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No. 06-1321

In the Supreme Court of the United States

MYRNA GOMEZ-PEREZ, PETITIONER
v. JOHN E. POTTER, POSTMASTER GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
MARLEIGH DOVER
AUGUST E. FLENTJE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the federal sector prohibition against dis crimination based on age in the Age Discrimination in Employment Act of 1967, 29 U.S.C. 633a (Supp. IV 2004), creates a cause of action that permits an employee to sue a federal employer for alleged retaliation.

In the Supreme Court of the United States

No. 06-1321

MYRNA GOMEZ-PEREZ, PETITIONER
v.
JOHN E. POTTER, POSTMASTER GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-10a) is reported at 476 F.3d 54. The opinion and order of the district court (Pet. App. 11a-32a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on February 9, 2007. A petition for rehearing was denied on March 20, 2007 (Pet. App. 33a). The petition for a writ of certiorari was filed on March 30, 2007. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq., provides that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age" in specified federal departments and agencies, including the United States Postal Service, "shall be made free from any discrimination based on age." 29 U.S.C. 633a(a) (Supp. IV 2004). Any person aggrieved by such discrim ination "may bring a civil action in any Federal district court of competent jurisdiction for such legal or equita ble relief as will effectuate the purposes of this chapter." 29 U.S.C. 633a(c). With one exception not relevant here, personnel actions taken by federal departments and agencies covered by the ADEA are not "subject to" any other provision of the ADEA. 29 U.S.C. 633a(f).

b. The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. 1101 et seq., provides that it is unlawful to

take or fail to take, or threaten to take or fail to take, any personnel action against any employee or appli cant for employment because of-

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

(B) testifying for or otherwise lawfully assist ing any individual in the exercise of any right referred to in subparagraph (A).

5 U.S.C. 2302(b)(9).

Many employees of the United States Postal Service (USPS) are excepted from the CSRA and are instead covered by collective bargaining agreements or a per sonnel system developed by the USPS. See 39 U.S.C. 410(a), 1001, 1206(b) (authorizing collective bargaining), 1209(a). In authorizing those alternative personnel sys tems, Congress required the USPS to "assure its offi cers and employees * * * full protection of their employment rights by guaranteeing them an opportunity for a fair hearing on adverse actions." 39 U.S.C. 1001(b).

The USPS personnel system prohibits "any action, event, or course of conduct that * * * subjects any person to reprisal for prior involvement in EEO activ ity." USPS, Employee and Labor Relations Manual § 665.23, at 688 (Feb. 15, 2007) (ELM) <http://www. usps.com/cpim/manuals/elm/elm.htm>. All collective bargaining agreements incorporate that prohibition against retaliation. They also prohibit discipline that is "punitive" and not "for just cause."1

2. Petitioner was a window distribution clerk for the USPS. Pet. App. 1a. In November 2002, petitioner re quested a transfer from a position at the Moca, Puerto Rico Post Office to a position at the Dorado, Puerto Rico Post Office. Id. at 2a. Petitioner's supervisor denied that request. Ibid. Petitioner filed an equal employ ment opportunity complaint with the USPS, alleging that she had been discriminated against on the basis of age. Ibid. Petitioner alleges that, after she filed that complaint, she was subjected to various forms of retalia tion. Ibid.

In November 2003, petitioner filed suit in the United States District Court for the District of Puerto Rico, against the USPS, alleging, inter alia, that she had been subjected to retaliation for filing an age discrimination complaint and that this retaliation constitutes a violation of the ADEA. Pet. App. 3a. The district court granted summary judgment to the government on petitioner's retaliation claim, holding that the United States had not waived its immunity from suit for retaliation claims. Id. at 21a-32a. The court reasoned that waivers of immu nity must be express, and that the federal sector age discrimination prohibition does not contain an express waiver of immunity for retaliation claims. Id. at 29a- 31a.

3. The court of appeals affirmed. Pet. App. 1a-10a. The court held that sovereign immunity does not pre clude an ADEA suit against the USPS because the Postal Reorganization Act, 39 U.S.C. 101 et seq., waived the USPS's sovereign immunity. Pet. App. at 4a. The court further held that the ADEA does not "allow a plaintiff to bring a cause of action against the federal government for retaliation." Ibid. The Court reasoned that the "text of § 633a clearly prohibits discrimination against federal employees (over forty years old) based on age, but says nothing that indicates that Congress meant for this provision to provide a cause of action for retaliation for filing an age-discrimination related com plaint." Id. at 5a.

The court noted that this Court in Burlington North ern & Santa Fe Railway v. White, 126 S. Ct. 2405, 2412 (2006), had explained that the substantive prohibition against discrimination in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., seeks to prohibit injury to individuals based on their status, whereas Title VII's anti-retaliation provision seeks to prevent harm to individuals based on their conduct. Pet. App. 5a. The court concluded that this "clear difference between a cause of action for discrimination and a cause of action for retaliation leads to the conclusion that if Congress had meant to provide for both causes of action, it would have said so explicitly." Ibid.

The court of appeals rejected on several grounds peti tioner's reliance on the holding in Jackson v. Birming ham Board of Education, 544 U.S. 167 (2005), that the implied right of action in Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., for discrim ination based on sex encompasses protection against retaliation. Pet. App. 6a-7a. First, the court noted that Jackson was "interpreting a judicially-created cause of action," giving the Court authority to define "the con tours of that right of action." Id. at 6a (citation omitted). Second, the court observed that the Jackson Court had premised its holding in part on its conclusion that a re taliation remedy was necessary to further the statute's objectives because coaches and teachers, although not themselves the targets of sex discrimination, were often in the best position to identify such discrimination against students. Id. at 6a-7a. Third, the court noted that Title IX was enacted against the backdrop of Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), which had held that a statute barring discrimina tion based on race gave rise to a implied right of action to sue for retaliation. Pet. App. 7a. The court concluded that none of those rationales applies in the present con text. Id. at 6a-7a.

In concluding that the ADEA federal sector prohibi tion does not encompass retaliation, the court of appeals also relied on the structure of the ADEA. In particular, the court noted that the ADEA provision governing pri vate employers expressly provides a cause of action for retaliation, making the absence of such a parallel provi sion in the federal sector significant. Pet. App. 7a-8a. Moreover, the court noted, the federal sector ADEA provision specifies that federal employers shall not be subject to the provisions that govern private employers. Id. at 9a (citing 29 U.S.C. 633a(f)).

The court of appeals noted that the D.C. Circuit had held in Forman v. Small, 271 F.3d 285 (2001), cert. de nied, 536 U.S. 958 (2002), that the ADEA federal sector provision creates a cause of action for retaliation. Pet. App. 8a-9a. For the reasons discussed above, however, the court disagreed with the D.C. Circuit's conclusion. Id. at 8a-10a.

ARGUMENT

The court of appeals correctly held that the ADEA provision applicable to federal employers does not cre ate a retaliation remedy, and that holding does not con flict with any decision of this Court. The decision below conflicts with the D.C. Circuit's decision in Foreman. Because those are the only two circuits that have ad dressed the issue, however, further ventilation of the issue may be appropriate and could eliminate the need for the Court's intervention to resolve the issue. More over, review is particularly unwarranted in the context of this case because, regardless of the scope of the ADEA, most USPS employees, including petitioner, are protected against retaliation under the terms of collec tive bargaining agreements. The petition for a writ of certiorari should therefore be denied.

1. The federal sector ADEA provision prohibits "discrimination based on age." 29 U.S.C. 633a(a) (Supp. IV 2004) (emphasis added). When viewed in the context of the ADEA as a whole, the term "based on age" limits the reach of the federal sector ADEA prohibition to dis crimination based on the individual victim's age; it does not cover retaliation against a person who has filed an age discrimination complaint.

A comparison between the ADEA's provisions gov erning private employers and the provision governing federal employers is particularly revealing. The provi sions governing private employers separately prohibit both discrimination because of an individual's age, 29 U.S.C. 623(a)(1), and discrimination because an individ ual has filed an age discrimination complaint, 29 U.S.C. 623(d), while the ADEA provision governing federal employers prohibits only discrimination based on age. 29 U.S.C. 633a(a) (Supp. IV 2004). Equally important, the provision applicable to federal employers specifies that none of the provisions governing private employers shall apply to federal employers. 29 U.S.C. 633a(f). The overwhelming implication from that series of provisions is that while the ADEA's private sector provisions pro hibit both discrimination based on a victim's age and retaliation based on a person's conduct in filing an age discrimination complaint, the federal sector provision reaches only discrimination based on the individual victim's age. See Pet. App. 9a-10a.

It is also significant that the federal sector provision constitutes a waiver of the United States' immunity from suit. It is an accepted principle of statutory construction that waivers of the United States' immunity from suit "must be construed strictly in favor of the sovereign." United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992) (citation and internal quotation marks omitted). That principle of strict construction leads to the conclusion that the federal sector ADEA provision prohibits only discrimination based on the individual victim's age, not retaliation against a person for filing an age discrimina tion complaint.2

That understanding of the ADEA's federal sector prohibition is also consistent with the Court decision in Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006). In that case, the Court held that the provision in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., barring discrimination by private employers because of, inter alia, race or sex is "not co terminous" with a Title VII provision barring discrimi nation by private employers because a person has filed a Title VII complaint. Burlington, 126 S. Ct. at 2414. The Court explained that "[t]he substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct." Id. at 2412.

That analysis is equally applicable here. The federal sector prohibition against discrimination "based on age" seeks to prevent injury to individuals based on their status as persons who are more than 40 years of age; it does not seek to prevent harm to individuals based on their conduct in filing an age discrimination complaint.

That reading of the federal sector prohibition against discrimination based on age does not leave persons who complain of age discrimination without protection against retaliation. The CSRA makes it a prohibited personnel practice to "take or fail to take, or threaten to take or fail to take, any personnel action" because an employee has "exercise[d] * * * any appeal, complaint or grievance right granted by any law, rule, or regula tion" or "testif[ied] for or otherwise lawfully assist[ed] any individual in the exercise of any [such] right." 5 U.S.C. 2302(b)(9). A federal employee claiming retali ation that results in removal, suspension of more than 14 days, or reduction in grade or pay may seek relief from the Merit Systems Protection Board (MSPB) with re view by the Federal Circuit. 5 U.S.C. 7512, 7701-7703. An employee complaining of retaliation of a less serious nature may bring a complaint to the Office of Special Counsel, which is authorized to seek corrective action on the employee's behalf before the MSPB. 5 U.S.C. 1212.

The CSRA excludes many USPS employees from its protections. But those employees are protected against retaliation by USPS regulations and collective bargain ing agreements. The Postal Service ELM prohibits "any action, event, or course of conduct that * * * subjects any person to reprisal for prior involvement in EEO ac tivity." ELM § 665.23, at 688. That prohibition applies to employees who work under a collective bargaining agreement as well as those who do not. See, e.g., Agree ment Between the USPS and the National Postal Mail Handlers Union art. 19 (2000) (Mail Handlers Agree ment) <http://www.npmhu.org/Resource/Agreement/ USPSNPMHU2000NationalAgreement.pdf>; Harrell v. USPS, 445 F.3d 913, 922-923 (7th Cir), cert. denied, 127 S. Ct. 845 (2006). Employees who work under a col lective bargaining agreement also are protected from discipline that is not "for just cause," and retaliation for filing an ADEA claim would not constitute just cause. See Mail Handlers Agreement art. 16; USPS & American Postal Workers Union, National Collec- tive Bargaining Agreement art. XVI (July 20, 1971) <http://www.apwu.org/dept/ind-rel/sc/oldcbas/ APWU%20Contract%201971-1973.pdf>.

2. Petitioner errs in contending (Pet. 7-8) that the decision of the court below conflicts with this Court's decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). In Jackson, the Court addressed the scope of the implied right of action in Title IX, which provides that "[n]o person * * * shall, on the basis of sex, * * * be subjected to discrimination under any education program or activity receiving Federal finan cial assistance." 20 U.S.C. 1681(a). The Court in Jack son held that retaliation against a person because that person has complained of sex discrimination gives rise to a private right of action under that provision. 544 U.S. at 173-174.

Petitioner seeks to extrapolate from Jackson the rule that any prohibition against discrimination based on a particular characteristic necessarily carries with it a prohibition against retaliation against a person who complains of that form of discrimination, regardless of the statutory scheme at issue. Pet. 8. Jackson, how ever, established no such sweeping principle. To the contrary, Jackson noted that Title VII's prohibition against discrimination by private employers based on race and sex does not encompass protection against re taliation, 544 U.S. at 175, a point this Court reaffirmed in Burlington. See 126 S. Ct. at 2412, 2414.

Moreover, rather than relying on statutory language in isolation, the Court in Jackson rested its decision on several key contextual factors, including that (1) Title IX, in contrast to Title VII, creates an implied rather than an express cause of action, 544 U.S. at 175, (2) Title IX was enacted against the backdrop of the Court's holding in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), that a similar statute created an implied right of action for retaliation, Jackson, 544 U.S. at 176, and (3) Title IX's statutory purposes cannot be achieved without protection against retaliation. Id. at 180.

None of those factors is present here. First, the ADEA creates an express cause of action, not an implied right of action. Second, because Sullivan, like Jackson, interpreted the scope of an implied right of action, it cannot be presumed that Congress was seeking to incor porate Sullivan's holding when it enacted the ADEA's express cause of action five years later. And third, be cause the CSRA, federal regulations, and collective bar gaining agreements furnish protection against retalia tion, an ADEA retaliation remedy is not needed to accomplish the ADEA's purposes.

Even more important, the provision at issue here is informed by at least two contextual factors that were not present in Jackson. As discussed above, the structure of the ADEA as a whole (especially its different treat ment of private and federal employers) and the principle that waivers of sovereign immunity must be strictly con strued lead to the conclusion that the provision at issue here does not afford protection against retaliation. Be cause the context of the provision at issue here differs so fundamentally from the context of the provision at issue in Jackson, petitioner's reliance on that decision is misplaced.

3. As petitioner notes (Pet. 7), the decision below conflicts with the D.C. Circuit's decision in Forman v. Small, 271 F.3d 285 (2001), cert. denied, 536 U.S. 958 (2002). Review of that conflict is not warranted at this time.

At present, there is only a one-to-one circuit split on the question presented, and that issue may benefit from further ventilation in the circuits. There will be ample opportunity for such ventilation in the near future be cause cases raising the issue are pending in at least two additional circuits. See Whitman v. Mineta, No. 05- 36231 (9th Cir. filed Dec. 30, 2005); Kuzdrowski v. Nicholson, No. 06-4894 (3d Cir. Nov. 29, 2006); Stremple v. Secretary Dep't of Veterans Affairs, No. 06-3807 (3d Cir. filed Aug. 23, 2006).

Moreover, should those circuits agree with the court below, the conflict may ultimately resolve itself without the need for the Court's intervention. If three circuits should agree with the government's position in this case, the D.C. Circuit may well be willing to revisit its deci sion in Forman. That is particularly true because the D.C. Circuit decided Forman without the benefit of briefing on "whether § 633a prohibits retaliation." 271 F.3d at 295.

Furthermore, the Forman decision is premised in part on the court's view that, if there were no ADEA retaliation remedy, a federal employer could fire an em ployee who complained of age discrimination. 271 F.3d at 297. In the court's view, failing to recognize a retalia tion remedy would therefore "produce absurd results." Ibid. As discussed above, however, independent of the ADEA, federal law prohibits federal employers from engaging in such retaliation. The D.C. Circuit's error on that component of its analysis provides yet another reason to conclude that the D.C. Circuit might be willing to revisit its decision in Foreman.

Finally, Forman was decided before this Court's de cision in Burlington, a case on which the court below heavily relied. See Pet. App. 5a. It was also decided before this Court's decision in Jackson, a case on which petitioner primarily relies. Review of the question presented should await a conflict in circuit court decisions that take those two decisions into account.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
MARLEIGH DOVER
AUGUST E. FLENTJE
Attorneys

JULY 2007

1 Agreement Between the USPS and the National Postal Mail Handlers Union arts. 16, 19 (2000) < http://www.npmhu.org/Resource/Agreement/USPSNPMHU2000NationalAgreement.pdf>; see USPS & American Postal Workers Union, National Collective Bargaining Agreement arts. II, XVI (July 20, 1971) <http://www.apwu.org/dept/ ind-rel/sc/oldcbas/APWU%20Contract%201971-1973.pdf> (termination only "for just cause").

2 As the court of appeals noted (Pet. App. 4a), the Postal Reorganiza tion Act generally waives the USPS's immunity from suit. For most federal employers, however, the ADEA constitutes the sole waiver of immunity from ADEA claims. Because the ADEA cannot be inter preted one way for federal agencies and departments for which it con stitutes the only waiver, and a different way for agencies for which Con gress has generally waived immunity from suit, the principle that waivers of sovereign immunity must be strictly construed is applicable here. Cf. Clark v. Martinez, 543 U.S. 371, 380 (2005).