Our first case this term is case 12872 Madigan versus Levin. Mr. Schudrow? 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 combating 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. Mr. Schudrow, is a preliminary question before we get to the question you presented. And that is, what authority did the Seven Circuit have to deal with the question under the AIDS Discombination Act? I mean, it was, it went to the Seven Circuit on interlocutory review. That's correct. Qualified immunity question? Everybody agrees that there is no qualified immunity, that there is indeed a claim that the equal protection clause includes AIDS. So, the Seven Circuit had no authority to deal with any question other than that, did it? It did, Your Honor. The Seven Circuit properly followed this Court's holding in Wilkie, in footnote four of that opinion. The Court concluded correctly that whether or not there was a Biven's action for a recognized and that case due process violation, was itself part and parcel of the first prong of the qualified immunity inquiry and therefore properly considered. But in Wilkie, the whole case was dismissed by the district court, wasn't it? So, whatever was said in that footnote was dictated. Your Honor, there is an argument in one of the amicus briefs that there was an alternative route under 1254 in Wilkie and therefore the argument is raised that it was dictated. But it wasn't dictated in context, Your Honor. The Court didn't consider that alternative route. The Court squarely held that it had jurisdiction and 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 Biven's action for this constitutional right is properly considered part of the QI. Now, we have an amicus brief from law professors who argue that the seventh circuit should not have that 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 matter of discretion for us to decide whether to do that. Is that, do you agree with that position? 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 past. If we adopt that formulation and that solution, is it as if we are granting search for it before judgment on an issue in our own discretion? Is that the way it works? Well, that's, I think that, no, I think the Court would still fairly consider the seventh circuit's judgment on the issue, Your Honor. And again, I would return to how it, what's the mechanism for us, what's the rationale that we can exercise jurisdiction where a Court of Appeals could not? Well, because we have authority to grant search for it before judgment or for some other reason. The theory advanced in the amicus brief with which we confer is that 1254 grants the Court of Appeals could not be required for 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 pendant appellate jurisdiction in this case. And as we explained briefly in our reply brief, that the one reference, the sole reference dependent appellate jurisdiction on page 7a of the petitioners appendix is merely a reference or a brief description of the failed argument advanced by the respondent that pendant jurisdiction would not be a proper proceeding here. And the Court did not advance. They squarely cited Wilkie in advance along the way. Could I go back, Mr. Scroogeau, to the rationale of the year relying on? You keep on saying part and parcel, but how is it part and parcel? That seems to allow the distinction between a right and a remedy. There is one question whether there has been a violation of law. There is another question whether a cause of action exists to remedy that violation. Why aren't those two separate inquiries? Well, you honor the Court and Wilkie moved from one to the other in the footnote. And I think that, I guess I'm asking you to explain it to you because that footnote is about a sentence long. So what's the theory is to why these are part and parcel of each other? Because the Qualified Immunity Doctorant itself arises out of Section 93 in Bivens, it would seem sensible as a matter of first principles to consider whether or not there is such a cause of action at all at the outset with the right to interlocatory appeal, rather than given the Qualified Immunity as defense from litigation is not just judgment, rather than waiting until final judgment and on a 12.91 appeal, then addressing for the first time on appeal. Well, that seems a different argument, not that the two really are intertwined with each other, but that it just might make sense to consider the one at the outset, even though, in fact, it's a separate inquiry. 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 parcel. 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. So, if you're correct that the two are one and the same, how is it that we have authorized district courts to do the one or the other? We have not required district courts to reach the merits if they can resolve the question on the basis of Qualified Immunity alone. Well, how can that be? If the merits are necessarily part of the Qualified Immunity determination? Well, some of the merits we know are part of it under the Court's decision in Hartman, where the Court concluded that the absence of the failure to properly plead an element is, indeed, properly considered a part of the Qualified Immunity inquiry. And here, 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, that Section 1903 action here would be, would be appropriately considered as part of the first prong of the traditional two pronged Qualified Immunity. You're running up against the Seven Circuit in that respect because the Seven Circuit held that the existence of an, whether it was an exclusive remedy, that that was irrelevant to the Qualified Immunity issue. See? The Your Honor, toward the end of 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 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 1903 action for recognized constitutional right is considered part of the first prong
. If the existence of a cause of action could not be considered in an interlocatory 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 interlocatory appeal in the 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 have a trial potentially about nothing. That's correct, Your Honor. And my early response to Justice Sotomayor's question, I think there were Justice Kagan's question, I apologize. I think it was, that's exactly right. This is immunity from litigation, immunity from suit. The decision was that there was no Qualified Immunity, and the question is having determined there was no Qualified Immunity, so they have stopped there. It wouldn't have been a trial. If there is no Qualified Immunity, then they have no exemptions from trial. No, Your Honor. To decide that there isn't Qualified Immunity, the court needs to consider both prongs and resolve them both at verse to the defendant, and therefore it was essential for the court here to consider the argument that there is no Section Nationality 3 action. I'm not sure you see the distinction or you're facing the distinction. The right not to be tried is one of Qualified Immunity. Correct. You can have a constitutional violation and still not have a remedy, 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 con, or at least there's enough evidence to suggest a constitutional violation, and that a reasonable officer wouldn't have believed his or person would have believed his or her conduct was appropriate? You Honor, with regard to that question, I would return to the notion that as a matter of first principles given that Qualified Immunity is an outgrowth of Section 1983, the court was very justified in Wilkie in treating the presence or not of the cause of action. And this is a, we're not talking about an affirmative defense, for example, in the form of statute 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 1983 and Bivens to contemplate the existence or not of that cause of the action, right at the threshold. Maybe you better say a few words about the merits. Thank you, Your Honor. The A.D.E
.A.'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. Is another preliminary question, and that is why are we talking about the A.D.E.A. when the District Court held that the A.D.A. doesn't cover Mr. Levin. And this seems to be not much of a dispute about that. You're not arguing that the A.D.E.A. does cover him, are you? Well, we are arguing that the A.D.E.A.'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 extended A.D
.E.A. rights and remedies to the previously exempt policy makers and other high-levels. Has the Court ever held that? That, an anti-discrimination 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 A.D.E.A.? No, we would not, Your Honor. And so what is the difference between someone who's under 40 and someone who is under 40 and is not an employee within the meaning of the A.D.E.A.? Sure. And again, we're talking about the 1974 to 1991 period just to be clear, because since 1991, appointees and employees alike have the full range of A.D.E.A. rights and remedies. During that period, under 40s, is this Court held in Klein 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 of the relatively older worker. It's why the Court concluded in Klein 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 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 rights, same with under 40 here
. Now, as to the narrow exception that existed between 74 and 91 for high level government policy makers, we had 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 for 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 carve out for reasons that apply equally to Section 1983. We would submit that the exception likewise would have had force during that interim period. What? For some reason, please. 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 non-employee lacked a 1983 cause of action during the period when that were prior to the enactment of that statute? You're actually absolutely correct, Your Honor. As we say in our library, if there is no need for the Court to confront that question in this case. Which question? The question of whether or not between 1974 and 1991 exempt employees, those who then obtained ADA 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. But I think the point here is that Mr. Levin is covered not by the ADA, but by a separate statute, the GERA. And there's a separate question whether the GERA would displace constitutional belief, which apparently has never been argued to anybody in this case. The two points, Your Honor, first, as we explain in reply and in our opening brief, the GERA is properly considered merely a part of the broader remedial regime under the ADA. And we explain why to look at it otherwise would create all sort of a manner of artificial realities. 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 Vice-Furse. So we know that, for example, in that same 1991 Act, 1981-A was added and provided punitive damages for a whole array of- Well, there are some similarities, many similarities between the ADA 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 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. And, Your Honor, to the extent, if the Court has concerns about addressing that, and again, 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 ADA, 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 Seven Circuits 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 that employ you
. This is an inter- the Qualified Immunity Question is presented on interlocatory appeal. Decisions on the merits, factual, and legal are still pending. Now, we have a determination by the District Court that Mr. Levin is not an employee. 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 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. 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 garrah process for vindicating ADA 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 asked the EEOC if he can proceed in the first instance before an ALJ into advance those claims. That is also an option that we may be. There are a few things I don't really know. I mean, does, do you have to alleged a claim under Gira for this particular individual? I don't know. And if you do, I don't know whether Gira simply picked up whatever saving of the equal protection otherwise would have existed in the ADA or didn't. And I believe that Gira 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 Gira, it goes this way in some cases and that way in other cases when Gira is silent on the matter? And so I look to see what the seven circuit said. Nothing. I look to see what you argued below. Nothing. I look to see whether it's obvious that Gira 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 in the whole case turns on it, why are we hearing an issue that might not even be in the case? Your Honor, the seven circuit was pronounced a rule that was indifferent as between appointees and employees
. The reason for that was the seven 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 ADA does not displace period. That's about people not like the client who's an issue here. That is about people whom the ADA 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 what are we doing deciding whether the ADA applies in in what way to a person to whom it doesn't apply, assuming that Gira 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? You Honor, there's very little lower court authority on the effect of Gira. I will say that what courts have done for, 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 Gira rights. So if there's so little about it, sometimes on occasion, we dismiss a case as improper and providently granted, which is not a particularly desirable thing to do. But how could we avoid doing that here? You Honor, to reiterate a point, it may just a few moments ago. I think that the proper resolution, if the Gira and the ADA, again, are really one remedial regime, and I've pointed out in 1981 A as an example 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 free-standing 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 counter argument that no, they're not, because Gira effectively amends and adds to the ADA, 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 Seven Circuit was asked to issue a broad pronouncement that is indifferent to whether the Seven Circuit was well aware and states that Mr. Lovin was subject to an interlocatory determination that he was and appointee. 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 ADA does not displace ever as to appointees or employees. That doesn't contemplate a new argument that as an appointee rather, Mr. Lovin has subject to a different displacement rule. It would be for the Seven Circuit to confront that in the first place. Sotomayor, I'm sorry. The only issue that's before us is whether someone who's exempted from the ADA still has a 1983 claim. Correct? That's what the Seven Circuit said. If you're not a part of the statute, then you still have your 1983 rights? You honor what the Seven Circuit held is that the ADA 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 instead that as an appointee, Mr
. Lovin is entitled to a different rule that is specific to appointees because they're exempt under the ADA. That argument was never advanced before the Seven Circuit. And at this point, again, we would say should the Court harbor concerns about addressing this case? We would ask that they vacate and let the Seven Circuit address that issue in the first instance. If permitted, I'd like to reserve my remaining time for it. Thank you, counsel. Mr. Theobal. Mr. Chief Justice, may it please the Court. I'd like to first address the jurisdictional issue. We made the argument before the Seven Circuit that the Seven Circuit did not have jurisdiction to on this issue of reclusion. And we argued that under Swint, of course, the decision to swing on an interlocatory 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 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. 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. Well, we respectfully disagree, Your Honor. And we made that argument, and in the decision that the Seven 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 ADA can preclude an individual who's not covered by it, regardless of that individual is under 40 years old, or if they're exempt from the statute, or if they have the claim that the ADA doesn't address. We hear from your brother, who just sat down, explained that the Seven Circuit's ruling didn't consider the issue that you're talking about now. Well, I would respectfully disagree, Your Honor. We, the Seven Circuit, we made it clear in the Seven Circuit that Mr. Levin had been excluded. He was excluded in July of 2011 by a decision of District Court change. He said, the first one or the second one? The second one
. Judge Kour initially decided the issue twice and said Mr. Levin was covered. 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 ADA. But do you concede that now? I could see that there's no realistic. 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 employee or he is not an employee? Well, I mean, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the Seven Circuit in half versus Cook County State's attorney, Your Honor, made it very clear their state's attorneys would be appointees, would not be covered under the ADA. 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, to rule on the ADA issue, wouldn't we have to decide whether there is a remedy for somebody who is an employee within the ADA? Well, it's a district court might be wrong on that, the Seven Circuit might be wrong on that. 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. Well, the court will show rules, the Seven Circuit rules in the APF versus Cook County case, and this court denied cert in 2011 on the APF versus Cook County case. So you don't, you don't want to, you don't want to give it up, which makes sense. I mean, you've got a client. 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. Well, as we stand here now, he is not in this case. And I know it's a pretty universal, he's not an employee under ADA, though he might be under juror. You have to say yes or no, because if you're going to say, I mean, you know, it's let's either do it or not do. So if you want to believe 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. But I mean, that's, this is supposed to be fairly realistic, I think, what we're supposed to do. We're going back to Mr. Levin being not covered. We believe the court's decision in David's versus Passam and the court's decision and Smith versus Robinson, which is the only case where the court has precluded a 1983 constitutional claim. But that- Just to get this clear, you asked for this ruling from the Seventh Circuit
. And you won, based on a factual record that was no different than 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 be better in your cap if you can pull it off, but it seems to me- 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 know, 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 the future that he's not an employee. Well, we think the difference was after the district court's decision in our case, that the Seventh Circuit decided in another case in 2010. And that's why the Second District Court judged, followed that precedent. And that precedent where this Court just denied cert, there's no real possibility that any court is going to find Mr. Levent is being covered by the ADA. The possibility that any court is going to find that your client was, in fact, an employee without Jira. That's what you said, is that right? Jira is another. It's a different statute, but just without Jira, he's a political appointment or whatever it is, so he's not within ADA. That's what I think this is about. That's correct. And you agree with that? Yes. 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. Do you also agree that he is covered by Jira? It is unclear, Your Honor. We don't. Jira, it's unclear whether, first of all, in the Alaska case, versus the U.S. whether it applies to states, states of argued that they're not included in the definition of Jira. And the state of Illinois is not way of sovereign immunity on Jira's statute. So what you're going to add with this is that there is 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 seven circuit, never discussed in the district court. It wasn't discussed at the EOC. When we filed a charge, the Attorney General in command say there should be handled it. Well, it was never discussed because you never raised it, isn't that right? Our position was that it was an applicable. 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 in Jira every year. Some years, there's no cases filed at the EOC. It's seldom used. Do you want us to hold that? That the seventh circuit lacked jurisdiction to consider 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 ADA and not consider Jira. So that would be back in the case when it went back to the district court. So that's correct. That's what you want. Yes, Your Honor. And that's that our position is we didn't argue the jurisdictional issue in our brief, but the Court was concerned about it. We did address it in the seventh circuit. I would have pointed out in the seventh circuit's decision, though, their decision throughout the, for instance, at the seventh circuit that talks about Mr
. And the state of Illinois is not way of sovereign immunity on Jira's statute. So what you're going to add with this is that there is 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 seven circuit, never discussed in the district court. It wasn't discussed at the EOC. When we filed a charge, the Attorney General in command say there should be handled it. Well, it was never discussed because you never raised it, isn't that right? Our position was that it was an applicable. 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 in Jira every year. Some years, there's no cases filed at the EOC. It's seldom used. Do you want us to hold that? That the seventh circuit lacked jurisdiction to consider 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 ADA and not consider Jira. So that would be back in the case when it went back to the district court. So that's correct. That's what you want. Yes, Your Honor. And that's that our position is we didn't argue the jurisdictional issue in our brief, but the Court was concerned about it. We did address it in the seventh circuit. I would have pointed out in the seventh circuit's decision, though, their decision throughout the, for instance, at the seventh circuit that talks about Mr. Levin not being in a pointy on the policy, like making level and exempt. So that was in the case. It wasn't something where they just decided whether the ADA precludes individuals that are covered. But as far as the, the preclusion is concerned, why does it make a difference whether it's ADA or GERA? It wouldn't be arguing for preclusion, be even stronger under GERA because they're really special in the straight-of-remony. Have to go to the EOC first and the only forum for review is the Federal Circuit. That's correct, Your Honor. The, there's no preclusion under GERA or the ADA. We've said forth that the Court should look at preclusion with two questions. The first question on a preclusion is under C-clambers. C-clambers was a case where they passed a new statute with a new right and had an enforcement provision in the statute. And the issue is whether or not under C-clambers 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 versus Fitzgerald, which is applicable here, if we're looking at whether the ADA precludes somebody covered by the ADA. And that is, when a statute is passed with an enforcement provision, did Congress intend to use that enforcement provision to also enforce preexisting independent statutory or constitutional rights? And two, did Congress intend to use that provision in the new statute to be the sole exclusive remedy of the constitutional preexisting independent constitutional right? GERA cannot preclude a constitutional right. GERA, there's no evidence that when Congress passed GERA, they intended GERA to enforce the constitutional right, the equal protection of the law. SOT It's a nice question about the constitutional right. Do you agree that the standard for an equal protection, age discrimination claim is traditional, full-blown, rational basis review? SOT Yes, Your Honor. GERA So that if there's any conceivable ground on which the decision-maker could have decided that age was proper to make an age classification, there's no constitutional violation. SOT We could see whether rational basis test in the court found we survived summary judgment on our equal protection gender discrimination claim and the age discrimination. GERA I'm just talking about equal protection age discrimination. SOT Yes. GERA What if the Illinois legislature passed a statute that said, now forget about the ADA, there's no ADA, there's no state anti-discrimination law involved here. All we're talking about is equal protection and they passed the 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. SOT We're all in trouble. GERA Would that be, would that survive a rational basis review? SOT I don't believe so
. Levin not being in a pointy on the policy, like making level and exempt. So that was in the case. It wasn't something where they just decided whether the ADA precludes individuals that are covered. But as far as the, the preclusion is concerned, why does it make a difference whether it's ADA or GERA? It wouldn't be arguing for preclusion, be even stronger under GERA because they're really special in the straight-of-remony. Have to go to the EOC first and the only forum for review is the Federal Circuit. That's correct, Your Honor. The, there's no preclusion under GERA or the ADA. We've said forth that the Court should look at preclusion with two questions. The first question on a preclusion is under C-clambers. C-clambers was a case where they passed a new statute with a new right and had an enforcement provision in the statute. And the issue is whether or not under C-clambers 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 versus Fitzgerald, which is applicable here, if we're looking at whether the ADA precludes somebody covered by the ADA. And that is, when a statute is passed with an enforcement provision, did Congress intend to use that enforcement provision to also enforce preexisting independent statutory or constitutional rights? And two, did Congress intend to use that provision in the new statute to be the sole exclusive remedy of the constitutional preexisting independent constitutional right? GERA cannot preclude a constitutional right. GERA, there's no evidence that when Congress passed GERA, they intended GERA to enforce the constitutional right, the equal protection of the law. SOT It's a nice question about the constitutional right. Do you agree that the standard for an equal protection, age discrimination claim is traditional, full-blown, rational basis review? SOT Yes, Your Honor. GERA So that if there's any conceivable ground on which the decision-maker could have decided that age was proper to make an age classification, there's no constitutional violation. SOT We could see whether rational basis test in the court found we survived summary judgment on our equal protection gender discrimination claim and the age discrimination. GERA I'm just talking about equal protection age discrimination. SOT Yes. GERA What if the Illinois legislature passed a statute that said, now forget about the ADA, there's no ADA, there's no state anti-discrimination law involved here. All we're talking about is equal protection and they passed the 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. SOT We're all in trouble. GERA Would that be, would that survive a rational basis review? SOT I don't believe so. This court has considered that issue on two occasions in Gregory V. Ashcroft. It was before the court, it was a, the plaintiffs were excluded like Mr. Levent, 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. SOT Mr. Theobal, are there any cases out there in the universe of cases in which a person does not have an ADA claim or a Georeclaim but has, has pressed a successful constitutional claim based on age discrimination? SOT Well, Geora has never been, there's one case on Geora that we could find. It's over a 20-year-old district court, New York decision that said Geora can't preclude anything. So we put Geora together with the ADA. It's only been really one district court has addressed that issue. SOT I guess the question is what are the circumstances in which, given the very low standard, or 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? SOT If you had a claim under 1983, it would also, I believe, violate the ADA. SOT If that's a good idea, that's your question. SOT 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 not the Geora issue has been properly presented or waived and to consider that? SOT Well, there would be unfairness to the parties in doing that. SOT We're very unfair to us, Your Honor. We were scheduled to go to trial and may before the Court granted cert. The case has been pending almost six years and to raise this issue, this issue in Bureau was raised this year. It wasn't raised for six years, whenever it was part of this case. SOT And I don't think that argument could be made in the district court. Well, for something that's a suspect is bureau weathered, it even applies. It's the State has not said that about doing this. SOT What about the, is there anything unfair about this? I think Justice Ginsburg wrote an opinion and I recall a third circuit case involving a RISSA or a medical thing. And an issue came up that was quite relevant and nobody really thought about it before or done much about it. And what she wrote to my recollection is, well, we'd like the advice of the lower court if they want to give it. And so we send it back for the third circuit to consider weather. It's appropriate to reach the issue and if it is appropriate to reach the issue do so
. This court has considered that issue on two occasions in Gregory V. Ashcroft. It was before the court, it was a, the plaintiffs were excluded like Mr. Levent, 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. SOT Mr. Theobal, are there any cases out there in the universe of cases in which a person does not have an ADA claim or a Georeclaim but has, has pressed a successful constitutional claim based on age discrimination? SOT Well, Geora has never been, there's one case on Geora that we could find. It's over a 20-year-old district court, New York decision that said Geora can't preclude anything. So we put Geora together with the ADA. It's only been really one district court has addressed that issue. SOT I guess the question is what are the circumstances in which, given the very low standard, or 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? SOT If you had a claim under 1983, it would also, I believe, violate the ADA. SOT If that's a good idea, that's your question. SOT 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 not the Geora issue has been properly presented or waived and to consider that? SOT Well, there would be unfairness to the parties in doing that. SOT We're very unfair to us, Your Honor. We were scheduled to go to trial and may before the Court granted cert. The case has been pending almost six years and to raise this issue, this issue in Bureau was raised this year. It wasn't raised for six years, whenever it was part of this case. SOT And I don't think that argument could be made in the district court. Well, for something that's a suspect is bureau weathered, it even applies. It's the State has not said that about doing this. SOT What about the, is there anything unfair about this? I think Justice Ginsburg wrote an opinion and I recall a third circuit case involving a RISSA or a medical thing. And an issue came up that was quite relevant and nobody really thought about it before or done much about it. And what she wrote to my recollection is, well, we'd like the advice of the lower court if they want to give it. And so we send it back for the third circuit to consider weather. 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 be a serious problem for you or your client? SOT Well, our position is that, yes, that none of these are the case applied. ADA cannot prove something that's covered. The seven circuit opinion covers that. The ADA can't preclude somebody that's not covered. And this court's opinion in Davis versus Passam and put no 22 in Smith versus Robinson. SOT 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's precluded from a 1983 claim, whether they're an employee or a non-employee. That's the way the case was litigated. That's the way they decided. It was a broad statement. It's an employee or not an employee. He doesn't have a 19, he has a 1983 action. You've come in and you've said he's not an employee, so he's entitled to his 1983 claim. SOT Yes. SOT 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. SOT Yes, he's been excluded. SOT I agree with you. SOT 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 Gira, right? SOT We don't agree that he's covered by Gira. SOT Well, I mean, I'm clear. SOT They didn't address Gira in the preclusion ruling, right? SOT So presumably they get another, they get a chance in an interlocutory appeal
. 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 be a serious problem for you or your client? SOT Well, our position is that, yes, that none of these are the case applied. ADA cannot prove something that's covered. The seven circuit opinion covers that. The ADA can't preclude somebody that's not covered. And this court's opinion in Davis versus Passam and put no 22 in Smith versus Robinson. SOT 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's precluded from a 1983 claim, whether they're an employee or a non-employee. That's the way the case was litigated. That's the way they decided. It was a broad statement. It's an employee or not an employee. He doesn't have a 19, he has a 1983 action. You've come in and you've said he's not an employee, so he's entitled to his 1983 claim. SOT Yes. SOT 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. SOT Yes, he's been excluded. SOT I agree with you. SOT 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 Gira, right? SOT We don't agree that he's covered by Gira. SOT Well, I mean, I'm clear. SOT They didn't address Gira in the preclusion ruling, right? SOT So presumably they get another, they get a chance in an interlocutory appeal. The whole thing is qualified immunity is supposed to protect them from trial. And if you say the Gira issue wasn't, wasn't considered even though the seventh circuit's ruling was sweeping and didn't distinguish, well, they should have a chance to assert qualified immunity under that crown, I would think. SOT Well, I don't think that that would factor any runner with the qualified immunity analysis. The seventh circuit held and the district court held that your decision in Kimmel and acknowledged equal protection 9 to 8 three claims and that's the issue in the qualified immunity. They have not asked this court to review the qualified immunity aspect of the seventh circuit's decision. SOT Well, that's true, but is that the conclusion? SOT 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 believed there was no constitutional violation? SOT We still ladder the real question. SOT Yes, sir. SOT That's not with the district court held, though, is it? SOT The district court did so, yes. SOT Well, I thought the district court simply held that or, 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. SOT I think they've been answering both questions, really. I don't see the difference. SOT You don't see the difference between the two? SOT No, you're wrong. SOT I think the district court's decision held no qualified immunity. The southern circuit cited this court's decision to Kimmel. The other case is before this court, uh, uh, the SOT, acknowledged a age discrimination case brought through 1983, and it was clearly established. The southern circuit acknowledged the 1983 age discrimination, the equal protection claimed in 1977 in, uh, call for Susqueiris, and this is a well settled issue. SOT Let's see. We can see this like this. SOT I think there's a qualified immunity appeal 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 the, would that be the issue under qualified immunity? SOT Well, if the facts that the office service presented, if there wasn't, it wasn't well settled, that the conduct on the facts that were presented. SOT Yes, Your Honor. SOT So, on the people that are uncovered, we have four groups. People that are under 40 under the ADA, people in the, uh, their exempt individuals that work for a government employer that have less than 20 employees are not covered by the ADA, and people that have a particular type of claim, a retaliation claim, a claim for emotional distrust damage is something like that, they're not covered. The State concedes that the people under 40 bring, bring, bring, the protection claims to 1983
. The whole thing is qualified immunity is supposed to protect them from trial. And if you say the Gira issue wasn't, wasn't considered even though the seventh circuit's ruling was sweeping and didn't distinguish, well, they should have a chance to assert qualified immunity under that crown, I would think. SOT Well, I don't think that that would factor any runner with the qualified immunity analysis. The seventh circuit held and the district court held that your decision in Kimmel and acknowledged equal protection 9 to 8 three claims and that's the issue in the qualified immunity. They have not asked this court to review the qualified immunity aspect of the seventh circuit's decision. SOT Well, that's true, but is that the conclusion? SOT 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 believed there was no constitutional violation? SOT We still ladder the real question. SOT Yes, sir. SOT That's not with the district court held, though, is it? SOT The district court did so, yes. SOT Well, I thought the district court simply held that or, 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. SOT I think they've been answering both questions, really. I don't see the difference. SOT You don't see the difference between the two? SOT No, you're wrong. SOT I think the district court's decision held no qualified immunity. The southern circuit cited this court's decision to Kimmel. The other case is before this court, uh, uh, the SOT, acknowledged a age discrimination case brought through 1983, and it was clearly established. The southern circuit acknowledged the 1983 age discrimination, the equal protection claimed in 1977 in, uh, call for Susqueiris, and this is a well settled issue. SOT Let's see. We can see this like this. SOT I think there's a qualified immunity appeal 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 the, would that be the issue under qualified immunity? SOT Well, if the facts that the office service presented, if there wasn't, it wasn't well settled, that the conduct on the facts that were presented. SOT Yes, Your Honor. SOT So, on the people that are uncovered, we have four groups. People that are under 40 under the ADA, people in the, uh, their exempt individuals that work for a government employer that have less than 20 employees are not covered by the ADA, and people that have a particular type of claim, a retaliation claim, a claim for emotional distrust damage is something like that, they're not covered. The State concedes that the people under 40 bring, bring, bring, the protection claims to 1983. There's no difference between those people and Mr. Levin and the other two categories, either in or you're out. SOT Yeah, but that's not what the seventh Circuit is, I mean, that may well be. But we're asked to review a holding by the seventh Circuit that even if you are covered, well, if you're not exempt, you still have a 1983 claim. That's why we took this case. And now you're, you're, you're telling us, uh, we should not review what the seventh Circuit held. And that would presumably remain the Circuit Law, right? SOT Yes, Your Honor. SOT Well, not if there's no jurisdiction, right? If they didn't have jurisdiction, the thing would be wiped out. SOT Yes, 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's son Mr. Levin is exempt. The seventh Circuit opinion. The seventh Circuit, the number 44, talks about end runs. The seventh Circuit, the Dacket, number 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 of Fitzgerald gives an individual the right to bring an equal reduction claim. And the court mentioned that in Fitzgerald the decision in 2009. SOT being exempt. SOT Even though they have that reference to him being exempt, the seventh Circuit base said it didn't make a difference, right? Whether he was covered as an employee or not covered or covered under Jure or anything else, under their analysis it doesn't make a difference. SOT I think we could read the opinion that way, but they certainly were aware that Mr. Levin was not covered. The State has argued since Mr. Levin has been excluded before the seventh Circuit and before this Court. They used the term exhaustion, not exhausting remedies, and they used the word avoid the scheme
. There's no difference between those people and Mr. Levin and the other two categories, either in or you're out. SOT Yeah, but that's not what the seventh Circuit is, I mean, that may well be. But we're asked to review a holding by the seventh Circuit that even if you are covered, well, if you're not exempt, you still have a 1983 claim. That's why we took this case. And now you're, you're, you're telling us, uh, we should not review what the seventh Circuit held. And that would presumably remain the Circuit Law, right? SOT Yes, Your Honor. SOT Well, not if there's no jurisdiction, right? If they didn't have jurisdiction, the thing would be wiped out. SOT Yes, 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's son Mr. Levin is exempt. The seventh Circuit opinion. The seventh Circuit, the number 44, talks about end runs. The seventh Circuit, the Dacket, number 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 of Fitzgerald gives an individual the right to bring an equal reduction claim. And the court mentioned that in Fitzgerald the decision in 2009. SOT being exempt. SOT Even though they have that reference to him being exempt, the seventh Circuit base said it didn't make a difference, right? Whether he was covered as an employee or not covered or covered under Jure or anything else, under their analysis it doesn't make a difference. SOT I think we could read the opinion that way, but they certainly were aware that Mr. Levin was not covered. The State has argued since Mr. Levin has been excluded before the seventh Circuit and before this Court. They used the term exhaustion, not exhausting remedies, and they used the word avoid the scheme. They avoid the ADA. 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 ADA at least six times. This argument is the old Zambrow argument, the first case that held preclusion, where somebody didn't go through. Exhaustion has nothing to do with this case. This Court's opinion in Patsy versus Board of Regents said you don't have to exhaust for 1983. All the cases, Johnson versus Broadway Express, CBO, CES versus Humphreys. There's no exhaustion required. And the Tabarot, Mr. Levin, he exhausted his remedies. He filed it at the EOC. He got a right to sue under Title VII. So it less assume that the question that was presented is before us. And you have argued that Steril, the other side says Smithby Robinson should control. So why shouldn't the handicap act decision control? That, like the ADA, has a lot of procedural parts that wouldn't be included in an equal protection plan. We believe, Your Honor, that those two cases are the second standard. 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 educational Thrall Hewney Capdack, 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 versus Verstierld said that it did because there was no the EHA, the remedies and the procedures there was not for a denoval review in court. So the plaintiffs claim was precluded. We have no problem with Smith's 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 doesn't cover those things that they're offered to parents and if they're offered in a discriminatory manner, are denied for discrimination, those claims can be brought under the 1983 equal protection claims, or under Section 504 of the Rehabilitation Act, the preexisting statutory claim. So, recline that to the ADA, there is no evidence that in passing the ADA, recovered individuals that Congress intended to preclude the preexisting 1983 equal protection claim. So, the R Second Standard in our brief is the Smith Fitzgerald Standard
. They avoid the ADA. 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 ADA at least six times. This argument is the old Zambrow argument, the first case that held preclusion, where somebody didn't go through. Exhaustion has nothing to do with this case. This Court's opinion in Patsy versus Board of Regents said you don't have to exhaust for 1983. All the cases, Johnson versus Broadway Express, CBO, CES versus Humphreys. There's no exhaustion required. And the Tabarot, Mr. Levin, he exhausted his remedies. He filed it at the EOC. He got a right to sue under Title VII. So it less assume that the question that was presented is before us. And you have argued that Steril, the other side says Smithby Robinson should control. So why shouldn't the handicap act decision control? That, like the ADA, has a lot of procedural parts that wouldn't be included in an equal protection plan. We believe, Your Honor, that those two cases are the second standard. 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 educational Thrall Hewney Capdack, 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 versus Verstierld said that it did because there was no the EHA, the remedies and the procedures there was not for a denoval review in court. So the plaintiffs claim was precluded. We have no problem with Smith's 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 doesn't cover those things that they're offered to parents and if they're offered in a discriminatory manner, are denied for discrimination, those claims can be brought under the 1983 equal protection claims, or under Section 504 of the Rehabilitation Act, the preexisting statutory claim. So, recline that to the ADA, there is no evidence that in passing the ADA, recovered individuals that Congress intended to preclude the preexisting 1983 equal protection claim. So, the R Second Standard in our brief is the Smith Fitzgerald Standard. And Fitzgerald, the Court went further and explained if the rights and protections of the statute that seeking to be precluding are different than the equal protection claim, then there's 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, the different defendants, and the ADA, the entities that offended, and equal protection in 1983, it's individuals. And the ADA, all these assumptions that people that aren't covered, if somebody pursues a 1983 protection claim, there is no exemptions of individuals. So, to conclude your honor, we adapt to Smith's standard. We have no problem with Smith. I'm trying to see how many of these arguments that you've 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 don't like to dismiss a case as improvintly graded. And we set up time to happen. And it only 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. We could have done a better job, you're honor, and I apologize for that. We did try to point out that Mr. O'Linn was exempt. We did say that and how under Fitzgerald, the exemptions formed the basis of an equal protection claim. I read your brief in opposition as going exclusively to what you're unfortunate, brother, barely had a chance to argue that is the merits of the case. That's what your brief in opposition addressed. And here we end up spending most of our discussion on other stuff. I don't like to encourage that. And we could have done a better job. Thank you, counsel. Mr. Schudrow, do you have five minutes remaining? Thank you, Mr. Chief Justice
. And Fitzgerald, the Court went further and explained if the rights and protections of the statute that seeking to be precluding are different than the equal protection claim, then there's 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, the different defendants, and the ADA, the entities that offended, and equal protection in 1983, it's individuals. And the ADA, all these assumptions that people that aren't covered, if somebody pursues a 1983 protection claim, there is no exemptions of individuals. So, to conclude your honor, we adapt to Smith's standard. We have no problem with Smith. I'm trying to see how many of these arguments that you've 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 don't like to dismiss a case as improvintly graded. And we set up time to happen. And it only 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. We could have done a better job, you're honor, and I apologize for that. We did try to point out that Mr. O'Linn was exempt. We did say that and how under Fitzgerald, the exemptions formed the basis of an equal protection claim. I read your brief in opposition as going exclusively to what you're unfortunate, brother, barely had a chance to argue that is the merits of the case. That's what your brief in opposition addressed. And here we end up spending most of our discussion on other stuff. I don't like to encourage that. And we could have done a better job. Thank you, counsel. Mr. Schudrow, do you have five minutes remaining? Thank you, Mr. Chief Justice. Just a couple of quick points. Justice Kagan, an 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 Kimmel makes clear that such a universe does not exist. The question in response to a question from Justice Sotomayor regarding the scope of the Seven Circuits decision below, it proved positive that the Seven Circuit was, in fact, announcing the sweeping rule that respondent sought, is the fact that the Court departs openly from the law and 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 high-level officials appears on page 30A. The authority is, or Congress, to extinguish a right for a constitutional violation, meaning, assuming someone on the, it was the question that Justice Sotomayor asked you, someone under 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 this statute that Congress intended to extinguish those people's rights? Sotomayor, there are really two parts to my answer. The first is, they didn't. It's been overstated what has been exempted. Our position is that nobody whose Section I today, Three Claims, would be displaced, would not in exchange receive the full rights and benefits under the ADEA. There is a reference to- Sotomayor, I'm sorry, restate that. I didn't understand what you said. No one who, the universe of employees or workers to use the neutral term here, the universe of workers who would not have in 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 Clos. The under 40s, we agree, as we say on 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 decline, and therefore those individuals retain their right. The small workplace, the under 20, the EEOC- Absent to GERA. Would people who are executive officers, et cetera, absent to GERA, would they have retained the constitutional right? They would. We do not, we understand the displacement doctrine, and 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. Mr. Kudra, you're in a situation where the question is not whether the remedial scheme displaces in 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 pre-existing 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 an example of the fact that you're not enough to say, look, you can't bring 1983 suits to vindicate this statute, but seems, although it's not enough under Arcase Law, to repeal pre-existing rights and remedies
. Kudra, Smith, as we understand Smith, and certainly as it's been read by Rancho Palisferides and Fitzgerald even, it stands for the proposition that the load starring query, and I think the word primary emphasis, or that phrase, maybe used in Fitzgerald, to describe the comprehensiveness of the regime as the first and most important inquiry. After that, Smith makes clear that we're allowed to consider if there is a comprehensive regime, whether there's contrary evidence in the face of the legislative history, as there is, for example, for Title VII, not so for the ADA. And- Kudra, why would if the ADA is expanding the civil rights protection against AIDS discrimination much more generous to the employee? Is this strange to think that Congress at the same time wanted employees to have these expanded rights and to do away with the pre-existing remedy? No, Your Honor, not at all. When Congress provided the expanded right, they recognized that there were characteristics particular to AIDS discrimination that warranted very low damages awards and a procedural predicate that would emphasize swift and informal dispute resolution. Thank you, Counsel. Thank you. The case is submitted