When the justices meet next week for their private conference, they will consider five cases in which the court had asked for the government’s views – a procedure known as a “call for the views of the solicitor general,” or “CVSG.” The Supreme Court is particularly likely to ask the solicitor general to weigh in on a case when it involves a question of federal law or a federal treaty but the federal government is not yet a party to the case – the scenario in four of the five cases set for conference on June 24. As Adam Feldman reported for SCOTUSblog in 2019, the justices are overwhelmingly likely to follow the government’s recommendation to take up a case, even if they do not always agree with the government’s recommendation to deny review.
Acting Solicitor General Elizabeth Prelogar recommended that review be granted in just one of the five cases in which she filed briefs recently: Cummings v. Premier Rehab Keller, a lawsuit filed in federal court in 2018 by Jane Cummings, who has been deaf since birth and is legally blind. Cummings, whose primary means of communications is American Sign Language, alleges that Premier Rehab Keller, a company that provides physical therapy services and receives federal funding, violated federal anti-discrimination laws when it refused to provide her with an ASL interpreter. Cummings asked the court for compensatory damages for the “humiliation, frustration, and emotional distress” that she suffered.
The district court threw out the lawsuit, holding that federal disability laws do not allow Cummings to recover damages for emotional distress, and the U.S. Court of Appeals for the 5th Circuit upheld that ruling. Cummings then went to the Supreme Court, which in November (with Justice Amy Coney Barrett recused) asked the federal government for its views.
In a brief filed in late May, Prelogar urged the justices to take up the case. The 5th Circuit’s ruling, she contended, conflicts with the decisions of other courts of appeals and is important: “In a wide variety of cases—such as those involving sexual harassment, race-based mistreatment, or the denial of accommodations for individuals with disabilities—a victim of intentional discrimination may experience significant emotional stress but not suffer any pecuniary harm.” And if the lower court’s decision remains in place, Prelogar cautioned, it “will undermine the ability of both private parties and the federal government to enforce” antidiscrimination provisions in federal disability laws.
Prelogar recommended that review be denied in four other cases in which the court had called for the government’s views:
- PricewaterhouseCoopers v. Laurent, a lawsuit filed by former PwC employees who contend that their retirement plan did not comply with the Employee Retirement Income Security Act. The U.S. Court of Appeals for the 2nd Circuit ruled that, in the most recent proceedings, the district court had the power both to reform the plan – that is, to change its terms – to conform with ERISA and then to enforce it. In a brief filed in late May, Prelogar urged the justices to turn down PwC’s request to review the 2nd Circuit’s decision.
- Comcast v. Viamedia, an antitrust dispute in which Viamedia contends that Comcast has monopolized the market for the placement of TV advertisements. The U.S. Court of Appeals for the 7th Circuit ruled in favor of Viamedia, reinstating one of its claims and reversing a ruling in favor of Comcast on another claim. Prelogar told the justices that the 7th Circuit’s ruling was correct and does not “warrant further review.” Barrett did not participate in the decision to seek the government’s views, presumably because she participated in the case while still a judge on the 7th Circuit.
- Richardson v. Omaha School District, a petition filed by parents seeking attorney’s fees after they prevailed on two claims under the Individuals with Disabilities Education Act. The U.S. Court of Appeals for the 8th Circuit upheld the district court’s ruling that the correct statute of limitations in their case was Arkansas’ 90-day statute of limitations for judicial review of administrative decisions under the IDEA, rather than the state’s three-year statute of limitations for personal-injury cases. Although she acknowledged “some disagreement” among the courts of appeals about what the most analogous statute of limitations would be for a case like this one, Prelogar nonetheless wrote that review should be denied. She explained that “the question of which state statute is most analogous to a particular federal claim is ‘heavily contingent upon an analysis of state law.’”
- Montana and Wyoming v. Washington, a request by the two states to file a complaint directly in the Supreme Court against the state of Washington in a dispute arising from an unsuccessful effort by a private company to build a coal-export facility along the Columbia River in Washington. Montana and Wyoming (whose coal would have been shipped through the facility) contended that Washington’s denial of the permission needed to build the facility discriminated against foreign and interstate commerce. Prelogar told the justices that they should reject the states’ request: Because the company has filed for bankruptcy and no longer has any interest in the property where the facility would have been built, Prelogar contended, the lawsuit would not do anything to remedy the injury that Montana and Washington are complaining about.
The court is expected to issue orders from the June 24 conference on Monday, June 28, at 9:30 a.m. Although the June 24 conference is currently the last regularly scheduled conference on the court’s calendar, the court traditionally issues at least one more set of orders (sometimes colloquially known as the “clean-up order list”) before its summer recess, so the justices might not act on some of these cases on June 28. If the justices opt to add any of these cases to their docket for the 2021-2022 term, they would likely be argued in the fall, with a decision to follow by June 2022.