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“In the view of the United States, the petition for a writ of certiorari should be denied.” (UPDATED)

(Note:  This post has been updated to add a link to a second article tracking the Solicitor General’s influence at the Court.)

Last week, the Solicitor General filed invitation briefs in twelve cases, all of which will be considered at the Justices’ June 21 Conference.  The cases cover a variety of subject matters, from the scope of the “supervisor liability” rule for employment discrimination to the Foreign Sovereign Immunities Act, the Commerce Clause, and compensation for nuclear accidents.  But regardless of the issue, the Solicitor General’s recommendation was consistent:  the Court should deny review.  Whether the Court will in fact accept those recommendations remains to be seen:  as a 2009 article by Melanie Wachtell and David Thompson reports, although the Court overwhelmingly follows the Solicitor General’s suggestion, it does not always do so.  (Ryan Black and Ryan Owens have also conducted an empirical study of the Solicitor General’s influence; you can see their conclusions in their 2010 article.)  In particular, the Court may look closely at (and ultimately opt to grant cert. in) the cases in which the Solicitor General qualifies his recommendation that cert. be denied by acknowledging, for example, that the lower courts are divided on the question presented, that the question is an important one, or that the lower court decision is wrong on the merits.

A brief summary of the questions presented in the twelve cases and the Solicitor General’s recommendation in each follows the jump.

In Pacific Merchant Shipping Association v. Goldstene, a challenge to California regulations that require ships engaged in international and interstate commerce to use specific low-sulfur fuels whenever they are going to or from California ports or within twenty-four miles of the California coastline, the federal government recommended that certiorari be denied.  It acknowledged that the California regulations “raise[] important and difficult questions”  about the extent to which a state can regulate oceangoing ships for the safety of its residents when the federal government has “paramount authority to regulate maritime commerce.”   However, it told the Court that certiorari is nonetheless not warranted because – among other things – the district court’s decision is interlocutory and will have “little practical impact” because the California regulations are “largely consistent” with federal requirements and “should be overtaken by those requirements by January 2015.”

The government recommended that certiorari be denied in Faculty Senate of Florida International University v. Florida, a challenge to a state law that prohibits state universities from using any state funds or administering any non-state funds for travel to a “terrorist state” and also prohibits public officers and employees from being reimbursed for travel to a “terrorist state.”  The federal government agrees with petitioners – state university professors and the Faculty Senate at FIU – that the state law is preempted, but it tells the Court that review is not warranted because the petitioners cannot point to either a circuit split on the question or similar laws in other states.  Alternatively, the federal government continues, the Court could grant the petition, vacate the decision below, and remand the case to the lower court in light of new regulations promulgated by the Department of the Treasury.

Corboy v. Louie is a challenge to a Hawaii tax exemption that is available only to those who meet the state’s definition of “native Hawaiians.”  The Hawaii Supreme Court dismissed the case on the ground that the petitioners (who are not native Hawaiians) lacked standing.  The federal government agreed with the respondents that certiorari is not warranted, for several reasons.  First, it regarded the Hawaii Supreme Court’s decision as resting on an adequate and independent state ground.  Second, and in any event, it alleged that the petitioners would not have standing under Article III.  Third, and finally, the Court does not need to review the petitioners’ equal protection claim, which is not properly presented and could be affected by recent legal and political developments in Hawaii.

Section 1611(b)(1) of the Foreign Sovereign Immunities Act restores immunity to property “of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent government, has explicitly waived its immunity.”  At issue in EM Ltd. v. Republic of Argentina is whether, when a central bank has been determined to be the alter ego of a foreign state that has waived immunity from attachment and execution, that provision immunizes the assets held in the name of that bank.  The federal government’s recommendation rests on two grounds:  (1) the Second Circuit’s decision is correct; and (2) because the district court’s alter-ego analysis is flawed, the petitioners “might ultimately receive little benefit even if the Court were to grant review and rule in their favor.”

In Rubin v. Islamic Republic of Iran, the victims of a 1997 terrorist attack in Jerusalem (or their families) seek review of the decision by the Seventh Circuit reversing – on sovereign immunity grounds – a district court order that required the Islamic Republic of Iran to provide general discovery regarding its assets in the United States, which the petitioners had requested to obtain information that would allow them to enforce an outstanding judgment against Iran.  The federal government recommends that certiorari be denied because the Seventh Circuit’s decision is correct and does not conflict with the decision of any other court of appeals.

The respondents in Bank Melli Iran v. Weinstein are the family members and administrators of the estate of Ira Weinstein, a U.S. citizen who was killed in a terrorist attack in Jerusalem in 1996.  They filed suit against Iran and several Iranian officials in federal court and obtained a default judgment totaling $183 million.  The respondents then attempted to satisfy the judgment by attaching accounts in the United States held by (among others) Bank Melli.  The Second Circuit held that the bank was liable for the judgment against Iran because the Terrorism Risk Insurance Act authorizes creditors of a foreign sovereign to execute against assets of that country’s juridically distinct instrumentalities.  That court also rejected the bank’s argument that the TRIA should not be applied retroactively to hold the bank responsible for a judgment that was already final when the law was enacted.  The government recommended that certiorari be denied because the decision below is correct and does not conflict with the decisions of other courts of appeals.

In Vance v. Ball State University, an employee asks the Court to weigh in on the scope of the “supervisor liability” rule, which allows an employer to be held vicariously liable for severe or pervasive harassment by a supervisor of the victim.  Does the rule apply to (and liability exist for) harassment by employees whom the employer authorizes to direct and oversee their victim’s daily work, or does it instead apply only to harassers who have the power to take adverse employment actions with regard to the victim?  In its brief, the federal government acknowledges that the issue is an important one on which the courts of appeals are divided.  And it tells the Court that the lower court’s “understanding of who qualifies as a supervisor for purposes of an employer’s vicarious liability for harassment under Title VII is inconsistent with this Court’s application of agency principles” and “ignores the practical realities of the workplace.”  Moreover, the government continues, it “also conflicts with the EEOC’s longstanding enforcement guidance defining who constitutes a supervisor.”  However, the government urges the Court to deny review, explaining that the case is not a good vehicle to consider the question presented – specifically, the alleged harasser would not qualify as the employee’s supervisor even under the more expansive definition used by some courts and the EEOC.

In Cook v. Rockwell International, several property owners ask the Court to take up their lawsuit for nuisance and trespass, which arises out of the discharges of plutonium from the Rocky Flats, Colorado nuclear weapons plant, which was operated by the respondents.  At issue in the case is the interpretation of the Price-Anderson Act, which provides a federal cause of action and compensation regime for “nuclear incidents.”  In his brief, the Solicitor General tells the Court that it should deny cert.  It reasons that the Tenth Circuit’s construction of the phrase “nuclear accident” is correct and does not conflict with the decision of any other courts.  Moreover, it continues, “[f]urther proceedings on remand . . . may provide an independent bar to petitioners’ claims.”

In DirecTV v. Levin, the satellite television company seeks review of a decision by the Ohio Supreme Court rejecting a constitutional challenge to a sales tax imposed by that state on satellite TV services but not on cable TV services.  The government urges the Court to deny review, telling it that there is no conflict with the decisions of either the courts of appeals or the Supreme Court, and that the petitioners had not in any event preserved their claim that the state tax was enacted with a discriminatory purpose.  Finally, the Solicitor General’s brief concludes, there are other pending challenges to similar state tax schemes in other courts, and “the decisions in those cases may produce a division of authority or sharpen the presentation of the disputed issues.”

The Solicitor General filed a joint brief in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, a case brought by the respondent against Oregon state officials and private logging companies under the Clean Water Act (CWA).  The NEDC alleged that stormwater discharges from two logging roads in Oregon violate the CWA because they discharge runoff into navigable waters without the permits required by the National Pollution Discharge Elimination System (NPDES).  The district court dismissed the case for failure to state a claim, but the Ninth Circuit reversed.  The questions presented by the two petitions include whether the Ninth Circuit should have deferred to the longstanding position of the Environmental Protection Agency that channeled runoff from forest roads does not require a permit, whether the Ninth Circuit should have required the EPA to regulate that runoff, and whether the NEDC can challenge an NPDES permitting rule under the CWA.  In recommending that the Court deny review, the Solicitor General agreed with the Ninth Circuit that the NEDC could maintain its citizen suit under the CWA, but it then agreed with the petitioners that the Ninth Circuit failed to give sufficient deference to the EPA’s interpretation of its own regulation.  Certiorari is nonetheless not warranted, the Solicitor General continues, because there is “[n]o square circuit conflict” on the questions presented in the two petitions; moreover, “EPA has announced its intent to amend expeditiously its . . . regulation to make clear that discharges of the sort at issue here do not require NPDES permits” – thereby obviating the petitioners’ “concerns about the practical burdens that the court’s ruling could entail.”

In the final case, Los Angeles County Flood Control District v. National Resources Defense Council, the district similarly asks the court to review the Ninth Circuit’s interpretation of the Clean Water Act – here, the meaning of the phrase “navigable waters of the United States” and whether the flow of water from one portion of a river through a concrete channel into a lower portion of the same river constitutes a “discharge” from an “outfall” under the CWA.  However, in his brief, the Solicitor General disputes the district’s characterization of the decision below, telling the Court that the Ninth Circuit’s opinion was merely a fact-specific holding that does not warrant review.

Recommended Citation: Amy Howe, “In the view of the United States, the petition for a writ of certiorari should be denied.” (UPDATED), SCOTUSblog (Jun. 1, 2012, 4:25 PM),