Petitions of the week

Suing the International Finance Corporation, and Chicago police’s destroy-or-sell policy

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the International Finance Corporation is immune from suit over its actions concerning the Tata Mundra Power Plant in Gujarat, India, and whether Chicago police’s policy of destroying or selling arrestees’ property left unretrieved after 30 days violates the Fourth or Fifth Amendments.

The Foreign Sovereign Immunities Act’s commercial-activity exception

On Tuesday, the Supreme Court in Cassirer v. Thyssen-Bornemisza Collection Foundation heard oral argument in a case under the Foreign Sovereign Immunities Act concerning choice-of-law rules. In Jam v. International Finance Corporation, the Supreme Court faces another issue under the FSIA in a case that is back before the justices after they remanded it to the U.S. Court of Appeals for the District of Columbia Circuit in early 2019. Jam began in 2015, when farmers and fishermen who live near the Tata Mundra Power Plant in Gujarat, India, as well as other petitioners, sued the IFC in federal district court in Washington, D.C. The petitioners alleged that the power plant — which the IFC financed and approved from its headquarters in Washington — has “devastated” the local environment and way of life. In the first Jam case, the Supreme Court ruled that the IFC did not have absolute immunity as an international organization, but only “restrictive immunity,” meaning that plaintiffs could sue the IFC for claims involving its commercial activity carried on in the United States, or they could sue if the IFC had waived its immunity.

On remand, the D.C. Circuit again ruled that the IFC was immune from the petitioners’ suit. First, affirming the district court, the court of appeals reasoned that the FSIA’s commercial-activity exception did not apply. Because the “construction and operation” of the power plant in India were what “actually injured” the petitioners, their claims were not based on any of the IFC’s commercial activity in the United States. Second, despite language in the IFC’s charter stating that “[a]ctions may be brought against” it, the court of appeals considered itself “obliged” by precedent to find waivers of immunity only if a waiver would “benefit” the organization — and the court reasoned that it would not in this case.

In their request for the justices’ review, the petitioners maintain that the D.C. Circuit created a new circuit split with its approach to the FSIA’ commercial-activity exception and invented its doctrine avoiding waiver in the face of apparently plain text waiving immunity.

Chicago police’s destroy-or-sell policy

In Conyers v. City of Chicago, Illinois, Blake Conyers challenges the Chicago Police Department’s policy of selling or destroying the personal property seized from arrestees if the arrestee does not retrieve it within 30 days. After the Chicago police destroyed an earring, a bracelet, and two cell phones belonging to Conyers (who was in pretrial detention when the 30 days passed), Conyers sued under the Fourth, Fifth, and 14th Amendments. The U.S. Court of Appeals for the 7th Circuit affirmed the district court’s rejection of Conyers’ claims, in part on the ground that he had notice of his need to reclaim property.

These and other petitions of the week are below:

Conyers v. City of Chicago, Illinois
21-898
Issue: Whether a municipality may, consistent with the Fourth and Fifth Amendments and pursuant to an explicit policy, destroy or sell property seized during the inventory search of an arrestee because the arrestee remains in custody awaiting trial for more than 30 days and is unable to retrieve the property.

Crow v. Fontenot
21-970
Issue: Whether “new” evidence, as referred to in Schlup v. Delo and McQuiggin v. Perkins, means evidence that was not available at the time of trial or, under the broad reading adopted below, encompasses any evidence, including evidence known by the defendant and/or available with due diligence, not presented at trial.

Idaho v. Howard
21-975
Issue: Whether, when officers lawfully deploy a narcotics-detection dog on the exterior of a vehicle and, without any direction, prompting, or facilitation by officers, the dog briefly touches the vehicle or places its snout through an open window, the dog’s conduct constitutes a Fourth Amendment search by officers.

Helix Energy Solutions Group, Inc. v. Hewitt
21-984
Issue: Whether a supervisor making over $200,000 each year is entitled to overtime pay because the standalone regulatory exemption set forth in 29 C.F.R. § 541.601 remains subject to the detailed requirements of 29 C.F.R. § 541.604 when determining whether highly compensated supervisors are exempt from the Fair Labor Standards Act’s overtime-pay requirements.

Jam v. International Finance Corporation
21-995
Issues: (1) Whether the commercial activity exception to immunity for foreign sovereigns and international organizations under the Foreign Sovereign Immunities Act allows suit when the alleged acts of the defendant that give rise to its liability constitute commercial activity carried on in the United States, regardless of whether another party’s conduct more directly caused the injury; and (2) whether a treaty provision stating that “[a]ctions may be brought against the [international organization]” waives the organization’s immunity.