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

of the plaintiff's claim turns on an analysis of “[t]he

structure of Title VII, the congressional policy underlying it,

and the reasoning of [this Court's] cases.” See Zipes, 455

U.S. at 393. These considerations “all lead to this

conclusion” (ibid.): Section 701(b)’s 15-employee

requirement is jurisdictional.

Section 703(a) of Title VII, entitled “Employer practices,”

provides in relevant part:

It shall be an unlawful employment practice for an

employer —

(1) to fail to refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or

national origin.

42 US.C. § 2000e-2(a). Section 701(b) of Title VII in turn

provides that “[t]he 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 preceding calendar

year.” Id. § 2000e(b). Finally, § 706(f)(3) of the Act states in

relevant part that “[eJach United States district court ...

shall have jurisdiction of actions brought under this title.”

Id. § 2000e-5(f)(3).

The placement of the term “employer” in the preamble

to § 703—apart from the description of acts that trigger

liability —confirms that it is a threshold issue and distinct

from merits questions involving the defendant's conduct

toward the plaintiff. The determination whether the

defendant is an “employer” precedes any inquiry into

whether the defendant “discriminate[d]” against the

plaintiff. That is, before the court delves into merits issues

such as whether the plaintiff was subjected to

“discrimination,” whether the discrimination concerned

“compensation, terms, conditions, or privileges of

employment,” or whether the defendant discriminated

against the plaintiff “because of” her sex (or some other

prohibited reason), it must first determine that the

defendant is among the class of entities to whom the statute

applies. As this Court has elsewhere explained: when

Congress “expressly exempted ... small businesses” from

Title VII, it granted them “complete immunity” from Title

VII. Hishon, 467 U.S. at 78 & n.11 (emphasis added). This

immunity for small employers—including many, if not

most, municipal and county agencies — entails relief not only

from liability, but also from having to defend themselves on

the merits.

A. This Court’s Section 1983 Decisions

Confirm that in the Context of Federal Civil

Rights Legislation, Limitations on the Class

of Entities Subject to Liability Are

Jurisdictional.

This Court's decisions concerning 42 U.S.C. § 1983 and

28 U.S.C. § 1343, its jurisdictional partner, are instructive in

this regard. Section 1983 renders liable every “person” who,

under color of state law, deprives citizens of civil rights in

violation of the Constitution or federal law, and § 1343

grants federal district courts jurisdiction of civil actions

brought to redress such deprivations. This Court has read

the grant of subject matter jurisdiction in § 1343 to extend

only to cases in which the defendant is covered by § 1983.

1. In City of Kenosha v. Bruno, 412 U.S. 507 (1973), for

example, the Court considered whether § 1343 extended to

equitable § 1983 claims against cities. After reiterating that

§ 1983's definition of “person” did not cover municipalities,

the Court held that § 1343’s grant of subject matter

jurisdiction precisely tracked the scope of § 1983: Because

“Congress did not undertake to bring municipal

corporations within the ambit of § 1983,” “[t}]he District

Court was therefore wrong in concluding that it had

jurisdiction of appellees’ complaints under § 1343.” Id. at

513 (citation omitted).

Similarly, in Aldinger v. Howard, 427 U.S. 1 (1976), the

Court addressed whether § 1343 conferred subject matter

jurisdiction over a § 1983 claim against a county — which, like

a city, was not then a “person” subject to suit under § 1983.

The Court held that it does not, confirming that “the reach

of the statute conferring jurisdiction should be construed in

light of the scope of the cause of action as to which federal judicial

power has been extended by Congress.” Id. at 17 (emphasis

added). The Court further emphasized that jurisdictional

provisions should be read in light of “deductions which

may be drawn from congressional statutes as to whether

Congress wanted to grant this sort of jurisdiction to federal

courts.” Id. at 16-17. In sum, “Congress excluded [counties]

from liability in § 1983, and therefore by reference in the

grant of jurisdiction under § 1343(3).” Id. at 17.

The parallels between these § 1983 cases and the present

case are striking. There, as here, the threshold issue was the

meaning of terms (there “persons,” here “employers”) that

delimited the class of defendants who were properly subject

to federal civil rights legislation. There, as here, the

question was not whether the defendant's conduct violated

the terms of the statute, but whether the defendant was a

type of entity that Congress determined to regulate. There, as

here, the statutory provision delimiting the courts’ subject

matter jurisdiction (§ 1343(3)) was separate from the

substantive provision confining liability to certain parties

(§ 1983). There, as here, the jurisdictional provision

contained no explicit reference to the class of entities

covered by the statute. And there, as here, small state and

local agencies would have borne litigation burdens beyond

those that Congress intended if the Court had formalistically

held that the “person” limitation of the Civil Rights Act was

found only in § 1983—and thus could not be read to limit

subject matter jurisdiction under § 1343.

Just as the Court in City of Kenosha and Aldinger read

§ 1343 in light of § 1983, so should the Court read § 706(f)(3)

of the Civil Rights Act in light of § 701(b) of that Act. As the

Court explained in Aldinger, “[t]he question ... is whether

by virtue of the statutory grant of subject-matter

jurisdiction, ... Congress has addressed itself to the party as

to whom jurisdiction ... is sought.” 427 US. at 16

(emphasis added). If a defendant is not an “employer”

within the meaning of § 701(b), neither is a suit against the

defendant within the courts’ jurisdiction under § 706(f)(3).

The fact that “the 15-employee requirement is found in Title

VII's definition of ‘employer,” “but not in Title VII's

jurisdictional provision” (U.S. Br. 6), is immaterial under

these decisions.

2. Although the Solicitor General contends otherwise

(U.S. Br. 21), this Court’s decision in Mt. Healthy City Board of

Education v. Doyle, 429 U.S. 274 (1977), does not lead to a

different result. The plaintiff there asserted jurisdiction

under § 1343 as well as § 1331, and the Court did not need to

analyze subject matter jurisdiction under § 1343 because it

found jurisdiction under § 1331. See 429 U.S. at 278-279.

Indeed, citing City of Kenosha, the Court expressly observed

that “if this were a § 1983 action, brought under the special

jurisdictional provision of 28 U.S.C. § 1343 which requires

no amount in controversy, it would be appropriate to

inquire, for jurisdictional purposes, whether a statutory

action had in fact been alleged.” Ibid. Thus, Mt. Healthy is of

a piece with Aldinger and City of Kenosha—a fact confirmed

by this Court's statement just last Term that “Congress, in

enacting § 1343, had declined (albeit implicitly) to extend

federal jurisdiction over any party who could not be sued

10

under the federal civil rights statutes.” See ExxonMobil v.

Allapatah, 125 S. Ct. 2611, 2619 (2005).3

Petitioner and the United States suggest that if Title VII's

15-employee requirement goes to the courts’ subject matter

jurisdiction, the effect will be a slippery slope: “every other

required element of the plaintiff's case would presumably

be jurisdictional as well.” U.S. Br. 13; Pet. Br. 19. But as

these § 1983 cases recognize, the threshold question of

whether a statute applies to a certain class of defendants is not

like other garden-variety Title VII issues involving liability.

Where Congress excludes a class of entities from regulation,

that determination ordinarily ought to protect those entities

not only from liability for their conduct, but also from the

“potentially crushing expense” of extended discovery on the

whole range of fact-intensive issues that a Title VII suit

raises. See Papa v. Katy Indus., Inc., 166 F.3d 937, 940 (7th

Cir. 1999) (Posner, J.) As Congress recognized, this is

particularly true for small entities — including a host of state

and municipal agencies— whose very survival or ability to

provide public services may depend on their ability to avoid

the extraordinary costs of mounting a defense to fact-

intensive claims of discrimination.

As a practical matter, moreover, the question of whether

a party is within the class of entities covered by a statute can

be resolved relatively easily on a motion to dismiss or with

limited discovery. This is especially so with Title VII's

numerosity requirement. Whether an employer has an

“employee” for Title VII purposes is determined by the

“payroll method,” which simply inquires how many

persons appear on the payroll during the relevant time

period. See Walters v. Metropolitan Educ. Enters., Inc., 519

3 See also Finley v. United States, 490 U.S. 545, 573 (1989) (Stevens,

J., dissenting) (“Congress’ exclusion of municipal corporations

from the definition of persons under § 1983 .. . evinced an intent

to preclude the exercise of federal-court jurisdiction over them”).

11

U.S. 202, 206 (1997). The Court in Walters observed that

whether a defendant satisfies the numerosity requirement is

“readily demonstrated” by examination of the payroll, and

it rejected an alternative reading of Title VII's numerosity

requirement in part because it “would turn the coverage

determination into an incredibly complex and expensive

factual inquiry.” Id. at 206, 210 (emphasis added). Under

current precedent, then, whether a defendant has sufficient

employees to fall within Title VII's jurisdiction turns on a

straightforward assessment of the payroll: “all one needs to

know about a given employee for a given year is whether

the employee started or ended employment during that year

and, if so, when.” 519 US. at 211. The United States’

suggestion that the 15-employee inquiry is “fact-intensive”

(U.S. Br. 16) cannot be squared with this analysis, which it

ignores.

The nature of the court's factual inquiry into the number

of a defendant’s employees is wholly unlike that involved in

analyzing “the elusive factual question of intentional

discrimination.” See Burdine, 450 U.S. at 255 n.8. Merits-

related Title VII issues—such as whether the plaintiff

suffered adverse treatment “because of” her sex—are “both

sensitive and difficult,” since “[t]here will seldom be

‘eyewitness’ testimony as to the employer's mental

processes.” See Aikens, 460 U.S. at 716; see also Singfield v.

Akron Metro. Hous. Auth., 389 F.3d 555, 564 (6th Cir. 2004)

(observing that “an employer's true motivations are

particularly difficult to ascertain”). Understandably, then,

Congress made the courts’ subject matter jurisdiction under

Title VII turn on the discrete, objective, and “readily

demonstrated” threshold question of whether an employer

has 15 employees. Walters, 519 U.S. at 206.

3. Zipes is not to the contrary. Relying substantially on

the legislative history, the Court there held that “Congress

intended the filing period to operate as a statute of

limitations instead of a jurisdictional requirement.” 455 U.S.

12

at 394. That is not surprising. In contrast to statutory

questions concerning the class of entities covered by Title

Vil—which determines the availability of “complete

immunity” for small employers (Hishon, 467 U.S. at 78)—a

limitation period's applicability is “an area over which the

federal courts historically have asserted equitable discretion

to craft rules of tolling, laches, and waiver.” American

Trucking Ass‘ns, Inc. v. Smith, 496 U.S. 167, 221 (1990)

(Stevens, J., dissenting).

More importantly, the Court's overall analytical

approach in Zipes in fact supports affirmance here. Zipes

turned on an analysis of “[t}he structure of Title VII, the

congressional policy underlying it, and the reasoning of

[this Court's] cases.” 455 U.S. at 393. Each of those factors

supports a jurisdictional reading of the 15-employee

requirement. First, under the structure of Title VII, the

requirement is located in an independent clause (the

preamble), separate from the paragraph that establishes the

terms of liability. Second, the “congressional policy” behind

the requirement is to spare small employers the exorbitant

expense of defending fact ‘iitensive discrimination claims —

and that policy would be undermined by a nonjurisdictional

reading of § 701(b). See Part II, infra. Third, this Court's

§ 1983 decisions confirm that where Congress excludes a

class of entities from the federal civil rights laws, such

exclusions should ordinarily be viewed as jurisdictional.‘

4 The Solicitor General acknowledges that subject matter

jurisdiction “can and does ... turn in appropriate cases on

whether the United States is a party; whether the defendant is a

foreign state or member of a foreign mission; or whether the

parties are citizens of different States.” U.S. Br. 22 (citations

omitted). Thus, he rightly points out that many instances in which

the identity of the defendant is relevant to the courts’ subject

matter jurisdiction involve governmental defendants. But that does

not mean that cases against the government are the only cases in

which this is true. Contrary to the Solicitor General's assertion, no

13

B. The Canon that Statutes Should Be

Interpreted to Avoid Constitutional

Difficulties Resolves Any Doubt in Favor of

a Jurisdictional Reading of Title VII's 15-

Employee Requirement.

As demonstrated above, Title VII's 15-employee

requirement is most naturally read, both textually and in

light of Congress’s purpose to exclude small employers

from Title VII coverage, as a limitation on the subject matter

jurisdiction of the courts. But if there were any doubt on

this score, settled rules of statutory construction would

resolve that doubt in favor of a jurisdictional reading of

§ 701(b).

One such rule is that “[i]t is to be presumed that a cause

lies outside [the federal courts’] limited jurisdiction,” and

“the burden of establishing the contrary rests on the party

asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511

U.S. 375, 377 (1994). This canon is closely related to the

more general rule that “where an otherwise acceptable

construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such

problems unless such construction is plainly contrary to the

intent of Congress.” Edward |. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

“This cardinal principle . . . has for so long been applied by

this Court that it is beyond debate.” Ibid. The Court does

not assume that Congress casually “push[es] the limit of

congressional authority.” Solid Waste Agency of No. Cook

County v. United States Army Corps of Eng’rs, 531 U.S. 159,

173 (2001) (SWANCC). Thus, “[w]here an .. . interpretation

one is suggesting that “questions regarding the ‘applicability’ of

statutes or the classes of people who may be sued under them are

necessarily jurisdictional.” bid. But neither is it true that the

identity of the defendant, even if a private entity, is necessarily a

merits question.

14

of a statute invokes the outer limits of Congress’ power” or

raises “significant constitutional questions,” the Court

“expect[s] a clear indication that Congress intended that

result.” Id. at 172, 174.

These principles apply forcefully here. Congress relied

on its interstate commerce power as the constitutional basis

for enacting Title VII (see 42 U.S.C. § 2000e(b); U.S. Const.

art. |, §8, cl. 3; Pet. Br. 14 n.18), and it adopted Title VII's

employee numerosity requirement as a means of respecting

the limits of that power. The questionable constitutionality

of a broader reading of Title VII confirms that this Court

should read the 15-employee requirement as a jurisdictional

limitation rather than simply an element of the plaintiff's

cause of action.

1. It is well settled that Congress may not regulate

intrastate activities under the commerce power unless such

activities “substantially affect interstate commerce.”

United States v. Morrison, 529 U.S. 598, 609 (2000) (quoting

United States v. Lopez, 514 U.S. 549, 558-559 (1995)). During

the legislative debates concerning Title VII, numerous

members of Congress expressed the view that the statute

regulated activities lacking such an effect and that the

minimum-employee requirement was a vital proxy for the

required nexus with commerce. 5 As Representatives Poff

and Cramer expressed the point: “’[t]he bill proceeds on 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. (1963)

(statement of minority views of Reps. Poff & Cramer). In

short, “the floor debates concerning Title VII suggest that

the minimum employee threshold was ... deemed

> See, e.g., US. Equal Employment Opportunity Commission,

Legislative History of Titles VII and XI of the Civil Rights Act of

1964 at 2043, 2050-51, 2061, 2066, 3076, 3078-79, 3079-84, 3084-90

(1968).

15

necessary to justify federal legislation in the employment

context under the Commerce Clause.” Tomka v. Seiler Corp.,

66 F.3d 1295, 1322 (2d Cir. 1995) (Parker, J., dissenting)

(collecting authorities).

The United States denies that the 15-employee threshold

requirement has any constitutional underpinnings

whatsoever. U.S. Br. 24. Under its view, the requirement

that an employer be “in an industry affecting commerce”

(§ 2000e(b)) properly invokes Commerce Clause authority

without regard to the 15-employee threshold. Ibid. But that

view of the commerce power goes well beyond Lopez. The

Court there took pains to reaffirm that the regulated

activity’s effect on interstate commerce must be

“substantial” (Lopez, 514 U.S. at 558); it did not authorize

regulation of an activity lacking such a connection on the

basis that it was within an industry that does. Accord

Morrison, 529 U.S. at 610. As the Court explained in

SWANCC, Commerce Clause analysis turns on whether “the

precise object or activity” at issue “in the aggregate[]

substantially affects interstate commerce.” See 531 US. at

173 (emphasis added).

The Solicitor General’s view would authorize Title VII

regulation of a neighborhood lemonade stand with just two

employees that does not itself have any discerruble effect on

interstate commerce, solely on the basis that it happens to be

within an industry (concessions) that does. Likewise, it

would permit Title VII regulation of a three-employee leaf-

raking business that does not affect commerce on the basis

that it is part of a broader industry (say, landscaping) that

does. Congress, however, rightly believed that it needed a

tighter nexus to interstate commerce, and it found that

nexus in the minimum-employee requirement. See

SWANCC, 531 U.S. at 173 (declining to read § 404(a) of the

Clean Water Act to reach isolated, intrastate ponds); Jones v.

United States, 529 U.S. 848, 851 (2000) (declining to read 18

U.S.C. § 844(i), the federal arson statute, to reach the arson

16

of private residences, because “constitutionally doubtful

constructions should be avoided where possible”).

The Solicitor General also denies that Congress viewed

Title VII's minimum-employee requirement as relevant to

its Commerce Clause authority. He acknowledges the

legislative statement of Representatives Poff and Cramer

quoted above, but asserts that “[t]jaken as a whole, the

legislative history does not support that statement.” U.S. Br.

24 n.4. Asa review of the citations collected above (see n.5)

demonstrates, however, there were extensive Commerce

Clause objections to Title VII. And in response to these

objections, supporters sought to draw a connection between

employee numerosity and Congress's commerce power.

See, e.g. 110 Cong. Rec. 6548 (Mar. 30, 1964) (Sen.

Humphrey); id. at 6566 (Mar. 30, 1964) (Sen. Kuchel); id. at

7088 (Apr. 7, 1964) (Sen. Stennis); id. at 13088 (June 9, 1964)

(Sen. Humphrey). As Senator Humphrey explained: it is

only “[w]hen [small businesses] get above 25, [that] they get

into some reasonable degree of gross product in terms of income

or output or salaries or goods or services.” Ibid. (emphasis

added). Mindful of the limits of its commerce power,

Congress sought to avoid regulating employers whose

activities had little effect on the gross product.®

In any event, whether or not Title VII would ultimately

violate the Commerce Clause if it reached smaller employers,

Congress's concern about the issue demonstrates that the

application of Title VII to smaller employers at least raises a

“significant constitutional question{].”. SWWANCC, 531 US.

at 174. Moreover, the legislative record provides no “clear

¢ Indeed, to the extent that the Commerce Clause concerns

reflected in the legislative history of Title VII involved the earlier,

25-employee minimum (Congress reduced the requirement from

25 to 15 employees in the Equal Opportunity Act of 1972, Pub. L.

92-261, § 2, 86 Stat. 103), those concerns are heightened under the

current 15-employee requirement.

17

indication” that Congress intended to push the outer limits

of its commerce power. See ibid. Quite the contrary.

2. Citing the dissenting opinion in Hartford Fire Ins. Co.

v. California, 509 U.S. 764, 813 (1993), the Solicitor General

notes that legislative and subject matter jurisdiction are

distinct concepts and suggests that Title VII's lezislative

history “speak[s] only to Congress's legislative jurisdiction.”

US. Br. 24, 28. But he offers no reason why Congress would

grant the courts jurisdiction over matters that it lacks the

power to regulate. And as the majority in Hartford Fire

recognized, there are times when the constitutionally

required nexus with interstate commerce

“simultaneous[ly]” implicates both legislative and subject

matter jurisdiction. See 509 U.S. at 795-797 & n.22; see also

United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 947-

948 (7th Cir. 2003) (en banc). This is just such a case.

This Court's decision in EEOC v. Arabian American Oil

Co., 499 U.S. 244 (1991), seriously undercuts the Solicitor

General's position. The Court there dismissed a Title VII.

claim brought by a United States citizen employed abroad

by an American employer. The Solicitor General

acknowledges that the Court there “describes as

‘jurisdictional’ the portion of the definition of ‘employer’

that requires that the defendant be ‘engaged in interstate

commerce.” U.S. Br. 28. But, again citing the dissent in

Hartford Fire, he says that the Court was “referring to

Congress’s ‘legislative jurisdiction’ to regulate interstate

commerce,” and that “nothing in Arabian American Oil Co.

even addresses the courts’ subject matter jurisdiction.” Ibid.

There are two difficulties with this argument.

First, it ignores the fact that no one in Arabian American

Oil questioned Congress's legislative authority to regulate

the employment practices of overseas United States

employers. See 499 U.S. at 248 (“Both parties concede, as

they must, that Congress has the authority to enforce its

laws beyond the territorial boundaries of the United

States”). Second, and more importantly, it ignores the fact

that the Court there, after concluding that Title VII was

categorically inapplicable to United States employers

operating overseas, affirmed the lower courts’ dismissal for

lack of subject matter jurisdiction. See id. at 247. Thus, Arabian

American Oil supports the conclusion that where Title VII

does not reach a defined class of defendants, the courts lack

subject matter jurisdiction to hear claims against those

defendants.

In any event, the substantial constitutional concerns

with an expansive reading of §701(b) point toward a

jurisdictional understanding of the 15-employee

requirement. See also Tomka, 66 F.3d at 1322 (Parker, J.,

dissenting). As the Court explained in Aldinger, “the reach

of the statute conferring jurisdiction should be construed in

light of the scope of the cause of action as to which federal

judicial power has been extended by Congress.” 427 U.S. at

17 (emphasis added).

Il. Reading Title VII's 15-Employee Requirement as a

Threshold Jurisdictional Issue Vindicates

Congress’s Intention to Shield Small Employers

from the Practical Burden and Expense of Title VII

Litigation.

Strong practical considerations further support the

conclusion that § 701(b) is jurisdictional. In particular, this

reading of the statute would vindicate Congress's desire to

spare small employers—including many muw-.icipal

government agencies—the enormous burden and expense

of defending themselves against employment

discrimination claims.

1. As this Court has observed: “the congressional

decision to limit the coverage of [Title VII] to firms with 15

or more employees has its own justification that must be

respected—namely, easing entry into the market and

preserving the competitive position of smaller firms.”

19

Clackamas Gastroenterology Assucs., P.C. v. Wells, 538 U.S. 440,

447 (2003). We urge the Court to read § 703(f)(5) in light of

“the congressional policy underlying [Title VII's exclusion

of small employers].” Zipes, 455 U.S. at 393; see also

Aldinger, 427 U.S. at 17 (“the reach of the statute conferring

jurisdiction should be construed in light of the scope of the

cause of action”).

In their effort to “ preserv[e] the competitive position” of

small entities, members of Congress specifically considered

“the burdens placed upon a small business forced to comply

with federal regulations and defend itself against a Title VII

suit.” Tomka, 66 F.3d at 1314 (emphas.; added). The views

of New Hampshire Senator Norris Cotton are

representative:

In shor* it is all very weli to talk about enforcing

morality; and large industries ercounter no hardship in

handling such matters, for they have teams of lawyers

organized to deal with them.

But Senators should think twice before they vote in

favor of the passage of a bill which would make it

possible for an investigator or a Federal administrative

officer to reach a conclusion, and thus make it

incumbent on the small businessman to carry the case to

the courts if he is to get justice.

110 Cong. Rec. $13092 (1964) (statement of Sen. Cotton). As

the Solicitor General acknowledges, members of Congress

such as Senator Cotton 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.” US. Br. 24 n.4.

Notwithstanding Congress’s desire to protect small-

scale employers, it is an inescapable fact of modern

employment litigation that municipalities and other small

employers often f..ce what Judge Posner has aptly described

as “the potentially crushing expense of mastering the

20

intricacies of the antidiscrimination laws, establishing

procedures to assure compliance, and defending against

suits when efforts at compliance fail.” Clackamas, 538 U.S. at

447 (quoting Papa, 166 F.3d at 940); accord Tomka, 66 F.3d at

1314; Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.

1993). If a small local agency lacks the ability to seek early

dismissal of Title VII suits on the basis that it has fewer than

15 employees —and thus should not be subject to suit at all —

it will incur substantial defense costs in:

° conducting an initial investigation of the allegations;

e retrieving, reviewing, and organizing data for

electronic and written discovery;

® preparing and producing witnesses for depositions;

e drafting summary judgment motions; and

e if necessary, putting on a defense at trial.

These routine tasks in litigation require time, money, and

human resources—all scarce commodities in small

municipal offices operating on tight budgets.

The cost of preparing a defense to a lawsuit is

substantial in any case, but it is even more likely to be

crippling in a Title VII case—the central allegation in which

involves “the elusive factual question of intentional

discrimination.” Burdine, 450 U.S. at 256 n.8. As this Court

observed in Aikens, “[t]}he factual inquiry” into “whether the

defendant intentionally discriminated against the plaintiff”

is “both sensitive and difficult” and typically cannot be

answered by direct evidence. 460 U.S. at 711, 716; see: ibid.

(noting that “[t]here will seldom be ‘eyewitness’ testimony

as to the employer’s mental processes”). Thus, a Title VII

case is almost always based on circumstantial evidence,

requiring inferential arguments and substantial discovery.

Moreover, the plaintiff's burden of proving a prima facie

case under the framework of McDonnell Douglas Corp. v.

21

Green, 411 U.S. 792 (1973), is minimal. Burdine, 450 US. at

253 (describing the burden as “not onerous”); Price

Waterhouse v. Hopkins, 490 U.S. 228, 270 (1989) (O’Connor, J.,

concurring) (describing the prima facie case as “not difficult

to prove”). Courts applying the McDonnell Douglas burden-

shifting analysis routinely leave for the jury questions about

the plaintiffs’ qualifications for particular positions, the

severity and pervasiveness of alleged harassment, and

whether employers’ proffered §nondiscriminatory

justifications for the alleged adverse employment action are

pretextual. One court has described the McDonnell Douglas

framework as “haviing] the objective of defining the

plaintiff's initial prima facie burden as being so minimal that

it is virtually impervious to a motion based on evidentiary

insufficiency.” Henderson v. Jantzen, Inc., 719 P.2d 1322, 1324

(Ore. App. 1986).

Whether or not plaintiff's burden is that minimal, every

federal court of appeals has held that once the plaintiff

establishes a prima facie case under Title VII, summary

judgment is ordinarily inappropriate. See Santiago-Ramos v.

Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000);

Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991);

Marzano v. Computer Sci. Corp., 91 F.3d 497, 509 (3d Cir.

1996); Holmes v. Bevilacqua, 774 F.2d 636, 638 (4th Cir. 1985);

Hayden v. First Nat'l Bank, 595 F.2d 994, 997 (5th Cir. 1979);

Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 564 (6th

Cir. 2004); Powers v. Dole, 782 F.2d 689, 694 (7th Cir. 1986);

Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Lowe

v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985); Orr v.

City of Albuquerque, 417 F.3d 1144, 1149-52 (10th Cir. 2005);

Mulhall v. Advance Sec., Inc., 19 F.3d 586, 598 (11th Cir. 1994);

McKenzie v. Sawyer, 684 F.2d 62, 67 (D.C. Cir. 1982). Thus,

once a case reaches the summary judgment stage, it is

difficult for an employer of any size to avoid a trial. Asa

consequence, any municipal government accused of

22

employment discrimination faces the near-certainty of

protracted and burdensome litigation.

2. The burdens of litigation are uniquely harmful to

municipal governments and, ultimately, their constituents.

Municipal governments are obligated to provide critical

public services, and they must meet these obligations with

limited financial resources and intense public scrutiny.

Every dollar spent on litigation is a dollar taken away from

public services. Every hour spent collecting and preparing

information for electronic or written discovery is an kour in

which the municipal government is shorthanded in

responding to citizens’ needs. In short, protracted litigation

often translates into disruptions in public services. The

impact of litigation costs on municipalities is especially

significant given the “fiscal recession” that American cities

continue to face. See generally Michael” A. Pagano &

Christopher Hoene, City Fiscal Conditions in 2004, 20

(National League of Cities 2004).

The costs of litigation also create tremendous pressure

for municipal governments to settle employment

discrimination lawsuits—even those lacking merit.

Reasonable government officials who must consider the

impact of additional litigation costs on the provision of

public services will often opt for settlement simply to avoid

the costs of litigation, even when they are confident that

Title VII does not apply to their offices and even when they

believe that their conduct did not violate the statute. See

Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health

& Human Res., 532 U.S. 598, 617 (2001) (Scalia, J., concurring)

(noting that defendants might “’abandon{] the fray’ because

the cost of litigation— either financial or in terms of public

relations — would be too great”).

The costs of discovery alone may be sufficient to justify,

as a financial matter, settlement of a meritless claim. As

Justice Breyer has observed: “discovery and discovery-

related judicial proceedings take time, they are expensive,

23

and cost and delay, or threats of cost and delay, can

themselves force parties to settle underlying disputes.” See

Intel Corp. v. Advanced Micro Devices, 124 S. Ct. 2466, 1485

(2004) (Breyer, J., dissenting). At the end of the day, even a

defense verdict may not be worth the candle, since a verdict

in a Title VII case does not come with a refund of time or

money. Merely defending the lawsuit is a burden that a

small municipal government often cannot afford to bear.

3. Treating the mnumerosity requirement as a

jurisdictional element in a Title VII case would frequently

ease the burden of litigation for small-scale employers. If

the numerosity requirement were deemed jurisdictional, the

plaintiff would be required to plead the jurisdictional fact in

his complaint, Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994); McNutt v. General Motors Acceptance

Corp., 298 U.S. 178, 182 (1936), subject to Fed. R. Civ. P. 11.

Even if the plaintiff alleged that his employer had at least 15

employees “on information and belief,” the employer could

move for dismissal under Fed. R. Civ. P. 12(b)(1) or the

district court could raise the numerosity issue sua sponte and

order discovery limited to that issue. See United States Catholic

Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72,

79-80 (1988) (stating that “[ijt is a recognized and

appropriate procedure for a court to limit discovery

proceedings at the outset to a determination of jurisdictional

matters”). Only upon its determination that the employer

had at least 15 employees, and thus was covered by Title VII

at all, would the court need to consider the plaintiff's

substantive allegations.

In most cases, the numerosity question will not require

significant discovery or involve serious controversy. Unlike

the merits issues in a Title VII case, the number of

employees is a matter of readily ascertainable and objective

fact, not a subject of inference or significant testimonial

dispute. “[T]he ultimate touchstone under § 2000e(b) is

whether an employer has employment relationships with 15

24

or more individuals for each working day in 20 or more

weeks during the year in question.” Walters, 519 U.S. at 212.

Under this rule, “all one needs to know about a given

employee for a given year is whether the employee started

or ended employment during that year and, if so, when.”

Id. at 211. One of the virtues of this rule is that it avoids

“turn[ing] the coverage determination into an incredibly

complex and expensive factual inquiry.” Id. at 210.

To be sure, there may be cases at the margins in which

the 15-employee requirement necessitates discovery into

issues such as whether a worker is an “independent

contractor” or an “owner” rather than an employee. But

contrary to the parade of horribles in petitioner's brief (at

27-31), these cases are certain to prove exceptional.

And even if the discovery required -to sort through the

numerosity question occasionally results in a significant

investment of time or a slight delay in reaching the merits,

that is of no great moment. The plaintiff must satisfy the 15-

employee requirement regardless of whether it is

jurisdictional, and thus the only question is when she will be

required to make that showing. But for the employer with

fewer than 15 employees—who is spared the expense of

additional, unrelated discovery in a suit that the plaintiff is

not entitled to bring against him—the opportunity to

address numerosity at the outset of the case could result in

significant savings (or perhaps preservation of the business).

In short, given its logical priority in any Title VII case and

the relative ease of analysis, no sound policy reason favors

treating the numerosity requirement as an element of the

Title VII claim rather than an antecedent jurisdictional

element.

Congress plainly intended to shield small employers,

including small municipal employers, from the burdens of

Title Vil litigation. Those burdens are significant—

especially for municipal agencies operating in small offices

with modest financial resources—and they are largely

25

unavoidable absent an opportunity to have such cases

resolved at an early stage. Treating Title VII's 15-employee

requirement as a jurisdictional prerequisite vindicates the

clear purpose of the statute and frees small-scale municipal

governments to do the critical work that they are charged by

their citizens to do, unencumbered by the burden of

litigation under a statute that grants them “complete

immunity.” Hishon, 467 U.S. at 78.

CONCLUSION

For the foregoing reasons, the judgment of the Fifth

Circuit should be affirmed.

Respectfully submitted.

HENRY W. UNDERHILL, JR. GENE C.SCHAERR

LANI L. WILLIAMS Counsel of Record

International Municipal STEFFEN N. JOHNSON

Lawyers Association JEFFREY M. ANDERSON

1110 Vermont Ave., N.W. Winston & Strawn LLP

Suite 200 1700 K Street, N.W.

Washington, DC 20005 Washington, D.C. 20006

(202) 466-5424 (202) 282-5000

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, Illinois 60601

(312) 558-5600

Counsel for Amicus Curiae

OCTOBER 2005

et

tip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is Gastble, a syllabus (headnote) will be released, as is

being done in connection with this-case. at the time the opinion is issued.

The syllabus constututes no of the opimon of the Court but has been

wrepared by the Reporter of Decisions for the convemence of the reader.

Bee United States vy. Detroit Timber & Lumber Co., 200 U8. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ARBAUGH v. Y & H CORP. DBA THE MOONLIGHT

CAFE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 04-944. Argued January 11, 2006—Decided February 22, 2006

Title Vil of the Civil Rights Act of 1964 makes it unlawful for “an em-

ployer ... to discriminate against any [employee] with respect to .. .

sex,” 42 U.S. C. §2000e—2(a)(1), and defines “employer” as “a person

... Who has fifteen or more employees,” §2000e(b). The Act's jurisdic-

tional provision empowers federal courts to adjudicate civil actions

“brought under” Title VII. §2000e—5(1)(3). Title VII actions also fit

within the Judicial Code’s grant of subject-matter jurisdiction to fed-

eral courts over actions “arising under’ federal law. 28 U.S.C.

§1331. At the ime~Title VIT was enacted, §1331 contained a $10,000

amount-in-controversy threshold, which left Title VII claims below

that amount uncovered. Section 2000e—5(f)(3) assured that the

amount-in-controversy limitation would not impede a Title VII com-

plainant’s access to a federal forum. Since 1980, when Congress

amended §1331 to eliminate the amount-in-controversy threshold,

§2000e—5(f)(3) has served simply to underscore Congress intention to

provide a federal forum for Title VI! claims. Because Congress has

also authorized federal courts to exercise “supplemental” jurisdiction

over state-law claims linked to a federal claim, 28 U.S. C. §1367, Ti-

tle VII plaintiffs may pursue complete relief in federal court.

The objection that-a federal court lacks subject-matter jurtsdiction,

see Fed. Rule Civ. Proce. 12(b)(). may be raised at any stage in the

litigation, even after trial and the entry of judgment, Rule 12(h)().

See Aontrick v. Ryan, 540 U.S. 443, 455. By contrast, the objection

that a complaint “fail[s] to state a claim upon which relief can be

granted,” Rule 12(b)(6), endures only up to, not beyond, trial on the

merits, Rule 12¢h)(2).

Petitioner Arbaugh sued her former employer, respondent Y&H

ARBAUGH v. Y & H CORP.

Syllabus

Corporation, in Federal District Court, charging sexual harassment

in violation of Title VIl and asserting related state-law claims. The

case was tried to a jury, which returned a verdict for Arbaugh. After

the court entered judgment on that verdict, Y&H moved to dismiss

the entire action for want of federal subject-matter jurisdiction, as-

serting, for the first time, that it had fewer than 15 employees on its

payroll and therefore was not amenable to suit under Title VII. Al-

though recognizing the unfairness and waste of judicial resources

that granting the motion would entail, the District Court, citing Fed-

eral Rule 12(h)(3), considered itself obliged to do so because it be-

lieved the 15-or-more-employees requirement to be jurisdictional. It

therefore vacated its prior judgment and dismissed Arbaugh’s Title

VIL claim with prejudice and her state-law claims without prejudice.

The Fifth Circuit affirmed based on its precedent holding that unless

the employee-numerosity requirement is met, federal-court subject-

matter jurisdiction does not exist.

Held: Title VITs numerical threshold does not circumscribe federal-

court subject-matter jurisdiction. Instead, the employee-numerosity

requirement relates to the substantive adequacy of Arbaugh’s Title

VII claim, and therefore could not be raised defensively late in the

lawsuit, i.e., after Y&H had failed to assert the objection prior to the

close of trial on the merits. The basic statutory grants of federal-

court subject-matter jurisdiction are contained in 28 U.S. C. §1331,

which provides for “[fJederal-question” jurisdiction, and §1332, which

provides for “[dliversity of citizenship” jurisdiction. A plaintiff prop-

erly invokes §1331 jurisdiction when she pleads a colorable claim

“arising under” the Federal Constitution or laws. See Bell v. Hood,

327 U.S. 678, 681-685. She invokes §1332 jurisdiction when she pre-

sents a claim between parties of diverse citizenship that exceeds the

required jurisdictional amount, currently $75,000. See §1332(a). Ar-

baugh invoked federal-question jurisdiction under §1331, but her

case “arisles]” under a federal law, Title VII, that specifies, as a pre-

requisite to its application, the existence of a particular fact, Le., 15

or more employees. The Court resolves the question whether that

fact is “jurisdictional” or relates to the “merits” of a Title VII claim

mindful of the consequences of typing the 15-employee threshold a

determinant of subject-matter jurisdiction, rather than an element of

Arbaugh’s claim for relief. First, “subject-matter jurisdiction. be-

cause it involves the court's power to hear a case, can never be for-

feited or waived.” United States v. Cotton, 535 U. S. 625, 630. More-

over, courts, including this Court, have an independent obligation to

determine whether subject-matter jurisdiction exists. even in the ab-

sence of a challenge from any party. Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 583. Nothing in Title VII's text indicates that

Cite as: 460.8. (2006) 3

Syllabus

Congress intended courts, on their own motion, to assure that the

employee-numerosity requirement is met. Second, in some instances,

if subject-matter jurisdiction turns on contested facts, the trial judge

may be authorized to review the evidence and resolve the dispute on

her own. If satisfaction of an essential element of a claim is at issue,

however, the jury is the proper trier of contested facts. Reeves v.

Sanderson Plumbing Products, Inc., 580 U.S. 133, 150-151. Third,

when a federal court concludes that it lacks subject-matter jurisdic-

tion, the complaint must be dismissed in its entirety. Thus, the trial

~ court below dismissed, along with the Title VII claim, pendent state-

law claims fully tried by a jury and determined on the merits. In

contrast, when a court grants a motion to dismiss for failure to state

a federal claim, the court generally retains discretion to exercise sup-

plemental jurisdiction, pursuant to §1367, over pendent state-law

claims.

While Congress could make the employee-numerosity requirement

“jurisdictional” if it so chose, neither §1331 nor Title VIT's jurisdic-

tional provision, 42 U.S. C. §2000e—5(f)(3), specifies any threshold

ingredient akin to 28 U.S. C. §1332’s monetary floor. Instead, the

15-employee threshold appears in a separate provision that “does not

speak in jurisdictional terms or refer in any way to the jurisdiction of

the district courts.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

394. Given the unfairness and waste of judicial resources entailed in

tying the employee-numerosity requirement to subject-matter juris-

diction, the sounder course is to refrain from constricting §1331 or

§2000e—A(f)(3), and to leave the ball in Congress’ court. If the Legis-

lature clearly states that a threshold limitation on a statute's scope

shall count as jurisdictional, then courts and litigants will be duly in-

structed and will not be left to wrestle with the issue. But when

Congress does not rank a statutory limitation on coverage as jurisdic-

tional, courts should treat the restriction as nonjurisdictional in

character. Applying that readily administrable bright line here

yields the holding that Title VII's 15-employee threshold is an ele-

ment of a plaintiffs claim for relief, not a jurisdictional issue. Pp. 8—

15.

380 F. 3d 219, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which all other

Members joined, except ALITO, J., who took no part in the consideration

or decision of the case.

Cite as: HE U.S. (2006) 1

Opinion.of the Court .

NOTICE> This opinion is subject to formal revision before publication im the -

prehim print of the United States wis Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States. Wash-

ington, D.C. 20043, of any t or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 04-944

JENIFER ARBAUGH, PETITIONER ev. Y & H COR-

PORATION, DBA THE MOONLIGHT CAFE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[February 22, 2006]

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns the distinction between two some-

times confused or conflated concepts: federal-court “sub-

ject-matter” jurisdiction over a controversy; and the essen-

tial ingredients of a federal claim for relief. Title VII of

the Civil Rights Act of 1964 makes it unlawful “for an

employer .. . to discriminate,” inter alia, on the basis of

sex. 42 U.S.C. $2000e—2(a)(1). The Act's jurisdictional

provision empowers federal courts to adjudicate civil

actions “brought under” Title VIIl. §2000e—5(D(3). Cover-

ing a broader field, the Judicial Code gives federal courts

subject-matter jurisdiction over all civil actions “arising

under” the laws of the United States. 28 U.S. C. §1331.

Title VII actions fit that description. In a provision defin-

ing 13 terms used in Title VII, 42 U.S. C. §2000e, Con-

gress limited the definition of “employer” to include only

those having “fifteen or more employees,” §2000e(b). The

question here presented is whether the numerical qualifi-

cation contained in Title VII's definition of “employer”

affects federal-court subject-matter jurisdiction or, in-

stead, delineates a substantive ingredient of a Title VII

2 ARBAOGH v. Y & H CORP.

Opinion of the Court

claim for relief.

The question arises in this context. Jenifer Arbaugh,

plaintiff below, pétitioner here, brought a Title VII action

in federal court against her former employer, defendant-

respondent Y&H Corporation (hereinafter Y&H), charging

sexual harassment. The case was tried to a jury, which

returned a verdict for Arbaugh in the total amount of

~ $40,000. Two weeks after the trial court entered judgment.

on the jury verdict, Y&H moved to dismiss the entire

action for want of federal subject-matter jurisdiction. For

the first time in the litigation, Y&H asserted that it had

fewer than 15 employees on its payroll and therefore was

not amenable to suit under Title VII.

Although recognizing that it was “unfair and a waste of

judicial resources” to grant the motion to dismiss, App. to

Pet. for Cert. 47, the trial court considered itself obliged to

do so because it believed that the 15-or-more-employees

requirement was jurisdictional. We reject that categoriza-

tion and hold that the numerical threshold does not cir-

cumscribe federal-court. subject-matter jurisdiction. | In-

stead, the employee-numerosity requirement relates to the

substantive adequacy of Arbaugh’s Title VII claim, and

therefore could not be raised defensively late in the law-

suit, t.e., after Y&H had failed to assert the objection prior

to the close of trial on the merits.

l

We set out below statutory provisions and rules that

bear on this case. Title VII makes it “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 employment,

because of such individual's race, color, religion, sex, or

national origin.” 42 U.S. C. §2000e—2(a)(1). To spare very

small businesses from Title VII liability, Congress pro-

Cite as: 446U.8.___ (2006) 3

Opinion of the Court

vided that:

“[t}he 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 preceding cal-

endar year, and any agent of such a person ....”

§2000e().!

This employee-numerosity requirement? appears in a

section headed “Definitions,” §2000e, which also prescribes

the meaning, for Title VII purposes, of 12 other terms used

in the Act.*

Congress has broadly authorized the federal courts to

exercise subject-matter jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of the

United States.” 28 U.S.C. $1331. Title VII surely is a

“la[w] of the United States.” Ibid. In 1964, however,

when Title VII was enacted, §1331’s umbrella provision for

federal-question jurisdiction contained an amount-in-

controversy limitation: Claims could not be brought under

§1331 unless the amount in controversy exceeded $10,000.

See §1331(a) (1964 ed.). Title VII, framed in that light,

assured that the amount-in-controversy limitation would

not impede an employment-ciscrimination complainant's

'The same provision further states that the term “employer” does not

include the United States, corporations wholly owned by the United

States, Indian Tribes, certain departments and agencies of the District

of Columbia, or tax-exempt “bona fide private membership clubjs}’

(other than labor organizations). §2000e(b).

“Congress originally prescribed a 25-or-more-employee threshold.

Civil Rights Act of 1964, §701, 78 Stat. 253, but lowered the minimum

number of employees to 15 in the Equal K mployment Opportunity Act

of 1972, §2. 86 Stat. 103.

“The other terms defined in §2000e are: “person,” “employment

agency, “labor organization. “employee.” “commerce.” “industry

affecting commerce,” “State.” “religion.” “because of sex,” “complaining

party.” “demonstrates, and “respondent.”

4 ARBAUGH v. Y & H CORP. —

os Opinion of the Court

access to a federal forum. The Act thus contains its own

jurisdiction-conferring provision, which reads:

“Each United States district court and each United

States court of a place subject to the jurisdiction of the

- United States shall have jurisdiction of actions

brought under this cen oI " 42 U.S.C. §20000-

5(f)(3).4

Congress amended 28 U.S. C. §1331 in 1980 to eliminate

the amount-in-controversy threshold. See Federal Ques-

tion Jurisdictional Amendments Act of 1980, §2, 94 Stat.

2369. Since that time, Title VII's own jurisdictional provi-

sion, 42 U.S.C. §2000e—5()(3), has served simply to

underscore Congress’ intention to provide a federal forum

for the adjudication of Title VII claims. See Brief for

United States as Amicus Curiae 13; Tr. of Oral Arg. 4.

We note, too, that, under 28 U.S.C. §1367, federal

courts may exercise “supplemental” jur.sdiction over state-

law claims linked to a claim based on federal law. Plain-

tiffs suing under Title VII may avail themselves of the

opportunity §1367 provides to pursue complete relief in a

federal-court lawsuit. Arbaugh did so in the instant case

by adding to her federal complaint pendent claims arising

under state law that would*not independently qualify for

*Title VII contains a separate jurisdictional provision, 42 U.S. C.

§2000e—6(b), authorizing suits by the Government to enjoin “pattern or

practice” discrimination.

* Section 1367(a) states: “Except as provided in subsections (b) and (c)

or as expressly provided otherwise by Federal statute, in any civil

action of which the district courts have original jurisdiction, the district

courts shall have supplemental jurisdiction-over all other claims that

are so related to claims in the action within such original jurisdiction

that they form part of the same case or controversy under Article IT of

the United States Constitution. Such supplemental jurisdiction shall

include claims that involve the joinder or intervention of additional

parties.

SaaS mE

> >

Cite as: 546U.S.___ (2006) 5

Opinion of the Court

federal-court adjudication. :

The objection that a federal court lacks subject-matter

jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be

raised by a party, or by a court on its own initiative, at any

stage in the litigation, even after trial and the entry of

judgment. Rule 12(h)(3) instructs: “Whenever it appears

by suggestion of the parties or otherwise that the court

lacks jurisdiction of the subject matter, the court shall

dismiss the action.” See Aontrick v. Ryan, 540 U.S. 443,

455 (2004). By contrast, the dbjection that a complaint

“fail[s] to state a claim upon which relief can be granted,”

Rule 12(b)(6), may not be asserted post trial. Under Rule

12(h)(2), that objection endures up to, but not beyond, trial

on the merits: “A defense of failure to state a claim upon

which relief can be granted . .. may be made in any plead-

ing ... or by motion for judgment on the pleadings, or at

the trial on the merits.” Cf. Aontrick, 540 U.S., at 459.

From May 2000 through February 2001, Jenifer Ar-

baugh worked as a bartender and waitress at the

Moonlight Cafe, a New Orleans restaurant owned and

operated by Y&H. Arbaugh alleged that Yalcin Hatipoglu,

one of the company’s owners, sexually harassed her and

precipitated her constructive discharge.° In November —

2001, Arbaugh filed suit against Y&H in the United States

District Court for the Eastern District of Louisiana. Her

complaint asserted claims under Title VII and Louisiana

law. App. to Pet. for Cert. 1-2.

Arbaugh’s pleadings alleged that her federal claim

“arlolse under Title VII" and that the Federal District

®See Pennsylvania State Police v. Suders, 542 U.S.129,. 147 (2004)

(constructive discharge compensable under Title VII includes an em-

ployee's departure due to sexual harassment that renders “working

conditions so intolerable that a reasonable person would have felt com-

pelled to resign’).

6 ARBAUGH v. Y & H CORP.

Opinion of the Court

Court had jurisdiction over this claim under §1331 plus

supplemental! jurisdiction over her state-law claims under

§1367. Record in No. 01-3376 (ED La.), Doc. 3, p. 1

(Amended Complaint). Y&H’s responsive pleadings ad-

mitted Arbaugh’s “jurisdictional” allegations but denied

her contentions on the merits. /d., Doc. 4, p. 1 (Answer fo

Complaint). The pretrial order submitted and signed by

the parties, and later subscribed by the presiding judge,

reiterated that the court was “vested with jurisdiction over

|Arbaugh’s Title VII claim] pursuant to 28 L. S. C. §1331,”

and “ha[d] supplemental jurisdiction over [her] state law

claims pursuant to 28 U.S. C. §1367.” Id., Doc. 19, p. 2.

The order listed “Uncontested Material Facts,” including:

“Plaintiff was employed as a waitress/artender at the

Moonlight for Defendants from May, 2000 through Febru-

ary 10, 2001 when she terminated her employment with

the company.” /d., p. 3. It did not list among “Contested

Issues of Fact” or “Contested Legal Issues” the question

whether Y&H had the requisite number of employees

under 42 U.S. C. §2000e(b). Record, Doc. 19, pp. 4—5. Nor

was the issue raised at any other point pretrial or at trial.

The parties consented to trial before a Magistrate

Judge. See 28 U.S. C. §636(c). After a two-day trial, the

jury found that Arbaugh had been sexually Harassed and

constructively discharged in violation of Title VII and

Louisiana antidiscrimination law. The verdict awarded

Arbaugh $5,000 in backpay, $5,000 in compensatory dam-

ages, and $30,000 in punitive damages. The trial court

entered judgment for Arbaugh on November 5, 2002.

Two weeks later, Y&II filed a motion under Federai

Rule 12(h)(3) to dismiss Arbaugh’s complaint for lack of

subject-matter jurisdiction. Record, Doc. 44. As sole

ground for the motion, Y&H alleged, for the first time in

the proceedings, that it “did not employ fifteen or more

employees [during the relevant period] and thus is not an

employer for Title VII purposes.” /d., p. 2 (Memorandum

—

Cite as: 446.58. __ (2006) 7

Opinion of the Court

in Support of Rule 12(h)(3) Motion to Dismiss for Lack of

Subject Matter Jurisdiction). The trial court commented

that “li]t is unfair and a waste of judicial resources to

permit [Y&H] to admit Arbaugh’s allegations of jurisdic-

tion, try the case for two days and then assert a lack of

subject matter jurisdiction in response to an adverse jury

verdict.” App. to Pet. for Cert. 47. Nevertheless, reciting

the text of Rule 12(h)(3), see supra, at 5, the trial court

allowed Y&H to plead that it did not qualify as an “em-

ployer” under Title VII's definition of that term. App. to

Pet. for Cert. 47-48; see supra, at 3.

Discovery ensued. The dispute over the employee count

turned on the employment status of Y&H’s eight drivers,

engaged to make deliveries for the restaurant, and the

company’s four owners (the Moonlight Cafe’s two manag-

ers and their shareholder spouses), As the trial court

noted, “[i]f either the delivery drivers or the four owners

are counted with the persons shown on the payroll jour-

nals, then Y&H employed fifteen or more persons for the

requisite time.” App. to Pet. for Cert. 27. After reviewing

the parties’ submissions, however, the trial court con-

cluded that neither the delivery drivers nor the owner-

managers nor their shareholder spouses qualified as “em-

ployees” for Title VII purposes. /d., at 32-43. Based on

that determination, the trial court vacated its prior judg-

ment in favor of Arbaugh, dismissed her Title VII claim

with prejudice, and her state-law claims without preju-

dice. Id., at 23.

The Court. of Appeals for the Fifth Circuit affirmed. 380

F. 3d 219 (2004). Bound by its prior decisions, the Court

of Appeals held that a defendant's “failure to qualify as an

‘employer’ under Title VII deprives a district court of

subject matter jurisdiction.” /d., at 224 (citing, e.g., Du-

mas v. Mt. Vernon, 612 F. 2d 974, 980 (1980)). Dismissal

for want of subject-matter jurisdiction was proper, the

Court of Appeals ruled, for the record warranted the con-

8 ARBAUGH v. Y & H CORP. ~

Opinion of the Court

clusion that Y&H's delivery drivers, its owner-managers,

and their shareholder wives were not “employees” for Title

VII purposes, 380 F. 3d, at 225-230, and it was undis-

puted that Y&H “did not employ the requisite 15 employ-

ees without the inclusion of” those persons, id., at 231.

We granted certiorari, 544 U.S. 1031 (2005), to resolve

conflicting opinions in Courts of Appeals on the question

whether Title VII’s employee-numerosity requirement, 42

U.S. C. §2000e(b), is jurisdictional or simply an element of

a plaintiffs claim for relief. Compare, e.g., 380 F. 3d, at

223-225 (Title VII’s employee-numerosity requirement is

jurisdictional), and Armbruster v. Quinn, 711 F. 2d 1332,

1335 (CAG 1983) (same), with, e.g., Da Silva v. Kinsho

International Corp., 229 F. 3d 358, 361-866 (CA2 2000)

(Title VII’s employee-numerosity requirement is not juris-

dictional); Nesbit v. Gears Unlimited, Inc., 347 F. 372, _

76-83 (CA3 2003) (same); EEOC v. St. Francis Xavier

Parochial School, 117 F.3d 621, 623-624 (CADC 1997)

(Americans with Disabilities Act’s employee-numerosity

requirement, 42 U.S.C. §12111(5)(A), resembling Title

VII's requirement, is not jurisdictional).

If

“Jurisdiction,” this Court has observed, “is a word of

many, too many, meanings.” Sleel Co. v. Citizens for Better

Environment, 523 U.S. 838, 90 (1998) (internal quotation

marks omitted). This Court, no less than other courts, has

sometimes been profligate in its use of the term. For

example, this Court and others have occasionally de-

scribed a nonextendable time limit as “mandatory and

jurisdictional.” See, e.g., United States v. Robinson, 361

U.S. 220, 229 (1960). But in recent decisions, we have

clarified that time prescriptions, however emphatic, “are

not properly typed ‘jurisdictional.’” Scarborough v. Prin-

cipi, 541 U.S. 401, 414 (2004); accord Eberhart v. United

States, 546 U.S. __, __ (2005) (per curiam) (slip op., at 4—

Cite as: 546 U.S. __ (2006) 9

Opinion of the Court

7); Kontrick, 540 U.S., at 454-455. See also Carlisle v.

United States, 517 U.S. 416, 434-435 (1996) (GIN® 3URG, J.,

concurring).

The dispute now before us concerns the proper classifi-

cation of Title VII's statutory limitation of covered em-

ployers to those with 15 or more employees. If the limita-

tion conditions subject-matter jurisdiction, as the lower

courts held it did, then a conclusion that Y&H had fewer

than 15 employees would require erasure of the judgment

for Arbaugh entered on the jury verdict. But if the lower

courts’ subject-matter jurisdiction characterization is

incorrect, and the issue, instead, concerns the merits of

Arbaugh’s case, then Y&H raised the employee-

numerosity requirement too late. Its pretrial stipulations,

see supra, at 6, and its failure to speak to the issue prior

to the conclusion of the trial on the merits, see Fed. Rule

viv. Proc. 12(h)(2), supra, at 5, would preclude vacation of

the $40,000 judgment in Arbaugh’s favor.

On the subject-matter jurisdiction/ingredient-of-claim-

for-relief dichotomy, this Court and others have been less

than meticulous. “Subject matter jurisdiction in federal-

question cases is sometimes erroneously conflated with a

plaintiffs need and ability to prove the defendant bound

by the federal law asserted as the predicate for relief—a

merits-related determination.” 2 J. Moore et al., Moore’s

Federal Practice §12.30[1], p. 12-36.1 (8d ed. 2005) (here-

inafter Moore). Judicial opinions, the Second Circuit

incisively observed, “often obscure the issue by stating

that the court is dismissing ‘for lack of jurisdiction’ when

some threshold fact has not been established, without

explicitly considering whether the dismissal shouid be for

lack of subject matter jurisdiction or for failure to state a

claim.” Da Silva, 229 F.3d, at 361. We have described

such unrefined dispositions as “drive-by jurisdictional

rulings” that should be accorded “no precedential effect”

on the question whether the federal court had authority to