5 save -- serve, other than to block what would ordinarily 6 be a garden-variety Jones Act case from proceeding in 7 whatever forum the sailor chooses to sue in? 8 MR. O'BRIEN: Because the Limitation of 9 Liability Act has more than just to limit liability. It 10 also has the purpose of allowing an exoneration to be 11 pursued by the shipowner and, indeed, in Langnes v. Green, 12 the seminal case that started this exception, the Court 13 was very clear, this Court was very clear that the 14 limitation court had both the power to decide exoneration 15 and limitation. 16 Now -- 17 QUESTION: What provision of the limitation act 18 gives you the right to have an exoneration proceeding? 19 MR. O'BRIEN: Mr. Chief Justice, we believe that 20 the entire act construed by this Court in the Norwich v. 21 Wright case provides that right. Specifically, section 22 183, but also read in conjunction with section 185 and the 23 entire statute. 24 QUESTION: And where is that in the appendix? 25 MR. O'BRIEN: Well, the -- 24 1 QUESTION: I see it's at pages 1 and 2 of the 2 petition for certiorari. 3 MR. O'BRIEN: Yes, Your Honor. Well, the 4 statute itself, of course, is in the United States Code, 5 and under section 183 of title 46 the vessel owner is 6 entitled to pursue the limitation of liability, and is -- 7 QUESTION: But pursuing the limitation of 8 liability is one thing. Getting an exoneration 9 determination is another. 10 MR. O'BRIEN: Yes, sir. 11 Your Honor, going back to Norwich v. Wright, 12 this Court on at least a dozen occasions since 1871 has 13 decided that exoneration is a fundamental right under the 14 statute and is part and parcel of the limitation 15 proceeding. 16 QUESTION: Were any of those cases single- 17 claimant cases where the fund was adequate to cover the 18 injury, or were they all what one thinks of as limitation 19 case, a rather larger disaster? 20 MR. O'BRIEN: The early cases, Justice Ginsburg, 21 typically involved a petitioner limit after a judgment had 22 already been obtained in a district court. Indeed, the 23 Norwich case that is the case cited in both briefs, and 24 the original seminal case in limitation liability, 25 involved such a proceeding, and the Benefactor, the second 25 1 case after Norwich, also involved a shipowner that came in 2 after a finding of liability in the district court. 3 But when those early decisions came out 4 construing the Limitation of Liability Act, for the first 5 time -- it had been passed in 1851 -- they had to decide 6 what it meant, and there is an extended discussion in 7 Norwich v. Wright about it, and in that case this Court 8 stated that the American Limitation of Liability Act 9 represented a departure from English law, because the 10 English chancery courts, which had earlier heard 11 limitation cases in England, lacked the power to 12 investigate claims in admiralty, and therefore under 13 English admiralty law the shipowner was required to admit 14 liability. 15 In the American courts, and under the limitation 16 act as construed by this Court in Norwich v. Wright, a 17 determination not only of limitation was undertaken, but 18 also exoneration, and from that time forward -- 19 QUESTION: But wasn't that only on the 20 assumption that there was jurisdiction under -- just to 21 seek limitation? As part of the proceeding they could 22 seek exoneration, but was there any case where the only 23 issue was exoneration versus liability? 24 MR. O'BRIEN: Not per se, Your Honor. Not per 25 se. 26 1 QUESTION: And the word exoneration is not in 2 the statute itself, is it? 3 MR. O'BRIEN: It is not found in the statute, 4 although it does state -- the statute does state that the 5 vessel owner's liability shall not exceed the value of the 6 vessel -- 7 QUESTION: Right, but that's quite different 8 from saying it shall not exist. 9 MR. O'BRIEN: Well, it also does not deny the 10 district court -- the same statute that gives the 11 jurisdiction to decide limitation of liability does not 12 deny to the district court the ability to decide 13 exoneration. 14 QUESTION: But wouldn't all these cases fit 15 together if we simply held that in an appropriate case 16 where the limitation of liability proceeding involves 17 multiple claimants and an original intent to get more 18 than the gross value of the ship, that in such a case, 19 the -- among the things the shipowner can do is seek a 20 complete defense of a nonliability? Wouldn't all the 21 cases fit together if we just held that's where the 22 exoneration is appropriate? 23 MR. O'BRIEN: Well, certainly that's one option. 24 QUESTION: Yes. 25 MR. O'BRIEN: And I -- we would certainly urge 27 1 that on the Court, and I believe it's part of the 2 limitation act that the shipowner should be entitled to 3 seek exoneration in any case in which it seeks a 4 limitation as well. 5 QUESTION: The Norwich, for example, under the 6 Norwich was decided long before the Jones act was passed. 7 MR. O'BRIEN: Yes, Your Honor. 8 QUESTION: Do you think the Jones Act affects 9 the holding in Norwich in any way? 10 MR. O'BRIEN: We do not. It's clear that the 11 rights that the seaman has under the Jones Act are 12 subordinate to -- in general to the rights of the 13 shipowner to limit liability. In other words -- 14 QUESTION: Now, why do you say that? 15 MR. O'BRIEN: Because -- for the reason that 16 it's clear that if it had been a limitation proceeding 17 with multiple claimants in a case where the claims 18 asserted exceeded the value of the vessel -- 19 QUESTION: Yes, but Langnes says the single 20 claimant is different, does it not? 21 MR. O'BRIEN: Well, what -- Langnes really rests 22 upon three distinct factors. Langnes says, first you have 23 to have a limitation of liability case. Langnes says 24 second, you have to have a single claimant, and third you 25 have to have a request for a jury trial. Those, in our 28 1 view, are the three pillars upon which that case was 2 decided, and -- 3 QUESTION: Do you think the request for a jury 4 trial was essential to the holding in Langnes? 5 MR. O'BRIEN: Your Honor, I do, and the reason 6 is because it's the request for a jury trial that 7 implicates a saved remedy. The request for a jury trial 8 is what implicates a right under the saving to suitors 9 clause, which in that situation exceeds the interest of 10 the vessel owner in staying in Federal court. 11 QUESTION: As I read it, you're trying -- you 12 seem to be trying to make the tail wag the dog. These 13 early cases say, well, you know, if you're in Federal 14 court, shipowner, trying to limit your liability, because 15 we've had a collision and there are 42,000 plaintiffs and 16 you've got to deal with this and just limit it to the 17 vessel, well, as long as you're there, we'll try out 18 whether you're liable at all. We'll try out exoneration. 19 The only reason we're doing that -- they didn't 20 do it in England, but the Court says -- we say, from time 21 immemorial it was done in every other country, right? 22 So -- 23 MR. O'BRIEN: Yes. 24 QUESTION: So we'll do it. But if you're not 25 here, what's the point of doing it, and you're not here if 29 1 there's a single plaintiff or if there's an adequate fund. 2 I mean, the reasoning of it would seem to me to be, if 3 you're not here, and you can't get here because there's an 4 adequate fund, for example, there's no reason for us to 5 snatch the issue of liability away from the State court. 6 MR. O'BRIEN: Justice Breyer, I think it's key 7 to look at Langnes v. Green and see in that case that this 8 Court stated emphatically that the procedure under the 9 Limitation of Liability Act was to first look at 10 exoneration and then, if liability was found, to look at 11 limitation issues. 12 QUESTION: Of course that's true, provided that 13 you are properly in the Federal court limiting your 14 liability. My point is, suppose you're not, as is true 15 here, for the reason that you already have an adequate 16 fund. You have no basis to get into the Federal court if 17 there's an adequate fund. Your only basis could be that 18 we want to exonerate, but exoneration is there in case 19 you're in anyway. 20 MR. O'BRIEN: Well, let me state that 21 initially -- the initial claim filed in this case did 22 exceed the limitation fund, and so that at the time the 23 vessel owner instituted the proceeding, that was certainly 24 in play and, indeed, when the initial claim was filed -- 25 QUESTION: How did you know that, because the 30 1 Federal suit was filed second. You had your limitation -- 2 if I remember the chronology right, you sought limitation, 3 and then a week later the Jones Act case was started. 4 MR. O'BRIEN: The short answer is that we know 5 in this jurisdiction, where the State court suit could 6 have been brought, that tripping over a wire could lead to 7 a judgment in excess of the value of the vessel, and so 8 therefore the -- 9 QUESTION: But this plaintiff -- 10 MR. O'BRIEN: -- vessel owner had a good faith 11 reason for pursuing limitation. 12 QUESTION: This plaintiff hadn't made any such 13 claim then. You're basing it on other claims that were 14 made against this shipowner? 15 MR. O'BRIEN: No. I believe the vessel owner, 16 based on its experience, and based on its knowledge of the 17 situation, felt that an accident had occurred during this 18 voyage which might make its vindication under the 19 Limitation of Liability Act a realistic legal possibility, 20 and so a petition was filed. 21 There's no rule that prevents a vessel owner 22 from coming in before the claims are filed, just as 23 there's no rule that prevents a vessel owner from coming 24 in while claims are being filed or after they're filed, so 25 the timing of the filing of the limitation of liability 31 1 proceeding is really -- 2 QUESTION: I brought it up in answer to your 3 assertion, we knew that he originally had a claim in 4 excess of the value of the vessel. You didn't know that 5 specifically with respect to this plaintiff. 6 MR. O'BRIEN: Well, knowing, I think, and having 7 a good faith belief that the proceeding might be in the 8 vessel owner's interest are too different things. I don't 9 think there was any way to predict the future at the time 10 the petition was filed, but certainly -- 11 QUESTION: But you didn't have to make any 12 prediction a week later. 13 MR. O'BRIEN: That's true, because we shortly 14 thereafter had a claim in excess of the value of the 15 vessel. 16 QUESTION: And the prayer for relief was for in 17 excess of $450,000? 18 MR. O'BRIEN: Yes. By stipulation, I think in 19 the joint appendix at 69 the record reflects that the 20 initial claim was in excess of the value of the vessel, 21 and by stipulation -- 22 QUESTION: The question really is whether that 23 did not satisfy the purposes of the limitation of 24 liability proceeding. 25 MR. O'BRIEN: Well, Justice Stevens, our 32 1 position is that once the jurisdiction of the limitation 2 code is validly invoked, which it was in this case, that 3 jurisdiction attaches, and under the Constitution and laws 4 the district court is obligated to decide all those 5 issues, and the only way to escape -- for the claimant in 6 this case to escape that jurisdiction is to point to a 7 definite statutory right that allows him to defeat Federal 8 jurisdiction. 9 Now, in this case it would be -- 10 QUESTION: But the statutory right that he's 11 talking about, there's two ways to define it. One is the 12 savings to suitors clause itself is a statutory right. 13 He's entitled to invoke that, and it doesn't really say, 14 only if he's seeking a jury trial. 15 MR. O'BRIEN: That's true, and -- but we know a 16 number of things about the saving to suitors clause. We 17 know that the rights under it are not absolute, and we 18 know that because, number 1, a Jones Act claimant can have 19 his case -- excuse me. A limitation claimant, not a Jones 20 Act claimant, can have his case removed to Federal court. 21 We know that the saving to suitors clause doesn't protect 22 the right of a bank, say, to sue a lender or a debtor on a 23 first preferred ship mortgage. We know those kinds of 24 cases are committed to the Federal court and can't be 25 brought in a State court. 33 1 QUESTION: Well, what about the practical 2 advantage of a plaintiff who thinks he's going to get a 3 better verdict in Madison County, Illinois, than he will 4 in the Federal District Court for the Eastern District of 5 Missouri? 6 MR. O'BRIEN: Well, that is his right, to sue 7 where he thinks he can obtain the best verdict, unless 8 there's some kind of illegal forum-shopping going on, but 9 that really is what this case is all about. 10 QUESTION: I thought so. 11 MR. O'BRIEN: The vessel owner is entitled to 12 pursue limitation where it believes the purposes of the 13 act will be furthered, in other words, where it sees that 14 it has an opportunity to invoke exclusive Federal 15 jurisdiction to adjudicate the rights from some accident 16 occurring -- occurring during some voyage. 17 And if I may address a point from -- 18 QUESTION: Do I understand you, then, that the 19 vessel owner in every case where the sailor chooses to sue 20 in State court and not ask for a jury trial the vessel 21 owner can always pick the forum instead by filing a 22 limitation proceeding? 23 MR. O'BRIEN: Unless he pursues a right, the 24 claimant pursues a right that is preserved under the 25 saving to suitors clause I would agree with that. 34 1 QUESTION: Well, what -- you told me that the 2 only thing that's preserved is jury trial, not the Jones 3 Act claim, which is what I would have thought that -- I 4 would have thought, apart from entertaining your position 5 that it's not the Jones Act claim, and the choice of forum 6 that Congress has provided, but it's only the device of 7 jury trial. 8 MR. O'BRIEN: Well, it's really -- what it is 9 is -- let me refine my comment. What I'm really saying is 10 that if the remedy is already available in the Federal 11 court, and what the Eighth Circuit decided was that if the 12 remedy's already available in the Federal court in the 13 limitation proceeding, there is no saved remedy to pursue 14 elsewhere, and so the -- I think the issue for this Court 15 is not so much jury versus nonjury in the abstract sense. 16 The question is whether or not the specific remedy 17 requested is available in the Federal court where 18 exclusive jurisdiction is found. 19 QUESTION: Well, why isn't the remedy the 20 courthouse that's closest to my home that's most 21 convenient for me? Why isn't that the remedy that is 22 saved, the ability to choose, irremovably, the venue? 23 MR. O'BRIEN: Well, the answer to that is that 24 the rights under the saving to suitors clause are not 25 absolute, and they never have been by this -- held so by 35 1 this Court or by any other Federal court. They're always 2 going to be subject -- 3 QUESTION: But your position was that that 4 wasn't saved at all, because you could get a nonjury trial 5 in the admiralty forum. 6 MR. O'BRIEN: Well, I don't think the decision 7 whether or not the nonjury trial is saved or not is 8 necessary to this Court's decision, nor was it addressed 9 specifically -- in fact, it was reserved specifically by 10 the Eighth Circuit. You don't need to get that far, and 11 the reason is because under the rubric adopted by the 12 Eighth Circuit, if the remedy sought is available already 13 in the limitation court, the claimant's not allowed to go 14 back, and it was already available, i.e. a nonjury trial, 15 so the court below never needed to address whether a 16 nonjury trial was specifically a saved remedy or not, nor 17 does this Court need to decide that for -- 18 QUESTION: So practically what the position 19 you're urging on us comes down to is that the Jones Act 20 plaintiff can get his choice of forum as long as he 21 insists on having a trial by jury. If he doesn't insist 22 on having a trial by jury, he doesn't preserve his right 23 to choose the forum. 24 MR. O'BRIEN: That's correct. 25 QUESTION: That's your position? 36 1 MR. O'BRIEN: That's correct. 2 QUESTION: Why would that be? I mean, let's 3 suppose that a Jones Act plaintiff does -- could go -- he 4 could get into Federal admiralty court. He could get in, 5 or he could do what he'd prefer to do, which is to file in 6 the State. Why shouldn't he be able to file in the State 7 unless there's some Federal reason that prefers the 8 Federal tribunal? 9 MR. O'BRIEN: Well, the Federal reason that 10 prefers the Federal -- 11 QUESTION: No, no, I mean, you're making both 12 arguments. One argument is that there is a Federal reason 13 and the Federal reason is the exoneration, and that's 14 countered with the argument that there is no Federal 15 reason where there isn't an independent reason for being 16 in the limitation action, all right, so I'm taking the 17 other part. Let's assume there is no Federal reason. If 18 there is no Federal reason -- he has the right come in the 19 door, but there's no Federal preference. Why shouldn't he 20 be able to go to the State court? 21 MR. O'BRIEN: Well, Justice Breyer, I -- number 22 1 -- my first response is, I don't believe that's our 23 case. 24 QUESTION: All right, yes. 25 MR. O'BRIEN: We do have a Federal reason for 37 1 being here. 2 QUESTION: Okay. 3 MR. O'BRIEN: And the second response -- 4 QUESTION: But if you didn't, if there were no 5 reason favoring the Federal court, then would you say, 6 give him his choice? 7 MR. O'BRIEN: Well, I suppose that would be 8 true, except that Congress has spoken to the situation 9 when they've committed limitation of liability acts to the 10 exclusive jurisdiction of the Federal courts. 11 QUESTION: Okay, but if you're prepared to go 12 that far, then the case turns on whether there is a 13 Federal reason, and the Federal reason you say is 14 exoneration, so I understand that. 15 And then I'm back to the question I had before, 16 which I'm not sure I had a satisfactory answer to totally, 17 that really what this exoneration is is the tail and it 18 follows the dog into the Federal court, and the only 19 reason it's ever there was, historically in England they 20 did this, what the courts thought were absurd, to force 21 the shipowner to give up his right to exoneration in order 22 to get in Federal court, and our court years ago said 23 that's silly, no other country does that and we're not 24 going to do it. 25 MR. O'BRIEN: Well, I would prefer to think of 38 1 exoneration not as the tail, perhaps the other set of legs 2 of the same dog. I think that the right to exonerate is 3 half of what you have under the statute. The right to 4 limit is the other half of what you have under the 5 statute, and one can't be divorced from the other. You've 6 got -- 7 QUESTION: You have the statute, but it doesn't 8 appear in the statute, and what is your response to the 9 fact that if the only reference to it is in the Federal 10 rules, that's ultra vires? 11 MR. O'BRIEN: Well, my response, Justice Scalia, 12 is 130 years of decisions from this Court and others, at 13 least a half-dozen cases from this Court holding that in a 14 proceeding under the Limitation of Liability Act itself 15 now the court determines exoneration as well as 16 limitation. It would be almost impossible for this Court 17 to write exoneration out unless it were prepared to 18 overrule all those cases. 19 QUESTION: Well now, are you saying that in the 20 single-claimant, stipulated claim less than the value of 21 the vessel, we would have to overrule cases in order to 22 rule against you here? 23 MR. O'BRIEN: No. 24 QUESTION: Well, I thought that's what you just 25 did say. 39 1 MR. O'BRIEN: No. No. What I'm saying is, what 2 Langnes v. Green tells us, and what Lake -- which is the 3 single claimant exception case, and what Lake Tankers v. 4 Henn tells us, which is the multiple-claimant case, or, 5 excuse me, the adequate fund case, what those cases tell 6 us is that when the claimant seeks a jury trial that it 7 has been deprived of him in the limitation court, that 8 under those circumstances there is enough of a -- there's 9 enough rights there for that claimant to trump the 10 shipowner's right to be in Federal court, and they will 11 then allow him to go back to State court assuming that on 12 the one hand there's a single claimant, or on the other 13 hand there's an adequate fund. 14 But you can't look back at Lake Tankers v. Henn 15 or at Langnes v. Green and write out of the Court's 16 decisions the references to a jury trial being requested 17 by the plaintiff. That is what in my view was the, really 18 the moving force in those decisions that allowed those 19 plaintiffs to go back. 20 QUESTION: Well, of course, can't you just read 21 that as the -- this is a particularly strong reason for 22 vindicating the plaintiff's right to choose his own forum, 23 that in one forum he gets a jury and in the other he 24 doesn't? That makes it a very appealing case, but I don't 25 think you can necessarily deduce from that the conclusion 40 1 that he wouldn't also have a right to pick the forum of 2 his own choice without that feature. 3 MR. O'BRIEN: Justice Stevens, I don't think 4 we'd be here if the courts had routinely held that you got 5 a right to a forum. They haven't. What the courts have 6 held, this Court and the Federal courts, and what the 7 commentators have talked about for decades, is the right 8 to a remedy, and the right to a remedy does not 9 necessarily entitle him to go to a State court. It 10 entitles him to a remedy. 11 QUESTION: Well, he gets the same remedy whether 12 it's a jury trial or a bench trial. He's seeking damages. 13 That's the remedy. 14 MR. O'BRIEN: Well, the remedy, as the Court 15 stated in Shilendez v. Luckenbach, the remedy is the means 16 employed to seek the redress and in our view, and I think 17 the cases bear this out, a jury trial is a specific form 18 of remedy, a nonjury trial is another form of remedy. 19 It's the means employed, and I think that there's really 20 no question under the case law that a jury trial is in a 21 class separate from a nonjury trial as far as the saving 22 to suitors clause goes. They're different remedies. Now, 23 they both seek judgments, but in a different way. 24 If I may briefly address the rule (f) argument, 25 the position urged by petitioner that rule (f) should be 41 1 declared invalid is in our view extreme and not warranted 2 by the case law. This Court in the Henderson case did not 3 announce a general test for the determination of when a 4 Rules Enabling Act rule would be ultra vires. It instead 5 decided that rule 4 trumped the Suits in Admiralty Act 6 provision requiring forthwith service of process on the 7 basis that the rule was purely procedural. 8 But if I may, under rule (f), three of the four 9 items that petitioner urges are contained in rule (f) and 10 that mandate that it's a substantive rule are found in the 11 limitations statute itself, namely, who may sue, when they 12 may sue, and the object of the suit and so therefore, even 13 under the test that petitioner cites, rule (f) clearly 14 does not meet the standard of a substantive rule that 15 would be struck down under the Rules Enabling Act. 16 Indeed, the limitation act addresses those items. 17 And I turn again back to the original decisions 18 by this Court in the Benefactor, in the Norwich v. Wright 19 case, in which this Court had occasion to construe the act 20 and, if you follow the language closely of those decisions 21 the Court was not construing rules that it promulgated. 22 The Court was construing rules that it promulgated. The 23 Court was construing the act itself, and the original 24 admiralty rules that were promulgated by this Court in the 25 Norwich case, the original 50-some admiralty rules from 42 1 1871, were rules, but they were in themselves 2 interpretations of the act as seen by this Court, and they 3 included the right to exoneration. 4 Now, if the limitation petitioner can come into 5 court, and if he can pursue a limit -- exoneration as well 6 as limitation, then by definition the Court has exclusive 7 jurisdiction over both of those subject matters and the 8 limitation claimant, in this case the Jones Act seaman, 9 can return to State court only if he demonstrates that the 10 remedy he wants is not available in the Federal court. 11 If there are no further questions -- 12 QUESTION: Thank you, Mr. O'Brien. 13 MR. O'BRIEN: Thank you, Your Honor. 14 QUESTION: Mr. Dripps, you have 6 minutes 15 remaining. 16 REBUTTAL ARGUMENT OF ROY C. DRIPPS, III 17 ON BEHALF OF THE PETITIONER 18 MR. DRIPPS: Thank you, Mr. Chief Justice. 19 Mr. O'Brien indicated that three of the four 20 items that are in rule (f) are in the statute. What he 21 neglected to mention is, as what Justice Scalia asked 22 earlier, the one that's not in the statute is the one 23 that's critical to his analysis, which is the exoneration 24 provision, and that's not in the statute. 25 Mr. O'Brien relies heavily on the Benefactor, 43 1 and I would simply refer the Court to the quote from the 2 Benefactor. It's at 103 U.S. 241. It's at page 16 of the 3 reply brief, and the Court said that hence, this Court, in 4 preparing the rules of procedure for a limitation of 5 liability, deemed it proper to allow a party seeking such 6 limitation to contest any liability whatever. 7 That is not the statement of statutory 8 construction. That is a statement of legislative intent. 9 We're adopting these rules so that the party can contest 10 the liability. Now, that is exactly what is forbidden by 11 the Rules Enabling Act, yet that is what this Court said 12 it was doing in 1880. 13 Justice Stevens and Justice Breyer both asked 14 about, in essence, whether there would be a right to a 15 pure exoneration claim in Federal court, and I do want to 16 point out that both the Fifth Circuit in the Fect v. 17 Murkowski case and the Seventh Circuit in the Joyce v. 18 Joyce case have said no, that unless there is a viable 19 claim for limitation you cannot come in and ask for 20 exoneration, and I think that is the rule that this Court 21 should adopt. 22 The Langnes decision, as Justice Stevens 23 noted -- 24 QUESTION: Well, I -- go ahead. That's all 25 right. 44 1 MR. DRIPPS: -- as Justice Stevens noted does 2 not require a jury trial, but it simply said that a jury 3 trial is one aspect that makes the State court forum 4 desirable, and that's part of the Jones Act remedy to 5 allow the injured employee that option of choosing either 6 State or Federal court, and whether or not to have a jury 7 trial in either forum. 8 To get to the respondent's not-otherwise- 9 available test, this Court is going to have to say that 10 the saving clause does not protect statutory remedies, 11 particularly the statutory remedy afforded by the Jones 12 Act, which allows the employee to choose the forum that 13 the case will be tried in. That, however, is exactly what 14 the saving clause was designed to do, and that is why this 15 Court should reverse the Eighth Circuit's decision and 16 reinstate the decision of the district court dissolving 17 the injunction. 18 CHIEF JUSTICE REHNQUIST: Thank you, Mr. Dripps. 19 The case is submitted. 20 (Whereupon, at 11:58 a.m., the case in the 21 above-entitled matter was submitted.) 22 23 24 25 45