Certiorari To The United States Court Of Appeals For The Ninth Circuit
No. 10–577. Argued November 7, 2011—Decided February 21, 2012
An Immigration Judge ordered the removal of resident aliens Akio and Fusako Kawashima, determining that Mr. Kawashima’s conviction for willfully making and subscribing a false tax return, 26 U. S. C. §7206(1), and Mrs. Kawashima’s conviction for aiding and assisting in the preparation of a false tax return, §7206(2), qualified as crimes involving fraud or deceit under 8 U. S. C. §1101(a)(43)(M)(i) (Clause (i)) and thus were aggravated felonies for which they could be deported under §1227(a)(2)(A)(iii). The Board of Immigration Appeals affirmed. Holding that convictions under 26 U. S. C. §§7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 constitute aggravated felonies under Clause (i), the Ninth Circuit affirmed, but remanded for the Board to determine whether Mrs. Kawashima’s conviction had caused a Government loss in excess of $10,000.
Held: Convictions under 26 U. S. C. §§7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 qualify as aggravated felonies pursuant to Clause (i). Pp. 3−11.
(a) The Kawashimas’ argument that they cannot be deported for the commission of an “aggravated felony” because crimes under §§7206(1) and (2) do not involve the fraud or deceit required by Clause (i) is rejected. This Court looks to the statute defining the crime of conviction, rather than the specific facts underlying the crime, see Gonzales v. Duenas-Alvarez, 549 U. S. 183, to determine whether the Kawashimas’ offenses involve fraud or deceit within the meaning of Clause (i). Section 7206(1) provides that any person who “willfully makes and subscribes any return . . . which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter,” shall be guilty of a felony. Although the words “fraud” and “deceit” are absent from §7206(1) and are not themselves formal elements of the crime, it does not follow that Mr. Kawashima’s offense falls outside Clause (i). Clause (i) is not limited to offenses that include fraud or deceit as formal elements. Rather, it refers more broadly to offenses involving fraud or deceit―meaning offenses with elements that necessarily entail fraudulent or deceitful conduct. Mr. Kawashima’s conviction under §7206(1) involved deceitful conduct in that he knowingly and willfully submitted a tax return that was false as to a material matter. Mrs. Kawashima was convicted of violating §7206(2), which declares that any person who “[w]illfully aids or assists in . . . the preparation or presentation . . . of a return . . . which is fraudulent or is false as to any material matter” has committed a felony. She committed a felony involving deceit by knowingly and willfully assisting her husband’s filing of a materially false tax return. Pp. 3−6.
(b) The Kawashimas’ argument that Clause (i), when considered in light of 8 U. S. C. §1101(a)(43)(M)(ii) (Clause (ii)), must be interpreted as being inapplicable to tax crimes is also rejected. Clause (i) defines “aggravated felony” to mean an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Clause (ii) defines “aggravated felony” as an offense that is “described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” Contrary to the Kawashimas’ claim, the difference in the clauses’ language—“revenue loss to the Government” in Clause (ii) compared to “loss to the victim” in Clause (i)—does not establish Congress’ intent to remove tax crimes from the scope of Clause (i). By its plain language, Clause (i) covers a broad class of offenses that involve fraud or deceit, and Congress’ decision to tailor Clause (ii)’s language to match the sole type of offense it covers does not demonstrate that Congress intended to implicitly circumscribe Clause (i)’s broad scope. Furthermore, interpreting Clause (i) to include tax crimes does not violate the presumption against superfluities. The specific inclusion of tax evasion in Clause (ii) does not make it redundant to Clause (i) because the inclusion was intended to ensure that tax evasion pursuant to 26 U. S. C. §7201 was a deportable offense. Pp. 6−10.
(c) The United States Sentencing Guidelines’ separate treatment of tax crimes and crimes involving fraud and deceit does not support the Kawashimas’ contention that Congress did not intend to include tax crimes within Clause (i). No evidence suggests that Congress considered the Guidelines when drafting 8 U. S. C. §1101(a)(43)(M). Moreover, the differences between §1101(a)(43)(M) and the Guidelines undercut any inference that Congress was incorporating the distinction drawn by the Guidelines into §1101(a)(43)(M). Pp. 10−11.
(d) Construing §1101(a)(43)(M) in the Kawashimas’ favor under the rule of lenity is not warranted in light of the statute’s clear application. P. 11.
615 F. 3d 1043, affirmed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Alito, and Sotomayor, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer and Kagan, JJ., joined.
Certiorari To The United States Court Of Appeals For The Sixth Circuit
No. 10–680. Argued October 4, 2011—Decided February 21, 2012
Respondent Fields, a Michigan state prisoner, was escorted from his prison cell by a corrections officer to a conference room where he was questioned by two sheriff’s deputies about criminal activity he had allegedly engaged in before coming to prison. At no time was Fields given Miranda warnings or advised that he did not have to speak with the deputies. As relevant here: Fields was questioned for between five and seven hours; Fields was told more than once that he was free to leave and return to his cell; the deputies were armed, but Fields remained free of restraints; the conference room door was sometimes open and sometimes shut; several times during the interview Fields stated that he no longer wanted to talk to the deputies, but he did not ask to go back to his cell; after Fields confessed and the interview concluded, he had to wait an additional 20 minutes for an escort and returned to his cell well after the hour when he generally retired.
The trial court denied Fields’ motion to suppress his confession under Miranda v. Arizona, 384 U. S. 436, and he was convicted. The Michigan Court of Appeals affirmed, rejecting Fields’ contention that his statements should have been suppressed because he was subjected to custodial interrogation without a Miranda warning. The United States District Court for the Eastern District of Michigan subsequently granted Fields habeas relief under 28 U. S. C. §2254(d)(1). Affirming, the Sixth Circuit held that the interview was a custodial interrogation within the meaning of Miranda, reasoning that Mathis v. United States, 391 U. S. 1, “clearly established,” §2254(d)(1), that isolation from the general prison population, combined with questioning about conduct occurring outside the prison, makes any such interrogation custodial per se.
1. This Court’s precedents do not clearly establish the categorical rule on which the Sixth Circuit relied. The Court has repeatedly declined to adopt any such rule. See, e.g., Illinois v. Perkins, 496 U. S. 292. The Sixth Circuit misread Mathis, which simply held, as relevant here, that a prisoner who otherwise meets the requirements for Miranda custody is not taken outside the scope of Miranda because he was incarcerated for an unconnected offense. It did not hold that imprisonment alone constitutes Miranda custody. Nor does the statement in Maryland v. Shatzer, 559 U. S. ___, ___, that “[n]o one questions that [inmate] Shatzer was in custody for Miranda purposes” support a per se rule. It means only that the issue of custody was not contested in that case. Finally, contrary to respondent’s suggestion, Miranda itself did not hold that the inherently compelling pressures of custodial interrogation are always present when a prisoner is taken aside and questioned about events outside the prison walls. Pp. 4–7.
2. The Sixth Circuit’s categorical rule—that imprisonment, questioning in private, and questioning about events in the outside world create a custodial situation for Miranda purposes—is simply wrong. Pp. 8–13.
(a) The initial step in determining whether a person is in Miranda custody is to ascertain, given “all of the circumstances surrounding the interrogation,” how a suspect would have gauged his freedom of movement. Stansbury v. California, 511 U. S. 318. However, not all restraints on freedom of movement amount to Miranda custody. See, e.g., Berkemer v. McCarty, 468 U. S. 420. Shatzer, distinguishing between restraints on freedom of movement and Miranda custody, held that a break in Miranda custody between a suspect’s invocation of the right to counsel and the initiation of subsequent questioning may occur while a suspect is serving an uninterrupted term of imprisonment. If a break in custody can occur, it must follow that imprisonment alone is not enough to create a custodial situation within the meaning of Miranda. At least three strong grounds support this conclusion: Questioning a person who is already in prison does not generally involve the shock that very often accompanies arrest; a prisoner is unlikely to be lured into speaking by a longing for prompt release; and a prisoner knows that his questioners probably lack authority to affect the duration of his sentence. Thus, service of a prison term, without more, is not enough to constitute Miranda custody. Pp. 8–12.
(b) The other two elements in the Sixth Circuit’s rule are likewise insufficient. Taking a prisoner aside for questioning may necessitate some additional limitations on the prisoner’s freedom of movement, but it does not necessarily convert a noncustodial situation into Miranda custody. Isolation may contribute to a coercive atmosphere when a nonprisoner is questioned, but questioning a prisoner in private does not generally remove him from a supportive atmosphere and may be in his best interest. Neither does questioning a prisoner about criminal activity outside the prison have a significantly greater potential for coercion than questioning under otherwise identical circumstances about criminal activity within the prison walls. The coercive pressure that Miranda guards against is neither mitigated nor magnified by the location of the conduct about which questions are asked. Pp. 12–13.
3. When a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation. The record in this case reveals that respondent was not taken into custody for Miranda purposes. While some of the facts lend support to his argument that Miranda’s custody requirement was met, they are offset by others. Most important, he was told at the outset of the interrogation, and reminded thereafter, that he was free to leave and could go back to his cell whenever he wanted. Moreover, he was not physically restrained or threatened, was interviewed in a well-lit, average-sized conference room where the door was sometimes left open, and was offered food and water. These facts are consistent with an environment in which a reasonable person would have felt free to terminate the interview and leave, subject to the ordinary restraints of life behind bars. Pp. 13–16.
617 F. 3d 813, reversed.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Breyer and Sotomayor, JJ., joined.
On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit
No. 11–38. Decided February 21, 2012
James Lambert was convicted and sentenced to death in 1984 for the murder of two patrons during a robbery of Prince’s Lounge in Philadelphia, Pennsylvania. One of the Commonwealth’s primary witnesses at Lambert’s trial was Bernard Jackson, who admitted to being involved in the robbery and identified Bruce Reese and Lambert as his accomplices. Almost 20 years later, Lambert brought a claim for postconviction relief in Pennsylvania state court, alleging that the Commonwealth had failed to disclose, inter alia, a “police activity sheet” in violation of Brady v. Maryland, 373 U. S. 83 (1963) . This document, dated October 25, 1982, noted that a photo display containing a picture of an individual named Lawrence Woodlock was shown to two witnesses to the Prince’s Lounge robbery, but that “[n]o identification was made.” Exh. 1, App. to Brief in Opposition. The document further noted that “Mr. WOODLOCK is named as co-defendant” by Jackson, who was in custody at the time on several charges and had admitted to involvement in at least 13 armed robberies of bars. Ibid. The activity sheet did not indicate whether Jackson’s reference was to the Prince’s Lounge crime or one of the others. The sheet bore the names of the law enforcement officers involved in the investigation of the Prince’s Lounge robbery. It also bore the names of the robbery’s murder victims, as well as the police case numbers for those murders. The Commonwealth has identified no evidence that Woodlock was ever investigated for any other robbery, or that his photo was shown to a witness in any other robbery.
Lambert claimed that the activity sheet was exculpatory, because it suggested that someone other than or in addition to him, Jackson, and Reese was involved in the Prince’s Lounge crime. Commonwealth v. Lambert, 584 Pa. 461, 472, 884 A. 2d 848, 855 (2005). Lambert also argued that he could have used the activity sheet to impeach Jackson’s testimony at trial, because the statement attributed to Jackson suggested that Jackson had identified Woodlock as a participant prior to identifying Lambert. Ibid.
The Commonwealth countered that the asserted “statement” by Jackson reflected in the activity sheet was in fact nothing more than an “ambiguously worded notation.” Ibid. The Commonwealth argued that this notation simply indicated that Jackson had named Woodlock as a “co-defendant” in some incident, without specifying whether Woodlock was said to be involved in the Prince’s Lounge robbery or one of the dozen other robberies in which Jackson had admitted participating. In this regard, the Commonwealth noted that Woodlock’s name was not mentioned anywhere else in the police records, trial proceedings, or Jackson’s statements about the Prince’s Lounge robbery. As the Commonwealth has put it, “it seems likely that Jackson identified [Woodlock] as a participant in one of his many other robberies, and police simply confirmed that Woodlock had nothing to do with this case.” Reply to Brief in Opposition 2. The Commonwealth “further note[d]” that the document would not have advanced any impeachment of Jackson, because he had already been extensively impeached at trial. Lambert, 584 Pa., at 472, 884 A. 2d, at 855. Thus, according to the Commonwealth, the “ambiguous reference to Woodlock” would not have discredited Jackson any further. Ibid.
The Pennsylvania Supreme Court agreed with the Commonwealth and unanimously rejected Lambert’s Brady claim, holding that the disputed document was not material. Id., at 472–473, 848 A. 2d, at 855–856. The court concluded that there was no reasonable probability that the result of Lambert’s trial would have been different had the document been disclosed. Ibid. See Strickler v. Greene, 527 U. S. 263, 281 (1999) . Calling Lambert’s claim that the reference to Woodlock “automatically” meant someone else was involved in the Prince’s Lounge robbery “purely speculative at best,” the court noted that “the police must not have had reason to consider Woodlock a potential codefendant in this case as his name is not mentioned anywhere else in the police investigation files.” 584 Pa., at 473, 884 A. 2d, at 855. “Moreover,” the court continued, the document “would not have materially furthered the impeachment of Jackson at trial as he was already extensively impeached by both [Lambert] and Reese.” Ibid.
Lambert filed a petition for a writ of habeas corpus in the Eastern District of Pennsylvania under 28 U. S. C. §2254, claiming, inter alia, that the Commonwealth’s failure to disclose the document violated his rights under Brady. The District Court denied the writ, holding that the state courts’ determination that the notations “were not exculpatory or impeaching” was “reasonable.” Lambert v. Beard, Civ. Action No. 02–9034 (July 24, 2007), App. to Pet. for Cert. 34, 36. The court explained that “[t]he various notations and statements which [Lambert] claims the Commonwealth should have disclosed are entirely ambiguous, and would have required the state courts to speculate to conclude they were favorable for Lambert and material to his guilt or punishment.” Id., at 36.
On appeal, however, the Court of Appeals for the Third Circuit reversed and granted the writ. 633 F. 3d 126 (2011). The Third Circuit concluded that it was “patently unreasonable” for the Pennsylvania Supreme Court to presume that whenever a witness is impeached in one manner, any other impeachment evidence would be immaterial. Id., at 134. According to the Third Circuit, the notation that Jackson had identified Woodlock as a “co-defendant” would have “opened an entirely new line of impeachment” because the prosecutor at trial had relied on the fact that Jackson had consistently named Lambert as the third participant in the robbery. Id., at 135. The Commonwealth petitioned for certiorari.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the state court’s adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). “Under §2254(d), a habeas court must determine what arguments or theories supported . . . the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12).
In this case, however, the Third Circuit overlooked the determination of the state courts that the notations were, as the District Court put it, “not exculpatory or impeaching” but instead “entirely ambiguous.” App. to Pet. for Cert. 34, 36. Instead, the Third Circuit focused solely on the alternative ground that any impeachment value that might have been obtained from the notations would have been cumulative. If the conclusion in the state courts about the content of the document was reasonable—not necessarily correct, but reasonable—whatever those courts had to say about cumulative impeachment evidence would be beside the point. The failure of the Third Circuit even to address the “ambiguous” nature of the notations, and the “speculat[ive]” nature of Lambert’s reading of them, is especially surprising, given that this was the basis of the District Court ruling. Id., at 36. 1
The Court of Appeals ordered that Lambert, convicted of capital murder nearly 30 years ago, be set free unless the Commonwealth retried him within 120 days. It did so because of a police activity sheet noting that Jackson had identified Woodlock as a “co-defendant,” and bearing other information associating the sheet with the Prince’s Lounge robbery. The Court of Appeals, however, failed to address the state court ruling that the reference to Woodlock was ambiguous and any connection to the Prince’s Lounge robbery speculative. That ruling—on which we do not now opine—may well be reasonable, given that (1) the activity sheet did not explicitly link Woodlock to the Prince’s Lounge robbery, (2) Jackson had committed a dozen other such robberies, (3) Jackson was being held on several charges when the activity sheet was prepared, (4) Woodlock’s name appeared nowhere else in the Prince’s Lounge files, and (5) the two witnesses from the Prince’s Lounge robbery who were shown Woodlock’s photo did not identify him as involved in that crime.
Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prosecution. That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.
The petition for certiorari and respondent’s motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Third Circuit is vacated, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
1 The dissent emphasizes that the activity sheet was prepared for the investigation into the Prince’s Lounge crime. Post, at 1 (opinion of Breyer, J.). No one disputes that. The ambiguity at issue concerns whether Jackson’s statement referred to that crime, or one of his many others. The dissent also finds “no suggestion” that the state courts believed Jackson’s reference to Woodlock “contained the argued ambiguity.” Post, at 3. The Pennsylvania Supreme Court, however, recognized the Commonwealth’s argument that Jackson could have named Woodlock as a codefendant in some other robbery, and concluded that “the Commonwealth accurately notes that the police must not have had reason to consider Woodlock a potential codefendant in this case as his name is not mentioned anywhere else in the police investigation files.” Commonwealth v. Lambert, 584 Pa. 461, 473, 884 A. 2d 848, 855 (2005). The only state court ruling the Third Circuit addressed—the conclusion that any impeachment evidence would have been cumulative—was one the state court introduced with “[m]oreover,” confirming that it was an alternative basis for its decision. Ibid. And the District Court certainly understood the state court decisions to have considered the reference ambiguous. See App. to Pet. for Cert. 36.
On Petitions For Writs Of Certiorari To The Supreme Court Of Appeals Of West Virginia
Nos. 11–391 and 11–394. Decided February 21, 2012
State and federal courts must enforce the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., with respect to all arbitration agreements covered by that statute. Here, the Supreme Court of Appeals of West Virginia, by misreading and disregarding the precedents of this Court interpreting the FAA, did not follow controlling federal law implementing that basic principle. The state court held unenforceable all predispute arbitration agreements that apply to claims alleging personal injury or wrongful death against nursing homes.
The decision of the state court found the FAA’s coverage to be more limited than mandated by this Court’s previous cases. The decision of the State Supreme Court of Appeals must be vacated. When this Court has fulfilled its duty to interpret federal law, a state court may not contradict or fail to implement the rule so established. See U. S. Const., Art. VI, cl. 2.
This litigation involves three negligence suits against nursing homes in West Virginia. The suits were brought by Clayton Brown, Jeffrey Taylor, and Sharon Marchio. In each case, a family member of a patient requiring extensive nursing care had signed an agreement with a nursing home on behalf of the patient. The relevant parts of the agreements in Brown’s case and Taylor’s case were identical. The contracts included a clause requiring the parties to arbitrate all disputes, other than claims to collect late payments owed by the patient. The contracts included a provision holding the party filing the arbitration responsible for paying a filing fee in accordance with the Rules of the American Arbitration Association fee schedules. The agreement in Marchio’s case also included a clause requiring arbitration but made no exceptions to the arbitration requirement and did not mention filing fees.
In each of the three cases, a family member of a patient who had died sued the nursing home in state court, alleging that negligence caused injuries or harm resulting in death. A state trial court dismissed the suits by Brown and Taylor based on the agreements to arbitrate. The Supreme Court of Appeals of West Virginia consolidated those cases with Marchio’s, which was before the court on other issues.
In a decision concerning all three cases, the state court held that “as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence.” Brown v. Genesis Healthcare Corp., No. 35494 (W. Va., June 29, 2011), App. to Pet. for Cert. in No. 11–391, pp. 85a–86a (hereinafter Pet. App.). The state court considered whether the state public policy was pre-empted by the FAA. The state court found unpersuasive this Court’s interpretation of the FAA, calling it “tendentious,” id., at 51a, and “created from whole cloth,” id., at 53a. It later concluded that “Congress did not intend for the FAA to be, in any way, applicable to personal injury or wrongful death suits that only collaterally derive from a written agreement that evidences a transaction affecting interstate commerce, particularly where the agreement involves a service that is a practical necessity for members of the public,” id., at 84a. The court thus concluded that the FAA does not pre-empt the state public policy against predispute arbitration agreements that apply to claims of personal injury or wrongful death against nursing homes.
The West Virginia court’s interpretation of the FAA was both incorrect and inconsistent with clear instruction in the precedents of this Court. The FAA provides that a “written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. The statute’s text includes no exception for personal-injury or wrongful-death claims. It “requires courts to enforce the bargain of the parties to arbitrate.” Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 217 (1985) . It “reflects an emphatic federal policy in favor of arbitral dispute resolution.” KPMG LLP v. Cocchi, 565 U. S. ___, ___ (2011) (per curiam) (slip op., at 3) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 631 (1985) ; internal quotation marks omitted).
As this Court reaffirmed last Term, “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” AT&T Mobility LLC v. Concepcion, 563 U. S. ___, ___ (2011) (slip op., at 6–7). That rule resolves these cases. West Virginia’s prohibition against predispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes is a categorical rule prohibiting arbitration of a particular type of claim, and that rule is contrary to the terms and coverage of the FAA. See ibid. See also, e.g., Preston v. Ferrer, 552 U. S. 346, 356 (2008) (FAA pre-empts state law granting state commissioner exclusive jurisdiction to decide issue the parties agreed to arbitrate); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 56 (1995) (FAA pre-empts state law requiring judicial resolution of claims involving punitive damages); Perry v. Thomas, 482 U. S. 483, 491 (1987) (FAA pre-empts state-law requirement that litigants be provided a judicial forum for wage disputes); Southland Corp. v. Keating, 465 U. S. 1, 10 (1984) (FAA pre-empts state financial investment statute’s prohibition of arbitration of claims brought under that statute).
The West Virginia court proposed an “alternativ[e]” holding that the particular arbitration clauses in Brown’s case and Taylor’s case were unconscionable. Pet. App. 89a–91a, 94a. See also id., at 98a (not addressing the question whether the arbitration agreement in Marchio’s case is unenforceable for reasons other than public policy). It is unclear, however, to what degree the state court’s alternative holding was influenced by the invalid, categorical rule discussed above, the rule against predispute arbitration agreements. For example, in its discussion of the alternative holding, the state court found the arbitration clauses unconscionable in part because a predispute arbitration agreement that applies to claims of personal injury or wrongful death against nursing homes “clearly violates public policy.” Id., at 91a.
On remand, the West Virginia court must consider whether, absent that general public policy, the arbitration clauses in Brown’s case and Taylor’s case are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA.
* * *
The petition for certiorari is granted. The judgment of the Supreme Court of Appeals of West Virginia is vacated, and the cases are remanded for proceedings not inconsistent with this opinion.
It is so ordered.