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Government files invitation briefs, recommends just one grant

In the past few days, the federal government has filed a bevy of briefs expressing the views of the United States on issues ranging from the interpretation of the Foreign Sovereign Immunities Act to California’s ban on foie gras. The justices often pay close attention to the government’s recommendations; if they follow that practice here, they are not likely to add many new cases from this batch to their docket, because the government recommended that the Supreme Court grant review in just one case, involving the sweep of federal immigration law.

In Kansas v. Garcia, the state asked the justices to review a decision by the Kansas Supreme Court that reversed Ramiro Garcia’s conviction for identity theft after he used someone else’s Social Security number. The Kansas Supreme Court ruled that the state’s prosecution was superseded by the Immigration Reform and Control Act, a federal law that bars employers from knowingly employing undocumented immigrants.

The Supreme Court called for the government’s views in April, and yesterday the solicitor general filed a brief agreeing with Kansas that the court should take up the case. The federal law at issue prevents states from using information on or attached to a Form I-9, the form used to verify eligibility to work in the United States, in a criminal prosecution, the government told the justices, but it does not prohibit states from prosecuting someone using “information drawn from documents other than the I-9.” Even if there is no clear conflict between the Kansas Supreme Court’s decision and those of other federal courts of appeals and state supreme courts, the government explained, the Kansas Supreme Court’s ruling “is nevertheless an outlier” because it is so “expansive.” The government urged the justices not to take up a broad second question presented in the state’s petition involving the state’s police powers, but it suggested that the justices also consider whether, even if Congress did not say so specifically, Kansas’ prosecution of Garcia is nonetheless pre-empted, under a doctrine known as implied pre-emption.

The solicitor general urged the justices to sit out a trio of cases challenging state laws that seek to regulate the treatment of farm animals. Two of those are original actions – that is, lawsuits filed first in the Supreme Court. In Missouri v. California, Missouri has asked the court to strike down a California law that requires farms raising egg-laying hens to ensure that the hens can move around freely. Telling the court that California’s regulation of eggs has “inflated egg prices for every egg consumer in the Nation,” 13 states argue that the law is trumped by federal laws and violates the Constitution’s commerce clause, which prohibits states from enacting laws that are intended to discriminate against citizens of other states or that place an unnecessary burden on interstate commerce. And in Indiana v. Massachusetts, another group of states (which closely resembles, but is not identical to, the group of state plaintiffs in the Missouri case) contests a ban in Massachusetts on the sale of eggs, pork and veal from animals that were “confined in a cruel manner.”

In the third case, Association des Éleveurs de Canard et d’Oies du Québec v. Becerra, the justices have been asked to intervene in a challenge by a group of Canadian duck and goose farmers to California’s ban on foie gras (which the farmers describe as “perhaps the most maligned (and misunderstood) food in the world”). The farmers argue that the ban is superseded by federal laws governing the sale of poultry products in the United States; California’s attorney general counters that the state’s law is intended to prevent animal cruelty – a subject not addressed by the federal laws at issue.

The federal government urged the justices to stay out of all three cases. It argued that Missouri v. California and Indiana v. Massachusetts were not suitable cases for the court to exercise its original jurisdiction, “which the Court has repeatedly stated should be exercised only sparingly.” And it told the justices that the California law on foie gras was not trumped by federal agricultural laws; moreover, the lower court’s decision did not conflict with any ruling by either the Supreme Court or the federal courts of appeals.

The False Claims Act allows both the government and private individuals to bring lawsuits (to recover up to three times the damages incurred by the government) alleging fraud in government contracting. If the lawsuit is successful, a private party can receive part of the funds recovered by the government. In Gilead Sciences Inc. v. United States ex rel. Campie, the justices have been asked to decide whether an FCA lawsuit can go forward when the government continues to pay for a product – here, drugs used to treat HIV – even after it learns about allegations that manufacturers had made false statements to the Food and Drug Administration about where it would produce the active ingredients in the drugs.

The justices asked the solicitor general for his views in April, and last week the solicitor general recommended that review be denied. He suggested that there is no real disagreement among the courts of appeals on the issue presented in the case because all of them would approach the question “holistically,” looking at the specific facts of each case. But in any event, the solicitor general continued, this case would not be a good candidate to consider the question presented, because there is a dispute about “exactly what the government knew and when.”

City of Cibolo v. Green Valley Special Utility District arises from a dispute over efforts to provide sewer services in an area between Austin and San Antonio. In 2003, the utility district received a federal loan to fund its water service; it has certificates giving it the exclusive rights under state law to provide water and sewer services. Under federal law, when a rural utility receives such a loan, it is protected against competition for the “service provided or made available through” the utility while the loan is outstanding.

The questions presented in the case are whether the law applies only to the service funded by the loan – here, water but not sewer – and whether a duty to provide the service is enough to establish that the service has been provided. The U.S. Court of Appeals for the 5th Circuit ruled for the utility, and the city (which also seeks to provide the services) asked the Supreme Court to weigh in.

The solicitor general agreed with the city that the 5th Circuit’s ruling is “incorrect,” but he nonetheless urged the Supreme Court to deny review, telling the justices that the case could soon be moot because the utility has applied for a loan for its sewer system. The justices should not review the second question presented in the city’s petition, the solicitor general added, because the city did not raise it in the lower court.

de Csepel v. Republic of Hungary is yet another chapter in the battles over art seized by the Nazis and their allies during World War II. The art collection at the heart of this case was confiscated from the family of Baron Mor Lipot Herzog, who filed a lawsuit against Hungary and its museums in federal district court in Washington, D.C., to try to recover the art, arguing that the art had been taken in violation of international law.

Hungary countered that it cannot be sued in U.S. courts because a federal law, the Foreign Sovereign Immunities Act, gives it immunity. The FSIA contains an exception that would allow lawsuits when “rights in property taken in violation of international law are in issue”; the question that the court has been asked to review is whether the exception applies to the family’s case. After the U.S. Court of Appeals for the District of Columbia Circuit ruled that it did not, the family went to the Supreme Court, which asked the federal government to weigh in.

The federal government concluded that the Supreme Court should deny review. It made clear that it “deplores the acts of oppression committed against the family,” but it argued that the D.C. Circuit’s “decision is correct”: The museums that have the artwork could be sued in the United States because they sell books here, but those commercial activities don’t provide a basis to sue Hungary in U.S. courts. “The expropriation exception,” the government explained, “permits courts to exercise jurisdiction over a foreign state for expropriating property only when the property is in the United States in connection with the foreign state’s own commercial activities in the United States.”

In Osage Wind v. Osage Minerals Council, the justices have been asked to take up a dispute arising from the development of a wind-energy project on land in Oklahoma established as a reservation for the Osage Nation. There are two questions at issue in the case: whether the minerals council could appeal a decision against the United States in a lawsuit that the government had filed; and whether Osage Wind engaged in “mining” – for which it needed a mineral lease – when it removed soil, sand and rock to build cement foundations for wind turbines. The U.S. Court of Appeals for the 10th Circuit answered both questions in the affirmative, prompting Osage Wind to seek Supreme Court review.

The solicitor general urged the justices to deny review, telling them that although only parties to a case may normally appeal a judgment against them, there is a “narrow exception” to that rule that the minerals council satisfies. And the “interpretation of the word ‘mining’ in [the Department of the] Interior’s regulations governing mineral leases on Indian lands” also does not warrant Supreme Court review, the government wrote.

Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation has its roots in a business dispute between a Utah man, Ryan Harvey, and the tribe. The Utah Supreme Court ruled that Harvey should have gone to tribal courts first, and it ordered the state district court to either dismiss the case or put it on hold until tribal courts have weighed in. Harvey went to the Supreme Court, which called for the views of the solicitor general. The solicitor general told the justices not to grant review; he acknowledged that “state supreme courts have taken somewhat different approaches in cases involving claims that implicate tribal jurisdiction,” but he added that those “decisions have largely rested on multiple case-specific factors, and no clear-cut conflict exists.”

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in de Csepel and Osage Wind and to the respondent in Gilead Sciences. However, the author of this post is not affiliated with the firm.]

Recommended Citation: Amy Howe, Government files invitation briefs, recommends just one grant, SCOTUSblog (Dec. 5, 2018, 5:15 PM),