Justices grant four new cases

This morning the Supreme Court added four new cases to its docket for next term, on topics ranging from federal pre-emption to the rules governing attorney’s fees for Social Security claimants. The justices once again did not act on a petition by the federal government to nullify a ruling that cleared the way for an undocumented pregnant teenager to receive an abortion.

In Virginia Uranium v. Warren, the justices agreed to weigh in on questions of pre-emption – that is, when federal law trumps state law – and the Atomic Energy Act. The petition for review was filed by Virginia Uranium, a company that owns and wants to mine the country’s largest-known deposit of uranium ore, which is used for both nuclear power plants and nuclear weapons. The company was barred from doing so by a Virginia law prohibiting uranium mining. That ban, the company contends, stems from concerns about radiation from both the process used to transform the mined product into a form in which it can be used (known as “milling”) and the waste that results from that processing, known as “tailings.” And those concerns, the company argues, conflict with the Atomic Energy Act, which gives the federal Nuclear Regulatory Commission exclusive power to regulate uranium milling and tailings-management activities.

The U.S. Court of Appeals for the 4th Circuit rejected the company’s argument, ruling that Virginia’s ban on mining was not pre-empted. The court of appeals reasoned that federal laws regulate milling and tailings, but Virginia’s law does not address these. Virginia Uranium asked the Supreme Court to review that ruling, and last fall the justices asked the federal government to weigh in.

In a brief filed last month, the federal government urged the Supreme Court to take up the case, telling the justices that the 4th Circuit’s ruling got it wrong on an important nuclear-safety question. Today the justices agreed to do so; the case will likely be argued in the fall.

In Jam v. International Finance Corp., the justices will tackle a case that began as a lawsuit against the IFC, a part of the World Bank Group that bills itself as “the largest global development institution focused exclusively on the private sector in developing countries.” The plaintiffs in the case are farmers and fishermen who live near a power plant in India that was financed through loans from the IFC. The power plant, they contend, was a disaster that ruined local water supplies, decimated fish populations and contaminated the air around the plant. They filed a lawsuit in a federal district court in Washington, D.C., but the district court dismissed the case because it concluded that the IFC was immune from suit. The court of appeals upheld the decision, but now the Supreme Court will weigh in.

As the case comes to the court, it centers on the International Organizations Immunities Act, which gives international organizations the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” The justices agreed to decide whether this means that international organizations have the same immunity as foreign governments have under the Foreign Sovereign Immunities Act – which contains an exception from immunity for “commercial activities.”

In Royal v. Murphy, the justices will rule on whether the historic territory of the Muscogee (Creek) Nation in Oklahoma currently is a “reservation” or “Indian country.” The question matters because the U.S. government has jurisdiction to prosecute crimes committed by Indians or against Indians in “Indian country,” including serious crimes committed by one Indian against another.

The issue arises in the case of Patrick Murphy, a member of the Creek Nation who was convicted and sentenced to death in Oklahoma state court for the murder of another member of the same nation. After his sentence was upheld on appeal, Murphy returned to the state courts seeking post-conviction relief: He argued that the federal government, rather than Oklahoma, has authority to prosecute him because both he and his victim were Indians and the crime occurred in Indian country. That argument was unsuccessful in the state courts, but when Murphy went to federal court, the U.S. Court of Appeals for the 10th Circuit agreed, reasoning that Congress had never disestablished – that is, terminated – the boundaries of the Creek Nation.

Oklahoma asked the justices to review the 10th Circuit’s ruling in February; in March, the state received an unsolicited boost from the federal government, which described the lower court’s decision as “incorrect” and urged the Supreme Court to step in. The federal government warned the justices that if the 10th Circuit’s decision is not reversed, it could have a broad impact, not only for “criminal jurisdiction in cases involving Indians in vast areas of eastern Oklahoma,” but also for “state taxing and other jurisdiction.” Justice Neil Gorsuch is recused from the case, presumably because he participated in earlier proceedings in the case while he was still a judge on the 10th Circuit.

And in Culbertson v. Berryhill, the justices will clarify the rules relating to fees for lawyers who represent individuals seeking Social Security benefits. A provision of the Social Security Act indicates that, when someone claiming benefits is represented by a lawyer and wins in court, the court can award attorney’s fees “not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled.” The question now before the court is whether that 25-percent cap applies only to attorney’s fees for representing a claimant in court or also to fees for representing a claimant before the Social Security Administration.

The Supreme Court once again did not act on Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that allowed a pregnant teenager to obtain an abortion. The teenager, known in the litigation as “Jane Doe,” had been caught trying to enter the United States illegally; the federal government had refused to allow her to leave the shelter where she was being held in custody, arguing that it did not want to facilitate her abortion. In October 2017, the D.C. Circuit ruled for Doe, who had an abortion the next day. The government told the justices that it would have sought Supreme Court review, but was unable to do so because the teenager’s lawyers had not kept it informed about the timing for the procedure. Therefore, the government argues, the appeal is moot and the Supreme Court should not allow the lower court’s decision to serve as future precedent, particularly because it is not the government’s fault that the case is moot. The briefing in the case was complete in December, and the justices considered the case at several conferences before asking the lower courts to send them the record, which the Supreme Court received in late February.

The justices also asked the U.S. solicitor general to file a brief expressing the views of the United States in City of Cibolo v. Green Valley Special Utility District, a case involving the scope of federal laws governing monopoly protection for recipients of federal loans to fund water and wastewater infrastructure in rural areas. There is no deadline for the solicitor general to file his brief.

This post was originally published at Howe on the Court.