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SCOTUS grants review in two cases for its 2021-2022 term

On March 22, the U.S. Supreme Court accepted two cases for review during its 2021-2022 term. With the addition of these two cases, the court had agreed to hear 10 cases during the term, which is scheduled to begin on October 4, 2021. 

United States v. Tsarnaev concerns the death penalty conviction of Dzhokhar Tsarnaev, who was convicted of committing acts of domestic terrorism at the 2013 Boston Marathon. The questions presented to the court are: “1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case; 2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.” Tsarnaev originated from the U.S. Court of Appeals for the 1st Circuit.

Servotronics, Inc. v. Rolls-Royce PLC concerns whether a private commercial arbitral tribunal is a foreign or international tribunal within the meaning of 28 U.S.C. §1782(a). The question presented to the court is, “Whether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in ‘a foreign or international tribunal’ encompasses private commercial arbitral tribunals, as the Fourth and Sixth Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held.” Servotronics originated from the U.S. Court of Appeals for the 7th Circuit.

The Supreme Court is currently hearing oral arguments as part of its 2020-2021 term. Its March sitting began on March 22 and will conclude on March 31, with the court hearing six hours of oral argument during that period. As of March 8, the court had agreed to hear 63 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Also as of March 8, the court had issued opinions in 19 cases this term. Four cases were decided without argument.

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U.S. Supreme Court begins March argument sitting

This week, the Supreme Court of the United States (“SCOTUS”) begins its March sitting. The court will hear cases remotely and provide audio livestreams of oral argument, continuing its safety protocols implemented at the start of the term in accordance with public health guidance related to COVID-19. 

This week, SCOTUS will hear three hours of oral argument in three cases:

• March 22: Cedar Point Nursery v. Hassid came to the court from the U.S. Court of Appeals for the 9th Circuit. The case concerns the regulations governing labor union organizers’ access to employees at worksites.

• March 23: United States v. Cooley originated from the U.S. Court of Appeals for the 9th Circuit and concerns the scope of law enforcement officers’ search-and-seizure authority.

• March 24: Caniglia v. Strom concerns the scope of police officers’ authority for search and seizure and as community caretakers. The case originated from the U.S. Court of Appeals for the 1st Circuit. 

Next week, SCOTUS will hear three hours of oral argument in four cases. After the March sitting, the court is scheduled to hear arguments in 15 cases before the end of the term. To date, the court has heard arguments in 50 cases. 

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SCOTUS Public Information Office makes COVID-related announcements

On March 19, 2021, the U.S. Supreme Court’s Public Information Office announced that the court will hear arguments remotely and provide live audio streams to the public during its upcoming April argument session. The decision was made in accordance with public health guidance in response to COVID-19. To date, all arguments have been conducted remotely this term. 

The court is scheduled to hear 12 hours of oral argument in 14 cases between April 19 and April 28. One case originally scheduled for argument during the April sitting, Terry v. United States, has been postponed.

On March 5, the court’s Public Information Office said that all of the justices had been fully vaccinated. 

On March 19, the court held its first in-person conference since last spring. Some of the justices participated remotely.

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SCOTUS releases April argument calendar

Image of the front of the United States Supreme Court building.

On March 12, 2021, the Supreme Court of the United States (SCOTUS) scheduled its April argument sitting for the 2020-2021 term. The court will hear 13 hours of oral argument in 15 cases between April 19 and April 28. 

To date, all cases that have been accepted for argument during this term have been scheduled. Three cases originally scheduled for argument were removed from the calendar. In total, the court has agreed to hear 63 cases.

The following list organizes the cases by their scheduled argument dates:

April 19, 2021

  • Yellen v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation)
  • Sanchez v. Mayorkas

April 20, 2021

  • Greer v. United States
  • United States v. Gary
  • Terry v. United States

April 21, 2021

  • City of San Antonio, Texas v. Hotels.com, L.P.
  • Minerva Surgical Inc. v. Hologic Inc.

April 26, 2021

  • Americans for Prosperity v. Becerra (Consolidated with Thomas More Law Center v. Becerra)
  • Guam v. United States

April 27, 2021

  • HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association
  • United States v. Palomar-Santiago

April 28, 2021

  • Mahanoy Area School District v. B.L.
  • PennEast Pipeline Co. v. New Jersey

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U.S. Supreme Court dismisses case about 2019 DHS immigration rule expanding definition of public charge

On March 9, 2021, the clerk of the U.S. Supreme Court granted a request from the Biden administration and the groups challenging a 2019 immigration rule to dismiss Department of Homeland Security v. New York.

The case involved whether the U.S. Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) and federal immigration law when it issued a 2019 rule expanding the definition of those the agency would consider to be a public charge. 

When DHS classifies someone as likely to become a public charge, the agency gains ground to deny that person entry into the United States or deny them legal permanent resident status. Opponents of the rule argued that it violated the Administrative Procedure Act by failing the arbitrary-or-capricious test, which instructs courts reviewing agency actions to invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Before President Joe Biden’s (D) inauguration, DHS had defended the rule, arguing that it was within the agency’s broad authority to decide questions of immigration policy. DHS had also claimed that the states, city, and nonprofit organizations who challenged the rule did not have legal standing to file a lawsuit under the APA. 

On March 9, DHS Secretary Alejandro N. Mayorkas announced that the agency would no longer defend the rule because, in his words, “doing so is neither in the public interest nor an efficient use of limited government resources.”

Under U.S. Supreme Court Rule 46, the court’s clerk will agree to dismiss a case if all of the involved parties file a written agreement that the case should be dismissed. The clerk dismissed Department of Homeland Security v. New York the same day the parties filed their agreement with the court. 

To learn more about the case or the Administrative Procedure Act see here:

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Text of the request for a dismissal:

https://www.supremecourt.gov/DocketPDF/20/20-449/171281/20210309101553454_20-0449%20-%20DHS%20v%20New%20York%20Dismissal%20Stipulation.pdf

DHS press release about public charge rule:

https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-2019-public-charge-rule

Text of Rule 46:

https://www.law.cornell.edu/rules/supct/rule_46#:~:text=Dismissing%20Cases,-1.&text=At%20any%20stage%20of%20the,enter%20an%20order%20of%20dismissal.



SCOTUS grants review in one case for its 2021-2022 term

On March 8, the Supreme Court of the United States (SCOTUS) accepted one case for review during its 2021-2022 term. With the addition of this case, the court has granted review in a total of eight cases for the term, which is scheduled to begin on October 4, 2021. 

Thompson v. Clark concerns the Supreme Court’s favorable termination rule for plaintiffs suing for unconstitutional conviction or imprisonment pursuant to 42 U.S.C. § 1983 and burden of proof requirements in cases of unlawful warrantless entry under the Fourth Amendment. Thompson originated from the U.S. Court of Appeals for the 2nd Circuit.

SCOTUS is currently out of session, having finished its February sitting on March 3. The court’s March sitting is scheduled to begin on March 22 and is the last sitting of its 2020-2021 term. As of March 8, 2021, the court had agreed to hear 63 cases during the 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Also as of March 8, the court had issued opinions in 19 cases this term. Four cases were decided without argument.

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SCOTUS hears three hours of oral argument during the first week of March

The first week of March closed out the U.S. Supreme Court’s February sitting with three hours of oral arguments in seven cases. The court will hear oral arguments again during its March sitting scheduled for March 22 to March 31. 

On March 1, the court heard one hour of oral argument in United States v. Arthrex Inc. (consolidated with Smith & Nephew Inc. v. Arthrex Inc. and Arthrex Inc. v. Smith & Nephew Inc.) The issues before the court were: “1. Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or ‘inferior Officers’ whose appointment Congress has permissibly vested in a department head; and 2. Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.”

On March 2, the court heard one hour of oral argument in Brnovich v. Democratic National Committee (consolidated with Arizona Republican Party v. Democratic National Committee). The issues before the court were: “1. Does Arizona’s out-of-precinct policy violate Section 2 of the Voting Rights Act?; and 2. Does Arizona’s ballot-collection law violate Section 2 of the Voting Rights Act or the Fifteenth Amendment?”

On March 3, the court heard one hour of oral argument in Carr v. Saul (consolidated with Davis v. Saul). The issue before the court was: “Whether claimants seeking disability benefits under the Social Security Act must exhaust Appointments Clause challenges before the Administrative Law Judge as a prerequisite to obtaining judicial review.”

As of February 25, 2021, the court had agreed to hear 63 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

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Federal Labor Relations Authority submits brief defending rule on union dues

FLRA submits brief defending rule on union dues

On Feb. 5, the Federal Labor Relations Authority (FLRA), which administers the laws governing federal labor relations, submitted a brief defending a February 2020 decision permitting federal workers to stop paying union dues at any time after their first year of dues-paying membership. Before this, federal workers were only permitted to rescind their union-dues assignments at one-year intervals.  

What is at issue? 

Before 2020, the FLRA had interpreted Section 7115(a) of the Federal Service Labor‑Management Relations Statute to mean that dues deduction authorizations could only be revoked in one-year intervals. After the Supreme Court issued its decision in Janus v. AFSCME, ruling that public-sector unions could not compel non-members to pay fees, the Office of Personnel Management petitioned the FLRA for guidance on Janus’ applicability to § 7115(a).

On Feb. 14, 2020, the FLRA voted 2-1 to overturn the earlier interpretation, saying, “[N]otwithstanding previous assertions otherwise, § 7115(a) neither compels, nor even supports, the existing policy on annual revocation windows. Because it remains our privilege and responsibility to interpret the Statute in a manner that is consistent with an efficient and effective government, we cannot allow our decisions or statements of policy to merely rubber-stamp what was said in the past.” 

The final rule was published in July 2020. 

The National Treasury Employees Union (NTEU) submitted a petition for review in the U.S. Court of Appeals for the D.C. Circuit in July 2020.

FLRA brief & NTEU response 

The FLRA’s Feb. 5 brief cited Chevron v. Natural Resources Defense Council, a 1984 Supreme Court case that established how much a federal court, in reviewing a federal government agency’s action, should defer to the agency’s interpretation of a law the agency administers. Click here to sign up for Ballotpedia’s Learning Journey on Chevron deference and explore the legal doctrine in depth.

According to the FLRA’s brief:     

The Authority’s well-reasoned interpretation of its Statute, which is owed Chevron deference, and prudent and lawful use of its broad rulemaking power warrant denial of the Petitions. The Unions’ strained arguments do not establish that the Authority’s decisions are based on an impermissible interpretation of the Statute, or that they are arbitrary or capricious. …

Ultimately, the Policy Statement and Final Rule are the product of the Authority’s measured and well-reasoned application of its statutory expertise.

Tony Reardon, NTEU president, said, “[s]ince the FLRA ruling one year ago, the leadership at OPM and the chairmanship of the FLRA has changed. We believe that the appellate court should reverse the FLRA decision, or this is a topic that the Authority should have an opportunity to revisit.”

The case name and number are National Treasury Employees Union, et al., v. Federal Labor Relations Authority (20-1038).

More about the Federal Labor Relations Authority: The Federal Labor Relations Authority administers the Federal Service Labor-Management Relations Statute, which permits certain non-postal federal employees to unionize and bargain collectively. The FLRA has three full-time members, each of whom is a presidential appointee. Members serve five-year terms. 

Colleen Duffy Kiko and James T. Abbott were both appointed by President Donald Trump (R) in 2017. Ernest DuBester was first appointed by President Barack Obama (D) in 2009. DuBester was subsequently re-appointed to second and third terms by Obama and Trump, respectively. In January 2021, President Joe Biden (D) designated DuBester as chairman of the authority. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 68 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. 

  • Maine LD97: This bill would bar public-sector and private-sector employers from requiring employees to join or pay dues to a union as a condition of employment.
    • Republican sponsorship. 
    • Labor and Housing Committee hearing scheduled for Feb. 17. 
  • Maryland HB1321: This bill would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment.
    • Republican sponsorship. 
    • Introduced Feb. 8. House Economic Matters Committee hearing scheduled for March 5. 
  • Maryland HB837: This bill would establish a separate collective bargaining unit for teachers at the Maryland School for the Deaf.
    • Democratic sponsorship. 
    • House Appropriations Committee hearing Feb. 10. 
  • Maryland HB894: This bill would establish collective bargaining rights for certain community college employees.
    • Democratic sponsorship. 
    • House Appropriations Committee hearing Feb. 10. 
  • Maryland SB521: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, or St. Mary’s College of Maryland.
    • Democratic sponsorship. 
    • Senate Finance Committee hearing scheduled for Feb. 18. 
  • Maryland SB556: This bill would establish a separate collective bargaining unit for teachers at the Maryland School for the Deaf.
    • Democratic sponsorship. 
    • Senate Finance Committee hearing scheduled for Feb. 25. 
  • Michigan HB4176: This bill would allow a public-sector union to require non-members it represents to pay a service fee to the union.
    • Democratic sponsorship. 
    • Introduced and referred to House Workforce, Trades, and Talent Committee Feb. 9. 
  • Montana HB251: This bill would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment. It would also allow employees to revoke payroll deductions for union dues at any time with written notice. 
    • Republican sponsorship. 
    • House Business and Labor Committee hearing scheduled for Feb. 16. 
  • Nebraska LB684: This bill would prohibit public school employers and unions from placing restrictions on when employees can join or leave unions.
    • Business and Labor Committee hearing Feb. 8. 
  • New Hampshire HB206: This bill would establish that collective bargaining strategy discussions in which only one party is involved would not be subject to the state’s right-to-know law.
    • Republican sponsorship. 
    • House Judiciary Committee hearing scheduled for Feb. 19. 
  • New Hampshire HB348: This bill would require a public employer to provide notice of a new or amended collective bargaining agreement.
    • Republican sponsorship. 
    • House Labor, Industrial and Rehabilitative Services Committee hearing Feb. 11. 
  • Oregon HB3119: This bill would permit public employees to refrain from joining or paying dues to a labor union. It would also allow unions not to represent employees who choose not to join or pay dues to the union.
    • Republican sponsorship. 
    • Introduced Feb. 9. 
  • Tennessee HJR0005: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship.
    • Withdrawn from consideration Feb. 8.
  • Tennessee HJR0072: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship. 
    • Assigned to House Banking & Consumer Affairs Subcommittee on Feb. 10.
  • Tennessee SJR0002: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship.
    • Senate Judiciary Committee hearing scheduled for Feb. 16. 
  • Washington SB5133: This bill amends the definition of a “confidential employee” for the purposes of collective bargaining.
    • Democratic sponsorship. 
    • Substitute bill approved and sent to Senate Rules Committee for second reading Feb. 11.



Supreme Court issues rulings involving the Foreign Sovereign Immunities Act

The U.S. Supreme Court (SCOTUS) took action on a number of cases on February 3, issuing opinions in three cases, granting review in one case, and removing two cases from its February 2021 argument calendar.

SCOTUS issued opinions in Salinas v. United States Railroad Retirement Board, Federal Republic of Germany v. Philipp, and Republic of Hungary v. Simon.

Salinas v. United States Railroad Retirement Board involved the scope of judicial review of actions taken by administrative agencies. In a 5-4 opinion, the court ruled that a choice by the U.S. Railroad Retirement Board not to reopen a decision to deny Manfredo Salinas benefits was a final agency action subject to judicial review. In the majority opinion, the court said that review of agency reopening decisions will be limited to weighing whether the agency decision was an abuse of discretion. SCOTUS’ ruling reversed the United States Court of Appeals for the 5th Circuit’s decision and remanded the case back to the lower court for further proceedings. Justice Sonia Sotomayor wrote the majority opinion that was joined by Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Brett Kavanaugh. Justice Clarence Thomas filed a dissenting opinion that was joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.

Federal Republic of Germany v. Philipp concerned the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). In a unanimous ruling, SCOTUS vacated the U.S. Court of Appeals for the D.C. Circuit’s ruling and remanded the case for further proceedings, holding that FSIA’s expropriation exception includes the domestic takings rule, meaning that a foreign sovereign taking its own nationals’ property is not unlawful under the international law of expropriation. Chief Justice John Roberts wrote the opinion for the court.

Republic of Hungary v. Simon also involved the doctrine of international comity and the expropriation exception of FSIA. In a unanimous, unsigned opinion, SCOTUS vacated the U.S. Court of Appeals for the D.C. Circuit’s ruling and remanded the case for further proceedings consistent with the court’s ruling in Federal Republic of Germany v. Philipp.

SCOTUS granted review in the case of PennEast Pipeline Co. v. New Jersey. The case originated from the U.S. Court of Appeals for the 3rd Circuit and concerns jurisdictional requirements of eminent domain under the Natural Gas Act. 

The case: The Natural Gas Act (NGA) allows private gas companies to exercise the federal government’s power to take property by eminent domain if certain jurisdictional requirements are met. Natural gas company PennEast Pipeline Company (“PennEast”) was scheduled to build a natural gas pipeline through part of New Jersey. PennEast obtained federal approval and sued for access to the properties under the NGA in federal district court. The State of New Jersey (“New Jersey”) sought to dismiss PennEast’s suits, arguing that PennEast did not satisfy the NGA’s jurisdictional requirements and that the state held immunity from the suit under the Eleventh Amendment to the U.S. Constitution. The U.S. District Court for the District of New Jersey allowed PennEast immediate access to the properties at issue. New Jersey appealed to the U.S. Court of Appeals for the 3rd Circuit, which held that New Jersey was immune and vacated the district court’s orders.

The issue: “Whether the NGA delegates to FERC certificate holders [have] the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.”

SCOTUS also announced it was removing two cases from its February argument calendar: Trump v. Sierra Club and Wolf v. Innovation Law Lab. In both cases, the U.S. government requested the court remove the cases from its argument calendar to allow the government to hold further briefings related to policy changes enacted by the Biden administration. SCOTUS granted the government’s motions. Trump v. Sierra Club had been scheduled for argument on February 22; Wolf v. Innovation Law Lab had been scheduled for March 1.

SCOTUS began hearing cases for its October 2020-2021 term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June. As of February 3, 2021, the court had agreed to hear 63 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

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U.S. Supreme Court releases argument calendar for February, March

The U.S. Supreme Court has released its argument calendar for February and March of the 2020-2021 term. The court will hear eight hours of oral argument in eight cases between February 22 and March 3.

So far, the court has agreed to hear 48 cases during its 2020-2021 term.

February 22, 2021

  • Trump v. Sierra Club
  • Florida v. Georgia

February 23, 2021

  • Barr v. Dai (Consolidated with Barr v. Alcaraz-Enriquez)

February 24, 2021

  • Lange v. California

March 1, 2021

  • Wolf v. Innovation Law Lab
  • United States v. Arthrex Inc. (Consolidated with Smith & Nephew Inc. v. Arthrex Inc. and Arthrex Inc. v. Smith & Nephew Inc.)

March 2, 2021

  • Brnovich v. Democratic National Committee (Consolidated with Arizona Republican Party v. Democratic National Committee)

March 3, 2021

  • Carr v. Saul (Consolidated with Davis v. Saul)

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