First Monday at the Court

Jamie van Wagtendonk (’18) discusses his summer at the National Labor Relations Board working on a Supreme Court brief—and watching oral arguments in the case.

James van Wagtendonk ('18)
Jamie van Wagtendonk (’18) on his experience with the NLRB.

A few seconds after 10 o’clock on the first Monday of October, the curtain rose and the Justices of the Supreme Court took their seats. I was sitting near the back of the court room as Chief Justice Roberts announced the start to the 2017 term and called for oral argument in the first case, Epic Systems Corp. v. Lewis. I was excited and nervous. After all, I had spent my summer as a law clerk with the National Labor Relation Board’s appellate and Supreme Court branch working on the brief in this case, also known as Murphy Oil USA, Inc. v. NLRB, and the oral argument was where we would see the Court’s inclination on an issue that will affect millions of employees throughout the United States. For a rising 3L interested in practicing in labor and employment law, it was an extraordinary experience.

The legal question in Murphy Oil is straightforward. Employers have increasingly required newly-hired employees to sign a contract that in part requires the employee to bring future legal disputes through individual arbitration. This means that the employee cannot later file a joint lawsuit with a coworker or join a class-action against the employer if an employer fails to pay overtime to a group of employees or is liable for sexual harassment by an executive. Justice Ginsburg noted in oral argument employees bound by these agreements are less likely to be able to afford a lawyer or to have enough information about company practices to win the case.

This is not a small issue. Chief Justice Roberts noted during the oral argument that these agreements currently bind 25 million employees in the United States. In 2010, the National Labor Relations Board (NLRB) found that these agreements violate labor law, namely Section 7 of the National Labor Relations Act, which protects the rights of employees to act together for mutual aid or protection. There is strength in numbers, and the Board stated that employees joining together to bring a lawsuit or class arbitration were protected by law. Employers disagreed, arguing that another law, the Federal Arbitration Act, actually authorizes these arbitration agreements. Based on this disagreement, three cases made their way through federal courts, leading to split decisions in the Circuit Courts. The Supreme Court granted certiorari to answer the legal question in its 2017 term.

In late May, after completing my 2L year, I arrived in Washington, DC for my internship and immediately walked into preparations for this case. After years of litigation to get to this point, I had a lot to catch up on. Sitting in on early meetings, I absorbed the strengths and weaknesses of our cases and read over and over relevant court precedent and the employers’ briefs. Based on this preliminary research, I distilled 17 amicus briefs filed on behalf of the employers into summaries for the NLRB attorneys, which gave me a sense of the opponents’ arguments. I witnessed deep collaboration among highly-skilled litigators to write a brief that put forward a clear, precise legal argument while addressing the arguments of our opponents. Every few days, there would be an updated draft or particularly thorny issue to discuss and I listened in on the conference calls and meetings, taking on new research tasks and integrating the internal debates into my research goals. Through all of this collaborative work, I learned how to focus not only on this particular case, but also think through its effects on future cases and the long arc of labor law. And soon, my research began to fill in gaps for the attorneys working on a draft of the brief.

My internship ended a few days before the final brief was submitted to the Court and I promised to return to hear the argument in person. Along with the other Board attorneys who are not admitted to the Supreme Court Bar, I stood in line at 5 a.m. to make sure I got a seat. Once inside, we saw the clerks prepare each Justice’s seat as attorneys for each side filed in. With the famed Oyez, Oyez, Oyez opening, the Court began its term and I spent the next hour hanging onto each of the Justice’s questions as they debated the case. It was the perfect culmination of an exceptional summer—one in which I saw the Supreme Court briefing process up close and personal from start to finish. Now we wait for the Court’s decision, which will likely be announced before the end of the year. I hope this is the first of many experiences I will have working to move labor law forward.

Reported by Jamie van Wagtendonk (LAW18)

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