In Plain English: Recent decisions
on Apr 23, 2012 at 11:41 am
Last week the Court returned to begin its final set of oral arguments before the summer recess. And although much of the coverage of the Court continues to focus on how the Justices will rule on the challenges to the Affordable Care Act, the Court has clearly been busy with the rest of its docket as well, as demonstrated by the four new decisions that it issued last week. Let’s look at some of these in Plain English.
One of last week’s decisions came in Mohamad v. Palestinian Authority, a case that was one of a pair of human rights cases argued on February 28. We almost certainly won’t get a decision in Kiobel v. Royal Dutch Petroleum, the other corporate human rights case argued that day, until sometime next year: Shortly after the oral argument, the Court ordered both sides in Kiobel to file briefs addressing a new question in the case – whether the Alien Tort Statute, the law on which a group of Nigerians is seeking to rely to hold Royal Dutch Petroleum liable for alleged human rights violations, applies to conduct that occurs in other countries. Unlike Kiobel, there is no real dispute that the Torture Victim Protection Act (TVPA), the law on which the plaintiffs in Mohamad were seeking to rely, applies to conduct that occurred outside the United States. Instead, the question before the Court was whether the TVPA, which allows lawsuits against an “individual” for torture carried out on behalf of a foreign country, includes lawsuits against organizations.
The case has its roots in the 1995 death of Azzam Rahim, a naturalized U.S. citizen, while he was being held by intelligence officers working for the Palestinian Authority. Relying on the TVPA, Rahim’s family filed a lawsuit against the Authority and the Palestine Liberation Organization (the former is the administrative entity that governs Palestinian areas in the West Bank and the Gaza Strip, while the latter is a political entity), claiming that the groups were responsible for torturing Rahim.
Both of the lower courts that heard the family’s lawsuit agreed that it could not go forward because the TVPA only allows lawsuits against actual people; the law’s references to “individual” do not include defendants, such as the Authority and the PLO, who are not people.
Rahim’s family then took its case to the Supreme Court, hoping to find more success there. [Disclosure: The law firm of Goldstein & Russell, P.C., in which I am a partner, was part of the team representing the family at the Court through the Stanford Supreme Court Clinic, but I was not involved in the case.] But the Court unanimously affirmed the lower courts, putting an end to the lawsuit under the TVPA.
In her opinion for the Court, Justice Sonia Sotomayor relied heavily on what she described as the ordinary meaning of the word “individual” as referring to an actual person. She acknowledged that the word could have a “broader or different meaning,” but she found no sign that Congress intended it to have a broader or different meaning here: if anything, Congress’s use of the word “individual” suggests that Congress intended it to apply only to real people.
Having concluded that the text of the TVPA clearly applies only to actual people, the Court found still more support for that conclusion in the history of the TVPA. In particular, the Court emphasized, an earlier version of the TVPA had referred to lawsuits against a “person,” rather than an “individual,” but one of the bill’s sponsors suggested changing “person” to “individual” “to make it clear we are applying it to individuals and not to corporations.”
Although all of the Justices agreed that the family’s lawsuit could not go forward, the Court’s discussion of the legislative history of the TVPA was the one point on which all nine were not in agreement. Justice Scalia believes that the Court should never consider statements from legislators about the history of the laws that it is interpreting; presumably for this reason, he declined to sign on to that part of the Court’s opinion. On the other end of the spectrum, Justice Breyer disagreed with his colleagues that the case could be decided based only on the meaning of the word “individual,” but he agreed with their conclusion when he factored in the history of the TVPA.
At the end of its opinion, the Court turned to another argument that the family had made to bolster its case: interpreting the TVPA to allow lawsuits only against real people will make it much harder for victims of human rights abuses to receive compensation for their injuries – because, for example, they cannot identify the people who were actually responsible for their torture or because the perpetrators don’t have any money anyway. Notably, the Court did not dispute that these concerns were valid ones. Instead, it explained that this was the choice that Congress had made, and it was not the Court’s job to fix any shortcomings in the law.
In Caraco Pharmaceutical Laboratories v. Novo Nordisk, the Court grappled with the kind of question that does not usually dominate the headlines (or even make them), but still is very important to the parties involved – here, the companies that make brand-name and generic drugs: does the phrase “not an” mean “not any” (as Novo Nordisk argues) or instead “not a particular one,” as Caraco contends? The Court’s answer? Generally, “[i]t depends,” but in this case it means “not a particular one.”
The case is the latest skirmish in the ongoing battle between generic drug makers, who want to bring generic versions of brand-name drugs to market as soon as possible, and brand-name manufacturers, who want to maximize their profits by keeping the generics out of the market for as long as possible. When generic drug makers want permission from the Food & Drug Administration (FDA) to sell their drugs, they can piggyback off the application filed by the brand-name drug maker as long as they are selling a drug that has essentially the same ingredients as the brand-name drug. However, the FDA won’t approve the generic drug maker’s application if the company is asking the FDA for permission to market the drug for a use (known as the “use code”) that the brand-name drug maker has listed as being covered by one of its patents.
This case arises because Novo Nordisk makes repaglinade, a drug that is used either alone or in combination with one of two other drugs to treat diabetes. Novo Nordisk holds a patent on only one of three possible uses of the drug, in which repaglinade is paired with a second drug. However, its “use code” for the drug includes all three uses of the drug to treat diabetes. So when Caraco filed an application with the FDA seeking to sell a generic version of the drug, the FDA refused permission, explaining that the use for the drug was covered by Novo Nordisk’s “use code” – even though the description of the “use code” was broader than the company’s actual patent.
Novo Nordisk had already filed a lawsuit against Caraco accusing it of infringing its repaglinade patent. Once Caraco learned that it would not be able to sell the drug for any use, it asked the court in that case to order Novo Nordisk to correct the use code. This is where the phrase “not an” comes in: Caraco based its request on a provision of the drug laws that allows generic drug makers to defend themselves against patent infringement claims by seeking an order requiring the brand-name manufacturer to correct patent information provided to the FDA “on the ground that the patent does not claim . . . an approved method of using the drug.”
The two lower courts that considered Caraco’s claim interpreted the “not an” provision in two different ways. The trial court agreed with Caraco that it meant “not a particular one,” while the appeals court sided with Novo Nordisk’s argument that it meant “not any.” In the last word on the subject (unless Congress decides to change the law), the Supreme Court concluded that, in the abstract, the phrase could mean either of these things. But in this case, Caraco has it right. In an opinion by Justice Kagan, the Court emphasized that, even if the phrase “not an” could have more than one meaning, Congress clearly intended the law to work the way Caraco interprets it, so that generic manufacturers can market a patent for a use that is not covered by a patent even if a brand-name manufacturer has a patent for another use.
One issue that the Court confronts on a fairly regular basis is that of immunity from lawsuits – whether and when government officials can be sued for their conduct on the job. In its second opinion on Tuesday, Filarsky v. Delia, the Court considered this question: can a private person hired by the government to provide services be sued for the things that he does while working for the government? In an opinion by the Chief Justice, the Court unanimously agreed that he cannot.
The events that led to the case before the Court began when respondent Nicholas Delia, a firefighter, was injured on the job. While Delia was on leave to recover, city officials began to suspect that perhaps he was not so sick after all. Those suspicions were only heightened when the private investigator whom the city hired to follow Delia saw him buy building supplies at a local store.
The city’s next step was to hire petitioner Steve Filarsky, a private attorney, to head a formal investigation. During an interview with Filarsky, Delia admitted that he had purchased the supplies, but he maintained that he hadn’t used them yet, and he refused to show them to Filarsky and city officials until he was eventually ordered to do so.
Delia then filed a lawsuit against city officials and Filarsky under 42 U.S.C. § 1983, a federal civil rights law that allows an individual whose constitutional rights have been violated by someone acting on behalf of the government to sue that person. In this case, Delia contended that the order to produce the building materials violated his Fourth Amendment right to be free from unreasonable searches and seizures.
The lower court concluded that the city officials could not be sued because they were protected by the most common form of immunity, known as “qualified immunity.” As I explained when the Court agreed to hear this case back in September, the doctrine of qualified immunity is an effort to strike a balance; we want government officials to be able to do their jobs without a constant fear of being sued, but we also want them to be accountable when they do behave truly badly. Although the order to bring out the building supplies had violated Delia’s Fourth Amendment rights, the court explained, the violation was not so clear that the officials could be held liable for it. The Supreme Court granted Filarsky’s request to review his case, and on Tuesday it reversed the lower court and ruled in his favor.
When it determines whether an individual can be sued under the civil rights laws, one important factor that the Court considers is whether the person who is trying to avoid liability could have been sued when the civil rights laws were enacted in 1871. The Court’s opinion begins with this point, as well as a lengthy history lesson which emphasizes that in the nineteenth century government as we know it was much smaller, and many important government activities were carried out by private individuals: for example, before becoming president, Abraham Lincoln would occasionally prosecute criminal cases, even though he was a lawyer in private practice. Because these individuals had been entitled to immunity for their work in government, the Court reasoned, an individual like Filarsky should as well. Indeed, the Court continued, providing private individuals with immunity from suit for their work on behalf of the government would be consistent with the rationale behind providing immunity in the first place. For example, it will allow private individuals to make decisions without having to worry about being sued, and it will allow the government to attract top talent – particularly in situations like this one, where the city needed to hire an employment law specialist like Filarsky to conduct the investigation. All of these concerns are magnified, the Court noted, when private individuals like Filarsky are working closely with government employees who do have immunity; the private employee won’t want to be the only one “left holding the bag” for the actions of the whole group.
Justice Ginsburg agreed with the rest of the Court that Filarsky should be eligible for immunity. However, she wrote a separate opinion in which she emphasized that Filarsky could still be held liable if he should have known that his order to Delia to show him the building supplies clearly violated the Constitution – a question that the lower court did not address.
Justice Sotomayor also wrote a separate opinion. She too agreed with the Court that Filarsky was entitled to qualified immunity, but she suggested that not all private individuals working for the government would be. Instead, a court should make its immunity decision based on the facts of each case.
The Court is back in action this week, hearing arguments in another high-profile case – the challenge to the constitutionality of Arizona’s controversial immigration law – and issuing more opinions tomorrow and Wednesday. We’ll be back soon to cover the action in Plain English.
