Babb v. Wilkie (18-882)

argument 18-882

Babb v. Wilkie

Supreme Court of the United States 59 min 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What does Section 633A of the ADEA require for federal personnel actions?

John G. Roberts 0:00

We'll hear argument uh this morning in case eighteen eighty eighty two, BAP versus Wilkie. Mr Martinez.

Unknown 0:10

Mr. Chief Justice, and may it please the court, Section six thirty-three A states that all federal personnel actions shall be made free from any discrimination based on age. Both parties agree that that language tracks the text and meaning of Title VII's identical federal sector provision covering race, sex, and religion. Together, the two provisions bar discrimination not only in the ultimate outcome of a personnel decision, but also in the process of making that decision. That's true regardless of whether the prohibited characteristic at issue is a butt-forec of the final decision. That's the rule that the MSPB and the EEOC have applied in countless cases for many years. But more importantly, it flows directly from the statutory text.

Unknown 0:55

The phrase free from any discrimination governs how the decision shall be made. In other words, the process for making that decision. If that process uses age or race as a negative factor, it's not made free from any discrimination. Congress chose those words carefully. Rejecting the private sector language later addressed in Gross and Nasser. It did so in the unique federal sector context to create a remedy for violating constitutional equal protection rights. This court has said that when a plaintiff is subjected to discrimination in the process of being considered for a government benefit, he necessarily suffers a redressable equal protection injury, even if he can't prove he otherwise would have received the benefit.

Unknown 1:40

That same injury rule governs six hundred thirty three A in Title Seven. That rule is fully consistent with common law principles and this courts but for causation analysis in other cases. The government in this case apparently believes it's perfectly lawful for federal agencies to apply younger is better or whiter is better hiring policies to individuals who can't prove that they would have been hired but for those policies. That's anti-textual and it's wrong. Decisions applying such blatantly discriminatory policies are obviously not made free from any discrimination. The government's theory contradicts the plain statutory language.

Brett M. Kavanaugh 2:18

But you say that the but for causation is not required. for liability. But then at the relief stage, as I understand your briefs, you say that but for causation is required for reinstatement or back pay and where is that in the statutory text?

Unknown 2:40

So we would say that that at the rule at the remedial stage, ordinary remedial principles would apply. And those principles would require that the victim, the the plaintiff, be made whole for the violation. And under those ordinary principles that I think are undisputed on both sides, if the evidence shows that the the person, the plaintiff, couldn't ha wouldn't have gotten hired anyway, they shouldn't get remedies that are specifically and logically tied to the remote. To that that thing that they they weren't wouldn't have been entitled to in the first place. But that doesn't mean that they shouldn't get the kinds of prospective uh relief that are available in a wide array of other uh cases. For example, an injustice.

Unknown 3:17

But

Brett M. Kavanaugh 3:18

why why would we go all the way up the hill uh and then come all the way back down at the relief stage and just say, Oh well you really do need but for causation because as you rightly say, if you haven't suffered a an action because of age, you're not entitled to reinstate the money. Your

Unknown 3:36

Honor, with respect, you wouldn't be coming all the way down the hill because there would be a wide range of other types of remedies that would be available other than reinstatement and back pay. For example, you might be entitled to an injunction telling the government to stop discriminating. Let's wait this this case, because there is at least one of her allegations is that she was uh passed over and younger people were selected for Uh the coagulation unit. Yeah, suppose That's true. Younger women were selected. But they were better qualified. They had experience and training that she lacked.