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Supreme Court Wants Input on Age Bias Laws in Federal Sector (1)

Jan. 17, 2020, 9:07 PMUpdated: Jan. 17, 2020, 10:26 PM

The U.S. Supreme Court requested briefs Friday in litigation about how to analyze age discrimination cases brought by federal workers.

The court directed Norris Babb and the Department of Veterans Affairs to submit supplemental briefs addressing what administrative or judicial relief is available to federal workers outside of the Age Discrimination in Employment Act, the law the case was filed under.

Babb alleges the VA denied her promotional opportunities because of her gender and age. The court heard oral arguments in the case on Jan. 15.

The justices’ request seems aimed at squaring away a point of disagreement, or misunderstanding—including the most pointed exchange between the lawyers—during oral arguments.

A Misrepresention of the Law?

Justice Brett Kavanaugh toward the close of arguments asked the government’s lawyer whether one of the remedies Babb is seeking in the case, an injunction, is also available to workers under other laws that grant protections to federal employees, like the Civil Service Reform Act.

An injunction is essentially a court-enforced order for a defendant or plaintiff in a case to take a particular action—an order for an agency to implement an equal employment opportunity or non-discrimination training program, for example.

Both Kavanaugh and Justice Neil Gorsuch, who raised the issue at a different point, seemed to suggest that Babb also could get injunctions under the Civil Service Reform Act. Government Solicitor Noel Francisco agreed.

Kavanaugh explained that he was concerned about the “practicalities” of the case, and how it would apply “in the real world going forward.” He then asked Francisco whether provisions in the CSRA afford injunctive relief to plaintiffs, which opposing counsel Roman Martinez was seeking, “albeit under a different statute.”

Francisco responded affirmatively, but Martinez strongly disputed the point in his rebuttal.

The Merit Systems Protection Board, which is largely responsible for enforcing the civil service law, says specifically on its website that the provision at issue “is not enforceable” and “that’s the rule that courts across the country have applied,” Martinez said.

“The Solicitor General has had months to come up with a solution to this hypothetical, and the best the Solicitor General can do is come up with a statutory provision that’s unenforceable,” he said.

Francisco didn’t directly dispute Martinez’s account in his final remarks.

The case is Babb v. Wilkie, U.S., No. 18-882, order 1/17/20.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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