union – 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.

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.

February cases

February 13, 2018case suggestions

In the last two weeks of the month, the Court will hear arguments regarding union agency or “fair share” fees, political t-shirts worn to the voting booth, subpoenas to US companies for information stored on foreign servers, and other important issues.

Tuesday, February 20
(the Court observes Presidents Day on Monday)

Currier v. Virginia is a fairly technical issue regarding double jeopardy. The doctrine of “issue preclusion” aka “collateral estoppel” prevents re-trial of a fact that was necessarily determined by a jury in a prior case. So even if the defendant is not charged with the same crime, it might still constitute double jeopardy if the second criminal offense relies on a factual question that a jury resolved in favor of the defendant in an earlier trial. In this case, the defendant was accused of stealing guns. He had a prior felony conviction, so it would have been illegal for him to even possess the guns. With his agreement, the state first tired him for larceny and breaking and entering, and severed the charge of “felon in possession of a firearm.” The jury found in favor of the defendant in the first trial, but the state proceeded to try him for possession anyway, and this time convinced the jury. The issue is whether issue preclusion, and thus the double jeopardy clause, applies even where the defendant agreed to sever the charges. The arguments on both sides are described in scotusblog’s preview.

The second case today, City of Hays, Kansas v. Vogt, involves the right against self-incrimination, interestingly in the context of alleged police misconduct. Under threat of being fired, a police officer told his supervisors how he came into possession of a knife while on duty. He was then charged with a range of crimes, and although the charges were dropped before trial, the officer’s statements regarding the knife were used against him during a probable cause hearing. When he had trouble finding another job, he sued the City for violating his constitutional rights. The Fifth Amendment prohibits being “compelled in any criminal case to be a witness against [oneself].” It’s fairly settled that threat of termination is compelled, but is use during a preliminary proceeding covered by the amendment? The City is being represented by the UVA Law School’s Supreme Court Litigation Clinic, which has an useful story about the case. The Court accepted cert. on the question “Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.” A collection of government employers filed an amicus brief urging the Court to hold that the city cannot be held liable for the decision of the prosecutors; it will be interesting the see if the Court views this as within the scope of the question they agreed to review.

Wednesday, February 21

Both cases today will be a bit technical for the casual observer, but nevertheless should be interesting.

First, Rosales-Mireles v. U.S. involves waiver and plain error, in the context of illegal immigration. The defendant pleaded guilty to “illegal reentry” (returning to the US after being deported). He had a prior criminal history, which increases the sentence. However, the trial court counted a prior conviction for misdemeanor assault twice. The government concedes that this was in error and placed him in the wrong sentencing guidelines category (77-96 months instead of the correct 70-87 months; he got 78 months). However, there was no objection at the time of sentencing, which means that an appellate court may only correct it if it constitutes “plain error.” In the Fifth Circuit, this means not only obviously wrong but is the kind of error “that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” The Circuit held that this error was not of that nature, and declined or order re-sentencing. The Supreme Court has accepted cert. to resolve whether that final condition for plain error review is appropriate.

For the second case, Dahda v. U.S., the official question presented is probably sufficient: “Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.”

Monday, February 26

An extremely important case involving union “agency fees” or “fair share fees” is up first today, Janus v. AFSCME. In order to prevent discrimination based on union membership, the National Labor Relations Act requires that all employees be covered by a union contract — so workers are not getting different wages or working conditions depending solely on whether or not they joined the union. But negotiating, administering, and enforcing a contract costs money. Therefore, the Supreme Court held in Abood v. Detroit Board of Education (1977) that even employees who decline to join the union can be required to pay the union for these expenses. Unions are required to calculate their spending precisely, and bill non-members an appropriate fraction of the membership fee; only money collected from voluntary members may be spent on non-workplace activities (like electoral campaigns). This principle has been under attack in recent years, and many people predicted that Justice Scalia would have been the fifth vote to reverse these precedents if he hadn’t died after cert. was granted in Friedrichs v. California Teachers Ass’n but before a decision was issued. The resulting 4-4 split left in place the Circuit court’s decision, which had ruled for the union based on those longstanding precedents. This case brings the issue back to the Court. Scotusblog has a useful overview as well as an online symposium with a range of views. This is a very important case and will draw a lot of attention — and early and long lines to get inside, but also press conferences and protests out front.

Ohio v. American Express is an antitrust case, arising out of differences in how AmEx, compared with Visa and MasterCard, set prices and work with merchants. The Second Circuit sided with AmEx, but an unusually wide range of organizations are lining up on the other side.

Tuesday, February 27

The clash of new technology and old legal presumptions is on display in US v. Microsoft. The federal government served a subpoena on Microsoft at their Washington state headquarters for emails of a suspected drug dealer. It agreed to turn over records stored in the US, but not the content of the emails, which were stored in servers in Ireland. There is a general presumption that US laws do not apply outside the US (extraterritorial application), and the Court has never resolved how this relates to the Stored Communications Act or technology of this nature in general. There are lots of interesting and nuanced concerns about effectiveness of our laws but the need to avoid putting international actors in a conflict with other countries’ laws. Scotusblog has an overview and an online symposium with some really compelling insights.

An absurd example of First Amendment retaliation hits an 11th Circuit doctrine in Lozman v. City of Riviera Beach, Florida. During the public comment portion of a City Council meeting, Mr. Lozman was instructed by a council member not to discuss his opposition to an eminent domain plan, and he was arrested when he persisted. The transcript of an earlier meeting revealed a plan by council members to “intimidate” him. He sued, but lost the trial and sought a new trial on various grounds. The 11th Circuit held that the police officer had probable cause to arrest him for disrupting a public meeting, and therefore there could be no lawsuit for unconstitutional retaliation or any other grounds, because of the Circuit’s rule that a finding of probable cause bars any other such claims. See this overview and the ACLU position.

Wednesday, February 28

First Amendment protection for political expression at the voting booth is the issue in Minnesota Voters Alliance v. Mansky: “Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.” Again, Scotusblog has a useful overview and interesting symposium.