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Case number 225321, Jennifer Seed, Appellant versus Environmental Protection Agency and United States of America.

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Mr. Heilbrunn for the Appellant, Mr. Copeland for the Appellates.

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Judge Rao.

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Good morning.

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Judge Childs, good morning.

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Judge Rogers, good morning.

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Mark Heilbrunn for Appellant Jennifer Seed.

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Long standing case, but I'm sorry, may I please the court?

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It is a case decided on summary judgment on what appellant believes were a number of inappropriate rounds by the district court.

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which brings us not only to the standards for the new standards under BAB, but how those standards would impact rule 56 and its evolution since 1937.

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There remain, I would say after Jennifer Seeds,

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reassignments from a position she was in, bringing a lesser qualified younger man into the position and thus making room for younger employees from an inter-EPA

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program at American University.

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What is your evidence of either direct or indirect evidence of that?

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So under BAB, it is Dr. Seed's contention that the direct evidence standard

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was bolstered.

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However, the direct evidence is a conversation with Dr. Seed and several other of those within the risk assessment division.

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Dr. Seed being the expert within the risk assessment division on the effects among other things of chemicals on

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embryos.

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Are you referring to the single statement about whether or not he intended to allow younger people who had done the leadership program to come into that particular branch position?

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Dr. Henry has made that statement to several individuals and in fact.

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But then wasn't your client offered the branch position and then turned it down?

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My client was offered to volunteer and the actual paperwork did not go through.

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My client, Dr. Seed, being world-class, did have a number of disagreements with

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the US Justice Department during the deposition.

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But there is a question of fact as to whether she was actually offered the position that the person to whom she was displaced for who moved up from a branch chief position in order to make

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headroom for younger inter-EPA employees was.

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So yes, in another discord, it has been found to be under analogous circumstances to be direct evidence.

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It is our convention that is direct evidence under the DC circuit precedent.

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And in fact exceeds that.

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So, so you could just switch talking about compensatory damages in terms of address ability.

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I'm not sure.

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So the ADA does not specifically provide compensatory damages.

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And so where is the waiver of sovereign immunity for those types of damages?

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So the ADA 633A in particular does not, but Chief Justice Roberts

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uh, has, uh, going back to 2008 and Gomez press and forward joining the majority, uh, did not disagree that compensatory damages.

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And in fact, the, uh, the two, uh, those two individual justices in concurrence, uh, uh,

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strongly agreed with the aid justice majority that compensatory damages were generally available.

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In the ADEA?

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Correct, imputed in the ADEA.

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And this question was specifically asked prior to, there was a hitch, Judge Rao, prior to when Fortas dropped away and

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BAB was decided there was a short-term briefing period.

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This court knows what that's all about.

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And Justice Roberts, prior to changing sides, decided that the remedial scheme was appropriate

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for purposes of now that is that is not the government of getting us to pass summary judgment and to trial.

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But once at trial, compensatory damages under at least eight justices of the Supreme Court's are available.

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Okay, so BAB doesn't discuss sovereign immunity.

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However, in terms of kind of getting to this issue about the compensatory damages, BAB does discuss compensatory damages as part of relief.

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Then it looks like we would go to 29 USC section 633A,

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that is where it allows a federal sector plan to recover compensatory damages.

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So are you saying kind of putting the two together gets you there?

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Correct.

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And in addition to that, the evolution of Justice Roberts from 2008 in 2008,

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Gomez Perez, there was a three justice dissent, Scalia being one, Justice Thomas, who's an expert, without doubt, being the second in Gomez Perez, just Chief Justice Roberts being the third,

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Justice Scalia having passed away, that would leave Justice Thomas as the only one.

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Now he, Justice Thomas didn't seem to care a whit about sovereign immunity and did not

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also did not know other than the previous default rule in some cases, the availability, general availability of compensatory damages.

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Yeah.

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Thinking back to Judge Brown's question about compensatory damages and protestability, is that your only

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available remedy because back pay her salary didn't change, correct?

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There is an ability to according to OPM, there is an ability to give her creditable service until age 70, which she turns this year.

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And then she actually retired.

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So would you be still seeking injunctive relief?

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The retirement clearly was involuntary in our view.

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You say involuntary or voluntary?

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Involuntary.

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But you're not appealing the constructed discharge claim.

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We are, that was the initial provision under Klockner and recent cases here.

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Preserve that issue on appeal.

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It is after standing came up, it is on the first page of the reply brief.

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So you can't maintain an issue on appeal in the reply brief, right?

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It has to be in the initial brief.

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Last, something comes up in the response, which was out of the ordinary.

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You're asking about compensatory damages.

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No, that is not the only hope.

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Ment story damages are the hook only if the lesser or less lenient standard in BAB is applied.

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There is here a clear attachment of liability on the stronger, which is the strongest among the civil rights laws.

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But it has been on the books for 50 years under not only basic canons, but beyond the canons, just the plain meaning.

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See, are there any further questions?

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Judge Rogers, any questions?

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No, thank you.

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Thank you.

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Give you a few minutes on rebuttal.

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Morning, Your Honors.

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May it please the Court, I'm Josh Koppel for the United States.

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Dr. Seed lacks standing to pursue her ADA claim because there's no redress that a court could provide, even if plaintiff were otherwise to prevail on the merits.

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And that's due to a combination of somewhat unique circumstances of this case and plaintiff's own choices.

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So as the court recognized, Steve cannot seek back pay because she earned the same in the senior science advisor position as she would have as deputy director.

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She can't seek reinstatement because she voluntarily retired from EPA and that retirement is the independent cause for from any alleged discrimination of her separation.

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And while plaintiff has previously asserted constructive discharge claim, the district court dismissed that claim for failure to timely exhaust administrative remedies and C did not pursue that claim on appeal.

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Plaintiff also can't seek conjunctive or declaratory relief now that she's left the agency.

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And as every court of appeals that has addressed the issue has held, the United States has not waived its sovereign immunity from compensatory damages or punitive damages under the ADEA.

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the reference in BAB to compensatory damages.

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Is it your view that that's dicta?

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That is certainly dicta, and it wasn't even considered dicta.

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The issue wasn't briefed.

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It wasn't an issue in the case.

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The court was explaining that an ADEA plaintiff suing the federal government has to show that age discrimination was a but for cause of differential treatment in the employment process, but not necessarily a but for cause of the personnel action itself.

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But the court said that the remedy, or if the plaintiff was seeking a remedy tied to the end result of the personnel action, then they would need to show but for causation.

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So if they were seeking reinstatement or back pay, they would need to show but for causation.

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And the court threw into that list compensatory damages.

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But again, the question whether compensatory damages are available under the ADEA was not before the court.

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has been decided by numerous other courts of appeals.

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The Supreme Court seems to assume that compensatory damages are available by twice listing it in available remedies.

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I think that the court was listing damages that might possibly be available if a plaintiff suing any employer can prove but for causation.

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I don't think the court was thinking about the sovereign immunity question specifically.

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Certainly the court had held that Title VII, prior to the 1991 Civil Rights Act,

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did not allow compensatory damages.

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And it's held that the ADEA was modeled on Title VII.

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And when Congress amended Title VII in 1991 to allow compensatory damages, Congress specifically did not include, did not amend the ADEA.

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So just as Title VII prior to 1991 did not allow compensatory damages, the ADEA continues not to allow compensatory damages against the United States.

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Let me ask you another question.

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So the statute 633A says includes appropriate remedies, including reinstatement or back pay.

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So why couldn't compensatory damages be an appropriate remedy like reinstatement?

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Well, there's sort of an umbrella term here in the statute.

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Because when Congress waives the sovereign immunity, it has to do so clearly.

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And if Congress has listed reinstatement and back pay, there's certainly no clear statement that Congress has waived the sovereign immunity of the United States from compensatory damages.

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So does appropriate remedies then only mean reinstatement or back pay?

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Because it says including reinstatement or back pay, suggesting there could be other types of remedies.

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Injunctive or declaratory relief could be available if Dr. Steve were still at EPA, so there was still a chance that she might be discriminated against in the future, for example.

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That's another example.

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There might be others that courts have awarded, but no court has awarded compensatory damage as far as I'm aware against the United States.

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Is it your view that compensatory damages are not enough like reinstatement or back pay to be included in the appropriate remedy?

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Well, reinstatement and back pay are equitable.

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Compensatory damages are money damages.

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And so they are of a different type.

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So under this court's decision in Taylor v. DIC, we think the court does need to dismiss or remand with instructions for the court to dismiss the reassignment claim for lack of jurisdiction.

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If the court finds that plaintiff has standing, however, it should affirm the grant of summary judgment below.

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Plaintiff argues that the district court erred by not citing and applying the standard that the Supreme Court articulated in BAB.

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But she fails to explain how that standard would have changed the outcome.

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And it wouldn't have because the district court here applied a standard that was at least as favorable to plaintiff as the one articulated in BAB.

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The question that district court posed was whether there was sufficient evidence for a reasonable fact finder to conclude the age was a factor in the decision to assign C to the senior science advisor position rather than deputy director.

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That's at A395 to A396.

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And again, that standard is at least as favorable to the plaintiff as the one set out in BAP.

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Further, under any conceivable standard, no reasonable fact finder could conclude that discrimination played any role in the decision to assign Dr. C to the senior science advisor position here.

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It's helpful to recognize the context.

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EPA was conducting a major reorganization of Dr. Seed's office, affecting seven divisions and at least 91 positions.

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And after restructuring the old chart, EPA had to figure out how to match its existing workforce with a new structure and a new set of positions.

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And Dr. Henry explained to Dr. Seed, the deputy division director position would be mostly contracting, budgeting, personnel, and other administrative functions.

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And Dr. Seed said that she disagreed with how EPA was formulating the position that would lead to stagnation.

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She said she did not want to do budget as a full-time job.

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That's A320.

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She said that such a position would, quote, waste a lot of my talent in science policy.

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That's A319.

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And then she wrote in an email to Dr. Henry that she did not want any of the positions as they had been formulated by EPA, that's A313.

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So EPA assigned Dr. Seed to the senior science advisor role, which Dr. Henry explained was more suited to her scientific talents and interests.

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And it shows someone else who had expressed a desire to perform all the duties of the deputy division director for that position.

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And not only was that non-discriminatory reason plain on the face of the evidence and unrebutted, but we know that he was not trying to put a younger person fresh out of leadership training in the deputy division director position because the person ultimately selected for that job, Dr. Barone was slightly younger than plaintiff, only about five years younger.

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And he was previously a branch chief.

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He was not recently out of leadership training.

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So the only evidence the plaintiff cites is this lone comment about the branch chief position.

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As Judge Childs pointed out though, as well, Dr. Seed, when she later requested the branch chief position, she was offered it.

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Plaintiff's council suggested there's some ambiguity on that.

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You can look at the record at A152 in Seed's deposition, she says, I got the job.

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That is the branch chief job once she inquired about it.

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So there wasn't really, you know, so although she alleged there was some discrimination with regard to the branch chief position, she was actually offered it.

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And second, she has demonstrated no nexus between this comment that was directed specifically at the branch chief position and the decision that she actually complains about, which is the decision regarding the deputy division director.

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And again, we know that, in fact, the person ultimately hired for the deputy director position was not a younger employee fresh out of leadership training.

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So on these facts, no reasonable fact finder could conclude that age played any role in the employment decision that Dr. Seed complains about.

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If there are no further questions, we ask that the court remand with instructions to dismiss for lack of jurisdiction or affirm the grant to summary judgment below.

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Thank you very much.

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Quickly.

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What we are focusing on here are whether there are genuine disputes or any genuine dispute.

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for trial.

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And as I mentioned before, but which was not argued by the government personnel actions, which is entitled seven since 2008 was

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applied to 633 AA, not 633 AC, which is the provision which focuses on sovereign immunity.

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That issue

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off the station long ago.

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The government cannot cherry pick.

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Once sovereign immunity has been waived 50 years ago and the Fourth Circuit, some very smart judges out of South Carolina have made this point very, very recently.

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They can't cherry pick.

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633 AC

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is very, very clear.

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And it notes that any person agreed may bring a civil action

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That 633 AC is the waiver of sovereign immunity.

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The government can't then cherry pick in print jurisdictions as to, well, we're gonna make that apply to compensatory damages despite the fact that a plain statute and an eight to one mandate, there is a mandate rule.

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Courts are generally expected to follow it.

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it was not focused on in this argument.

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But under that mandate, and the eight to one decision, compensatory damages, it was made clear notwithstanding sovereign immunity.

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There are, as I have noted, and I could go through them, several issues and disputes.

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Thank you.