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High court ADEA case could end up a bust

The Supreme Court chose to kick off its new term by hearing a case that considers whether the Age Discrimination in Employment Act trumps constitutional age discrimination claims brought under 42 U.S.C. §1983.

But during oral arguments Monday, the justices suggested that the case may be sent back to the 7th U.S. Circuit Court of Appeals without a ruling on the merits. Unanswered procedural questions over the appellate courts’ jurisdiction and which federal statutes may apply seem to have created unforeseen 11th-hour impediments for resolving the case.

The 7th Circuit ruled that the §1983 claim was not foreclosed by the ADEA, but did so during an interlocutory appeal of a ruling denying the state’s summary judgment motion on the basis of qualified immunity. The justices spent most of the oral argument session wondering aloud if the lower court had authority to reach that question, and by extension, if the high court should have taken the issue up so soon.

“Sometimes on occasion we dismiss a case as improvidently granted, which is not a particularly desirable thing to do,” Justice Stephen Breyer said. “But how could we avoid doing that here?”

The merits question — which places the 7th Circuit at odds with the 4th Circuit, which governs Maryland, as well as three other circuits — could have a major impact on age discrimination litigation. Unlike §1983 claims, the ADEA requires claimants to file a complaint with the Equal Employment Opportunity Commission rather than proceeding directly to court.

Also, §1983 allows for punitive damages, while the ADEA does not.

Fired state attorney

The case stems from an age discrimination complaint filed by Harvey N. Levin, who was an Assistant Illinois Attorney General until he was terminated in 2006, when he was 61 years old.

He claimed age discrimination in violation of the ADEA and §1983, arguing equal protection violations because he was replaced by a woman in her thirties. The state attorney general argued that Levin’s termination was due to poor performance.

The district court dismissed the ADEA claim, finding that Levin’s position did not fall within the scope of the statute’s protection. The state moved to dismiss the §1983 claim as well, arguing that it was foreclosed because the ADEA created an exclusive remedy for age discrimination claims.

The district court denied that motion, along with another seeking summary judgment on qualified immunity grounds.

Before the matter went to trial, the state filed an interlocutory appeal of the denial of the qualified immunity motion. The 7th Circuit affirmed. But the court went one step further, finding that it had the authority to also decide the underlying question of whether the §1983 claim was foreclosed by the ADEA.

The court found that the claim was not precluded, holding that the ADEA foreclosed other statutory age discrimination claims, but not constitutional claims — although it acknowledged that four other circuits has ruled to the contrary.

The Supreme Court granted the state attorney general’s petition for certiorari.

You say ADEA, I say GERA

Illinois Solicitor General Michael A. Scodro argued that Levin was attempting to “frustrate” the statutory regime created by Congress when it passed the ADEA, “or bypass it entirely using the more general remedies of §1983.”

But the justices addressed the potential jurisdictional hurdle first.

Justice Samuel Alito Jr. pointed out that amicus briefs “argue that the 7th Circuit should not have considered the question of whether there was a cause of action under §1983.”

Scodro argued that the justices had jurisdiction based on the power to hear direct appeals of constitutional questions. He also stressed that the qualified immunity issue was necessarily based on the determination of whether a §1983 cause of action exists.

“It would seem sensible as a matter of first principles to consider whether or not there is such a cause of action at all [rather] than waiting until final judgment,” Scodro said.

Justice Elena Kagan homed in on another potential hurdle.

“Mr. Levin is covered not by the ADEA, but by a separate statute,” the Government Employee Rights Act of 1991, Kagan said. (The GERA was passed to cover some government employees who were not covered by the ADEA.) “There’s a separate question whether the GERA would displace constitutional relief, which apparently has never been argued to anybody in this case.”

When Edward R. Theobald, a Chicago-based solo practitioner, argued on behalf of Levin, Justice Anthony M. Kennedy returned to the preliminary issues that stood in the way of the merits in the case.

“Would there be any unfairness to the parties if this case were remanded [to the 7th Circuit] with instructions for it in turn to remand to the district court to see whether or not the GERA issue has been properly presented or waived?” Kennedy asked.

“It would be very unfair to us,” Theobald replied. “We were scheduled to go to trial in May before the Court granted … cert. The case has been pending almost six years. And this issue in GERA was raised [by the state] only this year. It wasn’t raised for six years.”

During Scodro’s rebuttal argument, Justice Antonin Scalia expressed exasperation at not being able to reach the merits of the case.

“When the case is before us, counsel suddenly finds all sorts of reasons why we shouldn’t have taken it in the first place,” Scalia said. “You should have told us that before we took it.”

The case is Madigan, et al. v. Levin, No. 12A455. If the justices reach a decision, it is expected later this term.