There are some interesting cases this month — involving attorney-client privilege, the status of national guard employees and union rights, another union issue, the Puerto Rico Financial Oversight and Management Board, and practical obstacles for enforcing the rights of students with disabilities — but in cases that have not received much public attention. So this might be a good month to attend arguments in person (although you can still listen in online live or later)!
Monday, January 9
Fans of unusual and amorphous legal structures and categories will enjoy today’s cases. We start with attorney-client privilege for communications that also (perhaps predominantly) cover subjects that are not privileged. In re Grand Jury, “Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.” See the useful summary and context from NAAG. The ABA also has an amicus brief celebrating the importance of the attorney-client privilege.
The next case gets more byzantine, involving technicians with the Ohio National Guard, who are “dual-status employees because their employment is ‘a hybrid, both of federal and state, and of civilian and military strains.'” Ohio Adjutant General’s Department v. Federal Labor Relations Authority (6th Cir. 2021), quoting Ill. Nat’l Guard v. FLRA, 854 F.2d 1396, 1398 (D.C. Cir. 1988). Past cases have found that although National Guards are state agencies, their role is largely controlled by federal law and, therefore, certain guard employees have rights under the Federal Service Labor-Management Relations Statute, the guards are executive agencies for purposes of that law when acting as such employers, and the Federal Labor Relations Authority has jurisdiction. Nevertheless, when Ohio attempted to end the union contract, it objected to FLRA jurisdiction when the union filed a series of Unfair Labor Practice (ULP) charges. Hence the intriguing question presented (although it’s about national guards specifically): “Whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.” See the link above for the 6th Circuit’s decision, or for interesting historical (and other) arguments, see this amicus brief from military law scholars.
Tuesday, January 10
Continuing the trend of intriguing questions presented is Glacier Northwest, Inc. v. International Brotherhood of Teamsters: “Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer’s property in the course of a labor dispute.” Essentially, the union initiated a strike while concrete was in mixing trucks, which … caused some difficulties for management. The Washington State Supreme Court held, in part, that “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.” A group of NYU and Yale tort law professors have sided with the union in their amicus brief.
(Just one case is scheduled for today)
Wednesday, January 11
Again just one case scheduled today, Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. The Board is refusing to produce financial records requested by a media organization (CPI), and argues that it is exempt from suit under the 11th Amendment and the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”). The Court has granted cert. on a broad question: “Whether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.” See the interesting and useful amicus brief from Reporters Committee for Freedom of the Press.
Monday, January 16 is Dr. King Day
Tuesday, January 17
An important but technical and procedurally complex immigration case is up first today, in Santos-Zacaria v. Garland. See the NAAG overview.
The second case involves Turkey and a major bank. After Halkbank was indicted for money laundering, it argued it was immune from prosecution under the Foreign Sovereign Immunity Act because the bank is majority-owned by Turkey. The Second Circuit held that the activity falls within the FSIA exception for commercial activity. The question is “Whether U.S. district courts may exercise subject-matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act.” Turkiye Halk Bankasi A.S. v. United States.
Wednesday, January 18
The case today is under the Individuals with Disabilities Education Act (IDEA). According to Ed Week, the case “involves Miguel Luna Perez, who is deaf and communicates through sign language. . . . His legal papers say that the district assigned a classroom aide to him who did not know sign language and who would sometimes abandon Perez for hours a day. Perez’s parents contend the district led them to believe their son was proceeding toward high school graduation, but they were informed that he only qualified for a certificate of completion.”
However, the arguments will focus on procedural issues, specifically the requirement to exhaust administrative remedies, as more fully explained by NAAG. An interesting amicus brief was filed by Sen. Tom Harkin and Cong. Tony Coelho and George Miller.