Table of Contents

I. The district court correctly ruled that the plaintiff’s ADA claim is not governed by 42 U.S.C. § 1988(a). 5

II. The district court erred in ruling that Kamen required it to apply Arkansas’ survival statute to the plaintiff’s ADA claim. 10

A. Under the traditional federal-common-law rule, Guenther’s ADA claim survived his death because the ADA is a remedial statute. 11

B. The district court erred in ruling that under Kamen the plaintiff’s ADA claim should be governed by state law. 15

1. Kamen does not require application of state law here. 15

2. Post-Kamen Supreme Court decisions have not altered Kamen’s focus on whether the issue at stake has traditionally been governed by state law. 21

Conclusion 27

Certificate of Compliance with Rule 32 28

Certificate of Compliance with Local Rule 28A(h)(2) 28

Certificate of Service 29

Table of Authorities

Page(s)

Cases

A.H. v. St. Louis County, Mo., No. 4:14-cv-2069, 2015 WL 4426234 (E.D. Mo. July 17, 2015)......................................................................................... 11

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).............................. 14

American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011)....... 24

Arnold v. United Parcel Service, Inc., 136 F.3d 854 (1st Cir. 1998)..... 12

Atherton v. Federal Deposit Insurance Corp., 519 U.S.
213 (1997)........................................................................................ passim

Burks v. Lasker, 441 U.S. 471 (1979)....................................................... 16

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)...... 19, 20, 24

Cardella v. CVS Caremark Corp., No. 3:08-cv-1656, 2010 WL 1141393 (N.D. Tex. Mar. 25, 2010).................................................................................. 7

Carlson v. Green, 446 U.S. 14 (1980)........................................................ 10

Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) 20

Columbia Gas Transmission Corp. v. Exclusive Natural Gas Storage Easement, 962 F.2d 1192 (6th Cir. 1992).............................................................. 18

De Jesus v. LTT Card Services, Inc., 474 F.3d 16 (1st Cir. 2007)......... 26

Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846 (7th Cir. 2002)...... 8

EEOC v. Liberty Trucking Co., 695 F.2d 1038 (7th Cir. 1982)............ 19

EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974) 26

EEOC v. Northern Star Hospitality, Inc., 777 F.3d 898 (7th Cir. 2015) 26

Estwick v. U.S. Air Shuttle, 950 F. Supp. 493 (E.D.N.Y. 1996)............ 13

Faragher v. City of Boca Raton, 524 U.S. 775 (1998)............................ 20

Fleming v. U.S. Postal Service AMF O’Hare, 27 F.3d 259 (7th Cir. 1994) 7

Hager v. First Virginia Banks, Inc., No. 7:01-cv-53, 2002 WL 57249 (W.D. Va. Jan. 10, 2002)......................................................................................... 13

Hanson v. Atlantic Research Corp., No. 4:02-cv-301, 2003 WL 430484 (E.D. Ark. Feb. 14, 2003)................................................................................. 11

James v. Home Construction Co., 621 F.2d 727 (5th Cir. 1980).......... 12

Kamen v. Kemper Financial Services, Inc., 500 U.S. 90 (1991)..... passim

Kettner v. Compass Group USA, Inc., 570 F. Supp. 2d 1121 (D. Minn. 2008)........................................................................................................... passim

Kilgo v. Bowman Transportation, Inc., 789 F.2d 859 (11th Cir. 1986) 12

Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App’x 37 (2d Cir. 2015)......................................................................................................... 18

Lopez v. Regents of University of California, 5 F. Supp. 3d 1106 (N.D. Cal. 2013).............................................................................................................. 6, 10

Estate of Maakestad v. Mayo Clinic Arizona, No. 04-cv-2183, 2006 WL 2307417 (D. Ariz. Aug. 9, 2006).............................................................................. 7

Moor v. County of Alameda, 411 U.S. 693 (1973)..................................... 6

O’Melveny & Myers v. Federal Deposit Insurance Corp.,
512 U.S. 79 (1994).......................................................................... passim

Prince v. Kids Ark Learning Center, LLC, 622 F.3d 992 (8th Cir. 2010) 2, 26

Rifkin v. Bear Stearns & Co., 248 F.3d 628 (7th Cir. 2001)....... 2, 18–19

Robertson v. Wegmann, 436 U.S. 584 (1978)........................................ 5, 6

Rosenblum v. Colorado Department of Health, 878 F. Supp. 1404 (D. Colo. 1994)........................................................................................................... 6

Schreiber v. Sharpless, 110 U.S. 76 (1884).............................................. 11

Small v. American Telephone & Telegraph Co., 759 F. Supp. 1427 (W.D. Mo. 1991)........................................................................................................... 7

Smith v. Department of Human Services, 876 F.2d 832 (10th Cir. 1989).. 12

Estate of Stoick v. McCorvey, No. 10-cv-1030, 2011 WL 3419939 (D. Minn. July 29, 2011).................................................................................................. 11

Strougo v. Bassini, 282 F.3d 162 (2d Cir. 2002)..................................... 18

Teed v. Thomas & Betts Power Solutions, L.L.C., 711 F.3d 763 (7th Cir. 2013)................................................................................................................... 26

United States v. Morant, 843 F. Supp. 1092 (E.D. La. 1994)................. 7

United States v. NEC Corp., 11 F.3d 136 (11th Cir. 1993)................... 11

Walters v. Metropolitan Educational Enterprises, Inc.,
519 U.S. 202 (1997)......................................................................... 20, 23

Watt v. GMAC Mortgage Corp., 457 F.3d 781 (8th Cir. 2006)................ 8

Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007)............................... 24

Williams v. Bradshaw, 459 F.3d 846 (8th Cir. 2006).......................... 5–6

Wojewski v. Rapid City Regional Hospital, Inc., 450 F.3d 338 (8th Cir. 2006)................................................................................................................... 26

Zatuchni v. Secretary of Health & Human Services, 516 F.3d 1312 (Fed. Cir. 2008)......................................................................................................... 11

Statutes and Rules

42 U.S.C. § 1981............................................................................................ 6

42 U.S.C. § 1983............................................................................................ 6

42 U.S.C. § 1988........................................................................................ 8, 9

42 U.S.C. § 1988(a)............................................................................. passim

42 U.S.C. § 1988(b)................................................................................... 8, 9

42 U.S.C. § 1988(c)........................................................................................ 9

Age Discrimination in Employment Act.................................................. 12

Americans with Disabilities Act, 42 U.S.C. §§ 12101–17............. passim

.... 42 U.S.C. § 12101(b)........................................................................ 14, 19

Arkansas Civil Rights Act............................................................................ 2

Title VI of the Civil Rights Act of 1964...................................................... 9

Title VII of the Civil Rights Act of 1964.......................................... passim

Employee Retirement Income Security Act........................................ 8, 25

Fair Labor Standards Act.......................................................................... 18

False Claims Act......................................................................................... 11

Family Medical Leave Act........................................................................... 8

Federal Rule of Appellate Procedure 29.................................................... 1

Investment Company Act.................................................................... 16–18

Public Law No. 96-48................................................................................... 9

Public Law No. 102-166............................................................................... 9

Public Law No. 103-141............................................................................... 9

Public Law No. 103-322............................................................................... 9

Public Law No. 106-274............................................................................... 9

Rehabilitation Act......................................................................................... 7

Revised Statutes, Titles 13, 24, and 70................................................. 5, 6

Other Authorities

Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 Northwestern University Law Review 585 (2006)................ 24–25

Wendy B. Davis, De Facto Merger, Federal Common Law, and Erie: Constitutional Issues in Successor Liability, 2008 Columbia Business Law Review 529............................................................................................. 25

Statement of Interest

Congress directed the Equal Employment Opportunity Commission to enforce the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–17, as amended, and other federal laws prohibiting employment discrimination. The Commission can sue to enforce the ADA, but since its resources are limited, the vast majority of ADA lawsuits are brought by employees and applicants acting as private attorneys general. Effective enforcement of the ADA thus requires that courts process those private ADA actions properly and apply the correct legal standards. The district court here applied the wrong legal standard and improperly dismissed the plaintiff’s ADA lawsuit. Accordingly, pursuant to Federal Rule of Appellate Procedure 29, the Commission offers its views.

Statement of the Issues

1. Did the district court correctly rule that the plaintiff’s ADA claim is not governed by 42 U.S.C. § 1988(a)? Kettner v. Compass Grp. USA, Inc., 570 F. Supp. 2d 1121, 1126–32 (D. Minn. 2008).

2. Did the district court err in ruling that Kamen v. Kemper Financial Services, Inc., 500 U.S. 90 (1991), required it to apply Arkansas’ claim-survival statute to the plaintiff’s ADA claim? Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992, 993–95 (8th Cir. 2010); Rifkin v. Bear Stearns & Co., 248 F.3d 628, 632 (7th Cir. 2001).

Statement of the Case

Sammie John Guenther worked as a construction superintendent for Griffin Construction Company starting in 2008. In 2012 he was diagnosed with prostate cancer, was granted a three-week leave for treatment, and then returned to work. In July 2013, Guenther learned he had metastatic cancer and asked for a one-month leave for radiation therapy. During that leave Griffin fired him and terminated his life insurance policy.

Guenther filed a charge in September 2013, but then died in May 2014. His estate received a right-to-sue letter from the Commission in May 2015 and sued in August 2015, alleging disability discrimination in violation of the ADA and the Arkansas Civil Rights Act. The defendant moved to dismiss, contending that under Arkansas’ claim-survival statute neither of the estate’s claims survived Guenther’s death.

In deciding whether federal or state law governs the survival of Guenther’s ADA claim, the district court began by acknowledging that some courts have ruled that this choice-of-law issue is governed by 42 U.S.C. § 1988(a), requiring the application of state law. The district court disagreed, because § 1988(a) specifies which statutes it governs, and the ADA is not among them. R-26 at 6. But the court nevertheless declined to apply “the traditional federal common law rule,” which states that claims that are primarily remedial in nature survive while those that are primarily punitive do not. Instead, the court held that while federal common law applies, Kamen v. Kemper Financial Services, Inc., 500 U.S. 90 (1991), requires that the content of that federal common law be determined by adopting the relevant state law—here, the Arkansas tort-survival statute. R-25 at 8–13. Applying that statute, the court ruled that Guenther’s claims did not survive his death. Id. at 13–19. The court accordingly dismissed the case.

Summary of Argument

The district court erred in ruling that Guenther’s ADA claim is governed by Arkansas’ claim-survival statute rather than by the traditional federal-common-law rule. The first issue is how this choice-of-law question should be decided. Some courts have ruled or assumed that 42 U.S.C. § 1988(a) applies to ADA claims, and under § 1988(a) state law governs. The district court properly rejected that approach because § 1988(a) applies only to those statutes it identifies, and the ADA is not one of those statutes.

However, while the court correctly concluded that federal common law rather than § 1988(a) governs the question of ADA claim survival, it erred in determining the content of that federal common law. The district court ruled that Kamen requires the incorporation of the state claim-survival statute into federal common law. The district court misinterpreted Kamen, which does not require such incorporation here. The district court instead should have applied the traditional federal-common-law rule, and under that rule Guenther’s ADA claim survived his death, because his claim is remedial, not punitive.

Argument

I. The district court correctly ruled that the plaintiff’s ADA claim is not governed by 42 U.S.C. § 1988(a).

When § 1988(a) governs a claim and the federal law that created the claim is “deficient,” (i.e., when it does not resolve the particular issue that has arisen), state law governs unless the state rule is inconsistent with federal law.[1] Robertson v. Wegmann, 436 U.S. 584, 588–89 (1978) (under § 1988(a), Alabama’s claim-survival law governed whether plaintiff’s § 1983 claim survived his death); Williams v. Bradshaw, 459 F.3d 846, 848 (8th Cir. 2006) (under § 1988(a), state law governs who can bring a § 1983 wrongful-death action on a decedent’s behalf). But by its terms, § 1988(a) applies to only certain federal statutes: the statutes that were codified in 1875 in “titles 13, 24, and 70 of the Revised Statutes.” 42 U.S.C. § 1988(a). The Reconstruction Era civil rights statutes (e.g., 42 U.S.C. §§ 1981 and 1983) were codified in Title 24 of the Revised Statutes, so § 1988(a) governs claims brought under those statutes. Robertson, 436 U.S. at 588 (§ 1988(a) governs claims under § 1983); Lopez v. Regents of Univ. of Cal., 5 F. Supp. 3d 1106, 1116-17 (N.D. Cal. 2013) (identifying civil rights statutes included in Title 24 of the Revised Statutes; citing “References in Text” following 42 U.S.C. § 1988(a)); Kettner v. Compass Grp. USA, Inc., 570 F. Supp. 2d 1121, 1127–28 (D. Minn. 2008) (same). Indeed, Congress originally enacted § 1988(a) in 1866 as part of the Reconstruction Era civil rights laws. Moor v. County of Alameda, 411 U.S. 693, 704–05 & n.19 (1973).

Some courts have ruled or assumed that since § 1988(a) governs the litigation of civil rights claims brought under § 1983, it also governs the litigation of civil rights claims brought under the ADA and Title VII. See, e.g., Rosenblum v. Colo. Dep’t of Health, 878 F. Supp. 1404, 1408–09 (D. Colo. 1994) (§ 1988(a) requires applying state law to ADA claim); United States v. Morant, 843 F. Supp. 1092, 1095 (E.D. La. 1994) (same); Small v. Am. Tel. & Tel. Co., 759 F. Supp. 1427, 1428 (W.D. Mo. 1991) (§ 1988(a) requires applying state law to Title VII claim). These decisions are incorrect. Because § 1988(a) specifies explicitly which federal statutes it affects, it does not govern the litigation of claims brought under other federal statutes, like the ADA and Title VII. See, e.g., Fleming v. U.S. Postal Serv. AMF O’Hare, 27 F.3d 259, 262 (7th Cir. 1994) (Title VII claims and Rehabilitation Act claims “are not affected by 42 U.S.C. § 1988(a)”); Estate of Maakestad v. Mayo Clinic Ariz., No. 04-cv-2183, 2006 WL 2307417, at *1 (D. Ariz. Aug. 9, 2006) (“By its very language, § 1988(a) does not apply to Title VII. Section 1988(a) makes explicit those titles to which it applies, and Title VII is not among them.”) (citation omitted); Kettner, 570 F. Supp. 2d at 1126–32 (§ 1988(a) does not apply to the ADA, so the survival of ADA claims is governed by federal common law); cf. Cardella v. CVS Caremark Corp., No. 3:08-cv-1656, 2010 WL 1141393, at *1 & n.7 (N.D. Tex. Mar. 25, 2010) (district court believed itself bound by Fifth Circuit rule requiring application of state law under § 1988(a), but questioned that rule: “In this Court’s view, [§ 1988(a)] does not apply to [plaintiff’s ADA, ERISA, and FMLA] claims, because none of his claims arise under the specifically enumerated laws listed therein.”); cf. Watt v. GMAC Mortg. Corp., 457 F.3d 781, 783 (8th Cir. 2006) (“A standard axiom of statutory interpretation is expressio unius est exclusio alterius, or the expression of one thing excludes others not expressed.”).

Griffin may argue that § 1988(a) shows Congress’s intent to apply its choice-of-law provision generally to all civil rights statutes, including the modern employment-discrimination statutes, even though Congress has never amended § 1988(a) to mention those more recent laws. But § 1988(a) cannot be construed in isolation, without comparing it to the other subsections of § 1988. See Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 856 (7th Cir. 2002) (“ʻ[E]ach part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one section to be construed.’”) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 46:05 (6th ed. 2000)).

Congress has amended § 1988 several times. In 1976 it added the attorney-fee provision that is now codified as § 1988(b). That original attorney-fee provision applied by its terms to a larger list of statutes than the section’s choice-of-law provision did. For example, Congress specified that the attorney-fee provision applied to cases brought under Title VI of the Civil Rights Act of 1964. Pub. L. No. 94-559, § 2. Starting in 1980 and continuing through 2000, Congress amended § 1988 six more times; five of those amendments changed the list of laws to which the attorney-fee provision applied.[2] Similarly, Congress amended § 1988 in 1991 by adding § 1988(c), which applies to a different set of statutes than either § 1988(a) or § 1988(b). Pub. L. No. 102-166, § 113(a). Thus Congress has paid close attention to § 1988 and been very clear about specifying the laws to which each subsection applies. And at no time since 1964 has Congress amended the list of laws to which that section’s choice-of-law provision applies.

It makes no sense to argue that Congress spent so much effort specifying the laws to which § 1988(b) applies but did not want the courts to take seriously the list of statutes to which § 1988(a) applies. If Congress had wanted the courts to apply § 1988(a)’s choice-of-law provision to the ADA (or Title VII), it could and would have amended § 1988(a) to say that. See Lopez, 5 F. Supp. 3d at 1119; Kettner, 570 F. Supp. 2d at 1131.

II. The district court erred in ruling that Kamen required it to apply Arkansas’ survival statute to the plaintiff’s ADA claim.

The district court ruled that federal common law governs the survival of Guenther’s ADA claim, but that under Kamen the content of that federal common law should be determined by adopting Arkansas’ claim-survival statute. R-25 at 5–6 (“[T]he Court . . . finds that Arkansas state law informs the content of federal common law on this issue.”), 10. The district court erred in interpreting Kamen. Kamen does not require the adoption of state law to govern an ADA claim. Instead, the district court should have applied the traditional federal-common-law rule governing survival: that remedial claims survive, while penal or punitive claims do not. See Carlson v. Green, 446 U.S. 14, 23–24 (1980) (in resolving survival of Bivens claim, Court rejected defendant’s request to apply Indiana’s survivorship statute and held that “only a uniform federal rule of survivorship is compatible with the [statutory] goal”).[3]

A. Under the traditional federal-common-law rule, Guenther’s ADA claim survived his death because the ADA is a remedial statute.

The district court should have applied the traditional federal-common-law rule governing survivability rather than adopting Arkansas’ statute. Under that rule, claims for remedial relief survive, but claims for penal or punitive relief do not. Schreiber v. Sharpless, 110 U.S. 76, 80 (1884) (“At common law, actions on penal statutes do not survive . . . .”); United States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 1993) (“[R]esolution of the survivability issue depends on whether the recovery is deemed ʻremedial’ or ʻpenal.’”); Smith v. Dep’t of Human Servs., 876 F.2d 832, 834–35 (10th Cir. 1989) (“The general rule under the federal common law is that an action for a penalty does not survive the death of the plaintiff.”). Courts applying this rule thus look to the nature of the statute creating the claim and the nature of the relief the plaintiff is seeking. See, e.g., Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 875–76 (11th Cir. 1986) (if federal law governs, applicant’s Title VII claim survived his death because Title VII is a remedial statute); Smith, 876 F.2d at 837 (plaintiff’s ADEA claim sought primarily liquidated damages, which are penal, so it did not survive); James v. Home Constr. Co., 621 F.2d 727, 729–30 (5th Cir. 1980) (victim’s Truth in Lending Act claim was remedial and therefore survived his death).

The ADA is primarily a remedial statute. See, e.g., Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998) (“The ADA is a ʻbroad remedial statute.’”) (quoting Penny v. United Parcel Serv., 128 F.3d 408, 414 (6th Cir. 1997)). Moreover, Guenther is seeking primarily remedial relief in the form of compensatory damages, back and front pay, and attorney fees. Accordingly, pursuant to the traditional federal-common-law rule, Guenther’s ADA claim survived his death. See, e.g., Kettner, 570 F. Supp. 2d at 1133–34 (plaintiff’s ADA claim, because it is remedial, survived his death); Hager v. First Va. Banks, Inc., No. 7:01-cv-53, 2002 WL 57249, at *3, n.2 (W.D. Va. Jan. 10, 2002) (“[T]he ADA is a remedial statute such that a cause of action brought under the ADA survives the death of the plaintiff.”); Estwick v. U.S. Air Shuttle, 950 F. Supp. 493, 498 (E.D.N.Y. 1996) (ADA and Title VII are remedial statutes, so plaintiff’s claims under those statutes survived his death).[4]

This traditional federal claim-survival rule furthers Congress’s purposes in the ADA to provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “clear, strong, consistent, enforceable standards” enforced by “the Federal Government.” 42 U.S.C. § 12101(b). Relief should ordinarily be awarded for ADA violations just as relief should ordinarily be awarded for Title VII violations. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415–22 (1975); id. at 421 (“[G]iven a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.”).

This presumption favoring relief should apply even when the victim has died. Congress’s purpose of enforcing strong, consistent, national standards for eliminating discrimination against persons with disabilities would not be furthered by allowing employers to escape liability in states whose claim-survival statutes would not permit survival of ADA claims. 42 U.S.C. § 12101(b).

B. The district court erred in ruling that under Kamen the plaintiff’s ADA claim should be governed by state law.

The district court rejected the traditional rule for the survival of federal claims, and ruled that it was instead bound by Kamen v. Kemper Financial Services, 500 U.S. 90 (1991), to apply Arkansas’ claim-survival statute. R-25 at 8–13. Since enforcement of the ADA is not an area of the law traditionally governed by state law, the district court erred in ruling that the Arkansas statute should govern here.

1. Kamen does not require application of state law here.

Kamen was a shareholder derivative action in which the Court

reaffirm[ed its] basic teaching [that] where a gap in the federal securities laws must be bridged by a rule that bears on the allocation of governing powers within the corporation, federal courts should incorporate state law into federal common law unless the particular state law in question is inconsistent with the policies underlying the federal statute.

500 U.S. at 108 (first emphasis added). As the Kamen Court explained, equity courts created shareholder derivative actions but required plaintiffs to make a demand on the corporation’s board of directors before suing. 500 U.S. at 95–96. Courts sometimes excuse that requirement if the demand would have been futile. Kamen addressed whether federal courts resolving shareholder derivative actions raising claims under the Investment Company Act should apply state law to assess futility or create a uniform federal rule.

Kamen relied heavily on the Court’s earlier decision in Burks v. Lasker, 441 U.S. 471 (1979), another shareholder derivative action, which addressed the law that governs when independent directors can discontinue such actions. Burks pointed out that corporations are creatures of state law, and the powers of directors are accordingly controlled by state law. Id. at 477–78. So even though the plaintiffs in Burks were alleging violations of the federal Investment Company Act, the Supreme Court held that state law should have been applied to determine whether the independent directors had the authority to discontinue the action. Id. at 486 (“[F]ederal courts should apply state law governing the authority of independent directors to discontinue derivative suits to the extent such law is consistent with the policies of the [federal statutes that gave rise to the plaintiff’s claims].”). In Kamen, the Court ruled that the issue it was focusing on—when the demand requirement is excused as futile—is also a question of corporation law and therefore, under Burks, governed by state law. 500 U.S. at 101 (“[T]he demand requirement comes within the purview of Burks’ presumption of state-law incorporation.”)

More broadly, Kamen established the following analytical scheme: First, issues arising in a claim based on a federal statute are governed by “federal common law.” Id. at 97 (“Because the [Investment Company Act] is a federal statute, any common law rule necessary to effectuate a private cause of action under that statute is necessarily federal in character.”). Second, the content of that federal common law is normally determined by adopting the relevant state rule, “particularly . . . in areas [like corporation law] in which private parties have entered legal relationships with the expectation that their rights and obligations would be governed by state-law standards.” Id. at 98. Third, federal courts should create new “uniform federal rules” only when there is “a distinct need for nationwide legal standards,” when an analogous federal statute embodies “congressional policy choices readily applicable to the matter at hand,” or when the state rule would “frustrate specific objectives” of the federal statutory scheme. Id.

Thus the critical question the Kamen Court asked was whether the issue it was addressing was an issue that had traditionally been governed by state law. 500 U.S. at 100 (“[W]e must first determine whether the demand requirement comes within the purview of Burks’ presumption of state-law incorporation.”). Accordingly, courts of appeals have followed Kamen and adopted state law as federal common law principally when state law has traditionally governed the relevant legal issue. See, e.g., Strougo v. Bassini, 282 F.3d 162, 168–69 (2d Cir. 2002) (state law governs whether plaintiff’s claim under the Investment Company Act is direct or derivative because of “the presumption that state-law rules on questions of corporation law will be applied”); Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App’x 37, 41 (2d Cir. 2015) (in attorney’s FLSA action, adopting state law to define the ʻpractice of law’ because “the definition of ʻpractice of law’ is ʻprimarily a matter of state concern’”); Columbia Gas Transmission Corp. v. Exclusive Nat. Gas Storage Easement, 962 F.2d 1192, 1198 (6th Cir. 1992) (applying state law to value property seized under federal eminent-domain provision because “property rights have traditionally been, and to a large degree are still, defined in substantial part by state law”). Kamen does not require application of state law in areas not traditionally governed by state law. See, e.g., Rifkin v. Bear Stearns & Co., 248 F.3d 628, 632 (7th Cir. 2001) (state law does not govern a taxpayer’s suit on behalf of a county under Kamen, because such actions are not traditionally governed by state law).

The district court therefore erred by adopting Arkansas’ claim-survival statute without first asking whether the litigation of ADA claims is an area traditionally governed by state law. It is not. Like Title VII, the ADA prohibits private-sector employers from discriminating against their employees and applicants, and Congress meant the statute’s provisions to be interpreted and enforced in a uniform manner across the nation. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754–55 (1998) (“Congress has directed federal courts to interpret Title VII based on agency principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. We rely ʻon the general common law of agency, rather than on the law of any particular State, to give meaning to these terms.’”) (citation omitted); EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1043 (7th Cir. 1982) (Title VII conciliation agreements should be enforced by federal courts under Title VII to avoid “the variance and uncertainty of fifty different state court interpretations”); 42 U.S.C. § 12101(b) (Congress’s purpose in enacting the ADA was “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, [with] clear, strong, consistent, enforceable standards” enforced in major part by “the Federal Government”).

The Supreme Court has repeatedly interpreted key terms in the ADA and Title VII by applying not state-law provisions, but a uniform federal common law. See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 (2003) (defining “employee” in the ADA by looking to the general-common-law definition of “servant”); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998) (relying on “the general common law of agency, rather than on the law of any particular State,” in defining the term “agent” under Title VII); Faragher v. City of Boca Raton, 524 U.S. 775, 797–808 (1998) (discussing the common law of agency to determine principles of vicarious liability); cf. Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 206–12 (1997) (in defining “employer” under Title VII, choosing method of counting employees without referring to state law).

The district court therefore erred in applying Arkansas’ claim-survival statute to Guenther’s ADA claim. Kamen requires courts to apply state law to federal claims primarily in those areas that have been traditionally governed by state law and where people ordinarily conduct their business and arrange their affairs in accordance with state law. Complying with the federal laws forbidding employment discrimination is not such an area.

2. Post-Kamen Supreme Court decisions have not altered Kamen’s focus on whether the issue at stake has traditionally been governed by state law.

The Supreme Court has re-visited this issue—when federal courts processing federal claims should apply state-law rules—twice since Kamen: in O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994), and Atherton v. FDIC, 519 U.S. 213 (1997). Neither decision altered the holding in Kamen, discussed supra, that state law should be adopted as federal common law primarily in areas where state law has traditionally governed, as in corporation and property law.

O’Melveny and Atherton were cases brought by the Federal Deposit Insurance Corporation (“FDIC”) acting as the receiver for failed financial institutions. In O’Melveny, after suing the owner-officers of a failed savings and loan (“S&L”), the FDIC sued the law firm that had represented the S&L in two real estate syndications. The FDIC wanted the Court to adopt a uniform federal rule governing when the owner-officers’ knowledge of their own misdeeds should be imputed to the S&L and/or to the FDIC. The Court rejected that invitation, ruling that California law governed. O’Melveny, 512 U.S. at 84–89.

The Court stated that “matters left unaddressed” in a “comprehensive and detailed” federal statutory scheme “are presumably left subject to the disposition provided by state law.” Id. at 85.[5] New uniform federal rules should be created, O’Melveny reasoned, only where there is a “significant conflict between some federal policy or interest and the use of state law,” and will be appropriate in only “few and restricted” or “extraordinary” cases.” Id. at 87–89.

In Atherton, the FDIC again sought a uniform federal rule, this time governing the level of negligence that would render officers and directors of a failed bank liable in such suits. The Court again declined the invitation and ruled that state law governs the issue. 519 U.S. at 217–26. The Court stressed that the “significant conflict” discussed in O’Melveny is a “precondition” for creating a uniform federal rule. Id. at 218. The FDIC invoked its need for uniform nationwide administration of its litigation, but the Court rejected that argument because the federal agencies regulating financial institutions had routinely applied state law without significantly hampering their mission. Id. at 219–21.

On the surface, O’Melveny and Atherton could be read as having restricted the circumstances in which federal courts are permitted to create and apply uniform federal rules when resolving issues that arise in litigating federal claims. But neither the courts nor scholars have understood or applied the cases that way. Indeed, the Supreme Court decided Walters v. Metropolitan Educational Enterprises., Inc., 519 U.S. 202 (1997), the same day it decided Atherton, and Walters defined the term “employer” in Title VII without relying on state law at all. 519 U.S. at 206–12.

Since deciding Atherton, the Supreme Court has cited O’Melveny or Atherton only three times in majority opinions, and none of those decisions changed Kamen’s analysis of when federal courts should apply state law to govern a federal claim. See Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 423–24 (2011) (addressing the different issue of whether a claim that had previously been available under federal common law (nuisance) was pre-empted by a federal statute); Watters v. Wachovia Bank, N.A., 550 U.S. 1, 10–11 (2007) (citing Atherton while summarizing the history of the regulation of national banks); Ellerth, 524 U.S. at 755 (quoting Atherton for the proposition that the Court’s reliance on agency law was not “federal common law in ʻthe strictest sense, i.e., a rule of decision that amounts . . . to the judicial “creation” of a special federal rule of decision’”).

Two law review articles in the late 2000s tackled the topic of federal common law, and each one recognized that even after O’Melveny and Atherton, federal common law or uniform federal rules continue to govern significant areas of the law, including cases affecting the rights and obligations of the federal government, interstate commerce, international relations, admiralty, “significant conflicts” between “uniquely federal interests” and state law, and the preclusive effect of dismissals by federal courts sitting in diversity. See Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 Nw. Univ. L. Rev. 585, 594–614 (2006). In addition, claims arising under certain federal statutes, including the ADA and Title VII, are often governed by federal common law. Id. at 590 (the federal labor laws); Wendy B. Davis, De Facto Merger, Federal Common Law, and Erie: Constitutional Issues in Successor Liability, 2008 Colum. Bus. L. Rev. 529, 558–69 (the ADA, Title VII, ERISA, the federal copyright laws, and CERCLA).

The court of appeals decisions citing O’Melveny or Atherton are in accord. They understand O’Melveny and Atherton as decisions further explicating Kamen and as not having overruled Kamen’s holding that the rule favoring adoption or application of state law applies primarily in areas of the law that have traditionally been governed by state law, like corporation law and property law. Many of these decisions are cases in which the FDIC (or its companion agency, the Resolution Trust Corporation) was a party. Significantly, none of the court of appeals decisions where O’Melveny or Atherton is discussed in a majority opinion is an ADA or Title VII case. On the contrary, since O’Melveny and Atherton the courts of appeals have continued to address ADA or Title VII claims using the same type of analysis they did previously. See, e.g., EEOC v. N. Star Hospitality, Inc., 777 F.3d 898, 901–03 (7th Cir. 2015) (applying federal common law of successor liability to Title VII claim); Teed v. Thomas & Betts Power Solutions, L.L.C., 711 F.3d 763, 764 (7th Cir. 2013) (“[W]hen liability is based on a violation of a federal statute relating to labor relations or employment, a federal common law standard of successor liability is applied that is more favorable to plaintiffs than most state-law standards to which the court might otherwise look.”); Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992, 993–95 (8th Cir. 2010) (per curiam) (following EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974), in applying federal-law successor-liability doctrine to Title VII claim); De Jesus v. LTT Card Servs., Inc., 474 F.3d 16, 21 (1st Cir. 2007) (“Whether an individual is an employee for purposes of Title VII or the ADA is a matter of federal law.”); Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 342–44 (8th Cir. 2006) (applying federal law to determine that plaintiff physician was not an employee of the defendant hospital and therefore could not bring an ADA claim against it).

Conclusion

Since O’Melveny and Atherton did not significantly alter the rules established in Kamen, Kamen is still good law. The district court, however, erred in interpreting Kamen as requiring application of Arkansas law here. ADA enforcement actions are not traditionally governed by state law. Moreover, applying state law would run contrary to the ADA’s goal of uniform national enforcement of consistent standards of liability. The district court should therefore have applied the traditional federal-common-law claim-survival rule. Under that rule, Guenther’s ADA claim survived his death. The Commission therefore respectfully urges this Court to reverse the order dismissing this action and remand the case to the district court.

[1] In relevant part, § 1988(a) reads:

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . .

42 U.S.C. § 1988(a) (emphasis added).

[2] Pub. L. No. 96-48, § 205(c); Pub. L. No. 102-166, § 103; Pub. L. No. 103-141, § 4(a); Pub. L. No. 103-322, Title IV, § 40303; Pub. L. No. 106-274, § 4(d).

[3] See also Zatuchni v. Sec’y of Health & Human Servs., 516 F.3d 1312, 1329–30 (Fed. Cir. 2008) (in determining the federal common law governing the survivability of plaintiff’s federal vaccine-injury claim, court rejected adoption of state-law rule and applied a “uniform federal rule”); United States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 1993) (applying traditional federal-common-law rule to issue of survivability of cause of action under False Claims Act). As the district court here acknowledged, R-25 at 5, several district courts in this circuit have agreed. See A.H. v. St. Louis Cty., No. 4:14-cv-2069, 2015 WL 4426234, *4 & n.2 (E.D. Mo. July 17, 2015) (applying traditional federal-common-law rule to survivability of plaintiff’s ADA claim); Estate of Stoick v. McCorvey, No. 10-cv-1030, 2011 WL 3419939, *3 (D. Minn. July 29, 2011) (same); Kettner, 570 F. Supp. 2d at 1132–33 (same); Hanson v. Atl. Research Corp., No. 4:02-cv-301, 2003 WL 430484, *3–4 (E.D. Ark. Feb. 14, 2003) (same).

[4] The complaint also seeks punitive damages, but courts applying the traditional remedial/penal rule usually decide that an ADA or Title VII claim survives with respect to the remedial relief sought and abates with respect to the penal relief sought. See, e.g., Kettner, 570 F. Supp. 2d at 1134 (“Plaintiff is entitled to all available remedies under the ADA . . . except for . . . punitive damages.”); Hager, 2002 WL 57249, at *3 (dismissing plaintiff’s ADA request for exemplary damages as penal, but not his request for compensatory damages); Estwick, 950 F. Supp. at 498 (dismissing plaintiff’s ADA request for punitive damages but not for compensatory damages). The plaintiff estate here “conceded that it cannot recover punitive damages under ADA” pursuant to the traditional federal common law rule. R-25 at 3 n.2.

[5] The Court did not emphasize the word “presumably,” but neither of the cases the Court cited for this proposition held that state law governed the issue being addressed. 512 U.S. at 85.