Mount Lemmon Fire Dist. v. John Guido (17-587)

argument 17-587

Mount Lemmon Fire Dist. v. John Guido

Supreme Court of the United States 55 min 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the Ninth Circuit’s interpretation of the term “employer” in the ADEA?

John G. Roberts 0:02

We'll hear argument next in case seventeen five eighty seven, the Mount Lemon Fire District versus Guido. Mr. Rosencrantz?

William S. Consovoy 0:09

Mr Chief Justice, it may have pleased the court. The Ninth Circuit fixated on two words in a two sentence definition of employer. It ignored how the second sentence relates back to the first. It jumped right to the second half of the second sentence without considering the first half. And ignore how all of this relates to the foundational definition on which the definition of employer is built. Now, predictably that wreaks havoc with the statutory scheme, most notably by stripping public employees of crucial protections like Respondiat Superior, and also by treating public employers worse than private ones in a statute whose purpose was to bring parity to the two. Now, as our brief explains, the best way to read the statute is from beginning to end.

William S. Consovoy 1:02

But let me just start right in the middle, as my colleagues do, with the with the phrase that is causing all this mischief also means respondents do not dispute that that term can have two alternative meanings. It could mean, in addition, there is an additional universe beyond on that which is defined in the first sentence. Or it could mean further elaboration of the preceding definition along the lines of moreover or incorporates. So how do we know which one is intended The rest of the context makes clear, and in particular, there are five separate statutory signals, any one of which pushes the reading in the direction that we've proposed, aided by two canons of construction and the interest in making sense out of anti-discrimination law.

Unknown 1:59

So let me start with that's what what you say about making sense. Um Perhaps uh Congress should have used the formulation that was used in Title seven. Where it's clear Title seven is absolutely clear the uh numerosity requirement. goes to private and public employers. But This statute A B E A. picks up on the language of the Fair Labour Standards Act. Which has no numericity requirements. So uh perhaps Congress should have done what you s y you suggest, but by by using the Fair Labor Standards Act language um Rather than Title Seven language. But if they wanted to do what Title Seven had done in nineteen seventy two, they wanted to do that at nineteen seventy four. Why didn't they use Title Seven language?

William S. Consovoy 3:05

Well, Your Honor, let me start with the premise and then turn to the ultimate question. The premise i of the of Your Honor's question is That uh Congress used the definition from the FLSA. I urge the Court to look at the definition in the FLSA. It is on the first page of the government's statutory appendix. It is entirely different from this definition. Why did Congress use a different approach from Title VII when everyone understood, at least everyone who was talking about the Congress? talking about it, understood that the purpose was to mimic what Title Seven did. I am attributing rationality to someone who was obviously not doing his job very well, but Title Seven began with different language. Pre-amendment from the language in the ADEA.

William S. Consovoy 4:00

Title VII began with language that was not as expansive about the definition of person. So here we have an extremely expansive definition in ADEA or any organized groups of persons. It is the most expansive definition this court has ever seen of person.

Elena Kagan 4:22

Expensive in only one way. that entire list up to the disputed any organised group or persons All apply. to private. entities.

William S. Consovoy 4:35

No, not at all, Your Honor. No, uh Justice Central. Corporations, this court has held in at least five cases, the corporations includes municipal corporations. This language in every stat put aside those last four words, corporations and associations. Every time this court has encountered that phraseology, it has concluded that that political subdivisions are persons. It did it in rickets. It did it in uh City of Chattanooga. It did it even without a definition in cases like Monell uh and um in the Federal in the Federal Center of the United States. Well but here

John G. Roberts 5:15

it's not just persons, it's organized groups of persons.