Occidental Life Insurance Company of California v. Equal Employment Opportunity Commission – Oral Argument – April 20, 1977

Media for Occidental Life Insurance Company of California v. Equal Employment Opportunity Commission

Audio Transcription for Opinion Announcement – June 20, 1977 in Occidental Life Insurance Company of California v. Equal Employment Opportunity Commission

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Warren E. Burger:

We will hear arguments next in 76-99, Occidental Life against EEOC.

Mr. Vaughn.

Dennis H. Vaughn:

Mr. Chief Justice, may it please the court, the Court of Appeals for the Ninth Circuit held below, that the EEOC has infinity within which to sue on an individual charge of discrimination.

In other words that there is no time limitation whatsoever upon that agency, a position advocated by the EEOC to that court, the Ninth Circuit so held in the context of a suit, alleging wide ranging practices and acts of sex discrimination against both females and males.

A suit that was predicated upon a single charge of discrimination filed by one individual female protesting her discharge which she claimed to be discriminatory and that discharge occurred some three years and four months prior to the date upon which the EEOC got into the Federal District Court with its complaint.

Now it is petitioner’s position that infinity is not and can not be the only parameter on the EEOC’s right to sue.

First it is our position that inherent in the statute itself is a 180 day limitation on the right to sue granted to the EEOC by that statute and secondly, it is our position that if in fact there is no federal limitation, then the most analogous state statute of limitation governs the EEOC’s right to bring suit.

Potter Stewart:

I notice in the briefs here, nobody seems to have identified the most analogous State Statute or argued about which one it might be.

Dennis H. Vaughn:

Yes, Your Honor.

Potter Stewart:

We are in California, so it will be a California Statute if your second argument is correct.

Dennis H. Vaughn:

That is right Mr. Justice Stewart.

Potter Stewart:

And might it be a different statute if it is one for money back pay from — I thought it might be if it were only for an injunction.

Dennis H. Vaughn:

I do not believe…

Potter Stewart:

In other words only if in injunction there will be no statute at all, but the State Doctrine of Laches.

Dennis H. Vaughn:

No, Your Honor, I do not believe there would be a distinction under California law, under the California Statute between a suit for injunctive relief and a suit for back pay.

Potter Stewart:

But there is no identification any where in these briefs that I saw of what the most analogous State Statute might be.

Dennis H. Vaughn:

Well, Mr. Justice Stewart, the Court of Appeals of course because of its view that there was no limitation whatsoever did not reach the issue, the District Court held that the one year statute of limitations in California was applicable and that was an alternative holding in the court’s granting of our motion for Summary Judgment.

The District Court had held that there was a 180 day Federal Limitation in Title VII and alternatively that the one year Statute of Limitations under California law was applicable.

Potter Stewart:

It is that, what is that statute for a penalty or for or is it a catch all statute or…

Dennis H. Vaughn:

That is the statute for wrongful injury; it is Code of Civil Procedure Section 343, injury caused by the wrongful act of another.

Now there is additionally a second statute, Code of Civil Procedure Section 3381 which is an action upon a liability created by statute other than for a penalty or a forfeiture.

So, it has been our position, it was our position before the District Court, it was our position before the Court of Appeals, that one of the two statutes was applicable regardless of which applied, the suit was barred.

Potter Stewart:

Each was one year statute?

Dennis H. Vaughn:

No, I am sorry, the first for wrongful injury is one year, the second statute is three years.

Now the…

William H. Rehnquist:

How long he lapsed here?

It would have been barred even by the three year statute?

Dennis H. Vaughn:

Yes, that is right Mr. Justice Rehnquist, the complaint was filed over three years and four months from the date upon which the Discriminatory Act occurred being the discharge of the charging party Tamar Edelson on or about October 1, 1970.

Suit was filed on February 22, 1974.

Potter Stewart:

Then it was a pattern of practice suit, was not it?

Dennis H. Vaughn:

Mr. Justice Stewart, when the suit was brought, yes, it was — I do not know whether pattern in practices is quite the right word, it was not an Attorney General Suit under the old pattern in practice provisions of the 64 Act, but it did allege wide ranging, acts and practices of discrimination by the petitioner against both female employees and male employees, going all the way back to the effective date of the civil rights act in 1965.

Potter Stewart:

But all the way up to the time the suit was filed is not it.

All the way forward in time until the time the suit was filed, was not it an allegation of a continuing violation?

Dennis H. Vaughn:

The allegations of the complaint, Mr. Justice Stewart, yes.

Potter Stewart:

So, when the statute began to run, it is your claim that it ran from the discharge of the original complaining party.

Dennis H. Vaughn:

That is correct.

Potter Stewart:

But arguably, it might run from the — according to that government’s allegation that it was going on at the time of the suit.

Dennis H. Vaughn:

Mr. Justice Stewart, I think it should be recognized that nowhere in the pleadings before the District Court, did the EEOC at any time argue that there was a continuing violation.

Furthermore, that argument came into this proceeding for the first time, in a reply brief it was filed to the Court of Appeals through the Ninth Circuit.

It does not appear, I do not believe in the brief filed by the agency or by the Solicitor General with this court.

But in any event, it was raised for the first time belatedly on appeal.

Now, with respect to the 180 day Federal Limitation, that limitation is found in section 706 Act I of the act, when it is read in the context of the legislative history, certain portions of which I would like to highlight to the court.

Senator Dominick who was the principal spokesman for the bill that ultimately has the senate referred to the 180 day provision as “The time period within which the commission may file a civil action” and Senator Javits referred to it as “The allowable time for the commission to move into a given situation.”

Now, these were not the only two comments, throughout the legislative history there was the very strong expression by Congress that the 18 months, the two years that it was taking the EEOC then to act was unfair to charging parties was a denial to them of justice, justice delayed is justice denied.

A phrase seen throughout the legislative history and there was a determination, a very strong conviction, that the same delay and in action by the agency was unfair to respondents and there was a clear Congressional determination in 1972, that this situation had to changed in order to prevent it from continuing.

Now the EEOC has struggled to breath some meaning into this language, the 180 day language as an alternative to our interpretation and thus the EEOC has argued that because Congress was aware in 72 that it took a year or two for the EEOC to dispose those charges because there was a backlog that Congress couldn’t possibly have intended.

The 180 day provision as a suit limitation and then according to the EEOC the 180 day provision is simply an expression of a private filing restriction on the individual victim of discrimination.

But this position necessarily flounders, both on the expression of Congressional intention, but also on logic.

For this position of the EEOC assumes, first of all that Congress intended to build a system in 1972 that would perpetuate, that would build into the system forever more the very delays that if abhorred and was attempting by the new mechanism to eliminate and secondly the EEOC’s position assumes that Congress made the deliberate choice to extend the period during which a victim of discrimination could not sue himself or herself even though Congress knew full well that the EEOC during that period would not or could not do anything for that victim of discrimination.

In others words Congress in 1972 took the former 30 to 60 day restriction on an individual filing suit and extended it to 180 days.

Now did Congress extended just to restrain the individual from being able to pursue his own rights, if it knew that the EEOC couldn’t or wouldn’t do anything, it simply doesn’t make sense.

It is an anonymous and incongruous intention to attribute to Congress and clearly at odds with their manifest intention.

John Paul Stevens:

Mr. Vaughn, may I ask you question just to get the whole thing that you told.

No right to sue letter was issued to the employee in this case is that correct?

Dennis H. Vaughn:

No formal notification, the record demonstrates that she was advised that she could bring suit and she requested that the case be sent to San Francisco, the EEOC’s regional litigation office for consideration as a vehicle for a litigation.

John Paul Stevens:

What I was leading up to is, does she now have a right to sue if she got the right kind of letter from the EEOC?

Would she be barred?

Dennis H. Vaughn:

If a right to sue letter now was issued, well I would say certainly not Mr. Justice Stevens.

John Paul Stevens:

She would not be barred?

Dennis H. Vaughn:

She would be barred, that she would not have a right to sue at this juncture.

Dennis H. Vaughn:

The fact is that it is quite academic I would say to Ms. Edelson, the record will reflect that she was reinstated in her job six days after the charge was filed and thereafter she voluntarily terminated.

John Paul Stevens:

Let me put the question little differently.

If instead of suing itself, the EEOC had issued the appropriate letter to her, could she have been a part of suit, you know a couple of years had gone by?

Dennis H. Vaughn:

Mr. Justice Stevens, the question you are asking me is what are the conditions to make some suit by a private individual and that of course is not a question before the court in this case.

I think the statute if read logically in light of the legislative history would indicate that the agency had 180 days in which to act having not acted a notice of right to sue, should have been forwarded, a formal notice which it was not and then the charging party would have an additional 90 day period thereafter.

I think therefore that Ms. Edelson would not now have the right to sue.

It is now after all, almost seven years from the date of her discharge.

I think that she would be barred.

John Paul Stevens:

What I am really asking I suppose is because you do not rely on express limitation language, but rather an implied limitation and the statutory schemes seems to put together, as you argued it.

But, does that also mean that there is a total — it really is a statutory pose after this period of time is gone by and the employer can now be sure there is no litigation coming.

Is there a correlation between the private right to sue and the government right to sue?

All we have to decide is that we don’t have to decide?

Dennis H. Vaughn:

Well, Mr. Justice Stevens I think I suggested at the outset, I do not think you have to decide, the question is not before you.

I do think as I indicated logically that would track the 180 day provision and the 90 day provision but, frankly I can see that the court might take a different approach to an individual charging party, who had not received notice of his or her right to sue, who had been mislead by the EEOC.

While your decision in Johnson Versus Railway Express Agency in which you indicated how little was at stake in that case in fact that the individual was not been able to sue because of there were continuing violations, new charges could be brought. That case I think could be argued, on the other side of what I have indicated, that is that the right to sue would be barred.

I think it is a difficult, much more difficult question but I think….

John Paul Stevens:

I think it may be relevant Mr. Vaughn is that if you are arguing an implicit limitation rather than express limitation, at least we must have a pretty clear picture, how the whole statutory scheme puts together, that is why it was troubling me and I think, I know that it could maybe necessary to at least take that through and I am not sure what the answer is.

Dennis H. Vaughn:

Mr. Justice Stevens I am not sure what the answer is either, I can only say I do not think you need to decide it in this case and I can see arguments being made on both sides, I think it is logical that she would be barred, I believe that Johnson Versus REA would tend to support that conclusion.

On the other hand I can see the court taking a different view perhaps with respect to an innocent party who has been mislead by the EEOC.

Thurgood Marshall:

Mr. Vaughn you believe that nobody can sue Occidental after two years?

Do you know that clause?

Dennis H. Vaughn:

Mr. Justice Marshall, I do not go that far again, I do not think the court needs to reach the question, under what circumstances a charging party could bring suit.

Our position goes so far as to say that the EEOC was prohibited in this case from bringing suit three years and four months after the discharge in question, whether it was prohibited by a 180 day Federal Statute or whether it was prohibited by a State Statute, the most applicable State Statute.

William H. Rehnquist:

Is not that the reverse of what one would usually think the Statute of Limitations applies to the government usually has a longer period of limitations or governmental agencies has a longer period of limitation than a private individual.

Dennis H. Vaughn:

Mr. Justice Rehnquist, I think this perhaps is a unique case because the foundation for what is usually the case I believe and normally would be an interpretation of congressional intention, here Congress was outraged, outraged by the delays and the inaction, that this agency was pursuing in the enforcement of the act and they intended — I think it is clear to put a relatively short time limitation upon the right to sue after all in this same section, Section 706(f)(1) there is a provision that the charging party after receiving a notice of right to sue will have 90 days within which to sue, a lesser time in fact than the 180 days.

William H. Rehnquist:

Well then why does not that govern Ms. Vaughn’s right here rather the charging party is right here, is that that she did not receive the notice?

Dennis H. Vaughn:

Well we have no issue Mr. Justice Rehnquist before assessed Ms. Edelson‘s, the charging party’s right to do anything.

She did not receive the formal notice of right to sue, the record will demonstrate that she was advised informally of her right to sue and she declined the pursue at requesting that the matter be considered as a possible litigation vehicle and that of course is in turn what ended up happening when the EEOC brought suit low some three years four months later.

Harry A. Blackmun:

Mr. Vaughn I am little concerned about the practical results, if you prevail here, then I suppose assuming their sufficient manpower, the EEOC will bring a lot of suits near the end of the 180 day period.

Is that something that would be beneficial to employers, is it something they really would want?

Dennis H. Vaughn:

Mr. Justice Blackmun I think not only would employers want that I think that, that is what charging parties would want, I think that is what private counsel for plaintiffs want.

Part of the great problem with the inaction of the EEOC is that quite frankly from an employer’s point of view he can take a charge, he can sweep it under the rug because nobody is asking him or requiring him to make any sort of decision whatsoever and under the rug it sits and it languishes and he is never required to make a judgment.

Now did I make a mistake?

Did I violate the law and what should I do about it?

And these cases become much harder to settle quite frankly, five and six and seven years down the road, when there is a substantial back pay liability involved, then they are if you hit them right upfront.

Now, obviously charging parties would be benefited, charging parties now have their charges languishing before the EEOC, action is not taken, the EEOC goes out, they have a charge filed by an individual alleged discriminee, let’s say a racial charge at first the EEOC does not do anything about it and then it does go out to conduct an investigation, but then it starts investigating, whether there is religious discrimination or sex discrimination, whatever else in addition to the particular charge of racial discrimination or minority status discrimination.

In the meantime the charging party sits and all the while the EEOC does not issue the 180 day notice, that that charging party has a right to sue.

So he is not or she is not pursuing individual rights.

It is a very unfair system to charging parties, it is a very unfair system to respondents to employers and it is a terrible system and so far as the courts are concerned because the courts are being clogged with stale, time consuming cases going back years and years and years.

Harry A. Blackmun:

Well my suggestion was that they might be clogged even more, if you prevailed it.

Dennis H. Vaughn:

I think that is a good question Mr. Justice Blackmun and I think it is not the case, I really do believe that a lawyer confronted with a deadline, we are going to settle this case in 30 days, or we the EEOC will file a suit.

You have got no choices as a lawyer for your client, but to turn to look at that case and make a judgment.

I think if the EEOC pursued it is responsibilities, that there would be more effective conciliation and there would be faster action, more cases would be settled and I do not believe the courts would be clogged.

But even Assuming Arguendo, that they were, certainly it would be better that we would be clogging them with new cases than cases that are four and five and six years old.

Warren E. Burger:

And is not that also attempts to mitigate the damages, the back pay award, so that the employer can make a judgment very quickly, whether he should or should not wash it out.

Dennis H. Vaughn:

I think that that is one of most important practical points Mr. Chief Justice, that if you have made a mistake, that is something you are going to face up to earlier, much more readily than you are five and six and seven years down the road and this is the problem, you do not make those judgments now because nobody is holding your feet to the fire.

Now, by analogy talking about the National Labor Relations Board for a moment, it of course has a different a cease-and-desist type authority and that authority was denied to the EEOC.

But let’s take an example of two employees, side by side working at machines in a factory, one employee, a white employee is discharged for union activity, the other employee a minority is discharged because of his race or ethnic origin.

What happens?

The union organizer goes to the National Labor Relations Board and he files a charge.

Within a median time of 43 days the investigation is completed.

The charge having been investigated the Board finding merit, a complaint is filed.

A hearing is held before an Administrative Law Judge.

The Administrative Law Judge’s decision goes to the NLRB in Washington, court enforcement proceedings are begun and eventually a Court of Appeals does enforce the order of the Board for reinstatement and back pay.

That is two-and-a-half years according to the legislative history in connection with these amendments, two-and-a-half years from the date of the charge, with the NLRB to the final decision of the court.

Now the proponents of the court enforcement system said, that was too long, we do not think that victims of discrimination should wait for two-and-a-half years to receive a remedy, we want a faster a system.

That is why they rejected the cease-and-desist system.

I would like to if I may reserve a few minutes for rebuttal.

Warren E. Burger:

Just one of these call for a brief answer, does this create problems for large employers in terms of setting up reserves for contingent liabilities?

Dennis H. Vaughn:

The present system?

Warren E. Burger:

Yes, If the government’s position is correct, that it is okay…

Dennis H. Vaughn:

Yes, the present system, the government’s position, yes Mr. Chief Justice the potential contingent liability is again be absolutely staggering and often one’s which you cannot measure, you do not know the duration or the extent of them.

Thank you.

Warren E. Burger:

Mr. Martin.

Thomas S. Martin:

Mr. Chief Justice, may it please the court.

1972 Congress authorized the Equal Employment Opportunity Commission to enforce Title VII in court and abandoned dependence upon private enforcement that was universally deemed to be totally ineffective.

Section 706 which is the focus of this litigation was designed to put the government’s enforcement muscle behind Title VII.

Now, the issue in this case is, whether Congress intended that that enforcement muscle disappear after 180 days, after the filing of the claim or in the alternative terminate according to the very mandates of State Statutes of limitations?

Before I go to the merits, I would like to briefly expand upon the factual context in which this delay claim arises.

Mr. Martin is there one other alternative that Congress never even thought about the limitations question and government action. Is there any evidence in legislative history they thought about this problem?

Thomas S. Martin:

I think there is evidence in the legislative history that they did not intent to have a short State Statute or a 180 day limitation.

I think to put it very briefly and I will get back to it at further lane.

Congress knew when it imposed upon the EEOC the requirement to investigate, to conciliate and to resolve as many of these problems by conciliation as it could.

Congress knew that that process took 18 to 24 months and yet Congress required that as a pre-requisite before you bring a commission suit under….

It is a pretty effective argument to the fact that Congress was not very happy about that.

Thomas S. Martin:

Congress was unhappy with that.

But then they did not quite continue.

Thomas S. Martin:

That is correct, it has unhappy about it, but it did not cut it off.

I could go just a bit farther, I think I can address your concern as I develop it.

Mr. Martin do you have any knowledge of figures as to how many cases filed with the commission are settled by conciliation as contrast to those that are not?

Thomas S. Martin:

I do and I would like to briefly indicate now what the commission has done in this area.

First let me talk about this case, then what the commission does generally in response of your question.

When this case was brought at the San Francisco office of the EEOC had fewer investigators than there are members of this court.

It had a 1,000 discrimination claims before it.

Nevertheless they got to this claim within six months, investigation was completed within a year.

But, then four months later conciliation was begun with the petitioners in this case.

Conciliation went on for another six months and then it was ended and then at petitioner’s request conciliation was begun again for an additional five months.

What is conciliation?

Thomas S. Martin:

Conciliation is after of the commission has found out what the facts of the problem are and the scope of the discrimination which just occurs in the particular or alleged to occur in the particular industry.

They sit down with the individual respondent and tend to work out an agreement, either for back pay possibly or for an end to the particular discriminatory practice.

Thomas S. Martin:

The whole purpose of the 72 amendments and 64 Act really was to try to resolve as many as these claims through conciliation as possible so they do not end up in court.

Conciliation typically could go on for six months?

Thomas S. Martin:

Conciliation could, you can imagine a situation where you have the company like AT&T, a massive company, thousands of people involved, hundreds of job categories, wages, transfer rights, unions involved.

It is a very difficult process it may involve difficult legal issues and everyone wants to go back and analyze those legal issues.

So as long as conciliation is worthwhile, the commission has to follow it out, the statute says it can only bring suit when conciliation has failed.

That is the Congressional pre-requisite to suit, the commission has no choice, it can’t end the business on the 179 day and sue because Congress has required to resolve these matters through conciliation were possible, that is what is it is about.

Anything other than Joe Bonning(ph)?

Thomas S. Martin:

Well let us talk about results I think it is and get to Mr. Justice Blackmun’s question.

5,000 claims last year were resolved through conciliation.

Now, there were over 40,000 discrimination claims resolved last year by EEOC and that is with 2,500 fulltime employees, 5,000 resolved through conciliation, the percentage of claims over three years old was reduced from 20% to 5%.

So my point I guess is that when you have the delay, it is a shared responsibility, it is not just the EEOC, it arises out of the nature of the work that conciliation process, the magnitude of the discrimination problem in this country and the limitations on the EEEOC resources.

William H. Rehnquist:

Well, now you do not see that with an ordinary Statute of Limitation, if the Statute of Limitation requires the owner to indict somebody and within four years or bring a civil action in four years, you do not say to the defendant has a shared responsibility, we both have to get this case to trial.

Thomas S. Martin:

No, but I do say that if the situation is such the Congress has required a conciliation, and conciliation is a two party business in other words respondents can, can encourage you to continue and say it is still worthwhile and coalition has to continue it, Congress must have setup a system that reflects this reality.

What I am saying is if you look at the scope of the problem and the resources available, you get some reflection of what Congress must have intended, sure Justice Rehnquist if there was clear Statute of Limitation, there would be no defense to say it is partly the respondent’s fault that we have not met it.

But what we are suggesting is that there is no clear Statute of Interpretation in Statute of Limitations and one should not be implied.

I like to turn to the merits of the case in particular to the language of section 706(f)(1) which reads, I think it is important what the language says, it says, if within 180 days from the filing of such charge the commission has not filed a civil action.

The commission shall so notify the person aggrieved.

May I stop you right there Mr. Martin and ask what the commission’s view is as, as to whether that imposes any time limitation within which the commission has a duty to notify the charging party.

Thomas S. Martin:

The interpretation of that language from our point of view is that it imposes, it does two things, it sets out a time within which the commission can conciliate with the respondent without interference from private sue, private party can not sue before 180 days and then it sets its time after which the private party can demand and must receive from the commission a Right to Sue Letter.

Well, it says the commission shall so notify, is that seems to impose a duty upon the commission with or without any request?

Thomas S. Martin:

That is right the language does appear to do that, but the courts that have interpreted it, Courts of Appeal had unanimously come to the conclusion that it could not possibly meet that for this reason.

The 72 act was meant to setup a process were you would have to resolve these claims through conciliation if possible, that is throughout and if there has to be a suit it ought to be a commission suit rather than a private suit.

Now, if you interpret this as a mechanical limitation, then 180 days after you file the claim, before the commission has even probably gotten into this particular claim, the private party is going to have to sue or else his time will run and therefore he sues without either the thing being resolved through conciliation or without knowing that the commission might have brought suit, if he had waited.

So, it twists around the whole statute and fundamentally upsets or frustrates the Congressional purpose.

Well in other words as I understand your answer and this reflects to the earlier question by my brother Stevens, your position is first of all that there is no time limitation within which the notice to sue must be given and secondly that there is no duty upon the commission in the absence of a request to ever give a notice to sue, is that right?

Thomas S. Martin:

That is not precisely correct, when the commission has decided that it will, it cannot conciliate and will not sue itself, in other words to fill the congressional pre-requisites, then the commission must notify the charging party.

With or without request?

Thomas S. Martin:

With or without request.

Apart from that, it only notifies upon request.

In that that decision is clearly up to the commission, if it decides that it is going to take, it is going to need seven years and it does not have to notify until the expiration of seven years.

Well this is Justice Stewart’s question.

Thomas S. Martin:

I am so much disturbed about the characterization, if it takes a long time to make that decision, it could go on three years, it could go on for four years.

It could go on for seven.

Thomas S. Martin:

That is correct it could go on.

Now let us — I think it worthwhile to talk about, how the courts can respond to that problem aside form the Statute of Limitations and I think there are two ways, first is in terms of the remedy.

If it is a truly stale claim an injunctive remedy will not be appropriate.

If it is a — we talked about back pay which is under consideration here, in Albemarle this court said, prior to acquainting file, but in Albemarle this court said that if a cause of action was prosecuted in such a fashion as to cause prejudice to the opposing party, back pay could be denied altogether and in EEOC Versus General Electric which is at 532 F. 2d 359, the Fourth Circuit said that, in a situation where a commission suit has expanded the claims beyond what the charging party originally brought, back pay could be limited, not denied altogether but limited.

So there are equitable ways in terms of Title VII’s remedy to deal with this problem.

Harry A. Blackmun:

Those ways it is pretty tough on the employee, aren’t they?

Thomas S. Martin:

I do not think they are Justice Blackmun, the point of the whole 72 amendments is that he does not have to bring the suit, the commission brings the suit and so…

Harry A. Blackmun:

You seem to argue all the way through that it is so much better for the EEOC to bring suit rather than the employee, why?

Thomas S. Martin:

I am not arguing that it is better from — that this court should think it is better or that I think it is better I am arguing that Congress thought it is better and the reason is as they set out in the legislative history, that the cause of bringing suit from their point of view, was so great that a valid Title VII claims — let me quote if the cost involved effectively preclude a very large percentage of valid Title VII claims from ever being litigated.

That is a quote in our brief at 26 and what the Congress’ saying is that it is better for the commission to bring suit because private parties will not bring suite, they do not have the money.

We do get counsel fees and you had counsel fees in 64 Act and yet Congress made a factual determination in 72 that was insufficient, that was Congress’ judgment and let me give you some reasons why they were probably right.

Attorney’s fees first of all, only discretionary, only if you win, it is only at the end of a process which may take years, the clause to that Title VII suit are not just attorney’s fees, they are expert witnesses, computer time, experts on management testing, investigators, it is a difficult and complex process to bring a Title VII suit and Congress says “Let us take this burden off the private parties because it is not working and put that burden on the government” first giving them…

Why did not they take it off, completely?

Thomas S. Martin:

Excuse me.

Why did not they take it off, completely?

Thomas S. Martin:

They wanted to give as the report of the conference committee suggests rather clearly, Congress realize that the process may take 18 or 24 months and therefore they said, if a private party wants to get out, wants to escape the administrative quagmire as the house report says, it will have the option to do so.

They gave that party the option after 180 days.

Any charging party the fourth commission after 180 days can just come to the commission and say, I want to get out of this, I want to sue myself.

But to a great bulk of them, that is too expensive for proposition or at least that is what Congress determined and it seems that the statute has to be interpreted, in view of what Congress intended, but what their view of the problem was.

Well, we agree with those who are not at this point.

Mr. Martin, do you give accompany any possibility of relief from a stale claim?

Thomas S. Martin:

In two fashions, first in terms of the remedy, taking either no injunction, no back pay or limiting back pay.

Another possibility which was done by the Fifth Circuit is the use of the APA, 5 U.S.C. 706.

You forgot a word, I said stale claim, which the Statute of Limitations would just wipe out.

All that but just wipe out….

Thomas S. Martin:

A claim that is prejudicial, because it is so stale.

Is there any way at all that a company could come in and have the case dismissed?

Thomas S. Martin:

Yes, under 5 U.S.C. Section 706, the Courts of Appeals had held in Fifth Circuit and I site the court to exchange security bank, 529 F.2d 1214, these are cited in also in the briefs of one of the amicus here, the Texas brief.

The charging party can come in show to the court, that there has been prejudice to him from the destructs of evidence as a result of delay and the delay is not — is a result of EEOC in action lethargy or the desolating the suits sit around and the court can stop the suit.

So, there is the result that similar to Laches that can be achieved under the APA.

It is not like Laches?

Thomas S. Martin:

It is very much like Laches except it is under the APA.

But, since you have put that in terms of the broad scope of the equity powers of the District Judge, are not you opening a door to having 397 different approaches to that problem by 397 different District Judges.

The Court of Appeals can not really lay down an affective set of guidelines.

Thomas S. Martin:

Well, I think, again I reference the court to those opinions and the guidelines laid down are that you have to have it — in the nature of Laches that you have got to show prejudice.

Guideline that does not guide very much.

Thomas S. Martin:

Well, it is a difficult case, we do not expect that there will be that many cases.

Let me talk about the results of what would happen if we fouled the petitioner’s proposal.

180 days Statute of Limitations means that the 96,000 claims that are going to be filed before the EEOC this year.

EEOC could get the very few of them if any, as upon a backlog situation, but thousands of pending claims first of all, there are over 100,000 pending claims, it would that all be out in the courts.

The new claims 90,000 a year would be in the courts.

Does that make any sense especially might have Congress’ determination of these things ought to be resolved through conciliation.

It is what exactly what Congress was trying to avoid and if you have a 180 day limitation, there is no other result possible.

What about the analogous Statute of Limitations?

Thomas S. Martin:

A State Statute of Limitations?

What if that has a fall back position?

Thomas S. Martin:

Well, the State Statute of Limitations, first as a legal matter, the rule has always been that State Statutes do not apply to the Federal Government in the absence of some intent…

Well, but we manage now for nearly, for over 20 years to function under the Federal Tort Claims Act, using much more illusive standards of law, state law than a Statute of Orientations.

Thomas S. Martin:

Oh yes, but the Tort Claims Act claims act specifically requires the application state law.

Oh, you are suggesting, I was merely responding, to your suggestion but it is not workable.

Thomas S. Martin:

Okay, on the policy point, it gives the commission somewhat more time, but we have to understand the State Statute of Limitations may run, maybe a year Statute of Limitation for example.

The commission’s cause of action may not accrue for 300 days after the injury has occurred and what sense does it make to apply a state statute of limitation when the commission’s cause of action does not accrue because the commission can not sue, until the claim has been filed which in some cases maybe 300 days after the injury occurred.

Usually it is 180, depends upon if there is a State FDP System.

Secondly, the commission has to investigate and conciliate and go through all those steps and until it finishes that process, no cause of action accrues.

So, you have a state time limitation running and yet the commission can not sue.

There can hardly be a sensible result.

It just does not work and moreover it is not necessary.

Thomas S. Martin:

If there is a prejudice, a real prejudice case and this is not, petitioner has never alleged he was prejudiced, he obviously shared responsibility for the delays here, but if there was one, then the courts could take care of that on Ad hoc basis through the APA or through the relief provisions.

I would like to speak briefly to the two assumptions that petitioner made at the outset that somehow the Congress views the delayed problem is resulting from EEOC inaptitude and Congress decided, well let us put a stop to it by putting in this 180 day provision.

There is two reasons why that is got to be wrong, first Congress views the delay problem is resulting from the scope of the commission’s task and not from EEOC foot dragging.

I refer the court to page 12 of the House Report 92238 where Congress’ view that delay arises from “The burgeoning workload accompanied by insufficient funds and a shortage of staff” and the Senate Report, 19415 at page 4, describes the EEOC’s effort as heroic at that point.

Does that sound like Congress wants to put a 180 day limitation on it, just does not make sense, secondly, the language that they are relying upon, the notification provision could not have been response to the delay problem because that language was in the 64 act.

That is quite possible, is not that Congress could have dropped the process and this time it was taking too long without in anyway reflecting on the performance of the individuals who are doing.

Maybe the government just did not have enough staff in the agencies.

Thomas S. Martin:

And then Congress had the choice to eliminate the process altogether or greatly expand the staff and put some reasonable time limitations.

But Congress did neither…

Well, you suggest that Congress always carefully works these things out, they have enlarged a lot of causes of action the courts without creating a whole lot of new judgeships too.

Thomas S. Martin:

Absolutely, but that the opposite assumption must be, that Congress had a process that took 18 to 24 months and said, well, from now on, it is going to take 180 days and that is it.

It just can not work as long as Congress wants to have resolved these claims through conciliation and through commission suit and not private suit.

If that is the intent and I think if you read the legislative reports that has to be the intent.

Then there can not be such assured Stage Statute of Limitations.

Out of every 100,000 claims that are filed with the EEOC, what percentage are A; conciliated successfully or two; litigation is filed?

Thomas S. Martin:

Well, I do have the claims on the successful conciliation that the 5000 figure I gave you was a successful conciliation out of 40,000 claims filed.

5000 out of 40?

Thomas S. Martin:

Successful and in terms of litigation, I do not have those figures, but once again…

But you certainly did not file a suit in the other 35,000?

Thomas S. Martin:

Oh, absolutely not…

Even though there was no time limit…

Thomas S. Martin:

Many of them were dismissed for lack of evidence…

But even though there was no time limit whatsoever.

Thomas S. Martin:

That is correct.

So, when we are talking about all these cases being filed on the courts, you are only talking about the cases that you think you have a successful — a pretty good chance for conciliating, but you do not have time to do it.

So, you file a suit.

Thomas S. Martin:

Well, what I am talking about is that the private party, if the commission is cut off after 180 days, the private party has no alternative but to go, file a suit.

Well, he does, he certainly has an alternative, he can access his chances and say, I have got a lousy chance and then do not file a suit.

You said that most private parties can not afford to sue anyway.

Thomas S. Martin:

Well, what I am saying is that Congress determined that they were valid claims not been taken care off because of the cost were too great.

Thomas S. Martin:

So, you are either are going to have the valid claims being not taken care off in contravention of the 72 amendments or you are going to have these people filing suit.

It is one or the other, some people may drop out altogether.

You mentioned 100,000 cases a year, new case.

Assuming just for the moment that there were that many meritorious claims which is a large, large assumption.

How many hundreds of lawyers would it take to process those, any studies or any estimates on that at all?

Thomas S. Martin:

To litigate them all, enormous number, I do not have any study to respond to your question…

In percentages, how many cases are counted to be lacking in merit or frivolous?

Thomas S. Martin:

I do not think, we simply do not have those figures…

It is very large percentage is it not?

Thomas S. Martin:

I think a large percentage are found to be lacking in evidence and are not enough for suit.

But is not it better to have that found out through conciliation process or commissions than people at the court.

In volume how many EEOC cases have been filed by EEOC?

Thomas S. Martin:

Litigation?

Yes.

Thomas S. Martin:

No, we do not have that, we do not have that figure.

If I can come up with that figure, I will submit it to the court and to counsel.

If that is not surprising you, in terms of the number of claims filed, I should think you would know, the commission would know.

Thomas S. Martin:

I think, — certainly can be found out and we will find out and submit it to the court, but I guess what we are suggesting is, Congress….

This is pertinent to the argument you were making, that 180 days is the limitation, it is going to be a flat more on EEOC case.

Thomas S. Martin:

No, no, EEOC can not file …

Oh, I see, you will turn them over to the…

Thomas S. Martin:

We can not file them because we have not filled the statutory prerequisites.

We have not affiliated …

You take this alternative round, the analogous statement is statute of limitations.

That would take enormous amount of this pressure, this 180 day pressure that you speak of, off of the commission, would it not and it would not be any great research undertaking to have someone makeup a table of all the analogous statutes of the fifty states of the District of Colombia, would it?

Thomas S. Martin:

It would not take the pressure off because the statute would be — it depends when a statute runs, if you are assuming the statute runs from the time of the injury, okay, then sometimes, it’s the discrimination, for 180 days and perhaps 300 days, it is not even filed with the commission and then the commission still has to investigate and conciliate before it can file suit.

The pressure will be exactly the same Mr. Chief Justice, unless the statute runs from a different time.

Let me know the Fifth circuit, in case is following Griffin Wheel, they tell that the state statute is told during the commission proceeding, the District Court is following Griffin Wheel, and in that situation, I refer to 416 (f) sub 1006, the only District Court case following Griffin Wheel.

They told the state statute while the commission is proceeding.

Griffin Wheel took the other position from the…

Thomas S. Martin:

That is right, he said, state statute applies.

Warren E. Burger:

Mr. Martin, do you agree with me that our profession is one that only operates on dead lines and we never do anything ahead of time.

Thomas S. Martin:

There is sometimes delays in legal profession, I will agree with it.

Warren E. Burger:

But have you ever seen it by and far, the brief, a day ahead of time, a lawyer.

Thomas S. Martin:

Very seldom Mr. Chief Justice.

Warren E. Burger:

Well, don’t think it would be good in this statute to put a time limit on?

Thomas S. Martin:

The question of whether it would be good in this A – it might be good in the statute, but would have to be a time limit that is consistent with the workload of the commission.

But difficulty of the problems it has …

And the process…

Thomas S. Martin:

And the process, it would have to take into consideration the days at the – the charge maybe differed to a state commission and they might never get it until 300 days.

They have to take into effect that you have to conciliate it before you sue and you take into effect the resources they have.

The scope of the discrimination problem in this country, put that altogether and then set a reasonable statute limitations, that might be good for Congress to do.

All I am suggesting is Congress did not do it.

Mr. Martin.

Thomas S. Martin:

Yes, Justice.

Is there Using in any of the federal commission or agency that is authorized to bring suits against private citizens without any statute of limitation forever infinity action.

Thomas S. Martin:

The analogy that the court appeals to was to the analog deep process, in which the court said the No state statute limitation apply, I do not know whether there is a federal statute that applies there, I assume not in trust of the opinions.

Congress, I think the way they were coached the problem is that Congress gave the commission, a special role, it said it was supposed to be the primary enforcer of Title VI.

This court has numerous times said the Title VI is the greatest importance in terms of policy.

So, Congress had determined thirdly that it is a factual matter, these suits would not be brought and rights would not be vindicated but for the commission’s suits and it set up a process of conciliation and then litigation where necessary and if litigation is necessary that the commission should bring it and then these limitations was frustrating.

Do you really think that Congress would allow a suit 15, 20 years afterwards?

Thomas S. Martin:

I think Congress would expect as everyone here would expect the courts would say that that suit is barred, that particular suit.

By what?

Thomas S. Martin:

By – as I suggest that the APA can be used in a laches type concept, the bar of that particular suit.

What I am suggesting as a individual, if there is a prejudice claim, the courts can take care of that.

Prejudiced in the sense that interest runs on claims for backpay and on the uncertainty as to whether positions can or can not be filled or about the individuals, there is always prejudice.

Thomas S. Martin:

Well, if there is a shelling of prejudice, the District Court can respond by limiting backpay, denying backpay altogether, only granting injunction or not granting injunction and the court’s respond to the particular case, but if we propose a state statute limitations, thousands of cases which Congress determine ought to have been considered, conciliated and possibly suited upon by the commission will not be…

Has there been prejudice in this case.

Thomas S. Martin:

I think not, there is been no showing of any, there is been no claim of any.

If petitioner sits down and asks the commission to, well, let us continue to conciliate a bit longer, I think we can get this result, then the commission says, yes, we will conciliate a bit longer and they spend another six months, I would not call that prejudice.

What is left of this case?

Thomas S. Martin:

This case does in response to the question raised earlier, raise the continuing claim, on page 10 of the Appendix, there is reference to the – there is a complaint which is a continuing claim of Title VI discriminations, now, this case would go on because…

Mr. Martin, may I ask you a question about this statutory language shall so notify the person agreed and so forth, the mandatory language.

Is it possible to read that section to say that if the condition is preceding that namely that 180 days are gone by and there is been no conciliation so about the lapsed, then the commission has a mandatory duty to notify by the private plaintiff who may then bring suit within 90 days, but that does not put any limit on the commissions right to being subsequent suit.

That be a possible construction?

Thomas S. Martin:

That would be a possible construction.

That seems to be all it says…

Thomas S. Martin:

And then the commission could sue…

But the commission does not so interpret it that way, they do not think they have any amendatory duty at all.

Thomas S. Martin:

Well, of course question is named the suit, but the commission does not want the private parties right to run before the commission has decided whether or not it will sue.

Maybe that is what Congress ordered that to do.

Thomas S. Martin:

Well, the legislative history as far as we can determine it the other way, let me refer you Justice Stevens to (Inaudible) McDonalds, 517(f)(2) 130, that a Eighth Circuit case, which analyses this particular section and the notice provisions and notice requirement, I think it will be helpful in that regard, but legislature history simply will not support that analysis.

No further question.

Thomas S. Martin:

Well, thank you.

Do you have anything further Mr. Vaughn, in another few minutes.

Dennis H. Vaughn:

Yes, Chief Justice, just really three or four points.

On this point of claim of prejudice, the Assistant Solicitor General takes the position that there is no prejudice here to petitioner that we have never claimed prejudice.

The nature of a statute of limitations defends of course that prejudice is assumed, need not to be proven, we did not raise the issue of laches in our motion for summary judgment for this simple reason, but latches is virtually impossible to prove by way of summary judgment because it is factually oriented and there will be substantial differences with respect to material fact, therefore latches has never been a part of this case at any time from the beginning but I think there is no obligation upon us to prove prejudice in order to prevail in this matter.

I think that Mr. Justice Marshall in a very real sense put his finger right on it, when he referred to the propensity of lawyers to put off until tomorrow.

What they could do and should do today, now I do not think we lawyers are the only ones guilty of that, Parkinson’s law, I believe was something to effect that work expands so as to fill the time available for its completion.

If one is not given a deadline to comply with, one is going to put off that project until tomorrow and tomorrow and tomorrow.

That is exactly what is happening here, the Solicitor General says that there are 90,000 new cases every year and we the EEOC, would not be able to do anything with them, so we will have that march them right in the court.

Well, they are assuming the negative, they are assuming they will not or can not do anything, but the fact of the matter is they can do something, they can investigate those charges, they can conciliate those charges, they can make judgments about which ones to take to court and they can make judgments about which ones maybe taken to court justice well by the individual private parties.

After all, the National Labor Relations Board with a influx of cases roughly half of that 90000 figure, about 45000 a year has a median time from charge to completion of investigation of 43 days.

How big a staff, if you would know?

Dennis H. Vaughn:

I think their staff is somewhat smaller than that of the EEOC, but I can not give any reliable figures, one reason Mr. Chief Justice, that they have a median time of 43 days is because they have a time limit internally imposed upon themselves of 45 days.

William H. Rehnquist:

But they are not obligated conciliate, the way the EEOC is…

Dennis H. Vaughn:

They are not — they do not have a statutory mandated obligation, they do however come to a charge party Mr. Justice Rehnquist and they say, we are going to file a complaint.

Two days from now, unless you reinstate these employees and give a back pay, well, that is a form of conciliation you decide right away what you are going to do, and you have two days in which to do it and if you dont reinstate with that day in terms the complaint.

I see my time is up.

Dennis H. Vaughn:

Thank you.

Warren E. Burger:

Thank you gentleman.

The case is submitted.