Clinic Loses Epic Supreme Court Case in 5-4 Decision

Gorsuch Writes Majority Opinion While Ginsburg Leads the Dissent
Supreme Court Litigation Clinic

Student members of the 2016-17 Supreme Court Litigation were influential in bringing Epic Systems Corp. v. Lewis to the Supreme Court.

May 21, 2018

The Supreme Court Litigation Clinic at the University of Virginia School of Law lost Epic Systems Corp. v. Lewis on Monday in a squeaker 5-4 decision handed down by the high court.

The clinic represented Jacob Lewis in the closely watched labor law case, which could have barred employers from forcing employees to waive their right to jointly pursue legal claims through class actions and collective arbitration procedures. The court instead held that the Federal Arbitration Act demanded that such joint-action waivers be enforced against employees and deferred to Congress for any changes.

In consolidated arguments in October, clinic director Daniel Ortiz argued on behalf of Lewis, making the case that an employee, in accepting a job, shouldn’t have to waive the right to seek a remedy from their employers jointly with other employees.

Law students in the yearlong clinic that Ortiz co-teaches helped him prepare the case. The clinic introduces third-years to all aspects of current Supreme Court practice.

Justice Neil Gorsuch, the newest member of the court, wrote the decision. In his opinion, he writes that the "policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.”

Justice Ruth Bader Ginsburg, writing a 30-page dissent that, in an unusual move, she read much of aloud on Monday, describes the majority holding as "egregiously wrong."

"It is the result of take-it-or-leave-it labor contracts harking back to the type called ‘yellow dog,’” Ginsburg writes, referring to a contract between a worker and an employer in which the worker agrees not to remain in or join a union.

Cited as a concern by Ortiz — and in Ginsburg’s dissent — was the often relatively small dollar amounts at stake in individual disputes with employers, which may be cost-prohibitive to pursue in court without collective action. 

Ortiz said that the clinic was “disappointed by the decision but hopes that in the not-too-distant future Congress will correct the court’s mistake.”

Lewis, an employee of health care software company Epic Systems, was pursuing collective action against the company for overtime pay he says he and his co-workers were owed — this, despite having signed an arbitration agreement, per corporate policy, that denied him the right to pursue collective action. Lewis claimed his rights were violated under the National Labor Relations Act and that to prohibit collective action was unenforceable under the Federal Arbitration Act.

Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Clarence Thomas joined Gorsuch in the majority, with Thomas filing a separate concurring opinion.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Ginsburg in dissent.

The case was one of two clinic cases before the court this term. A decision on City of Hays v. Vogt has not yet been released.

Also Monday, the Supreme Court granted cert in another clinic case, Culbertson v. Berryhill.

The Law School is tied for second in the number of lawyers from an organization arguing before the U.S. Supreme Court this term, excluding the U.S. Office of the Solicitor General, and first among law schools. The school also is tied for sixth in the total number of cases before the court, with three.

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