Amicus Curiae Brief — Arbaugh v. Y & H Corp.

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No. 04-9414 Ai, i Inne

Jn the Supreme Court of the Cnited States ~~

JENIFER ARBAUGH, PETITIONER

Y & H CORPORATION, D/B/A THE MOONLIGHT CAFE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAuL D. CLEMENT

Eric S. DREIBAND Solicitor General

Counsel of Record

BRADLEY J. SCHLOZMAN

Acting Assistant Attorney

General Counsel

VINCENT J. BLACKWOOD

Acting Associate General

Counsel General

‘ — r _— ‘ i’ P 7 A Ad

CAROLYN L. WHEELER DARYL JOSEFFER

Assistant General Conusel Assistant to the Solicitors

Geveral

JENNIFER S. GOLDSTEIN

Attorney

Equal Employment

Opportunity Commission

Washington, D.C. 20507 Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

DENNIS J. DIMSEY

LINDA F. THOME

Attorneys

QUESTION PRESENTED

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

2000e et seqg., prohibits employment discrimination by an

“employer,” and defines an “employer” for that purpose

to be a person who, inter alia, had 15 or more employees

for each working day during 20 or more weeks in the

current or preceding year. The question is whether the

15-employee requirement limits the courts’ subject

matter jurisdiction, or instead is relevant only to the

merits of a Title VII claim.

(I)

TABLE OF CONTENTS

Page

ED ccc cacsneecedooseesesess l

UE EhEn eek eaeekesedsccesteécocccoceeceees 2

eee ccc cendeccdceeeseeeosceess 5

Argument:

The 15-employee requirement is relevant to

whether a plaintiff can state a valid claim,

but not to the courts’ jurisdiction to adjudicate

EEE SEES FOS E COP POPP PEPE ETE EE EL OEE 8

A. Whether a plaintiff can state a valid claim is

ordinarily relevant only to the merits of the case,

not to the courts’ jurisdiction over the subject

FEELS EELOCT TST OTT TT TTT TTT ETT TTT TT Te 8

B. The text, structure, and context of Title VII

and the 15-employee requirement

demonstrate that the requirement is not

Etch ccneeeeseseeescesecccececcces 11

C. Neither respondent nor the courts of appeals

that have held the issue to be jurisdictional

have advanced a persuasive reason for their

EE EEE ee 20

eee cece ed bdécdccateccccoceccees 29

TABLE OF AUTHORITIES

Cases:

Air Carrier Conf. of Am. v. American Postal

Workers Union, 498 U.S. 517(1991) ........... 7, 21

Baker v. Carr, 369 U.S. 186 (1962) ................ 9

Bell v. Hood, 327 U.S. 678 (1946) ......... 6, 9, 10, 11

Binderup v. Pathe Exc*., Inc., 263 U.S. 291

es doc ecacckeseeceeeces 9, 21, 25

Cases—Continued: Page

Burks v. Lasker, 441 U.S. 471 (1979) ............. 22

Bray v. Alexandria Women’s Health Clinic,

Pe EEE “cascecceconsecensceccedoseens 11

Carlisle v. United States, 517 U.S. 416 (1996) ...... 26

Center for Nuclear Responsibility, Inc. v.

United States, 781 F.2d 935 (D.C. Cir. 1986) ...... 26

Clackamas Gastrcenterology Assocs., P.C. v.

Wells, 588 U.S. 440 (2008) ..............005-- 16. 24

Da Silva v. Kinsho Int'l Corp., 229 F.3d 358

SEEMED Knescéecdanséncaccueeeuces 13, 18, 20, 23

Davis v. Passman, 442 U.S. 228 (1979) ............ 8

Duke Power Co. v. Carolina Envt'l Study

Group, Inec., 438 U.S. 59 (1978) .......... 9, 10, 11, 22

Dumas v. Town of Mt. Vernon, 612 F.2d 975

GEA CUED ocncccdduncncnccccsesensséesese 5, 20

EEOC vy. Arabian Am. Oil Co., 499 U.S. 244

GE 600dbstdcncacaddecnedeedunsosnenesess 24, 28

EEOC v. Commercial Office Products Co., 486

Ge ET UEUEED adccdesdndncusscssesensecoeesees 27

EEOC vy. St. Francis Xavier Parochial Sch.,

117 F.3d 621 (D.C. Cir. 1997) ............. 20, 22, 23

Fair v. Kohler Die & Speciality Co., 228 U.S.

PUREED “Sddéeedcccasddseonecaneedcnasscawas 9,11

FEC vy. NRA Political Victory Fund, 513 U.S.

SPEED weeduscdccssvsseccucascocenccesansees 26

FDIC v. Meyer, 510 U.S. 471 (1994) .............. 12

Geneva Furniture Mfg. Co. v. S. Karpen &

BUG, TS Sa SEND hh cccccccccccecssoceces 9

Cases—Continued Page

Greenless v. Eidenmuller Enters., Inc., 32 F.2d

PT ED. ah cevddcncdcdcncddndetdnsente 20

Hartford Fire Ins. Co. v. California, 509 U.S.

SGI Ghsdancevdudandssacdasnsocucesense 25, 28

Jerome B. Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. 527 (1995) .............. 12, 18

Hishon v. King & Spalding, 467 U.S. 69 (1984) .... 27

Keene Corp. v. United States, 508 U.S. 200

GD -acnidunsdddebasdenddsbesocdousendancetes 19

Komorowski v. Townline Mini-Mart & Rest.,

DGB Fb SEB (Te Clr. IBGE) 2 ccccccccccccccccces 19

Kontrick v. Ryan, 540 U.S. 443 (2004) ...... 8, 15, 26

Kulick v. Pocono Downs Racing Ass'n, 816

FPaPEGE EEE ccccecesncsccedeccsecness 25

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

ED beesdsdanbsccddctbcanseeensoaneneesees 8,15.

Lauritzen v. Larsen, 345 U.S. 571 (1958) ........ 9, 21

Louie v. United States, 254 U.S. 548 (1921) ..... 21, 25

Martin v. United States, 333 F.3d 819 (7th

Cir.), cert. denied, 540 U.S. 1083 (2003) ........... 25

Minneapolis & St. Lowis R.R. v. Peoria &

Pekin Union Ry., 270 U.S. 580 (1926) ........... 19

Montana-Dakota Utils. Co. v. Northwestern

Pub. Serv. Co., 341 U.S. 246 (1951) .......... 8,9, 10

Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977) ........00eeeeee 9, 12, 21

Cases—Continued: Page

Nesbit v. Gears Unlimited, Inc., 347 F.3d 72

(3d Cir. 2003), cert. denied, 541 U.S. 959

ED. sheasuckdendetssdcnsenesens 17, 20, 23, 24, 25

Northwest Airlines, Inc. v. County of Kent, 510

PEED ndbcedcubiccondccussesessncesses 22

Oneida Indian Nation v. County of Oneida,

GP EEEOED . énbnccidccdndessnccedscsendes 11

Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426

TEED Kénvdvcdonnvdeunesnsacasieensacesessstes 22

Palmore v. United States, 411 U.S. 389 (1973) ...... 12

Romero v. International Terminal Operating

ig TP NEED ecccccedesescceccesccs 9, 21

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574

DED -Sasnedeacaddudiucdcossasésteuntaseses 16, 17

Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir.

1999), cert. denied, 529 U.S. 1003 (2000) .......... 20

Sharpe v. Jefferson Distrib. Co., 148 F.3d 676

PE EEE Scencdeddechoadedstdecasdosecs 17, 23

Steel Co. v. Citizens for a Better Env't, 523 U.S.

EEENEED accdcocccccasdéccncveneestncesens passim

Swafford v. Templeton, 185 U.S. 487 (1902) ........ 9

Trainor v. Apollo Metal Specialities, Inc., 318

Co Pe 20

United States v. Cotton, 535 U.S. 625 (2002) ........ 9

United States v. Mottaz, 476 U.S 834 (1986) ....... 22

United States v. Ryan, 41 F.3d 361 (8th Cir.

1994), cert. denied, 514 U.S. 1082 (1995) .......... 25

Verizon Md., Inc. v. Public Serv. Comm’n, 535

SD nO ee 9, 10, 11, 15, 22

Vil

Cases—Continued: Page

Walters v. Metropolitan Educ. Enters., Inc.,

DPD scéneidvonsceduncssssesene 26, 27

Womble v. Bhangu, 864 F.2d 1212 (5th Cir.

BED ounbednndsdseesseusedabeorscunnedesenssss 20

Yellow Freight Sys., Inc. v. Donnelly, 494 U.S.

PEED. Keaddndadcdncacusonctinecsannessences 14

Zipes v. Trans World Airlines, Inc., 455 U.S.

PEED. éddncdoescbonedsedesduscscases 6, 14, 26

Constitution, statutes and rules

U.S. Const. Art. I:

§ 8, Cl. 3 (Commerce Clause) .................. 24

DOME? Cbdddddecdnccndesapaddeedncdscsedees 11

Age Discrimination in Employment Act of 1967,

Pe ONOEE, ccvcccecéccsescosessseccocese 2

PEED cc cancecndccseciscecediancses 2

SPEED Kdvdeccdacdesenceceudececnance 2

Americans with Disabilities Act of 1990, 42

es CO GEGED, ccccccccnsccescesesseenese 2, 20

Gee CEES Scvccccccccossccscesuscces 2

EEE cuddncdnoccenadequveceuduees 2

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

2000e et seq.:

42 U.S.C. 2000e(b) ............. 3, 4, 13, 15, 16, 24

GED Sbvdcccccensssévencaciosesus 13

GOURD pdiccccccccgscaccsccccsonsas 13

GO ec ccccccesicussecceses 2, 14, 15

GD cnccccccccccccecceseesccess 2

42 U.S.C. 2000e-2(a)(1) occ cece e cece eee e eee 2

Vill

Statutes and rules—Continued: Page

SPEED kvbdevadsdcnsecaseducevesent 2

SUED ccngudscatedsddeasesekseases 2

SEE cicccckcnvesabenecaseees 2, 14, 15

SEED bececbcovescecesicnucssocdas 3

SNEED 0s bs. cadaccoevesesdecenceess 23

GREED cc cveccccescoceccosuesess 3

42 U.S.C. 2000e-5(f)(3) ........ 3, 6, 12, 13, 14, 15, 16

TEU. GREED cccceccccccccevccescceess 19

PEED canetadotvancdésdncaseeucenss 16

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 2,86 Stat. 103 .............. 24

Family and Medical Leave Act of 1993, 29 U.S.C.

BS GEOE cvvesesescscocesseccasscesccescons .2

ED naducsvosconctenscacedseses 2

PEE dcccuciucanunenéecsasasuceeen 2

PEE éccutsunadsadestdvedhaseduese 2

Federal Tort Claims Act, 28 U.S.C. 1346(b) ......... 12

PEED «Kennddsecssncecesesese 9, 12, 18, 21, 23

BP es CTU GUEED scccescvccceccecsescocceés 13

PE MED bay cn0desueucdinevedneseaseesans 22

EEE seccndcsdvcetudencsdcepesesenesens 12

PGE Vecudacnnsscsecseeseveccesssessenss 22

PP is SED ncnancnccnvesvccsacseseseosseseoes 22

PS EET betesecdusdbncnsecdeudcsevesesssee 18

Ss ED nc decsubeccnsccnesidncasendeees 18

SPE pacndedsdedusdedcucchuscccescesends 21

TEU. TERED cccccccccscccccccsccccococseces 13

Statute and rules—Continued: Page

Sa TED Kccarddecnnseeucesvesesesecdua 12

Fed. R. Civ. P.:

EE adisncdsciuddvedadnivensieasdneeis 27

iD icedeccueusseudenssenéseeeucsseuss 27

Miscellaneous:

110 Cong. Rec. (1964):

PLSD SORRSEbSodSe Ee sdcoeeducencdéneeessetes 24

TE G66bbbdccredesecnccevecesouceseseecsus 24

118 Cong. Ree. (1972 ):

PEE bedenceccccacssceseccoesosesessss 24

PEE Sa cenedececenccacéecessesonsasess 24

CETTE BUR EShdodosncedccdcscesececsessss 24

H.R. Rep. No. 914, 88th Cong., ist Sess. (1963) ...... 24

H.R. Rep. No. 238, 92d Cong., Ist Sess. (1971) ...... 28

Barbara Lindermann & Paul Grossman,

Employment Discriminction Law (3d ed.

Dt dene usneseusen ineabeudebeseussdascusseess 19

James Wm. Moore’s Federal Practice (3d ed.

1997):

WEE scciececincdetscoudunseuadauvetetesutacs 22

i a il i ea i ee i lk 18

Restatement (First) Conflict of Laws (1934)

1 Restatement (Third) of Foreign Reiations of

the United States (1987) ......cccccccsccsccccees 25

S. Rep. No. 415, 92d Cong., Ist Sess. (1971) ......... 28

S. Rep. No. 681, 92d Cong., 2d Sess. (1972 .......... 28

Jn the Supreme Court of the Gnited States

No. 04-944

JENIFER ARBAUGH, PETITIONER

Y & H CORPORATION, D/B/A/ THE MOONLIGHT CAFE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether Congress’s

exclusion of persons with fewer than 15 employees from

the definition of the term “employer” in Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., limits

the courts’ subject matter jurisdiction, or instead relates

only to the merits of claims brought under Title VII.

The Equal Employment Opportunity Commission (Com-

mission or EEOC) administers Title VII and brings civil

actions against private employers to enforce its require-

ments. 42 U.S.C. 2000e-5(f)/_). The Attorney General

has authority to bring such actions against public em-

ployers. J/bid. In addition to bringing actions under

Title VII, the United States is also subject to suit under

that statute. 42 U.S.C. 2000e-16(c). The Department of

(1)

Labor, the EEOC, and the Attorney General administer

and enforce a number of other statutes, including the

Americans with Disabilities Act of 1990, 42 U.S.C. 12101

et seqg., the Age Discrimination in Employment Act of

1967, 29 U.S.C. 621 et seg., and the Family and Medical

Leave Act of 1993, 29 U.S.C. 2601 et seq., that contain

similar provisions restricting the definition of affected

“employer|s]” to those with a minimum number of em-

ployees. 42 U.S.C. 12111(5)(A), 12117(a); 29 U.S.C.

626(b), 630(b); 29 U.S.C. 2611(4)(A), 2617(b) and (d).

The United States therefore has a substantial interest

in this case.

STATEMENT

1. Under Title VII, it is generally an “unlawful em-

ployment practice for an employer to fail or refuse to

hire or to discharge any individual, or otherwise to dis-

criminate against any individual with respect to his com-

pensation, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. 2000e-2(a)(1). Title

VII also prohibits other specified “unlawful employment

practice[s]” by an “employer” or other covered entity,

including an “employment agency” or “labor organiza-

tion.” 42 U.S.C. 2000e-2(a), (b) and (c); 42 U.S.C. 2000e-

3. For purposes of Title VII:

The term “employer” means a person engaged in

an industry affecting commerce who has fifteen or

more employees for each working day in each of

twenty or more calendar weeks in the current or pre-

ceding calendar year, and any agent of such a person,

but such term does not include (1) the United States,

a corporation wholly owned by the Government of

the United States, an Indian tribe, or any depart-

ment or agency of the District of Columbia subject

by statute to procedures of the competitive service

(as defined in section 2102 of title 5), or (2) a bona

fide private membership club (other than a labor or-

ganization) which is exempt from taxation under sec-

tion 501(c) of title 26. * * *

42 U.S.C. 2000e(b).

Any person claiming to be aggrieved by an unlawful

employment practice may file a charge with the EEOC.

42 U.S.C. 2000e-5(b). If the Commission determines

that there is reasonable cause to believe that an em-

ployer or other covered entity engaged in such a prac-

tice, it shall “endeavor to eliminate * * * [the] practice

by informal methods of conference, conciliation, and per-

suasion.” /bid. If such informal methods do not suc-

ceed, the Commission may bring a civil action against

the respondent, unless the respondent is a government,

governmental agency, or political subdivision, in which

case the Attorney General may bring such an action. 42

U.S.C. 2000e-5(f)(1). If neither the Commission nor the

Attorney General brings a civil action, the aggrieved

person or persons may do so. /bid.

Congress granted the federal courts jurisdiction over

all such actions: “Each United States district court and

each United States court of a place subject to the juris-

diction of the United States shall have jurisdiction of

actions brought under this subchapter.” 42 U.S.C.

2000e-5(f)(3).

2. In November 2001, petitioner Jenifer Arbaugh

brought this lawsuit against respondent Y&H Corpora-

tion, d/b/a The Moonlight Cafe, in the United States Dis-

trict Court for the Eastern District of Louisiana. Pet.

App. 1-2. Petitioner alleged that she had been subjected

to sexual harassment and constructively discharged

from her employment as a waitress and bartender at the

Moonlight Cafe, in violation of Title VII and Louisiana

state law. /d. at 2. Respondent “admitted [petitioner’s]

allegations as to jurisdiction but denied her allegations

on the merits.” Jd. at 46.

After the parties completed discovery, the district

court held a trial on the merits of petitioner’s claims.

See Pet. App. 3. A jury returned a verdict in favor of

petitioner and awarded her $5000 in back pay, $5000 in

compensatory damages, and $30,000 in punitive dam-

ages. I/bid. The district court entered judgment for

petitioner based on the jury verdict. /bid.

3. Two weeks later, respondent moved to dismiss

the action for lack of subject matter jurisdiction. Pet.

App. 3. Respondent argued in that post-verdict motion,

for the first time, that it did not have 15 employees when

it employed petitioner, and therefore was not an “em-

ployer” under 42 U.S.C. 2000e(b). Pet. App. 3.

The district court directed another round of discov-

ery and briefing. Pet. App. 45-49. The court empha-

sized that it is “unfair and a waste of judicial resources

to permit the [respondent] to admit [petitioner’s] allega-

tions of jurisdiction, try the case for two days and then

assert a lack of subject matter jurisdiction in response

to an adverse jury verdict.” /d. at 47. “Unfortunately,”

the court concluded, “none of these considerations are

sufficient to confer subject matter jurisdiction [where]

it is lacking.” Jbid.

After the parties completed additional discovery and

briefing, the district court requested further evidence

regarding the compensation received by two of respon-

dent’s alleged owners. Pet. App. 25. The court ulti-

mately concluded that it lacked subject matter jurisdic-

tion because respondent’s delivery drivers and owners

were not “employees” for purposes of Title VII, and

when those persons are excluded from consideration,

respondent had fewer than 15 employees during the rel-

evant time period. /d. at 32-43. The court therefore

dismissed petitioner’s Title VII claim with prejudice,

and her state-law claims without prejudice. /d. at 23.

4. The court of appeals affirmed. Pet. App. 1-22.

The court determined that it was bound by Fifth Circuit

precedents holding that a defendant’s “failure to qualify

as an ‘employer’ under Title VII deprives a district court

of jurisdiction.” /d. at 7 (citing, e.g., Dumas v. Town of

Mt. Vernon, 612 F.2d 974, 980 (1980)); see zd. at 8-9.

After noting that “whether an individual is an ‘em-

ployee’ for Title VII purposes is a fact-intensive inquiry,

and as with most employee-status cases, there are facts

pointing in both directions” (Pet. App. 17), the court of

appeals agreed with the district court that the delivery

drivers and owners were not employees. /d. at 17-18,

20-21. Moreover, “[b]ecause it is undisputed that [re-

spc adent] did not employ the requisite 15 employees

without the inclusion of” those persons, the court con-

cluded that respondent is “not subject to liability under

Title VII, and thus the district court properly dismissed

[petitioner’s] suit for lack of subject matter jurisdic-

tion.” Jd. at 22.

SUMMARY OF ARGUMENT

A. The court of appeals erred by conflating the dis-

tinct questions whether a claim is meritorious and

whether the courts have subject matter jurisdiction to

adjudicate the claim. “It is firmly established * * *

that the absence of a valid (as opposed to arguable)

cause of action does not implicate subject-matter juris-

diction.” Steel Ce. v. Citizens for a Better Env’t, 523

U.S. 83, 89 (1998).

Instead, “where the complaint, as here, is drawn so

as to seek recovery directly under the Constitution or

laws of the United States, [a] federal court * * * must

entertain the suit” unless the federal claim “clearly ap-

pears to be immaterial and made solely for the purpose

of obtaining jurisdiction or where such a claim is wholly

insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678,

681-682, 682-683 (1946). Petitioner’s Title VII claim is

by no means immaterial or frivolous.

B. Although Congress may limit the courts’ subject

matter jurisdiction based on facts that are also relevant

to the merits of a case, nothing in Title VII evinces an

intent to do so. To the contrary, Title VII expressly pro-

vides that “[eJach United States district court * * *

shall have jurisdiction of actions brought under [Title

VIT}.” 42 U.S.C. 2000e-5(f)(3). That jurisdictional pro-

vision does not turn in any way on whether the defen-

dant employs 15 or more employees. Instead, the 15-

employee requirement is found in Title VII’s definition

of the term “employer,” a term that is used in the provi-

sions of Title VII that establish the substantive rights

and obligations of the parties, but not in Title VII’s ju-

risdictional provision.

That makes this case closely analogous to Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393-394 (1982),

which held Title VII’s timely-filing requirement to be

non-jurisdictional, in large part because Title VII’s ju-

risdictional provision “contains no reference” to the

timely-filing requirement, and the separate provision

containing that requirement “does not * * * refer in

any way to the jurisdiction of the district courts.” Here,

too, the definition of “employer” is structurally separate

from the jurisdictional provision, which makes no refer-

ence to that definition.

The non-jurisdictional character of the 15-employee

requirement reflects not only the best reading of the

statute, but common sense as well. Determining

whether a defendant had 15 workers who qualified as

“employees” for purposes of Title VII during the rele-

vant time period can require extensive discovery and

factual analysis. As such, it would make little sense to

treat the issue as jurisdictional, with the consequence

that appellate courts would have to identify and resolve

the complex factual issue swa sponte, and district courts

would have to resolve the issue at the threshold of a

case, instead of considering it in connection with other

merits issues. Moreover, if the 15-employee require-

ment were jurisdictional, the relevant time period for

measuring the defendant’s workforce would be the time

when the case was filed, as opposed to the time when the

allegedly unlawful conduct occurred. It would make

little sense, however, to permit employers to shed liabil-

ity for past unlawful discrimination by firing employees,

and thereby reducing their workforce below the 15-em-

ployee level.

C. The courts of appeals that have held the 15-em-

ployee requirement to be jurisdictional have provided

little reasoning supporting that result. Some courts

have suggested that the issue is jurisdictional because it

relates to whether Title VII applies in a particular case,

or to a particular defendant. As this Court has ex-

plained, however, “whether Congress intended to allow

a certain cause of action against [a particular defen-

dant)” is “not a question of jurisdiction.” Air Courier

Conf. of Am. v. American Postal Workers Union, 498

U.S. 517, 523 n.3 (1991). Instead, it is a merits inquiry.

Although respondent has argued that this Court al-

ready determined that the 15-employee limitation is ju-

risdictional, this Court has never squarely faced that

question, much less decided it. As this Court recently

observed, jurisdiction is a term of many meanings and is

often used imprecisely. See Kontrick v. Ryan, 540 U.S.

443, 454 (2004). “[S)cattered references to [a] require-

ment as jurisdictional” lack precedential effect where, as

here, “the legal character of the requirement was not at

issue in those cases.” Zipes, 455 U.S. at 395.

ARGUMENT

THE 15-EMPLOYEE REQUIREMENT IS RELEVANT

TO WHETHER A PLAINTIFF CAN STATE A VALID

CLAIM, BUT NOT TO THE COURTS’ JURISDICTION

TO ADJUDICATE THE CLAIM

A. Whether A Plaintiff Can State A Valid Claim Is Ordi-

narily Relevant Only To The Merits Of The Case, Not To

The Courts’ Jurisdiction Over The Subject Matter

1. “As frequently happens where jurisdiction de-

pends on subject matter, the question whether jurisdic-

tion exists has been confused with the question whether

the complaint states a cause of action.” Montana-Da-

kota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S.

246, 249 (1951). While “jurisdiction is a question of

whether a federal court has the power, under the Consti-

tution or laws of the United States, to hear a case * * *

cause of action is a question of whether a particular

plaintiff is a member of the class of litigants that may, as

a matter of law, appropriately invoke the power of the

court.” Davis v. Passman, 442 U.S. 228, 239 n.18 (1979);

see Landgraf v. USI Film Prods., 511 U.S. 244, 274

(1994) (“jurisdictional statutes speak to the power of the

court rather than to the rights or obligations of the par-

ties”) (internal quotation marks omitted); United States

v. Cotton, 535 U.S. 625, 630 (2002) (“subject matter juris-

diction” refers only to a court’s “power to hear a case”).

The court of appeals erroneously conflated those in-

quiries by concluding that respondent “is not subject to

liability under Title VII and thus the district court

properly dismissed [petitioner’s] suit for lack of subject

matter jurisdiction.” Pet. App. 22 (emphasis added). “It

is firmly established * * * that the absence of a valid

(as opposed to arguable) cause of action does not impli-

cate subject-matter jurisdiction.” Steel Co. v. Citizens

for a Better Env't, 523 U.S. 83, 89 (1998); accord Verizon

Md., Inc. v. Public Serv. Comm’n, 535 U.S. 635, 642-643

(2002); Duke Power Co. v. Carolina Envt'l Study Group,

Inc., 438 U.S. 59, 70-71 (1978); Baker v. Carr, 369 U.S.

186, 199-200 (1962); Romero v. International Terminal

Operating Co., 358 U.S. 354, 359 (1959); Lawritzen v.

Larsen, 345 U.S. 571, 574-575 (1953); Montana-Dakota

Utils., 341 U.S. at 249; Bell v. Hood, 327 U.S. 678, 685

(1946); Binderup v. Pathe Exch., Inc., 263 U.S. 291, 305-

306 (1923); Swafford v. Templeton, 185 U.S. 487, 493

(1902). “Jurisdiction is authority to decide the case ei-

ther way. Unsuccessful as well as successful suits may

be brought.” Fair v. Kohler Die & Specialty Co., 228

U.S. 22, 25 (1913) (Holmes, J.); accord Geneva Furni-

ture Mfg. Co. v. S. Karpen & Bros., 238 U.S. 254, 258-

259 (1915).

2. In 28 U.S.C. 1331, Congress broadly granted the

federal district courts “jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the

United States.” Under that statute, “jurisdiction is suf-

ficiently established by al/egation of a claim under the

Constitution or federal statutes.” Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 279 (1977) (em-

phasis added); see Duke Power, 438 U.S. at 70-71. “If

the compl:.int raises a federal question, the mere claim

confers power to decide that it has no merit, as well as

to decide that it has.” Montana-Dakota Utils., 341 U.S.

at 249.

Thus, “where the complaint, as here, is drawn so as

to seek recovery directly under the Constitution or laws

of the United States, the federal court, but for two possi-

ble exceptions * * *, must entertain the suit.” Bell, 327

U.S. at 681-682. Those “exceptions are that a suit may

sometimes be dismissed for want of jurisdiction where

the alleged claim under the Constitution or federal stat-

utes clearly appears to be immaterial and made solely

for the purpose of obtaining jurisdiction or where such

a claim is wholly insubstantial and frivolous.” Jd. at 682-

683. Unless one of those exceptions applies, a district

court has jurisdiction if “the right of the petitioners to

recover under their complaint will be sustained if the

Constitution and laws of the United States are given one

construction and will be defeated if they are given an-

other.” Jd. at 685; accord Verizon, 535 U.S. at 643; Steel

Co., 523 U.S. at 89.

3. Under that standard, the district court had sub-

ject matter jurisdiction to adjudicate petitioner’s Title

VII claim. Petitioner alleged a claim under a federal

statute (Title VII) by claiming that respondent violated

that statute and seeking relief under it. See Pet. App. 1,

2. The lower courts recognized that if respondent’s de-

livery drivers or owners were considered “employees”

under Title VII, respondent would be an “employer”

under that statute, and petitioner would be entitled to

judgment in her favor. See, e.g., id. at 4. Because, as in

Steel Co., petitioner “wins under one construction of [a

federal statute] and loses under anotaer,” the district

court had subject matter jurisdiction to consider her

claim. 523 U.S. at 89; accord Verizon,.535 U.S. at 643;

Bell, 327 U.S. at 684-685.

Nor is petitioner’s federal claim so insubstantial or

frivolous as to warrant dismissal for lack of subject mat-

ter jurisdiction. “Dismissal for lack of subject-matter

jurisdiction because of the inadequacy of the federal

claim is proper only when the claim is ‘so insubstantial,

implausible, foreclosed by prior decisions of this Court,

or otherwise completely devoid of merit as not to involve

a federal controversy.” Steel Co., 523 U.S. at 89 (quot-

ing Oneida Indian Nation v. County of Oneida, 414 U.S.

661, 666 (1974)); accord Duke Power, 438 U.S. at 70;

Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 285 (1993). That standard is not remotely satisfied

here. As the court of appeals noted, “whether an indi-

vidual is an ‘employee’ for Title VII purposes is a fact-

intensive inquiry, and as with most employee-status

cases, there are facts pointing in both directions.” Pet.

App. 17."

B. The Text, Structure, And Context Of Title VII And The

15-Employee Requirement Demonstrate That The Re-

quirement Is Not Jurisdictional

To be sure, Congress’s constitutional authority to

“constitute Tribunals inferior to the supreme Court”

(U.S. Const. Art. I, § 8, Cl. 9) authorizes it to restrict the

' Although this Court has held that a suit may be dismissed for lack

of subject matter jurisdiction when the federal claims are immaterial or

frivolous, it has also questioned the accuracy of calling such dismissals

jurisdictional. See, ¢.g., Bell, 327 U.S. at 683 (citing Fair, 228 U.S. at

25). Because petitioner’s Title VII claim is neither immaterial nor

frivolous, this Court need not consider in this case whether or under

what circumstances such dismissals are truly jurisdictional.

lower courts’ subject matter jurisdiction based on a wide

variety of factors, some of which might also be relevant

to the merits of a case. See generally Palmore v. United

States, 411 U.S. 389, 400-401 (1973). For example, Con-

gress has provided that “(t]he admiralty and maritime

jurisdiction of the United States shall extend to and in-

clude all cases of damage or injury, to person or prop-

erty, caused by a vessel on navigable water.” 46 U.S.C.

App. 740 (emphasis added). Under that unusual provi-

sion, the proximate cause of the damage or injury is rel-

evant both to the federal courts’ jurisdiction and to ine

merits of a plaintiffs claim. Jerome B. Grubart, Inc. v.

Great Lakes Dredge & Dock Co., 513 U.S. 527, 536-537

(1995). See Mt. Healthy, 429 U.S. at 278-279 (holding

that 28 U.S.C. 1343, which grants federal courts juris-

diction over actions brought to redress the deprivation

of federal rights under color of state law, requires an

inquiry into “whether a statutory action had in fact been

alleged”); FDIC v. Meyer, 510 U.S. 471, 479 (1994) (not-

ing that the Federal Tort Claims Act, 28 U.S.C. 1346(b),

“describes the scope of jurisdiction by reference to

claims for which the United States has waived its immu-

nity and rendered itself liable”).

1. Nothing in Title VII, however, reflects an intent

to impose any limitations on Section 1331’s broad grant

of subject matter jurisdiction. Quite to the contrary,

Congress confirmed that “[eJach United States district

court and each United States court of a place subject to

the jurisdiction of the United States shall have jurisdic-

tion of actions brought under this subchapter [Title

VII.” 42 U.S.C. 2000e-5(f)(3). While that provision is

phrased slightly differently than Section 1331—it ap-

plies to actions “brought under” Title VII, while Section

1331 applies to actions “arising under” federal law—the

difference in phrasing is immaterial. As this Court ex-

plained in construing an analogous jurisdictional provi-

sion, the phrase “actions ‘brought under” a federal stat-

ute encompasses all “suits contending that [the statute]

contains a certain requirement.” Steel Co., 523 U.S. at

93 (quoting 42 U.S.C. 11046(c)). “Surely [petitioner] has

‘brought’ her action under Title VII, in the sense that

she has endeavored to plead that an employer covered

by Title VII has violated its prohibition.” Da Silva v.

Kinsho Int'l Corp., 229 F.3d 358, 365 (2d Cir. 2000).

That is not to say that Section 2000e-5(f)(3) is

surplusage. When Congress enacted that provision in

1964, Section 1331 conferred jurisdiction over claims

arising under federal law only when the amount in con-

troversy exceeded $10,000. 28 U.S.C. 1331(a) (1964).

Section 2000e-5(f)(3) therefore expanded the federal

courts’ jurisdiction to include all Title VII claims, with-

out regard to the amount in controversy. Now that Sec-

tion 1331 no longer contains an amount in controversy

requirement, the remaining effect of Section 2000e-

5(f)(3) is to confirm that Congress intended the federal

courts to have subject matter jurisdiction over all Title

VII claims, without limitation.

A contrary interpretation would be illogical. Every

action “brought under” Title VII necessarily alleges that

an employer (or other covered entity, such as a union or

employment agency) engaged in an unlawful employ-

ment practice. If the 15-employee requirement were

jurisdictional, then every other required element of the

plaintiffs case would presumably be jurisdictional as

well, including the other limitations on the definition of

employer, see 42 U.S.C. 2000e(b), all of the limitations

on the definitions of other covered entities, see 42 U.S.C.

2000e(c) and (d), proof that the employer or other cov-

ered entity engaged in an unlawfvl employment prac-

tice, see 42 U.S.C. 2000e-2, 2000e-3, and numerous other

matters. But just as in Steel Co., it would be “unreason-

able to read [the statute’s jurisdictional provision] as

making all the elements of the cause of action * * *

jurisdictional,” and thereby “turn every statutory ques-

tion * * * into a question of jurisdiction.” 523 U.S. at

90, 92.

This Court recognized as much in Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982), when it

held that another of Title VII’s statutory requirements,

the filing of a timely charge of discrimination with the

EEOC, “is not a jurisdictional prerequisite to suit in

federal court, but a requirement that, like a statute of

limitations, is subject to waiver, estoppel, and equitable

tolling.” This Court relied primarily on the absence of

any relevant limitation in the text of Title VII’s jurisdic-

tional provision:

The provision granting district courts jurisdiction

under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f), does

not limit jurisdiction to those cases in which there

has been a timely filing with the EEOC. It contains

no reference to the timely-filing requirement. The

provision specifying the time for filing charges with

the EEOC appears as an entirely separate provision,

and it does not speak in jurisdictional terms or refer

in any way to the jurisdiction of the district courts.

Id. at 393-394 (footnote omitted). In Yellow Freight

Systems, ’ wc. v. Donnelly, 494 U.S. 820, 825 (1990), this

Court similarly noted that the “plain text” of 42 U.S.C.

2000e-5(f)(3) “affirmatively describes the jurisdiction of

the federal courts,” and the Court relied primarily on

the absence of any limiting language in that provision in

holding that state courts have concurrent jurisdiction

with federal courts over Title VII claims. So too here,

nothing in Title VII’s broad jurisdictional provision lim-

its the courts’ subject matter jurisdiction based on any

element of the cause of action, much less the number of

a defendant’s employees.

2. It would be especially unreasonable to treat the

15-employee requirement as a question of subject mat-

ter jurisdiction in light of the structure of the relevant

provisions of Title VII. The 15-employee requirement is

set forth as one of several elements of the definition of

“employer,” which is included in the section of Title VII

entitled “Definitions.” 42 U.S.C. 2000e(b). Nothing in

the definition of “employer” refers in any way to the

“jurisdiction” of the courts, see ibid.; nor does Title

VII’s jurisdictional provision make any reference to the

term “employer,” see 42 U.S.C. 2000e-5(f)(3). Instead,

that term is relevant in this case because it is used in the

provisions of the statute defining “unlawful employment

practices” (42 U.S.C. 2000e-2, 2000e-3)—i.e., the sub-

stantive “rights or obligations of the parties,” which are

precisely what this Court has held to be non-jurisdic-

tional, Landgraf, 511 U.S. at 274; see pp. 8-9, supra.

More generally, a definitional section would be an

unlikely place to find a limitation on the courts’ subject

matter jurisdiction. That is particularly true in the case

of a statute that contains an express jurisdictional provi-

sion that does not use the defined word. See Kontrick v.

Ryan, 540 U.S. 443, 453 (2004) (holding that statutory

requirement was not jurisdictional, in part because

“(t]he provision conferring jurisdiction” made no refer-

ence to it); Verizon, 535 U.S. at 644 (holding that statu-

tory provision that did “not even mention subject-matter

jurisdiction” did not limit such jurisdiction).

3. Treating the 15-employee requirement as non-

jurisdictional not only represents the best reading of the

text, it also best accommodates the fact-intensive nature

of the inquiry. “[{I}]n most instances subject-matter ju-

risdiction will involve no arduous inquiry.” Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574, 587 (1999). The defi-

nition of “employer,” however, refers in relevant part to

a person who “has fifteen or more employees for each

working day in each of twenty or more calendar weeks

in the current or preceding calendar year.” 42 U.S.C.

2000e(b). As this case illustrates, that inquiry can be

factually complex. A court must decide not only how

many people worked at a company for 20 or more weeks

during a year, but also how many of those people are

considered “employees” under the act. See, eg.,

Clackamas Gastroenterology Assocs., P.C. v. Wells, 538

U.S. 440, 449-451 & n.10 (2003) (explaining how to deter-

mine whether shareholders and directors are employ-

ees). Resolution of those issues in this case required an

additional round of discovery, additional briefing, and a

further request by the district court for more informa-

tion. See p. 4, supra. The lower courts then applied

multiple multi-part tests to determine whether respon-

dent’s delivery drivers and owners were “employees,”

* Title VII contains a separate jurisdictional provision for suits

brought by the government to enjoin a pattern or practice of discri-

mination. 42 U.S.C. 2000e-6(b). Like 42 U.S.C. 2000e-5(f)(3), that

provision does not refer in any way to the definition of “employer.”

Instead, it broadly confers jurisdiction over all pattern-or-practice suits,

without limitation, by stating that “[d]istrict courts of the United States

shall have and shall exercise jurisdiction of proceedings instituted

pursuant to this section.” 42 U.S.C. 2000e-6(b).

and there was even a dispute about whether two of the

owners were in fact owners. See, e.g., Pet. App. 12, 16,

18-19.

It would make little sense to base the courts’ subject

matter jurisdiction on such complex factual issues.

“(Sjubject-matter delineations must be policed by the

courts on their own initiative even at the highest level.”

Ruhrgas, 526 U.S. at 583. Thus, treating the question as

jurisdictional “might in some cases require a federal

appellate court to dig through an extensive record, in-

cluding pay stubs and time sheets.” Nesbit v. Gears Un-

limited, Inc., 347 F.3d 72, 83 (3d Cir. 2003), cert. denied,

541 U.S. 959 (2004). As Judge Easterbrook noted for

the Seventh Circuit, the question whether a company

had 15 or more workers who qualified as “employees”

for each working day in 20 or more weeks in a calendar

year is “not the sort of question a court (including appel-

late court) must raise on its own” when the parties have

not raised or disputed the issue, “which a ‘jurisdictional’

characterization would entail.” Sharpe v. Jefferson

Distrib. Co., 148 F.3d 676, 678 (1998). |

Even in cases where the parties raise the 15-em-

ployee issue at the outset, it is far more practical for

courts to consider that issue along with the other factual

issues in the case, instead of as a threshold jurisdictional

matter. Because courts must address their subject mat-

ter jurisdiction before turning to the merits of a claim,

Steel Co., 523 U.S. at 94-95, “[t]o hold the requirement

jurisdictional * * * implies that a court would need to

decide whether an entity employed more than fifteen

individuals before reaching a Title VII action’s mer-

its—even if the merits were more easily resolved than

the ‘jurisdictional’ question.” Nesbit, 347 F.3d at 83.

Moreover, consolidated discovery and fact-finding on all

issues is far more efficient than threshold jurisdictional

proceedings on the 15-employee requirement, in part

because it would not necessitate successive rounds of

potentially duplicative discovery. That approach is also

more consistent with Congress’s conferral of the right to

a jury trial in Title VII cases, see 42 U.S.C. 1981la(c),

because jurisdictional facts are typically found by

courts, not juries, see Grubart, 513 U.S. at 537-538.

Treating the requirement as non-jurisdictional would

also prevent parties from belatedly raising the 15-em-

ployee requirement in response to an adverse decision.

That point is especially important in cases, like this one,

where the plaintiff alleged state law claims as well as a

Title VII claim, and the district court took supplemental

jurisdiction over the state law claims under 28 U.S.C.

1367. Based on its dismissal of the federal claim for lack

of jurisdiction, the district court vacated its judgment

not only on petitioner’s Title VII claim, but also on her

state law claims. Pet. App. 23; see 16 James Wm.

Moore’s Federal Practice § 106.66{1], at 106-86 to 106-87

(3d ed. 1997). As the district court recognized, that out-

come is “unfair” to the prevailing party and a “waste of

judicial resources.” Pet. App. 47. It also creates odd

incentives. In Da Silva, after the defendant unsuccess-

fully challenged the district court’s jurisdiction based on

the 15-employee requirement but ultimately prevailed

on the merits for other reasons, both parties switched

positions on appeal, with the plaintiff arguing that the

district court lacked jurisdiction and that the court’s

judgment on the state law claims should therefore be

vacated so that she could re-litigate them in state court.

229 F.3d at 361.

If the 15-employee requirement were truly jurisdic-

tional, it would also follow that the relevant time period

for measuring the defendant’s workforce would be the

time when jurisdiction is invoked, 7.e., the filing of the

suit, rather than the time period of the underlying con-

duct. See, e.g., Keene Corp. v. United States, 508 U.S.

200, 207 (1993); Minneapolis & St. Louis R.R. v. Peoria

& Pekin Union Ry., 270 U.S. 580, 586 (1926). But such

a rule would make little sense, and “[c]ourts consistently

have held that” the definition of employer “refers to the

year in which the alleged discrimination occurred.”

Komorowski v. Townline Mini-Mart & Rest., 162 F.3d

962, 965 (7th Cir. 1998); accord Barbara Lindemann &

Paul Grossman, Employment Discrimination Law 1307

(3d ed. 1996). If the 15-employee requirement were ju-

risdictional, and thus measured at the time of a suit’s

filing, employers could eliminate potential liabilities sim-

ply by reducing their workforce. Indeed, the very act of

firing the fifteenth employee for an unlawful reason

could exempt the employer from liability if it did not fill

the position before a suit was filed.

It would have been quite strange for Congress to

have created such a scheme in the context of a statute

designed to provide a remedy for aggrieved employees.

“Congress of course did not create such a strange

scheme.” Steel Co., 523 U.S. at 93. To the contrary,

Congress required that Title VII cases be “in every way

expedited,” not hampered with cumbersome jurisdic-

tional rules. 42 U.S.C. 2000e-5(f)(5) (emphasis added).

The statutory text, structure, and context make clear

that the 15-employee requirement does not limit the

courts’ subject matter jurisdiction.

C. Neither Respondent Nor The Courts Of Appeals That

Have Held The Issue To Be Jurisdictional Have Ad-

vanced A Persuasive Reason For Their Conclusion

The court of appeals did not provide any reasoning in

support of its contrary conclusion. Instead, it consid-

ered itself bound by circuit precedents that themselves

lacked any reasoning on the relevant point. See Pet.

App. 7-9 (citing Greenlees v. Eidenmuller Enters., Inc.,

32 F.3d 197, 198 (5th Cir. 1994); Womble v. Bhangu, 864

F.2d 1212, 1213 (5th Cir. 1989); Dumas v. Town of Mt.

Vernon, 612 F.2d 975, 980 (5th Cir. 1980)).

Nor have the decisions of the other courts of appeals

that have held the requirement to be jurisdictional been

long on analysis—a point frequently noted by the courts

of appeals that have held the requirement not to be ju-

risdictional. See, e.g., HEOC v. St. Francis Xavier Paro-

chial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (noting

that “none of the courts has explained why the question

is jurisdictional,” and holding that it is not jurisdic-

tional); Nesbit, 347 F.3d at 80-81 (same); Da Silva, 229

F.3d at 364 (same). What little reasoning those courts

have provided is unpersuasive.

1. The Eleventh Circuit stated that the 15-employee

limitation is jurisdictional because it “addresses whether

Title VII applies in this case.” Scarfo v. Ginsberg, 175

F.3d 957, 961 (1999), cert. denied, 529 U.S. 1003 (2000).

The Tenth Circuit similarly held that a comparable re-

quirement in the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. 12101 et seq., is jurisdictional because

it “is directed to whether the defendant falls within the

statute.” Trainor v. Apollo Metal Specialties, Inc., 318

F.3d 976, 978 n.2 (2002). Those rationales are unavailing

because whether a statute applies to a particular case or

defendant turns on the scope of conduct the statute pro-

hibits and the scope of the private right of action it

authorizes—considerations that are generally part and

parcel of whether the plaintiff can state a valid cause of

action, not whether the courts have subject matter juris-

diction.

“(The scope of the * * * right of action * * * goes

to the merits” of a claim, not the courts’ jurisdiction to

adjudicate it. Steel Co., 523 U.S. at 92; see id. at 96; pp.

8-10, supra. In keeping with that principle, this Court

has held that a variety of issues relevant to the “applica-

bility” of a statute do not affect the courts’ subject mat-

ter jurisdiction, including: whether the Jones Act ap-

plies to actions by alien seamen against foreign defen-

dants, Romero, 358 U.S. at 357-359; Lawritzen, 345 U.S.

at 573-575; whether a crime occurred on Indian land,

Louie v. United States, 254 U.S. 548, 550-551 (1921); and

whether transactions occurred in interstate commerce,

Binderup, 263 U.S. at 305-306, 309.

Just as subject matter jurisdiction does not ordi-

narily turn on the “applicability” of a statute to a partic-

ular case, so too it does not ordinarily turn on whether

a defendant is subject to suit. This Court has held, for

example, that whether a defendant is a “person” subject

to suit under 42 U.S.C. 1983 is not a question of subject

matter jurisdiction under 28 U.S.C. 1331. Mt. Healthy,

429 U.S. at 277-279. Similarly, “[w]Jhether [a statute]

exempts the Postal Service from [judicial] review” is

non-jurisdictional, because it is “in essence a question

whether Congress intended to allow a certain cause of

action against the Postal Service,” and “{w]hether a

cause of action exists is not a question of jurisdiction.”

Air Courier Conf. of Am. v. American Postal Workers

Union, 498 U.S. 517, 523 n.3 (1991).* See 2 James Wm.

Moore’s Federal Practice § 12.30[2], at 12-36 (3d ed.

1997) (“Subject matter jurisdiction in federal-question

cases is sometimes erroneously conflated with a plain-

tiff’s need and ability to prove the defendant bound by

the federal law asserted as the predicate for relief—a

merits related determination.”) (citing St. Francis Xa-

vier, 117 F.3d at 622-624).

That is not to say that Congress lacks authority to

base a grant of subject matter jurisdiction on such fac-

tors. Subject matter jurisdiction can and does turn in

appropriate cases on whether the United States is a

party, see, e.g., 28 U.S.C. 1345, 1346; whether the defen-

dant is a foreign state or member of a foreign mission,

see 28 U.S.C. 1330(a), 1351; or whether the parties are

citizens of different States, see 28 U.S.C. 1332(a). More-

over, “[w]hen the United States consents to be sued, the

terms of its waiver of sovereign immunity define the

extent of the court’s jurisdiction.” United States v.

Mottaz, 476 U.S. 834, 841 (1986).

But the Tenth and Eleventh Circuits erred to the

extent that they suggested that questions regarding the

“applicability” of statutes or the classes of people who

may be sued under them are necessarily jurisdictional,

and nothing in Title VII expresses an intent to limit the

courts’ subject matter jurisdiction on that basis. See pp.

12-16, supra. Under Title VII, “[a] plaintiff's inability to

demonstrate that the defendant has 15 employees is just

* This Court has repeatedly held that whether a statute creates a

private right of action is a merits, not a jurisdictional, inquiry. %.y.,

Verizon, 535 U.S. at 642-643; Owasso Indep. Sch. Dist. v. Falvo, 534

U.S. 426, 430-431 (2002); Northwest Airlines, Inc. v. County of Kent,

510 U.S. 355, 365 (1994); Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979);

Duke Power, 438 U.S. at 71.

like any other failure to meet a statutory requirement.”

Sharpe, 148 F.3d at 677.

2. Although the D.C. Circuit held an analogous pro-

vision of the ADA to be non-jurisdictional, St. Francis

Xavier, 117 F.3d at 623-624, one judge disagreed with

that conclusion and stated, in a separate concurring

opinion, that “[wJhile it is true * * * that nothing in

Title VII (or the ADA) expressly limits the district

court’s subject matter jurisdiction, to me it is more im-

portant that nothing in Title VII or the ADA extends the

district court’s jurisdiction to cases not involving the

requisite number of employees,” id. at 626.

However, 42 U.S.C. 2000e-5(f), like 28 U.S.C. 1331,

expressly extends the federal courts’ subject matter

jurisdiction to include all Title VII claims. See pp. 12-

14, supra. Absent some basis for limiting that express

grant of subject matter jurisdiction (and there is none

here), the federal courts have jurisdiction to adjudicate

all such claims, including claims that lack merit under

the 15-employee requirement.

3. In the course of holding that the 15-employee re-

quirement is not jurisdictional, the Third Circuit stated

that “[pljerhaps the most plausible reason for finding

that the * * * requirement is jurisdictional is that it

concerns a ‘dispute[] as to the existence of a fact that is

essential to a constitutional exercise of Congress’s

power to regulate.” Nesbit, 347 F.3d at 81 (quoting Da

Silva, 229 F.3d at 363). As the Third Circuit recognized,

however, that argument is “unconvincing” for two inde-

pendently sufficient reasons. /d. at 82.

First, Congress did not base its authority to enact

Title VII on the 15-employee requirement. Instead, the

definition of “employer” also requires that the defendant

be “in an industry affecting commerce.” 42 U.S.C.

2000e(b). That requirement invokes Congress’s consti-

tutional authority under the Commerce Clause, U.S.

Const. Art. I, § 8, Cl. 3, without regard to whether an

employer has 14, 15, or 16 employees. See generally

EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 253 (1991)

(recognizing that Title VII is one of “[m|Jany acts of Con-

gress [that] are based on the authority of that body to

regulate commerce among the several States”). *

Second, even those matters that are essential to Con-

gress’s authority to enact legislation speak only to Con-

gress’s legislative jurisdiction, not the courts’ subject

matter jurisdiction. “‘|T]he authority of a state to make

its law applicable to persons or activities, * * * is

* Two House members stated, in the course of opposing the entire

Civil Rights Act of 1964, that “(tJhe bill proceeds upon a theory * * *

that the quantum of employees is a rational yardstick by which the

interstate commerce concept can be measured.” H.R. Rep. No. 914,

88th Cong., Ist Sess. 2475 (1963) (separate minority views of Reps. Poff

and Cramer). Taken as a whole, the legislative history does not support

that statement. Instead, the floor debate that preceded the enactment

of Title VII, as well as the floor debate that preceded Congress’s

reduction of the employee minimum from 25 to 15 in the Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 2, 86 Stat.

103, suggests that some Members were concerned that including all

small businesses in the scope of Title VII would impose bureaucratic

and litigation costs that small companies could not bear, would unfairly

intrude in the culture of small businesses, especially ethnic businesses,

and would make full enforcement of the bill impractical. See, e.g., 110

Cong. Rec. 13,085, 13,092 (1964) (Cotton); 118 Cong. Rec. 2388-2390

(1972) (Stennis); id. at 2391-2394 (Cotton); id. at 2409-2411 (Fannin).

“Thus, the fifteen-employee threshold appears to be motivated by

policy—to spare small companies the expense of complying with Title

Vil—rather than Commerce Clause considerations.” Nesbit, 347 F.3d

at 82; ef. Clackamas, 538 U.S. at 447 (explaining that the comparable

employee threshold in the ADA was intended to “eas/e] entry into the

market and preserv(e] the competitive position of smaller firms”).

quite a separate matter from ‘jurisdiction to adjudi-

cate.” Hartford Fire Ins. Co. v. California, 509 U.S.

764, 815 (1993) (Scalia, J., dissenting) (quoting 1 Re-

statement (Third) of Foreign Relations Law of the

United States 231 (1987)); see generally Restatement

(First) Conflict of Laws § 60 (1934) (discussing legisla-

tive jurisdiction). Such matters “raise a question, not of

the jurisdiction of th[e] court, but of the jurisdiction of

the United States.” Lowie, 254 U.S. at 550; see Nesbit,

347 F.3d at 82 (“Elements of a claim that are called ju-

risdictional because they relate to Congress’s jurisdic-

tion remain quesuions of the merits.”) (quoting Kulick v.

Pocono Downs Racing Ass’n, 816 F.2d 895, 898 (3d Cir.

1987)).

Thus, this Court has treated as non-jurisdictional the

interstate commerce element of a federal cause of ac-

tion, Binderup, 263 U.S. at 305-306, 309, and a

statutorily-required nexus to Indian land, Lowie, 254

U.S. at 550-551. In criminal cases, the interstate com-

merce element is routinely determined by juries, not

judges, precisely because it is not jurisdictional. See,

e.g., Martin v. United States, 333 F.3d 819, 820 n.2 (7th

Cir.), cert. denied, 540 U.S. 1083 (2003); United States

v. Ryan, 41 F.3d 361, 363 (8th Cir. 1994) (en banc), cert.

denied, 514 U.S. 1082 (1995). Thus, even if (contrary to

fact) Congress had rested its authority to enact Title

VII on whether a defendant had a particular number of

qualifying employees, that question of legislative au-

tho. ity would not be relevant to the courts’ subject mat-

ter jurisdiction.

4. Respondent has argued (Br. in Opp. 1) that “this

Court has already indicated that [the 15-employee] limi-

tation is a jurisdictional requirement.” Although this

Court’s precedents contain scattered references to the

term “jurisdiction” in connection with Title VII’s defini-

tion of “employer,” this Court has never held that the

definition limits the courts’ subject matter jurisdiction.

See Nesbit, 347 F.cd at 82-83.

“‘Jurisdicticn,’ the Court has aptly observed, ‘is a

word of many, too many, meanings.” Kontrick, 540 U.S.

at 454 (quoting Steel Co., 523 U.S. at 90); see ibid.

(“Courts, including this Court * * * have been less

than meticulous” in their use of “the term ‘jurisdic-

tional.’”). At times, the courts have engaged in “profli-

gate use” of that term. Carlisle v. United States, 517

U.S. 416, 435 (1996) (Ginsburg, J., concurring) (quoting

Center for Nuclear Responsibility, Inc. v. United States

Nuclear Regulatory Comm’n, 781 F.2d 935, 945 n.4

(D.C. Cir. 1986) (Ginsburg, J., dissenting)).

Moreover, this Court has “often said that drive-by

jurisdictional rulings * * * have no precedential ef-

fect.” Steel Co., 523 U.S. at 91. That follows a fortiori

for offhand characterizations of an issue in dictum.

Only when a court squarely confronts and decides a ju-

risdictional question does its decision have precedential

effect on that question. See, e.g., FEC v. NRA Political

Victory Fund, 513 U.S. 88, 97 (1994). In Zipes, this

Court therefore declined to follow its previous decisions

referring to Title VII’s timely-filing requirement as “ju-

risdictional,” in part because “the legal character of the

requirement was not at issue in those cases.” 435 U.S.

at 395.

This Court’s cases discussing the definition of “em-

ployer” are even less relevant than those the Court held

not to be controlling in Zipes. In Walters v. Metropoli-

tan Educational Enterprises, Inc., 519 U.S. 202, 204

(1997), this Court considered the question whether “an

employer ‘has’ an employee on any working day on

which the employer maintains an employment relation-

ship with the employee.” The Court never stated that

the issue was jurisdictional, or eve. considered whether

it was jurisdictional. Respondent is correct (Br. in Opp.

2) that the Court reversed a decision of the court of ap-

peals that had affirmed a decision of the district court

dismissing for lack of subject matter jurisdiction. 519

U.S. at 204-205, 212. But the Court’s tacit acceptance of

the procedural posture had no effect on the proceedings,

and thus cannot be considered a precedent on that point.

See Steel Co., 523 U.S. at 91 (declining to follow case

treating issue as jurisdictional because nothing “turned

upon whether [the issue] was technically jurisdictional”

in that case).”

Respondent argues (Br. in Opp. 2-3) that the Walters

Court must have concluded that the requirement is ju-

risdictional because it held that the defendant had more

than 15 employees under the correct legal standard,

instead of remanding for consideration by the trier-of-

fact. But the parties to that case apparently stipulated

to ail relevant facts, leaving no factual disputes for a

trier-of-fact to resolve on remand, regardless of whether

the question was jurisdictional. See 519 U.S. at 212.

In EEOC v. Commercial Office Products Co., 486

U.S. 107, 119 n.5 (1988), a case that did not involve the

15-employer requirement, a plurality of this Court re-

marked that “[rjeactivation of state proceedings after

the conclusion of federal proceedings serves [a] useful

” In Hishon v. King & Spalding, 467 U.S. 69, 73 n.2 (1984), the Court

expressly found it unnecessary to decide whether a Title VIT claim

should have been dismissed for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6), instead of for lack of jurisdiction under

Federal Rule of Civil Procedure 12(b)(1), because, as in Walters,

nothing turned on the distinction in that case.

function,” in part because “Title VII does not give the

EEOC jurisdiction to enforce the Act against employers

of fewer than 15 employees.” That offhand reference to

“jurisdiction” is not only passing dictwm in a footnote of

a plurality opinion, it addresses only the relative admin-

istrative jurisdictions of the EEOC and the state agen-

cies. It says nothing about the courts’ subject matter

jurisdiction, which was not at issue in that case.

Finally, this Court’s decision in EEOC v. Arabian

American Oil Co., describes as “jurisdictional” the por-

tion of the definition of “employer” that requires that

the defendant be “engaged in an industry affecting com-

merce.” 499 U.S. at 249, 253. The Court’s opinion

makes clear, however, that it was referring to Con-

gress’s “legislative jurisdiction” to regulate interstate

commerce under the Commerce Clause (id. at 253), not

the courts’ subject matter jurisdiction to entertain Title

VII claims. See Hartford Fire, 509 U.S. at 813 (Scalia,

J., dissenting). As explained above, those are distinct

inquiries (see pp. 24-25, supra), and nothing in Arabian

American Oil Co. even addresses the courts’ subject

matter jurisdiction, let alone holds that the 15-employee

requirement limits that jurisdiction.”

" The committee reports accompanying the 1972 amendments to

Title VII, which reduced the required number of employees from 25 to

15 (see p. 24 note 4, supra), sometimes refer to that change as an

expansion of “jurisdiction.” See, e.g., H.R. Rep. No. 238, 92d Cong., Ist

Sess. 7, 20(1971);S. Rep. No. 415, 92d Cong., Ist Sess. 9,32 (1971). The

reports are not clear as to whether the references are to legislative or

subject matter jurisdiction. Those same reports and the conference

report also refer, however, to the amendment as an expansion of Title

VII's “coverage,” which seems inconsistent with the latter view. See,

e.y., H.R. Rep. No. 238, supra, at 1;S. Rep. No. 415, supra, at 2, 8, 35;

S. Rep. No. 681, 92d Cong., 2d Sess. 15 (1972) (conference report). In

any event, just as passing statements by this Court referring to an issue

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

Eric S. DREIBAND

General Counsel

VINCENT J. BLACKWOOD

Acting Associate General

Counsel

CAROLYN L. WHEELER

Assistant General Counsel

JENNIFER S. GOLDSTEIN

Attorney

Equal Employment

Opportunity Commission

AUGUST 2005

PAUL D. CLEMENT

Solicitor General

BRADLEY J. SCHLOZMAN

Acting Assistant Attorney

General

DARYL JOSEFFER

Assistant to the Solicitor

General

DENNIS J. DIMSEY

LINDA F. THOME

Attorneys

as “jurisdictional” do not have precedential significance (see p. 26,

supra), so too Congress’s passing use of that term in legislative history

does not govern the question, especially given the inconsistent

treatment of the provision in the legislative history.

@ beer

No. 04-944

In the

Supreme Court of the Anited States

JENIFER ARBAUGH,

Petitioner,

Y & H CORPORATION, D/B/A THE MOONLIGHT CAFE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE STATES OF ALABAMA, COLORADO,

DELAWARE, FLORIDA, HAWAII, KANSAS, OHIO,

OREGON, UTAH, AND WYOMING AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, Alabama 36130-0152

October 27, 2005 (334) 242-7401

(Additional counsel for amici curiae are listed inside the front cover.)

Wilmington, DE 19801

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

STATE OF FLORIDA

The Capitol PL-01

Tallahassee, FL 32399-1050

MARK J. BENNETT

ATTORNEY GENERAL

STATE OF HAWAII

425 Queen Street

Honolulu, HI 96813

PHILL KLINE

ATTORNEY GENERAL

STATE OF KANSAS

120 S.W. 10th Avenue

Topeka, KS 66612-1597

JIM PETRO

ATTORNEY GENERAL

STATE OF OHIO

30 E. Broad Street

17th Floor

Columbus, OH 43215

ADDITIONAL COUNSEL

JOHN W. SUTHERS HARDY MYERS

' ATTORNEY GENERAL ATTORNEY GENERAL

STATE OF COLORADO STATE OF OREGON

1525 Sherman Street 1162 Court Street N.E.

7th Floor Salem, OR 97301

Denver, CO 80203

; MARK L. SHURTLEFF

M. JANE BRADY ATTORNEY GENERAL

ATTORNEY GENERAL STATE OF UTAH

STATE OF DELAWARE Utah State Capitol

820 N. French Street Complex

East Office Bldg., Suite 320

Salt Lake City, UT 84114-

2320

PATRICK J. CRANK

ATTORNEY GENERAL

STATE OF WYOMING

123 State Capitol

Cheyenne, WY 82002

QUESTION PRESENTED

Section 701(b) of Title VII of the 1964 Civil Rights Act

applies the Title VII prohibition against employment dis-

crimination to employers with fifteen or more employees.

Does this provision limit the subject matter jurisdiction of

the federal courts, or does it only raise an issue going to the

merits of a Title VII claim? See Pet. ati.

TABLE OF CONTENTS

ee Baa FN IIE vr ectannndacicrvnanioniscabananeninioveronitncncbeseitin i

CED Fa FEI Ei iv cicavicrvesesevavinnsnsncsennsennininniguecceiuianes iv

re ae erect i cecinesivectnncaesiceishsncthinstditomapactneneniaeseii 1

SUMMARY OF ARGUMENT ........:::0cscscscssscssssscsssssssssseosesosnsnees 2

FTE ihesbditebieinacssctecksesecidinaviitineitemiteiibiecssivibniideibesterensecsita 3

I. The Text and Structure of Title VII Demonstrate

That Employee Numerosity Is Jurisdictional. ................... 6

A. Numerosity Is a Necessary Precondition to Title

VII's Applicability and Is Thus Categorically

Different From Ordinary Merits Issues. .................00+ 7

B. Where a Federal Statute Is by Its Plain Terms

Categorically Inapplicable, Jurisdiction Is

RIN, acsstnssipaiineciitinnniontinsictnamuvineincetpiietaninpesitiaitaits 8

C. The Placement of the Numerosity Requirement

in the “Definitions” Provision Does Not

Diminish Its Jurisdictional Character.....................+- 11

D. Steel Co. Does Not Support Petitioner’s Merits-

Based Understanding of Numerosity. ..............:+0+0-++. 13

Il. The Legislative History Confirms That Employee

Numerosity Is Jurisdictional. .............cssesessssseeeesesceeeseeeees 14

Ili. Canons of Statutory Interpretation Indicate That

Employee Numerosity Is Jurisdictional. ..............:::::0-0+ 16

IV. The Consistent Treatment of Employee Numerosity

as Jurisdictional Has Validated Congress’ Intent. .......... 18

A. This Court Has Consistently Treated

Numerosity as a Jurisdictional Requirement............ 19

B. The EEOC Has Consistently Treated Numerosity

as a Jurisdictional Requirement. ...............:.::::+e+sse00 23

ili

V. Considerations of Sound Public Policy Counsel a

Jurisdictional Understanding of Numerosity...............+.- 25

1. The Incentive To Sandbag. ............csssscsesesessnseeneeeeenes 25

2. Complex = Non-Jurisdictional. .........c.cc:cscssesesesseeeeeseees 26

D. Sean Sposwbe Considerathaan, .....cccersescvecvssssessvassesebentonvenees 27

4. The Ease of Addressing Other Issues First. ................ 28

5. Burdening State Courts with Federal Rules. .............. 29

6. The Specter of Strategic Firings. ...........:ccsccseseseseeseseeees 30

7. CME TRORROGIRD, onccinesitsnaisensessrsseccsieestilaiednsntpbteniuatiabneitiin 30

IN ne sesscsncsrssersisciesharssnriscinclintsetiteeamesigulesaiidaiaedies 30

TABLE OF AUTHORITIES

Cases

Aldinger v. Howard, 427 U.S. 1 (1976) .......ccccceceeeseesens 4,9,10,14

Alexander v. Sandoval, 532 U.S. 275 (2001) ............0s0000+ inhabit 18

Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 1983) ................ 17

Boureslan v. Aramco, 653 F. Supp. 629 (S.D. Tex. 1987).......... 20

Cannon v. University of Chicago, 441 U.S. 677 (1979).............+. 18

Childs v. Local 18, Int'l Bhd. Of Elec. Workers, 719 F.2d

IN SUIT iticsicichchsihcepnniteesannencesiigssisiosuntsitpigetininbaniieges 17

City of Kenosha v. Bruno, 412 U.S. 507 (1973) ........cccccccceseseseeenes 9

Dumas v. Town of Mount Vernon, 612 F.2d 974 (5th

Se ching iiecnetncisnersicntcinictnigiennbtitslensbentapeandnnicscninianmanini 17

EEOC v. Arabian American Oil Co., 499 US. 244

Senet ckaisDethnibiceissacdninchnaiuitiapansbechiontqhbipeiniactiiceateenatielen 20, 22, 23

EEOC v. Commercial Office Prod. Co., 486 U.S. 107

Sil siiscntihisinceatiiiiatimbmnntantnes icepenterttebsaninnieinitainatia 19, 20, 22

EEOC »v. St. Francis Xavier Parochial Sch., 117 F.3d 621

Send a CII i iigcecinincneetptarntsinonitinsdeivnicdlciaitiontsevesbiiaytnsmaleniahiintd 3

EEOC v. The Chicago Club, 86 F.3d 1423 (7th Cir. 1996).......... 17

Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86 (1973) ..........000000 23

Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256

SEE SUN Sesaciiscsiensenintectinanicinnesninenintbinininntaiaeneaiieuisieee 17

General Elec. Co. v. Gilbert, 4229 U.S. 125 (1976)............ccccceeeee 23

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) .....11, 21

Hishon v. King & Spalding, 467 U.S. 69 (1984) ............++ passim

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375

UE isd ceilinineneailiepinttitanienincmnsitgeenientenapiyehebnteinamnanesyiantin 3, 28

Kontrick v. Ryan, 540 U.S. 443 (2004) .........cecceecceseneceeeneneee 4,13

Laurie v. Alabama Ct. of Crim. Apps., 256 F.3d 1266

CG Ba cotsesinencnitencentisinamnthaercsinemnahrncenneinnstnncitiitcenatanniat 1

Lauritzen v. Larsen, 345 U.S. 571 (1953) .......cccccceecseseseereneseenenes 10

Lorillard v. Pons, 434 U.S. 575 (1978).........cccecssecseseseseeeeeeeees 17, 18

Lyes v. Riviera Beach, 166 F.3d 1332 (11th Cir. 1999) (en

i eibchectnnitlntichetateccinesdpsntinnebinennshiteintaniiisitiaitatianinpnenntaitinaned 1,17

Martin v. United Way of Erie County, 829 F.2d 445 (3d

Se Pi veeiscliciliiainibcatitianensistitininsensciicnpatunicaaliatitteatnininnadadeictins 17

McBee v. Delica, Ltd., 417 F.3d 107 (1st Cir. 2005) ............000000+ 21

McDonald v. Mabee, 243 U.S. 90 (1917) .....ccccccsessescssseeeeseersreseeees +

McKenzie v. Davenport-Harris Funeral Home, 834 F.2d

ee Se rcidttcnerretsemncsccssctenicicniitintetenntiamacmnntiiiaeen 17

Miller v. Maxwell's Int'l Inc., 991 F.2d 583 (9th Cir.

et tnd specsnicceniphineetaineinesbecrincibicenstecinstenppenedatnsennanttgheieemsansdiinies 15

Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977) 8, 9, 10

Nesbit v. Gears Unlimited, Inc., 347 F.3d 72 (3d Cir.

RU aise dciieettiaiasesnlintenainiinentbiathinbiaceeetectensintanten 19, 27

Owens v. Rush, 636 F.2d 283 (10th Cir. 1980) ...........ccccccceceseees 17

Pace v. DiGuglielmo, 125 S. Ct. 1807 (2005) ..........ceceseceeeneeeeees 27

Palmore v. United States, 411 U.S. 389 (1973) ..........ccccscccceeeeeees 11

Papa v. Katy Indus., Inc., 166 F.3d 937 (7th Cir. 1999)...1, 15, 26

Romero v. International Terminal Operating Co., 358

SF ee recnsscinieicicullindinsidusmeemaacveiuaiininceasesinbeinineneniiian 10

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) ......... 4, 27

Scarborough v. Principi, 541 U.S. 401 (2004) ............cccceseseees 4,13

Steel Co. v. Citizens for a Better Environment, 523 U.S.

a GUI nce trcnessvensttsiitensnvenncilacsastnsesiatinmmesinimmatannanes passim

Thurber v. Jack Reilly's, Inc., 717 F.2d 633 (1st Cir.

OUI xrevctsasonnavscnviinionntasniacisetntesitapesbnssenuiticienstnsbeeneninensaneuesiitte 17

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) ..........:0:0+000 15

United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d

942 (7th Cir. 2003} (em banc) .............ccscscsseeseeessecesensenees 11, 21

Vermont Agency of Nat. Resources v. United States, 529

SFR, PP I cricttisinicancnccdbnsisiivsbinibnitndpiihcnnictginiibaeicimensitat 4

Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202

IGP cevsniceseanntcecgsteniatinrannssninssbctpsestsediininicianii 21, 22, 24, 26

Zimmerman v. North Am. Signal Co., 704 F.2d 347 (7th

i RII caret ccscnsindbcensecsesvcinninieseessitirininitieiatinadinislidanieseytiac 17

' Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)11, 12, 13

Statutes

AP ies (RIED crenerecnepeivecnremnimsneinesintinepesintemmnaaenmmammnneitind 8

Bae Wigs RIED scncnepncinasseniscnsinniigsernbiteeiialiiidibtinibendimannaineinten 9

Americans With Disabilities Act of 1990, 42 U.S.C.

Re COI cccscctscisisinticnnivstninsseinntiyicinipinaiimmonniiniiivennas 16, 17

Fa necsrcranncteinte tecininioincnaamsmaetis 16

Fee cetecrcsisisinitistinttcrtctinnininanitntainnisiinenannns 17

Civil Rights Act of 1964, Title VII, 42 U.S.C. §2000e et

OU. sccncescsscaneceusseunasssncaseoessnncnnespsnesator.~ , <onitaliaetdineiasinaniie passim

Section 701(b), 42 U.S.C. §2000e(b)..............eseeeseeees passim

Section 703(a), 42 U.S.C. §2000e-2(a)...........ccesseeeeeneees 6, 7,8

Section 704(a), 42 U.S.C. §2000e-3(a) ........-..ecccceeceeceeeeseneees 22

Section 706(a), 42 U.S.C. §2000e-5(a)..........----...0++: 12, 19, 20

Section 706(f), 42 U.S.C. §2000e-5S(f) ..........cececcceceseees passim

Vii

Other Authorities

H.R. Rep. No. 92-238, reprinted at 1972 U.S.C.C.A.N.

Se CT sacipitctieecatcestsianinddnsenesnannctitnnecsienpiceetiinenctesnitintnpsionicin 14

TR BO SE Cy BD ocrcccecsccnnescnpesiomneecesancemoseranisenseensuinnsnets 14

120 Cong, Rac. ISGBB (2969) q2...-.0.0c0escocesscerersscscesesossscsssensoseosons 15

SR Comat Be, Tee Ce cecrc cnc censccncvesinescsntstavenrsninseanenasssniete 15

TBD Conran, Game, Tae Cae ce cecescinacsciectnscennnizneninnsiganincniiontostons 15

Subcomm. on Labor of the Comm. on Labor and

Public Welfare, Legislative History of the Equal

Employment Opportunity Act of 1972 (1972) ........:cseseeseree0: 15

EEOC Compliance Manuaall................-cec-cecssssssssecsersosessoseses 23, 24

Enforcement Guidance on EEOC & Walters ov.

Metropolitan Educ. Enters., Inc., 117 S. Ct. 660

(1997), 1997 WL 33159164 (1997) ..........cccseseseeseesesssseereensess 24

Policy Guidance: Whether Part-Time Employees Are

Employees Within the Meaning of §701(b) of Title

VII and §11(b) of the ADEA, 1990 WL 1104704

FIDE cicsticinmasatiniteserempecepinicnicanetviniesletitiisistnebehcacsiiaiatnttandintiian 24

Commission Decision No. 77-32, 1977 WL 5352 (1977)........ 24

Commission Decision on Coverage of Contraception,

BO FU is BOGE EF CO eesevnenegscnncnenebsncncecenintinmscmninincsatenn 25

Brief for EEOC, EEOC v. Arabian Am. Oil Co., 499 US.

244 (Nos. 89-1838, 89-1845)..................ccsccscescersssccersorenssesere 20

Brief for Petitioner, EEOC v. Commercial Office Prods.

Co., 486 U.S. 107 (No. 86-1696) ...........ccccsssscessesssesesseserserees 20

Brief for EEOC, Walters v. Metropolitan Educ. Enters.,

Inc., 519 U.S. 202 (Nos. 95-259, 95-779) .........ceceececeneeeeeees 22

Brief for EEOC, Zipes v. Trans World Airlines, Inc., 455

US. 385 (Nos. 78-1545, 80-951) .............cccesresscescsereessosenres 12

Vili

State of Alabama, Personnel Department, "eport:

Employees by Agency and Employment Type July

i ctccdesistevievipiinttnenndhntniiedoeinienittesiiheabaatatshimiivitociintsnmin 1

C. Wright & A. Miller, Federal Practice & Procedure (2d

Eh, BOD cntiiinicterennahenetiitiiniminccnnmniniataaiianaicgeaiaeti 3, 29

C. Wright & A. Miller, Federal Practice & Procedure

EE A IUD scensniiienctiesnipvaieanininaniiateianiiiliiediimdantianigetinimie 5

Stefania A. Di Trolio, Comment, Undermining and

Unintwining: The Right to a Jury Trial and Rule

12(b)(1), 33 Seton Hall L. Rev. 1247 (2003) ............cecesseees 6

Jeffrey A. Mandell, Comment, The Procedural Posture

of Minimum Employee Thresholds in Federal

Antidiscrimination Statutes, 72 U. Chi. L. Rev. 1047

IUD sissoscisictinsejeqpibbericapsanbaavidniventjeneismistinitianbiniatids 17, 27, 29

INTEREST OF AMICI

State agencies and officers are subject to suit under Title

VII in the same manner as private defendants. States, how-

ever, are not treated as unitary “employer(s]” for Title VI

purposes. Rather, a State’s “own distinctions between its

governmental subdivisions” are presumptively respected as

part of its “ability to shape its own institutions within consti-

tutional bounds.” Lyes v. Riviera Beach, 166 F.3d 1332, 1344

(11th Cir. 1999) (en banc). Accordingly, when determining

how many employees a state “employer” has - and, in turn,

whether it is subject to Title VII at all - the unit of measure-

ment is not the State, as such, but, instead, the responsible

office or agency. See Laurie v. Alabama Ct. of Crim. Apps., 256

F.3d 1266, 1270-73 (11th Cir. 2001) (court, not State, was

“employer”); Oden v. Oktibbeah County, 246 F.3d 458, 465 (Sth

Cir. 2001) (sheriff, not county); Holman v. State of Indiana, 211

F.3d 399, 401 n.1 (7th Cir. 2000) (agency, not State).

Many state agencies, of course, have fewer than 15 em-

ployees and, accordingly, are categorically exempt from Ti-

tle VII. See, e.g., State of Alabama, Personnel Department,

Report: Employees by Agency and Employment Type (July 22,

2005). Not surprisingly, these same small state agencies of-

ten operate on shoestring budgets; they simply cannot afford

to litigate a Title VII case, the cost of which (verdict aside)

often runs into the hundreds of thousands of dollars. And,

indeed, it was precisely this “ potentially crushing expense” of

compliance and litigation that led Congress to exempt small

employers from Title VII's scope in the first place. Papa v.

Katy Indus., Inc., 166 F.3d 937, 940 (7th Cir. 1999) (Posner, J.).

Only a holding that Title VII's 15-employee threshold

limits courts’ subject-matter jurisdiction respects Congress’

clear intent to shield small employers from the burdens of

litigation. A jurisdictional understanding will enable a

judge to determine numerosity - and, thus, whether Title VII

applies at all - at the very outset of a case. By contrast, peti-

tioner’s position, under which the numerosity issue would

routinely be pushed deep into a case and tried to a jury

alongside ordinary merits questions, actually invites pro-

tracted litigation and thus subverts Congress’ intent.

SUMMARY OF ARGUMENT

This case is about who decides the numerosity ‘ssue, and

when. If, as Arbaugh claims, numerosity is just another

element of a Title VII claim, it is presumptively an issue for

the jury, and will oftentimes be decided late in a case. If, by

contrast, numerosity is jurisdictional, it can (and ordinarily

will) be decided by a judge at the very outset of litigation.

Because, relative to other issues in a Title VII case, numeros-

ity is remarkably straightforward - and, typically, objec-

tively verifiable - there is every reason to decide it promptly,

and no good reason to delay.

Congress’ clear intent in establishing the numerosity re-

quirement underscores the importance of deciding the issue

up front. Congress knew that most small employers simply

can’t afford the costs of litigating a Title VII case; accord-

ingly, it drew a bright line and categorically exempted em-

ployers with fewer than 15 employees from suit. Any rule

that subjects those same small employers to the burdens of

protracted litigation - as petitioner's merits-based view of

numerosity assuredly would - risks bankrupting small firms

and thus contravenes Congress’ intent.

Traditional indicia of statutory meaning demonstrate

that the numerosity requirement is jurisdictional. Text and

structure show that numerosity is distinct from ordinary

merits issues in that it is a necessary precondition to Title

VII's applicability in < writ-large sense. If numerosity is ab-

sent, Title VII does not apply at all, and plaintiff's case-specific

specific allegations are rendered irrelevant. This Court's

cases indicate that where, as here, a federal statute is by its

own terms categorically inapplicable, jurisdiction is lacking.

Title VII's legislative history confirms the numerosity re-

quirement’s jurisdictional character. Not only does the legis-

lative history repeatedly and expressly refer to numerosity

in “jurisdictional” terms, Fut it also reveals Congress’ intent

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