Supreme Court Decides Not To Decide Age Bias Circuit Split

This morning, on one of the first days of the 2013-2014 Term, the Supreme Court of the United States—as widely predicted—dismissed the writ of certiorari in an age discrimination case as improvidently granted. After hearing oral arguments in Madigan v. Levin (12-872) on the first day of the term, the Court issued a one-line order in dismissing the case, which had come out of the Seventh Circuit Court of Appeals.

The issue in Madigan v, Levin was whether the Age Discrimination in Employment Act (ADEA) was the exclusive remedy for age discrimination claims brought by a former Illinois assistant attorney general against the state and against attorney general employees in their individual capacities. Specifically, the Court had agreed to decide whether the Seventh Circuit had erred in holding that the ADEA’s comprehensive remedial regime did not preclude state and local government employees from bringing age discrimination claims directly under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and 42 U.S.C. § 1983. In deciding the case, the Seventh Circuit had acknowledged that it was straying from the rule followed in at least four other circuits.

During last Monday’s oral arguments, with retired Justice Sandra Day O’Connor looking on, the justices questioned why the Supreme Court had agreed to hear the case. Justices Samuel A. Alito, Jr. and Anthony M. Kennedy expressed concern over whether the Seventh Circuit had had authority to decide the case before it was due to go to trial. The justices also focused on the issue of whether the assistant attorney general who brought the case should be considered an employee—and thus excluded from the ADEA’s protections—or an appointee—in which case he would be covered under the Government Employee Rights Act of 1991, which entitles certain government employees to ADEA remedies. The justices found it important that neither of the parties had discussed this federal law in the lower courts. Eventually, Chief Justice John G. Roberts, Jr. suggested that the case be returned to the lower courts and Justice Stephen G. Breyer suggested that the Court dismiss the case as one that should not have been granted.

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