Certiorari Granted in Madigan v. Levin: An Important Section 1983/ADEA Preclusion Case
NOTE: ON OCTOBER 15, 2013, AFTER ORAL ARGUMENT IN THE PRIOR WEEK, THE SUPREME COURT DISMISSED THE CERTIORARI PETITION IN LEVIN AS IMPROVIDENTLY GRANTED
Certiorari Granted in Madigan v. Levin
The Supreme Court granted certiorari on March 18, 2013, in Levin v. Madigan, 692 F.3d 607 (7th Cir.), cert. granted sub nom. Madigan v. Levin, 132 S. Ct. — (2013), an important section 1983/ADEA preclusion case.
In Levin, the Seventh Circuit held, as a matter of first impression in its circuit, that a terminated Illinois Assistant Attorney General could use section 1983 to sue state law enforcement officials for damages in their individual capacities for an alleged equal protection age discrimination violation. It rejected the defense argument that the existence of a comprehensive regulatory scheme under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 621 et. seq., demonstrated Congressional intent to limit such claims to the ADEA and thereby to preclude section 1983 equal protection age discrimination claims. Judge Kanne wrote the opinion, joined by Judges Posner and Bauer.
In so ruling, the Seventh Circuit attracted the Supreme Court’s attention because it took a position on this preclusion issue contrary to that of the District of Columbia, First, Fourth, Fifth, Ninth and Tenth Circuits, thus creating a circuit split.
Two Supreme Court Precedents
There are only two directly relevant Supreme Court precedents on this preclusion issue.
The first is Smith v. Robinson, 468 U.S. 992 (1984), where the Court held that Congress intended the Education of the Handicapped Act (EHA), 20 U.S.C. sec. 1400 et. seq., to preclude section 1983 equal protection claims to publicly financed special education. Congress thereafter superseded this decision by enacting the Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372.
The second is much more recent. In Fitzgerald v. Barnstable School Comm., 555 U.S. 246 (2009), the Court held that Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681(a), did not preclude a section 1983 equal protection sex discrimination claim. In reaching this conclusion, the Court focused on the important differences between the scope and elements of Title IX claims and those of section 1983 equal protection sex discrimination claims.
In both cases, the Court was attempting to discern Congressional intent where Congress had not said anything explicit about this preclusion issue. The Supreme Court in Levin will attempt to do the same.
1. If Congress had declared explicitly that the ADEA either did or did not preclude section 1983 equal protection age discrimination claims, that would have been the end of it. The section 1983 equal protection/ADEA issue arose only because Congress was silent on the matter.
2. There are similarities between this preclusion issue and the use of section 1983 to redress certain federal statutory violations–what I call “laws” actions. Still, it should be harder to demonstrate Congressional intent to preclude a section 1983 constitutional claim than to demonstrate that Congress intended that particular federal statutory violations not be actionable for damages under section 1983.
To put this point somewhat differently, the presumption that section 1983 is available should be stronger for constitutional claims than for federal statutory claims in “laws” actions.
3. Levin will be argued and decided in the Court’s 2013 Term.
See generally on “laws” actions and preclusion of section 1983 constitutional claims, chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(West), also available on WESTLAW and as an ebook.
UPDATE: After I published this post, I discovered that Murray Duncan, a Chicago-Kent student, published a note on this same case. I think you will find it of interest, whatever your view of the merits. It is available here: http://www.kentlaw.iit.edu/Documents/Academic%20Programs/7CR/v8-1/duncan.pdf