Edelman v. Lynchburg College - Oral Argument

ORAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument next in No. 00-1072, Leonard Edelman v. Lynchburg College.

Mr. Schnapper.

Mr. Schnapper: Mr. Chief Justice, and may it please the Court:

The relation-back rule for verification under section 1601.12(b) is a proper exercise of the authority granted to the EEOC under section 713 of title VII to promulgate procedural regulations.

The regulation is consistent with the language of section 706.

Title VII requires that a charge be verified, and the statute also requires that a charge be filed within 180 or 300 days of the act of discrimination.

But as Judge Luttig correctly observed below, these two statutory requirements are independent of each other.

Specifically, 706(e)(1) establishes deadlines of 180 or 300 days, but it applies those deadlines only to when, quote, a charge must be filed.

Section 706(e)(1) does not purport to establish a deadline for verification.

Conversely, section 706(b) requires verification, but it contains no deadline for doing so.

That omission is particularly significant because other requirements which are contained in 706(b) do have deadlines.

Unidentified Justice: What... what about the other elements that... that are required by the statute to be in the... in the charge?

Surely the commission has to serve notice of the charge, including the date and place and circumstances of the alleged unlawful employment practice.

Isn't that statutory provision implicitly a requirement that the charge contain the date, place, and circumstances of the alleged unlawful practice?

Mr. Schnapper: I wouldn't go quite that far.

The... the commission's interpretation of that, which is embodied in section 1601.12(b), concludes that a charge is sufficient if it identifies the parties and contains a description of the alleged discriminatory practice.

Unidentified Justice: Well, how... how can... how can the statute be complied with?

I mean, the statute, 2000e-5(b), clearly says that the commission on receiving a charge shall serve a notice of it, paren, including the date, place, and circumstances of the alleged unlawful employment practice on the employer.

Mr. Schnapper: Well, it does... it does so provide.

But it also provides that the... that the charge shall contain the information and be in the form required by the commission.

The commission does not require that particular information.

Ordinarily it could be inferred in practice--

Unidentified Justice: So, you think the charge doesn't even have to... because the commission hasn't chosen to require that, a charge doesn't even have to contain the date, circumstances, and place of the alleged--

Mr. Schnapper: --Well, the commission has--

Unidentified Justice: --What does it have to contain?

Mr. Schnapper: --The regulation requires--

Unidentified Justice: I have been discriminated against?

Mr. Schnapper: --I understand the regulation to require more specificity than that.

That... that question is not posed, of course, by this case.

No one questions the specificity of the information in this letter.

It did--

Unidentified Justice: No.

I understand that.

But... but what you say about... about the requirement or... or nonrequirement of... of oath, of it being under oath, I think you... you're going to have to logically say about other requirements or, as you think them, nonrequirements of the charge.

I don't see how... how the two don't go hand in hand.

Mr. Schnapper: --I... I think that you have to read... well, the commission's view is that there is an irreducible minimum that has to be in a charge.

You can't just file a piece of paper called... that says charge and fill in the blanks later.

Unidentified Justice: Why?

Why does it come to that position?

It just made it up?

Mr. Schnapper: The statute expressly provides that the commission can specify what information needs to be in a charge, and that's the... that's the answer they give.

Unidentified Justice: I see.

Not because there's any statutory compulsion, but just in its... in its wisdom and beneficence, the commission has decided that there has to be a certain minimal amount of information in the charge, not because the statute implies that there must be.

Mr. Schnapper: I... I don't... Federal Register recounts any... any explanation, but it seems to me it would be logical for the commission to have looked at the provision to which you refer in... in framing the... the requirements it has.

Unidentified Justice: Right, but if it looked at the provision to which I refer, it would say a charge has to... we're not going to bother an employer and require him to come back with a response unless you haven't just come in and said, I've been discriminated against.

We're not going to ask the employer, has this person been discriminated against?

You tell us the date, the place, and the circumstances.

Now, that's perfectly reasonable.

But it seems to me also perfectly reasonable to say, moreover, we're not going to go and bother the employer and make the employer go through all the process of... of answering the charge unless you're serious enough about it that you've... you've sworn to it under oath, as the... as the statute requires.

Mr. Schnapper: Well, what happens as a practical matter where verification occurs after the filing date is that the employer is usually not required to actually take any action.

Unidentified Justice: But here what... the employer wasn't even... wasn't notified until the form... on the EEOC's proper form that did everything, including the verification.

You seem to have treated both the same way, that... that all that the imperfect charge did was stop the clock, but the EEOC didn't give notice to the employer at that point.

That wasn't the charge... the form in which the charge went to the employer.

As I understand it, the employer never got the form until it had been perfected.

Mr. Schnapper: Your Honor, it's our view that the... that the court... that the EEOC erred in not providing notice at that time, and it's... I think it's clear, from a reading of the compliance manual, that its own manual did require notice at that time.

But in any event--

Unidentified Justice: And would also require notice of... of a charge that was imperfect in other respects within 10 days of receiving the charge.

So, if a... the requirement that it be in writing, for example, that's a requirement that isn't... isn't particularly in the... in the statute of limitations provision, but it's a requirement that it be in writing.

So, the commission gets a phone complaint from somebody who says, my employer is discriminating against me.

Now, you're saying that the commission should within 10 days contact the employer about that.

Mr. Schnapper: --The... it's our view that... that if the commission receives a sufficient charge, it must do so.

The regulations do not contemplate that a phone call is a sufficient charge, and they specify how it... that would have to be put in writing--

Unidentified Justice: This is all just a matter of the regulations.

I mean, the commission can... can just say, you know, this is sufficient or isn't.

This commission could say that a phone call is sufficient.

Mr. Schnapper: --The... the statute requires that a charge be filed, so I think it would have to be reduced to writing.

But I--

Unidentified Justice: The word filed.

Mr. Schnapper: --But I would say the commission probably could alter its... its regulation and deem a memorialized phone call the filing of the charge.

That's... those aren't the circumstances here.

And... and to get back to the specific issue before the Court, the Fifth Circuit... excuse me... the Fourth Circuit would have reached the same result in this case regardless of whether this letter... notice of this letter or the letter itself had been served on the employer within 10 days of the receipt of the letter on November 14th.

The decision below didn't rest on that.

Even if there had been service and notice, the court of appeals would still have held the regulation was invalid.

And... and it's the validity of that specific regulation... that's the only question that the court of appeals addressed.

Unidentified Justice: Mr. Schnapper, if you agree that if... you started out with Judge Luttig's position.

He concurred and he raised four other.

Did the EEOC consider this a charge?

We don't know whether it did.

Wouldn't the case have to go back so that the full court of appeals could examine those questions on which Judge Luttig rested so that he ended up concurring rather than dissenting?

Mr. Schnapper: Yes.

Yes.

It remains--

Unidentified Justice: So, you agree that those four questions are alive and would have to be--

Mr. Schnapper: --It... it remains open to the... to the respondent to raise those issues on remand, and we think that that's the appropriate procedure--

Unidentified Justice: --Thank you.

Mr. Schnapper: --for addressing it.

The... as I was saying, specifically 706(e)(1) and 706(b) establish separate and distinct requirements.

In the terms of Chevron, the question is whether those provisions, read together, clearly require in an unambiguous manner that verification happened before the charge-filing deadline.

We think that... that such clarity certainly isn't present here.

To the contrary, our view is that the most plausible reading of the statute is that verification could happen after the charge-filing deadline.

That's a particularly reasonable construction of the statute because that is the common law rule.

That's the rule--

Unidentified Justice: Do you think it's good practice for the EEOC to wait until after the 300-day period and a verification before it even notifies the employer?

Mr. Schnapper: --No.

No.

It was... in our view, it was improper to have done that here, that the... the statute doesn't authorize them to await verification.

It is our understanding that is not their practice.

It is not authorized by the compliance manual.

The compliance manual does identify some circumstances in which there might be delay in... notification.

Verification is not one of them.

Unidentified Justice: Let me... suppose you have a statutory provision which says that the complaint shall be in writing, sworn to under oath, shall set forth the time, place, and circumstances of the alleged grievance, comma, and shall be presented to the agency within 100 days after the alleged grievance.

Now, would you be taking the same position you take here, that that's a separate requirement--

Mr. Schnapper: Yes.

Unidentified Justice: --and that--

Mr. Schnapper: Yes.

We would--

Unidentified Justice: --Do you have any... any... I would never read a statute that way.

It would certainly seem to me that... that what they're talking about to be filed within 100 days is what they have just described.

And... and--

Mr. Schnapper: --I don't--

Unidentified Justice: --Do you have any cases of ours--

Mr. Schnapper: --Well--

Unidentified Justice: --that... that go that far?

Mr. Schnapper: --The Federal rules require that a notice of appeal shall be in writing and shall be filed within a certain period of time.

And yet, in Becker v. Montgomery, the Court concluded that that didn't mean that an unsigned... that... that where the only document that was filed on time wasn't signed... that there was no timely notice of appeal.

The... the... and... and indeed, the common law rule was where a statute said a complaint must be verified and the complaint must be filed within a certain number of... of days or years, the... the uniform Federal and State interpretation of that was that the lack of verification could be corrected after the expiration of the deadline.

It seems to us that the commission reasonably concluded that Congress would have not wanted a more stringent rule about relation-back of verification to apply in the administrative process, a process ordinarily initiated by laymen unassisted by counsel, than would apply in civil litigation which is much more formal and which... and, you know, the... the common law rule about correcting verification after the fact applied regardless of whether, as would normally be the case, the... the party involved was represented by counsel.

So, we... we think the common law rule is a very important part of the background of the statute.

Unidentified Justice: In these other situations that you mentioned, does the court take action against a particular individual or require a response from a particular individual before the verification occurs?

You see, that... that seems to me the difference here, that you're saying the commission, within 10 days after receiving this unverified complaint, has to submit it to the employer and ask the employer to respond to it.

Mr. Schnapper: No.

The... under the procedure established by title VII, the employer is not required to respond just by virtue of getting notice.

Notice simply alerts them to the filing of the charge.

It is a separate step in the procedure for the agency to then require the employer to do anything in response.

It's not like a complaint which requires an answer within so many days.

Unidentified Justice: Okay.

I see.

Mr. Schnapper: It's simply a heads-up.

Unidentified Justice: Now, does the agency require verification to occur before it will demand a response from the employer?

Mr. Schnapper: I think that would be the normal practice.

Unidentified Justice: Isn't that what... the form--

--That makes me feel--

--that EEOC sends out, as you've described the procedure?

It's called form 5, or whatever it is... that they send to the complainant says sign, verify.

It has everything to make the complaint perfect.

And that's the form that is then sent to the employer.

In this very case, that form was sent to the employer, but the imperfect form wasn't.

Mr. Schnapper: That's... that's what occurred here.

But I'm thinking... if I didn't make it clear in response to Justice Scalia's question, it's my understanding that the normal practice of the agency would be not to require the employer to do anything until a defect in form, such as a lack of verification, had been... had been addressed.

The statute simply gives the employer a heads-up, but doesn't... the notice simply gives him... doesn't require the employer to do anything.

It's not like a complaint.

Unidentified Justice: But... but meanwhile the... the... I mean, this... this could occur a very long time after the event occurred--

Mr. Schnapper: I think--

Unidentified Justice: --so long as the commission waits that long to get the verification.

Right?

Mr. Schnapper: --I think not in practice.

My understanding is that in practice the commission will ask for a verification.

In fact, frequently they will ask for a form 5 regardless of whether what's in the... the correspondence that reached them.

So, all problems get solved.

If you had an employee who refused to verify with reasonable promptness, I think the agency would undoubtedly dismiss the... the charge for lack of cooperation, and that would be the end of it.

With the Court's leave, I'd like to reserve the balance of my time.

Unidentified Justice: Very well, Mr. Schnapper.

Ms. Blatt, we'll hear from you.

ORAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Mr. Blatt: Thank you, Mr. Chief Justice, and may it please the Court:

Under the longstanding rule at common law, the failure to verify a complaint, as required by statute, may be cured by an amendment that relates back to a timely filed complaint.

The commission incorporated that rule by regulation in 1966, 2 years after the passage of title VII.

The contrary rule embraced by the panel would invalidate even the most detailed and well-pled complaint that was timely filed with the commission but did not... was not verified until later.

The common law rule ensures that substantive rights are not foreclosed when the essential elements of a complaint are sufficient to vest the court with jurisdiction.

Unidentified Justice: But... but in this case, the... the agency doesn't treat it as a full charge until it's verified for purposes of notifying the employer.

The agency seems to be quite inconsistent.

Mr. Blatt: Well, that's not--

Unidentified Justice: I mean, you... you want us to accept this argument as to what a charge is, but then you don't want us to accept it for when the employer has to know about it so the evidence doesn't go stale.

Mr. Blatt: --It's not that the... it's not that the agency is waiting for verification before it gives notice, and if the only thing missing from a charge is verification, the agency's procedures require notice within 10 days.

Thus, the... if a November... if a charge comes in like the November 14th letter that's not verified, the procedures require notice within 10 days.

That wasn't done here, Justice Kennedy.

The agency did not comply with its obligation to provide the employer with notice.

But that in no way affects or undermines the validity of the relation-back regulation which doesn't relate to notice.

It relates to whether a charge is timely filed even though it is not verified.

Had--

Unidentified Justice: Well, but... shouldn't the two be... be tied together?

I mean, it's reasonable to have it relate back so long as there is no prejudice to the... to the employer from having it relate back.

But when you say we're not going to give the employer notice until it's later verified, there is prejudice to the employer.

Evidence is getting stale and so forth.

Mr. Blatt: --But, Justice Scalia, the... the agency's procedures required this employer to have notice, whether or not the November 14th letter was verified, and the employer then can preserve its documents or... or respond to the charge or do whatever it wants.

The--

Unidentified Justice: You say that that's a separate mistake, and whatever prejudice that comes from that the employer is free to raise on remand.

Is that it?

Mr. Blatt: --Yes.

The issue of notice is what drove one of the... the key issues that drove Judge Luttig's concurrence, which would have upheld the regulation and the majority's interpretation.

Had the agency immediately hand-delivered this document to the employer, we'd still be here because the Fourth Circuit would invalidate the charge because it wasn't verified until day 313.

Unidentified Justice: But you agree with Mr. Schnapper that the agency just missed, that they should have given... for the purpose of giving... giving notice, sent that unverified charge to the employer.

Mr. Blatt: Yes, absolutely.

It was filed with the agency on receipt, and the... an employer should have been notified within 10 days.

And that wasn't done until later.

And we think the... this argument would be open on remand, what the consequences of the... of the untimely notice.

But the untimely notice is a separate question from an untimely filing of an otherwise sufficient and valid charge, and this charge was filed within the 300-day period because it was received by the agency on November 14th.

And our point is that if the essential elements of the charge are sufficient to... to vest the commission with jurisdiction, the verification could be supplied later.

And the rule at common law, which was well established in both State and Federal courts by 1964, applied to lawyers in a formal pleading practice and judicial proceedings, and the commission certainly acted reasonably in adopting the same rule where Congress anticipated that the charging parties are often unrepresented by counsel.

We don't think anything in the text of title VII forecloses the commission's regulation.

Section 706(b) states that a charge must be verified, but it does not state when verification must occur.

And section 706(e) states that a charge must be filed within 300 days, but it doesn't state that the charge must be verified at the time it is filed.

Unidentified Justice: What about the argument that (b) comes before (e), so... and to define what a charge is, the word charge, and then it's given a certain description in (b).

Then when you get down to (e), it retains that same description.

Mr. Blatt: Well, title VII didn't define the word charge as a verified charge.

It just said that it shall be verified, and certainly those don't... it's just the kind of ambiguity that would invoke the common law rule that the charge... a later... a later verification may relate back to the time of filing.

So, we don't think anything in this text comes close to trumping what... what would be the common law presumption.

And as Judge Luttig observed, that there's not a single provision either by its effect or its terms that suggests that there's a limitations provision for verification.

There's certainly one for filing and there's certainly a 10-day notice period for the employer, but there's not a specific time period when the verification must occur.

And in the normal course of business, the agency will try to obtain a standard form whose signature line contains an affirmation, and so the verification requirement will be supplied.

And if it's not, the agency will dismiss that charge and cease its investigation.

And there's important consequences to that because the employee will not be able to pursue a claim for relief if he's not complied with the statutory requirement of verification.

Unidentified Justice: Can you tell me what happens... it's not this case... if there's a rule in... in the circuits... I don't think we passed on it.

What happens if there's a verified complaint?

The complaint is filed with the EEOC in time.

Then the EEOC just sits on it and notifies the employer, say, 100 days late.

Does the employer... must he show prejudice in... in... before he can defend on the ground of late service?

Or how does that work?

Mr. Blatt: We know of just a handful of cases where the charge just got lost in the system, and the consequences of that would turn on two factors.

First, whether the employer could show prejudice in its ability to defend the suit, and we think there's a second, a constitutional question of whether the employee's rights could be foreclosed because the agency defaulted on its own statutory obligations.

This Court's decision in Logan v. Zimmerman Brush would suggest that it cannot.

But I don't... you wouldn't even need to get to that issue if the employer didn't show prejudice.

This Court in Shell Oil also discussed that the... the courts of appeals had been uniform, that absent bad faith by the agency or prejudice to the employer in defending his ability to defend the suit, that the employee's rights would not be prejudiced.

If there are no more questions.

Unidentified Justice: Thank you, Ms. Blatt.

Mr. Bell, we'll hear from you.

ORAL ARGUMENT OF ALEXANDER W. BELL ON BEHALF OF THE RESPONDENT

Mr. Bell: In the Mohasco case, this Court taught that the EEOC may not adopt regulations that are inconsistent with the statutory mandate.

As we have held on prior occasions, its interpretations of the statute cannot supersede the language chosen by Congress.

And that's exactly what's happened here.

The statute in 706(b) says that charges shall be in writing and under oath.

Next, it's separated by an and.

The statute goes on and says the statute... the charge shall include such information and be in such form as the EEOC requires.

What the EEOC has done here in its regulation is to say that a charge is sufficient so long as it's in writing.

That's exactly what the regulation says.

The text of the... of the statute is simply inconsistent with that.

What the argument of the respondent is, is that there's no real linkage between 706(b), the use of the term 706(b), where the charge shall be in writing and under oath, and 706(e), which specifies that charges shall be filed within a certain time period.

That's simply not so.

If you look at the text of 706(e), it says charges under this section, not under this subsection.

It says charges under this section shall be filed within a certain period of time.

So, we're not dealing with two independent statutes here.

We're dealing with two subsections of exactly the same section of the same statute that are joined at the hip.

Unidentified Justice: Judge... Judge Luttig said that that was a very plausible argument.

However, he said it was not the only plausible reading of these two discrete pieces of the same statute, and it was permissible for the agency to take the view that it did.

To prevail here, you have to show that the position that the agency took was impermissible rather than as Judge Luttig said it is... maybe it's not the best choice, but it was a permissible reading of this less than crystalline statute.

Mr. Bell: Justice Ginsburg, we don't believe that that is a permissible reading of the statute.

The language just doesn't work that way.

The first time Congress mentioned the term charge, which shall be in writing and under oath, it gave definition to the term.

Justice Luttig... Luttig simply didn't carry his analysis far enough.

I don't think he mentioned, for example, the fact that 706(e) begins with charges under this section shall be filed within a certain period of time.

There's simply no--

Unidentified Justice: It seems to me that the reading that you are saying is the only proper reading is somewhat inconsistent with this Court's position in Becker against Montgomery last term.

Mr. Bell: --Justice Ginsburg, we... we don't think so because we think what happened in Becker was a harmonization of two rules of the Court, with a focus particularly on rule 11, which... in the same rule which established the requirement of... of the signing, established the method to cure a failure to sign.

That's a very important difference here.

In this statute, there's absolutely no indication of a... of a intention on the part of Congress to allow curing the one thing, the oath and the signing, that they set apart from the delegation to the agency of authority to control, which was the form and content.

I mean, just looking at the structure of the language, they... they emphasized oath.

They applied it to commission charges, and they separated it from the delegation of the authority to specify the form and content.

In Becker, again the very thing that established the requirement for signing established the method of curing it.

That's not true here.

Unidentified Justice: I think we heard the argument from Mr. Schnapper and Ms. Blatt that as a background common law principle, the idea of a curative amendment to provide a signature, to provide verification that then relates back is nothing new.

So that what Congress wrote has to be read in the light of that background understanding.

Yes, you must have a verification, but it can come later.

Mr. Bell: Your Honor, I... I believe that the background principle, if you will, the background legal principle of our federalism and the background legal principle of due process to employers in fairness to employers in giving notice was probably more a part of the applicable legal background here... here than an--

Unidentified Justice: But that was conceded.

The... the commission should have sent the imperfect charge.

The employer doesn't have to answer it till he gets the perfected charge.

So, the function of notice is served if the EEOC had done what it was supposed to do, and now it concedes that it should have sent that charge.

And the employer isn't bothered with having to respond until he gets a perfected charge.

Mr. Bell: --Well, Your Honor, the... the regulation here eliminates the filing deadline.

I mean, there's no time specified when verification must occur, and there are cases cited in amicus at page 18 of the Equal Employment Advisory Council where charges have never been verified.

I mean, there's just no deadline.

Unidentified Justice: But that's not what anybody is urging here.

They concede that there must be a verification.

The question... as there was in this case.

Mr. Bell: Well, Your Honor, the letter itself was never verified.

There was a form 5 that was verified.

Unidentified Justice: No.

The proper... like an amended complaint.

You know that people file complaints in court to get in under the deadline, and then they file an amended pleading which relates back.

That's standard.

Mr. Bell: There's no indication that Congress here adopted common law pleading rules.

In fact, the legislative history makes it pretty clear that Congress meant to circumscribe the right that they created in title VII rather narrowly.

Unidentified Justice: Do you question, Mr. Bell, your opponents' descriptions of the common law pleading background that a complaint that was... was required by rule to be verified and filed not verified could be verified later?

Mr. Bell: There are certainly many cases that hold that.

There's no question about that.

But... but here we're dealing with... with Congress creating a right that they struck a careful balance in, and as this Court has said, Congress specified certain procedures as a compromise and that the best assurance of administrative fairness is to insist on the procedures that Congress put out.

Unidentified Justice: Mr. Bell, may I ask, going back to Justice Scalia's questions earlier?

The statute requires that the charges shall be in writing, under oath or affirmation, and shall contain such information and be in such form as the commission requires.

And then later they prove it, the date, place, and circumstances of the practice and so forth.

Supposing the... a charge is filed that's kind of a skeleton.

It has... maybe it doesn't really describe the place adequately, and the commission says to him, you have not complied with the requirement giving enough information.

We require an amendment.

Would the charge be untimely in your view or would it be... because it did not contain all the information the commission required, and literally the statute requires that.

Mr. Bell: Yes, Your Honor.

I don't think the commission has the power to change the statute of limitations.

Unidentified Justice: So that if they... if they add a requirement, more information after there's a filing, they would also be deciding that the original charge was... was untimely.

Mr. Bell: Well, and in this case, Your Honor, that's exactly what they did.

I mean, they... there's no question that in this case the EEOC did not regard what had been filed as a charge.

Unidentified Justice: And... and--

Mr. Bell: They kept writing letters to that effect.

They kept telling the petitioner, you've got to file, you got to do something.

Unidentified Justice: --You'd also have to say, Mr. Bell, that... that since the complaint or the charge has to be under the statute in such form as the commission shall prescribe, you'd also have to say that if... if the charge was filed on 9 by 12 paper and the... and the commission had prescribed 8 and a half by 12, that it's ineffective.

Right?

Mr. Bell: Yes, Your Honor.

I think that's what the statute contemplated.

I think--

Unidentified Justice: Any little... any little foot fault would--

Mr. Bell: --Sorry.

Unidentified Justice: --Any little foot fault would render it ineffective.

I mean, any... any--

Mr. Bell: I think that... that--

Unidentified Justice: --any little technical detail that... that wasn't exactly as the commission's rules required.

Mr. Bell: --If it was required by the commission, I think that's what the statute says.

Of course, we're not dealing with a technical detail here.

Unidentified Justice: Mr. Bell, wouldn't that be... wouldn't that be totally inconsistent with what Congress envisioned?

That is, these complaints with the EEOC were not going to be filed by lawyers, lawyers who have leeway to amend under the Federal rules.

These are going to be filed by lay people who didn't know anything, maybe not even know what the word verification means, and yet you think that Congress erected a structure where that initial complaint had to be more meticulous than what the Federal rules require a lawyer's pleading to say filed in court?

That would be very odd.

Mr. Bell: The statute... the statute seems to indicate that with respect to the... at least with respect to the oath and writing requirements.

I mean, there's no... if... if the EEOC can eliminate the oath requirement, they'll be here next year perhaps eliminating the writing requirement.

Unidentified Justice: It's... if the question... here the question is when not whether.

They're not... they haven't eliminated it.

It's a question as it was in Becker.

Yes, you have to sign the notice of appeal, but you don't have to do it within the time that the... the statute of limitations is running.

Mr. Bell: But you do have to do it in the method and in the time set out in rule 11.

There is no analogous provision in this statute.

Unidentified Justice: What was filed in the court of appeals within the time that you had to file the notice lacked a signature.

Mr. Bell: Yes.

Unidentified Justice: And that's the same thing that's here within the 30... 300 days.

And then after... here it was 313 days.

The same thing with the notice of appeal.

The... the signature was supplied some days later, but after the time line.

So, I frankly don't see the difference in the two.

Mr. Bell: Well, we see a fundamental difference between this Court harmonizing rules over which this Court has control and the Court deciding whether to apply requirements set out in a statute that Congress used to create a certain right.

When Congress knew... when Congress wanted to authorize a gap--

Unidentified Justice: You're not asserting that our reading of our own rules is unreasonable, are you?

Mr. Bell: --No, Your Honor.

Unidentified Justice: Well, but if our reading of our rules isn't unreasonable and this agency has simply read the statute the way we read our rules, then I assume that this agency's reading of the statute is not unreasonable.

And that's all that Chevron or whatever has replaced Chevron requires.

Mr. Bell: Your Honor, there are two reasons we don't think Chevron is the correct... Chevron would uphold this regulation.

Number one, there's... there's no delegation of authority to control the writing and... and the signing requirement here.

That's clearly separated in the statute.

When the EEOC wanted to create a gap, it knew how to do it, and it did it by saying you have the right to specify the form and content of the rule.

They didn't do that here.

Secondly, this isn't a reasonable interpretation of... of the statute itself.

It's inconsistent with ordinary rules of statutory construction.

We think it really unravels the statutory scheme.

It is... it eliminates the time filing requirement... the timely filing requirement.

Under the... under the regulation, there's simply no deadline for filing a verified complaint.

It... it undercuts again not only the oath requirement, but the writing requirement.

There's simply no intellectually honest way to separate an EEOC regulation that says an oath is technical and can be fixed after the filing deadline, but a writing is not technical.

There's no intellectually honest way to do that.

The same reasoning that supports the petitioner's argument with respect to oath applies to... to the writing requirement.

Finally, we think it undercuts the policy of conciliation in the statute because, in fact, the... the technical regulation... the... the Solicitor General in his brief says... and this is in the brief in the... urging the... the Court to take cert, pages 16 and 17, that the charges sworn to or affirmed before the employer is required to take any action... we don't think we've misunderstood what the agency's practice is.

It's certainly been our experience that you don't get a notice of any kind until you get a verified notice.

That is the practice in... that... that was what happened in this case.

The... the Solicitor General, at least in its earlier briefs, suggested that that was precisely the practice that they followed here.

So, we think that ultimately the regulation also undercuts the policy in the statute for prompt notice to the employer, which again undercuts the policy of conciliation that's embodied in the statute.

Unidentified Justice: Well, the Government... the Government has asserted that that's not the case, and if that... if... I think we have to accept that unless you have solid evidence to the contrary that... that in fact they think the notice is normally given and should have been given when... here when the... when the charge was received--

Mr. Bell: They have said that today.

Unidentified Justice: --even imperfect--

Mr. Bell: I... I... and I of course saw their--

Unidentified Justice: --Well, unless you know for sure that it's not.

And I agree with you that if... if that is not the policy and if... if they're being inconsistent in viewing it as a charge for one purpose but not as a charge for another purpose, then... then we have a different problem.

But I don't know that we can decide the case on... on the basis of simply your... your guess that the judgment... that the Government may not be accurate in... in what the policy is.

Mr. Bell: --Well, again, I... I refer the Court to the Government's brief in support of amicus of... sorry... of granting the writ, pages 16 and 17.

I would also urge the Court to look at page 22 of the Government's brief--

Unidentified Justice: Mr. Bell, a lawyer representing the Government made a representation before the Court this morning that the EEOC should have immediately sent that charge to the employer.

I think we must take that to be the Government's position.

Mr. Bell: --That does... I mean, I'm not arguing with that.

I'm just pointing out that that seems inconsistent with what the Solicitor General's earlier briefing said in this case.

That's the way we read it.

That's the way amicus read the Government's own brief.

We didn't--

Unidentified Justice: Well, now it's clarified what its position is.

Mr. Bell: --I... I understand.

The... if there is a... a hardship created by applying the rule, the statute of limitations, it's no different from the hardship that always occurs when... when someone falls outside the statute of limitations.

And this Court's opinion in Zipes exists for a reason, and that's to give relief if someone, for good cause, making out a good claim for equitable tolling, does have a basis for... for arguing that the statute shouldn't be applied to him.

This Court has ruled that the timely filing of the charge is not jurisdictional and, as a consequence, is subject to equitable tolling.

And courts who have... which have applied this rule as it's written... I mean... sorry... the statute as it's written have resorted to equitable tolling when the circumstances suggested that that was appropriate to do.

Unidentified Justice: Mr. Bell, this was a deferral case.

This was a 300-day case because the State agency.

Mr. Bell: Yes, Justice Ginsburg.

Unidentified Justice: Do we know whether in this case anything had been done at the State agency level?

Mr. Bell: Your Honor, the charge was not sent to the State until it was put under oath just like it was--

Unidentified Justice: Well, that same... the same formal... whatever they called it... form X, when it was sent to the employer was also sent to the State agency.

Mr. Bell: --That's correct.

After the statutory deadline.

That was the... that's the only involvement the State agency had in this.

And again, when you fall on the wrong side of a statute of limitations, it's always going to seem harsh to you.

But if... if a limitations is to have any meaning whatsoever, you need to enforce it.

Unidentified Justice: Is the apparent inconsistency between what the Government says at page 16 of the brief in support of granting the petition and its representation here explained by the fact that at page 16 the Government says the complaint must be... the charge must be verified before it requires a response--

Mr. Bell: I--

Unidentified Justice: --but then there is another requirement for simply notifying the employer that the charge has been made?

It seems to me--

Mr. Bell: --The... the only requirement in the handbook that we saw... I mean, the handbook that was filed... that we received on Friday does not mention oath at all.

I mean, we... we have looked at it and there's no mention of oath whatsoever.

So, it's... it's very difficult to know, you know, the role of the oath playing.

The handbook also says that the only circumstance where you have to give notice of a charge prior to the time that... that the charge is... is perfected... I think is the term that they use... I mean, they... the... the regulations talk about perfected charges, charges.

They talk about potential charges.

I mean, they're really all over the map.

I mean, they... in terms of establishing a bright line rule, this is just the opposite.

They establish a fuzzy line rule in... in their regulations.

But the only time, Your Honor, that the... they mention giving notice of a charge is if it's within 15 days of the expiration of the filing deadline.

That... that's the only reference I was able to find.

And it's also quite interesting that in--

Unidentified Justice: --I don't understand that.

I don't understand what you said.

Mr. Bell: --If--

Unidentified Justice: They only give notice of the charge if the charge is received within 15 days of the--

Mr. Bell: --As I read this manual that was just served... served on us on Friday, that's... that's exactly what it says.

That's the only circumstance I can see.

The--

Unidentified Justice: --Where they will give notice of an unperfected charge.

Mr. Bell: --Yes.

if it's considered a minimally... what they call a minimally sufficient charge.

Unidentified Justice: They won't give notice unless the charge is received--

Mr. Bell: Right.

Unidentified Justice: --right up at the end of a deadline.

Mr. Bell: That... that is the way I read this handbook.

I think it's also interesting in looking at the handbook, Your Honor--

Unidentified Justice: Do you have a section of the handbook where that's--

Mr. Bell: --I think it's... yes, sir.

I think it's on... it's in section 2.1.

It looks like on page 915.001, Your Honor, and it's special procedure, title VII and ADA.

When it is clear--

Unidentified Justice: --That's not a page.

You got to give me another page.

The page is down the bottom.

2-19, 2-.

Mr. Bell: --2-1--

Unidentified Justice: 2-1?

Let me try that.

Mr. Bell: --is what... what I have.

And it would be section 2.2(a)(1).

It's what... what happens when the EEOC receives a charge by mail.

And as I understand, it's only when it's within 15 days of the deadline that they send notice of the charge to the employer.

Your Honor, I think it's... or, Your Honors, it's also significant looking at 2.5(a)(3) of this handbook on amending charges, that the agency's own manual mentions nothing about amending to add verification.

Nothing.

They talk about amending to cure the common law sort of problem, Justice Ginsburg, not the... not the oath--

Unidentified Justice: What you have just said suggests that this compliance manual is... is in need of amendment, but the compliance manual, unlike the regulation that we have, is not something that gets Chevron deference.

This has not gone through any kind of notice and comment--

Mr. Bell: --I understand, and this... of course, this regulation was not passed with notice and comment rulemaking either, which under the Mead decision gives it less weight than it might have if... if the regulation--

Unidentified Justice: --I thought the Congress authorized the EEOC to make procedural rules, didn't it?

Mr. Bell: --They did.

Unidentified Justice: And that's what these are.

This... the relation-back rule.

Mr. Bell: Your Honor, I suppose we... lawyers could differ on whether it's a procedural or substantive rule.

Whether it's procedural or substantive, it changed the... it changes--

Unidentified Justice: Well, what would you call rule 15(c) of the Federal Rules of Civil Procedure?

15(c) of the Federal Rules of Civil Procedure.

Mr. Bell: --Yes.

Unidentified Justice: Is that a rule of procedure?

The relation-back rule?

Mr. Bell: Yes, Your Honor, it is.

Unidentified Justice: Well, I'm not sure that Mead... does... I don't... does Mead say that... that even rules adopted without notice and comment are entitled to Chevron deference so long as they were authorized?

I mean, I thought all rules had to authorized whether they do notice and comment or not.

What difference does it make whether the statute authorizes the... the issuance of these procedural rules?

You make the point that they weren't adopted by notice and comment, which is what Mead says is the only really safe harbor.

So, they were authorized.

I mean, all rules have to be authorized.

I mean, that's... that's the starting point, isn't it?

Mr. Bell: Well, and... and one of the problems with this rule is that there's no delegation of authority to the agency to define the term charge, which is, in essence, what they've done.

And they've defined it as something other than what... what Congress has said, which is something that's in oath... under oath and in writing.

That's the problem.

Again... and I agree it doesn't make any difference what procedure is used if they've... if they've overstepped the bounds and have interpreted the statute in a way that's inconsistent with what the statutory language requires.

That's what we think they've done here.

Again, the EEOC itself did not view what was filed as a charge under their own regulations, under... under the statute that it exists.

I think that... that is significant.

The EEOC doesn't need to change the statute in order to help claimants.

They can follow the statute and tell claimants, you need to put your complaint in... in writing and you need to put it under oath.

All we're talking about is a declaration.

The EEOC's failure to do that, which apparently they do fail to do, should not be laid at the door of the respondent.

And again, equitable tolling is available under Zipes anytime an unfair result is reached.

And that... that's the way these problems should be solved.

But just because equitable tolling is appropriate in some cases does not mean this Court should grant the EEOC the right to pass basically a prophylactic rule that... that says--

Unidentified Justice: But how would you distinguish from the point of view of the claimant who is filing the original charge, sends a letter, as here, and then the EEOC, if it were super-efficient, would have gotten out the form in good time?

Mr. Bell: --It did in this case, Your Honor.

This man had the form within the 300 days.

He's the one who sat on it.

Unidentified Justice: How many days did he have left?

Mr. Bell: He had it for approximately a month, at least 3 weeks.

Unidentified Justice: Thank you, Mr. Bell.

Mr. Schnapper, you have 5 minutes remaining.

REBUTTAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE PETITIONER

Mr. Schnapper: Thank you, Your Honor.

The compliance manual in this case squarely supports the representation that the Government has made today with regard to its practice.

The relevant provision is at the bottom of page 2-1.

It is section 2.2(b), and it states, when the correspondence contains all the information necessary to begin investigating... which is clearly true here... constitutes a clear and timely request for EEOC to act, and does not express concerns about confidentiality or retaliation, acknowledge the correspondence by using a form letter, and... and serve a copy of the document on the respondent.

Now, the absence of any reference to verification is critical.

It is simply not a prerequisite to this command to agency officials.

The manual is crystal clear and entirely consistent with what the Government has said.

In addition, there are cases in which the Government with the EEOC has indeed served--

Unidentified Justice: --manual say about verification, later verification?

Mr. Schnapper: --I don't believe the manual addresses it.

It is not relevant to the commands of the manual as to when service is to--

Unidentified Justice: Well, one... one might infer that then that post-filing verification is not authorized.

Mr. Schnapper: --It's expressly authorized by the regulation in this case.

I mean, I don't know that the manual reiterates what's in the regulation.

The regulation is crystal clear.

There's not a dispute here as to what... whether the regulation authorized this... this particular practice.

There are, indeed, cases in which the EEOC has served nonverified charges.

You'll find examples of that in the Philburn and Price cases which are mentioned in the cert petition.

With regard to the applicability of Chevron, we are in agreement with Justice Scalia that the presence or absence of notice and comment rulemaking is not relevant.

If that were critical, then Chevron deference wouldn't apply to most procedural regulations which don't require notice and comment rulemaking.

That would surely stand everything on its head.

Justice O'Connor correctly pointed out in the Commercial Office Products case that deference to procedural interpretations by an agency are particularly appropriate.

In addition, it in fact happened that there was notice and comment rulemaking in this case with regard to these regulations in 1977.

The cites to that are in the amicus brief filed by the EEAC.

The question here, as Justice Ginsburg noted, is not whether a charge has to be verified but when.

The... the statutory language is not clear.

It could reasonably have been read by the agency to require verification prior to the applicable deadline.

If the agency had written that regulation, it would have properly have to have been upheld under Chevron.

But the... the statutory language was ambiguous, and this is precisely the circumstance under which, under Chevron, the resolution of that matter should be left to the agency.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Schnapper.

The case is submitted.