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 and extending these it did your honor the seventh circuit properly followed this court's holding in wilkie and foot north and footnote four of that opinion the court concluded correctly that whether or not there was a bit in this action for recognizing that case due process way your honor there's an argument in one of the amicus briefs that the there was an alternative route under twelve fifty four in wilkie and therefore the argument is raised that it was addictive but it wasn't dicta in context your honor the court didn't consider that alternative route the court squarely held that it had jurisdiction and at the end it goes on to say in the footnote that the appellate court properly exercised jurisdiction because the question of whether there actually for this constitutional right is properly considered part of the q i you know we have an amicus brief from law professors who argue that the seventh circuit should not ha considered the question of whether there was a cause of action under section one thousand nine hundred three but they also go on to argue that we nevertheless have jurisdiction to consider that question and that it is a a matter of discretion for us to decide whether to do that is that do you agree with opposition 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 twenty t fifty four jurisdiction over if we adopt that formulation and that solution is that is if we are granting search or a before judgment on an issue in our own discretion is that the way it works but i think that  court of appeals could not because we have the authority to grant so sure before judgment or for some other reason the theory advanced in the amicus brief with which we confer is that twelve fifty four grants the court jurisdiction over the case and that would include case as we explained briefly in our reply brief the one reference the sole reference dependent jurisdiction on page seven of the petitioners appendix is merely a reference or a brief description of the failed argument advance 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 interlocutory appeal rather than given the qualified immunity of defense from litigation is not just judgement rather than waiting until final judgment and twelve ninety one appeal then addressing for the first time on appeal that seems a different argument not that the two really are intertwined with each other but it that it just might make sense to consider the one at the outset even though in fact it's a separate inquiry i think 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 four i would submit my most recent answer namely that it's part and parcel it is 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 if you are correct required district courts to reach the merits if they're if they can resolve the question room on the basis of qualified immunity alone well how can that be if the merits are necessarily part of the qualified immunity determination well your honor some of the merits we know are our part of it under the court's decision and hartmann where the court concluded that the absence of the failure properly plead an element is indeed properly considered part of a qualified immunity here the 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 bivins action in that case but logically speaking that section 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 willkie and makes clear that it's following wilkie's command that the presence or not of the section one hundred three action for recognized constitutional rights is considered part of the curse if the existence of a cause of action cannot be considered and an inter atory 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 interlock atory qualified immunity cases wouldn't it be the case that if  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 exemptions from from no your honor to decide that there isn't qualified immunity the court needs to consider both prongs and resolve them both adverse to the defendant and therefore it was essential for the court here to consider the argument that there is no section one hundred eighty three i'm not sure you see the distinction we'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 what how do we deal with the concept that other people who have motions to dismiss that are denied still undergo trials still it is experience the expense and yet we've said repeatedly and into law a tory appeal is not warranted some person would have believed his or her conduct was appropriate your honor it 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  eighty three the court was very just was justified in wilkie in treated the presence or not of the cause of action this is a fight we're not talking about an affirmative defense for example the form of the statue limitations as one example we're talking about the existence or not of the bivins right in that case in the section i see three right here it seems consistent with the fact that qualified immunity exists as a defense against section one hundred eighty three and bit and is to contemplate the existence or not of that cause of action right at the threshold maybe you better say a few words about the merits thank you you and as part of the civil rights overhaul act that year the amendments in that act extended and it's a section entitled coverage of previously example state employees it extended extended eighty eight rights and remedies to the previously exempt policy makers and other highlights the court ever held that an anti discrimination statute that does not provide any rights for a particular class of plaintiffs nevertheless extinguishes the right of employees alike are have the full range of eighty eight rights and remedies during that period under forty s this court held incline that workers under the age of forty simply were not part of the social ill that congress aimed to redress they were concerned with the plight of the relatively older workers it's why the court concluded inclined that reverse discrimination is not covered and also the explanation for why congress drew a line at age forty 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 its focus solely on a single issue facing a curricular issue facing these students undoubtedly those students not covered by it would have retained their section one hundred three rights same with under forty here now as to be the narrow exception that existed between seventy four and ninety one for high level government pollies policymakers we have the e e o c as 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 in operationally to have federal involvement in the hiring decisions made by the highest members of the elected members of state and local government and that concern applies equally to section one hundred eighty three claims because that concern applies equally we're not talking about people who work within the scope of the social ill we're talking about a deliberate carve out for reasons that apply equally to section one thousand eight hundred three we would submit that the exception likewise would have had force during brief there is no need for the court to confront that question in this case which question the question of whether or not between one thousand seven for in one thousand nine hundred one exempt employees those who've been up tainted eighty eight rights and ninety one whether g e r a and there's a separate question whether the g e r a would displace constitutional relief which apparently is has never been argued to anybody in this case the two points your hon first as we explain in reply and in our opening brief the g e our is properly considered merely a part of the broader remedial regime under the and we explain why to look at eight but there are also real different i mean there are obviously obviously cover different people there are different procedural prerequisites for the suit you get a different kind of review you only get administrate of reveal under the g eight so it's a separate inquiry as to whether it is satch it 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 am 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 and a fact of lee amending the eighty that the r amendments in one thousand nine hundred one really created a whole new statute that needs to be concluded considered independent the proper remedy would not be to dismiss this appeal but would be to vacate the seven circuits judgment to permit respond raise a claim that is new to this case on the merits here namely that there are different rules for appointees that employ this this is an interim qualified immunity question is presented an interlocutory appeal it is your own decisions on the merits factual and legal are still pending now no we have a determination by the district court that mr levin is not an employee yet fire district court determined that he was the respondents allege 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 is 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 he depending on how this court rules it is always true under rule fifty four that he could seek to have the district court reconsider his status it's also true that if he wished to proceed under the guera process for vindicating eighty eight rights he has the option of seeking a dismissal without prejudice of his statutory claims equal protection otherwise would have existed in the eighty's or didn't and i believe that juror 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 your constitutional claim there so are we supposed to read juror it goes this way in some cases and that we in other cases when juror is silent on the matter and so i look to see what the seventh circuit said nothing i look to see what you argued below nothing i look to see whether it's obvious the jury 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 seventh circuit was pronounced a rule that was indifferent as between appointees and employees the reason for that was the seventh circuit was asked to announce or that is indifferent as to employees and appointees there was the respondent sought in obtained a rule that the  does not displace period that's about people not like the client who is it issue here that is about people whom the a d f a did cover isn't that an advisory opinion in respect to this case i don't know that has a certain ring to under the answer to which i do not know in which has never been argued your honor there's very little lower court authority on the effect of gere i will say that what courts have done for i there is a case for example in which the allegation was title seven as amended in one thousand nine hundred one in the court construed that naturally to include the gear writes it so if there's some little about it sometimes on occasion we dismiss a case as improvidently granted which is not a particularly again are really one remedial regime and i've pointed out one thousand nine hundred one 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 freestanding statute as part of the one thousand nine hundred one 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 cara effectively amends and adds to the eighty eight 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 seventh circuit was asked to issue a broad pronouncement that is indifferent to whether the second circuit was well aware and  states that mr levin was subject to an interlocutory determination that he was an appointee and the court went on the only relevance that had in the court's analysis based on the way it was framed below is that  appointees and people under forty and other categories appear to he carved out and we have answers to all of those in our briefs and response but because all of them appear to be carved out of the a da does not displace e it was a sweeping ruling that was sought and the contention now is or perhaps the court should not have reached such a sweeping ruling perhaps the court could have ruled instead that as an appointee mr levin is entitled to a different rule that i specific to appointees because they're exempt under the age that argument was never advanced before the seventh circuit and at this point again we would say should the court harbor concerns about addressing this case we would ask that they vacated let the seventh circuit address that issue in the first instance if permitted i'd like to reserve my remaining time  to reach to in order to reach the issue of qualified immunity it would have to address to preclude an issue in our position was you don't have to look at you don't even consider th qualified immunity it's not part of the equation when we said the exact opposite in wilkie in footnote four and you can say it was only a footnote but it is what we said well we respectfully disagree your honor and we made that argument and and that was our position there with respect to the issue presented here the only thing that is pertinent is whether or not the a d a s can preclude an individual who not covered by it regardless if that individual is under forty years old or if they're exempt from the statute or if they have a claim that the eighty eight doesn't address we don't you know your brother  who just sat down explained that the seven circuits ruling didn't consider the issue that you're talking about now well i would respectfully disagree here we the seventh circuit we made it clear in the seventh circuit an employee within the day but do you concede that now i could say that there is no realistic number you can see that he is not an employee if you just say that there is no realistic possibility that the courts are going to take this correct position then the issue is still in the case and we would have to if we were to return to rule on the eighty issue wouldn't we have to decide whether there is a remedy for somebody who is an employee within the  well as a district court might be wrong on that the seventh circuit might be wrong on that and 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 we do right i mean depending 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  if you're if you want to believe i see you 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 we're going back to mr levin now covered we believe the court's decision and david versus passon and the court's decision in smith versus robinson which is the only case where the court has  factual record that was no different then 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 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 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 i'm looking at it again to say no  reshuffled depending on how we rule and i said i see you standing there i don't see willing to concede for for the future that he's not an employee well i think the difference was after the district court decision in our case that the seventh circuit decided another case in two thousand and ten and that's why the second district court judge followed that process and that precedent where the court does that cert there's no real if you agree with that yes ok then thank you very much and then my argument comes into play that we shouldn't be deciding issues of an advisory nature the do not involve individuals who fall within the statute that someone  unclear and this but as justice prior to mention it's been never discussed in this case it was never discussed in the seventh circuit never discussed in the district court it wasn't discussed  handful of cases nationally they're filed in the year every year some years there's no cases filed at the o c it's seldom used if you want to still hold that the seventh circuit lacks jurisdiction to consider whether whether there is a cause of action under section one thousand nine hundred three 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 seven circuit panel maybe it like making love and exempt so that was in that case it wasn't something where they just decided where did the eighty eight precludes individuals that are covered well as far as when the statute is passed with an enforcement provision that congress intended use that in force with provision to also enforce preexisting independent statutory or constitutional rights and  the constitutional right to equal protection of the law does i ask a 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 yes your honor so that if there's any conceivable ground on which the decision maker could have decided that age was it was proper to make an age quite a classification there's no what if the only legislature passed a statute and said now forget about the a da there's no a da there's no state anti discrimination law involved here all we're talking about is equal protection and they passed a law that said all attorneys working for the state of illinois must retire at the age of sixty because everybody knows you know once a lawyer passes sixty eight there's nothing left hundred eighty three claim they didn't search the reasons that were used in that case were insufficient to meet the rational basis test mr theobald are there any cases out there in the universe of cases in which a person does question is what are the circumstances in which given the very standard given given the very low rational basis standard what are the circumstances in which she would have  constitutional claim but not a statutory claim what would that case look like if you had a claim that under ninety three it would also i believe violate the i the case has been pending almost six years and to raise this issue at this issue here was raised this year it wasn't raised for six years however when it was part of this case and i don't think it that argument could be made in the district court well first something this is suspect this year whether it even applies it's the state has not said what about doing that i what are the is there anything unfair about this i think justice ginsburg wrote an opinion and i grew call a third circuit case involving a researcher that is a medical thing and an issue came up that was quite relevant and nobody really thought about it before 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 whether 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 i would that would that be a serious problem for you or your client 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 to deploy well then i assume if you're saying the qualified immunity wooing should not be reviewed because this person was not an employee but instead covered by gira right it only means that it's covered by their it's  mean they're they didn't address deer in the preclusion ruling right so presumably they get another they get a chance an interlocutory appeal the whole thing is qualified immunity is supposed to protect them from trial and if you say the gear  issue wasn't wasn't considered even though the seven circuits ruling was sweeping and didn't distinguish where they should have a chance to assert qualified immunity under that ground i would think well i don't think that that would factor any writer with a qualified immunity analysis the seven circuit immunity aspect of the seven circuits decision well that's true if there is a loser shark 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 believe there was no constitutional violation there's no matter is that a lot of the real question yes if there's a qualified immunity appeal on the question on the issue of whether let's say a search wasn't an unreasonable search would qualified immunity be denied on the ground an official should realize that in one reasonable search is unconstitutional would that be the would that be the issue under qualified immunity while of the facts that the officer was presented if there wasn't it wasn't well settled that the conduct on the facts that were were presented yes  so on the people that are covered we have four groups people that are under forty under the eighty eight people in the if there are exempt individuals that work for a government employer seven circuit docket number forty four talks about and runs the seven circuit docket number thirty seven page sixty seven point was in a point on the policymaking level so whether he was covered as as employee or not covered or covered under juror or anything else under their analysis it doesn't make a difference i think we could read the opinion that way but they certainly were aware that mr lippman was not covered the the state has argued since mr levin has been excluded before the seventh circuit and before this court they used the terms because last night exhausting remedies and they used the words of voids the eight at least six times this argument is the old sondra argument the first case that held preclusion or somebody didn't go through exhaustion has nothing to do with this smith we agree with the standard is smith we agree in the standard with its general and the standard in smith what that case was about was the educational for all handicapped act whether that act precluded the use of five o remedies and the procedures there was not for a do novo review in court so the plaintiffs claim was precluded we have no problem with the smith standard but the court also said smith that if there are matters that are offered to the children the disability the disabled children their parents under the ha that doesn't cover those things if they're offered to  yes i'm up trying i'm trying to see him how many of these arguments that you've made before us about the way that why we can't get to the holding of the seventh circuit committee of them you made in your brief in opposition i equal protection playing i read your brief amount position is going exclusively to what your unfortunate brother did have barely had a chance to argue that is the merits of the case that that's what your brief in opposition to address and here we end up spending most of our just discussion on what other stuff i don't i don't like to encourage that we could have done a better job  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 a d f and i think this court's decision in kimball 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 is proof positive that the seventh circuit was a was in fact announcing the sweeping rule that respondent sought is the fact that the court departs openly from the law in 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 thirty sally the authority is for congress to extinguish a right for a constitutional violation meaning to assume that someone and it was the question that justice alito asked you some one hundred the age of forty someone who's not covered by any statute someone who's part of an employer hundred twenty what would suggest to you in in this statute that congress intended to extinguish those people's rights sure your honor there are really two parts to my answer the first is they didn't it's been over stated what his not which has been exempted our position is that nobody who is section ninety three claims are just would be displaced would not in exchange receive the full rights and benefits under the eighty there is a reference to him sorry state that in the course of what you see nobody who the universe of of employees or workers to use the neutral true term here in the universe of workers who would not have in section one hundred three claim under the state's theory that every member of that universe would have a right to bring a claim under the equal protection the under forty s we agree as we say in our brief we agree that under forty that was not the social ill that congress was addressing in the age discrimination act consistent with this court's holding in a client and therefore those individuals retain their right e power to stop the ongoing violation of the constitution mr secretary you're in a situation where the question is not whether the remedial scheme displaces in one thousand nine hundred three suit brought for a violation of the same statute that contains remedial scheme instead you have to argue that this remedial scheme displaces a preexisting 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 from 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 enough to say look you can't bring one thousand nine hundred eighty three suits to vindicate this statute but stands for the proposition that the lodestar inquiry and i think the word primary emphasis of that phrase may be 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 remedy no your honor not at all when congress provided the expanded right they recognized that there were characteristics particular to age discrimination that warranted very low damages awards and a procedural predicate that would emphasize swift