No. 07-4588 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT MARK HOHIDER, et al. v. Plaintiffs-Appellees, UNITED PARCEL SERVICE, INC., Defendant-Appellant. On Appeal From The United States District Court For The Western District Of Pennsylvania SUPPLEMENTAL BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANT-APPELLANT AND IN SUPPORT OF REVERSAL February 13, 2009 Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W. Ste. 400 Washington, DC 20005 (202) 629-5600 rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council
No. 07-4588 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT MARK HOHIDER, et al. v. Plaintiffs-Appellees, UNITED PARCEL SERVICE, INC., Defendant-Appellant. On Appeal From The United States District Court For The Western District Of Pennsylvania CORPORATE DISCLOSURE STATEMENT AND STATEMENT OF FINANCIAL INTEREST Pursuant to Rule 26.1 and Third Circuit LAR 26.1, Amicus Curiae Equal Employment Advisory Council makes the following disclosure: 1) For non-governmental corporate parties please list all parent corporations: None. 2) For non-governmental corporate parties please list all publicly held companies that hold 10% or more of the party s stock: None. (Page 1 of 2)
3) If there is a publicly held corporation which is not a party to the proceeding before this Court but which has a financial interest in the outcome of the proceeding, please identify all such parties and specify the nature of the financial interest or interests: None. 4) The instant appeal is not a bankruptcy appeal. February 13, 2009 Rae T. Vann (Page 2 of 2)
TABLE OF CONTENTS TABLE OF CITATIONS...ii INTEREST OF THE AMICUS CURIAE... iii ARGUMENT...1 I. THE ADA AMENDMENTS ACT OF 2008 DOES NOT APPLY RETROSPECTIVELY TO CLAIMS FILED PRIOR TO ITS JANUARY 1, 2009 EFFECTIVE DATE...1 A. The Text and Legislative History of the ADA Amendments Act Clearly Demonstrate That Congress Intended That It Be Applied Prospectively Only...1 B. Virtually Every Federal Court To Have Considered the Issue has Found, or has Assumed Without Deciding, That the ADA Amendments Act Does not Apply to Claims Filed Prior to January 1, 2009...3 CONCLUSION...5 CERTIFICATION OF BAR MEMBERSHIP CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
TABLE OF CITATIONS FEDERAL CASES EEOC v. Agro Distribution, LLC, 2009 U.S. App. LEXIS 959 (5th Cir. Jan. 15, 2009)...3 Hays v. Clark Products, Inc., 2008 U.S. Dist. LEXIS 102626 (S.D. Ind. Dec. 18, 2008)...4 Kiesewetter v. Caterpillar, Inc., 295 Fed. Appx. 850, 2008 U.S. App. LEXIS 21481 (7th Cir. 2008)...3 Landgraf v. USI Film Products, 511 U.S. 244 (1994)...1 Levy v. Hustedt Chevrolet, Inc., 2008 U.S. Dist. LEXIS 101701 (E.D.N.Y. Dec. 17, 2008)...4 Supinski v. United Parcel Service, Inc., 2009 U.S. Dist. LEXIS 3143 (M.D. Pa. Jan. 16, 2009)...3, 4 Thorn v. BAE Systems Hawaii Shipyards, Inc., 2009 U.S. Dist. LEXIS 8058 (D. Haw. Feb. 2, 2009)...4 Walstrom v. City of Altoona, 2008 U.S. Dist. LEXIS 104479 (W.D. Pa. Dec. 29, 2008)...4 FEDERAL STATUTES Americans with Disabilities Amendments Act, Pub. L. 110-325, 122 Stat. 3553 (2008)...passim Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009)...2, 3 LEGISLATIVE HISTORY 154 Cong. Rec. S8348, S8350 (2008)...2 ADA Restoration Act, H.R. 3195, 110th Cong. (2007)...2 H.R. Rep. No. 110-730, pt. 1 (2008)...2 ii
Pursuant to the Court s Order dated February 3, 2009, the Equal Employment Advisory Council respectfully submits this supplemental brief amicus curiae, contingent upon granting of the accompanying motion for leave to file. The brief urges this Court to find that the ADA Amendments Act of 2008, Pub. L. 110-325, 122 Stat. 3553 (2008), does not apply retroactively to claims that were filed prior to January 1, 2009, the date on which it became effective. INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes more than 300 of the nation s largest private sector companies, collectively providing employment to more than 20 million people throughout the United States. EEAC s directors and officers include many of industry s leading experts in the field of equal employment opportunity. Their combined experience gives EEAC a unique depth of understanding of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and requirements. As employers subject to the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., as amended by the ADA Amendments Act of iii
2008 (ADAAA), Pub. L. 110-325, 122 Stat. 3553 (2008), as well as other labor and employment statutes and regulations, EEAC s members have a direct and ongoing interest in the questions presented in this matter. EEAC seeks to assist the Court by highlighting the impact its decision in this case may have beyond the immediate concerns of the parties. Because of its experience in these matters, EEAC is well-situated to brief the Court on the relevant concerns of the business community and the substantial significance of this case to the constituency it represents. iv
ARGUMENT I. THE ADA AMENDMENTS ACT OF 2008 DOES NOT APPLY RETROSPECTIVELY TO CLAIMS FILED PRIOR TO ITS JANUARY 1, 2009 EFFECTIVE DATE A. The Text and Legislative History of the ADA Amendments Act Clearly Demonstrate That Congress Intended That It Be Applied Prospectively Only Section 8 of the ADAAA provides, This Act and the amendments made by this Act shall become effective on January 1, 2009. ADA Amendments Act of 2008 (ADAAA), Pub. L. 110-325, 122 Stat. 3553, 3559 (2008) (emphasis added). There is a strong and well-established presumption in the law against the retroactive application of statutes, and prospectivity remains the appropriate default rule unless Congress has indicated, clearly and unambiguously, to the contrary. Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994). This presumption is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Id. at 265 (footnote omitted). The ADAAA contains no express retroactivity provision or any other obvious indication that Congress intended that it be applied retrospectively to claims that were filed prior to January 1, 2009. To the contrary, the Act s effective date language creates a strong presumption, too strong to be overcome by any negative inference
..., Id. at 288 (Scalia, J., concurring) (footnote omitted), that it should be applied on a prospective basis only. That conclusion is further bolstered by the ADAAA s legislative history, which indicates that Section 8 should be read to mean that [a]mendments made by the act take effect on January 1, 2009. H.R. Rep. No. 110-730, pt. 1, at 20 (2008) (emphasis added). Indeed, the very evolution of the legislation suggests that Congress intended the ADAAA to be applied prospectively only. As originally introduced, for instance, the ADA Restoration Act (ADARA) 1 ADAAA s predecessor bill did not contain an effective date provision. It was only after very intense negotiations with the business community, the disability community, and others involving a lot of give and take that a compromise bill was crafted that contained the January 1, 2009 effective date language. 154 Cong. Rec. S8348, S8350 (2008) (statement of Sen. Harkin). Other contemporaneously introduced civil rights legislation containing retroactivity provisions further suggests that Congress did not mean to apply the ADAAA retrospectively. Section 6 of the Lilly Ledbetter Fair Pay Act of 2009, which was signed into law by President Barack Obama on January 29, 2009, expressly provides, This Act, and the amendments made by this Act, take effect as if enacted on 1 H.R. 3195, 110th Cong. (2007). 2
May 28, 2007 and apply to all claims of discrimination in compensation under the Americans with Disabilities Act of 1990 that are pending on or after that date. Pub. L. No. 111-2, 123 Stat. 5, 7 (2009) (emphasis added). The fact that Congress enacted new legislation that specifically amends the ADA and contains a retroactivity clause while at the same time declining to do so in the ADAAA strongly suggests the latter was intended to apply prospectively only. B. Virtually Every Federal Court To Have Considered the Issue Has Found, or Has Assumed Without Deciding, That the ADA Amendments Act Does Not Apply to Claims Filed Prior to January 1, 2009 If the actual text and legislative history were not enough to support a finding against retroactivity, nearly every federal court including two federal courts of appeals asked to rule on the question thus far has concluded, or assumed without deciding, that the ADAAA should not be given retroactive effect. See EEOC v. Agro Distrib., LLC, 2009 U.S. App. LEXIS 959, at *14-15 n.8 (5th Cir. Jan. 15, 2009) ( Congress recently enacted the ADA Amendments Act of 2008, but these changes do not apply retroactively ); Kiesewetter v. Caterpillar, Inc., 295 Fed. Appx. 850, 2008 U.S. App. LEXIS 21481, at *1-2 (7th Cir. 2008) ( Section 8 of this statute provides that the legislation s effective date is January 1, 2009, so it does not apply to this appeal ). See also Supinski v. United Parcel Serv., Inc., 2009 3
U.S. Dist. LEXIS 3143, at *16 n.6 (M.D. Pa. Jan. 16, 2009); Walstrom v. City of Altoona, 2008 U.S. Dist. LEXIS 104479, at *14 n.3 (W.D. Pa. Dec. 29, 2008); Thorn v. BAE Sys. Haw. Shipyards, Inc., 2009 U.S. Dist. LEXIS 8058, at *4-5 (D. Haw. Feb. 2, 2009); Hays v. Clark Prods., Inc., 2008 U.S. Dist. LEXIS 102626, *16 n.3 (S.D. Ind. Dec. 18, 2008); Levy v. Hustedt Chevrolet, Inc., 2008 U.S. Dist. LEXIS 101701, at *8-9 n.2 (E.D.N.Y. Dec. 17, 2008). Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. Landgraf, 511 U.S. at 265 (citations and footnote omitted). This is especially true in the employment context, where myriad pre-adaaa decisions that were lawful when made now would potentially be indefensible under the ADAAA s expansive, substantive revisions to the law. 4
CONCLUSION Because the necessary clarity regarding Congress s intent to apply the ADAAA retroactively is absent from both its text and legislative history, the Act cannot properly be given retroactive effect and should be deemed by this Court to apply prospectively only. Respectfully submitted, Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W. Ste. 400 Washington, DC 20005 (202) 629-5600 February 13, 2009 Attorneys for Amicus Curiae Equal Employment Advisory Council 5
CERTIFICATION OF BAR MEMBERSHIP Pursuant to Third Circuit Local Appellate Rule 46.1(e), I certify that I am a member of the bar of the United States Court of Appeals for the Third Circuit. February 13, 2009 Rae T. Vann
CERTIFICATE OF COMPLIANCE I, Rae T. Vann, hereby certify that this SUPPLEMENTAL BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANT-APPELLANT AND IN SUPPORT OF REVERSAL complies with the page limitation set forth in the Court s Order, dated February 3, 2009. This brief is written in Times New Roman 14-point typeface using MS Word 2003. I further certify that the text of the electronic brief in.pdf format and the text of hard copies of this brief are identical and that a virus check was performed using the following virus software: Symantec Anti-Virus Corporate Edition 10.1.6 (updated February 13, 2009). February 13, 2009 Rae T. Vann
CERTIFICATE OF SERVICE I hereby certify that on this 13th day of February 2009, the undersigned filed one (1) electronic original using the CM/ECF system and ten (10) true and correct copies of the foregoing supplemental brief via U.S. Priority Mail, postage prepaid, with the Clerk of the Court. Electronic service via the CM/ECF system will send notification of such filing to the following: Christian C. Bagin, Esq. christian@wienandandbagin.com David R. Scott, Esq. drscott@scott-scott.com Mark A. Perry, Esq. mperry@gibsondunn.com Judith Scolnick, Esq. jscolnick@scott-scott.com Rachel S. Brass, Esq. rbrass@gibsondunn.com Perry A. Napolitano, Esq. pnapolitano@reedsmith.com Eugene Scalia, Esq. EScalia@gibsondunn.com February 13, 2009 Rae T. Vann