Supreme Court Report

Supreme Court of the United States · Official docket →

Noris Babb v. Robert Wilkie, Secretary of Veterans Affairs

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 16-16492 · judgment July 16, 2018

Decided · April 6, 2020
Pre-decision estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for counsel who has won certiorari before and an Eleventh Circuit decision below.

Question presented

Federal employees' rights are determined under statutes which require that "all personnel actions effecting employees or applicants for employment ... in executive agencies as defined in Title 5 ... shall be made free from any discrimination ... " See 42 U.S.C.§ 2000e-16(a) (race, color, religion, sex, or national origin) (emphasis added); 29 U.S.C. § 633a(a) (age). This Court, in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), interpreted the private-sector statutory language "because" in 42 U.S.C. § 2000e-3(a), and ''because of' in 29 U.S.C. § 623(a)(1), respectively, as requiring a private-sector plaintiff to prove but-for causation. The question presented is: Whether "shall be made free from any discrimination" permits federal-sector personnel actions that are not made free from any discrimination or retaliation, as long as discrimination or retaliation is not the but-for cause of the personnel action, or rather prohibits personnel actions where discrimination and retaliation is a factor. A subsidiary question is whether Title VII bans retaliation in federal employment. GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER THE FEDERALSECTOR PROVISION OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, WHICH PROVIDES THAT PERSONNEL ACTIONS AFFECTING AGENCY EMPLOYEES AGED 40 YEARS OR OLDER SHALL BE MADE FREE FROM ANY “DISCRIMINATION BASED ON AGE,” 29 U.S.C. §633a(a), REQUIRES A PLAINTIFF TO PROVE THAT AGE WAS A BUT-FOR CAUSE OF THE CHALLENGED PERSONNEL ACTION. ORDER OF JANUARY 17, 2020: THE PARTIES ARE DIRECTED TO FILE SUPPLEMENTAL LETTER BRIEFS ADDRESSING THE FOLLOWING QUESTION: WHAT PROSPECTIVE ADMINISTRATIVE OR JUDICIAL RELIEF MAY A FEDERAL EMPLOYEE OBTAIN UNDER LAWS OTHER THAN THE ADEA, INCLUDING UNDER THE CIVIL SERVICE LAWS OR THE CONSTITUTION, AGAINST AGE-RELATED POLICIES, PRACTICES, ACTIONS, OR STATEMENTS THAT WERE NOT THE BUT-FOR CAUSE OF AN ADVERSE EMPLOYMENT ACTION AGAINST THE COMPLAINING EMPLOYEE?

Counsel of record

For petitioner
Roman Martinez
Latham & Watkins, LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 2 conferences

Amicus briefs
2 merits
(2 supporting pet./neither)

Argument & decision

Argued January 15, 2020 — Roman Martinez · Noel J. Francisco. Audio and transcript

Decided April 6, 2020. Opinion by Alito.

Proceedings

  1. May 08 2020
    JUDGMENT ISSUED.
  2. Apr 06 2020
    Judgment REVERSED and case REMANDED. Alito, J., delivered the opinion of the Court,, in which Roberts, C. J., and Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined, and in which Ginsburg, J., joined as to all but footnote 3. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined. Thomas, J., filed a dissenting opinion.
  3. Jan 23 2020
    Supplemental letter brief of petitioner Noris Babb filed. (Distributed)
  4. Jan 23 2020
    Supplemental letter brief of respondent Robert Wilkie, Secretary of Veterans Affairs filed. (Distributed)
  5. Jan 17 2020
    The parties are directed to file supplemental letter briefs addressing the following question: What prospective administrative or judicial relief may a federal employee obtain under laws other than the ADEA, including under the civil service laws or the Constitution, against age-related policies, practices, actions, or statements that were not the but-for cause of an adverse employment action against the complaining employee? The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Thursday, January 23, 2020.
  6. Jan 15 2020
    Argued. For petitioner: Roman Martinez, Washington, D. C. For respondent: Noel J. Francisco, Solicitor General, Department of Justice, Washington, D. C.
  7. Dec 23 2019
    Reply of petitioner Noris Babb filed. (Distributed)
  8. Dec 03 2019
    Record requested from the U.S.C.A. 11th Circuit.
  9. Nov 26 2019
    CIRCULATED
  10. Nov 22 2019
    Brief of respondent Robert Wilkie, Secretary of Veterans Affairs filed.
  11. Nov 08 2019
    SET FOR ARGUMENT on Wednesday, January 15, 2020.
  12. Sep 24 2019
    Brief amicus curiae of National Treasury Employees Union filed.
  13. Sep 24 2019
    Brief amici curiae of AARP, et al. filed.
  14. Sep 17 2019
    Joint appendix filed. (Statement of costs filed)
  15. Sep 17 2019
    Brief of petitioner Noris Babb filed.
  16. Sep 17 2019
    Blanket Consent filed by Petitioner, Noris Babb.
  17. Jul 19 2019
    Joint motion for an extension of time within which to file the briefs on the merits filed.
  18. Jul 19 2019
    Joint motion for an extension of time within which to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 17, 2019. The time to file respondents' briefs on the merits is extended to and including November 22, 2019.
  19. Jun 28 2019
    Petition GRANTED limited to the following question: Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U. S. C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.
  20. Jun 26 2019
    DISTRIBUTED for Conference of 6/27/2019.
  21. Jun 04 2019
    DISTRIBUTED for Conference of 6/20/2019.
  22. Jun 03 2019
    Reply of petitioner Noris Babb filed.
  23. May 20 2019
    Brief of respondent Robert Wilkie, Secretary of Veterans Affairs filed.
  24. Apr 05 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including May 20, 2019.
  25. Apr 04 2019
    Motion to extend the time to file a response from April 10, 2019 to May 20, 2019, submitted to The Clerk.
  26. Mar 05 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including April 10, 2019.
  27. Mar 04 2019
    Motion to extend the time to file a response from March 11, 2019 to April 10, 2019, submitted to The Clerk.
  28. Jan 31 2019
    Motion to extend the time to file a response is granted and the time is extended to and including March 11, 2019.
  29. Jan 30 2019
    Motion to extend the time to file a response from February 8, 2019 to March 11, 2019, submitted to The Clerk.
  30. Jan 07 2019
    Petition for a writ of certiorari filed. (Response due February 8, 2019)