Puerto Rico – Prof. Zachary Wolfe, Esq.

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.

More interesting cases in the second week of November, involving state secrets, Puerto Rico residents’ entitlement to SSI, religious freedom claims in the context of the death penalty, and commercial advertising and the First Amendment.

Monday, Nov 8

First up is a “state secrets” case, FBI v. Fazaga. The case concerns “Operation Flex,” which recruited a fitness instructor to infiltrate a mosque. Several Muslims who were targeted filed various discrimination claims against the FBI. The FBI declined to disclose some information in the course of the litigation, asserting that doing so would harm national security (the “state secrets privilege”). In an interesting ruling, the 9th Circuit held that Foreign Intelligence Surveillance Act provisions allowing for in camera (judge-only) review meant that Congress had effected a limited waiver of this privilege and the judge could consider the evidence. Harvard Law Review has a very useful and accessible review of the law and details of this case.

[Today’s second case, Unicolors, Inc v. H&M Hennes & Mauritz, LP, involves Copyright Office procedures and isn’t recommended for the casual observer.]

Tuesday, Nov 9

A really interesting case involving Puerto Rico and equal protection claims, US v. Vaello-Madero. SSI disability payments are available to residents of the 50 states, DC, the Northern Mariana Islands — but not Puerto Rico (or Guam, American Samoa, or the USVI). After receiving benefits then getting cut off and sued by Social Security, the lower courts held that this exclusion from the Supplemental Security Income program violated the equal protection principle embedded in the due process clause of the 5th Amendment. Novel but fairly straightforward legal issues here. See this interesting amicus brief from 18 territories and states. arguing that the “Court should treat Congress’s discrimination against any state or territory in the context of nationwide aid programs with suspicion.”

Another interesting and important case is next, involving religious freedom in the context of pastor’s prohibited behavior during an execution. The pastor was allowed in the execution chamber, but could not touch the condemned person or pray out loud. Claims under the Constitution’s free exercise clause as well as the Religious Land Use and Institutionalized Persons Act. Again, important but fairly straightforward legal issues, but for an unexpected perspective, see this amicus brief from the Freedom From Religion Foundation arguing that “the Court’s recent, unprecedented expansion of the religious liberty protections under the Free Exercise Clause necessitates the conclusion that a state-sponsored execution substantially bur- dens the decedent’s religious liberty rights. . . . [T]he the Court must conclude that the execution itself is a violation of the Free Exercise Clause. It would be absurd to continue reviewing increasingly granulated end-of-life details for any hint of an encroachment on religious liberty, knowing that a far greater burden, without any rational justification, will immediately follow.” (And many other briefs in Ramirez v. Collier.)

Wednesday, Nov 10

Just one case today, Austin v. Reagan National Advertising of Texas Inc. involving a First Amendment claim about signs and billboards. The City of Austin allows digital signs for “on-premises advertising” (at the location where the business is located) but not elsewhere. A sign company is calling this unconstitutional discrimination. The legal resolution will likely turn on whether the regulation is “content-neutral” or “content-based.” Content-neutral restrictions on speech need only satisfy “intermediate scrutiny,” meaning it advances an important government interest through means that are substantially related to that interest. The Fifth Circuit held that “Because an off-premises sign is determined by its communicative content, we hold that the Sign Code’s distinction between on-premises and off-premises signs is content based” and therefore was subjected to strict scrutiny (a compelling governmental interest and narrowly tailored) and failed that test.

Tag: Puerto Rico

January cases