Amicus Curiae Brief — Jones v. RR Donnelley & Sons Co.

FILED

SEP 8 2003

IN THE

Supreme Court of the Anited States

EDITH JONES, ef al..

Petitioners,

Vv.

R.R. DONNELLEY*& SONS COMPANY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE EQUAL EMPLOYMENT

ADVISORY COUNCIL AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

ANN ELIZABETH REESMAN

Counsel of Record

MCGUINESS NORRIS &

WILLIAMS, LLP

1015 Fifteenth St., N.W.

Suite 1200

Washington, D.C. 20005

September 2003 (202) 789-8600

Se

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ..........ssesscsssssssssssssssesseeenes

INTEREST OF THE AMICUS CURIAE ...cc.csesssessseesse

STATEMENT OF THE CASE .......csccssesssesssessscesseenseen

SUMMARY OF ARGUMENT........cccsscsssssssessssssseesssen

”” ERTS ccnccsssncnscsseremsnessnsconsesemeseneneesensmnereennens

I.

THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT ALL SECTION 1981

ACTIONS “ARISE UNDER” AN ACT OF

CONGRESS THAT PREDATES THE

EFFECTIVE DATE OF 28 U.S.C. § 1658

AND THEREFORE ARE NOT SUBJECT TO

THE FOUR-YEAR “CATCH-ALL” FED-

ERAL STATUTE OF LIMITATIONS .............

A. Section 1658’s Four-Year Statute of

Limitations Applies Only to Actions “Aris-

ing Under” Acts of Congress Enacted

After December 1, 199O ....ccrcccssccsrccrsescecseess

B. The Court of Appeals Correctly Recog-

nized That All Section 1981 Suits Alleging

Employment Discrimination Are Actions

“Arising Under” the Ban on _ Discrim-

ination in the Making and Enforcement of

Contracts, Which Congress Enacted Over a

Century Before the Effective Date of

TD CEI crc enntenncenennerercssnenenesmneneen

(i)

il

TABLE OF CONTENTS—Continued

Il. THE HISTORY AND PURPOSES OF 28

U.S.C. § 1658 AND THE CIVIL RIGHTS

ACT OF 1991 CONFIRM THAT CON-

GRESS DID NOT INTEND THE NEW,

FOUR-YEAR STATUTE OF LIMITATIONS

TO APPLY TO EMPLOYMENT ODIS-

CRIMINATION CLAIMS UNDER SEC-

TION 1981 ........cccscccsrssocscccccssscesseesoeseeesssseesessoees

Ill. IN THE ABSENCE OF A CLEAR DIREC-

TION FROM CONGRESS, THIS COURT

SHOULD NOT ADOPT AN _#sINTER-

PRETATION OF SECTION 1658 THAT

WOULD VASTLY INCREASE LITIGA-

TION OF STALE CLAIMS OF EMPLOY-

MENT DISCRIMINATION. ........cccccceeeeeeeenenens

CONCLUSION ..........:cccccsescssrseseesssereeeeesseeeeessnsensnseeeses

Page

iil

TABLE OF AUTHORITIES

FEDERAL CASES Page

Adams v. R.R. Donnelley & Sons Co., 149 F.

Supp.2d 459 (N.D. Ill. 2001), rev'd sub nom.

Jones v. R.R. Donnelley & Sons Co., 305 F.3d

717 (7th Cir. 2002), cert. granted, 123 S. Ct.

EE SEES Oe 3,4

Anthony v. BTR Automotive Sealing Systems,

Inc., 339 F.3d 506 (6th Cir. 2003)..................5, 10, 12

Delaware State College v. Ricks, 449 U.S. 250

EL 17

Goodman v. Lukens Steel Co., 482 U.S. 656

EEE 2,9, 10

Harris vy. Allstate Insurance Co., 300 F.3d 1183

I ees 5

Johnson v. Railway Express Agency, Inc., 421

EN 9

Jones v. Alcoa, Inc., 339 F.3d 359 (Sth Cir.

EE 17

Jones v. R.R. Donnelley & Sons Co., 305 F.3d

_ 717 (7th Cir. 2002), cert. granted, 123 S. Ct.

Dic tcrcertncccemcnanersensesssenesnecees passim

Landgraf v. USI Film Products, 511 U.S. 244

ST iiisitiadietieemensintenentncenesceneecensecsesesenssosecoosece 2

Lorance v. AT&T Technologies, Inc., 490 U.S.

EE 14

Madison vy. IBP, Inc., 257 F.3d 780 (8th Cir.

2001), vacated on other grounds, 536 U.S. 919

SSE AT 4,5

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ..... 17

Patterson v. McLean Credit Union, 491 U.S. 164

IIIT Adiidiiaitdetiaiehdeeeteeetcencetnecesnessennsessesnscsecscssseeseees passim

iv y

TABLE OF AUTHORITIES—Continued ; TABLE OF AUTHORITIES—Continued

Page Page

Zubi v. AT&T Corp., 219 F.3d 220 (3d Cir. Mo. Rev. Stat. § 516.120 .ccccsssssssseessssseessseeense 19

ye 4,13 | Wyo. Stat. Ann. § 1-3- 105.0000... cccccccssccessesseeees 19

FEDERAL STATUTES | FEDERAL REGULATIONS

Age Discrimination in Employment Act, 29 I i 16

TER Tf” ee 15 ' ners Ue CHIEU Oiciicinieiaheeiniinenanaibtaacainiinii 18

EE Es sitnisinesieaiiaaaiiasiida 16 LEGISLATIVE HISTORY

Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 ; H.R. Rep. No. 101-734 (1990) ”

(Act Of Age. 9, 1866) ..2.2.2cecccscscsescscscsccscscsssseseeee 9 -_ a. a ia oe monescnsnanms

Civil Rights Act of 1870, ch. 114, § 16, 16 Stat. gt aa an (1991), reprinted in ¥

140 (Act of May 31, 1870) .........cccsecseeceeseenennees 9 | H.R. Rep. No. 102-40(II) (1991), reprimed in

Rev. Stat. § 1977 PPTTTTTTTITITiiititii titi ttt 7] 199] U.S.C.C.A.N. 694 SOR Lei EN 14

Civil Rights Act of 1991, Pub. L. No. 102-166,

GS Beet. BGT 1 .cccoccccccscscscccescessscssssessssessecesssesssess passim OTHER AUTHORITIES

OE, CII as iinitccinstienisiniiinsinn 15 State Statutes of Limitations as Affecting Fed-

A ere 5,9, 10 eral Civil Rights Actions Under 42 U.S.C.A.

PT ea > SS ee 14 | § 1981, 29 A.L.R. Fed. 710 (1976 & Supp.

42 U.S.C. § 2000€-16(C) sessecsesssseeevssssseeeensnsee 15 SEE OS Nn TMU NNO 19

Title I of the Americans with Disabilities Act, 42 f

REE 16

Title VII of the Civil Rights Act of 1964, 42

UB.C. BE FREES 60 BOG. ccccccesesecessesesssssssscsssese 14, 16, 17

42 U.S.C. § 200De-5(E)(1) ccecseecsessnecsessnecsneeneennes 16

SURE, Bimini 16

yyy passim

SRI BIO... cisectinsianinininiiiiiiain 8

42 UBC. © IDB ccccccccccccccsccccecscesccsssceseessssensssssesess passim

COE 0 I cncsccenictnennianiiiaiieniiin 5,9, 10

STATE STATUTES |

: ;

OO Oa 19 '

Me. Rev. Stat. tit. 14, § 752 ......cscsseseserensnseeensnenens 19 |

|

ee ae

2 TT a

IN THE

Supreme Court of the Anited States

No. 02-1205

EDITH JONES, et ai..,

Petitioners,

Vv.

R.R. DONNELLEY & SONS COMPANY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE EQUAL EMPLOYMENT

ADVISORY COUNCIL AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

The Equal Employment Advisory Council respectfully

submits this brief amicus curiae with the consent of the

parties.' The brief urges affirmance of the Seventh Circuit's

decision below, and thus supports the position of the

respondent, R.R. Donnelley & Sons Company.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC) is a

nationwide association of employers organized in 1976 to

' Counsel for amicus curiae authored this brief in its entirety. No

person or entity, other than the amicus curiae, its members, or its counsel,

made a monetary contribution to the preparation or submission of the

brief. A letter of consent from counsel for each party has been filed with

the Clerk of the Court.

2

promote sound policies and programs to end employment

discrimination. Its membership now comprises more than

330 of this nation’s largest private sector companies,

collectively employing over 20 million people throughout the

United States.

EEAC members are firmly committed to the principles

of nondiscrimination and equal employment opportunity.

Nevertheless, as large employers, they are subject to suits

under numerous antidiscrimination laws, including 42 U.S.C.

§ 1981. As potential defendants in such actions, EEAC

members have a direct interest in the issue presented to the

Court in this case—i.e., whether, as the Seventh Circuit

concluded below, all Section 1981 claims are governed by the

forum state’s personal injury statute of limitations, or as the

petitioners contend, some Section 1981 employment discrim-

ination claims are governed instead by the four-year, federal

“fall-back” statute of limitations codified at 28 U.S.C. § 1658.

The issue is of great practical importance to EEAC’s

members, the vast majority of which have employees in

multiple states. Most states’ statutes of limitations preclude

personal injury claims not brought to court within two or

three years. In those states, adoption of the rule advocated by

the petitioners, as opposed to the one applied by the Seventh

Circuit in this case, would greatly expand the number and

scope of stale claims that potentially could be brought against

employers under Section 1981.

Because of its members’ interest in the scope of Section

1981 as applied to employment, EEAC filed amicus curiae

briefs in many of the cases cited in the parties’ briefs and

lower court opinions in this case, including Goodman v.

Lukens Steel Co., 482 U.S. 656 (1987), Patterson v. McLean

Credit Union, 491 U.S. 164 (1989), Landgraf v. USI Film

Prods., 511 U.S. 244 (1994), and Rivers v. Roadway Express,

— es

3

Inc., 511 U.S. 298 (1994). Thus, EEAC’s interest in, and

experience with, the issue presented for the Court's consid-

eration in this case are both substantial and long-standing.

STATEMENT OF THE CASE

This case began with the filing of a complaint in the

Northern District of Illinois on November 25, 1996, alleging

that R.R. Donnelley & Sons Company violated 42 U.S.C.

§ 1981 by, inter alia, discriminating against African-

Americans whose employment it had terminated in con-

junction with the closing of its Chicago Manufacturing

Division (CMD) on or about July 29, 1994. The plaintiffs’

claims included allegations of discriminatory terminations,

discriminatory transfers, and maintenance of a racially hostile

work environment.

Donnelley moved for summary judgment on all claims by

the former CMD employees on the ground that their

employment had ended more than two years before the filing

of their complaint, and their claims therefore were time-

barred. Donnelley relied on the traditional rule that, because

Section 1981 does not contain a statute of limitations, courts

considering Section 1981 claims will apply the personal

injury statute of limitations of the state in which the claims

arise, which in Illinois is two years.

The district court denied the motion. It ruled in Adams v.

R.R. Donnelley & Sons Co., 149 F. Supp.2d 459. 462-64

(N.D. Ill. 2001)’, that the discriminatory termination and

hostile environment claims in this case were governed, not by

the two-year Illinois statute of limitations, but rather by the

four-year, federal “catch-all” statute of limitations codified at

28 U.S.C. § 1658, which applies to any “civil action arising

under an Act of Congress enacted after [December |, 1990].”

* rev'd sub nom. Jones v. RR. Donnelly & Sons Co., 305 F.3d 717 (7th

Cir. 2002), cert. granted, 123 S. Ct. 2074 (2003).

4

The district court reasoned that, because allegations of race

discrimination in termination of employment and main-

tenance of a racially hostile work environment were not

actionable under Section 1981 as interpreted by this Court in

Patterson v. McLean Credit Union, 491 U.S. 164 (1989), but

became actionable as a result of the amendment to Section

1981 contained in the Civil Rights Act of 1991, the

termination and hostile environment claims in this case were

claims “arising under” the Civil Rights Act of 1991. /d.

And, since the 1991 Act was enacted after Section 1658's

effective date of December 1, 1990, the district court

concluded that Section 1658’s four-year statute of limitations

applied to those claims.’ /d. at 465. Accordingly, the district

court denied Donnelley’s motion for summary judgment, id.;

however, it certified the statute of limitations question for

interlocutory appeal.

On review, the Seventh Circuit reversed. Jones v. R.R.

Donnelley & Sons Co., 305 F.3d 717 (7th Cir. 2002), cert.

granted, 123 S. Ct. 2074 (2003). The court of appeals

concluded that all of the petitioners’ Section 1981 claims

arose under the original, prohibitory language of Section

1981, not under the new, definitional provision added by the

Civil Rights Act of 1991. /d. at 727. Having thus found that

the claims arose under a preexisting statute, the Seventh

Circuit held that Section 1658 did not apply and that all of the

petitioners’ claims were subject to Illinois’ two-year statute of

limitations. /d. at 728.

The Third and Eighth Circuits also have found Section

1658 inapplicable to Section 1981 claims. Zubi v. AT&T

Corp., 219 F.3d 220 (3d Cir. 2000); Madison v. IBP, Inc., 257

* The district court reserved judgment on whether other types of dis-

crimination alleged in the complaint might have been actionable under

Section 1981 before the 1991 amendments, and therefore might be subject

to the two-year Illinois limitations period. /d. at 465.

5

F.3d 780 (8th Cir. 2001), vacated on other grounds, 536 U.S.

919 (2002). The Sixth and Tenth Circuits have reached the

opposite conclusion. Anthony v. BTR Auto. Sealing Sys., Inc.,

339 F.3d 506 (6th Cir. 2003); Harris v. Allstate Ins. Co., 300

F.3d 1183 (10th Cir. 2002). This Court granted certiorari to

resolve the conflict in the circuits.

SUMMARY OF ARGUMENT

The court of appeals correctly concluded that all civil

actions for discrimination in employment under 42 U.S.C.

§ 1981 are actions “arising under” an Act of Congress that

predates 28 U.S.C. § 1658's effective date of December |,

1990, and therefore are not subject to Section 1658’s four-

year statute of limitations. Indeed, the only provision of

Section 1981 that provides a right of recovery for

discrimination of any kind predates Section 1658’s effective

date by well over a century. It is the guarantee, enacted by

Congress shortly after the Civil War and now eodified in

subsection (a) of Section 1981, that “[a]ll persons within the

jurisdiction of the United States shall have the same right . . .

to make and enforce contracts . . . as is enjoyed by white

citizens ....” 42 U.S.C. § 1981(a).

The 1991 amendment to Section 1981, codified in sub-

section (b), merely added definitional language specifying

that the preexisting term “make and enforce contracts”

includes “the making, performance, modification, and termi-

nation of contracts and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. § 1981(b). Although this new lan-

guage expanded the scope of the term “make and enforce” to

encompass post-formation conduct not previously comprised

within that term as interpreted in Patterson v. McLean Credit

Union, 491 U.S. 164 (1989), the 1991 amendment did not

create any new right of action under Section 1981. Rather, as

the court of appeals correctly recognized, “the cause of action

6

for post-formation conduct ‘aris[es] under’ § 1981(a); that

subsection, not subsection (b), provides the actual right to

recovery.” Jones v. R.R. Donnelley & Sons Co., 305

F.3d 717, 727 (7th Cir. 2002), cert. granted, 123 S. Ct.

2074 (2003).

If there were any ambiguity in the meaning of Section 1658

as it relates to Section 1981 claims, one would need only to

look to the history and purposes of the respective 1990 and

1991 legislative enactments to find that Congress did not

intend the four-year “catch-all” statute of limitations to apply

to such claims. As the Seventh Circuit recognized, Congress

enacted Section 1658 to alleviate confusion and elected to

make it prospective so as not to disrupt litigants’ settled

expectations regarding applicable statutes of limitations. /d.

at 725-27. It is difficult to imagine a rule more confusing and

inherently disruptive than the one advocated by the

petitioners here, which would require litigants and courts to

sift through Section 1981 complaints and apply one statute of

limitations to claims determined to be actionable under the

law as interpreted in Patterson and a different statute of

limitations to claims determined to be actionable under the

new definition added by the Civil Rights Act of 1991.

When Congress enacted the Civil Rights Act of 1991, it

clearly was aware of the “catch-all” federal statute of

limitations it had enacted just a year earlier. As the court of

appeals recognized, Congress also was well aware of the

courts’ longstanding practice of applying the personal injury

statute of limitations of the forum state to claims under

Section 1981. /d. at 727. Against that backdrop, Congress

opted in 1991 not to create a wholly new cause of action for

discrimination in termination of employment or treatment of

employees, but instead “merely supplied a more precise

definition to one of the rights already guaranteed by § 1981—

the right to ‘make and enforce contracts.”” /d. Thus, as the

court of appeals recognized, it is apparent that Congress did

not view the passage of Section 1658 “as having altered the

7

practice of borrowing state statutes of limitations for purposes

of § 1981.” Jd.

Statutes of limitations serve an important function in our

legal system—to prevent litigation of stale claims. Such

litigation is onerous in the employment context. With the

passage of time, memories fade, witnesses scatter and records

become unavailable. Indeed, many employment records

lawfully may be destroyed after as little as one year under

current federal regulations. The majority of all the states’

personal injury statutes of limitations are two years; some are

three years; very few are longer than four years. Thus, the net

effect of the position urged by the petitioners in this case

would be to increase dramatically the number of stale

allegations of discriminatory employment terminations,

transfers, denials of promotion, and on-the-job treatment that

could be litigated under Section 1981 throughout the United

States. This Court should not endorse such a result without a

clear direction from Congress, which Section 1658 does not

provide.

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT ALL SECTION 1981

ACTIONS “ARISE UNDER” AN ACT OF

CONGRESS THAT PREDATES THE EFFEC-

TIVE DATE OF 28 U.S.C. § 1658 AND

THEREFORE ARE NOT SUBJECT TO THE

FOUR-YEAR “CATCH-ALL” FEDERAL

STATUTE OF LIMITATIONS.

A. Section 1658’s Four-Year Statute of Limita-

tions Applies Only to Actions “Arising Under”

Acts of Congress Enacted After December 1,

1990.

This case hinges on the meaning of “arising under” in 28

U.S.C. § 1658. Section 1658 creates a four-year statute of

8

limitations where one is not otherwise provided by law, but

only for civil actions “arising under” Acts of Congress

enacted after its effective date, December |, 1990. It states,

in pertinent part:

(a) Except as otherwise provided by law, a civil action

arising under an Act of Congress enacted after the date

of the enactment of this section may not be commenced

later than 4 years after the cause of action accrues.

28 U.S.C. § 1658(a). By limiting this new “catch-all” statute

of limitations exclusively to actions “arising under” laws

enacted after its effective date, Congress clearly made Section

1658 prospective only. The question presented in this case

thus boils down to whether the Act of Congress under which

the petitioners’ claims arise was enacted before or after

December |, 1990.

B. The Court of Appeals Correctly Recognized

That All Section 1981 Suits Alleging Employ-

ment Discrimination Are Actions “Arising

Under” the Ban on Discrimination in the

Making and Enforcement of Contracts, Which

Congress Enacted Over a Century Before the

Effective Date of Section 1658.

The petitioners base all of their claims of discrimination on

the law commonly known as “Section 1981”—i.e., 42 U.S.C.

§ 1981. That law consists today of two subsections relevant

here. The first was enacted in the Reconstruction Era

immediately following the Civil War. It states:

All persons within the jurisdiction-of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is

ES

9

enjoyed by white citizens, and shall be subject to like

punishments, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

Rev. Stat. § 1977.4 More than 100 years later, in Johnson v.

Railway Express Agency, Inc., 421 U.S. 454 (1975), this

Court held that the foregoing statutory language affords

individuals a right to sue in federal court for intentional, race-

based discrimination in employment. Subsequently, in

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

held that, because Section 1981 does not contain its own

statute of limitations, courts in Section 1981 cases should

apply the statute of limitations provided under state law for

personal injury actions in the forum state.

The second subsection of Section 1981 was enacted in

1991, when Congress, as part of the Civil Rights Act of 1991,

amended the provision quoted above by designating it as

1981(a) and adding a new subsection 1981(b), which states:

(b) For purposes of this section, the term “make and

enforce contracts” includes the making, performance,

modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and con-

ditions of the contractual relationship.

Pub. L. No. 102-166, 105 Stat. 1071 (42 U.S.C. § 1981(b) of

the Civil Rights Act of 1991). Congress added this

definitional provision in response to the decision in Patterson

v. McLean Credit Union, 491 U.S. 164 (1989), in which this

Court read the original language of Section 1981 as extending

to the formation of an employment contract, but not to

* The above-quoted language was enacted in its present form as Section

16 of the Civil Rights Act of 1870, ch. 114, § 16, 16 Stat. 140, 144 (Act of

May 31, 1870). It was patterned after similar language contained in

Section | of the Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (Act of

Apr. 9, 1866).

10

“conduct by the employer after thie contract relation has been

established, including breach of the terms of the contract or

imposition of discriminatory working conditions.” /d. at 177,

The question presented here is whether the petitioners’

claims, which allege discrimination in terminations of em-

ployment and treatment of employees occurring more than

two, but less than four, years before they filed their

complaint, “aris[e] under” 1981(a) or under 1981(b). If the

former, then under the rule of Goodman vy. Lukens Steel, the

claims are subject to Illinois’ two-year statute of limitations

for personal injuries, and thus are clearly time-barred. If the

latter, they may be subject to the prospective, four-year

statute of limitations in Section 1658, and thus still may

be viable.

A review of the language of the two subsections of Section

1981 makes the answer eminently clear. There can be no

civil action “arising under” § 1981(b), because it is purely a

definitional section. It creates no right and conveys no right

of action; it merely elaborates the meaning of the right,

created by § 1981(a), to “make and enforce contracts” on the

same terms as “white citizens.” A legal action cannot arise

under a definition alone; it can arise only under a statutory

provision that creates a right. Thus, the cause of action for

any alleged violation of Section 1981 necessarily “aris[es]

under” § 1981(a), for that subsection alone guarantees the

“right to make and enforce contracts”—whatever scope and

meaning Congress and the courts impart to that right.”

* Judge Cole correctly recognized this point in his concurring opinion

in Anthony v. BRT Automotive Sealing Systems, Inc., 339 F.3d 506, 517-

18 (6th Cir. 2003), and therefore, did not join the panel majority’s holding

that claims of discriminatory denial of promotions were governed by 28

U.S.C. § 1658's four-year statute of limitations.

—— So

As the Seventh Circuit correctly observed, this conclu-

sion follows inexorably from the language and structure of

Section 1981:

The most salient feature of the revised statute is that

§ 1981(b) simply cannot stand on its own. An action to

recover for discriminatory post-formation treatment

simply cannot be based solely on § 1981(b). Indeed,

without § 1981(a), § 1981(b) is meaningless. Conse-

quently, although post-formation discrimination claims

depend on the amendatory language of § 1981(b) in the

sense that the definitional language of that subsection

makes clear that “make and enforce” includes post-

formation conduct, the cause of action for post-

formation conduct “aris[es] under” § 1981(a); that

subsection, not subsection (b), provides the actual right

to recovery.

Jones, 305 F.3d at 727.

In sum, since the sole right of action the petitioners assert

in their lawsuit is one that has existed as a federal statute in

haec verba since 1870, their lawsuit is not governed by the

prospective statute of limitations Congress adopted for

actions arising under federal laws enacted after December |,

1990. Rather, like all claims under Section 1981, it is subject

to the applicable statute of limitations of the forum state.

Il. THE HISTORY AND PURPOSES OF 28 U.S.C.

§ 1658 AND THE CIVIL RIGHTS ACT OF

1991 CONFIRM THAT CONGRESS DID NOT

INTEND THE NEW, FOUR-YEAR STAT-

UTE OF LIMITATIONS TO APPLY TO

EMPLOYMENT DISCRIMINATION CLAIMS

UNDER SECTION 1981.

The amicus believes that the meaning of “arising under” is

clear on its face and, for the reasons discussed above, requires

the conclusion that the statute of limitations for all Section

12

1981 claims is the same—i.e., the forum state’s limitations

period for personal injury claims. Recognizing, however, that

some lower courts have found Section 1658 ambiguous as

applied to claims that arguably “aris[e] under” statutes

originally enacted before December |, 1990, but amended

after that date, this Court may wish to refer to the legislative

history and purposes of Section 1658 and the Civil Rights Act

of 1991. If so, the Court will find confirmation of the

correctness of the Seventh Circuit's decision in this case.

As the court of appeals recognized, Congress enacted

Section 1658 in an effort to eliminate confusion about the

appropriate statutes of limitations to be applied in cases

arising under federal statutes that do not contain their own

limitations periods. Jones, 305 F.3d at 725-26. See also

Anthony v- BTR Auto. Sealing Sys., Inc., 339 F.3d 506, 517-

18 (6th Cir. 2003) (concurring opinion of Judge Cole).

Congress wished to alleviate the “uncertainty” to which

litigants are subjected in the absence of a clearly prede-

termined limitations period. H.R. Rep. No. 101-734, at 24

(1990). At the same time, Congress opted to make Section

1658 prospective only, so as not to disrupt settled

expectations of persons who might wish to litigate claims

arising under statutes whose limitations periods had already

been determined by judicial decision. /d.

This Congressional objective of alleviating uncertainty and

settling expectations would be severely undermined by the

rule advocated by the petitioners in this case. Under their

approach, different claims in the same Section 1981 suit

would be subject to different statutes of limitations. Courts

and litigants would be required to parse through Section 1981

complaints and attempt to distinguish between claims that

would have been actionable under this Court’s decision in

Patterson v. McLean Credit Union, 491 U.S. 164 (1989), and

claims that became actionable only as a result of the 1991

13

Civil Rights Act’s amendment to Section 1981. The results

predictably would be chaotic, particularly in large class

actions under Section 1981.

This case demonstrates the muddle. Under Petitioners’ and

the Government’s theory, Petitioners’ termination and hostile

environment claims are timely under Section 1658. On the

other hand, their job classification as temporary employees,

an issue the district court declined to address,° may be viewed

as “contract formation” and therefore be time-barred.

The Third Circuit aptly described this chaos in Zubi vy.

AT&T Corp., 219 F.3d 220 (3d Cir. 2000), in rejecting the

approach the plaintiffs’ advocate here. The court noted that:

{The plaintiffs’] interpretation results in different statutes

of limitations being applied to plaintiffs suing under the

same statute depending on the particular facts of their

claims. Thus, for example, plaintiffs who invoke § 1981

because they have been victims of discrimination in

hiring will have their claims governed by one statute of

limitations, while plaintiffs who invoke the same statute

because they are victims of a discriminatory discharge

will have their claims governed by another |statute

of limitations].

Id. at 224. Thus, as the Third Circuit went on to observe, the

plaintiff's approach would “generate exactly the kind of

confusion and unfairness that Congress sought to avoid”

when it enacted Section 1658 in 1990. /d.

Congress, moreover, was well aware just a year later, when

it undertook to overrule this Court’s Patterson decision as

part of the Civil Rights Act of 1991, of the established

judicial practice of applying the forum state’s personal injury

statute of limitations to all actions for discrimination in the

making and enforcement of contracts under Section 1981.

* See note 3, supra.

14

See H.R. Rep. No. 102-40(1), at 63 (1991), reprinted in 1991

U.S.C.C.A.N. at 549, 601. Indeed, Congress expressly noted

that Section 1981 claims typically were subject to limitations

periods of “two to three years, and . . . up to six years in some

states.” Jd. (footnote omitted). See also H.R. Rep. No. 102-

4011), at 22 n.32 (1991), reprinted in 1991 U.S.C.C.A.N,

694, 716 n.32. Yet it chose not to enact a separate, new

statute prohibiting the types of post-formation discrimination

in employment contracts that the plaintiff in Patterson had

attempted to litigate under Section 1981. Instead, Congress

opted simply to amend Section 1981 to bring “performance,

modification, and termination of contracts, and the enjoyment

of all benefits, privileges, terms and conditions of the

contractual relationship” within the existing statutory guar-

antee of the same right to “make and enforce contracts . . . as

is enjoyed by white citizens.” 42 U.S.C. § 1981.

Thus, it can only be inferred that the 1991 Congress

intended allegations of post-hire employment discrimination

to be subject to the same limitations period as other alleged

violations of the existing statutory guarantee already set forth

in Section 1981. This conclusion follows not only from the

presence of the above-cited, express references to the

established practice of applying analogous state statute of

limitations to Section 1981 claims, but also from the absence

of any mention, anywhere in the legislative history of the

Civil Rights Act of 1991, of the four-year “catch-all” statute

of limitations enacted the preceding year in Section 1658.

It is noteworthy in this regard that, in enacting the Civil

Rights Act of 1991, Congress was particularly attentive to

statute of limitations issues it viewed as problematic. Thus,

in Section 112 of the 1991 Act, Congress amended § 706(e)

of Title VII, 42 U.S.C. § 2000e-5S(e), to alier the rule of law

handed down in Lorance v. AT&T Technologies, Inc., 490

U.S. 900 (1989), concerning when Title VII's statute of

limitations begins to run in cases involving the application of

ag — -

hs)

intentionally discriminatory seniority systems. Also, in

Section 115 of the Civil Rights Act of 1991, codified at 29

U.S.C. § 626(e), Congress replaced the then-existing two- and

three-year statutes of limitations under the Age Discrim-

ination in Employment Act (ADEA)’ with a requirement that

civil actions be filed within 90 days after a charging party’s

receipt of notice that the Equal Employment Opportunity

Commission (EEOC) has dismissed or otherwise terminated

proceedings on a charge of age discrimination. Similarly, in

Section 114 of the Civil Rights Act of 1991, Congress

amended 42 U.S.C. § 2000e-16(c) to provide that federal

sector complainants would have 90 days, rather than 30 days,

within which to file suit after any of various triggering events

specified in that subsection.

In sum, Congress was fully cognizant of the time-limits

applicable to suits under each of the statutes it amended as

part of the Civil Rights Act of 1991, and it acted affirmatively

to fix those it thought needed fixing. It surely also was well

aware of the “catch-all” statute of limitations it had enacted

just a year earlier in Section 1658. Against this background,

the fact that Congress amended a definitional provision of

Section 1981 but did not make any provision for a new or

different statute of limitations for actions brought under that

section further confirms the Seventh Circuit’s conclusion:

Congress simply did not view the passage of Section 1658 “as

having altered the practice of borrowing state statutes of

limitations for purposes of § 1981.” Jones, 305 F.3d at 727.

’ The ADEA previously had provided a two-year period for filing suit

for non-willful violations and a three-year period for filing suit for willful

violations.

16

iil. IN THE ABSENCE OF A CLEAR DIRECTION

FROM CONGRESS, THIS COURT SHOULD

NOT ADOPT AN’ INTERPRETATION OF

SECTION 1658 THAT WOULD VASTLY

INCREASE LITIGATION OF STALE CLAIMS

OF EMPLOYMENT DISCRIMINATION.

Whenever Congress has enacted a law designed

specifically to provide a right of action for employment

discrimination, it has included time-limits to prevent litigation

of stale claims. In Title VII of the Civil Rights Act of 1964,

42 *1.S.C. §§ 2000e et-seq., for example, Congress imposed a

dual scheme of time-limits. First, it stipulated that a person

alleging an unlawful employment practice must file a timely

administrative charge within 180 or 300 days after the

occurrence of the alleged unlawful practice. 42 U.S.C.

§ 2000e-5(e)(1)." Second, Congress specified that an indi-

vidual claiming to be aggrieved under Title VII has 90 days

within which to bring a civil action after receipt of a “notice

of right to sue” from the EEOC pursuant to 29 C.F.R.

§ 1601.28. 42 U.S.C. § 2000e-5(f)(1). Congress later made

these same time-limits applicable to proceedings under Title |

of the Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12111-12117, and as noted above, applied a similar 90

limit to actions under the Age Discrimination in Employment

Act. 29 U.S.C. § 626(e).

As this Court has recognized, such time-limits serve a

valuable purpose in employment discrimination statutes:

“The limitations periods, while guaranteeing the protection of

the civil rights laws to those who promptly assert their rights,

also protect employers from the burden of defending claims

arising from employment decisions that are long past.”

* The time-limit is 300 days in “deferral” states (i.e., states having their

own agencies with authority to grant or seek relief from the alleged

employment practice), and 180 days in non-deferral states. /d.

Se MC TOT OR

es RD PO

17

Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980)

(quoting Johnson v. Railway Express Agency, Inc., 421 U.S.

454, 463-64 (1975)). As this Court went on to observe:

It should not be forgotten that time-limitations pro-

visions themselves promoted important interests; “the

period allowed for instituting suit inevitably reflects a

value judgment concerning the point at which the

interests in protecting valid claims are outweighed by the

interests in prohibiting the prosecution of stale ones.”

Ricks, 449 U.S. at 259-60 (1980) (quoting Johnson, 421 U.S.

at 463-64). See also Mohasco Corp. v. Silver, 447 U.S. 807,

820 (1980) (Title VII's charge-filing time-limit reflects a

congressional “judgment that most genuine claims of dis-

crimination would be promptly asserted and that the costs

associated with processing and defending stale or dormant

claims outweigh the federal interest in guaranteeing a remedy

to every victim of discrimination”).

Although Congress has not subjected civil actions for

employment discrimination under Section 1981 to the same

time-frames as civil actions brought under Title VII, the

burden this Court recognized in Ricks of “defending claims

arising from employment decisions that are long past,” 449

U.S. at 256-57 (citations omitted), is no less for employers in

cases brought under Section 1981 than under Title VII.

Regardless of the statute under which a case is brought,

litigants and fact-finders are likely to confront serious

obstacles when faced with claims based on workplace events

dating back more than two or three years.

As the Fifth Circuit has observed, statutes of limitations

“reflect the valuable policy of requiring ‘the prompt

vindication of known rights to assure that the defendant is not

prejudiced as a result of lost evidence, fading memories, and

disappearing witnesses.” Jones v. Alcoa, Inc., 339 F.3d 359,

367 (Sth Cir. 2003) (citation omitted). In today’s business

world, rapid change and worker mobility are the orders of the

18

day. In this environment, intervals of more than two or three

years can be like an eternity. Companies change hands.

Operations are restructured. Emp'ovees leave to go to other

companies, other industries, and even other parts of the

world. Memories fade. Employment records disappear or

become unavailable.

Federal employment record-keeping regulations reflect at

least some recognition by the employment-law enforcement

agencies of the burdensomeness to employers of having to

keep employment records for inordinately long periods of

time. Thus, they generally limit mandatory record-retention

periods, except insofar as they are relevant to pending

administrative charges or lawsuits. For example, under the

applicable regulation of the EEOC, the mandatory retention

period for most employment records is one year. 29 C.F.R.

§ 1602.14.” Many large companies take the more cautious

approach of preserving employment records until the limi-

tations period for a possible Section 1981 action has expired.

Adoption of the position advocated by the petitioners in this

case would effectively require employers taking this approach

to save all employment records for at least four years, even

* 29 C.F.R. § 1602.14 states in pertinent part:

Any personnel or employment record made or kept by an employer

(including but not necessarily limited to requests for reasonable

accommodation, application forms submitted by applicants and

other records having to do with hiring, promotion, demotion,

transfer, lay-off or termination, rates of pay or other terms of

compensation and selection for training or apprenticeship) shall be

preserved by the employer for a period of one year from the date of

the making of the record or the personnel action involved,

whichever occurs later. ... Where a charge of discrimination has

been filed, or an action brought by the Commission or the Attorney

General, against an employer under title VII or the ADA, the

respondent employer shall preserve all personnel records relevant to

the charge or action until final disposition of the charge or the

action.

19

where no charge or lawsuit has yet been filed. This would

add enormously to the record-keeping burden already faced

by employers.

EEAC’s research indicates that in in the vast majority of

the 50 states of the United States, the statute of limitations for

personal injury claims is three years or less.'° Under the

position advocated by the petitioners in this case, plaintiffs in

those states still would have to bring claims alleging dis-

criminatory refusal to hire under Section 1981 to court within

these two- or three-year time-frames, but they could sit back

and let claims alleging discrimination in termination of

employment or treatment during the course of employment

gather dust for as long as four years before bringing them to

court. A few states currently have 4-year statutes of

limitations for personal injury claims, and thus would appear

to be unaffected by the petitioners’ approach.'' A few others

have statutes of limitations longer than four years for such

claims.'* In those few states, adoption of the petitioners’

position presumably would mean that plaintiffs would have to

bring claims of discrimination in respect to termination or

treatment during employment to court within four years, but

could still wait up to five or six years to file suit on claims of

discrimination in hiring.

Thus, in the vast majority of all states, the net effect of the

petitioners’ position would be to increase very substantially

the number and potential scope of stale claims of employment

discrimination that could be brought to the courts to be

litigated. At the same time, it would subject parties and

1 ‘ 7 . . ° es

” See generally, State Statutes of Limitations as Affecting Federal Civil

Rights Actions Under 42 U.S.C.A. § 1981, 29 A.L.R. Fed. 710 (1976 &

Supp. 2002).

'' E.g., Fla. Stat. § 95.11(3)(o); Wyo. Stat. Ann. § 1-3-105.

'? E.g., Mo. Rev. Stat. § 516.120(4) (five years); Me. Rev. Stat. tit. 14,

§ 752 (six years).

20

courts in Section 1981 actions to the unwieldy exercise of

having to apply different statutes of limitations to different

claims in the same case, based on a determination as to

whether the particular type of conduct alleged in each

particular claim would have been actionable under this

Court’s holding in Patterson v. McLean Credit Union or only

became actionable as a result of the Civil Rights Act of 1991.

In the absence of any clear indication that Congress intended

such bizarre results when it enacted Section 1658, and in the

face of clear evidence that Congress, in fact, did not intend to

subject Section 1981 actions to the four-year “catch-all”

limitations period when it amended Section 1981 as part of

the Civil Rights Act of 1991, this Court should eschew an

interpretation of Section 1658 that would spawn such an

increase in potential litigation of stale claims and impose such

onerous additional burdens on employers and courts.

CONCLUSION

For the reasons stated above, this Court should affirm the

decision of .se Seventh Circuit in this case.

Respectfully submitted,

ANN ELIZABETH REESMAN

Counsel of Record

MCGUINESS NORRIS &

WILLIAMS, LLP

1015 Fifteenth St., N.W.

Suite 1200

Washington, D.C. 20005

September 2003 (202) 789-8600