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On the Docket’s Preview of October Supreme Court Arguments

Welcome to the 2017 Supreme Court term! With a full bench, the Court has chosen to take on many controversial issues in the next nine months. One case still up in the air is the constitutionality of the Trump Administration’s Travel Ban 2.0—on September 25th, the Court took the oral argument, previously scheduled for October 2nd, off of the calendar. The Trump Administration came out with Travel Ban 3.0 after the lapse of the current travel ban, and the Court asked parties to submit briefing related to mootness concerns. Those briefs are due October 5th, and it is unclear whether the Court will reschedule arguments. With the travel ban temporarily off of the docket—at least for this week—the Court can focus on several other notable cases.

In Epic Systems Corp. v. Lewis, which former Solicitor General Gregory Garre called one of the most important cases of the term, the Court will decide whether employers can impose arbitration proceedings on employees rather than giving employees the option to litigate. Ms. Sherrilyn Ifill, of the NAACP Legal Defense Fund, stated in GW Law’s Preview of the October 2017 term that these employees rights cases should be watched carefully. She noted that arbitration is private while judicial proceedings are public, and that the current employees rights jurisprudence was created by concerted action against employers. Privatization of employer-employee conflicts may take away the ability of employees to challenge pattern and practice in workplace environments because employees cannot arbitrate as a class.

If that isn’t enough to start with, Gill v. Whitford will also be a headline-making decision. The Court will take on gerrymandering, which we now know should be said with a hard “g” (although likely no one will honor its namesake Eldbrige Gerry). There are two ways that the Court could use an “off ramp” to avoid deciding on the merits. First, the Court could hold that this is a political question, although some Justices noted in Vieth v. Jubelirer that it is possible for political gerrymandering to be justiciable. Another option would be to simply rule that Mr. Whitford does not have standing to sue, as he lives in a district that is generally won by Democrats, yet is challenging the gerrymandering of the Republican party. Thus, the Court will have to ask how he has a fairly traceable injury. If the Court does decide on the merits, whatever decision they hand down will undoubtedly be a landmark ruling.

The Court will also look at two immigration cases, newsworthy given the current political climate. One, Sessions v. Dimaya, will look at the definition of “violent crime” in the Immigration and Naturalization Act. Mr. Dimaya argues that the definition is unconstitutionally vague, and asks the Court to apply the same reasoning used in a recent case to hold that the identical term, in a different Act, was unconstitutionally vague. The other, Jennings v. Rodriguez, looks at the due process implications of holding immigrants in detention centers for an extended period of time without a bond hearing.

On these controversial issues, the Court is often seen as a “Court of one.” Practitioners, scholars, and the public are anxiously waiting to see how Justice Kennedy will align himself. Will he be more inclined to move toward the right with his former clerk, Justice Gorsuch, there to quell any misgivings? Or will he continue to swing to the left? He will be carefully watched later this term during Masterpiece Cake, where his prior ruling in Obergefell will be put to the test. But that discussion is for a later preview introduction. For now, the highlights below will provide you with all the information you need to keep up with the full-strength Court.

October 2


Epic Systems Corp. v. Lewis
No. 16-285; 7th Cir.

Epic Systems Corp. v. Lewis, along with Ernst & Young v. Morris and National Labor Relations Board v. Murphy Oil USA (both cases consolidated with Epic Systems), deals with the relationship between the Federal Arbitration Act (“FAA”) and the National Labor Relations Act (“NRLA”). Epic Systems is a large healthcare software company headquartered in Wisconsin that, like many other businesses, requires employees to resolve employment disputes via arbitration, thus waiving their right to formal court proceedings.

In April 2014, Epic Systems sent an email to employees that contained an arbitration agreement stating that wage and hour claims could only be brought via individual arbitration, and that the employees to whom the email was sent waived “the right to participate in or receive money or any other relief from any class, collective, or representative proceeding.” The email further stated that, so long as an employee continued to work at Epic Systems, they were deemed to have accepted the Arbitration Agreement. Epic Systems provided no option to decline the agreement and still continue to work for the company. Jacob Lewis was one of the employees to whom the email was sent, and registered his agreement with the company.

Lewis later felt that Epic Systems had violated the Fair Labor Standards Act and Wisconsin law by misclassifying technical writers—his position with the company—in a way that unlawfully deprived them of overtime compensation. Lewis, on behalf of himself and his fellow technical writers, sued Epic Systems in Federal Court. Epic Systems moved to dismiss, arguing individual arbitration was Lewis’ only move forward. Lewis countered by arguing that the arbitration clause violated the NLRA and was unenforceable. The district court denied Epic Systems’s Motion to Dismiss, holding that the agreement and waiver were unenforceable because they violated the right of employees to engage in concerted activities under Section Seven of the NLRA. Epic Systems appealed the decision, claiming that the trial court erred in declining to enforce the agreement under the FAA. The U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal and stated that the waiver was also unenforceable under the FAA because the waiver was illegal under the NLRA.

The Court now will hear the case to determine “whether 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 [FAA], notwithstanding the provisions of the [NLRA].” The outcome will be eagerly watched by employers and employees alike to determine whether the individual arbitration provisions many have long included in employment agreements are enforceable going forward.

Sessions v. Dimaya
No. 15-1498; 9th Cir.

What makes a crime violent? The answer is hardly obvious. Two years ago, in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court invoked the void-for-vagueness doctrine to strike down part of the definition of “violent crime” in the Armed Career Criminal Act (“ACCA”), a law establishing mandatory minimum sentences for defendants with three qualifying convictions. Dimaya, a challenge to a similar provision of federal law incorporated into the Immigration and Nationality Act (“INA”), will test the reach of Johnson’s holding and could shield aliens in the United States with criminal convictions from deportation.

James Garcia Dimaya, a Philippine native and legal permanent resident of the United States, was convicted of two separate residential burglaries in California. The Department of Homeland Security (“DHS”) sought to remove Dimaya from the United States, arguing that the burglary qualified as an “aggravated felony” under the INA because it met the Act’s definition of a “crime of violence.” An immigration judge ordered Dimaya’s removal, and the Board of Immigration Appeals dismissed his appeal. While Dimaya’s petition was pending before the Ninth Circuit, the Supreme Court decided Johnson. In light of the Court’s conclusion that part of the ACCA’s definition of “violent crime” is unconstitutionally vague, the Ninth Circuit invalidated the similarly worded portion of the definition on which the Board of Immigration Appeals relied in removing Dimaya.

Seeking to contain Johnson’s effects, the government argues first that the Supreme Court’s invocation of the vagueness doctrine in that case is inapplicable in immigration law because removal proceedings are civil, not criminal. The due process limitations in the vagueness doctrine, the government argues, apply only to penal statutes. Alternatively, the government argues that even if the vagueness inquiry applies to the federal definition used by the INA, the law satisfies both factors of the test: fair notice and standards preventing arbitrary and discriminatory enforcement.

Dimaya argues that the definition of “violent crime” incorporated into the INA is no different from the constitutionally infirm definition in the ACCA. Both statutes, Dimaya notes, require courts to imagine the “ordinary case” of the underlying offense to determine if it meets the definition—a hypothetical inquiry that motivated the Court’s holding in Johnson. Moreover, Dimaya cites Jordan v. DeGeorge, 341 U.S. 223 (1951), to argue that removal proceedings, while civil, should be subject to the vagueness doctrine because of the severity of the penalty involved.

Despite Johnson’s recent vintage, the Court may look for a reason to avoid extending its holding to immigration law. Johnson produced a somewhat unusual split on the Court, with Justice Scalia writing for the majority, Justices Kennedy and Thomas concurring only in the judgment, and Justice Alito dissenting. Justice Scalia’s death and replacement with Justice Gorsuch could therefore scramble the Court’s decision. Perhaps with an eye to the new composition of the Court, the government has also warned of a potential domino effect of holding the challenged portion of the definition unconstitutionally vague, with unforeseeable effects on the enforcement of immigration laws and perhaps others as well.

October 3


Gill v. Whitford
No. 16-1161; W.D. Wis.

He may not be a party to the suit, but looming over one of the most potentially momentous cases at the Court this term is Elbridge Gerry—Vice President, Governor of Massachusetts, and namesake of the practice of drawing voting districts for partisan advantage. In Gill v. Whitford, the Court may decide if the Constitution places any limits on the ability of legislators to draw districts favorable to their party.

The suit challenges the Wisconsin legislature’s plan for the State Assembly. Drawn after the 2010 elections, which placed Republicans in full control of Wisconsin’s state government, the map resulted in a large, persistent Republican majority. That majority, challengers argue, was no coincidence: in drawing the districts, the drafters focused almost exclusively on maximizing partisan advantage.

The district court struck down the map as unconstitutional under the First and Fourteenth Amendments. The court developed a three-prong test for determining when a partisan gerrymander is unconstitutional: discriminatory intent, discriminatory effect, and a lack of a neutral justification.

On appeal to the Supreme Court, the plaintiffs—supporters of the Democratic Party in Wisconsin—argue that the district court’s test for invalidating partisan gerrymanders creates a justiciable question. They argue that the court’s test is discernible because it states clear constitutional violations, proceeds from the premise of “partisan symmetry,” and is grounded in the Supreme Court’s redistricting case law. Moreover, they argue that the test provides judicially manageable standards that are limited enough so as not to require the Supreme Court to supervise redistricting decisions.

The State, in response, argues that the State Assembly map conformed to traditional redistricting principles. They read the Court’s precedents to foreclose judicial review of redistricting decisions, and argue that the plaintiffs did not articulate judicially manageable standards for reviewing the constitutionality of redistricting decisions.

Depending on how far-reaching a decision the Court issues, Gill v. Whitford could reshape electoral politics across the country or definitively halt any effort to resolve disputes over partisan gerrymandering in the courts. Alternatively, the Court could look for an exit ramp and dismiss the case for lack of standing, holding that Mr. Whitford’s injury is not fairly traceable to the Republican-drawn map because he lives in a district historically won by Democrats.

Jennings v. Rodriguez
No. 15-1204; 9th Cir.
In the October 2016 term, a deadlocked eight-Justice bench ordered reargument in Jennings v. Rodriguez. With nine Justices, the Court is finally ready to answer the timely immigration question presented in this case.

Alejandro Rodriguez immigrated to the United States from Mexico when he was just a year old. He became a legal permanent resident of the U.S. at nine years old. After having some run-ins with the law later in life—including convictions for joyriding and misdemeanor drug possession—Rodriguez was placed in an immigration detention center, facing deportation to Mexico. For three years, Rodriguez remained in immigration detention without a single bond hearing. This same process is repeated for other immigrants facing criminal charges as well as asylum seekers.

Does it violate the Constitution—specifically, the Due Process Clause—to subject immigrants facing deportation to long-term detention without bond hearings? This issue has become particularly relevant in light of President Trump’s efforts to crack down on illegal immigration. In fact, immediately after assuming office, President Trump signed an Executive Order affirming that long-term detention without bond hearings was the official United States policy.

Two circuit courts have addressed the issue. The Second Circuit concluded that every immigrant facing deportation proceedings has a right to a bond hearing. The lower appellate court in this case, the Ninth Circuit, not only held immigrants had the right to bond hearings but even stated that bond hearings are required every six months. At oral argument last year for this case, several Justices seemed particularly wary of the Ninth Circuit’s decision because of its apparent judicial legislation. The fact that the Ninth Circuit actually provided that immigrant detainees must have a bond hearing every six months might again prove to be the contentious point when the Court rehears oral argument. If the Court takes issue with that, then perhaps it will avoid reaching the broader issue as to whether immigrant detainees can be held long term without a bond hearing.

October 4


District of Columbia v. Wesby
No. 15-1485; D.C. Cir.

District of Columbia v. Wesby began with a situation many have encountered, a noise complaint a neighbor lodged against a house party. It ended with an almost one-million-dollar judgement against the responding officers and the city.

In March of 2008, several individuals accepted a friend’s invitation to gather at a home in D.C. The host indicated that she was moving into a new place and invited several people over for a party. As often happens, those with invitations brought along more friends, and twenty-one people eventually ended up at the house. Sometime thereafter, Metropolitan Police Department officers responded to a noise complaint. Upon their arrival, they found the host was not present and contacted her by phone. The host indicated she had permission from the homeowner to host the party, but when the police called the property owner, the owner indicated that no lease had been signed, and thus the host did not have the authority to organize a party on the premises. The officers arrested everyone for unlawful entry.

Sixteen of the twenty-one individuals arrested proceeded to sue the officers and the District of Columbia. Under D.C. law, criminal trespass is when an individual unlawfully enters a location if they knew or reasonably should have known that they are entering the property against the will of the owner. In the instant scenario, however, it was undisputed that those present reasonably believed they had been invited to the home by the lawful renter, a fact that the arresting officers knew. Thus, the district court determined the officers lacked probable cause to arrest the individuals because “nothing about what the police learned at the scene suggests that the Plaintiffs ‘knew or should have known [they were] entering against the [owner’s] will.’” Wesby v. District of Columbia, 841 F. Supp. 2d 20, 32 (D.D.C. 2012). The district court granted summary judgment to the plaintiffs stating that the arrests violated their Fourth Amendment rights and the D.C. law against false arrest. The court also held the District of Columbia liable for negligent supervision.

The D.C. Circuit affirmed, saying that the officers lacked probable cause to arrest for disorderly conduct because they “failed to show any disturbance was of sufficient magnitude to violate local law.” Wesby v. District of Columbia, 765 F.3d 13, 17 (D.C. Cir. 2014). The arresting officers were also not entitled to qualified immunity because “no reasonable officer could have believed there was probable cause to arrest Plaintiffs for entering unlawfully . . . .” Id. at 26.

The Court will hear the case to determine two issues. First, whether “officers had probable cause to arrest the partiers under the Fourth Amendment,” and second, “whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.” The outcome of this case could have a significant impact on the ability of police officers to arrest suspects on probable cause, a standard Judge Janice Rogers Brown believes is currently an “impossible standard for finding probable cause . . . [which] undercuts the ability of officers to arrest suspects” and is a “heightened threshold that is not called for under our precedents.” Id. at 31 (Brown, J. dissenting).

Class v. United States
No. 16-424; D.C. Cir.

Class v. United States may have some bearing on future defendants who choose to plead guilty. Perhaps due to misfortune, the petitioner in this case was criminally charged with possessing a weapon on Capitol grounds. Mr. Class had a concealed-carry firearm permit and unknowingly parked his car in a parking lot on the Capitol grounds during a trip to Washington, D.C. The Capitol Police noticed his car lacked the proper parking permit and executed a legal search of the car. During the search, they found several guns. A statute completely prohibits all weapons on Capitol grounds. Petitioner was arrested, charged, and eventually pled guilty as a result.

Mr. Class argued in the lower courts that the statute at issue was unconstitutional, both because it violated his Second Amendment rights and because it was unconstitutionally vague. The circuits are split on the question of whether a guilty plea waives a defendant’s right to challenge the constitutionality of his statute of conviction. The Court’s decision will likely look toward its interpretation of two previous Supreme Court decisions from the 1970s: Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975). Collectively, the Court held that a defendant who pleads guilty can still raise a constitutional claim on appeal so long as the claim is not challenging his “factual guilt.” The circuit split frames the issue in three ways: whether a guilty plea waives as-applied, but not facial, challenges to the statute of conviction; whether a guilty plea does not waive either facial or as-applied challenges; or whether a guilty plea waives both facial and as-applied challenges.

If the Court holds that a defendant’s guilty plea does not waive the defendant’s right to challenge, this case could have a large impact on future defendants challenging their statute of conviction on constitutional grounds. Considering the large number of criminal cases ending in a guilty plea, the number of appeals could certainly increase. As the government notes in its brief, however, the likelihood of success for these appeals would be slim. In only one case has an appellate court reversed a defendant’s conviction on the basis of an unconstitutional statute of conviction argument.

October 10


Hamer v. Neighborhood Housing Services of Chicago
No. 16-658; 7th Cir.

Charmaine Hamer used to work as an intake specialist for the Housing Services of Chicago and Fannie Mae’s Mortgage Help Center. She sued her employers alleging violations of the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of her employers.

Under the Federal Rules of Appellate Procedure, Hamer had thirty days to file an appeal—until October 14, 2015. On October 8, 2015, Hamer’s attorney filed a motion to extend the deadline until December 14, 2015. The district court granted the motion, and Hamer filed her appeal on December 11, 2015, within the newly extended deadline.

Fannie Mae and the Housing Services of Chicago subsequently argued that Hamer’s appeal was untimely and therefore the appellate court lacked jurisdiction. They argued that the rule in question states “[n]o extension under Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” Hamer, however, argued that this rule is in conflict with 28 U.S.C. § 2017(c), which allows the district court to “extend the time for appeal upon a showing of excusable neglect or good cause” so long as the motion is filed no later than 30 days after the expiration of the time otherwise set for bringing the appeal.

The Seventh Circuit relied on Rule 4(a)(5) and dismissed Hamer’s appeal as untimely. They indicated that the rule only allowed extensions of thirty days. The Supreme Court granted certiorari to address a circuit split: the Second, Fourth, Seventh and Tenth Circuits have held that Rule 4(a)(5)(C) deprives an appellate court of jurisdiction over an appeal that is otherwise timely under a statute. In contrast, the Ninth and D.C. Circuits have held that because Rule 4(a)(5)(C) is not statutorily derived, it is a nonjurisdictional claim-processing rule and subject to equitable considerations like forfeiture, waiver, and the unique-circumstances doctrine.

October 11


National Association of Manufacturers v. Department of Defense
No. 16-299; 6th Cir.

During the Obama administration, the Environmental Protection Agency (“EPA”) issued a rulemaking, called the Clean Water Rule, that defined a “water of the United States.” Under this rule, the EPA and the Army Corps of Engineers would be able to assert jurisdiction over many types of waterways throughout the United States. Industry groups challenged the definition, arguing that the EPA and the Army Corps over-asserted the authority given to them by Congress in the Clean Water Act. The Trump administration has been very vocal about its intent to withdraw the rule, but the Supreme Court decided not to stay the case pending agency action. Instead, the Court will decide which court should hear the first round of arguments: federal appellate court or federal district court?

There is currently confusion surrounding judicial review for Clean Water Act cases. Parties challenging rules under the Clean Water Act essentially have to engage in protective filing where they file both in federal district and federal appellate courts. The National Association of Manufacturers (“NAM”), a manufacturing association that is often a party in environmental suits, argues that the lower federal district courts have jurisdiction to hear the case. In contrast, the Sixth Circuit claimed jurisdiction based on a section in the Clean Water Act: 33 U.S.C. § 1369(b)(1). This section allows circuit courts to directly review Clean Water Act suits first in a number of instances. For the purposes of this case, the court focused on two: that the rule is on a limit on pollution discharge—called an effluent limitation—or the rule is on a federal permit decision. The question here is whether the Clean Water Rule falls into either of these categories, thus giving the Sixth Circuit direct judicial review rather than the lower federal district court.

NAM uses a “plain language” argument to show that the rule does not fit into § 1369(b)(1)(E) or (F) because it is a definition that doesn’t actually limit any action. They argue that the rule does not contain any pollutant limitations and is not a decision on a federal permit, but is just a definition of what waters are subject to rulemaking on a pollutant or permit. Further, NAM argues that, by enumerating only a handful of factors for direct appellate review, Congress clearly wanted to limit appellate review of Clean Water Act challenges. NAM suggests that allowing a national rule like this to be directly reviewed by the appellate court would improperly expand the scope of the enumerated factors farther than Congress ever intended.

In opposition, the agencies argue that the Clean Water Rule fits under § 1369(b)(1)(E) because it functionally places a limitation of pollutant discharge. The rule is meant to define waters over which the EPA and the Army Corps will have jurisdiction for the purposes of limiting pollutants in our waterways. Further, the agencies argue that it fits under § 1369(b)(1)(F) not because it is a decision on a federal permit, but because it defines what waters fall under permitting requirements in the first place. The agencies argue that if the Clean Water Rule were to be heard in the lower district courts first, but decisions on federal permits were directly reviewable by appellate courts, a “bifurcated” regulatory scheme would result. The Supreme Court has previously ruled that such bifurcated schemes, where the underlying rule is reviewed by a district court, but decisions on the underlying rule go directly to an appellate court, are frowned upon. The agencies argue that this case should be no different.

Should the Court agree with NAM, parties wishing to challenge Clean Water Act rulemakings not fitting within the enumerated factors will have the benefit of a less-strict timeline under which to file their actions. With direct appellate review, parties must file within 120 days of the issuance of the rulemaking. Additionally, when national rule cases are filed in several different circuits, they are randomly consolidated into one circuit. Filing in federal district court will give parties more control over the forum in which they file because the same consolidation procedure does not apply. On the agency side, direct appellate review is a more efficient use of agency resources because of the consolidation process and overall appellate procedures and briefing timelines. Whatever the Court decides, it will be a welcome relief to settle at least one longstanding source of confusion under the Clean Water Act.

Jesner v. Arab Bank
No. 16-499; 2d Cir.

The plaintiffs, victims of terrorist attacks spanning over ten years, accused Jordan’s largest financial institution, Arab Bank, of processing financial transactions for known leaders of Hamas and other terrorist groups. The Plaintiffs argued that Arab Bank knew that the money they were processing was being used to fund terrorism, specifically suicide bombers, and did so anyways. However, this term the Court will decide a more fundamental issue: whether the bank can be sued in the United States. To do so, the Court must interpret the Alien Tort Statute, written in 1789—long before the magnitude of this issue could have conceivably been understood. The language of the statute provides that federal district courts can hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” At present, the circuits are split as to whether the statute categorically forecloses corporate liability.

Sound familiar? The Court has actually heard argument on this question before, in Kiobel v. Royal Dutch Petroleum. Esther Kiobel attempted to sue the Royal Dutch Petroleum Co. and its subsidiaries for aiding and abetting the human rights abuses of a military dictatorship operation in Nigeria. Ultimately, the Court had parties brief and reargue a broader question, and a unanimous Court held that there was a general presumption against the application of U.S. law outside U.S. borders, thus avoiding the question of corporate liability.

It is entirely possible that during this term, the Court might again avoid the question. Although the Department of Justice has submitted a brief asserting that private plaintiffs can sue corporations committing human rights abuses, the agency representing the U.S. government urges remand on the grounds that, here, the connection to the United States is too tangential. Although the money was—at some point in the process—funneled through Arab Bank’s New York branch, the money ultimately passed from a foreign entity to another foreign entity. Other extraneous factors might influence the Court’s thinking in this case, including foreign policy concerns, as Jordan is an important ally to the United States in the fight against ISIS.

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