Friday morning docket: Scalia speaks!

With oral arguments behind them, it’s crunch time for the justices of the Supreme Court, who still have many cases to decide before the term ends. They meet in conference today. And DC Dicta was remiss not to mention Justice John Paul Stevens’s birthday in last week’s docket. Stevens turned the spry young age of 88 last weekend. Only Justice Oliver Wendell Holmes graced the bench at an older age - he served until he was 90.

Meanwhile:

Are you still sore about the Supreme Court’s role in the 2000 presidential election? Justice Antonin Scalia has a message for you: “Get over it. It’s so old by now.” You can see his full “60 Minutes” interview with Lesley Stahl this Sunday, but here’s a preview:

The very last oral argument case this term involved the question of what happens in an age discrimination claim when the evidence offered by the employer and employee results in a tie for the factfinder. Well, it looks like the recusal of Justice Stephen Breyer could mean the Court itself could end up in a tie. (ABA Journal)

An invitation to Justice Clarence Thomas to speak at the commencement ceremony at the University of Georgia has sparked controversy. Some students and faculty called the invitation inappropriate given recent problems with claims of sexual harassment as the school. But the school’s president stands by his choice and the Atlanta Journal Constitution agrees. (U.S. News; AJC)

President Bush is less than thrilled with Democratic lawmakers’ housing relief plans. (AP)

The government’s plan to crack down on illegal workers could cost employers more than $1 billion a year and legal workers billions in lost wages, a study commissioned by the U.S. Chamber of Commerce says. (AP)

Court rules on EEOC ‘charge’ standard

Today the Supreme Court ruled that an EEOC intake questionnaire filled out by a FedEx employee constituted a “charge” of discrimination, triggering the agency’s duty to notify the employer and giving the employee, after a period of time, the ability to file a discrimination suit.

If you recall, it was during oral arguments in this case, Federal Express Corp. v. Holowecki, that justice Antonin Scalia expressed his serious dismay at the agency for failing to make clear to claimants what a “charge” is, and admonished the agency to “get its act in order.”

Today, Justice Anthony Kennedy’s opinion did not set a hard and fast rule that such questionnaires always constitute a charge, but rather held that “a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf.”

As to whether the employee in the case met that test, Kennedy wrote: “The agency says it does, and we agree.”

Justice Clarence Thomas, who once helmed the EEOC, did not agree. In a dissent joined by Scalia, Thomas wrote: “Because the standard the Court applies is broader than the ordinary meaning of the term “charge,” and because it is so malleable that it effectively absolves the EEOC of its obligation to administer the ADEA according to discernable standards, I respectfully dissent.”

The opinion can be found on the Court’s website here.

Friday morning docket: the Supremes are back

The justices of the Supreme Court head back to work today, where they are scheduled to conference for the first time this month. They could grant some petitions for certiorari or issue other orders today, and this blog will be updated with news on that front.

Next week, after the President’s Day holiday Monday, oral arguments resume, and two cases on the court’s docket involve employment retaliation claims. (As always, links go to the case summaries by the Oyez Project).

Tuesday, the Court will consider whether a federal employee, who has complained of age discrimination and was later fired, can bring a retaliation claim against her employer under the Age Discrimination in Employment Act in Gomez-Perez v. Potter, No. 06-1321. In Wednesday’s oral argument in CBOCS West, Inc. v. Humphries, No. 06-1431, the justices will consider whether an employee, fired after complaining that his supervisor used racial slurs, can bring a retaliation claim under 42 U.S.C. §1981 (the Civil Rights Act of 1866).

Tuesday, The Court will also consider whether the government can allow utility companies to renegotiate long-term contracts with wholesale energy suppliers in Morgan Stanley Capital Group v. Public Utility District No. 1, No. 06-1457, consolidated with Calpine Energy Services v. Public Utility District No. 1, No. 06-1462.

Meanwhile,

Lawmakers in the House don’t like the wiretap bill. (WaPo)

Lawmakers in the Senate don’t like waterboarding. (NYT).

Unhappy with the FDA’s performance, Michigan Democrat Rep. Bart Stupak called for agency Commissioner Andrew von Eschenbach’s resignation. (AP)

One lawmaker is pushing to give banks immunity from patent infringement lawsuits. (WaPo).

Rep. Tom Lantos is remembered. (SF Chronicle)

Kennedy winks in EEOC’s direction?

In yesterday’s Supreme Court oral argument in the age discrimination case Kentucky Retirement Systems v. EEOC, the Justice Department attorney arguing on behalf of the EEOC got the best sign he could hope for - an indication that  Justice Anthony “Swing Vote” Kennedy may be on his side.

“It does [discriminate],” Kennedy said, disputing the argument by the attorney defending the plan according to the Courier-Journal. “Age is the explicit factor that the statute uses. … Now, maybe there is some good reasons for doing that … but it seems to me it does make an explicit determination based on age as to some people.”

The case stems from an EEOC action claiming that Kentucky’s public employees’ retirement benefits system discriminates on the basis of age for treating retirees eligible for other benefits differently. The transcript from the argument is available here on the Supreme Court’s website.