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U.S. Department of Justice
Office of the Solicitor General
Washington, D.C. 20530
January 23, 2020
Honorable Scott S. Harris
Clerk
Supreme Court of the United States
Washington, D.C. 20543
Re: Babb v. Wilkie, No. 18-882
Dear Mr. Harris:
On January 17, 2020, this Court ordered the parties to file a supplemental letter brief addressing
the prospective relief a federal employee may obtain under laws other than the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq., against age-related policies, practices, actions,
or statements that were not a but-for cause of an adverse employment action against the complaining
employee. Although the government is not aware of any judicially enforceable relief, there are a host of
civil service regulations that would prohibit the types of policies that [petitioner is] concerned about, even
if there wasn't * * * a particular person in court that was challenging it under Section 633a. 1/15/20
Oral. Arg. Tr. (Tr.) 63; see id. at 39, 54-57. These policies are often broader than the federal-sector ADEA,
insofar as they do not require an adverse personnel action, are aimed at stopping problematic actions or
practices before they give rise to a legal violation, or reflect broader merit-system principles and
standards. And the policies may be enforced in a number of ways, including internal enforcement by the
relevant agency and, in the unlikely event that an agency refuses to honor federal merit-system principles,
an order from the Office of Personnel Management (OPM) requiring the agency to take corrective action.
Although these procedures are not the same as a court-ordered injunction, they provide the same basic
prospective relief by preventing agencies from adopting or continuing impermissible age-based policies.
1. The federal government has long adhered to anti-discrimination policies that are more
expansive than those required by laws like Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq., and the ADEA. For decades, it has been the policy of the Government of the United States to
provide equal opportunity in Federal employment for all persons, to prohibit discrimination in
employment on certain bases, including age, and to promote the full realization of equal employment
opportunity through a continuing affirmative program in each executive department and agency. Exec.
Order No. 11,478, § 1, 3 C.F.R. 804 (1966-1970 comp.); see Exec. Order No. 12,106, § 1-102, 3 C.F.R.
263 (1978 comp.) (amending Executive Order No. 11,478 to include discrimination on the basis of age);
see also, e.g., Exec. Order No. 10,590, 3 C.F.R. 237 (1954-1958 comp.) ([I]t is the policy of the United
States Government that equal opportunity be afforded all qualified persons, consistent with law, for](ViewImageLocal?handle=hein.preview/suppwkdr0001&div=1&collection=&method=preview&ext=.png&size=3)