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Solicitor General files invitation briefs

From time to time (as it did two Mondays ago and again this week), the Court will invite the Solicitor General to file a brief expressing the views of the United States on cases in which petitions for certiorari have been filed.  This procedure is known as a “CVSG” – “Call for the Views of the Solicitor General” – and it is most common in cases in which the United States is not a party but which involve, for example, a federal interest or the interpretation of a federal statute.  There is no deadline for such briefs, but the Offfice of the Solicitor General frequently files several briefs in May so that the Court can consider the petitions at issue before its summer recess, which normally begins in late June.  Consistent with this practice, in the last month or so the Solicitor General has filed twelve briefs in response to the Court’s invitations.  This post will cover six of those briefs; I will cover the other half in another post soon.

In the six briefs discussed in this post, the Solicitor General recommends that the Court grant review in only one case, B&B Hardware, Inc. v. Hargis Industries, Inc., a trademark dispute, while recommending denials in the remaining five cases.  But three of those five recommended denials are what Court watchers sometimes call a “soft deny” – that is, the Solicitor General acknowledges that the case meets one or more of the criteria that the Court usually looks for in deciding whether to grant cert. (such as a division among the lower courts or an erroneous lower court decision), but he nonetheless believes that Supreme Court review is not warranted.

1.     Solicitor General recommends a grant.

In B&B Hardware, Inc. v. Hargis Industries, Inc., the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board found that Hargis was not entitled to register the trademark “SEALTITE” for its metal screws for use in buildings because “SEALTITE” was likely to cause confusion with B&B Hardware’s prior trademark “SEALTIGHT” for screws and other fasteners for use in the aerospace industry.  B&B Hardware then brought a trademark infringement action in federal district court in which it argued that the Board’s determination should be given either preclusive effect or, at a minimum, some measure of deference.  But both the district court and the Eighth Circuit rejected that argument.  The court of appeals reasoned that the likelihood-of-confusion question decided by the Board was different from the one before it because (among other things) the Board had used a different test than courts in the Eighth Circuit use.  The court of appeals also emphasized that Hargis had had the burden of persuasion before the Board, while B&B had it in the courts.

B&B filed a petition for review, and on January 13 of this year the Court invited the Solicitor General to file a brief.  In the government’s view, the Eighth Circuit “erred in its approach to deciding whether a Board likelihood-of-confusion determination precludes relitigation of the same issue in a subsequent infringement action.”  Instead, the Solicitor General suggests, whether the Board’s determination would preclude a lawsuit should depend “on whether the scope of usage considered by the Board materially differed from the actual usage presented in the infringement action.”  The Solicitor General acknowledges that the question presented by this case “has not arisen with great frequency,” but he contends that review is nonetheless warranted to “bring greater clarity and uniformity” to the law.  The Justices are likely to consider the case at their June 26 Conference.

2.     “Soft” denials recommended.

Thurber v. Aetna Life Insurance Co. involves a dispute under the Employee Retirement Income Security Act (ERISA) that arose from the denial of long-term disability benefits for petitioner Sharon Thurber, who was injured in an automobile accident.  When Thurber filed a lawsuit to challenge that denial, the insurance company sought repayment of approximately seven thousand dollars on the ground that Thurber had received both short-term disability benefits under a plan administered by the company and benefits under her own automobile insurance policy.   The case presents two questions; the insurance company prevailed on both in the Second Circuit.

The first question in the case is whether an action by an ERISA fiduciary against a participant in an ERISA plan to recover an overpayment by the plan seeks “equitable relief” within the meaning of Section 502(a)(3) of ERISA when the fiduciary has not identified a particular fund that is in the participant’s possession and control when the fiduciary asserts its claim.  In his brief, the Solicitor General acknowledges that the courts of appeals are divided on this question and that the decision below – holding that the insurance company could recover from Thurber – is wrong.  But the government nonetheless urges the Court to deny review on the ground that the case is a poor “vehicle” to consider the first question presented because “it does not appear that the Plan terms at issue here actually create an equitable lien by agreement in the first place.”

The second question in the case involves the standard of review that a court should use to review the denial of a claim for benefits when the plan gives the fiduciary discretion to interpret the terms of the plan and determine eligibility for benefits but the plan participant has not received actual notice of the relevant plan provision.  The Solicitor General tells the Court that review is not necessary on this question either because the lower courts “correctly concluded that a deferential standard of review was warranted” and because “[n]o court of appeals has held otherwise.”  The case is likely to be considered at the June 12 Conference.

In Arab Bank, PLC v. Linde, the Court has before it a dispute between a multinational bank, with its headquarters in the Middle Eastern country of Jordan, and U.S. citizens who are either victims or the family members of victims of terrorist attacks in Israel, Gaza, and the West Bank.  The U.S. citizens (plaintiffs below, but the respondents here) filed a lawsuit in which they allege that the bank supported terrorist organizations by providing them with financial services, and they seek bank records to support their case.  The bank declined to produce them, citing foreign bank secrecy laws and the possibility of criminal penalties, so the plaintiffs sought and received, from a federal magistrate judge, an order overruling the secrecy objections.  Although the plaintiffs did eventually receive some documents during discovery, they nonetheless filed a motion for sanctions under the Federal Rules of Criminal Procedure.  The magistrate judge granted the motion, and a district court subsequently imposed even broader sanctions.

The bank then asked for a writ of mandamus to vacate the district court’s sanctions order – essentially, a highly unusual order from the court of appeals in the middle of the case.  The Second Circuit rejected that request, holding (among other things) that the bank had not established a “clear and indisputable” right to such a writ, and that the bank could in any event have the sanctions order reviewed as part of an appeal of a final judgment.  The bank then filed a petition for certiorari, asking the Court to weigh in on whether the Second Circuit “erred in declining to issue a writ of mandamus vacating the district court’s order imposing sanctions for [the bank’s] non-production of records.”  Last fall the Court invited the Solicitor General to file a brief expressing the views of the United States.

In the brief filed last week, the Solicitor General urges the Court to deny review.  He agrees with the bank that the lower courts “erred in several significant respects” when “analyzing whether the sanctions were consistent with principles of international comity,” but he tells the Court that certiorari is nevertheless still not appropriate because mandamus is “an extraordinary remedy that is appropriate only when a party is clearly and indisputably entitled to relief and review on appeal from a final judgment would be inadequate” – scenarios that are not present here.  The case is likely to be considered at the Justices’ June 26 Conference.

Young v. United Parcel Service, Inc., involves the interpretation of the Pregnancy Discrimination Act of 1978, which provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”  The petitioner in this case, Peggy Young, is a UPS driver who took leave to undergo fertility treatments.  After Young became pregnant, she sought to return to work, but she provided her supervisor with a doctor’s note indicating that she should not lift more than twenty pounds during the first half of her pregnancy and not more than ten for the second half.  Although UPS offered light-duty assignments to employees who were injured on the job, were eligible to receive accommodations under the Americans With Disabilities Act, or had lost their Department of Transportation certification, it told Young that similar accommodations were not available to pregnant employees.  Young therefore took leave without pay until after her child was born.

After receiving a right-to-sue letter from the EEOC, Young filed a lawsuit in which she alleged (as relevant here) that UPS had discriminated against her based on her gender.  The district court granted summary judgment to UPS, and the U.S. Court of Appeals for the Fourth Circuit affirmed that ruling.  It held that Young had not shown direct evidence of gender discrimination; UPS’s policy defining the employees who are eligible for accommodations is “pregnancy blind.”  Under the Fourth Circuit’s interpretation, Title VII of the Civil Rights Act and the Pregnancy Discrimination Act do not require an employer to provide its pregnant employees with accommodations comparable to those it provides to employees who are not pregnant but have a similar ability to work.

Young filed a petition for certiorari, and in October 2013 the Court asked the Solicitor General to weigh in.  In his brief, he agrees with Young that the lower court’s decision is wrong, and he acknowledges that “a majority of the courts of appeals . . . to have considered claims similar to [Young’s] have erred in interpreting Title VII’s requirement that employers treat employees with pregnancy-related limitations as favorably as nonpregnant employees who are similar in the ability or inability to work.”  He also concedes that the question presented by Young’s petition is “important and recurring.”  However, he urges the Court to deny cert., both because a 2008 law could “lead courts to reconsider their approach” to claims like Young’s and because “the EEOC is currently considering the adoption of new enforcement guidance on pregnancy discrimination.”  The case is likely to be considered at the Justices’ June 19 Conference.

3.     Solicitor General recommends denial.

The Solicitor General more strongly recommended that cert. be denied in the latest round of the battle between plaintiffs and the manufacturers of medical devices over whether the plaintiffs’ tort claims against a manufacturer are preempted by federal laws.  Richard Stengel, the respondent (along with his wife, Mary Lou) in Medtronic, Inc. v. Stengel, was paralyzed as a result of a pain pump manufactured by Medtronic that was implanted in his abdomen.  (Stengel later died from his injuries.)

The Stengels filed suit, alleging that Medtronic had failed to use reasonable care to warn them of risks associated with the pain pump.  Although the federal Food and Drug Administration had approved the device before it went on the market, the Stengels contended that Medtronic learned of problems with the device that it should have reported to the FDA; moreover, the couple asserted, it should have revised its label to warn doctors of the possible problems.

The district court agreed with Medtronic that the Stengels’ claims, which rested on Arizona law, were expressly preempted, under Section 360k(a) of the Medical Device Amendments of 1976.  That statute provides that states cannot impose any requirements for medical devices that are either “different from, or in addition to, any requirement applicable under” the federal Food, Drug, and Cosmetic Act or “relate[d] to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under” the FDCA.  The district court also indicated (in denying the Stengels’ motion for leave to amend their complaint) that the couple’s claims would also be impliedly preempted under the Court’s decision in Buckman Co. v. Plaintiffs’ Legal Committee, in which the Court held that the MDA impliedly preempts state-law tort claims based on federal requirements to disclose information to the FDA.

A three-judge panel of the Ninth Circuit affirmed the district court’s decision, but the en banc Court reversed.  It reasoned that the Stengels’ claim was not impliedly preempted because it did not rest exclusively on federal law, but was instead based on a general duty of reasonable care imposed by state law.  And the claim was not expressly preempted, the Court held, because that state-law duty “parallels a federal duty under the MDA.”  Medtronic filed a petition for certiorari, and the Court called for the views of the Solicitor General last fall.

In his invitation brief, the Solicitor General recommends that review be denied because the Stengels’ claim “is neither expressly nor impliedly preempted,” although for different reasons than those on which the Ninth Circuit’s decision rested.  Review is also not warranted, he adds, because there “are no clear circuit conflicts on the question presented” and the case is interlocutory.  The Justices are likely to consider the petition at their June 19 Conference.

Picard v. JPMorgan Chase & Co. arises out of lawsuits seeking billions of dollars from banks and investment funds for their alleged roles in the Ponzi scheme operated by Bernie Madoff.  The petitioner in the case, Irving Picard, was appointed as a trustee to liquidate Bernard L. Madoff Investment Securities LLC (BLMIS), Madoff’s brokerage firm.  The Securities Investor Protection Act (SIPA) of 1970 outlines the rules governing such liquidations; among other things, it authorized the formation of the Securities Investor Protection Corp., which may advance funds (obtained through assessments on brokers) to the trustees to help repay the customers of the brokerage firms.

Picard filed a variety of state common-law claims – including claims for contribution on behalf of BLMIS, as well as fraud, unjust enrichment, and conversion claims – against the banks and investment funds.  Two different district courts dismissed those claims, and the Second Circuit affirmed.  It held that Picard: could not assert state-law contribution claims on behalf of BLMIS because SIPA does not authorize such a claim; did not have standing to assert common-law claims on behalf of BLMIS; and did not have standing to pursue claims on behalf of BLMIS’s customers as the assignee of SIPC’s subrogation rights because those rights applied only to the customers’ claims against the brokerage BLMIS, rather than to claims against third parties.

Picard asked the Court to step in, and on January 13 (with Justice Alito recused) the Court called for the views of the Solicitor General.  In his brief, the Solicitor General explains that review is not warranted because the decision below is correct, it does not conflict with either a Supreme Court decision or other court of appeals decisions, and BLMIS customers can always file their own lawsuits against the banks and investment firms.   The case will likely be considered at the Justices’ June 26 Conference.

Recommended Citation: Amy Howe, Solicitor General files invitation briefs, SCOTUSblog (May. 30, 2014, 12:20 PM),