Madigan v. Levin

Oral argument transcript · No. 12-872 · October Term 2013 · argued October 7, 2013 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Michael A. Scodro, State Solicitor General, for the petitioner
• Edward R. Theobald, III, Chicago, Illinois, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: Our first case this term is Case 12­872, Madigan v. Levin. Mr. Scodro? ORAL ARGUMENT OF MICHAEL A. SCODRO ON BEHALF OF THE PETITIONERS

Michael A. Scodro: Mr. Chief Justice, and may it please the Court: 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.

Justice Ginsburg: Mr. Scodro, there's a preliminary question before we get to the question you presented, and that is, what authority did the Seventh Circuit have to deal with the question under the Age Discrimination Act? I mean, it was ­­ it went to the Seventh Circuit on interlocutory review ­­

Michael A. Scodro: That's correct. Alderson Reporting Company Official

Justice Ginsburg: ­­ a qualified immunity question. Everybody agrees that there is no qualified immunity, that there ­­ that there is, indeed, a claim that the Equal Protection Clause includes age. So Second ­­ Seventh Circuit had no authority to deal with any question other than that, did it?

Michael A. Scodro: It did, Your Honor. The Seventh Circuit properly followed this Court's holding in Wilkie. In footnote ­­ in footnote 4 of that opinion, the Court concluded correctly that whether or not there was a Bivens action for a recognized ­­ in that case, due process violation, was itself part and parcel of the first prong of the qualified immunity inquiry and, therefore, properly considered on interlocutory ­­

Justice Ginsburg: But in Wilkie, the whole case was dismissed by the district court, wasn't it? So whatever was said in that footnote was dicta.

Michael A. Scodro: Your Honor, there's an argument in one of the amicus briefs that the ­­ there was an alternative route under 1254 in Wilkie and ­­ and, therefore, the argument is raised that it was dicta. But it wasn't dicta in context, Your Honor. The court didn't consider that alternative route. The court squarely held that it had Alderson Reporting Company Official jurisdiction, and that ­­ it goes on to say in the footnote that the appellate court properly exercised jurisdiction because the question of whether there is or is not a Bivens action for this constitutional right is properly considered part of the QI in ­­

Justice Alito: Now, we have an amicus brief from law professors who argue that the Seventh Circuit should not have considered the question of whether there was a cause of action under Section 1983. But they also go on to argue that we, nevertheless, have jurisdiction to consider that question and that it is a ­­ a matter of discretion for us to decide whether to do that. Is that ­­ do you agree with that position?

Michael A. Scodro: We do agree with that position. They cite Clinton versus Jones, and they cite the Fitzgerald decision for that position, Your Honor. And we would agree that ­­ while those may be modest extensions of the holdings in those cases, we would agree that this Court can exercise 2254 jurisdiction over the question.

Justice Kennedy: If we adopt that formulation and that solution, is it as if we are granting certiorari before judgment on an issue in our own discretion? Is that the way it works?

Michael A. Scodro: That's ­­ I think that ­­ no, I Alderson Reporting Company Official think the Court would still fairly consider the ­­ the Seventh Circuit's judgment on the issue, Your Honor. And, again, I would ­­ I would return to ­­

Justice Kennedy: Well, but how ­­ what's the mechanism for us ­­ what's the rationale that we can exercise jurisdiction where a court of appeals could not? Because we have ­­

Michael A. Scodro: Well ­­

Justice Kennedy: ­­ authority to grant certiorari before judgment or for some other reason?

Michael A. Scodro: The theory advanced in the amicus brief, with which we confer, is that 1254 grants the Court jurisdiction over the case, and that would include issues like this that were part and parcel of the case before the appellate court. Now, I should note that that amicus brief begins with the false premise that there was an exercise of pendent appellate ­­ appellate jurisdiction in this case. And, as we explained briefly in our reply brief, the one reference ­­ the sole reference to pendent appellate jurisdiction on Page 7­A of the Petitioner's appendix is merely a reference or a brief description of the failed argument advanced by the Respondent that pendent jurisdiction would not be a proper proceeding here. Alderson Reporting Company Official And the Court did not advance. They ­­ they squarely cited Wilkie and advanced along the ­­

Justice Kagan: Could ­­ could I go back, Mr. Scodro, to the ­­ to the rationale of ­­ of the ­­ that ­­ that you're relying on. I mean, you keep on saying, "part and parcel." But how is it part and parcel? That seems to allay the distinction between a right and a remedy. There's one question whether there has been a violation of law.

Michael A. Scodro: Sure.

Justice Kagan: There's another question whether a cause of action exists to remedy that violation. Why aren't those two separate inquiries?

Michael A. Scodro: Well, Your Honor, the Court, in Wilkie, moved from one to the other in the footnote. And I think that ­­

Justice Kagan: Well, I guess I'm asking you to explain it to me ­­

Michael A. Scodro: Sure. Sure ­­

Justice Kagan: ­­ because that footnote is about a sentence long. So what's the theory as to why these are part and parcel of each other?

Michael A. Scodro: Because a ­­ the Qualified Immunity Doctrine itself arises out of Section 1983 in Bivens, it would seem sensible, as a matter of first Alderson Reporting Company Official principles, to consider whether or not there is such a cause of action at all, at the outset, with the right to interlocutory appeal, rather than, given the qualified immunity as defense from litigation is ­­ and not just judgment, rather than waiting until final judgment and on a 1291 appeal, then addressing for the first time on appeal.

Justice Kagan: Well, that seems a different argument, not that the two really are intertwined with each other, but it ­­ that it just might make sense to consider the one at the outset, even though, in fact, it's a separate inquiry.

Michael A. Scodro: I think ­­ and I want to be clear ­­ I think there are two different rationales here. When discussing why it's ­­ Wilkie was correct in what it said in footnote 4, I would submit my most recent answer, namely, that it's part and ­­ it is ­­ not part and parcel, but it is natural and rational to ­­ to consider whether or not the cause of action exists at the outset. With regard to ­­

Justice Scalia: Well, if you're correct that the two are one and the same, how ­­ how is it that we have authorized district courts to do the one or the other? Alderson Reporting Company Official We ­­ we have not required district courts to reach the merits if they're ­­ if they can resolve the question on ­­ on the basis of qualified immunity alone. Well, how can that be, if the merits are necessarily part of the qualified immunity determination?

Michael A. Scodro: Well, Your Honor, some of the merits we know are part of it under the Court's decision in Hartman, where the Court concluded that the absence or the failure to properly plead an element is, indeed, properly considered a part of the qualified immunity inquiry. And here, the ­­ what ­­ what Wilkie did essentially, as I read it, is essentially add to that line of cases the idea that the presence or not of the Bivens action in that case, but logically speaking, the Section 1983 action here would be ­­ would be appropriately considered as part of the ­­ the first prong of the traditional two­prong qualified immunity.

Justice Ginsburg: You're running up against the Seventh Circuit in that respect because the Seventh Circuit held that the existence of ­­ of an ­­ whether ADEA was the exclusive remedy, that that was irrelevant to the qualified immunity issue.

Michael A. Scodro: Your Honor, toward the end of Alderson Reporting Company Official the Court's opinion, it's true, the Court uses the phrase that "it's irrelevant to the qualified immunity inquiry." In that context, I would submit the Court is using the phrase "qualified immunity," and I think this is clear in context, to refer as ­­ as lower courts have, at times, done ­­ to the second prong; that is the clearly established element of qualified immunity. Earlier in the opinion, in the section labeled "jurisdiction," the Court actually cites Wilkie and makes clear that it's following Wilkie's command that the presence or not of the Section 1983 action for a recognized constitutional right is considered part of the first prong.

Justice Alito: If the existence of a cause of action could not be considered in an interlocutory qualified immunity appeal, what would the effect be on the defendant's right not to be tried, which is the whole reason for allowing an interlocutory appeal in qualified immunity cases? Wouldn't it be the case that, if the district court found that there was no qualified immunity, then the case would have to be tried, and only at the end of the case could it be determined whether there actually was a cause of action? So you’d Alderson Reporting Company Official have a trial, potentially, about nothing.

Michael A. Scodro: That ­­ that's correct, Your Honor. In my earlier response to Justice Sotomayor's question, I think there ­­ or Justice Kagan's question ­­ I apologize ­­ I think it was ­­ that ­­ that's exactly right. This is immunity from litigation, immunity from suit.

Justice Ginsburg: The decision was that there was no qualified immunity. And the question is, having determined there was no qualified immunity, should they have stopped there? There wouldn't have been a trial ­­ if there is no qualified immunity, then they have no exemption from trial.

Michael A. Scodro: No, Your Honor. To decide that there isn't qualified immunity, the Court needs to consider both prongs and resolve them both adverse to the defendant. And, therefore, it was essential for the Court here to consider the argument that there is no Section 1983 action.

Justice Sotomayor: I'm not sure you see the distinction or ­­ or you're facing the distinction. The right not to be tried is one of qualified immunity.

Michael A. Scodro: Correct.

Justice Sotomayor: But you can have a constitutional violation and still not have a remedy, Alderson Reporting Company Official which is what this question involves. So how do we deal with the concept that other people who have motions to dismiss that are denied still undergo trials, still experience the expense, and yet, we've said, repeatedly, an interlocutory appeal is not warranted. And so what makes it warranted here, where a court has already said that there was a ­­ or at least there's enough evidence to suggest a constitutional violation and that a reasonable officer wouldn't have believed his or ­­ a person would have believed his or her conduct was appropriate?

Michael A. Scodro: Your Honor, with regard to that question, I would return to the notion that is a matter of first principles, given that qualified immunity is an outgrowth of Section 1983. The Court was very just ­­ was justified in Wilkie in treating the presence or not of the cause of action. This is a ­­ we're not talking about an affirmative defense, for example, in the form of statute of limitations as one example. We're talking about the existence or not of the Bivens right in that case, in the Section 1983 right here. It seems consistent with the fact that qualified immunity exists as a defense against Section Alderson Reporting Company Official 1983 and Bivens to contemplate the existence or not of that cause of action right at the threshold.

Justice Scalia: Maybe ­­ well, maybe you better say a few words about the merits?

Michael A. Scodro: Thank you, Your Honor. (Laughter.)

Michael A. Scodro: The ­­ the ADEA's remedial regime has the two elements that this Court has looked at, repeatedly, in determining whether a comprehensive regime or a regime is sufficiently comprehensive to displace more general Section 1983 ­­

Justice Ginsburg: There's another preliminary question, and that is, why are we talking about the ADEA, when the district court held that the ADEA doesn't cover Mr. Levin? And there seems to be not much of a dispute about that. You're not arguing that the ADEA does cover him, are you?

Michael A. Scodro: Well, we are ­­ we are arguing that the ADEA's rights and remedies do apply to Mr. Levin. And the reason is that, in 1991, with the amendments ­­ as part of the Civil Rights Overhaul Act of that year, the amendments in that Act extended, and it's a section entitled "Coverage of previously exempt State employees." It ­­ it extended ADEA rights and remedies Alderson Reporting Company Official to the previously exempt policymakers at other high levels.

Justice Alito: Well, has ­­ 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? What if Mr. Levin were under 40 years old? Would you say that his equal protection Section 1983 cause of action was extinguished by the ADEA?

Michael A. Scodro: No, we would not, Your Honor. And the reason ­­

Justice Alito: So what is the difference between someone who's under 40 and someone who is not an employee, within the meaning of the ADEA?

Michael A. Scodro: Sure. And, again, we're talking about the 1974 to 1991 period, just to be clear, because, since '91, appointees and employees, alike, are ­­ are ­­ have the full range of ADEA rights and remedies. During that period, under 40s ­­ as this Court held in Cline, that workers under the age of 40 simply were not part of the social ill that Congress aimed to redress. They were concerned with the plight Alderson Reporting Company Official of the relatively older worker. It's why the Court concluded in Cline that reverse discrimination is not covered and, also, the explanation for why Congress drew a line at age 40. Just as in Smith, for example, the Education of the Handicapped Act didn't extend to cover all manner of hurdles confronted by a disabled student. It ­­ it focused solely on a single issue facing ­­ a curricular issue facing these students. Undoubtedly, those students not covered by it would have retained their Section 1983 right, same with under­40 here. Now, as to the ­­ the narrow exception that existed between '74 and '91 for high­level government policy ­­ policymakers, we have the EEOC's understanding of why exactly Congress did that. They did so because there was concern on the part of members of Congress that it would be inappropriate from a matter of federalism and operationally to have federal involvement in the hiring decisions made by the highest members ­­ the elected members of state and local government. And that concern applies equally to Section 1983 claims. Because that concern applies equally ­­ we're not talking about people who weren't within the scope of the social ill; we're talking about a deliberate carveout for reasons that apply equally to Alderson Reporting Company Official Section 1983 ­­ we would submit that the exception, likewise, would have had force during that interim period.

Justice Alito: Why ­­

Justice Kagan: For some ­­ for ­­ please.

Justice Alito: Well, why should we consider that question? If this ­­ if we were back in the era before the enactment of the GERA, yes, we would have to consider that question. But now that the new statute has been passed, why should we consider whether someone who was a non­employee lacked a ­­ a 1983 cause of action during the period when that ­­ prior to the enactment of that statute?

Michael A. Scodro: You're actually ­­ absolutely correct, Your Honor. As we say in our reply brief, there is no need for the Court to confront that question in this case.

Chief Justice Roberts: Which question?

Michael A. Scodro: The question of whether or not, between 1974 and 1991, exempt employees ­­ those who then obtained ADEA rights in 1991, whether those employees could be ­­ their Section 1983 claims could have been displaced by ­­ notwithstanding the fact that they were carved out.

Justice Kagan: But I think the point here Alderson Reporting Company Official 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.

Michael A. Scodro: Two points, Your Honor. First, as we explain in reply and in ­­ in our opening brief, the GERA is properly considered merely a part of the broader remedial regime under the ADEA, and we explain why to look at it otherwise would create all sort of manner of artificialities. It's ­­ it's ­­ we know, from past statutes like the Genetics Act that was passed more recently, the way in which Congress would incorporate GERA by reference instead of vice­versa. We know that, for example, in that same 1991 Act, 1981(a) was added and provided punitive damages for a whole array of ­­

Justice Kagan: Well, there are some similarities ­­ many similarities, between the ADEA and the GERA, but there are also real differences. I mean, they're obvious ­­ they obviously cover different people; there are different procedural prerequisites for the suit; you get a different kind of review, you only get administrative review under the GERA. So it's a separate inquiry as to whether Alderson Reporting Company Official this statute that has some commonalities, but some differences, displaces constitutional claims, and it's an inquiry that really has never been addressed in this case.

Michael A. Scodro: And, Your Honor, to the extent, if the Court has concerns about addressing that ­­ and, again, I ­­ I'm happy to go on as to why it would be artificial to consider the two separately. But if the Court were to conclude that, rather than an ­­ effectively amending the ADEA, that the GERA amendments in 1991 really created a whole new statute that needs to be considered independent, the proper remedy would not be to dismiss this appeal, but would be to vacate the Seventh Circuit's judgment to permit Respondent to raise a claim that is new to this case on the merits here; namely, that there are different rules for appointees than employees.

Chief Justice Roberts: This is an ­­ the qualified immunity question is presented on interlocutory appeal.

Michael A. Scodro: It is, Your Honor.

Chief Justice Roberts: Decisions on the merits, factual and legal, are still pending. Now ­­ now, we have a determination by the district court that Mr. Levin is not an employee. Alderson Reporting Company Official

Michael A. Scodro: Yes.

Chief Justice Roberts: The prior district court determined that he was. The Respondents alleged that he was an employee in their complaint. I presume, depending upon how we rule on the qualified immunity issue, the parties may want to revisit their positions on that question as the case goes go forward. And the district court in the first instance, I suppose, would be the one to decide whether they're allowed to revisit the issue in light of the change in his perception of the law or not.

Michael A. Scodro: That's correct, Your Honor. If this ­­ if I'm understanding your question, that if ­­ if the ­­ depending on how this Court rules, it is always true, under Rule 54, that he could seek to have the district court reconsider his status. It's also true that, if he wished to proceed under the GERA process for vindicating ADEA rights, he has the option of seeking a dismissal without prejudice of his statutory claims ­­ this has occurred in a handful of district court opinions ­­ and then ask the EEOC if he can proceed in the first instance before an ALJ and to advance those claims. That is also an option that ­­

Justice Breyer: But there are a few things Alderson Reporting Company Official I ­­ I don't really know. I mean, does ­­ do you have to allege a claim under GERA for this particular individual? I don't know. And if you do, I don't know whether GERA simply picked up whatever saving of the equal protection otherwise would have existed in the ADEA or didn't. And I believe that GERA applies to employment discrimination claims based on gender or race or other things, right? Well, every circuit in the country has said you don't lose your ­­ your constitutional claim there. So are we supposed to read GERA, it goes this way in some cases and that way in other cases, when GERA is silent on the matter? And so I looked to see what the Seventh Circuit said. 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?

Michael A. Scodro: Your Honor, the Seventh Circuit was ­­ pronounced a rule that was indifferent as between appointees and employees. The reason for that was the Alderson Reporting Company Official Seventh Circuit was asked to announce a rule that is indifferent as to employees and appointees. There was ­­ the Respondent sought and obtained a rule that the ADEA does not displace, period.

Justice Breyer: That's about people not like the client who's at issue here. That is about people whom the ADEA did cover. Isn't that an advisory opinion in respect to this case? I don't know. That has a certain ring to it. But ­­ but what are we doing, deciding whether the ADEA applies and in what way to a person to whom it doesn't apply, assuming that GERA is, in fact, a separate statute that you have to sue under, the answer to which I do not know and which has never been argued.

Michael A. Scodro: Your Honor, there's very little lower court authority on the effect of GERA. I will say that what courts have done for I ­­ there is a case, for example, in which the allegation was Title VII as amended in 1991, and the Court construed that, naturally, to include the GERA rights.

Justice Breyer: And so, if there's so little about it, 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? Alderson Reporting Company Official

Michael A. Scodro: Your Honor, to reiterate a point made just a few moments ago, I think that the proper resolution, if ­­ GERA and the ADEA, again, are really one remedial regime. And ­­ and I've ­­ I've pointed out 1981(a) as an example of a ­­ of a similar regime, where punitive damages were added to a number of statutes. And yet, if we considered any one of those statutes today, we would agree that it includes punitive damages, even though it was added in a freestanding statute as part of the 1991 Act. But, again, I would say, as a procedural matter, should the Court harbor concerns about this issue and wish to permit the claim that appointees and employees are entitled to different displacement rules and the counterargument that, no, they're not because GERA effectively amends and adds to the ADEA, the way to handle that procedurally would be to vacate the judgment below and to let the parties argue those points to that court. As it stands, the Seventh Circuit was asked to issue a broad pronouncement that is indifferent to whether ­­ the Seventh Circuit was well aware and states that Mr. Levin was subject to an interlocutory determination that he was an appointee. Alderson Reporting Company Official And the court went on ­­ and the only relevance that had in the court's analysis, based on the way it was framed below, is that, well, because appointees and people under 40 and other categories appear to be carved out ­­ and we have answers to all of those in our briefs in response ­­ but because all of them appear to be carved out, the ADEA does not displace, ever, as to appointees or employees. That doesn't contemplate a new argument that as an ­­ as an appointee, rather, Mr. Levin has ­­ is subject to a different displacement rule. It would be for the Seventh Circuit to confront that in the first place.

Justice Sotomayor: I'm sorry. I ­­ the only issue that's before us is whether someone who's exempted from the ADEA still has a 1983 claim, correct? That's what the Seventh Circuit said. If you're not a part of the statute, then you still have your 1983 rights?

Michael A. Scodro: Your Honor, what the Seventh Circuit held is that the ADEA does not displace Section 1983 claims for employees or appointees. It was a sweeping ruling that was sought. And the contention now is, well, perhaps the court should not have reached such a sweeping ruling, perhaps the court could have ruled, Alderson Reporting Company Official instead, that, as an appointee, Mr. Levin is entitled to a different rule that is specific to appointees because they're exempt under the ADEA. That argument was never advanced before the Seventh Circuit. And, at this point, again, we would say should the Court harbor concerns about addressing this case, we would ask that they ­­ they vacate and let the Seventh Circuit address that issue in the first instance. If permitted, I would like to reserve my remaining time for rebuttal.

Chief Justice Roberts: Thank you, counsel. Mr. Theobald. ORAL ARGUMENT OF EDWARD R. THEOBALD, III, ON BEHALF OF THE RESPONDENT

Theobald: Mr. Chief Justice, and may it please the Court: I'd like to first address the jurisdictional issue. We made the argument before the Seventh Circuit that the Seventh Circuit did not have jurisdiction to ­­ on this issue of preclusion. And we argued that, under Swint ­­ the Court's decision in Swint, on an interlocutory appeal of qualified immunity, the Court would have to reach the ­­ in order to reach the issue of qualified immunity, it would have to address the Alderson Reporting Company Official preclusion issue. And our position was you don't have to look at ­­ you don't even consider that on qualified immunity. It's not part of the equation.

Chief Justice Roberts: Well, we said the exact opposite in Wilkie in footnote 4. I mean, you can say it's only a footnote, but it is what we said.

Theobald: Well, we respectfully disagree, Your Honor. And we made that argument, and in the decision that the Seventh Circuit reached, they said, we didn't have to consider this preclusion issue to reach the qualified immunity denial, that qualified immunity was not applicable. So we did argue that, and that was our position there. With respect to the issue presented here, the only thing that is pertinent is whether or not the ADEA can preclude an individual who's not covered by it, regardless if that individual is under 40 years old or if they're exempt from the statute or if they have a claim that the ADEA doesn't address.

Chief Justice Roberts: Well, your brother ­­

Justice Ginsburg: But did ­­

Chief Justice Roberts: ­­ who just sat down, explained that the Seventh Circuit's ruling didn't Alderson Reporting Company Official consider the issue that you're ­­ you're talking about now.

Theobald: Well, I would respectfully disagree, Your Honor. We ­­ the Seventh Circuit ­­ we made it clear in the Seventh Circuit that Mr. Levin had been excluded. He was excluded in July of 2011 by a decision of District Clerk Chang. He said in that ­­

Chief Justice Roberts: Was that the ­­ was that the first one or the second one?

Theobald: The second one. Judge Korr initially decided the issue twice and said Mr. Levin was covered by the ADEA.

Justice Alito: In your brief, could I just ­­ you say ­­ I think this is pretty close to the exact words ­­ there's no realistic possibility of your obtaining a holding that Mr. Levin is an employee within the ADEA. But do you concede that now?

Theobald: I concede that there's no realistic possibility.

Justice Alito: No. Do you concede that he is not an employee? If you just say that there's no realistic possibility that the courts are going to take this correct position, then the issue is still in the case. So is it your position that he is an Alderson Reporting Company Official employee or he is not an employee?

Theobald: Well, I ­­ I mean, they dodged ­­ he's ­­ the court has ruled ­­ the Seventh Circuit in Opp v. Cook County State's Attorney, Your Honor, made it very clear their State's attorneys would be ­­ appointees would not be covered under the ADEA.

Justice Alito: Well, if you're not willing to say that he is not an employee, then the issue is still in the case, and we would have ­­ if we were to rule on the ADEA issue, wouldn't we have to decide whether there is a remedy for somebody who is an employee within the ADEA?

Theobald: Well ­­

Justice Alito: The district court might be wrong on that. The Seventh Circuit might be wrong on that. And you may be right. There's not much of a realistic possibility that you're going to get a reversal of that. But the issue is still in the case, unless you want to give it up.

Theobald: Well, the Court will so rule. The Seventh Circuit ruled in the Opp v. Cook County case, and this Court denied cert in 2011 on the Opp v. Cook County case. But to stand here ­­

Chief Justice Roberts: So you don't want ­­ you don't want to ­­ you don't want to give it up, which Alderson Reporting Company Official makes sense. I mean, you've got a client. It depends on what we do, right? I mean, depending on what our ruling is, it may be advantageous to you to argue, as you alleged in your complaint, that he's an employee.

Theobald: Well, as we stand here now, he is not in this case. And I ­­ I don't know ­­

Justice Breyer: It's pretty universal he's not an employee under ADEA, though he might be under GERA. You have to say yes or no because, if you're going to say ­­ I mean, you know, let's either do it or not do it. If you ­­ if you want to leave this issue in the case, it's possible to argue we should decide this whole issue on the ground that, although he's not really a bird, he's a fish or whatever. (Laughter.)

Justice Breyer: But, I mean, that ­­ this is supposed to be fairly realistic, I think, what we're supposed to do.

Theobald: Okay. Well, going back to Mr. Levin being not covered, we believe the Court's decision in Davis v. Passman and the Court's decision in Smith v. Robinson, which is the only case where the Court has precluded a 1983 constitutional claim, that that ­­

Chief Justice Roberts: Well, just to get Alderson Reporting Company Official this clear, you asked for this ruling from the Seventh Circuit. And ­­ and you won based on a factual record that was no different then than it is now. You asked for this ruling based on these facts, you won, and now, you want to insulate that from any review. I mean, I think it'd ­­ it'd be a feather in your cap if you can pull it off. But it seems to me ­­ (Laughter.)

Chief Justice Roberts: It seems to me that, since you asked for the ruling on the merits and got it, we ought to be able to review it, to determine whether it's right or wrong. And to the extent there's a factual issue that would persist in the case, if it goes back on qualified immunity, you and the parties can reposition themselves on that. I mean, it is an issue that was apparently close enough for one district court to say, yes, the other district court, on looking at it again, to say no. The deck will be reshuffled depending on how we rule. And as I see you standing there, I don't see you willing to concede for ­­ for the future that he's not an employee.

Theobald: Well, we think the difference was, after the district court's decision in our case, that the Seventh Circuit decided another case in 2010, Alderson Reporting Company Official and that's why the second district court judge followed that precedent. And that precedent, where this Court denied cert, there's no real possibility that any court is going to find Mr. Levin as being covered by the ADEA.

Justice Breyer: There's no real possibility that any court is going to find that your client was, in fact, an employee without GERA. That's what you said; is that right?

Theobald: GERA is ­­ is another ­­

Justice Breyer: It's a different statute. But just without GERA ­­

Theobald: Right.

Justice Breyer: ­­ he's a political appointment or whatever it is, so he's not within ADEA. That's what I think this is about.

Theobald: Yes, Your Honor.

Justice Breyer: That's correct?

Theobald: Yes.

Justice Breyer: And you agree with that?

Theobald: Yes.

Justice Breyer: Okay. Then thank you very much. And then my argument comes into play that we shouldn't be deciding issues of an advisory nature that do not involve individuals who fall within the statute that someone once interpreted. Alderson Reporting Company Official

Justice Kagan: Do you also agree that he is covered by GERA?

Theobald: It is unclear, Your Honor. We don't ­­ GERA is unclear whether, first of all, in the Alaska case v. EEOC, whether it applies to States. States have argued that they're not included in the definition ­­ definition of GERA. And the State of Illinois has not waived sovereign immunity under the GERA statute.

Justice Alito: So what ­­

Theobald: So whether or not there's a remedy there is very unclear. And this ­­ as Justice Breyer mentioned, it's been never discussed in this case. It was never discussed in the Seventh Circuit, never discussed in the district court. It wasn't discussed at the EEOC. When we filed a charge, the Attorney General didn't come in and say this should be handled under GERA ­­

Justice Kagan: Well, it was never discussed because you never raised it; isn't that right?

Theobald: Our position was it was inapplicable. We didn't ­­ we wouldn't raise it. It would be ­­ someone else would raise it. There's about a handful of cases, nationally, that are filed under GERA every year. Some years, there's no cases filed at Alderson Reporting Company Official the EEOC. It's seldom used.

Justice Alito: You want us to hold that the Seventh Circuit lacked jurisdiction to consider whether ­­ whether there is a cause of action under Section 1983. So that precedent, that Seventh Circuit precedent, would be wiped from the books. The issue would be back in the case. If ultimately there was another appeal, maybe it would go to a different Seventh Circuit panel. Maybe it would come out differently. So you want that wiped away. And you want us to hold only ­­ to limit our consideration to the ADEA and not consider GERA, so that would be back in the case when it came ­­ when it went back to the district court. So that's correct? That's what you want?

Theobald: Yes, Your Honor. And that's ­­ our position is we didn't argue the jurisdictional issue in our brief, but the court was concerned about it, and we did address it in the Seventh Circuit. I would point out, in the Seventh Circuit's decision, though, their decision throughout the ­­ for instance, the ­­ the Seventh Circuit talks about Mr. Levin not being an appointee on the policymaking level and exempt, so that was in the case. It wasn't something where they just decided whether the ADEA Alderson Reporting Company Official precludes individuals that are covered.

Justice Ginsburg: And as far as the ­­ the preclusion is concerned, why does it make a difference whether it's ADEA or GERA? Wouldn't the arguable preclusion be even stronger under ­­ under GERA because there is a special administrative remedy, you have to go to the EEOC first, and the only form for review is the Federal Circuit?

Theobald: That's correct, Your Honor. The ­­ there's no preclusion under GERA or the ADEA. We've set forth that the Court should look at preclusion with two questions. The first question, under preclusion, is under Sea Clammers. Sea Clammers was a case where they passed a new statute with the new right and had an enforcement provision in the statute, and the issue was whether or not, under Sea Clammers, the Congress intended to preclude 1983 to enforce that statute. And the Court came to the conclusion, yes, that it would be inconsistent to use 1983 with that statute. The second standard that the Court has used is under Smith v. Fitzgerald, which is applicable here, if we're looking at whether the ADEA precludes somebody covered by the ADEA. And that is, when a statute is passed with an enforcement provision, did Congress Alderson Reporting Company Official intend to use that enforcement provision to also enforce preexisting independent statutory or constitutional rights? And, two, did Congress intend to use this provision in the new statute to be the sole exclusive remedy of the preexisting independent constitutional right? GERA cannot preclude a constitutional ­­ GERA ­­ there's no evidence that, when Congress passed GERA, they intended GERA to enforce the constitutional right to equal protection of the law. It doesn't ­­

Justice Alito: Well, can I ask you a question about the constitutional right? Do you ­­ do you agree that the standard for an equal protection age­discrimination claim is traditional, full­blown, rational­basis review?

Theobald: Yes, Your Honor.

Justice Alito: So that if there's any conceivable ground on which the decision­maker could have decided that age was ­­ it was proper to make an age classification, there is no constitutional violation?

Theobald: We can see where the rational basis test ­­ and the court found ­­ we survived summary judgment on our equal protection gender discrimination claim and the age discrimination claim.

Justice Alito: No, I'm just talking about Alderson Reporting Company Official equal protection age discrimination.

Theobald: Yes.

Justice Alito: And what if the Illinois legislature passed a statute that said, now, forget about the ADEA, there is no ADEA, there is no state anti­discrimination law involved here, all we are talking about is equal protection. And they passed a law that said, all attorneys working for the State of Illinois must retire at the age of 60 because everybody knows ­­ you know, once a lawyer passes 60, there's nothing left. (Laughter.)

Theobald: We're all in trouble.

Justice Alito: Would that be ­­ would that survive a rational basis review?

Theobald: I don't believe so. This Court has considered the ­­ that issue on two occasions. In Gregory v. Ashcroft, that was before the Court, It was a ­­ the plaintiffs were excluded, like Mr. Levin, and yet, this Court acknowledged the equal protection 1983 claim. They didn't ­­ the reasons that were used in that case were insufficient to meet the rational basis test.

Justice Kagan: Mr. Theobald, are there any cases out there in the universe of cases in which a Alderson Reporting Company Official person does not have an ADEA claim or a GERA claim, but has ­­ has pressed a successful constitutional claim based on age discrimination?

Theobald: Well, GERA has never been ­­ there's one case on GERA that we could find. It's over a 20­year­old District Court of New York decision that said GERA can't preclude anything. So if we put GERA together with the ADEA, it's only been really one district court has addressed that issue. And ­­

Justice Kagan: I guess the question is what are the circumstances in which, given the very low standard ­­ or given ­­ given the very low rational basis standard, what are the circumstances in which you would have a viable constitutional claim, but not a statutory claim? What would that case look like?

Theobald: If you had a claim under 1983, it would also, I believe, violate the ADEA. If that ­­ if I ­­ if that's your question.

Justice Kennedy: Would there be any unfairness to the parties if this case were remanded to the court of appeals with instructions for it in turn to remand to the district court to see whether or not the GERA issue has been properly presented or waived and to consider that? Would there be ­­

Theobald: Well, it would be ­­ Alderson Reporting Company Official

Justice Kennedy: ­­ any unfairness to the parties in doing that?

Theobald: It would be very unfair to us, Your Honor. We were scheduled to go to trial in May before the Court granted cert. The case has been pending almost six years. And to raise this issue at this ­­ this issue in GERA was raised this year. It wasn't raised for six years, never ­­ whenever it was part of this case. And I don't think that ­­

Justice Kennedy: That argument ­­ that argument could be made in the district court.

Theobald: Well, for something that's as suspect as GERA, whether it even applies, it's ­­ the State has not said it applies ­­

Justice Breyer: What about doing ­­

Theobald: ­­ the State of Illinois.

Justice Breyer: What if the ­­ is there anything unfair about this? I think Justice Ginsburg wrote an opinion in ­­ I recall a Third Circuit case involving ERISA or some medical thing, and an issue came up that was quite relevant, and nobody had really thought about it before or done much about it. And what she wrote, to my recollection, is, well, we would like the advice of the lower court if they want to give it. And so we send it back for the Third Circuit Alderson Reporting Company Official to consider whether it's appropriate to reach the issue and, if it is appropriate to reach the issue, do so. Or, if they think the district court should reach it, do so. In other words, we can't figure it out at this moment what's fair in terms of the entire litigation. Now, would that ­­ would that be a serious problem for you or your client?

Theobald: Well, our position is that, yes, that none of these apply. ADEA cannot preclude somebody that's covered. The Seventh Circuit opinion covers that. The ADEA can't preclude somebody that's not covered. And this Court's opinion in Davis v. Passman and footnote 22 in Smith v. Robinson talks about ­­

Justice Sotomayor: I don't know if you've satisfied my colleagues. I'm not sure that you've answered directly. I think your adversary is right, that the Seventh Circuit held that no one is precluded from a 1983 claim, whether they're an employee or a non­employee. That's the way the case was litigated. That's the way they decided. The broad statement, whether he's an employee or not an employee, he doesn't have a 1983 ­­ he has a 1983 action. You've come in, and you've said he's not an employee, so he's entitled Alderson Reporting Company Official to his 1983 claim.

Theobald: Yes.

Justice Sotomayor: All right. My colleagues are asking you, that only takes care of half of this problem because the circuit said, even if he was an employee, he would still have it. And so you're being asked are you giving up that part of the claim, that he's not an employee?

Theobald: Yes, he's been excluded. I ­­

Chief Justice Roberts: Well, then I assume ­­ if you're saying the qualified immunity ruling should not be reviewed because this person was not an employee, but instead covered by GERA, right? Is that what ­­

Theobald: We don't agree that he's covered by GERA, but it's ­­ it's not clear.

Chief Justice Roberts: Well, they didn't address GERA in the preclusion ruling, right? So presumably, they get another ­­ they get a chance on an interlocutory appeal. The whole thing is ­­ qualified immunity is supposed to protect them from trial. And if you say the GERA issue wasn't ­­ wasn't considered, even though the Seventh Circuit's ruling was sweeping and didn't distinguish, well, they Alderson Reporting Company Official should have a chance to assert qualified immunity under that ground, I would think.

Theobald: Well, I don't think that that would factor in, Your Honor, with the qualified immunity analysis. The Seventh Circuit held and the district court held that your decision in Kimel and ­­ acknowledged equal protection 1983 claims, and that's the issue in qualified immunity. They have not asked this Court to review the qualified immunity aspect of the Seventh Circuit's decision, just the preclusion part.

Justice Alito: Well, that's true, but is that the issue? Is that really the qualified immunity issue, whether irrational age discrimination violates equal protection? Or is the qualified immunity issue whether, on the facts here, an official could believe that there was no constitutional violation ­­ reasonably believe there was no constitutional violation? Isn't the latter ­­

Theobald: It's the ­­ it's the latter, yes.

Justice Alito: Isn't the latter the real question?

Theobald: Yes, Your Honor.

Justice Alito: Well, that's not what the Alderson Reporting Company Official district court held though, is it?

Theobald: The district court did so hold, yes.

Justice Alito: Well, I thought the district court simply held that an official should have realized that irrational age discrimination was a violation of the Constitution, not that an official should have realized that it was a violation of the Constitution to do what was alleged to have been done here.

Theobald: I think they ­­ it answered both questions, really. I don't ­­ I don't see the difference.

Justice Alito: You don't see the difference between the two?

Theobald: No, Your Honor. I ­­ I think that the court's ­­ the district court's decision held no qualified immunity. The Seventh Circuit cited this Court's decision in Kimel. The other cases before this Court, Gregory v. Ashcroft, acknowledged an age discrimination case ­­ case brought through 1983, and it was clearly established. The Seventh Circuit acknowledged the 1983 age discrimination equal protection claim in 1977 in Gault v. Garrison. This is a well­settled issue.

Justice Alito: If there's a qualified Alderson Reporting Company Official immunity appeal on the question ­­ on the issue of whether, let's say, a search was an unreasonable search, would qualified immunity be denied on the ground that an official should realize that an unreasonable search is unconstitutional? Would that be ­­ that ­­ would that be the issue under qualified immunity?

Theobald: Well, if the facts that the officer was presented, if there wasn't ­­ it wasn't well settled, that the conduct ­­

Justice Alito: Ah, on the facts that were presented?

Theobald: Yes, Your Honor. So on the people that aren't covered, we have four groups: People that are under 40 under the ADEA; people in the ­­ that are exempt; individuals that work for a government employer that have less than 20 employees are not covered by the ADEA; and people that have a particular type of claim ­­ a retaliation claim, a claim for emotional distress damages, something like that ­­ they're not covered. The State concedes that the people under 40, they're going to bring equal protection claims through 1983. There's no difference between those people and Mr. Levin and the other two categories. You're either Alderson Reporting Company Official in or you're out.

Justice Scalia: Yeah, but that's not what the Seventh Circuit held. I mean, that ­­ that may well be, but we're asked to review a holding by the Seventh Circuit that, even if you aren't covered, even if you're not exempt, you still have a 1983 claim. That's ­­ that's why we took this case. And now, you're ­­ you're telling us we should not review what the Seventh Circuit held. And that would, presumably, remain the circuit law, right?

Theobald: Yes, Your Honor.

Justice Kagan: Well, not if there's no jurisdiction, right? If they didn't have jurisdiction, the thing would be wiped out.

Theobald: Yes, that ­­ that is true. But I believe the Seventh Circuit, in its opinion ­­ and I could just refer to things in the appendix at page 57A, the district court's opinion, the district court said Mr. Levin is exempt. In the Seventh Circuit opinion, the Seventh Circuit Docket No. 44 talks about end­runs. The Seventh Circuit Docket No. 37, page 67, the plaintiff was an employee on the policymaking level. So it's clear that the Seventh Circuit knew we argued that he was exempt. We argued that the ­­ being exempt under this court's decision in Alderson Reporting Company Official Fitzgerald gives an individual the right to bring an equal protection claim. And the Court mentioned that, in Fitzgerald, the decision in 2009, being exempt from Title IX ­­

Chief Justice Roberts: In the Seventh Circuit, even though they ­­ you had that reference to him being exempt, the Seventh Circuit basically said it didn't make a difference, right? Whether he was covered as ­­ as an employee or not covered or covered under GERA or anything else, under their analysis, it doesn't make a difference.

Theobald: I think we could read the opinion that way, but they certainly were aware that Mr. Levin was not covered. The ­­ the State has argued, since Mr. Levin has been excluded, before the Seventh Circuit and before this Court, they used the terms "exhaustion," "not exhausting remedies," and they used the word "avoids the scheme," "avoids the ADEA." In the opening brief before ­­ the merits brief before this Court, the State used the term "exhaustion" or "failure to exhaust" more than a dozen times. They used the term "avoiding the ADEA" at least six times. This argument is the old Zombro argument, the first case that held preclusion where somebody Alderson Reporting Company Official didn't go through. Exhaustion has nothing to do with this case. This Court's opinion in Patsy v. Board of Regents said you don't have to exhaust from 1983. All the cases, Johnson v. Railway Express, CBOCS v. Humphries, there's no exhaustion required. And to top it off, Mr. Levin, he exhausted his remedies. He filed at the EEOC. He got a right to sue under Title VII. So ­­

Justice Ginsburg: Let ­­ let's assume that the question that was presented is before us. And you ­­ you have argued Fitzgerald. The other side says Smith v. Robinson should control. So why shouldn't the Handicapped Act decision control? That, like the ADEA, has allowed procedural parts that wouldn't be included in an equal protection claim.

Theobald: We believe, Your Honor, that those two cases are the second standard. The Smith ­­ we ­­ we agree with the standard in Smith. We agree in the standard with Fitzgerald. And the standard in Smith, what that case was about was the Education for All Handicapped Act, whether that Act precluded the use of 504 of the Rehabilitation Act, the statutory claim, and whether it precluded 1983 constitutional claims. And the Court in Smith v. Fitzgerald said that it did because there was no ­­ the EHA, the Alderson Reporting Company Official remedies and the procedures there was not for a de novo review in court, so the plaintiff's claim was precluded. We have no problem with the Smith standard. But the Court also said, in Smith, that if there are matters that are offered to the children, the disability of the disabled children or their parents under the EHA that that doesn't cover, those things, if they're offered to parents and if they're offered in a discriminatory manner or denied for discrimination, those claims can be brought under the 1983 equal protection claims or under Section 504 of the Rehabilitation Act, the ­­ the preexisting statutory claim. So applying that to the ADA, there is no evidence that in passing the ADA, for covered individuals, that Congress intended to preclude the preexisting 1983 equal protection claim, so our second standard in our brief is the Smith­Fitzgerald standard. In Fitzgerald, the Court went further and explained, if the rights and protections of the statute that is seeking to be ­­ precluding are different than the equal protection claim, then there is no preclusion. And here, the rights and protections between the ADA and the equal protection through 1983 are vast ­­ are vast. There's different parties, there are Alderson Reporting Company Official different defendants. In the ADEA, the entity is the defendant. In equal protection 1983, it's individuals. In the ADEA, all these exemptions of people that aren't covered, if somebody pursues a 1983 equal protection claim, there is no exemptions of individuals. So to conclude, Your Honor, we adopt the Smith standard. We have no problem with Smith.

Justice Scalia: Counsel, I'm trying to ­­ trying to see how ­­ how many of these arguments that you have made before us about why ­­ why we can't get to the holding of the Seventh Circuit, how many of them you made in your brief in opposition. I mean, we ­­ we don't like to dismiss a case as improvidently granted, and ­­

Theobald: We could have done ­­

Justice Scalia: ­­ only when the ­­ when the case is before us, counsel suddenly finds all sorts of reasons why we shouldn't have taken it in the first place. You should have told us that before we took it in the first place.

Theobald: We could have done a better job ­­ we could have done a better job, Your Honor, and I apologize for that. We did try to point out that Mr. Levin was exempt. We did say that and how, under Fitzgerald, the exemptions formed the basis of an equal protection claim. Alderson Reporting Company Official

Justice Scalia: Well, I read your brief in opposition as ­­ as going exclusively to what your unfortunate brother barely had a chance to argue; that is, the merits of the case. That ­­ that's what your brief in opposition addressed, and here, we end up spending most of our discussion on ­­ on other stuff. I ­­ I don't ­­ I don't like to encourage that.

Theobald: We could have done a better job. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Scodro, you have five minutes remaining. REBUTTAL ARGUMENT OF MICHAEL A. SCODRO ON BEHALF OF THE PETITIONERS

Michael A. Scodro: Thank you, Mr. Chief Justice. Just a couple of quick points. Justice Kagan, in answer to your question to my colleague, I am not aware of any cases, nor can I conceive of one, in which one would have an equal protection claim, but could not state a cause of action under the ADEA, and I think this Court's decision in Kimel makes clear that such a universe does not exist. The question ­­ in response to a question from Justice Sotomayor regarding the scope of the Alderson Reporting Company Official Seventh Circuit's decision below, proof positive that the Seventh Circuit was ­­ was, in fact, announcing the sweeping rule that Respondent sought, is the fact that the Court departs openly from the ­­ the law in other circuits. So it was, in fact, they were creating, they were knowingly creating the split. The only reference in the analysis portion of the case to the fact that there are exemptions for high­level officials appears on page 33A ­­

Justice Sotomayor: Can you tell me what the authority is for Congress to extinguish a right for a constitutional violation? Meaning ­­

Michael A. Scodro: Sure.

Justice Sotomayor: ­­ assume that someone ­­ it was the question that Justice Alito asked you ­­ someone under of the age of 40, someone who's not covered by any statute, someone who's part of an employer under 20, what would suggest to you in ­­ in this statute that Congress intended to extinguish those people's rights?

Michael A. Scodro: Sure, Your Honor. There are really two parts to my answer. The first is they ­­ they didn't. It has been overstated what has not ­­ what has been exempted. Our position is that nobody whose Section 1983 claims are ­­ would be displaced Alderson Reporting Company Official would not, in exchange, receive the full rights and benefits under the ADEA. There is a reference to ­­

Justice Sotomayor: I'm sorry. Restate that again, so I understand what you are saying.

Michael A. Scodro: Of course. Nobody who ­­ the universe of ­­ of employees ­­ or workers, to use the neutral term here ­­ the universe of workers who would not have a Section 1983 claim under the State's theory, that every member of that universe would have a right to bring a claim under the Equal Protection Clause. The under­40s, we agree ­­ as we say in our brief, we agree that under 40, that was not the social ill that Congress was addressing in the Age Discrimination Act, consistent with this Court's holding in Cline; and therefore, those individuals retain their right, the small workplace, the under 20. The EEOC ­­

Justice Sotomayor: Absent the GERA ­­

Michael A. Scodro: Yes.

Justice Sotomayor: ­­ would people who are executive officers, et cetera, absent the GERA ­­

Michael A. Scodro: Yes.

Justice Sotomayor: ­­ would they have retained a constitutional right?

Michael A. Scodro: They would. We do not ­­ we ­­ we understand the displacement doctrine and ­­ and Alderson Reporting Company Official certainly, as applied here, it would displace the 1983 remedies. We assume that courts retain their inherent authority to use equitable power to stop the ongoing violation of the Constitution. And ­­

Justice Kagan: Mr. Scodro, you are in a situation where the question is not whether the remedial scheme displaces a 1983 suit brought for a violation of the same statute that contains the remedial scheme. Instead, you have to argue that this remedial scheme displaces a preexisting statutory or constitutional right. And when we've had that situation in the past, we've looked to more than just the remedial scheme itself. You know, Smith looks to the language of the statute, which refers to constitutional claims. It looks to legislative history. It looks to the coincidence between the statute ­­ the new statutory claim and the old constitutional claim. And it seems to me that you don't have any of those things. 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.

Michael A. Scodro: Your Honor, Smith ­­ as we Alderson Reporting Company Official understand Smith, and certainly, as it's been read by Rancho Palos Verdes in Fitzgerald, even, it stands for the proposition that the lodestar inquiry ­­ and I think the word "primary emphasis" or that phrase may be used in Fitzgerald to describe the comprehensiveness of the regime as the first and most important inquiry. After that, Smith makes clear that we are allowed to consider if there is a comprehensive regime, whether there is contrary evidence in the face of the legislative history, as there is, for example, for Title VII, not so for the ADEA.

Justice Ginsburg: But why ­­ if the ADEA is expanding the Civil Rights protection against age discrimination much more generous to the employee, isn't it strange to think that Congress, at the same time, wanted employees to have these expanded rights and to do away with the preexisting remedy?

Michael A. Scodro: No, Your Honor, not at all. When Congress provided the expanded right, they recognized that there were characteristics particular to age discrimination that warranted very low damages awards and a procedural predicate that would emphasize swift and informal dispute resolution.

Chief Justice Roberts: Thank you, counsel.

Michael A. Scodro: Thank you. Alderson Reporting Company Official

Chief Justice Roberts: The case is submitted. (Whereupon, at 11:04 a.m., the case in the above­entitled matter was submitted.) 6 8 10 12 14 16 18 20 22 24 53 Alderson Reporting Company OOffffiicciiaall Page 54 A 52:11,12 41:9 apply 13:19 15:25 49:14 51:2 adeas 13:7,19 allowed 19:10 20:17,17 21:12 assuming 21:12 able 29:11 administrative 45:14 52:8 38:9 attorney 27:4 31:17 aboveentitled 1:11 3:11 17:24 33:6 allowing 10:19 applying 46:14 attorneys 27:5 35:8 53:4 adopt 5:21 47:6 alternative 4:21,24 appointee 22:25 authority 3:21 4:5 absence 9:9 advance 7:1 19:23 amended 21:19 23:10 24:1 32:23 6:9 21:16 49:11 absent 50:17,20 advanced 6:11,23 amending 18:10 appointees 14:19 51:3 absolutely 16:14 7:2 24:4 amendments 13:21 18:17 20:25 21:2 authorized 8:24 acknowledged advantageous 28:3 13:22 18:11 22:14 23:4,8,22 avoid 21:25 35:20 40:7 41:19 adversary 38:17 amends 22:17 24:2 27:6 avoiding 44:22 41:22 adverse 11:16 amicus 4:20 5:6 appointment 30:14 avoids 44:18,18 act 3:23 13:21,22 advice 37:24 6:12,16 appropriate 12:12 awards 52:22 15:6 17:13,16 advisory 21:7 analysis 23:2 40:5 38:1,2 aware 22:23 44:13 22:11 45:13,21,21 30:23 44:10 49:7 appropriately 9:18 48:19 45:22 46:12 50:14 affirmative 12:20 announce 21:1 arent 7:13 42:14 action 4:11 5:4,9 B age 3:22 4:4 14:23 announcing 49:2 43:5 47:3 7:12 8:2,19 9:16 15:4 34:19,19,24 answer 8:17 21:13 arguable 33:4 back 7:3 16:7 28:19 9:17 10:12,16,25 35:1,9 36:3 40:14 48:18 49:22 argue 5:7,10 22:19 29:14 32:7,12,13 11:19 12:18 13:2 41:6,19,23 49:16 answered 38:17 25:13 28:3,12 37:25 14:7,11 16:12 50:13 52:13,21 41:10 32:16 48:3 51:9 barely 48:3 32:4 38:24 48:21 agediscrimination answers 23:5 argued 17:4 20:15 based 20:8 23:2 ada 46:14,15,24 34:14 antidiscrimination 21:14 24:21 31:6 29:2,4 36:3 add 9:14 ago 22:2 14:4 35:6 43:24,24 44:14 basically 44:7 added 17:16 22:6 agree 5:13,14,17,19 anybody 17:5 45:11 basis 9:3 34:22 22:10 22:9 30:19 31:1 apologize 11:5 arguing 13:16,18 35:15,23 36:13 address 24:8,18,25 34:13 39:16 45:18 47:22 argument 1:12 2:2 47:24 25:20 32:18 39:19 45:18 50:11,12 apparently 17:4 2:5,8 3:6 4:19,22 begins 6:17 addressed 18:3 agrees 4:2 29:16 6:23 8:9 11:18 behalf 1:16,18 2:4 36:9 48:5 ah 42:11 appeal 8:3,6,7 23:9 24:4,14,19 2:7,10 3:7 24:15 addressing 8:6 18:6 aimed 14:25 10:17,19 12:5 25:9 30:22 37:10 48:15 24:6 50:13 al 1:3 18:13,20 24:23 37:11 44:24,24 believe 20:7 28:20 adds 22:17 alaska 31:5 32:8 39:21 42:1 48:14 35:16 36:17 40:16 adea 9:23 13:14,15 alike 14:19 appeals 6:6 36:21 arguments 47:9 40:18 43:16 45:16 13:17,25 14:11,16 alito 5:6 10:15 14:3 appear 23:5,7 arises 7:24 believed 12:11,11 14:20 16:21 17:1 14:14 16:4,6 appearances 1:14 array 17:17 benefits 50:2 17:9,19 18:10 26:13,20 27:7,14 appears 49:9 artificial 18:8 better 13:4 47:20 19:18 20:6 21:4,7 31:10 32:2 34:11 appellate 5:2 6:15 artificialities 17:11 47:21 48:9 21:11 22:3,17 34:17,25 35:3,14 6:18,18,21 ashcroft 35:18 bird 28:14 23:7,16,21 24:3 40:12,22,25 41:4 appendix 6:22 41:19 bivens 4:11 5:4 25:17,20 26:12,17 41:13,25 42:11 43:17 asked 21:1 22:21 7:25 9:16 12:22 27:6,10,12 28:8 49:15 applicable 25:13 29:1,3,10 39:7 13:1 30:4,14 32:12,25 alj 19:23 33:22 40:9 43:4 49:15 board 45:2 33:4,10,23,24 allay 7:7 applied 51:1 asking 7:17 39:4 body 3:10 35:5,5 36:1,8,17 allegation 21:18 applies 15:21,22 aspect 40:10 books 32:6 38:9,11 42:15,18 allege 20:2 20:7 21:11 31:5 assert 40:1 breyer 19:25 21:5 44:18,22 45:13 alleged 19:3 28:4 37:13,14 assume 39:12 45:9 21:21 28:7,16 47:1,3 48:22 50:2 AAllddeerrssoonn RReeppoorrttiinngg CCoommppaannyy Official Page 55 30:5,10,13,17,19 10:20 20:12,12 43:3,5,9,10,16,19 close 26:14 29:17 consider 4:24 5:11 30:21 31:13 37:15 31:24,25 35:25,25 43:20,21,23 44:6 coincidence 51:17 6:1 8:1,11,19 37:17 41:18 45:4,17 44:7,16 47:11 colleague 48:19 11:16,18 16:6,9 brief 5:6 6:12,16,19 48:19 49:2 colleagues 38:16 16:10 18:8 25:3 6:22 16:15 17:7 categories 23:4 circuits 6:2 18:14 39:4 25:11 26:1 32:3 26:13 32:17 44:19 42:25 25:25 32:20 39:24 combatting 3:12 32:12 36:24 38:1 44:20 46:18 47:12 cause 5:9 7:12 8:2 40:10 49:1,5 come 31:17 32:9 52:8 48:1,5 50:12 8:19 10:15,25 circumstances 38:24 consideration briefly 6:19 12:18 13:2 14:11 36:11,13 comes 30:22 32:11 briefs 4:20 23:6 16:11 32:4 48:21 cite 5:15,15 command 10:11 considered 4:14 5:5 bring 42:23 44:1 cbocs 45:5 cited 7:2 41:17 commonalities 18:1 5:8 9:11,18 10:13 50:10 51:22 cert 27:22 30:3 cites 10:10 complaint 19:4 10:16 17:8 18:12 broad 22:22 38:22 37:5 civil 13:21 52:13 28:4 22:8 35:17 39:24 broader 17:9 certain 21:9 claim 4:3 18:15 complicated 51:20 consistent 12:24 brother 25:22 48:3 certainly 44:13 20:2,10 22:14 comprehensive 50:14 brought 41:20 51:1 52:1 23:16 25:20 28:23 3:10 13:9,10 52:8 constitution 41:7,8 46:10 51:7 certiorari 5:23 6:10 34:14,24,24 35:21 comprehensiven... 51:4 bypass 3:16 cetera 50:20 36:1,1,2,14,15,16 52:5 constitutional 5:4 chance 39:20 40:1 38:19 39:1,7 concede 26:17,18 10:13 11:25 12:9 C 48:3 41:23 42:19,19,19 26:20 29:21 17:3 18:2 20:10 c 1:8 2:1 3:1 chang 26:7 43:6 44:2 45:15 concedes 42:22 28:23 34:2,6,7,9 cant 36:7 38:4,11 change 19:11 45:22 46:2,13,17 conceivable 34:18 34:12,20 36:2,14 47:10 51:21 characteristics 46:22 47:5,25 conceive 48:20 40:17,18 45:23 cap 29:7 52:20 48:21 50:8,10 concept 12:2 49:12 50:23 51:10 care 39:4 charge 31:16 51:18,18 concern 15:16,21 51:15,18 carved 16:24 23:5 chicago 1:15,17 claims 15:21 16:22 15:22 construed 21:19 23:7 chief 3:3,8 16:18 18:2 19:20,23 concerned 14:25 contains 51:8 carveout 15:25 18:18,22 19:2 20:8 23:22 40:7 32:18 33:3 contemplate 13:1 case 3:3,4 4:12,17 24:12,16 25:5,21 42:23 45:23 46:10 concerns 18:6 23:9 6:13,15,19 9:16 25:24 26:8 27:24 46:11 49:25 51:15 22:13 24:6 contention 23:23 10:21,23,24 12:22 28:25 29:9 39:11 clammers 33:13,14 conclude 18:9 47:6 context 4:23 10:4,6 16:17 17:5 18:4 39:18 44:5 48:12 33:17 concluded 4:10 9:9 contrary 52:9 18:16 19:7 20:21 48:16 52:24 53:1 class 14:5 15:2 control 45:12,13 20:22 21:8,17,23 children 46:5,6 classification 34:20 conclusion 33:19 cook 27:4,21,23 24:7 26:24 27:9 circuit 3:22,24 4:5 clause 4:4 50:10 conduct 12:12 correct 3:25 8:15 27:18,22,23 28:6 4:8 5:7 9:21,22 clear 8:14 10:6,11 42:10 8:22 11:2,23 28:12,22 29:13,24 20:9,15,23 21:1 14:18 26:5 27:5 confer 6:12 16:15 19:12 23:16 29:25 31:5,14 22:21,23 23:12,17 29:1 39:17 43:23 confront 16:16 26:23 30:17 32:14 32:7,13,24 33:14 23:21 24:5,8,19 48:23 52:7 23:12 33:9 35:22 36:5,15,20 24:20 25:10 26:4 clearly 10:8 41:21 confronted 15:7 correctly 4:10 37:5,9,19 38:21 26:5 27:4,15,21 clerk 26:7 congress 3:10,14 counsel 24:12 47:8 41:20,20 43:7 29:2,25 31:15 client 21:6 28:1 14:24 15:3,15,16 47:17 48:12 52:24 44:25 45:2,20 32:3,5,9,19,22 30:6 38:7 17:14 33:17,25 counterargument 47:13,17 48:4 33:8 37:19,25 cline 14:23 15:2 34:4,8 46:16 22:16 49:8 51:23 53:1,3 38:10,18 39:5 50:15 49:11,19 50:13 country 20:9 cases 5:18 9:15 40:5 41:17,22 clinton 5:15 52:15,19 county 27:4,21,23 Alderson Reporting Company Official Page 56 couple 48:17 created 18:11 depends 28:1 dismiss 12:3 18:13 E course 50:5 creating 49:5,6 describe 52:5 21:22 47:13 e 2:1 3:1,1 court 1:1,12 3:9 curricular 15:9 description 6:22 dismissal 19:19 earlier 10:9 11:3 4:10,17,23,25 5:2 desirable 21:24 dismissed 4:17 education 15:5 D 5:19 6:1,6,13,15 determination 9:6 displace 13:11 17:3 45:20 7:1,14 9:9 10:1,4 d 1:8 3:1 10:25 18:24 22:25 21:4 23:8,21 51:1 edward 1:17 2:6 10:10,22 11:15,18 damages 17:17 determine 29:11 displaced 16:23 24:14 12:8,16 13:8,14 22:6,10 42:20 determined 10:24 49:25 eeoc 19:22 31:5,16 14:3,23 15:1 52:22 11:10 19:3 displacement 22:15 32:1 33:7 45:7 16:16 18:6,9,24 davis 28:21 38:13 determining 13:9 23:11 50:25 50:16 19:3,8,14,16,21 de 46:1 dicta 4:18,22,23 displaces 18:2 51:7 eeocs 15:14 21:16,19 22:13,20 deal 3:22 4:5 12:2 didnt 4:24 15:6 51:10 effect 10:17 21:16 23:1,24,25 24:6 decide 5:12 11:14 20:6 25:11,25 dispute 13:16 52:23 effectively 18:10 24:17,23 27:3,14 19:9 27:10 28:12 31:17,22 32:16 distinction 7:7 22:17 27:20,22 28:23 decided 26:11 35:21 39:18,25 11:21,21 eha 45:25 46:7 29:17,18 30:1,2,3 29:25 32:25 34:19 43:13 44:8 45:1 distinguish 39:25 either 28:10 42:25 30:6 31:15 32:14 38:22 49:23 distress 42:20 elected 15:20 32:17 33:11,18,21 deciding 21:10 difference 14:14 district 4:17 8:24 element 9:10 10:8 34:22 35:17,18,20 30:23 29:23 33:3 41:12 9:1 10:22 13:14 elements 13:8 36:6,9,21,22 37:5 decision 5:16 9:8 41:13 42:24 44:8 18:24 19:2,8,16 emotional 42:20 37:11,24 38:3 11:8 24:22 25:10 44:11 19:21 26:7 27:14 emphasis 52:4 40:6,9 41:1,2,5,19 26:7 28:21,21 differences 17:20 29:17,18,24 30:1 emphasize 52:23 43:18 44:2,16,20 29:24 32:21,21 18:2 31:15 32:13 36:6 employee 14:16 45:24 46:2,4,19 36:6 40:6,11 different 8:8,14 36:9,22 37:11 18:25 19:4 26:16 49:4 41:16,18 43:25 17:21,22,23 18:17 38:3 40:5 41:1,2,4 26:21 27:1,1,8,12 courts 4:8 8:24 9:1 44:3 45:13 48:22 22:15 23:11 24:2 41:16 43:18,18 28:4,8 29:22 30:7 9:8 10:1,6 21:17 49:1 29:3 30:10 32:8 docket 43:20,21 38:19,23,23,25 23:2 24:22 26:22 decisionmaker 46:21,25 47:1 doctrine 7:24 50:25 39:6,8,14 43:22 28:20,21 29:24 34:18 differently 32:9 dodged 27:3 44:9 52:14 38:12 41:16,16,18 decisions 15:19 directly 38:17 doesnt 13:15 20:17 employees 3:14 43:18,25 45:2 18:22 disability 46:6 21:12 23:9 25:20 13:24 14:19 16:20 48:22 50:14 51:2 deck 29:19 disabled 15:7 46:6 34:10 38:23 44:10 16:22 18:17 20:25 cover 13:15,17 15:6 defendant 11:17 disagree 25:9 26:4 46:7 21:2 22:15 23:8 17:21 21:7 46:7 47:2 discretion 5:12,24 doing 21:10,25 23:22 42:17 50:6 coverage 13:23 defendants 10:18 discrimination 37:2,15 52:16 covered 15:3,10 47:1 3:12,23 15:2 20:7 dont 20:1,3,4,10,18 employer 42:17 17:1 25:17 26:12 defense 8:4 12:20 34:23,24 35:1 20:20 21:8 25:2,3 49:18 27:6 28:20 30:4 12:25 36:3 40:14 41:6 27:24,25,25 28:6 employment 20:7 31:2 33:1,24 definition 31:7,7 41:20,23 46:9 29:20 31:4 35:16 enactment 16:8,13 38:10,12 39:14,17 deliberate 15:25 50:14 52:14,21 37:9 38:15 39:16 encourage 48:7 42:14,18,21 43:5 denial 25:12 discriminatory 40:3 41:11,11,13 endruns 43:21 44:8,9,9,14 46:15 denied 12:3 27:22 46:9 45:3 47:13 48:7,7 enforce 33:18 34:1 47:4 49:17 30:3 42:3 46:9 discussed 31:13,14 51:19 34:9 covers 38:11 departs 49:4 31:15,16,19 dozen 44:21 enforcement 33:15 crafted 3:10 depending 19:5,14 discussing 8:15 drew 15:3 33:25 34:1 create 17:10 28:2 29:19 discussion 48:6 due 4:12 entire 38:5 Alderson Reporting Company Official Page 57 entirely 3:16 exemptions 47:3,5 fair 38:5 full 14:20 50:1 grant 6:9 entitled 13:23 47:24 49:8 fairly 6:1 28:17 fullblown 34:14 granted 21:23 37:5 22:15 24:1 38:25 exercise 5:19 6:6,17 fall 30:24 further 46:19 47:13 entity 47:1 exercised 5:2 false 6:17 future 29:21 granting 5:23 equal 4:4 14:10 exhaust 44:21 45:3 far 33:2 grants 6:12 G 20:5 34:10,13,23 exhausted 45:6 feather 29:6 gregory 35:18 35:1,7,20 40:7,15 exhausting 44:17 federal 15:18 33:8 g 3:1 41:19 41:23 42:23 44:2 exhaustion 44:17 federalism 15:18 garrison 41:24 ground 28:13 34:18 45:15 46:10,17,21 44:21 45:1,5 figure 38:4 gault 41:24 40:2 42:3 46:24 47:2,4,24 exist 48:23 filed 31:16,24,25 gender 20:8 34:23 groups 42:14 48:20 50:10 existed 15:13 20:6 45:7 general 1:15 3:17 guess 7:17 36:10 equally 15:21,22,25 existence 9:22 final 8:5 13:11 31:17 equation 25:4 10:15 12:22 13:1 find 30:4,6 36:5 generous 52:14 H equitable 51:3 exists 7:12 8:19 finds 47:17 genetics 17:13 half 39:4 era 16:7 12:25 first 3:3 4:13 7:25 gera 16:8 17:2,3,8 handful 19:21 erisa 37:20 expanded 52:16,19 8:6 9:18 10:14 17:14,20,24 18:11 31:24 esq 1:15,17 2:3,6,9 expanding 52:13 12:15 17:6 19:8 19:18 20:2,4,7,11 handicapped 15:6 essential 11:17 expense 12:4 19:22 23:12 24:8 20:12,17 21:12,16 45:13,21 essentially 9:14,14 experience 12:4 24:18 26:9 31:4 21:20 22:3,17 handle 22:18 established 10:8 explain 7:18 17:7,9 33:7,12 44:25 28:9 30:7,9,11 handled 31:18 41:21 explained 6:19 47:18,19 49:22 31:2,4,7,9,18,25 happy 18:7 et 1:3 50:20 25:25 46:19 52:6 32:12 33:4,5,10 harbor 22:13 24:6 everybody 4:2 35:9 explanation 15:3 fish 28:14 34:7,7,8,9 36:1,4 hartman 9:9 evidence 12:9 34:8 express 45:4 fitzgerald 5:16 36:5,7,7,23 37:7 harvey 1:6 46:15 52:9 extend 15:6 33:22 44:1,3 37:13 39:14,17,19 hearing 20:21 exact 25:6 26:15 extended 13:22,25 45:11,19,24 46:19 39:23 44:10 50:17 held 4:25 9:22 exactly 11:6 15:15 extending 3:13 47:24 52:2,5 50:20 13:14 14:4,23 example 12:20,21 extensions 5:18 five 48:13 ginsburg 3:19 4:1 23:21 38:18 40:5 15:5 17:16 21:18 extent 18:5 29:12 focused 15:8 4:16 9:20 11:8 40:6 41:1,5,16 22:5 52:10 extinguish 49:11,19 followed 4:8 30:1 13:12 25:23 33:2 43:3,9 44:25 exception 15:12 extinguished 14:11 following 10:11 37:18 45:9 52:12 hes 27:3 28:4,7,13 16:1 extinguishes 14:6 footnote 4:9,9,18 give 27:19,25 37:24 28:14 29:21 30:13 exchange 50:1 5:2 7:15,20 8:16 given 8:3 12:15 30:14 38:23,25,25 excluded 26:6,6 F 25:6,7 38:13 36:11,12,12 39:8,9,16 35:19 39:9 44:15 face 52:9 force 16:2 gives 44:1 high 14:1 exclusive 9:23 34:5 facing 11:21 15:8,9 forget 35:4 giving 39:7 highest 15:19 exclusively 48:2 fact 8:11 12:24 form 12:20 33:7 go 5:10 7:3 18:7 highlevel 15:13 executive 50:20 16:23 21:12 30:7 formed 47:24 19:7 32:8 33:6 49:9 exempt 13:23 14:1 49:2,3,5,8 formulation 5:22 37:4 45:1 hiring 15:19 16:20 24:3 25:19 factor 40:4 forth 33:11 goes 5:1 19:7 20:11 history 51:16 52:10 32:24 42:16 43:6 facts 29:4 40:16 forward 19:7 29:13 hold 32:2,11 41:3 43:19,24,25 44:3 42:8,11 found 10:22 34:22 going 26:22 27:17 holding 4:8 26:16 44:7 47:23 factual 18:23 29:2 four 42:14 28:10,19 30:4,6 43:4 47:11 50:14 exempted 23:16 29:13 framed 23:3 42:23 48:2 holdings 5:18 49:24 failed 6:23 freestanding 22:10 government 3:14 honor 4:7,19,23 exemption 11:13 failure 9:10 44:21 frustrate 3:16 15:13,20 42:16 5:16 6:2 7:14 9:7 Alderson Reporting Company Official Page 58 9:25 11:3,14 included 31:6 31:20 40:19,22 19:2,25 21:5,21 labeled 10:10 12:13 13:5 14:12 45:14 52:14 23:14 24:12,16 lacked 16:11 32:3 16:15 17:6 18:5 includes 4:4 22:9 issue 5:23 6:2 9:24 25:5,21,23,24 language 51:14 18:21 19:12 20:23 inconsistent 33:20 15:8,9 19:6,10 26:8,13,20 27:7 laughter 13:6 28:15 21:15 22:1 23:20 incorporate 17:14 20:22 21:6 22:14 27:14,24 28:7,16 29:8 35:12 25:9 26:4 27:5 independent 18:12 22:22 23:15 24:8 28:25 29:9 30:5 law 5:7 7:9 19:11 30:16 31:3 32:15 34:2,6 24:19,21,24 25:1 30:10,13,17,19,21 34:10 35:6,8 33:9 34:16 37:4 indifferent 20:24 25:11,15 26:1,11 31:1,10,13,19 43:10 49:4 51:23 40:4,24 41:15 21:2 22:22 26:23 27:8,10,18 32:2 33:2 34:11 lawyer 35:10 42:13 43:11 45:16 individual 20:3 28:11,13 29:13,16 34:17,25 35:3,14 leave 28:11 47:6,21 49:21 25:17,18 44:1 32:6,17 33:16 35:24 36:10,19 left 35:11 51:25 52:18 individuals 30:24 35:17 36:9,23 37:1,10,15,17,18 legal 18:23 humphries 45:5 33:1 42:16 46:16 37:6,7,20 38:1,2 38:15 39:3,11,18 legislative 51:16 hurdles 15:7 47:2,5 50:15 39:23 40:8,13,14 40:12,22,25 41:4 52:10 informal 52:23 40:15 41:24 42:1 41:13,25 42:11 legislature 35:4 I inherent 51:2 42:7 43:2,12 44:5 45:9 level 32:24 43:22 id 24:18 initially 26:11 issues 6:14 30:23 47:8,16 48:1,12 levels 14:2 idea 9:15 inquiries 7:13 itd 29:6,6 48:16,18,25 49:10 levin 1:6 3:4 13:15 iii 1:17 2:6 24:14 inquiry 4:14 8:12 ive 22:4,4 49:14,15 50:3,17 13:20 14:9 17:1 ill 14:24 15:24 9:12 10:3 17:25 ix 44:4 50:19,22 51:5 18:25 22:24 23:10 50:13 18:3 52:3,6 52:12,24 53:1 24:1 26:5,11,16 illinois 1:16,17 31:8 instance 19:9,22 J justified 12:17 28:20 30:4 32:23 35:3,9 37:16 24:9 32:22 job 47:21,21 48:10 35:19 42:25 43:19 im 7:17 11:20 18:7 instructions 36:21 johnson 45:4 K 44:14,15 45:6 19:13 20:18 23:14 insufficient 35:22 jones 5:15 kagan 7:3,11,17,20 47:23 34:25 38:16 47:8 insulate 29:5 judge 26:10 30:1 8:8 16:5,25 17:18 light 19:10 50:3 intend 3:15 34:1,4 judgment 5:23 6:2 31:1,19 35:24 likewise 16:2 immunity 4:1,3,13 intended 33:17 6:10 8:5,5 18:14 36:10 43:12 48:18 limit 32:11 7:24 8:4 9:3,5,11 34:9 46:16 49:19 22:18 34:23 51:5 limitations 12:21 9:19,24 10:2,5,8 interim 16:2 judicial 3:11 kagans 11:4 line 9:15 15:4 10:17,20,23 11:6 interlocutory 3:24 july 26:6 keep 7:5 lisa 1:3 11:7,9,10,12,15 4:15 8:3 10:16,19 jurisdiction 5:1,3 kennedy 5:21 6:4,9 litigated 38:21 11:22 12:15,25 12:5 18:20 22:24 5:10,19 6:6,13,18 36:19 37:1,10 litigation 8:4 11:6 18:19 19:5 24:23 24:23 39:21 6:21,24 10:10 kimel 40:6 41:18 38:5 24:25 25:4,12,13 interpreted 30:25 24:20 32:3 43:13 48:23 little 21:15,22 29:14 31:8 39:12 intertwined 8:9 43:13 kind 17:23 local 15:20 39:22 40:1,4,8,10 involve 30:24 jurisdictional knew 43:23 lodestar 52:3 40:13,15 41:17 involved 35:6 24:18 32:17 know 9:8 17:12,15 logically 9:16 42:1,3,7 involvement 15:18 justice 3:3,8,19 4:1 20:1,3,4,18,20 long 7:21 important 52:6 involves 12:1 4:16 5:6,21 6:4,9 21:8,14 28:6,10 look 17:10 25:2 improvidently involving 37:20 7:3,11,17,20 8:8 35:10 38:15 51:14 33:11 36:15 51:21 21:23 47:13 irrational 40:14 8:22 9:20 10:15 knowingly 49:6 looked 13:8 20:14 inapplicable 31:22 41:6 11:3,4,8,20,24 knows 35:10 20:15,16 51:12 inappropriate irrelevant 9:23 13:3,12 14:3,14 korr 26:10 looking 29:18 15:17 10:2 16:4,5,6,18,25 33:23 L include 6:14 21:20 isnt 11:15 21:7 17:18 18:18,22 looks 51:14,16,16 Alderson Reporting Company Official Page 59 lose 20:10 narrow 15:12 old 14:9 25:18 particularly 21:24 point 16:25 22:2 low 36:11,12 52:21 nationally 31:24 44:24 51:18 parties 19:6 22:19 24:5 32:20 47:22 lower 10:6 21:16 natural 8:18 older 3:13 15:1 29:14 36:20 37:2 pointed 22:5 37:24 naturally 21:20 once 30:25 35:10 46:25 points 17:6 22:19 nature 30:23 ongoing 51:3 parts 45:14 49:22 48:17 M necessarily 9:5 opening 17:7 44:19 passed 16:10 17:13 policy 15:14 m 1:13 3:2 53:3 need 16:16 openly 49:4 33:14,25 34:8 policymakers 14:1 madigan 1:3 3:4 needs 11:15 18:12 operationally 35:4,7 15:14 manner 15:6 17:11 neutral 50:7 15:18 passes 35:10 policymaking 46:9 never 17:4 18:3 opinion 4:10 10:1,9 passing 46:15 32:23 43:22 matter 1:11 5:11 21:14 24:4 31:13 21:8 37:19 38:10 passman 28:21 political 30:13 7:25 12:14 15:17 31:14,15,19,20 38:12 43:16,18,20 38:13 portion 49:7 20:13 22:13 53:4 36:4 37:8 44:13 45:2 patsy 45:2 position 5:13,14,16 matters 46:5 nevertheless 5:10 opinions 19:21 pendent 6:18,20,24 25:2,14 26:23,25 mean 3:23 7:5 14:6 opp 27:4,21,22 pending 18:23 37:6 31:21 32:16 38:8 17:20 20:1 25:6 new 16:9 18:11,15 opposite 25:6 people 12:3 15:23 49:24 27:2 28:1,2,10,16 23:9 33:15,15 opposition 47:12 17:22 21:5,7 23:4 positions 19:6 29:6,16 43:3 34:5 36:6 51:17 48:2,5 42:14,14,15,18,22 positive 49:1 47:12 nonemployee 16:11 option 19:19,23 42:24 47:3 50:19 possibility 26:15,19 meaning 14:16 38:20 oral 1:11 2:2,5 3:6 peoples 49:20 26:22 27:17 30:3 49:12 note 6:16 24:14 perception 19:11 30:5 mechanism 6:5 notion 12:14 order 24:24 period 14:18,22 possible 28:12 medical 37:20 notwithstanding ought 29:11 16:3,12 21:4 potentially 11:1 meet 35:22 16:23 outgrowth 12:16 permit 3:15 18:15 power 51:3 member 50:9 novo 46:1 outset 8:2,11,20 22:14 precedent 30:2,2 members 15:16,19 number 22:6 overhaul 13:21 permitted 24:10 32:5,6 15:20 overstated 49:23 persist 29:13 preclude 25:17 mentioned 31:13 O person 12:11 21:11 33:18 34:7 36:7 44:2 o 2:1 3:1 P 36:1 39:13 38:9,11 46:16 merely 6:22 17:8 obtained 16:21 p 3:1 pertinent 25:16 precluded 28:23 merits 9:2,4,8 13:4 21:3 page 2:2 6:21 43:17 petitioners 1:4,16 38:18 45:21,23 18:16,23 29:10 obtaining 26:16 43:21 49:9 2:4,10 3:7 6:21 46:2 44:19 48:4 obvious 17:21 palos 52:2 48:15 precludes 33:1,23 michael 1:15 2:3,9 20:16 panel 32:9 phrase 10:2,5 52:4 precluding 46:21 3:6 48:14 obviously 17:21 parcel 4:13 6:14 picked 20:5 preclusion 24:21 minutes 48:13 occasion 21:22 7:6,7,22 8:18 picks 20:17 25:1,11 33:3,5,10 modest 5:17 occasions 35:17 parents 46:6,8 place 23:13 47:19 33:11,13 39:19 moment 38:5 occurred 19:20 part 4:12 5:5 6:14 47:19 40:11 44:25 46:22 moments 22:2 october 1:9 7:6,6,22 8:17,17 plaintiff 43:22 predicate 52:22 monday 1:9 offered 46:5,8,8 9:5,8,11,18 10:13 plaintiffs 14:6,7 preexisting 34:2,6 motions 12:3 officer 12:10 42:9 13:21 14:24 15:16 35:19 46:2 46:12,17 51:10,24 moved 7:15 officers 50:20 17:8 22:11 23:18 play 30:22 52:17 municipal 3:15 official 40:16 41:5 25:4 37:9 39:7 plead 9:10 prejudice 19:19 41:7 42:4 40:11 49:17 please 3:9 16:5 preliminary 3:20 N officials 49:9 particular 14:5 24:17 13:13 n 1:6 2:1,1 3:1 okay 28:19 30:21 20:2 42:18 52:21 plight 14:25 premise 6:17 Alderson Reporting Company Official Page 60 prerequisites 17:22 41:23 42:23 44:2 R redress 14:25 resolution 22:3 presence 9:15 45:15 46:11,17,22 refer 10:6 43:17 52:23 r 1:17 2:6 3:1 24:14 10:12 12:17 46:24 47:2,4,25 reference 6:20,20 resolve 9:2 11:16 race 20:8 presented 3:21 48:21 50:10 52:13 6:22 17:15 44:6 respect 9:21 21:8 railway 45:4 18:19 25:15 36:23 protections 46:20 49:7 50:2 25:15 raise 18:15 31:22 42:9,12 45:10 46:23 refers 51:15 respectfully 25:8 31:23 37:6 pressed 36:2 provide 14:5 regard 8:21 12:13 26:3 raised 4:22 31:20 presumably 39:20 provided 17:17 regarding 48:25 respondent 1:18 37:7,8 43:10 52:19 regardless 25:18 2:7 6:23 18:15 rancho 52:2 presume 19:4 provision 33:16,25 regents 45:3 21:3 24:15 49:3 range 14:20 pretty 26:14 28:7 34:1,5 regime 3:16 13:8 respondents 19:3 rational 8:18 34:21 previously 13:23 pull 29:7 13:10,10 17:9 response 11:3 23:6 35:15,22 36:12 14:1 punitive 17:17 22:6 22:4,6 52:6,8 48:24 rationalbasis 34:15 primary 52:4 22:9 rehabilitation restate 50:3 rationale 6:5 7:4 principles 8:1 pursues 47:4 45:22 46:12 retain 50:15 51:2 rationales 8:14 12:15 put 36:7 reiterate 22:1 retained 15:10 reach 9:2 24:24,24 prior 16:12 19:2 relatively 15:1 50:23 25:12 38:1,2,3 Q problem 38:7 39:5 relevance 23:2 retaliation 42:19 reached 23:24 46:3 47:7 qi 5:5 relevant 37:21 retire 35:9 25:10 procedural 17:22 qualified 4:1,2,13 relief 17:4 return 6:3 12:14 read 9:14 20:11 22:12 45:14 52:22 7:23 8:3 9:3,5,11 relying 7:5 reversal 27:18 44:12 48:1 52:1 procedurally 22:18 9:19,24 10:2,5,8 remain 43:10 reverse 15:2 real 17:20 30:3,5 procedures 3:11,13 10:17,20,22 11:9 remaining 24:11 review 3:24 17:23 40:22 46:1 11:10,12,15,22 48:13 17:24 29:5,11 realistic 26:15,19 proceed 19:17,22 12:15,25 18:19 remand 36:22 33:7 34:15 35:15 26:22 27:17 28:17 proceeding 6:24 19:5 24:23,25 remanded 36:20 40:9 43:4,9 46:2 realize 42:4 process 4:12 19:18 25:3,12,12 29:14 remedial 13:7 17:9 reviewed 39:13 realized 41:5,8 professors 5:7 39:12,21 40:1,4,8 22:4 51:6,8,9,12 revisit 19:6,10 really 8:9 18:3,11 prong 4:13 9:19 40:10,13,15 41:17 51:20 right 5:4 7:8 8:2 20:1 22:4 28:13 10:7,14 41:25 42:3,7 remedies 3:11,14 10:13,18 11:6,22 36:8 37:21 40:13 prongs 11:16 question 3:20,20,22 3:17 13:19,25 12:22,23 13:2 41:11 49:22 pronounced 20:24 4:2,6 5:3,8,11,20 14:21 44:17 45:6 14:6 15:11 20:8 reason 6:10 10:19 pronouncement 7:8,11 9:3 11:4,5 46:1 51:2,24 27:16 28:2 29:12 13:20 14:13 20:25 22:22 11:9 12:1,14 remedy 7:8,12 9:23 30:8,12 31:20 reasonable 12:10 proof 49:1 13:13 16:7,9,16 11:25 18:13 27:11 33:15 34:7,9,12 reasonably 40:17 proper 6:24 18:13 16:18,19 17:3 31:12 33:6 34:6 38:17 39:3,14,19 reasons 15:25 22:3 34:19 18:19 19:7,13 52:17 43:10,13 44:1,8 35:21 47:18 properly 4:8,14 5:2 33:12 34:12 36:10 repeal 51:23 45:7 49:11 50:9 rebuttal 2:8 24:11 5:5 9:10,11 17:8 36:18 40:23 42:1 repeatedly 12:5 50:16,23 51:11 48:14 36:23 45:10 48:18,24,24 13:9 52:19 recall 37:19 proposition 52:3 49:15 51:6 reply 6:19 16:15 rights 13:19,21,25 receive 50:1 protect 39:22 questions 33:12 17:7 14:5,20 16:21 recognized 4:11 protection 4:4 41:11 reposition 29:15 19:18 21:20 23:19 10:13 52:20 14:10 20:5 34:10 quick 48:17 required 9:1 45:5 34:3 46:20,23 recollection 37:23 34:13,23 35:1,7 quite 37:21 reserve 24:10 49:20 50:1 51:24 reconsider 19:16 35:20 40:7,15 reshuffled 29:19 52:13,16 record 29:2 Alderson Reporting Company Official Page 61 ring 21:9 22:1 23:20 48:13 40:5,10 41:17,22 speaking 9:16 submitted 53:2,4 roberts 3:3 16:18 48:14,16 49:13,21 43:3,4,9,16,19,20 special 33:6 successful 36:2 18:18,22 19:2 50:5,18,21,24 43:21,23 44:5,7 specific 24:2 suddenly 47:17 24:12 25:5,21,24 51:5,25 52:18,25 44:15 47:11 49:1 specifically 3:12 sue 21:13 45:7 26:8 27:24 28:25 scope 15:24 48:25 49:2 spending 48:6 sufficiently 13:10 29:9 39:11,18 sea 33:13,14,17 shouldnt 30:23 split 49:6 suggest 12:9 49:18 44:5 48:12 52:24 search 42:2,2,4 45:12 47:18 squarely 4:25 7:2 suit 11:7 17:23 51:7 53:1 second 4:5 10:7 side 45:11 stand 27:23 28:5 suits 51:22 robinson 28:22 26:9,10 30:1 silent 20:13 standard 33:21 summary 34:22 38:13 45:12 33:21 45:17 46:17 similar 22:5 34:13 36:12,13 suppose 19:9 route 4:21,24 section 3:17 5:9 similarities 17:19 45:17,18,19,19 supposed 20:11 rule 19:5,15 20:24 7:24 9:17 10:9,12 17:19 46:3,18,18 47:7 28:17,18 39:22 21:1,3 23:11 24:2 11:19 12:16,23,25 simply 14:24 20:5 standing 29:20 supreme 1:1,12 27:10,20 29:19 13:11,23 14:7,10 20:17 41:5 stands 22:21 52:2 sure 7:10,19,19 49:3 15:11,21 16:1,22 single 15:8 state 3:15 13:23 11:20 14:17 38:16 ruled 23:25 27:3,21 23:21 32:5 46:11 situation 51:6,11 15:20 31:7 35:5,8 49:13,21 rules 18:17 19:14 49:25 50:8 six 37:6,8 44:23 37:14,16 42:22 survive 35:15 22:15 see 11:20 20:14,15 small 50:16 44:14,20 48:21 survived 34:22 ruling 23:23,25 20:16 29:20,20 smith 15:5 28:22 statement 38:22 suspect 37:13 25:25 28:3 29:1,4 34:21 36:22 41:11 33:22 38:13 45:12 states 1:1,12 22:23 sweeping 23:23,25 29:10 39:12,19,25 41:13 47:9 45:17,18,20,24 27:4,5 31:5,6 50:8 39:25 49:3 running 9:20 seek 19:15 46:3,4 47:7,7 status 19:16 swift 52:23 seeking 19:19 51:14,25 52:1,7 statute 12:20 14:4 swint 24:22,22 S 46:21 smithfitzgerald 16:9,13 17:2 18:1 s 2:1 3:1 seldom 32:1 46:18 18:12 21:13 22:11 T sat 25:24 send 37:25 social 14:24 15:24 23:18 25:19 30:10 t 2:1,1 satisfied 38:16 sense 8:10 28:1 50:12 30:24 31:9 33:15 tailored 3:12 saving 20:5 sensible 7:25 sole 6:20 34:5 33:16,18,20,24 take 26:22 saying 7:6 39:12 sentence 7:21 solely 15:8 34:5 35:4 46:20 taken 47:18 50:4 separate 7:13 8:12 solicitor 1:15 49:17,19 51:8,15 takes 39:4 says 45:11 17:2,2,25 21:13 solution 5:22 51:17,22 talking 12:19,21 scalia 8:22 13:3 separately 18:8 somebody 27:11 statutes 17:12 22:7 13:13 14:18 15:23 43:2 47:8,16 48:1 serious 38:6 33:23 38:10,11 22:9 15:24 26:1 34:25 scheduled 37:4 set 33:11 44:25 47:4 statutory 19:20 35:7 scheme 44:18 51:7 settled 42:10 sorry 23:14 50:3 34:2 36:15 45:22 talks 32:22 38:14 51:8,9,12,21 seventh 3:21,24 4:5 sort 17:10 46:12 51:10,17 43:20 scodro 1:15 2:3,9 4:8 5:7 6:2 9:21 sorts 47:17 stop 51:3 tell 49:10 3:5,6,8,19,25 4:7 9:21 18:14 20:14 sotomayor 11:20 stopped 11:11 telling 43:8 4:19 5:14,25 6:8 20:23 21:1 22:21 11:24 23:14 38:15 strange 52:15 term 3:4 44:20,22 6:11 7:4,10,14,19 22:23 23:12,17,20 39:3 48:25 49:10 stronger 33:5 50:7 7:23 8:13 9:7,25 24:5,8,19,20 49:14 50:3,17,19 student 15:7 terms 38:5 44:16 11:2,14,23 12:13 25:10,25 26:4,5 50:22 students 15:9,10 test 34:22 35:23 13:5,7,18 14:12 27:3,15,21 29:1 sotomayors 11:3 stuff 48:6 thank 13:5 24:12 14:17 16:14,19 29:25 31:14 32:3 sought 21:3 23:23 subject 22:24 23:11 30:21 48:11,12,16 17:6 18:5,21 19:1 32:5,8,18,20,22 49:3 submit 8:16 10:4 52:24,25 19:12 20:23 21:15 38:10,18 39:24 sovereign 31:8 16:1 thats 3:25 5:25 Alderson Reporting Company Official Page 62 11:2,6 19:12 21:5 26:14 28:17 29:6 under40 15:11 W workplace 50:16 23:15,17 30:1,7 29:23 30:15 37:9 under40s 50:11 works 5:24 waiting 8:5 30:15,17 32:14,14 37:18 38:3,17 undergo 12:4 wouldnt 10:21 waived 31:8 36:23 32:16 33:9 36:18 40:2,3 41:10,15 understand 50:4,25 11:11 12:10 27:10 want 8:13 19:6 37:12 38:10,11,21 44:12 48:22 52:3 52:1 31:22 33:4 45:14 27:19,24,25,25 38:22 40:7,12,25 52:15 understanding wrong 27:15,15 28:11 29:5 32:2 43:2,6,7 48:4 third 37:19,25 15:14 19:13 29:12 32:10,10,14 37:24 theobald 1:17 2:6 thought 37:22 41:4 undoubtedly 15:9 wrote 37:19,23 wanted 52:16 24:13,14,16 25:8 threshold 13:2 unfair 37:3,18 warranted 12:6,7 X 26:3,10,18 27:2 time 8:6 24:11 unfairness 36:20 52:21 27:13,20 28:5,19 52:15 37:1 x 1:2,7 washington 1:8 29:23 30:9,12,16 times 10:7 44:22,23 unfortunate 48:3 wasnt 4:17,23 Y 30:18,20 31:3,11 title 21:18 44:4 united 1:1,12 31:16 32:24 37:8 yeah 43:2 31:21 32:15 33:9 45:7 52:11 universal 28:7 39:23,24 42:9,9 year 13:22 31:25 34:16,21 35:2,13 today 22:9 universe 35:25 way 5:24 17:14 37:7 35:16,24 36:4,16 told 47:19 48:23 50:6,7,9 20:11,12 21:11 years 14:9 25:18 36:25 37:3,12,16 top 45:6 unreasonable 42:2 22:17 23:3 38:21 31:25 37:6,8 38:8 39:2,9,16 traditional 9:19 42:4 38:22 44:13 york 36:6 40:3,20,24 41:2 34:14 use 33:20 34:1,4 wellsettled 41:24 youre 7:5 8:22 9:20 41:10,15 42:8,13 treating 12:17 45:21 50:6 51:3 went 3:23 23:1 11:21 13:16 16:14 43:11,15 44:12 trial 11:1,12,13 uses 10:1 32:13 46:19 23:17 26:1,1 27:7 45:16 47:15,20 37:4 39:22 weve 12:5 33:11 V 27:17 28:9 39:6 48:9 trials 12:4 51:11,12 theory 6:11 7:21 tried 10:18,23 v 1:5 3:4 27:4,21,23 39:12 42:25 43:1 whats 6:4,5 7:21 50:8 11:22 28:21,22 31:5 43:5,8,8 38:5 theres 3:19 4:19 trouble 35:13 33:22 35:18 38:13 youve 28:1 38:15 whos 14:15 21:6 7:8,11 12:9 13:12 true 10:1 19:15,17 38:13 41:19,24 38:16,24,25 23:15 25:17 49:16 17:2 21:15,21 40:12 43:15 45:2,4,5,12,24 49:17 Z 26:15,18,21 27:16 try 47:22 vacate 18:14 22:18 wilkie 4:9,16,21 7:2 zombro 44:24 29:12 30:3,5 trying 47:8,9 24:7 7:15 8:15 9:13 31:11,23,25 33:10 turn 36:21 vast 46:25,25 10:10 12:17 25:6 0 34:8,17 35:10 turns 20:21 verdes 52:2 wilkies 10:11 03 1:13 3:2 36:5 41:25 42:24 twice 26:11 versus 5:15 willing 27:7 29:20 04 53:3 43:12 45:5 46:25 two 7:13 8:9,14,23 viable 36:14 wiped 32:6,10 theyre 9:2 17:21 13:8 17:6 18:8 viceversa 17:15 1 43:14 19:10 22:16 24:3 33:12 34:4 35:17 vii 21:18 45:8 52:11 wish 22:14 10 1:13 3:2 25:19 31:6 38:19 41:14 42:25 45:17 vindicate 51:22 wished 19:17 11 53:3 42:21,23 46:8,8 49:22 vindicating 19:18 won 29:2,4 1254 4:21 6:12 thick 20:19 twoprong 9:19 violate 36:17 word 44:18 52:4 12872 1:4 3:4 thing 21:24 25:16 type 42:19 violates 40:14 words 13:4 26:15 1291 8:6 37:20 39:21 43:14 violation 4:12 7:9 38:4 1974 14:18 16:20 things 19:25 20:8 U 7:13 11:25 12:10 work 42:16 1977 41:23 43:17 46:7 51:19 ultimately 32:7 34:20 40:17,18 worker 15:1 1981 17:16 22:5 think 5:25 6:1 7:16 unclear 31:3,4,12 41:6,8 49:12 51:4 workers 3:13,15 1983 3:17 5:9 7:24 8:13,14 10:5 11:4 unconstitutional 51:7 14:23 50:6,7 9:17 10:12 11:19 11:5 16:25 22:2 42:5 working 35:8 12:16,23 13:1,11 Alderson Reporting Company Official Page 63 14:8,10 15:11,21 60 35:9,10 16:1,11,22 23:16 67 43:21 23:18,22 28:23 32:5 33:18,20 35:21 36:17 38:19 7 1:9 38:24,24 39:1 74 15:13 40:7 41:20,22 7a 6:21 42:24 43:6 45:3 45:23 46:10,17,24 47:2,4 49:25 50:8 51:1,7,22 14:19 15:13 1991 13:20 14:18 16:20,21 17:16 18:11 21:19 22:11 20 42:17 49:18 50:16 2009 44:3 2010 29:25 2011 26:6 27:22 2013 1:9 20yearold 36:6 38:13 2254 5:19 2:7 3 2:4 33a 49:9 43:21 4 4:9 8:16 25:6 14:9,15,23 15:4 23:4 25:18 42:15 42:22 49:16 50:12 40s 14:22 43:20 2:10 504 45:22 46:11 19:15 57a 43:18 Alderson Reporting Company