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Gómez-Pérez v. Potter prediction
February 19, 2008 by Ross Runkel at LawMemo
Paul Secunda has read the US Supreme Court transcript from today's oral argument in Gómez-Pérez v. Potter [Details, briefs] and concludes that the employer will win 5:4. His comments appear at the Workplace Prof Blog and at SCOTUSblog.
The issue is whether federal employees can state a claim for retaliation under the Age Discrimination in Employment Act (ADEA).
Well, I've also read the transcript. Paul is correct that the employer will win, but I don't see the case being decided by a close vote. Anything closer than 7:2 will surprise me.
Why? The ADEA sets up a dual scheme for private employers and for federal employers. Those who work for private employers have an express statutory provision that forbids retaliation. Those who work for a federal employer do not. Under the most elementary rules of statutory interpretation, this means federal employees do not have a claim for retaliation. There's no way four Justices are going to strain the language of the statute to reach the result that Gómez-Pérez wants them to reach.
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