Diary

The February Supreme Court Docket

ok supreme courtFebruary is a very light month for the Supreme Court’s oral argument schedule in that they will hear very few cases.  To summarize them:

(1) Kerry vs. Din-  When applying for a visa, an applicant must first visit a US embassy or consular office.  This case involves an American woman who married an Afghan citizen while working there.  The immigration law grants consular officials some discretion in denying or approving applications and there are certain statutory requirements and exceptions to granting the visa.  One of them is belonging to or lending material support to terrorist organizations.  The applicant in question here worked in some capacity for the Afghan government while that country was under Taliban control (whether he was a member of the Taliban is not a question here).  Hence, he was denied the visa by a US consular official in Islamabad, Pakistan.

The first question is whether the denial of the visa request impinges upon a constitutional right of the American spouse.  Second, the Court is asked whether the spouse can challenge the visa denial in court and if the Department of State must provide specific evidence as justification for the denial of the visa.  Prediction: The law is pretty clear here under the Immigration and Naturalization Act of 1952 (as amended) where broad discretion is granted to the Department of State.  Most importantly, the Court has previously noted that no one has a constitutional right to enter this country whether married to a US citizen or not.  The Court should side with the government.  An ounce of prevention…

(2) Coleman-Bey vs. Tollefson– This case is somewhat complicated but involves “three strikes” rules for lawsuits filed by prison inmates.  This policy was codified in law where if there were three previous lawsuits dismissed by the courts, there would be a presumption of frivolity on the part of the petitioner.  One of the goals was to free up the courts from prison inmate lawsuits.  There are exceptions to the three strikes rule if the prisoner is in danger of imminent physical harm.

Coleman-Bey had three previous suits dismissed by district courts.  However, the third suit dismissed was still under appeal and he argues that there was no third strike. This is a case of procedural due process.  The purpose of the Prison Litigation Reform Act was to cut back on these frivolous inmate lawsuits.  One can imagine a continuous string of lawsuits being filed while an appeal is pending thus circumventing the Act.  Prediction: This seems like a very shrewd inmate and lawyer have found a loophole in the original law that cries for a Congressional fix.  My guess is that it may be a closer decision than most would think with the Court coming down in favor of the petitioner here.

(3) Henderson vs. United States-  Henderson was a border patrol agent arrested on marijuana possession charges.  He voluntarily turned over his firearms to the FBI.  After pleading guilty and serving a six month sentence, the FBI refused to transfer those firearms to his wife- an innocent third party who purchased them.  Henderson is basically arguing that the government is bypassing forfeiture procedures and effectively stripping gun owners of their ownership interests.  Criminal law meets personal property law!  Prediction: Another tough one in a very complicated case.  In Henderson’s favor, other circuits have come to opposite conclusions and my guess is that the Court will side with those circuits.

(4) Tibble vs. Edison International-  A convoluted case under ERISA involving the fiduciary duties of retirement plan administrators and whether the investment in certain risky funds when less risky funds were available is actionable given a statute of limitations.  Prediction: Like I said, “convoluted”…

(5) EEOC vs. Abercrombie and Fitch Stores-  This will likely be the most closely watched case this month.  It involves a Muslim female employee of Abercrombie and Fitch who wore a headdress for religious reasons who was not hired under the store’s dress policy.  The initial interview gave the woman a passing score, but the interviewer was unsure whether the headscarf was permissible and sought advice from a regional manager who said that the black scarf was likely not allowable and her score was lowered.

She then sought relief through the EEOC and the district court ruled in favor of the plaintiff and she was eventually awarded $20,000 in damages.  On appeal, however, that reward was overturned with the appeals court noting that in the absence of an explicit notice that the employer was possibly in violation of Title VII, they were essentially denied an opportunity by the EEOC to make a reasonable accommodation to the applicant regarding the headscarf.  In other words, the employer was not aware of its possible civil rights violation and was never afforded an opportunity to make special arrangements which they likely would have done.  After all, there is evidence that this same store allowed a Jewish employee to wear a yamulke.

Prediction: This is not a case about the EEOC bending over to support a Muslim applicant.  This is about whether an employer should be given a fair chance to make a reasonable accommodation when it comes to religious clothing in the workplace.  There appears to be an honest misunderstanding of their responsibilities under Title VII that demands a remand to the lower courts.

(6) Baker Botts, LLP vs. ASARCO, LLC.-  Yet another bankruptcy case testing the limits of judicial discretion in awarding compensation for legal fees.  Prediction: The Court will empty out for this case which has all the drama of watching paint dry.  Yet another case whose outcome will likely require a congressional fix at some point.

That’s it for February.  As I noted, it is a very light docket this month.  However as February ends, two important cases highlight the first week in March- the Obamacare subsidy case and redistricting in Arizona.  Both of these cases have the potential to be blockbuster cases.  There are other important cases in March and those cases will be discussed in a later entry.