Petitions of the week

Military jurisdiction and two cases on arbitration and wage disputes

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the Constitution limits court-martial jurisdiction over retired servicemembers, whether a plaintiff must prove prejudice to show that a defendant waived a right to arbitrate, and whether an airport supervisor who occasionally handles passenger baggage is a “transportation worker” exempt from arbitration.

Begani v. United States considers constitutional limits to military courts’ jurisdiction over retired servicemembers. Stephen Begani worked as a government contractor after 24 years of active-duty service. Special agents of the Naval Criminal Investigative Service arrested Begani in a sting at a Marine Corps air base, where he had expected to meet a minor with whom he had exchanged sexually charged messages. Begani was tried and convicted by court-martial. A panel of the Navy-Marine Corps Court of Criminal Appeals ruled that the court-martial violated Begani’s constitutional right to equal protection, but the en banc NMCCA disagreed and affirmed his conviction. The U.S. Court of Appeals for the Armed Forces also affirmed, noting that Begani is “still paid” by the military and “required to maintain military readiness” — though Begani disputes the latter characterization. In his petition, Begani asks the Supreme Court to review this decision and to limit military jurisdiction over retirees.

In 2011’s AT&T Mobility LLC v. Concepcion, Justice Antonin Scalia wrote for the majority that the Federal Arbitration Act requires lower courts to “place arbitration agreements on an equal footing with other contracts.” In Morgan v. Sundance, Inc., plaintiffs argue that lower courts have violated AT&T by making it harder to prove that a defendant has waived an arbitration clause than is necessary to prove waivers of other clauses. In this case, Robyn Morgan, who worked at a Taco Bell franchise owned by Sundance, Inc., filed a putative class action in federal court under the Fair Labor Standards Act. Sundance moved to dismiss and later filed an answer to her complaint, making various arguments but not insisting on arbitration. After mediation did not lead to settlement, Sundance moved to compel individual arbitration of Morgan’s claims. Although the district court ruled that Sundance had waived its arbitration argument by not making it earlier, the U.S. Court of Appeals for the 8th Circuit reversed because of “the absence of a showing of prejudice to Morgan.” In her petition, Morgan argues that lower courts are split on whether prejudice is a requirement to prove that a party has waived an argument, and that regardless, prejudice is not a required factor for waiver of other contractual clauses.

Southwest Airlines Co. v. Saxon presents the justices with another case involving the Federal Arbitration Act and a suit under the Fair Labor Standards Act. The FAA’s support of arbitration agreements contains an exemption for the “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The Supreme Court has said that the exemption’s residual clause, “any other class of workers,” refers only to “transportation workers,” but it has not further defined “transportation worker.” The present case developed from a wage dispute between Southwest Airlines Co. and Latrice Saxon, a ramp agent supervisor. In her role, she trains, supervises, and sometimes assists ramp agents in loading and unloading passenger baggage from airplanes. After Saxon filed suit in federal court under the FLSA, Southwest moved to dismiss in favor of arbitration. The district court agreed with Southwest that Saxon was not a transportation worker because she “did not physically transport goods at all, let alone out-of-state.” The U.S. Court of Appeals for the 7th Circuit reversed on the ground that “cargo loaders generally are a class of workers engaged in the actual transportation of goods,” including supervisors who occasionally load and unload baggage. Arguing that lower courts are split on the meaning of “transportation worker,” Southwest asks for review.

These and other petitions of the week are below:

Southwest Airlines Co. v. Saxon
21-309
Issue: 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.

Willis v. United States
21-311
Issues: (1) Whether the discretionary-function exception of the Federal Tort Claims Act shields the government from suit whenever a government agent fails to fulfill a mandatory duty that applies only in certain circumstances, on the theory that the agent must have determined those circumstances did not exist; and (2) whether the discretionary-function exception shields a government agent’s undisputed failure to exercise discretion.

Volkswagen Aktiengesellschaft v. Ohio, ex rel. Yost
21-312
Issue: Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems.

Morgan v. Sundance, Inc.
21-328
Issue: 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.”

Begani v. United States
21-335
Issue: Whether the Constitution permits the court-martial of retired servicemembers for offenses committed after their discharge from active duty.