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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument v.

IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - -X EDITH JONES, ET AL., ON BEHALF : OF HERSELF AND A CLASS OF OTHERS SIMILARLY SITUATED, Petitioners : : : : : No. 02-1205

R.R. DONNELLEY & SONS CO.

- - - - - - - - - - - - - - - -X Washington, D.C. Tuesday, February 24, 2004 The above-entitled matter came on for oral

before the Supreme Court of the United States at

10:24 a.m. APPEARANCES: H. CANDACE GORMAN, ESQ., Chicago, Illinois; on behalf of the Petitioners. GREGORY G. GARRE, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioners. CARTER G. PHILLIPS, ESQ., Washington, D.C.; on behalf of the Respondent. KEVIN C. NEWSOM, ESQ., Solicitor General, Montgomery, Alabama; on behalf of Alabama, et al., as amici

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curiae, supporting the Respondent.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S
PAGE

H. CANDACE GORMAN, ESQ. On behalf of the Petitioners GREGORY G. GARRE, ESQ. On behalf of the United States, as amicus curiae, supporting the Petitioners CARTER G. PHILLIPS, ESQ. On behalf of the Respondent KEVIN C. NEWSOM, ESQ. On behalf of Alabama, et al., as amici curiae, supporting the Respondent REBUTTAL ARGUMENT OF H. CANDACE GORMAN, ESQ. On behalf of the Petitioners 52 45 26 16 4

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS.

P R O C E E D I N G S
(10:24 a.m.) CHIEF JUSTICE REHNQUIST: We'll hear argument

now in No. 02-1205, Edith Jones v. R.R. Donnelley & Sons.
Ms. Gorman.
ORAL ARGUMENT OF H. CANDACE GORMAN
ON BEHALF OF THE PETITIONERS
GORMAN: Mr. Chief Justice, and may it

please the Court:
Congress answered the enacting section call of the judiciary by

1658, a bright line rule that provides a
limitations of 4 act of years for any civil

default statute of action arising 1st, 1990. Section because this Court not have claims

under an

Congress after

December

1658

applies

to

plaintiff's

claims did
and

said in of

Patterson that plaintiff harassment and --

racial

termination and discharge claims.
Plaintiff's Rights Act claims arise under the 1991 Civil

because that is the act that created the cause

of action that plaintiff has filed under.
In Rivers, this Court held that the 1991 act, as
amended by the 1991 Civil Rights Act, was a new cause of
of

action that created new liabilities and a new standard conduct. Therefore, under section 1658, under

the plain

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meaning applies.

of

that

statute,

the

1991

Civil

Rights

Act

The interpreted in terms,

simple

one-sentence

statute

has

been
The

such a way as to give under, and the

it no meaning.

arising

term, civil

action, are

simple terms used by this Court repeatedly to describe the
statute's reach and that reach includes all civil actions

arising under an act of Congress after December 1st, 1990,
whether it has roots in or references preexisting law.
QUESTION: if -if you are Ms. Gorman, one of the anomalies that
to hire, a

complaining about a refusal

discriminatory refusal to hire, the years, but if

limitation would be 2
a discriminatory
--

you're complaining about

firing, it would be 4 years.
Does that make sense to to have those two claims both stemming

from the original

1981, but one having extended it?
MS. GORMAN: Honor, and Yes. I -- I believe it does, Your

the reason is that the purpose of section 1658
State limitations periods
purposes, and

is to cut down on borrowing and that have been used for

the borrowing

anything that cuts down on those

purposes of borrowing is

going to be going to the effect of that statute.
Now, the limitations is cases that I fact that there are two statutes of

not unusual file.

in --

in the

discrimination
of

There are

often

many statutes

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limitations that the Age

someone has to look at. there

For example, in
statutes of

Discrimination Act,

are two

limitations for willful and not willful. filed under section -- under section 1981, and we have

Often claims are
under

title VII, as well as

various statutes of limitations

that we deal with in those claims as well.
QUESTION: to those But one can Here it see some rhyme or reason
seems that -- that one

differences.

claim is -- is no more deserving of a longer time than the
other.
MS. GORMAN: Well, we have to look at the plain
Honor. And it is a default

meaning of the statute, Your statute time of

of limitations, so Congress has the option at any
creating a -- a statute of limitations going back

to 1981 if it thinks that this is not the way it wanted it
to work out. But it -- the statute is clear that it's for
that

all new causes of action or for all causes of action

arise under acts of Congress after December 1st, 1990, and
I think it's very clear that plaintiffs' Civil Rights Act. claims did not
could

arise until the 1991 not file Act. QUESTION:

Plaintiffs

a cause of action

until that 1991

Civil Rights

Do you

want

us to

interpret this

section (b) as a new cause of action, in other words?
MS. GORMAN: The 1991 act. The claims -- I'm

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only addressing the narrow issue -­
QUESTION: Yes.
-of the claims that plaintiff

MS. GORMAN:

could not file prior to -­
QUESTION: Section (b). You -- you want us to

interpret section (b) as a new cause of action?
MS. GORMAN: Correct. And I believe that

follows from the in Rivers.

Court's decisions both in

Patterson and

QUESTION: (b) from

If -- if you completely untie section
number one, it doesn't make any

section (a),

sense, and that

number two, the -- the implied cause of action
might disappear because we have told

we have found

Congress, when you enact a new cause of action -- or a new
statute, you have to say explicitly if it creates a

private cause of action.
MS. GORMAN: I believe Congress addressed that

in the 1991 Civil Rights Act, codifying that this was a -­
that there was a private right of action involved. But

this Court had already -­
QUESTION: Where -- does it say that in 1981?
In 1981(c).
Well, I -- I'm not sure I read it

MS. GORMAN: QUESTION: that way.
MS. GORMAN:

The

rights

protected

by

this

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section are protected

against impairment by nongovernment

discrimination and impairment under color of law.
QUESTION: That doesn't sound like an explicit

creation of a cause of action to me.
MS. GORMAN: also said in Patterson Well, Your that Honor, this Court create a had

1981 did

private

right of action.
QUESTION: under 1981. I'm saying Well, that's what -but that was

You're saying it's a new cause of action, and
that if it's a new cause of action, then
cause

Congress has to be of action.

explicit that there's a private

MS. GORMAN: (c) was said

I believe the language

in section

put in there just to
confirm that what the Court that this was a private right of

in Patterson,

action, was going forward with the new statute.
And which I think to the point that this also is definitional,
raising, Justice

was what

you were

Kennedy, the fact that Congress adds definitions to create
causes of action was recognized by this Court in Rivers as
a way that Congress often creates believe that that's causes of action. So I

very consistent with how this

-- how

Congress enacts causes of action.
QUESTION: the Your -- your argument really rests on
arising under has a -- a uniform

proposition that

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meaning,

that it

doesn't acquire

different meanings

in

different contexts, doesn't it?
MS. GORMAN: I believe it rests on the

proposition that the arising under is

most common way of meaning

-- using

the way Justice Holmes

described it and
the

that's that a suit arises cause of this action.

under the law that creates

And that's what we're saying here, that
the 1991 law. That's what created

suit relies on

plaintiff's cause of action.
QUESTION: -Well, we've -- we've also just a -of held that
a Federal

that arising under of action but

embraces not even

cause

State causes

action that

require determination of a Federal Federal question is --

question for which the
Now, how
It
be
of

is sort
of essential.

could you possibly apply that meaning to this statute? would mean that the Federal Government would

establishing statutes of action.
MS. statute was Amendment GORMAN:

limitation for

State causes

I

don't

believe that's Honor. The on

how the
Eleventh

-- was

drafted, Your place any

does not

limitation

Congress'

ability to establish a Federal a Federal directed claim, and to Federal

statute of limitations for
section 1658 action, is clearly
civil

I believe causes of

Federal

actions, not to State civil actions.

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QUESTION:

Not if you use arising

under the way
claim

we use it in other contexts can --

where -- where it -- a

can be thought to arise

under, for purposes of -­
though the cause of

of Federal court

jurisdiction, even

action is -- is a State cause of action.
MS. GORMAN: in this sense used by this 28, Your Honor, I believe arising under
used in the way that it's most

should be

Court and in the way that it's used in title
statute was -is codified. As

which is where this

Justice Frankfurter said, you --

you take the soil

along
So the

with it, that goes along with the other statutes. fact that this Court has in title 28 that a cause the

repeatedly and consistently said
of action arises under action or if the law

that creates

cause of

it depends

depends on that

cause of action.

I believe that's the -­

the way arising under should be used in this case as well.
QUESTION: All right. So you're picking one of

various -- various meanings, but that's all that the other
side is doing too.
MS. GORMAN: consistent arising approach But I believe this this is the more

with how --

Court has

looked at

under

in the

in the

jurisdictional context

because that is where this Court -- that is where Congress
has placed this definition in the statute.
QUESTION: I don't think so. I think in cases

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such as --

Smith v. Kansas City Title & Trust Company, we've
that arising of action under jurisdiction is based on includes
but

we've said

where the

cause

State law,

relief necessarily depends on resolution of question of Federal law.

a substantial
can

We say that Federal courts

take jurisdiction in that situation.
And as I say, if you apply that meaning here, it
-- it means that you're -- you're setting a Federal

statute of limitations you want to cases.
MS. GORMAN: that the -the

for State causes of

action unless
that line of

disown Smith v. Kansas City and

Your Honor, of

what I'm suggesting is
this Court has been

reasoning

consistently that under used as

title 28, arising under

has been

Justice Holmes has suggested it,

and that's what

I'm suggesting is the -- is the bright line rule that this
Court should follow in this case.
QUESTION: I'm suggesting that's wrong.
I understand, Your Honor.
do with the hypothetical

MS. GORMAN: QUESTION:

What do you

that was raised in -- in the briefs on the other side that
suppose Congress shrinks title VII, of 25 or the people who are exempt from

say, and makes it 15 or more employees instead
Then what do Do you do with get a the

more employees? are

people who

newly included?

they

longer

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statute than the ones who were there before?
MS. GORMAN: And again, I Yes, Your Honor, I believe they do.
out that this is a default

want to point

statute of limitations, so Congress

would always have the

ability to affix a statute of limitations.
QUESTION: But -- but in -- in determining what

Congress meant, is it -- wouldn't it be relevant that that
seems something no legislature would want to have happen,

that people who are newly covered by the same prescription
get more covered?
MS. GORMAN: Your Honor, first that example
time to sue than people who have always been

comes from title VII which does have its own -­
QUESTION: I know. I know.
So we had to pick

one that comes under 1981 or 1982.
MS. GORMAN: plain meaning of the I still -- of think we have to give the

the statute its

effect, and

Congress as

-- we have to

understand that Congress set this
want to have this
employees

a default and

if Congress does not

anomaly where people who in a

are between 15 and 25

-- in an employment relationship where it's under 25
of action has been created for

employees and now a cause them --

if Congress does not want to have that situation,
is going to have to draft a statute of

then Congress

limitations which that

-- with

that law, which

Congress

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has

shown under the

Sarbanes-Oxley Act

that it

is more

than willing and able to do. When Congress adopted the Telecommunications Act -- when Congress to add the amended

of 1936

Sarbanes-

Oxley amendment, it put in the statute of limitations that
it knew it wanted to have so it would be consistent with
that statute. And it
if
in
of

other statute of limitations within is clear from the reading of

that

statute, that

Congress -- that Congress thought that amendment, that the

if they had not put statute of --

4-year

limitations would apply even though to a preexisting statute.
QUESTION: Another

that was an amendment

problem that was

raised in
a

the brief on the other side circuit that had as allowing circuits haven't

was what would you do with

a law -- that it had interpreted the law
and there's a circuit where other
and we
was no

it

no claim

have -- have spoken. In

allowed a claim

in the --

the circuit

that said there

claim and suppose makes

then --

so that

people are

newly covered split and

Congress

eliminates that everybody

circuit

it

clear that

is covered.

Then what

happens in the circuit where people were not covered until
Congress clarified the law? MS. GORMAN: Do they get the 4 years?
most cases I think
that is

I believe in

everyone will get

4 years, and

the reason I say

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because

section

1658

does not

address

the

circuit -­

circuit split. Congress. a

It addresses the statute that's enacted by

So if Congress enacts the statute setting forth
that was 4-year not codified before, limitations then I would

cause of action that that

believe apply.

statute of

QUESTION: whether it

Well,

but that -- that's

the issue,

was codified before. Other circuits

Some circuits say it was
For
of a

already there. the

say it wasn't there. a new creation

latter circuits, this

would be

cause of action.

For the former,

it would not.

Now, I

agree there's only one

right answer; either --

either it

existed under the old law or it didn't exist under the old
law.
But frankly, I and resolve -resolve don't want to questions have to sit here

of whether

something
decide

existed under an old law whether cuts in doing, -- whether this or not. deciding

for no purpose except to

statute of limitations provision
a weird thing was to have us
merely
a new

I mean, it's whether a

statute

really

reaffirming an

old law or whether I -­
I -- I

it was enacting

cause of action.

MS. GORMAN: would always be Since we're

think one

thing that

we

able to do is to look

at these statutes.

looking at this in the abstract, it's hard to

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say.

But

-- but

taking the

--

the 1991 in

statute, for
purpose as

example,

where

Congress

defines it

the

expanding the rights, then I think it's clear that this is
something new that did not exist before. QUESTION: But in -- in -­ I'm sorry. I'm sorry. I didn't mean to cut you So I think -­

MS. GORMAN: QUESTION: off. I thought was -- in

the case

of the circuit

split, I

the statute that

broke -- that

-- that resolved

the circuit

split and confirmed that there was a cause of
would qualify on your theory of arising

action would --

under because your -- your cause of action would, in part,
be based upon the amending statute. MS. GORMAN: QUESTION: No. Am I wrong?

That's correct, Your Honor.

Okay.
That is what I'm suggesting.

MS. GORMAN: QUESTION: QUESTION:

Well -- well, it has to -­
But what about action? the circuit that
my

already recognized the cause of question?
Say that the Seventh Circuit -- prior

May I repeat

to the

statutory amendment,
of
a

had already

recognized the cause Now, would it be

action that the amendment confirmed.

new cause of action in the Seventh Circuit?

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MS.

GORMAN:

I

don't think

it would be

a new

cause of action

but it would now be arising

under an act

of Congress that was enacted after 1990, and I think -­
QUESTION: But the Seventh Circuit thought it

arose under an act of Congress even before the amendment.
MS. GORMAN: I understand, Your Honor, but I

think if you look at the purpose of the statute and use Patterson as an example, in claim under

if we

Patterson the Court said
claims.
-- if --

there was no And then when I'm sorry.

1981 for post-contract

Congress enacted the 1991 act, if

Patterson had not been decided by this Court,
a disarray on this issue act and and then
we are

but we had circuits in Congress

enacted the 1991

said in there

expanding -­
QUESTION: Oh, I see.
-- and defining. Then I believe

MS. GORMAN:

that the 4-year statute would apply.
And if I may, Your Honor, I'd like to reserve

the remainder of my time.
QUESTION: Very well, Ms. Gorman.
Thank you.

MS. GORMAN: QUESTION:

Mr. Garre, we'll hear from you.

ORAL ARGUMENT OF GREGORY G. GARRE
ON BEHALF OF THE UNITED STATES,
AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

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MR. GARRE:

Thank you,

Mr. Chief Justice,

and

may it please the Court:
Petitioners' claims for racial discrimination in
the terms and condition of employment are subject to the

uniform statute of limitations set forth in 28 U.S.C. 1658
because those claims under were created by and Act of therefore arise
of Congress

the Civil Rights

1991, an act

enacted after December 1 -­
QUESTION: pointed out, Mr. Garre, as has already rise to been
some

the interpretation

does give

anomalies and interpreting it the other way might as well.
What could Congress have provided in section 1658(a) to

avoid some of these questions? MR. GARRE: QUESTION: MR. GARRE: QUESTION: MR. GARRE: the -- the issues that are a direct Well -­ How could it have been written -­ Justice --- so we wouldn't be in this mess? Justice O'Connor, I think some of

have been identified to the the compromise

Court

product of

that Congress
by the
a

struck in Federal

1990.

Originally the Study

act, as proposed have

Courts

Committee, would

applied

uniform statute of action.

limitations to all existing

causes of
believed
So the --

And some Members of Congress and groups concerns.

that that would create retroactivity

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the

compromise

that

was adopted would

was

that

the uniform

statute

of limitations

apply

on a

going-forward

basis with respect to causes of

actions that were created

by acts of Congress enacted after December 1990.
This action. case involves precisely such a cause of
Patterson

Petitioners'

claims we

know from the

case were not

actionable under statute 1981

prior to the

1991 Civil Rights Act. Court today

The only reason petitioners are in

and have viable claims is because of the 1991
Therefore, we think that respondent's

Civil Rights Act.

position which results in the conclusion that petitioners'
claims arise under the -- the same statute at issue in

Patterson, claims, is

the statute that we know does not create those
an absurd conclusion that
we think counsels

against their position.
QUESTION: claims? I mean, What if the statute did create those
circuit split

I'm getting

back to the

question.
MR. GARRE: QUESTION: We --
It seems to me you don't give the

same answer that -- that the petitioner does.
MR. GARRE: circuit split problem section 1658 the Justice Scalia, would be way we think that the
of

resolved for purposes would be

same

it

resolved for
a new

retroactivity

purposes.

Anytime

Congress creates

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cause of actions, there -- there are going to be questions
that arise from the creation of that cause of action.
The Court considered the same question in Hughes
Aircraft v. United States ex rel. Schumer where Congress

amended the False Claims Act to eliminate a jurisdictional
defense, and this Court said, on pages 949 and 950 of opinion, created the Court a new cause that of action. of its

And therefore,
cannot be

held

cause

action

retroactively applied.
QUESTION: to resolve whatever So you're saying we -- we will have

these -- these to

circuit splits for whether the

no purpose
of

except

decide Right?

statute

limitations applies. MR. GARRE:

We'll have to -­
Scalia.
In the sense

No, Justice

that the same issue would -- would arise for retroactivity
purpose, whether or not Congress has created a new cause

of action which would apply retroactivity -- retroactively
or not. And even if the retroactivity question didn't
has

arise, that's a product of drawn.
Another construction -­
QUESTION: MR. that that --

the statute that Congress

another

problem

with respondent's

As you interpret it.
As we interpret it, and we think
of both

GARRE:

is the plain meaning

of Congress' use

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the -- the all-inclusive term, the traditionally inclusive
term, arising under, as well as Congress' reference to an

act of Congress.
QUESTION: What -- what is your position as to

whether the statute of limitations applies to State causes
of action?
MR. GARRE: We don't think it applies to State

causes of action at all.
QUESTION: Then you're not using the all-

inclusive term, arising under.
MR. Congress has GARRE: Well, that's not a It's a product that
question of
statute of

used of arising under.

whether Congress intended

to supply a Federal

limitations for State claims.
QUESTION: Well, and -- and you say they didn't

because -- so your -- since it's that, you're -- you're

absurd to think they did
under a narrower

giving arising

interpretation than -- than we give it for -­
MR. GARRE: QUESTION: jurisdiction.
MR. GARRE: In the first place, we think that
Rights Act
dictionary
28 U.S.C.
Well -­
-- for purposes of -of Federal

plaintiffs' claims arise under any definition the

under the 1991 Civil of arising under, and

definition,

statutory

definition,

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1331 -­
QUESTION: But -but that contradicts your

other position that -- that we're going to have to resolve
this question because if the same in order to determine the circuit splits

you believe that, your -- your answer would be
as the petitioners. You don't have to

as --

resolve those statute. statute.

circuit splits so under the

long as there's State -- under

a later

It arises

the later

Whether it arises under both, who cares? MR. GARRE: QUESTION: MR. No. That's not your position. The question would be the same case

GARRE:

question that which was action in

this Court

considered in

the Rivers

whether or not the 1991

Congress created new Rights looking Act, and

causes of
the Court
intent

Civil by

analyzed

that question

to Congress'

enacting that act. simply clarified

Some parties argued that continued into

Congress had
rights.

and

effect old

Other parties argued that Congress had created new rights,
and this Court agreed with that interpretation. And we

think that this case

that interpretation requires the conclusion in
that petitioners' claims are governed by the

statute of limitations in section 1658.
If I could refer to another problem with

respondent's construction and that is it -- it essentially

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renders

inoperative

the

default

rule

established

by

Congress in and that's wholly

section 1658 in because Congress

the vast majority rarely creates

of cases,
of

the kind

new and self-contained cause of action that has no
And that's the only
thought was a

reference to or roots in Federal law. time that

the default rule, which Congress

significant improvement to the prior borrowing State -under

practice of State -­
apply under
respondent's

statute of limitations would -under

respondent's

interpretation. QUESTION: Lending Act and Well, it did so in the Truth in

-- and the

Clean Air Act

and the Clean

Water Act.

Those are all new enactments. GARRE: chooses But to --but, Justice upon Kennedy,
existing

MR. Congress

often

to build

Federal law in creating causes of action.
QUESTION: problem with Well, in this case, what about action? I the

the implied cause of

don't read

section (c) as explicitly granting a -- a private cause of
action.
MR. GARRE: of section (c), it We think -- from was intended to our understanding

clarify that section

1981 does create a private right of action, which -- which
this Court had held in Runyan and reaffirmed in Patterson.
But we don't think it's a problem if the Court

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concludes

that

petitioners'

claims

depend

on

both

subsection (a)

of 1981 and subsection (b) of 1981 because
exist today because of under that act, under and the 1991
under the
under the

petitioners' claims only act, in that

respect, arise of

dictionary

definition

arising

settled definition of arising under title 28 of the United States Code.

that Congress uses in

Petitioner seems to read the statute's reference
to an act of Congress to refer that creates the only to an act of Congress
self-contained cause

kind of wholly new

of action I mentioned.
QUESTION: MR. GARRE: Justice.
But we think, as -- as Judge Alito concluded his dissenting opinion in the Zubi case, that an in
You mean respondent, yes.
Respondent. You're right, Mr. Chief

act of

Congress is just include an

as naturally read and has

to be read to

act of Congress that creates a cause of action

by amending an existing cause of action.
And all of respondent's objections about the

practicality of plain-meaning that Congress

our position, which we think is -- is the
what Congress to this -- the statute
the

position of wrote,

have that

be weighed Court and

against the

intractable

problems

Federal

Courts Study Committee identified with respect to the past

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practice of borrowing State statutes of limitations.
Our inquiry focuses the analysis exclusively Congress' actions and Federal law, and we on

think that
The
It

that's where prior

Congress wanted the

the courts to inquiry on

focus. law.

practice focused

State

required Federal courts an

to canvas State law, of action,

to identify
try to
in

analogous State cause

and then to

identify the statute the State to

of limitations

that would apply then to

that cause

of action, and that

make a
of

separate

determination

whether

State

statute

limitations could appropriately be applied to Federal law.
And that had created great uncertainty and great disparity
in the application of Federal law. Indeed, under the old

practice, a single Federal claim

could be subjected to 50

different State statutes of limitations.
And addressing at Courts that was the problem that Congress was

the --

the recommendation

of the

Federal
And it
only
that

Study Committee in enacting

section 1658.

decided, as a result of on a going-forward basis

the compromise, to apply it with respect to new claims

were created by Congress after 1990.
Petitioners' claims only exist today as a result
of Congress' clearly action in the 1991 act, and we think they're
by the default statute of limitations

governed

established by section 1658.

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As petitioners' counsel made clear, section 1658
only a default rule rule. Congress can always so several specify a

different 1990.

and it

has done

times since
of 2002,

It did so in the Sarbanes-Oxley Act of -significant because that

and that's

act, Sarbanes-Oxley,

amending an existing cause of and Exchange

action under the Securities
Congress had in mind the
respondent proposes,
obliged to amend
for

Act -- so if -- if

interpretation of it's certainly 1658 to put

section 1658 that

odd that

Congress felt

in the

special statute

of limitations

securities laws claims.
QUESTION: What was the period prescribed in the

Sarbanes-Oxley statute?
MR. GARRE: It's 2 years after the discovery of
different
section

facts and 5 years after the violation, which is than the 4-year 1658(a).
rule established

by Congress in

We think the court of appeals in this case erred
in subjecting petitioners' section 1981 claims, which only
exist because of the 1991 Civil Rights Act, to sought to put an the old
end to

borrowing practice that Congress in 1990, and we claims think that governed

this Court should by the uniform

hold that
of

those

are

statute

limitations established by section 1658.
QUESTION: Will there be some retroactivity

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problems if some States have 6-year statute of limitations
and this reduces that period?
MR. GARRE: No. As -- as Judge Alito explained

in his -- may I answer that question?
QUESTION: MR. GARRE: dissent, only there's no Yes.
As Judge Alito explained in the Zubi
retroactivity a problems because could have the

expectation

that

plaintiff

after
is if

Congress created those

the new causes of

action in 1991

causes of actions

would be subject

to the default

statute of limitations specified.
QUESTION: MR. GARRE: QUESTION: Thank you, Mr. Garre.
Thank you.
We'll hear now from Mr. Phillips.

ORAL ARGUMENT OF CARTER G. PHILLIPS
ON BEHALF OF THE RESPONDENT
MR. PHILLIPS: may it please the Court:
It seems to me that there are two propositions
Thank you, Mr. Chief Justice, and

that arise out of the conversation of the past 25 minutes.
First of all, there is no single uniform meaning
of the -- of the expression, arising under. It is a term of is used with chaos. in It is not a
a

term of art. phrase that

It is a -- it is

repeatedly a very

different contexts,
-in a very

routinely

used

pragmatic

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pragmatic fashion and does not answer the question whether
or not Congress, when it amended section expansive it adopted 1658, or Congress, when
of

1981, really

envisioned this kind

interpretation that would State laws are suddenly As Justice Scalia

allow an argument to
subject to statutes
make

be made that

of limitations.

asked, when you

other kinds of adjustments in these schemes, are you going
to have to resolve every -- every one of these issues?
I mean, the in the circuits. question with respect to the split

There is currently

pending a proposed
specifically

change to the

Air Carriers

Access Act that

resolves the conflict in the circuits between the Eleventh
Circuit which says there is no cause of action and other

circuits that says there is a cause of action.
These aren't hypotheticals. These are real

issues and if this Court is not careful in how it tries to
confine the interpretation of section be interpreting next 10 years, the statute which for the good 1658, it's going to
better part of news for me the
as a

may be

practitioner before the Court. it's not good news either for

But I'm quite certain that
my clients, for the lower

courts that are going to have to adjudicate these problems
or for -­
QUESTION: raised offered The solution to petitioner is the last problem you
simply you use the

by the

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newer

statute,

and

you

don't

have

to look

into

the
was

question of -- of which correct.

side of the circuit conflict

If the right is created whether it -- if under the

by the new statute, it
the new doesn't that

didn't matter

it's affirmed by new statute, it or not.

statute, you're suing

matter whether it existed before an adequate solution? MR. PHILLIPS: solution, Justice Well,

Why isn't

it might

be an it's

adequate self-

Scalia,

except that

not

evident from the language, arising under.

The question is

what -- what is the use of arising under that you're going
to try to apply in a more or less uniform fashion.
QUESTION: -to the fact But I think isn't her answer isn't self-evident to the
the

that it

from

language alone an answer she gave to a separate and that is that it's the policy -- the 4-year rule the language allows would be

question,

of Congress to apply the
in doubt -- if
answer

when it can so that if but doesn't

compel, then the because that is

apply the new statute

going to

get to the

congressional objective of getting

the 4-year

statute as broad -­
MR. there's PHILLIPS: for And there -- and objective in I don't think
-in this

support

that

particular statute because if Congress really meant -­
QUESTION: Well, isn't the -- isn't the support

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that they started out by year only period, I mean, fell back out

intending to -- to apply board and they

the 4­
-- they

across the

of fear

of -- of

violating reliance

interests which would say the -- the objective is still to
get the broadest possible application?
MR. PHILLIPS: Well, no. It's a question of -­

I mean, they -- they obviously made a -- a compromise, but
the question is why isn't it as reasonable a compromise to
say, look, classic we're going to deal with this in the truly

sense of the

word prospective.

Every new self-

contained statute this rule. And

that goes into effect is now subject to
-and literally, as Justice Kennedy

said -­
QUESTION: They could -­
-- they do that every day.

MR. PHILLIPS: QUESTION: -- the

-- they could have said that, but the

counter-argument to -- to what you've just said is
and maybe this is -- I hope you'll comment on
-- is
there

-- and -this, that

on your reading, the

4-year statute is

rarely going to be aren't very

applied simply because there -sort of absolutely

many

brand-new,
Most of

freestanding, self-contained

causes of

action.

them are -- are subjects of tinkering from time to time.
MR. PHILLIPS: reality is Well, Justice Souter, the -- the
you think.

that this is far

more common than

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The anti-terrorism statute of action. has a The Muhammad

has specific standalone causes
Act

Ali Reform -- Boxing Reform

standalone cause of action.

I mean, there are, in
does precisely
I mean, this
list,

fact a host

of statutes in which Congress claims it rarely does. would like us

what the other side -- if --

if the Court

to provide a

we'd be happy to do it. QUESTION: way. I mean, Yes, but the very argument is the often major other

it's that

pieces of

legislation are amendment of Kefauver Act. would really totally new.

enacted in the form of what looks like an
I think of the Celler-
merger law
it was

a current statute. I mean,

on your theory, all of

be viewed as not

a new statute when

There were no merger cases to speak of prior
And then they come in and section 7

to Celler-Kefauver.

applies to assets and all of a sudden you have merger law.
Well, on your view that would it were some kind of trivial be just viewed as -- as amendment when it if

created

half of anti-trust law. of problem I think -­
MR. PHILLIPS:

I mean, you

see, that's the kind

Well, no,

I understand that, but

the problem you still have, Justice Breyer, is that you've
got to figure out how do you try to reconcile -­
QUESTION: it's a Well, we reconcile it by saying if

new -- you look at the act of Congress.

An act of

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Congress is if prior

called Public Law 3278 or whatever it is, and
act of Congress, you didn't have the what That

to that

cause of action, and if they mean.

after you did, well, that's act of Congress.

It arises under a new

seems pretty simple. MR. PHILLIPS: Justice Breyer, question which but it That's -- that's pretty simple,
Kennedy's
act of

doesn't answer Justice

is if you look

at this particular

Congress, which is codified in give you any basis for a

subsection (b), it doesn't
right of action. The

infrastructure -­
QUESTION: now, all right -­
MR. PHILLIPS: That definitional provision
It doesn't give you any -oh, now,

doesn't remotely -­
QUESTION: me the -that -- that -if you're asking
saying, of

question, I'd answer

that question by

course, they intended I mean, now let's go

a private right of action to apply.
into the history of it and see

whether they did or not.
MR. PHILLIPS: QUESTION: But, Justice Breyer, that's -­

And I think -- I think that by the -­

but that's a different issue.
But in my way of thinking, that doesn't raise a

serious question because I don't

believe that they didn't

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intend to action.

raise --

to have

this as a

private right

of

MR. PHILLIPS: doesn't

But I

still --

but that

still

answer what -- what strikes me as the fundamental
is when Congress it was, in approached section 1981,
new

question which

did it think that

fact, creating a whole

infrastructure cause of action or engrafting 1866.
QUESTION: they passed the act It

was it basically simply
1981 has been since

it back onto what section

was engrafting

it on and

before

of Congress,

you did not

have this

kind of cause of action, and after they wrote the new act,
you did have it. Therefore -­
But -but you -but, Justice

MR. PHILLIPS:

Breyer, you only have this cause of action because four -­
three of the four elements arise and existed long before

1991, and those -- and that -- and it clearly has to arise
under that portion of it as well. it arises under both, what's question? And the point petitioner and the that, it seems to me, that the So the question is, if
the

the right resolution of

United States have never

responded to
it

is why is it you would

adopt a rule that carries with

as much complication and complexity as the rule that propose when you don't have to come out that --

they

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QUESTION: understand it, effect to

I

think

their

answer

is,

as

I

that is

the approach

that gives

maximum
-- that

the new

statutes of

limitation that

Congress has enacted.

Now, what -- what evidence is there

that Congress wanted it to have maximum effect?
MR. PHILLIPS: There is no evidence that

Congress wanted it to have maximum effect.
QUESTION: the statute.
MR. PHILLIPS: The statute acts applies on a regular
adopts in
Well, except the fact they enacted

almost everyday

that Congress

which they statute every

provide a cause of action and do not provide a
And that spares of having this Court and
to borrow from

of limitations.

other court

the burden

State law, claims

trying to figure out what be used as the basis

analogous State law
for a statute of

would

limitations. QUESTION: about borrowing One of the problems that troubles me

State law -- I've had a lot of experience
that if you look at this statute under

in these cases -State law,

I think the old cause of action that Patterson
be a contract cause of action. action. And
So

recognized would arguably, the you'd probably

one before us today

is a tort

have to follow the State

tort law statute

of limitations for half the

case and the contract statute

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of limitations for the other figure out which State

half of the case, after So you have

you
this
of

law applies.

problem, even if

you're referring back

to State law,

maybe coming out with two different results.
MR. PHILLIPS: Except that I think, for the most
were have

part, the courts have pretty well resolved what they going to do with respect to section 1981. I would

thought the problem -­ QUESTION: Well, the section 1981 as construed

in Patterson is clearly a contract claim.
MR. PHILLIPS: QUESTION: Right.

But as -- but this cause of action I

don't think is clearly a contract claim.
MR. PHILLIPS: meant Well, it's to change difficult I to know
don't

whether Congress

that.

-- I

disagree with that.
But I -but it still seems to me the more

fundamental problem in

trying to

sort out what

Congress

did with respect to section 1981 is that it never intended
to make this into a brand new infrastructure. existing four elements. It took the

It didn't change a single word in
So

section 1981 when it implemented this cause of action.

the notion that this is a cause of action that arises only
under the clearly --
1990 act is clearly -under the 1991 act is

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QUESTION: going to have your theory?

How much --

how much trouble are -- if we adopted

we

in the future if How -- you

your -­
in the

know, how am I to decide

future whether

a new cause of action arises all by itself

or whether it -- it attaches to a greater or lesser degree
to a preexisting statute? MR. PHILLIPS: What's -- is it an easy test?

I -- I think every court that has

adopted that test -- certainly the Seventh Circuit in this
case is and other courts of appeals have recognized that it test than trying mean in all of to figure out its various

an infinitely simpler arising under will

what

permutations and new statutes.

All you have to look at is

to see whether or not the cause -- the elements -- all the
elements of the cause of may be embodied in It may be action are newly created. an amendment to That

a -- in

an existing
But I -I

statute. submit to follow.

on a stand alone basis.

you that is

a significantly simpler

course to

And, indeed, I don't -­
QUESTION: it, Mr. But one thing the that isn't simpler

Phillips, is

problem

that Congress
have amazing

sought to

cure with 1658, that

is, you can

diversity across limits. State, 3 For

the country if you're

borrowing States'
in one

the same claim, it

could be 2 years

years in another, 6 in another.

Congress surely

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wanted

to

cut

out

that

disparity

so

that

similarly

situated people would have the same right to sue.
MR. PHILLIPS: no question about On a prospective basis, there's

that, that the Congress had

passed the

Anti-terrorism Act that created a new cause of action, did
not want the kind of inherent inequalities that arise

under borrowing to go forward.
QUESTION: And that's suggesting that -­
It says nothing about what the

MR. PHILLIPS:

Congress did retroactively.
QUESTION: complex because -- that the old way is inherently

you have to figure out which would be the
And Congress just wanted to get
I
don't know that that's -­
It

closest State limitation. away from

that complexity.

that that what was introduced is seems to me less so.
MR. PHILLIPS: own hypotheticals are going to

-- is more complex.

Well, I -- Justice Ginsburg, your
how many complexities

suppose exactly

arise, and I -- I can assure as we've

you that as -­
plaintiffs'
try even
of the -­

as much imagination counsels and defense

put into this,

counsel going forward will

harder to end up fighting these issues in terms in terms of how complex this is.
All you have to do is look at

the second

certified class

in this case.

The district judge in this

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case

thought this was

an easy

statute to

interpret and
class 2,

applied it to what did he

classes 1 and 3. He

When he got to

say?

said, with respect to

those claims

with regard to part-time employment, the parties are going
to have to sort to sort -to that out themselves. resolve that issue He made because under no attempt
it is a

completely

imponderable

question

their

interpretation of section 1658. QUESTION: interpretation. don't know. I'm All right. Look -- look at your own
you can. I mean, I

Answer this one if just thinking

about it.

But Congress

passes a new statute. (Laughter.)
QUESTION: just to be new.

It's called New, New, New.

And it's in a special code, title 78,

And it says this -- and this is total new
We have a Federal cause of action
for anyone who has been
it

and here is what it is. and a claim for

double damages

injured by a robbery

committed with a gun.

And then

says, robbery shall be defined 18, section 391. And now,

as it is defined in

title
but

a gun -- that's new here,

we define that -- you see what I'm doing?
MR. PHILLIPS: QUESTION: Now, how new, new, new?
Of course.

I'm just reproducing.
are you going to take that? Is that

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change -­
you see.

MR. PHILLIPS: cause of action.
QUESTION:

Of course, that's a new, new, new

All right. But -­

Of course, it is.

MR. PHILLIPS: QUESTION:

Well,

but it refers to

the old one,

MR.

PHILLIPS:

But, of

course,

that doesn't

QUESTION:

We

get three of the elements from -­

MR. PHILLIPS: Justice Breyer.

But that doesn't change anything,
The

Of course, you can refer back to it.

question is are all of the elements of the cause of action
independently provided for and the answer is yes.
QUESTION: reference. -- through But you can do it by a cross
to
in the New, New, New statute,

In other words, in your view, if it's done a cross reference, they are still new,

new,

new, but it's done by a physical placement, it's old, old,
old.
MR. PHILLIPS: No, I don't think it's that

simple, Justice Breyer. to create it's new,

If it's done where Congress means

a new infrastructure and a new cause of action,
new, new. doesn't When Congress does nothing more than
even remotely modify the existing

engraft and

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infrastructure, words of

it

doesn't even

so

much as

change the

a statute that's been here from 1866, to suggest

that this is a -- a suit that arises solely under -- under
a 1991 amendment seems to me wrong.
The -- the other point I think it's important to
make in this connection -- and -and it's the rule of

construction that seems to

get lost sight of -- is -- and

-- and it's the one this Court adopted in Wilson v. Garcia
-- is that there is no reason to assume that Congress

would mean for of limitation

the -- to have two causes apply to the same

-- two statutes
when it

cause of action

was interpreting section 1983.
And here we have a situation where you will have
two -two statutes of limitation applying to the same

words in the the issue

same subsection of a statute. -in our brief

And we raised
respondent

in our

for the

saying, find us a statute where Congress has that kind of morass to exist, and silent on that.

ever allowed

-- and the reply brief
cause, because
have

is utterly there is

And for good that

no reason

to assume

Congress would

adopted that interpretation. the rule

And therefore, if you follow

of construction from Wilson v. Garcia and if you
cannot help but except, which is

accept what I think you

that arising under is not an unambiguous line -­
QUESTION: Do you think there may be an equal

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protection problem there?
MR. PHILLIPS: QUESTION: Well -­

When a person says, you know, I -- I
Somebody else can only sue within
an employee above 25 and -- and later. And -- and the I

can sue within 4 years. 2 because I am -- I am only got my

cause of action

one

reason for the difference is than yours. MR. PHILLIPS: unconstitutional?

my statute was enacted later

Is it irrational?

Yes.

Is it
that

Probably

not under the standards

loosely govern these

kinds of issues unless

somebody can

attach it to some kind of -­
QUESTION: different case if Mr. Phillips, would this be a

instead of enacting the

statute it did

in 1991, they -- they simply had an amendment that said in
addition to the coverage of add the the preexisting 1981, we will
cause of action which will

additional brand new

allow recovery for what happens after you get on the job?
MR. PHILLIPS: that was -that was I think if there were a contained 1981(d)
that

separately

and

expressed a clear indication from

Congress that it really
it would make

meant to create a new cause of action, that sense under those circumstances for particular situation.
But I think what we're talking

1658 to apply to that

about here

is

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simply trying to

ascertain Congress' intent, and

I think

whether you look at it under section 1981's lens or if you
look at it under section 1658's lens, you end up at

exactly the same point.
QUESTION: suggest effect, drafting drafting.
MR. PHILLIPS: That's -- to be sure. And it
that if But -- but your answer seems to me to
has the same substantive
-type of

the statute one result

you get

in one

form of

and a different result with

a different type of

goes back, I suppose, to the argument that was made by the
other side which is that there's it. a default rule core of this and
is

Congress

can

always change

The

Congress can always make its intent more explicit in terms
of how it deals with the problem. want to create have to be a regime in which The question is, do you
this Court is going to
of

resolving questions

involving the meaning

section 1658 for the foreseeable future?
Or doesn't it make sense to recognize that there
is, in fact, a -- a complete set of causes of action to

which 1658 will routinely apply and that it will be spared
-the courts will be spared and the litigants sort out these will be
kinds of

spared

the burden of

having to

issues on a

going-forward basis and recognize

that we're

not going to pick up everything in the interim?

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But as Congress new causes of action, can do so.

wants to go forward

and create
it

the opportunity will arise, and

But if it chooses to engraft it on an existing
then it seems to me under those

infrastructure,

circumstances, what the Court should do is say these cause
of action arises at this point in time. because of the new statute. It doesn't arise

It's a much

simpler, much

cleaner way of dealing with the issue.
And -and that's the one point I did want to

I don't -- I have not heard the other side remotely
that our I'm approach has any of the kinds of but

complain

complications.

not saying

it's without issues,

it's nowhere near the complications -­ QUESTION: No, but it has the -it has the

complications that -- that preexisted out which State law applies and so

in trying to figure
It
it

forth and so on.

says that regime still survives in a lot of areas that would not survive if you take their side.
MR. recognized PHILLIPS: it was But not -but

Congress clearly
eliminate that

that

prepared to

regime because -- because it would --
QUESTION: It seems to me that -­
-- would have created all kinds

MR. PHILLIPS:

of problems on a retroactive basis.

It didn't want to -­

it didn't want to unsettle expectations.

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QUESTION: you are changing more certainty to confusing regime.

But it seems to me that to the extent
you're -- you're that is an bringing

that regime,

the law because

inherently

MR. PHILLIPS:

Well you bring one form of -- of
clarity to it. But at

complication and one form of -- of least the -- it's the clarity

you know rather

than the

clarity you know

don't know -- or the confusion that you don't
Courts have been dealing with the

at this point.

question of how of

to borrow for a long time. to deal

The question
and what

how you're going

with section 1658

conflicts in the circuits you're going and what happens when Congress makes

to have to resolve
minor modifications

-- Congress makes lots of minor modifications in every -­
QUESTION: Why -why wouldn't all these
that
is we

problems exist with your system has to happen to make it valid

just as much if all under your system

take these

same words,

making appropriate

modification,
I mean,

stick them in title 75 and call it New, New, New? at that point we're going to have the same I mean -­

problem with

the 15 versus the 25, wouldn't we? MR. PHILLIPS:

No, I don't -- I don't think so,

Justice Breyer, because -­
QUESTION: Why not? Because it would only apply
It wouldn't apply to the

to the 25, you see -- or the 15.

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25.
MR. PHILLIPS: New statute is, It will -- whatever the New, New,
subject to the -to the

that will be

statute of -- the 4-year statute of limitations.
QUESTION: That's right.
There's no retroactivity issue

MR. PHILLIPS:

you need to worry about in that -­
QUESTION: you to No, but since it's the same language,
small industry would be subject
but the larger firm would be

see we discover that the 4-year to the statute,

subject

old statute,

just

exactly

what you're

complaining about under their interpretation.
MR. PHILLIPS: QUESTION: But -- but if --

Am I wrong about that?
I think you are wrong about that.
statute, it

MR. PHILLIPS: I think all --

if Congress has created a new

-- it has told you that to the 4-year forward basis, confusion.

this is one that's subject to period on a

statute of limitations and I think

going-
the

it's eliminated

any of

And certainly Congress knows to do that if the Court were very

-- would know

how

clear in

saying what

we're going

to apply 1658 to

is to new

causes of action

that are specifically stated with an entire infrastructure
created to provide for them. I don't think they have to

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do it in a new title 79 or whatever, but they clearly have
to do it by doing more than simply changing the definition
of a single set of terms in a statute that is otherwise

left utterly unchanged under these circumstances.
If there are no other questions, Your Honors,

I'd urge you to affirm.
QUESTION: Thank you, Mr. Phillips.

Mr. Newsom, we'll hear from you.
ORAL ARGUMENT OF KEVIN C. NEWSOM
ON BEHALF OF THE FOR ALABAMA, ET AL.,
AS AMICI CURIAE, SUPPORTING THE RESPONDENT
MR. NEWSOM: Mr. Chief Justice, and may it

please the Court:
As perhaps the most frequent litigants in suits
Federal law, the States in and their
case in
a

alleging violations of officers have an

overriding interest

this

ensuring that

section 1658

is construed

to establish

clear and easily discernible rule.
That in my mind leaves effectively apply other two clear options 1658 to is to two options. table. There One are

on the

is to

section is to --

all section

1981 claims

and the

continue the practice limitations to

of applying
those

State borrowed claims.

statutes of

all of

Both of

those rules

create the

same level

of

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certainty, but that would

one of those rules, namely the -- the rule

apply section 1658 to all section 1981 claims,
with Congress' intent and indeed

is plainly inconsistent with the apply to

language of section 1658 itself in that it would
claims that on any understanding arose under

preexisting law.

Accordingly, the

State submits that the

respondent's position here is the best among the available
alternatives.
QUESTION: But, Mr. Newsom, the reason that

Congress grandfathered the claims that already existed, as
Mr. Phillips said, off the hook was because of expectations that That I'm

after 2 years,

say.

-- that doesn't
relief, that

exist

when a right

is created,

a right to

didn't exist before. MR. expectations section 1658 NEWSOM: that Well, I think to the -the -- in

Congress sought

protect in

were expectations

with respect

to certain

categories of claims. recognized that that had instance,

In enacting section

1658 Congress
claims
For
in

there were certain

categories of

developed established under this Court's

limitations

rules.

then-recent decisions

Wilson v. Garcia and Goodman v. Lukens Steel, section 1983
claims as a category -- as a category and section 1981 claims as a
both subject So to single borrowed State

were

statutes of limitations.

I think the expectation that

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Congress

sought

to

protect

was

the expectation

of

a

litigant that I

have a 1981 claim and it

will be subject

to the following statute of limitations.
So I think the -- that me that there is agreement appropriate Congress clearest Congress Congress statutory test to apply -- I mean, it sounds to
the

this morning that -- that is the test whether

or not

has created a new cause of evidence has that Congress new

action. done

I think the
that, that

has

created a

cause of an

action,

is where

creates

and enacts And

entirely

new, separate

section.

again, contrary

to petitioners'

suggestions -- and Justice Kennedy is quite right -- there
are numerous times that Congress has, since December 1 of
entirely new and freestanding causes of

1990, created an

action to which section 1658 would certainly apply.
Now, Congress' Act not to create a -- to work within -- to choice in the 1991 Civil Rights
to

new statutory section and instead

the four corners of section 1981 and to

fine tune the existing cause of action that already

existed in section 1981 is a strong indication -­
QUESTION: existing cause of How can you say it's fine tuning an
have

action if

the plaintiff couldn't

recovered before the 1991 amendment?
MR. NEWSOM: Well, I think the -the key

consideration here

is that Congress

had a choice

in the

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1991 act

how it would respond to this Court's decision in
It was acting against a very specific

Patterson. backdrop.

QUESTION: they'd written

Would you agree statute

with Mr. Phillips if
that came out with
it would

a different

exactly the not --

same result, but they

just said --

not redefine words but simply said, in addition to

what you can already do you, you may also recover for what
happens on the job?
MR. NEWSOM: I agree with Mr. Phillips, and

having -- having of Congress' be its agree

just said that the

strongest indication

intent to create a new cause of action would

creation of an entirely new statutory scheme, I do
that as -as Congress moves away from that

paradigm, that

it may,

for instance,

in a

freestanding

section 1981(d), if it enacts all of the elements of a new
-- of a new claim, that yes, indeed, of action within -that would create a
the meaning of

new cause

within

section 1658.
QUESTION: still have But if it had done that, then we'd

the same problems of deciding whether the -- a

particular -- like class 2 in this case, whether they come
under one section rather than the other. You'd have that

problem then.
MR. NEWSOM: I'm not -- I'm not sure that that's

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exactly right.

The problem with class 2 -- and tell me if
The problem with class 2 is that

I'm misunderstanding.

class 2 rises or falls on a given set of -- on a given set
of facts. The district court did not conclude whether

this class of assignment facts.

-- this class of would

plaintiffs' promotion and
a specific set of

claims

succeed on

The problem

-- and that

we think is

the -- the
ties the

problem inherent

in petitioners'

position that

question of whether a new cause of action has been created
to the viability of a given claim rather than looking, as
directs the Court to do, what
A

section -- as section 1658 -- to -- to whether civil action not so

or not a civil action is

created.

in my mind speaks to your ticket into court,
happens to you once you

much with respect to what So -­

get there.

QUESTION:

I -- I suppose any suggestion that we

would be creating a -- a problem for Congress in giving it
-- in posing a number one, a dilemma for it is new statute and that they can have the provide,
of

statute

limitations set forth specifically.
MR. NEWSOM: Well, that's certainly true. Any

-- I -- I certainly agree that any rule could be

this Court adopts

superseded by a subsequent amendment of -- of an
But in the meantime, this Court we
minimizes confusion and

enactment by Congress. think ought to

adopt a rule that

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-- and the --

maximizes certainty. is the --

That,

in essence, is coming out of

-- is
this

the proposition v.

Court's said,

decision

in Wilson

Garcia, as

Mr. Phillips

which is that

in that case,

Justice O'Connor, for

instance, made a very good point in her dissent that -- in
that 1983 claims run the gamut from police brutality

claims on the one hand to -- to school desegregation cases
on the other and thought that it just didn't make sense to
apply a single statute of limitations to such a wide

variety of claims.
And this Court held -- and I submit correctly -­
that the practical considerations, and -or minimizing the -those of maximizing
required a the

certainty enactment

litigation,

the

imposition
of

single

categorical, some would surely say formalistic, statute of
limitations. And the same practical considerations

obtained here at least -­
QUESTION: is one of those will It's also true, is it not, that this
the -- the 4-year
defendants in

unique cases in which plaintiffs

rule

help some

and help

other cases because some of the State statutes for certain
causes are actually longer than 4 years? So sometimes

it's cutting it down and sometimes it's expanding it.
MR. NEWSOM: That's certainly right.

And the State's principal interest here is in --

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is in a -- a clear statute of limitations, not necessarily
the shortest statute of limitations. -- is principally in clarity.
So again, if Congress against I can just emphasize, -- or Congress -­
1991 act
Court's
Our interest here is

acted in section a very specific decision in that a

rather in the namely this Lukens

backdrop, Goodman v.

then-recent held

Steel, which
statute of
Now,

that a --

single borrowed State

limitations would apply if Congress new year clear

to all section 1981 claims.

wanted to walk away from Goodman and create a
so as to trigger section 1658's 4­
to be
in the

cause of action

statute, then our about what

submission is doing. It

then it had had to --

it was

paradigmatic example, it section. contained

had to
create a new

standalone

At the very least, it had to create a -- a self-
and freestanding civil action within the

confines of section 1681.

But where it merely defined the

term in a preexisting cause of action, we submit that that
is simply not year statute.
If there are no further questions.
QUESTION: there other One other like question, if I have may. Are
a
I
clear enough to -to apply the -the 4­

statutes amendment

-- that

just

made

substantive think this

merely by

redefining kind of

a term?

is kind

of a --

this is

an unusual

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statute and it may be a very unusual problem we've got.
MR. NEWSOM: There may well be Justice Stevens.

not that I'm aware of off the top of my head.
QUESTION: Thank you, Mr. Newsom.

Ms. Gorman, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF H. CANDACE GORMAN
ON BEHALF OF THE PETITIONERS
MS. GORMAN: Justice question. of Thank you, Mr. Chief Justice.
if I can answer your last

Stevens,

Yes, there was another statute that I can think
Pregnancy Discrimination So the 1658 question Act although
doesn't come
add that

and that's the

this is

before 1990. But title

into play.

VII was

amended just to

cause of action for pregnancy discrimination -­
QUESTION: And did they do it -did that

statute do it just by redefining a term, redefining -­
MS. GORMAN: Correct, Your Honor, by redefining

discrimination based on sex to also include discrimination
in pregnancy.
QUESTION: Gilbert case.
MS. GORMAN: Your Honor, Correct.
defendant raised two statutes that
Yes. That was in response to our

they -- that they could now benefit from section 1658.

point to that they said would
They pointed to the Muhammad

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Ali

Boxing Act and

the anti-discrimination

law.

And I

submit to this Court, as Justice Breyer said, those aren't
going to acts, be new acts either because if you look at those
and they

they're actually amending

previous acts,

pull definitional terms 1990.
If

out of previous acts

from before

defendant's

interpretation

is

accepted by

this Court, then we are basically saying section 1658 is a
nullity because we Congress have scoured the statutes enacted by

after December 1st,

1990 and we

could not find

one statute that would benefit Congress often action from thinks it's takes terms

from section 1658, because
or causes even when of
it

or definitions and amends,

previous statutes creating or it

looks like
it's

creating

something brand new.
QUESTION: when you say it I -- I don't know what you're saying
Do you mean it just
situations

takes it from them. act?

copies them in the new

Are you counting

in which they recite it in the new legislation?
MS. GORMAN: take -­
QUESTION: Well, I don't think -­
-- terms out of the new -out of
Correct, Your Honor, where they

MS. GORMAN: old legislation.
QUESTION:

I don't think

your opponent would --

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would count them. upon the

I -- I

think only if

-- if you

rely

earlier statute for

the definition, not new statute, I

if you
don't

simply copy that

definition in the

think he would consider that to be covered.
MS. GORMAN: Well, Your Honor, if that's the

case, then I think what respondent must be suggesting then
is that section 1658 would only come into play if the new
you were relying on. And I

statute was the only statute don't think if --

that's what section 1658 is stating. this Court says, as 1981 we're

I think
old

even if

relying on by the

section 1981,

as well

as amended

Civil
still

Rights -- Civil

Rights Act,

clearly our

claim is

dependent on the 1991 act and therefore section 1658 would
still come into play.
And that there judge in as far as confusion, defendant suggested
because the
were

was even

confusion in

this case

our case

did not know

if class

2 claims

covered by the court. There was for a

this section 1658. It just wasn't

There is no confusion with
briefed before the court.

no record before the court because we had asked
different definition in our class

slightly

certification, and

the judge went beyond

that definition
So the

and established a different class for the class 2. judge just

didn't have the record and he thought we could
And I think

figure that, which I think we probably could.

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the

answer is

going to be

that the class

2 claims also

fall under the 1658 statute.
The question before this Court is a narrow one:

does section 1658 apply to plaintiffs' cause of action for
racial discrimination and termination? not created to Those claims were

until the 1991 Civil Rights Act, and I submit
that section 1658 should apply to those

the Court

claims. Thank you. CHIEF JUSTICE REHNQUIST: The case is submitted. (Whereupon, at 11:23 a.m., the case in the
Thank you, Ms. Gorman.

above-entitled matter was submitted.)

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