An important civil rights case that the Supreme Court is scheduled to take up as the first case in its next Term should be sent back to a lower court because of a procedural flaw, a group of twelve law professors have argued in a new brief.  The Seventh Circuit Court, the brief contended, did not have the authority to decide the age discrimination issue that the Justices are set to review.   The case is Madigan v. Levin (docket 12-872) — now scheduled to be heard on opening day, October 7.

On March 18, the Court agreed to take on the case, to decide whether state and local government workers complaining of age bias on the job have a right to raise that issue directly under the Constitution, or must press their claim under a federal law forbidding such discrimination.  There is a split among federal appeals courts on that issue, and that is likely why the Court accepted it for review.

In this case, the Seventh Circuit ruled that the constitutional claim could go ahead.  But, the law professors contended, that court lacked jurisdiction to decide that question.  That is a procedural issue that no one else in the case has raised, the professors noted in the brief they filed a week ago.

Although there is no bar to the Supreme Court going ahead to decide that question, since its authority differs from that of federal appeals courts, the professors asserted that the Justices should not do so because that could encourage appeals courts to take up a host of issues that are not properly before them.   This would put a heavy burden on the Supreme Court, would add significant costs to litigation, according to the academics’ brief, and would disrupt the trial processes in district courts.

The granted case involves a claim by Harvey Levin, a former assistant in the Illinois state attorney general’s office, who claimed that he was fired — at age sixty-one — because of his age and because he was a male.  He was let go in favor of a younger, female lawyer, he claimed.  The case actually raises two issues: were the state attorney general and others whom he sued entitled to immunity from his lawsuit; and, could he file his lawsuit directly under the Constitution’s guarantee of equal legal protection or was he required to pursue it under the federal Age Discrimination in Employment Act.

Both of those issues were raised in the Seventh Circuit, but before any actual trial had been conducted on them.  Technically, then, the appeal — filed by state officials to challenge a district court ruling in Levin’s favor — was an “interlocutory” (pre-trial) appeal.  The law professors’ brief contended that the Supreme Court has put strict limits on when such an appeal can be pursued, because of a customary rule that only final decisions of district courts are subject to appeal, after a trial.

One kind of issue on which a pre-trial appeal can be pursued is whether a public official has immunity from a lawsuit.  Early resolution of that question is considered vital to the ability of public officials to do their work unimpeded.

The Seventh Circuit, however, decided both issues.  It ruled that the state officials whom Levin sued had no immunity, and it decided that the ADEA law did not displace a public employee’s right to sue under the Constitution itself for age bias.

According to the law professors’ brief, the only issue that the Seventh Circuit had jurisdiction to decide was the qualified immunity issue, because that was the only legal issue on which the state officials had a right to pursue a pre-trial appeal.  The Seventh Circuit took on the other issue, on the nature of the lawsuit that was open to Levin, only by “bootstrapping” that question onto the immunity issue, the professors argued.

The Seventh Circuit found that the second issue was “collateral” to and “pendent” on the immunity issue, so it had jurisdiction to decide both.  But, the professors’ brief contended, an issue can be “collateral” to an appealable question only if the two are closely intertwined.  The immunity question is not linked to the kind of lawsuit Levin could file, the brief argued.

On the immunity question, the professors said the Seventh Circuit got it right, so the Supreme Court should uphold that ruling.  But it should then tell the Seventh Circuit that it could not decide the question about the scope of Levin’s right to sue.  Instead of deciding that question now itself, the Supreme Court should return it to the district court, and it would be open to appeal after a trial is held and a final ruling comes down, the brief suggested.

The state officials who took the case to the Supreme Court will have a chance to respond to the professors’ challenge, when the state’s reply brief on the merits is filed.  If they do not do so, the Court presumably could call for new briefs on that issue before the case is heard.   The Court, of course, retains the option of deciding the issue they have taken on — an issue, by the way, on which the law professors agreed with Levin’s claim that he was free to go ahead under the Constitution.

Posted in Madigan v. Levin, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Challenge to granted case, SCOTUSblog (Aug. 13, 2013, 12:49 AM), http://www.scotusblog.com/2013/08/challenge-to-granted-case/