Amicus Curiae Brief — Boureslan v. Arabian American American American Oil Co. (Nos. 89-1845, 89-1838)

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

v. Petitioners,

ARABIAN AMERICAN On. COMPANY and

ARAMCO SERVICES COMPANY,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Dated: November 15, 1990

Gary B. Born

Counsel of Record

W. Harpy CaLLoorr

MICHAEL C. SMALL

ELIzaBeTu KIINGI

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20087

(202) 663-6000

Rosert F MULLEN

Co-Chairman

Davin 8. Tam

Co-Chairman

Noa ua REDLICH

Trustee

BARBARA R ARNWINE

THomAS J. HENDERSON

RICHARD T SEYMouR

Lawyers’ Committee for Civil

Rights Under Law

1400 Eye Street, N.W.

Washington, D.C. 20005

(202) 371-1212

Whueon Eres Pantie Co. inc - 788.0086 Wasnineron 0 C 80001

II.

TABLE OF CONTENTS

CONGRESS EXPRESSLY EXTENDED THE

GEOGRAPHIC REACH OF TITLE VII TO

THE LIMITS OF FEDERAL POWER UN-

DER THE CONSTITUTION 0.

A. The Plain Language of Title VII Extends

the Act’s Geographic Scope to the Limits of

Federal Power Under the Constitution...

B. The Legislative History of Title VII Dem-

onstrates That the Act’s Geographic Scope

Extends to the Limits of Federal Power

Under the Constitution

C. Title VII Expresses a Fundamental National

Moral Commitment That is Applicable to

U.S. Nationals Outside U.S. Territory...

EVEN IF THE GEOGRAPHIC SCOPE OF

TITLE VII WERE AMBIGUOUS, IT WAS

ENACTED AGAINST THE BACKGROUND

OF INTERNATIONAL CHOICE-OF-LAW

PRINCIPLES THAT PERMIT THE EX

TRATERRITORIAL APPLICATION OF U.S.

2 — — —

A. This Court Has Repeatedly Refused to

Adopt Any Rigid Presumption That Federal

Law Applies Only Within U.S. Territory

(iii)

iv 9

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page

B. Rather Than Applying Any Rigid Presump- — *

tion of Territoriality, This Court Has Re- Allstate Insurance Co. v. Hague, 449 U.S. 302

peatedly Held That the Reach of Ambiguous : 111 11

Federal Statutes Is Determined By Refer- | American Banana Co. v. United Fruit Co., 213 U.S.

ence to International Choice-of-Law Prin- D ec 4, 15, 16, 19

—.,ĩ ?˙Ä:] ̃ ů J 22 Asahi Metal Industry Co. v. Superior Court, 480

I. UNDER INTERNATIONAL CHOICE-OF- At... Ep at

LAW PRINCIPLES, TITLE VII APPLIES 743 (1968) l , 9 26

TO EMPLOYMENT DISCRIMINATION OUT. Barthol v. Universe Tankships, Inc, 263

SIDE THE UNITED STATES BY A US.

COMPANY AGAINST A U.S. CITIZEN 25 F.2d 487 (2d Cir. 1069) ... =

n Benz v. Compania Naviera Hidalgo, S. A., 888 U.S.

r è— Ü! 11, 21

CON c8ũ—ỹL—————.—.—.— oe Blackmer v. United States, 284 U.S. 421 (1982) 15, 26

Bium v. Stenson, 465 U.S. 886 (1984) 7

Bob Jones University v. United States, 461 US.

574 (1983 P... ͤ W 13

Bowen v. Michigan Academy of Family Physicians,

r 15

CFTC v. Nahas, 738 F.2d 487 (D.C. Cir. 1984) x

Continental Ore Co. v. Union Carbide & Carbon

Corp., 370 U.S. 690 (1962)... ee 4,19

Cook v. Tait, 265 U.S. 47 (192) n 26

Daniel v. Paul, 395 U.S. 298 (196999 10

FTC v. Compagnie de Saint-Gobain-Pont-a-Mous-

son, 636 F.2d 1300 (D.C. Cir. 1980) -

Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th

gd a I: te in 29

Fogleman v. Aramco, 623 F. Supp. 908 (W.D. La.

r 9

Foley Brothers, Inc. v. Filardo, 336 U.S. 281

EE r 11, 15, 16, 21

Franks v. Bowman Transportation Co., 424 US.

: r 3, 13

Grunenthal GmbH v. Hotz, 712 F.2d 421 (9th Cir.

rr 20

Hamm v. City of Rock Hill, 379 U.S. 306 (1964) 13

Heart of Atlanta Motel v. United States, 379 U. 8.

D hen Se A 10

TABLE OF AUTHORITIES—Continued

Page

Helicopteros Nacionales de Colombia v. Hall, 466

, ciettitneeeee 11

Hellenic Lines Ltd. v. Rhoditis, “398 U.S. 306

(1970) 23

Hilton v. Guyot, 159 U.S. 118 (18985 16

Home Insurance Co. v. Dick, 281 U.S. 397 (1930) 11

Interamerican Refining Corp. v. Texaco Maracaibo,

Inc., 307 F. Supp. 1291 (D. Del. 1970) 29

International Longshoremen’s Association, Local

1416 v. Ariadne Shipping Co., 397 U.S. 195

133 21

International Shoe Co. v. Washington, 326 U.S.

r ae ca 16

Katzenbach v. McClung, 379 U.S. 294 (1964) 10

Kern v. Dynalectron Corp., 577 F. Supp. 1196

(N.D. Tex. 1983), aff'd, 746 F.2d 810 (5th Cir.

RRR aaa Oe 29

Laker Airways Ltd. v. Sabena, Belgian World Air-

lines, 731 F.2d 909 (D.C. Cir. 19877 28

Lauritzen v. Larsen, 345 U.S. 571 (1958) 8, 22, 25, 26, 28

Mannington Mills, Inc. v. Congoleum Corp., 595

F.2d 1267 (Srd Cir. 1979) 24

McCulloch v. Sociedad Nacional de Marineros, 372

e ane a a te 11, 16, 21

McGee v. International Life Insurance Co., 355

r EE it AS AN I 26

Montreal Trading Ltd. v. Amar Inc., 661 F.2d 864

(10th Cir. 1981), cert. denied, 455 U.S. 1001

K 24

Montship Lines, Ltd. v. Federal Maritime Board,

296 F.2d 147 (D.C. Cir. 1961)... 8

NLRB v. Jones & Laughlin Steel Corp., 801 U.S. 1

eee .. 11

North Carolina Department of Transportation v v.

Crest Street Community Council, 479 U.S. 6

(1986) x

Park W Fly v. ‘Dollar Park and Fly, Inc., 469 US.

. AIR AS: Mc . 7

Pennoyer v. Neff, 96 U.S. 714 (187) 16

— vii

TABLE OF AUTHORITIES—Continued

Page

Polish National Alliance v. NLRB, 322 U.S. 643

111 ²˙ AA 3. 11

Psimenos v. E.F. Hutton & Co., 722 F.2d 1041 (24

r 20

Ramirez & Feraud Chili Co. v. Las Palmas Food

Co., 146 F. Supp. 594 (S.D. Cal. 1956), af d, 245

P.2d 874 (Sth Cir. 10 24

Randall v. Aramco, 778 F.2d 1146 (5th Cir. 1985) 9

Romero v. International Terminal Operating Co.,

e . 23

Schooner Exchange v. MFaddon, 11 U.S. (7

EE re 16

Sedima, S.P.R.L. v. Imrex Co., 473 US. 479

EE 15

Skiriotes v. Florida, 318 U.S. 69 (1941) 25

Societe Internationale Pour Participations Indus-

trielles et Comerciales, S.A. v. Rogers, 357 U.S.

FR FS EE RE es 20, 27, 29

Societe Nationale Industrielle Acrospatiale v. US.

District Court, 482 U.S. 522 (1987) passim

State Bank of India v. NLRB, 808 F.2d 526 (7th

Cir. 1986), cert. denied, 488 U.S. 1005 (1987) 21

Steele v. Bulova Watch Co., 344 U.S. 280 (1982) passim

Sumitomo Shoji America, Inc. v. Avagliano, 457

OR EE X 18

Symonette Shipyards, Ltd. v. Clark, 365 F.2d 464

r ˙A . 23

Tamari v. Bache & Co. (Lebanon), 780 F.2d 1108

(7th Cir.), cert. denied, 469 U.S. 871 (1984) 20

The Apollon, 22 U.S. (9 Wheat.) 361 (1824) 16

The Charming Betsy, 6 U.S. (2 Cranch) 64

(1804) ... 16

Timberlane Ander Co. v. „„ Bank of America N.T.

& S.A., 549 F.2d 597 (9th Cir. 1976) aff'd, 749

F.2d 1878 (9th Cir. 1984), cert. denied, 472

U.S. 1082 (1985) ... * 24. 28

United States v. Albertini, 472 U.S. 675 (1986) 5 >)

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. Aluminum Co. of America, 148

F. ad 416 (2d Cir. 1945) 5, 19, 24, 25

United States v. Baker, 609 F.2d 134 (5th Cir.

EE w- —ê UT Ä Se ere 20

United States v. Bowman, 260 U.S. 94 (192275 26, 28

United States v. Brown, 549 F.2d 954 (4th Cir.

ee 20

United States v. First National City Bank, 396

F.2d 897 (2d Cir. 1968) s

United States v. Locke, 471 U.S. 84 (1985) * 7

United States v. Menasch, 348 U.S. 528 (1986) 7

United States v. Sisal Sales Corp., 274 U.S. 268

Z 19

University of Pennsylvania v. EEOC, 110 8. Ct.

(Ee ee 7

United States v. Wright-Barker, 784 F.2d 161 (3d

. 20

Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d

633 (2d Cir.), cert. denied, 352 U.S. 871

(1956) 23

Vespa of America Corp. v. Bajaj Automobile I t

550 F. Supp. 224 (N.D. Cal. 1982) — 23

Weinberger v. Rossi, 456 U.S. 25 (1982) . —_ 15

Wells Fargo & Co. v. Wells Fargo — Co.

556 F.2d 406 (9th Cir. 1977) — 24

Wickard v. Filburn, 317 U.S. 111 (1942) . aa . 910

W.S. Kirkpatrick ». Environmental Tectonics

Corp., 110 8. Ct. 701 (1990) 11 19

Zenith Radio Corp. v. Hazeltine Research Corp..

395 U.S. 100 (196% 19

Zoelsch v. Arthur Andersen & Co. 824 F.2d 27

(D.C. Cir. 1987 — ; 20

STATUTES AND LEGISLATIVE MATERIALS

18 U.S. C. 1 **— a 19

18 U. 8 C. 82 1 —— 19

*in 1 20

46 U.S. C. App.§688(a) »09“0 . 1 22

50 U.S.C. App. § 481 1 26

110 Cong. Rec. 1511 & 7208-12 (1964) — . 0, 10, 11

TABLE OF AUTHORITIES—Continued

Page

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg. passt

Committee on Ways and Means, U.S. House of

Representatives, Overview and Compilation of

U.S. Trade Statutes (1989) /:g7 „„ 17

EEOC, Legislative History of Titles VII and XI

of Civil Rights Act of 1964 9, 10, 11, 12. 14

Federal Reserve Act of 1913, 12 U.S.C. §§ 601-

eT 17

Foreign Assistance Act of 1962 (The Hickenlooper

Amendment), 22 U.S.C. § 2370(e) 17

Foreign Corrupt Practices Act of 1977, 15 U.S.C.

A 17, 26

Foreign Sovereign Immunities Act of 1976, 28

r 17

Foreign Trade Antitrust Improvements Act of

1982, 15 U.S.C. §§ Ga, 48 (a) () 17

H.R. Rep. No. 1370, 87th Cong. 2d Sess. (1962) 14

H.R. Rep. No. 570, 88th Cong., Ist Sess. (1963) Q

H.R. Rep. No. 914, 88th Cong., Ist Sess. (1963) 9, 12, 14

BOOKS AND ARTICLES

Akehurst, Jurisdiction in International Law, 46

Brit. Y.B. Int 1 L. 145 (1974) . 18

C. Brauer, John F. Kennedy and the Second Re-

construction (1977) 13

Dudziak, Desegregation As a Cold War Impera-

tive, 41 Stan. L. Rev. 61 (1988) 3 13

Lowenfeld, Public Law in the International

and Some Suggestions for Their Interaction,

163 Recueil des Cours 321 (1979) 18

14 .

(2d sd. 1990) 5

Restatement (Second) Conflict of Laws (1971) 26

Restatement (Second) Foreign Relations Lav

EE Se 5, 21

Restatement (Third) Foreign Relations Law

———T———F—F—F—ſ passim

TABLE OF AUTHORITIES—Continued

D. Rosenthal & B. Knighton, National Laws and

International Commerce (1982)

J. Story, Commentaries on the Conflict of Laws

r è— ..... iume

Wallace, Extraterritorial Jurisdiction, 15 Law &

Pol'y Int'l Bus. 1099 (1983))))))) tut:

H. Wheaton, Elements of International Law

RRS ARERR SES SOL at “AE Ra ae

The Annual Report of the Council of Economic

The World Almanac and Book of Facts: 1990

reer

MISCELLANEOUS

Bureau of the Census, U.S. Dep’t of Commerce,

Statistical Abstract of the United States: 1947

ESR ETS ar ae

Bureau of the Census, U.S. Dep’t of Commerce,

Statistical Abstract of the United States: 1987

I a cousenenes

Convention on the Elimination of All Forms of

Racial Discrimination, G.A. Res. 2106, 20 U.N.

GAOR Supp. (No. 14), U.N. Doc. A/ 4354

Se So ne ae ee

Convention on the Elimination of All Forms of

Discrimination Against Women, G.A. Res. 34/

180, U.N. GAOR Supp. (No. 46), U.N. Doc.

GD TD

Convention Concerning Discrimination in B- cet

of Employment and Occupation, June 25, 1958,

r .

Economic Report of the President (Feb. 1990)

Pub. Papers (John F. Kennedy, Feb. 28, 1963)

Pub Papers (John F. Kennedy, June 11, 1963)

Pub Papers (John F. Kennedy, Sept. 20, 1963)

U.S. Dep’t of Commerce, United States Trade:

Performance in 1988 (1989) y)

U.S. Dep’t of Justice, Antitrust Enforcement

Guidelines for International Operations (1988)

Page

4,17

19, 24

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 89-1838, 89-1845

ALI BOURESLAN and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

7 Petitioners,

ARABIAN AMERICAN OIL COMPANY and

ARAMCO SERVICES COMPANY,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

This amicus curiae brief is submitted in support of

petitioners, Ali Boureslan and the Equal Employment Op-

portunity Commission. By letters filed with the Clerk of

the Court, petitioners and respondents have consented to

the filing of this brief.

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee is a nonprofit organization

established in 1963 at the request of the President of the

United States to involve leading members of the bar

throughout the country in the national effort to ensure

civil rights to all Americans. As part of this effort, the

Lawyers’ Committee has represented parties and partici-

pated as an amicus in several Title VII cases before this

Court.

This case raises important issues concerning the geo-

graphic scope of the application of Title VII that may

affect employment discrimination litigation in which the

Lawyers’ Committee will participate. The significance of

these issues is magnified by the increasingly international

character of U.S. industry and employment opportunities.

The Lawyers’ Committee has a long-standing interest in

persuading the Court to adopt principles that will result

in the sound administration of Title VII. Finally, leading

members of the bar associated with the Lawyers’ Com-

mittee played a role in the legislative process culminating

in the enactment of Title VII, and therefore, are uniquely

competent to offer views rege ding the principles and

history associated with the legislation.

SUMMARY OF ARGUMENT

The question presented in this case is whether Title VII

of the Civil Rights Act of 1964 prohibits employment dis-

crimination outside the United States by a U.S. corpora-

tion against a U.S. citizen. The Court of Appeals held that

it does not. The court reasoned that a federal statute is

not applicable extraterritorially to conduct occurring out-

side the United States absent clear statutory language

dictating such a result, and that Title VII contains no

such language.

The Court of Appeals erred by substituting a judicially-

created presumption for Congress’ plain words and mani-

fest intent. Title VII declares a fundamental national

commitment to eradicate racial, religious, gender, and

other forms of discris.ination in employment. Consistent

with this high objective, Congress and the President made

Title VII broadly applicable to the limits of federal power:

the Act extends to employment discrimination by all em-

ployers whose enterprises “affect” commerce “among the

several states; or between a State and any place outside

thereof.” 42 U.S.C. S 2000e(g). Thus, by its plain terms,

Title VII reaches all discriminatory acts—wherever they

may occur—by those employers who affect comerce.

Moreover, the legislative history of the Civil Rights Act

of 1964 shows that Congress intended the Act’s anti-

discrimination provisions to reach to the full extent per-

mitted by the Constitution. Title VII’s legislative his-

tory states specifically that the Act extends to “that

commerce to which the regulatory power of Congress ex-

tends.” 110 Cong. Rec. 7212 (1964). Similarly, in dis-

cussing Title VII's definition of “commerce,” the Act’s

drafters repeatedly cited Polish National Alliance v.

NLRB, 322 U.S. 648, 647 (1944), in which this Court

characterized a similar statute as Congress’ effort “to

regulate all conduct having such consequences that con-

stitutionally it can regulate.”

It was only natural that Congress wanted the geo-

graphic scope of Title VII to extend to the limits of the

Constitution. Title VII states the fundamental moral

commitment of this Nation—as a matter of “highest

priority,” Franks v. Bowman Transportation Co., 424

U.S. 747, 763 (1976)—to eradicate employment discrimi-

nation. Similarly, the Act’s legislative history evinces a

profound concern for the effect of employment discrimi-

nation upon U.S. international relations. As President

Kennedy told the United Nations when describing a bill

that would become Title VII: “The United States of

America is opposed to discrimination and persecution on

grounds of race and religion anywhere in the world.”

II.

Even if we put to one side the plain language and

manifest intent of Title VII, the Court of Appeals erred

in adopting a rigid presumption that federal law ap-

plies only within U.S. territory. This presumption of

territoriality was derived from 18th and 19th century

publie international law principles, as well as from the

assumption that Congress is not concerned with interna-

tional matters. Neither generalization retains vitality in

today’s interdependent global economy.

First, it is no longer true that Congress is concerned

only with domestic matters. During this century, bur-

geoning transnational business activities and increasing

economic interdependence have demanded sustained fed-

eral legislative attention. “In today’s highly integrated

world economy, international economic policy issues are

inseparably intertwined with domestic policy issues.” The

Annual Report of the Council of Economic Advisers, 264

(Feb. 1990). As a consequence, Congress has repeatedly

concerned itself with international matters, enacting

scores of major statutes that regulate transnational and

foreign conduct. And other developed nations have done

the same.

Second, this century has witnessed profound changes in

public international law. During the 18th and 19th cen-

turies, international law was generally understood as

erecting strict territorial limits to national jurisdiction.

American Banana Co. v. United Fruit Co., 213 US.

347 (1909). But contemporary authorities, including the

Restatement (Third) Foreign Relations Law, make it

clear that territoriality is not the sole legitimate basis

for national jurisdiction under international law.

This Court’s decisions illustrate the extent to which

archaic notions of strict territoriality have been aban-

doned. Without any specific statutory instruction to ap-

ply the Sherman Act and other antitrust laws extrater-

ritorially, this Court has repeatedly done so in recent

decades. E. g., Continental Ore Co. v. Union Carbide &

Carbon Corp., 370 U.S. 690 (1962). Indeed, the Court

has expressly overruled its earlier decision in American

Banana, where a presumption of territoriality was in-

voked to hold the antitrust laws applicable only to con-

duct within the United States. Similarly, the Lanham

Act has been applied extraterritorially by this Court,

notwithstanding the absence of any language specifically

requiring such a result. Steele v. Bulova Watch Co., 344

U.S. 280 (1952). Finally, again without a specific statu-

tory mandate, it is clear that the federal securities laws

apply to conduct that takes place wholly outside the

United States. See Restatement (Third) Foreign Rela-

tions Law § 416 (1987) (citing authorities).

Rather than reflecting any strict presumption of ter-

ritoriality, this Court’s decisions are instead based upon

the more natural conclusion that Congress legislates

against the background of international choice-of-law

principles, and that it is these principles that should in-

form the construction of federal statutes. Thus, in

Lauritzen v. Larsen, 345 U.S. 571, 583 (1953), the Court

interpreted the Jones Act’s broad jurisdictional grant in

light of historic “choice of law“ rules. The same ap-

proach was taken in other leading international deci-

sions, including Steele v. Bulova Watch Co., 344 U.S. 280

(1952), Societe Nationale Industrielle Aerospatiale v.

U.S. District Court, 482 U.S. 522 (1987), and United

States v. Aluminum Co. of America, 148 F.2d 416, 443

(2d Cir. 1945).

In light of these cases, the recent Restatement (Third)

of Foreign Relations Law (1987) specifically deleted a

provision, set forth in § 38 of the Restatement (Second)

of Foreign Relations Law (1965), stating that federal

statutes were presumed to apply only within U.S. terri-

tory. In its place, the Third Restatement provides that

a “rule of reason,” based upon this Court’s international

choice-of-law rules, establishes the appropriate reach of

federal legislation. Restatement (Third) Foreign Rela-

tions Law §§ 402 comment i, 403 comment a (1987).

III.

Under the international choice of- law decisions of this

Court, it is plain that Title VII applies to respondents’

alleged misconduct. Respondents, Delaware corporations,

are concededly U.S. nationals. This Court has long rec-

ognized that nationality is a wholly legitimate basis for

the extraterritorial application of U.S. laws. U.S. stat-

utes dealing with a wide range of subjects expressly ap-

ply to U.S. nationals wherever they may be, and nation-

ality has been a vital factor in this Court’s decisions de-

termining the reach of other federal statutes. Moreover,

the petitioner in this case is a U.S. national. Numerous

decisions of this and other courts affirm the legitimate

interest of a State in providing effective legal relief for

its citizens, even when they are abroad.

Employment discrimination abroad by major compa-

nies (like respondents) will also have substantial effects

within the United States. More than 2 million Americans

work abroad, and advancement in many major U.S. com-

panies depends increasingly upon successful performance

in overseas assignments. Denying U.S. citizens the pro-

tections of Title VII during such assignments will affect

their ability to rise to positions of responsibilities here

in the United States. And the tolerance of race or sex

discrimination in overseas operations of a U.S. company

can invidiously affect domestic attitudes.

Finally, Title VII expresses a U.S. policy—eliminating

employment discrimination—to which Congress attached

the “highest priority.” No showing has been made that

Saudi Arabian law conflicts with that policy in this case,

either by requiring or encouraging private bias. Given

Title VII’s alien exclusion, as well as the broad interna-

tional consensus against discrimination, such conflicts

are unlikely to arise with any frequency. And if they

do, international choice-of-law rules could take such con-

flicts into account and might in some cases provide some

defense to Title VII violations. But this case presents

no such conflict.

ARGUMENT

I. CONGRESS EXPRESSLY EXTENDED THE GEO-

GRAPHIC REACH OF TITLE VII TO THE LIMITS

OF FEDERAL POWER UNDER THE CONSTITU-

TION

The plain language and legislative history of Title VII

extend the protections of the Act to U.S. citizens whether

or not they are within U.S. territory. The Court of Ap-

peals ignored Congress’ words and intent, choosing in-

stead to give effect to a judicially-created presumption

that federal statutes apply only within the United States.

In so doing, the lower court abandoned its proper task

of ascertaining legislative intent.“ And it violated this

Court’s admonition that statutory interpretation is pri-

marily concerned with the statute’s plain language.“

A. The Plain Language of Title VII Extends the Act’s

Geographic Scope to the Limits of Federal Power

Under the Constitution

Title VII makes it unlawful for an “employer” to dis-

criminate based on race, religion, sex, or national origin.

42 U.S.C. § 2000e-2. “Employer” is defined as “a per-

son engaged in an industry affecting commerce” who has

fifteen or more employees. 42 U.S.C. S 2000e(b). Com-

merce” is, in turn, defined as trade “among the several

States; or between a State and any place outside thereof.”

42 U.S.C. S 2000e (g) (emphasis supplied). By their

plain terms, these provisions of Title VII extend to em-

ployment discrimination anywhere in the world by any

fifteen- person employer who affect [s]!“ trade “between

a State and any place outside thereof.“

1 See United States v. Albertini, 472 U.S. 675, 680 (1985); United

States v. Locke, 471 U.S. 84, 95-96 (1985); pp. 14-15 infra.

2 See, e.g., Park’N Fly v. Dollar Park and Fly, Inc., 469 U.S. 189,

194 (1985) (“Statutory construction must begin with the language

employed by Congress and the assumption that the ordinary mean-

ing of that language accurately expresses the legislative purpose“);

Blum v. Stenson, 465 U.S. 886, 896 (1984) (Where, as here,

resolution of a question cf federal law turns on a statute and the

intent of Congress, we look first to the statutory language and then

to the legislative history if the statutory language is unclear“); cf.

University of Pennsylvania v. EEOC, 110 S. Ct. 577, 583 (1990)

(relying on plain language of Title VII).

3 The term “State” is defined expansively in 42 U.S.C. § 2000e(i)

to include all possessions of the U.S. The “between a State and

any place outside thereof” clause in the definition of “commerce”

can only apply to commerce between the U.S. and other countries,

because there is no place within the U.S. that is not also within a

State, as defined in Title VII. Respondents’ reading of the statute

would render the “between a State and any place outside thereof”

clause in § 2000e(g) superfluous, contrary to familiar principles of

statutory construction. See United States v. Menasch, 348 U.S.

528, 538-39 (1955) (court must “give effect, if possible, to every

clause and word of a statute’).

Nothing in Title VII even remotely suggests any ex-

emption or immunity for unlawful discrimination by em-

ployers against U.S. nationals outside of U.S. territory.

On the contrary, § 2000e-1 exempts from the statute “an

employer with respect to the employment of aliens out-

side any State|.]” Unless Title VII was generally in-

tended to have extraterritorial application, there would

have been no reason to specifically exclude aliens from

its protections when they are abroad.?

The Court of Appeals found Title VII “curiously silent“ on

questions such as subpoenas for overseas violations, venue for over-

seas violations, and conflicts with foreign laws. U.S. Cert. Pet. 5a.

Even if such purported anomalies existed, it is improper to “ignore

the plain language of a statute to avoid a possibly anomalous

result“: the short answer is that Congress did not write the

statute that way.” North Carolina Dep't of Transp. v. Crest Street

Community Council, 479 U.S. 6, 14 (1986) (quoting Garcia v.

United States, 469 U.S. 70, 79 (1984) ). In any event, the anomalies

cited by the lower courts do not exist.

Section 2000e-9 provides the EEOC with the investigatory and

subpoena authority enjoyed by the National Labor Relations Board.

Under § 161(2) a subpoena can be served within the United States

on a U.S. or other company wherever it may be found—which at a

minimum encompasses where its offices may be located. Although

served in the United States, that subpoena can demand documents

and other materials located outside U.S. territory. See United

States v. First National City Bank, 396 F.2d 897 (2d Cir. 1968);

Montship Lines, Ltd. v. Federal Maritime Board, 295 F.2d 147

(D.C. Cir. 1961); Restatement (Third) Foreign Relations Law

§ 442 (1987). Under 816105) an EEOC subpoena likely may not

be served outside the United States, but given the preceding au-

thorities this is not an obstacle to effective investigations. More-

over, other agencies that enforce statutes that are clearly applicable

extraterritorially have long operated with the same constraint,

which is derived from international law concerns about serving

compulsory process within foreign territory. See Commodity

Futures Trading Commission v. Nahas, 738 F.2d 487 (D.C. Cir.

1984); FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636

F.2d 1300 (D.C. Cir. 1980).

Section 2000e-5(f) (3) provides a host of venue choices, including

the judicial district where employment records are located and

where a respondent’s “principal office” is located. In virtually all

cases, employers subject to Title VII will have their principal cor-

porate office in the United States. And in those few cases where

B. The Legislative History of Title VII Demonstrates

That the Act’s Geographic Scope Extends to the

Limits of Federal Power Under the Constitution

The legislative history of Title VII compels the same

conclusion as the language of the statute: Congress in-

tended to eradicate discrimination to the full geographic

extent of its power over both domestic and foreign com-

merce under the Constitution. An interpretive memoran-

dum read into the Congressional Record by the floor man-

agers of Title VII in the Senate stated exactly this:

Title VII covers discriminatory practices by em-

ployers engaged in industries affecting commerce, as

defined in the title. Commerce] is, in short,

thal commerce to which the regulatory power of

Congress extends[.] °

Both proponents and opponents of Title VII in the

House Judiciary Committee cited Wickard v. Filburn, 317

U.S. 111 (1942), as defining the scope of the bill.“ Wick-

an employer’s corporate headquarters is abroad, the Act’s reference

to “principal office” is sufficiently flexible to include the employer’s

principal office in the U.S. Cf. Randal! v. Aramco, 778 F.2d 1146,

1148 (5th Cir. 1985); Fogleman v. Aramco, 623 F. Supp. 908, 910

(W.D. La. 1985); 1 Moore’s Federal Practice 9 0.77[2.-3], at

717.47-.48 (2d ed. 1990).

Finally, even if Title VII contained no specific provisions dealing

with conflicts between the Act and foreign Jaw, that is because this

Court has long resolved such conflicts based on international choice-

of-law principles. See pp. 22-25 infra. There are, for example,

no provisions of the Sherman Act, the Lanham Act, the Jones Act

or the federal securities laws covering conflicts with foreign law—

yet it is clear that all these laws apply extraterritorially. In any

event, the alien exclusion was specifically included in the Act to

avoid conflicts with foreign laws. H.R. Rep. No. 570, 88th Cong.,

Ist Sess. 4 (1963) (purpose of exemption is to “remove conflicts

of law” between Title VII and foreign law).

5110 Cong. Record 7212 (1964) (emphasis supplied), reprinted

in EEOC, Legislative History of Titles VII and XI of Civil Rights

Act of 1964 3039, 3041 (hereinafter, “EEOC Legislative History”).

® See H.R. Rep. No. 914, 88th Cong., Ist Sess. at 108 (1963)

(Views of Reps. Poff and Cramer), reprinted in EEOC Legislative

History at 2108; id. Part II at 13 (Views of Rep. McCulloch et

ard was clearly understood then—-as it is now—as up-

holding a statutory scheme that was as broad as Congress

could enact under the Commerce Clause.’ And finally,

this Court has read the defin don of “commerce” in Title

II of the 1964 Civil Rights Act, which is parallel to the

definition in Title VII, to include all commerce Congress

can constitutionally regulate.’

Moreover, Title VII’s supporters relied on Congress’

authority to regulate both interstate and foreign com-

merce. For example, Senator Clark cited the opinion of

U.S. Deputy Attorney General Katzenbach relying on Con-

gress’ power over foreign commerce.“ Senator Clark also

cited an opinion of the Lawyers’ Committee concluding

that el mployers, employment agencies as well as labor

al.), reprinted in EEOC Legislative History at 2134. The propo-

nents cited Wickard to demonstrate the constitutionality of the bill;

the opponents cited the case in an attempt to prove that the cover-

age of the legislation would be too broad as a policy matter.

7Wickard upheld as consistent with the Commerce Clause a

penalty against a wheat farmer for grain grown for his own use.

The Court extensively discussed the international nature of the

market for wheat, and relied upon Congress’ power to regulate

both interstate commerce and foreign commerce to uphold the statu-

tory scheme at issue. Wickard, 317 U.S. at 125-26.

A memorandum written by the Lawyers’ Committee and read

into the Congressional Record by the floor managers of the Act

specifically analogized the scope of “commerce” for the purposes of

Title II and Title VII, stating: “{t|he same considerations which

support the conclusion that the public accommodations title [Title

II] is valid under the commerce clause . . . are equally applicable

here [to Title VII].“ 110 Cong. Rec. 7208 (1964), reprinted in

EEOC Legislative History at 3077.

® See Daniel v. Paul, 395 U.S. 298 (1969) ; Katzenbach v. McClung,

379 U.S. 294 (1964); Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964).

110 Cong. Rec. 7209 (1964), reprinted in EEOC Legislative

History at 3078 (We believe that the commerce clause of the

Constitution (art. I, sec. 8) provides authority for Congress to

enact fair employment practices legislation. The courts have re-

peatedly upheld the power of Congress to regulate employment

relations affecting interstate and foreign commerce“) (emphasis

supplied)

organizations whose business or activities affect inter-

state or foreign commerce are clearly subject to congres-

sional legislative authority.“ And finally, the Katzen-

bach opinion, and other materials, relied specifically upon

Polish National Alliance v. NLRB, 322 U.S. 643, 647

(1944). There, this Court held that Congress, by adopt-

ing a definition of commerce identical to that in Title

VII, “has undertaken to regulate all conduct having such

consequences that constitutionally it can regulate.” '

Future cases may involve employers and employees

whose activities have so little relation with this country

that the Constitution would preclude application of Title

VII by a U.S. court.“ But respondents properly concede

that Congress could constitutionally reach their conduct,

Id., reprinted in EEOC Legislative History at 3077 (emphasis

supplied). Similarly, Representative Cellar said: “Title VII covers

employers engaged in industries affecting commerce, that is to say,

interstate and foreign commerce.” 110 Cong. Record 1511 (1964),

reprinted in EEOC Legislative History at 3091 (emphasis sup-

plied). The Senate bill (which ultimately became law) omitted the

preamble to the House bill, which had specifically stated that it was

intended “To remove obstructions to the free flow of commerce

among the States and with foreign nations.” But this deletion is

irrelevant; the debate cited above demonstrates that the Senate,

like the House, was relying on power over foreign commerce when

it passed Title VII, and the Senate accordingly expected that Title

VII would in fact affect foreign commerce.

And all of the opinions discussed above cited NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 31 (1937), where this Court

interpreted a definition of commerce identical to that in Title VII

as reaching both “interstate and foreign“ commerce. By contrast,

we have been unable to locate anywhere in the voluminous legisla-

tive history of Title VII any citation to the three cases prin-

cipally relied upon by Aramco in the court below—Foley Bros.,

Inc. v. Filardo, 336 U.S. 281 (1949); McCulloch v. Sociedad

Nacional de Marieneros, 372 U.S. 10 (1963), or Benz v. Compania

Naviera Hidalgo, S.A., 353 U.S. 138 (1957).

18 The Due Process Clause could limit either legislative jurisdic-

tion, see Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Home

Ins. Co. v. Dick, 281 U.S. 397 (1930), or personal jurisdiction,

see Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408

(1984).

Cert. Opp. at 20-23, and that should be the end of the

matter.

C. Title VII Expresses a Fundamental National Moral

Commitment That is Applicable to U.S. Nationals

Outside U.S. Territory

It is only natural that Title VII’s geographie scope ex-

tend to the full limits of federal power under the Consti-

tution. Congress and he President emphatically said that

Title VII was a fundamental moral commitment by this

Nation of the highest order, and they repeatedly linked

the high goals of Title VII to the international standing

and relations of the United States. It would be wholly

implausible to conclude that they did not want an over-

riding commitment of this character to extend to the full

limits of federal authority.

In enacting Title VII, Congress explicitly declared its

intent to resolve a pressing moral wrong:

[Tjhis bill can and will commit our nation to the

elimination of many of the worst manifestations of

racial prejudice. This is of paramount importance

and is long overdue. The practices of American

democracy must conform to the spirit which motivated

the Founding Fathers of this Nation—the ideals of

freedom, democracy, justice and opportunity. The

entire Nation must meet this challenge, and it must

do so now.“

1% H.R. Rep. No. 914, 88th Cong., Ist Sess., pt. 2, at 2 (1963),

reprinted in EEOC Legislative History at 2122. (views of Rep.

McCulloch). As Representative McCulloch eloquently stated:

[Wie believe in the creation of job equality because it is the

right thing to do. We believe in the inherent dignity of man.

He is born with certain inalienable rights. His uniqueness is

such that we refuse to treat him as if his rights and well-

being are bargainable. All vestiges of inequality based solely

on race must be removed in order to preserve our democratic

society, to maintain our country’s leadership and to enhance

mankind.

Id. at 30, reprinted in EEOC Legislative History at 2151.

President Kennedy, discussing the bill that became Title

VII, struck the same theme in his final address to the

United Nations.“ And this Court has observed how

Congress “ordained that its policy of outlawing [employ-

ployment] discrimination should have the ‘highest pri-

ority’”

Finally, unlike ordinary labor legislation, concerns about

the international consequences of employment discrimina-

tion were a fundamental reason for enactment of Title

VII. When he first proposed the bill, President Kennedy

cited “the discriminatory treatment suffered by too many

foreign diplomats, students and visitors to this country.“

And he later emphasized that the Nation’s racial injustices

undermined our worldwide efforts to advance the cause of

freedom.'* Similarly, the House reports on the 1964 Civil

Rights Act urged that the bill was necessary to combat

See Address Before the 18th General Assembly of the United

Nations,” Pub. Papers 697 (Sept. 20, 1963) (“I hope that not only

our Nation but other multiracial societies will meet these stand-

ards of fairness and justice”). As this Court has noted, the Execu-

tive Branch has consistently demonstrated its commitment to “the

fundamental policy of eliminating racial discrimination.” Bob

Jones University v. United States, 461 U.S. 574, 595 (1983).

Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976)

(citations omitted) (quoting Newman v. Piggie Park Enterps., Inc.,

390 U.S. 400, 402 (1968)). See Hamm v. City of Rock Hill, 379

US. 306, 317 (1964) (“Congress has exercised its constitutional

power in enacting the Civil Rights Act of 19€4 and declared that

the public policy of our country is to prohibit discrimination“)

17 “Special Message to the Congress on Civil Rights,” Pub. Papers

230 (Feb. 28, 1963). President Kennedy went on to say “But it is

not enough to treat those from other lands with equality and

dignity—the same treatment must be afforded to every American

citizen.” Id.

Radio and Television Report to the American People on Civil

Rights,” Pub. Papers 469 (June 11, 1963) (“We preach freecom

around the world, and we mean it, and we cherish our freedom

here at home, but are we to say to the world, and much more

importantly, to each other that this is a land of the free, except

for the Negroes . . “); see generally C. Brauer, John F. Kennedy

and the Second Reconstruction 276-78 (1977); Dudziak, Desegre-

gation as a Cold War Imperative, 41 Stan. L. Rev. 61 (1988).

totalitarian regimes abroad, as well as to preserve the

global competitive position of the U.S. and present an

example to newly-emerging nations.”

II. EVEN IF THE GEOGRAPHIC SCOPE OF TITLE

VII WERE AMBIGUOUS, IT WAS ENACTED

AGAINST THE BACKGROUND OF INTERNA-

TIONAL CHOICE-OF-LAW PRINCIPLES THAT

PERMIT THE EXTRATERRITORIAL APPLICA-

TION OF US. LAWS

A. This Court Has Repeatedly Refused to Adopt Any

Rigid Presumption That Federal Law Applies Only

Within U.S. Territory

Quite apart from its misreading of the plain language

and manifest intent of Title VII, the Court of Appeals

erred in adopting a rigid “presumption against extrater-

ritorial application of a [federal] statute.” U.S. Cert.

Pet. at 2a. This Court has long recognized that presump-

tions and other principles of statutory construction are

not rules of law, but are instead common-sense guides to

ascertaining what Congress likely intended. As Chief

Justice Rehnquist has explained:

Generalities about statutory construction help us

little. They are not rules of law but merely axioms

19 See H.R. Rep. No. 914, 88th Cong., Ist Sess., Pt. 2, at 17 (1963)

reprinted in EEOC Legislative History at 2128 (“Our Nation is

engaged today in cold war combat with an alien ideology. On every

front—military, economic, political, and social—we must demon-

strate the worth of our system“)

20 See H.R. Rep. No. 1370, 87th Cong., 2d Sess. at 3 (1962),

reprinted in EEOC Legislative History at 2157 (“In addition to

creating unfavorable impressions among the free peoples of the

world, employment discrimination. poses a distinct threat to the

Nation’s ability to maintain its competitive position in the world“);

see also id. at 2, EEOC Legislative History at 2156 (“Among other

peoples of the free world, especially the peoples of the newly

emerging and uncommitted nations, continued employment discrimi-

nation in the United States casts doubt upon our sincerity in

furthering the cause of individual liberty and human dignity”).

of experience. They do not solve the special difficulties

in construing a particular statute. The variables ren-

der every problem of statutory construction unique.”

Or, as this Court has said about a related principle of

statutory construction: “this interpretive canon is not a

license for the judiciary to rewrite language enacted by

the legislature.” **

The lower court’s presumption of territoriality is largely

the product of dicta in a few early decisions by this Court

that have long since been superseded. One of the earliest

and most direct statements of this presumption was in

American Banana Co. v. United Fruit Co., 213 U.S. 347,

356 (1909), where the Sherman Act was held inapplicable

to the actions of a U.S. company in Central America be-

cause of “the general and almost universal rule. . . that

the character of an act as lawful or unlawful must be

determined wholly by the law of the country where the

act is done.” Similarly, in Blackmer v. United States,

284 U.S. 421, 437 (1932) (citing American Banana),

the Court observed in passing that “the legislation of

the Congress, unless the contrary intent appears, is con-

strued to apply only within the territorial jurisdiction of

the United States.” And lastly, in Foley Brothers, Inc. v.

Filardo, 336 U.S. 281, 295 (1949), this dicta was referred

to as a “canon of construction which teaches that legisla-

tion of Congress, unless a contrary intent appears, is

meant to apply only within the territorial jurisdiction of

the United States.”

*1 Weinberger v. Rossi, 456 U.S. 25, 28 (1982) (quoting United

States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221 (1952) ).

*2 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 493 n.11 (1985)

(quoting United States v. Albertini, 472 U.S. 675, 680 (1985)).

“Any other conclusion, while purporting to be an exercise in judi-

cial restraint, would trench upon the legislative powers vested in

Congress by Art. I, §1, of the Constitution.” United States v.

Albertini, 472 U.S. 675, 680 (1985). Sce also Bowen v. Michigan

Academy of Family Physicians, 476 U.S. 667, 672 (1986) (a pre-

sumption is controlling only “where substantial doubt about the

congressional intent exists“).

This presumption of territoriality was a common-sense

generalization about Congress’ likely intent that derived

from two sources. First, under 18th and 19th century

principles of public international law, the extraterritorial

application of U.S. law “would be an interference with

the authority of another sovereign, contrary to the comity

of nations, which the other state concerned justly might

resent.” American Banana, 213 U.S. at 356.“ As Ameri-

can Banana illustrates, the overwhelming weight of 19th

century authority held that public international law

erected strict territorial limits to national jurisdiction.”

Second, the presumption of territoriality was linked, in

one decision, to Congress’ likely lack of concern about

events occurring abroad. The presumption was said to be

based on “the assumption that Congress is primarily con-

cerned with domestic conditions,” Foley Bros., 336 U.S.

at 285, and that Congress would probably not have meant

to deal with foreign or international conditions unless it

said so explicitly.

Both of these bases of the territoriality presumption

have lost their vitality. This century has witnessed a

23 This Court’s presumption of territoriality was one reflection of

the general notion that Congress would not likely intend to violate

rules of public international law. See The Charming Betsy, 6 US.

(2 Cranch) 64, 118 (1804); McCulloch v. Sociedad Nacional de

Marineros de Honduras, 372 U.S. 10, 21-22 (1963).

24 Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 137

(1812); The Apollon, 22 U.S. (9 Wheat.) 361, 370 (1924); Hilton

v. Guyot, 159 U.S. 113, 163-64 (1895), (“[n]jo law has any effect,

of its own force, beyond the limits of the sovereignty from which

its authority is derived”). Similarly, in Pennoyer v. Neff, 95 U.S.

714, 722 (1878), this Court said that under international law “no

State can exercise direct jurisdiction and authority over persons

and property without its territory.” The Court relied upon a num-

ber of international commentators for this conclusion, including

J. Story, Commentaries on the Conflict of Laws § 539 (7th ed.

1872); H. Wheaton, Elements of International Law §§ 77, 111-14,

134-51 (1866). Like American Banana’s limits on legislative juris-

diction, Pennoyer’s rigid territorial limitations on judicial jurisdic-

tion have long since been abandoned. See International Shoe Co. v.

Washington, 326 U.S. 310 (1945).

dramatic and exponential growth in transnational trade

and international commercial interdependence.” As the

Council of Economie Advisers recently observed, “{i]n

today’s highly integrated world economy, international eco-

nomic policy issues are inseparably intertwined with do-

mestic policy issues. International features arise naturally

as one considers traditionally domestic issues such as fiscal

policy, monetary policy, and environmental policy.” *

As a result, the United States and other nations have

increasingly taken great regulatory interest in conduct

occurring abroad and have frequently extended their laws

extraterritorially to such conduct. Thus, Congress has

enacted scores of federal laws that deal with countless

issues occurring partially or wholly outside of the United

States.“ Simply, put, the economic, social, and political

Compare Bureau of the Census, U.S. Dep’t of Commerce,

Statistical Abstract of the United States: 1947, Table No. 992, at

887 (68th ed. 1947) (average annual U.S. exports and imports in

1936-40 of $3.2 billion and $2.5 billion) with Bureau of the Census,

U.S. Dep’t of Commerce, Statistical Abstract of the United States:

1987, Table No. 1401, at 789 (107th ed. 1986) (annual U.S. exports

and imports in 1985 of $213 billion and $345 billion). See Economic

Report of the President 7 (Feb. 1990) (“The 1980’s have under-

scored the increased importance of global economic events in

shaping our lives“); U.S. Dep’t of Commerce, United States Trade:

Performance in 1988 1-6 (1989) (emphasizing “growing interna-

tional interdependence of nations“).

*6 The Annual Report of the Council of Economic Advisers 264

(Feb. 1990). ‘

27 F. g., Foreign Sovereign Immunities Act of 1976, 28 U.S.C.

§§ 1602-11; Foreign Trade Antitrust Improvements Act of 1982,

15 U.S.C. §§ 6a, 45(a) (3); Federal Reserve Act of 1913, 12 U.S.C.

§§ 601-604a; Foreign Assistance Act of 1962 (The Hickenlooper

Amendment), 22 U.S.C. §2370(e); Foreign Corrupt Practices

Act of 1977, 15 U.S.C. § 78dd-1(a). A 1989 compilation of U.S.

international trade legislation is 898 pages long and includes

hundreds of statutory provisions. Committee on Ways and Means,

U.S. House of Representatives, Overview and Compilation of U-S.

Trade Statutes (1989). Other nations have also increasingly ap-

plied their laws extraterritorially. See Restatement (Third) For-

eign Relations Law, § 403, Reporters’ Note 3 (1987).

interdependence of the 20th century world does not permit

Congress to concern itself solely with “domestic condi-

tions,” and it no longer makes sense to assume that any

such limitation is intended.

At the same time, principles of public international law

have significantly evolved to accommodate these extrater-

ritorial regulatory measures. A wide range of authorities

attest to the abandonment of notions of strict territori-

ality. Thus, the Restatement (Third) Foreign Relations

Law provides that jurisdiction may be based upon na-

tionality, id. § 402 (2), upon the “effects” or objective

territoriality principle, id. § 402(1)(c), upon so-called

„universal“ offenses, id. § 404, or upon the protective

principle, id. § 402(3). Indeed, the Third Restatement

specifically describes the gradual erosion of strict public

international law notions of territoriality:

In the past, the jurisdiction of a state to make its

law applicable in a transnatic»al context was deter-

mined by formal criteria supposedly derived from

concepts of state sovereignty and power.. . . Increas-

ingly, the practice of states has reflected conceptions

better adapted to the complexities of contemporary

international intercourse. . . . Territoriality and

nationality remain the principal bases of jurisdiction

to prescribe, but in determining their meaning rigid

concepts have been replaced by broader criteria.”

This Court’s decisions illustrate both the degree to

which Congress has concerned itself with conduct abroad

28 Restatement (Third) Foreign Relations Law, at 235-37 (1987).

Other authorities describe the same process. See Lowenfeld, Pub-

lic Law in the International Arena: Conflict of Laws, International

Law, and Some Suggestions for Their Interaction, 163 Recueil des

Cours 321 (1979); D. Rosenthal & B. Knighton, National Laws and

International Commerce (1982); Akehurst, Jurisdicton in Inter-

national Law, 46 Brit. Y.B. Int'l L. 145 (1974); Wallace, Er-

traterritorial Jurisdiction, 15 Law & Pol’y Int'l! Bus. 1099 (1983).

Cf. Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 186

(1982) (“As corporate involvement in international trade expanded

in this century, old commercial treaties became outmoded”’).

and the extent to which 18th century notions of strict

territoriality have been abandoned. In enacting the anti-

trust laws, Congress used only general language that made

no specific reference to conduct occurring abroad.” As

we have seen, this Court held in 1909 that the general

terms of the Sherman Act would be construed as being

“confined in [their] operation and effect to the territorial

limits over which the lawmaker has general and legiti-

mate power.” American Banana, 213 U.S. at 357. But

this Court has since flatly overruled American Banana,”

and it has repeatedly held that the antitrust laws do apply

to conduct occurring wholly outside the United States.“

Like the antitrust laws, the Lanham Act contains broad

jurisdictional language that does not make specific refer-

ence to conduct occurring abroad. Nonetheless, this Court

held in Steele v. Bulova Watch Co., 344 U.S. 280 (1952),

that the Lanham Act applied extraterritorially to conduct

by a U.S. national that had effects within the United

States. The Court emphasized that “the United States is

not debarred by any rule of international law from govern-

ing the conduct of its own citizens . . . in foreign countries

2° See 15 U.S.C. §1 (“restraint of trade or commerce with

foreign nations“); 15 U.S.C. §2 (“monopolize . . commerce

with foreign nations“)

0 Justice Scalia just last Term characterized American Banana

as having been “substantially overruled” by Continental Ore.

W.S. Kirkpatrick v. Environmental Tectonics Corp., 110 S. Ct. 701,

705 (1990).

See Continental Ore Co. v. Union Carbide & Carbon Corp., 370

U.S. 690, 705 (1962); United States v. Sisal Sales Corp., 274 U.S.

268, 275-76 (1927). Likewise, this Court has repeatedly cited with

approval the Second Circuit’s seminal decision in United States v.

Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), holding

that the Sherman Act applies to conduct aboard that has effects

within the United States. See Continental Ore Co. v. Union Car-

hide, 370 U.S. 690, 704-05 (1962); Steele v. Bulova Watch Co., 344

U.S. 280, 288 n.16 (1952); Zenith Radio Corp. v. Hazeltine Re-

search Corp., 395 U.S. 100, 114 n.8 (1969). Accord Restatement

(Third) Foreign Relations Law § 415 (1987); U.S. Dep't of Jus-

tice, Antitrust Enforcement Guidelines for International Opera-

tions 29-34 (1988).

when the rights of other nations or their nationals are not

infringed.” Id. at 285-86.

Similarly, the pretrial discovery provisions of the Fed-

eral Rules of Civil Procedure do not specifically authorize

discovery of documents or other materials located outside

the United States. But this Court has held squarely that

the Federal Rules do authorize extraterritorial discovery;

indeed, even where U.S. discovery would require violating

foreign secrecy or nondisclosure laws, discovery may be

ordered.“

Likewise, the geographie scope of the federal securities

laws are couched in general terms that Congress did not

specifically extend to conduct occurring in foreign states.“

Nonetheless, it is well-established that the securities laws

are applicable extraterritorially to foreign conduct. See-

tion 416 of the Restatement (Third) Foreign Relations

Law specifically provides for such a result, and comment a

to that section explains that “[t]he reach and application

of securities legislation of the United States depend on

their reasonableness,” and not upon strict notions of ter-

ritoriality.“ And finally, numerous lower courts have ap-

32 Societe Internationale Pour Participations Industrielles et

Commerciales S.A. v. Rogers, 357 U.S. 197 (1958); Societe Na-

tionale Industrielle Aerospatiale v. U.S. District Court, 482 U.S.

522 (1987). See Restatement (Third) Foreign Relations Law

§ 442 (1987).

3315 U.S.C. §77b(7) (“The term ‘interstate commerce’ means

trade or commerce in securities among... or between any

foreign country and any State, Territory, or the District of Co-

lumbia” ).

34 Restatement (Third) Foreign Relations Law § 416, comment a

(1977). Dozens of lower court decisions have applied the securities

laws extraterritorially. E.g.. Tamari v. Bache & Co. (Lebanon),

730 F.2d 1103 (7th Cir.), cert. denied, 469 U.S. 871 (1984);

Psimenos r. E.F. Hutton & Co., 722 F.2d 1041 (2d Cir. 1983);

Zoelsch v. Arthur Andersen & Co., 824 F.2d 27 (D.C. Cir. 1987);

Grunenthal GmbH v. Hotz, 712 F.2d 421, 425 (9th Cir. 1983).

plied generally worded federal narcotics and other crimi-

nal statutes extraterritorially.*

Based on these and other decisions, the recent Restate-

ment (Third) Foreign Relations Law specifically deleted a

section of the earlier Restatement (Second) Foreign Rela-

tions Law providing that federal statutes were presumed

to be applicable only within U.S. territory. Section 38 of

the Second Restatement provided that “[r]ules of United

States statutory law . . . apply only to conduct occurring

within, or having effect within, the territory of the United

States, unless the contrary is clearly indicated by the

statute.” The Third Restatement omitted this section,

recognizing that this Court’s recent decisions, and the

evolution of public international law rules, no longer

support any such presumption.”

35 F. g., United States v. Wright-Barker, 784 F.2d 161 (3d Cir.

1986); United States v. Baker, 609 F.2d 134 (5th Cir. 1980);

United States v. Brown, 549 F.2d 954 (4th Cir. 1977).

36 Respondent has suggested that the Third Restatement pre-

serves the territoriality presumption contained in § 38 of the Sec-

ond Restatement. Cert. Opp. at 5 n.5. The overwhelming weight

of the evidence is to the contrary. See Restatement (Third)

Foreign Relations Law § 402, comment i (1987) (“statutes should,

where fairly possible, be interpreted consistently with this section

and § 403”) ; id. § 403, comment a.

This Court’s decisions in McCulloch and Benz do not support

the lower court’s presumption of territoriality in cases involving

U.S. parties. The issue in those cases was whether the U.S.

statutes in question applied to alien workers. That issue is simply

irrelevant here. As discussed above, the alien exclusion of Title

VII distinguishes between citizen and alien labor, and makes plain

that the Act does not protect aliens outside the United States. 42

U.S.C. 2000e-1. Where application of the NLRA to U.S. workers

is involved, this Court has not followed McCulloch and Benz. See

Int Longshoremen's Assn., Local 1416 v. Ariadne Shipping Co.,

397 U.S. 195 (1970); State Bank of India v. NLRB, 808 F.2d 526

(7th Cir. 1986), cert. denied, 483 U.S. 1005 (1987). Similarly,

in Foley Bros. 336 U.S. at 286, the Court’s rationale was pre-

mised in large part upon the fact that if the statute at issue

were interpreted to apply outside the U.S., it (unlike Title VII)

would have applied there to aliens as well as U.S. citizens.

B. Rather Than Applying Any Rigid Presumption of

Territoriality, This Court Has Repeatedly Held

That The Reach of Ambiguous Federal Statutes Is

Determined by Reference to International Choice-

of-Law Principles

Rather than reflecting an archaic presumption of strict

territoriality, this Court’s construction of the geographic

scope of federal statutes has been based upon a more

natural, common sense analysis. This Court has repeatedly

concluded that Congress legislates against the background

of public international law and choice-of-law rules. These

rules have provided a flexible, finely-tuned basis for de-

termining the geographic scope of federal statutes.”

In Lauritzen v. Larsen, 345 U.S. 571 (1953), this Court

considered the geographic reach of the Jones Act’s broad

grant of relief to [a] ny seaman who shall suffer personal

injury in the course of his employment. 46 U.S.C.

App. § 688(a). The Court refused to apply either a strict

territorial presumption or a blindly literal reading of this

formula. Instead, the Court held that the Jones Act was

passed against a background of maritime choice-of-law

rules and international law principles that sought to

“reconcil[e] our own with foreign interests and. .. ac-

commodatſe] the reach of our own laws to those of other

maritime nations.” 345 U.S. at 577. And these choice-of-

law rules called upon the Court to identify the “connect-

ing factors between the shipping transaction regulated

and the national interest served by the assertion of au-

thority.” ** Applying these factors, the Court held that

37 By contrast, respondent’s rigid territoriality rule would have

bizarre results. A U.S. employee, dispatched abroad on a short

business trip, could be terminated on the basis of race or gender

during his or her travels and Title VII would not apply. Congress

simply could not have intended to permit this.

38 345 U.. at 582. The court identified several choice of law”

considerations relevant to this analysis: the place of the wrongful

act; the law of the flag; the allegiance or domicile of the injured;

the allegiance of the defendant shipowner; the place of the con-

the Jones Act did not apply to a Danish seaman injured

on board a Danish ship, while that ship was anchored in

Havana, Cuba.“

Similarly, in Steele v. Bulova Watch Co., 344 U.S. 280

(1952), the Court looked to a range of different con-

siderations—identical to those factors relevant to choice-

of-law analysis—in holding the Lanham Act applicable

extraterritorially to unlawful conduct in Mexico. Among

other things, the Court emphasized that the defendant was

a U.S. national and resident, id. at 284-85; that the plain-

tiff was a U.S. corporation, id. at 281; that the allegedly

unlawful conduct had some effects within the United

States; id. at 286 and 288; and that no direct conflict

between U.S. and Mexican law was presented, id. at 289.

Based on similar choice-of-law analyses, subsequent lower

court decisions involving allegedly unlawful conduct by

aliens outside of the United States have generally been

held beyond the reach of the Lanham Act.“

tract; the inaccessibility of any foreign forum; and the law of the

forum state. Id. at 583-93.

o Likewise, in Romero v. Int'l Terminal Operating Co., 358 U.S.

354, 383 (1959), this Court again interpreted the Jones Act (and

general maritime law) in light of “principles of choice-of-law.”

The Court held that the Jones Act provided no remedy for a foreign

seaman, injured on a foreign vessel owned by a foreign national,

even though the plaintiff’s injury occurred in U.S. territorial

waters: “The amount and type of recovery which a foreign seaman

may receive from his foreign employer while sailing on a foreign

ship should not depend on the wholly fortuitous circumstance of

the place of injury.” Id. at 384. The result in cases involving U.S.

seamen or more extensive U.S. contacts is very different. Hellenic

Lines, Ltd. v. Rhoditis, 398 U.S. 306 (1970) (applying Lauritzen

analysis to find that Jones Act does provide remedy to alien seaman

on foreign-flagged vessel with greater U.S. contacts); Symonette

Shipyards, Ltd. v. Clark, 365 F.2d 464 (5th Cir. 1966) (Jones Act

applies to U.S. seamen aboard foreign-flagged vessel on high seas) ;

Bartholomew v. Universe Tankships, Inc., 263 F.2d 437 (2d Cir.

1959).

1% Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir.),

cert. denied, 352 U.S. 871 (1956) ; Vespa of America Corp. v. Bajaj

This Court’s recent decision in Societe Nationale In-

dustrielle Aerospatiale v. U.S. District Court, 482 U.S.

522 (1987) is to the same effect. There, the Court

adopted a comity-based choice-of-law analysis in order to

determine when direct extraterritorial discovery under

the Federal Rules of Civil Procedure would be ordered.

This analysis required a “particularized analysis of the

respective interests of the foreign nation and the request-

ing nation,” together with other choice of law considera-

tions. Id. at 543-44.

Finally, in United States v. Aluminum Co. of America,

148 F.2d 416, 443 (2d Cir. 1945), the Court of Appeals,

sitting by Supreme Court certificate as the court of last

resort, applied the same general choice-of-law analysis to

the federal antitrust laws. The court held that it ought

not “read general words, such as those in {the Sherman]

Act, without regard to the limitations customarily ob-

served by nations upon the exercise of their powers;

limitations which generally correspond to those fixed by

the ‘conflict of laws.“ Id. at 445. This Court has spe-

cifically endorsed Alcoa,“ and more recent lower court

decisions have adopted an even more explicit choice-of-law

approach to the extraterritorial effect of the antitrust

laws.“

Auto Ltd, 550 F. Supp. 224, 227-28 (N. D. Cal. 1982). See Wells

Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 426-29

(9th Cir. 1977); Ramirez & Feraud Chili Co. v. Las Palmas Food

Co., 146 F. Supp. 594, 601-02 (S.D. Cal. 1956), aff'd, 245 F.2d 874

(9th Cir. 1957).

41 See note 31 supra.

42 F. g., Timberlane Lumber Co. v. Bank of America N. T. & S.A.,

549 F.2d 597 (9th Cir. 1976) af d, 749 F.2d 1378 (9th Cir. 1984),

cert. denied, 472 U.S. 1032 (1985); Montreal Trading Ltd. v.

Amar Inc., 661 F.2d 864 (10th Cir. 1981), cert. denied, 455 U.S.

1001 (1982); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d

1287 (3rd Cir. 1979). See also U.S. Dep’t of Justice Antitrust

Enforcement Guidelines for International Operations 31-34 (1988).

ee ͤ—

Based upon these decisions, the Third Restatement re-

placed strict principles of territoriality with an analysis

based upon choice-of-law principles and less archaic no-

tions of public international law. As described above,

§ 402 of the Third Restatement recognizes a wide range

of acceptable jurisdictional bases under international

law—of which territoriality is only one. Section 403

then sets forth a “rule of reason” based upon choice-of-

law considerations like those set forth in Lauritzen,

Bulova, Aerospatiale and Alcoa: it provides that “a

state may not exercise jurisdiction to prescribe lac

when the exercise of such jurisdiction is unreasonable.”

And “reasonableness” is determined by evaluating a

range of considerations, derived from this Court’s de-

cisions, that are set forth in § 403(2).*

III. UNDER INTERNATIONAL CHOICE-OF-LAW PRIN-

CIPLES, TITLE VII APPLIES TO EMPLOY-

MENT DISCRIMINATION OUTSIDE THE UNITED

STATES BY A US. COMPANY AGAINST A US.

CITIZEN

Under the choice-of-law considerations set forth in this

Court’s decisions and § 403, it is plain that Title VII ap-

plies to respondents’ conduct. First, respondents are

Delaware corporations and U.S. nationals. Nationality—

in and of itself—is well recognized as a legitimate basis

for the assertion of extraterritorial jurisdietion.“ And,

43 These considerations include the expectations and nationality

of the parties subject to regulation; the domestic effects of the

activity in question; the importance of the regulation to the regu-

lating state; the degree of international consensus on the norms

reflected in the regulation; and possible conflicts with the laws of

other states. See Restatement (Third) Foreign Relations Law

§ 403(2) (1987).

See Skiriotes v. Florida, 313 U.S. 69, 74 (1941) (“the United

States is not debarred by any rule of international law from gov-

erning the conduct of its citizens upon the high seas or even in

foreign countries when the rights of other nations or their na-

as we have already shown, this Court has repeatedly

relied upon the defendant’s U.S. nationality in determin-

ing the reach of U.S. statutes in international cases.“

This case also involves the application of U.S. law to

protect a U.S. national from unlawful employment dis-

crimination. This Court has often recognized the legiti-

mate interest ot states in the protection of their citi-

zens,“ and well-established choice-of-law principles give

substantial weight to the nationality of the injured plain-

tiff.“ This factor becomes even more compelling when

the defendant is of the same nationality as the plaintiff,

which is the case here.“

tionals are not infringed”); Blackmer v. United States, 284 U.S.

421, 437 (1932) ; Cook v. Tait, 265 U.S. 47, 56 (1924).

Scores of federal laws apply specifically to the conduct of U.S.

nationals, both at home and abroad. In general, federal laws apply

extraterritorially to U.S. nationals when they concern matters of

vital national importance—like racial discrimination. E.g., 50

U.S.C. App. § 451 (1988) (selective service); Cook v. Tait, 265

U.S. 47 (1924) (taxation); United States v. Bowman, 260 U.S. 94

(1922) (fraud against United States); Foreign Corrupt Practices

Act, 15 U.S.C. §§78dd (corrupt business practices). Moreover,

given that U.S. nationals working abroad are subject to these U.S.

legal obligations, it is only natural that Congress would have in-

tended that they enjoy certain basic U.S. legal protections.

Lauritzen, 346 U.S. at 587; Bulova, 344 U.S. at 285-86; Bow-

man, 260 U.S. at 102.

46 Compare McGee v. International Life Ins. Co., 355 U.S. 220,

223 (1957) (California has a “manifest interest in providing ef-

fective means of redress for its residents” against out-of-state de-

fendant) with Asahi Metal Indus. Co. v. Superior Court, 480 U.S.

102, 114 (1987) (“Because the plaintiff is not a California resi-

dent, California’s legitimate interests in the dispute have consid-

erably diminished” ).

47 See Lauritzen, 345 U.S. at 586 (assigning substantial weight

to “allegiance or domicile of the injured’); Restatement (Third)

Foreign Relations Law § 403(2)(b) (1987); Restatement (Second)

Conflict of Laws § 145 (1971).

See Restatement (Second) Conflict of Laws § 145, comment e

illustration 1; Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d

— ——

—— —

— —

Moreover, discrimination against U.S. citizens abroad

by U.S. employers will have significant effects at home.

More than two million U.S. citizens work outside of the

United States, and many times this number travel abroad

on business.“ Successful performance in overseas as-

signments is often essential to career development at

major firms. U.S. employees who are denied this path to

advancement because of employment discrimination will

be foreclosed, right here in the United States, from rising

to positions of responsibility.“ More fundamentally, vio-

lations of Title VII simply cannot be measured in the

way that we calculate the effects of unfair trade prac-

tices. Civil rights are not commodities. When a U.S.

company can tell a U.S. citizen abroad that he or she has

been fired just because he is black or she is a woman,

the moral imperative of Title VII is compromised. Tol-

erating such conduct conveys an insidious message to

other Americans in the company (here and abroad) and

to foreigners.

Of equal significance under this Court’s international

precedents is the importance that Congress attached to a

particular statutory protection.“ As we have already

743 (1963) (New York law applicable to accident in Canada in-

volving two New York citizens).

„The World Almanac and Book of Facts: 1990 555 (1989).

See n.25 supra.

% Moreover, when a U.S. citizen is fired from an overseas position

with a U.S. company he or she can ordinarily be expected to return

to this country—and its unemployment compensation system. For

the same reason, it is only natural that U.S. employees will seek

legal recourse against Title VII violations abroad after they return

to the United States. Maintaining an action abroad would require

dealing from afar with foreign counsel, foreign procedures, laws

and tribunals, and perhaps a foreign language—in a proceeding

against a fellow American.

5! Societe Internationale, 357 U.S. at 204-06; Societe Nationale,

482 U.S. at 540-41. Section 403(2)(c) of the Third Restatement

also makes clear that substantial weight is to be accorded to the

importance Congress has attached to particular law or public

policy.

shown, Title VII embodies a national commitment of the

most elemental and paramount importance. Moreover,

the norms of Title VII are not only American values:

they reflect the highest aspirations of the international

community.“ Discrimination on the basis of race or

religion in employment is prohibited by international

convention,™ and as respondents concede, it is proscribed

by the domestic laws of many countries.

Finally, this case does not involve any conflict be-

tween U.S. foreign laws or policies. As respondents con-

cede, Saudi law—like Title VII—forbids employment dis-

crimination.“ Moreover, because Title VII only applies

to discrimination against U.S. nationals, the likelihood of

conflict with the laws of other nations is significantly

diminished (precisely as Congress intended).

52 Section 403(2)(e) and (f) of the Third Restatement demon-

strate that the universal importance and acceptance of Title VII's

basic precepts weighs in favor of extraterritorial application of the

statute.

53 See, e.g., Convention on the Elimination of All Forms of Racial

Discrimination, G.A. Res. 2106, 20 U.N. GAOR Supp. (No. 14)

at 47, U.N. Doc. A/4354 (1965); Convention on the Elimination

of All Forms of Discrimination Against Women, art. 11(1)(b),

(c), G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 195, U.N.

Doc. A/34/46 (1979); Convention Concerning Discrimination in

Respect of Employment and Occupation, June 25, 1958, 362 U. N. T. S.

31.

54 Lauritzen, 345 U.S. at 575, 582 (emphasizing significance of

actual conflict between U.S. and foreign law); Bulova, 344 U.S. at

229. Respondents suggest that the existence of Saudi antidiscrimi-

nation laws itself creates a conflict with U.S. law. This confuses

the existence of a conflict in national laws with the existence of

concurrent jurisdiction by two nations over the same conduct.

Concurrent jurisdiction is relatively common in the international

legal system, by virtue of the increasingly normal practice of

extraterriorial regulation. See Restatement (Third) Foreign Rela-

tions Law § 403, comment d (1987) ; Laker Airways Ltd. v. Sabena,

Belgian World Airlines, 731 F.2d 909, 922 (D.C. Cir 1984).

55 [nited States v. Bowman, 260 U.S. at 102; Timberlane, 549

F.2d at 612 (“applying American laws to American citizens raises

fewer problems than application to foreigners” ).

There could, of course, be future cases in which a

direct conflict between Title VII and a foreign law might

exist. Foreign law might, for example, prohibit employ-

ing certain classes of persons in specific jobs, or it might

encourage or require U.S. companies to hire certain cate-

gories of persons (e.g., local nationals). If and when

cases involving legitimate conflicts arise, the Court will

have the opportunity to determine how they should be

resolved. We note here only that there are ample means

for deciding such conflicts in a far more measured and

precise way than simply declaring Title VII inapplicable

to U.S. citizens whenever they go abroad. Some foreign

laws might, in appropriate cases, provide the basis for

a “bona fide occupational qualification,” although the

Lawyers’ Committee believes that this defense should be

applied sparingly. As described above, this Court and

the lower courts have also properly considered the degree

of conflict between U.S. and foreign laws in determining

the extraterritorial reach of various federal statutes.

And in some cases, the Act of State doctrine or principles

of foreign sovereign compulsion might be relevant.“ But

resolution of these issues should await concrete, live dis-

putes where they may receive the “particularized analy-

sis“ that this Court has required in comparable matters.“

5 Compare Kern v. Dynalectron Corp., 577 F. Supp. 1196 (N. D.

Tex. 1983), aff'd, 746 F.2d 810 (5th Cir. 1984) (Saudi law pro-

hibited non-Muslims from entering the holy area of Mecca) with

Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 1981).

57 See pp. 22-25 supra.

Compare Societe International Pour Participations Industri-

elles et Commerciales S.A. v. Rogers, 357 U.S. 197 (1958) (U.S.

court may order discovery of materials located in Switzerland

under U.S. law notwithstanding the fact that Swiss law criminally

punishes disclosure of material) with Interamerican Refining Corp.

v. Texaco Maracaibo, Inc., 307 F. Supp. 1291 (D. Del. 1970) (U.S.

antitrust laws not applicable to conduct in Venezuela that was

compelled by Venezuelan law).

5° Societe Nationale Industrielle Aerospatiale v. U.S. District

Court, 482 U.S. 522, 543 (1987).

CONCLUSION

For these reasons, the judgment of the court below

should be reversed.

Respectfully submitted,

GARY B. BORN

Counsel of Record

W. HA Y CALLCOTT

MICHAEL C. SMALL

ELIZABETH KIINGI

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

ROBERT F. MULLEN

Co-Chairman

Davm S. TATEL

Co-Chairman

NORMAN REDLICH

Trustee

BARBARA R. ARNWINE

THOMAS J. HENDERSON

RICHARD T. SEYMOUR

Lawyers’ Committee for Civil

Rights Under Law

1400 Eye Street, N.W.

Washington, D.C. 20005

(202) 371-1212

Dated: November 15, 1990

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.