Breaking News

Solicitor General files invitation briefs for June 13 Conference

Last week I reported on the three cases in which the Solicitor General had filed invitation briefs that will be considered at the Justices’ June 6 Conference.  The Solicitor General has now filed four briefs in cases that will be considered the following week, at the Court’s June 13 Conference.  In those four briefs, the Solicitor General recommended that cert. be granted in one case but denied in three others:

Michigan v. Bay Mills Indian Community (filed May 14, 2013):  The federal Indian Gaming Regulatory Act allows Native American tribes in some circumstances to offer gaming, but only on “Indian lands.” At issue in this case is whether a federal court can enjoin a tribe from operating an illegal casino located off of “Indian lands” and whether sovereign immunity bars a state from going to federal court to enjoin a tribe from violating IGRA outside of Indian lands.

The Solicitor General urges the Court to deny certiorari, arguing that the decision below is correct; that the lower court’s decision does not present a question warranting review; and that the case is in any event not a good vehicle to resolve the parties’ dispute. 

Law v. Siegel (filed May 14, 2012):  The petitioner in this case, Stephen Law, filed a voluntary bankruptcy petition under Chapter 7 of the Bankruptcy Code in which he indicated that there were two liens on his house; pursuant to state law, he also claimed a “homestead exemption” of $75,000.  Because the sum of the liens and the homestead exemption exceeded the value of the house, the house could not be used to pay his other creditors.  However, after extensive litigation, the second lien was eventually deemed invalid – but only after respondent Alfred Siegel, who was appointed to serve as the trustee in the bankruptcy proceeding, and the estate incurred over $450,000 in legal fees.  Siegel then sought to recover some of those costs by imposing a “surcharge” on the homestead exemption, which effectively deprived Law of the $75,000 in value that he would have otherwise received.  The bankruptcy court allowed Siegel to do so, and both the Bankruptcy Appellate Panel and the Ninth Circuit affirmed that decision.  Law then filed a petition for certiorari asking the Supreme Court to review his case, and on December 3, 2012, the Court asked the Solicitor General to weigh in.

In his brief, the Solicitor General tells the Court that it should deny review.  He acknowledges that “in an appropriate case” the Court might want to grant cert. to resolve a question on which three courts of appeals are divided:  whether an “equitable surcharge” can be imposed to distribute to creditors property that the debtor should have included in the estate but did not.  However, the Solicitor General continues, Law’s case does not present that question; instead, it presents “the distinct question whether the bankruptcy court could properly withhold from the debtor the amount ($75,000) of his state-law homestead exemption as a sanction for the debtor’s vexatious and bad-faith litigation conduct, which constituted a fraud on the court and caused the estate to incur substantial litigation expenses it would not otherwise have borne.”  Law does not contend that there is a circuit split on that question, the Solicitor General emphasizes, and in any event withholding such an amount in these circumstances would fall within the bankruptcy court’s inherent authority.

Township of Mount Holly v. Mount Holly Gardens Citizens in Action (filed May 17, 2013):  In November 2011, the Court granted cert. in Magner v. Gallagher to decide two questions:  first, whether disparate impact claims – that is, claims alleging that a practice has a discriminatory effect on a protected class, even if it not based on a discriminatory purpose – can be brought for a violation of the Fair Housing Act; and, second, what test courts should use to analyze such claims.  However, before the Court could hear oral argument, the parties agreed to dismiss the case.

The Township of Mount Holly, New Jersey, is now asking the Court to consider the same questions presented by Magner, in a case that arises out of the town’s efforts to redevelop a housing development occupied primarily by low- and moderate-income minority families.  The respondents in the case, who were the plaintiffs in the lower court, filed a lawsuit in federal court in which they alleged that the town’s actions had a disproportionate impact on minorities.  The Third Circuit agreed with the plaintiffs that disparate impact claims are cognizable under the Fair Housing Act, and the town now seeks review of that decision.

The Solicitor General advises the Court that it should deny review.  First, he explains, the Department of Housing and Urban Development had recently promulgated new regulations addressing the questions presented in the case, and the lower courts should have a chance to implement that guidance.  Second, and in any event, he contends, the case is a bad vehicle in which to consider the questions presented because the case is interlocutory and the questions presented were not advanced below.

Air Wisconsin Airlines Corp. v. Hoeper (filed May 17, 2013):  The Aviation and Transportation Security Act (ATSA) provides immunity for airlines and their employees from virtually all liability, including for state-law defamation claims.  However, this immunity does not extend to reports made “with actual knowledge that the disclosure was false, inaccurate, or misleading,” or with “reckless disregard as to the truth or falsity of that disclosure.”

This case stems from a report made by Air Wisconsin to the Transportation Safety Administration that the airline was concerned about the stability of one of its pilots, respondent William Hoeper.  Hoeper prevailed in a $1.4 million defamation lawsuit against the airline, and the Colorado Supreme Court upheld that verdict on appeal.  That court stated that it did not need to determine whether the airline’s statements were true or false.  Air Wisconsin then filed a cert. petition, asking the Court to address “[w]hether a court can deny ATSA immunity without deciding whether the airline’s report was false,” as well as whether “the First Amendment requires a reviewing court in a defamation case to make an independent examination of the record before affirming that a plaintiff met its burden of proving a statement was false.”

The Solicitor General’s brief recommends that cert. be granted with regard to the first question only – that is, whether a court can deny immunity under the ATSA without first deciding whether the airline’s report was false.  The Solicitor General states that the issue is not the subject of a conflict in the lower courts.  But he advises the Court that the analysis on which the court below relied to allow the airline to be held liable “may chill other air carriers from timely providing the government with critical information about threats to aviation safety.”

[Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondent in Air Wisconsin.]

[Correction:  An earlier version of this post misstated the Solicitor General’s recommendation in the Bay Mills Indian Community case.]

Recommended Citation: Amy Howe, Solicitor General files invitation briefs for June 13 Conference, SCOTUSblog (May. 24, 2013, 11:10 AM),