Author: Steve Vladeck

Whether deservedly or not, an opinion by Ninth Circuit Judge Stephen Reinhardt granting habeas relief to a state prisoner notwithstanding the deferential approach mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is often fodder for terse – if not summary – reversals by the Supreme Court. But Davis v. Ayala, which is scheduled for oral argument before the Justices next Tuesday, comes to the Court with a twist of the Justices’ own making: Rather than simply granting the single, AEDPA-based question presented by California’s petition for certiorari, the Justices added a second question to the case – one that, properly understood, may well signal the Supreme Court’s inclination to dig into some of the merits of respondent Hector Ayala’s habeas claim, and not just provide another reprimand to the Ninth Circuit for a lack of fealty to AEDPA. And although California may well prevail on those merits, the potential significance of the Justices even reaching the substance of Ayala’s claims could yield the most significant habeas decision of the current Term.

When the Supreme Court hears argument Monday morning in Coleman-Bey v. Tollefson, it will confront yet another in a long line of complicated procedural questions created by the “three strikes” provision of the Prison Litigation Reform Act of 1996 (PLRA).That provision generally precludes courts from conferring in forma pauperis status upon prisoner-plaintiffs “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” The specific issue before the Court in this case, which has divided the courts of appeals, is whether a district court’s dismissal of a prior lawsuit counts as a strike if that earlier ruling is still under appeal at the time the new case is filed. But to answer that question, the Justices will almost certainly have to tackle the larger question raised by the PLRA: when does a strike “happen”?

Given how the November 4 oral argument unfolded, the Supreme Court’s seven-to-two decision on Wednesday to side with a former air marshal-turned-whistleblower in Department of Homeland Security v. MacLean should hardly come as a surprise. Indeed, Chief Justice John Roberts’s sixteen-page opinion for the majority largely mimics MacLean’s brief in holding that (1) the exemption from the Whistleblower Protection Act for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by TSA regulations; and (2) the Aviation and Transportation Security Act of 2001 did not itself prohibit MacLean’s disclosure of alarming lapses in post-9/11 aviation security to a reporter. If there was any surprise in Wednesday’s decision, it was the unusual pairing of Justices Anthony Kennedy and Sonia Sotomayor in dissent – only the second time a dissent has featured that pair of Justices on their own. But whether there is a deeper lesson to take away from this strange line-up, the more immediate consequence of Wednesday’s decision is to clarify – and expand – federal whistleblower protections in a way that may well attract the attention, if not reprobation, of the political branches.

The legal issue the Justices will confront on Tuesday when they hear oral argument in Department of Homeland Security v. MacLean is easy enough to describe: When a federal statute bars whistleblowers from making disclosures that are “specifically prohibited by law,” does that bar also apply to disclosures prohibited by otherwise valid agency regulations – or does it only apply to disclosures expressly barred by Acts of Congress? Behind this outwardly straightforward question of statutory interpretation, though, lurk national security considerations on both sides; the government’s case rests largely on its claimed need to broadly protect sensitive security information from unauthorized disclosure, while the underlying whistleblowing highlighted alarming (and since corrected) deficiencies in post-September 11 aviation security. Inasmuch as the national security undertones of Tuesday’s argument are (and will likely be) impossible to miss, the statute at the heart of the case applies to most government whistleblowers – especially those not in the national security arena. Thus, even if security concerns arise during Tuesday’s argument (and in the Justices’ ultimate disposition of the case), the irony of the case is that the answer the Justices ultimately provide to the statutory question presented will have significant implications for government whistleblowing in general, especially in cases having nothing whatsoever to do with protecting the national defense.

For the past three years, numerous courts and commentators have understood the Supreme Court’s 2010 decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. as all but sounding the death knell for class-wide – as opposed to individual – arbitration. After all, Stolt-Nielsen held that the Federal Arbitration Act bars class arbitration unless parties have specifically agreed to allow it, and virtually no arbitration agreements include express class-arbitration authorizations. But as Monday’s unanimous decision in Oxford Health Plans, LLC v. Sutter makes clear, reports of the demise of class-wide arbitration may have been greatly exaggerated.