Symposium: Latest assault against workers by the Supreme Court

Symposium: Latest assault against workers by the Supreme CourtNicole G. Berner is general counsel and Claire Prestel is associate general counsel of the Service Employees International Union. SEIU joined an amicus brief in support of the employees in Epic Systems Corp. v. Lewis. In recent years it has become increasingly common to hear chatter — even among progressives – that labor unions and […]

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Symposium: Latest assault against workers by the Supreme Court

Nicole G. Berner is general counsel and Claire Prestel is associate general counsel of the Service Employees International Union. SEIU joined an amicus brief in support of the employees in Epic Systems Corp. v. Lewis.

In recent years it has become increasingly common to hear chatter — even among progressives – that labor unions and worker organizing are obsolete relics of past glories.

Yet anti-worker corporate interests have never lost sight of the fact that workers can wield enormous power when they join together to protect workplace rights. The “Fight for $15 & a Union” campaign, supported by the Service Employees International Union, and the recent wave of teacher activism are only the most recent examples of what workers can accomplish when they act in concert. It is precisely to undermine this power that corporate interests and billionaire-funded extremists rush to pass “right to work” legislation wherever they can and why they have funded an extended battle in the courts to attack unions and divide workers.

The Supreme Court yesterday, in a 5-4 decision, gave another victory to these anti-worker extremists. Under yesterday’s Epic Systems opinion, the Supreme Court majority gave employers the green light to force their employees, as a mandatory condition of employment, to forfeit their decades-old right to join together with co-workers in class or collective actions, or even with just a single co-worker, to pursue claims for stolen wages, sex, race, age, or other discrimination and other workplace claims.

We have seen throughout history that it’s only when workers, particularly low-wage workers, can band together that they are protected from retaliation and are able to meaningfully enforce their rights. The anti-worker extremists know this and the teacher walk-outs in West Virginia and Arizona prove it. Could an individual teacher have succeeded if she or he walked out alone? Certainly not.

No worker should be forced to sign away his or her statutory rights just to have a job. This should not be a controversial position, yet many workers would be shocked to find out what they have been forced to give up when they try to find a lawyer to protect their basic workplace rights.

Certainly the Congress that enacted our federal labor laws — the Norris-LaGuardia Act in 1932 and the National Labor Relations Act in 1935 — would be shocked by today’s result. That Congress knew very well what the Lochner myth of “freedom of contract” really meant: freedom for employers to force employees to work long hours, accept poverty wages and work in dangerously unsafe environments. That’s why Congress enacted Section 2 of the Norris-LaGuardia Act and Section 7 of the National Labor Relations Act, to protect workers’ rights to “engage in … concerted activities” for “mutual aid and protection” and to prohibit “yellow dog contracts,” which are compelled agreements that require workers to forfeit their right, as a condition of employment, to join unions and to engage in other collective action.

But yesterday’s opinion by Justice Neil Gorsuch somehow manages to twist the meaning of these statutory provisions, which were aimed at exactly the kind of employer overreach and false claims of “freedom of contract” that we see today, so that they do not protect “concerted activity” for “mutual aid or protection” that involves a class, collective or even joint action — even though group action to improve workplace conditions comes within the labor laws’ plain language and has existed and has been understood to be protected for decades. The ruling is wrong as a matter of law, and requires Congress to heed Justice Ruth Bader Ginsburg’s call in her passionate and powerful dissent to “urgently” take corrective legislative action.

The majority’s decision demonstrates once again why unions are so vital to our nation’s workforce and to the overall well-being of our democracy. When working people join unions, they cannot be compelled to individualized arbitration, and they have the strength in numbers and collective voice to fight as one against unlawful employer practices and in support of better pay and benefits. Workers who organize have their co-workers by their sides and with that comes the power to ensure fair and equal treatment in the workplace.

Yesterday’s ruling is another assault on working people. When we forget the lessons of the past, we are doomed to repeat our old mistakes. In the 1920s and during the Great Depression we saw what happened when employers could impose “yellow dog contracts” on their workers and prohibit them from exercising strength through common effort. Simply because a lesson was learned long ago doesn’t make it any less true. Collective worker action is as important now as ever, and permitting employers to strip workers of their right to pursue collective action is as wrong as always. We the people know that America Needs Unions. We must now call upon our elected officials to stand with everyday working Americans to reverse the damage of yesterday’s ruling.

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Symposium: The Federal Arbitration Act and the National Labor Relations Act are two ships that pass in the night

Symposium: The Federal Arbitration Act and the National Labor Relations Act are two ships that pass in the nightBen Robbins is senior staff attorney for the New England Legal Foundation.  He filed an amicus brief for NELF in support of the employers in the consolidated cases in Epic Systems Corp. v. Lewis. Although the Supreme Court’s decision today in Epic Systems Corp. v. Lewis was a close one (5-4), the result was not […]

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Symposium: The Federal Arbitration Act and the National Labor Relations Act are two ships that pass in the night

Ben Robbins is senior staff attorney for the New England Legal Foundation.  He filed an amicus brief for NELF in support of the employers in the consolidated cases in Epic Systems Corp. v. Lewis.

Although the Supreme Court’s decision today in Epic Systems Corp. v. Lewis was a close one (5-4), the result was not surprising, in light of the court’s recent decisions establishing the primacy of the Federal Arbitration Act over other, potentially conflicting federal statutes.  At issue was whether the FAA’s mandate to enforce arbitration agreements according to their terms was displaced by Section 7 of the National Labor Relations Act, which grants employees “the right … to engage in other concerted activities for … mutual aid or protection.”  In particular, the employment agreements in these three consolidated cases all required the employees to arbitrate their work-related disputes on an individual basis only.  So the question was whether the NLRA’s protection of “other concerted activities” created a substantive right to pursue group legal action that invalidated the agreements, by displacing the FAA’s mandate to enforce class and collective action waivers in arbitration agreements.

The majority answered no.  The general residual phrase “other concerted activities” did not displace the FAA and did not guarantee employees the right to pursue group legal action against their employer in court or in arbitration.  Instead, this phrase guaranteed employees the right to join together in the workplace to address working conditions among themselves and with their employer.  Group legal action is simply not the “strength in numbers” that Congress had in mind when it enacted the NLRA to protect employees’ freedom of association in the workplace.  In essence, the court preserved the peaceful coexistence of two unrelated federal statutes that had remained undisturbed until only very recent times.  While the FAA requires the enforcement of arbitration agreements according to their terms, the NLRA serves the different purpose of protecting employees’ freedom of association in the workplace.

Consistent with the Supreme Court’s recent FAA cases, the majority emphasized from the outset that the enforceability of the arbitration agreements was a question of harmonizing the FAA with the NLRA, and that the starting point was the FAA’s mandate to enforce arbitration agreements according to their terms.  In particular, the court summarized its recent FAA cases, which have held that requiring the availability of collective proceedings when, as here, an arbitration agreement expressly barred such proceedings contravenes the fundamental attributes of arbitration protected by the FAA – namely, to enforce arbitration agreements according to their terms, so as to ensure streamlined, individualized proceedings.  To displace the FAA’s mandate, then, it is not enough to argue that the NLRA’s phrase “other concerted activities” could be interpreted to include group legal action.  Instead, to override the FAA, that phrase must require such an interpretation.  And any doubts are resolved in favor of the FAA.

The NLRA’s statement of purpose, in Section 1, makes crystal clear that the statute was intended to achieve industrial peace by promoting group negotiation and compromise in the workplace.  This has nothing to do with group litigation in court or in arbitration.  In particular, Section 1 of the NLRA announces Congress’ intent to create equality of bargaining power in the workplace between labor and management, by protecting the right to unionize, to engage in collective bargaining, and to engage in other forms of peaceful worker association to address the terms and conditions of employment.

This broad statement of employees’ rights of association in the workplace is then reduced to a detailed list of protected activities in Section 7 of the statute: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

As the majority explained, Section 7 of the NLRA enumerates specific protected concerted activities, followed by the catchall phrase “other concerted activities.”  Under the rule of “ejusdem generis,” from the Latin phrase meaning “of the same kind,” “other concerted activities” should be defined and limited by the specific concerted activities that precede it.  Those specific concerted activities identify certain ways in which employees can organize in the workplace and address working conditions with their employer.  “Other concerted activities,” then, protects other, similar ways in which employees can join together in the workplace, short of forming a union or engaging in collective bargaining.  Those activities would have nothing to do with group legal action.  To interpret the phrase so broadly would render Section 7’s list of concerted activities superfluous, and it would also go far beyond the NRLA’s express purpose of protecting freedom of association in the workplace.

The NLRA’s historical context also makes clear that the statute had nothing to do with creating a new right of group legal action, and everything to do with protecting workers’ rights of association in the workplace.  Before the NLRA’s passage, any efforts by employees to act “in concert” were treated as illegal conspiracies or combinations in restraint of trade.  “Concerted activities” had become a pejorative phrase that referred to workers’ illegal efforts to organize.  In a clean break with the past, the NLRA reversed the negative historical meaning of “concerted activities” from legally prohibited group conduct to legally protected group conduct.  What was once a dirty word became a guaranteed right.  But this had nothing to do with creating a new right of collective legal action against employers.

In its decision, the court also addressed one of its earlier NLRA cases that figured prominently in the employees’ briefs and at oral argument.  In Eastex, Inc. v. NLRB, the court held that the NLRA protected the distribution of a union newsletter in the workplace that urged workers to take political action outside the workplace concerning employment issues affecting workers generally.  The court explained that, although the union newsletter encouraged employees to take action outside the workplace, the distribution of the newsletter in the workplace was protected concerted activity because it was for the “mutual aid or protection” of employees under Section 7 of the NLRA.  Eastex expressly declined to decide what constituted “concerted activities” outside the workplace, nor did it involve any legal action taken by employees, let alone any collective legal action.  In short, Eastex did not suggest in any way that the NLRA displaced the FAA’s mandate to enforce class and collection waivers in employment arbitration agreements.

In essence, the court’s recent decisions under the FAA had already decided Epic Systems.  Under those decisions, the FAA’s clear mandate to enforce arbitration agreements according to their terms can only be defeated by an equally clear and contrary congressional mandate found in another statute.  But the NLRA falls far short of this standard because its clear purpose is to protect group activity in the workplace, not group legal action in court or arbitration.  However, as both the majority and dissent observed in today’s opinion, the legislature has the final word on this issue.  Congress, and Congress alone, is free to respond to the decision by amending either statute.

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Justice Ginsburg receives Friendly Medal from American Law Institute

Justice Ginsburg receives Friendly Medal from American Law InstituteThis afternoon Justice Ruth Bader Ginsburg received the Henry J. Friendly Medal from the American Law Institute. The medal “recognizes contributions to the law in the tradition of Judge Friendly,” whom Chief Justice John Roberts today called “the greatest American judge never to serve on the Supreme Court.” Roberts undertook “the happy assignment” of presenting […]

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Justice Ginsburg receives Friendly Medal from American Law Institute

This afternoon Justice Ruth Bader Ginsburg received the Henry J. Friendly Medal from the American Law Institute. The medal “recognizes contributions to the law in the tradition of Judge Friendly,” whom Chief Justice John Roberts today called “the greatest American judge never to serve on the Supreme Court.”

Roberts undertook “the happy assignment” of presenting the award to Ginsburg and – as he informed his colleague – contributing “to this effort to increase your public profile.”

The audience laughed at this reference to Ginsburg’s rise to cultural stardom, which includes a new documentary celebrating her life. Ginsburg herself, after receiving the award, gave “a word about the notoriety: It is amazing.”

Among his plaudits for his fellow justice – who “knows almost nothing about football but more than is reasonable about jabots” – the chief justice highlighted Ginsburg’s writing speed. Roberts said Ginsburg is often the first to finish her opinions for each argument sitting – even when he has assigned her tough cases to avoid making others appear too slow.

Roberts told a story in which then-Judge Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit applied the standard for Section 1983 claims by prisoners that Friendly had articulated in Johnson v. Glick. At the urging of her colleague, Judge Robert Bork, Ginsburg sent her decision to Friendly. The distinguished judge replied that Ginsburg had grasped “precisely what I endeavored to say” and called her “an upcoming star.”

Indeed, as the chief justice noted, Ginsburg by that point already had a distinguished career as an academic and as a litigator with the American Civil Liberties Union.

Ginsburg told a story of observing her late husband, Marty Ginsburg, argue a “complex” tax case involving corporate bonds in front of a 2nd Circuit panel that included Friendly. According to the justice, Friendly “zeroed in on the best argument for the government, but one the government did not make.” Marty ended up convincing the two other judges on that panel, as well as the Supreme Court, but not Friendly — who Marty secretly knew “had it right.”

Ginsburg declared that the federal judiciary “faces a threat,” one that “lawyers who care about the health and welfare of the federal courts can help to counter.”

She noted that her late friend, Justice Antonin Scalia, had been confirmed by a unanimous Senate vote. Her own vote was 96-3, and she said that she did not face questions from the Senate Judiciary Committee about her involvement with the American Civil Liberties Union.

“It has not been that way for more recent appointments,” Ginsburg continued, noting that the chief and Justice Samuel Alito received negative votes from Senate Democrats that they would have escaped “had merit been the principle criterion.” Justices Sonia Sotomayor and Elena Kagan received similar negative votes from Senate Republicans.

Ginsburg did not mention the contentious confirmation of her most junior colleague, Justice Neil Gorsuch. Wearing the “dissent jabot” that Roberts referenced in his remarks, Ginsburg dissented this morning from Gorsuch’s opinion in Epic Systems Corp. v. Lewis.

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Opinion analysis: Justices reject state-court justification for limiting tribal immunity from state-court actions to adjudicate title to land

Opinion analysis: Justices reject state-court justification for limiting tribal immunity from state-court actions to adjudicate title to landRarely have I read a set of opinions that so closely tracked the discussion at oral argument as the opinions this morning in Upper Skagit Indian Tribe v Lundgren. The case involves a narrow and technical question of sovereign immunity: whether the immunity of a federally recognized Indian tribe protects it from a suit in […]

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Opinion analysis: Justices reject state-court justification for limiting tribal immunity from state-court actions to adjudicate title to land

Rarely have I read a set of opinions that so closely tracked the discussion at oral argument as the opinions this morning in Upper Skagit Indian Tribe v Lundgren. The case involves a narrow and technical question of sovereign immunity: whether the immunity of a federally recognized Indian tribe protects it from a suit in state court to adjudicate the tribe’s claim to land located outside the tribe’s reservation. The Washington Supreme Court rejected the tribe’s plea of immunity, reasoning that tribal immunity never applies to suits that are brought “in rem” (against the land), as opposed to “in personam” (against the tribe itself). The Supreme Court’s decision this morning rejected the state court’s analysis for the time being, though the various opinions leave little reason to think that the tribe ultimately will prevail.

To give a little context, the case involves a 40-acre piece of land adjacent to the reservation of the Upper Skagit tribe in northwestern Washington, which the tribe purchased in 2013. When it undertook to survey the land, the tribe discovered a barbed-wire fence running for about 1,300 feet a few feet inside the boundary of the parcel. About one acre of the parcel was on the far side of the fence, adjacent to land owned by the respondent Lundgrens. When the tribe threatened to tear down the fence and build a fence on the parcel’s boundary, the Lundgrens claimed that they  own the land outside the fence under rules for “adverse possession,” because they have continuously exercised control over the land for more than half a century, with the acquiescence of the parcel’s prior owner.

The problem the Lundgrens faced in the Supreme Court is that there is almost no support for the distinction between “in rem” and “in personam” actions that the Washington Supreme Court offered to allow the Lundgrens’ suit to proceed. By the time of the oral argument, even the Lundgrens admitted that the only basis for that distinction was the Supreme Court’s 1992 decision in County of Yakima v Confederated Tribes and Bands of Yakima Nation, and the justices who discussed the question at the argument seemed to think Yakima could not support such a broad intrusion on sovereign immunity. Justice Neil Gorsuch’s brief opinion for the court bluntly dismissed the state court’s reliance on Yakima as “error,” explaining that “Yakima did not address the scope of tribal sovereign immunity.” Rather, he explained, “it involved only a much more prosaic question of statutory interpretation concerning the Indian General Allotment Act of 1887.” Thus, Yakima “resolved nothing about the law of sovereign immunity,” as the Lundgrens “[c]ommendably … acknowledged … at oral argument.”

If this were the only thing going on in the opinions, the tribe would win the case easily. The problem for the tribe, though, is that the reason the Lundgrens abandoned Yakima as a justification for the decision below is that they found a much stronger basis for rejecting the tribe’s sovereign immunity: the idea that a sovereign has no immunity for actions involving “immovable property” located in the territory of another sovereign.  As Gorsuch acknowledged, that doctrine has been recognized by the Supreme Court for more than 200 years. If the doctrine were adopted as an attribute of tribal sovereign immunity, the tribe would have no immunity from the Lundgrens’ action, because the Lundgren parcel is outside the Upper Skagit reservation. The majority of the justices, though, declined to resolve that question, “leav[ing] it to the Washington Supreme Court to address these arguments in the first instance.” The court noted that “[d]etermining the limits on the sovereign immunity held by Indian tribes is a grave question; … and the alternative argument for affirmance did not emerge until late in this case, … only when the United States filed an amicus brief.” Closing his opinion, Gorsuch suggested that “[t]he source of confusion in the lower courts that led to our review was the one about Yakima … , and we have dispelled it.  That is work enough for the day.”

To make matters worse for the tribe, the two separate opinions that accompanied Gorsuch’s opinion for the majority underscored that the justices are unlikely to welcome a decision by the Washington Supreme Court granting the tribe immunity on remand.  First, Chief Justice John Roberts (joined by Justice Anthony Kennedy) wrote briefly to suggest that it would be “intolerable” if a grant of immunity left the Lundgrens without any legal remedy to protect the land they have occupied since World War II. As his comments at the argument suggested, Roberts was particularly incensed by the suggestion of the solicitor general that the Lundgrens were free to “[g]o onto the disputed property and chop down some trees … or otherwise attempt” to force the tribe to come into court against them. Roberts found himself “skeptical that the law requires private individuals – who had no prior dealings with the Tribe – to pick a fight in order to vindicate their interests.”

Even more pointedly, Justice Clarence Thomas (joined by Justice Samuel Alito) filed a sharp dissent, almost twice as long as Gorsuch’s opinion for the majority, arguing that the “immovable property” exception to sovereign immunity is so well settled that the justices should have reached out to decide the question in this case rather than leaving it for the Washington Supreme Court. Thomas offered a tour de force of historical arguments, citing among other things four treatises that predated adoption of the Constitution, numerous decisions of the Supreme Court addressing the problem in the context of foreign sovereigns, and even longstanding guidance from the State Department on the question. For Thomas, the idea that a sovereign would be immune from litigation over land it held in the territory of another sovereign is so ridiculous that it was absurd for the court to leave the question unresolved. As Thomas put it, it is “difficult to justify” subjecting the Lundgrens to yet another round of litigation over the tribe’s claim of “a sweeping and absolute immunity that no other sovereign has ever enjoyed—not a State, not a foreign nation, and not even the United States.”

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A “view” from the courtroom: Strength in numbers

A “view” from the courtroom: Strength in numbersAfter the court put a major dent in its pending caseload last week, with five relatively significant decisions, including the much-discussed ruling favorable to sports betting in Murphy v. NCAA, the odds on this week’s lone opinion day is that we’ll get fewer decisions. We had to jump on a plane right after decisions last […]

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A “view” from the courtroom: Strength in numbers

After the court put a major dent in its pending caseload last week, with five relatively significant decisions, including the much-discussed ruling favorable to sports betting in Murphy v. NCAA, the odds on this week’s lone opinion day is that we’ll get fewer decisions.

We had to jump on a plane right after decisions last Monday to get to a conference in Los Angeles, where the weather was sunny and in the 70s. Did it rain here last week?

The court takes the bench at 10 a.m., with Justices Clarence Thomas and Stephen Breyer absent. Justice Sonia Sotomayor has returned to the bench for the first time since her shoulder replacement surgery on May 1. The justice evidently had to cancel her scheduled visit last week to the University of California at Davis, where she was to address the law school commencement, because of her recuperation.

Justice Ruth Bader Ginsburg is wearing her “dissent jabot” this morning, the bejeweled dark collar she showed off in the documentary “RBG.” We’ll soon learn why.

Justice Ginsburg dissents in Epic Systems v. Lewis (Art Lien)

Chief Justice John Roberts opens this morning’s session by welcoming a special guest. “We are very pleased to have visiting with us this morning the chief justice and president of the Supreme Court of Republic of Kenya, David Maraga,” Roberts says. “On behalf of our court, welcome.”

Maraga, seated in the guest box to the left of Roberts, stands about three-quarters of the way and takes a brief bow.

The chief justice (of the United States, that is), then announces that Justice Neil Gorsuch has the opinion of the court in Epic Systems Corp. v. Lewis and its consolidated cases. (Those are Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc.)

This is one of the major cases of the term, about whether, as the question presented in Epic Systems puts it, “an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.”

This is a rather plum assignment for a justice who is just completing his first full term in office. Gorsuch dives into his opinion announcement that courts are required under the FAA to enforce arbitration agreements providing for individualized proceedings, and neither a saving clause in that act nor provisions of the National Labor Relations Act suggest otherwise.

He pretty quickly moves to answering the dissent, which “sees things a little differently,” he says, without revealing the author of that opinion. In the dissent’s view, Gorsuch says, the court’s decision “ushers us back to the Lochner era when this court regularly overrode legislative policy judgments.”

“The dissent even suggests we have resurrected the long-dead ‘yellow dog’ contract,” he says, referring to the dissent’s description of the early-20th-century practice of employers’ requiring workers to abstain from joining labor unions.

Gorsuch goes on at some length with his rebuttal of the dissent before noting that Congress can act, as the dissent urges, to “amend” this judgment, but because the court can read Congress’ statutes to work in harmony, “that is where our duty lies.”

Gorsuch announces the lineup, with Roberts and Justices Anthony Kennedy, Thomas and Samuel Alito joining him (with Thomas writing a short concurrence). Ginsburg has written a dissent, joined by Breyer, Sotomayor and Justice Elena Kagan.

There is then the brief, slightly awkward pause when a justice starts reading a dissent. Ginsburg’s dissent from the bench is the second of the term, with Breyer having read from his dissent in Jennings v. Rodriguez on February 27. Those may well not be the last dissents from the bench in this blockbuster term.

Ginsburg methodically reads from her dissenting statement, noting that the individual claims of the employees involved in the three cases are small and various factors would likely dissuade the employees from seeking redress alone. By joining their claims together in collective action, the employees can spread the costs of litigation, lessen fears of retaliation, and gain effective redress for wage underpayment, she says.

But the forced arbitrations agreements block such collective action.

“The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts,” Ginsburg says.

Gorsuch mostly looks down during the dissent. Ginsburg continues.

“Over 80 years ago, Congress recognized that for workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers,” she says. Congress passed the Norris-LaGuardia Act and the NLRA “to protect workers’ rights to band together when confronting employers about working conditions,” she adds.

The dissenters would hold that those two statutes “render the employer-dictated collective-litigation bans unlawful, therefore unenforceable,” Ginsburg says.

She does not mention in her bench dissent her single reference to the “Lochner era” in her written dissent. She concludes by saying, “The inevitable result of today’s decision is that there will be huge underenforcement of federal and statutes designed to advance the well-being of vulnerable workers. Congressional action is urgently needed in order to correct the court’s elevation of the Arbitration Act over workers’ rights to act in concert.”

With no real “Gins-burn” zinger in her statement, some of her colleagues look her way and the chief justice pauses to make sure Ginsburg has finished. She has, so Roberts turns to the next case.

Gorsuch also has the second opinion today, in Upper Skagit Indian Tribe v. Lundgren, the chief announces.

This is a case about a whether a court’s exercise of “in rem” jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when an Indian tribe has not waived immunity and Congress has not unequivocally abrogated it. That question nonetheless made for an interesting oral argument back in March, on a day when a snowstorm had shut down most of the federal government, but not the court.

The case involves a roughly one-acre strip of land in Washington state, which a family contends it acquired by adverse possession from a larger tract of land later acquired by the Upper Skagit tribe. The family filed a quiet-title action against the tribe, which asserted a defense of sovereign immunity that was rejected by the Washington Supreme Court.

Gorsuch’s opinion holds that a 1992 decision involving Indian tribes, County of Yakima v. Confederated Tribes and Bands of Yakima Nation, addressed only an interpretation of a federal Indian statute and not the scope of tribal sovereign immunity. Because the family’s alternative, common law theory for holding that the tribe cannot assert sovereign immunity emerged late in the case, the justices remand the case to the Washington Supreme Court.

“I will spare you the details, which I promise will bore you,” Gorsuch says from the bench, as he gives a very brief summary of his opinion, which is joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan. The chief justice has written a concurrence, joined by Kennedy.

Thomas has written a dissent, joined by Alito.

Gorsuch does not repeat a line from the seven-page opinion that counters a criticism by the dissent that his modest opinion has not accomplished as much as it could have.

“The source of confusion in the lower courts that led to our review was the one about Yakima, and we have dispelled it,” Gorsuch writes. “That is work enough for the day.”

Gorsuch has the strength in numbers that he needs in two decisions this morning, and that is work enough for the court on this day.

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Justices grant four new cases

Justices grant four new casesThis morning the Supreme Court added four new cases to its docket for next term, on topics ranging from federal pre-emption to the rules governing attorney’s fees for Social Security claimants. The justices once again did not act on a petition by the federal government to nullify a ruling that cleared the way for an […]

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Justices grant four new cases

This morning the Supreme Court added four new cases to its docket for next term, on topics ranging from federal pre-emption to the rules governing attorney’s fees for Social Security claimants. The justices once again did not act on a petition by the federal government to nullify a ruling that cleared the way for an undocumented pregnant teenager to receive an abortion.

In Virginia Uranium v. Warren, the justices agreed to weigh in on questions of pre-emption – that is, when federal law trumps state law – and the Atomic Energy Act. The petition for review was filed by Virginia Uranium, a company that owns and wants to mine the country’s largest-known deposit of uranium ore, which is used for both nuclear power plants and nuclear weapons. The company was barred from doing so by a Virginia law prohibiting uranium mining. That ban, the company contends, stems from concerns about radiation from both the process used to transform the mined product into a form in which it can be used (known as “milling”) and the waste that results from that processing, known as “tailings.” And those concerns, the company argues, conflict with the Atomic Energy Act, which gives the federal Nuclear Regulatory Commission exclusive power to regulate uranium milling and tailings-management activities.

The U.S. Court of Appeals for the 4th Circuit rejected the company’s argument, ruling that Virginia’s ban on mining was not pre-empted. The court of appeals reasoned that federal laws regulate milling and tailings, but Virginia’s law does not address these. Virginia Uranium asked the Supreme Court to review that ruling, and last fall the justices asked the federal government to weigh in.

In a brief filed last month, the federal government urged the Supreme Court to take up the case, telling the justices that the 4th Circuit’s ruling got it wrong on an important nuclear-safety question. Today the justices agreed to do so; the case will likely be argued in the fall.

In Jam v. International Finance Corp., the justices will tackle a case that began as a lawsuit against the IFC, a part of the World Bank Group that bills itself as “the largest global development institution focused exclusively on the private sector in developing countries.” The plaintiffs in the case are farmers and fishermen who live near a power plant in India that was financed through loans from the IFC. The power plant, they contend, was a disaster that ruined local water supplies, decimated fish populations and contaminated the air around the plant. They filed a lawsuit in a federal district court in Washington, D.C., but the district court dismissed the case because it concluded that the IFC was immune from suit. The court of appeals upheld the decision, but now the Supreme Court will weigh in.

As the case comes to the court, it centers on the International Organizations Immunities Act, which gives international organizations the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” The justices agreed to decide whether this means that international organizations have the same immunity as foreign governments have under the Foreign Sovereign Immunities Act – which contains an exception from immunity for “commercial activities.”

In Royal v. Murphy, the justices will rule on whether the historic territory of the Muscogee (Creek) Nation in Oklahoma currently is a “reservation” or “Indian country.” The question matters because the U.S. government has jurisdiction to prosecute crimes committed by Indians or against Indians in “Indian country,” including serious crimes committed by one Indian against another.

The issue arises in the case of Patrick Murphy, a member of the Creek Nation who was convicted and sentenced to death in Oklahoma state court for the murder of another member of the same nation. After his sentence was upheld on appeal, Murphy returned to the state courts seeking post-conviction relief: He argued that the federal government, rather than Oklahoma, has authority to prosecute him because both he and his victim were Indians and the crime occurred in Indian country. That argument was unsuccessful in the state courts, but when Murphy went to federal court, the U.S. Court of Appeals for the 10th Circuit agreed, reasoning that Congress had never disestablished – that is, terminated – the boundaries of the Creek Nation.

Oklahoma asked the justices to review the 10th Circuit’s ruling in February; in March, the state received an unsolicited boost from the federal government, which described the lower court’s decision as “incorrect” and urged the Supreme Court to step in. The federal government warned the justices that if the 10th Circuit’s decision is not reversed, it could have a broad impact, not only for “criminal jurisdiction in cases involving Indians in vast areas of eastern Oklahoma,” but also for “state taxing and other jurisdiction.” Justice Neil Gorsuch is recused from the case, presumably because he participated in the vote to deny rehearing en banc while he was still a judge on the 10th Circuit.

And in Culbertson v. Berryhill, the justices will clarify the rules relating to fees for lawyers who represent individuals seeking Social Security benefits. A provision of the Social Security Act indicates that, when someone claiming benefits is represented by a lawyer and wins in court, the court can award attorney’s fees “not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled.” The question now before the court is whether that 25-percent cap applies only to attorney’s fees for representing a claimant in court or also to fees for representing a claimant before the Social Security Administration.

The Supreme Court once again did not act on Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that allowed a pregnant teenager to obtain an abortion. The teenager, known in the litigation as “Jane Doe,” had been caught trying to enter the United States illegally; the federal government had refused to allow her to leave the shelter where she was being held in custody, arguing that it did not want to facilitate her abortion. In October 2017, the D.C. Circuit ruled for Doe, who had an abortion the next day. The government told the justices that it would have sought Supreme Court review, but was unable to do so because the teenager’s lawyers had not kept it informed about the timing for the procedure. Therefore, the government argues, the appeal is moot and the Supreme Court should not allow the lower court’s decision to serve as future precedent, particularly because it is not the government’s fault that the case is moot. The briefing in the case was complete in December, and the justices considered the case at several conferences before asking the lower courts to send them the record, which the Supreme Court received in late February.

The justices also asked the U.S. solicitor general to file a brief expressing the views of the United States in City of Cibolo v. Green Valley Special Utility District, a case involving the scope of federal laws governing monopoly protection for recipients of federal loans to fund water and wastewater infrastructure in rural areas. There is no deadline for the solicitor general to file his brief.

This post was originally published at Howe on the Court.

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Opinion analysis: Employers prevail in arbitration case

Opinion analysis: Employers prevail in arbitration case[NOTE: This post will be updated with additional analysis later in the day.] In 1925, Congress passed the Federal Arbitration Act, which (among other things) provides that an agreement to arbitrate a dispute “shall be valid, irrevocable, and enforceable.” Ten years later, Congress enacted the National Labor Relations Act, which makes clear that employees have […]

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Opinion analysis: Employers prevail in arbitration case

[NOTE: This post will be updated with additional analysis later in the day.]

In 1925, Congress passed the Federal Arbitration Act, which (among other things) provides that an agreement to arbitrate a dispute “shall be valid, irrevocable, and enforceable.” Ten years later, Congress enacted the National Labor Relations Act, which makes clear that employees have the right to work together for “mutual aid and protection.” Today the Supreme Court ruled, by a vote of 5-4, that employers can include a clause in their employment contracts that requires employees to arbitrate their disputes individually, and to waive the right to resolve those disputes through joint legal proceedings instead. Although it likely won’t garner the attention that some of this term’s other cases will receive, the decision was a huge victory for employers, because it could significantly reduce the number of claims against them.

Today’s opinion resolved three cases that were argued together on the first day of the term: Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA. Each arose when an employee who had signed an employment agreement that contained an arbitration provision filed a lawsuit in federal court, seeking to bring both individual and collective claims. The employers argued that, under the terms of the arbitration agreements, the employees needed to go to individual arbitrations, and today the Supreme Court agreed.

Justice Gorsuch with opinion in Epic Systems v. Lewis (Art Lien)

In an opinion by the court’s newest justice, Neil Gorsuch, the majority emphasized that the Federal Arbitration Act “instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” Nothing in the National Labor Relations Act trumps that requirement, the majority explained, particularly when the provision of the NLRA on which the employees rely “does not express approval or disapproval of arbitration” and “does not mention class or collective action procedures.” Indeed, the majority stressed, the NLRA “does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.”

The majority concluded that, although it “may be debatable” whether the result it reaches is a sound policy, “the law is clear.” Congress can always pass new legislation to reach a different result, the majority pointed out, but it is not the Supreme Court’s job to “substitute its preferred economic policies for those chosen by the people’s representatives.”

Justice Ginsburg dissents in Epic Systems v. Lewis (Art Lien)

Justice Ruth Bader Ginsburg took the relatively rare step of reading her dissent – which was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan – from the bench. Criticizing the majority’s decision as “egregiously wrong,” Ginsburg lamented that today’s ruling will lead to “the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers,” because it will rarely be worthwhile for individual employees to pursue their own claims.

This post was originally published at Howe on the Court.

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OT2017 #25: “The Way The Chief Loves Mootness”

OT2017 #25: “The Way The Chief Loves Mootness”Supreme Court opinions have been coming down in a slow trickle, but it’s enough to quench our thirst. This week, we recap five cases the justices have decided, from sports betting to privacy expectations in rental cars, from shackling criminal defendants to determining effective assistance of counsel. Plus, we return briefly to the eight-member court as Justice Neil Gorsuch sits out […]

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OT2017 #25: “The Way The Chief Loves Mootness”

Supreme Court opinions have been coming down in a slow trickle, but it’s enough to quench our thirst. This week, we recap five cases the justices have decided, from sports betting to privacy expectations in rental cars, from shackling criminal defendants to determining effective assistance of counsel. Plus, we return briefly to the eight-member court as Justice Neil Gorsuch sits out a case about wiretapping.

We’ll start it all off looking at some cases that have been granted for next term, and we’ll finish by trying to game out who is writing which remaining opinions.

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SCOTUS for law students: Counting at the Supreme Court

SCOTUS for law students: Counting at the Supreme CourtHere’s a quick quiz: When does 6 plus 1 not necessarily add up to 7? Counting vote totals can sometimes be a challenge at the Supreme Court, especially when the justices write separate opinions that take different forms and reach different conclusions. One example came earlier this week in the sports-betting ruling, Murphy v. National […]

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SCOTUS for law students: Counting at the Supreme Court

Here’s a quick quiz: When does 6 plus 1 not necessarily add up to 7?

Counting vote totals can sometimes be a challenge at the Supreme Court, especially when the justices write separate opinions that take different forms and reach different conclusions.

One example came earlier this week in the sports-betting ruling, Murphy v. National Collegiate Athletic Association. In a decision written by Justice Samuel Alito, the Supreme Court invalidated a federal law, the Professional and Amateur Sports Protection Act, which prohibited states from allowing sports gambling at casinos, racetracks and other facilities within a state. Alito’s opinion was joined unambiguously and in full by five others: Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch. Justice Ruth Bader Ginsburg dissented, joined by Justice Sonia Sotomayor. That would make the vote count 6-2.

But the remaining justice, Stephen Breyer, joined most of Alito’s majority opinion but also part of Ginsburg’s dissent. So was the case decided by a 6-3 vote or a 7-2 vote?

Justice Alito delivers opinion in Murphy v. NCAA (Art Lien)

The Supreme Court has suggested an approach for counting votes when there is no clear majority in a single opinion. More on that below. But there is no rule for how to count votes in a situation like the one created by Breyer’s hybrid vote.

Here’s what happened in Murphy v. NCAA. There were two relevant provisions of the federal law against sports gambling. The one challenged by the state of New Jersey prohibited states from running sports-gambling operations or from passing laws that would allow businesses within a state to offer sports gambling. A second provision prohibited individuals from running sports-gambling operations that are authorized by state or local law.

The Supreme Court ruled that the provision prohibiting states from authorizing sports gambling violated the constitutional principle that Congress may not “commandeer” the states by forcing them to pass laws or to refrain from passing laws. The Constitution recognizes the separate sovereignty of the states as a way of protecting individual liberty, Alito wrote for the majority. Having invalidated this provision of the federal law, Alito concluded that no other parts of the law could stand on their own and that, as a result, the entire law was unconstitutional.

Ginsburg in dissent argued that Congress was not really commandeering states but rather was simply telling states they could not do something that was prohibited by federal law. Moreover, she wrote that there was no commandeering problem with any other part of the federal law and that the prohibition on individuals running sports gambling operations pursuant to state or local law should be allowed to stand on its own.

Breyer straddled the two opinions. He agreed with the majority that the federal prohibition on states taking any steps to allow sports gambling was unconstitutional, but he agreed with Ginsburg that the rest of the statute should be saved and allowed to operate. The practical effect of his position would be that a state could not be forced to pass a law prohibiting sports gambling but that no individual could operate a sports gambling business under any state law permitting the wagering activity – as he put it, “mak[ing] New Jersey’s victory here mostly Pyrrhic.”

So the mathematical puzzle comes out this way: six votes to strike down the entire statute, one vote to strike down only part of the statute, and two votes to uphold the entire statute, or 6-1-2.

This riddle seems to have an answer. But what happens when the Supreme Court is split in a way that produces no clear majority opinion? That issue, too, has an answer, but one that may be in a state of flux.

Since 1977, the Supreme Court has followed the approach dictated in Marks v. United States. The decision in Marks involved retroactive application of the court’s standards for deciding when something is obscene and, therefore, not protected by the free speech guarantee of the First Amendment. The obscenity standard deeply split the court throughout the 1960s until the court settled on a rule in 1973 in Miller v. California. In Marks, the court decided the 1973 rule could not be applied retroactively to pre-1973 activity, meaning the justices had to settle on what pre-1973 rule to apply. This was not an easy task because of the many different views among the justices.

In Marks, the Supreme Court explained how to handle splintered decisions: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,’” Justice Lewis Powell wrote in a 5-4 ruling. In other words, the prescription for the past 40 years has been to comb through concurring opinions to find the least common denominator among the justices.

That answer no longer seems entirely satisfactory. On March 27, the justices heard argument in Hughes v. U.S., an appeal involving the question of whether a criminal defendant who pleads guilty in a plea deal may later benefit from changes in federal sentencing guidelines. The question has split the Supreme Court previously. In 2011, in Freeman v. United States,  five justices said that defendants may benefit from the changes. Kennedy, joined by Ginsburg, Breyer and Kagan, argued that sentences in plea deals generally reflect the sentencing guidelines and, thus, should reflect changes in the guidelines. In a separate opinion, Sotomayor expressed different reasons for her view that the defendant should prevail in the case. Sotomayor thought that plea agreement sentences were based on the sentencing guidelines only some of the time and not always; as a result, she voted to allow William Freeman to benefit from guideline changes, but would not allow all defendants to do so. Four dissenters, in an opinion by Roberts, concluded that sentences in plea deals are always based on the plea bargain itself and should never change with changes in sentencing guidelines. This created a 4-1-4 split.

In recent years, lower federal courts have divided over the meaning of the Supreme Court’s splintered opinions in Freeman. The division within the Supreme Court turned on the degree to which the sentences in such plea deals came from the terms of the plea bargain or from federal sentencing guidelines, and lower courts have struggled to decide what guidance the court intended to give in Freeman.

In the recent oral argument in Hughes, the meaning of Freeman was front and center, and the justices wondered whether the Supreme Court’s approach in Marks provides sufficient guidance. Erik Hughes pled guilty to federal drug and firearms charges and was sentenced to 180 months in prison. When the sentencing guidelines range for similar charges was later lowered, Hughes moved to have his sentence reduced. A federal district court in Georgia and the U.S. Court of Appeals for the 11th Circuit rejected Hughes’ request.

Eric Shumsky for petitioner in Hughes v. United States (Art Lien)

During the oral argument, the justices seemed uncertain about whether the Marks approach is in need of reform. Alito commented that Marks “has been the law for 40 years, and for better or worse, it has had a big effect, I think, on what we have understood to be the jurisprudence of this Court and what the lower courts have understood to be our precedents and on the way in which Justices of this Court go about doing their job.” He suggested that the approach in Marks of finding the narrowest concurring ground “certainly could benefit from some clarification and maybe some refinement.”

And Kagan observed, “We’re in a world in which the first-best option, which is five people agreeing on the reasoning, that doesn’t exist. And so everything else is going to have some kind of problem attached to it.”

Rachel P. Kovner, assistant to the solicitor general, in Hughes v. United States (Art Lien)

Perhaps Breyer best summed up the dilemma of how to count to five votes in the Supreme Court. “So if you ask me to write something better than Marks, I don’t know what to say,” Breyer admitted.

That may be the last word on the Supreme Court’s mathematical dilemma, at least until the court decides to clarify the rules.

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Relist Watch

Relist WatchJohn Elwood (finally) reviews Monday’s relists. We are about to hit a critical date as October Term 2017 draws to a close: “cutoff” – the date by which briefs in opposition (and court-invited amicus briefs from the solicitor general) must be received for the Supreme Court to act on them before the summer recess following […]

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Relist Watch

John Elwood (finally) reviews Monday’s relists.

We are about to hit a critical date as October Term 2017 draws to a close: “cutoff” – the date by which briefs in opposition (and court-invited amicus briefs from the solicitor general) must be received for the Supreme Court to act on them before the summer recess following ordinary procedures. That date this year is May 22. And this week’s relists illustrate a fundamental truth: It’s nice to have Washington on your side. The petitioners in three of this week’s five new relists have the support of the solicitor general, which vastly increases their odds of a grant.

The petitioner in Virginia Uranium Inc. v. Warren, 16-1275, is a business with a name that inspires puzzlement, like “Arizona Oysters, Ltd.,” “Beachfront Iowa, LLC,” or “Greater San Diego Penguin Ranch, P.C.” Through some twist of fate, the Old Dominion is home to America’s largest domestic uranium deposits. Federal law doesn’t regulate the mining of uranium, but it does regulate uranium processing and the handling of the tailings left over afterwards. By agreement, federal regulators permit Virginia to regulate some processing activities, but the agreement expressly excludes regulation of uranium tailings. The commonwealth has long prohibited uranium mining, allegedly motivated by concerns about the radiological safety of uranium milling and tailings-management activities. The owners of the deposits did not seek to exploit the deposits for years, but when the price of uranium spiked during the mid-2000s, they sued to challenge the commonwealth’s mining moratorium.  The U.S. Court of Appeals for the 4th Circuit held that because federal law did not address mining, the Virginia moratorium was not pre-empted. The owners sought Supreme Court review and after the court’s September 2017 “long conference,” the court “invited” the solicitor general to file a brief expressing the views of the United States.  That’s an “invitation” in the same sense as when your father “invites” you to mow the lawn when you’re a kid, or when your spooky cellmate with the creepy thousand-yard stare and facial tattoos “invites” you to take the upper bunk.  In April 2018, the solicitor general finally responded to the invitation by saying that review is warranted because the 4th Circuit’s view of Atomic Energy Act pre-emption is “cramped,” conflicts with both Supreme Court precedent and decisions of other federal courts of appeals, and is “important and likely to recur in other nuclear-safety contexts.”  The court has tended to follow the grant recommendations of the solicitor general in recent years, so this is a case to watch.

What could be better than a court-invited amicus brief from the solicitor general telling the Supreme Court to grant your case? How ‘bout an amicus brief the solicitor general files without even being asked?  Such an unsolicited amicus brief is a compelling demonstration that the “Tenth Justice” thinks the case is exceedingly important. As Judge Patricia Millett once observed, “[o]nly infrequently does the solicitor general file unsolicited amicus briefs at the certiorari stage.”  I have been able to identify only 15 such briefs that have been filed since October Term 1995, and at that point I gave up looking. There have been nine perfect games pitched in the major leagues during the same period, so like I say, these are rare.

The most recent unsolicited solicitor-general amicus brief was filed in Royal v. Murphy, 17-1107. Respondent Patrick Dwayne Murphy is a member of the Muscogee (Creek) Nation of Indians.  He was convicted in Oklahoma state court and sentenced to death for killing another nation member within the nation’s historic territory in eastern Oklahoma. In post-conviction proceedings, he argued that the federal government had exclusive jurisdiction over his conduct because both he and the victim were members of the nation and the acts occurred in “Indian country.” A federal district court denied relief, concluding that “[a] careful review of the Acts of Congress which culminated in the grant of statehood to Oklahoma in 1906, as well as subsequent actions by Congress, leaves no doubt the historic territory of the Creek Nation was disestablished” and thus lost its status as “Indian country.” The U.S. Court of Appeals for the 10th Circuit reversed, concluding that the statutes through which Congress took various actions for the state (including, the solicitor general says, “allot[ing] the Creek Nation’s lands, abolish[ing] its courts, and extend[ing] the laws of the new State of Oklahoma over the former Indian Territory”) included none of the “hallmark[]” language present in prior Supreme Court cases concluding that a reservation had been disestablished. The SG recommends that the court take the case, saying that “Congress disestablished the Creek Nation’s historic territory when, in preparation for and granting Oklahoma statehood, it broke up and allotted the Creek Nation’s lands, displaced tribal jurisdiction, and provided for application of state law and state jurisdiction.” “If left uncorrected,” the solicitor general argues, the decision “will radically shift criminal jurisdiction in cases involving Indians in vast areas of eastern Oklahoma from the State to the federal government, and affect state taxing and other jurisdiction.” To drive that last point home, a broad cross-section of amici argue that the 10th Circuit’s decision “will upend Oklahoma’s energy regulation” and cause “significant jurisdictional consequences.”  The odds look good for that one.

What is better than an unsolicited amicus brief recommending your case be granted? I’m honestly not sure – maybe when the government, as respondent in a case, says your case is cert-worthy and should be granted? And if that dream is still just a little modest for you, how about if the government disavows the position it took below? That’s what happened in Culbertson v. Berryhill, 17-773. That case involves a provision of the Social Security Act providing that:

Whenever a court renders a judgment favorable to a claimant … who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.

The petitioner argues that the 25-percent cap includes only fees for representation in court, as the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits have held, and does not also include fees for representation in agency proceedings, as the U.S. Courts of Appeals for the 4th, 5th and 11th Circuits have held. In its brief as respondent, “[t]he government concludes that petitioner is correct” in his reading of the statute, and therefore suggests “the Court may wish to consider appointing an amicus curiae to defend the judgment of the court of appeals.” The case comes out of the U.S. Court of Appeals for the 11th Circuit, so the amicus to defend the judgment would ordinarily be appointed by (and typically be a former law clerk of) Circuit Justice Clarence Thomas.

The next case is captioned Budha Ismailthat’s myJam v. International Finance Corp., 17-1011, a caption cool enough to name the offspring of at least three Brooklyn hipsters.  The International Organizations Immunities Act, 22 U.S.C. § 288a(b), affords international organizations the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments,” 22 U.S.C. § 288a(b).  President Dwight Eisenhower designated respondent the International Finance Corporation, which is composed of 184 member countries, as an “international organization” under IOIA.  The question presented is whether the IOIA confers the same immunity on such international organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11, which contains an exception from immunity for “commercial activities.” The IFC argues for broader, “virtually absolute” immunity that it says was predominant before Congress enacted the Foreign Sovereign Immunities Act. The case involves a suit by “farmers and fishermen” who live near a power plant in Gujarat, India financed by $450 million in IFC loans.  Plaintiffs sued the IFC in the U.S. District Court for the District of Columbia as lender “for negligence, negligent supervision, public nuisance, private nuisance, trespass, and breach of contract” because the plant’s construction and operation violated the terms of the loan agreement. Now represented by counsel for the petitioners in Jesner v. Arab Bank, the new petitioners seek to challenge the D.C. Circuit’s 2-1 ruling granting the IFC immunity over the concurrence (really, dissent) of Judge Cornelia Pillard.

Last up is Wright v. United States, 17-1059, which presents what may be the most specific criminal-law question in the history of the world.  Namely: whether the Sixth Amendment right of confrontation is violated when a trial court prevents defense counsel from cross-examining a government witness regarding the mandatory life sentence the witness would have faced absent cooperation in order to prevent the jury from inferring that the defendant will probably face a life sentence if convicted. If you have trouble following that, it’s because you’re human.  Basically, the question is whether, to prevent the jurors from going easy on the defendant because they know he faces a life sentence, it is justifiable to keep the jury from knowing that a government witness avoided a life sentence by testifying.  The government argues that it’s enough for confrontation purposes to let the jury know the witness avoided decades in prison.  It also denies the existence of a conflict and argues that “this case would be an especially poor vehicle in which to take up the question presented,” because the defendant’s counsel contributed to the error, which was probably harmless anyway.  The government notes that the same issue is present in Trent v. United States, 17-830, which the court has rescheduled repeatedly.  It will be interesting to see what happens with that one.

Finally, the court has gotten rid of the two-plus score of cases it had repeatedly relisted because of Sessions v. Dimaya.  Thanks, guys:  We were getting tired of carrying around all that weight.

We’ll be back next week with more.  Thanks to Kevin Brooks for compiling these cases.

 

New Relists

Virginia Uranium, Inc. v. Warren, 16-1275

Issue: Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here, uranium mining), but that has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings). CVSG: 04/09/2018.

(relisted after the May 10 conference)

 

Culbertson v. Berryhill, 17-773

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether fees subject to 42 U.S.C. § 406(b)’s 25-percent cap related to the representation of individuals claiming Social Security benefits include, as the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits hold, only fees for representation in court or, as the U.S. Courts of Appeals for the 4th, 5th and 11th Circuits hold, also fees for representation before the agency.

(relisted after the May 10 conference)

 

Jam v. International Finance Corp., 17-1011,

Issues: (1) Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11; and (2) what rules govern the immunity to which international organizations are entitled if the IOIA does not afford the same immunity.

(relisted after the May 10 conference)

 

Wright v. United States, 17-1059

Issue: Whether the Sixth Amendment right to confrontation is violated when the trial court prevents a defendant from cross-examining a government witness regarding the mandatory life sentence he would have faced absent cooperation in order to prevent the jury from inferring the defendant’s likely life sentence.

(relisted after the May 10 conference)

 

Royal v. Murphy, 17-1107

Issue: Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

(relisted after the May 10 conference)

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Allen v. United States, 17-5684

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

James v. United States, 17-6769

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20 and April 27 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13, April 20, April 27 and May 10 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29, April 13, April 20, April 27 and May 10 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27 and May 10 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27 and May 10 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27 and May 10 conferences)

 

Lester v. United States, 17-1366

Issues: (1) Whether the retroactivity analysis of Teague v. Lane is categorical, such that when the Supreme Court held that Johnson v. United States announced a new substantive rule of constitutional law that is retroactive to cases on collateral review in Welch v. United States, it made Johnson’s rule retroactive for purposes of all cases on collateral review; and (2) whether the Johnson rule made retroactive in Welch renders the residual clause of the career offender provision of the mandatory, pre-Booker sentencing guidelines unconstitutionally vague.

(relisted after the April 27 and May 10 conferences)

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