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tv   Mount Lemmon Fire District v. Guido  CSPAN  November 15, 2018 5:50pm-6:48pm EST

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>> the midterm election of 2018 changed the balance of power in congress. with changed the balance of power in congress democrats taking control of the house and republicans holding a majority in the senate. they now prepare for the new congress in january. you congress, leaders -- watch the process unfold on c-span. >> the supreme court recently ruled -0 that state agencies and political subdivisions must comply with the age discrimination in employment act regardless of the number of employees they have. the justices heard the oral argument october 1 in which two firefighters claim that their age was a factor. this is about an hour. >> we will here this argument
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next -- the mount lemmon fire district. mr. rosencrantz? >> may it please the court -- the ninth circuit had two words in the definition of employer. it ignored the second sentence relating to the first and it jumped to the second half of the second sentence without considering the first half. all of this relates to the foundational definition on which the definition of employer is bill. predictably, that wreaks havoc with the statutory rules -- most notably by stripping public employees of crucial protections and also by treating public employers worse than i did one in a statute whose purpose was to bring parity to the two. the best way to read the statute is from beginning to end but
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let's start in the middle is my colleagues do. this is causing all the mischief -- respondents do not dispute that that term can have two alternative means. it could mean in addition there is an additional universe beyond that which is defined in the first sentence or it could mean that further elaboration of the definition along the lines of moreover incorporate. so, how do we know which one is intended the rest of the context makes clear any particular there are five separate statutory signals, any one of which pushes the reading in the direction we have proposed. aided by two canons of construction and the interest in making sense out of the anti- this commission law. >> when you talk about the consents -- perhaps that is how
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they should've used the formulation used in title vii. it is clear. title vii is clear. the requirement goes to private and public employers. >> but, this statute picks up on the language of the standards act which had no numerous city requirements. >> so, perhaps congress should have done what you suggest by using the standards and language . they wanted to do title vii did in 1972 to they wanted to do that in 1974.
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why did they use this language? >> let me start with this premise and turn to the ultimate question. the premise of your honors question is, that congress used the definition from the flsa. i urge the court to look at the definition. it is on the first page of the governance statutory appendix. it is entirely different from this definition. >> why did congress use a different approach for title vii when everyone understood -- at least everyone talking about it -- understood that the purpose was to mimic what title vii did. i am attributing rationality to someone who is obviously not doing his job very well. title vii began with different language free amendment from the language in the adea. it began with language that
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was not as expansion -- as expensive. here we have extremely expensive definition in adea -- any organized group of persons. this is the most expensive this court has ever seen. >> expensive in only one way -- the entire list of to the disputed organized group of persons -- applied to private entities -- >> >> your honor -- >> this court has shown that incorporation includes municipal corporations. this language -- the last four words -- operations and associations -- every time this court has encountered this phraseology it has concluded that political subdivisions are
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-- they did this with rickets and city of chattanooga. it did this even without a definition in cases like monell and -- >> it's not just person -- it is organized groups of persons. it is in a list of things -- the partnership associations labored as corporations and organized groups of persons. >> i don't think it is a natural reading to say -- i belong to the city of bethesda. the organizations you belong to -- there is this partnership. >> there are two answers. first, even without that language this court has found that -- striking that out -- this court has found that the definition before that language covers political subdivision. city of lafayette, chattanooga foundry and rickets all found that but now the mount lemmon
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fire district is an organized group of persons -- land owners who get together to have a common cause and collect taxes. >> counselor, even if it is true in those cases what is different in this case is that the original statute made clear that that definition was not going to include states the federal government. given the private nature of most of this and the fact that the statute on its face says that no matter what you do is not state or government, i would read it in its natural form and i would not included unless i am told to included otherwise. >> your honor, i beg to differ. we start with the definition of person -- broad and expansive. >> subsection b says it's not the federal government -- and by the way, it's not state. let
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me back up -- employer, then, says it is a person. 20 or more people. 20 or more employees. then it goes on and subtracts the federal government and states and local governments. it makes no sense to subtract them unless they were included. >> it makes no sense to subtract them unless you never intended to include them. >> your honor, that is not the way this court has read it and that is not the way that title vii doesn't. >> you assume an ambiguity. you are not saying the way that this court where this was not permissible. you are just saying a better reading is your way, correct? correct, but let me put it a different way -- i'm not assuming the other side has not
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disputed there or two possible ways to read it. our position is that when you take these five statutory things, the only reasonable reading is our reading. we have already talked about the persons but there is more. i would have started with the first signal -- we know that also means does not signify an additional category of covered employers. >> if we disagree about the meaning of also, do you have any other argument available? or is that the end of the case? if we adopt the normal meaning of also -- meeting in addition to -- do you lose? >> your honor, let me make sure -- first, this court has routinely adopted statutory constructions that defy -- >> that was a my question.
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my question is, if we take the dictionary definition in addition to the normal meeting do you lose or do you have another available argument? would be delighted to hear it if you do. >> i think we have another argument, your honor. also means in addition. so, it adds agents will i will get to in a moment. this is completely implausible. then, what does it do in the next clause >> you knew -- you use those words a lot. you accuse the other side of anomalies. these is -- this is strong language. that is in the first page and a half of the reply brief. i guess i expected to see some sort of absurd results argument we are going to use that kind of language but i didn't see any. it made me a little concerned.
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>> let me tell you what the absurd results is. let's start with the agent cause. the government's position is that also -- "also" necessarily means add a category not otherwise covered. if that is true, who are the classic agents? employees are the classic agents. that means employees are now directly liable under the statute for any cause of action on discrimination. >> i doubt that anyone would choose an employee rather than the employer. it seems to me most unlikely. >> your honor, i disagree. this has happened in every circuit under title vii. employees have been sued sometimes with the employer. that would be disastrous. first of all, supervisor
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liability constructed to the millions of dollars. >> you said under title vii -- disastrous under title vii? >> sorry, your honor. i'm saying it has happened under title vii and every circuit has said you can't do it. why? because as this court found in burlington that is not what the agent clause does. it incorporates superior liability. >> that point was made by the majority of circuits who ruled in your favor. those circuits still have two deal with the agent meaning. this does it by addressing the superior liability. however they dealt with it your meaning doesn't do away with that. >> your honor, it most certainly does. we have a complete disagreement with the government and respondents on what this does. we believe it incorporates responding to the superior
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liability which makes the employer liable for the agent activities. the government and respondents say no, it adds another category of people who have not been previously identified as employers. anyone who is now an employer is subject to liability. you can tell that the agent clause -- >> there is no agent involved in this case. why should the court address that language? your honor, for the simple reason that everyone is agreed and the respondent have conceded on page 32 the phrase "also" has to carry the same meaning. you can't just jump over one and not ask what would "also" means produce if you apply that to the first cause? >> your argument comes back and
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bites you because you just said it has to be treated the same. you're very with respect to two is that it's already included in the first part of the statute. so, that would seem to be an argument you have to make with respect to the agent. the agent is included in the first part. so, i don't see how your argument answers the problem they you used to undermine the other side. >> justice, it does for the following reasons -- what does the also means clause do? it is an avoidance of doubt. and avoid out in two different ways. the first way is by adding the agent clause by saying employer -- the aforementioned employers. that universe are subject to the superior liability. the second clause also avoids doubt by making it clear that when we are talking about employers -- those persons
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defined in the first sentence you are including political subdivisions and states. i must emphasize that you know that the agent clause is problematic because of the extremes to which the respondent go to redefine agent. they define agent to mean third- party independent subcontractor because they cannot accept the possibility that as is clear under the common law for hundreds of years the classic agent our employees. without the agent clause -- when you divide the agent clause the weight respondents do, you do end up with a disaster. >> mr. rosenkranz, the term "also" -- you agree, don't you, that the term is the same as in the first sentence. in other words, the term is employer, correct? >> the term is -- >> the term, employer. >> the term employer or the
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term person. >> sorry -- >> what is the term and the second sentence? employer? >> yes, employer. >> it is odd because you say that what the cause -- what the clause is meant to do is to make clear the person is defined in such a way as to include subdivision. so, what you're essentially doing is converting the phrase which says the term, employer, also means -- and converting that into the term person just to make clear includes. >> no, your honor. what we are doing is referring back to employer. the first sentence says who is the employer -- the employer is an entity with at least 20 employees and that affects commerce. now, that is a universe.
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the term in our view also means clarifies that within that universe we are doing two things. we are applying agency liability to that universe of aforementioned persons leveled employers. >> but clarifying with respect to the subdivisions, would not be necessary except for the fact that there is doubt in the person definition. that is where your doubt comes from. it comes from the fact that the person definition is not unambiguous. >> that is one of the sources of the doubt. >> what is the other source of the doubt? it's all the source of the doubt, isn't it? >> no, because there are other statutory problems that are created completely apart from that. >> i understand that you say there are anomalies if done in a different way but the doubt arises from the ambiguity of the term, person. so, that is why i am suggesting that would be a strange way to resolve that doubt instead of
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justice saying by the way a person includes a subdivision. instead of saying that, to say the term, employer, also means a subdivision. >> understood, your honor. this is a strange statute written in a strange way. there is a reason for that. this gets to one of my other statutory clues. that is, when you think about the evolution of this statute, it was different from title vii. this statute has two sentences within the definition, not one. this statute had always means within that definition. so, if you think about what was going on -- we mapped it out on page 8 -- what the editor was trying to do. or, if you look at page 8 there is a red line. the point is, this statute always had this structure. this sends always had also means in it but the second
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sentence had two parts. one was clearly a clarification and the second was an exclusion. the clarification as -- was asked to agency and then there was an exclusion. what did they do? they took part of the exclusion and moved it to the other side of the also means sentence so that now it is serving that clarifying purpose. >> tell me, if xyz company has 50 employees and one day they have an idea -- what we will do is set up five subsidiaries. and they will hire the employees. each will hire 10. they will be our agent and do everything we tell them. okay? does the statute apply? >> absolutely, your honor. xyz is liable for the acts of
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their agents. under respondents -- xyz -- >> but, the agency -- the subsidiary is not an employer. >> your honor -- >> the xyz corporation sets up five subsidiaries. each of which has 10 employees. it is an agent. it is an agent of the xyz corporation. >> your honor, xyz operation has no employees, just five subsidiaries. >> okay, there are two scenarios but one is that each of the subsidiaries is liable. >> i? each of 10 employees. >> oh, i see what you are saying. >> so, i would say manhart addresses that question. you cannot avoid liability by turning yourself into subsidiaries who are all your ages. >> what does it say that? >> where does manhart say that?
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>> yes. >> where does your statute say that? it did occur to me that one purpose it could serve would be to do just what you said. you cannot turn yourself into five subsidiaries. that's why the subsidiary part -- mainly the agent part, doesn't have a number attached. they don't want a number attached. >> you could set up 100 subsidiaries. >> let's be clear. private entities are always covered under this statute. >> i'm not talking about public entities. private entities -- the term employer -- maybe this got mixed up. i don't think so. it means the person engaged in an industry who has 20 or more employees. so, i'm trying to imagine that they would use subsidiaries. there is no company that has more than 10 employees. and to avoid that, one thing they might want to do is to use
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the word, agency, without a qualification that the agency has to have 20 employees. >> your honor, all i can say is, there is no reason to believe that congress was ever focused on that scenario. that was never before congress. what was before present what this court held as to title vii is that that language is about respondeat superior. i've already mentioned two things. let me get to the third one. this is a variation on the agent point. >> we disagree on what the agent clause does, but everyone agrees that it does something important. at a minimum, according to respondents, it protects employees from the independence -- excuse me from the discriminatory act of independent contractors. the question arises, why did congress supply that important protection only to private employees and not to public ones
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? because that is the consequence of respondents' reading. fourth -- affecting commerce. and what congress did with that phrase. for now i am not making a constitutional argument. i am making a drafting argument. in every one of these discrimination statutes congress felt the need to provide an explicit commerce clause hook. it did so for private employers under the adea and it did so for all employers under title seven and the adea. one could have an interesting constitutional debate about whether that book was constitutionally required by my point is simple -- congress but it was necessary in every other context so why would congress have left it out here? then, the fifth statutory clue is the statutory history. i have already described how
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the drafters got to where they did. let's look at two things. the first is, how they changed the language in 630 p. they took words on the exclusion side and they moved it to the inclusion side. we have been accused of reading the statute in a way that makes that superfluous. it is not. it is absolutely essential to identify who is now in the statue. it was essential because that was the major change. now, look at this -- there is not a red line on this one but you can see it in the government statutory appendix. excuse me, you can see it in our statutory appendix. so, the term employment agency
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is defined there. -- originally it said shall not include any agency of the united states or any state or political subdivision of the state except such terms shall apply and so forth. >> congress crossed out everything after the united states. the only reason to have done this would've been now to include state and political subdivisions within the definition of employment agencies. the only way that could possibly happen is if they were persons to begin with and therefore if they were persons to begin with you flow them through a subdivision -- subsection and they are subject to the same employee limit. now, if the purpose was to take entities that were already persons and therefore subject
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to the first sentence encompassed by the first sentence and make it clear that the proviso about the size no longer applies, this was a strange way to do it. if there are no further questions i would like to reserve the remainder of my time for rebuttal. >> thank you, counsel. >> mr. fisher? >> chief justice, may it please the court -- the plane text of the adea makes it absolutely clear that it covers subdivisions regardless of size. there is nothing odd much less reserve -- absurd. let me start with the text and clarify one thing for the court. we do not dispute -- this also means a key statutory phrase can mean different things. the truth is, we actually do dispute that. the meaning of also means --
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this at something that was not there before. the confirmation of that is found throughout the u.s. code. in our brief we cite the 32 other instances in the code where the phrase "also" appears. all of these phrases use it in an additive manner. and the most telling -- >> how do you deal with that? >> if you are speaking as the statute -- i think it does use it in an additive manner because that is a statue where it says consumers means an individual who does certain things or the person's legal representative. so, that itself -- that itself is attitude. this is not a statute talking about a court of law where someone has a legal presented. >> you don't really think that what the statute meant is that the legal representative was
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giving his or her private information -- in that sense it is -- the legal representative is giving the consumers information to someone. >> so, that is a violation, isn't it? yes, but it is talking about a different source than the previous part of the statute. i think if there is one potentially ambiguous provision out of 33 people still take that. i would turn the court to the most telling example on pages 12 and 13 about a release -- about families. the reason this is telling is because it gives a particular definition and has a qualification at the end or it is also handicapped. minutes is the word also means and then repeats that phrase -- congress, when it uses the world -- the word also it is exactly the opposite -- which is to
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carry forth -- kerry down to after "also means". >> in this last example -- the federal employment agency -- it is either superfluous or there is a question whether the state employment agency is still covered or not. >> i think the letter might be the case. >> it is superfluous. >> the federal agency. >> it's not superfluous in the sense that in this subsection b the federal government has backed out and in a situation where i think a better reading might've been to leave them out in the first place. i think the reason why you see explicit references to the federal government is because -- two things -- the court itself has asked congress in various ways to speak directly when it talks about federal government or state being on the hook for one form or another. and secondly, the federal government is itself treated holy separately in section 630
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3a in a different regine. the federal government has put aside these other provisions and that is what congress was doing there. >> we submit to the court that "also means" is simply unambiguous. that is the end of the case as the ninth circuit that it was. if you have any doubt about that i would urge the court to look as my friend urges to the comparison between title vii on the one hand and the flsa on the other hand. >> congress has enacted the ada -- the adea revision and title vii of the same time do you think it's possible that congress would have seven it comes to racial discrimination we are not going to allow a suit against the government entity fewer than 25 employees when it comes to age discrimination we are going to include every government agency no matter how small? >> i think absolutely. the
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reason why goes back to other cases where they have described the genesis of the adea. they have used the adea as a hybrid . it is a hybrid between the discrimination law on the one hand and the labor statue on the other. that is borne out in the provisions which borrow the antidiscrimination part from the title vii language and the rest of the statute has gone from the flsa. >> it is abstract do you think is a policy member congress would -- matter that the congress with they ate's termination is more pernicious and widespread so therefore we have to have a tough remedy -- tougher than we do with respect to racial discrimination? >> i don't think that is the way that congress would've thought of it. in legislative history -- i think i will answer your question -- you find the title vii that congress was concerned with associational interest. personal associations. one of the things behind title vii is the concern about
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forcing very small groups of people to associate with individuals they may not like. that might seem antiquated now days when we talk about directly in the history of title vii. on the other hand this goes back to the adea being a labor statute as well. the purpose of the adea is to bring people into the workforce and keep them there and to achieve full employment with other individuals. as the secretary of labor noted in the report, this court discussed in this -- this is not to stamp out discrimination but to achieve full employment. the reason congress may have decided to have public agencies regardless of size on the hook on the age side and not on the race site is because this association -- >> is this, mr. fisher, the only federal statute you are aware of that imposes an obligation on a small political subdivision that is not imposed to corresponding obligations on
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a small private employer? >> no. let me point you to two things. first, the other component of the adea itself which one no one disputes covers federal government employees we find that in the adea itself. and as to state and political subdivisions you find a close analogy in the flsa. my friend in his reply brief said it has no performance at all on the private side. that is strictly speaking true but enterprise liability under the flsa depends on that which is the proper dominant form of liability -- in it depends on the employer having $500,000 of gross receipts per year. you have a rough analogy in that statute to this requirement. in other words, you have something that needs to be a certain size. i will add -- you asked me about federal -- in a footnote
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there are many states does the majority which cover political subdivisions regardless of size. of that group about half of them cover political subdivisions regardless of size and still have numerous the requirement for private employers. >> how are these statutes in comparison to this statute? >> i didn't hear you. >> the state statues -- statutes -- you said that note -- most states. subdivisions without regard to size. and we have the language that most states use. is a similar to the language that is used in the adea? >> these are all on page 29 of our brief. the answer is, by and large the state statues use different language so is not a case where
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the states are parroting what the adea says. i think by our count there are only three states with the exact same language of the adea. the best journey have other language that makes it clear in other ways that they are distinguishing ferocity between the one and the other. i would add, mrs. ginsberg, is that a handful of these states have this distinction before the adea was pass. when they say it is ludicrous for congress to achieve this, the statutes already and many state legislatures had already drafted statues like this before the adea was pass. so, to bring you back to the conversation about the reason why congress might've done this to distinguish between race and age, i will grant that congress could've reasonably made the other choice as well. congress could've decided one of the other but the proof is in congress did. as i said it had the flsa on
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the one hand and title vii on the other hand. they were identical in the sense that when you look at the definitional provisions of the act you found the first definition of the word person and then the definition of the word employer. what did congress do? it amended the definition of person to achieve as justice ginsburg pointed out an easy solution with the numerous city requirements apply to the political subdivisions. when they amended the adea in the exact same act as they amended the act l essay to cover political subdivisions regardless of size it did the same thing which was amending the definition of employer and not the definition of persons. i point this court to its own decisions -- sing that we look not just at the language choices but to structural choices. we assume those are intentional. so, even if i had to think
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about the comparison between the adea and title vii under those cases i think that would be enough to remove any doubt that the court might have about what congress is trying to achieve. i had something more here. i have the flsa of which the adea is closely related. and the court in the congress made the same decision in the flsa. >> could you say something about what this means for the agent clause? if congress wrote also means and didn't put includes. -- if it didn't include the age of such a person i would take that one could not begin agent without having 25 employees. but, where does your understanding of this sentence take us with respect to agents? >> i would like to start with my point of agreement with the other side. we agree that the key question
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is whether "also means" lupus respect to the agent clause we think this is important for the court to pass. this brings us back to the question from justice breyer. i don't think there could be a reasonable dispute that the agent clause add entities into the category of employer. and is not just below 20. more fundamentally it is agents that would not otherwise be recovered -- covered by superior. this was noted in manhart and we explain in our brief in other cases at there's also a footnote that explains that some independent contractors -- for example, are agents of an employer but are not covered by responding. >> where do i look? i was bothered by the same thing. we are going to have these numbers with b we will not have numbers with a. your colleague says they wanted the numbers.
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all that a does is make sure that it is the principles of agency and he cites burlington. so, where would i look to see -- they had another idea. they wanted some agents covered with fewer than 2725 employees. >> justice breyer, i don't think you will find this. let me make it clear -- the 20 employee thing is just the beginning of the problem. the much bigger problem is, an agent of any size would not be covered but for that clause. it would not be under the principles. my friend in the reply brief says that we distorted the meaning of independent contractors but i urge you to read the rest of the sentence that my friend quotes -- in the, during two section 14 n. also looking at section 2 of the statement of agency called independent contractor. in both places the statement makes clear that some independent contractors -- for example, a company hired to do
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layoffs -- to decide who will be laid off. administer the benefits plan and decide what the criteria are. those kinds of people are agents but necessarily covered by superiors. my friend in the agent clause does nothing but clarifies what has come before -- this leaves a gaping hole in the adea and title vii. >> i wonder, mr. fisher, how your reading of the agent clause allows us to make the station that you suggest. between deities and individuals. it says any agent of such a person and it doesn't, on its face, make any such distinction. so, how would you go about doing that? >> there are two questions you would ask if you had a case dealing with the agent clause. the first question you would ask is whether any agent includes employees. obviously, the word, any, might suggest that it does but on the other hand employees are already covered under these
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principles once you have given the word employer. it is odd why congress would've wanted agents to be speaking about employees. especially when another provision of the statute defines the word employee and is used in other ways. the first question would be whether any agent needs any agent whatsoever or just nonemployee agents that are already covered. >> if you answer that question against this position, you would still have a second question -- if individual supervises, for example, were on the hook question would still be, how are ion the hook? as we know in the notes the fourth and fifth circuits have held that they are technically liable but liable under something like official capacity principles. it flows right back to the employer as one would expect. you have two questions that would get you off the train to wear my friend would like to leave you with that clause. i think the fundamental thing i would urge to the court is that you have before you in this
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case is simply unambiguous statute in terms of every work you need to decide this question presented. it says term employer also means state or political subdivision. that's all you need to decide this case and it is clear. i would urge the court to resist the temptation to go looking for ambiguity as a reason why not to answer this case as to what the statute itself plainly says. that is the beginning and the end of it. you can leave all that other stuff if it comes back to the court for another day. if there are no other questions i will wrap up now. >> thank you, counsel. >> mr. bond? may it please the court this expressly covers employers regardless of their size that is true for three
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reasons. first, it is by far the most natural reading of the text given its ordinary meaning and consistent usage across the law. second, congress rejected the template and title vii adopted two years earlier that excluded small state or local government employers by putting the definition -- like putting government employees in the definition of person. congress didn't do that and all of the template they adopted at the same time in 1974. third, the petition has a contrary reading that would leave a sizable loophole that would allow any employer to invade this by outsourcing dissemination to small agents and in order to avoid that problem the petitioner is forced to abandon the core theory they offer of the text. this treats the two closet the same way. in terms of the ordinary meaning we agree with respondent that the language also means and usage throughout federal statutes is clear and they used it in an ordinary way because
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he did not follow the title vii approach. my friend on the other side suggests that the differences in the suggestion a person versus the eject -- these differences are slight and you can see it on page 16. none of these differences prevented congress in 1974 from doing the exact same thing in the eject but a different thing with don and title vii if it is wish to do so. there were slight differences with the farage -- flsa but what is, is that the address the problem in the same way. they put the definition -- the government in the definition of employer, not subject to any numerous city requirements and that is the common thread. >> to touch on a question -- that is where there is a real vulnerability. it's true the court does need to address the broader issues or resolve the outer limits of
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that clause because it is not located here and then nothing in this case turns on it. i think it's a boring to bear in mind that whatever the clause means it can't be with the petition is offering because that interpretation -- if you hold this interpretation to the logical conclusion it means that any employer could do this by outsourcing small agents. >> we want you to know what the agent clause is supposed to do from the title vii context -- to prevent what manhart called delegating discovery nation to corporate shells. if you take the petitioner's reading seriously it means that the second clause clarifies the first so that the 20 employee threshold reaches all the way to the government clause in the second sentence. if that is true it has two follow logically that the 20 employee threshold reaches the agent clause in the middle. i realize that the petitioner this morning claims -- disclaims that results but there's no way to scan square that with the text but it would mean that the 20 employee threshold starts in the first sentence and skips over the agent clause and lands on the government clause.
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that is not implausible way to read the statute and it is also inconsistent with the petitioner's core theory that means you have to operate the same way across both clauses. >> i think from the ordinary meaning of the text and the way that congress has used it in this statute there is only one conclusion you can draw. >> if we follow the same text theory of interpretation that you advocate with respect to the provision concerning political subdivisions wouldn't that lead us to the conclusion that an agent of an employee includes the employer's employees? are the ages of the employer? >> your honor, you don't have to address that. >> i know we don't have to address that we must have a theory -- an understanding of the statute that makes sense and you just wait and argent -- an argument based on this. >> yes. >> the answer is, we don't think it would reach individual liability because of the two additional questions that the
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council identified. just to highlight those more, the agent not only does congress have no reason to use agent in its broadest sense because the employees would already have the liability -- in this statute congress didn't use language that it is used in other statutes like the flsa in the lower courts and the department of labor have read to include individual liability. for example, the section in the appendix has the employer including any person who acts directly or indirectly in the interest of an employer with respect to an employee. the family medical leave act uses the same language. they have used these to oppose individual liability in some circumstances. you don't see that language in the ajacs. they did not intend to impose individual liability for that would be a strong reason to reject that understanding.
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>> in addition even if you concluded that some subset of employees or supervisors or agents in some circumstances you would still have to answer the question that the lower courts have consistently answered against individual liability for determining if this individual employee personally liable or is he liable only in is officially representative capacity. idea simple -- if you are an employee and counted as the employer only because you are acting as an agent -- that is, only because you are exercising the authority of the employer and burying the terms and conditions of a particular employees employment, liability naturally goes against the employer whose authority you are exercising. and to resolve that question you would need to consider a number of principles with the remedy thaw cash flow and you would need to have a potential spillover effect for other federal statutes. we have another reason to not to dive into this because the only question you need to answer is whether the agent clause add a category of
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additional agents. and it must do so to solve the problem that this court identified. >> is that true, is to bond? that is to say that this is just a reference to the superior liability and basically says that the employer shall have such liability for any agent. what does that include? the corporate things that you're talking about. >> a few points. if this is correct the clause codifies existing tables and agency liabilities the employer would not face the liability for active independence in the ordinary course. the generally rule is that the principal is not responsible for active independent agencies unless you specifically intend the results. >> it dependent contractors? >> the ages that are not employees. this can include -- >> even in the face of statutory language that says
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the agent of such a person -- >> they are acting as agent of such a person. >> let's distinguish these things. as i understand that the petitioner is urging that the clause would incorporate with the respondent and ordinary agency principles which under this statement would not pick up the active agents who are not employees in the ordinary courts. what you're suggesting is that the language or the referencing agent here incorporates a broader theory of agency liability that still leaves the petitioner with a difficulty of deciding how the two clauses were because he says the agent clause in the government clause must operate in the same way. you can't read the two clauses is doing those fundamentally different things. once reading a novel purchased the -- principal and the other incorporating an employee requirement that doesn't apply to agents in the middle. >> i'm not sure what is so bad about direct agent liability. let's say you have a manager that runs the shop -- the
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factory -- he decides well, i am going to fire anybody over 45 or whatever. maybe the person fired wants to sue the company in the bank -- the company goes bankrupt. what is the big deal? it seems that that would allow you to sue the person responsible for the decision. >> we agree that it is not anomalous and there are federal statutes that have been construed and that is another reason why you don't need to delve into that here. the answer is not clear and we think there are strong indicators that in this statute, was didn't attend to achieve that result. but you're right if that is the conclusion of the end of the day in a case where it is properly presented that there is an individual liability that is much less anomalous than eating the text in a way that no dictionary or other statute uses it. and creating a huge loophole for outsourcing to agents any size under 20 employees. >> the court has no further questions. >> thank you, counsel.
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mr. adea -- 5 minutes. >> thank you. first, mr. fisher's explanation of agency is at war with burlington. this court said that the reason there is respondent superiority is because of the agent clause. nothing else created that. >> the difference between title vii and title ix is crucial. title ix has no respondent superior liability. by? because it did not have an agent clause. now, i'm not saying that there is no liability for that third party agent. of course there's liability. the agent clause here doesn't just limit respondeat superior it implements agency possibles as to both employees and the
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independent agent. that doesn't mean that agents themselves have to have 20 employees. that is clear from the wording of the statute. so, you start with b. it says the employer is anyone with -- a person who has 20 or more employees. and also affects commerce. it says that also means any agent of such person -- such person is the employer that has 20 employees. the agent doesn't need 20 employees. >> so, let me just go to an observation about the relationship between flsa and title vii. mr. fisher and mr. bond votes point out a distinction -- both point out the distinction. it is a procedure substance
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distinction. anything that is substantive this court has referred to title vii of the analog. -- as the analog. >> i recognize, your honor, that neither reading is perfect but it comes to a choice between a reading that is at least mildly ungrammatical and one that is wildly unattainable. respondents are attributed to legislative drafters a level of grammatical sophistication that is unrealistic. meanwhile, the list of problems that respondents are creating with their reading is really untenable. first, it is unfathomable that congress would single out public entities for harsh treatment in a statute whose whole purpose was to grow public employees into the area that private employees occupy. second, respondents rewrite the
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statute so that agent means independent third-party contractor and they say employees are not ages. you cannot just waive away the problems created by that reading. it is not peripheral. 12 regional circuits all agree with our reading and that is all the way under the respondent' reading. third, respondents have not explained why congress would strip book employees of valuable things such as responding and superior liability that private employees have. the protection is not in the word employer -- it is in the agency clause. at a minimum public employees under the respondent reading lose all recourse for the acts of third-party contractors. that is at least clear. so, there is a reasonable reading of the statute that achieves congress' goal without
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creating any of this mischief. that is the reading that this court should adopt. if there are no further questions we respectfully request that the court reversed. >> thank you, counsel. the case is submitted. john kasich is in new hampshire to speak it at first amendment event in manchester. governor kasich was a presidential candidate in 2016. watch live coverage today at 7 pm eastern on c-span and you can also watch online at c- span.org or listen live on the free radio app. >> >> sunday -- california democratic congresswoman spear talks about her memoir, undaunted. >> i was on an airstrip in the jungles of guyana. i had just concluded a congressional delegation to work with the congressman. we were ambushed on the
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airstrip. we were shot. congressman ryan was shot 45 times and died on the airstrip. members of the press died. there was a defector of the people's temple that died. i was shot five times on the right side of my body. >> i had a wound in my leg the size of a football. it was -- oh my god, i'm 28. this is it. >> >> in 1979, c-span was created as a public service by the american television company, and we continue to bring you unfiltered coverage of congress, the white house, the supreme court, and public policy events in

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