Law Clinic Director Preparing for 'Epic' Labor Law Showdown

Supreme Court Litigation Clinic’s Dan Ortiz to Present Arguments Oct. 2
Dan Ortiz

Professor Dan Ortiz’s faculty colleagues, J.H. “Rip” Verkerke, Toby Heytens, George Rutherglen and Aditya Bamzai, moot him in anticipation of his upcoming U.S. Supreme Court appearance, his fifth professionally.

September 26, 2017

The Supreme Court Litigation Clinic at the University of Virginia School of Law started off with one client it hoped to represent before the U.S. Supreme Court.

The clinic ultimately will speak on behalf of three different parties with the same bone to pick.

Dan Ortiz, the director of the clinic, will have 10 minutes to convince justices that employers who make workers sign arbitration agreements forfeiting their right to collective legal action are violating federal law.

“I’m arguing the cases all together, because it’s the same issue,” Ortiz said of his Monday appearance before the high court, which will be the fifth in his career.

The clinic is representing Jacob Lewis, an employee of health care software company Epic Systems, in Epic Systems Inc. v. Lewis. Lewis 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.

Dan Ortiz and students Jennifer Davidson and Alex Downie Dan Ortiz and students Jennifer Davidson and Alex Downie talk about the Supreme Court Litigation Clinic and their experience bringing the Epic Systems case to the Supreme Court at a Sept. 13 panel hosted by the Virginia Employment and Labor Law Association, a student organization at the Law School.

The court consolidated the case with two other similar ones: Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA Inc. Because arbitration clauses are a common practice, the “Epic” showdown is expected to have far-reaching implications for labor law.

In getting the nod to speak on behalf of the three parties, Ortiz has had to build his knowledge not only in labor law but in the fine points of each case. He said the massive amount of preparation needed for such a short amount of time is “a little crazy.”

“It’s a different area of law from all the ones I’ve done before, so it has been fun to get to know it very well,” he said. “You need to learn fast, and that’s always a challenge. And it has been fun to work with the other lawyers involved, who are all great.”

Making matters more complex, the government is in conflict with itself in the case. Whereas the previous administration had sided with the National Labor Relations Board and adopted its pro-employee stance, the Trump administration’s Justice Department has taken a pro-employer position.

“The court decided to take up the case after the election,” Ortiz said. “The Trump administration, after some internal debate, then decided it wanted to switch sides. It filed an amicus brief supporting the employers. But it meant there was still this government agency that was a party on the other side. So the Solicitor General’s Office authorized the NLRB to represent itself.”

Because the administration’s switch meant that the employers wouldn’t file their opening briefs until after the end of the spring semester, the clinic students had to draft their brief without seeing arguments on the other side. The students accurately predicted many of the arguments, and for those they didn’t, Ortiz had to respond to in the summer.

“I had to spend about two months during the summer writing new bits and revising old,” he said.

Ortiz will argue together with the general counsel of the NLRB, who will speak for 20 minutes before him.

“The general counsel of the NLRB will carry most of the water,” Ortiz said. “I’m in a pretty lucky position. I can see what questions the court is interested in, think while he is arguing and come up with something.”

The pair will argue that provisions barring employees from jointly pursuing legal actions in any forum violate the National Labor Relations Act and are therefore unenforceable under the Federal Arbitration Act. Epic rose to the court's attention after the Seventh U.S. Circuit Court of Appeals in Chicago ruled in favor of Lewis last year.

A former solicitor general and a current representative from the Solicitor General’s Office will team up to present 30 minutes of counterarguments on behalf of the companies defending their current policies.

The Law School and other friends of the clinic are currently in the process of grilling Ortiz through mock oral arguments. He said he hopes they throw every possible question at him before the big day.

On Monday, professors Toby Heytens, Aditya Bamzai, George Rutherglen and J.H. “Rip” Verkerke mooted Ortiz. They brought to bear their experience with the Supreme Court, the Solicitor General’s Office, the Department of Justice and labor law in general.
 
On Friday, six students mooted Ortiz as well. “They asked hard questions, and put the fear of god in me,” Ortiz joked.

Students in the Supreme Court Litigation Clinic work in teams to handle actual cases — from seeking Supreme Court review to briefing the actual merits. Though they can’t pitch the actual oral argument, Ortiz said, they can do just about everything else. He expects several current and former students to attend the argument.  

He added that third-year law student Jennifer Davidson, who was a summer associate at the firm that coordinated the Epic amicus effort, gained background knowledge about the case that has greatly helped him prepare.

Lawyers from Washington law firms and in government are scheduled to moot Ortiz twice more before his appearance.

“It’s an odd kind of performance,” Ortiz said of oral arguments. “We’re all performers in the classroom, but it’s nice to be able to perform in a different way. The oral argument is also wonderful in terms of teaching. Students love it. So it’s fun to create an opportunity for them.”

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