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 sevens 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 m s p be and the e e o c 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 it's not made free from any discrimination congress chose those words carefully rejecting the private sector language later addressed in gross and nasser 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 redress of all equal protection injury even if he can't prove he otherwise would have received a benefit that same injury rule govern six hundred and thirty three a title seven 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 it's perfectly lawful for federal agencies to apply younger is better or wider is better hiring policies to individuals who can't prove that they would have been hired but for those policies that's anti textual and it's wrong decisions applying such blatantly discriminatory policies are obviously not made free from any discrimination the government's theory contradicts the plain statutory language 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 backpack and where is that in the statutory text so we would say that at the root at the  remedial stage ordinary remedial principles would apply and those principles require that the victim of the point if 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 person the plaintiffs couldn't wouldn't have gotten hired anyway they shouldn't get remedies that are specifically and logically tied to that that thing that they weren't wouldn't been entitled to in the st place but that doesn't mean that they shouldn't get the kinds of prospective  relief that are available in a wide range of other cases for example but i know 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 blood for causation because as you rightly say if you haven't suffered a an action because of age you're not entitled to your honor with respect you wouldn't be coming all the way down the hill because there would be a wide range of other types of remedies that would be available all assuming that the government could show that that she would have gotten the job would just take that as a given i think it implicit in the question then she wouldn't be entitled to reinstatement or back pay but she would be entitled to remedies like e o training so that this kind of discrimination wouldn't happen to her next time she applies for a promotion or next time she seeks an opportunity that kind of training is a classic remedial relief that's available in these types of cases and some who would get the training  judgment but if the court if the proof a 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 it 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 without remedy or so no particular relief directly benefiting her no your honor her atmosphere of relief institutional relief but she herself gets nothing tangible 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 it's 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 recognised is appropriate even without but for causation for example in the constitutional cases that we've talked about so says that the way you bring a discrimination claim is to sue under this statute that we're currently talking about whether there are other remedies available though i guess i guess i'd have to focus specific i'm not sure specifically what you'd be asking for but the way i read the civil service laws is that these types of claims need to be brought under this particular status tum we're assuming the worse for your client that the government's right that she would not have been higher but for that as i understand the equal protection claim it's that the process would be free from discrimination right so that even if she can't prove that she would have gotten the job she still has an opportunity to prove a remedy that age was considered and considered in appropriately correct 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 didn't qualify for right but give me an example in those who are of five of a process that could have that she might have won that she might have prevailed in showing that that process was corrupted because of her sure so for one example as she was 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 babs she's she's she's really kind of auld we don't really like or she keeps following these 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 disc the consideration of those very significant factors of pure age discrimination i think if we were literally and usually when we have to conclude that there's a tainted process we make the decision maker go back and do it over without the taint don't we i think you do that in a lot of circumstances your honor and in a circumstance in which that was possible that might well be the of an available remedy as well i think we're several years past the you know the particular promotion decision in th particular role i don't know if those roles even currently exist in the same way that they did several years ago but i think that's yet another example of a kind of equitable remedy that could be awarded if the process was determined to be tainted cementing as you started by saying that this is 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 that's a possible interpretation of the slanguage but another interpretation is that you when you say that a person no action should be made free from any discrimination you're 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 statute that are relevant here st is the subject of the of the sentence all personnel actions then there's the verb shall be made and then finally there is 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 it's 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 is the decision have to happen it's talking about how that decision shall be made that's a process that process language i think the nd thing is once you look within the adverbial phrase within the free from any discrimination based on age phrase you should ask yourself ok well what is this process have to be free from the next part of the statute is any discrimination and the word discrimination has been interpreted under the plain meaning and this and in this court's decision in jackson just to mean an equal differential or less favorable treatment and we think that that is we accept that i think the solicitor general is conceded that that's the understanding of discriminate so i think what the solicitor general would say is sure it's unequal treatment but a person is only subject to unequal treatment if he or she doesn't get the outcome that he would otherwise have gotten well and if everything ends up the same then there's been no unequal treatment what i think i think you're out of that's why the st part the three from language and the fact that it's an adverbial phrase modifying the verb in that that language signals that we're talking about process once you know that that we've got this we've got this modifier that's a process modifier that's talking about the process i think that then sheds light on what we mean by discrimination  what about the subject actions and that's a term that's used to nasser and term that used in gross the word action in the action is usually referred to as an adverse employment action namely as justice kagan says the decision in your brief uses the word process over and over and the see is civil service laws that just of course are true reference do say that the process has to be free of any  have to be treated fair and accurately throughout the process but this doesn't say that it's his actions so how do we deal with the word actual i think you need to read it again in the context of the whole sentence and it doesn't say actions shall be can't be based on age it says actions shall be made free from any discrimination based on age and so the 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 say that the the work that's done by the phrase person action is simply to explain the range of employment related actions that that's covered by the statute generally doesn't bear on the but for causation question and it's our so i did just to answer the question about actually i think the key point here is if you look at if you look at briefly what strikes me is that the phrase that the general it relies on based on age that's right that what they're getting where they're getting there but for causation textual argument it's all the way down at the bottom of that the end of that paragraph and if you look at it it modifies the word discrimination which is immediately to the left with the solicitor general is asking you to do is take that based on an age phrase walk up seventeen lines of text turn left and have it modify personal actions that's just not how the state statu reads and i think what this court has always done and needs to do is look very carefully at the wording of this statute this is the same point that judges table and sent on made in the d c circuit that this statute judge henderson disagreed judge honor so she agreed with the remained she expressed some doubts about maybe the clarity of the force of the particular arguments that judges take a once in tell me but the bottom line here is i think romantically there's no question that based on age modifies discrimination what happened  age please no world whatsoever in the actual decision but at some prior point in the process age was considered i don't know that anything that i don't 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 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 decision the decision making process and say that age was not a factor at all but i think we would not 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 would not be made free from discrimination under the plain language well but if the statute prohibits any discrimination i don't know where you get your qualification that it has to be a significant factor it doesn't have to affect the final action so what type of discrimination any type would see in the course of the you know weeks long process you know one comment about age you know the hiring person was younger says you know ok boomer you know once  once to the to the applicant now you're only concerned about process you're not concerned about but for causation it doesn't have to have played a role in the actual decision so is that actionable i think we would say that it does have to play a role in the decision making process that leads to the decision and i think in that particular case if it really had no role if it was just sort of you know a straight comment in the air i think that on the facts of that i think a court could conclude so how do you how do you tell what's  significant factor in the decision we're not saying that it has to be a six we're not going to see in the term significant factor we're saying that it 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 and we think that applies to the process as a whole when you say free from any discrimination but it doesn't have to result in the final decision i'm just trying to see how many story comments do you need and who has to make them before you decide that although it says any we don't really mean any we mean some discrimination that has a particular effect even if it's not what for i'm just wondering if your position is going to become really just a regulation of speech in the workplace or an idea of well of course not well then explain how not what if the speech in the workplace is you know using ethnic slurs or or you know calling people boom or saying unflattering things about them in age when considering them for a position and yes of course i'm calling somebody a boomer and considering them for a position would be i mean that i'm just trying to i think that i think it's 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 but they could get absolutely would be e when you answer the question i had thought you would say and you didn't and so of the question there is another statute title seven and what it says is when the discrimination is a motivating factor but even though other factors also motivated that practice right now i thought you were going to pick up the same standard we think that our standard is essentially the same standard right so we could say in the opinion what this means to be free is the same thing that congress said when you demanded title seven that it isn't enough to show if you just show you don't have to show played it 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 quote who write and therefore there no more administrative problem in this then there is any way under title seven now that's what i thought you would but you didn't say that so now i don't let me just agree with me because i know that sounds let me explain the reason we had we didn't do that is because i think  everyone would agree by its terms that provision does not directly apply to this statute you know i know it does is i'm just explaining why i don't set but i think the substance of the point is exactly right i think that this would not created mr ability problems you'd actually be clarifying the law  creating a way to sell 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 wasn't the decision would be made without regard to it no but your honor that would that happens at the remedial stage at the relief stage and that's exactly our point is that at the relief stage the defendant does get what in those statutes in that statute it happens at the liability stage and i read your briefs i read your briefs yeah and the statute i understand as i read your briefs to reject the motivating factor or not adopt the motivating factor standard and know them let me be clear because this is there's an important point to pricewaterhouse type standard that just as prior i think justice breyer was talking about what congress did to fix the problem of pricewaterhouse a pricewaterhouse happens congress decides that the pricewaterhouse 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 the motivating factor but if the employer can show that that it wasn't about for cause that shrinks the number of remedies that are available to you and that's 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 we think any factor and motivating factor essential to mean the same thing because they play the the factor plays into the decision and so in that sense it's motivating counsel i want to give you an opportunity to respond another argument that concern me for the 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 six hundred and twenty three dollars which of course we can't do because of gross and point specifically the language saying you know you can't discriminate in hiring we're otherwise right discriminate with respect to terms and conditions of of employment and if we were to adopt your broad reading here what discriminate why would we do the same thing there so i think gross is totally different and just a couple points on this because it's very important number one congress looked at that exact language when it was legislating the statute that says issue in this case congress rejected applying the private sector language from the go to that discriminate point if you look at the language in gross and we've rep reproduced it and 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 an individual and then the th one otherwise discriminate with respect to terms conditions as compensation conditions the st three of those things are all outcome based the st three items in the list the th item in the the used in generous canon and said that when you have things in a list like that the last item which is otherwise it would discriminate here means something different than the word discriminate there 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 engross has the most important textual indicator comes it makes this case come out our way which is the shall be made free from law and stand up at the otherwise discriminate what you've got to use jim generous caring excellent  otherwise discriminate is is very i mean that that seems to be a catch all that seems to be anything i think i would resist that one because a used in generous the nd point to you think you would have resisted that before gross you know your honor we're not here to gross i think this gross was a very closely decided decision you know it was a very closely divided court on gross we're not here to we're here to make the point that it will grow said was that you need to look at the statutory language with careful attention careful and critical examination and this is a this is a quote from gross you can apply rules applicable under one statute to a different statute without really looking carefully at the and here the otherwise discriminate cause is limited by with respect to terms conditions etc that's not learned in error that's broadening language that's that's supposed to be a catch all phrase at the end that will cover anything otherwise discriminate against any thing 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 right aspects whereas here you just have actions so if you're comparing the two statutes to pick up on just discourse which is point i would have thought a broader if anything was in that language i think the word discrimination sometimes can take on different meanings depending on the context the most important textual context 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 engross this statute arises in a context in which congress wanted to address the constitutional rule wanted to plug the gap in remedies and make sure that victims of unconstitutional discrimination had a viable remedy thank you counsel general francisco mr chief justice and may it please the court the federal sector the same causations standard applicable to state and local governments and private companies but for causation 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 engrossed in nasser nothing in six hundred and thirty three a clearly overrides the common law default rule of but for causation nd congress easily could have overridden the common law default rule of it wanted to it could have applied the motivating factor standard to the a d n a or it could have gone further and prohibited any consideration of the no matter how fleeting but it didn't 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 there's no evidence that congress was more concerned about discrimination by the federal government that's why senator benson section six hundred and thirty three dollars s principal sponsor said that under six thirty three dollars a quote 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 it's very instructive here to the interpretive question i'd like to point out two specific provisions in that i think that are relevant the st one actually isn't in our brief some going to take a minute here to describe it because it's a provision of the c s r a that specifically cross references incorporates and describes section six hundred and thirty three dollars a in the text of the statute and what you'll see in that provision is that it uses language to describe six hundred and thirty three a day 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 saying the same thing and i'm referring to five us c twenty three o two b one b and here's what it says quote 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 for hibbett it under six hundred and thirty three it so it doesn't have any of the language that my friends on the other side rely on texturally this is a statute that congress is nack did that in it's text is describing six hundred and thirty three a and it uses language that's parallel to the private sector provisions and i think it's highly relevant to interpret ing six hundred and thirty three a day because as justice scalia explained isn't in his opinion in branch against smith it is quote of course the most rudimentary rule of statutory construction that courts do not interpret statute solution but in the context of the corpus jurists of which they are part including later enacted statutes and so if an employer has an explicit youngers better policy mr martinez says your position would government or private employer no different than anyone else covered by title seven 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 in that five u and one b two which says that quote 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 six hundred and thirty three  clear would that policy be a violation of that civil service provision if yeah i think it clearly would be a violation of that civil service provision would there be any impediments to suing under that civil service 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 or younger is better policy were a federal government allegiance is settled without such a policy so her statute that it to reflect the equal protection clause of the constitution which would have covered this on its own prior to the in that moment of the statu discrimination or on my private sector discrimination under title seven congress intended to get federal employees when it used the phrase free from any discrimination it decided to say this kind of discrimination is ok an injury this provision on your honor i think i'd disagree with that for a couple of reasons st i think i disagree with the premise if congress that in fact intended to apply equal protection principles presumably would apply the same standard to state governments since they're 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  subject to the former law and unfortunately you're wrong because the e e o c and the civil service agency have been reading that equal protection principle even before this provision into federal decision making and so i think i'm sure high understand your point well i think that i don't think they were if they wanted to follow the state and local provision they would have followed it right i think but they created a different we're on 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 seven and the way 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 it's the but for causation standard but i don't want to say that federalism concern when you're dealing local government which you don't have when you're dealing with the federal government alone and why wouldn't it be the languages mr martinez pointed out is different you're treating all those extra words as just meaningless surplus if they wanted to get bigger the same standard as private sector employment state and local government permit they would have used the same language but they didn't they said all right and they said what was the words free from any free from any yes so congress uses those different different more in compassing language all free from any i would think that the standard that is before us appl standard so your honor two responses on the textual issue but i'd also like to address the federal m fredricka as an issue as well on the textual question the st is i'd simply point back to that provision of the civil service reform act but i was referring to earlier twenty three o two will call me or nash and general but it seems to me that the st and clearly the most important place to go in thinking about what six hundred and thirty three meehan's has to go to six hundred and thirty three right not to go to some later enact that 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 snagit that it wrote in gross or in nasser indeed they didn't 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 modify and a completely  from the use of any eggs in the course of the cake baking process whisk up a bowl of eggs i think about dumping it into the batter but then i say oh i'm be supposed to be making a cake without exhaust throwed 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 beat is free from the use of that i mean that gets the point i asked mr martinez about but what if there is a little bit of a let's put in the final matter that's the problem so even if we focus right on just on the actual decision making process the moment of this is your making process i mean i don't know about the why and i'm not sure i care about the why here but you have a terrible time fitting your argument into the statutory language can you explain how you can do that sure if if age is consider is a factor in the ult in making the decision there's discrimination based on age and that the the action is not done free from discrimination based on a not for two reasons your honor st i'm focusing on the word made and made refers to the point at which the action is taken it was the personal action that you ultimately took made without discrimination based on age and it is if it's exactly the same as you would have made without any consideration of age but on my nd point i think is just as important it refers to a very important canon of construction that statutory tax 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 there's nothing in this text that significantly different from the other language or and i think that one answer is and look i've scoured the legislative history i haven't found anything specifically addresses it a 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 didn't just amend employer to include the federal government is because they wanted to preach to preserve that preexisting separate federal process that applies to federal employees promotion the promoting person thinks i see her result on this test it's highly subjective not sure but i certainly don't want people who are over the age is no ok that's a possible real world situation but more likely it's also a question of lawyers and burdens of proof and under the title seven 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 right now the language here seems designed to do just t deal with that real world situation where we don't understand as a lawyer what that real world situation is in his head you know and just prove that and i'll tell you what happens he can come back and say no not a but four and then you limit the remedies what word does that there is a statutory word that does that it's in thirty three dollars a it's called appropriate remedies and so if it really is a buck or as shown by the lawyer oh  they're not going to reinstate they're not going to give you the promotion because by the way she comes in very late ok so now we've got the language that's what they're arguing and you say why would congress do that why would it make the feds have to do this the same reason they passed that statute the fed 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 ok so we have a reason we have an interpretation of the statute now that in my mind is what you're up against 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 are going to my friends on the other side because their argument really boils down to the notion that in one thousand nine hundred and seventy four congress somehow predicted the nine hundred and ninety one dollars 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 they did all of that twenty years earlier when it use the free from any language with all respect i find that simply implausible given that it took us pricewaterhouse congress is 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 don't think it makes any sense to her own that overstates what a complicated concept th 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 it's not a whole lot to predict or anticipate 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 yeah and i guess i'd add to the mix the rd choice which is the motivating factor test i can sort of see how texturally you could get to the any consideration test i disagree with it but i can understand how you can get there textually i think there something free from something 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 roll in which there were a lot of things in that decision makers head and or it could be you have to show but for the so which is it says what really from 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 friends test and focuses solely on process suppose you've got some low level hiring official that says to his boss  i don't think we should hire this person for ten reasons one of which is i just think this person is too op the boss then says you knucklehead we'd never consider age by the way you're 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 is unqualified so we don't hire that age has clearly played a role in the process for making that decision and under there is one of the generosity but not in the actual decision so if you focus just on the decision this comes back to your egg hypothetical if there's a little bit of aig in the actual decision that's one thing but if you threw out the egg before you ever got to that point right and that's a different situation what i would say is if there's a little bit of a good in it then it would be a but for cause but not maybe the soul 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 hadn't was stopped the eggs and held it in the st place cake free from the use of aids even though it's been part of the process it's not found its way into the final cut kyra ask about the practicalities of this case and how it's going to fly in the real world because i'm not sure there's really much difference  they agree that you can't that an employee can't get reinstatement or back pay without showing but for cause so you obviously agree with that as well yes they would say you can get particular action you to agree with that albeit under the civil service stat civil service statutes yeah right basically yes so there's 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 one's injunctive relief assault well i think there are a couple of big differences one is done administrative leave one it's being done by hauled into court and i think that's  a pretty big difference secondly in the hypothetical that you're spinning out you're essentially entitled to judicial relief in the absence of an adverse personnel action that was actually caused by a thing that you're complaining about but you would say under the albeit under a different statute and maybe you're right there are some to that same rules you have to go through but in terms of employees the real world of employees in the real wardo world of employers i think there's a lot of agreement between the two i think that's basically right because the things that he's concerned about the types of policies that he's concerned about couldn't happen within the federal government because of a whole host of laws whole the apart from section six hundred and thirty three dollars a but i think that the critical issue is whether does does six thirty three provide yet an additional avenue where the federal government can be hauled into court for a judicial ram in additional revenue and where we disagree sort interrupted an additional avenue that would get you nothing more though exactly an additional avenue that would get you nothing more for the plaintiffs but that does create a significant headache for the federalists the problem is even though there was no anticipating pricewaterhouse the  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 research that justice prior said which is even though we can't read motivating factor it's really the same as a part of the decision lady and private sector and state government honor under title seven and i'd like to clarify this because our position on title seven is a little bit more nuanced than that under the title seven federal sector sex discrimination or race discrimination provisions as distinct from the title seven federal sector retaliation provision which we sought search on in this court tonight serve on if you look at the federal sector sex race provision arguably that doesn't corporate the motivating factor standard because there is a provision in the federal sector title seven that specifically cross references portions of the ninety one civil rights amendments that apply the motivating factor test and if that's right your honor this court has never addressed it we haven't we did not contest that below but if that's right then everybody that under title seven gets treated by the same motivating factor standard under title seven so that takes would take care of all of the race and sex hypotheticals that my friend is troubled by but critically and thirty three a doesn't cross reference any portion of the nine hundred and ninety one civil rights amendments at all so i think that further confirms that the text of six hundred and thirty three a is not meant to adopt the motivating factor standard but is something different and the different thing is is the common law default rule unless there is something in the statutory text that clearly abrogates the common law default rule i'm not going to say that they don't have any textual argument i think they have the 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 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 it's governed by the common law default rule of but for causation now i think that my friend may get up on  uttal and point to chevron and so i would like to take one moment to address the chevron issue in advance i think chevron would be completely inapplicable here for three different reasons the st is before you ever get to chevron you apply t 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 would under the default will not chevron let's say you completely disagree with that chevron doesn't apply for two additional reasons st as this court held in epic systems chevron doesn't apply were two executive branch agencies disagree on the meaning of the statute since it's inconsistent with chevrons political accountability rationale and here we have such an a disagreement secondly as the court held in the lead better decision chevron doesn't apply where the executive where the agency is simply interpret ing this court's decisions since this court is the expert interpreting its decisions and if you look at the e e o c adjudications in this area the analysis tends to be quite short it's usually about a paragraph and all that's doing is interpret this court's decisions so i think we win under the t regardless of chevron but even if you think that chevron in theory might apply here there are two additional reasons why it couldn't apply in this particular case i may not get much in is making a distinction that  between the liability and ram and he said the bottom line you don't get the job if somebody else was better qualified none the less you do get some kind of remedy so that the workplace will be free from all discrimination any discrimination so one possibility is junk to believe 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  you are not entitled to the job if even though the age was taken into account the person who on your honor i think you're fairly characterizing my position and i'd see a couple of things on remedy that if you disagree with me on liability i agree with him on remedy but i also think that his position on remedy is unnecessary for the reasons of my exchange with justice kavanagh you can you essentially already have a civil servant 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 wasn't somebody a particular person in court that was challenging it under section six hundred and thirty three dollars a but our bottom line position here is that congress added the federal and state sector extension of six hundred and thirty three in the title seven at the same time it meant to apply the same standard to the federal government that applies to state and local governments and applies to private employers that standard is but for causation it results in treating all employees under the a d a the scene regardless of who you work for since everybody agrees if you work for a private company or state and local government the standard is but for causation and respectfully that's the thing the standard that we think should apply to the federal government as well the court has further questions your honor thank you counsel you five minutes mr martinez just a few points your honor let me start with the text i think it's very notable that when the solicitor general stood up here he began and one of the st sentence a few sentences of his presentation by misquoting the text he said this is that you covers personal actions based on age he made exactly the mistake  pointed out as 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 w better applied to private sector employees as under the statute interpreted gross well with respect whatever we know about the text is that congress did not intend to apply that regime congress specifically consider that regime it was it was going to do with th solicitor general wanted in the st draft of the statute congress then amended that draft and passed a different statute you just can't you can't 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 this provision and if you look at the brown versus g s a decision that we talk about in our brief it's very clear that congress when it acted title seven 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 say bowling versus shark 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 there's 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  congress expressly decided to treat states differently they treated states exist by amending the employer definition they treated states like private sector actors they did something totally different by creating a unique federal sector provision to govern the federal government you can't just poll that language that applies to states and say it must apply to the federal government and justice briar you're absolutely right that the legislative history shows that congress thought of the federal government's being especially important in this context the solicitor general does my rd 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 thirdly statement section twenty six dollars what it says in comment d is that the st thing you need to do when you're 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 baki up through parents involved once you get the injury we are completely consistent with the common law rule finally iran or younger is better i think it's striking that the solicitor general doubled down on his position that a younger is better stat policy does not violate this statute his days six marking give rise to a remedy of an injunction in court that is not accurate if you look at the m s p website it specifically says that this provision is not enforceable and that's the rule that courts across the country have applied to 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 that unforeseeable that puts victims of discrimination in exactly the same position they were in before the 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'll leave you with the statutory text which says very clearly that all federal person our actions shall be made free from any  discrimination based on age a decision that's made by applying a younger is better policy contrary to the solicitor general is not made free from any discrimination based on age i assume and i hope that  would not see within any federal agency any sort of policy like younger is because of that or and so i'm not sure what practical benefits you are going to provide for in the typical individual age discrimination employment case if you say that the person can't get reinstatement or whatever absent but for causation but they're going to be these other equitable remedies available i don't know what kind of injunction would be available would be of practical benefit in a case like that if a mansard two quick points your honor st of all i think i agree with you we would not like to see agencies doing this sorts of things if you look at the brent case that we cite at pages forty one to forty two of our brief that case involved and 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 in the prospective remedies that are available are extremely important in in the real world which is precisely why in the equal protection contacts you've recognized the importance of that kind of injunctive relief and we think that relief is just as important here