Some commentators claim there are bitter divisions among the Justices, roiling the Court and its processes. Many of the same commentators were critical of the Court’s decision holding that former President Trump was not disqualified from reelection by Section 3 of the Fourteenth Amendment, but they tended to ignore that the Court’s operative opinion was unanimous. The tenor of that unanimity will be explored as soon as April 25, when the Court hears arguments in the immunity case of Trump v. United States.
At least for today, however, peace reigns on the bench, as the Court issued unanimous opinions in each of the three cases decided.
Sheetz v. County of El Dorado, California produced a unanimous opinion, written by Justice Barrett, that conditions on building permits are “not exempt from scrutiny under Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987) and Dolan v. City of Tigard, 512 U. S. 374 (1994) just because a legislature, rather than an administrative agency, imposed them. The case arose when the petitioner, George Sheetz, sought a residential building permit and was required to pay a large traffic impact fee. The fee was not based upon the projected traffic impact occasioned by Sheetz’s construction but instead came from a rate schedule of a general nature concerning the type of the development and its location within the county. Sheetz paid the fee under protest and later sought relief in state court, claiming that the fee constituted an unlawful “exaction” of money in violation of the Fifth Amendment’s Takings Clause. Sheetz argued that under the Nollan and Dolan cases, he was entitled to an individualized determination that the fee imposed upon him was necessary to offset any harm that was attributable to his specific project. The Court agreed with Sheetz, holding that the Takings Clause does not distinguish between legislative and administrative land-use permit decisions.
As is evident from the several concurrences issued along with Justice Barrett’s unanimous opinion, the Court’s holding is narrow, avoiding questions that might be taken up on remand, such as whether the permit condition would be compensable if imposed in another context where permitting was not the issue, or what level of specificity the Takings Clause requires. For those interested in the various alliances on Court opinions, especially when they contradict stereotypes, I note that both Justices Kagan and Jackson joined Justice Kavanaugh’s thoughtful concurrence.
In sum, the Court has decided yet another Takings case in a manner favorable to property owners, and this trend is underscored by the Court’s unanimity.
The Court also was unanimous in Macquarie Infrastructure Corp. v Moab Partners, L.P. Securities and Exchange Commission (SEC) Rule 10b-5(b) makes it unlawful to omit material facts in connection with buying or selling securities when that omission renders “statements made” misleading. Separately, Item 303 of SEC Regulation S-K requires companies to disclose certain information in periodic filings with the SEC. The question before the Court was whether the failure to disclose information required by Item 303 could support a private action under Rule 10b-5(b), even if the failure does not render any “statements made” misleading. Per Justice Sotomayor, the Court holds that it cannot: “Pure omissions are not actionable under Rule 10b-5(b).”
One caveat: In an important footnote at the end of the opinion, the Court notes that there had been much wrangling between the parties. Moab and the United States spill much ink fighting the question presented, insisting that this case is about half-truths rather than pure omissions. The Court granted certiorari to address the U.S. Court of Appeals for the Second Circuit’s pure omission analysis, not its half-truth analysis.
Finally, of particular interest to the labor and employment lawyers who follow this blog is the Chief Justice’s delivery of another unanimous opinion, this one in Bissonnette v. Lepage Bakeries. One of the respondents, Flowers Foods, Inc., produces and markets baked goods that are distributed nationwide. The petitioners are individuals who owned the rights to distribute Bissonnette’s products in parts of Connecticut. In their contract with the baker, they agreed that any disputes would be arbitrated under the Federal Arbitration Act, 9 U. S. C. §§ 1 et seq. (FAA). They subsequently sued Flowers for violating state and federal wage laws. Flowers moved to compel arbitration, but the petitioners claimed exemption from the FAA because they fall within an exception in §1 of the FAA for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”
The lower courts ruled against the petitioners, holding that the exemption applied only to workers in the transportation industry, which the petitioners were not. The Supreme Court disagreed, holding as a matter of interpretation of the clear language of the statute that a transportation worker need not work in the transportation industry to be exempt from coverage under §1 of the FAA.
It is raining outside as I write this blog post, but metaphorically, at least today, the sun is shining over a peaceful Supreme Court.
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