Tuesday, October 15, 2013
The Supreme Court today dismissed Madigan v. Levin, the first case to be argued this year, a case about whether the ADEA supplanted a remedy for unconstitutional age discrimination under 42 U.S.C. § 1983, as improvidently granted. Most people could see this coming from the oral argument, where the Justices focused on the procedural posture of the case and whether the Seventh Circuit had jurisdiction to answer the question accepted for certiorari--and if so, whether that jurisdiction should have been exercised. A group of federal courts professors had filed a brief amici curiae, arguing that the court had jurisdiction, but should not have exercised it for prudential reasons, and as the oral argument transcript shows, the Justices focused on that question and additional issues related to the fact that this was an interlocutory appeal from denial of summary judgment on qualified immunity grounds.
The case will go back to the district court for further procedings on the merits. Because the defendants were found not qualifiedly immune, this may be ripe to settle.
The Supreme Court did not vacate the Seventh Circuit's decision, so, as we noted before, the split seems to remain: the 1st, 4th, 9th, and 10th, have held that the ADEA implicitly forecloses bringing an age discrimination claim directly under the equal protection clause using § 1983 as a vehicle; the 7th has held that it has not.