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Kemp v. United States

Issues

Does Federal Rule of Civil Procedure 60(b)(1) authorize relief based on a district court’s error of law?

This case asks the Supreme Court to decide whether Federal Rule of Civil Procedure 60(b)(1), which authorizes relief from a final judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect,” authorizes relief on the grounds that a district court committed an error of law. A federal district court determined that petitioner Dexter Earl Kemp’s motion for relief from legal error under Rule 60(b)(6) should instead be construed as a motion under Rule 60(b)(1) and dismissed Kemp’s petition because it was not presented within the one-year limitations period that applies to motions under Rule 60(b)(1) but not to motions under Rule 60(b)(6). On appeal to the Supreme Court, Kemp argues that, because Rule 60(b)(1) replicated identical state statutory provisions that did not allow relief for legal error, the Court cannot construe Rule 60(b)(1) to authorize relief for legal error. The United States responds that both the plain meaning of Rule 60(b)(1) and the fact that Rule 60(b)(1) replicated a California statute allowing relief for legal error establish that Rule 60(b)(1) allows relief for legal error. Because the Court’s decision on the meaning of Rule 60(b)(1) will determine for how long after entry of final judgment a litigant is entitled to seek relief for legal error, the resolution of this case will affect the expediency and finality of federal civil litigation. 

Questions as Framed for the Court by the Parties

Whether Federal Rule of Civil Procedure 60(b)(1) authorizes relief based on a district court’s error of law.

On November 15, 2013, the United States Court of Appeals for the Eleventh Circuit affirmed a district court judgment convicting petitioner Dexter Earl Kemp and several codefendants of various drug and firearm offenses. Kemp v. United States, No. 20-10958, slip op. at 2 (11th Cir.

Acknowledgments

The authors would like to thank Professor Kevin M. Clermont for his insights into this case.

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George v. McDonough

Issues

Did the Department of Veterans’ Affairs commit a clear and unmistakable error when it denied veteran disability benefits based on the agency’s interpretation of the law at the time, which was found to be erroneous by the agency’s later interpretation?

This case asks the Supreme Court to decide whether an agency commits “clear and unmistakable error” when it denies benefits to a veteran by relying on a binding regulation that is later invalidated. Petitioner Kevin George enlisted in the military when he was seventeen years old and was later medically discharged when he was diagnosed with schizophrenia. George sought benefits for the aggravation of his symptoms but was denied because the Board of Veterans’ Appeals relied on a later-invalidated regulation that incorrectly interpreted the statutory requirements for proving aggravation. After the regulation was invalidated in the early 2000s, George brought a claim for revision of the Board’s decision. The Federal Circuit Court, however, denied George’s claim, concluding that the agency had correctly relied on the law as interpreted at the time of its decision. George claims that an agency commits clear and unmistakable error when relying on later invalidated regulations. Respondent Denis McDonough, the Secretary of Veterans Affairs, counters that agencies do not commit clear and unmistakable error when relying on binding regulations in existence at the time of decision making. This case has important implications for military veterans’ benefits claims and the efficiency of Veterans’ courts.

Questions as Framed for the Court by the Parties

Whether, when the Department of Veterans’ Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.

The Department of Veterans’ Affairs (“VA”) administers a federal program that provides disability benefits to United States military veterans. See George v. McDonough at 1229. The VA does not give benefits to veterans for disabilities which existed before the veteran’s time in the military except for those noted at the time of the veteran’s examination.

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Viking River Cruises, Inc. v. Moriana

Issues

Does the Federal Arbitration Act preempt the California Private Attorneys General Act to require state courts to enforce a bilateral arbitration agreement stipulating that an employee cannot raise representative claims?

This case asks the Supreme Court to determine whether the Federal Arbitration Act demands that state courts enforce an arbitration agreement’s waiver of the statutory right of action to collect penalties on behalf of the state, despite state law prohibiting such a contractual waiver. Petitioner Viking River Cruises argues that the Federal Arbitration Act requires that arbitration agreements signed by employees must be enforced as written for claims brought under California’s Private Attorney General Act (PAGA) because such claims are individual disputes and incompatible with the procedures of individual bilateral arbitration. Respondent Angie Moriana counters that PAGA claims involve the state, not the individual, and that PAGA’s anti-waiver rule is necessary to bolster the state’s labor law enforcement. The outcome of this case has important implications for the enforcement of state labor codes, the availability of civil remedies for workers, and the effectiveness of arbitration agreements to resolve employment-related disputes.

Questions as Framed for the Court by the Parties

Whether the Federal Arbitration Act (“FAA”) requires state courts to a enforce an arbitration agreement that includes a waiver of a statutory right of action to collect penalties on behalf of a state, even when such a waiver is prohibited by the state’s law.

From 2016 to 2017, Angie Moriana worked as a sales representative for Viking River Cruises, Inc. (“Viking”), a company that globally operates and sells trips on ocean and river cruise lines. Brief for the Petitioner, Viking River Cruises, Inc., at 12.

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Torres v. Texas Dep’t of Public Safety

Issues

Does Congress have the power to grant suits against nonconsenting states under its constitutional war powers?

This case asks the Supreme Court to consider whether an act of Congress which allows veterans to sue states in their state court violates Article I of the Constitution. Leroy Torres, a veteran who served in Iraq, filed an employment discrimination case in Texas state court against his former state employer after it failed to provide relief for military injuries. The Texas courts found that Torres could not draw the state into a lawsuit using Texas courts. Torres argues that the text, history, and precedent of the Constitution’s war powers require Texas to participate in the suit. The state employer counters that if a private party were to subject Texas to its own judicial system, it would violate principles of sovereign immunity. This case has important implications for injured veterans’ ability to obtain relief from unlawful discrimination and can potentially radically reshape the balance of power between federal and state courts in deciding war powers questions.

Questions as Framed for the Court by the Parties

Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.

Leroy Torres joined the United States Army Reserve (“Reserve”) in 1989. Petitioner’s Appendix at 2a (opinion of Texas Court of Appeals). In 1998, the Texas Department of Public Safety (“DPS”) hired him as a state trooper. Id.

Acknowledgments

The authors would like to thank Professor Michael C. Dorf for his insights into this case.

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LeDure v. Union Pacific Railroad Company

Issues

Is a train that has made a temporary stop in a rail yard considered “in use” on a railroads line and subject to the Locomotive Inspection Act and its corresponding safety regulations?

This case asks the Supreme Court to determine whether a train that has stopped temporarily in a rail yard as part of its journey is considered “in use” on a railroads line and subject to the Locomotive Inspection Act (LIA) and other safety regulations. LeDure asserts that precedent cases under related legislation apply to the LIA and argues the term “use” encompasses locomotives, like UP5683, stopped en route to a destination, furthering the goal of the statutes to protect employees. Union Pacific counters that the precedent under similar statutes does not interpret “use” to encompass sidelined locomotives, and that the LIA contains unique aspects that limit the “use” of locomotives to their main purpose of actively hauling railcars. The outcome of this case has important implications for the safety and compensation of employees and the expectations of railroad operations.

Questions as Framed for the Court by the Parties

Whether a locomotive is in use on a railroads line and subject to the Locomotive Inspection Act and its safety regulations when its train makes a temporary stop in a rail yard as part of its unitary journey in interstate commerce, or whether such use does not resume until the locomotive has left the yard as part of a fully assembled train, as held by the U.S. Court of Appeals for the 7th Circuit, contrary to the decisions of the Supreme Court and other circuits.

Locomotive UP5683 was a component of a train that originated in Chicago, IL and terminated in Dexter, MO. Brief for Petitioner, Bradley LeDure at 7. UP5683 arrived in Salem, IL at 2:00 AM; before its scheduled departure of 3:00 AM, its crew needed to be replaced. Id. Petitioner Bradley LeDure (LeDure”) was part of the replacement crew.

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Southwest Airlines Co. v. Saxon

Issues

Are airline cargo loaders and their supervisors, who load and unload goods from planes that cross international or interstate borders but do not physically transport such goods themselves, “transportation workers” who are exempt from arbitration under Section 1 of the Federal Arbitration Act?

This case asks the Supreme Court whether an airline ramp supervisor is exempt from arbitration under the Federal Arbitration Act. The Federal Arbitration Act codifies the federal policy for disputes to go through arbitration, exempting workers that engage in interstate commerce. Southwest Airlines argues that Saxon must resolve her dispute through arbitration because Saxon is not an exempt employee under the Act. Saxon argues that her work as a ramp supervisor includes loading and unloading cargo that travels interstate, so she is exempt from mandatory arbitration. The outcome of this case has implications for defining the limits of the Federal Arbitration Act and how courts define a worker operating in interstate commerce.

Questions as Framed for the Court by the Parties

Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act.

Latrice Saxon is a Southwest Airlines (“Southwest”) ramp supervisor that manages the loading and unloading of passenger luggage. Saxon v. Sw. Airlines Co. at 494. As a ramp supervisor, Saxon trains, supervises, and occasionally assists ramp agents with loading and unloading cargo. Id.

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ZF Automotive US, Inc. v. Luxshare, Ltd

Issues

Does 28 U.S.C. § 1782, which authorizes federal district courts to order discovery “for use in a foreign or international tribunal,” apply to foreign or international private commercial arbitral tribunals?

This case asks the Supreme Court to decide whether a private commercial arbitral tribunal is a “foreign or international tribunal” for purposes of 28 U.S.C. § 1782, a federal law that governs international judicial assistance. International judicial assistance refers to aid provided by one sovereign government to another in judicial proceedings. In ZF Automotive US, Inc. v. Luxshare, Ltd, Petitioner ZF Automotive US, Inc. contends that, based on the plain meaning and legislative history of § 1782, it does not apply to private commercial arbitral tribunals located in foreign nations. Respondent Luxshare, Ltd. counters that the dictionary definitions and legal use of the terms “foreign” and “tribunal” show that the statute does apply to private commercial arbitration. In AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, Petitioner AlixPartners, LLC argues that its arbitral panel does not qualify under § 1782 simply due to the international nature of the parties or the dispute because that does not turn the panel itself into an “international tribunal.” Respondent Fund for Protection of Investors’ Rights in Foreign States counters that the arbitral panel does constitute an international tribunal because it is resolving a dispute over whether one country violated its obligations under a treaty. These cases implicate the fair and efficient resolution of arbitral disputes, party autonomy, and international comity.

Questions as Framed for the Court by the Parties

ZF Automotive US, Inc. v. Luxshare, Ltd.

Whether 28 U.S.C. § 1782, which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in “a foreign or international tribunal,” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the 2nd, 5th and 7th Circuits have held.

AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States

Whether the phrase “international tribunal” in 28 U.S.C. § 1782 excludes an international arbitral tribunal constituted pursuant to a treaty signed by two sovereign States and charged with the authority to adjudicate with finality whether one of the two sovereigns breached its obligations under the treaty.

ZF Automotive US, Inc. v. Luxshare, Ltd.

Acknowledgments

The authors would like to thank Professor Maggie Gardner for her guidance and insights into this case.

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Morgan v. Sundance, Inc.

Issues

Does a party waive its contractual right to arbitrate a claim whenever it engages in litigation proceedings on that claim or only when the opposing party is prejudiced by those litigation proceedings?

This case asks the Supreme Court to interpret the Federal Arbitration Act (“FAA”) to assess whether arbitration clauses in contracts may be waived by entering litigation. The FAA provides standards that courts must apply when enforcing contractual agreements to arbitrate disputes. Robyn Morgan argues that the FAA requires courts to interpret arbitration agreements to be no less and no more enforceable than other contractual provisions. Therefore, Morgan contends that she does not need to show that she was prejudiced in order to establish that her employer, Sundance, Inc. (“Sundance”), waived an agreement to arbitrate. Sundance counters that the FAA merely provides minimum standards for arbitration clauses, and even if it did not, proving waiver in this instance requires a showing of prejudice. The outcome of this case has heavy implications for arbitration proceedings and employment contracts.

Questions as Framed for the Court by the Parties

Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violates the Supreme Court’s instruction in AT&T Mobility LLC v. Concepcion that lower courts must “place arbitration agreements on an equal footing with other contracts.”

Congress passed the Federal Arbitration Act in 1925. Brief for Petitioner, Robyn Morgan at 5. The FAA’s purpose was to make arbitration agreements, previously disfavored in legal proceedings, as enforceable as other contracts. Id. at 6. To that end, Section 2 of the FAA explicitly states that agreements to arbitrate are valid and enforceable.

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Golan v. Saada

Issues

When the court is deciding to return a child to their habitual residence after the child was taken to the US against parental custody rights, should the court consider measures that may make the situation safer after a definitive finding that the child is at risk of grave danger if returned?

This case asks the Supreme Court to determine whether, under the Hague Convention, a court may consider ameliorative measures, such as protective orders or custody determinations, to prevent grave danger to a child when ordering a child back to their home country. The Hague Convention requires that children abducted in violation of parental custody rights must be returned to their country of habitual residence. Narkis Golan, a United States citizen living in Italy, brought her Italian-born child to the United States, and did not return to Italy because she was a victim of domestic abuse by her Italian husband, Isaac Saada. Saada then sued Golan under the Hague Convention. Golan claims that her case falls under an exception within the Hague Convention that stops the return of the child if there is risk that the child will be in grave danger. While the lower court found sufficient ameliorative measures to prevent potential danger and granted Saada’s petition, Golan argues that the ameliorative measures are counter to the goals of the Hague Convention and should not be required or considered, especially where there is domestic violence. Saada responds that ameliorative rights must be considered to fairly assess the child’s return to their habitual residence. The outcome of this case could affect the safety of children, Hague Convention proceedings, and cooperation between foreign nations.

Questions as Framed for the Court by the Parties

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.

In August 2015, Narkis Golan (“Golan”), a United States citizen, married Isacco Saada (“Saada”), an Italian citizen, in Milan, Italy. Saada v. Golan II, at 3. In June 2016, Golan gave birth to her and Saada’s son, B.A.S., in Milan. Saada v. Golan I, at 6. Saada physically and mentally abused Golan for most of their relationship. Id.

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Berger v. North Carolina State Conference of the NAACP

Issues

Do state legislators authorized under North Carolina law have a right to intervene to defend the constitutionality of the state’s voter-ID law, even though the Attorney General is representing the state in the litigation; and, must state legislators make a showing of inadequate representation to intervene?

This case asks the Supreme Court to determine whether state legislators have a right to intervene in a lawsuit filed against the state of North Carolina concerning the constitutionality of the state’s voter-ID law when the Attorney General is already representing the state in the matter. Petitioners Philip E. Berger, President Pro Tempore of the North Carolina Senate and Timothy K. Moore, Speaker of the North Carolina House of Representatives argue that Rule 24(a)(2) of the Federal Rules of Civil Procedure (“FRCP”) and North Carolina law grant state legislators the right to intervene on behalf of the state in judicial proceedings. Petitioners further maintain that Rule 24 only requires state agents to establish a minimum standard of inadequate representation to intervene in litigation involving their state’s interests. Respondents North Carolina State Conference of the NAACP and other North Carolina NAACP branches counter that Rule 24(a)(2) does not allow an additional party to join the case when its interests are identical to the existing party’s interests. Moreover, the Respondents argue that state legislators need to demonstrate a higher standard of inadequacy to show that the Attorney General is inadequately representing the state to join the case. The outcome of this case has important implications for the role of state governments in litigation, future parties that are or will be engaged in litigation with the states, and the judiciary.

Questions as Framed for the Court by the Parties

1. Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant?

2. Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion?

3. Whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation?

In 2018, North Carolina passed Senate Bill 824 (“the Bill”), which required voters to “present one of ten forms of authorized photographic identification” in order to vote. N. Carolina State Conf. of NAACP v.

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