This morning the Supreme Court issued orders from last week’s conference. The justices granted review in three new cases today, but the bigger news concerned one particular case in which they declined to intervene – at least for now.

Last month the federal government asked the Supreme Court to step into a dispute over whether the Trump administration can terminate the program known as “Deferred Action for Childhood Arrivals,” which allows undocumented immigrants who came to the United States as children to apply for protection for deportation. Today the justices denied that request, apparently opting to wait to see what happens in the U.S. Court of Appeals for the 9th Circuit.

The Obama administration established the program, popularly known as DACA, in 2012. But last fall the Trump administration announced that it planned to end DACA, which would mean that some of the 800,000 young adults who qualified for the program would again be eligible for deportation. On January 9, a federal judge in California blocked the government from ending the program. A few days later, the Justice Department appealed that decision to the 9th Circuit, but it also opted to take the dispute straight to the Supreme Court, without waiting for the 9th Circuit to rule — a procedure known as “cert before judgment.” The justices have rarely granted review in this scenario, and they opted not to do so today. In a brief two-sentence order, the court indicated that it was denying the government’s petition “without prejudice” – which means that the government would still have the option to file another petition later on, after the 9th Circuit rules on its appeal. The justices added a caution that may help to explain their decision to stay out of the case at this point, particularly when the federal government had not asked them to put the lower court’s ruling on hold while its appeals wind their way through the system: “It is assumed that the Court of Appeals will proceed expeditiously to decide this case.”

In New Prime Inc. v. Oliveira, the question that the justices agreed to decide boils down to this: If the two parties to an agreement disagree about whether they need to arbitrate a dispute, who should resolve that threshold disagreement – an arbitrator or a court? The question arises in the case of Dominic Oliveira, a truck driver who worked as an independent contractor for New Prime, an interstate trucking company. As part of his agreements with New Prime, Oliveira agreed to arbitrate “any disputes arising out of or relating to the relationship created by the agreement, and any disputes as to the rights and obligations of the parties, including the arbitrability of disputes between the parties.”

When Oliveira filed a class-action lawsuit against New Prime, alleging (among other things) that he was owed unpaid wages, New Prime told the district court that Oliveira should be required to arbitrate his dispute. Oliveira pushed back, arguing that his agreements with New Prime were covered by an exemption to the Federal Arbitration Act for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The district court ruled that a court, rather than an arbitrator, should decide whether the exemption applies, and the U.S. Court of Appeals for the 1st Circuit upheld that decision.

The Age Discrimination in Employment Act bars employers from discriminating against employees because of their age. The law only applies to private employers that have at least 20 employees; today in Mount Lemmon Fire District v. Guido, the justices agreed to decide whether that 20-employee minimum also applies to local governments.

As originally enacted, the definition of “employer” did not include state and local governments or employers with fewer than 25 employees. In 1974, Congress amended the definition to define “employer” as an entity with a minimum of 20 employees and added that the term “also means” state and local governments. Four courts of appeals have interpreted this language to mean that, as with private employers, only state and local governments with a minimum of 20 employees qualify as “employers” for purposes of the ADEA.

The case that the justices agreed to hear today arose when John Guido and Dennis Rankin filed a lawsuit against their former employer, the Mount Lemmon Fire District. The fire district, which is located outside Tucson, Arizona, says that it laid off the two men (who were then 46 and 54 years old, respectively) in response to a budget shortfall. But Guido and Rankin contend that they were the victims of age discrimination, and they filed a lawsuit in federal court under the ADEA. The U.S. Court of Appeals for the 9th Circuit ruled that the ADEA applies to all state and local governments, including those – like the Mount Lemmon Fire District – that have fewer than 20 employees. The justices will now weigh in on which interpretation of the ADEA is correct.

And in Madison v. Alabama, the justices will take up the case of a 67-year-old inmate who has been on death row for over 30 years. Vernon Madison suffers from dementia (among other things) and says that he cannot remember the crime that he committed. Today the justices agreed to consider whether, in these circumstances, the Eighth Amendment’s ban on cruel and unusual punishment bars the state from executing him. Madison had been scheduled to die last month, but the justices put his execution on hold – over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – to give him time to appeal. Madison’s case, as well as the other two granted today, will likely not be argued until October.

This post was originally published at Howe on the Court.

Posted in New Prime Inc. v. Oliveira, Department of Homeland Security v. Regents of the University of California, Mount Lemmon Fire District v. Guido, Madison v. Alabama, Featured, What's Happening Now

Recommended Citation: Amy Howe, Justices add three cases to merits docket, but deny review in DACA-termination case, SCOTUSblog (Feb. 26, 2018, 1:21 PM), http://www.scotusblog.com/2018/02/justices-add-three-cases-merits-docket-deny-review-daca-termination-case/