Recent Invitation Briefs

By Amy Howe
on May 21, 2009 at 11:16 am

The Solicitor General has recently filed two invitation briefs, both recommending grants.  (Folks – if you are on the receiving end of such briefs in the future, please feel free to send us electronic versions so that we can put them up without waiting for them to appear on the SG’s website.) 

Nos. 08-240 and 08-372, Mac’s Shell Service, Inc. v. Shell Oil Products Co. and Shell Oil Products Co. v. Mac’s Shell Service, Inc. (the other cert. papers for which are available here) present questions relating to the circumstances in which a gas station operator may bring suit against an oil refiner or distributor for “constructive termination” under the Petroleum Marketing Practices Act.  In the SG’s view, the First Circuit erroneously held that a franchisee may recover for constructive termination even if it continues to sell the same fuel, use the same trademark, and occupy the same premises.  However, the SG agrees with the First Circuit’s holding that a franchisee may not claim “constructive” nonrenewal when it signs and operates under a renewed franchise agreement.  Certiorari is warranted, the SG explains, because of the circuit split on both questions and the “substantial importance” of the issues “to a crucial sector of our economy.” 

At issue in No. 08-304, Graham County Soil & Water Conservation District v. US (cert. papers available here), is whether federal courts have jurisdiction over False Claims Act suits based on revelations in administrative reports or audits issued by state or local governments, as opposed to the federal government.  The SG agrees with the Fourth Circuit’s holding that the relevant statute is limited to disclosures in federal sources, but it nonetheless contends that cert. should be granted to resolve the growing conflict among the circuits.