PETITIONS OF THE WEEK

The return of the vaccine mandate for health workers and sovereign immunity for a Turkish bank

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the Biden administration’s vaccine mandate for health care workers, and a Turkish bank’s immunity claim.

In Missouri v. Biden, the justices face a petition asking them to review on the merits the Biden administration’s vaccine policy for health care workers. The mandate requires nearly all health care workers at facilities that participate in Medicare and Medicaid to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption. On Jan. 13, 2022, the justices ruled on an emergency basis that the administration could enforce this mandate as Missouri and other states challenged it in the lower courts. In March, the states asked the U.S. Court of Appeals for the 8th Circuit for an expedited hearing, but in April, the 8th Circuit remanded the case to the district court to determine the merits of Missouri’s claim for permanent relief. The states then filed their petition in May, bringing a mix of administrative, constitutional, and statutory arguments. They ask that the justices require the government to file its opposition brief within 30 days without extension so that the justices could hear the argument at its first sitting in October 2022. (Also on Jan. 13, the justices put on hold the administration’s vaccine-or-test policy for employers with 100 or more employees, in National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration.)

In Turkiye Halk Bankasi A.S. v. United States, a Turkish bank asks the justices to review its claim for protection from criminal prosecution. In its petition, Halkbank describes itself as a bank majority-owned by Turkey that the U.S. government has not disputed is Turkey for jurisdictional purposes. Federal prosecutors indicted Halkbank in a scheme, the government alleges, to “create a pool of Iranian oil funds in Turkey and the United Arab Emirates.” The U.S. Court of Appeals for the 2nd Circuit affirmed the district court’s denial of Halkbank’s motion to dismiss on the ground that the federal court had jurisdiction over the foreign sovereign under the general criminal statute, which gives the district courts jurisdiction over “all offenses against the laws of the United States.” In contrast, according to Halkbank’s petition, the U.S. Court of Appeals for the 6th Circuit has ruled that because the Foreign Sovereign Immunities Act only grants the district courts jurisdiction over foreign sovereigns in civil cases, the district courts lack such jurisdiction in criminal cases. 

These and other petitions of the week are below:

Turkiye Halk Bankasi A.S. v. United States
21-1450
Issue: Whether U.S. district courts may exercise subject-matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act.

Northport Health Services of Arkansas, LLC v. Department of Health and Human Services
21-1455
Issues: (1) Whether the Federal Arbitration Act is indifferent to rules that penalize parties for using arbitration agreements but leave enforceable any theoretical agreements parties enter into despite those penalties; and (2) whether the Department of Health and Human Services may promulgate a rule that concededly singles out arbitration agreements for disfavored treatment even though Congress has nowhere expressly empowered HHS to override the FAA or its federal policy favoring arbitration.

Missouri v. Biden
21-1463
Issues: (1) Whether the Centers for Medicare & Medicaid Services’ Nov. 5, 2021, vaccine mandate for workers in most federally funded healthcare facilities violates the Administrative Procedure Act because it is arbitrary, capricious, and unlawful; (2) whether the mandate is unconstitutional under the Constitution’s spending clause, the anti-commandeering doctrine, and the 10th Amendment; (3) whether the mandate violates the APA because it was issued without notice and comment; and (4) whether the mandate exceeds CMS’s statutory authority.

Johnson v. Winfrey
21-1466
Issues: (1) Whether a law enforcement officer violates clearly established law under the Supreme Court’s decision in Franks v. Delaware if the officer does not include information in an affidavit that may be material to probable cause, without regard to whether an objective officer could reasonably believe the submitted affidavit supported probable cause; (2) if not, whether Malley v. Briggs provides the appropriate analytical method for determining an officer’s immunity when information that may be material to probable cause is not included in the affidavit, or whether a different standard applies; and (3) whether setoff or contribution is available in a claim brought under 42 U.S.C. § 1983 as six circuits have held, or whether Section 1983 claims permit a plaintiff to obtain a double recovery, as three circuits have held.