Solicitor general files invitation briefs

U.S. Solicitor General Noel Francisco recently filed a bevy of briefs in response to the Supreme Court’s “invitations” to provide the justices with the federal government’s views on cases in which a petition for certiorari has been filed. If – as they overwhelmingly do – the justices follow the government’s recommendations, these petitions may not lead to many new cases for the court’s merits docket next term, because the government has recommended that review on the merits be granted in only two cases.

The government recommended a grant in Thole v. U.S. Bank, a case in which the justices have been asked to decide whether a participant in a pension fund can sue the fund managers when he has not actually suffered any financial injury. The plan participants in this case have thus far received all of their pension payments, but in 2014 they filed a lawsuit in which they alleged that the managers of the pension plan had pursued a too-risky investment strategy that led to $748 million in losses; the sponsors of the fund then made a large contribution to the plan, leaving it overfunded.

The district court dismissed the case. It ruled that there was no longer a live controversy because the plan was now overfunded. The U.S. Court of Appeals for the 8th Circuit upheld the lower court’s dismissal of the case. It ruled that the federal laws governing pension plans don’t allow participants to bring a lawsuit alleging that managers have violated their duties when the plan is in fact overfunded. It reasoned that plan participants are not, in such a scenario, the kind of plaintiffs whom Congress intended to allow to sue.

The plan participants went to the Supreme Court, which last fall asked the federal government to weigh in. The government’s brief urged the justices to grant review, describing the question presented by the case as an “important” one “that arises with some frequency.” And if review is granted, the government continued, the justices should also ask the plan participants and the defendants (a bank and its officials) to address whether the court of appeals should have decided whether the participants have a legal right to sue under Article III of the Constitution, which requires a “concrete” injury. The petition has been distributed for consideration at the justices’ June 20 conference.

The solicitor general recommended that review be granted – at least in part – in Opati v. Sudan, a case that stems from the 1998 attacks by al Qaeda on the U.S. embassies in Kenya and Tanzania, which killed over 200 people and injured over 1,000 more.

The Foreign Sovereign Immunities Act generally bars lawsuits against foreign countries in U.S. courts unless one of a few narrow exceptions applies. One of those exceptions, known as the “terrorism exception,” was originally enacted in 1996 and allows lawsuits against countries designated as state sponsors of terrorism. After the U.S. Court of Appeals for the District of Columbia Circuit ruled in 2004 that the exception only waived a foreign country’s immunity from suit, and did not provide the basis for a lawsuit, Congress in 2008 enacted a new terrorism exception, which specifically created a cause of action. Although the FSIA normally prohibits punitive damages, the 2008 amendments specifically allowed them; the 2008 amendments also indicated that any cases brought under the earlier version of the exception that were still pending should be treated as if they had been filed under the new version.

The case before the Supreme Court was filed by victims of the 1998 attacks and their family members against Sudan, which was designated a state sponsor of terrorism in 1993. A federal court awarded them over $10 billion in damages, including approximately $4 billion in punitive damages. On appeal, the D.C. Circuit vacated the punitive damages award, explaining that the current version of the terrorism exception does not allow punitive damages for conduct that occurred before this version was enacted.

Last year the plaintiffs asked the Supreme Court to review the D.C. Circuit’s decision vacating the punitive damages award; the justices then asked the federal government to weigh in. In a brief filed late last month, the federal government recommended that the justices grant review to decide whether the current version of the terrorism exception allows punitive damages for pre-enactment conduct. The government explained that the D.C. Circuit’s decision to the contrary was wrong and that the issue is an important one that “affects, in these cases alone, billions of dollars in punitive damages awarded to approximately 150 U.S. government employees and contractors murdered or injured in the line of duty who were targeted because of their service to the United States.”

However, the government recommended that the court decline to review another issue presented by the plaintiffs’ petition, involving whether the D.C. Circuit should have taken up the question at all when it was not an issue on which the court’s jurisdiction hinged.

The government also recommended a denial in Sudan v. Opati, a cross-petition in which the Sudanese government had asked the justices to take up a variety of questions decided against it in the lower court, including whether – for purposes of the terrorism exception – the term “extrajudicial killing” is limited to summary executions by state actors and whether the terrorism exception withdraws immunity for emotional-distress claims brought by victims’ family members.

The solicitor general made the same recommendation in Sudan v. Owens. In this petition, the Sudanese government had asked the justices to review the D.C. Circuit’s rulings on whether the plaintiffs had shown that federal courts had the power to hear the case under the terrorism exception, as well as the lower court’s holding on when injuries are caused by a defendant’s actions for purposes of the terrorism exception. The federal government urged the Supreme Court to deny review, telling the justices that there is no conflict between the D.C. Circuit’s decision and the rulings of either the Supreme Court or other courts of appeals; moreover, the government added, the D.C. Circuit’s analysis “does not warrant review based on foreign-relations concerns.”

The government’s recommendation in Poarch Band of Creek Indians v. Wilkes, involving tribal immunity, was more nuanced. The case arises from a 2015 car accident: Barbie Spraggins, an employee of an Alabama casino owned by the Poarch Band, was driving a casino pick-up truck when she hit a car driven by Casey Wilkes. Both Wilkes and Alexander Russell, a passenger in the car, were seriously injured; Wilkes suffered a traumatic brain injury. When Wilkes and Russell sued the tribe and the casino in state court, the Alabama Supreme Court allowed the lawsuit to go forward, holding that nonmembers can sue tribes for their injuries.

The tribe asked the Supreme Court to review the state court’s decision, and last fall the justices asked the U.S. solicitor general to weigh in. In a brief filed at the end of May, the government acknowledged that what it described as the Alabama Supreme Court’s “novel holding” was “flatly inconsistent” with the U.S. Supreme Court’s tribal-immunity cases.

However, the government added, the justices should not grant review at this time. First, it suggested, the tribe’s case is not the right one in which to consider whether the Supreme Court should continue to adhere to its prior rulings on tribal sovereign immunity. But more importantly, the government continued, the tribe is considering a change to its tribal code that would waive the tribe’s immunity for lawsuits like Wilkes and Russell’s. If that change is adopted, the government explained, “which could occur as early as June 6, 2019, the Court should grant the petition,” vacate the Alabama Supreme Court’s judgment, and send the case back to the state courts for further proceedings in light of the change to the law. But if the change is not made, the government argued, the justices should simply deny review, because even if the Alabama Supreme Court’s decision is wrong, it is an “outlier.”

The solicitor general also recommended that review be denied in several more cases:

• In Airline Service Providers Associations v. Los Angeles World Airports, the justices have been asked to decide whether the “market participant” exception to federal pre-emption allows state or local governments to impose a rule that would otherwise be pre-empted on private companies even when the government is not buying anything directly from those companies. The case arose because companies that provide services at Los Angeles International Airport argue that a labor-peace provision in the agreement that they are required to sign to operate at LAX – which is owned and operated by the city of Los Angeles and Los Angeles World Airports, a component of the city – is pre-empted by federal law. In his brief, the solicitor general recommended that review be denied. The solicitor general explained that the U.S. Court of Appeals for the 9th Circuit had correctly ruled that the market-participant exception is not limited to the purchase of goods and services, but it had not articulated the right test for the exception – and, the solicitor general added, it isn’t clear that the city and the airport are acting as market participants under the correct test. However, the government continued, because it is also not clear whether the service providers are challenging the 9th Circuit’s decision more broadly, or instead just its “failure to impose a procuring-goods-or-services limitation on the market-participant exception,” review should be denied. The petition has been distributed for the justices’ June 20 conference.
• In the patent case Ariosa Diagnostics v. Illumina, the solicitor general recommended that review be denied. The question on which the justices have been asked to weigh in involves when unpublished disclosures made in a published patent application and an earlier application on which it relies enter the public domain. The parties to the case agree that the case hinges on the proper interpretation of a particular provision of federal patent law, but the government disagrees. Because the U.S. Court of Appeals for the Federal Circuit did not address this question, and because the case involves the pre-2011 versions of the relevant Patent Act provisions, the government concluded, the justices should deny Ariosa’s petition. The petition has been distributed for the justices’ June 20 conference.
• The government also recommended denial in Alabama Department of Revenue v. CSX Transportation and in CSX Transportation v. Alabama Department of Revenue, the most recent chapter in a long-running battle over taxes that the state levies on diesel fuel for railroads, but not for barges. The U.S. Court of Appeals for the 11th Circuit ruled against the state, which filed a petition for review last fall; the Supreme Court asked the federal government for its views earlier this year. The U.S. solicitor general told the justices that review is not warranted for either the state’s petition or a cross-petition filed by CSX Transportation: the 11th Circuit’s decision is correct, the solicitor general wrote, and it does not conflict with the rulings of other courts of appeals.
• YPF v. Petersen Energia Inversora and Argentine Republic v. Petersen Energia Inversora center on the “commercial activity” exception to the FSIA, which applies when a foreign government acts as a private player in the market, and whether the exception applies to a lawsuit challenging action that is “inextricably intertwined” with another activity – such as expropriation – that is a sovereign act. The court called for the views of the U.S. solicitor general in January; the government recommended denial in a brief filed at the end of May. The government told the justices that the ruling by the U.S. Court of Appeals for the 2d Circuit – holding that the exception does apply and allowing the lawsuit to go forward – is correct and does not conflict with decisions by any other court of appeals. The government acknowledged that the “scope of the commercial-activity exception is an important issue,” but it emphasized that this case is not a good one in which to consider that question, because it “raises case-specific issues such as the interpretation of Argentine law and” one company’s corporate bylaws. The petitions have been distributed for consideration at the justices’ June 20 conference.
• Under federal patent law, a patent is infringed when someone “offers to sell” a patented invention “within the United States.” In Texas Advanced Optoelectronic Solutions v. Renesas Electronics America, the justices have been asked to decide whether someone can be liable when he makes an offer in the United States for the sale of a patented invention outside the United States. The U.S. Court of Appeals for the Federal Circuit said that he cannot, and TAOS asked the Supreme Court to review that ruling. After being asked earlier this year to provide the government’s views, the solicitor general recommended a denial. In the government’s view, a patent is infringed only when both the offer and the sale are made in the United States. Although the Federal Circuit’s interpretation is not correct in other contexts – because it would hold someone liable for an overseas offer for a sale in the United States – the government explained that the Federal Circuit’s judgment was correct in this case, and therefore review is not warranted. The petition has been distributed for the June 20 conference.
• First Solar v. Mineworkers’ Pension Scheme is a securities-fraud case. The petition for review was filed by First Solar, Inc., an Arizona-based company that produces solar-panel modules. Investors sued the company in 2012, alleging that the company had failed to disclose, and then misrepresented the effect of, defects in the solar panels. Under the Supreme Court’s cases, a plaintiff in a securities-fraud case must show that the defendant’s fraud caused him to lose money. First Solar has asked the court to decide whether the investors can make this showing when the event or disclosure that caused stock prices to go down did not itself reveal any fraud. The government’s brief told the justices that the ruling by the U.S. Court of Appeals for the 9th Circuit, allowing the case to go forward, both is correct and does not conflict with the decisions of any other courts of appeals. The petition has been distributed for the June 20 conference.
• In Toshiba Corp. v. Automotive Industries Pension Trust Fund, the justices have been asked to weigh in on the reach of federal securities laws when a securities-fraud claim is based on a transaction in the United States, but otherwise generally involves foreign conduct. After the Supreme Court asked for its views earlier this year, the government recommended that the petition be denied: It told the justices that the lower court’s decision – which left open the possibility that the case could go forward – was correct, and it added that there has not yet been a final judgment in the case, which means that there may ultimately not be a need for the Supreme Court to weigh in. The petition has been distributed for the justices’ June 20 conference.
• In RPX Corp. v. ChanBond LLC, the question before the justices is whether a party that asks for review of a patent has the legal right to appeal the U.S. Patent and Trademark Office’s final ruling on that review to the U.S. Court of Appeals for the Federal Circuit when the party has not been injured by the existence of the patent. In a brief filed in early May, the government urged the Supreme Court to deny review, telling the justices that the Federal Circuit’s ruling is correct and does not conflict with decisions of either the Supreme Court or any other court of appeals. The petition has been distributed for consideration at the justices’ June 13 conference.
• In Atlantic Richfield Co. v. Christian, the justices have been asked to review the Montana Supreme Court’s ruling that landowners can bring claims under state law to require companies to pay for the cleanup of hazardous-waste sites even when the companies are already working with the federal government to remediate the sites. The U.S. Supreme Court asked the federal government for its views last fall. In a brief filed in late April, the government told the justices that they should deny review: Although the Montana Supreme Court’s analysis was wrong, the government explained, it is unclear whether the U.S. Supreme Court would have the power to review the case, which has not yet gone to trial. And even if U.S. Supreme Court does have the power, the government continued, ARCO could win at trial, which would eliminate the need to take up the case at all. Despite the government’s recommendation, the case has been redistributed for the justices to consider for a second time at their conference on Thursday, which suggests that they are at least looking at it closely.

This post was originally published at Howe on the Court.