By Daniel B. Kohrman
Senior Attorney, AARP Foundation Litigation

Update, OCT. 15: On Tuesday, October 15th, the Supreme Court dismissed Madigan v. Levin as improvidently granted.


The Fall 2013 Term of the U.S. Supreme Court began Monday with an age discrimination case, with broad implications for civil rights enforcement under the Fourteenth Amendment to the Constitution.  A lively argument left questions as to whether the Justices had chosen the right case to begin their year.  In fact, many justices expressed skepticism about whether Madigan v. Levin, No. 12-872, was properly before them.

supremecourtbuildingMadigan v. Levin is a challenge to a 7th Circuit ruling, 692 F.3d 607, upholding the right of Harvey Levin, a former senior member of the Illinois Attorney General’s Office, to contest his termination, allegedly based on his age, under the Age Discrimination Employment Act (ADEA), the Equal Protection Clause of the Fourteenth Amendment, and Section 1983 of the Civil Rights Act.

The petitioner, Illinois Attorney General Lisa Madigan, argued that the ADEA is the exclusive remedy for age discrimination claims.  She asserted that federal anti-discrimination statutes, including the ADEA, are so comprehensive as to demonstrate Congress’ intent to preclude a parallel anti-discrimination claim under the Constitution,   and therefore that the ADEA displaced any competing, constitutional claim for age discrimination under the Constitution or § 1983.

The 7th Circuit noted that “[a]ll other circuit courts to consider the issue have held that the ADEA is the exclusive remedy for age discrimination claims.” …  But they disagreed.  The court said the matter was “admittedly a close call, especially in light of the conflicting decisions from our sister circuits.”

The 7th Circuit also affirmed a judgment that qualified immunity did not shield Madigan from Levin’s § 1983 claim for damages.  To establish a qualified immunity defense, a defendant may show either that the plaintiff failed to set forth a viable claim, or that the rights allegedly violated were not clearly established at the relevant time.   The 7th Circuit’s ruling did not disturb the trial court’s decision that Levin had no age discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA), because his former job fit within an exemption to ADEA coverage.

The themes presented by Madigan are essentially threefold:

  1. To what extent may civil rights plaintiffs rely on multiple, overlapping claims to remedy injustices, or are various civil rights protections – here for older workers – mutually exclusive?
  2. To what extent does the doctrine of “qualified immunity” prevent state employees from invoking federal civil rights protections?
  3. To what extent will the Court reach out to issue rulings in civil rights cases, even when full briefing and argument reveals that the issue(s) the Court elected to hear are not those actually presented?

Arguing for Madigan, Illinois Solicitor General Michael Scodro began with a straightforward recital of the issue.  Illinois sought the Court to decide:

Congress has crafted a comprehensive body of administrative and judicial procedures and remedies that are tailored specifically to combatting discrimination against older workers. In extending these procedures and remedies to government employees, Congress did not intend to permit State and municipal workers alone to frustrate this regime or bypass it entirely using the more general remedies of Section 1983.

That is, the ADEA requires exhaustion of private and state and local government employee age discrimination charges before the U.S. Equal Employment Opportunity Commission (EEOC).  Allowing state employees like Levin (and many municipal employees as well) to assert claims of employment discrimination by government employers (whose alleged misconduct constitutes state action) under the Constitution, via the Civil War era statute 42 U.S. C. § 1983 (ch.22, §1 of the 1871 Civil Rights Act), would “frustrate” the legislative scheme Congress enacted in the ADEA.

The fight in Madigan over a constitutional claim of age discrimination is ironic because proving such a claim, the parties agree, is very difficult, and it is far easier to prove a violation of the ADEA.  Thus, plaintiffs only are likely to bring such a claim if they cannot sue under the ADEA, such as when they have failed to follow EEOC filing requirements, or, as here, when the ADEA does not provide a claim in the first place.

But before Scodro got to address the merits, he was bombarded by a series of preliminary, jurisdictional questions. Justice Ginsburg launched the first salvo:  The case came to the 7th Circuit on an interlocutory appeal, which is a rare type of appeal that takes place to contest an issue that the court has decided but occurs before a final decision is handed down.  In this case the appeal dealt only with the trial cout’s finding that there was no qualified immunity.  That raised a fundamental question: What authority did the Court of Appeals have to also address other aspects of the interplay between  the ADEA and Section 1983?

Justice Alito came to Scodro’s defense, pointing out that “although the Seventh Circuit should not have considered the question of whether there was a cause of action under Section 1983,” the Supreme Court itself has “jurisdiction to consider that question” as “a matter of discretion.”  But Justice Kennedy, the swing vote in most major cases, sounded skeptical:  “What’s the rationale that we can exercise jurisdiction where a court of appeals could not?”  Is there “authority to grant certiorari before judgment?”

Justices Kagan, Scalia and Sotomayor then each pressed Scodro still further to justify the Court’s jurisdiction to consider anything more than the issue of qualified immunity – which Justice Ginsburg characterized as clear, in that the record establishes that the Equal Protection Clause prohibits irrational age bias.  Only Justice Alito returned to Scodro’s defense, worrying that for the Court to ignore the issue of ADEA preclusion of a Section 1983 claim until the end of the case might be wasteful.

Scodro seemed to be struggling mightily to stay afloat when Justice Scalia intervened to suggest he “say a few words about the merits.”  But Scodro was on the defensive almost immediately once more.

This time his struggle centered on the fact that that, as Justice Ginsburg noted, petitioners acknowledge it would be very difficult for Levin to sustain an ADEA claim because, as the district court found, he is an “appointee on the policymaking level” exempt from ADEA coverage.  See 29 USC § 630(f).  Thus, key premises of petitioners’ case – that Levin has rights under the ADEA he failed to invoke, that he seeks to invoke alternative rights and thus would “bypass” his actual ADEA rights, and that he would thereby “frustrate” Congress’ intent that he invoke those rights and no others—are  highly misleading.

Madigan’s merits briefs argued for the first time that Levin has a sort of ADEA claim in the form of a claim under the Government Employee Rights Act of 1991 (GERA), 42 USC 2000e-16a to16c.  The GERA created a claim for  employees like Levin exempted by the ADEA.  But Levin never asserted such a claim, and until the case came to the Supreme Court Madigan never asserted that the GERA provided rights to Levin that would support preclusion of a §1983 age discrimination claim under the Equal Protection Clause.

Justices Kagan, Breyer and most significantly, Alito, hit Scodro hard on the GERA.  Kagan:  “the point here is that Mr. Levin is covered not by the ADEA, but by a separate statute, the GERA.  And there’s a separate question whether the GERA would displace constitutional relief, which apparently has — has never been argued to anybody in this case.”  Breyer:  “I looked to see what the Seventh Circuit said [about the GERA]. Nothing. I looked to see what you argued below. Nothing. I looked to see whether it’s obvious that GERA does apply or doesn’t apply and simply picks it up or not. I don’t know. Maybe I’m just being thick. But nonetheless, where I don’t know so much and the whole case turns on it, why are we hearing an issue that might not even be in the case?”  And Alito:  “Has the Court ever held that an antidiscrimination statute that does not provide any rights for a particular class of plaintiffs nevertheless extinguishes the right of action that those plaintiffs would have under Section 1983?”  Justice Breyer suggested Scodro wanted an “advisory opinion,” and then said, “Sometime on occasion we dismiss a case as improvidently granted, which is not a particularly desirable thing to do. But how could we avoid doing that here?”

At the outset, Levin’s Attorney, Edward Theobald, spent an extended period on a losing gambit:  fencing with Justice Alito and Chief Justice Roberts about whether his client is an “employee” under the ADEA.  Justice Breyer bluntly opined that, but for the GERA, Levin had no such argument.

Justice Kennedy seemed to explore with Theobald another approach that would have the Court dodge a decision on the merits.  He asked about sending the case back to the lower courts, to decide “whether or not the GERA issue has been properly presented or waived and to consider that[.]”  Theobald objected that the case was scheduled for trial in 2014, and Justice Kennedy responded “that argument could be made in the district court.”

On rebuttal Justices Ginsburg and Kagan focused on the merits, alluding to support for Levin’s claim that both the ADEA and the Constitution are open to age discrimination in employment claims.  Kagan:  “All you have is a complicated remedial scheme, which would be enough to say, look, you can’t bring 1983 suits to vindicate this statute. But seems as though it’s not enough under our case law to repeal preexisting rights and remedies.”  Ginsburg: “isn’t it strange to think that Congress at the same time wanted employees to have these expanded [ADEA] rights and to do away with the preexisting remedies?”

By the end, while several of the so-called “liberal” Justices expressed support for a 14th Amendment age discrimination claim, none of the Justices articulated clear enthusiasm for a decision on the merits.

The arguments in Madigan v. Levin leave unclear whether there is a majority for recognition of an age discrimination claim under §1983 and the Equal Protection Clause.  More apparent are signs of majority support for a decision acknowledging, or at least demonstrating, that the case is not ready for resolution of the issues for which certiorari was granted.  Many of the comments and questions of the Justices suggest the most likely result is some sort of remand for further consideration of all or some of the issues addressed by the parties.

Links to briefs in this case, and additional coverage from SCOTUSblog