Page(s)

Cases

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).................................. 10

Air Lines Stewards & Stewardesses Association Local 550 v. American Airlines, Inc., 455 F.2d 101 (7th Cir. 1972)......................................... 16

Arizona Governing Committee v. Norris,
463 U.S. 1073 (1983)..................................................................... 6–7, 22

Barrentine v. Arkansas–Best Freight System, Inc.,
450 U.S. 728 (1981)................................................................................ 13

In re Bemis Co., 279 F.3d 419 (7th Cir. 2002).................................. 14–15

Cheeks v. Freeport Pancake House, Inc.,
796 F.3d 199 (2d Cir. 2015).................................................................. 13

City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978)....................................................................................... 6–8, 22

Dotson v. Pfizer, Inc., 558 F.3d 284 (4th Cir. 2009)............................... 22

Duke v. Uniroyal Inc., 928 F.2d 1413 (4th Cir. 1991).............................. 3

EEOC v. Massey Yardley Chrysler Plymouth, Inc.,
117 F.3d 1244 (11th Cir. 1997).............................................................. 3

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).............................. 9, 15

Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010).................... 15

Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985).................. 5

Florida v. Long, 487 U.S. 223 (1988)............................................... 6–7, 22

Hamilton v. Southland Christian School, Inc.,
680 F.3d 1316 (11th Cir. 2012)............................................................ 20

Kingdomware Technologies, Inc. v. United States,
136 S. Ct. 1969 (2016).............................................................................. 2

Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012)......................................... 4

Lorillard v. Pons, 434 U.S. 575 (1978)................................................... 3–6

Lynn’s Food Stores, Inc. v. United States,
679 F.2d 1350 (11th Cir. 1982)............................................................ 13

Massachusetts v. Environmental Protection Agency,
549 U.S. 1438 (2007)............................................................................. 15

Maxfield v. Sinclair International,
766 F.2d 788 (3d Cir. 1985).................................................................... 3

United States ex rel. Michaels v. Agape Senior Community, Inc., ___ F.3d ___, Nos. 15-2145 & 15-2147,
2017 WL 588356 (4th Cir. Feb. 14, 2017).......................................... 21

Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977)........ 10–11

Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211 (5th Cir. 1974)................................................................... 9

Rasimas v. Michigan Department of Mental Health,
714 F.2d 614 (6th Cir. 1983)................................................................... 9

Ray Communications, Inc. v. Clear Channel Communications, Inc., 673 F.3d 294 (4th Cir. 2012)........................................................................ 22

Runyan v. National Cash Register Corp.,
787 F.2d 1039 (6th Cir. 1986) (en banc)............................................. 16

Sloas v. CSX Transportation, Inc.,
616 F.3d 380 (4th Cir. 2010)................................................................. 20

United States v. Buchanan, 638 F.3d 448 (4th Cir. 2011)...................... 5

United States v. Lindsey, 634 F.3d 541 (9th Cir. 2011)........................... 5

Wynne v. Town of Great Falls, South Carolina,
376 F.3d 292 (4th Cir. 2004)................................................................... 5

Statutes

Age Discrimination in Employment Act.......................................... passim

.... 29 U.S.C. § 626(b)...................................................................... 2–3, 5, 14

.... 29 U.S.C. § 626(f)(1)–(2)........................................................................ 14

Fair Labor Standards Act........................................................... 3–4, 13–14

.... 29 U.S.C. § 216(b).......................................................................... 2–3, 14

.... 29 U.S.C. § 216(c)................................................................................... 14

Rules

Fed. R. App. P. 28(a)(8)(B)......................................................................... 21

Argument

In its opening brief, the Commission argued that back pay is a mandatory remedy for ADEA violations. We also contended that even if back pay were a discretionary remedy, the district court abused its discretion in ruling that the Supreme Court’s Title VII decisions, the unions’ purported complicity, and/or laches justified immunizing Baltimore County from any monetary liability in this case. In its responsive brief, the county consistently fails to respond to the specific arguments the Commission made, instead merely reiterating at length the district court’s opinion and reasoning and, further, mischaracterizing certain aspects of the record. We submit this reply brief to explain why the Commission’s arguments in its opening brief are not answered by the district court’s decision itself—or by the county’s brief echoing that decision—and to clarify the record.

A. Baltimore County contends that the district court properly ruled that back pay is not a mandatory remedy for ADEA violations. BC Br. 8. The county first maintains that the statute’s plain language dictates this rule. BC Br. 9–10. But it can make this argument only by ignoring the plain statutory language stating that back pay is a mandatory remedy. The first sentence of 29 U.S.C. § 626(b) states that the ADEA’s provisions “shall be enforced in accordance with the powers, remedies, and procedures” provided in § 216(b), and § 216(b), as modified by § 626(b), states that “[a]ny employer who violates the [ADEA’s] provisions . . . shall be liable to the employee or employees affected” for back pay. 29 U.S.C. §§ 626(b) (emphasis added), 216(b) (emphasis added). This language plainly mandates back pay as a remedy for ADEA violations. See EEOC Br. 10–17. “‘[S]hall’ is ‘mandatory’ and ‘normally creates an obligation impervious to judicial discretion.’” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)). The county simply ignores this statutory language.

Moreover, since the county ignores the language stating that back pay is mandatory, it also fails to offer this Court a path for reconciling the first sentence of § 626(b), which states that back pay is mandatory, with the fourth sentence, which suggests it may be discretionary. The Commission offered a path for reconciling those two sentences, a path that preserved the mandatory nature of the back pay remedy as emphasized in the first sentence, EEOC Br. 18–21, and the county has offered no response to that portion of the Commission’s brief.[1]

Second, the county maintains that the Commission has failed to cite “a single case that supports its argument,” BC Br. 11, but it then concedes that we cited Lorillard v. Pons, 434 U.S. 575 (1978). EEOC Br. 11–15. The county also ignores the fact that the Commission cited Maxfield v. Sinclair Int’l, 766 F.2d 788, 794 (3d Cir. 1985) (“[U]nlike Title VII, backpay under the ADEA is not discretionary, since it incorporates the provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b) (1982), making backpay a mandatory element of damages. 29 U.S.C. § 626(b).”), disagreed with on other grounds, Duke v. Uniroyal Inc., 928 F.2d 1413, 1421–24 (4th Cir. 1991); and EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251–53 (11th Cir. 1997) (“[B]ack pay is ‘a mandatory element of damages’ under the ADEA.”) (quoting Maxfield, 766 F.2d at 794); as well as several decisions holding that liquidated damages are a mandatory remedy for willful ADEA violations. EEOC Br. 15–18.

The county then contends that Lorillard does not support the Commission’s mandatory-remedy argument. But Lorillard plainly stated—even if it did not hold—that back pay is a mandatory remedy under the ADEA.[2] Moreover, that statement was not dictum, because it was part of the Court’s reasoning for rejecting the employer’s argument that the Court should rely on the parallels between the ADEA and Title VII in denying ADEA plaintiffs a right to a jury trial. 434 U.S. at 583–84; see Lair v. Bullock, 697 F.3d 1200, 1206 (9th Cir. 2012) (in considering impact of intervening Supreme Court decisions, court of appeals focuses on “‘the reasoning and analysis in support of a holding, rather than the holding alone’”) (quoting United States v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011)) (emphasis in Lindsey). And even if it were dictum, it should hardly be ignored. See Wynne v. Town of Great Falls, S.C., 376 F.3d 292, 298 n.3 (4th Cir. 2004) (“‘[C]arefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.’”) (quoting Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003)). Indeed, this Court has relied on this precise portion of Lorillard. See Fariss v. Lynchburg Foundry, 769 F.2d 958, 964 (4th Cir. 1985) (citing Lorillard for the proposition that “‘amounts owing’ under the ADEA, § 626(b), are legal damages, unlike the equitable remedies directing employment, reinstatement and promotion”).

The county points out that the district court found support for its ruling in the fact that Lorillard quoted the fourth sentence of § 626(b) (granting jurisdiction to award both legal and equitable relief) without commenting on any tension between that sentence and the Court’s holding. BC Br. 12 (quoting JA-94). Arguments from silence are often problematic. See, e.g., United States v. Buchanan, 638 F.3d 448, 456 n.8 (4th Cir. 2011) (silence can often “be interpreted in a variety of ways”). But those open to such arguments may well be more impressed with the fact that Lorillard failed to comment on any tension between the fourth sentence and the Court’s own statement that back pay is mandatory, not discretionary, under the ADEA. 434 U.S. at 581–85. Indeed, the Court stressed that the fourth sentence referred to back pay as legal, not equitable, relief. Id. at 583 & n.11.

B. The county next maintains that the district court properly ruled that the Supreme Court’s Title VII decisions involving public pension plans—City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978); Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983); and Florida v. Long, 487 U.S. 223 (1988)—support denying relief here. BC Br. 12–17. Relying heavily on the district court’s decision, the county makes no arguments that the district court did not make and cites no decision that the district court did not cite. The county then simply states: “EEOC has not offered any refutation in its Brief of the district court’s analysis, reasoning or conclusion.” BC Br. 17.

In our opening brief (pp. 31–36), the Commission challenged the district court’s reasoning and ruling on three levels. First, we argued, Manhart, Norris, and Long addressed when courts should award back pay under Title VII, where it is a discretionary remedy. E.g., Manhart, 435 U.S. at 718 (“Title VII does not require a district court to grant any retroactive relief.”). The district court therefore erred in ruling that those decisions also govern when courts should award back pay under the ADEA, where it is a mandatory remedy. EEOC Br. at 31–32.

Second, we explained, Manhart, Norris, and Long set forth in detail the Court’s reasons for denying retroactive relief in those cases. Millions of workers across the country belonged to affected pension plans. Almost all pension plans used sex-based actuarial tables, and, until Manhart and Norris, plan administrators reasonably believed it was lawful to do so (and unlawful to do otherwise). Manhart and Norris revolutionized the pension industry by barring pension plans from using sex-based actuarial tables in determining their members’ contributions and benefits, and awarding retroactive relief to millions of female employees and retirees would threaten the financial stability of the plans and injure innocent third parties. The Court also believed that plan administrators would comply promptly and voluntarily with the new rule. See Manhart, 435 U.S. at 719–23; Norris, 463 U.S. at 1091–95, 1105–07; Long, 487 U.S. at 230–40.

The Commission contended in its opening brief that the Manhart–Norris–Long rule against retroactive relief should not apply here at all because the facts and circumstances here are so different. Rather than being nearly universal, the challenged practice is evidently unique to Baltimore County. The county had no reasonable basis for believing that age-based contribution rates were lawful, and the decisions finding the county liable did not announce new ADEA law or overturn widespread beliefs or actuarial assumptions. Moreover, the county refused to alter the challenged salary deductions even after the district court and this Court had declared them unlawful. EEOC Br. 33–34.

The Commission also argued that, even if this Court decided that the Manhart–Norris–Long rule justified denying retroactive relief for the period preceding this Court’s decision affirming the county’s liability, none of the factors counseling against retroactive relief were present here once the county knew that the challenged contribution rates were unlawful. EEOC Br. 34–35.[3] The county has failed to respond to any of these three arguments.

The county maintains that the district court’s denial of relief is supported by how difficult and time-consuming it allegedly will be to determine the back pay due. BC Br. 16 n.2. The county cites no decision supporting this contention, presumably because courts confronting the argument have consistently rejected it. See, e.g., Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983) (“difficulty in calculating the backpay award” does not justify denying the award); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 260–61 (5th Cir. 1974) (in cases of long-standing and widespread discrimination, the difficulty of determining the back pay due was caused by the employer’s discriminatory conduct, and “any uncertainties in determining what an employee would have earned but for the discrimination, should be resolved against the discriminating employer”).

C. The county argues briefly that the district court’s denial of relief is supported by the unions’ alleged complicity in the discrimination. BC Br. 17–18. The county quibbles with the Commission’s reliance below on EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)—a case the Commission did not mention in its opening brief—but fails to respond to the arguments the Commission made and the decisions it cited to this Court. Unions that join employers in violating the ADEA do not relieve those employers of liability for their own violations, and unions cannot waive their members’ ADEA rights. See EEOC Br. 29–30; 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 265 (2009). The county cites no case holding or suggesting that an employer that discriminated should be immune from liability for back pay as long as a union was complicit in the discrimination.

D. The county contends that the district court’s denial of relief is supported by the EEOC’s unreasonable delay in bringing this suit, but it offers no response to either of the contrary arguments the Commission advanced in its opening brief. BC Br. 18–20. This Court has held, the Commission argued, that laches, an equitable doctrine, cannot be used to defend against a claim for legal damages. EEOC Br. 22–23. The county has not responded. The Commission also pointed out that a defendant seeking relief under laches or Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977), must establish that it suffered prejudice that was caused by the plaintiff’s unreasonable delay, but neither the district court nor the county ever identified any such prejudice that the county suffered in litigating this case. EEOC Br. 23–28. The county has not identified any such prejudice in its brief, and its failure to do so supports the Commission’s argument that there was none. The district court therefore improperly relied on laches or Occidental Life to deny the back pay that has accrued since the Commission sued.

E. The county closes by asserting that the Commission’s principal argument—that back pay is mandatory under the ADEA—is “completely undermined and contradicted by its concessions concerning the devastating impact mandatory retroactive relief would have on the ERS and the unreasonableness of it[s] delay in prosecuting this case.” BC Br. 20.

This Court should first whittle away the county’s inaccuracies and rhetorical excesses. The Commission, for example, has not conceded that mandatory retroactive relief here “would” have a devastating impact on the county’s pension plan. We have stated only that, as a general matter, retroactive liability “‘could’” have such an impact on pension plans. ECF 241-1 at 20 (quoting Manhart, 435 U.S. at 722). But in this case the Commission does not know how much back pay relief it could seek because it has not yet been granted the relevant discovery. Moreover, as the Commission explained in its opening brief (at 41–42), the county has never explained the basis for the $19 million figure mentioned in the county’s opening papers and relied on by the district court. The county’s failure in its brief to elucidate the basis for that figure supports the Commission’s argument that it is of no relevance to this appeal and should be ignored.

Second, the county’s argument conflates two quite distinct issues. Whether the district court is required to award back pay if an ADEA plaintiff has proven the violation and the amount due is an entirely different issue from whether an ADEA plaintiff is required to seek the maximum amount of back pay she believes she is owed, even if she believes that she is unlikely—due to legal difficulties or evidentiary problems, for example—to win a judgment for that amount. The Commission’s opening brief cited substantial authority for the proposition that back pay is a mandatory remedy in the first sense (that the district court must award back pay if a violation is proven), EEOC Br. 10–21, and, contrary to the county’s suggestion, BC Br. 21, the Commission does “whole[ ]heartedly subscribe to” this argument. But the county cites no authority for its novel theory that if a court must award back pay for proven violations, it follows that ADEA plaintiffs must always seek the maximum relief theoretically possible.

It is true that the Fair Labor Standards Act, whose remedial provisions the ADEA adopted in part, is designed to protect the rights of the most poorly paid workers in our economy: workers who may not know their legal rights or have access to counsel and who therefore are susceptible to undue employer pressure. See, e.g., Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (Congress’s primary purpose in enacting FLSA was “to protect all covered workers from substandard wages and oppressive working hours”); Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1352 (11th Cir. 1982) (Congress recognized “that there are often great inequalities in bargaining power between employers and employees.”). The FLSA accordingly incorporates safeguards to protect these workers and prevent them from releasing their claims without knowing their rights. See, e.g., Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015) (“[S]tipulated dismissals settling FLSA claims with prejudice require the approval of the district court or the [Department of Labor] to take effect.”).

But that fact highlights another important distinction that the county ignores: the distinction between FLSA or ADEA lawsuits brought by employee victims and those brought by the Secretary of Labor or the EEOC. The FLSA authorizes employees to enter settlement agreements with their employers if that agreement has been supervised by the Secretary, and it separately authorizes the Secretary to sue an employer on behalf of the employees. 29 U.S.C. § 216(c). Similarly, the ADEA authorizes the EEOC to sue an employer on behalf of a group of employees, 29 U.S.C. §§ 626(b), 216(c), as the EEOC has done here.[4] The FLSA and the ADEA both have provisions designed to protect individual employees from waiving their rights unknowingly or involuntarily, but both statutes presume that the governmental agency enforcing the statute can be trusted to exercise the same kind of prosecutorial discretion that any government prosecutor has, choosing the cases it brings and the remedies it seeks. See, e.g., In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002) (“The EEOC’s primary role is that of a law enforcement agency,” and courts should be reluctant to “interfere with the Commission’s exercise of its prosecutorial discretion.”); Waffle House, 534 U.S. at 291–92 (Title VII “clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake, [and] it is the public agency’s province—not that of the court—to determine whether public resources should be committed to the recovery of victim-specific relief.”); Massachusetts v. EPA, 549 U.S. 1438, 1459 (2007) (“As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.”).

Moreover, to rule that the Commission must always seek the maximum back pay theoretically supported by the law and the evidence would seem to preclude the Commission from ever settling an enforcement action for less than that theoretical maximum amount. Such a rule would not further the interests of the courts, the victims, the Commission, or the public. See, e.g., Ehrheart v. Verizon Wireless, 609 F.3d 590, 594–95 (3d Cir. 2010) (recognizing “strong presumption in favor of voluntary settlement agreements,” especially in “‘class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation’”) (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 784 (3d Cir. 1995)); Runyan v. Nat’l Cash Register Corp., 787 F.2d 1039, 1044–45 (6th Cir. 1986) (en banc) (stating, in pre-OWBPA case, that when ADEA plaintiff does not need protection from “overreaching or exploitation,” courts should follow “policy . . . of encouraging amicable settlement of honest differences between men dealing at arm’s length with one another”); Air Lines Stewards & Stewardesses Ass’n Local 550 v. Am. Airlines, Inc., 455 F.2d 101, 109 (7th Cir. 1972) (“[A]s a general proposition the public interest may indeed be served by a voluntary settlement in which each side gives ground in the interest of avoiding litigation. This is especially true within the confines of Title VII where ‘there is great emphasis . . . on private settlement and the elimination of unfair practices without litigation.’”) (quoting Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968)).

Accordingly, this Court should reject the county’s baseless argument that the Commission’s prosecutorial discretion is incompatible with the ADEA’s provision requiring courts to award back pay for proven violations.

F. Two additional aspects of the county’s brief warrant a response. First, while the county purports to offer this Court some “additional facts,” BC Br. 2, the “facts” the county offers are quite misleading. The county maintains that it was in fact discriminating in favor of the employees who were older when hired because those employees allegedly contributed less to the pension plan than they should have contributed using normal actuarial assumptions and calculations. Baltimore County Brief (“BC Br.”) 2–3. The county’s sole support for this contention is a table it reproduces from a letter drafted in August 2000 by Buck Consultants, the pension plan’s actuary. BC Br. 2 (quoting JA-71).

The county is misusing the table. The table’s original title was: “Level Annual Contribution as a Percentage of Salary Required to Accumulate a Reserve at Age 60 Sufficient to Fund a Life Annuity Equal to 1/120 times Final Average Salary times Service at Age 60.” JA-71 (emphasis added). As that title—and the remainder of that letter[5]—made clear, the figures in column C (and therefore also column D) of the table were calculated based on the assumption that the county’s employees could retire and receive normal retirement benefits only when they turned age 60. But most employees who were younger when hired could retire and receive normal retirement benefits well before then: i.e., after completing 20 or 30 years of service. The table therefore misrepresents what the employees “should” have been contributing to fund their pension benefits,[6] as the district court recognized in its October 2012 decision finding the county liable for violating the ADEA. JA-40 (the August 2000 table “merely demonstrates that the reduced contribution rates are advantageous to older workers, assuming a uniform retirement age of 60. The evidence does not address the impact of [retirement based on years of service].”). The table thus exemplifies and recapitulates the error that gave rise to the ADEA violation in the plan’s contribution rates: the county’s refusal—continuing to this day—to recognize the impact on those rates of the plan provisions allowing retirement with normal benefits based on years of service. The county seeks to mislead this Court by relying on calculations that the district court has already recognized were deceptive in this context.

The county next argues that the effect of its 1977 reduction in member contribution rates was “to more significantly reduce, on a percentage basis, older new members’ contribution rates than younger new members’ rates.” BC Br. 3. But as the county acknowledged in the immediately preceding sentence, the contribution rates for employees who were older when hired and the rates for employees who were younger when hired were each reduced by 7.65 percent: that is, they were reduced by precisely the same amount “on a percentage basis.” Moreover, the contribution rates for employees who were older when hired were still higher after the 1977 reductions than the rates for employees who were younger when hired. See BC Br. 2, table, figures in column B (person hired at age 55 must contribute 7.23 percent of her salary, while person hired at age 20 contributes only 4.42 percent).

Accordingly, neither the table prepared by the fund’s actuary in 2000 nor the 1977 reduction in contribution rates brings into the slightest question the district court’s October 2012 ruling that the pension plan’s contribution rates discriminate on their face on the basis of the employees’ ages at hire. And they provide no basis at all for ruling that the county is entitled to a “set-off” based on the county’s own contributions to the fund. See BC Br. 3.[7]

G. Finally, the county complains (BC Br. 6) that the Commission failed to articulate a standard of review. The Commission submits that its opening brief conveyed that this Court reviews a district court’s legal rulings de novo and its exercise of discretion for an abuse of that discretion. See, e.g., EEOC Br. 10 (“The district court erred in ruling that back pay is a discretionary remedy under the ADEA.”), 22 (“The district court erred in deeming laches available to reduce or eliminate legal damages.”), 23 (“Even if laches were available to reduce an ADEA back pay award, the district court abused its discretion in ruling that it justifies denying all monetary relief here.”), 36 (“[I]f this Court . . . rules that back pay is a discretionary equitable remedy under the ADEA, the district court still abused its discretion in denying all monetary relief here.”). See Fed. R. App. P. 28(a)(8)(B) (no separate section required). These are the standards of review applicable to this appeal.

The county contends that “this Court should review the district court’s factual findings for clear error.” BC Br. 7. But the county conceded two sentences earlier that the facts in this case “are essentially undisputed.” BC Br. 7. The district court did not conduct an evidentiary hearing, and it made no factual findings subject to clear error review. Two of the district court’s rulings resolve purely legal questions and are subject to de novo review: whether back pay is a mandatory remedy under the ADEA, and whether a defendant can raise a laches defense against a claim for legal damages. United States ex rel. Michaels v. Agape Senior Cmty., Inc., ___ F.3d ___, Nos. 15-2145 & 15-2147, 2017 WL 588356, *4 (4th Cir. Feb. 14, 2017) (questions of law reviewed de novo). The district court’s other rulings involve exercises of discretion: whether, assuming back pay is a discretionary remedy, the Supreme Court’s Title VII decisions, the unions’ alleged complicity, and/or laches justify denying all back pay relief in this case. See, e.g., Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir. 2012) (“[W]e review the district court’s application of the equitable doctrine of laches for abuse of discretion.”); Dotson v. Pfizer, Inc., 558 F.3d 284, 299 (4th Cir. 2009) (“We review a district court’s rulings on questions of damages for abuse of discretion.”). The county’s contention that these latter rulings are findings of fact subject to clear error review (see BC Br. 12) should be rejected.

Conclusion

The Commission argued in its opening brief that: (a) back pay is a mandatory remedy under the ADEA (based on the plain statutory language and on the case law), and that the district court therefore erred in denying any back pay relief; (b) the factors that Manhart, Norris, and Long relied on in denying retroactive relief in those cases are not present here; (c) the unions’ alleged complicity is irrelevant; and (d) the county did not suffer the prejudice required to rely on laches. The county has failed to address any of these arguments. This Court

should therefore vacate the district court’s order and direct the district court to grant the Commission’s motion.

[1] Another path for reconciling the two sentences is to adopt the Lorillard Court’s interpretation of the fourth sentence. Lorillard ruled that the fourth sentence referred to back pay as legal relief, not equitable relief. 434 U.S. at 583 & n.11. That sentence can therefore be read to give courts discretionary authority over the equitable remedies it mentions (“judgments compelling employment, reinstatement or promotion”), but not over legal damages (back pay). 29 U.S.C. § 626(b). This interpretation removes the apparent conflict between the first and fourth sentences, and it preserves the mandatory nature of back pay relief.

[2] Lorillard relied on the fact that there are “significant differences” between “the remedial and procedural provisions” of the ADEA and Title VII, one of which is that “the ADEA incorporates the FLSA provision that employers ‘shall be liable’ for amounts deemed unpaid minimum wages or overtime compensation, while under Title VII, the availability of backpay is a matter of equitable discretion.” 434 U.S. at 584 (quoting 29 U.S.C. § 216(b)).

[3] Indeed, the district court itself recognized that the situation changed once the county’s liability had been determined: “Like in Manhart, Baltimore County had reason to believe that its pension plan contribution scheme was entirely lawful prior to the determination of liability in the present case.” BC Br. 15 (quoting the district court decision at JA-103) (emphasis added).

[4] The ADEA also protects employees from waiving their ADEA rights unknowingly or involuntarily, but not by requiring EEOC supervision of settlement agreements. See 29 U.S.C. § 626(f)(1)–(2).

[5] See, e.g., JA-71–72 (steps 1–7 show that the calculations assumed all employees would retire at age 60); JA-73–74 (sample calculations designed to accumulate a sufficient reserve at age 60).

[6] The table’s column C entry for a police officer hired at age 20, for example, significantly understates what that officer “should” pay, because the table assumes that the officer will work (and contribute) until age 60, when she can in fact retire with full benefits at age 40.

[7] The county did not address its alleged entitlement to a set-off in its argument section, and it cited no authority supporting such an entitlement. It has therefore waived the argument. See, e.g., Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“A passing reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support of an issue waives it.”). In any event, the county is not entitled to a set-off for its contributions to the fund. See Sloas v. CSX Transp., Inc., 616 F.3d 380, 388–92 (4th Cir. 2010).