Supreme Court Update: CNH Industrial N.V. v. Reese (17-515)

February 22, 2018 Supreme Court Update

Greetings, Court Fans!

After a four-week winter recess (you thought schoolchildren had it easy!), The Nine are back at work this week, and they handed down four opinions yesterday morning to prove they haven't been hibernating all this time. In Digital Realty Trust v. Somers(No. 16-1276), the Court narrowly construed the Dodd-Frank Act, holding that its anti-retaliation provision does not protect whistleblowers who report violations of the securities laws to their employers, but not to the SEC. In Rubin v. Islamic Republic of Iran (No. 16-534), the Court narrowly construed the Foreign Sovereign Immunities Act, holding that a recent amendment did not create a new exception to immunity from attachment for the assets of state sponsors of terrorism facing judgments in U.S. courts. In Murphy v. Smith (No. 16-1067), the Court narrowly construed the statute governing attorneys' fees in prisoner civil-rights suit, holding that courts must apply as much of a plaintiff's judgment as necessary, up to 25%, to satisfy an award of attorney's fees, before a defendant is required to pay extra. And, in Class v. United States (No. 16-424), the Court broadly construed a defendant's right to challenge the constitutionality of a statute of conviction, even after entering an unconditional guilty plea. We'll have plenty more to say about these decisions in due course, but for now let's take a step back and address a few items from the Orders list filed Tuesday.

First up, a per curiam order in CNH Industrial N.V. v. Reese (No. 17-515), summarily reversing the Sixth Circuit and its attempt to resurrect the fantastically named, but legally unmoored, "Yard-Man inferences" for interpretation of collective bargaining agreements. Loyal readers may recall the Court's 2015 decision in M&G Polymers USA v. Tackett, where The Nine (all of 'em) called out the Sixth Circuit for applying its own unique set of contract canons to collective bargaining agreements. The so-called Yard-Man inferences (named after a 1983 Sixth Circuit case, not a shelved Steven King novella) essentially provided that, absent clear evidence to the contrary, a CBA should be read to vest retirement benefits for life even if it contained a general durational clause. In Tackett, the Court held that CBAs should be interpreted "according to ordinary principles of contract law," and that there was nothing ordinary about the Yard-Man inferences. This time around, the Sixth Circuit accepted that it could not useYard-Man to read lifetime vesting into a CBA, but applied the same inferences to render the CBA in question ambiguous, thereby permitting it to examine extrinsic evidence about lifetime vesting. The Court (quoting Judge Sutton's Sixth Circuit dissent) concluded that this was simply "Yard-Man re-born, re-built, and re-purposed for new adventures," and therefore summarily reversed. Is this the last we'll hear of the mythical Yard-Man? Or, to paraphrase Justice Scalia's famous characterization of theLemon test, will it continue to frighten little children and labor lawyers "[l]ike some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried"? Stay tuuuuuuned…

Perhaps of greater moment than a(nother) Sixth Circuit summary reversal, the Court issued no new cert grants on Tuesday. Why is that notable? Because the Government's petition for certiorari before judgment in the DACA-termination case was considered during the Court's conference last Friday. This was always something of a long-shot petition, and the Court's failure to act on it swiftly makes it less likely that the case could be briefed, argued, and decided by the end of the term. On the other hand, it has become routine for the Court to "relist" petitions at least once before granting in order to conduct a close review for "vehicle problems," and it will presumably be considered once again at tomorrow's conference, so there could still be a grant to report in February. But then there's still another hand: Last week, another district court issued a nationwide injunction against rescinding DACA, largely replicating the injunction already before the Court. The Government has appealed that order to the Second Circuit, though that would not necessarily prelude it from filing another petition for cert before judgment. In any case, there are plenty of potential explanations for the Court's inaction on the pending petition and any further prognostication (at least before Friday's conference) would be ill-advised.

Another notable non-grant came in Sylvester v. Becerra (No. 17-342), a case involving a Second Amendment challenge to California's waiting period for gun purchases. Justice Thomas issued a stinging dissent from denial, complaining (as he has in the past) that the Court has treated the Second Amendment as a "disfavored right," and permitted lower courts to essentially apply rational basis review to restrictions on the right to keep and bear arms, safe in the knowledge that the Court does not have the appetite to review and reverse. Though it's not the first time Justice Thomas has issued this lament, it may be the first time he's done so alone. While Justices Scalia and Alito often joined these Thomas "dissentals" in the past, this time (mere days after another school shooting), Thomas's was the only dissent from denial.

Finally, we're happy to report (at last) that a decision has been reached Montana v. Wyoming (No. 137, Orig.), a case of original jurisdiction concerning Wyoming's alleged violations of the Yellowstone River Compact. As we fearlessly predicted, Montana wins. Wyoming will have to find a way to pay the judgment of $20,340 (plus interest and costs!) within 90 days.

That about covers this week's orders. Stay tuned for our summaries of the week's opinions.