The Supreme Court has been parsimonious in granting review recently, adding only a handful of new cases to its merits docket for next term since the beginning of March. Last year the justices closed out June with a flurry, adding 13 new cases (for a total of 11 hours of argument) to their docket for fall. Although it’s too soon to know whether they will match that total, this year the justices’ June 25 conference is likely to yield at least three new merits cases for the term beginning next October, in cases in which the federal government has recommended that the court grant review. Perhaps coincidentally, issues relating to international law and foreign relations run through all three of the cases.
Two of the cases involve issues of immunity for foreign governments and foreign officials from lawsuits in U.S. courts. As a general rule, foreign countries cannot be sued in U.S. courts. The Foreign Sovereign Immunities Act outlines several narrow exceptions to that rule, including one known as the “expropriation exception,” which allows lawsuits against foreign countries involving rights in “property taken in violation of international law,” as long as there is a commercial link to the United States. In Federal Republic of Germany v. Philipp, the federal government has recommended a grant to clarify the scope of this exception.
The lawsuit was filed by the heirs of Jewish art dealers who lived in Germany in the 1930s, seeking to recover a collection of valuable medieval relics that, they contend, the art dealers had been forced to sell to the Nazis at well below market price as part of the Nazis’ efforts to ruin the livelihoods of German Jews. The U.S. Court of Appeals for the District of Columbia Circuit allowed the lawsuit to go forward. It agreed with the plaintiffs that the expropriation exception applied: The plaintiffs had alleged that their property had been taken “in violation of international law” because they argued that the sale of the relics was part of the Nazi genocide. The court of appeals dismissed Germany from the lawsuit, however, finding that the commercial nexus required by the expropriation exception did not exist; SPK, the German government institution that runs the Berlin museum where the relics are on displayed, remains in the case. The court of appeals also rejected Germany and SPK’s argument that, even if the U.S. courts have the power under the FSIA to take up the plaintiffs’ suit, they should still dismiss the case out of courtesy – a doctrine known as international comity – because the plaintiffs should have first pursued all of the remedies available to them in German courts. Germany and SPK then went to the Supreme Court, which asked the federal government to weigh in earlier this year.
In a brief filed in late May, the federal government urged the justices to take up Germany’s case. While it stressed that the “United States deplores the atrocities committed against victims of the Nazi regime, and supports efforts to provide them with remedies for the wrongs they suffered,” the government argued that the D.C. Circuit had “reached two erroneous conclusions regarding the application of the FSIA.” First, the government contended, the D.C. Circuit was wrong in holding that the expropriation exception applied to this case because the taking of property by a citizen’s own government does not violate international law. Second, the government continued, the D.C. Circuit was wrong when it ruled that the FSIA “leaves no room” for U.S. courts to decline to exercise their jurisdiction over a case out of deference to the interests of another country. The government told the justices that they should deny a cross-petition filed by the plaintiffs, who asked the court to weigh in on whether the expropriation exception applies to Germany when the relics are not in the United States.
The international comity issue is at the center of another brief filed by the government last month, in Republic of Hungary v. Simon. The plaintiffs in the case are Jewish survivors of the Hungarian Holocaust, who filed a lawsuit in a federal court in the U.S. against Hungary and its state-owned railway, MAV. The plaintiffs contended that Hungary had worked with the Nazis to exterminate Hungarian Jews and seize their property; moreover, they added, MAV had helped in that effort by transporting Hungarian Jews to death camps and taking their things from them before they boarded the trains. The government agreed with the Hungarian government that the international comity question warrants the Supreme Court’s attention, but it told the justices that they should take up the issue in Philipp, rather than Simon.
The government urged the court to deny review of a separate question that Hungary had asked the justices to address, involving the D.C. Circuit’s reversal of the district court’s dismissal of the case based on its finding that “Hungary is both an available and adequate alternative forum” for the dispute. “Although some doubt exists about whether the court of appeals applied an appropriately deferential standard of review” to the district court’s ruling, the government acknowledged, “that question does not warrant” the justices’ intervention.
In Mutond v. Lewis, the government recommended that the justices weigh in on issues related to immunity for foreign government officials sued in U.S. courts. The lawsuit was filed by Darryl Lewis, a U.S. citizen who in 2016 was working as a security contractor for Moise Katumbi, a candidate for president in the Democratic Republic of Congo. Lewis was arrested and held for several weeks by the country’s intelligence agency; while in custody, he alleges, he “was interrogated for 16 hours a day, assaulted, starved, and deprived of sleep.”
Shortly after his release, Lewis filed a lawsuit in federal district court in Washington, D.C., against the country’s minister of justice, Alexis Thambwe Mwamba, and the head of the intelligence agency, Kalev Mutond. He relied on the Torture Victim Protection Act (TVPA), a 1991 law that creates a cause of action for torture committed in foreign countries. The U.S. Court of Appeals for the District of Columbia Circuit allowed Lewis’ suit to go forward. The court of appeals explained that the Congolese officials were not entitled to immunity from suit because Lewis had sued them in their personal capacity, rather than their official capacity, and he was not seeking damages from government funds.
Mutond and Mwamba filed a petition for review last summer, asking the justices to review the D.C. Circuit’s ruling that they were not entitled to immunity because Lewis had sued them for money damages in their personal capacity. They also asked the justices to weigh in on the D.C. Circuit’s holding that, even if the officials had acted in their official capacity, they could still be sued and held liable under the TVPA. Mutond and Mwamba characterized the D.C. Circuit’s conclusions as “not only wrong but disastrous.” “Left uncorrected,” they warned, “the decision below will permit plaintiffs to evade foreign-official immunity in practically every case, triggering a torrent of lawsuits against high-ranking foreign officials, who are now prime targets for lawsuits in Washington, D.C. (where many travel for official visits).” In January of this year, the court asked the federal government for its views on the issues raised by Mutond and Mwamba in their petition.
In a brief filed late last month, the government urged the justices to take up both questions presented in Mutond and Mwamba’s petition. The D.C. Circuit was wrong to adopt a categorical rule that foreign officials can never be immune as long as they are sued in their personal capacity, the government argued. The court of appeals also erred, the government added, in holding that the TVPA allows lawsuits against foreign government officials even in their official capacity. Like Mutond and Mwamba, the government stressed that, if the lower court’s decision is allowed to stand, the District of Columbia could attract “suits challenging a variety of foreign military or policy decisions”; moreover, the government continued, it “could invite similar treatment of this Nation’s officials by other states, and could seriously interfere with the Executive Branch’s conduct of foreign relations.”
The Alien Tort Statute (ATS) is an 18th-century law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international human-rights laws. Two years ago, in Jesner v. Arab Bank, the Supreme Court ruled that foreign corporations may not be sued under the ATS. In a brief filed in late May, the government recommended that the justices weigh in next term on whether U.S. corporations can be sued under the ATS.
The question came to the court last fall in two petitions – one filed by U.S. agricultural behemoth Cargill, the other by Nestle USA, a U.S. subsidiary of the Swiss food and beverage giant. The companies were sued in federal court in California by plaintiffs who claim that they are former child slaves from Mali, who were forced to work on farms in Cote d’Ivoire that grow cocoa beans in violation of international law. Cargill and Nestle USA, the plaintiffs contended, were aware that child slave labor was (as the lower court described it) a “pervasive problem in the Ivory Coast” but aided and abetted the violations of international law by buying cocoa beans from those farms and by providing technical assistance to the farms.
The U.S. Court of Appeals for the 9th Circuit allowed the lawsuit to go forward. The court of appeals first concluded that the court’s decision in Jesner, barring ATS lawsuits against foreign corporations, did not rule out lawsuits against U.S. corporations. The lower court also determined that the lawsuit had a sufficient U.S. connection to the kind of violations of international law that the ATS targets because the plaintiffs’ “allegations paint a picture of overseas slave labor” that the companies “perpetuated from headquarters in the United States.”
In its brief, the government began by making clear that the “United States unequivocally condemns child slavery and those who aid and abet it, and is committed to fostering respect for human rights.” However, the government continued, the Supreme Court’s review of the 9th Circuit’s ruling is warranted because the court of appeals was wrong to hold that U.S. corporations can be sued under the ATS and to recognize that defendants can be sued under the ATS for aiding and abetting violations of international law; both of those questions, the government argued, are better left for Congress, rather than the courts, to decide. But even if the court of appeals were correct on both of those points, the government added, it erred in holding that the plaintiffs’ “generic allegations of domestic corporate oversight” were enough to overcome the general presumption that the ATS does not apply outside the United States. The government recommended that the justices grant Cargill’s petition and hold Nestle’s petition until it rules on the merits.
The government also recommended a grant in a fourth case: Peterson v. Linear Controls, the case of David Peterson, an electrician who in July 2015 worked on an offshore oil platform in the Gulf of Mexico for Linear Controls. Peterson, who is black, contends that he and other black team members had to work outside, where they did not have access to water, while white team members worked inside, where there was air-conditioning. If the black team members tried to come inside during their breaks, Peterson alleges, white supervisors would curse and yell at them – with one supervisor using racial epithets.
Peterson filed a lawsuit in federal court, alleging that the treatment of the black team members violated Title VII of the Civil Rights Act of 1964, which bans racial discrimination with respect to an employee’s “terms, conditions, or privileges of employment.” The U.S. Court of Appeals for the 5th Circuit threw out Peterson’s case, ruling that Title VII’s ban on discrimination only applies to what it described as “ultimate employment decisions” – such as hiring, firing, promoting or paying employees. Peterson then went to the Supreme Court, which called for the solicitor general’s views last year. In March, the federal government filed a brief in which it agreed that the justices should grant review; the justices’ consideration of the case was delayed until the June 4 conference because of the COVID-19 crisis.
In its brief, the federal government told the justices that the 5th Circuit’s interpretation of Title VII as limited to “ultimate employment decisions” is “flatly inconsistent with the plain text” of the statute. For that reason, and because the lower courts are “deeply divided” on this question, which the federal government characterized as “important and recurring.” However, the justices did not consider the case last week after all: On May 28, lawyers for Peterson and the company filed a joint motion to defer consideration of the petition. They indicated that they were “currently working on a settlement of the case.”
The government recommended that review be denied in N.B.D. v. Kentucky Cabinet for Health and Human Services, a case involving federal immigration law and visas for young non-citizens. In 1990, Congress created what is known as “special immigrant juvenile” status, which allows young people who have been abused or neglected to remain in the United States and obtain permanent residency rather than face deportation. To be eligible for SIJ status, a young person must obtain a finding from a state court that (among other things) she cannot be reunited with one or both of her parents because of abuse or neglect, and that it would not be in her best interest to be returned to her home country.
The government’s filing came in a case filed by Nelida Maribel Diaz Juarez, who was born in Guatemala but came to the United States as a teenager after she was abducted by a gang, threatened and told not to return to Guatemala during a visit to Mexico. Diaz Juarez made her way to Kentucky, where she lived with her boyfriend and his mother, Nalberta Bravo Diaz. In 2017, Bravo Diaz went to family court in Kentucky, seeking a determination that Diaz Juarez was a dependent minor and therefore could stay in Bravo Diaz’s custody. The family court agreed to leave the teenager in Bravo Diaz’s care, but it declined to make findings that would make her eligible for SIJ status, and the Kentucky Supreme Court upheld that ruling.
In its brief, the government urged the justices to deny Diaz Juarez’s petition for review, telling them that the Kentucky Supreme Court “correctly held that federal law does not require a state juvenile court to make the findings that are relevant to SIJ classification whenever a juvenile court is requested to do so.” What’s more, the government added, “there is no clear conflict among state courts of last resort on” whether state courts are required to make the findings that would make a young person eligible for SIJ status because the rulings that Diaz Juarez cited in her petition “do not clearly hold that juvenile courts are required by federal law to make SIJ findings in every case.”