Amicus Curiae Brief — General Motors Corp. v. Goodwin

Supreme Court, U.S.

FILED

No. 01-1479 ~~ MAY 9 2002

— OFFICE OF THE CLERK

Supreme Court of the United States

GENERAL MOTORS CORPORATION,

Petitioner,

Vv.

PAMELA R. GOODWIN,

io Respandent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS FOR THE TENTH CIRCUIT

MOTION OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

STEPHEN A. BOKAT ZACHARY D. FASMAN

Rosin S. ConrAD NEAL D. MOLLEN

NATIONAL CHAMBER Counsel of Record

LITIGATION CENTER, INC. Grecory R. WATCHMAN

1615 H Street, N.W. PauL, HASTINGS, JANOFSKY &

Washington, D.C. 20062 Wa ker LLP

(202) 463-5337 1299 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-2400

(202) 508-9500

Attorneys for Amicus Curiae

The Chamber of Commerce of the United States

173963 g

COUNSEL PRESS 29 py

(800) 274-3321 + (800) 359-6859

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF PETITION FORA

WRIT OF CERTIORARI

Pursuant to S. Ct. Rule 37.2, the Chamber of Commerce

of the United States (“the Chamber”) moves for leave to file

a brief amicus curiae in support of Petitioner. That brief is

attached. The Chamber is filing this motion because

_ Respondent has refused to consent to the filing of this brief.

In further support of this Motion, the Chamber states:

1. The Chamber is the world’s largest business

federation, representing an underlying membership of more

than three million businesses and organizations of every size

and in every industry sector and geographical region of the

country. A principal function of the Chamber is to represent

the interests of its members in important matters before the

courts, the United States Congress, the Executive Branch,

and independent regulatory agencies of the federal

government. Accordingly, the Chamber has sought to advance

those interests, inter alia, by filing briefs in hundreds of cases

of significance in this Court and in the courts of appeals.

2. This case involves the administration of Title VII of

the Civil Rights Act of 1964 (“Title VII’), 42 U.S.C. § 2000e

et seq, to which the vast majority of the business that belong

to the Chamber are subject. The decision below both

exemplifies and exacerbates a profound division of authority

in the courts of appeals on two questions regarding

the application of Title VII’s statute of limitations. These

conflicts create confusion, uncertainty, and unnecessary

litigation expense for both employers and employees alike.

3. The court below held that an aggrieved individual

need not challenge a decision regarding his or her

compensation within the limitations period specified in the

statute — indeed is entitled to wait years or decades to

challenge such an allegedly discriminatory decision — so

long as the economic consequences of that decision continue

into the limitations period. This rule cannot be reconciled

with the Court’s decision in United Air Lines v. Evans,

431 U.S. 553 (1977), and it undermines the societal interest

in repose that is reflected by Congress’ choice of a brief

limitations period for charges of discrimination. As the Court

has previously observed, consistency and clarity in the law

are uniquely important with regard to statutes of limitation.

Wilson v. Garcia, 471 U.S. 261, 271 (1985). The law on this

issue is in complete disarray and will not be clarified unless

and until the Court agrees to do so.

4. The decision below also chooses sides in a three-way

split of circuit authority regarding the remedial latitude of

district courts in awarding back pay to successful Title VII

plaintiffs. Some courts have held that a district court can

award back pay for a period extending no further than the

charge filing limitations period — at most 300 days prior to

the date of the charge. Others hold that the district court can

reach back as much as two years before the charge is filed.

Still others will permit a two year award but only when a

“continuing violation” has been shown. These doctrinal

differences lead to vastly different awards for materially

identical claims, depending on the geographic locale of the

litigation.

5. These persisting conflicts on important matters of

federal law are particularly problematic for Chamber

members that do business in multiple states, and for those

that do business in every state. More than anything else, the

Chamber’s members seek a single, clear, and reliable rule of

law, applicable to all of its members and all of their

employees. The Chamber asks for permission to participate

so that it might explain to the Court the difficulties the rules

adopted by the court below impose on its members.

Accordingly, the Chamber respectfully moves the Court

to grant this Motion and allow the filing of the attached brief.

Respectfully submitted,

STEPHEN A. BOoKAT ZACHARY D. FASMAN

Rosin S. ConraD Neat D. MOoLLeNn

NATIONAL CHAMBER Counsel of Record

LimiGATION CENTER, INC. Grecory R. WATCHMAN

1615 H Street, N.W. PauL, HASTINGS, JANOFSKY &

Washington, D.C. 20062 Wacker LLP

(202) 463-5337 1299 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-2400

(202) 508-9500

Attorneys for Amicus Curiae

The Chamber of Commerce of the United States

TABLE OF CONTENTS

Table of Cited Amthorities ... 0... cc ccc ccc ccccens

Interests of the Amicus Curiae ..............45.

NE 6s wi aia als RUN hates kann

Summary Of ArgwMeMt 2. occ csc ccecccceceee

Reasons for Granting the Writ .................

I.

The Rule Established By The Courts

Of Appeals Eliminates Any Meaningful

Limitations Period In Title VII Cases,

Is Irreconcilable With This Court’s Opinions,

And Deepens A Division Of Authority Among

The Courts Of Appeals. .................

A. Congress Adopted Title VII’s Charge-

Filing Limitations Period to Achieve a

Careful Balancing of Employer and

Employee Rigits. 2.2... ccccessess

B. The Decision Of The Court Of Appeals

Effectively Undermines The Societal

Ipteraet Im RAOGG. oi eek cc iscnaa.

C. The Courts Of Appeals Are In Disarray

On The Application Of Title VII’s

Limitations Period, Especially In

Cases Characterized As “Pay” Or

“Compensation” Cases. .............

11

Contents

Page

1. The Court’s Cases Reflect A Unified

Standard To Limitations Questions

CRG DED WE é dcdSde dee cud 12

2. The Courts of Appeals’ Divergent

Interpretations of Bazemore Have

Created Inconsistent Rules

Governing the Application of

Title VII’s Limitations Periods

to Pay-Related Discrimination

COMME hc ocsicwewids aie cabes 14

a. The“Present Violation” Approach.

vecatsodwen sel edanaaweens 15

b. The“Paycheck” Approach. ... 16

Il. The Court Should Also Resolve The Split In

The Circuits Over The Calculation Of Title

Vile BERR FU AGES oc cen ccndéedocvece 18

CORSRIIIOR. . cnccecninecibussneceshne 20

iti

TABLE OF CITED AUTHORITIES

Page

Cases:

Acha v. Beame, 570 F.2d 57 (2d Cir. 1978) ....... 19

American Pipe & Constr. Co. v. Utah, 414 U.S. 538

DE 06% d04ees candeadvessedersdsetoeers 6, 8

Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999)

cu hbnadesdeddhedepokaskendedehevesnueane 15

Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d

SE ED. chsees deeesacasaeees 10, 16, 18

Bazemore v. Friday, 478 U.S. 385 (1986) ....... passim

Beavers v. American Cast Iron Pipe Co., 975 F.2d

SE, DEED Ga tehoevabedsaaaueenacas -18

Bempah v. Kroger Co., No. CV488-200, 1989 U.S.

Dist. LEXIS 6345 (S.D. Ga. June 5, 1989) ..... 18

Blake-McIntosh v. Cadbury Beverages, Inc., No.

3:96-CV-2554 (EBB), 1999 WL 643661 (D. Conn.

RR SR SPUD Abas ecdvcctcidcccaccccsscecs 18

Bosley v. Merit Sys. Protection Bd., 162 F.3d 665

re Ce tU iV abcekeisidcceonseses 15

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336

DUMP EEE SESS EUG aesesesceccreccccces 3, 16

Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) ... 9

iv

Cited Authorities

Page

Calloway v. Partners Nat'l Health Plans, 986 F.2d

S46 CEG CHR, GED wb Sdincan dacladacadcacs 17

Cardenas v. Massey, 269 F.3d 251 (3d Cir. 2001).. 17

Carter v. West Publ’g. Co., 225 F.3d 1258 (11th Cir.

BONED 5b dose kthsticandieti reins si weee | 17

Christiansen v. APV Crepaco, Inc., 178 F.3d 910

(Feet Ge BED Wb inne Se ckbwdeabadeos weeebass 15

Crawford v. Western Elec. Co., 614 F.2d 1300

CO CAE BOE Ki asas ce Bie cia eine 3

Dasgupta v. University of Wis. Bd. of Regents, 121

Pues SES Ca Gee WONED 6 0 Wks ca ibatacesna 15, 16

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

CSDGOD 0.6 cvidtonas de path tanidd dia hss adios 6,7

EEOC v. Joe's Stone Crab, Inc., 15 F. Supp. 2d 1364

(S.D. Fla. 1998), vacated on other grounds,

220 F.3d 1263 (11th Cir. 2000) .............. 18

EEOC v. O&G Spring & Wire Forms Specialty Co.,

38 F.3d 872 (7th Cir. 1994), cert. denied, 513 U.S.

1198 ER oc 64 kb dass 6 aetaweecia ces 18

EEOC v. Penton Indus. Publ’g Co., 851 F.2d 835

ee Fares poy 15, 16

Vv

Cited Authorities

Page

Eisenberg v. Pennsylvania State Univ., No. 3:00CV301,

2001 WL 202095 (M.D. Pa. Feb. 28,2001) .... 19

Estate of Pitre v. Western Elec. Co., 975 F.2d 700

(10th Cir. 1992), cert. denied, 510 U.S. 972

Serr er er Severe e ey er rere 18

Garland v. USAir, Inc., 767 F. Supp. 715 (W.D. Pa.

SEE Apa caee wees cane teceeeeese Khe rere 19

Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554

Co Ge EE i n.de RANWAAE EUS Ke Oe de dden ees’ 19

Hicks v. St. Mary’s Honor Ctr., 509 U.S. 502 (1993)

PCP re Te ee PANETT TE PET POT Eee eee 7

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

NEE Thniesk k did a KAS wie 0 RAO 6

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) ... 6,17

Lorance v. AT&T Tech., Inc., 490 U.S. 900 (1989)

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

ee ee eee i as ab dw ane hnes 3, 6, 8, 17

National Railroad Passenger Corp. v. Morgan,

No. 00-1614, cert. granted, 533 U.S. 927 (2001)

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) ....10, 17

vi

Cited Authorities

Page

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355

CPT ER 6nd bus keee od hee-ensnwatheeendnahie 7,8

Pollis v. New Sch. for Soc. Research, 132 F.3d 115

Ce Ge SED: ans ddwdenw wks ca suek cee tas 17, 18

Reeves v. Sanderson Plumbing Prods., Inc.,530 U.S. .

Eee CD dhe Sea ai cade dhacelwarsbeucies 7

Rotella v. Wood, 528 U.S. 549 (2000) ........... 9,11

Sabree v. United Bhd. of Carpenters & Joiners Local

No. 33, 921 F.2d 396 (1st Cir. 1990) .......... 19

Snider v. Belvidere Township, 216 F.3d 616 (7th Cir.

EE Sins tian cs Rea sn a aka bee eas 15

Sowell v. Alumina Ceramics, Inc., 251 F.3d 678

SS SED 6 ic bebe eX eKb ca dcnedawned es 18

Stallworth v. Shuler, 777 F.2d 1431 (11th Cir.

SEE Sack Gekxtse koe seems 19

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)

PPP ET re PEE POO, OP rT Eee 11

Tademe vy. St. Cloud State Univ., 2001 U.S. Dist.

LEXIS 20666 (D. Minn. Dec. 10, 2001) ....... 16

United Air Lines v. Evans, 431 U.S. 533 (1977) ...

janes PrreT Terre ror res oe ee

Vii

Cited Authorities

US Airways v. Barnett, _U.S.___, 2002 U.S. LEXIS

Ce er Pee eee

Williams v. Munoz, 106 F. Supp. 2d 40 (D.D.C.

PE hues cove Oe Raa kdes Oke eA Sues ees

| Wilson v. Garcia, 471 U.S. 261 (1985) ..........

Statutes:

EP a PD. kk CWB Secu eas beeewancecses

J gy | el pee a eee ee ere ere eer

42 U.S.C. § 2000e-S(e) . ? SRR retry ee err ree re

M2 UBC. § 2000O-SUOM A) oc wc cece ec nsees

Oe eS BOG Wiebe bcd sewed esaaceeens

Other Authorities:

se BR OR Serer rer ere Terre reer Ter

eee OR Sh) ) re

B37 Come: Rec. SIS68S CIS91) on ic cece acwnese

De TU : PED GOWER Sok vine cnecdwevcevan

Page

18

14

i Si ee et aa = ~~ ee ee ee ee eee ee ee a ee ee

l

INTERESTS OF THE AMICUS CURIAE

The interests of the Chamber of Commerce of the United

States (“the Chamber”) are fully described in the accompanying

Motion for Leave to File Brief Amicus Curiae. In the interest of

brevity, those matters will not be repeated here.'

STATEMENT

1. Respondent Pamela Goodwin was hired by Petitioner

- General Motors Corp. (“GM”) in 1976. Pet. App. 22a. Her career

at GM followed a fitful path of promotions, demotions, layoffs

and recalls. She was promoted in 1978, laid off in 1980, and

recalled to a job in a lower salary grade later that same year.

Id. at 22a-23a. Goodwin was laid off again in 1982 and recalled

in 1983. In the mid-1980s, she was denied a promotion because

GM planned to close the plant where she worked. /d. at 23a.

Goodwin was laid off when the plant closed in 1987. Jd.

Goodwin transferred to a temporary position at a different

GM facility later in 1987. Jd. She obtained a full-time position

shortly thereafter, and was promoted in 1989. /d. In 1991,

GM promoted Goodwin to labor relations representative; at the

time of this promotion, Goodwin earned less in the job than

three other employees already working as tabor-retations

representatives at the facility. Jd. at 24a. Over the ensuing seven

years, Goodwin received pay raises comparable to

those received by her peers, but the differential remained.

Id. at 14a n.10.

Goodwin filed a charge of race discrimination in 1998.

Id. at 6a. In her charge, Goodwin challenged recall and

promotion decisions occurring over an eighteen-year period.

None of the promotion, demotion, compensation or recall

decisions she challenged was made within Title VII’s charge-

filing limitations period. Jd. at 29a, 32a. Goodwin subsequently

filed suit in federal district court in the District of Kansas.

1. Counsel for amicus curiae authored the brief in its entirety.

No person or entity, other than the amicus, its members, or its counsel,

made a monetary contribution to the preparation or submission of the brief.

2

2. The district court granted GM’s motion for summary

judgment, concluding that Goodwin’s claims were time-barred.

Id. at 41a, 45a. The district court found that Goodwin was

challenging the “lingering effect” on her compensation of long-

past recall and promotion decisions rather than a “continuing

pattern of discriminatory conduct.” Jd. at 34a, 37a.

The Tenth Circuit acknowledged that the “[c]Jontinuing

effects of prior discrimination are generally not actionable,”

but nevertheless reversed. Focusing on the pay differential

caused by the challenged recall, demotion, and promotion

decisions rather than the operative decisions themselves, the

court claimed that there is “a crucial distinction [between]

discriminatory disparities in pay” and all other types of

discrimination. Jd. at 7a. Relying on one sentence in Justice

Brennan’s concurring opinion in Bazemore v. Friday, 478 U.S.

385, 395 (1986), the court below held that pay discrimination

must always “be viewed as a continually recurring series of

violations,” because “each week’s paycheck” is a wrong

separately actionable under Title VII. Jd. at 8a, quoting, in part,

Bazemore, 478 U.S. at 395-96. The court of appeals concluded

that Goodwin’s pay discrimination claim was not time-barred,

and remanded the case for trial.

3. The Court is presently considering National Railroad

Passenger Corp. v. Morgan, No. 00-1614, cert. granted,

533 U.S. 927 (2001), a case involving the so-called continuing

violation theory and its application to discrimination cases under

Title VII. In that case, the Chamber has urged the Court to limit

the application of the continuing violation theory lest the theory

swallow whole the principles of finality, prompt dispute

resolution, and repose that are central to the administration of

Title VII. |

No matter how this Court balances those interests in

Morgan, however, the dispute at issue in this case will remain.

Guidance as to when the continuing violation theory might be

applicable will not dispel the notion, reflected in the decision

3

below and adopted by five other courts of appeals, that

compensation cases are fundamentally different from those

involving other “tangible employment actions.”

Indeed, if the “paycheck” doctrine embraced by the court

below is left unaddressed by this Court, the work done by the

Court in Morgan may go for naught, as plaintiffs gerrymander

their claims to fit the special “paycheck” rules currently

applicable in six circuits. A writ of certiorari in this case — in

combination with a decision in Morgan — would do much to

resolve the intractable disputes roiling in the lower courts on

the application of Title VII’s limitations provisions.’

SUMMARY OF ARGUMENT

1. After considerable debate, Congress consciously

imposed “quite obviously short deadlines” for filing charges of

discrimination under Title VII. Mohasco Corp. v. Silver,

447 U.S. 807, 825 (1980). An individual seeking to challenge

an allegedly discriminatory employment action must file an

EEOC charge within 300 days at the most. An action not

promptly challenged becomes “an unfortunate event in history

which has no present legal consequences.” United Air Lines v.

Evans, 431 U.S. 553, 558 (1977).

2. The rule applied below — that every alleged wrong with

an impact on an employee’s paycheck remains actionable

throughout the employee’s tenure — eviscerates the deliberate

policy choices made by Congress in crafting a statute of

limitations for Title VII claims. That rule would allow an

employee to challenge actions occurring years and even decades

earlier, forcing employers to defend the conduct of supervisors -

2. Aruling in this case could also affect cases brought under other

federal discrimination statutes such as 42 U.S.C. § 1981, the Age

Discrimination in Employment Act, and the Equal Pay Act . The lower

federal courts have typically applied the Court’s Title VII precedents in

these contexts. See, e.g., Crawford v. Western Elec. Co., 614 F.2d 1300

(Sth Cir. 1980) (class action under Title VII and § 1981); Brinkley-Obu

v. Hughes Training, Inc., 36 F.3d 336, 345 n.19 (4th Cir. 1994).

4

long-since retired or dead, and involving records that have long

since been discarded.

3. The decision below exacerbates and intensifies a mature

and intractable circuit split on this vital issue that affects nearly

every employment discrimination claim. The Court has

previously acknowledged that when there is intra-circuit

“conflict, confusion, and uncertainty concerning” the limitations

rules applicable to civil rights cases, “compelling reasons [exist]

for granting certiorari.” Wilson v. Garcia, 471 U.S. 261, 266

(1985). Moreover, if the decision below is allowed to stand,

any accommodation of competing interests the Court might

reach in National Railroad Passenger Corporation v. Morgan,

No. 00-1614, concerning the continuing violation doctrine,

would be advisory only, as a plaintiff could always characterize

his or her claim as a pay disparity, and thereby challenge any

employment action during his or her entire tenure.

4. The court of appeals supposed that its decision was

compelled by Bazemore v. Friday, 478 U.S. 385 (1986). Nothing

in Bazemore requires, or even recommends, the result reached

below. In Evans v. United Airlines, 431 U.S. 553 (1977),

and again in Bazemore v. Friday, the Court held that a

complainant must file a charge of discrimination promptly

following the occurrence of the unlawful act or practice the

complainant seeks to challenge, and cannot base a valid claim

solely on the continuing impact of a statutory violation occurring

outside the limitations period.

Bazemore also held that an employer could not defend a

facially discriminatory pay structure — one that currently

discriminates — by arguing that it had engaged in the same

discriminatory conduct outside the limitations period without

complaint. In the context of such a facially discriminatory

system, the Court observed that “[eJach week’s paycheck that

delivers less to a black than to a similarly situated white is a

wrong actionable under Title VIL, regardless of the fact that this

pattern was begun prior to the effective date of Title VII.”

478 U.S. at 395-96. As the Court has subsequently noted, this

rule is limited to currently operating, facially discriminatory

systems. No such system was alleged in this case.

Nonetheless, the court below, and at least six other courts

of appeals, have read this one sentence in Bazemore to eliminate

any meaningful statute of repose in Title VII cases involving

compensation. Four other courts of appeals have harmonized

Evans and Bazemore ina way that effectuates the plain language

of the statute, gives complainants a mechanism for vindicating

their civil rights, and underscores the importance of repose

inherent in every statute of limitations. This division of authority

will persist until this Court resolves it.

2. The courts of appeals are also sharply divided as to how far

back in time a district court may extend an award of back pay.

Some courts have held that the district court’s remedial authority

extends no further than the beginning of the charge-filing limitations —

period (either 180 or 300 days, depending on the jurisdiction)’;

others have held that the court can award back pay for a two-year

period prior to the date on which the charge was filed, although

some make the extended period available only with proof of a

continuing violation. This is a significant issue that arises in almost

every case in which a plaintiff is entitled to back pay, and can more

than double a plaintiff's back pay award. A clear rule is needed to

prevent forum-shopping and to ensure that similarly situated

plaintiffs recover comparable awards.

REASONS FOR GRANTING THE WRIT

I. THE RULE ESTABLISHED BY THE COURTS OF

APPEALS ELIMINATES ANY MEANINGFUL

LIMITATIONS PERIOD IN TITLE VII CASES,

IS IRRECONCILABLE WITH THIS COURT’S

OPINIONS, AND DEEPENS A DIVISION OF

AUTHORITY AMONG THE COURTS OF APPEALS.

“By choosing what are quite obviously short deadlines

[for filing charges of discrimination under Title VII], Congress

clearly intended to encourage the prompt processing of all

3. 42 U.S.C. § 2000e-5(e)(1).

6

charges of employment discrimination.” Mohasco Corp. v.

Silver, 447 U.S. 807, 825 (1980). The rule adopted by the court

below ignores this compelling societal interest and eviscerates

Congress’ conscious design. The court felt compelled to reach

this result by a single sentence in Bazemore, but nothing in that

decision suggests that a complainant is entitled to lie in wait for

years — even decades — before forcing an employer to justify —

a discrete employment decision rendered by managers who may

well have quit, retired or died in the interim. The decision below

is fundamentally at odds with the notions of repose on which

administration of the Act depends.

A. Congress Adopted Title VII’s Charge-Filing

Limitations Period to Achieve a Careful Balancing

of Employer and Employee Rights.

Statutes of repose serve compelling societal interests.

They “promote justice by preventing surprises through the

revival of claims that have been allowed to slumber until

evidence has been lost, memories have faded, and witnesses

have disappeared.” American Pipe & Constr. Co. v. Utah,

414 U.S. 538, 554 (1974). Thus, a limitations period “reflects a

value judgment concerning the point at which the interests in

favor of protecting valid claims are outweighed by the interests

- in prohibiting the prosecution of stale ones.” Delaware State

College v. Ricks, 449 U.S. 250, 259-60 (1980) (internal quotes

omitted), quoting Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 463-64 (1975).

By definition, every limitation period expresses society’s

interests in repose,‘ but those interests are particularly

compelling in the employment setting. Unlike litigants in the

great run of civil cases — who often are strangers or parties to

one-time or episodic commercial agreements — the relationship

between employers and employees is of central and continuing

4. See, e.g., Klehr v. A.O. Smith Corp., 521 U.S. 179, 187 (1997)

(rejecting rule that “conflicts with a basic objective — repose — that

underlies limitations periods”); Wilson, 471 U.S. at 271 (“application of

any statute of limitations would promote repose”).

7

importance to both. Even employment decisions that appear on

their face to affect only a single employee usually have an impact

on many others; when one employee receives a promotion or is

allocated the top merit pay increase in her department, that

opportunity, or those dollars, cannot not go elsewhere.

Cf. US Airways v. Barnett, _U.S.__, No. 00-1250, 2002 U.S.

LEXIS 3034 (April 29, 2002). When an employer makes these

allocation decisions, then, everyone involved has an interest in

settling promptly any challenges to them.

Moreover, to defeat a claim of discrimination, an employer

must be able to articulate — convincingly — its rationale for

the challenged decision, Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000); Hicks v. St. Mary's Honor Ctr.

509 U.S. 502, 506-07, 513-14 (1993), but the employer’s ability

to muster a defense dissipates sharply as time passes. Memories

fade; managers quit, retire or die; records are lost or destroyed

to make way for still other records.‘ Business units are

reorganized, disassembled, or sold; tasks are centralized,

dispersed, or terminated altogether.

Unless an employer receives prompt notice that it will be

called upon to defend a specific decision, it will have no

“opportunity to gather and preserve the evidence with which to

sustain himself. . . .” Occidental Life Ins. Co. v. EEOC, 432 US.

355, 372 (1977) (quoting Congressman Erlenborn, 117 Cong.

Rec. 31972 (1971)). By compelling those injured to raise their

claims promptly, Title VII’s limitations period “protect{s]

employers from the burden of defending claims arising from

employment decisions that are long past.” Ricks, 449 U.S. at

256-57. Thus, “[e]ven if one has a just claim it is unjust not to

put the adversary on notice to defend within the period of

limitation. . . . [T]he right to be free of stale claims in time comes

5. The EEOC has said that, in most instances, an employer is

not obligated to keep personnel records for more than one year, tacitly

acknowledging that employers should not be called to account for

older decisions. See 29 C.F.R. § 1602.14 (requiring employers to

keep most employment records for one year).

to prevail over the right to prosecute them.” American Pipe &

Constr. Co., 414 U.S. at 554. In short, only a meaningful rule of

limitations makes it possible for an employer to articulate the

rationale of its managers for a discrete employment decision,

and only with such a rationale in hand can it hope to defend

against even the most baseless charge of discrimination.

Wilson, 471 U.S. at 271 (“[jjust determinations of fact cannot

be made when, because of the passage of time, the memories of

witnesses have faded or evidence is lost”).*

And that, of course, is precisely why Congress purposefully

selected a short charge-filing limitations period (either 180 or

300 days).’ See, e.g., Mohasco Corp., 447 U.S. at 825

(“Congress clearly intended to encourage the prompt processing

of all charges of employment discrimination”); Occidental Life

Ins. Co., 432 U.S. at 372 (1977) (Congress enacted Title VII's

limitations period “to protect fully the rights of the person or

persons against whom the charge is filed”) (quoting S. Rep.

No. 92-415, p. 25 (1971)).

B. The Decision Of The Court Of Appeals Effectively

Undermines The Societal Interest In Repose.

The rule adopted by the court of appeals cannot be

reconciled with these principles. The court below concluded

that a complainant could lawfully challenge a discrete

employment decision years or decades after the fact, so long as

the economic consequences of that decision persist into the

limitation period. That rule is incompatible with Congress’

design and the notions of “essential fairness to defendants”

that underlie all statutes of repose. American Pipe & Constr.

Co., 414 U.S. at 554.

6. The case for definitive and unambiguous rules of limitation

is at its strongest with “a statutory scheme in which laymen, unassisted

by trained lawyers initiate the process.” Mohasco Corp., 447 U.S.

at 816 n.19 (citation omitted).

7. 42 U.S.C. § 2000e-5(e); of 29 U.S.C. § 160(b) (providing for

six-month limitations period for filing unfair labor practice charge).

9

Goodwin’s complaint sought to force GM to defend the

merits of employment decisions it made up to eighteen years

before she filed her charge. Pet. App. at 29a, 32a. She

complained, for example, that when she was recalled from a

layoff in 1993, she had been placed improperly in petitioner’s

salary grid. She protested her placement to two of petitioner’s

managers at the time she was “wrongfully” slotted, but she did

not file her charge of discrimination until as much as six years

later.* By now, however, one of the managers to whom she

claims to have complained is dead and the other is retired.

Pet. Br. at 7 n.1. “Preserving a right of action for such a vast

stretch of time would . . . thwart[] the basic objective of repose

underlying the very notion of a limitations period.” Rotella v.

Wood, 528 U.S. 549, 554 (2000).

According to the court of appeals, the rule it articulated is

applicable only to “pay discrimination” cases; for every other

mode of discrimination, complainants are obligated to act with

dispatch. The text of Title VII makes no such distinction, and as

explained infra at pp. 12-14, neither do the Court’s opinions.

But more fundamentally, experience teaches that the

distinction between “pay” cases on the one hand, and “everything

else” on the other, is an illusion. A discrimination case typically

begins with a demonstration that the plaintiff has suffered a

“tangible employment action”; for an employer’s conduct to

constitute tangible employment action, there must be

“a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).

Thus, nearly every discrimination case will involve a decision

with a demonstrable impact on compensation. Any “exception”

to the ordinary rules of repose that would permit a plaintiff to

challenge adverse “employment actions” that are decades old,

based on a continuing impact on pay, would push the general

8. Goodwin claimed to be uncertain as to precisely when the

conversation occurred.

10

rule of repose to the margins of the statute, where it would come

into play only with respect to the claims of exceptionally inartful

plaintiffs.

This is not mere prediction. In Ashley v. Boyles Famous

Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir. 1995), for

example, the Sixth Circuit — following the approach adopted

by the Tenth Circuit below — held that the plaintiffs filed their

charge too late to challenge their assignment to non-union jobs,

but nonetheless were entitled to challenge the pay disparity

resulting from that allegedly discriminatory assignment.

Similarly, in Nealon v. Stone, 958 F.2d 584, 591-92 (4th Cir.

1992),° the court followed this same rationale to conclude that

the plaintiff could challenge a job classification decision made

well outside the limitations period because that classification

decision had ongoing economic consequences, reflected in “each

paycheck” the plaintiff received.

Indeed, in Evans, the Court noted that in the limitations

arena, clever characterization could easily overcome reasoned

rules of law. There, the plaintiff sought to challenge the current

consequences of a decision made long ago — a decision that

deprived her of seniority, and thus compensation, within the

limitations period. The Court concluded that

the mere fact that a past event . . . has affected the

calculation of seniority credit [and thus the plaintiff's

present paycheck, does not give the plaintiff a timely

charge], even if the past event might at one time

have justified a valid claim against the employer.

A contrary view would substitute a claim for

seniority credit for alsaost every claim which is

barred by limitations.

Evans, 431 U.S. at 560 (emphasis added).

9. Nealon was an Equal Pay Act case, but it purported to apply

this Court’s Title VII limitations decisions.

11

C. The Courts Of Appeals Are In Disarray On The

Application Of Title VII’s Limitations Period,

Especially In Cases Characterized As “Pay”

Or “Compensation” Cases.

The courts of appeals are divided into two “camps” in

applying Title VII’s limitations period to claims characterized

as “pay” or “compensation” disputes, however ill-defined that

category might be. These are not merely academic differences

in analytical approach; in four circuits, Congress’s charge-filing

limitations period is enforced with some degree of rigor

(properly, in the Chamber’s view). In six other circuits, there

effectively is no limitations period in most “compensation”

cases. In these circuits, an aggrieved employee may, if he

chooses, file a charge within the statutory period following the

relevant adverse employment action he challenges, or he may

wait until he or she retires — years or decades later — without

any adverse consequences for the timeliness of the claim.

This remarkable divergence can be attributed to a single

passage — indeed, to a single sentence — in Bazemore v. Friday,

478 U.S. at 395-96.'° Heedless of the Court’s admonition that it

is “generally undesirable, where holdings of the Court are not

at issue, to dissect the sentences of the United States Reports as

though they were the United States Code,” St. Marys Honor

Ctr., 509 U.S. at 515, six courts of appeals have drawn from

this language in Bazemore an exception, not merely to the

Court’s other Title VII cases, but to the Court’s more general

conviction that excessive lenity in matters of timeliness “would

bar repose, prove a godsend to stale claims, and doom any hope

of certainty in identifying potential liability.” Rotella, 528 U.S.

at 559 (a period of limitations stretching eight years would defeat

interest in repose). That result is neither compelled nor even

permitted by the Court’s cases, as explained below.

10. The Court entered a brief per curiam opinion in Bazemore,

which indicated general agreement with the accompanying concurring

opinion of Justice Brennan, in which the other Justices joined. All of

the language cited in this brief and relied upon by the court below appears

in Justice Brennan’s concurring opinion.

12

1. The Court’s Cases Reflect A Unified Standard

To Limitations Questions Under Title VII.

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977),

Bazemore’s precursor, establishes the prevailing Title VII

limitations rule: “a discriminatory act which is not made the

basis of a timely charge is the legal equivalent of a discriminatory

act which occurred before the statute was passed [even if that

act has] a continuing impact on [the charging party’s] pay and

fringe benefits. . . . [M]Jere continuity” of impact is not enough

to turn a stale claim into a timely one. Evans, 431 U.S. at 558.

Bazemore applied that rule to a facially discriminatory salary

system, as explained below.

a. Evans was a flight attendant. When she married, the

airline’s policies forced her to quit. When the no-marriage rule

was subsequently eliminated, she returned to work, but the

airline refused to give her seniority credit for the duration of

her compelled absence. When she sued the airline, she did not

seek back pay for the period predating her return but, because

her seniority determined her pay rate, and it had been depressed

by the airline’s prior discrimination, she sought compensation

for the shortfall in her current paychecks.

The Court held, however, that Evan’s ongoing economic

disadvantage was merely a lingering consequence of a statutory

violation occurring outside the limitations period, and thus was

time-barred. “United was entitled to treat that past act [i.e. Evan’s

termination] as lawful after respondent failed to file a charge

of discrimination” within the statutorily prescribed period.

Id. at 558. Although Evans claimed that a current violation

existed, because each paycheck she received contained less

money than she would have received had her seniority been

adjusted to remedy the prior discrimination, the Court rejected

Evan’s focus on her current paycheck. Nearly every claim has a

financial component, the Court observed, and the rule urged by

Evans “would substitute a claim for seniority credit for almost

every claim which is barred by limitations.” Jd. at 560.

13

b. Bazemore involved an overtly discriminatory pay policy

established before the employer, a state agency, was subject to

Title VII. 478 U.S. at 390-91. Although the agency eliminated

the race-specific categories that had characterized the system

once it became subject to the Act in 1972, the discriminatory

pay policy continued thereafter. Jd. at 391.

The court of appeals held that the employees’ discrimination

claims were time-barred, but this Court reversed. Jd. at 386-88.

An employer, the Court held, could not defend a current

facially discriminatory pay structure by arguing that it had

previously engaged in the same discriminatory conduct without

complaint. “[T]o the extent an employer continue[s} to engage in

[a discriminatory] act or practice [within the limitations period], it

is liable” under Title VII. Jd. at 394-96. It was in this context

that Justice Brennan observed that “[e]ach week’s paycheck that

delivers less to a black than to a similarly situated white is a wrong

actionable under Title VIL, regardless of the fact that this pattern

was begun prior to the effective date of Title VII.” Jd. at 395-96.

c. Twice, the Court has explained the relationship between

Evans and Bazemore. Bazemore itself explained the critical

distinction: the employer in Bazemore had continued to impose,

within the limitations period, a facially unlawful pay system

intended to perpetuate a discriminatory regime begun before

the Act applied to it. In contrast, the “Respondent [in Evans]

made no allegation that the seniority system itself was

intentionally designed to discriminate.” Bazmore, 478 U.S. at

396 n.6. The Court thus drew a distinct line between “system(s]

intentionally designed to discriminate,” which can be challenged

every time the system effects a discriminatory result, and

discrete, non-systemic employment decisions, which must be

challenged at the time they occur.

Similarly, in Lorance v. AT&T Tech., Inc., 490 U.S. 900

(1989), a case challenging an allegedly discriminatory seniority

system, the Court explained that with:

a facially neutral system, the discriminatory act occurs

only at the time of adoption. . . . [Conversely,] a facially

discriminatory system [like the pay structure at

issue in Bazemore] by definition discriminates

every time it is applied. This is a material

difference for purposes of the analysis we

employed in Evans and Ricks — which focuses

on the timing of the discriminatory act for

purposes of the statute of limitations. It .. . also

[explains the “each week’s paycheck” language]

of Bazemore v. Friday... ."'

Id. at 912 n.S (emphasis in original). Lorance thus

underscored the ingredient essential to the Bazemore holding:

a “facially discriminatory system” operating within the

limitations period.

2. The Courts of Appeals’ Divergent Interpreta-

tions of Bazemore Have Created Inconsistent

Rules Governing the Application of Title VII’s

Limitations Periods to Pay-Related Discrimi-

nation Claims.

Like the Lorance Court, the Sixth, Seventh, D.C. and

Federal Circuits have all found in Bazemore a special application

of the general rule of limitations, applicable to cases involving

“facially discriminatory system(s].” Lorance, 490 U.S. at 912

n.5. In these courts, the “critical question” is not the type of

employment benefit affected by the alleged discrimination —

pay, promotion, discharge, etc. — but “whether any present

violation exists.” Evans, 431 U.S. at 558. The Second, Third,

Fourth, Eighth, Tenth and Eleventh Circuits, conversely, read

Bazemore as establishing a unique rule of limitations in cases

involving pay discrimination. These conflicting interpretations

11. Lorance’s application to seniority systems was superseded

by the Civil Rights Act of 1991, but the statute left the Evans

limitations rule unaffected outside of the seniority system context.

See, e.g., 137 Cong. Rec. $15485 (1991) (interpretive memorandum of

Sen. Danforth (“[t]his legislation should not be interpreted to affect the

sound rulings of the Supreme Court regarding ‘continuing violations’

theory under Title VII”).

15

of the Court’s decisions will not be reconciled unless and until

the Court determines which is correct.

a. The “Present Violation” Approach.

Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d

1138 (7th Cir. 1997), is typical of the circuit opinions adopting

the “present violation” approach to Bazemore and Evans.

In Dasgupta, a professor alleged pay discrimination stemming

from decisions made over two decades, but during the

limitations period he had received raises that were comparable

to those received by his peers. Writing for the court, Judge Posner

found Bazemore inapplicable because in Bazemore “the illegal

act [was] repeated during the limitations period,” while in

Dasgupta, the plaintiff sought simply to “rectify the [economic]

consequences of time-barred” pay decisions. Jd. at 1140.

A contrary ruling, the court explained, would “unravel the statute

of limitations.” Jd.

The Seventh Circuit has reaffirmed this “present violation”

approach in two subsequent cases. See Snider v. Belvidere

Township, 216 F.3d 616, 618 (7th Cir. 2000) (“the continued

receipt of lower paychecks does not revive past allegedly

discriminatory conduct”); Christiansen v. APV Crepaco, Inc.,

178 F.3d 910, 915 (7th Cir. 1999) (claim that denial of skills-

based pay breached collective bargaining agreement was time-

barred; ongoing pay effect stemmed from decision six years

earlier and was not actionable). A number of other federal courts

of appeals — including those in the Sixth, D.C., and Federal

Circuits — have adopted a similar analysis in the context of

pay-related discrimination claims. See, e.g., Anderson v. Zubieta,

180 F.3d 329, 337 (D.C. Cir. 1999) (reversing summary

judgment for employer; where plaintiffs Offered evidence that

pay disparities were “caused by the continued maintenance of a

‘broadly discriminatory pay and benefits system,” new violations

occurred during limitations period); Bosley v. Merit Sys.

Protection Bd., 162 F.3d 665, 667 (Fed. Cir. 1998) (claim based

on denial of pay increase was time-barred even though monetary

effects continued into the future); EEOC v. Penton Indus. Publ’g

16

Co., 851 F.2d 835, 838 (6th Cir. 1988) (dismissing pay disparity

claim; claim challenged isolated employment decision outside

limitations period rather than long-standing and demonstrable

policy of discrimination).

b. The “Paycheck” Approach.

The court below expressly rejected the “present violation”

approach urged by Judge Posner in Dasgupta, and, based on its

reading of the “paycheck” language from bazemore, held that a

plaintiff need not act within the time limits prescribed by Section

706(e) to challenge a discrete compensation-related decision.

Indeed, the court drew from Bazemore a rule that would entitle

an employee to wait until the end of his or her career before

challenging such a decision.

The Second, Third, Fourth, Eighth and Eleventh Circuits

have adopted the same rule. Most of these courts have described

these ongoing wage disparities as a continuing violation.

See Cardenas v. Massey, 269 F.3d 251, 257-58 (3d Cir. 2001)

(discriminatory wage payments constitute a continuing

violation); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d

164, 167-68 (8th Cir. 1995) (gender discrimination claim

regarding assignment of plaintiff to non-union job was time-

barred, but resulting pay disparity was still actionable seven

years later, based on Bazemore’s “paycheck” language);

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 347-48

(4th Cir. 1994) (“an act of sex discrimination in compensation

first inflicted at the date of hiring can thereafter continually

violate the plaintiff’s rights” due to ongoing pay disparity, even

when hiring decision occurred outside limitations period);

12. See also Tademe v. St. Cloud State Univ., 2001 U.S. Dist. LEXIS

20666, at *14 (D. Minn. Dec. 10, 2001) (plaintiff’s claim challenging

the ongoing economic consequences of a 1991 hiring placement decision

were time-barred; decision was “not a repeated and on-going decision”

by the employer and the resulting lower paychecks do not constitute

new violations); Williams v. Munoz, 106 F. Supp. 2d 40, 42-43 (D.D.C.

2000) (failure to promote claim was time-barred even though current

paychecks were lower as a result).

17

Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 449

(11th Cir. 1993) (reversing district court’s finding that hiring

decision that caused pay disparity was discrete act rather than

continuing violation; “[w]Jhen the claim is one for discriminatory

wages, the violation exists every single day the employee

works”); Nealon v. Stone, 958 F.2d 584, 591-92 (4th Cir. 1992)

(plaintiff could challenge employer’s job classification decision

even though it occurred outside the limitations period, because

of ongoing pay disparity; relying on Bazemore’s “paycheck”

language).'*

The Second Circuit has reached a similar conclusion, relying

on the Bazemore “paycheck” language, but has concluded that

wage disparities represent a series of discrete violations rather

than a continuing violation. Pollis v. New Sch. for Soc. Research,

132 F.3d 115, 119 (2d Cir. 1997) (pay discrimination

“is fundamentally unlike” other types of discrimination; quoting

Bazemore’s “paycheck” language).

- Therule adopted by these courts “would permit plaintiffs who

know of a [violation] to wait, ‘sleeping on their rights,’ as the . . .

damages accumulate, perhaps bringing suit long after the ‘memories

of witnesses have faded or evidence is lost.’ ” Klehr, 521 U.S.

at 187. If, as this Court has observed, “Congress clearly intended

to encourage the prompt processing of all charges of employment

discrimination,” that rule of law cannot stand. Mohasco Corp.,

447 US. at 825. The Court should grant review in this case to

eliminate this division of authority and correct the court of appeals’

misguided application of federal law.

13. The Eleventh Circuit has concluded that this “paycheck”

approach should be limited to wage disparities, and does not extend to

disparities in stock dividends. Carter v. West Publ’g. Co., 225 F.3d 1258,

1264-65 (11th Cir. 2000) (disparities in stock dividends constituted

“present effects of a one-time violation,” because they derived solely

from the employer’s previous decision as to who could participate in

stock program, and the program ended two years before a charge

was filed). The Eleventh Circuit’s hairsplitting on which types of

compensation should be covered by the “paycheck” exception

underscores that this reading of Bazemore is unworkable.

18

II. THE COURT SHOULD ALSO RESOLVE THE SPLIT

IN THE CIRCUITS OVER THE CALCULATION OF

TITLE VII BACK PAY AWARDS.

Section 2000e-5(g) of Title VII provides that “[b]ack pay

liability shall not accrue from a date more than two years prior

to the filing of a charge with the Commission,” but does not

specifically provide for when, or whether, a court may award

back pay for a period greater than 180 or 300 days, the filing

period for charges of discrimination under Title VII. The circuit

courts have produced at least three interpretations of how Section

2000e-5(g) should be applied.

Some courts have held that back pay is recoverable only

for a period beginning with the charge-filing limitations period."* —

Other courts have held that back pay may be recovered for two

years in every Title VII case, regardless of whether a continuing

violation is shown’; and a third group allows successful

14. In Ashley v. Boyle's Famous Corned Beef Co., the en banc

Eighth Circuit found a plaintiff’s discriminatory pay claim to be timely,

based on the continuing violation theory, but nevertheless limited

recovery to the 300-day charge-filing limitations period applicable to

Title VII claims in Missouri. 66 F.3d at 168. See also Sowell v. Alumina

Ceramics, Inc., 251 F.3d 678, 684 n.3 (8th Cir. 2001); Pollis v. New

Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997) (citing Ashley

with approval); Beavers v. American Cast Iron Pipe Co., 975 F.2d 792,

800 (11th Cir. 1992) (even where a continuing violation exists, plaintiff

may recover only for 180-day filing period); Blake-McIntosh v. Cadbury

Beverages, Inc., No. 3:96-CV-2554 (EBB), 1999 WL 643661, at *8

(D. Conn. Aug. 10, 1999) (disallowing recovery of back pay beyond

300-day filing period).

15. See, e.g., EEOC v. O&G Spring & Wire Forms Specialty Co.,

38 F.3d 872, 880 (7th Cir. 1994) (district court “properly limited recovery

[of back pay] in accordance with the two year limitation of Title VIT”),

cert. denied, 513 U.S. 1198 (1995); Estate of Pitre v. Western Elec. Co.,

975 F.2d 700, 705-06 (10th Cir. 1992), cert. denied, 510 U.S. 972 (1993);

EEOC v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1364, 1376 (S.D. Fla.

1998), vacated on other grounds, 220 F.3d 1263 (11th Cir. 2000);

Bempah v. Kroger Co., No. CV488-200, 1989 U.S. Dist. LEXIS 6345

(S.D. Ga. June 5, 1989).

19

plaintiffs to recover back pay measured by this two year window

only where there is a continuing violation."

For all of the reasons given in GM’s petition, the Chamber

believes that the Court should grant review on this issue as well.

In addition, the Chamber notes that it is inherently unsatisfactory

to have the nation’s primary anti-discrimination statute

administered in such a fundamentally inconsistent fashion based

solely on geography. Most of the individual businesses that

belong to the Chamber do business in more than one state,

and a great many do business in all or nearly all of them.

Widely disparate rules on questions of fundamental importance,

like the remedial reach question posed here, merely invite forum

shopping. Only the Court can harmonize the law on this point,

and the Chamber submits it should do so in this case.

16. See, e.g., Sabree v. United Bhd. of Carpenters & Joiners Local

No. 33,921 F.2d 396, 401 & n.11 (1st Cir. 1990); Stallworth v. Shuler,

777 F.2d 1431, 1435 (11th Cir. 1985); Glass v. Petro-Tex Chem. Corp.,

757 F.2d 1554, 1560 & n.4 (Sth Cir. 1985); Acha v. Beame, 570 F.2d

57, 65 (2d Cir. 1978); Eisenberg v. Pennsylvania State Univ.,

No. 3:00CV301, 2001 WL 202095, at *7 (M.D. Pa. Feb. 28, 2001)

(citing Garland v. USAir, Inc., 767 F. Supp. 715, 727 (W.D. Pa. 1991)).

:

20

CONCLUSION

The petition should be granted and the decision of the court

of appeals reversed.

Respectfully submitted,

STEPHEN A. BOKAT ZACHARY D. FASMAN

Rosin S. ConraD NEAL D. MOLLEN

NATIONAL CHAMBER Counsel of Record

LimiGATION CENTER, INC. | GreGoRY R. WATCHMAN

1615 H Street, N.W. PAuL, HASTINGS, JANOFSKY &

Washington, D.C. 20062 Waker LLP

(202) 463-5337 1299 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-2400

(202) 508-9500

Attorneys for Amicus Curiae

The Chamber of Commerce of the United States