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<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> We'll hear argument this morning in Case 18-882, Babb versus Wilkie. Mr. Martinez.</u>
<p id="ORAL ARGUMENT OF ROMAN MARTINEZ ON BEHALF OF THE PETITIONER">
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Mr. Chief Justice, and may it please the Court: Section 633a states that all federal personnel actions shall be made free from any discrimination based on age. Both parties agree that that language tracks the text and meaning of Title VII's identical federal sector provision covering race, sex, and religion. Together the two provisions bar discrimination not only in the ultimate outcome of a personnel decision but also in the process of making that decision. That's true regardless of whether the prohibited characteristic at issue is a but-for cause of the final decision. That's the rule that the MSPB and the EEOC have applied in countless cases for many years, but more importantly it flows directly from the statutory text. The phrase "free from any discrimination" governs how the decision shall be made. In other words, the process for making that decision. If that process uses age or race as a negative factor, <w>it</w><w>'s</w> not made free from any discrimination. Congress chose those words carefully rejecting the private sector language later addressed in Gross and Nassar. It did so in the unique federal sector context to create a remedy for violating constitutional equal protection rights. This Court has said that when a plaintiff is subjected to discrimination in the process of being considered for a government benefit, he necessarily suffers a redressable equal protection injury even if he <w>can</w><w>'t</w> prove he otherwise would have received a benefit. That same injury rule governs 633a and Title VII. That rule is fully consistent with common law principles and this Court's but-for causation analysis in other cases. The government, in this case, apparently believes <w>it</w><w>'s</w> perfectly lawful for federal agencies to apply younger-is-better or whiter-is-better hiring policies to individuals who <w>can</w><w>'t</w> prove that they would have been hired but for those policies. That's anti-textual and <w>it</w><w>'s</w> wrong. Decisions applying such blatantly discriminatory policies are obviously not made free from any discrimination. The government's theory contradicts the plain statutory language.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But you say that the but-for causation is not required for liability, but then at the relief stage, as I understand your briefs, you say that but-for causation is required for reinstatement or back pay. And where is that in the statutory text?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> So we would say that... that at the... at the remedial stage, ordinary remedial principles would apply, and those principles would require that the victim, the... the plaintiff, be made whole for the violation. And under those ordinary principles that I think are undisputed on both sides, if the evidence shows that the... the person, the plaintiff, <w>could</w><w>n't</w>... <w>would</w><w>n't</w> have gotten hired anyway, they <w>should</w><w>n't</w> get remedies that are specifically and logically tied to that... that thing that they... they <w>were</w><w>n't</w>... <w>would</w><w>n't</w> have been entitled to the in first place. But that <w>does</w><w>n't</w> mean that they <w>should</w><w>n't</w> get the kinds of prospective relief that are available in a wide array of other cases. For example...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And why... why would we go all the way up the hill and then come all the way back down at the relief stage and just say, oh, well, you really do need but-for causation because, as you rightly say, if you <w>have</w><w>n't</w> suffered a... an action because of age, <w>you</w><w>'re</w> not entitled to reinstatement...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> You... Your Honor, with respect, you <w>would</w><w>n't</w> be coming all the way down the hill because there would be a wide range of other types of remedies that would be available other than reinstatement and back pay. For example, you might be entitled to... to an injunction telling the government to stop discriminating.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> This case...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> What would you...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> This... this case, because there is... at least one of her allegations is that she was passed over and younger people were selected for the coagulation unit. Now, suppose <w>that</w><w>'s</w> true, younger women were selected, but they were better qualified; they had experience and training that she lacked. So what would be the remedy? You... you would say there is a violation because age was taken into account. What... what relief... you said it <w>would</w><w>n't</w> be going all the way back down the hill in answer to...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Sure.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> ... Justice Kavanaugh. What would the relief be?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> So, first of all, assuming that the government could show that... that she <w>would</w><w>n't</w> have gotten the job... we'll just take that as a given I think implicit in the question... then she <w>would</w><w>n't</w> be entitled to reinstatement or back pay, but she would be entitled to remedies like EEO training so that this kind of discrimination <w>would</w><w>n't</w> happen to her next time she applies for a promotion or next time she seeks an opportunity. That kind of training is... is a classic remedial relief <w>that</w><w>'s</w> available in these types of cases. In some...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Do... who would get the training?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> The training we be the... the supervisors and perhaps the... the... you know, the... the others within the Bay Pines Medical Center who had contributed to the discriminatory treatment in the first place. I think if the... if a court... you know, we're here at summary judgment, but if the court... if the proof at trial showed that there was some sort of more generalized policy of discriminating against people because they were older, the court could also issue some prospective relief that would say that those policies are unlawful. In a lot of these cases, what a court does is... is requires the entity to post a notice saying here's the finding of discrimination against us, so that people can read that notice, understand what went wrong last time, and not do it again in the future.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Would...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Would that remedy...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> ... that require...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Oh, I'm sorry.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> So no particular relief directly benefiting her?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> No, Your Honor. That's...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Or atmospheric relief, institutional relief, but she herself gets nothing tangible?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think those things would be very tangible for her, Your Honor, because she's still an employee there, she's still operating day to day in that environment, and she still wants to take advantage of future opportunities for training. And so if... if the... if she gets these kinds of corrective remedies, <w>it</w><w>'s</w> going to make it better for her and easier for her next time when she wants to apply for the opportunity, to be treated fairly without regard to age. And this is the kind of forward-looking relief that this Court has often recognized is appropriate, even without but-for causation, for example, in the constitutional cases that we've talked about. So in cases...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Would... would the remedy be any different than might be obtained under the civil service laws?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Well, under the civil service laws, Your Honor, the... the way the civil service laws work is Section 2302 of the CSRA says that the way you bring a discrimination claim is to sue under this statute that we're currently talking about.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> There are... there are other remedies available though, right?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I... I... I guess I'd have to focus specifically... I'm not sure specifically what you'd be asking for, but the way I read the civil service laws is that... that these types of claims need to be brought under this particular statute.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Mr. Martinez...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Now...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... we're assuming the worst for your client, that the government is right that she would not have been hired but-for. But as I understand the equal protection claim, <w>it</w><w>'s</w> that the process would be free from discrimination.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So that even if she <w>can</w><w>'t</w> prove she would have gotten the job, she still has an opportunity to prove, qua a remedy, that age was considered and considered inappropriately.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Correct.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So, for example... give me an example of a defense to one of the government's allegations, because there were four allegations, four or five, of different employment scenarios that she <w>did</w><w>n't</w> qualify for.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But give me an example in those four or five of a process that could have... that she might have won on, that she might have prevailed in showing that that process was corrupted because of her age.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Sure. So for... one example is she sought certain training opportunities. And I think if... if in the course of... if the Court concluded after looking at all the evidence that the reason that she was denied those training opportunities was partly because they thought there were other candidates who were good, but partly because they had... they had a conversation around a table and said, you know, Ms. Babb, she's... she's... she's really kind of old, we <w>do</w><w>n't</w> really like her, she keeps filing these EEO claims, she keeps asserting her rights in this way. Let's not give her the training opportunities in part for that reason. It may be that the government, hypothetically, could come back and prove that there were other more qualified candidates, but that process has been infected by the consideration of those very significant factors of... of pure age discrimination. I think if we look at...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Usually... usually when we have... conclude that <w>there</w><w>'s</w> a tainted process, we make the decisionmaker go back and do it over without the taint, <w>do</w><w>n't</w> we?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think you do in a circumstances, Your Honor, and in a circumstance which that was possible, that might well be the... an available remedy as well. I think we... we are several years past the... you know, the particular promotion decision and the particular role. I <w>do</w><w>n't</w> know if those roles even currently exist in the same way they did several years ago. But I think <w>that</w><w>'s</w> yet another example of the kind of equitable remedy that could be awarded if the process was determined to be tainted.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Martinez, you started by saying that this was a process statute. And I guess I want to press you on why you think that is. If I understood your brief, it was about the word "made," but, I mean, <w>that</w><w>'s</w> a possible interpretation of this language, but another interpretation is that when you say that a personnel action should be made free from any discrimination, <w>you</w><w>'re</w> talking about the actual action, the discharge, the failure to promote, whatever, and saying that that action... at the moment in time when it occurs, that action has to be free from discrimination rather than saying that the entire process leading up to it, including all the irrelevant things that happened that played no role in the action, has to be free from discrimination. So why do you read this as a process statute?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I... I think <w>that</w><w>'s</w> a helpful way. Maybe I could just walk you through my interpretation of the statute. And then we have it reproduced here at page 5 of the blue brief. And so 633a(a), I think <w>they</w><w>'re</w> sort of three big chunks to the statute that are relevant here. First is the subject of the... of the sentence, "all personnel actions." Then <w>there</w><w>'s</w> the verb, "shall be made." And then finally <w>there</w><w>'s</w> an adverbial phrase, "free from any discrimination based on age." And we think the real work here is being done by the combination of the adverbial phrase, "free from any discrimination" that modifies the verb "shall be made." It's not made on its own, <w>it</w><w>'s</w> the combination of those things. And we think that in context, that adverbial phrase answers the question of how the decision shall be made. It's not saying what's the decision. It's not saying when does the decision have to happen. It's talking about how that decision shall be made. That's a... <w>that</w><w>'s</w> process language. I think the second thing is, once you look within the adverbial phrase, within the "free from any discrimination based on any age" phrase, you should ask yourself, okay, well, what does this process have to be free from? The next part of the statute is "any discrimination." And the word "discrimination" has been interpreted under its plain meaning and this... and in this Court's decision in Jackson just to mean unequal differential or less favorable treatment. And we think that that is... we accept that, I think the Solicitor General has conceded that <w>that</w><w>'s</w> the understanding of discrimination.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So I think what the Solicitor General would say is, sure, <w>it</w><w>'s</w> unequal treatment but a person is only subject to unequal treatment if he or she <w>does</w><w>n't</w> get the outcome that he would otherwise have gotten.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Well...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> And if everything ends up the same, then <w>there</w><w>'s</w> been no unequal treatment.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Well, I think... I think, Your Honor, <w>that</w><w>'s</w> why the first part, the "free from" language and the fact that <w>it</w><w>'s</w> an adverbial phrase modifying the verb, and that that language is talking... signals that we're talking about process. Once you know that we've got this... we've got this modifier <w>that</w><w>'s</w> a process modifier, <w>that</w><w>'s</w> talking about the process, I think that then sheds light on what we mean by discrimination.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Well, what... what about the subject, "actions"?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And <w>that</w><w>'s</w> a term <w>that</w><w>'s</w> used in Nassar, a term that used in Gross, the word "action," and the action is usually referred to as an adverse employment action, namely as Justice Kagan says, the decision. And your brief uses the word "process" over and over, and the CS... civil service laws that Justice Gorsuch referenced do say that the process has to be free of any... you have to be treated fair and equitably throughout the... the process but this <w>does</w><w>n't</w> say that. It says "action." So how do we deal with the word "action"?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Well, I think you need to read it again in... in the context of the whole sentence. And it... and it <w>does</w><w>n't</w> say actions shall be... <w>can</w><w>'t</w> be based on age. It says, "actions shall be made free from any discrimination based on age." And so that... that phrase, we agree with the Solicitor General. I think they say this... I think they say this on... in their... in their own brief. They... they... they say that the... the... the work <w>that</w><w>'s</w> done by the phrase "personnel action" is simply to explain the range of employment-related actions <w>that</w><w>'s</w>... <w>that</w><w>'s</w> covered by the statute generally. It <w>does</w><w>n't</w> bear on the but-for causation question.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> I <w>do</w><w>n't</w> know... I'm... I'm sorry.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I'm sorry. Just to... to answer the question about action, I think the key point here is, if you look at... if you look at this page 5 of our blue brief, it... what strikes me is the phrase that the Solicitor General relies on, "based on age," <w>that</w><w>'s</w> what <w>they</w><w>'re</w> getting... where <w>they</w><w>'re</w> getting their but-for causation textual argument. It's all the way down at the bottom of the... at the end of that paragraph. And if you look at it, it modifies the word "discrimination," which is immediately to the left. But what the Solicitor General is asking you to do is take that based on age... age phrase, walk up 17 lines of text, turn left and have it modify "personnel actions." That's just not how the... the statute reads. And I think what... what this Court has always done and... and needs to do is look very carefully at the wording of the statute. This is the same point that Judges Tatel and Sentelle made in the DC Circuit that this statute...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Judge Henderson disagreed.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Judge... you know, Judge Henderson concurred, Your Honor, so she agreed with the remand. She... she expressed some doubts about maybe the... the... the clarity or the... the force of the particular arguments that Judges Tatel and Sentelle made. But the bottom line here is I think grammatically <w>there</w><w>'s</w> no question that "based on age" modifies "discrimination."</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> But what happens if age plays no role whatsoever in the actual decision but at some prior point in the process, age was considered. I <w>do</w><w>n't</w> know that anything... I <w>do</w><w>n't</w> think your argument depends on whether we look just at the final decision or we look at the whole process. But what would happen in that situation?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think it would... it would depend. So maybe I'd have to understand the hypothetical a little bit more. I think if... if... if someone could look at the entire... at the... the decisionmaking process and say that age was not a factor at all, then I think we would not... a... a... a... a plaintiff would not prevail. But if age played a significant role at the beginning of the process in some way, then I think it... it would not be made free from discrimination under the plain language of the statute.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, but if... if the statute prohibits any discrimination, I <w>do</w><w>n't</w> know where you get your qualification that it has to be a significant factor. It <w>does</w><w>n't</w> to have affect the final action. So what type of discrimination, any type... <w>let</w><w>'s</w> say in the course of the, you know, weeks' long process, you know, one comment about age, you know, the hiring person is younger, says, you know, "OK Boomer," you know...</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> ... once to the... to the applicant. Now, <w>you</w><w>'re</w> only concerned about process. You're not concerned about but-for causation. It <w>does</w><w>n't</w> have to have played a role in the actual decision. So is that actionable?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I... I think we would say that it does have to play a role in the decisionmaking process that... that leads to the decision. And I think in that particular case, if... if it really had no role, if it was just sort of, you know, a... a stray comment in the air, I think that on the facts of that, I think a... a court could conclude...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> So how do you... how do you tell what's a significant factor in the decision?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> We're not saying it has to be a...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> No.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> We're not using the term...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Some factor.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> ... "significant." We're saying that... ultimately, we're saying what the statute says, which is that the... that it needs to be made free from discrimination. We think that applies to the process as a whole.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, you say free from any discrimination...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Even better.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> ... it <w>does</w><w>n't</w> have to result in the final decision. I'm just trying to see how many stray comments do you need and who has to make them before you decide that, although it says "any," we <w>do</w><w>n't</w> really mean any. We mean some discrimination that has a particular effect, even if <w>it</w><w>'s</w> not but-for. I'm just wondering if...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Yeah.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> ... your position is going to become a... a... a... really just a regulation of speech in the workplace.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Oh, of course not, Your Honor.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, of course... well, then explain how not.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Well, if... if... if the speech in the workplace is, you know, using ethnic slurs or... or, you know, calling people "Boomer" or saying unflattering things about them in age when considering them for a position, then, yes, of course.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> So calling somebody a "Boomer" and considering them for a position would be actionable?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think if... if... if... if the decisionmakers are sitting around the table and they say, we've got Candidate A <w>who</w><w>'s</w> and we've got Candidate B <w>who</w><w>'s</w> 55 and is a boomer and is probably tired and... and, you know, <w>does</w><w>n't</w> know... have a lot of computer skills, I think that absolutely would be actionable.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, what if he just calls him a "Boomer." I mean that... I'm just trying to...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think that... I... I... it... it seems to me like that would be a classic question for the fact finder. But if the fact finder were to conclude that that statement reflected, was one of the factors going into this decision, I think it absolutely would be covered.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But the key...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think it absolutely would be covered.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Is... is... when you answered that question, I had thought you would say, and you <w>did</w><w>n't</w>, and... and so this is why I have a question. There is another statute, Title VII, and what it says is when the discrimination is a motivating factor, but even though other factors also motivated that practice.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Now... now, I thought you were going to pick up the same standard.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> We... we think that our standard is essentially the same standard. We just...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Right.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> We just <w>have</w><w>n't</w>...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> So we could say in the opinion what this means, to be free, is the same thing that Congress said when it amended Title VII, that it <w>is</w><w>n't</w> enough to show... if you just show... you <w>do</w><w>n't</w> have to show, plaintiff, that it is but-for, but you do have to show it was a motivating factor even though there may have been other "motivating factors."</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And, therefore, there is no more administrative problem in this than there is anyway under Title VII. Now, <w>that</w><w>'s</w> what I'd thought you'd... but you <w>did</w><w>n't</w> say that. So now I <w>do</w><w>n't</w>...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Let me... let me just...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> You disagree with me because you...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> No, no, no.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... think it...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> ... let me explain. The...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yeah, go ahead.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> The reason we had... we <w>did</w><w>n't</w> do that is because, I think as everyone would agree, by its terms, that provision does not directly apply to this statute.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, I know it <w>does</w><w>n't</w>.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I'm just explaining...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yeah.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> ... why I <w>did</w><w>n't</w> say it. But I think the substance of the point is exactly right. I think that... that... that this would not create administrability problems. You would actually be clarifying the law and creating a...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Well, wait a second...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, another reason... another reason you may not have said it is because it comes with another flip side, right? It was a motivating factor, but then the defendant gets to show it <w>was</w><w>n't</w>... the decision would have been made without regard to it.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Yeah, but, Your Honor, that would... that happens at the remedial stage, at the relief stage. And <w>that</w><w>'s</w> exactly our point, is that, at the relief stage, the defendant does get to show...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But in those statutes, in that statute, it happens at the liability stage, and I read your briefs...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> No... no, Your Honor...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And I... I read your briefs... yeah, in the statute, I understand... I read your briefs to reject the motivating factor or not adopt the motivating factor standard.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> No. Let... let me be clear because this is... this is an important point.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> The Price Waterhouse-type standard that Justice Breyer brought up.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think Justice Breyer was talking about what Congress did to fix the problem of Price Waterhouse. So Price Waterhouse happens. Congress decides that the Price Waterhouse test is insufficiently protective of victims. So Congress makes very clear in the statute that there is a violation of the statute, there is liability with motivating factor, but if the employer can show that... that it <w>was</w><w>n't</w> a but-for cause, that shrinks the number of remedies that are available to you. And <w>that</w><w>'s</w> essentially... we're not saying that... we're not trying to, like, apply different statutory language here, but we're saying that our rule, the statutory language that we have, essentially has that same test...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But <w>you</w><w>'re</w> not asking...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> ... test...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Sorry to interrupt.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> You're not asking for "motivating factor;" <w>you</w><w>'re</w> saying "any factor."</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right, but I think the way that...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Is that correct?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> We... we... we... we <w>do</w><w>n't</w> think it makes a difference, frankly, Your Honor. We...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And so, yes, <w>you</w><w>'re</w> asking for any factor?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> We think "any factor" and "motivating factor" essentially mean the same thing because they play... the... the factor plays into the decision. And so in that sense, <w>it</w><w>'s</w> motivating.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Counsel, I wanted to give you an opportunity to respond to another argument that concerned me.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Sure.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> The Solicitor General suggests that if we were to adopt your view, we'd have to do the same thing with respect to private discrimination under, what is it, the 623...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... which, of course, we <w>can</w><w>'t</w> do because of Gross, and point specifically to the language saying, you know, you <w>can</w><w>'t</w> discriminate in hiring or otherwise, right, discriminate...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... with respect to terms and conditions of... of... of employment. And if we were to adopt your broad reading here of "discriminate," why <w>would</w><w>n't</w> we do the same thing there?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> So I think Gross is totally different, and just a couple points on this because <w>it</w><w>'s</w> very important. Number one, Congress looked at that exact language when it was legislating the statute <w>that</w><w>'s</w> at issue in this case. Congress rejected applying the private sector language from the ADEA to ADEA federal sector claims. We know that from the drafting history. We know that from...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> I... I understand that...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> So... so...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... but <w>that</w><w>'s</w> not responsive. So...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right. So, instead, it chose different language which is fundamentally different from the language in Gross. I'm going to get to the discriminate point.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> I wish you would.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Okay. I'll... I'll... I'll go to the discriminate point. If you look at the language in Gross, and we've reproduced it in the addendum to our reply brief, what it has is it talks about four different specific types of adverse actions: Failing to hire, refusing to... failing to hire, refusing to hire, discharging any individual; and then, the fourth one, otherwise discriminate with respect to terms...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Conditions.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> ... compensation, conditions.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Yeah. Yeah.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> The first three of those things are all outcome-based. The first three items in the list. The fourth item in the list is an "otherwise" clause, an "otherwise" sort of catch-all clause.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Why <w>would</w><w>n't</w> that be process too, is the Solicitor General's question?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Well... well, the first three things are all... the first three in that list are all outcome-based. And so what this Court has said when looking at very similar "otherwise" catch-all clauses, <w>it</w><w>'s</w> applied the ejusdem generis canon and said that when you have things in a list like that, the last item with the "otherwise"...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So... so the word "discriminate" here means something different than the word "discriminate" there.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think the word "discriminate" here needs to be read in the context of the broader phrase. The other contextual difference is that our statute, unlike the statute in Gross, has the most important textual indicator that comes... makes this case come out our way, which is the "shall be made free from" language.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> No, I understand that. But the "otherwise discriminate," what... <w>you</w><w>'ve</w> got the ejusdem generis canon. Excellent canon, good canon. The other... the other kind of general rule is when Congress makes a distinction, we should attend to the... in language, we should attend to it. And... and...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> We <w>could</w><w>n't</w> agree... we <w>could</w><w>n't</w> agree more.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> And I understand... I know where <w>you</w><w>'re</w> going with that, and <w>that</w><w>'s</w> good, <w>that</w><w>'s</w> a good point...</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... but "or otherwise discriminate"...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Yeah.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... is... is very... I mean, that... that seems to be a catch-all. That seems to be anything.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think I would resist that one because of ejusdem generis. The second point, textually...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> You think you would have resisted that before Gross?</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I... you know, Your Honor, we're not here to relitigate Gross.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> No.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I... I think this... Gross was a very closely decided decision. You know, it was... it was a very closely divided Court on Gross. We're not here to... we're... we're here to make the point that what Gross said was that you need to look at the statutory language with careful attention... careful and critical examination. And this is... this is a quote from Gross, you <w>can</w><w>'t</w> apply rules applicable under one statute to a different statute without really looking carefully...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But the...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> ... and here the "otherwise discriminate" clause is limited by "with respect to terms, conditions," et cetera.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> That's not...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> So <w>it</w><w>'s</w> very narrow.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... limiting; <w>that</w><w>'s</w> broadening language. That's... <w>that</w><w>'s</w> supposed to be a catch-all phrase at the end that will cover anything. "Otherwise discriminate against anything dealing with compensation terms or conditions." The word "conditions," in particular, in the lower courts has been interpreted very broadly to cover all sorts of...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Right.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... aspects, whereas here you just have "actions," so if <w>you</w><w>'re</w> comparing the two statutes, to pick up on Justice Gorsuch's point, I would have thought a broader scope, if anything, was in that language...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... in terms of...</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> I think the word "discrimination" sometimes can take on different meanings depending on the context. The most important textual... the textual clue is the absence of the key phrase "shall be made free from discrimination." The most important historical clue is that, unlike the statute in Gross, this statute arises in a context in which Congress wanted to address the constitutional rule, wanted to plug the gap in remedies, and... and make sure that... that victims of unconstitutional discrimination had a viable remedy.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. General Francisco.</u>
</p>
<p id="ORAL ARGUMENT OF GEN. NOEL J. FRANCISCO ON BEHALF OF THE RESPONDENT">
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Mr. Chief Justice, and may it please the Court: The federal sector ADEA adopts the same causation standard applicable to state and local governments and private companies, but-for causation. Three basic points make this clear. First, Section 633... 633a prohibits the Federal Government from making a personnel action based on age. But you <w>do</w><w>n't</w> make a personnel action based on age if you make the same decision that you would have made for a similarly situated younger person since any consideration of age has not affected the decision that you have made. At the very least, as in Gross and Nassar, nothing in 633a clearly overrides the common law default rule of but-for causation. Second, Congress easily could have overridden the common law default rule if it wanted to. It could have applied the motivating factor standard to the ADEA, or it could have gone further and prohibited any consideration of age no matter how fleeting. But it <w>did</w><w>n't</w> do that. Instead, it adopted language that this Court has interpreted as incorporating the common law default rule. Finally, our rule makes perfect sense. There's no reason why Congress would have created a lower causation standard for the Federal Government than for state and local governments. After all, <w>there</w><w>'s</w> no evidence that Congress was more concerned about discrimination by the Federal Government. That's why Senator Bentsen, Section 633a's principal sponsor, said that under 633a, "government employees will be subject to the same protections against arbitrary employment based on age as are employees in the private sector." Now, we've had some discussion about the Civil Service Reform Act, and I actually think <w>it</w><w>'s</w> very instructive here to the interpretive question. I'd like to point out two specific provisions in that, I think, that are relevant. The first one actually <w>is</w><w>n't</w> in our briefs, so I'm going to take a minute here to describe it because <w>it</w><w>'s</w> a provision of the CSRA that specifically cross-references, incorporates, and describes Section 633a in the text of the statute. And what <w>you</w><w>'ll</w> see in that provision is that it uses language to describe 633a that is parallel to the language that you find in the private sector provisions. So I think it underscores that these are just different ways of seeing the same thing. And I'm referring to 5 U.S.C. 2302(b)(1)(B), and here's what it says: "Any employee who has authority to take, direct others to take, recommend or approve any personnel action, shall not, with respect to such authority, discriminate for or against any employee or applicant for employment on the basis of age, as prohibited under 633a." So it <w>does</w><w>n't</w> have any of the language that my friends on the other side rely on. Textually, this is a statute that Congress has enacted that in its text is describing 633a and it uses language <w>that</w><w>'s</w> parallel to the private sector provisions. And I think <w>it</w><w>'s</w> highly relevant to interpreting 633a because as Justice Scalia explained is in... in his opinion in Branch against Smith, it is "of course the most rudimentary rule of statutory construction, that courts do not interpret statutes in isolation but in the context of the corpus juris of which they are a part, including later enacted statutes."</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> So... so... so if an employer has an explicit younger-is-better policy, Mr. Martinez says your position would allow that to stand for an... an employee could not get injunctive relief against that. What's... what's your answer to that?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> So a couple responses, Your Honor. First, that employee would be treated exactly the same as if he or she worked for a state or local government or a private employer. No different than anyone else covered by Title VII. Secondly, that actually goes to the other provision of the Civil Service Reform Act that I was going to refer the Court to, which is cited in our brief, and <w>that</w><w>'s</w> 5 U.S.C. 2301(b)(2) which says that: "All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to age." It underscores that 633a...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> So just to be clear, would that policy be a violation of that civil service provision?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> If... yeah, I think it clearly would be a... a violation of the civil service provision.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And would there be any impediments to suing under that civil service provision?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Your Honor, there is a very comprehensive scheme for bringing these types of complaints in the Federal Government. I am quite confident that there is an avenue in which you could challenge a... oh, a younger-is-better policy were a federal governmental agency...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So for a...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... should adopt such a policy.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... a statute that intended to reflect the equal protection clause of the Constitution, which would have covered this on its own prior to the enactment of the statute, <w>you</w><w>'re</w> now saying Congress intended instead to give litigants less Constitutional protection, less protection, not more, or equal.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> No... no, Your Honor, not...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And second, you intend on the... like private sector discrimination or unlike private sector discrimination under be Title VII, Congress intended to give federal employees when it used the phrase "free from any discrimination," it decided to say this kind of discrimination's okay under this provision.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> So, Your Honor, I think I disagree with that for a couple of reasons. First, I think I disagree with the premise. If Congress had in fact intended to apply equal protection principles, it presumably would have applied the same standard to state governments since <w>they</w><w>'re</w> subject to the same equal protection principles that the Federal Government is. There's no evidence that Congress was more concerned about the Federal Government than the state governments. Quite to the contrary.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Unfortunately...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> And here everyone agrees the states are subject to the same...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> General, unfortunately <w>you</w><w>'re</w> wrong because the EEOC and the civil service agency have been reading that equal procession principle even before this provision into federal decisionmaking. So I think...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> And I...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I'm not sure how I understand your point.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Well, I think that...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I <w>do</w><w>n't</w> think they were... if they wanted to follow the state and local provision they would have followed it.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Right. I think that...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But they created a different and totally separate provision, and on top of it they said: That language and our... that language of the private and state government should not be used to interpret this language that affects the Federal Government.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Well, Your Honor, I think the reason why my answer is fully responsive is because the suggestion by my friend on the other side is that somehow when Congress extended Title VII and the ADEA to governmental entities... and remember, they did it at the same time. They went from private to private and federal and state governments at the same time. And when Congress made that step, the argument is that somehow it was meant to embody equal-protection principles. Well, if that were the case, one would have fully expected that they would apply the same equal-protection principles to both the Federal Government and the state governments but everyone here agrees that with respect to state governments, <w>it</w><w>'s</w> the but-for causation standard that applies.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Isn't there a... there is a federalism concern, when <w>you</w><w>'re</w> dealing with state and local governments, which you <w>do</w><w>n't</w> have when <w>you</w><w>'re</w> dealing with the Federal Government alone, and why <w>would</w><w>n't</w>... the language as Mr. Martinez pointed out is different. You're treating all those extra words as just a meaningless surplus. If they wanted to... to... to... be the same standard as for private sector employment, state and local government employment, they would have used the same language, but they <w>did</w><w>n't</w>. They said all...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Right.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> ... and they said, what were the words?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> "Free from any."</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> "Free from any," yes. So if Congress uses those different... different, more encompassing language, all free from any, I would think that the standard <w>that</w><w>'s</w> before us, applicable to federal employment, is a more plaintiff-friendly standard.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> So, Your Honor, two responses on the textual issue, but I'd also like to address the federal... federalism issue as well. On the textual question, the first is I'd simply point back to that provision of the Civil Service Reform Act that I was referring to 23 earlier, 2302(b)...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well, call me...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... (1)(B).</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... old fashioned, General, but it seems to me that the first and clearly the most important place to go in thinking about what 633 means, is to go to 633...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Right.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... and not to go to some later enacted statute in a completely different set of provisions. So I think, you know, Justice Ginsburg's question holds. It would have been perfectly easy for Congress to have written the same kind of statute that it wrote in Gross or in Nassar. Indeed they <w>did</w><w>n't</w> even have to write a statute. They could have just put the U.S. Government in with the state and locals in the private sector provision. And they did none of that. They... they enacted a very different kind of statute which puts the... the language that your brief primarily relies on, which is based on or because of, in a completely different place in the statute modifying a completely different noun. So why would they have done that if they just meant to write a Gross/Nassar statute?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Yeah, I... I'd like to straight on address the textual argument first and then the why question second. The textual argument first is suppose you had a statute that said: All cakes shall be made free from the use of any eggs. In the course of the cake baking process, I whisk up a bowl of eggs, I think about dumping it into the batter, but then I say, oh, I'm beat... supposed to me making a... a cake without eggs, so I throw it in the trash. I have made a cake free from the use of any eggs, notwithstanding my use of eggs in the cake baking process because the final cake that I have baked is free from the use of eggs.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, that... I... I mean, that gets to the point I... I asked Mr. Martinez about. But what if there is a little bit of egg <w>that</w><w>'s</w> put in the final batter? That's the problem. So even if we focus right on... just on the actual decisionmaking process, the moment of the decisionmaking process, I <w>do</w><w>n't</w> know about the why, and I'm not sure I care about the why here, but I have a terrible time fitting your argument into the statutory language. Can you explain how you can do that?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Sure.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> If... if... if age is considered, is a factor in the... in making the decision, <w>there</w><w>'s</w> discrimination based on age and the... the... the action is not done free from discrimination based on age.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> For... for two reasons, Your Honor. First, I'm focusing on the word "made" and "made" refers to the point at which the action is taken. Was the personnel action that you ultimately took made without discrimination based on age. And it is if <w>it</w><w>'s</w> exactly the same as you would have made without any consideration of age. But I'm... my second point I think is just as important and it refers to a very important canon of construction, that statutory text does not override common law rules unless it does so explicitly. And I think what my cake baking hypothetical does is that it shows that at the very least <w>there</w><w>'s</w> nothing in this text that explicitly overrides the common law default rule.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Why...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> And if <w>that</w><w>'s</w> the case, <w>you</w><w>'re</w> governed...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Why... keep going.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... <w>you</w><w>'re</w> governed by the common default rule.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> The why question is still hanging, which is why...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Yes.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... would Congress use this different language which is significantly different from the other languages...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Sure. And I think one answer is... and, look, I've scoured the legislative history and I <w>have</w><w>n't</w> found anything that specifically addresses it one way or the other. But I think the most obvious reason is that there is a long and preexisting separate federal process governing federal employment. And the reason they <w>did</w><w>n't</w> just amend "employer" to include the Federal Government is because they wanted to... to preserve that preexisting separate federal process that applies to federal employees but <w>does</w><w>n't</w> apply to private employees...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I... I...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... for state and local governments.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I can... I better read that one, which I will. Look, I'm trying to think of where could this come up. A promotion, the promoting person thinks I see her result on this test. It's highly subjective. I'm not sure, but I certainly <w>do</w><w>n't</w> want people who are over the age of 82, et cetera.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> You say okay. So...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Nobody here...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... There he is.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... thinks that, Your Honor.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> It's flashing around in his mind. And... and so he ends up... yeah, no, the answer is no. Okay? That's the possible real-world situation. But, more likely, <w>it</w><w>'s</w> also a question of lawyers and burdens of proof. And... and under the Title VII, you know, what they ended up saying is, hey, lawyer, you show discrimination is really around here, and you will win unless they come in and show no but-for, no but-for, in which case you still win something. All right. Now, the language here seems designed to do just that, to deal with that real-world situation where we <w>do</w><w>n't</w> understand, as a lawyer, what that real-world situation... because <w>it</w><w>'s</w> in his head, you know, and... and just prove that. And now I'll tell you what happens.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Right.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> He can come back and say, no, not a but-for. And then you limit the remedies. What word does that? There is a statutory word that does that. It's in 33 (a). It's called appropriate remedies. And so if it really is a but-for, as shown by the lawyer, Ah hey, <w>they</w><w>'re</w> not going to reinstate, <w>they</w><w>'re</w> not going to give her the promotion because, by the way, she comes in very late. Okay? So now we've got the language. That's what <w>they</w><w>'re</w> arguing. And you say why would Congress do that? Why would it make the Feds have to do this? For the same reason they passed that statute. The feds should be the leader in this. It's not enough. The Federal Government should be the leader. So we have states, private, not just federalism, but who fought more than any group of people for freedom from discrimination? Look at history. It was the Federal Government, and they should be holier than, okay?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Right.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> So we have a reason. We have an interpretation of the statute. Now, that in my mind is what <w>you</w><w>'re</w> up against.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> And... and I fully understand that, Your Honor, and I think it actually illustrates what I think is one of the more troubling parts of the argument of my friends on the other side, because their argument really boils down to the notion that, in 1974, Congress somehow predicted the 1991 civil rights amendments, not just the motivating factor standard or potentially something significantly broader, any consideration, but the limitation on remedies and the burden shifting. And it did all of that 20 years earlier when it used the "free from any" language. With all respect I find that simply implausible, given that it took us Price Waterhouse, Congress's reaction to that, and a whole bunch of other decisions in order to come up with the motivating factor test. So I think, Your Honor, what you laid out makes perfectly sensible policy. I <w>do</w><w>n't</w> think it makes any sense in interpreting...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I think, General, that overstates what a complicated concept this is. I mean, there are two kinds of concepts you can use. There are: Did this thing actually cause the firing or the lack of promotion? Or was this thing around when they made that decision? And, you know, those are the two basic choices, and some statutes make one choice and some statutes make another choice. So <w>it</w><w>'s</w> not a whole lot to predict or anticipate.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Right.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> It's just those are your two choices, and you look to the language of the statute to decide which kind of statute we're talking about.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Yeah, and I guess I'd add to the mix a third choice, which is the "motivating factor" test. I can sort of see how, textually, you could get to the "any consideration" test. I disagree with it, but I can understand how you can get there textually. I think <w>there</w><w>'s</w> no way that you can get from this text to the "motivating factor" text. And under the "any consideration" test...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No way. No way. Linguistically...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> And... and if Your Honor...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... the personnel action, the personnel action shall be made "free from" something, "free from" something. Hey, from what? From discrimination based on age. So "free from" means that that bad thing had to play a role, and that role could either be a motivating factor role in which there were a lot of things in that decisionmaker's head, and... or it could be you have to show but-for. See? So which is it?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Well...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> It says "free from."</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> So, obviously, my answer is but-for, but the point that I was trying to make was that under the "any consideration" test, which is my friend's test and focuses solely on process, suppose <w>you</w><w>'ve</w> got some low-level hiring official that says to his boss: I <w>do</w><w>n't</w> think we should hire this person for 10 reasons, one of which is I just think this person is too old. The boss then says: You knucklehead, we never consider age. By the way, <w>you</w><w>'re</w> fired for making such a rookie error. Takes over the file, reviews it, says, well, he was actually right on the bottom line; this person <w>is</w><w>n't</w> qualified, so we <w>do</w><w>n't</w> hire them. Age has clearly played a role in the process for making that decision. And under their...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well... -</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... standard...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... in the process, but not in the actual decision. So if you focus just on the decision... this comes back to your egg hypothetical. If <w>there</w><w>'s</w> a little bit of egg in the actual decision, <w>that</w><w>'s</w> one thing. But in you threw out the egg before you ever got to that point...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Right.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... then <w>that</w><w>'s</w> a different situation.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> What I would say is if <w>there</w><w>'s</w> a little bit of egg in it, then it would be a but-for cause but maybe not the sole but-for cause. But if there is... if you make the exact same cake you would have made, that is the cake that you would have made if you <w>had</w><w>n't</w> whisked up the eggs and held it in the first place, you have made a cake free from the use of eggs even though <w>it</w><w>'s</w> been part of the process; <w>it</w><w>'s</w> not found its way into the final cake.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Can I... can I ask about the practicalities of this case and how <w>it</w><w>'s</w> going to apply...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Sure.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... in the real world? Because I'm not sure <w>there</w><w>'s</w> really much difference. They agree that you <w>can</w><w>'t</w>... that an employee <w>can</w><w>'t</w> get reinstatement or back pay without showing but-for cause. So you obviously agree with that as well.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Yes.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> They would say you can get injunctive relief, however, against practices, policies, things, statements, conditions, even if they <w>were</w><w>n't</w> a but-for cause of a particular action. You, too, agree with that, albeit under the civil surface... civil service statutes.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Yeah.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Right?</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Basically, yeah.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> So <w>there</w><w>'s</w> no disagreement, as I understand it, between the two parties about how this is really going to work in the real world going forward. The only disagreement is about which statute is cited when injunctive relief is sought.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Well, I think there are a couple of big differences. One, it is done administratively. One, <w>it</w><w>'s</w> being done by hauled into court. And I think <w>that</w><w>'s</w> a pretty big difference. Secondly, in the hypothetical that <w>you</w><w>'re</w> spinning out, <w>you</w><w>'re</w> essentially entitled to judicial relief in the absence of an adverse personnel action that was actually caused by...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Would...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... the thing that <w>you</w><w>'re</w> complaining about. So...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But you would say, under the civil service statutes, that fair and equity provision that we've gone over...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Yeah.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... for the same kinds of employment condition issues, you could get injunctive relief, which is exactly what Mr. Martinez is seeking here...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Um-hum.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... albeit under a different statute. And maybe <w>you</w><w>'re</w> right, <w>there</w><w>'s</w> some...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Yeah. That's a...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... different hurdles you have to go through, but in terms of employees, the real world of employees and the real world... world of employers, I think <w>there</w><w>'s</w> a lot of agreement between the two.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> I think <w>that</w><w>'s</w> basically right because the things that he is concerned about, the types of policies that he's concerned about, <w>could</w><w>n't</w> happen within the Federal Government because of a whole host of laws, wholly apart from Section 633a. But I think that the critical issue is whether... does... does 633a provide yet an additional avenue where the Federal Government can be hauled into court for a judicial remedy?</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> An additional avenue...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> And <w>that</w><w>'s</w> the point where we disagree.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Sorry to interrupt, but an additional avenue that would get you nothing more, though.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Exactly, an additional avenue...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Yeah.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... that would get you nothing more for the plaintiff, but that does create a significant headache for the Federal Government...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Mr. General, the problem is, even though there was no anticipating Price Waterhouse and the 1991 litigation, it would also be much more consistent with the statute as the whole, because public sector, state, and Federal Government employees are ending up essentially with the same remedy for all the reasons that Justice Breyer said, which is even though we <w>can</w><w>'t</w> read motivating factor, <w>it</w><w>'s</w> really the same as a part of the decisionmaking, and private sector and state government claimants under Title VII are entitled to injunctive relief, et cetera, if they prove it was a motivating factor.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Not under the ADEA, Your Honor. The Court held in Nassar...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And I do... and I do...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> ... that...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But under Title VII, yes...</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Well, Your Honor, under Title VII and... and I'd like to clarify this because our position on Title VII is a little bit more nuanced than that. Under the Title VII federal sector sex discrimination or race discrimination provisions, as distinct from the Title VII federal sector retaliation provision, which we sought cert on and this Court denied cert on. If you look at the federal sector sex, race provision, arguably that does incorporate the motivating factor standard because there is a provision in the federal sector Title VII that specifically cross-references portions of the '91 civil rights amendments that apply the "motivating factor" test. And if <w>that</w><w>'s</w> right, Your Honor, this Court has never addressed it. We <w>have</w><w>n't</w>... we did not contest that below. But if <w>that</w><w>'s</w> right, then everybody that... under Title VII gets treated by the same motivating factor standard under Title VII. So that takes... would take care of all of the race and sex hypotheticals that my friend is troubled by. But critically, 633a <w>does</w><w>n't</w> cross-reference any portion of the 1991 civil rights amendments at all. So I think that further confirms that the text of 633a is not meant to adopt the "motivating factor" standard but is something different. And the different things is, is the common law default rule, unless <w>there</w><w>'s</w> something in the statutory text that clearly abrogates the common law default rule. I'm not going to say that they <w>do</w><w>n't</w> have any textual argument. I think they have a... a decent textual argument. The question is: Do they have a textual argument that is sufficiently strong to override the common law default rule of but-for causation? And the reason why I lean heavily on my cake baking eggs hypothetical is because I think that at the very least shows that this statutory language is easily susceptible to my interpretation. And once I've met that standard, <w>it</w><w>'s</w> governed by the common law default rule of but-for causation. Now, I think that my friend may get up on rebuttal and point to Chevron and so I would like to take one moment to address the Chevron issue in... in advance. I think Chevron would be completely inapplicable here for three different reasons: The first is, before you ever get to Chevron, you apply the canons of construction. And here the canon of construction is that you interpret language to be governed by the common law default rule if there is any ambiguity. So if there were ambiguity, we win under the default rule, not Chevron. Let's say you completely disagree with that. Chevron <w>does</w><w>n't</w> apply for two additional reasons. First, as this Court held in Epic Systems, Chevron <w>does</w><w>n't</w> apply where two Executive Branch agencies disagree on the meaning of a statute, since <w>it</w><w>'s</w> inconsistent with Chevron's political accountability rationale. And here we have such a... a disagreement. Secondly, as the Court held in the Ledbetter decision, Chevron <w>does</w><w>n't</w> apply where the Executive... where the agency is simply interpreting this Court's decisions, since this Court is the expert at interpreting its decisions. And if you look at the EEOC adjudications in this area, the analysis tends to be quite short, <w>it</w><w>'s</w> usually about a paragraph, and all <w>it</w><w>'s</w> doing is interpreting this Court's decisions. So I think we win under the text, regardless of Chevron, but even if you think that Chevron in theory might apply here, there are two additional reasons it <w>could</w><w>n't</w> apply in this particular case.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Mr.... Mr. Martinez is making a distinction that... between liability and remedy. And he said, the bottom line, you <w>do</w><w>n't</w> get the job if somebody else was better qualified. Nonetheless, you do get some kind of remedy so that the workplace will be free from all discrimination, any discrimination. So one possibility is injunctive relief. We will not take age into account. And there are other possibilities. So... but you seem to think everything is driven by the end result that you are not entitled to the job if, even though the age was taken into account, the person who got the job was better qualified.</u>
<u loc="GENERAL FRANCISCO"><w>[GENERAL FRANCISCO]</w> Your Honor, I think <w>you</w><w>'re</w> fairly characterizing my position and I'd say a couple of things on remedy. If you disagree with me on liability, I agree with them on remedy, but I also think that his position on remedy is unnecessary for the reasons of... of my exchange with Justice Kavanaugh. You can... you... you essentially already have a civil... civil service system that provides the type of relief that my friend on the other side would seek since there are a host of civil service regulations that would prohibit the types of policies that he's concerned about, even if there <w>was</w><w>n't</w> somebody... a particular person in court that was challenging it under Section 633a. But our bottom line position here is that Congress added the federal and state sector extension of 633 in the Title VII at the same time. It meant to apply the same standard to the Federal Government that applies to state and local governments and it applies to private employers. That standard is but-for causation. It results in treating all employees under the ADEA the same regardless of who you work for, since everybody agrees if you work for a private company or a state and local government, the standard is but-for causation and, respectfully, <w>that</w><w>'s</w> the thing... the standard that we think should apply to the Federal Government as well. Unless the Court has further questions, Your Honor.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, Counsel. Five minutes, Mr. Martinez.</u>
</p>
<p id="REBUTTAL ARGUMENT OF ROMAN MARTINEZ ON BEHALF OF THE PETITIONER">
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> Just a few points, Your Honor. Let me start with the text. I think <w>it</w><w>'s</w> very notable that when the Solicitor General stood up here, he began in one of the first sentence... few sentences of his presentation by misquoting the text. He said this statute covers "personnel actions based on age." He made exactly the mistake that we pointed out... I pointed out in my initial presentation. That's not what the statute says. It requires careful attention. It says, "shall be made free from any discrimination based on age." The Solicitor General as to the text says that Congress intended to apply the exact same rules that... that are applied to private sector employees as under the statute interpreted in Gross. Well, with respect, whatever we know about the text is that Congress did not intend to apply that regime. Congress specifically considered that regime. It was... it was going to do what the Solicitor General wanted in the first draft of the statute. Congress then amended that draft and passed a different statute. You just <w>can</w><w>'t</w>... you <w>can</w><w>'t</w> just apply a different statute that Congress expressly rejected. Secondly, Your Honor, with respect to the constitutional rule, I think if you look at the legislative history of... of this provision and if you look at the Brown versus GSA decision that we talk about in our brief, <w>it</w><w>'s</w> very clear that Congress, when it enacted Title VII, which... which uses the same causation language to apply to the federal sector, it was focused on the equal protection problem in the federal sector context. They cite Bolling versus Sharpe. Both the legislative history and this Court's decision in Brown and makes clear... both of them make clear that the purpose of this statute was to... was to capture the same kind of constitutional equal protection injuries that were at stake in the long line of cases that we've cited in our brief. Now, the Solicitor General says <w>there</w><w>'s</w> no reason states should be treated any differently. Well, again, one thing we know from the text of the statute and from the legislative history is that Congress expressly decided to treat states differently. They treated states by... by amending the employer definition. They treated states like private sector actors. They did something something totally different by creating a unique federal sector provision to govern the Federal Government. You <w>can</w><w>'t</w> just pull that language that applies to states and say it must apply to the Federal Government. And Justice Breyer, <w>you</w><w>'re</w> absolutely right, the legislative history shows that Congress thought of the Federal Government's being especially important in this context. The Solicitor General... this is my third point... talks about the common law injury rule. We are... our rule is fully consistent with the common law rule. If you look at the... the Restatement, the common law third Restatement, Section 26, what it says in comment D is that the first thing you need to do when <w>you</w><w>'re</w> addressing the common law rule of causation is figure out what the injury is. What we've argued is that the injury at stake in this case is the same kind of process-based equal protection type injury that this Court has repeatedly identified in cases from Bakke up through Parents Involved. Once you get the injury right, we are completely consistent with the common law rule. Finally, Your Honor, younger is better. I think <w>it</w><w>'s</w> striking that the Solicitor General doubled down on his position that a younger-is-better policy does not violate this statute. His deus ex machina here is Section 2301 of the CSRA. That's a cruel joke that will be played on... on this Court if you accept that rationale. Section 2301 is unenforceable. Unenforceable. I think the Solicitor General said, Justice Kavanaugh, in response to your question, that it would give rise to a remedy of an injunction in court. That is not accurate. If you look at the MSPB website, it specifically says that... that this provision is not enforceable and <w>that</w><w>'s</w> the rule that courts across the country have applied. The Solicitor General has had months to come up with a solution to this hypothetical, and the best the Solicitor General can do is come up with a statutory provision <w>that</w><w>'s</w> unenforceable. That puts victims of discrimination in exactly the same position they were in before this statute was enacted, where they had remedies that were not enforceable. Congress stepped in here. It passed a broad statute because it wanted to protect these people. Your Honor, I leave you with the statutory text which says very clearly that all federal personnel actions shall be made free from any discrimination based on age. A decision <w>that</w><w>'s</w> made by applying a younger-is-better policy, contrary to the Solicitor General, is not made free from any discrimination based on age.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> You know, I... I assume, and I hope, that we would not see within any federal agency any sort of policy like younger is... is better. And so I'm not sure what practical benefit you are going to provide for in the typical individual age discrimination employment case if you say that the person <w>can</w><w>'t</w> get reinstatement or whatever, absent but-for causation, but there are going to be these other equitable remedies available. I <w>do</w><w>n't</w> know what kind of injunction would be available... would be of practical benefit in a case like that.</u>
<u loc="MR. MARTINEZ"><w>[MR. MARTINEZ]</w> May... if I may answer? Two quick points, Your Honor. First of all, I think... I agree with you, we would not like to see agencies doing these sorts of things. If you look at the Brenton case that we cite at pages 41 to 42 of our brief, that case involved a... a written memorandum. The policy said that someone's ability to control traffic declines with age, and they were treating applicants for those positions badly for that reason. I think... more broadly, Your Honor, I think the injunctive relief and the prospective remedies that are available are extremely important in... in the real world, which is precisely why, in the equal protection context, <w>you</w><w>'ve</w> recognized the importance of that kind of injunctive relief, and we think that relief is just as important here. We ask you reverse.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel, General. The case is submitted.</u>
</p>
</text>