Amicus Curiae Brief — EEOC v. Waffle House, Inc.

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Supreme Cowt, U.S.

FILBD

May 2f 2eol- | may 25 200

No. 99-1823 “ _—|_scOrFICEOP THRCLERE

IN THE

SUPREME COURT OF THE UNITED STATES

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Petitioner,

WAFFLE HOUSE, INC.,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL WHISTLEBLOWER CENTER

IN SUPPORT OF PETITIONER

Stephen M. Kohn

Counsel of Record

Michael D. Kohn

David K. Colapinto

National Whistleblower Legal

Defense and Education Fund

3238 P Street, N.W.

Washington, D.C. 20007

(202) 342-2177

Counsel for Amicus Curiae

National Whistleblower Center

TABLE OF CONTENTS

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TABLE OF AUTHORITIES ................ jasedes . hi

STATEMENT OF INTEREST OF AMICUS CURIAE

NATIONAL WHISTLEBLOWER CENTER ...... yensed

SUMMARY OF THE ARGUMENT ................. 3

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I. THE FEDERAL ARBITRATION ACT

DOES NOT DISPLACE THE EEOC’S

ADMINISTRATIVE AUTHORITY TO

DETERMINE THE APPROPRIATE

REMEDY NECESSARY TO EFFECTUATE

FEDERAL POLICY IN A

DISCRIMINATION CASE ............. +

Il. INTERFERING WITH THE EEOC’S

DISCRETION TO DETERMINE THE

APPROPRIATE REMEDY TO

EFFECTUATE FEDERAL POLICY

WOULD DEFEAT CONGRESS’ PURPOSE

IN PASSING THE FEDERAL

ARBITRATION ACT ........ jenviced OO

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TABLE OF AUTHORITIES

CASES

Cannon vy. University of Chicago,

441 US. G77 CEGTSD « cvivevvccesscunsaneenees 8

Circuit City Stores v. Saint Clair Adams,

__ US. __, 121 S.Ct. 1302 (2001) ....... 4,12, 13

EEOC v. Frank's Nursery & Crafts,

177 F.3d 448 (6™ Cir. 1999) .............0008. 12

EEOC v. Waffle House, Inc.,

193 F.3d 805 (4 Cir. 1999) ................ 5,12

FEC v. Akins,

524 US. 15 CISRED . 0 oc ccscsesesese eee 9

General Telephone Co. v. EEOC,

446 U.S. SIG CISEED . « cccccccsssansuaeneeue 6

Gilmer v. Interstate/Johnson Lane Corp.,

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Heckler v. Chaney,

470 US. Gai CEG) «+ cvcscvcccstanaveneennee 9

J 1 Case Co. v. NLRB,

321 US. SRB CHeee « sv 004008sineeneeee 6, 8,14

NLRB v. Jones & Laughlin Steel Corp,

301 UD. 8 CReR so cccccscevctesecedenensees 5

Occidental Life Ins. Co. v. EEOC,

432 UD. Fa Gee 6 ok tececduccotedeccss 5, 6,9

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Phelps Dodge Corp. v. NLRB,

Ee 6, 7,8, 11

STATUTES AND CONSTITUTION

United States Constitution,

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OTHER AUTHORITIES

Equal Employment Opportunity Act of 1972,

H. Rep. No. 92-238, reprinted 1972 U.S.C.C_A.N.

re rere 13

Legislative History of Titles VII and XI of Civil Rights Act

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STATEMENT OF INTEREST

OF AMICUS CURIAE

NATIONAL WHISTLEBLOWER CENTER

The National Whistleblower Center ("Center")' is a

nonprofit, tax-exempt, non-partisan, charitable, and educational

organization dedicated to the protection of employees who

report misconduct in the workplace or testify in proceedings to

enforce federal law. The Center supports employees who have

suffered illegal retaliation due to the disclosure of matters in

the public interest. The Center regularly assists employees who

have filed viable claims of retaliation under state and federal

anti-retaliation laws and participates in public education

programs throughout the country. The Center also operates,

pro bono, an Attorney Referral Service for whistleblowers

(with attorney members in 38 states) and maintains an Internet

web site at www. whistleblowers org.

Persons assisted by the Center have a direct interest in

the outcome of this case. Over twenty federal laws containing

prohibitions against employee retaliation also contain

administrative enforcement procedures either identical or

substantially similar to the provisions at issue in this case.

Affirming the decision of the Fourth Circuit could have the

direct impact of undermining a_ carefully-constructed

Congressional framework for protecting employee-

' Pursuant to Rule 37.6, no monetary

contributions were accepted for the preparation or submission

of this amicus curiae brief and that the Center's attorneys,

Stephen M. Kohn, Michael D. Kohn, David K. Colapinto,

authored this brief in its entirety. Counsel for all parties have

consented to the filing of an amicus curiae brief by the National

Whistleblower Center.

whistleblowers under numerous laws, in addition to the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 2000e-

3(a), specifically at issue here.

This case is of particular concern to the National

Whistleblower Center. Almost all federal whistleblower

protection laws rely upon an enforcement mechanism similar

to the one employed by Congress in the ADA. Whistleblowers

tend to be very unpopular plaintiffs, and are typically at a

disadvantage vis a vis employers. Accordingly, Congress has

enacted statutory schemes designed to carry out the federal

policy of protecting whistleblowers, and has empowered a

number of federal agencies to administer those laws and uphold

the federal policies at stake. Similar to the powers given the

Equal Employment Opportunity Commission ("EEOC") under

the ADA, these federal agencies are authorized to seek relief in

federal court for individual whistleblowers who serve the

public interest, including the enforcement of back pay and

reinstatement awards.

Any limitations on the power of these agencies to

properly protect whistleblowers would fundamentally

undermine the detailed Congressional framework which has

created a safety net for employees who blow the whistle on

public safety violations in a number of sensitive areas, such as

nuclear safety, airline safety, mine safety, surface transportation

safety, and environmental protection, among many others.

Since 1990 the Center has participated before this

Court as amicus curiae in a number of cases that directly

impact on the rights of employee whistleblowers, including

English v. General Electric, 496 U.S. 72 (1990), Haddle v.

Garrison, 525 U.S. 121 (1999), and Vermont Agency of

Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765 (2000).

SUMMARY OF THE ARGUMENT

Since 1935 Congress has entrusted the executive

branch of government with the discretion to enforce important

public polices that can come under fire in the workplace. Over

twenty statutes are based on this model, including the ADA.

Congress recognized the case-by-case “difficulties” of

enforcing these polices and consequently established agencies,

such as the EEOC, to ensure that important federal policy

would not be undermined by illegal employer action.

In granting executive agencies authority to vindicate

congressionally-sanctioned policy, Congress also empowered

these agencies, pursuant to Article | of the United States

Constitution, with the authority to determine the “relation of

remedy to policy,” an authority this Court has long recognized.

The lower court in this case failed to heed this Court’s warning

against “the danger of sliding unconsciously from the narrow

confines of law into the more spacious domain of policy,”

when it drastically limited the EEOC’s enforcement authority.

The EEOC has the discretion to determine the

relationship between remedy and policy in all cases in which it

seeks to enforce the ADA and the important policies that Act

stands for. In this case, the lower court abused its discretion

when it determined that the EEOC may only seek prospective

relief against employers who violate the ADA. The Fourth

Circuit’s holding directly undermines the well-established

discretion the EEOC has to determine which remedies further

the federal policies it is entrusted by Congress to enforce.

Moreover, in addition to the ADA, twenty other federal

laws are based on enforcement principles either identical or

similar to those in the ADA. Upholding the lower court ruling

in this matter could threaten the administrative and judicial

enforcement process in all of these laws. Such a result would

undermine the carefully constructed enforcement process

established by Congress over a sixty-year period.

Finally, the decision of the lower court is completely

inconsistent with the policies underlying the Federal

Arbitration Act and this Court’s decision in Circuit City Stores

v. Saint Clair Adams, _U.S. _, 121 S.Ct. 1302 (2001). As

this Court has recognized, one of the benefits of arbitration is

permitting both employees and employers to enjoy the benefits

of a fast, fair and inexpensive process to vindicate statutory

rights. Under the process endorsed by the lower court,

however, employees and employers could be forced to defend

employment decisions in two separate ongoing proceedings -

one before an arbitration panel and another before the EEOC.

Instead of being inexpensive and in accordance with federal

arbitration policy, the costs of such cases could easily double.

Additionally, the adjudication process in both cases may

be distorted due to the application of the res judicata and

collateral estoppel doctrines. Permitting multiple litigation of

the same or similar claims in two separate fora would

undermine all of the reasons why the res judicata and

collateral estoppel rules exist.

ARGUMENT

I, THE FEDERAL ARBITRATION ACT DOES

NOT DiSMLACE THE EEOC’S

ADMINESTRATIVE AUTHORITY TO

DETERMINE THE APPROPRIATE REMEDY

NECESSARY TO EFFECTUATE FEDERAL

POLICY IN A DISCRIMINATION CASE.

The lower court fundamentally misunderstood the

EEOC » aiscretuon te evaluate the remedy it would seek in a

discrimination case with the EEOC’s Congressionally-

—

mandated duty to effectuate the national policy of eliminating

the harms caused by illegal discrimination. Its failure to

properly weigh this Court’s longstanding rule that agencies,

such as the EEOC, have the primary duty to determine the

relationship between remedy and policy in eradicating illegal

employment practices mandates that the decision of the lower

court be reversed.

The lower court erred when it held that the “public

interest” in determining issues such as back pay and

reinstatement, were “minimal,” and somehow outside of the

EEOC’s “primary” mission of protecting “public” interests.

EEOC v. Waffle House, Inc., 193 F.3d 805, 812 (4th Cir. 1999).

This holding is at war with the fundamental premises

underlying most federal anti-discrimination laws. Since the

enactment of the National Labor Relations Act in 1935,

Congress has, on numerous instances, empowered Article |

administrative agencies with the authority of protecting the

public interest by policing employment practices which

interfered with interstate commerce or other federal rights for

which Congress, under the U.S. Constitution, had the authority

to regulate. See NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1, 48-49 (1937).

In upholding administrative agencies’ authority to

police employment practices made illegal by Congress, this

Court has also recognized that part of that enforcement

authority includes the power of agencies to seek judicial

enforcement of orders of “reinstatement” or “payment for lost

time.” /d.? This Court has also firmly recognized that neither

2 Title VII of the Civil Rights Act of 1964, as

amended, established the EEOC to implement “an integrated,

multistep enforcement procedure culminating in the EEOC’s

authority to bring a civil action in federal court.” Occidental

(continued...)

an employee nor an employer may interfere with this power

through the execution of a private contract. J./ Case Co. v.

NLRB, 321 U.S. 332, 337 (1944) (“Individual contracts, no

matter what the circumstances that justify their execution or

what their terms, may not be availed of to defeat or delay the

procedures prescribed by the National Labor Relations Act”).

The lower court’s holding that an award of back pay to

an employee somehow had only a “minimal” impact on the

broader public interest cannot be sustained as a matter of law.

Congress vested the EEOC with the discretion to determine the

relationship between the remedy sought in an action filed by the

Commission, and the Commission’s obligation to advance the

broader public interest. Again, sixty years ago this Court

recognized the fundamental relationship between a “remedy”

and the effectuation ofa policy. Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941). In Phelps Dodge, this Court held that an

administrative agency’s “power to neutralize discrimination”

? (...continued)

Life Insurance Company v. EEOC, 432 U.S. 355, 359 (1977).

When Congress created the EEOC in 1964, it “established an

administrative procedure” for resolving discrimination claims.

In 1972 the EEOC was granted “additional enforcement power”

to seek enforcement of discrimination laws in federal court.

Despite its ability to file claims in federal court, “the EEOC

does not function simply as a vehicle for conducting litigation

on behalf of private parties; it is a federal administrative agency

charged with the responsibility of investigating claims of

employment discrimination ....” J/d., pp. 367-68. This Court

has noted the difference between suits which merely represent

a private interest and those filed by administrative agencies in

order to protect a public interest. General Telephone Company

v. EEOC, 446 U.S. 318, 333 (1980) (noting “possible

differences between the public and private interests” involved

in Title VII litigation).

was not limited in cases in which an employee may already

have obtained “compensatory” relief. The agency’s power was

not “limited” to remedying private harms, but extended to

effectuating “public policy. Jd, pp. 192-93.

In the context of eradicating harmful employment

practices prohibited by law, Congress empowered agencies to

determine the “relation” between the necessary “remedy” in a

particular case, to the “policy” for which the agency was

established to enforce. Phelps Dodge, 313.ULS. at 194.

Although decided sixty years ago in the context of

evaluating the powers of the National Labor Relations Board,

the analysis of this Court in Phelps Dodge is equally applicable

to the issued raised by the lower court in order to determine the

scope of discretionary authority vested in the EEOC to

determine what remedy to seek for an employee when weighing

its duty to protect the public interest as a whole. This Court left

no doubt that Article I agencies, such as the NLRB or EEOC,

have the discretion to make this threshold determination, and

that courts must be extremely limited in second-guessing that

judgment, as a matter of law:

Congress met these difficulties [ie., in

determining the proper scope of a remedy] by

leaving the adaptation of means to end to the

empiric process of administration. The exercise

of the process was committed to the Board,

subject to limited judicial review. Because the

relation of remedy to policy is peculiarly a

matter for administrative competence, the

courts must not enter the allowable area of the

Board’s discretion and must guard against the

danger of sliding unconsciously from the

narrow confines of law into the more spacious

domain of policy. On the other hand, the power

with which Congress invested the Board

implies responsibility — the responsibility of

exercising its judgment in employing the

statutory powers.

Phelps Dodge, 313 U.S. at 194.

This holding is equally true in the context of the

EEOC’s exercise of its discretion in cases arising under the

ADA. First, determining what relief is necessary to effectuate

Congress’ policy goals in any particular case is a “difficult”

issue, and one which Congress left with the EEOC, if and when

the EEOC chooses to exercise its discretion to file a claim. Just

as with the NLRB, Congress clearly vested considerable

discretion with the EEOC in formulating its demand for relief

in any case filed in federal court.

Second, because of the relationship between remedy

and policy, courts must be very wary of interfering with the

EEOC’s discretion in this area. Of course, a court can refuse to

award any damage requested by the EEOC if such an award is

not permissible under the act or is not supported by the

evidence. However, removing the EEOC’s authority to even

request such relief in a complaint, or attempt to create a record

that would justify such relief, unquestionably oversteps the

bounds of judicial restraint, and upsets the regulatory and

’ Congress is “presumed to know the law.”

Cannon v. University of Chicago, 441 U.S. 677, 696-99, 99

S.Ct. 1946 (1979). When Congress passed the Civil Rights Act

of 1964 and the amendments thereto in 1972, it knew of

agencies’ authority to determine the appropriate remedy to

effectuate federal policy, as set forth in Phelps Dodge Corp. v.

NLRB, 313 U.S. 177 (1941)(recognizing agency discretion in

formulating a proposed remedy); J.J. Case Co. v. NLRB, 321

U.S. 332, 337 (1944)(recognizing that private contracts must

yield to a congressionally-sanctioned enforcement regime).

enforcement scheme developed by Congress.‘ This Court’s —

warning to the lower courts “against the danger of sliding

unconsciously” into the “spacious domain of policy” in which

Congress granted the NLRB is equally applicable to the EEOC.

It is well established that Congress empowered the EEOC with

a “spacious domain” to enforce the ADA and thereby effectuate

the federal policies Congress intended when it enacted the

ADA into law.

Third, Congress’ grant of “power” to the EEOC to

investigate and file claims against employers concerning illegal

employment practices also “implies responsibility.” Clearly,

the EEOC does not file such claims in every case. Even when

claims are filed, the EEOC must act with proper

“responsibility” in determining what relief to seek, and what

forum should be used to obtain that relief.

Although this case arose in the context of the ADA,

since 1935 Congress has used the NLRA as a model for passing

¢ It is well-settled that "agency enforcement

decisions" are generally "committed to agency discretion."

FEC v. Akins, 524 U.S. 11, 26, 118 S.Ct. 1777 (1998), citing

Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1469 (1985).

Consequently, there is no authority which would permit a

district court to micro-manage or second-guess the types of

relief the EEOC may request when engaging in its “multi-step

enforcement procedure.” Occidental Life Ins. Co. v. EEOC,

432 U.S. 355, 359 (1997). In fact, permitting such micro-

management at the complaint and discovery phase of a legal

action could significantly add to the complexity and expense

incurred by all parties engaged in the EEOC enforcement

process.

numerous laws which effectuate other national labor polices.’

Any decision by this Court limiting the discretion of the EEOC

to determine the proper “remedy” in an employment case

would have an extremely detrimental impact on numerous

laws in addition to the civil rights statutes directly implicated

in the Fourth Circuit’s holding. See, eg, Aviation

Whistleblower Protection Provision, 49 U.S.C. § 42121(c)(5)

(Secretary of Labor discretion to file civil action to enforce law

and seek compensatory damages); Clean Air Act Employee

Protection, 42 U.S.C. § 7622(d) (Secretary of Labor discretion

to file civil action to enforce law and seek compensatory and

exemplary damages); Employee Polygraph Protection Act, 29

U.S.C. § 2005(b) (Secretary of Labor discretion to file civil suit

c* taining lost wages and benefits for employees); Fair Labor

Standards Act, 29 U.S.C. §§ 215(a)(3) and 216 (Secretary of

Labor discretion to file civil action to enforce law); Migrant

and Seasonal Agricultural Workers Protection Act, 29 U.S.C.

§ 1855 (Secretary of Labor duty to file civil action to enforce

law); Mine Health and Safety Act, 30 U.S.C. § 818 (Secretary

of labor discretion to file civil action to enforce law);

Occupational Health and Safety Act nonretaliation provision,

29 U.S.C. § 660(c) (Secretary of Labor discretion to file civil

action to enforce law); Safe Containers for International Cargo

Act Employee Protection Provision, 46 U.S.C. § 1506

: See Legislative History of Titles VII and XI of

Civil Rights Act of 1964 at p. 3077 (GPO 1968), reprinting

various legal memoranda placed into the Congressional Record

by Sen. Clark during the 1964 debates concerning the Civil

Rights Act. For example, one memorandum placed on the

record by Sen. Clark noted that “starting with the National

Labor Relations Act,” Congress had “enacted comprehensive

legislation regulation labor and management practices.” The

memorandum also noted that “prior statutes,” which included

the NLRA, were “directly analogous to the provisions of title

VII.”

(Secretary of Labor discretion to file civil action to enforce

law); Safe Drinking Water Act Employee Protection Provision,

42 U.S.C. § 300j-9i(4); Surface Transportation Act Employee

Protection Provision, 49 U.S.C. § 31105(d) (Secretary of Labor

duty to file civil action to enforce law); Toxic Substances

Control Act Employee Protection Provision, 15 U.S.C. §

2622(d) (Secretary of Labor duty to file civil action to enforce

law).

Clearly, Congress was free to rely on this Court’s

holding in Phelps Dodge in empowering administrative

agencies to protect employees under other laws, and entrusting

those agencies to properly determine the relationship between

“remedy” and “policy” in enforcing those other laws. Should

this Court uphold the lower court’s ruling, the power of these

agencies to administer and enforce the vital national policies

effectuated under numerous laws would be either directly

undermined or, at a minimum, called into question.

The EEOC has the discretion to determine the

relationship between remedy and policy in all cases in which it,

in its discretion, seeks to vindicate the policies of the ADA.

The lower court erred when it overturned the EEOC’s exercise

of that discretion.

Il. INTERFERING WITH THE EEOC’S

DISCRETION TO DETERMINE THE

APPROPRIATE REMEDY TO EFFECTUATE

FEDERAL POLICY WOULD DEFEAT

CONGRESS’ PURPOSE IN PASSING THE

FEDERAL ARBITRATION ACT.

In Gilmer, this Court acknowledged that the EEOC

retained certain powers to pursue claims under anti-

discrimination laws, despite the existence of an arbitration

agreement executed by two private parties. Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). This

holding is fully consistent with the legislative history of the

Civil Rights Act of 1964, as amended. EEOC v. Frank's

Nursery & Crafts, 177 F.3d 448, 456-59 (6th Cir. 1999).

In this case, however, the lower court justified limiting

the EEOC’s right to request various remedies for victims of

discrimination. The lower court held that a dual procedure for

enforcing the national policy against illegal employment

discrimination must be utilized. On the one hand, the EEOC

could adjudicate broad class actions and seek “injunctive” relief

for victims of discrimination in federal court, while on the other

hand, issues of individual monetary relief arising from the same

incident had to be resolved through arbitration. EEOC v.

Waffle House, Inc., 193 F.3d 805, (4th Cir. 1999).

This holding is illogical and completely inconsistent

with the Congressional purposes behind the Federal Arbitration

Act and this Court’s holding in Circuit City Stores v. Saint

Clair Adams, _ U.S. _, 121 S.Ct. 1302 (2001) . If the

holding of the lower court were followed, employees,

employers and the government would, in many cases, have to

bear the burdens and risks of dual adjudications. Circuit City,

__ U.S. __, 121 S.Ct. 1313 (warning against judicial holdings

which could result in the “bifurcation of proceedings” subject

to arbitration, thereby increasing both litigation costs and the

burden on the courts).

For example, an instance of discrimination could easily

give rise to both an individual claim for relief (which, under the

Fourth Circuit’s holding, must be handled in an arbitral forum)

and a claim for broad injunctive relief, which the EEOC would

file in a federal court. Because many (if not all) of the facts

relevant to one proceeding, would also be relevant to the other,

the employer could find itself having to pay double-attorney

fees. Circuit City, _U.S.at__, 121 S.Ct. at 1313 (permitting

parties to “avoid the costs of litigation” is a major “benefit” of

arbitration). The employer would be forced to defend the same

alleged discriminatory action twice.

Moreover, because of the potential impact of res

judicata and collateral estoppel, the EEOC may find itself

forced to intervene in the arbitration proceeding, and the

employee may be forced to intervene in the EEOC proceeding.

Witnesses would have to testify twice, different forums could

issue contradictory decisions on every issue, ranging from

credibility determinations to controlling factual and a plethora

of legal questions may be litigated concerning which requested

remedy must be arbitrated or litigated. See, e.g. Circuit City

Stores, supra (warning against judicia: holdings which may

create “complexity and uncertainty” and cast doubt on the

“efficiency of alternative dispute resolution procedures”).

To make matters even worse, Congress recognized that

understanding employment discrimination was becoming

“increasingly complex,” especially to an “untrained observer.”

Equal Employment Opportunity Act of 1972, H. Rep. No. 92-

238, reprinted 1972 U.S.C.C.A.N. 2137, 2144. To ensure that

the “national policy of equal employment opportunity” could

be enforced “in a meaningful way,” Congress enhanced the

enforcement authority of the EEOC in 1972. 1972

U.S.C.C.AN. at 2138. Establishing a precedent which would

permit dual litigation in multiple fora would undermine the

national policy to promote equal employment opportunity by

artificially adding complexity and uncertainty when none need

exist. Circuit City Stores strongly counsels against interpreting

the FAA in such a manner.

In short, the very reason for requiring arbitration in

employment cases (i.e. lowing costs, efficient resolution,

administrative convenience, etc.) and for applying the doctrines

of res judicata and collateral estoppel in any case, would be

fundamentally undermined by upholding an enforcement

regime that not only permitted and encouraged the unnecessary

bifurcation of proceedings, but essentially required such

duplication in all cases in which the EEOC determined that

major i an nentiionstt ‘sted

A claim of discrimination - like any other law suit -

must be resolved in one proceeding. In the case below, the

employee and the employer both agreed to an arbitration forum.

However, the EEOC did not agree to that forum. In such a

circumstance, the interests of the private parties must bend to

the greater public interest, as represented by the EEOC. J./

Case Co. v. NLRB, 321 U.S. 332, 337 (1944) (“Wherever

private contracts conflict with its functions, they obviously

must yield or the Act would be reduced to a futility”).

Of course, the EEOC may exercise its discretion in

choosing the forum in which a claim should be heard, and may

very well prefer in any given case to have a claim resolved

through arbitration. This decision rests in the sound discretion

of the EEOC, and private parties may not invalidate the

exercise of that discretion through private contract.

CONCLUSION

For the foregoing reasons, this Court should reverse the

decision of the Fourth Circuit Court of Appeals.

May 25, 2001