Amicus Curiae Brief — United States v. Burke

09) | FILED

No. 91-42 DEC 23 199)

| In The OFFICE OF THE CLERK

Supreme Court of the United States

@ctuber Term, 19591

UNITED STATES OF AMERICA,

Petitioner,

Vv.

THERESE A. BURKE, et ai.,

Respondents.

BRIEF OF WOMEN EMPLOYED, 9TO5,

NATIONAL ASSOCIATION OF WORKING WOMEN

AND CHICAGO LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW, INC. AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Mary L. Mixva MIcnae- B. Erp

STEPHEN G. SELIGER Katz, FrrEDMAN, SCHUR

122 South Michigan Avenue & EaG ie, CuTp.

Suite 1850 7 South Dearborn Street

Chicago, Illinois 60603 Suite 1700

(312) 427-4500 Chicago, Illinois 60603

R Les Camere (312) 263-6330

Hopkins & SuTTER Counsel of Record for the

Three First National Plaza Amici Curiae

Suite 4200

Chicago, Illinois 60602

(312) 558-4212

ARTHUR BENSON, III Mary K. O’MELVENY

BENSON & McKay COMMUNICATION WORKERS

1000 Walnut Street OF AMERICA

Suite 1125 501 3rd Street, N.W.

Kansas City, Missouri 64106 Suite 810

(816) 842-7603 Washington, D.C. 20001

Of Counsel (202) 434-1213

Of Counsel

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i

TABLE OF CONTENTS

Page

I snabnaeianeetenbianiitansdiavancinns li

EE NE I II ccccecsecnccnesusinberssteccsnssipsasoesersiee l

INTRODUCTION AND SUMMARY OF ARGUMENT .......... 2

iia oedema saaponanicbicmndegasnnets 4

l. Title VII Victims Have Suffered Personal

RMSE ERE TIE Se Re ADORE a eo 4

Il. There is No Basis for the Service's Distinction

Between “Physical” and “Nonphysical’”’ Injuries

Under §104(a)(2) Or Its Requirement that Victims

of Nonphysical Injuries Show that Their Recoveries

Constitute a “Return of Capital.” .............::ccccscceeeeeseeeeeees 6

III. The Service’s Interpretation of §104(a)(2) Unfairly

Discriminates Against Victims of Nonphysical

a eauiaicibowndtnsoosieeseone 14

IV. The Possibility that Plaintiffs’ Recovery Here Was

for “Work Performed” Provides No Basis for the Service's

Ne ET es BS Dn ee OO TE EOC DOP 19

URI Cahatitchaccamasebonciedvuedsnsiiivtinisiesevmerenenentensiotennssesncesorianes 22

il

TABLE OF AUTHORITIES

CASES:

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)............... 16

Anderson v. United States, 929 F.2d 648 (Fed. Cir. 1991)......... 12

Commissionerv.Glenshaw Glass Co.,

S48 U.S. 435 (IGG) .2.cccccerecesensccusvosassuussiie eee 10, il

Commissioner v. Jacobsen, 336 U.S. 28 (1949) ............................ 7

Downey v. Commissioner, 97 T.C. 150 (1991) ...................... 12,13

Doyle v. Mitchell Brothers Co., 247 U.S. 179 (1918) .................... 8

EEOC, et al. v. AT&T Technologies, Inc., No. 78 C 3951

and No. 82 C 1562 (BU DDTBB)..ccccoccscscsmneossesennn ee 18

Eisner v. Macomber, 252 U.S. 189 (1920) ......................-..--.... 10

Ford Motor Company v. EEOC, 458 U.S. 219 (1982) ................ 16

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ..................... 5

Hodge v. Commissioner, 64 T.C. 616 (1975)......... hieitaamomanat 13

Mallard v. U.S. District Court, 490 U.S. 296 (1989) ..................... 7

Metzger v. Commissioner, 88 T.C. 834 (1987), aff'd

without published opinion, 845 F.2d 1013 (3d Cir. 1988)....... 12

McShane v. Commissioner, T.C. Memo 1987-151, 53 T.C.M. |

BUD (1B 7) ..000<ccccccsesesscececeseseeneenemsesuinssiesinlinnnnnnnnnnn 19

Nierotko v. Social Security Board, 149 F.2d 273

(6th Cir. 1945), aff'd, 327 U.S. 358 (1946)........................ 11,12

Norfolk & W. Ry. v. Liepelt, 444 U.S. 490 (1980)................ 6, 7,15

Pistillo v. Commissioner, 912 F.2d 145

(6th Cir. 1990), rev’g T.C. Memo 1989-329 (1989).................... 13

Redfield v. Insurance Company of North America,

be fot Yo s) |e 12, 13, 21

Rickel v. Commissioner, 900 F.2d 655 (3d Cir. 1990), aff'gin

part and reversing in part, 92 T.C. 510 (1989) .................. 13, 21

Roemer vu. Commissioner, 716 F.2d 693 (9th Cir. 1983) ............. 15

il

CASES:

Rowan Companies, Inc. v. United States,

a snneccccecceveccccscesecees 12

Royster Co. v. United States, 479 F.2d 387 (4th Cir. 1973)........ 12

Sparrow v. Commissioner, No. 90-1151

Nee oo. ccsncsssserececortecsecsncencess 14

Social Security Board v. Nierotko, 327 U.S. 358 (1946) ............. 11

Starrels v. Commissioner, 304 F.2d 574 (9th Cir. 1962)............. 11

Thompson v. Commissioner, 866 F.2d 709

as ccesccceseuscrceceveceess 13, 21

Threlkeld v. Commissioner, 87 T.C. 1294 (1986),

9 12,13

United States v. Ron Pair Enterprises, Inc.,

Neen eee sesicersccesececscsecscorcncs

West Virginia University Hospitals, Inc. v. Casey,

I . ccccccncesccccccecscscccecscees 7

Wulf v. City of Wichita, 383 F.2d 842 (10th Cir. 1989).....0......... 13

.

iv

— ee noone , ‘ONGRESSIONAL MATERIALS

STATUTES, RULES AND REGULATIONS: CONGRESSIONAI

iv] i , Tj Tt _ » No. 767, 65th Con _ 2d Sess 9-10 (1915) J

Civil Rights Act of 1964, Title VII, 42 U.S.C. §2000e H.R. Rep No. 767, 60 ng

00 CGD conc csvcsscnssnesscsnesetoussacnsocerssoinnneinesondesccnssnamestnebenesnaneteent passim S Rep No. 617, 65th Cong., 3rd Sess. 29-90 | L915) :

Oe OB BG vnscics ccc nesdcccdnicccccsieencinsactchineiianaetons 1,5, 20 , _

’ MISCELLANEOUS:

int We ceeemneninnil 5 aS a -

: BLack’s LAW Dictionary 1335 (5th ed. 1979)

Civil Rights Act of 1991, 42 U.S.C. §1981A........ccccsceeseeseenees 16 on 1

=e ne setae oe ot a Solicitor’s Memorandum 1.54, - 71, 72, her: |

Civil Rights Act of 1866, 42 U.S.C. §1981 2.0... eeee 2, 15 revoked by Solicitor’s Opinion 132. 1-1 C_B. 92, 94 (1922) '

Fair Labor Standards Act: aS 9CR 994 17

Revenue Ruling 40-464, 1QR0-2 ¢ B. 2

BD UBB... FID occovcccecesceccsosceccsssccesccssescosncvsevesonsenseseessnesesees 6, 20

SU BC BIE voi discninsinsitssissncasorsncanstsnnisinnipainicumnsenneennacatition 5

Equal Pay Act of 1963, 29 U.S.C. §206(d).............:cceecetteeeeeee 21

Internal Revenue Cede:

Oe AEF, BD sicikstitaeesinesccscncsusincencensntetasincscesenncqnmeummmmnanacetl 10, 20

BUT BA, CI wisest civicnissscccencrecasecontsenseceneimiarenssamnnentis a

26 U.S.C. §104(a)(2)....... sideisewanieicdias abana passim

OT OO BI aainicsnecsininisnccnesevbcvodacnasoennbeanciavntnesnineoeaioninnanian 20)

BB U BBC. GIG ccccvecrccecccsccccsscsccsccossccescensvescascoescessesosesscesancssees 20

SI as: -icinithicscaatode a 17

DU Ba. GI veccccccscvesnseieesececcensnscccsscncsisecoscnsenseesenchensosnensen 17

26 U.S.C. §3102(b)

2 UBC. Baill ...:......::. hjunntunasiacatiansteiiaanaunueaadianenes 17

BEE BI ii iissianscncicceictenstanncencancramngiaanttsiniieannandannine 17

DE UBB. FOB wcnesserecesecsccsccssvsesesevesconcscccsenseenssonsccesoncssvoseeses 17

BU I van secession ens cncecacinesesveesnenccncessessipeonaserestonveediesnn 18

OTT, CI ivisssiinsivsiccccctinscsetesreincermnsvrccmmasenenncnesennanatsant 18

i ikea 5,14

Federal Rule of Civil Procedure |

Federal Rule of Civil Procedure 2 ...............:cccccceeeeseeeeeeeeeteeeeenenes 14

No. 91-42

In Che

Supreme Court of the United States

@ctober Cerm, 19591

UNITED STATES OF AMERICA,

Petitioner,

Vv.

THERESE A. BURKE, et ai.,

Respondents.

BRIEF OF WOMEN EMPLOYED, 9TO5,

NATIONAL ASSOCIATION OF WORKING WOMEN

AND CHICAGO LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW, INC. AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

Women Employed is a membership association of 2,000

women at all employment levels. It conducts innovative research,

education and advocacy programs designed to improve women’s

economic status. Since its founding in 1973, the organization

has achieved national recognition for its efforts to increase

employment opportunities for women by advocating improved

equal opportunity policies and greater access to vocational

education and job training systems, and by developing model

programs to enable disadvantaged women to become econom-

ically self-sufficient.

9to5, National Association of Working Women, is a voluntary

association with more than 15,000 members nationwide. It is

the preeminent membership organization for the nation’s 20

million office workers. Headquartered in Cleveland, Ohio, with

offices on the east and west coasts, chapters in twenty-six states,

and members in all states, it works toward the eradication of

2

per ner ee

en ee based on sex, race, age, color, religion, disability

onal origin, ancestry, or sexual preference. |

is poner wo dad Committee for Civil Rights Under

ei wyers ommittee ) was founded in 1969 by major

ago aw firms to involve private attorneys in the effort to

= the civil rights of all persons in the metropolitan area.

Hse: inception, the Lawyers’ Committee has enlisted the pro

- Me egal services of many hundreds of attorneys in addressing

re egal problems of members of minority groups, women, the

disadvantaged, and the poor in employment, housing educatic

the administration of justice, voting, and law enforcement

Of particular concern to the amici and their members is the

full recovery of compensation permitted by law for the victims

of discrimination. Amici have devoted substantial energy aes

resources to the protection of remedies available to persons wh

have suffered discrimination. Those efforts have included

£

fil £

Amici believe the decision of the court of appeals is correct

and submit this brief to assist ;

pee o assist the Court in resolution of the

INTRODUCTION AND SUMMARY OF ARGUMENT

, page 104(a)(2) of the Internal Revenue Code (the “Code”’)

26 U.S.C. §104(a)(2), excludes from the definition of gross income

“the amount of any damages received on account of personal]

injuries.” Title VII of the Civil Rights Act of 1964. 42 U.S.C

§2000e, et seg. (“Title VII”), makes it unlawful to discriminate

in respect to employment, on the basis of race, sex or national

a Application of §104(a)(2) to Title VII recoveries is, on its

a quite straightforward: The discrimination outlawed by Title

| invades a plaintiff's right to be free of such invidious

discrimination and is a “personal” injury. Title VII is an

antidiscrimination law, net a backpay provision: backpay is

simply an enforcement tool under that statutory acheme. Thus

' The parties’ letters of consent

: , pursuant to Rule 37 of th

this Court, have been filed with the Clerk. on

3

any damages received on account of an injury under Title VII

should be excluded by §104(a)(2).

To avoid this result, however, the Internal Revenue Service

(“the Service”) urges this Court to use the case before it to create,

within the §104(a)(2) tax exclusion, a tortured and untenable

distinction between “physical” and “nonphysical” injuries. As

to physical injuries, the Service is willing to give §104(a)(2) its

clear and obvious meaning of excluding “any damages”; however,

as to onphysical” injuries, the Service would graft onto

§104(a)(2) an additional “burden” on the taxpayer “of establishing

that the recovery is reimbursement for a prior loss of personal

capital and does not represent a gain or profit that instead adds

to her wealth.” (Citations omitted). Petitioner's Brief at 14-15.

The Service’s attempt to rewrite the Code must be rejected.

There is no support in §104(a)(2) for a two-tiered physical

nonphysical injury distinction, in which the victim of a non-

physical injury must shoulder such an additional burden to gain

the benefit of the §104(a)(2) exemption. Moreover, there is no basis

in $104(a)(2) for a limitation of this exclusion to what the Service

terms a “return” of personal “capital” The Service's approach

to §104(a)(2) should be rejected by this Court, as it has been by

the vast majority of courts of appeals and by the Tax Court.

The Service’s distinction also creates an unfair relative tax

disadvantage for victims of nonphysical, as opposed to physical,

injuries. Such different treatment for victims of nonphysical

personal injuries, including discrimination under Title VII,

furthers no Congressional purpose, has no basis in tax or civil

rights policy and complicates and discourages settlement of

discrimination cases — a result directly contrary to Congress’

intent in enacting Title VII.

Finally, amici urge this Court to decline the Service's

invitation to use this case, in which the Service argues plaintiffs

are receiving additional payment for “work already performed,”

Petitioner’s Brief at 18-20, to create a wholesale emasculation

of the §104(a)(2) tax exclusion. Amici agree with the court of

appeals in this case that plaintiffs were entitled to the benefit

of the §104(a)(2) exclusion. However, if this Court should reverse

the decision below, amici ask this Court to recognize that many

4

Title VII victims do not, in any sense, receive pay for work already

performed. Amici respectfully submit that any holding in favor

of Petitioner in this case should be carefully limited to differential

pay situations.

ARGUMENT

I. Title VII Victims Have Suffered Personal Injuries.

If this Court simply applies the language of the §104(a)(2)

exclusion to the case before it, rather than accepting the Service's

approach, application of §104(a)(2) to Title VII generally, as well

as this case, is quite straightforward.

Section 104(a)(2) of the Internal Revenue Code excludes from

gross income, with certain specific limitations that are not

relevant here,” the following:

the amount of any damages received (whether by suit

or agreement and whether as lump sums or as periodic

payments) on account of personal injuries or sickness.

26 U.S.C. §104(a)(2).

Title VII makes unlawful various forms of discrimination,

including:

to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions,

or privileges of employment, because of such individ-

ual’s race, color, religion, sex, or national origin.

42 U.S.C. §2000e-2.

The applicable Treasury Regulation provides that, under

§104(ap(2):

The term “damages received (whether by suit or

agreement)” means an amount received (other than

workmen’s compensation) through prosecution of a

- These limitations are for amounts attributable to medical expense

deductions and for punitive damages. 26 USC. §104(a).

5

legal suit or action based upon tort or tort type rights,

or through a settlement agreement entered into in lieu

of such prosecution.

26 C.F.R. §1.104-1(e).

Thus, the question before the Court is simply whether

discrimination, such as that outlawed by Title VII, is a “personal

injury” that is in the nature of a personal tort. A tort is “a legal

wrong committed upon the person or property independent of

contract” such as “a direct invasion of some legal right of the

individual.” BLack’s Law Dictionary 1335 (Sth ed. 1979).

A violation of Title VII is clearly a torttype wrong and illegal

discrimination is very much a “personal” injury. The duty not

to discriminate arises independently of any contractual relation-

ship the parties may have. Indeed, Title VII expressly extends

to situations in which the parties have no contractual relation-

ship, such as where an employer refuses to hire on the basis

of race, sex, religion or national origin. 42 U.S.C. §2000e-2.

This Court has recognized, even in reference to 42 U.S.C.

$1981, which refers specifically to the right to “make and enforce

contracts,” that such federal laws, outlawing racial discrimina-

tion, create a personal injury claim. This Court has described

discrimination as a “fundamental injury to the individual rights

of a person.” Goodman v. Lukens Steel Co., 482 U.S. 656, 662

(1987). In that case, the Court incorporated the statute of

limitations for personal injury claims as the most appropriate

statute for §1981 actions. As this Court noted in Goodman:

That §1981 has far-reaching economic consequences

does not change the conclusion, since such impact

flows from guaranteeing the personal right to engage

in economically significant activity free from racially

discriminatory interference.

482 U.S. at 661-662.

Title VII is, like §1981, an antidiscrimination statute. Title

VII is not, in any sense, a backpay statute. Backpay is one of

many potential remedies provided by Congress to promote Title

VII enforcement. See 42 U.S.C. §2000e-5(g). Title VII does not,

6

however, regulate the pay an employer provides. Cf. 29 U.S.C.

§§206 and 207 (fair Labor Standards Act requiring minimum

wage and overtime payments). What Title VII prohibits is

discrimination, which strikes at the very personhood of its targets,

and constitutes a very real and very “personal” injury for its

victims.

In short, the amount Title VII plaintiffs receive because they

suffer discrimination is undeniably money received “on account

of personal injuries.” Therefore, §104(a)(2) operates to exclude

this recovery from the victim’s income.

Il. There is No Basis for the Service’s Distinction

Between “Physical”’ and ‘“‘Nonphysical” Injuries

Under §104(a)(2) Or Its Requirement that Victims of

Nonphysical Injuries Show that Their Recoveries

Constitute a “Return of Capital.”

In order to avoid a straightforward application of §104(a)(2)

to Title VII, the Service asks this Court to adopt and apply the

following test to victims of “nonphysical” personal injuries:

For Section 104(a)(2) to be applicable to a recovery

involving a nonphysical injury to personal rights, the

taxpayer ... has the burden of establishing that the

recovery is reimbursement for a prior loss of personal

capital and does not represent gain or profit that

instead adds to her wealth.

Petitioner’s Brief at 14-15 (citations omitted).

The Service recognizes, however, as this Court has also

acknowledged, that, as to victims of physical injuries, lost income

recoveries are excluded from income by §104(a)(2). Petitioner's

Brief at 21-22, n.16. See Norfolk & W. Ry. v. Liepelt, 444 US.

490, 496-98 (1980). (Lost future income recovered in a wrongful

death case excluded by §104(a)(2).) There is no legal or logical

basis for treating victims of nonp/ysical injuries any differently

or for imposing upon them the additional burden of showing

that their recovery is a “return of capital.”

Nothing in the language of §104(a)(2) supports a two-tiered

approach for victims of physical and nonphysical personal

7

injuries. Indeed, the absence of any such distinction in §104(a)(2)

is underscored by the fact that, in 1989, Congress amended §104(a)

to provide that Section (a)(2) “not apply to any punitive damages

in connection with a case not involving physical injury or

physical sickness.” Pub.L. 101-239, §7641(a), 103 Stat. 2379

(1989)\(codified, as amended, at 26 U.S.C. §104(a)). The 1989

amendment, in adding a specific distinction relating to punitive

damages received for nonphysical personal injuries, makes clear

that there is not, and never has been, any general distinction

between “physical” and “nonphysical” personal injuries under

§104(a)(2).

Petitioner argues that exclusions from income “are to be

construed narrowly.” Petitioner’s Brief at 21. Strict construction

cannot, however, provide a basis for rewriting tax exemptions.

Exemptions to the Internal Revenue Code are “specifically stated

and should be construed with restraint in light of the same policy.”

Commissioner v. Jacobsen, 336 U.S. 28, 49 (1949). As with any

statute, interpretation “must begin with the statute’s language.”

Mallard v. U.S. District Court, 490 U.S. 296, 300 (1989). The plain

meaning of such language is generally conclusive. United States

v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242 (1989). See also

West Virginia University Hospitals, Inc. v. Casey, __ U.S.

111 S.Ct. 1138, 1148 (1991). In Norfoik & W. Ry. vu. Liepelt, 444

U.S. at 498, this Court viewed the language of §104(a)(2) to be

“perfectly clear” in excluding from taxation damages for lost

future income recovered in a wrongful death case. Nothing in

the statutory language suggests a different rule for lost income

caused by race or sex discrimination or other “nonphysical”

injuries.

Absent support in the statutory language, the Service

attempts to extract support for its “return of capital” theory from

the underlying legislative intent. There is no support for this

theory in the legislative history. Even if there were, the Service

offers no support for its argument that a damage recovery for

nonphysical injury must satisty a return of capital standard in

order to be described in $1()4:an2), while a damage recovery for

physical injury need not.

To begin with, the Service says | Petitioner's Brief at 10) that

the original purpose of the statutory exclusion for personal injury

8

damages was to “implement” the 1918 decision in Doyle v.

Mitchell Brothers Co., 247 U.S. 179 (1918). Yet the committee

reports contain no reference to this case, nor do they contain

a shred of other evidence to back up the assertion made in the

Service's brief. H.R. Rep No. 767, 65th Cong., 2d Sess. 9-10 ( 1918);

5S. Rep No. 617, 65th Cong., 3rd Sess. 29-30 (1918). The issue

in the Mitchell Brothers case was whether a lumber company’s

tax basis in its uncut timber was the timber’s original cost, or

its value as of the effective date of the tax act in question (the

Corporation Tax Act of 1909). There is no reason in the legislative

history, or in logic, for this Court to infer any connection

whatsoever between Mitchell Brothers and the statutory exclu-

sion of personal injury damages.

The 1918 committee reports do not say that, under the

preexisting statute, personal injury damages were clearly taxed,

or Clearly not taxed (in which case there would have been no

reason for the enactment). The reports say, without explanation,

that taxation under the existing statute was “doubtful,” and that

under the new statute such damages “shall not be included in

income.” H.R. Rep. No. 767 at 9-10, S. Rep No. 617 at 29-30.

There is no reference to the return of capital theory or any other

tax policy.

The absence of any reference to the return of capital theory

is not surprising. This theory offers no persuasive reason why

replacement of past or future earnings should be excluded from

income, whether the injury be physical or nonphysical. If the

capacity to labor is a capital asset that is merely exchanged

or converted to money, producing no net gain, then wages actually

earned would not be “income” either.

The return of capital theory also does not explain how the

amount of “capital” invested in the human person should be

measured in order to determine the tax consequences of such

items as damages for pain or impairment. If an accident victim

loses the use of an eye, why should one assume in every case

that there is invested capital (or tax “basis”) in the use of the

eye, and that the amount of basis is at least as much as the

damages recovered? Apparently, the “return of capital” theory

also assumes infinite basis, so that there can never be any taxable

gain when the eye, or some other human capacity, is converted

to money damages. Surely if a taxpayer sold his eye for medical

or other use, the Service would not acknowledge any capital or

basis in the eye, and would tax the full proceeds as income.

As many commentators have noted, the “return of capital”

theory simply does not provide the basis for the exclusion of

§104(ay2), and there is no persuasive evidence that Congress

would have thought so, or did in fact think so. The full Tax

Court, sitting en banc earlier this year, put it well:

We doubt whether the return of capital theory justifies

the exclusion from income of the full range of damages

found to be excludable under section 104(a)(2), partic-

ularly damages received in lieu of lost income. Perhaps,

even originally, a more satisfactory justification for

excluding a recovery for lost earnings as well as a

recovery for pain and suffering may have been based

on emotional and traditional, rather than logical,

factors. Whatever reasons initially motivated Congress

to enact an exclusion for damages received on account

of personal injuries or sickness, a contemporary inquiry

must by necessity restrict itself to the language of

section 104(a)(2), and administrative and judicial

interpretations of that language.

Downey v. Commissioner, 97 T.C. 150, 159 (1991)(citation to

scholarly articles omitted).

The Service asks the Court to infer not only that Congress

intended to adopt the return of capital theory but also that its

intent was even more specific — ie., that §104(a)(2) silently

intends to impose the return of capital theory, whatever that

means, on recoveries for nonphysical personal injuries but not

physical personal injuries. There is no evidence of any such intent,

and the Court should not infer it.

Absent support in the statutory language or legislative intent,

the Service resorts to its own history of interpreting §104(a)(2)

and its predecessors. The Service advises the Court that, in 1920,

the Service conjectured that the 1918 statute was “{p]roba-

bly ... merely declarative” of the human capital theory. Solic-

itor’s Memorandum 1384, 2 C.B. 71, 72; revoked by Solicitor’s

Opinion 132, I-1 C.B. 92, 94 (1922).

10

After 1922, the Service says that its position was based on

two beliefs that have since been shown to be wrong. First, the

Service says it believed the statutory exclusion for personal injury

damages embodied a general distinction between physical and

nonphysical injuries. Petitioner’s Brief at 11-12. As discussed

supra at 7, the 1989 amendment of §104(a)(2) would make no

sense if this general distinction existed. Moreover, even the

Service now grudgingly acknowledges that recoveries for both

physical and nonphysical personal injuries must be analyzed

— the specific §104(a)(2) exclusion. Petitioner’s Brief at 14,

n.13.

Second, the Service says it believed a separate statutory

exclusion for nonphysica! injuries was in large part unnecessary,

because the return of capital theory would make a tax on such

damages unconstitutional in any event. Petitioner’s Brief at 12-

13. However, the notion of a constitutional restriction that would

limit the kinds of income Congress can tax has also proven wrong.

See Commissioner v. Glenshaw Glass, 348 U.S. 426 (1955)

discussed infra. ;

| The Service in effect cites its own long record of erroneous

interpretation on this issue as a reason why this Court should

now rescue the Service from the clear language of §104(a)(2) and

the weight of lower court authority. The Service’s own long record

of error is no reason for the Court to adopt the Service’s strained

and unsupported interpretation of §104(a)(2).

Nor can the Service derive any support for its two-tiered

additional burden approach from the case law. Commissioner

v. Glenshaw Glass Co., supra, apparently forms the basis for

much of the Service’s argument. See Petitioner’s Brief at 7, 9,

13, 15, 18 & 21. That case, however, offers absolutely no support

for the Service's position. Glenshaw Glass held that the punitive

portion of treble damages received by a corporation was “income”

under the predecessor of $61 of the Internal Revenue Code. Some

taxpayers, based on dictum in Eisner v. Macomber, 252 US.

189, 207 (1920), had argued that the general concept of “income”

under the Code was limited to returns derived from the taxpayer's

labor or capital. This notion was rejected. The only statutory

exclusion from gross income that was considered in Glenshaw

Glass was the exclusion for gifts. 348 U.S. at 432. The Court

11

had no reason even to consider “any other exemption under the

Code.” Id. The case involved no personal injury, and the Court

neither rejected nor adopted any position of the Service regarding

compensation for personal injuries. 348 U.S. at 432, n.8.

The Service’s further reliance (Petitioner’s Brief at 14) on

Starrels v. Commissioner, 304 F.2d 574, 576 (9th Cir. 1962), in

support of its two-tiered additional burden approach to nonphys-

ical injuries under §104(a)(2), ignores the very real injury caused

to victims of nonphysical injuries, such as discrimination.

Starrels held that a payment to a taxpayer in return for an

agreement to allow a motion picture to be made regarding her

family was not excluded by §104(a)(2). The court rejected the

taxpayer's argument that §104(a)(2) excluded from taxation

payments made in return for the taxpayer selling her privacy

rights. That case makes perfect sense but it has no application

here. Title VII plaintiffs do not, in any sense, voluntarily agree

to be victims of discrimination, nor do they sell their nghts to

be free of discrimination, in return for an award of backpay.

They have been victims of an “actual invasion of personal rights,”

304 F.2d at 576, and thus, as the Starrels court itself would have

recognized, are entitled to the §104(a)(2) exclusion.

Social Security Board v. Nierotko, 327 U.S. 358 (1946), relied

on by Petitioner at 19, 26 and 28, is also of no help. That case

contains no consideration of the exclusion in §104(a)(2). Instead,

the Court considered whether a backpay award to an employee

under the National Labor Relations Act came within the

definition of “wages” under the Social Security Act. It appears

that counsel, and therefore the courts, simply assumed that the

backpay in issue was “income,” and focused only on whether

the backpay was also included in the narrower subcategory,

“wages.” Neither this Court nor the court of appeals ever

considered that the exclusions from the definition of “income”

under the Internal Revenue Code — such as the one in §104(a)(2)

— might also apply under the Social Security Act. See also

Nierotko v. Social Security Board, 149 F.2d 273 (6th Cir. 1945),

aff'd, 327 U.S. 358 (1946).

Nor can the Service garner current support for its two-tiered

additional burden analysis from the lower courts. The appellate

courts and the Tax Court, many of which once accepted the

Service’s approach, have now overwhelmingly rejected it. Those

courts have overwhelmingly rejected any distinction between

physical and nonphysical injuries or any additional inquiry into

the nature of the recovery in a nonphysical injury case. Instead,

those courts have concluded that, in reference to both physical

and nonphysical personal injuries:

|WJhether the damages received are paid on account

of ‘personal injuries’ should be the beginning and end

of the inquiry. To determine whether the injury

complained of is personal, we must look to the origin

and character of the claim and not to the consequences

that result from the injury.

Threlkeld v. Commissioner, 87 T.C. 1294, 1299 (1986), aff'd, 848

F.2d 81 (6th Cir. 1988). Accord Downey v. Commissioner, 97 T.C.

150 (1991)(age discriminations, Metzger v. Commissioner, 88 T.C.

834 (1987), aff'd without published opinion, 845 F.2d 1013 (3d

Cir. 1988)(discrimination based on sex and national

' Subsequently, however, the courts have recognized, and the Service

apparently agrees (see Petitioner’s Brief at 10, n.5) that the §104(a)(2)

exclusion also applies to Social Security taxes. As the courts have come

to realize, “wages” is a subset of “income” for tax purposes. Rowan

Companies, Inc. v. United States, 452 U.S. 247, 254 (1981); Royster Co.

u. United States, 479 F.2d 387, 390 (4th Cir. 1973). If an item is excluded

from “income” under §104(a)(2), then 1¢ is not taxable as “wages.”

Anderson v. United States, 929 F.2d 648, 654 (Fed. Cir. 1991); Redfield

vu. Insurance Company of North America, 940 F.2d 542, 548 (9th Cir.

1991).

13

origin);* Rickel v. Commissioner, 900 F.2d 655, 659 (3d Cir. 1990),

aff'g in part and reversing in part, 92 T.C. 510 (1989)(age); Prstillo

v. Commissioner, 912 F.2d 145, 148 (6th Cir. 1990), reu’g 5 ¢ ot

Memo 1989-329 (1989)(age); Redfield v. Insurance Company of

North America, 940 F.2d 542, 545 (9th Cir. 1991)(age); Wulf v.

City of Wichita, 883 F.2d 842, 872 & n.39 ( 10th Cir. 1989). But

cf. Thompson v. Commissioner, 866 F.2d 709, 712 (4th Cir. 1989)

‘ The Service cites (Petitioner's Brief at 25 & n.19) certain Tax Court

decisions, including Hodge v. Commissioner, 64 T.C. 616 (1975), as

supporting its position in this case. In fact, however, Threlkeld overruled

the analysis used in Hodge. In Metzger, the Tax Court specifically ruled,

following Threlkeld, that a violation of Title VII was a personal injury

unde §104(a)(2). Subsequently, some Tax Court decisions deviated from

the Threlkeld approach. See Rickel, 900 F.2d at 659, n.5 (analyzing the

Tax Court’s sometimes inconsistent approaches). However, the Tax

Court’s most recent opinion in Downey represented a reconsideration,

en banc, of the Tax Court’s approach. Downey reaffirms Threlkeld and

overrules, either expressly or by implication, any of the Tax Court's

decisions that looked to the consequences, rather than the nature, of

a nonphysical personal injury.

14

(discussed infra at 21).5

In sum, as the majority of appellate courts and the Tax Court

have come to recognize, the Service's distinction between physical

and nonphysical injuries, and imposition of an additional burden

on victims of nonphysical injuries, has no basis under §104(a)(2).

Amici ask this Court to reject once and for all the Service’s tortured

and unfounded approach to this exclusion.

III. The Service’s Interpretation of §104(a)(2) Unfairly

Discriminates Against Victims of Nonphysical Per-

sonal Injuries.

Of particular concern to amici is the fact that the Service’s

strained interpretation of §104(a)(2) discriminates against victims

of nonphysical personal injuries — such as plaintiffs who have

been victims of race and sex discrimination. The Service’s

interpretation of §104(a)(2) adds a new wrinkle to this already

complex area of litigation and operates to discourage and

» The Court of Appeals for the D.C. Circuit recently ruled, using a

different analysis, that Title VII plaintiffs should be deprived of the

§104(a)(2) exclusion. Sparrow v. Commissioner, No. 90-1151 (D.C.Cir.

Nov. 26, 1991). The court erroneously focused on Title VII’s backpay

remedy and concluded that Title VII backpay could not be considered

“damages” under §104(a)(2) because it was a remedy “in equity” and

not damages “at law.” This eccentric analysis would result in taxation

of backpay only in cases brought under Title VII and not other statutes,

thereby producing inconsistent results for victims of discrimination

suing under different statutes, or even for a single victim of discrim-

ination asserting a claim under more than one statute. Moreover, the

D.C. Circuit’s analysis ignores the Treasury Regulations, which define

a “personal injury” by reference to the type of right violated (“tort or

torttype right”), not the type of remedy. The Regulations also contradict

Sparrow's hypertechnical approach to the meaning of the term damages,

stating only that damages “means an amount received.” 26 C.F.R. §1.104-

l(c). Finally, the D.C. Circuit's law-equity distinction ignores the fact

that, at the time that §104(a)(2) was incorporated into the Internal

Revenue Code of 1954, the distinction between actions at law and suits

in equity in federal courts had long since been abolished by the 1938

Federal Rules of Civil Procedure. See Fed.R.Civ.P. 1 and 2 and Advisory

Committee Notes.

15

complicate settlement of these cases. There is no basis in either

tax policy or the civil rights laws for a two-tiered additional burden

approach to victims of nonphysical personal injuries.

To the extent that §104(a)(2) excludes income which otherwise

would be or should be subject to taxation, the Service’s policy

arguments must be addressed to Congress, which could act to

narrow the §104(a)(2) exemption. The policy argument on the

other side is, of course, that “the injured party, who has suffered

enough, should not be further burdened with the practical

difficulty of sorting out the taxable and nontaxable components

of a lump-sum award.” Roemer v. Commissioner, 716 F.2d 693,

696 (9th Cir. 1983). There is no basis, however, either in policy

or in the current statutory language, for the Service’s two-tiered

additional burden approach. Victims of Title VII and other

nonphysical injuries are not seeking special tax treatment, but

simply treatment in accordance with that afforded other victims

of personal injuries.

The Service argues that Title VII payments are based on

compensation that plaintiffs otherwise would have received and

that such compensation would have been taxable income.

Petitioner’s Brief at 19. This is equally true, however, in numerous

recoveries in physical injury cases in which part, or even all,

of a plaintiff's recovery is his lost past or future earnings. See,

e.g., Norfolk & W. Ry. v. Liepelt, supra, 444 U.S. at 496. A victim

who cannot work because he is black is no less barred from

employment than a victim who cannot work because he is

physically injured.

The Service also argues that its tax treatment is appropriate

because, under Title VII, the only monetary relief available is

backpay. Petitioner’s Brief at 17. Thus, the Service apparently

seeks to suggest that no “sorting out” of taxable and nontaxable

amounts would be necessary in Title VII cases. The Service's

facile approach, however, cannot mask the practical “sorting”

problems that are inherent in the two-tiered additional burden

approach.

In suits for injuries ranging from slander to defamation to

age discrimination to race discrimination under 42 U.S.C. §1981,

the Service’s approach would require that both state and federal

16

courts apportion damages into various taxable and nontaxable

components. Instead of simply excluding “any damages,” -as

$104(aX(2) now provides, the Service would exclude only those

damages that represent what the Service calls a “return of

capital.” At the very least, such an approach would necessitate

special interrogatories and jury instructions to guide the

apportionment of recoveries into taxable and nontaxable items.

Moreover, Title VII awards, too, would require sorting out.

Under the Civil Rights Act of 1991, Title VI] has been amended

to provide for compensatory, as well as punitive, damages,

including “emotional pain, suffering, inconvenience, mental

anguish, loss of enjoyment of life, and other nonpecuniary losses.”

Pub.L. §102-166, 102(a)(1) and (b)(3\(to be codified at 42 U.S.C.

$1981A). Even under the Service’s additional burden approach,

these kinds of compensatory damages would presumably be

excluded under §104(a)(2), since they compensate for what the

Service views as a prior loss of personal capital. See Petitioner’s

Brief at 12. Thus, apportionment, special interrogatories, and a

maze of varying tax consequences will also be a part of litigation

under Title VIL.

Of even greater practical concern to amici, however, than

the impact on litigation, is the impact of the Service’s two-tiered

additional burden approach on the potential for settlement of

discrimination suits. By distinguishing between physical and

nonphysica! injuries and then placing an additional burden on

taxpayers who have recovered for nonphysical injuries, the

Service’s approach adds both expense and complication to any

potential settlement for such injuries. This result is particularly

inappropriate under Title VII, in light of Congress’ express policy

of favoring voluntary compliance and settlement of such suits.

See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974):

Ford Motor Co. v. EEOC, 458 U.S. 219, 228 (1982).

The position of the Service has made settlement of Title VII

and other discrimination cases needlessly difficult and costly.

When a chance exists that all or a portion of a settlement will

be viewed by the Service as taxable income and “wages,” a

conservative defendant will take the position that income taxes

and employment taxes must be withheld as a condition

17

of the settlement.” Defendants also point out that their true cost

to settle includes the settlement amount plus those components

of employment taxes that are not withheld from wages but are

imposed directly on the employer as an excise tax.’ These and

many other tax issues can become huge factors in the settlement

process, driving up the cost of settlement and forcing the plaintiff

class to hire expensive tax professionals just to negotiate and

administer the tax aspect of settlement of the case.

Complex allocation issues based on taxes will continue to

plague the settlement process if this Court sustains the Service's

position in this case. For example, it can be argued that Title

VII recoveries represent not only “backpay” but also pre-

judgment interest accrued since the time the discriminatory

conduct occurred. While the Service says that backpay is subject

to both income taxes and FICA/FUTA taxes, interest is clearly

not subject to FICA/FUTA taxes, nor is it subject to income

tax withholding by the defendant.* Thus, under the Service's

current position, there are strong tax incentives to treat part of

the settlement as pre-judgment interest in order to save the cost

of FICA and FUTA taxes. Defendants worry, however, that the

Service, on audit, may not respect the allocation to interest and

may treat those dollars as if they were additional “wages,”

resulting in personal liability against the defendant for FICA,

FUTA taxes, for income taxes not withheld, and for

6 The Federal Insurance Contribution Act (FICA) imposes Social

Security and Medicare taxes on “wages.” See 26 U.S.C. $3101 ‘tax

imposed on individuals’ income if such income constitutes “wages ’);

26 U.S.C. § 3102 (collection of the employee's tax through withholding

by the employer). Employers also must deduct and withhold the

employee's income tax from “wages 26 U.S.C. § 3402.

’ See 26 U.S.C. $3111 (half of FIC A tax imposed directly on the employer),

26 U.S.C. § 3301, et seq. (unemployment insurance tax imposed on

employers by the Federal Unemployment Tax Act).

> See e.g., Revenue Ruling 30-364. |\e2 CB. 294 (back pay is “wages,”

interest is not).

18

substantial penalties.’ Negotiation of these matters is therefore

a difficult and costly struggle for the parties. Moreover, the recent

amendment of Title VII, discussed supra at 16, which expands

the relief available under Title VII, will further complicate

settlements, if the parties are required to engage in complex

damage allocations acceptable to the Service.

To cite just one example of the tax-based complexity that

plagues Title VII cases, about one-third of the lengthy settlement

agreement in a recently settled class action, plus a five-page “side

letter,” deals solely or largely with tax matters."” The parties

wrestled with such issues as (1) backpay vs. interest; (2) conditions

under which the defendant would be willing to rely on the interest

allocation and forego withholding and employment taxes; (3) the

process for seeking a binding determination from the Service

or an opinion of outside tax counsel prior to the distribution of

money to the class members; (4) allocation of attorneys’ fees and

costs as between backpay and interest; (5) how a windfall to

the defendant would be avoided where the employer's share of

employment taxes was paid out of the settlement shares of the

thousands of class members who were also current employees

of the defendant; and (6) many other tax-related issues. Tax issues

consumed countless hours of the parties’ time and $80,000 was

spent on tax counsel fees by the plaintiffs alone. o

‘An employer who pays “wages” and does withhold income taxes or

the employee's half of FICA taxes is personally liable for the amounts

that should have been withheld but were not. See 26 U.S.C. §§3102(b)

(FICA), 3403 (income tax withholding). The employer is also liable for

(1) FUTA tax, (2) the employer half of FICA tax, and (3) a 10 percent

penalty for failure to make a timely deposit of all required FICA’ FUTA

taxes and required income tax withholding. 26 U.S.C. §6656.

“ EEOC, et al. v. AT&T Technologies, Inc., No. 78 C 3951 and No.

82 C 1542 (N.D.I1L) is a federal sex discrimination class action on behalf

of approximately 13,000 women, alleging that the defendant carried

out discriminatory policies against women taking maternity leaves from

employment. The parties’ settlement negotiations related to taxation

issues began in earnest in February of 1991 and were not completed

until July. The settlement was approved by the court on December 9,

1991.

19

In short, the Service's position, if adopted by the Court, would

perpetuate drawn out and costly disputes in which plaintiffs

attempt to characterize amounts of money as being one thing,

in order to save the cost of taxes for both parties, and defendants,

fearing tax liability, insist on the conservative position that all

or much of the settlement consists of taxable “back wages,” from

which the Service is entitled to take its cut. Settlements are more

expensive and tax issues may operate to discourage the parties

from settlement, resulting in more protracted litigation. These

costly and complex impediments to settlement would be elim-

inated if this Court simply gives §104(a)(2) its plain and intended

meaning. Discrimination cases could then be settled just like any

other personal injury case, without costly disputes over tax

issues.'! Discrimination victims would receive the same tax

treatment as other tort victims.

IV. The Possibility that Plaintiffs’ Recovery Here Was

for “Work Performed” Provides No Basis for the

Service’s Position in this Case.

The Service repeatedly emphasizes that plaintiffs’ recovery

in this case was “for work already performed.” Petitioner’s Brief

at 18-20, 21. The Service likens this to a suit for wage deficiencies

or a wage differential. Jd. at 5 (citing Opinion of the District

Court, Pet. App. 32a). This characterization, however, even if

it accurately describes the remedy provided in the case

-: If backpay for discrimination is not taxable, then the only arguably

taxable items that could be recovered in such cases would be interest

and, after 1991, punitive damages. Simplicity is best achieved, however,

by holding that a// amounts received (except punitive damages) are not

taxable. Alternatively, the parties could treat a settlement as an amount

of damages without interest. See McShane v. Commissioner, T.C. Memo

1987-151, 53 T.C.M. 409 (1987). However, this may require sophisticated

consideration by the parties of the tax issues. Punitive damages are

not an issue because they are simply not agreed to by defendants as

part of settlements, even in cases where they could be awarded at trial.

20

before the Court,'2 cannot support the Service’s general approach

to Title VII and other nonphysical injury recoveries.

First, amici note that there is little basis for characterizing

invidious wage discrimination as anything other than a personal

injury. An employee who is paid less because she is female or

black has been discriminated against and the wrong committed

is to her person. See 42 U.S.C. §2000e-2(a). Compare 29 U.S.C.

§206 (minimum wage requirements). In addition, a wage differ-

ential often forms one component of a physical injury case, where,

for example, a physical injury requires a plaintiff to obtain a

lower paying job because he can no longer perform a job he

held prior to his injury. Presumably the Service would agree that

this recovery would be excluded by §104(a)(2). Thus, neither the

injury involved nor the remedy provided offers any basis for

depriving plaintiffs here of the §104(a)(2) exclusion.

Moreover, to describe any backpay in a discrimination case

as compensation “for services” is simply to mischaracterize the

nature of the Title VII rernedy. The backpay is not a liability

that the employer incurred in order to obtain services. The reason

for the payment of compensation is the employer’s illegal

discrimination, not the work the plaintiff performed.

More importantly, even if backpay could be viewed in some

sense, in some cases, as “compensation for services” under Code

§61(a)(1), this does not address the §104(a)(2) analysis. Items

included in the general concept of income, or even specifically

listed in §§61(a)(1) through (15), are included in “gross income”

only “{e]xcept as otherwise provided in this subtitle,” e.g., except

as otherwise provided in §104(a)(2).'° The fact that damages

‘: Amici’s understanding is that the settlement proceeds were not

awarded or distributed on a backpay basis, nor was any attempt made

to provide an appropriate differential to each plaintiff to provide her

with a nondiscriminatory rate ot pay. The specific nature of the award

in this case, however, is most propery addressed by the parties.

‘3 Other kinds of “compensativn tur services” are also excluded by “other

provisions” of subtitle A, such as health insurance (§106). Similarly,

other items specifically listed in $6l\a) are, nevertheless, in some

circumstances, excluded under anvther provision of subtitle A. E.g.,

discharge of indebtedness income under §$61(a)(12) and 108.

21

i

received may also be viewed as “compensation for services,”

provides absolutely no support for the government’s position.

However, even if a distinction is to be drawn in wage

differential cases under §104(a)(2), the Service’s proposed

interpretation of that Section must still be rejected. After

repeatedly stressing the fact that plaintiffs’ recovery here was

for work already performed, the Service argues that there is no

distinction between salary discrimination cases and cases

involving discriminatory firing or failure to hire. Petitioner’s Brief

at 26, n.20. The Service seeks a wholesale limitation on, and

two-tiered additional burden approach to, all nonphysical injuries

under §104(a)(2) and that approach must be rejected.

One court of appeals has drawn a distinction, under

§104(a)(2), for a salary discrimination case, but on very narrow

grounds. In Thompson v. Commissioner, 866 F.2d 705 (4th Cir.

1989), the Fourth Circuit held that a wage differential award

under the Equal Pay Act of 1963, 29 U.S.C. §206(d), and under

Title VII did not fall within the §104(a)(2) exclusion. The court

reasoned that plaintiff “received compensation for services

rendered whereas a tort plaintiff receives compensation for the

inability to earn an income due to the tortious action of a

defendant.” 866 F.2d at 712. Amici respectfully disagree with

the decision in Thompson for the reasons stated supra at 20-

21. As other courts have recognized, however, even under the

court’s analysis in Thompson, recovery of backpay by a termi-

nated employee or an employee who was not hired would still

be excluded by §104(a)(2). Redfield, supra, 940 F.2d at 546; Rickel,

supra, 900 F.2d at 664, n.16.

The government’s disingenuous description of the recovery

in this case — pay for “work performed” — should not be permitted

to color this Court’s analysis of the general nature of the “personal

injury” of illegal discrimination. Cases involving illegal pay

differences for “work performed” are a small fraction of the cases

to which the Court’s opinion in this case may be applied. Persons

who are discharged, not hired, or not promoted to higher positions

represent the bulk of discrimination victims. In the physical

injury case there is no doubt that damages representing wages

that should have been earned, but were not because of the injury,

are excludable from tax. Victims of illegal discrimination are

29

in precisely the same position and are entitled to the same

treatment.

By selecting this case as its vehicle for Supreme Court review,

and by its description of the recovery as pay for work performed,

the Service attempts to color the Court’s analysis and, if the

Court reverses, perhaps also to obtain a rationale for denying

the benefits of §104(a)(2) to the more typical discrimination

claimants who cannot be said, in any sense whatsoever, to be

receiving pay for work performed. Amici respectfully request this

Court to decline the Service’s invitation to use this case as a

vehicle for such an emasculation of the §104(a)(2) exclusion.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

Mary L. Mikva

STEPHEN G. SELIGER

122 South Michigan Avenue

Suite 1850

Chicago, Illinois 60603

(312) 427-4500

R. Lee Curistieé

Hopkins & SUTTER

Three First National Plaza

Suite 4200

Chicago, Illinois 60602

(312) 558-4212

ARTHUR BENSON, III

Benson & McKay

1000 Walnut Street

Suite 1125

Kansas City, Missouri 64106

(816) 842-7603

Of Counsel

Micuae B. Erp

Katz, FRIEDMAN, SCHUR

& EaG.e, CuTp.

7 South Dearborn Street

Suite 1700

Chicago, Dlinois 60603

(312) 263-6330

Counsel of Record for the

Amici Curiae

Mary K. O'MELVENY

COMMUNICATION WORKERS

or AMERICA

501 3rd Street, N.W.

Suite 810

Washington, D.C. 20001

(202) 434-1213

Of Counsel