RLA Update

The Supreme Court has not decided a case involving the Railway Labor Act since 2009. Over the past two years (2016 & 2017), the federal courts of appeals have decided 22 cases involving the RLA. Here are some highlights:

  • In Herrera v. Command Security Corp., 837 F.3d 979 (9th Cir. 2016), a union sued an employer, alleging RLA violations. The Ninth Circuit found the employer unlawfully coerced and interfered with its workers’ rights; the union’s claim was “major” dispute; and employer’s refusal to mediate violated the RLA.
  • In Brotherhood of Locomotive Engineers and Trainmen v. Union Pac. RR Co., 879 F.3d 754 (7th Cir. 2017), and Brotherhood of Maintenance of Way Employees Division/IBT v. BNSF Railway, Inc., 834 F.3d 1071 (9th Cir. 2016), the circuit courts discuss the “major” vs. “minor” distinction in RLA cases (both finding the dispute at issue was minor).
  • In Pruter v. Local 210’s Pension Trust Fund, 858 F.3d 753 (2d Cir. 2017), former employees brought ERISA claims and state-law claims (for fraud and breach of contract related to collective bargaining agreement) against their union and pension plan. The Second Circuit held state-law claims were preempted by the RLA; ERISA’s 3-year SOL (not NLRA’s 6-mo SOL) applied to RLA claims; no evidence plan was arbitrary and capricious under ERISA.
  • In Alaska Airlines Inc. v. Schurke, 846 F.3d 1081 (9th Cir. 2017), the Ninth Circuit held that the RLA preempted the state labor department’s enforcement actions. But en-banc review was granted in June 2017 (no en-banc decision yet). This could be a big preemption/state-vs-federal decision. Maybe the next RLA case to get to SCOTUS?
  • Airline Serv. Providers Assoc. v. Los Angeles World Airports, 873 F.3d 1074 (9th Cir. 2017);
  • Cases involving attempts to appeal RLA arbitration awards: Sullivan v. Endeavor Air Inc., 856 F.3d 533 (8th Cir. 2017); Nat’l Railroad Passenger Corp. v. Fraternal Order of Police, Lodge 189 Labor Comm., 855 F.3d 335 (D.C. Cir. 2017) (cert. pet. filed; maybe the next RLA case to get to SCOTUS?); Douglas Walter Green v. Frost Brown Todd LLC, 2017 WL 6210784 (6th Cir. 2017); Spirit Airlines Inc. v. Assoc. of Flight Attendants-CWA, AFL-CIO, 644 F. App’x 684 (6th Cir.  2016).
  • And finally, here’s my favorite (read: least favorite) kind of decision from the Fifth Circuit, a per curiam affirmance with no opinion (i.e., “having reviewed the record, briefs, and argument, we affirm”): Serna v. Transport Workers Union of Amer.  AFL-CIO, 654 F. App’x 665 (5th Cir. 2016).

Two Recent Articles

I’ve really slacked on blog posts lately. But I do have two articles that were published recently. In November, I wrote an article on “Current Class-Action Issues.” And today my article on “Cleaning Up Quotations in Legal Writing” appeared in the ABA’s Appellate Practice newsletter. Hope they’re helpful!

ABA Journal’s Web 100

A big congrats to all the honorees for this year’s Web 100! The ABA Journal has changed things up a bit. This used to be an honor reserved for the top 100 legal blogs (i.e., “blawgs”), but this year they decided to start honoring other forms of digital media. So the list now includes 50 blawgs, 25 law-related podcasts, and 25 law-related Twitter feeds.

Personally, I think it would’ve been cool for the #AppellateTwitter community to have received collective recognition under the hashtag. Maybe next year. For now, there are a bunch of #AppellateTwitter regulars on the list, including Chief Judge Stephen Dillard (@JudgeDillard); SCOTUS reporter Chris Geidner (@chrisgeidner); legal-writing guru Ross Guberman (@legalwritingpro); law profs Rachel Gurvich (@RachelGurvich) and Elizabeth Joh (@elizabeth_joh); and yours truly (@5thCircAppeals). Go follow!

And you should definitely check out the top-25 podcasts, too!

A (very) quick look at standing in data-breach cases

I got curious and pulled up a bunch of cases to look at when plaintiffs have Article III standing to sue based on a data breach that has exposed personal information. Note: this was not an exhaustive search, and this is not an extensive analysis. But here’s what I found.

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ICYMI: Twitter Threads

Decided to post links to some of my Twitter threads, because most of these threads could (and maybe should) have been blog posts.

[listed in reverse chronological order]

On the Gorsuch nomination & whether the Democrats should filibuster: 3/20/17

Explaining the legal/policy issue of selling insurance “across state lines”: 3/7/17

A primer on class actions and why we have them: 2/16/17

On the case challenging the scope of Obergefell at SCOTX: 2/13/17

On federalism: 1/30/17

On work-life “balance”: 1/11/17

On appeals, standards of review, and reversal rates: 12/20/16

Some post-election thoughts about the Electoral College: 11/21/16

On judicial vacancies left unfilled: 11/18/16

On court-packing, reverse-court-packing, and constitutional norms: 10/26/16

The thread that launched the #AppellateTwitter coffee mugs: 10/22/16

On Flannery O’Connor & wanting to be an appellate lawyer: 9/14/16

Remembering where I was on 9/11: 9/11/16

On alternative-fee arrangements for appellate work: 9/6/16

On doing pro bono to get appellate experience: 8/23/16

The now-(in)famous thread on the social function of humor: 8/9/16

On RBG expressing political opinions: 7/13/16

On whether current SCOTUS can be called a “liberal” court: 6/28/16

And last but not least, the Twitter version of my life story: 10/23/16

Gorsuch in L/E Cases

labor-law-598x299I found 25 cases from the past 10 years, involving labor or employment claims, where Judge Gorsuch wrote the majority opinion. Here’s a quick overview of how those cases turned out.

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Recent & Upcoming Activities

A busy calendar.The last couple months have been busy. In addition to the holidays, I argued at the Fifth Circuit; published two articles at The Huffington Post (here and here); produced a podcast episode on appellate practice for the ABA’s Sound Advice series; gave a presentation to the Dallas Bar Association (about the post-election Supreme Court and Trump’s list of possible nominees); participated in a panel discussion about e-briefs and legal writing at the annual meeting of the Council of Chief Judges of State Courts of Appeal (in North Carolina); was cited on SCOTUSblog and the Appellate Advocacy Blog (both here and here); and was quoted by Bloomberg (herehere, here, and here), CNN, and the Winnipeg Free Press.

This month I’ve got an article forthcoming in Texas Lawbook (about the Garland fiasco and Trump’s possible SCOTUS nominees); I’ll be in Austin on January 20, leading a workshop on legal writing at Lawyer Forward; and I’ll be in Utah January 21-24.

Using Contractions: It’s Not Wrong

contractionI’ve been wanting to write this post for some time. Inherited wisdom says you can’t use contractions in legal writing because it’s too informal. Poppycock. There’s nothing wrong with using contractions. Like anything else (e.g., em dashes, semicolons, commas, capitalization, boldface for emphasis), you shouldn’t over-use them. But contractions are a perfectly acceptable tool to include in your legal writing toolbox. Don’t believe me? Let’s consult the authorities.

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Sentence Diagramming

Judge Gorsuch of the Tenth Circuit is in the news lately as a short-lister for the Supreme Court vacancy. (See here and here, and my previous post here.) Gorsuch would be a great pick and a fitting replacement for Justice Scalia because, like Scalia, Gorsuch is known for his clean, incisive, and sometimes witty or colorful writing.

Almost two years ago (2/15), Gorsuch wrote an en-banc opinion in United States v. Rentz that I saved because it provides a great example of using sentence diagramming to facilitate statutory interpretation. In other words, it’s a great example of using a visual image to advance an argument.

Rentz is about criminal sentencing and interpreting section 924(c). Here’s a screenshot from the opinion:

gorsuch

 

I’ve done this in a case involving contract interpretation, and it can be very effective—especially when dealing with a complicated statutory or contract provision that contains lists or has lots of subordinate clauses. It’s also the sort of thing I could see Scalia doing. (Seriously, he probably did it numerous times over the 30 years he sat on the Court, and I’m just not remembering those opinions.)

Anyway, while everyone’s talking about the SCOTUS vacancy and Gorsuch as a short-lister, I thought I’d throw this out there as something to remember in your brief writing. And the whole opinion is worth reading for examples of good writing.

The Future of the Supreme Court

supreme-court-building-120628Lots of chatter out there about the future of the Supreme Court in the wake of Trump winning the presidency. Here are some of my thoughts.

First, regarding the current Court: Assuming Clinton would win the presidency, I was predicting Garland would be confirmed to fill Scalia’s vacancy and Ginsburg would retire in 2017 (maybe 2018)—with Breyer possibly retiring shortly thereafter, before Clinton’s first term was over. The Court would shift to the left with the addition of Garland, but no other shift would occur unless Clinton could win a second term. If that happened, Clinton likely would have replaced Kennedy—and maybe even Thomas—and this would have produced a second significant shift leftward. But now all of this is vapor.

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