arbitration – Prof. Zachary Wolfe, Esq.

Final arguments of the term – April 22-25.

April 20, 2024April 20, 2024case suggestionsLeave a Comment

The last set of regularly scheduled arguments for the “October 2023 term” will take place April 22-25. Many extremely important and high-profile cases were saved for the end: anti-homelessness ordinances, immigration, union injunctions, abortion, and Trump’s claim of immunity.

Monday, April 22

The first case today concerns the Eighth Amendment and anti-homelessness ordinances. The Supreme Court has held that it is cruel and unusual, in violation of the Eighth Amendment, to punish someone for a “status” over which they have no control. Historically, this struck down laws that made it a crime not merely to use drugs but to be addicted to drugs – but obviously, it is very challenging to distinguish between laws that outlaw a status and laws that outlaw an action that one engages in as an inevitable consequence of that being in that status. In more recent years, the 9th Circuit, in particular, has applied this principle to bar the state from enforcing camping bans and similar anti-homelessness measures when there is inadequate shelter space or other free housing available. As Amy Howe notes in her useful argument preview, the rationale was that ”just as the city could not punish someone for their status – being homeless – it also could not punish them for conduct ‘that is an unavoidable consequence of being homeless.’” Now, in City of Grants Pass v. Johnson, an Oregon city asks the Supreme Court to reject that application of the principle. That city is joined in amici briefs supporting them filed by an extraordinary array of both progressive and conservative cities and half the states in the country.

It should be a fascinating argument. Expect it to run long; the Solicitor General is participating in the argument, which means that there will be a third round of each Justice getting to ask questions of the arguing lawyer after that person’s time has expired.

The Court hears a second argument this morning,

concerning the Federal Arbitration Act, but it is highly procedural and not one I would recommend to the casual observer. Briefly, plaintiffs brought a lawsuit in federal court then recognized that all claims are subject to mandatory arbitration. The court then dismissed the suit “without prejudice” (meaning the plaintiffs can re-file if something changes to create a viable legal theory). The trick is that the FAA instructs the courts to “stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. The Ninth Circuit held that the district court nevertheless had discretion to dismiss the case, rather than stay it, because all parties agreed that all claims were subject to arbitration. The Supreme Court has granted cert. on precisely that (“Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.”).

Tuesday, April 23

Department of State v. Muñoz involves the rights of a U.S. citizen to demand due process for their non-citizen spouse. Muñoz married a citizen of El Salvador and later filed a family-based immigrant visa petition. All was proceeding well for them until the final step, which was for the husband to return to El Salvador for an in-person interview at the US Embassy. The consular officer rejected his visa application, apparently out of suspicion that his tattoos signified gang affiliation. 8 U.S.C. § 1182(a)(3)(A)(ii) is a “catch-all provision” permitting consular officers to reject anyone they believe will participate in “unlawful activity” in the United States. The citizen wife brought suit in federal court, and the Supreme Court has granted cert. on two issues: “(1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due.”

It should be interesting arguments. There is an additional interesting overlay in that Congresswoman Judy Chu attempted to intervene but was stymied by State — so also take a look at the amicus brief from Members of Congress on the role of Congress.

The second argument today

is procedural but an important and interesting issue of labor rights. In Starbucks Corp. v. McKinney, workers organized a union at Starbucks and seven of them were fired; their union filed unfair labor practices charges with the National Labor Relations Board. McKinney is a regional director of theNLRB, who petitioned a federal court for an injunction returning the employees to work, pending completion of the Board’s proceedings. The court agreed and granted the requested order.

The National Labor Relations Act specifies that the NLRB may “petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred . . . for appropriate temporary relief.” 29 U.S.C. § 160. Courts have interpreted this to mean that an order should be granted if there is “reasonable cause” to believe the unfair labor practice occurred and the relief requested is “just and proper,” and both the lower court and the Sixth Circuit agreed that standard was met here. But Starbucks argues that the courts should instead apply the typical four-factor test for other forms of preliminary injunctions. Like other Circuits, the Sixth held that the other test is not applicable to the powers of the NLRB specifically authorized by federal statute. The Supreme Court has accepted cert. to resolve which standard should be applied to NLRB-sought injunctions. See an interesting amicus brief by labor and employment law professors.

Wednesday, April 24 – abortion

A specific application of the abortion debate and healthcare access today, in a case that I’m surprised we haven’t heard more about, Moyle v. U.S. Idaho criminalizes nearly all forms of abortion, except those that are “necessary to prevent the death of the pregnant woman,” ectopic pregnancy, or rape or incest in limited circumstances; it does not provide an exception for health of the mother. Federal law, however, requires hospitals that receive federal funds to provide “necessary stabilizing treatment” for any “emergency medical condition.” Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd(b).

After Dobbs, HHS issued a formal guidance document interpreting EMTALA and concluding that federal law preempts state law, such that “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

The Idaho law has, since then, been challenged and received different preliminary outcomes in several court proceedings. See the NWLC fact sheet for full details. Arguments and lines are quite predictable, so I won’t say more except to point out an interesting amici brief from “current and former local prosecutors and law enforcement leaders from across the country” arguing that EMTALA should preempt state laws because “these state laws ask prosecutors and law enforcement—like amici—to second-guess emergency room physicians’ judgments about these indeterminate medical matters when initiating investigations, arrests, or prosecutions.”

Thursday, April 25 – Trump immunity

Trump v. U.S. is the case in which “Trump claims absolute immunity from criminal prosecution for all ‘official acts’ undertaken as President, a category, he contends, that includes all of the conduct alleged in the Indictment” for conspiring to overturn the election. The full D.C. Circuit opinion is really worth your time to review; many observers were surprised the Supreme Court didn’t just deny cert. and let that decision stand. Amy Howe also has a useful summary. Expect extreme lines and lots of activity out front for this one.

October 2018 term opening (& more)

September 3, 2018case suggestions

First Monday brings environmental law and age discrimination cases, with other cases this month involving sex offender registration, execution of people with mental disabilities, arbitration agreements, detention of noncitizens, and liability for Navy sailors’ exposure to asbestos.

I also want to highlight a few cases that will be heard sometime this term but have not yet been set for argument. I’ll have posts on each in the weeks before the argument.

Gamble v. United States asks “Whether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.” This is the doctrine that allows the federal government to charge someone even if they have been tried (and even if acquitted) for the same conduct in a state trial (assuming the same conduct is illegal under both federal and state law). This could have extremely far-reaching implications.
Timbs v. Indiana: “Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.” So odd that this has not been resolved by now!
Nieves v. Bartlett: “Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.” Ie, do you have a case if you did something illegal but it’s clear that the real reason the police arrested you was because they didn’t like the content of your speech?

And outside the Supreme Court (for now!), the climate change lawsuit brought by young people against the EPA has survived the initial efforts to dismiss the case and is worth watching.

Now, on to the first two weeks of the term:

Monday, October 1

The first case, Weyerhaeuser v. US Fish & Wildlife Service, involves the Endangered Species Act and deference to administrative agency interpretations. US Fish and Wildlife designated land owned by Weyerhaeuser as critical habitat for the dusky gopher frog. The frog has not actually been on that land for decades, but the land could be made suitable for them, and FWS interpreted the ESA as allowing such land to be considered critical habitat, even if not currently habitable. In siding against Weyerhaeuser, the Fifth Circuit held that the agency’s interpretation was entitled to deference. That’s an important concept in administrative law and likely will be a focus of the argument, so it’s worth reading the Circuit Opinion as well as this general overview.

Next is Mount Lemmon Fire District v. Guido, interpreting the Age Discrimination in Employment Act. ADEA defines covered employers to mean “a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U.S.C. § 630(b). The 9th Circuit read the two sentences as separate, so even small political entities (like the fire district here) are covered. Other Circuits have held the opposite, and the Court has accepted cert. to resolve the “circuit split.” It should be an interesting argument; before attending, take a look at an amicus brief from the employee side and another from the government’s side.

Tuesday, October 2

Two criminal law cases today. The first, Gundy v. United States, involves the Sexual Offender Registration and Notification Act and the nondelegation doctrine. Nondelegation holds that Congress may not grant too much lawmaking authority to the Executive branch. Congress routinely grants administrative agencies and officers considerable powers to make regulations, but it must at least spell out an “intelligible principle” that the Executive must follow (and that courts can require them to follow) in carrying out that discretion. The nondelegation doctrine struggles to allow for the complex administrative state we have without completely abandoning the system of checks and balances. In this case, SORNA authorizes the Attorney General to decide the circumstances under which the law would have retroactive effect. Take a look at the amicus brief from a group of legal scholars.

Next up is a death penalty case, in the context of a mental disability that leaves the prisoner with no memory of committing the offense. See the interesting discussion from the American Psychological Association. The official legal question presented in Madison v. Alabama is:

Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Wednesday, October 3

The first case today, Knick v. Township of Scott, Pennsylvania, is not one that I would generally recommend for a casual observer. It involves the takings clause, which always gets some interest, but this particular case has some procedural complications and is only addressing the “exhaustion of remedies” issue. But if you’re interested in it, or going for the second case, then read up on it here.

Arbitration agreements have become increasingly common, and in the past several years the Supreme Court has been holding that the Federal Arbitration Act (FAA) preempts a wide array of state law doctrines that had limited their enforceability. Generally, if someone files a lawsuit but there’s a valid arbitration agreement, then the FAA requires the court to dismiss the case and send the dispute to arbitration. Today the Court takes on “arbitrability” — who decides if there is a valid arbitration agreement? Some arbitration agreements require that an arbitrator decide all questions, including whether the arbitration agreement covers the particular dispute. New Prime Inc. v. Oliveira involves transportation workers, and the FAA specifically exempts transportation workers, so the lower courts held that they did not need to consider those recent FAA preemption cases. But the Court has granted cert. on:

(1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

This one will be heavily watched by business and consumer and employee advocates. Take a look at the Public Citizen overview and its amicus brief. Also note that the Court has accepted cert. in two other arbitration cases this term: Lamps Plus and Henry Schein will be argued Oct 29; more on them to come in a later post.

[the Court does not hear arguments on Columbus Day]

Tuesday, October 9

All three cases today involve statutory interpretation of terms in the Armed Career Criminal Act. Stokeling v. United States will be argued first and separately, and involves the requirement of enhanced penalties for people with prior “violence felonies.” Stokeling argues that his prior robbery conviction did not involve a use of force sufficient to constitute violence, but precedent has required a “categorical approach” to deciding if the prior conviction was for a crime that is a violent felony. US v. Sims and US v. Stitt are consolidated for one hour total and both involve the same question: “Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act.”

Wednesday, October 10

Nielsen v. Preap is about detention of noncitizens who have been convicted of a crime. Ballotpedia offers a useful summary; follow the link for more and key documents:

Under the mandatory detention provision of the Immigration and Naturalization Act, the government is required to detain noncitizen U.S. residents who were convicted of certain crimes “when…released” from criminal custody. The government had relied on this provision to begin detaining lawful permanent residents years after their release from criminal custody. Three filed suit, alleging that because they were not detained immediately when they were released from criminal custody, the government could not rely on the mandatory detention provision to hold them without bond. The Ninth Circuit agreed, ruling that the mandatory detention provision only applies to noncitizens who are detained by immigration authorities promptly following their release from criminal custody.

The second case today, Air and Liquid Systems Corp. v. Devries, raises some technical jurisdictional and common law issues, but comes in the context of wrongful death claims by widows of Navy sailors who died from cancer after exposure to asbestos in the course of their service. They brought suit against the manufacturers of products that contained asbestos. There has been a lot of asbestos litigation over the years, resulting in development of various liability doctrines. But because of the context, the Court has accepted cert. on something new: “Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.”

October 2017

August 10, 2017case suggestions

The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering. I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available. (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)

One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018. The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22. So I would expect oral arguments in January or February, although it could be as early as December.

“First Monday,” October 2

The 2017 term opens with the issue of mandatory arbitration clauses. The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges. In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act. Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.

The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.” Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.

Tuesday, October 3

The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term. In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts. The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role. A good summary is here, with a set of thoughtful positions collected here.

The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.

Wednesday, October 4

This is a criminal law day, with both cases coming out of Washington, DC. The first involves probable cause and qualified immunity. Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful. In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house. Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet. Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission. They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity. The Court has accepted review of both questions.

The second case, Class v. US, is a criminal procedure case in the context of gun laws. Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol. He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited. A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car. He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims. He then appealed, but the appellate court held the guilty plea waived his right to appeal. The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?” This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).

(the Court does not hear cases on Monday, which is Columbus Day)

Tuesday, October 10

This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii. I don’t have anything to add to the extensive commentary on these cases…. Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives. It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).

The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.

Wednesday, October 11

The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.” I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.

The second case involves corporate liability under the Alien Tort Claims Act. The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas. The Court has accept cert. on the question of whether corporations can be sued under the ATCA. Scotusblog has some good background.