Amicus Curiae Brief — Crawford v. TRW Automotive Automotive U.S., LLC (No. 09-494)

MOTION FILED

kp NOV 2 7 2009

No. 09-494

IN THE

Supreme Court of the United States

JERRY CRAWFORD; CHARLES ANNABEL; DARRYL

BALLARD; MATTHEW BURDO; DON HOSKINS, ROY

LANNING; PETER POWELL, WANDA SIMPSON, DANIEL

SLANE, PETITIONERS

Vv.

TRW AUTOMOTIVE U.S. LLC

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR MAURICE & JANE SUGAR LAW CENTER

FOR ECONOMIC & SOCIAL JUSTICE AND

INTERFAITH WORKERS JUSTICE AS AMICI

CURIAE SUPPORTING PETITIONERS

JOHN C. PHILO WILLIAM GOODMAN

;' Counsel of Record

Maurice & Jane Sugar

Law Center for Economic Goodman & Hurwitz PC

& Social Justice 1894 E Jefferson Ave

4605 Cass Avenue Detroit, MI 48207

Detroit, MI 48201 (313) 567-6170

(313) 993-4505

CURRY & TAYLOR @ (202) 3293-4141

MOTION OF THE MAURICE & JANE SUGAR LAW

CENTER FOR ECONOMIC & SOCIAL JUSTICE

AND INTERFAITH WORKERS JUSTICE FOR

LEAVE TO FILE A BRIEF AS AMICI CURIAE IN

SUPPORT OF THE PETITION FOR A WRIT OF

CERTIORARI

Now Comes the Maurice & Jane Sugar Law

Center for Economic & Social Justice (Sugar Law

Center) and Interfaith Workers Justice (IWJ) and

respectfully moves this Court for leave to file the

accompanying brief as amici curiae in support of the

Petition for Writ of Certiorari submitted by Jerry

Crawford, Charles Annabel, Darryl Ballard, Matthew

Burdo, Don Hoskins, Roy Lanning, Peter Powell,

Wanda Simpson, and Daniel Slane.

While Petitioners have consented to the filing of

the amici curiae brief, the Respondent TRW

Automotive U.S. LLC has refused to grant consent,

necessitating this motion.

Based in Detroit Michigan, the Sugar Law

Center is a leading national nonprofit whose central

mission concerns the promotion of economic and social

rights as human rights and civil rights within our

nation’s legal system. Consistent with our mission, the

Law Center is extensively engaged in worksite closing

and mass layoff litigation throughout the country and

we are one of a very few nonprofit law centers who

have undertaken such work. The Sugar Law Center is

deeply interested in this case, because its outcome

could affect the rights of workers to obtain a remedy for

violations of the Employee Retirement Income

Security Act §510 at the time of plant closings. Without

1

such remedy, the human right to social security is

jeopardized for all our nation’s workers.

Interfaith Workers Justice is one of the

preeminent national nonprofit organizations dedicated

to improving wages, benefits, and working conditions

for all. Based in Chicago, Illinois and with a network of

affiliated local organizations throughout the country,

IWJ educates, organizes, and mobilizes the religious

community to work with other community and labor

groups on human rights and employment issues

including workers wages, health care benefits, and

pensions to allow workers and their families to retire

with dignity. Interfaith Workers Justice has extensive

expertise and is deeply interested in the issues pending

before the Court because of their potential impact on

the rights of working people to attain retirement

benefits without interference so as to live above

poverty and with dignity in old age.

Petitioners have thoroughly briefed the

substantive issues of the case within the context of

existing federal legislation and related case law.

Amici’s proposed brief does not repeat the substance of

Petitioner's arguments but rather discusses the

relationship of the issues to obligations existing under

international human rights law. A universal right to

social security is recognized by the United States and

that right is fulfilled by public benefits and the

regulation of private retirement plans. This context

provides guidance and persuasive authority for the

Court in deciding the merits of the pending Petition for

Writ of Certiorari.

For the above reasons, this motion for leave to

file the attached brief amici curiae should be granted.

Respectfully submitted,

WILLIAM GOODMAN

GOODMAN & HURWITZ PC

1394 E Jefferson Ave

Detroit, MI 48207

(313) 567-6170

(Counsel of Record)

-and-

JOHN C. PHILO

MAURICE & JANE SUGAR LAW CENTER

FOR ECONOMIC & SOCIAL JUSTICE

4605 Cass Avenue

Detroit, MI 48201

(313) 993-4505

1

TABLE OF CONTENTS

INTERESTS OF THE AMICI CURIAE ..u..ccceccccccecseeeeee 1

INTRODUCTORY STATEMENT

& SUMMARY OF ARGUMENT. ........ccscsssssccssscscsscesssssaseressease 2

TT ahi cassis sisieeeressckadibisathslasicsniaiiaiinibcitiebbiniiaatiexsaeieaistibitiin 4

I. IN THE UNITED STATES, THE HUMAN

RIGHT TO SOCIAL SECURITY IS, IN PART,

PROTECTED BY THE REGULATION OF

PRIVATE RETIREMENT BENEFITS... eee 4

1. Federal Statutes Are Properly Interpreted

To Uphold Human Rights Norms ............cc:scccceseeeerees 4

2. The Scope Of Citizens’ Right To Social

ERNIE Tb PO ee RII ws svincccicccnnsesceciwnsessssvessninissiessens 7

3. The Right To Social Security Is Established

By Treaties Of The United States And By

Customary International Law ................cse:cccersesseersees 8

4. The United States Plan To Provide For

Citizen’s Social Security Includes Public

Benefits Supplemented By Private Plans................. 12

II. ERISA §510 SHOULD BE LIBERALLY

CONSTRUED TO PROHIBIT DISCHARGES

AND DISCRIMINATION AGAINST

WORKERS TO AVOID THEIR

ATTAINMENT OF BENEFIT PLAN RIGHTS.

1. ERISA §510 Protects Workers Against

Discharges Resulting From Worksite

1)

Closings And Discriminatory Layoff And

ee Ris icccsctsssainesssceareseinceescctlinrscantdercstetmmemanas 19

2. Effective Equitable Remedies Exist To

Redress Illegal Discharges Resulting From A

Plant Closing And To Redress Discriminatory

Conduct Occurring Before A Closing...............:s00+ 23

CCIE access conecsonsesecooveesacceronssencsesocdescessonesss 26

ut

TABLE OF AUTHORITIES

Page

CASES

ABDULLAHI V. PFIZER, INC., 562 F.3D 163, 176-77

Cs saansunnieel 4

ATKINS V. VA., 536 U.S. 304, 122 S.CT. 2242, 158

I sss epsetennnnensce 5

CHAUFFEURS, TEAMSTERS & HELPERS, LOCAL

No. 391 v. TERRY, 494 U.S. 558, 571, 110S.Cr.

DBs LO Li BI CI) veces vsesesssceccesccsscoessssosceseseece 24

CONKWRIGHT V. WESTINGHOUSE ELEC. CORP.,

SSB F.2D ZS1, ZE6 CATH CIR. 1991) ....cerrossccesssccssccsoreesoree 18

COOMER V. BETHESDA Hosp. INC., 370 F.3D 499,

a csebeansunsnisooees 20

CRAWFORD V. TRW AUTOMOTIVE, 560 F.3D 607,

I a ia ssantnnsennnsses 21

CROZIER V. HOWARD, 11 F.3D 967, 969 N. 3 (10TH

SE sii iccctiesshcessiceiinpesasacainiusinai aba mianeeiasasonisiseseenenes 19

DELGADO V. HOLDER, 563 F.3D 863, 875-76 (9TH

ERSTE 2s ODE ras Re eS UO a 6

FLORES V. SOUTHERN PERU COPPER CORP., 414

F.3D 233, 250-51 (2D CIR. 2008)..........essecsscssccsessscereesssers 4

FORESTER V. CHERTOFF, 500 F.3D 920, 929 (9TH

ARETE RSE tp nO PD CEO 18

HAMDI V. RUMSFELD, 542 U.S. 507, 124 S.CT.

es, LO Mac BRO 0 CIGD ccs cescscncscscvcckcscnessecesccsesessonses 5

HONDURAS, 372 U.S. 10, 20-21, 88 S.CT. 671, 9

FT I cc aisscaicensnshnapanionstnesistuecilncerexnensess 6

HUMPHREYS V. BELLAIRE CORP., 966 F.2D 1037,

SE Os BI viassesscsansscessmsrcnsevossssnnssssanepeseesnse 21, 22

IMMIGRATION AND NATURALIZATION SERVICE V.

CARDOZA-FONSECA, 480 U.S. 421, 486-40, 107

S.CT. 1207, 94 L.ED.2D 434 (1987).......c..cccscssssseserscesssoess 6

WwW

IN RE CARTER, 553 F.3D 979, 985-986 (6TH CIR.

IIIT iss ioc ins ictamsaonemiancmaadlaininiina eaciiinsdnueebesmeenciinniies 18

INTER MODAL RAIL EMPLOYEES ASS'N V.

ATCHISON, TOPEKA AND SANTA FE Ry., 520

U.S. 510, 117S.CT. 1518, 187 L.ED.2D 763

6: SEERA Se Ee tte Ra ET Pe Ne Co 20, 21

JAKIMAS V. HOFFMANN-LA ROCHE, INC., 485

a icon ciassssnaonsensmncadonasnonstonsncnies 18

KROSS V. WESTERN ELEC. Co., INC., 701 F.2D

DE, Te Gs NEE? ceesecnccsnssesevsncasccesecsosssecesessesees 18

LAWRENCE V. TEX., 589 U.S. 558, , 123 S.CT.

OTe, Fe pe I ED secnesstceceseoscocrenesecsrconsnsesensers 5

MITCHELL V. ROBERT DE MARIOJEWELRY, INC.,

361 U.S. 288, 292-93, 80 S.CT. 332, 4 L.ED.2D

EERE eis noe ron tata Seek Ae Oe 24

MURRAY V. SCHOONER CHARMING BETSY, 2

CRANCH 64, 118, 2 L.ED. 208 (1804)... eeeeeeeeeeeeees 6

NLRB V. JONES & LAUGHLIN STEEL CorRP., 301

U.S. 1, 48-49, 57 S.CT. 615, 81 L.ED. 893 (1937).......... 24

PENNINGTON V. WESTERN ATLAS, INC., 202 F.3D

ee MID oncecscdecetsicssisercevcarssesinesccnsossoecss 21

PRESBYTERIAN CHURCH OF SUDAN V. TALISMAN

ENERGY, INC., 582 F.3D 244, 255 ..........cccccsssssscocseccsecores 4

PRICE WATERHOUSE V. HOPKINS, 490 U.S. 228

Ca cst 22

RASUL V. BUSH, 542 U.S. 466, 124 S.CT. 2686, 159

I eailaebbnonoute 5

ROPER V. SIMMONS, 548 U.S. 551, 125 S.CT. 1183,

oc ceduiteionil 5

ROUSH V. KFC NAT'L MANAGEMENT Co., 10

F.3D 392, 398 (6TH CIR. 1993), CERT. DENIED,

513 U.S. 808, 115 S.CT. 56, 180 L.ED.2D 15

| ___«_SSSRRRE SPN sen gs ee es CO RIE Cr Co 25

SCHWARTZ V. GREGORI, 45 F.3D 1017, 1022 (6TH

SE. HRI isiae das skcshccasstdahsesapusdcdsabiadonenpeaehanianbisvonsiadixecins 24

U

SHORE V. FEDERAL EXPRESS CORP., 42 F.3D 373

GE, ee irninccorcrescrctaetsninienktaisasitaleimudbdeniaens 25

SMITH V. AMERITECH, 129 F.3D 857, 865 (6TH

Ce Fe basse eecinsscinnctnicsisetensteesnernnainiatcetiatanaanianaaniinaiipanai 21, 22

SOSA V. ALVAREZ-MACHAIN, 542 U.S. 692, 737-

38, 124 S.CT. 2739, 159 L.ED.2D 718, (2004).................. 4

STEPHENS V. NAT'L DISTILLERS AND CHEM.

CorpP., 69 F.3D 1226, 1233 N. 6 (2D CiR. 1998)................ 6

SUTTON V. UNITED AIR LINES, INC., 527 U.S.

OEE Be ehiscecknsnsnnsirtideniseendincindainaniassieidd paidiiabadaianiaa 18

TART V. HILL BEHAN LUMBER CoO., 31 F.3D 668,

Oe a Fe vcectccissbevestcabeiniiicchntianainiabnnsaiide 18

TCHEREPNIN V. KNIGHT, 389 U.S. 382, 336 (1967)......... 18

TEXAS DEP'T OF COMMUNITY AFFAIRS V.

BURDINE, 450 U.S. 248, 253, 101 S.CT. 1089, 67

Fe Bat ee CED ncccsstpinnssncschncnasbiiesniseiecimnimeineassonsesiaih 22

WARNER V. BUCK CREEK NURSERY, INC., 149

F.SUPP.2D 246, 256-57 (W.D.VA., 2001) ..........-eeeeeeeees 24

WEINBERGER V. ROSSI, 456 U.S. 25, 32, 102 S.CT.

LED, Ti RR Fee Cr ectecsteccceniaestdenntenensherensiacinines 6

YUSUPOV V. ATTORNEY GEN. OF U.S., 518 F.3D

SE CAP Fe texisvicssnserincnssrsctnimnousmadmiiacmneaa 5, 6

STATUTES

BD UAE. © DD sncescisdsrnssartcnscorsemnnamanaae 24

Rik Loh | EM enamnnaNun Nn OrON nee zn TN 6, 7,8

Be ali te cchectibcieiibdeeniaieseinde imines 12

Cong. Rec. - House 5468 (daily ed. April 11, 1935)........ 13

Cong. Rec. - House 5689 (daily ed. April 15, 1935)........ 13

Cong. Rec. - House 5827 (daily ed. April 16, 1935)........ 13

Cong. Rec. - Senate 8224 (daily ed. May 27,1935) _

siitenbiadssiabiaieiaiedrieannaaaemmaa aaa 14, 16, 17

VI

OTHER AUTHORITIES

Eleanor D. Kinney, Recognition of the

International Human Right to Health and

Health Care in the United States, 60 Rutgers

IN, MIE CIID... sc cocuncccssesoovecscncessencosonoosevcsseveees 14

Restatement (Third) of Foreign Relations Law

of the United States § 102 (1987)........ sniasheasianeentamauiens 5

]

INTERESTS OF THE AMICI CURIAE'

The Maurice & Jane Sugar Law Center for

Economic & Social Justice’? is a leading national

nonprofit law center and one of a very few such

organizations that is extensively engaged in worksite

closing and mass layoff litigation on behalf of our

nation’s workers. The Sugar Law Center is deeply

interested in this case, because its outcome could affect

the right of workers to obtain a remedy for violations of

the Employee Retirement Income Security Act

(ERISA) §510 during plant closings and mass layoffs.

The judgment of amici is based on over 15 years of

experience and accomplishment in the representation of

thousands of displaced workers before federal and state

trial and appellate courts throughout the country.

Interfaith Workers Justice is nationally

recognized nonprofit with a national network of

affiliated local organizations. IWJ is one of the

preeminent organizations dedicated to improving

wages, benefits, and working conditions. The

organization educates and mobilizes the religious

community to work with others advocating for the

human rights of all workers, including the right to fair

wages, health care benefit», and pensions to allow

workers and their families to retire with dignity.

' Pursuant to Rule 37.6 of the Court, no counsel for a party has

authored this brief, in whole or in part. No person or entity, other

than amici curiae, its members or its counsel have made any

monetary contribution to the preparation or submission of this

brief.

? The Sugar Law Center is affiliated with the National Lawyers

Guild (NLG). The NLG is a progressive bar association of

attorneys and legal workers working in support of human rights.

2

Interfaith Workers Justice has extensive expertise

with and is deeply interested in the issues pending

before the Court. The judgment of amici is based on

over a decade of experience and accomplishment

working with workers, their families and communities

to mobilize protection of workers rights, implement

legal strategies, and advance policy reform.

Pursuant to Rule 37, all parties received notice

of the intention to file amici curiae brief at least 10

days prior to the due date. Petitioners have granted

consent to the filing of the amici curiae brief.

Respondent TRW Automotive U.S. LLC has declined

consent for the filing of the amici curiae brief.

INTRODUCTORY STATEMENT

& SUMMARY OF ARGUMENT

This case arises from violations of an employee’s

right to attain retirement benefits through a private

plan offered at their workplace. The Petitioner’s

worksite was covered by a defined benefit pension plan,

which provided employees with increased benefits

based on the number of accrued benefit service years

worked. Employees who retired with thirty or more

benefit service years were entitled to full retirement

benefits, including pension income and health care.

Benefit service was earned for each calendar year in

which the employee worked 1680 hours. However if an

employee was laid off during the calendar year, the

employee was required to work an additional 170 hours

for that year to be credited as a year of benefit service.

Many Petitioners had acquired thirty years of

seniority with the employer but had not yet acquired

3

thirty years of benefit service. Three of the Petitioners

were in their thirtieth year of benefit service, but

because of their status on layoff, were waiting to be

recalled. These employees only had to work 170

additional hours before they would have obtained thirty

years of benefit service. Because of the Respondent’s

illegal actions, both groups of Petitioners lost the ris .it

to earn further benefit service credits. As result, all

Petitioners lost the right to earn increased benefits

under the retirement plan.

Under international human rights law, all

persons have a right to social security, including income

maintenance and affordable health care in old age.

Nations often meet their human rights obligation by

providing a combination of public benefits and access to

private plans, which are regulated to prevent

employers from unfairly interfering with an employee’s

ability to attain plan benefits. In the United States,

private benefits are principally regulated by the

Employee Income and Retirement Security Act.

Amici argues that within a context of protecting

citizens’ right to social security, ERIA §510 should be

liberally construed so as to enforce the statute in the

context of plant closings and discriminatory layoffs and

recalls and to provide meaningful remedies to affected

workers.

4

ARGUMENT

E. IN THE UNITED STATES, THE HUMAN

RIGHT TO SOCIAL SECURITY IS, IN PART,

PROTECTED BY THE REGULATION OF

PRIVATE RETIREMENT BENEFITS.

& Federal Statutes Are Properly

Interpreted To Uphold Human Rights

Norms

United States courts’ consideration of human

rights standards is not an aberration, but rather is a

reflection of the historical role international law has

played in shaping American law. International law

generally consists of treaties, international custom as

evidenced by state practice, and preemptory norms

from which no civilized nation would digress. See

Presbyterian Church of Sudan v. Talisman Energy,

Inc., 582 F.3d 244, 255 at n. 5 (2d Cir. 2009); and Flores

v. Southern Peru Copper Corp., 414 F.3d 233, 250-51 (2d

Cir. 2003).

The U.S. Constitution provides that treaties are

within the laws of our nation. U.S. Const., art. VI, §1,

cl. 2. Likewise, customary international law and

preemptory norms are also part of our law. See Sosa v.

Alvarez-Machain, 542 U.S. 692, 737-38, 124 S.Ct. 2739,

159 L.Ed.2d 718, (2004); and Abdullahi v. Pfizer, Inc.,

562 F.3d 168, 176-77 (2d Cir. 2009). See also Jordan J.

Paust, In Their Own Words: Affirmations of the

Founders, Framers, and Early Judiciary Concerning

the Binding Nature of Customary Law of Nations, 14

U.C. Davis J. Int'l L. & Pol'y 205, 253 (2008). State

practices that evidence customary law take many forms

5

and include what states do within international

organizations and what they do -through domestic

actions. See Restatement (Third) of Foreign Relations

Law of the United States § 102 (1987).

The effect of international law in maintaining

causes of action and providing remedies to litigants is

the subject of much debate, however recognized human

rights standards is, at a minimum, strongly persuasive

authority for developing continued understandings of

domestic law.

This Court and other federal courts have long

found that international human rights law provides

persuasive guidance on understanding the scope of

rights conveyed by the Constitution and federal

legislation. See, e.g., Roper v. Summons, 548 U.S. 551,

125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Rasul v. Bush, 542

U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004); Hamdi

v. Rumsfeld, 542 U.S. 507, 124 8.Ct. 2633, 159 L.Ed.2d

578 (2004); Lawrence v. Tex., 539 U.S. 558, , 123 S.Ct.

2472, 156 L.Ed.2d 508 (2003); and. Atkins v. Va., 536

U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

While a majority of cases arise within the

context of constitutional challenges, human rights

standards have been found equally useful in

determining the scope of mghts granted by statute. In

Yusupov v. Attorney Gen. of U.S., 518 F.3d 185 (3d Cir.

2008), the Third Circuit recognized:

[T]hat courts often look to legislative history

because it can be a useful aid to statutory

construction, and to international law to the

extent that it has been incorporated into our law.

6

Id. at 204 n. 31. See also Immigration and

Naturalization Service v. Cardoza-Fonseca, 480 U.S.

421, 436-40, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987);

Delgado v. Holder, 563 F.3d 863, 875-76 (9th Cir. 2009);

and Stephens v. Nat'l Distillers and Chem. Corp., 69

F.3d 1226, 1233 n. 6 (2d Cir. 1995).

American courts have further found that federal

statutes should be construed in such a manner as to

avoid conflicts with human rights standards. This

Court has held that “an act of congress ought never to

be construed to violate the law of nations.”Murray v.

Schooner Charming Betsy, 2 Cranch 64, 118, 2 L.Ed.

208 (1804). See also Weinberger v. Rossi, 456 U.S. 25,

32, 102 S.Ct. 1510, 71 L.Ed2d 715 (1982); and

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10, 20-21, 88 S.Ct. 671, 9 L.Ed.2d

547 (1963). A natural corollary of this maxim is that

federal statutes should be interpreted to uphold human

rights standards.

In the present case, international law universally

recognizes an individual’s right to social security at the

end of one’s working life and these rights are

domestically realized through statutes including the

Employee Retirement Income Security Act, 29

U.S.C.A. § 1001, et. seg. (WestLaw 2009) [hereinafter

ERISA]. As a result, ERISA § 510 should be

interpreted to effect a meaningful realization of citizen’s

right to social security.

7

2. The Scope Of Citizens’ Right To Social

Security Is Well Defined |

The elements of a citizen’s right to social

security encompass a right to income maintenance and

access to medical care at the end of one’s working life.

The United Nations describes the elements of a right to

social security as follows:

The right to social security encompasses the

right to access and maintain benefits ... in order

to secure protection, inter alia, from (a) lack of

work-related income caused by ... old age; (b)

unaffordable access to health care...

UN Committee on Economic, Social and Cultural

Rights (CESCR), General Comment No. 19: The right

to social security (Art. 9 of the Covenant), 4

February 2008, E/C.12/GC/19, available’ at

http://www.unhcr.org/refworld/docid/47b17b5b39c.html

[accessed 19 November 2009] [CESCR General

Comment No. 19].

Under international law, the minimum amount of

income maintenance and health care necessary to fulfill

citizens’ right to social security is described as benefits

providing an “an adequate standard of living and

adequate access to health care.” Jd. at 7. An adequate

standard of living contemplates that all persons shall

enjoy support to obtain the necessities of life but also

support to participate in society with dignity. The right

clearly contemplates that persons will have income and

health care benefits which enable them live above the

poverty line.

8

International human rights standards recognize that

the right to social security can be met by a mixture of

public and private plans. Jd. at 2,4 & 5. When private

plans are used, standards require that regulatory

frameworks ensure that private actors such as

corporations do not unduly interfere with an

individual’s right to receive social insurance and private

pension benefits. See /d. at 13.

3. The Right To Social Security Is

Established By Treaties Of The United

States And By Customary International

Law

Citizens’ right to social security and health care

is evidenced by both treaties of the United States and

customary international law. In 1948, the United

States and other nations convened for the 9

International Conference of American States, which

was led by the U.S. Secretary of State, Gen. George

Marshall. At the conference, delegates adopted the

Charter of the Organization of American States, Apr.

30, 1948, 2 U.S.T. 2394, T.I.A.S. No. 2361, [hereafter

Charter of the O.A.S], as amended by the Protocol of

Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No.

6847 and adopted the American Declaration of the

Rights and Duties of Man, O.A.S. Res. XXX (1948),

O.A.S. Off. Ree. OEA/Ser. LV/I.4 Rev. (1965)

(hereafter American Declaration].

The Charter of the O.A.S. was signed by the

United States in 1948 and ratified by the United States

Senate in 1951. The Charter of the O.A.S. is a legally

binding treaty and as such, is a statement of

international law recognized within our body of laws.

9

The Charter of the O.A.S. at Article 3 recognizes that

all persons are entitled to their fundamental human

rights and at Articles 3 and 45 recognizes a citizen’s

specific right to social security. The treaty reads, in

relevant part, as follows:

Article 45

The Member States, convinced that man can

only achieve the full realization of his aspirations

within a just social order, along with economic

development and true peace, agree to dedicate

every effort to the application of the following

principles and mechanisms:

* KK

b) Work ... should be performed under

conditions, including a system ... that

ensure[s] ... a decent standard of living for

the worker and his family ..._in his old age

* *K *

h) Development of an efficient social

security policy.

Id. (emphasis added).

A citizen’s right to health care is also affirmed by

the Charter of the O.A.S. At Articles 34 and 45, the

treaty reads, in relevant part, as follows:

Article 34

The Member States agree . . . to devote their

utmost efforts to accomplishing the following

basic goals:

***

10

i) Protection of man's potential through

the extension and application of modern

medical science;

*

Article 45

The Member States .. . agree to dedicate every

effort to the application of the following

principles and mechanisms:

CK

b) Work ... should be performed under

conditions, including a system ... that ensure[s]

... health ... for the worker and his family, both

during his working years and in his old age.

Id. (emphasis added).

While not an official’ treaty, the “American

Declaration is widely viewed as the world’s first

international human rights instrument and provides

confirmation of O.A.S. member states’ commitment to

citizen’s fundamental rights. Adopted at the same

convention and by the same body of delegates as the

Charter of the 0.A.8., the American Declaration of

Rights and Duties of Man explicitly recognizes a right

to social security. The American Declaration provides:

Whereas

**KX

The international protection of the rights of man

should be the principal guide of an evolving

American law;

ok *

Right to the preservation of health and to

well-being.

1]

Article XI. Every person has the right to the

preservation of his health through ... medica]

care, to the extent permitted by public and

community resources.

a 1

Right to social security.

Article XVI. Every person has the right to

social security which will protect him from the

consequences of... old age.

American Declaration, supra.

Citizens’ right to social security is further

established by customary international law. In addition

to the Charter of the O.A.S. and the American

Declaration, a universal and specific right to social

security is recognized by instruments of the United

Nations and the International Labor Organization. See

International Covenant on Economic, Social, and

Cultural Rights, art. 9, Dec. 19, 1966, 9938 U.N.T.S. 3, 6

I.L.M. 360 (parties “recognize the right of everyone to

social security”); International Labor Organization,

ILO Constitution, art. MIII(f, available at

http://www.ilo.org/public/english/about/ilocons

t.htm; International Labor Organization, Social

Security (Minimum Standards) Convention (No. 102),

April 27, 1955, available at http://www.ilo.org/

ilolex/english/convdispl.htm (last viewed Nov. 14,

2009); International Labor Organization, Invalidity, Old

Age and Survivor’s Benefits Convention (No. 128),

Nov. 1, 1969, available at http://www.ilo.org/

ilolex/english/convdispl.htm (last viewed Nov. 15,

2009). See also Council of Europe, European Social

Charter (Revised), art. 12, J] 12,3 May 1996, ETS 163.

The United States is a member of both the United

12

Nations and the I.L.O. and at no time has objected to

recognition of social security as fundamental human

right. |

In practice, the right to social security and

medical care in old age is recognized by almost all

nations. Across the globe, approximately 170 nations

have laws protecting citizens’ right to social security

through laws providing for income security and medical

care to citizens in old age. See ILO, Social Security

Department, Social Security Database Programs and

Mechanisms, available at https://www.ilo.org/dyn/

sesame/ifpses.socialdatabase last viewed Nov. 16, 2009).

Within American and Caribbean nations, at least 28 of

31 independent nations have such laws. /d.

‘While a right to social security and health care in

old age is well-recognized within international law, the

right is tangibly realized through domestic legislation.

4. The United States Plan To Provide For

Citizen’s Social Security Includes

Public Benefits Supplemented By

Private Plans.

The legislative history of the Social Security Act,

42 U.S.C.A. §301 et seg. (WestLaw 2009) [hereafter

SSA] reveals that legislators intended to protect

citizens’ right to income security and health care in old

age. As stated by Representative Charles Vilas Traux

(D-Ohio) during congressional debates:

The enactment into law of old-age pensions,

unemployment compensation, protection for

mothers and dependent’ children, and the

13

preservation of public health will mark

another milestone in the battle for human

rights waged by President Franklin D.

Roosevelt and the Seventy-fourth Congress.

___ Cong. Rec. - House 5689 (daily ed. April 15, 1935)

avatlable at ;http://www.ssa.gov/history/pdf/h415.pdf

(last viewed Nov. 15, 2009) (emphasis added). See also

H.R. No. 615 at (1935) available at http://www.ssa.gov/

history/reports/35housereport.html (last viewed Nov.

15, 2009) (See section concerning Old Age Benefits);

Cong. Rec. —- House 5827 (daily ed. April 16, 1935)

available at http://www.ssa.gov/history/pdf/h416.pdf

(last viewed Nov. 15, 2009) (Comments of Rep. Haines;

___ Cong. Rec. — House 5792 (daily ed. April 16, 1935)

available at http://www.ssa.gov/history/pdf/h416.pdf

(last viewed Nov. 15, 2009) (Comments of Rep.

Sirovich); and __ Cong. Rec. — House 5468 (daily ed.

April 11, 1935) available at http://www.ssa.gov/history/

pdf/h411.pdf (last viewed Nov. 15, 2009) (Comments of

Rep. Doughton).

The Social Security Act was amended in 1965 to

provide medical benefits to elderly citizens through the

Medicare program. This amendment affirmed our

nation’s recognition of health care as a fundamental

right of citizens. One scholar has noted that through

Medicare and other programs:

The United States has established a considerable

legal infrastructure that effectively recognizes

the human right to health care for some groups

under specific circumstances.

14

Eleanor D. Kinney, Kecognition of the International

Human Right to Health and Health Care in the United

States, 60 Rutgers L. Rev. 335, 348 (2008)

The United States, like a notable minority of

other nations, protects the right to social security and

health care in old age through a combination of public

benefits and private plans. The intent to protect these

rights with a combination of public benefits and private

plans was recognized at the outset of congressional

consideration of the Social Security Act. During Senate

debates, Senator Elbert D. Thomas (D-Utah) observed:

[The time must come when no one shall question

the right of those who are past the earning age

to live a life free from the ordinary economic

worries. All must contribute for the good of all.

Public attention to social security will

result in persons taking for themselves

private annuity policies to augment the

public ones. The partnership idea is the one

that I would stress. Partnership between the

Federal Government and the States ... and

partnership between public and private

insurance institutions.

Cong. Rec. ~ Senate 8224 (daily ed. May 27, 1935)

avatlable at http://www.ssa.gov/history/pdf/senatel.pdf

(last viewed Nov. 15, 2009).

The partnership between public and private

insurance is most dramatically illustrated by public

benefits provided by the SSA and protection of private

retirement benefits through ERISA. The United States

thereby combines a right to certain minimum benefits

15

through the SSA and contemplates supplementation

through private pensions regulated by ERISA. Within

the United States, this combination of public and

private benefits during retirement is necessary for

citizens to maintain an adequate standard of living

consistent with their right to social security.

A majority of persons in this country rely on a

combination of public and private benefits to maintain

an adequate standard of living in_ retirement.

Government statistics confirm that retirement benefits

provided by the SSA fail to provide sufficient income

for many citizens to maintain a standard of living above

the poverty line. In September 2009, the average

monthly benefit from the SSA for a retired worker was

estimated at $1,160.90. See U.S. Social Security

Administration, Monthly Statistical Snapshot,

September 2009, available at

http://www.socialsecurity.gov/policy/docs/quickfacts/sta

t_snapshot/ (last viewed Nov. 19, 2009). The average

worker would thereby annually receive $13,930.80 in

SSA benefits.* The U.S. Census Bureau estimates the

poverty threshold for a single person at $10,991.00. U.S.

Census Bureau, Poverty Thresholds for 2008 by Size of

Family and Number of Related Children Under 18

Years, (2008), available at http://www.census.gov/

hhes/www/poverty/threshld/thresh08.html (last viewed

Nov. 18, 2009). The National Academy of Sciences and

others have criticized the official poverty threshold as

grossly underestimating the amount of income

necessary for persons to remain above poverty. Anna

Bernasek, A Poverty Line That's Out of Date and Out

® Notably this amount is less the annual salary of a worker

employed at the minimum wage.

16

of Favor, NYTIMES, Mar. 12, 2006 available at

http://www.nytimes.com/2006/03/12/business/yourmone

y/12view.html (last viewed Nov. 16, 2009). Whatever

calculations are used however, it is clear that many

retired persons’ would be unable to maintain adequate

standards of living above poverty’ without

supplementing their SSA benefits.

The largest source of supplemental income for

older persons who have left the workforce is private

pensions. U.S. Social Security Administration, Office of

Retirement and Disability Policy, /ncome of the

Population 55 or Older, 2006 at Table 2.A1 available at

http://www.socialsecurity.gov/policy/docs/statcomps/inc

ome_pop55/2006/sect02.html (last viewed Nov. 18,

2009). The Social Security Administration estimates

that private pensions make up 8% of total income at age

55 and more than 30% of total income by age 70. /d.

Persons aged 50 years and older are particularly

vulnerable to pension insecurity. See generally

Barbara A. Butrica, Howard M. lams, Karen E. Smith,

and Eric J. Toder, The Disappearing Defined Benefit

Pension and Its Potential Impact on the Retirement

Incomes of Baby Boomers, Social Security Bulletin Vol.

69, No. 3 (2009) available at

http://www.socialsecurity.gov/policy/docs/ssb/v69n3/v69

n3p1.pdf (last viewed Nov. 19, 2009). These individuals

remain the last generation of workers with defined

benefit employer retirement plans. Jd. at p. 3.

Traditionally, defined benefit plans are nonportable and

subject to vesting requirements based on lengthy

tenures of work at a single employer. Newer

employees are now typically hired under defined

contribution plans, which require years of periodic

17

investment over a lifetime of work to obtain meaningful

benefits. Older employees are caught in a particularly

vulnerable position when they lose their jobs late in

their working life. Such workers are unable to obtain

the full value of their defined benefits plan and unable

to recoup losses through a defined contribution plan

due to limited remaining work years. See /d. at p. 19.

And, it is these employees who are suffering over forty

percent of all long-term layoffs in recent years. See

U.S. Department of Labor Statistics, Mass Layoff

Statistics Database, available at http://www.bls.gov/

mils/data.htm (last viewed Nov. 19, 2009).

Likewise, denial of private plan retirement

income and lifetime health insurance benefits directly

implicates workers ability to maintain adequate

standards of living after the end of their work life.

Medicare presently accounts for approximately 50% of

the medical costs incurred by persons 65 years and

older. U.S. Department of Health & Human Services,

Centers for Medicare & Medicaid Services, Health

Expenditures by Age, 2004 Age Tables, Personal

Health Care Spending by Age Group and Source of

Payment, Calendar Year 2002 available at

http://www.cms.hhs.gov/NationalHealthExpendData/d

ownloads/2004-age-tables.pdf (last viewed Nov. 19,

2009). Private health insurance and out-of-pocket

payments each account for approximately 30% of these

costs for such individuals. /d. The absence of earned

pension benefits or lifetime health insurance from an

employer causes unanticipated costs to be paid from

modest SSA income jeopardizing an individual’s ability

remain above poverty. |

18

For persons in the later years of their work life

who face job separations, their right to social security is

very much threatened by employer action taken to

avoid paying full retirement benefits. At issue in this

case is whether federal law protecting workers

retirement benefits will be interpreted to promote and

protect their human right to social security or whether

this right will be compromised in derogation of their

right to adequate standards of living in old age.

II. ERISA §510 SHOULD BE LIBERALLY

CONSTRUED TO PROHIBIT DISCHARGES

AND DISCRIMINATION AGAINST WORKERS

TO AVOID THEIR ATTAINMENT OF

BENEFIT PLAN RIGHTS.

This Honorable Court should liberally construe

the provisions of ERISA §510 to give effect to the

remedial and human rights purposes of the Act.

ERISA is clearly a remedial statute. Jakimas v.

Hoffmann-La Roche, Inc., 485 F.3d 770, 784 (8d 2007),

Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231,

236 (4th Cir. 1991); and Kross v. Western Elec. Co., Inc.,

701 F.2d 1238, 1242 (7th Cir. 1983). Federal courts have

long held that remedial statutes should be given liberal

construction to affect intended purposes. See Sutton v.

United Air Lines, Inc., 527 U.S. 471, 504 (1999);

Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); and In

re Carter, 553 F.3d 979, 985-986 (6th Cir. 2009).

Federal courts have further found that civil

rights statutes are liberally construed to effect

remedial purposes. See, Forester v. Chertoff, 500 F.3d

920, 929 (9th Cir. 2007); Tart v. Hill Behan Lumber

Co., 31 F.3d 668, 671 (8th Cir.1994); and Crozier v.

19

Howard, 11 F.3d 967, 969 n. 3 (10th Cir. 1993). ERISA

§510 is an important component of United State’s

legislation protecting citizen’s human right to social

security. As such, it should be interpreted analogous to

civil rights statutes and be liberally construed to affect

the purpose of preventing actions intended to interfere

with an employee’s attainment of plan benefits.

E. ERISA §510 Protects Workers Against

Discharges Resulting From Worksite

Closings And Discriminatory Layoff

And Recall Decisions.

ERISA §510’s plain language prohibits discharges

and discriminatory acts taken with an intent to prevent

an employee’s attainment of retirement plan benefits.

The statute states:

It shall be unlawful for any person to discharge,

fine, suspend, expel, discipline, or discriminate

against a _ participant or beneficiary for

exercising any right to which he is entitled under

the provisions of an employee benefit plan. . . or

for the purpose of interfering with the

attainment of any right to which such participant

may become entitled under the plan...

29 U.S.C. § 1140 (WestLaw 2009). This language is

consistent with international law obligations concerning

the protection of citizen’s human right to social

security. International law requires states to “prevent

third parties from interfering in any way with the

enjoyment of the right to social security.” CESCR

General Comment No. 19. supra at -p. 13. Consistent

with these obligations, ERISA’s language prohibits

20

undue interference and is not qualified or conditioned

upon specific operational contexts of the involved

worksite.

Managerial decisions made in the context of

worksite closings can violate ERISA §510. In the

courts below, Respondent argued that ERISA §510 is

inapplicable to managerial decisions made during plant

closings. Both the trial court and the United States

Court of Appeals for the Sixth Circuit correctly held

that ERISA §510 applies to discharges occurring in the

context of plant closings. In Inter Modal Rail

Employees Ass’n v. Atchison, Topeka and Santa Fe

Ry., 520 U.S. 510, 117 8.Ct. 1513, 187 L.Ed.2d 763 (1997)

[hereafter Inter Modal] this Court recognized that

ERISA’s provisions grant employers wide flexibility to

reduce or even eliminate promised benefits in the face

of an economic downturn. /d. at 515. However the

Court’s decision also recognized that its flexibility is

counterbalanced by ERISA §510 which prohibits

employers from “circumventfing] the provision of

promised benefits.” /d. (citations omitted). The decision

noted further that an employer seeking to alter

promised benefits must adhere to the _ plan’s

procedures. /d. at 516. Consistent with the Inter Modal

decision, the Sixth Circuit held that:

While “(elmployers or other plan sponsors are

generally free under ERISA ... to adopt, modify

or terminate” pension benefit plans, Coomer v.

Bethesda Hosp. Inc., 370 F.3d 499, 508 (6th Cir.

2004), this discretion does not permit them to

discharge employees or alter their plan rights to

“circumvent the provision of promised benefits.”

Inter-Modal Rail Emples. Ass'n v. Atchison,

21

Topeka & Santa Fe Ry., 520 U.S. 510, 515, 117

S.Ct. 15138, 187 L.Ed.2d 7638 (1997) (internal

quotations omitted).

Crawford v. TRW Automotive, 560 F.3d 607, 612 (6th

Cir. 2009). The Sixth Circuit erred however in finding

that the failure to recall is not a prohibited practice

under ERISA §510.

The Respondent’s failure to recall the employees

was a discriminatory act within conduct prohibited by

ERISA §510. The discriminatory act occurred when

the employer failed to recall the Petitioners from layoff

so as to thwart these employees from further attaining

plan benefits. Thus, two prohibited practices are at

issue in this case. First, the discharge of the employees

through the plant’s closure and_ second, the

discriminatory failure to recall the employees from

layoff.

To establish an ERISA $510 claim, an employee

must show “that an employer had a specific intent to

violate” the employee’s ERISA rights. Smith v.

Ameritech, 129 F.3d 857, 865 (6th Cir. 1997). The

employee is not required to show that the employer’s

sole intent was to interfere with ERISA rights but

rather that it was a “motivating factor” in the

employer’s decision. Humphreys v. Bellaire Corp., 966

F.2d 1037, 1043 (6th Cir. 1992). Additionally, the

employee must establish a causal link between the

adverse employment decision and the likelihood of

future benefits. Pennington v. Western Atlas, Inc., 202

F.3d 902, 906 (6th Cir. 2000) (quoting Smith v.

Ameritech, supra).

22

The aggrieved party can show specific intent

through direct evidence or, in the absence of direct

evidence through a showing of: 1) prohibited conduct; 2)

taken with the purpose of interfering; with 3) an

employee’s right to attain plan benefits. Smith v.

Ameritech, supra at 865. In the absence of direct

evidence, courts employ a burden shifting analysis,

similar to that found in Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981). However the Burdine burden

shifting approach only applies “if there is no direct

evidence of the employer's’ motivation.”

Humphreys v. Bellaire Corp., supra at 1043 (emphasis

added).

The Sixth Circuit erred when it failed to

apprehend substantia! direct evidence of an intent to

interfere with Petitioner's rights under their

retirement plan and failed to then apply a mixed-motive

analysis as stated in Price Waterhouse v. Hopkins, 490

U.S. 228 (1989). Direct evidence put forth by

Petitioners included admissions by the Respondent

company’s vice president whereby he concedes that

pension costs were one factor in the closing of the

facility and resulting discharge of the workers. This

evidence implicates prohibited conduct under ERISA

consisting of the employees’ resulting discharge at the

time of the closing. The Sixth Circuit further erred by

failing to consider direct evidence of the employer’s

specific intent to engage in prohibited conduct through

the discriminatory failure to recall Petitioners from

layoff while the plant remained open and work was

available.

23

As noted by this Court in Inter Modal, ERISA

grants employers broad latitude to modify and even

terminate retirement plans; however to do so,

employers must follow’ statutory and _ plan

requirements. In the present case, the Respondent

made a conscious decision to forgo modification or

termination of the plan pursuant to legal requirements

in favor of engaging in prohibited conduct, which

included the discharge of the employees during the

plant closing and the discriminatory failure to recall

employees from layoff when work was available before

the closing.

For the remainder of their arguments on these

issues, amici adopts by reference the arguments of the

Petitioners as stated on pp. 15 through 26 of pending

Petition for Writ of Certiorari.

& Effective Equitable Remedies Exist To

Redress Illegal Discharges Resulting

From A Plant Closing And To Redress

Discriminatory Conduct Occurring

Before A Closing.

While courts do not favor consideration of

liability when remedies are unavailable, courts should

not forgo permitted remedies so as to avoid a

consideration of liability. Respondents have incorrectly

argued that no effective remedy is available to

Petitioners under ERISA §510.

Appropriate equitable relief is available to

remedy the illegal conduct of the Respondent. ERISA

§502(a)(3) broadly empowers federal courts to grant

any “appropriate equitable relief’ to redress violation

24

of the statute. 29 U.S.C. § 1132(a)(3)(B). Section 502

upholds international law principles, which require

states to enact appropriate regulatory schemes and to

provide remedies when citizens’ rights are violated.

See CESCR General Comment No. 19. supra at p. 14,

446, p. 19, {72 and p. 20, 77. ERISA accomplishes

these goals through the broad equitable relief provided

by §502. Equitable relief includes, but is not limited to

the reinstatement, payment of back and benefits and

payment of front pay and benefits.

In the absence of reinstatement, back and front

pay and benefits, as forms of equitable restitution, are

available as a remedy in this case. Federal courts have

long found payment of back pay and benefits as an

appropriate form of equitable relief to remedy

violations of federal employment law. See generally

Chauffeurs, Teamsters & Helpers, Local No. 391 v.

Terry, 494 U.S. 558, 571, 110 S.Ct. 1339, 108 L.Ed.2d

519 (1990); Mitchell v. Robert De Mario Jewelry, Inc.,

361 U.S. 288, 292-93, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960);

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-

49, 57 S.Ct. 615, 81 L.Ed. 898 (1937); Schwartz v.

Gregori, 45 F.3d 1017, 1022 (6th Cir. 1995) (applying

ERISA § 502); and Warner v. Buck Creek Nursery,

Inc., 149 F.Supp.2d 246, 256-57 (W.D.Va., 2001)

(applying ERISA § 502). An award of back pay and

benefits is a form of restitution when it represents the

disgorgement of profits that employers realize through

illegal conduct. There is ample evidence in the present

case that the Respondents engaged in _ prohibited

conduct with the intent of realizing additional profits.

25

Front pay and benefits is a straightforward form

of equitable relief when reinstatement is unavailable.

In Schwartz v. Gregori, the court recognized:

The question of front pay is more

straightforward. In other contexts, this court

has characterized front pay as an equitable

remedy. E.g., Shore v. Federal Express Corp.,

42 ¥-.3d 373 (6th Cir. 1994) (front pay under Title

VII, 42 U.S.C. § 2000e-5(g), authorizing

“equitable relief’); Roush v. KFC Nat'l

Management Co., 10 F.8d 392, 398 (6th Cir.

1993), cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130

L.Ed.2d 15 (1994) (action under Age

Discrimination in Employment Act, 29 U.S.C. §

626(c)(1), authorizing legal or equitable relief;

front pay characterized as equitable). Front pay

is awarded only when the preferred remedy of

reinstatement, indisputably an equitable

remedy, is not appropriate or feasible.

Supra at 1023. Reinstatement may be a viable remedy

for the Petitioners since their jobs were transferred to

the Respondent’s nearby alter ego facility on Mancini

Drive. However, even in the absence of reinstatement,

front pay and benefits is an appropriate remedy upon a

finding of liability in this case and would be consistent

with the nation’s obligations to provide a remedy for

violations of citizen’s right to social security when the

attainment of benefits is illegally interfered with by an

employer.

For the remainder of their arguments on these

issues, amici adopts by reference the arguments of the

26

Petitioners as stated on pp. 27 through 29 of pending

Petition for Writ of Certiorari.

CONCLUSION

For the forgoing reasons, this Court should issue a

writ of certiorari to the United States Court of Appeals,

Sixth Circuit in this matter.

Respectfully submitted,

WILLIAM GOODMAN

GOODMAN & HURWITZ PC

1394 E Jefferson Ave

Detroit, MI 48207

(313) 567-6170

(Counsel of Record)

-and-

JOHN C. PHILO

MAURICE & JANE SUGAR LAW CENTER

FOR ECONOMIC & SOCIAL JUSTICE

4605 Cass Avenue

Detroit, MI 48201

(313) 993-4505