fsia – Prof. Zachary Wolfe, Esq.

January cases

January 3, 2023case suggestions

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.

Nov 30 & December cases

November 17, 2020case suggestions

The Court returns after Thanksgiving week with a number of major cases, some of which are getting a great deal of attention and others are deserving of more attention. [This blog took a brief hiatus for the early November cases, for personal reasons and because the ACA and other cases were getting plenty of coverage. But I’m back now.]

Monday, November 30 – Trump v. NY

Trump v. New York is partially about the census but most importantly about representation in the House of Representatives. Scotusblog pithily sets the context:

Under the federal laws regulating the census, the secretary of commerce is required to provide the president with a state-by-state breakdown of the total population of the United States, which is then used to allocate seats in the House. The dispute now before the court centers on a July 2020 memorandum by President Donald Trump that directs Wilbur Ross, the secretary of commerce, to include information in the state-by-state breakdown that would enable Trump to exclude people who are in the country illegally from the apportionment calculation. Within a few days after the memorandum was issued, New York and other state and local governments, along with several immigrants’ rights groups, filed a lawsuit in federal court to challenge the memorandum.
Amy Howe, Court fast-tracks census appeal, SCOTUSblog (Oct. 16, 2020, 7:13 PM), https://www.scotusblog.com/2020/10/court-fast-tracks-census-appeal/

In 2016, the Court considered a related but distinct issue in a case brought by voters who wanted to require their state to draw voting districts such that each would include a roughly equal number of eligible voters (rather than roughly equal total population). The Court rejected that claim in Evenwel v. Abbott, but held only that basing districts on total population was a permissible system that did not violate the principle of one person, one vote. The Court did not consider whether a state had to choose such a system (“we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population”).

Beyond the issues in Evenwel, this case raises additional important issues regarding the role of the federal government and the census specifically. I recommend perusing at least a few amici briefs in addition to the Scotusblog overview linked above. The briefs collected here notably include NAACP LDEF, Former Directors of the US Census Bureau, and Common Cause.

The second case today involves the Computer Fraud and Abuse Act — a broad law that makes for strange ideological alignments and opposition. In Van Buren v. United States, a police officer is accused of taking money in order to look up license plate information on a system he had legal access to for work purposes. The Electronic Privacy Information Center supports the prosecution, while Electronic Frontier Foundation opposes this reading of the statute.

Tuesday, December 1

First up is an argument that should be getting more public attention:

Nestlé USA and Cargill are alleged to have contributed to a system of child slavery and forced labor in the Ivory Coast for decades. Plaintiffs are six people who were trafficked from Mali and formerly enslaved as children on cocoa plantations in the Ivory Coast as part of this system.
https://ccrjustice.org/home/what-we-do/our-cases/doe-et-al-v-nestl-usa-inccargill-inc-amicus

The case is brought under the Alien Tort Claims Act — a law passed by the first Congress, creating a right for non-citizens to sue for violations of international law that occurred abroad. There has been much controversy in recent decades over the intent and scope of the law. Arguments based in the history of the law run the gamut from a claim that this was really about piracy on the high seas and nothing more, to claims that this was a desire to make the US a place where victims of human rights abuse could come for refuge and to seek justice, to something of a mid-point that we at least did not want the US to be a place where bad international actors could have refuge from accountability. Some human rights advocates have used the ATCA, but the Court has been severely limiting its scope over the past several years. Take a look at this interesting amicus brief by professors of legal history, and at this one by smaller cocoa producers (“Amici are at a competitive disadvantage to companies that source cocoa produced with forced and trafficked child labor”).

The two cases, Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, are consolidated for one hour of argument.

[The second case today, CIC Services LLC v. IRS, involves the Anti-Injunction Act and challenges to tax regulations, and is not one I would recommend for the casual observer.]

Wednesday, December 2

The first argument today is a major case involving House committee access to grand jury materials from the Mueller investigation: Dept. of Justice v. House Committee on the Judiciary. I needn’t say more here; see the Scotusblog overview (or probably a huge amount of news coverage to come closer to the arguments).

The second argument today will likely be overshadowed but is an important and interesting criminal law case. It was only in 2020 that the Court held that criminal convictions require a unanimous verdict. Ramos v. Louisiana. In today’s case, Edwards v. Vannoy, the Court will decided whether that decision “applies retroactively to cases on federal collateral review.”

Monday, December 7

On this anniversary of Pearl Harbor Day, the Court will hear two cases involving property taken during World War II. The legal issues in both cases involve whether the Foreign Sovereign Immunities Act bars lawsuits against Hungary and Germany under these circumstances. The factual contexts in the two cases are summarized by Oyez:

Republic of Hungary v. Simon

Rosalie Simon and other respondents in this case are Jewish survivors of the Holocaust in Hungary. They sued the Republic of Hungary and other defendants in federal court in the United States seeking class certification and class-wide damages for property taken from them during World War II. Importantly, they did not first file a lawsuit in Hungary. Rather, they invoked the expropriation exemption of the Foreign Sovereign Immunities Act in claiming the federal court had jurisdiction, though their substantive claims arose from federal and D.C. common law.
https://www.oyez.org/cases/2020/18-1447

The Court has accepted cert. on “Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.”

Republic of Germany v. Phillip

In 1929, just weeks before the October 1929 global stock market crash, several Jewish art dealers in Germany purchased a collection of medieval reliquaries. During the ensuing global depression, the dealers sold about half the pieces and stored the remainder in the Netherlands. Nazi leaders negotiated with the dealers to buy the remaining pieces; the parties dispute whether this negotiation was made under coercive circumstances. After World War II, the collection was transferred to Stiftung Preussischer Kulturbesitz (“SPK”), a German governmental institution that holds the cultural artifacts of former Prussia, and has been on display in a German museum nearly continuously since then.
In 2014, heirs of the Jewish art dealers—respondents in this case—participated in a non-binding mediation process before the Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (the “Advisory Commission”). In what the heirs describe as a “predetermined conclusion, and against the evidence,” the Advisory Commission recommended against restitution of the collection.
https://www.oyez.org/cases/2020/19-351

For this case, the Court has accepted cert. on:

(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.

Both cases have been consolidated for a total of 90 minutes of oral argument.

Tuesday, December 8

The first case today, Facebook v. Duguid, involves whether Facebook violated federal law by sending automated text messages. Facebook users can enter a cell phone number to be alerted of authorized access attempts. Duguid never signed up for Facebook but started receiving such text messages and could not make them stop. He sued under the 1991 Telephone Consumer Protection Act (TCPA), which prohibits using an autodialer (or automatic telephone dialing system (ATDS)).

TCPA defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The case today is essentially a grammatical issue — whether it’s a fair reading to define an autodialer as something that can “store . . . numbers to be called” or only one that can “store . . . numbers to be called, using a random or sequential number generator.” The 9th Circuit held that Facebook’s automated system fit that definition. On the contrary, “Facebook asserts that a system lacking the capacity to randomly or sequentially generate numbers cannot be an ATDS, even if it can store and automatically dial them.” See this useful overview of the legal and commercial issues.

Next up is arbitration agreements — a subject of many Supreme Court decisions in recent years, including in earlier stages of this same dispute, Henry Schein, Inc. v. Archer and White Sales, Inc. In general, the Supreme Court has been interpreting the Federal Arbitration Act to require courts to send many disputes to arbitration if the parties had agreed to arbitrate such disputes. But an open question is who decides if the parties have agreed to arbitration, especially if the contract contains a provision that otherwise appears to grant the arbitrator authority to interpret the meaning of the contract. This dispute in particular involves agreements that incorporate the rules of the American Arbitration Association, which some courts have held is sufficient to constitute agreement to have the arbitrator decide “questions of arbitrability,” but which the Fifth Circuit held was not controlling in this case. This is an important case because of the sheer number of contracts (including online terms of service for which people reflexively hit “agree”) that include arbitration clauses, but the arguments may be a little difficult to follow. The amicus brief by a group of arbitrators and arbitration scholars may help.

Wednesday, December 9

The last set of December cases involves the Federal Housing Finance Agency (FHFA), which was created to oversee Fannie Mae and Freddie Mac following the 2008 financial crisis. The legal issues start with the structure: a single agency head who could be removed by the President “for cause,” raising separation of powers issues. Then there is the question of severability; can other agency powers survive if the appointment provisions are unconstitutional? And then there are various factual details surrounding exactly what the FHFA did and how it impacted the Fannie Mae shareholders. (And don’t get excited about all the mention of the “Third Amendment” — it’s not about quartering soldiers, but renegotiated terms between FHFA and Treasury!) In short, an important set of cases but it could be difficult to follow. Oyez has a useful start, then see the Fifth Cir. opinion.

February & Early March Cases

February 13, 2020case suggestions

The next block of arguments will occur in the last week of February and first week of March—with a large number of very significant cases. It starts with an important case involving federal lands that has not received much attention, followed by other important cases including a really interesting one in the context of free speech related to illegal immigration and another questioning the whole “expedited removal” process, then the CFPB case, and finally ending on March 4 with one of the more high-profile cases of the term, involving access to abortion.

Monday, February 24

First is a case that has not received much public attention but represents an important contest over whether the Trump Administration can authorize commercial activity on federal land in apparent violation of enacted laws. The Federal Energy Regulatory Commission awarded a right-of-way to Atlantic Coast Pipeline LLC so it could construct a natural gas pipeline across the Appalachian Trail within the George Washington Forest, despite laws that specify that such rights-of-way may be granted on federal lands “except lands in the National Park System.” 30 U.S.C. § 185(b)(1). An environmental organization successfully sued to block this action, with the Fourth Circuit holding that the Appalachian Trail is a “unit” of the National Park System and therefore the Mineral Leasing Act “specifically excludes” the Trail “from the authority . . . to grant pipeline rights of way.” The Administration is arguing, among other things, that the Appalachian Trail is not “land” within the meaning of these laws, which one group of amici seized on: “Petitioners’ first response (USFS Br. 19; ACP Br. 18) to that straightforward reading of the relevant statutory texts is that the AT is not ‘land’ at all but is instead merely ‘a trail’ or ‘a footpath’ that metaphysically crosses land. That argument is too clever by half.” I recommend reviewing that brief from NRDC and other groups, which offers a useful overview of the arguments. [There are two cases, US Forest Service v. Cowpasture River Assn. and Atlantic Coast Pipeline, LLC v. Cowpasture River Assn., but they have been consolidated for a total of 1 hour of argument.]

The second case is a terrorism case that also has not received much attention, likely because it involves fairly technical issues of interpretation of the Foreign Sovereign Immunities Act. The suit is against Sudan and alleges that it sponsored Al-Qaeda and bears liability for deaths and injuries of US government employees and contractors in the 1998 embassy bombings in Kenya and Tanzania. Congress amended the FSIA in 2008 to allow for punitive damages in cases of state-sponsored terrorism; the question for the Court today is whether that amendment applies retroactively. Opati v. Republic of Sudan.

Tuesday, February 25

Today is an important First Amendment case in the context of illegal immigration. Federal law provides for imprisonment of anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” 18 U.S.C. § 1324(a)(1)(A)(iv). Based on those words alone, the statute might be read to criminalize a wide range of political advocacy that would be Constitutionally protected, such as editorials describing immigration law as immoral and illegitimate bars on entry by people fleeing oppression. Although incitement and solicitation of illegal activity may be criminalized under longstanding First Amendment doctrines, “abstract advocacy” of illegal activity is free speech. The line is often difficult to describe and cases typically address the issue in theoretical terms. That’s the case in today’s US v. Sineneng-Smith. Evelyn Sineneng-Smith continued to file green card applications (and charge her clients) under a specific program even though that program had ended. She was convicted of both mail fraud (which is no longer being contested) and under this “encourage or induce” provision. Speech that is part of a criminal scheme is not protected, but in First Amendment cases, we often look to the language of the statute and courts will strike down the law if it is “overbroad” even if the specific defendant before them did something that the Constitution would allow the government to criminalize under a more carefully drafted statute. Prof. Eugene Volokh’s amicus brief offers a compelling examination of the importance of the questions in this case. There’s also an interesting NYT article about the case.

Wednesday, February 26

The only case today is a technical issue under the Prison Litigation Reform Act, involving how to count the number of “strikes” against a prisoner who has had prior lawsuits dismissed. It’s not one I would recommend to the casual observer. Lomax v. Ortiz-Marquez

Monday, March 2

Two important immigration cases today, both involving different aspects of the power of the courts over the immigration process. The first, Nasrallah v. Barr, involves a member of the Druze religion who had been granted asylum in 2006 on the basis of an incident in which Hezbollah fired weapons at him and forced him to jump off a cliff to escape. But in 2013 he was convicted of receiving stolen property, which triggered a removal process. An immigration judge deferred removal, finding that he likely would face persecution if returned to Lebanon, but the Board of Immigration Appeals found that he was not in fact in danger because the guns weren’t aimed at him and he “voluntarily jumped.” The 11th Circuit refused to examine that finding, holding that it lacked power to review factual findings by the BIA. The Supreme Court has granted cert. on “whether the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” See this interesting amicus brief from a group thirty-three former immigration judges and members of the BIA, which argues that “[i]n light of the immense resource constraints of immigration courts, which amici experienced firsthand, it is crucial to have Article III court review of the underlying basis for a grant or denial of a [Convention Against Torture] claim.”

The second case, DHS v. Thuraissigiam, reviews a 9th Circuit decision that called into question the entire “expedited removal” process, finding that it lacked the “meager procedural protections” that the Supreme Court had required even for enemy combatants in Guantanamo — and therefore the statute denying courts authority to hear habeas petitions was invalid under the Constitution’s “suspension clause.” The Circuit decision itself offers a useful overview of the law and the circumstances this immigrant faced; also see this ABA Journal article and the organization’s amicus brief.

Tuesday, March 3

The legitimacy of the Consumer Finance Protection Bureau is being challenged on the basis of separation-of-powers concerns in Seila Law v. CFPB. The Constitution vests the President with the authority and duty to “take care that the laws be faithfully executed,” and this has traditionally meant broad authority to remove the heads of administrative agencies. But Congress on occasion creates “independent agencies” (with varying levels of actual independence) that it wants insulated from the political process. That’s been challenged on occasion as inconsistent with the constitutional scheme, but the Court has upheld various restrictions Congress has put on Presidential power over those agencies. CFPB is at the end of the continuum, though: it is funded independently through the Federal Reserve system and has only one director who serves a 5-year term and cannot be removed except for “inefficiency, neglect of duty, or malfeasance in office.” The case raises the question of whether Congress may so restrict the President’s authority to remove an administrative officer, but the Court may not reach that issue. It could instead read the “for cause” clause so broadly as to negate any separation-of-powers concerns, or it could hold that the petitioner lacks standing to raise the issue (it’s a law firm that refused to comply with a subpoena when the CFBP was investigating its telemarketing practices for consumer debt-relief services, which is a bit removed from the Constitutional issues). Scotusblog offers a useful overview and a symposium with a range of views.
There’s a lot of politics surrounding this case. Elizabeth Warren had a very significant role in the creation of the CFPB. Trump’s Solicitor General has declined to defend the constitutionality of the CFPB, so the Court asked Paul Clement (the Solicitor General under George W. Bush) to step in (he’s defended the structure but urged the Court not to reach that issue). And Justice Kavanaugh dissented when the issue was raised in a similar case when he was still on the DC Circuit (PHH Corp. v CFPB was decided 7-3 in favor of CFPB by the full DC Circuit in 2018).

The second case is an important but fairly procedural securities law issue. “Disgorgement” is essentially an order to surrender the ill-gotten gains. A 2017 Supreme Court case (Kokesh v. SEC) held that disgorgement is a form of “penalty” that is subject to a statute of limitations, but it left open the question of whether disgorgement was available as an “equitable remedy” (the ancient common law power of courts to craft appropriate responses to findings of guilt) in SEC enforcement actions when the statute of limitation is not a bar. Liu v. SEC asks that question directly. There’s an interesting NYT article that provides and overview and some details of the enforcement action, and this amicus brief by securities law scholars should really help you to follow the arguments.

Wednesday, March 4

Abortion cases are some of the most contentious and heavily watched argument days, and that was before the most recent batch of state laws following the presidential election. The June Medical Services cases (one with Russo as the petitioner and the other with him as the respondent; earlier cases will list Gee, the prior Secretary of the Louisiana Department of Health) involve a Louisiana law that requires doctors who perform abortions to have admitting privileges in a hospital with 30 miles. If that sounds familiar, it’s because the Court struck down a very similar Texas law in 2016 in Whole Women’s Health v. Hellerstedt. There, the Court found an “undue burden” after looking at the obstacles the law created as balanced against the benefits of the law. It noted that the benefits were minimal: complications are very rare and most occur in the days following the procedure, after the woman had gone home. As to burden, in the Texas case the record showed that about half the state clinics had been forced to close. Louisiana is focused on the “burden” half of the equation, arguing that it won’t be as serious there because the state only has 3 clinics and 4 abortion doctors total, and one already has admitting privileges and the others should be able to satisfy the new requirement. Again Scotusblog offers a symposium collecting a range of views.
This case will draw a huge crowd. Lines to get into the courtroom will form the day before (with some probably arriving days before), but one former student got in (barely!) for the LGBT/Title VII case in January by joining the line in the early afternoon the day before. So obviously no guarantee, but I’d say that if you’re willing to spend 24 hours in line, you’ve got a chance. If you’re not, then it can be a great experience to go to take in the demonstrations outside the Court. Protests will start during commuter hours the morning of the arguments and continue until the arguing counsel leave the court and give interviews and speeches out front. During and immediately after arguments are typically when the crowds outside are biggest and most active. The two cases are consolidated for one hour of argument, but they are the only arguments scheduled for today so I would expect them to run a little long. With bar admissions and decision announcements starting at 10:00, I would expect arguing counsel to be leaving the Courthouse around 11:30.