Updated and expanded: 12:49 pm
The Supreme Court agreed on Monday to decide whether state and local government workers may file constitutional claims of age discrimination, instead of pursuing their complaints under the Age Discrimination in Employment Act — an issue on which lower federal courts are split. The case is Madigan v. Levin (12-872). That was one of three cases accepted for review, with oral arguments and decisions in each to be held next Term.
The Court also granted review on whether an individual faced with the forfeiture of property that may be the proceeds of a crime has a right to a pre-trial hearing to challenge the basis for possible forfeiture. The Justice Department agreed that the Court should address this issue because of a division among lower courts on it; the case is Kaley v. United States (12-464).
The third case is a government appeal testing the scope of its duty to do environmental impact studies when it makes broad plans for managing the national forests, rather than when it makes a site-specific plan. That case is U.S. Forest Service v. Pacific Rivers Council (12-623).
The Court asked the U.S. Solicitor General to provide the federal government’s view on another case arising under the Hague Convention on the Civil Aspects of International Child Abduction — a treaty that seeks to protect children from being abducted by a parent and taken to another country. The Hague Convention has come up with some regularity in the Supreme Court in recent years.
Under the Convention, an abducted child must be returned to his home country if the parent who is left behind files a petition seeking the child’s return within one year of the abduction. At issue in the case of Lozano v. Alvarez (12-820) is whether that one-year period can be suspended temporarily, as well as the scope of a defense to prevent the child’s return.
The Court took no action on two significant petitions that had been scheduled for consideration at last week’s private Conference: another same-sex marriage case (Coalition for Protection of Marriage v. Sevcik, 12-689), and another case on college affirmative-action (Schuette v. Coalition to Defend Affirmative Action, 12-682). It is likely that both cases are being held by the Court until it decides already granted cases on those issues.
The following information was added to this post at 12:49 pm:
The age discrimination controversy was taken to the Court by the Illinois attorney general and some of her colleagues, who argued that Congress did not intend for state and local employees to bypass the procedures under the federal age bias law, when that 1967 law was extended to those public employees in 1974.
The ADEA protects the workers it covers from discrimination in the workplace based on age, if a worker is forty years old or older. Under that law, a worker who complains of discrimination based on age first must go through a potential conciliation process at the U.S. Equal Employment Opportunity Commission, before being free to go to court. Under a constitutional claim, however, the worker goes straight to federal court.
That case began when Harvey Levin, a senior assistant state attorney general, was dismissed in 2006 at the age of sixty-one. He contended that he was let go because of his age, and that he was replaced by a younger female attorney. In his lawsuit, Levin not only challenged the constitutionality of his termination under the equal protection guarantee of the Fourteenth Amendment, but also claimed a violation of his rights under the federal law. The state officials sought to have the constitutional claim dismissed before trial, on the theory that the ADEA has displaced such remedies for state and local government employees. The Seventh Circuit Court rejected that argument, and cleared the way for Levin’s case to go to trial on the constitutional claim.
The Court presumably accepted that case for review to clear up what Illinois officials called a “hopeless” split among lower courts.
A similar split drew the Court into the property forfeiture case. Under a 1984 federal law, Congress provided for forfeiture of any property that was the proceeds of a federal crime. The law gives the government the option of seeking a court order to freeze any such property, to make sure it would be available for forfeiture, in the event of conviction.
The law, however, makes no specific provision for a court hearing when a freeze order has been issued after an indictment has come down. The federal appeals courts are split on whether there is such a hearing right after indictment. That issue was raised by a Florida couple faced with potential seizure of their assets — including property that they claimed they would need to pay their defense attorneys. They were indicted on charges of a conspiracy to transport stolen medical devices in interstate commerce, and with obstruction of justice.
They sought a hearing to challenge the basis for the grand jury’s charges, before the case would go to trial, to determine whether there was “probable cause” to justify the charges and thus to require a property forfeiture. Those pleas were rejected in lower courts, mainly on the premise that courts should not probe into what has occurred before a grand jury.
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