Three More Invitation Briefs

By Amy Howe
on May 24, 2007 at 2:49 pm

The invitation briefs are pouring in – at least three that we’re aware of have been filed in the last day or so. If the Court had been hoping that it could alleviate the current shortfall in its OT2007 docket by filling it with cases in which the SG had recommended grants, it may have to come up with a Plan B: in each of the three cases, it has recommended that cert. be denied, bringing the SG’s total number of recommended denials this spring to five, with just one grant recommended. (To be sure, however, although the SG’s recommendation generally carries significant weight at the Court, the justices may be slightly less deferential this year in light of the Court’s need to fill its docket for the fall.)

In its brief in No. 06-179, Riegel v. Medtronic, Inc., the government contends first that cert. is not warranted because the Second Circuit’s decision was correct: the FDA’s premarket approval of a medical device such as the one at issue here creates federal “requirements” that preempt state-law tort claims which rest on the manufacturer’s failure to satisfy state-law requirements. The government acknowledges that two courts – the Eleventh Circuit and the Illinois Supreme Court – have reached a contrary result, but it emphasizes that those courts could reconsider their holdings in light of the FDA’s 2004 conclusion (reversing course from the position taken by the Clinton administration in earlier litigation) that claims such as Riegel’s are preempted.

In Nos. 05-1645 & 06-11, Wallace v. Calogero and Leclerc v. Webb, the government argues (here) that cert. should be denied because – as the Fifth Circuit held below – the Louisiana bar rule that allows only U.S. citizens and lawful permanent residents (i.e., not aliens who are only temporarily allowed to work here) to become members is not preempted by federal immigration law. The government explains that although an alien may be admitted to the U.S. in H-1B visa status to practice law, that visa status is available only to aliens who first obtain a state law license from the state where they intend to practice. This, the government continues, demonstrates that Congress “left the States largely free to determine [the] standards” that they impose for obtaining a law license. Moreover, the government notes, the Fifth Circuit’s decision conflicts only with the 1989 decision of the Vermont Supreme Court – a decision which, the government asserts, is both erroneous and subject to reversal in light of the Department of Homeland Security’s stand on the issue. Addressing the second question presented, the government rejects the petitioners’ argument that Louisiana’s rule triggers strict scrutiny. The Supreme Court has, the government contends, “made clear” that strict scrutiny does not necessarily apply to all classifications that rest on a person’s status as an alien. The decision below, the government continues, is also consistent with basic equal protection principles because non-immigrants “do not, as a rule, have the same claim to equal treatment” as permanent resident aliens.

In an invitation brief filed last year in No. 05-273, FTC v. Schering-Plough, the Solicitor General urged the Court not to grant cert. to consider whether federal antitrust laws prohibit the manufacturer of a patented brand-name drug from entering into an agreement with the manufacturer of a generic substitute to share its future profits from the sale of the brand-name drug in exchange for the generic manufacturer’s agreement not to market the substitute. In that brief, the government acknowledged that the case raised “important but unsettled issues of federal law” but contended that cert. was nonetheless not warranted because the case was, inter alia, a bad vehicle. In its recently filed invitation brief in No. 06-830, Joblove v. Barr Laboratories, the Solicitor General again asserts that cert. should be denied. In this brief, the government not only agrees that the petition presents “important and complex issues,” but it also asserts that the Second Circuit applied “an insufficiently stringent standard in scrutinizing the settlement at issue” in this case: it held that a settlement would be valid unless (1) it “extended . . . the monopoly beyond the patent’s scope”; (2) it involved fraud; or (3) the underlying lawsuit challenging the patent was “objectively baseless.” Instead, the government contends, courts should apply the “rule of reason” to the settlement, and this inquiry should include a consideration of “the relative likelihood of success of the parties’ claims, viewed ex ante.” However, Supreme Court review is not warranted here because – you guessed it – this case is also a bad vehicle to consider the question presented: the patent (and, thus, the effect of the settlement) has long since expired, the case presents an unusual factual scenario because the district court had already determined the patent to be invalid (and in future cases, a patent holder should be unable to obtain vacatur of a judgment of invalidity and settle the case while an appeal is pending); and, in any event, recent amendments to the Hatch-Waxman Act have “altered the regulatory dynamic.” Stay tuned to see whether the Court grants cert. this go-round or whether – as the U.S. encourages it to do – it waits for a case that is just right.