The Supreme Court heard arguments in Republic of Sudan v. Harrison on November 7, 2018, where it is being asked to resolve a circuit split on whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act (FSIA) can serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail to the foreign state’s embassy in the United States, notwithstanding differing provisions under the Vienna Convention on Diplomatic Relations (VCDR). The U.S. Courts of Appeals for the District of Columbia, Fifth Circuit, and Seventh Circuit have all held “no,” while the Second Circuit in the present case has held that plaintiffs may be allowed to serve a foreign state in this way.

           The case arises out of the October 2000 bombing of the USS Cole that killed 17 sailors, injuring dozens more, for which a group of victims and their families sued Sudan, alleging that it had provided support to al-Qaida, who claimed responsibility for the attack. Read CNN’s fast facts article for background on the attack. The argument for petitioner – Republic of Sudan – is that the proper interpretation of §1608(a)(3), as held by the District of Columbia, Fifth, and Seventh Circuits, is that someone suing a foreign state needs to send process directly to the head of the ministry. In support of that position, counsel for petitioner argued that there is no language in §1608(a)(3) that explicitly provides for service through an intermediary, and the specific statutory provision should be applied literally and strictly.  The respondent – Rick Harrison – countered that the Second Circuit properly held that he could send process through an intermediary, in this case the Sudanese Embassy. They further alleged that Sudan was using an unstated procedural requirement to avoid paying the $300 million judgment to Harrison and the other victims of the attack on USS Cole. The Associated Press and LMT Online have more on the arguments.

           The Court also heard arguments in another circuit-split case involving a question of statutory interpretation, Culbertson v. Berryhill, which centers around 42 U.S.C. § 406(b)’s 25-percent cap on fees relating to the representation of individuals claiming Social Security benefits. The cap provides that an attorney can take a contingent fee of no more than 25 percent of the claimant’s past-due benefits. The Sixth, Ninth, and Tenth Circuits have held that the 25-percent cap applies only to fees relating to representation in court, whereas the Fourth, Fifth, and Eleventh Circuits have held that the 25-percent cap applies to the maximum aggregate amount of proceedings, whether there are solely court proceedings or both administrative and court proceedings. The petitioner, Culbertson, argued that the phrase at issue – “such representation” – should be read to mean that § 406(b)’s cap applies only to representation fees for work done before a court. Respondent Barryhill, acting commissioner of Social Security, argued that limiting the cap on fees to past-due benefits as they apply to court proceedings would open the door to attorneys being able to collect the 25-percent representation fee from proceedings in multiple jurisdictions. UVA Today has more on Culbertson, and The Jurist covers both of the cases argued on Wednesday November 7, 2018.

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

On Monday, November 5, 2018, the Supreme Court heard oral arguments in two cases: Sturgeon v. Frost and Virginia Uranium, Inc. v. Warren.

Sturgeon v. Frost

In Sturgeon, the Court faced the question of whether the National Park Service (NPS) can prohibit the use of hovercrafts on public waterways. John Sturgeon, an Alaskan moose hunter, has been fighting the NPS for years, filing lawsuits and appeals seeking to gain permission to operate his hovercraft over the Nation River in the Yukon-Charley National Preserve conservation unit. Alaska says he can; the NPS says he can’t. The case hinges on the Alaska National Interest Lands Conservation Act, which says Alaskan Native and private land are not subject to federal “regulations applicable solely to public lands.” Specifically, the question is the meaning in this provision of “public lands.”

At oral argument, Sturgeon’s lawyer, Matthew T. Findley, argued that the law exempted a waterway such as the Nation River from the regulatory control of the NPS. Justice Alito said he “burned up an awful lot of gray cells trying to put together the pieces of this statute.” Justice Sotomayor wondered how the Court could interpret the meaning of “public lands” differently in multiple sections of the statute. “I’m struggling with this,” confessed Justice Kagan.

SCOTUSblog has a full summary of oral arguments here.

This “little case” may have big consequences, noted Matthew J. Sanders in the ABA newsletter Trends last year. “Sturgeon may come to define the nature and reach of the federal government’s authority over waters in and beyond Alaska.”

Virginia Uranium, Inc. v. Warren

The Court also heard oral arguments in Virginia Uranium, Inc., involving a jurisdictional question regarding the safe handling of radioactive material. Specifically, the issue is whether the federal Atomic Energy Act (AEA) preempts a Virginia state law regulating radioactive material within its jurisdiction.

In the early 1980s, in response to the nuclear disaster in 1979 at  Three Mile Island, Virginia passed a law banning the mining of uranium within the state. The law had a sunset clause that went into effect a year after its enactment. In 1983, the Virginia legislature renewed the law indefinitely. Virginia Uranium, Inc. saw the potential in one of the largest untapped uranium deposits in the country (roughly $7 billion as of 2011), and wants to mine the prospect but is prevented from doing so by this state law.

The case hinges on Virginia’s reasoning behind its prohibition of mining uranium. Laws involving improper extraction and storage of materials are regulated by federal law, namely the AEA, which designates the Nuclear Regulatory Commission (NRC) as responsible for this issue.

As Justice Kagan noted at oral argument, because the legislative history shows that the Virginia law was in response to safety concerns, it is more vulnerable to preemption than state bans on mining motivated for other reasons.

“Suppose Virginia had said, ‘We think that the extraction is a dangerous activity, so we are justifying this ban on mining to protect the workers from the hazards associated with mining,’” Justice Ginsburg asked the attorney arguing the case for Virginia Uranium, Charles J. Cooper. Cooper responded that the company would lose if that were the case.  

Solicitor General Noel J. Francisco warned that if the Court allowed a ban on mining for reasons besides concerns for extraction and storage, the Court would be “giving state and local governments a road map for undermining a multibillion-dollar industry.”

SCOTUSblog has a full summary of oral arguments here.

This Post was Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On October 31, the Court heard arguments in Frank v. Gaos. The case presents the issue of whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and complies with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.” The doctrine of cy pres (from a French phrase for “as close as possible”) allows courts to interpret wills or charitable gifts to fulfill the giver’s intention as closely as possible when they are unable to implement the terms precisely. Ted Frank, an attorney, is challenging an $8.5 million settlement of a class action against Google, which alleged that Google had violated its users’ privacy. About $5 million of the settlement went to groups that work on privacy-related issues and the plaintiffs’ lawyers’ alma maters.

Frank argued that because the class members were not the primary beneficiaries of the settlement, the settlement was neither fair nor reasonable and therefore violated Rule 23. The settlement was particularly abusive, he argued, because it was feasible to distribute the money to class members, but instead the class’s counsel agreed to direct the money from the settlement elsewhere. Class members are capable of donating their money to charity themselves if they so wish, instead of having their lawyers do so, he noted. Jeffrey Wall argued for the United States, a non-party, and stated the plaintiffs lacked standing when the district court entered the judgment and that lower federal courts should enforce limits on fee proportionality so those limits are not reduced to “paper tigers.” Attorney Andrew Pincus argued on behalf of Google that nothing in Rule 23 or the Rules Enabling Act strictly prohibits settlements in which the money goes only to third parties. Pincus agreed with the government that there is a “serious question about whether this action was ever properly in federal court.”  Jeffrey Lamken argued on behalf of the respondents (the plaintiffs against Google) that Rule 23(e)’s fairness standard is better met when courts give large amounts of the settlement money to institutions for particular uses than when courts give small amounts close to zero to individual class members. Lamken argued that it is “critical” that the class members’ lawyers, not Google’s lawyers, determined the recipients.

For more commentary on this case, check out The New York Times and MarketWatch.   

On the same day, the Court heard arguments in Jam v. International Finance Corporation. The case presents the question of whether the International Organizations Immunities Act (IOIA), which gives international organizations the “same immunity” from lawsuits that foreign governments have, confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act (FSIA).

International Finance Corporation loans money to private businesses for projects in developing countries. In 2008, the IFC loaned $450 million to Coastal Gujarat Power Limited to partially fund the construction of a power plant in India. The plaintiffs/petitioners are mostly farmers and fishermen whom the plant has harmed.

Jeffrey Fisher argued on behalf of the petitioners that the IOIA’s plain text, structure and drafting history clearly give international organizations the same immunity as the FSIA. Fisher argued that the IOIA incorporates the immunity of the FSIA as of the moment of the filing of the lawsuit against the IFC, not the level of immunity that was applicable when Congress enacted the statute in 1945.  Assistant to the Solicitor General Jonathan Ellis argued on behalf of the United States, a nonparty. Ellis argued that the IOIA “provides a whole host of immunities” by setting “a fixed rule of immunity” and by setting the immunity by reference to foreign governments.” Donald Verrilli argued on behalf of the IFC that Congress enacted IOIA to fulfill the obligations imposed by treaties which commit the courts to give “virtually absolute immunity” to international organizations, a step beyond the immunity given to foreign states.

[Disclosure: Chicago-Kent College of Law’s Center for Information, Society and Policy is one of the designated cy pres recipients at issue in Frank v. Gaos, as reported here.)

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.