Relist Watch

By John Elwood
on May 18, 2018 at 11:02 am

John Elwood (finally) reviews Monday’s relists.

We are about to hit a critical date as October Term 2017 draws to a close: “cutoff” – the date by which briefs in opposition (and court-invited amicus briefs from the solicitor general) must be received for the Supreme Court to act on them before the summer recess following ordinary procedures. That date this year is May 22. And this week’s relists illustrate a fundamental truth: It’s nice to have Washington on your side. The petitioners in three of this week’s five new relists have the support of the solicitor general, which vastly increases their odds of a grant.

The petitioner in Virginia Uranium Inc. v. Warren, 16-1275, is a business with a name that inspires puzzlement, like “Arizona Oysters, Ltd.,” “Beachfront Iowa, LLC,” or “Greater San Diego Penguin Ranch, P.C.” Through some twist of fate, the Old Dominion is home to America’s largest domestic uranium deposits. Federal law doesn’t regulate the mining of uranium, but it does regulate uranium processing and the handling of the tailings left over afterwards. By agreement, federal regulators permit Virginia to regulate some processing activities, but the agreement expressly excludes regulation of uranium tailings. The commonwealth has long prohibited uranium mining, allegedly motivated by concerns about the radiological safety of uranium milling and tailings-management activities. The owners of the deposits did not seek to exploit the deposits for years, but when the price of uranium spiked during the mid-2000s, they sued to challenge the commonwealth’s mining moratorium. The U.S. Court of Appeals for the 4th Circuit held that because federal law did not address mining, the Virginia moratorium was not pre-empted. The owners sought Supreme Court review and after the court’s September 2017 “long conference,” the court “invited” the solicitor general to file a brief expressing the views of the United States. That’s an “invitation” in the same sense as when your father “invites” you to mow the lawn when you’re a kid, or when your spooky cellmate with the creepy thousand-yard stare and facial tattoos “invites” you to take the upper bunk. In April 2018, the solicitor general finally responded to the invitation by saying that review is warranted because the 4th Circuit’s view of Atomic Energy Act pre-emption is “cramped,” conflicts with both Supreme Court precedent and decisions of other federal courts of appeals, and is “important and likely to recur in other nuclear-safety contexts.” The court has tended to follow the grant recommendations of the solicitor general in recent years, so this is a case to watch.

What could be better than a court-invited amicus brief from the solicitor general telling the Supreme Court to grant your case? How ‘bout an amicus brief the solicitor general files without even being asked? Such an unsolicited amicus brief is a compelling demonstration that the “Tenth Justice” thinks the case is exceedingly important. As Judge Patricia Millett once observed, “[o]nly infrequently does the solicitor general file unsolicited amicus briefs at the certiorari stage.” I have been able to identify only 15 such briefs that have been filed since October Term 1995, and at that point I gave up looking. There have been nine perfect games pitched in the major leagues during the same period, so like I say, these are rare.

The most recent unsolicited solicitor-general amicus brief was filed in Royal v. Murphy, 17-1107. Respondent Patrick Dwayne Murphy is a member of the Muscogee (Creek) Nation of Indians. He was convicted in Oklahoma state court and sentenced to death for killing another nation member within the nation’s historic territory in eastern Oklahoma. In post-conviction proceedings, he argued that the federal government had exclusive jurisdiction over his conduct because both he and the victim were members of the nation and the acts occurred in “Indian country.” A federal district court denied relief, concluding that “[a] careful review of the Acts of Congress which culminated in the grant of statehood to Oklahoma in 1906, as well as subsequent actions by Congress, leaves no doubt the historic territory of the Creek Nation was disestablished” and thus lost its status as “Indian country.” The U.S. Court of Appeals for the 10th Circuit reversed, concluding that the statutes through which Congress took various actions for the state (including, the solicitor general says, “allot[ing] the Creek Nation’s lands, abolish[ing] its courts, and extend[ing] the laws of the new State of Oklahoma over the former Indian Territory”) included none of the “hallmark[]” language present in prior Supreme Court cases concluding that a reservation had been disestablished. The SG recommends that the court take the case, saying that “Congress disestablished the Creek Nation’s historic territory when, in preparation for and granting Oklahoma statehood, it broke up and allotted the Creek Nation’s lands, displaced tribal jurisdiction, and provided for application of state law and state jurisdiction.” “If left uncorrected,” the solicitor general argues, the decision “will radically shift criminal jurisdiction in cases involving Indians in vast areas of eastern Oklahoma from the State to the federal government, and affect state taxing and other jurisdiction.” To drive that last point home, a broad cross-section of amici argue that the 10th Circuit’s decision “will upend Oklahoma’s energy regulation” and cause “significant jurisdictional consequences.” The odds look good for that one.

What is better than an unsolicited amicus brief recommending your case be granted? I’m honestly not sure – maybe when the government, as respondent in a case, says your case is cert-worthy and should be granted? And if that dream is still just a little modest for you, how about if the government disavows the position it took below? That’s what happened in Culbertson v. Berryhill, 17-773. That case involves a provision of the Social Security Act providing that:

Whenever a court renders a judgment favorable to a claimant … who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.

The petitioner argues that the 25-percent cap includes only fees for representation in court, as the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits have held, and does not also include fees for representation in agency proceedings, as the U.S. Courts of Appeals for the 4th, 5th and 11th Circuits have held. In its brief as respondent, “[t]he government concludes that petitioner is correct” in his reading of the statute, and therefore suggests “the Court may wish to consider appointing an amicus curiae to defend the judgment of the court of appeals.” The case comes out of the U.S. Court of Appeals for the 11th Circuit, so the amicus to defend the judgment would ordinarily be appointed by (and typically be a former law clerk of) Circuit Justice Clarence Thomas.

The next case is captioned Budha Ismail “that’s my” Jam v. International Finance Corp., 17-1011, a caption cool enough to name the offspring of at least three Brooklyn hipsters. The International Organizations Immunities Act, 22 U.S.C. § 288a(b), affords international organizations the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments,” 22 U.S.C. § 288a(b). President Dwight Eisenhower designated respondent the International Finance Corporation, which is composed of 184 member countries, as an “international organization” under IOIA. The question presented is whether the IOIA confers the same immunity on such international organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11, which contains an exception from immunity for “commercial activities.” The IFC argues for broader, “virtually absolute” immunity that it says was predominant before Congress enacted the Foreign Sovereign Immunities Act. The case involves a suit by “farmers and fishermen” who live near a power plant in Gujarat, India financed by $450 million in IFC loans. Plaintiffs sued the IFC in the U.S. District Court for the District of Columbia as lender “for negligence, negligent supervision, public nuisance, private nuisance, trespass, and breach of contract” because the plant’s construction and operation violated the terms of the loan agreement. Now represented by counsel for the petitioners in Jesner v. Arab Bank, the new petitioners seek to challenge the D.C. Circuit’s 2-1 ruling granting the IFC immunity over the concurrence (really, dissent) of Judge Cornelia Pillard.

Last up is Wright v. United States, 17-1059, which presents what may be the most specific criminal-law question in the history of the world. Namely: whether the Sixth Amendment right of confrontation is violated when a trial court prevents defense counsel from cross-examining a government witness regarding the mandatory life sentence the witness would have faced absent cooperation in order to prevent the jury from inferring that the defendant will probably face a life sentence if convicted. If you have trouble following that, it’s because you’re human. Basically, the question is whether, to prevent the jurors from going easy on the defendant because they know he faces a life sentence, it is justifiable to keep the jury from knowing that a government witness avoided a life sentence by testifying. The government argues that it’s enough for confrontation purposes to let the jury know the witness avoided decades in prison. It also denies the existence of a conflict and argues that “this case would be an especially poor vehicle in which to take up the question presented,” because the defendant’s counsel contributed to the error, which was probably harmless anyway. The government notes that the same issue is present in Trent v. United States, 17-830, which the court has rescheduled repeatedly. It will be interesting to see what happens with that one.

Finally, the court has gotten rid of the two-plus score of cases it had repeatedly relisted because of Sessions v. Dimaya. Thanks, guys: We were getting tired of carrying around all that weight.

We’ll be back next week with more. Thanks to Kevin Brooks for compiling these cases.

New Relists

Virginia Uranium, Inc. v. Warren, 16-1275

Issue: Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here, uranium mining), but that has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings). CVSG: 04/09/2018.