William H. Rehnquist: We'll hear argument next in Number 00-763, Sharon Pollard v. E.I. Du Pont de Nemours. Ms. Caldwell.
Kathleen L. Caldwell: Mr. Chief Justice, and may it please the Court-- Congress never intended to include front pay as a type of compensatory damages when it enacted the Civil Rights Act of 1991. This is made clear by looking at the Act itself, Section 2 of the Act, which provided that the congressional purpose was to provide additional remedies. This was intended to deter harassment and to prevent intentional discrimination in the workplace, just as in the Vinson case. This legislation was stated by Congress to be necessary to provide these--
William H. Rehnquist: What about the terms of the legislation itself, rather than what members of Congress might have said about it?
Kathleen L. Caldwell: --All right. That's the next analysis, Your Honor. If you look at (a)(1) of the legislation itself, 1981a-(a)(1), it provides that the complaining party... and this is a quote from page 2 of the blue brief. The complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by Section 706(g). Now, what that means is that Congress was not enacting--
William H. Rehnquist: This is on page 2 of the blue brief?
Kathleen L. Caldwell: --It's page 1, Your Honor.
William H. Rehnquist: Page 1. Thank you.
Kathleen L. Caldwell: It starts on page 1 and goes over onto page 2. What Congress was saying was that we're not changing what the status quo was. We're adding to it, and they did it very carefully in (a)(1) of the Act. You then look to (b)(2) of the Act, which is the first part that is pertinent to our analysis. In this particular part--
William H. Rehnquist: Where is this?
Kathleen L. Caldwell: --Page 2.
William H. Rehnquist: Page 2.
Kathleen L. Caldwell: Where it says, Exclusions from Compensatory Damages. Compensatory damages awarded under this section shall not include back pay, interest on back pay, or any other type of relief authorized under Section 2000e-5(g) of the Civil Rights Act of 1964, which is the same as 706(g). Now, what this language specifically says is that we're not disturbing the status quo. What was available previously is still available. We're simply adding the supplemental or the additional remedy.
Ruth Bader Ginsburg: But, Ms. Caldwell, the status quo that you're talking about is the status quo created by courts, because at no point did the statute use the words front pay.
Kathleen L. Caldwell: That's correct, Your Honor.
Ruth Bader Ginsburg: It did use the words back pay.
Kathleen L. Caldwell: It did use the word back pay. If you look at the original language... and it's provided again on the quote that starts on page 1... the language talks... of the original Act, 706(g), in 1964 provided, and can order such affirmative action as may be appropriate, which might include but is not limited to reinstatement or hiring of employees with or without back pay. Then in 19--
William H. Rehnquist: Well, then it goes on to say, or any other equitable relief as the court deems appropriate.
Kathleen L. Caldwell: --That's correct. And that was the language--
William H. Rehnquist: So the question boils down here to whether or not so called front pay is equitable relief, doesn't it, as opposed to damages?
Kathleen L. Caldwell: --The central question for this Court is, what was the intent of Congress?
William H. Rehnquist: We look to the intent of Congress, I suppose, by looking at the laws that it wrote.
Kathleen L. Caldwell: That's right. And the laws that it wrote in 1972, there was an intent of Congress to provide additional relief to what had been provided under the 1964 Act, and they added the language, or any other equitable relief as the court deems appropriate, clearly discretionary with the court and therefore equitable, Your Honor.
William H. Rehnquist: Do you think a court of equity has ever traditionally awarded damages in the sense of front pay? That is, you promised to hire me for five years. I work for the first year. You fire me for no reason. I sue you. I want the balance of what I would have earned in the next four years, minus whatever damages I've mitigated. To me, that's classical damages awarded by a common law court, not by equity.
Kathleen L. Caldwell: It does sound like straight legal relief, Your Honor, but if you look at specific performance, which is a form of equity, and if the relief that would normally be required of the person, which would be injunctive in nature, is not available for whatever reason, such as the land no longer exists on the market, then relief can be given, which would be equitable, and yet be monetary in nature.
William H. Rehnquist: I thought there was a doctrine where contracts for personal services were not specifically enforceable, Longley against Wagner.
Kathleen L. Caldwell: That's correct, Your Honor. But I think there is an analogy in equity, in the maximums of equity, which do lend credence to what Congress created, which was a form of equitable relief involving monetary relief, both back pay and later the court created remedy of front pay.
David H. Souter: When you speak of front pay, do you mean an award calculated as it was in the Chief Justice's hypothetical? In other words, you take... if you have a term contract, you take the term of the contract, figure out what portion of it is unexpired, and in effect, award pay equal to what would have been earned in that unexpired term--
Kathleen L. Caldwell: Not at all, Your Honor, and that's one of the central problems of the concept of front pay as a purely legal remedy.
David H. Souter: --All right. Well, how, then, is front pay calculated, because that was going to be my question. I understand it in his hypo, and you didn't take exception to that, but you now say, Well, that isn't the way we calculate it. How is it calculated?
Kathleen L. Caldwell: Front pay is much more fluid. It depends on the circumstances. The first consideration is not whether the person's entitled to front pay. The first consideration is whether that plaintiff should be reinstated, and is there a compelling reason why they should not be reinstated, and there are numerous examples of circumstances where reinstatement would be inappropriate. For example, there's another employee in the place in which the plaintiff... to which the plaintiff would be reinstated.
David H. Souter: Okay. Let's just take that case. Assume that. How is front pay going to be calculated?
Kathleen L. Caldwell: Some courts have fashioned it as, we'll give the company two years to find an appropriate position for this plaintiff, given the training, experience, background. And during that two year period, that person will be paid the pay that they otherwise would have missed.
David H. Souter: All right. Now, if at the end of the two year period, there hasn't been a reinstatement, is there any further front pay ever awarded, or do you say at that point, it's over with and any future award would have to be an award of damages?
Kathleen L. Caldwell: Often it comes right back to the court, and in the Sixth Circuit case of Shore v. Federal Express, which went up on appeal twice to the Sixth Circuit... and it's one of the leading cases from the Sixth Circuit in which the Sixth Circuit recognizes front pay as equitable... the plaintiff was held by the judge not to be required to go back to that employment because of the hostile environment, the painful situation she would find herself in.
David H. Souter: This is after something like the two year period has passed?
Kathleen L. Caldwell: Well, what he did was he fashioned the remedy, saying that she would never again find a job equivalent in pay to what she had Federal Express, and each year Federal Express is required to pay her the difference between what she earned and what she would have earned.
David H. Souter: Okay. But that... I just don't see how when the front pay so called becomes that extensive, I don't see how you distinguish it from an award of lost future earnings not attributable to loss of earning capacity, which is a recognized form of damages at law.
Kathleen L. Caldwell: The hallmark really is the discretion of the court.
Ruth Bader Ginsburg: Ms. Caldwell, you're describing this as the typical substitute for reinstatement, but you did say that front pay covers a wide range, and at least one area that it covers is a person qualifies for the promotion or for the job, doesn't get it because of discrimination. But then there's a seniority system, so the job isn't there. Front pay is you pay the person at the job level where they are now until there's a vacancy. Or if there's a training program, she hasn't been promoted but she would need a training program, you pay her while she gets the training program at the higher rate. And front pay in those situations was conceived of as an incentive to stop the employer from foot dragging. So you're treating this in the most questionable case where front pay is originally, in the situations I describe, it's much more easy to characterize as equitable. Is that not so? And you're giving us these cases where she's never going to be in the job.
Kathleen L. Caldwell: Well, front pay applies to both instances, and normally this is one of the reasons why it should remain with the court rather than with a jury.
Anthony M. Kennedy: Ms. Caldwell, would you tell me how it works so far as the jury's concerned. I think you pointed out that from your standpoint, there's a real problem with the respondent's position as to what the jury should be instructed, but even if your position is accepted, I'm not quite sure how it works. Is the employer entitled to an instruction to the jury? Ladies and gentlemen of the jury, if you find that there is liability and if you reach the point of punitive damages and future damages, you should not take into account any lost future earnings. Is that the way it works, if you prevail?
Kathleen L. Caldwell: If I prevail, that's not the way it would work, Your Honor.
Anthony M. Kennedy: How does it work?
Kathleen L. Caldwell: The way it would work--
Anthony M. Kennedy: Just as... for the preface, because it would seem to me that the employer would want the jury to know that they shouldn't worry about future pay and future earnings, and there should be some instruction to that effect.
Kathleen L. Caldwell: --There should be an instruction to that effect, but there are certain future pecuniary amounts that the jury would be instructed on.
Anthony M. Kennedy: And what are those?
Kathleen L. Caldwell: And those would be such things as future medicals, moving expenses, those sorts of items, which are clearly within the confines of what Congress allowed in enacting this legislation.
Antonin Scalia: Ms. Caldwell, can I call your attention to the text of the statute again which you cited us to? Compensatory damages shall not include back pay or any other type of relief authorized. I assume that means currently authorized, not that used to be authorized. And isn't one of the problems with your case that, assuming you're relying on the equitable nature of this award, it's clear that you do not give equitable relief where legal relief is available. Equity only steps in when the law doesn't cover the problem. Now, once upon a time, this front pay may have been available under 2000e-5(g) of the Civil Rights Act as equitable relief, but once you have enacted a new provision for compensatory damages, it seems to me you do not need that equitable relief of front pay. You have legal relief.
Kathleen L. Caldwell: It does not function the same as a sum certain that a jury would find as to future losses. It's a different animal. Also I believe if you look to--
Antonin Scalia: Well, do you deny that if you have legal ability to get your future earnings, you cannot ask a court of equity to give you your future earnings without jury trial and everything else that goes with it?
Kathleen L. Caldwell: --It would certainly thwart the intent of Congress to provide make whole relief.
Antonin Scalia: I don't understand that.
Anthony M. Kennedy: What do you call this... is there a universe of compensatory and punitive damages? And then what's the term that you call these other damages? Equitable damages?
Kathleen L. Caldwell: Equitable relief.
Anthony M. Kennedy: No. Equitable relief but not damages?
Kathleen L. Caldwell: Well, damages are a portion or a type of equitable relief which have been fashioned and made available under Title VII.
William H. Rehnquist: Well, that's just contrary to the most fundamental understanding of the difference between equity and law. The law awards damages. Equity awards other kinds of relief when damages are not sufficient.
Kathleen L. Caldwell: And the difficulty here... and perhaps I'm not expressing it clearly enough... is that when a court reaches the issue of front pay, the court is normally joining it with some form of injunctive relief that's certainly not within the provenance of a jury.
William H. Rehnquist: Well, under the new law as written, you can get compensatory damages.
Kathleen L. Caldwell: You can get compensatory damages under the Act. If you look at (b)(2), it excludes damages that were previously available. It says, compensatory damages awarded under this section. In other words, 1981a. It does not include the prior relief, and that would include front pay, because front pay was part of the relief that had been awardable and had been recognized by eleven of the circuit courts of appeal.
Antonin Scalia: It used to be, because under your theory, it was equitable relief, and it was... and the same money was not available through the law. But when you have a new statute that says you can get this compensation, I don't see any justification for giving you front pay on an equitable basis.
Kathleen L. Caldwell: We have legislative history which makes clear that all the persons who expressed any statement on the new Act--
Antonin Scalia: You're not looking at me, are you?
Kathleen L. Caldwell: --Yes, Justice Scalia, I am.
Ruth Bader Ginsburg: Are you saying, Ms. Caldwell, essentially that front pay is post judgment back pay, that is, that they are identical animals, and Congress characterized back pay as equitable?
Kathleen L. Caldwell: Absolutely.
Ruth Bader Ginsburg: And front pay, since it is of the same character, is as much equitable.
Kathleen L. Caldwell: Is equitable. And, again, very, very briefly, because--
Anthony M. Kennedy: Does the jury award back pay?
Kathleen L. Caldwell: --Historically the jury did not award back pay. They do now.
Anthony M. Kennedy: Then it seems to me back pay and front pay ought to be treated the same under 1981a-(b)(2).
Ruth Bader Ginsburg: Are you sure that that's the right answer? Under the statute, back pay is not awarded by the jury, as I understand it.
Kathleen L. Caldwell: Well, that is... I believe Justice Kennedy asked a question of practicality in terms of how it has been working in the court systems. But it is in their discretion--
Anthony M. Kennedy: Well, you mean the courts are violating the statute?
Kathleen L. Caldwell: --Sir?
Anthony M. Kennedy: The courts are violating the statute? I read the statute the way Justice Ginsburg says it. Just from a statutory reading, I would think the jury shouldn't award back pay, but I'm pretty sure also that's not the way it works.
Kathleen L. Caldwell: I believe it should not work that way. I think in actuality the judge has the discretion to give the instruction on back pay, and if the judge gives the instruction, then there's a calculation by the jury. But that's a different animal from front pay to that extent, because there is a two step process in front pay. First, the issue of reinstatement entirely for the court. Second, the issue of front pay which is a matter of not straight calculation.
William H. Rehnquist: What about someone who has been discriminated against and wants damages but does not want reinstatement?
Kathleen L. Caldwell: If you look at 706(g) itself, that allows an award of back pay and other equitable relief regardless of reinstatement.
William H. Rehnquist: So... but you're saying that the court must always first deal with reinstatement before it gets to back pay or--
Kathleen L. Caldwell: Before it gets to front pay.
William H. Rehnquist: --To front pay. But in a situation where the plaintiff, although wronged, does not wish reinstatement, that's not going to be the case.
Kathleen L. Caldwell: The converse is equally difficult. If this Court decides that front pay is now awardable exclusively under 1981a, the effect will be that persons who were discriminated against but not intentionally will no longer be able to get front pay. That will certainly thwart the make whole purposes of the Act.
Ruth Bader Ginsburg: Isn't it true that the original characterization of back pay as equitable, that that was done way back in '64, because there was frankly distrust in how southern juries would deal with Title VII?
Kathleen L. Caldwell: Absolutely.
Ruth Bader Ginsburg: So Congress created this thing that they call back pay, which one might characterize as compensatory whether it was called back pay, and then the court said, well, front pay is the same, is post judgment back pay, so the courts put it under the same heading.
Kathleen L. Caldwell: And keep in mind that front pay did not... that term was not coined until 1977, some five years after the 1972 amendment.
Antonin Scalia: You said in response to an earlier question of Justice Ginsburg that the statute... or you agreed that the statute characterizes front pay as equitable. The 1991 statute, where does it do that?
Kathleen L. Caldwell: I didn't mean to say that.
Antonin Scalia: It doesn't call it equitable. It doesn't even call back pay equitable. It says, shall not include back pay, interest on back pay, or any other type of relief authorized under the Civil Rights Act of '64. It doesn't characterize any of them as equitable.
Kathleen L. Caldwell: It does not, but the original 706(g) as enacted in 1972 certainly does that. Back pay--
Ruth Bader Ginsburg: It would have to be equitable. Otherwise, there would be a jury trial. Right?
Kathleen L. Caldwell: --That's right.
Ruth Bader Ginsburg: And that's what Congress was trying to prevent in '64.
Kathleen L. Caldwell: And this Court certainly was well aware of it in the Albemarle Paper v. Moody case in which the Court strongly expressed the need for make whole relief to prevent discrimination. If I may reserve my... I'm up. Thank you.
William H. Rehnquist: Thank you, Ms. Caldwell. Mr. Roberts, we'll hear from you.
Matthew D. Roberts: Mr. Chief Justice, and may it please the Court-- A front pay award under Title VII is not subject to the cap on compensatory and punitive damages added by the 1991 Civil Rights Act. The 1991 Act provided new relief and generally capped that new relief, but the Act did not cap remedies that were already authorized such as front pay, which has traditionally been awarded when reinstatement is delayed or impractical. And the 1991 Act expressly excludes from the cap damages relief authorized under Section 706(g).
Antonin Scalia: Not relief that used to be authorized, but relief that is authorized.
Matthew D. Roberts: Yes, Your Honor. At the time Congress drafted the 1991 Act, which is when it said is authorized, the courts of appeals had uniformly held that front pay was authorized under Section 706(g), so when Congress--
Antonin Scalia: As equitable relief.
Matthew D. Roberts: --As affirmative action or other equitable relief. Yes, Your Honor.
Antonin Scalia: Well, let's leave affirmative action aside. That may be a different question. But if you're relying on the equitable relief portion, it seems to me that with the new legislation, it's no longer equitable relief.
Matthew D. Roberts: Well, I don't think it has to be characterized as other equitable relief. It could fall under such affirmative action language, but even assuming that it falls under the other equitable relief, there was no legal relief that was provided in 1991 that's a substitute for the equitable relief that was already available--
William H. Rehnquist: Well, there was certainly compensatory damages provided.
Matthew D. Roberts: --Yes. Compensatory damages were provided, but Congress was careful to indicate that it meant those damages to be in addition to the relief that was available, and that it was... that the relief that was available under Section 706(g), it excluded it from the compensatory--
Antonin Scalia: It didn't say, the relief that was available.
William H. Rehnquist: It says, the relief that is available.
Matthew D. Roberts: --That is available, that is authorized.
Antonin Scalia: I mean, you're being circular. If, indeed, you can get the compensatory damages, you have no need for equitable relief. You have no entitlement to equitable relief.
Matthew D. Roberts: I think our arguments are equally circular when Congress--
David H. Souter: Well, the statute simply doesn't make that choice. It doesn't say, is authorized or was authorized. It says authorized.
Matthew D. Roberts: --It says authorized, and there are two factors there to consider. One, that the courts of appeals had uniformly held that it's authorized. And two... and so Congress incorporated that understanding under accepted principles of statutory construction. And also we know from the legislative history for those on the Court that are interested in looking at it that Congress did intend to incorporate that understanding.
Antonin Scalia: You think authorized... you agree with Justice Souter. Authorized means previously authorized.
Matthew D. Roberts: No. I think it means is authorized, but I think that Congress understood... Congress ratified the understanding of what was authorized, so what was authorized became what is authorized, and--
Antonin Scalia: All right. Suppose that's wrong--
Matthew D. Roberts: --and they're not divisible--
John Paul Stevens: --Let me ask the question in another way. Are you arguing, in effect, that Congress did not intend to subtract anything from what was previously authorized by 706?
Matthew D. Roberts: --Yes. I am completely arguing that.
Stephen G. Breyer: Tell me if there was a--
Matthew D. Roberts: In fact, we know from the statute--
Stephen G. Breyer: --No, go ahead. Go ahead.
Matthew D. Roberts: --We know from the statute that it didn't intend to subtract anything. In the Findings section which it put in as part of the Act, it said that it wanted to provide additional remedies. In (a)(1), it said that the new relief was in addition to the relief as authorized, and it excluded the relief that's authorized from the new relief, and that's because the whole... what was going on is Congress wanted to provide added relief in the forms of compensatory and punitive damages. It knew that that relief would be subject to a jury determination, and there were Members of Congress and the Administration that was worried that those new damages, subject to jury awards, might be excessive, and so they wanted to cap the new relief, but there was no concern about existing relief. Nothing had been expressed that there was excessive relief then, and Congress had no desire to touch existing relief at all. It wanted to leave it alone, add something new, limit what was new. And it was correct... the courts of appeals were correct that front pay was authorized under 706(g), because it's discretionary relief of the same character as back pay and reinstatement. And like back pay--
William H. Rehnquist: It's much closer to traditional damages, front pay.
Matthew D. Roberts: --It's no closer to traditional damages than back pay. In fact, less close, because damages are traditionally retrospective. Also--
William H. Rehnquist: Well, no. Not damages for a breach that goes into the future.
Matthew D. Roberts: --Well--
William H. Rehnquist: Are you suggesting that, you know, if I am terminated before the time for my performance of services contract expires, that I can't get damages?
Matthew D. Roberts: --No, Your Honor. Under the current rule of a breach of contract, you could, but interestingly enough, if one's looking back for law versus equity and analyze back to the 18th Century, the rule then was that you couldn't get future lost wages as damages for a breach of contract because they were too speculative, so you couldn't get them at law, you couldn't get them in equity then. Congress provided for new remedies of the type that don't have a precise parallel to what was traditionally available at law and equity.
Antonin Scalia: It specifically named back pay. I mean, it seems to me it doesn't get you very far to say that front pay no more resembles equitable relief or no less resembles equitable relief than does back pay, because Congress mentions back pay in Section 706(g)(1).
Matthew D. Roberts: Yes, it does, Your Honor, but it also mentions back pay as an illustration in a statute that allows the court to order such affirmative action, including reinstatement and in a statute that also allows it to award other equitable relief.
Antonin Scalia: Well, but that may have been referring back to reinstatement or hiring of employees. That's certainly equitable relief.
Matthew D. Roberts: Yes, Your Honor. But--
Antonin Scalia: With or without back pay.
Matthew D. Roberts: --There's never been a question that the back pay under title VII is equitable relief. This Court has repeatedly characterized it as equitable relief, in the Albemarle case, in the Burke case. In Curtis v. Lothar, it took care to say that Title VII's back pay is equitable relief. And, in fact, back pay... the courts refer to back pay under the Fair Labor Standards Act as equitable relief.
Antonin Scalia: Do you think that Congress can eliminate the right to jury trial by simply denominating relief in the '64 Act as equitable relief?
Matthew D. Roberts: No, Your Honor.
Antonin Scalia: I mean, it seems like a simple remedy. We mistrust southern juries, and we're therefore going to call this legal relief, equitable relief so that the defendant doesn't get a jury.
Matthew D. Roberts: No, Your Honor. Although Congress's characterization of the relief, the Court has indicated, does count for something, but--
Anthony M. Kennedy: What happens with back pay, a) under the statute as you interpret it, and b) as a matter of practice insofar as the jury's function is concerned? Does a jury consider back pay?
Matthew D. Roberts: --Back pay is a matter for the court. There's no right to a jury trial on back pay, just as front pay is a matter for the court and there's no right to a jury trial on front pay.
Anthony M. Kennedy: As a matter of practice, do juries ever do back pay?
Matthew D. Roberts: To the extent that juries might in some cases do back pay, which I'm not specifically aware of, I would assume that they're doing that in an advisory capacity, which the court is allowed to ask the jury to do.
Anthony M. Kennedy: And do you view that as consistent with our opinion in Chauffeurs Union?
Matthew D. Roberts: Yes, Your Honor. I think that the back pay and front pay under Title VII are both restitutionary in nature and intertwined with other injunctive relief, and therefore, they are equitable remedies. It's restitutionary in nature, because they both put the... they require the employer to pay the employee the wages that the employer would have paid the employee if there had been no discrimination.
Antonin Scalia: In that sense--
William H. Rehnquist: --But that's true of damages, too. Damages are restitutionary, if that's how you define restitution.
Matthew D. Roberts: Damages would apply even in a tort case where the--
William H. Rehnquist: But in a contract case, a contract for personal services--
Matthew D. Roberts: --Yes. It's true in that case, but the additional features that are here are that it's discretionary with the court. It's not automatically available. It's not available--
William H. Rehnquist: --I don't see how that would affect the right to jury trial.
Matthew D. Roberts: --Well, Your Honor suggested in your concurring opinion in Albemarle Paper that the discretionary nature was relevant to the question of whether it's equitable relief or whether it's legal relief, and we would agree with that. Discretion is a hallmark of equity, as this Court has repeatedly noted.
David H. Souter: Even if you were to lose on that point and even if it should be determined that it was subject to a jury trial, you might very well be correct about this case as to what Congress intended to exclude from the cap by the reference to the word other. I mean, isn't that the nub of this case?
Matthew D. Roberts: That it said other relief, but it excluded all relief authorized under 706(g), not just equitable relief.
David H. Souter: It doesn't count toward the... what is it... 300,000, whatever the cap is.
Matthew D. Roberts: It is true that in (b)(2), Congress did not limit the relief that's excluded to equitable relief, and if you think that 706(g) authorizes more than... relief that's more than equitable relief, then, yes, that would be true, Your Honor.
William H. Rehnquist: Thank you, Mr. Roberts. Mr. Ripple, we'll hear from you.
Raymond M. Ripple: Mr. Chief Justice, and may it please the Court-- The issue before the Court today involves the division of responsibilities between the judge and jury under this restructured remedies program under the '91 Act, and that is the one that exists today and did exist at the time of trial. The division follows fairly conventional system. The judge retains authority over equitable matters. The jury has its powers to assess damages. A facial reading of the statutory scheme, in fact, shows that compensatory damage and, as we get to it, one of its component parts, future pecuniary losses, are subject to decision by the jury. Now, what I would like to do just briefly is step back and see where the parties agree here and really where we shouldn't differ. I listened very closely to Petitioner this morning, and I thought there was no disagreement, and maybe there isn't, on the question of what front pay is. Historically when you boil it down, the court said that front pay is future lost earnings or wages.
Ruth Bader Ginsburg: Just as back pay is past loss of earnings.
Raymond M. Ripple: That's generally true.
Ruth Bader Ginsburg: So you can't distinguish the two. I think it is an accurate characterization, is it not, that front pay is post judgment back pay? That is, back pay is past loss of earnings, front pay is future loss of earnings.
Raymond M. Ripple: As far as that goes, that's correct. There is a great difference, I believe, also between back pay and front pay, back pay being generally restitutionary, named by Congress specifically as an equitable remedy directed by Congress in, I believe it is, (a)(1) of the statute to exercise its discretion specifically on back pay. Nothing, of course, has ever been said about front pay anywhere in the statutory scheme. But what I was just going to get to was I think there is agreement between the parties as to what this front pay means, which is critical to this case, and then, in fact, petitioner in her opening brief, on page 14, concedes that, in effect, it is lost future earnings. The Government also acknowledges in their brief that, in fact, front pay is by calculation lost future earnings or wages. I believe in the Government's brief, it's footnote 12. I think there's general agreement among the parties as to what front pay means. Good starting point.
Ruth Bader Ginsburg: But it means, according to the Government, the same thing as back pay.
Raymond M. Ripple: Again, as I said before, I don't think it does exactly at all. In fact, this whole title of post judgment back pay was new to me when I saw it.
Ruth Bader Ginsburg: It's for loss of wages. One is for past loss of wages, the other is for future loss of wages. They're both for loss of wages, and if you characterize the one legal, you could characterize the other as legal. The Government tells us the difference here, why it's not strictly damages at law, is that it's discretionary with the judge. They don't have to be awarded.
Raymond M. Ripple: As to which? I'm sorry.
Ruth Bader Ginsburg: As to both, as to back pay and front pay are both discretionary with the judge.
Raymond M. Ripple: I agree that as to back pay, based on the statute, the court had discretion. I do not see that as to front pay.
Ruth Bader Ginsburg: I think that's what all the courts have said, courts of appeals have said, about front pay since they modeled it on back pay, that it was discretionary.
Raymond M. Ripple: Whether they modeled it on back pay, I think... I would take exception to that. What they said is, for whatever reason up to 1991, if you had a situation... take the hard case where equity has failed, frustrated. They can't reinstate. For whatever reasons, rule of necessity, whatever, the lower courts invented this front pay, called it front pay. If you get beyond that step, of course the courts are going to say it's within their discretion. Many of the courts--
Ruth Bader Ginsburg: Mr. Ripple, am I not right in thinking that front pay was first developed in the context of seniority systems where someone was denied the promotion, and Title VII preserves seniority systems, so that person was kept on the job at the lower level, paid at the higher rate. And the idea was to speed up getting them into the more advanced position.
Speaker: It came up with seniority systems, and it came up with training, that people could not immediately be put in their rightful place because they needed training or because there was a seniority system.
Ruth Bader Ginsburg: That was what front pay came out of, was it not?
Raymond M. Ripple: --I'm not sure that was the first case. The first one I remember was not a seniority case. I think it was the Patterson case, Fourth Circuit. I can't remember the date. I think one or the other of us have cited it in the brief, but--
Antonin Scalia: Does this really matter?
Raymond M. Ripple: --No... well, it does... if Justice Ginsburg has a question, it matters.
Ruth Bader Ginsburg: Thank you.
Raymond M. Ripple: And I'm trying to be helpful... I'm trying to be helpful, not facetious, but I'm trying to be helpful. I think the next point, though, where we do differ but we shouldn't perhaps is that future pecuniary losses, the statutory term, really, when you look at it, we don't need Webster, Bouvier, or Black. It should be inclusive of future lost earnings just by plain English. We really shouldn't disagree on that, and maybe... I was listening carefully, but maybe we don't disagree on that. Where we do part company... and this is critical to the case. Where we part company is over Section (b)(2), the exclusion to compensatory damages. Now, you remember that says, compensatory damages will not include back pay, interest on back pay, or remedies under 706(g), the old equity statute. Now, if we understand the petitioner's argument, at least in their reply brief, what they're saying is, if we go... I'm sorry. Front pay is now a legal remedy. What of this language in the exclusionary clause? And the answer is really, in our judgment, quite simple. There are a number of other monetary reliefs that are available in an equitable form other than front pay. They are... let me just give you a few examples. In promotional cases Justice Ginsburg was mentioning, very often there's a monetary sum involved. There have been cases involving equitable accounting, usually involve professional organizations such as law firms, accounting firms--
Antonin Scalia: Go back to the first one. I don't understand what you're talking about. In promotional cases--
Raymond M. Ripple: --In promotional cases--
Antonin Scalia: --there's a sum involved. Of course there is.
Raymond M. Ripple: --That's right.
Antonin Scalia: But other than back pay?
Raymond M. Ripple: In some cases, yes. It could be a going forward pay, either in lump sum or in grade.
David H. Souter: What is the difference between going forward and front pay?
John Paul Stevens: Yeah. You've got to explain why that's different--
Raymond M. Ripple: That's what I mean, going forward, front pay.
John Paul Stevens: --from front pay for me to follow the argument.
Raymond M. Ripple: Well, you can have... and this gets really to the next point, but you can have a situation where, for instance, equitable relief is granted and still have monetary relief as it relates going forward. If--
David H. Souter: That's one variety of front pay, isn't it?
Raymond M. Ripple: --Some courts have called it that. Whatever moniker you want to put on it--
David H. Souter: In other words, the reason I think it's significant is we're not here to determine this morning what the ultimate limit of front pay by a court of equity may be. We've had some disagreement about it. What we're here to determine is whether there is any species of an award that an equity court can make which is customarily called front pay that survives, and it seems to me that your answer to the question says, yeah, there's one variety that survives, and I'm using the term going forward, but it's what these other people are using by the term front pay, and that seems to me like the end of the case.
Raymond M. Ripple: --I guess I would disagree with you, Justice Souter, on one point. I think the point I was on is not bound in with the existence or nonexistence of front pay. The question is, is there any other equitable monetary sum?
David H. Souter: Right. You were saying, this is not an empty set, if you include front pay, and you've--
Raymond M. Ripple: That's right. If you pulled front pay--
David H. Souter: --given an example of why it's not an empty set, an example of what most people would call front pay, not the most extravagant example perhaps but an example.
Raymond M. Ripple: --Not necessarily. Again, the usual use of front pay is when there is no equitable relief. In a promotion case, there's usually an order.
David H. Souter: Okay. There may be cases in which we will argue. Maybe it will get to this Court as to how far front pay can go. But it doesn't seem to me that what you're saying excludes your example from what is meant by front pay.
Raymond M. Ripple: The--
Antonin Scalia: You're saying front pay is equitable, so long as it is connected to the equitable relief of a promotion.
Raymond M. Ripple: --Can be.
Antonin Scalia: But it is not equitable if it's not connected to the equitable relief.
Raymond M. Ripple: Under Tull, if it's somehow incident to or... I think the word used is adjunct to the equitable relief--
Antonin Scalia: Yes. But the other side is going to say, front pay is equitable relief if it's attached to the equitable relief of the requirement of rehiring.
Raymond M. Ripple: --Of the requirement of rehiring?
Antonin Scalia: Yes.
Raymond M. Ripple: That's possible. Let me stake out--
Antonin Scalia: So the only case in which you say it's not equitable relief is where you award front pay without any other equitable imposition upon the employer.
Raymond M. Ripple: --No, not completely. If, in fact, an injunction is entered, if, in fact, a reinstatement is ordered, and there is, for instance, a period of time, short period of time, until that slot opens up where you can put the person back in, that sum of money, whatever you call it, is probably incident to the equitable relief, and therefore can be considered as equitable rather than legal. In this case, of course, what we're dealing with is there will not be a reinstatement. Apparently she does not want to be reinstated, and apparently the judge was not going to order it, so this is a pure case of front pay or whatever we call it now in lieu of--
William H. Rehnquist: What is important here, I take it, is that... are these things excluded from compensatory damages which are capped? Of course, the way you describe front pay is something that would be so insignificant that it could never be... it would never be... rise up anywhere close to the cap. Isn't that correct?
Raymond M. Ripple: --We don't think, in our view of the case, that there will be many situations where pure front pay, let's say, front pay in lieu of reinstatement like our case, would rise up to that level. That would be, I think, rather unusual. The--
William H. Rehnquist: Well, what is the amount of the cap? Is it--
Raymond M. Ripple: --300,000.
Anthony M. Kennedy: --Well, but there are smaller employers. There's a [$] 50,000 limit, and I assume there are many jobs, say, that pay 40-, [$] 50,000 a year, and one or two years of front pay just could... front pay under your theory would completely exhaust the cap, no matter how outrageous the employer's conduct was, and then there would be no punitive damages. That's the consequence of your theory.
Raymond M. Ripple: That's also the consequence, Your Honor, of the statutory scheme--
Stephen G. Breyer: The statutory argument, as I understood it on their side, was not so much that the words other type of relief is an empty set without front pay. Rather it was that front pay had been authorized, and that's the end of it. Now, very simply, if we're to hold to the contrary, we'd have to say that in this later statute, the court... the Congress changed the meaning of old 706(g), which seems to me fanciful, or we would have to say that front pay never was authorized, and all the courts of appeals were wrong, and when we held that, our reasoning would also say, probably back pay isn't authorized either. Therefore, if we take that route, we are tearing the statute apart. And then they say, by the way, if you want to know what they thought, why don't you just look to the words of the sponsors who without any contradiction on the floor of the Senate, said, this amendment includes front pay, in those words. All right. Now, that I take it was their basic argument, and I would like to hear what's wrong with it.
Raymond M. Ripple: --I think one place to start... and please stop me, Justice Breyer, if I'm not getting to your question on that. I think one place to start is again go back and look at (b)(2) exclusions as we were doing. Where I was was the... for instance, there is the example of other monetary sums equitable in nature involving cases involving unions.
Ruth Bader Ginsburg: Cases involving--
Raymond M. Ripple: Unions. I'm sorry, Your Honor. Unions, where the union is the defendant in the case brought by the employees, where union dues have had to have been paid back to the employees, where they... monies paid in levies to the unions or whatever program they had going at the time were required to be paid back. That wouldn't be in the traditional sense of true back pay. It's a different relationship with the union, but there have been some cases on that.
Ruth Bader Ginsburg: --Is this under the NLRA, because the NLRA also has--
Raymond M. Ripple: No. No, no. This is under Title--
Ruth Bader Ginsburg: --Is it Title VI?
Raymond M. Ripple: --VI. That's right. As you know, under 706(g)--
Ruth Bader Ginsburg: Unions as well as employers can discriminate.
Raymond M. Ripple: --That's right. Employers and employment agencies would also be covered. Our case... let me answer your question, Justice Breyer, in this manner, and maybe I can satisfy it. Our case is that such... looking at front pay now, it is a monetary sum. It certainly carries the presumption, being a monetary sum, that it is a legal remedy. The question is, does it fall into exceptions to that? Our argument is, no, first, it is not incident to, especially in this case, incident to another... an equitable remedy, so it doesn't fall into the Tull exception, intertwined or incident to. Second, it's not really restitutionary in nature as back pay, this Court, I think, has recognized is basically restitutionary in nature. I think that was the Curtis--
Stephen G. Breyer: Well, my question really as the dilemma they put you... I think, are trying to put you into is, in giving that definition, are you saying that Congress changed the meaning of 706(g)? Or are you saying that always was the meaning of 706(g)? Hence, all the courts of appeals holding to the contrary were wrong. Now--
Raymond M. Ripple: --That's our ultimate--
Stephen G. Breyer: --it seems to me... all right. That's what you say. All right. Then my next question from that would be, is isn't it true that if we write those words on paper, that by writing those words, we will cast considerable doubt on back pay as well, because it will suggest that that is a legal remedy and not an equitable remedy, hence calling into play the constitutional requirement for a jury?
Raymond M. Ripple: --Answer to your last question is no.
Stephen G. Breyer: Because?
Raymond M. Ripple: Because back pay has a history in this Court and all the other courts of being traditionally an equitable remedy.
Stephen G. Breyer: But the conceptual distinction between the back pay that you're going to call equitable and the front pay that in your ideal we will write into our opinion is not equitable. The conceptual distinction is going to be what, because it's always possible that future courts will try to follow the logic of our opinion.
Raymond M. Ripple: Back pay traditionally highly restitutional in nature, equitable, restitutional. Secondly, specifically named by Congress, and that's worth something. We said so in Terry case. It is easily calculable--
Antonin Scalia: Let's go back. So it's named. So what? That shows you can get it. It doesn't show whether it's equitable or not equitable.
Raymond M. Ripple: --Front pay or back pay?
Antonin Scalia: You say one reason is back pay is equitable and front pay isn't is that back pay is named by Congress. So what?
Raymond M. Ripple: I don't think in the context of this case, whether or not back pay is implicated is really terribly important in the long run.
David H. Souter: No, but the concern is that if we suggest that, in fact, back pay shouldn't have been awarded, for the same reason that front pay shouldn't have been, then, in fact, there won't be any front pay under your theory awarded by the court, there won't be any back pay awarded by the court. And the cap will have a very different significance from the cap as it was enacted, which was supposed to be a cap that at least excluded back pay. That's why Justice Breyer said that wrecks the statute.
Raymond M. Ripple: No. I think I understand now. If you're referring... Justice Breyer perhaps referring a bit to our last argument, what I consider the equity jurisdiction argument, did the district courts ever have authority to create front pay?
Ruth Bader Ginsburg: And your answer to that was?
David H. Souter: Was no.
Raymond M. Ripple: No. Under that theory, the larger theory, no.
David H. Souter: And now his concern... is there an implication for that about back pay?
Raymond M. Ripple: No. I don't believe so.
David H. Souter: Why not?
Raymond M. Ripple: I think this Court could write the opinion that because under the historical analysis, front pay, what we call now front pay, is not incident to the granting of another equitable relief. Equity never had jurisdiction for that, at least at the time of the founding of the country.
Ruth Bader Ginsburg: Well, the founding of the country--
Anthony M. Kennedy: --The statute provides a jury trial for back pay anyway, so we don't need to worry about that. But the practical consequence of your argument is, is that the jury has to award front pay, but the judge hasn't determined whether there's going to be reinstatement or not. He doesn't know if there's basic liability. He doesn't know what the jury's findings are going to be with reference to how egregious it is on certain counts. I just don't know how your theory's going to work.
Raymond M. Ripple: I have... we have great faith in the Federal district judges, and I don't see--
Anthony M. Kennedy: Well, that's reassuring, but I just don't see how mechanically this can work under your view--
Raymond M. Ripple: --I don't think... I'm sorry, Your Honor. I don't think there's a serious practical problem here. Anyone that's tried one of these cases... there are points in a case where the judge can make the decision. Am I going to reinstate this person or not? Certainly before the prayer conference, that decision can be made. Therefore... and we would suggest these cases only be tried to jury on special interrogatories, the only way it makes sense, and the only way if you have--
Ruth Bader Ginsburg: --That might be a suggestion, but certainly it's nothing that a judge is required to do. The rules give the judge the option.
Raymond M. Ripple: --That's right. Absolutely. And one of the strengths of the Federal district judges is they have the full panoply of the rules and any... some other inherent powers--
Stephen G. Breyer: Just... the other part of their argument is just in case your answer to this part, in their view, has shown that this whole thing is very complex, what about looking to what the sponsors have done for us, what they happened to say, senator... I get two senators and on the House side, in memorandum signed by both of them, and in statements, compensatory damages does not include back pay or front pay. I mean, I can understand not using legislative history when it's ambiguous, when there are two sides. This seems to be absolutely clear, consistent with the language, without anybody saying to the contrary. So can't we at least take it as a hint as to what they were driving at?
Raymond M. Ripple: --Answer your question, first, we believe obviously you need to look at the statute first. But if you get there, if you get there, there are some stray remarks regarding--
Stephen G. Breyer: Stray remarks?
Raymond M. Ripple: --Yes. I think... not the technical term of that remark.
Stephen G. Breyer: Senate sponsors' memorandum, interpretive memorandum of Representative Edwards, as well as floor statement.
Raymond M. Ripple: The floor statements are individualized remarks. They're isolated remarks. There is also the other side of the coin.
Antonin Scalia: Did the President sign onto those floor--
Raymond M. Ripple: No.
Antonin Scalia: --The bill required his signature, didn't it?
Raymond M. Ripple: It did in 1991.
Antonin Scalia: Did he sign onto those floor statements?
Raymond M. Ripple: He did not. In fact--
Antonin Scalia: What about the House of Representatives? Were they the sponsors, these two individuals who made these statements? Were they the sponsors of the bill in the House?
Raymond M. Ripple: --In the House, no.
Antonin Scalia: Yeah, Representative Edwards did say that in the House, didn't he?
Raymond M. Ripple: He did in the House, and he was one of the sponsors, but--
John Paul Stevens: May I ask two questions?
Raymond M. Ripple: --Yes.
John Paul Stevens: I don't think that people are going to change their views on legislative history at this particular point.
Raymond M. Ripple: I didn't think so.
John Paul Stevens: First of all, was there a demand for a jury trial in this case?
Raymond M. Ripple: No, there was not.
John Paul Stevens: And, secondly, is there anything either in the statute or the legislative... you can go either way you want on this... to suggest that the purpose of (b)(2) had any purpose other than to impose a cap on the additional relief that was authorized by the statute?
Raymond M. Ripple: (b)(2)--
John Paul Stevens: To exclude--
Raymond M. Ripple: --Right.
John Paul Stevens: --Did it have any purpose except related to the cap?
Raymond M. Ripple: I don't know any legislative history that says, if you get down to legislative history, that says that it was related to the cap, the (b)(2) exclusion.
John Paul Stevens: But isn't it perfectly clear, just looking at the statute itself, the sole purpose of this is to exclude certain things from the cap?
Raymond M. Ripple: From... yes. All right. On its face, yes. It excludes it for compensatory damages. That seems to be--
John Paul Stevens: And the things that are excluded are those that were put in that had not been in the statute before.
Raymond M. Ripple: --I'm sorry. I misunderstood your first question. I think, looking at the exclusionary section, it was certainly one way to exclude certain matters, to make sure that they weren't subject to the cap. Yes, yes.
Antonin Scalia: Can I ask you this question? The case has been argued, because this is what the... your opponents have placed the stress on, on the assumption that front pay has to be equitable relief, or it wouldn't be covered under 706(g)(1). But, in fact, why can't it just be... instead of being considered equitable relief, just be considered affirmative action? That phrase, affirmative action as may be appropriate, which may include but is not limited to reinstatement or hiring of employees with or without back pay or any other equitable relief as the court deems appropriate. That last phrase, or any other equitable relief as the court deems appropriate, that was added later on. And the original phrase, affirmative action as may be appropriate, was in the National Labor Relations Act, and they copied that almost verbatim from the NLRA as I recall.
Raymond M. Ripple: That's correct.
Antonin Scalia: And under the NLRA, the Board had awarded back pay, hadn't it? And--
Raymond M. Ripple: They had. Yes, Your Honor.
Antonin Scalia: --And had awarded at least a form of front pay, hadn't they?
Raymond M. Ripple: Without calling it that, there were some--
Antonin Scalia: Without calling it that, they had done it.
Raymond M. Ripple: --Yes.
Antonin Scalia: So I don't maybe even need the equitable portion of the statute to find that what this statute seemed to do was to simply suck up what the NLRA had done and spit it out into this new statute, in which case you get back pay and front pay.
Raymond M. Ripple: I think that was the intent in '72.
Antonin Scalia: The problem with it is you will have the worst of both worlds, because in which case, there would be front pay, and both front pay and back pay would not be equitable, but would be legal relief, and you'd get a jury trial on both of them. Would you like a jury trial for back pay as well as for--
Raymond M. Ripple: Usually back pay is a practical matter in these cases. It's relatively manageable, it's understandable, it's calculable and by statute only goes back two years anyway.
Antonin Scalia: --Well, if I rely on the National Labor Relations Act language which was embodied in the original version of this statute, why don't I reach the same result that your opponents say should be reached in this case?
Raymond M. Ripple: I guess I don't understand that argument, Your Honor. I'm sorry.
Antonin Scalia: The argument is that this constitutes affirmative action as may be appropriate, whether or not it's equitable relief, because that's all that the National Labor Relations Act language said, and under that language, the NLRA awarded both back pay and front pay. And when Congress adopted that language in this statute, they expected courts to do the same thing.
Raymond M. Ripple: I don't know if I've ever seen it construed that way. It's an interesting observation. I don't think I've ever seen it construed. Usually the affirmative action--
Antonin Scalia: I try to stick to the words of the statute rather than--
Raymond M. Ripple: --I understand, Your Honor.
Antonin Scalia: --the floor statement.
Raymond M. Ripple: I understand. The... I don't think I've ever seen it construed quite that way. Usually affirmative action is more of an injunctive type relief. That's when I have seen it, but I'm... I just have not seen it played out that way.
Antonin Scalia: Well, you acknowledge the Board had done that... had granted relief of that sort, and the courts had upheld it.
Raymond M. Ripple: Back pay certainly. Yes, back pay certainly, and my memory is--
Antonin Scalia: And some forms of front pay.
Raymond M. Ripple: --Some prospective maybe incident to other more affirmative relief. Yes. There are some cases of that. Mr. Chief Justice, unless the Court has any further questions, we'll submit the matter.
William H. Rehnquist: Thank you. Thank you, Mr. Ripple. The case is submitted.