January 24, 2024
Volume 31, Issue 6
This Report summarizes cases granted review on January 5, 12, and 22, 2024 (Part I).
Part I: Cases Granted Review
Trump v. Anderson, 23-719. The Court will resolve whether the Colorado Supreme Court erred in ordering former President Donald Trump to be excluded from the 2024 presidential primary ballot pursuant to Section Three of the Fourteenth Amendment. Section Three states that no person shall “hold any office, civil or military, under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” A group of Colorado electors eligible to vote in the Republican presidential primary filed a petition under Colorado’s Uniform Election Code seeking to prohibit the Colorado Secretary of State from placing Mr. Trump’s name on the primary ballot, alleging that he engaged in insurrection on January 6, 2021, after swearing an oath as president to support the Constitution. Mr. Trump and the Colorado Republican State Central Committee intervened, and the state district court held a five-day trial. The court found by clear and convincing evidence that Mr. Trump had engaged in insurrection as those terms are used in Section Three but concluded that Section Three does not apply to the office of the president because the president is not an “officer of the United States.” The Colorado Supreme Court reversed. 2023 WL 8770111.
The Colorado Supreme Court held that the Colorado Election Code permitted the electors to challenge Mr. Trump’s qualification based on Section Three, that Section Three was self-executing and did not require Congress to pass implementing legislation, that judicial review of the question was not precluded by the political questions doctrine, and, critically, that Section three does apply to the office of the president. With respect to the district court’s factual findings, the state supreme court held that the district court had properly admitted portions of Congress’s January 6 Report into evidence, had properly determined that the events of January 6, 2021, amounted to an “insurrection,” and had properly determined that Mr. Trump had “engaged in” that insurrection through his own actions, which were not protected by the First Amendment. Having affirmed the district court’s factual findings but reversed its ultimate legal conclusion that Section Three did not apply to the presidency, the Colorado Supreme Court held that Mr. Trump was disqualified from holding the office of the president and that it would therefore be unlawful for the Secretary of State to include Mr. Trump on the ballot.
In his petition, Mr. Trump argues first that only Congress can effectuate Section Three. He points to Section Three itself, which grants Congress the power to remove the disability imposed by that section, as well as Section Five of the Fourteenth Amendment, which provides that Congress “shall have the power to enforce, by appropriate legislation, the provisions of this Article.” And he argues that even if Section Three does not require federal enforcement legislation, without it courts lack manageable standards for resolving a Section Three dispute because Section Three does not dictate, for example, whether a jury is required or what the evidentiary standard should be. Second, Mr. Trump argues that the office of the presidency is not an “officer under the United States,” and that he never swore an oath to “support” the Constitution as an “officer of the United States,” pointing to the use and context surrounding those phrases in other parts of the Constitution.
Third, Mr. Trump argues that he did not “engage in insurrection” because that phrase means only the taking up of arms and waging war against the United States, whereas January 6, 2021, was merely a “political protest that turned violent”—a type of event that otherwise has not been treated as an insurrection. Further, Mr. Trump argues, he never told his supporters to enter the Capitol but instructed them to “remain peaceful,” and his speech was constitutionally protected under the standard set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969). Fourth, Mr. Trump argues that the Colorado state courts violated state election law, and therefore the Electors Clause of the Constitution, in two ways. First, the state supreme court erred in finding that the Secretary would commit a “wrongful act” by including Mr. Trump on the ballot, because Section Three “merely bars individuals from holding office, not from seeking or winning election to office.” Second, the state district court failed to hold a hearing within five days of the filing of the electors’ petition, and it failed to issue its decision within 48 hours of that hearing’s conclusion, in violation of state law. Finally, Mr. Trump reiterates that Section Three prevents a person only from holding office, not running for office or being elected to office, and this consideration on its own requires reversal of the Colorado Supreme Court’s decision.
The electors agree that certiorari review is warranted with respect to several federal questions. They argue that the political question doctrine does not apply because Section Three’s text does not commit its enforcement to a political branch, nor does such enforcement evade judicially manageable standards—rather, this type of determination is “precisely what courts do.” They argue that Section Three’s language requiring a supermajority of both houses to lift its disability shows, in fact, that the power to enforce Section Three in the first instance does not reside with Congress. They next argue that the Constitution repeatedly refers to the presidency as an “office,” and that the president’s oath to “preserve, protect, and defend” the Constitution necessarily includes an obligation to “support” it. And they point out that the historical record shows general agreement that Section Three applied to the presidency and that “insurrection” means something less than civil war and includes the incitement of others. The electors argue, however, that the Court should not re-weigh the facts found by the state district court, nor should it “second-guess” the Colorado Supreme Court’s interpretation of Colorado election law, because Mr. Trump did not raise his challenges below and invited some of the errors he alleges, and because deciding this case on state law grounds “would only kick the important federal issues here down the road” because there are similar, pending challenges in other states.
Moyle v. United States, 23-726; Idaho v. United States, 23-727. At issue is whether the federal Emergency Medical Treatment and Labor Act (EMTALA) preempts an Idaho law that criminalizes most abortions in the state. EMTALA requires hospitals that accept Medicare funds to provide, when any patient arrives at the emergency department, a screening examination “to determine whether or not an emergency condition exists”—including any condition that, without immediate medical attention, could reasonably be expected to result in “serious jeopardy” to the patient’s health or “serious impairment to bodily functions.” If the hospital determines that such a condition exists, EMTALA requires that it provide “stabilizing treatment,” i.e., treatment “necessary to assure . . . that no material deterioration of the condition is likely to result from or occur during” a transfer or a discharge. Idaho Code §18-622 criminalizes abortions under most circumstances—including where an abortion would be necessary to prevent serious harm, short of death, to the pregnant woman. The United States sued in federal district court and successfully obtained an injunction preventing Idaho from enforcing its law to the extent that it prohibits abortions that would be necessary under EMTALA. A Ninth Circuit panel stayed the injunction pending appeal, but the court en banc quickly vacated that order and reinstated it. Upon Idaho’s application, the Supreme Court again stayed the injunction and treated the application as a petition for certiorari before judgment, which it granted.
Petitioners (Idaho, the Idaho Legislature, the Idaho House Speaker, and the Idaho Senate President Pro Tempore) argue initially that the district court lacked authority to issue the injunction in the first place, because EMTALA evinces an intent by Congress to foreclose equitable relief. Regardless, petitioners argue, there is no conflict between EMTALA and Idaho law because EMTALA does not require abortions but, in fact, requires treatment for unborn children and requires that any child of a pregnant woman be delivered. Petitioners assert that the United States’ “reinterpretation” of EMTALA is wrong, and that EMTALA does not dictate any standard of medical care at all—its command for “stabilizing treatment” means only treatments that are authorized under state law. Similarly, petitioners argue that EMTALA requires only treatments that are “available at the hospital” which, at any hospital in Idaho, does not include abortion. In petitioners’ view, EMTALA’s purpose was only to prevent “patient-dumping”—disparate treatment of indigent and non-indigent patients—a purpose for which Idaho’s law presents no obstacle. Petitioners also assert that interpreting EMTALA as requiring abortion would run afoul of the Hyde Amendment, which restricts federal funding for abortion. Finally, petitioners argue that the United States’ interpretation of EMTALA violates the Tenth Amendment and the major questions doctrine because the legality of abortion is a question of vast economic and political significance, and the text of EMTALA is not a clear enough statement of congressional authority on the issue.
The United States counters that EMTALA’s mandate for “necessary stabilizing treatment,” in some cases, requires the termination of a pregnancy to prevent a harm to the mother’s health short of death, and Idaho’s law therefore criminalizes medical care that is required under federal law. The United States points to the section of the Affordable Care Act addressing abortion, 42 U.S.C. §18023(d), and argues that this section evinces Congress’ recognition that abortion can constitute “stabilizing treatment” required under EMTALA. In the United States’ view, petitioners’ reading of EMTALA as requiring only care that is authorized under state law reads words into the Act that are not there. The United States asserts that, while concerns about “patient dumping” were certainly a factor in EMTALA’s enactment, the plain text of the Act shows that its purpose was also to provide an assurance of emergency care generally. Finally, the United States argues that this case bears “none of the hallmarks” of the cases in which the Court has applied the major questions doctrine against an executive agency: EMTALA’s requirement that abortion be available as a “stabilizing treatment” is neither “vague” nor “cryptic,” and Congress had no reason to speak more clearly because no state could have prohibited abortion when EMTALA was enacted.
City of Grants Pass, Or. v. Johnson, 23-175. The Court will decide whether an Oregon city’s civil ban on camping on public property by the homeless is “cruel and unusual punishment” prohibited by the Eighth Amendment. In Robinson v. California, 370 U.S. 660 (1962), the Court held that the Cruel and Unusual Punishments Clause forbids punishing the status of being a drug addict, even if it permits punishing the act of using drugs. A four-member plurality declined to extend that holding in Powell v. Texas, 392 U.S. 514 (1968), concluding that the state could punish the defendant for public intoxication on a particular occasion as conduct without unconstitutionally criminalizing the status of being an alcoholic. A four-member dissent read Robinson to prohibit punishing involuntary or compulsive behavior that a defendant has no power to change. Justice White concurred in the judgment, opining that the Eighth Amendment might prohibit enforcement of the challenged law if the defendant had no place else to go, but finding that the defendant had not shown he could not have done his drinking in private or had involuntarily wandered into the street. In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the Ninth Circuit read Robinson and Powell (the dissent plus Justice White’s concurring opinion) to mean that the Cruel and Unusual Punishments Clause prohibits punishing an involuntary act if it is the unavoidable consequence of one’s status. Thus, held the court, a public camping or public sleeping ban that fines or jails a person experiencing homelessness violates the Eighth Amendment when there is insufficient alternative shelter. In the present case, the Ninth Circuit extended this holding to Grants Pass’ enforcement of its public camping ban through civil citations. 72 F.4th 868. The court of appeals also included the conduct of sleeping with minimal bedding within Martin’s “involuntary act” rationale. The denial of the city’s petition for en banc rehearing drew five separate dissenting opinions.
In its petition, the City of Grants Pass takes up the dissenters’ arguments about the decision’s pernicious effects on cities’ efforts to regulate homeless encampments, citing the public health and safety challenges that the proliferation of these encampments pose to municipalities’ officials and residents. Martin, the city argues, impermissibly fashioned a constitutional rule out of Justice White’s concurrence and the dissenting opinion in Powell. The result, it says, strays far afield from the original understanding of the Eighth Amendment as prohibiting certain methods of punishment, not constraining what can be criminalized in the first place. According to the city, other federal courts of appeals and state supreme courts applying Robinson have drawn bright-line distinctions between “status”- and “conduct”-based penalties and allow public camping bans as the latter kind of criminal law. Restoring the authority of local governments to enforce public camping bans is, the city argues, exceptionally important in addressing the complex homelessness crisis.
Respondents argue that the city’s circuit split is illusory and its characterization of Martin and the decision below is an exaggeration. The Ninth Circuit holdings, they assert, do not create a constitutional right to public camping and do not prevent a city from regulating or clearing encampments or penalizing harmful conduct that occurs there. Nor do those holdings endorse or implicate any theory prohibiting criminalization of harmful but arguably involuntary conduct, like certain compulsive sexual behavior. Sleeping (with a blanket in cold weather) is a normal and harmless biological necessity. Argue respondents, “[l]ike a law criminalizing breathing outside by homeless persons, the City’s ordinances punish respondents for simply existing within City limits. ‘It should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment.’” According to respondents, other circuits have not squarely addressed the question of truly involuntary homelessness because, for example, there was unrefuted evidence of unused shelter capacity. Finally, respondents criticize Grants Pass and amici political officials for overreading the Ninth Circuit decisions to deflect from their own policy failures on public encampments.
Williams v. Washington, 23-191. At issue is “[w]hether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. §1983 in state court.” Alabama’s unemployment benefits statutes require the exhaustion of an administrative appeals process as a prerequisite to state courts’ jurisdiction over unemployment claims. The Alabama Supreme Court relied on this requirement to affirm dismissal of petitioners’ due process and federal statutory challenges to that state-law administrative process. But in Patsy v. Board of Regents, 457 U.S. 496 (1982), the Court rejected a judicially imposed exhaustion requirement for §1983 claims. The Court will decide whether Patsy’s no-exhaustion rule applies in state courts and to administrative remedies imposed by state statute.
Nancy Williams and other unemployment benefit applicants (petitioners) filed challenges under §1983 in Alabama state court, alleging that Alabama’s failure to timely process their applications violated their due process rights and the Social Security Act, 42 U.S.C. §503(a)(1). The Alabama Secretary of Labor moved to dismiss on the grounds that the circuit court—Alabama’s trial court of general jurisdiction—could not hear petitioners’ claims until they had exhausted state administrative remedies. The Alabama Code provisions creating the unemployment compensation system provide an exclusive administrative appeals process, exhaustion of which is jurisdictional to the circuit court considering an appeal from an unemployment benefits decision. The circuit court dismissed, and the Alabama Supreme Court affirmed. 2023 WL 4281620.
In response to petitioners’ argument from Patsy, the Alabama Supreme Court observed that Patsy had only decided that §1983 itself contained no exhaustion requirement and rejected the atextual judicial imposition of one. That, the Alabama court reasoned, did not suggest that §1983 preempted or otherwise overrode a state-law exhaustion requirement clearly outlined in state statute. In short, Patsy did not “categorically reject[]” or hold unconstitutional state-law exhaustion requirements that limit a state court’s jurisdiction over §1983 claims.
Petitioners assert that this decision conflicts with numerous federal appellate and state high courts. They characterize Patsy—as well as a two-decade run of prior decisions—as plainly rejecting a requirement to exhaust state administrative remedies before bringing a §1983 suit in federal court, and argue the same result should obtain in state court. In Felder v. Casey, 487 U.S. 131 (1988), the Court applied Patsy to hold that a §1983 plaintiff need not satisfy a Wisconsin notice-of-claim requirement as a prerequisite to their state-law action, finding that §1983 preempted the Wisconsin law. Petitioners argue that Alabama’s exhaustion requirement is likewise preempted. Nor, they argue, can the jurisdictional framing of a state-law exhaustion requirement erect an obstacle to the vindication of §1983 claims in either federal or state fora.
Glossip v. Oklahoma, 22-7466. The Court will review several questions regarding the validity of petitioner Richard Glossip’s capital murder conviction, which the state has confessed was obtained improperly. At Glossip’s urging, the Court will review: (1) whether the state’s suppression of the key prosecution witness’ admission that he was under psychiatric care, and the state’s failure to correct his misleading testimony about that, violate due process under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), respectively; and (2) whether the entirety of the suppressed evidence in a case must be considered when assessing the materiality of Brady and Napue claims. At both Glossip’s and Oklahoma’s urging, the Court will review: (3) whether due process requires reversal of a capital conviction where the state’s chief law enforcement officer has confessed error based on prosecutorial misconduct and no longer seeks to defend it. The Court has additionally directed the parties to brief and argue: (4) whether the Oklahoma Postconviction Procedure Act is an “adequate and independent” state law ground supporting the judgment.
In 1997, 19-year-old Justin Sneed murdered Barry Van Treese, the manager of a Best Budget Inn in Oklahoma City. In exchange for avoiding the death penalty, Sneed confessed and told police that Glossip, the manager of the Inn, had instructed him to commit the murder. After refusing a plea bargain and insisting on his innocence, Glossip was convicted and sentenced to death, with Sneed’s testimony being the only evidence inculpating Glossip in the murder. In 2023, the Oklahoma Attorney General obtained and released material from the District Attorney’s case file to Glossip, including information that Sneed had been receiving treatment for a serious psychiatric disorder while in jail prior to Glossip’s first trial. This contradicted Sneed’s testimony at trial that he was not under any psychiatric care and had been prescribed lithium by mistake because he had “a cold.” The Attorney General’s Office also initiated its own independent investigation of the case, which led to its conclusion that the prosecution’s withholding of information about Sneed’s mental health and its failure to correct his false testimony, in addition to several other errors, violated due process and undermined confidence in Glossip’s trial and conviction.
Glossip filed a state postconviction petition; Oklahoma filed a response conceding that a due process violation had occurred and urging the Oklahoma Court of Criminal Appeals (OCCA) to reverse Glossip’s conviction. Nevertheless, the OCCA rejected the state’s concession and denied relief. The OCCA found no violation under Napue, reasoning that Sneed’s testimony was “not clearly false” because he was “more than likely in denial” about his own mental health disorders, and that the new information about Sneed’s mental health was “not material” in any event because it would not have changed the jury’s verdict. The OCCA also held that the Oklahoma Postconviction Procedure Act barred Glossip’s claim. The Act bars claims that could have been raised in a previous proceeding, unless the petitioner presents “clear and convincing” evidence that, but for the alleged error, no reasonable fact finder would have found the defendant guilty. The OCCA held that because Sneed had testified at trial that he had been prescribed lithium, this claim could have been presented in one of Glossip’s earlier proceedings, and the jury could still have found Glossip guilty had the additional information been disclosed.
Glossip’s petition reiterates his argument that the state’s suppression of Sneed’s mental health disorder and its failure to correct his false testimony violated due process under Brady and Napue. Glossip also argues that the OCCA erred in analyzing his Brady and Napue claims by limiting its consideration to only the most recent disclosures about Sneed’s mental health, rather than considering the entirety of the suppressed evidence in the case, including separate Brady violations Glossip had alleged in a previous petition. (Those separate Brady violations are the subject of a still-pending U.S. Supreme Court petition for certiorari in case number 22-6500.) And, in light of Oklahoma’s support, Glossip argues that due process requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
Oklahoma filed a response in support of Glossip’s petition, arguing that the OCCA’s analysis contradicted Napue by considering whether Sneed, rather than the prosecution, knew his testimony was false, and by downplaying the critical importance of Sneed’s testimony. And unlike its opposition brief in No. 22-6500, Oklahoma here disclaims that any independent and adequate state ground bars review, because (1) the OCCA’s application of the state law procedural bar was “intertwined with the merits of the federal question” under Napue and was therefore not independent; and (2) the OCCA’s determination that Glossip could have brought his Napue claim earlier lacked record support and was therefore not adequate. Oklahoma also agrees with Glossip that its own concessions required reversal of Glossip’s conviction, pointing to the Court’s order vacating judgment upon Texas’ confessions of error in Escobar v. Texas, 143 S. Ct. 557 (2023).
Starbucks Corp. v. McKinney, 23-367. The Court will resolve a circuit split over the standard for granting preliminary injunctive relief pending National Labor Relations Board (NRLB) proceedings over alleged unfair labor practices. Four circuits require the NRLB to apply the familiar four-part test for preliminary injunctions (likelihood of success on the merits, irreparable harm, the balance of the equities, and the public interest). Five circuits apply a two-factor test asking whether the NRLB has “reasonable cause” to believe unfair labor practices have occurred and that an injunction is “just and proper.” Two circuits apply a hybrid test.
The NRLB filed an administrative complaint against Starbucks after it fired seven union activists in a Memphis store, allegedly to stifle a union-organizing drive. The NLRB obtained temporary relief from the U.S. District Court for the Western District of Tennessee under §10(j) of the National Labor Relations Act, 29 U.S.C. §160(j), which authorizes district courts to grant such injunctions if the court “deems” that relief “just and proper.” The district court found “reasonable cause” to believe that Starbucks engaged in unfair labor practices by interfering with employees’ union activity and discriminating against employees to discourage union membership, and determined that temporary relief was “just and proper” based on the chilling effect Starbucks’ actions had on the union drive. The district court accordingly enjoined Starbucks from discriminating against employees based on union activity and ordered the reinstatement of the seven fired employees pending NRLB proceedings. The Sixth Circuit affirmed, applying the same two-factor test and finding temporary relief necessary to preserve the status quo (and NRLB’s remedial power) pending administrative proceedings. 77 F.4th 391.
Starbucks argues that the Sixth Circuit (and other circuits applying the two-factor test) should apply what it says is the more stringent, general test for injunctive relief. The four-factor test, articulated in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), maintains preliminary injunctions as extraordinary remedies requiring a rigorous irreparable injury showing. Starbucks asserts that the four-part test better reflects the language of §10(j), in that authorizing temporary relief “as [a district court] deems just and proper” calls for a traditional exercise of courts’ equitable discretion. The two-factor test, it contends, improperly and without any textual basis lowers the NRLB’s burden, asking only if its legal theory is not “frivolous” and supported by “some evidence” under the “reasonable cause” factor, and asking if injunctive relief would aid the Board’s remedial power under the “just and proper” factor. Starbucks points out that the circuit split is itself unfair to national corporations that must defend against §10(j) injunction motions under three different tests, which often prove outcome-determinative.
For its part, the NRLB acknowledges the circuit split but argues that the differences between the tests is more semantic than substantive. The Board characterizes the two-factor test as an application of the same four equitable factors in the generic test to the unique context of §10(j) injunctions and argues that both formulations borrow from the other: courts applying the two-factor test still treat injunctive relief as extraordinary, while courts applying the four-factor test still account for the posture and context of a §10(j) injunction.
Department of State v. Muñoz, 23-334. “Under the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., the decision to grant or deny a visa application rests with a consular officer in the Department of State. Under 8 U.S.C. 1182(a)(3)(A)(ii), any noncitizen whom a consular officer ‘knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . unlawful activity’ is ineligible to receive a visa or be admitted to the United States.” The Court limited the grant of certiorari to the following questions presented: “(1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen. (2) Whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. 1182(a)(3)(A)(ii) suffices to provide any process that is due.”
Salvadoran citizen Luis Asencio-Cordero married U.S. citizen respondent Sandra Muñoz in 2010, five years after entering the United States without lawful status. Muñoz filed an immigrant-relative petition to adjust Asencio-Cordero’s status to lawful permanent resident, which the government granted after finding the marriage bona fide. The final step required Asencio-Cordero to travel to El Salvador for an interview at the U.S. Consulate. There, the consular officer deemed Asencio-Cordero inadmissible under 8 U.S.C. §1182(a)(3)(A)(ii). When Asencio-Cordero sued, the government invoked the doctrine of consular nonreviewability, which holds that a noncitizen ordinarily has no right to review a consular officer’s visa determination. The California federal district court agreed that Asencio-Cordero had no right of review, but found Muñoz had a liberty interest sufficient to obtain some review of her spouse’s visa denial.
The most applicable precedent, Kerry v. Din, 576 U.S. 86 (2015), rejected a U.S. citizen’s due process claim based on the denial of a visa to her husband under the terrorist-activity provision in 8 U.S.C. §1182(a)(3)(b). Justice Scalia’s three-member plurality held that a U.S. citizen had no protected interest in a spouse’s visa application; Justice Kennedy’s two-member concurrence took no position on the citizen’s liberty interest but upheld the citation of §1182(a)(3)(b) as a “facially legitimate and bona fide reason” for the denial, providing any process that was due. The Ninth Circuit continued thereafter to recognize a citizen’s liberty interest in the spousal immigration context, and the district court here accordingly applied Justice Kennedy’s Din concurrence to review the process given in denying Asencio-Cordero’s visa. In discovery, the government had disclosed that the consular officer had based his “unlawful activity” finding on Asencio-Cordero’s tattoos, indicating gang membership—an inference Asencio-Cordero and Muñoz forcibly disputed. The district court found that the tattoos were not gang-related but upheld the decision anyway as a “facially legitimate and bona fide reason.” The Ninth Circuit reversed. 50 F.4th 906.
The Ninth CIrcuit affirmed its precedent recognizing Muñoz’s liberty interest and applied the Din “facially legitimate and bona fide reason” standard. The court observed, however, that Justice Kennedy’s rationale had turned on the language of the terrorist-activity provision, §1182(a)(3)(b), itself disclosing the “discrete factual predicates” for the visa denial. The Ninth Circuit found that the “unlawful activity” provision of §1182(a)(3)(A)(ii) contains no such discrete factual predicate, and thus the consular officer was obligated to supply a more detailed factual basis to satisfy due process. And while the Ninth Circuit agreed that the government’s discovery responses supplied that factual basis, it had come too late (three years after the denial) to give Muñoz timely notice and an opportunity to respond.
In its petition, the Government challenges three aspects of the Ninth Circuit’s decision. First, it argues that Muñoz lacks a protected interest in her husband’s visa application. Given the political branches’ plenary authority over immigration, including spousal immigration, the Government urges the Court to follow Justice Scalia’s plurality in Din. Second, even if the Court recognizes a liberty interest here, the Government urges it to find that the consular officer’s citation of the §1182(a)(3)(ii) “unlawful activity” provision satisfies due process, consistent with Justice Kennedy’s rationale in his Din concurrence. In Colindres v. Dep’t of State, 71 F.4th 1018 (D.C. Cir. 2023), the D.C. Circuit held just that, in conflict with the Ninth Circuit’s decision here. Third, the Government asks the Court to reject the Ninth Circuit’s timeliness requirement. The Court, however, granted certiorari only on the first two alleged errors and not the timeliness question.
Smith v. Spizzirri, 22-1218. The Court will resolve a circuit split over whether, under a Federal Arbitration Act (FAA) provision requiring district courts to stay a lawsuit pending arbitration, district courts have discretion to dismiss instead when all claims are subject to arbitration. Section Three of the FAA provides that when a district court finds a dispute subject to arbitration, it “shall on application of one of the parties stay the trial of the action” until the arbitration has concluded. Six federal circuits have interpreted this to permit only a stay, while four—including the Ninth Circuit—allow courts discretion to dismiss the case if all claims are subject to arbitration.
Petitioners Wendy Smith, Michelle Martinez, and Kenneth Turner are delivery drivers who sued their employer in Arizona for violations of federal and state employment law. Respondents removed the case to federal court and then moved to compel arbitration and dismiss, citing the parties’ agreement that all the claims were subject to mandatory arbitration. Although petitioners argued that the FAA’s language required a stay, and the district court acknowledged that the statutory language “suggested” as much, the court rejected petitioners’ arguments in support of a stay and dismissed the case. The Ninth Circuit affirmed. 62 F.4th 1201. It likewise noted that the FAA’s language “appears to mandate a stay,” but nonetheless felt constrained to affirm under circuit precedent “absent intervening higher authority.”
Petitioners frame the question as a simple one: “If the FAA means what it says,” they should win. It is not just Section Three’s use of the word “shall,” but also the fact that the FAA expressly denies the right to an immediate appeal from an interlocutory order compelling arbitration or staying the proceeding. If courts have discretion to dismiss, petitioners argue, a case that should have been stayed becomes final and immediately appealable, conferring a right that has been “expressly proscribed by Congress” and undercutting the FAA’s pro-arbitration purpose. Similarly, petitioners point to certain actions a court is authorized to take under other sections of the FAA while a case is stayed pending arbitration—for example, appointing an arbitrator, compelling the attendance of arbitration witnesses, or forcing a defendant to actually proceed with arbitration—and argue that dismissal frustrates these provisions. And dismissal, combined with a defendant’s refusal to initiate arbitration or other delay, can cause the statute of limitations to run before the plaintiff is able to refile.
Respondents counter that petitioners violated their contracts by filing suit when they were required to submit each of their claims to arbitration first. They argue that the case “was never properly in court” to begin with, and courts have “always had inherent authority to dismiss cases that never should have been filed,” analogizing to a plaintiff filing suit after executing a covenant not to sue. Respondents argue that Congress legislated against this common law background when it enacted the FAA, and that the language requiring a court to “stay the trial of the action” does not require that all cases involving arbitrable claims be stayed, but merely prevents a court from proceeding to trial on some claims while others are being arbitrated. In respondents’ view, petitioners’ reading of the statute adds unnecessary expense to arbitration by requiring defendants to appear in multiple forums. It is not the job of federal courts to “supervise” arbitration, and none of the judicial powers authorized in other sections of the FAA are lost when a case is dismissed without prejudice but remain available in a new lawsuit. Finally, while respondents acknowledge that dismissal could risk expiration of the limitations period, they contend that this would be an “exceedingly rare circumstance” in which the plaintiff would have a persuasive argument as to why the district court should stay the litigation rather than dismissing it.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel, (202) 326-6010
- Theodore McCombs, Supreme Court Fellow
- Brian Lanni, Supreme Court Fellow
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