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Justices issue second order list from “long conference”

Last week the Supreme Court issued orders from the justices’ private conference on September 25 – often known as the “long conference” because the justices are returning from their summer recess and must review all of the petitions that have accrued in their absence. Today the justices issued a second set of orders from that conference. The justices invited the U.S. solicitor general to file a brief expressing the views of the federal government in three cases, and they denied review – without comment – in thousands of cases.

The first nine pages of the 75-page order list contained a variety of orders, ranging from “GVRs” – in which the court grants review, vacates the decision below, and sends the case back to the lower court for further consideration, usually in light of an intervening Supreme Court decision – to denials of motions to file petitions for review after the deadline has passed. Perhaps most notably, the court also called for the views of the U.S. solicitor general (known as a “CVSG”) in three cases. This is a fairly common practice in cases in which the federal government is not involved, but the justices still want its input – for example, when the interpretation of a federal law is at issue.

In the first case, Sudan v. Harrison, the government will weigh in the procedures used to serve process on a foreign nation in the United States under the Foreign Sovereign Immunities Act – specifically, whether the plaintiffs can serve the foreign government by mail sent to the country’s embassy in the United States. The case arises out of the October 2000 bombing of a U.S. Navy ship, the U.S.S. Cole, while it was refueling in Yemen. The plaintiffs in this case, who were either sailors on the ship or their spouses, are seeking to hold Sudan responsible for providing “material support” for the bombing. They had the summons and complaint for their lawsuit sent to Sudan’s minister of foreign affairs at the Sudanese embassy in Washington. Sudan denies any role in the bombing, but that question is not currently before the court; instead, the question is whether the plaintiffs can serve the minister through the Sudanese embassy, or whether they must instead – as Sudan argues – send the summons and complaint directly to the minister in Sudan. Under the Obama administration, the federal government filed a brief supporting Sudan in the lower courts; now it will have the opportunity to weigh in again.

The second case, Virginia Uranium v. Warren, presents questions of pre-emption and the Atomic Energy Act. Virginia Uranium owns the country’s largest known deposit of uranium ore, which is used in both nuclear power plants and nuclear weapons, and wants to mine it. After uranium is mined, it is processed (also known as “milling”) into a form in which it can be used; the waste, known as “tailings,” remains radioactive and must be stored safely.

The case arises because the commonwealth of Virginia has banned uranium mining. Virginia Uranium contends that the source of the ban is concern about radiation from milling and the tailings, rather than mining itself. But that, the company alleges, conflicts with the Atomic Energy Act, which gives exclusive power to regulate the radiological safety of milling and the tailings to the federal Nuclear Regulatory Commission.

The third and final CVSG, in Washington Department of Licensing v. Cougar Den, arose when the state attempted to collect taxes on millions of gallons of fuel that Cougar Den, which is owned by a member of the Yakama Indian Nation, brought into the state to sell at wholesale to gas stations owned by other Yakama members. Cougar Den countered that an 1855 treaty between the United States and the Yakama Indian Nation that gives members of the tribe the “right, in common with citizens of the United States, to travel upon all public highways” exempted it from the tax. When the Washington Supreme Court agreed with Cougar Den, the state asked the Supreme Court to review the case.

There is no deadline for the United States to weigh in, but it is likely to do so before the end of June. In a separate order issued this afternoon, the justices also issued a blanket extension, until November 20, to file petitions for review in cases arising from the hurricane-ravaged areas of Puerto Rico and the United States Virgin Islands.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices issue second order list from “long conference”, SCOTUSblog (Oct. 2, 2017, 5:22 PM),