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Federal government files invitation briefs

In response to requests from the Supreme Court, Acting Solicitor General Jeffrey Wall this week filed 10 briefs expressing the views of the United States. The justices sometimes invite the federal government to weigh in when they are deciding whether to review a case on the merits and, although the federal government is not directly involved the case, the court believes that the government may have an interest – for example, when the case involves the interpretation of a federal law. Although the government’s recommendation is not dispositive, it generally carries significant weight with the justices, especially when the government recommends that review be granted.

The federal government recommended that review be granted in two cases in which it filed briefs. One of those cases was Rubin v. Islamic Republic of Iran, in which the plaintiffs obtained a $71.5 million judgment against Iran for its role in a 1997 suicide bombing in Jerusalem and are seeking to enforce the judgment by seizing ancient Persian artifacts that have been on loan to the University of Chicago since the 1930s. As a general rule, the Foreign Sovereign Immunities Act protects property in the United States that is owned by foreign governments from being seized, but there are exceptions to that rule, including when the property at issue is used for commercial activity and when the plaintiff has obtained a judgment against a “terrorist party.” The two questions that the court has been asked to consider in Rubin relate to the scope of those exceptions.

The government urges the court to grant review on one of the two questions: whether Section 1610(g) of the FSIA creates a “freestanding” immunity exception (as the plaintiffs in Rubin have argued, and as the U.S. Court of Appeals for the 9th Circuit held in Bank Melli v. Bennett, another case in which the government filed a brief this week) or whether the other requirements for seizing a foreign state’s property still apply. The government contends that the U.S. Court of Appeals for the 7th Circuit’s ruling adopting the more restrictive approach was the correct one, but it urges the Supreme Court to nonetheless grant review to resolve the conflict in the lower courts on the question. It makes clear that, although it “sympathizes” with Rubin “and other victims of terrorism, the seizure of a foreign sovereign’s property via attachment or execution can affect the United States’ foreign relations.”

The government tells the court that it should deny review on the second question presented in the case – which, as Rubin notes, boils down to the issue of whose commercial use of the property at issue counts for purposes of immunity from seizure. In the government’s view, the 7th Circuit was right that the “commercial activity” exception applies only when the foreign government uses the property that the plaintiffs want to seize; it does not apply when a third party (such as the University of Chicago) uses it. The government suggests that the court should grant review in Rubin and hold Bennett until it issues its decision on the merits.

The government has also recommended a grant in Cyan, Inc. v. Beaver County Employees Retirement Fund. The case arises from a lawsuit brought as a class action on behalf of shareholders who purchased stock in Cyan after its initial public offering, only to experience “weaker-than-expected” results. The shareholders filed their lawsuit in state court under the Securities Act of 1933, which creates causes of action for false statements made in connection with the public offering of stocks. The question presented by the case is whether a 1998 federal law, the Securities Litigation Uniform Standards Act, bars state court jurisdiction over lawsuits that, like this one, only allege violations of the Securities Act of 1933.

The government agrees with the lower court that the federal law, known as SLUSA, does not strip state courts of jurisdiction over this lawsuit. But, the government continues, the justices should nonetheless grant review of this “difficult interpretive issue that has generated confusion in lower courts.” Moreover, the government adds, adopting the lower court’s interpretation of SLUSA does not leave defendants without any recourse, because another SLUSA provision allows defendants to transfer many class actions to federal courts. The government acknowledges that Cyan had not actually tried to move this case from state to federal court, but it suggests that deciding this case on the merits would still “provide helpful guidance to lower courts” about the scope of the other SLUSA provision.

  • In BeavEx Inc. v. Costello, the federal government urged the court to deny review in a case involving the Federal Aviation Administration Authorization Act, which pre-empts state laws “related to a price, route, or service of any motor carrier .. with respect to the transportation of property.” The case was filed as a class action by former drivers for BeavEx, a courier company that specializes in same- and next-day delivery using independent contractors as its drivers. The plaintiffs in the case argued that Illinois law bars BeavEx from taking deductions out of their pay – for example, to cover uniforms, equipment and insurance; BeavEx countered –unsuccessfully in the lower courts – that the state law is pre-empted by the FAAAA. In its brief filed yesterday, the federal government agreed with the 7th Circuit that the FAAAA does not pre-empt the application of the Illinois ban on deducting the drivers’ expenses: the law, the government explains, is a generally applicable one that affects transportation companies like BeavEx only in their capacity as an employer.
  • In Ali v. Warfaa, the federal government urged the justices to reject an appeal by Yusuf Abdi Ali, who was a colonel in the Somali National Army in the late 1980s. The case was brought by another Somali national, Farham Mohamoud Tani Warfaa, who alleges that he was kidnapped from his home in Somalia and taken to Ali’s headquarters, where he was tortured and shot. In 1990, Ali left Somalia and went to Canada, where he stayed for two years before being deported (because of human rights violations); he now lives in Virginia. Ali has asked the court to consider whether (as the U.S. Court of Appeals for the 4th Circuit has ruled) foreign officials cannot receive immunity for acts that they committed as part of their official role if a plaintiff in a civil suit alleges that their conduct violated principles of international law that are so fundamental and widely accepted that no deviation from them is allowed.The federal government agreed with Ali that the 4th Circuit’s rule is wrong, but it told the court that it should still deny review because the Somali government has waived any claim that Ali might have to immunity, so that a ruling by the Supreme Court on the legal issue wouldn’t make any difference in this case. The government acknowledged, however, that the Supreme Court might want to take up the issue in an appropriate case in the future.
  • The government also advised the Supreme Court to deny a cross-appeal by Warfaa, who argues that he should be allowed to sue Ali under the Alien Tort Statute, a 1789 law that gives U.S. courts jurisdiction over lawsuits filed by noncitizens alleging wrongs committed in violation of international law. In 2013, the Supreme Court held that the general presumption against applying U.S. law outside the country applies to the ATS, but Warfaa contends that the case has enough of a connection to the United States for him to sue Ali here. The federal government noted that Warfaa’s petition is conditioned on the Supreme Court granting Ali’s appeal, which the government has recommended against. In any event, the government added, Warfaa can bring most of his claims under another federal law, the Torture Victim Protection Act, which will “further the purpose he invokes in this case of preventing the United States from being viewed as harboring or providing a safe haven from human rights abusers.”
  • When states have legal grievances against other states, the Constitution allows them to file lawsuits directly in the Supreme Court. However, the Supreme Court has determined that it should only allow those lawsuits to go forward in “appropriate cases” – considering, for example, the seriousness of the state’s claim and whether an alternative forum is available. In New Mexico v. Colorado, New Mexico hopes to sue Colorado in the Supreme Court; as the federal government explained, New Mexico claims that “contamination from abandoned mines in Colorado has polluted New Mexico’s rivers and caused economic harm.” But the federal government told the justices that this case is not one that belongs in the Supreme Court. It emphasized that New Mexico has other ways to seek relief; indeed, the state has another lawsuit pending in the lower federal courts, and there is “substantial overlay” between the two actions.
  • The government also recommended a denial in the maritime law case Bulk Juliana v. World Fuel Services. The case arose when World Fuel Services delivered fuel to a ship while it was in Singapore; the contract specified that it would be governed by U.S. maritime law, including for maritime liens, no matter where the fuel was supplied. When it was not paid for the fuel, WFS went to federal court in the United States while the ship was docked in New Orleans, seeking to put a maritime lien on the ship. The district court ruled that, under Singapore law, the contract was valid, including the choice-of-law provision, and granted the request for the lien, relying on federal maritime law. The U.S. Court of Appeals for the 5th Circuit affirmed, rejecting the argument that the federal statute allowing the lien did not apply under the choice-of-law provision, and Bulk Juliana asked the justices to review the case. The federal government urged the court to deny review, arguing that the 5th Circuit’s decision “does not conflict with any precedent of this Court, and it is consistent with the decisions of both other circuits that have directly addressed the same issue.”
  • Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. National Collegiate Athletic Association arise from New Jersey’s efforts to allow sports gambling at its casinos and race tracks. When the NCAA filed a lawsuit, a federal district court agreed that a 2014 law passed by the New Jersey legislature authorizing the gambling was pre-empted by the Professional and Amateur Sports Protection Act, which bars states from authorizing sports-gambling schemes, and the U.S. Court of Appeals for the 3rd Circuit affirmed. New Jersey Governor Chris Christie asked the Supreme Court to weigh in on whether Congress can bar the states from authorizing sports gambling, or whether the PASPA instead violates the Tenth Amendment, which provides that powers which are not specifically given to the federal government or taken from the states are reserved for the states. The federal government recommended that review be denied, telling the justices (among other things) that the 3rd Circuit’s decision is correct and does not conflict with any ruling by any other court of appeals.
  • Eric Loomis, the petitioner in Loomis v. Wisconsin, was charged with serving as a driver in a drive-by shooting and eventually pleaded guilty to attempting to flee a traffic officer. Loomis’ presentence report included a risk assessment to which both the state and the trial court referred at the sentencing hearing. The trial court sentenced Loomis to six years in prison and five years of supervision, telling him that the risk assessment had identified him as a “high risk to the community.” The court declined to order probation because of “the seriousness of the crime and because” Loomis’ “history” and “history on supervision, and the risk assessment tools that have been utilized, suggest that” Loomis was at an “extremely high risk to re-offend.” Loomis argues that the trial court’s reliance on the risk assessment violated his constitutional right to due process. The government recommended that review be denied. It conceded that a “sentencing court’s use of actuarial risk assessments raises novel constitutional questions that may merit this Court’s attention in a future case.” But it should not take up the question now, the government continued, because – among other things – the risk assessment in Loomis’ case was used for “narrow purposes only,” the Wisconsin Supreme Court’s ruling is consistent with that of the only other state supreme court to have reached the question, and Loomis would have received the same sentence even without the risk assessment.

The parties to these cases will have the opportunity to file briefs responding to the government’s recommendations. The justices are likely to announce whether they will grant review before their summer recess.

Recommended Citation: Amy Howe, Federal government files invitation briefs, SCOTUSblog (May. 26, 2017, 7:24 PM),