Wolrdwide People S Temple

______

DOCKET NO. CR 07-141

IN THE

SUPREME COURT

OF THE UNITED STATES

WOLRDWIDE PEOPLE’S TEMPLE,

Petitioner,

v.

LUCILLE RASMUSSEN,

Respondent.

On Writ of Certiorari

to the

United States Court of Appeals

for the Ames Circuit

______

REPLY BRIEF FOR THE PETITIONER

Counsel for Petitioner: Oral Argument

Miriam Achtenberg November 14, 2007

Chiraag Bains 7:30 PM

Elizabeth Barchas Ames Courtroom

Daniel Klaff Harvard Law School

Amy Mendenhall

Tejinder Singh

The Belva Ann Lockwood Memorial Team

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

ARGUMENT 1

I. Respondent Does Not Prove that Early Right to Sue Is Valid Under Title VII. 1

A. Respondent Does Not Demonstrate that Title VII Is Ambiguous. 1

1. Title VII’s Duty to Investigate Requires the EEOC to Do More than Issue Notice of Right to Sue. 1

2. This Court Should Not Infer Ambiguity from the Absence of an Explicit Prohibition Against Early Notice of Right to Sue. 2

3. Respondent’s Legislative History Is Non-responsive. 3

B. Even if Title VII Is Ambiguous, Respondent Does Not Prove that Early Notice of Right to Sue Is Valid. 4

1. This Court’s Precedents Foreclose Respondent’s “Force of Law” Argument. 4

2. The Fact that the Regulation Serves One of Title VII’s Purposes Does Not Make It Reasonable Under Chevron. 5

3. Respondent Misrepresents and Misapplies Skidmore. 6

C. This Court Should Not Grant Respondent an Equitable Waiver. 7

II. The Ministerial Exception Bars Respondent’s Claims. 8

A. Respondent’s Argument Mischaracterizes the First Amendment. 8

1. Secular Review of Ministerial Employment Raises Grave Constitutional Concerns. 8

2. Respondent’s Pervasively Religious Duties Make Her a Ministerial Employee. 10

3. Respondent’s Concessions Prove the Need for Deference in this Case. 11

B. The Temple Terminated Respondent for a Religious Reason. 12

1. The Temple’s Religious Justification Is Not Premature Under Rule 12(b)(6). 12

2. Respondent’s Proposed Pretext Analysis Violates the First Amendment. 13

C. The Ministerial Exception Bars Respondent’s Hostile Work Environment Claim. 14

CONCLUSION 14

APPENDIX A1

TABLE OF AUTHORITIES

Cases

Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) 6

Bell v. Presbyterian Church (U.S.A.), 126 F.3d 328 (4th Cir. 1997) 10

Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1990) 14

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) 9, 10

Boyd v. Harding Acad. of Memphis, 88 F.3d 410 (6th Cir. 1996) 13

Brown v. Gardner, 513 U.S. 115 (1994) 2

Bryce v. Episcopal Church, 121 F. Supp. 2d 1327 (D. Colo. 2000) 10, 12

Canadian St. Regis Band of Mohawk Indians v. New York, 388 F. Supp. 2d 25 (N.D.N.Y. 2005) 8

Cheney R.R. Co. v. ICC, 902 F.2d 66 (D.C. Cir. 1990) 3

Christensen v. Harris County, 529 U.S. 576 (2000) 3

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) 4

Clapper v. Chesapeake Conference of Seventh-Day Adventists, No. 97-2648, 1998 WL 904528 (4th Cir. Dec. 29, 1998) 9, 11

Dickinson v. United States, 346 U.S. 389 (1953) 11

EEOC v. Roman Catholic Diocese, 213 F.3d 795 (4th Cir. 2000) 10

Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004) 2

Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976) 4

Gooley v. Mobil Oil Corp., 851 F.2d 513 (1st Cir. 1988) 13

Hishon v. King & Spalding, 467 U.S. 69 (1984) 9

Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986) 9

Indep. Ins. Agents of Am., Inc v. Hawke, 211 F.3d 638 (D.C. Cir. 2000) 3

Jones v. Bock, 127 S. Ct. 910 (2007) 12

Martini v. Fed. Nat. Mortgage Ass’n, 178 F.3d 1336 (D.C. Cir. 1999) 3

Massachusetts v. EPA, 127 S. Ct. 1438 (2007) 2

Mourning v. Family Pub’n Serv., Inc., 411 U.S. 356 (1973) 3

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) 6

Nevius v. Afr. Inland Mission Int’l, No. 06-01965, 2007 WL 2781907 (D.D.C. Sept. 24, 2007) 12, 13

New York v. Cathedral Acad., 434 U.S. 125 (1997) 11

Patsakis v. Greek Orthodox Archdiocese of Am., 339 F. Supp. 2d 689 (W.D. Pa. 2004) 8

Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir. 1982) 7

Ragsdale v. Wolverview World Wide, Inc., 535 U.S. 81 (2002) 3

Rapanos v. United States, 126 S. Ct. 2208 (2006) 5

Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985) 9

Ross v. Metro. Church of God, 471 F. Supp. 2d 1306 (N.D. Ga. 2007) 12

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 6

Stately v. Indian Cmty. Sch. of Milwaukee, Inc., 351 F. Supp. 2d 858 (E.D. Wis. 2004) 10

Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) 11, 12

United States v. Mead Corp., 533 U.S. 218 (2001) 5

Werft v. Desert Sw. Annual Conference of United Methodist Church, 377 F.3d 1099 (9th Cir. 2004) 12

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) 5

Zipes v. Trans World Airlines, 455 U.S. 385 (1982) 7

Statutes

42 U.S.C. § 2000e-12 (2000) 4

42 U.S.C. § 2000e-5 (2000) 1, 7

Administrative Procedure Act § 4(b), 5 U.S.C. § 553(b) (2000) 4

Rules

Fed. R. Civ. P. 12(h)(3) 8

Other Authorities

Black’s Law Dictionary (8th ed. 2004) 2

Richard J. Pierce, Administrative Law Treatise (4th ed. 2002) 4

i

ARGUMENT

Respondent asks this Court to reshape the American legal landscape by subordinating congressional will to agency convenience and church autonomy to secular judgments. Flouting administrative law precedent, she argues that Congress can constrain agencies only through express prohibitions. She then parts company with eight federal circuits, demanding that churches defend their ministerial appointments before lay tribunals. Throughout her brief, Respondent distorts authority and eschews reasoned analysis in favor of conclusory assertions. This Court should dismiss her suit.

I.  Respondent Does Not Prove that Early Right to Sue Is Valid Under Title VII.

According to Respondent, the EEOC may adopt any interpretation that Title VII does not explicitly prohibit, provided the agency references some statutory purpose for its action. Respondent places an unreasonable and unprecedented burden on Congress, conveniently ushering her case into federal court in the process. This Court should reject her self-serving vision of administrative law and find that Title VII clearly forecloses the EEOC’s early notice of right to sue (“NRTS”) regulation.

A.  Respondent Does Not Demonstrate that Title VII Is Ambiguous.

1.  Title VII’s Duty to Investigate Requires the EEOC to Do More than Issue NRTS.

Respondent alleges that the term “investigation” is ambiguous because it “could be simply ‘an official inquiry’” into whether a charge is “too time-consuming” to process. (Respt.’s Br. 15.) Title VII describes an investigation as an inquiry into the merits of a charge, not into the EEOC’s caseload. See 42 U.S.C. § 2000e-5(b) (2000). Respondent’s definition ignores the statute, wrenching the term “investigation” from its context.

See Brown v. Gardner, 513 U.S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of statutory context.”).

In the same breath that Respondent accuses Petitioner of “cherry-picking” a definition of “investigation,” she defines the wrong word (“investigate”), chooses the wrong definition of the word (the intransitive), and excludes the definition’s instructive example. (Respt.’s

Br. 15.) By using the intransitive definition of “investigate,” Respondent obscures Title VII’s requirement that the EEOC investigate something in particular: charges. Respondent also misleadingly excerpts her definition, which actually reads, “[t]o make an official inquiry <after the judge dismissed the case, the police refused to investigate further>.” Black’s Law Dictionary 844 (8th ed. 2004). If the police deemed a murder too time-consuming to process, no one would assert they had “investigated” the crime.

2.  This Court Should Not Infer Ambiguity from the Absence of an Explicit Prohibition Against Early NRTS.

Substituting an adjective for analysis, Respondent asserts that a statute must be “absolutely” clear to preclude an agency’s regulation. (Respt.’s Br. 12.) This Court’s recent cases demonstrate that Title VII’s prohibition of early NRTS need not be explicit in order to be clear. Cf., e.g., Massachusetts v. EPA, 127 S. Ct. 1438, 1462 (2007) (finding “pollutants” to clearly include greenhouse gases); Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004) (finding discrimination because of “age” to clearly mean discrimination against older employees). Respondent supplements her assertion with a string of conclusory statements, demonstrating only that the statute does not explicitly prohibit early NRTS. (Respt.’s

Br. 13-14.)

Respondent dismisses expressio unius as unhelpful in administrative law. (Respt.’s Br. 14.) Her cases are inapposite. This Court distinguished Mourning v. Family Publication Service, Inc., 411 U.S. 356 (1973), from cases like this one, in which the agency’s narrow grant of authority demonstrates Congress’s refusal to leave the statute open to interpretation. See Ragsdale v. Wolverview World Wide, Inc., 535 U.S. 81, 92 (2002). Respondent cites Cheney Railroad Co. v. ICC, which rejected expressio unius as a tool to compare two sections of a statute. 902 F.2d 66, 68 (D.C. Cir. 1990). However, Petitioner applies the canon to a single section of Title VII, arguing that by specifying a “mode” for resolving every charge, the statute negates any other mode. (Petr.’s Br. 11); see Christensen v. Harris County, 529 U.S. 576, 583 (2000); Indep. Ins. Agents of Am., Inc v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000) (finding similar uses of the canon reliable in the administrative law context). Finally, Respondent cites Martini v. Federal National Mortgage Ass’n,

178 F.3d 1336 (D.C. Cir. 1999), but Christensen and Hawke, decided a year later, offer superior articulations of the canon’s relevance.

3.  Respondent’s Legislative History Is Non-responsive.

Respondent’s observation that the 180-day provision caps the EEOC’s exclusive jurisdiction (Respt.’s Br. 16) does not undermine Petitioner’s claim that the provision prohibits early NRTS. Logically, the provision can do both, and the best evidence of Congress’s intent proves that it does. (Petr.’s Br. 8-15.) Respondent emphasizes prompt remedies but cannot explain why 180 days is not “prompt” (Respt.’s Br. 16), especially considering multi-year delays in federal court.

B.  Even if Title VII Is Ambiguous, Respondent Does Not Prove that Early NRTS Is Valid.

1.  This Court’s Precedents Foreclose Respondent’s “Force of Law” Argument.

If it reaches the deference question, this Court must classify Regulation 1601.28(a)(2) along two axes to determine whether it has the force of law. Every regulation is either substantive or procedural and either interpretive or legislative. 1 Richard J. Pierce, Administrative Law Treatise §§ 6.4-6.5 (4th ed. 2002). Conceding that only substantive regulations have the force of law, Respondent asks this Court to embrace the paradox that 1601.28(a)(2) is simultaneously substantive and procedural.[1] (Respt.’s Br. 9.) Every relevant authority distinguishes substantive and procedural regulations because they perform different functions: substantive rules target primary behavior while procedural rules address interactions within the agency’s walls. Administrative Procedure Act § 4(b), 5 U.S.C.

§ 553(b) (2000); see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 (1979).

Respondent further muddles the inquiry by alleging that because 1601.28(a)(2) is not interpretive, it must be substantive. (Respt.’s Br. 9-10.) The fact that the regulation is not interpretive only proves that it is legislative — that is, promulgated pursuant to delegated authority. But not all legislative regulations have the force of law. Procedural legislative regulations lack such force because they do not affect primary behavior. (Petr.’s Br. 17-18.)

Respondent’s observation that courts have historically not applied Skidmore is irrelevant. (Respt.’s Br. 11-12.) This Court recently changed the inquiry by placing dispositive weight on the force of law. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

2.  The Fact that the Regulation Serves One of Title VII’s Purposes Does Not Make It Reasonable Under Chevron.

Respondent asserts that 1601.28(a)(2) is reasonable because it “reasonably considers Congress’s policy goals.” (Respt.’s Br. 17.) Her tautological standard is limitless: Title VII has multiple competing purposes, each vague enough to support almost any regulation. This Court has rejected Respondent’s emphasis on purposes. When a regulation renders “carefully designed restrictions on [agency] discretion utterly nugatory,” consistency with

the statute’s purposes does not make it reasonable. Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 484 (2001); see Rapanos v. United States, 126 S. Ct. 2208, 2232 (2006) (plurality opinion) (noting that “no law pursues its purposes at all costs” and “the textual limitations upon a law’s scope are no less a part of its ‘purpose’ than its substantive authorizations”). Even if Title VII is “in some respects ambiguous,” the “scope of that ambiguity . . . does not conceivably extend” to whether the EEOC may satisfy its command to investigate charges by issuing NRTS based on mere probability of delay. Rapanos,

126 S. Ct. at 2232; (Petr.’s Br. 23).

If this Court evaluates reasonableness by reference to the statute’s purposes, Respondent still fails to demonstrate that the regulation upholds those purposes. Because 1601.28(a)(2) allows the EEOC to shirk its duty whenever the agency believes it probably will not reach a case, the regulation encourages administrative dalliance by facilitating overuse of early NRTS. Respondent does not contest the evidence that the EEOC often inappropriately issues early NRTS, elevating its own convenience above the statute’s goals. (Petr.’s Br. 20-23.) Such disregard for the statute’s commands makes the regulation unreasonable.

Respondent alleges that 1601.28(a)(2) is reasonable because Congress silently acquiesced in it.[2] (Respt.’s Br. 20.) Congressional silence provides, at best, weak evidence of legislative intent. (Petr.’s Br. 13 n.1.) Respondent’s cited case agrees. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 533-34 (1982) (“Congress’ failure to disapprove . . . does not necessarily demonstrate that it considered those regulations valid and consistent with the legislative intent.”).

3.  Respondent Misrepresents and Misapplies Skidmore.

Respondent misquotes Skidmore v. Swift Co., which bases a regulation’s weight on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” 323 U.S. 134, 140 (1944). Respondent omits the final catch-all element, converting this Court’s open-ended inquiry into a closed, three-factor test. (Respt.’s Br. 21) (“An administrative regulation is upheld under Skidmore when ‘the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements . . . give it power to persuade.’”).