Upcoming SG Invitation Briefs

By Amy Howe
on May 8, 2007 at 11:02 am

It’s that time of year again . . . when the Solicitor General’s office files amicus briefs in response to the invitations issued by the Court to aid its determination whether to grant certiorari in a handful of cases. As a general rule, May is when the SG generally files briefs responding to invitations that were issued in the fall, winter, and early spring, so that the Court can consider the cases before its summer recess (although the SG was asked to weigh in on one of the cases below nearly a year ago). As Tom has explained in his earlier post on the state of the Court’s cert. docket, it’s possible that we could see grants in as many as three to six of these cases (particularly given the current shortfall in the docket). To help you keep track of the cases for which we expect SG amicus briefs, we’ve provided a brief summary below, along with the links to the cert. papers when available. So far (at least as reflected in the Supreme Court’s online docket system) the SG has filed just one of the briefs – recommending a denial in No. 05-10787, Murphy v. Oklahoma (the SG brief is here).

One final note: there tends to be a gap of several days between when the SG amicus briefs are filed at the Court and when they show up on the SG’s website. We’ll try to bring the briefs to you as soon as they become available; if, however, you happen to be the recipient of an electronic version of an SG brief and were able to send it along to us, we would greatly appreciate it.

No. 05-10787, Murphy v. Oklahoma. If granted, this capital case could be OT2007’s Limtiaco v. Camacho (for those of you who’ve blocked it out, the Guam tax case) – i.e., a case so arcane that it’s likely never, ever to be cited again. In any court. The case arises out of the gruesome murder of George Jacobs, a member of the Muscogee Nation, by petitioner Patrick Murphy, also a member of the Muscogee Nation. The issue is whether Jacobs’s murder occurred “in Indian country”; if so, Oklahoma would lack jurisdiction over the crime. To complicate matters, the land on which the murder allegedly occurred was originally given to the Muscogee Nation in 1902, but all of the surface rights to the land and eleven-twelfths of the mineral rights have since been conveyed to non-Indians. The Court asked for the views of the U.S. in June 2006. In a brief filed last week, the United States urged the Court to deny certiorari on the grounds that the decision below was correct – i.e., the land was NOT an Indian allotment – and, in any event, there is no conflict with any other court.

Nos. 05-1645, Wallace v. Calogero, and 06-11, Leclerc v. Webb. At issue here is a subject that is likely near and dear to many of our readers’ hearts: who can be admitted to a state bar. A rule of the Louisiana Supreme Court provides that only U.S. citizens and “resident alien[s]” may be admitted to that state’s bar. In 2001, the Louisiana Supreme Court limited the term “resident alien” to aliens with lawful permanent resident status, thereby excluding aliens such as petitioners – who are entitled only to work temporarily in the U.S. – from bar admission. The questions presented in the two petitions (cert. papers are available via this link) involve (1) the level of scrutiny appropriate for an equal protection challenge such as petitioners’ and (2) whether a state licensing scheme such as Louisiana’s, by imposing a categorical ban, is preempted by federal immigration law. The Court asked for the views of the U.S. in October 2006.

No. 06-179, Riegel v. Medtronic. Respondent Medtronic hopes to avoid having another Supreme Court case named after it. (Petition is available here; BIO is available here.) At issue in this case is whether federal law preempts state-law claims seeking damages for injuries caused by medical devices when those devices were approved by the FDA for marketing. Ten years ago, in Medtronic v. Lohr, the Supreme Court held that similar lawsuits could proceed when the device at issue had been subjected to a less rigorous level of scrutiny. And nine years ago, the Court sought the views of the Solicitor General on the same question. In that case, No. 96-1405, Smith Industries v. Kernats, the government agreed with the respondents that state-law claims should not be preempted (but nonetheless urged the Court to deny certiorari); since then, however, the government has argued in the Third Circuit that such claims are preempted. The Court asked for the views of the United States in November 2006.

No. 06-273, Cox v. DaimlerChrysler Corp. This case pits the state of Michigan against an unusual alliance of DaimlerChrysler and Michigan inmates in a tussle over the inmates’ pension benefits (petition here). In accordance with a state requirement that inmates reimburse the state for the costs associated with their confinement, the warden ordered DaimlerChrysler to send the pension funds for four inmates to their prison accounts, from which the state could then recover the funds. In DaimlerChrysler’s view (and, as it happens, the Sixth Circuit’s), such an order runs afoul of ERISA’s “anti-alienation” provision, which preempts state laws that result in an alienation of protected pension benefits. The Court asked for the views of the United States in October 2006.

No. 06-457, Rowe v. New Hampshire Motor Transport Association. It’s apparently preemption month at the SG’s office. At issue in this case is a Maine law which requires sellers of tobacco products to (a) obtain licenses to sell at the retail level; and (b) use only delivery services that will provide proof that the products will not go to minors (petition here). The First Circuit held that the law is preempted by the Federal Aviation Administration Authorization Act (yes, FAAAA . . . a long, long way to run!), which prohibits states from regulating, among other things, the services offered by shippers such as UPS. The Court asked for the views of the United States in January 2007.

No. 06-415, Selig v. Pediatric Specialty Care. At issue in this case is whether private plaintiffs – here, the parents of children with special needs and the clinics who provide services to those children – have federally enforceable rights under the Medicaid Act. The Court asked for the views of the U.S. in late February of this year.

No. 06-830, Joblove et al., v. Barr Labs, Inc. Will the fifth time be the charm here (petition, BIO, reply)? After denying four earlier petitions presenting this issue – including one at this time last year, No. 05-273, FTC v. Schering-Plough, in which the SG also filed an invitation brief – the Court will again consider whether and under what circumstances an agreement by the maker of a patented brand-name drug to share its future profits with the manufacturer of a generic substitute in exchange for the generic manufacturer’s agreement not to market the substitute violates federal antitrust laws. The Schering-Plough case garnered significant attention not simply because of the importance of the question presented, but also because it presented the Supreme-Court-geek version of a family feud, with the SG’s office urging the Court to deny the FTC’s cert. petition. In so doing, the SG acknowledged that the question presented was “an important and unsettled issue,” but it asserted that there was no real conflict among the circuits on the issue and that, in any event, the Schering-Plough case was an inappropriate vehicle to consider the question presented. Notably, in an attempt to stave off total defeat in the Schering-Plough case, the FTC had suggested that the Court hold the case pending the Second Circuit’s disposition of . . . the Joblove appeal. The Court asked for the views of the U.S. in this case in March 2007.

No. 06-856, LaRue v. DeWolff, Boberg & Associates. At issue in this case is whether ERISA permits an individual taking part in a “defined contribution” retirement plan to bring an action to recover money losses attributable to a breach of fiduciary duty by plan managers or administrators (petition, BIO, reply). At the rehearing stage in the Fourth Circuit, petitioner had the support of an amicus brief filed by the Department of Labor (which has filed similar briefs in other proceedings in the lower courts); stay tuned to see what the SG’s office has to say in its brief. The Court asked for the views of the U.S. in late February 2007.

The Court has asked for the views of the United States in three additional cases – No. 06-923, Metlife v. Glenn, No. 06-937, Quanta Computer v. LG Electronics, and No. 06-939, U.S. Chamber of Commerce v. Brown. However, because these invitations were not extended until April, we do not expect the SG to file responses in these cases until the fall. Lyle Denniston has more on these cases here.