Veterans benefits

Summary of SCOTUS Certificates: Immigration, Free Speech and Veterans Benefits – Litigation, Mediation and Arbitration

Strong points

On February 18 and 22, the Supreme Court agreed to hear three cases, which present the following issues:

Does federal law prohibit the termination of Migrant Protection Protocols, a policy requiring certain non-nationals to remain in Mexico while they immigration?

Does applying a public accommodations law to compel an artist to speak or remain silent violate the First Amendment’s free speech clause?

Does the fair toll doctrine apply to the statutory one-year time limit given to veterans to apply for retroactive disability benefits?

The United States Supreme Court returned from its recent adjournment to hold a conference Feb. 18 from which it granted three certs. petitions: 1) a petition from the Biden administration asking the Court to allow it to end a Trump administration policy (called the Migrant Protection Protocols) that requires some non-citizens to stay in Mexico while on immigration proceeding, 2) a web designer’s petition raising a free-speech challenge to a law banning sexual orientation discrimination in public places, and 3) a petition from a former veteran urging the court to apply a fair toll on the deadline for applying for retroactive veterans’ disability benefits.

The Court ordered an expedited briefing in the Migrant Protection Protocols case to allow the case to be heard and decided on that term, which will likely end in June. The other two cases, meanwhile, are scheduled for the next term, which begins in October 2022.

While the free speech case will likely grab headlines – it has attracted more than a dozen amicus cert briefs and could affect the validity of public accommodation laws in a wide variety of contexts. – the other two cases will be of general interest because well. The Migrant Protection Protocols case could determine the fate of a contentious immigration policy, and the Veterans Benefits case will be important to many current and future veterans seeking disability benefits. All these cases are therefore worth observing.

End migrant protection protocols

In Biden vs. Texas the Court will once again face Migrant Protection Protocols, a Department of Homeland Security (DHS) policy that requires non-citizens traveling through Mexico from a third country to the United States to stay in Mexico while their US immigration process is adjudicated. The Court first encountered the policy in March 2020, when the Trump administration sought to stay a ruling banning the policy’s application. The Court responded by issuing a short order staying the decision pending resolution of that administration’s cert. petition and then he granted the petition itself. The Court, however, dismissed the case as moot after the Biden administration announced it would end the policy.

That announcement in turn sparked a second wave of litigation, with Texas and Missouri arguing that federal law requires DHS to continue enforcing migrant protection protocols. In August 2021, a Texas district court agreed with the states and ordered DHS to resume implementing the policy.

The United States Court of Appeals for the Fifth Circuit declined to stay that order, and the Biden administration then asked the Supreme Court to do so. On August 24, 2021, the Court denied that request, explaining that the administration had failed to demonstrate that its memorandum purporting to rescind the policy complied with the Administrative Procedure Act’s prohibition against arbitrary and capricious decision-making. agencies.

A few months later, the Biden administration issued a new memorandum that again purported to end the migrant protection protocols. And after the Fifth Circuit ruled in December 2021 that the new memorandum could not justify terminating the policy, the administration returned to the Supreme Court, asking the court to decide: 1) whether federal law requires the continued enforcement of migrant protection protocols and 2) whether the Fifth Circuit wrongfully ignored the new memorandum.

The Supreme Court has now agreed to answer both questions. In doing so, it will not only address the merits of migrant protection protocols, but will also address an important question of general administrative law: when an agency memorandum reiterates a previous decision, how should courts determine whether the subsequent memorandum merely a “fuller explanation” that cannot add reasons to the earlier decision, or is it rather a “further agency action” that is free to provide additional reasons?
Experts in immigration law and more broadly administrative lawyers will certainly be very attentive to the Court’s responses.

Freedom of expression and public housing

In 303 Creative LLC v. Elenis, the Court has announced, now for the second time, that it will consider how the First Amendment’s free speech clause applies to public housing laws. The case was brought by a web designer who, due to her religious beliefs, would like to offer to design wedding websites celebrating heterosexual marriages while posting a notice that she will not design websites celebrating gay marriages. Because this disparate treatment would violate Colorado’s Public Accommodations Act — which prohibits discrimination based on sexual orientation by any company providing services to the public — the website designer filed this lawsuit in arguing that the free speech clause prohibits Colorado from enforcing its public accommodation laws to compel it to create websites celebrating same-sex marriages and from enforcing its law to prohibit it from posting its project. ‘opinion.

A divided panel of the United States Court of Appeals for the Tenth Circuit rejected that argument – with the majority of the panel applying rigorous scrutiny but upholding the law as narrowly tailored to Colorado’s compelling interest in “ensuring equal access to goods and services available to the public” – and the Supreme Court has now agreed to review that decision.

In particular, almost five years ago, in Masterpiece Cakeshop c. Colorado Civil Rights Commission, the Court had agreed to consider a pastry chef’s similar free speech challenge against Colorado’s public lodging law, but the Court ultimately resolved that case on free exercise grounds. In 303 Creative, however, the Court expressly declined to consider the website designer’s free exercise claim, suggesting that the Court is now ready to determine the extent to which the free speech clause limits the scope of public accommodation laws.

The reasoning the Court adopts in answering this question will in all likelihood apply to a variety of businesses with a variety of objections to public hosting requirements, and its decision is therefore likely to be wide-ranging.

Fair Toll for Veterans Benefits Application Deadline

Arellano vs. McDonough confronts the Court with a narrow but important question regarding the veterans’ benefit system: Can the time limit for claiming retroactive benefits for a service-related disability be fairly set for just cause?

This issue stems from a federal law that imposes a one-year time limit on a veteran to file a claim for disability benefits, from the date he is released from military service. If this deadline is respected, the indemnities finally awarded are retroactive to the date of exit; otherwise, benefits may still be granted, but they are only retroactive to the date the government receives the application for benefits. The result is that veterans who miss the one-year deadline can lose a considerable amount of retroactive benefits.

In this case, the veteran argues that a fair toll should apply when a service-caused disability – such as a psychiatric disorder caused by combat trauma – prevents a veteran from filing a claim for benefits before one year period. He invokes the Supreme Court’s decision in Irwin v. Department of Veterans Affairs, who held that “the same rebuttable presumption of fair toll applicable to suits against private defendants should also apply to suits against the United States”. He also points to political considerations that he says support applying a fair toll here: The illnesses that often cause veterans to miss the one-year deadline, he points out, are the very illnesses that the veterans compensation system is designed to deal with.

These arguments also divide the United States Court of Appeals for the Federal Circuit: six judges applied the Irwin the presumption of finding a fair toll is available in this context, while six others have found Irwin to be unenforceable, on the grounds that Irwin only applies to statutes of limitations and that this one-year period does not is not a true statute of limitations (because it does not completely eliminate a veteran’s ability to collect benefits).

The Supreme Court is now set to resolve this dispute, and its decision will affect tens of thousands of current and future veterans. And in the light of from Irwin With possible application to many other federal benefit laws, the court’s decision could also have significance far beyond the context of veterans benefits.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.