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Invitation briefs for this week’s Conference

On Monday at 9:30 a.m., we are expecting orders from the Court’s June 20 Conference.  The headliner of that Conference is National Labor Relations Board v. Noel Canning, a challenge to the constitutionality of the president’s recess appointments to the NLRB.  But the lengthy list of the petitions up for review also included seven in which the Court had asked the Solicitor General to file briefs expressing the views of the United States – an order also known as a “CVSG.”  (An eighth petition, in Michigan Department of Licensing and Regulatory Affairs v. Gerstenschlager, would have also been on that list, but it was dismissed by the consent of the parties earlier this month; the Solicitor General had recommended that the Court deny review in that case.)

The Justices considered two of the cases on this week’s Conference – Michigan v. Bay Mills Indian Community and Harris v. Quinn – at the June 13 Conference but relisted them for reconsideration again this week; I covered both of those cases in earlier posts here and here.  The Solicitor General recommended that both Bay Mills and Harris be denied, and it made the same recommendation for four of the five other cases in which it filed briefs.  The only case on this week’s Conference in which the government recommended a grant was Lozano v. Alvarez – a recommendation that would, if accepted, continue the Court’s recent mini-trend of taking cases implicating the Hague Convention on the Civil Aspects of International Child Abduction.  Brief descriptions of Lozano and the other four CVSG cases on this week’s Conference follow the jump.

Lozano v. Alvarez (filed May 24, 2013):  When a child has been abducted from one country to another, and both countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, the parent seeking the child’s return can file a petition in the courts of the country where the child is located.  Subject to other exceptions not at issue here, the Convention requires that the child be returned to his home country as long as the parent seeking his return has filed his petition within one year of the abduction.  Even if the parent seeking return fails to do so, however, the Convention still requires that the child be returned “unless it is demonstrated that the child is now settled in its new environment.”

The parties in this case are the estranged parents of a child who was born in England in 2005.  In July 2009, the mother and child traveled to the United States, apparently without informing the father of their whereabouts.  In November 2010, sixteen months after the child’s departure for the United States, he eventually filed a petition in a U.S. District Court seeking the child’s return.  The district court rejected the request for the child’s return.  It reasoned that the one-year time period to file a petition for automatic return is not subject to equitable tolling , and that the child was settled in the United States even if she was not in the country legally.  The Second Circuit affirmed that decision, and the father filed a petition for certiorari.  On March 18 of this year, the Court invited the Solicitor General to file a brief expressing the views of the United States, which the federal government did on May 24.

The Solicitor General recommends that certiorari be granted only with regard to the first question presented by the petition – whether the Convention’s one-year time period is subject to equitable tolling.  Interestingly, it does so even though it regards the Second Circuit’s decision as correct:  it reasons that the one-year period is not a statute of limitations.  Once the one-year period has passed, the government explains, a petition can still be filed; the court has the discretion to order the child’s return even if the child is settled in the United States, and it can consider the abducting parent’s efforts to conceal the child’s whereabouts in making its decision.  Moreover, the Solicitor General also makes this recommendation notwithstanding his acknowledgement that the split among the circuits on this question is “relatively shallow”; he explains that the question is important, that it arises relatively frequently, and that the government wanted to eliminate any uncertainty on the question to facilitate the quick return of abducted children.  However, the Solicitor General recommended that the Court deny cert. on the second question:  whether a child can be “settled” in a country where he lacks legal immigration status.  Supreme Court review of that question is not warranted, the Solicitor General suggested, because the decision below is correct and does not conflict with the decisions of other circuits or the Supreme Court.

Young v. Fitzpatrick (filed May 23, 2013):  In 2007, Jeffry Young died after a confrontation with tribal police officers at an inpatient drug-treatment facility operated by the Puyallup Tribe within its reservation in Washington.  The medical examiner concluded that the death was accidental, and the county attorney declined to file criminal charges, but Young’s brother, on behalf of his estate, filed a lawsuit against the officers – who were not Indian – in state court.  The trial court dismissed the case for lack of subject matter jurisdiction, and the state’s intermediate appellate court affirmed.  It held that the tribe’s sovereign immunity extended to the officers as long as they were acting in their official capacity and within the scope of their authority – which, it concluded, they were.  The court also held that an 1854 treaty, the Treaty of Medicine Creek, in which the signatory tribes agreed “not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial,” did not constitute a waiver of sovereign immunity that would allow Young’s brother to sue the officers.  After the Washington Supreme Court declined to review the case, Young’s brother filed a petition for certiorari.   The Court called for the views of the Solicitor General on October 1, 2012, and the Solicitor General filed his brief on May 23, 2012.

In his brief, the Solicitor General recommends that cert. be denied.   He criticizes the petitioner’s arguments as meritless, and he emphasizes that the decision below is not a definitive statement of state law because it came from an intermediate appellate court rather than the state supreme court.  And, he notes, the petitioner does not allege a conflict with the decisions of either the lower courts or the Supreme Court.  Moreover, he suggests that the case is in any event a poor vehicle for the Court to consider the questions presented because “there is no evidence in the record to contradict the findings . . . that respondents ‘were carrying out their duties in a lawful and proper way.’”

Pfizer Inc. v. Law Offices of Peter G. Angelos (filed May 23, 2013):  At issue in this case is a provision of the Bankruptcy Code, Section 524(g), that allows a court to enjoin an asbestos-related lawsuit against a company that is not itself going through bankruptcy if the company’s alleged liability “arises by reason of” one of four relationships to the debtor.  The specific question that Pfizer has asked the Court to review is what it means for liability to arise “by reason of” one of the four relationships.  The Second Circuit held that liability must arise as a legal consequence of one of those relationships, but Pfizer counters that such a definition is too narrow and “disregards the factual circumstances giving rise to the claims.”

In his brief, the Solicitor General tells the Court that it should deny cert.  The decision of the court of appeals is correct, it contends.   Moreover, neither the Supreme Court nor any other court of appeals has had to interpret the phrase “by reason of” as used in Section 524(g), and the case “presents a narrow question that has arisen infrequently.”

Mulhall v. Unite Here Local 355 and Unite Here Local 355 v. Mulhall (filed as a joint brief on May 24, 2013):  This case arises out of an agreement between a Florida gaming company, Mardi Gras Gaming, and Unite Here Local 355, a union seeking to become the collective bargaining representative for Mardi Gras employees.  Mardi Gras and Unite Here entered into an agreement in which (among other things) Mardi Gras agreed to recognize Unite Here as the representative of its employees and facilitate access to those employees; in exchange, Unite Here agreed not to strike and to support a ballot initiative that Mardi Gras favored.  A Mardi Gras employee, Martin Mulhall, who opposes unionization filed this lawsuit.  He contended that the agreement violated Section 302 of the Labor Management Relations Act, which makes it a crime for an employer to “pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value” to a union.  The district court threw out Mulhall’s lawsuit, but the Eleventh Circuit reinstated it.  That court reasoned that assistance with organizing “can be a thing of value that, if demanded or given as payment, could constitute a violation” of the Act, and it remanded the case to the trial court for that court to determine why the union and Mardi Gras had agreed to cooperate.  Unite Here filed a petition seeking review of the Eleventh Circuit’s decision, while Mulhall filed a conditional cross-petition seeking review of the portion of the Eleventh Circuit’s decision holding that the term “deliver” applies only to “the transfer of tangible items.”

Although the Solicitor General describes the Eleventh Circuit’s decision as “troubling” in his brief, he nonetheless urges the Court to deny review.  Only three courts of appeals have addressed the question presented, he reasons, the “contours and implications” of the Eleventh Circuit’s decision are “uncertain,” and there is a “substantial question of mootness” because the agreement is no longer in force.


Recommended Citation: Amy Howe, Invitation briefs for this week’s Conference, SCOTUSblog (Jun. 21, 2013, 3:30 PM),