u/jokiboi

As you likely know, the Department of Justice’s Office of the Solicitor General handles the arguments for substantially all the cases at the Supreme Court involving the federal government as a party, or where the federal government has an interest in the outcome as amicus. The Office is structured in that at the top is the Solicitor General and then the Principal Deputy Solicitors General. These are considered political positions and generally change with the administration. The rest are the Deputy Solicitors General and the Assistants to the Solicitor General. These are considered career positions, with the people filling the roles oftentimes lasting through several administrations.

First of note is the eight cases in which the OSG made no appearance: Berk v. Choy, Coney Island Auto Parts v. Burton, Hain Celestial Group v. Palmquist, Galette v. New Jersey Transit Corp, Enbridge Energy v. Nessel, Flowers Foods v. Brock, Jules v. Andre Balacz Properties, and T.M. v. University of Maryland. It seems from looking at prior terms that the SG does not bother itself with these more civil procedure cases, like removal jurisdiction or the Federal Arbitration Act. Staying out of the state sovereign immunity case was pretty interesting though.

Now I will list out the various cases that personnel argued in and what the result was for the United States (victory or loss), or the party it supported if it was amicus. Sometimes it’s harder to tell what side OSG supported as amicus, especially when the briefing is captioned ‘supporting neither party,’ so take these with a grain of salt.

Solicitor General D. John Sauer argued in the following cases: Learning Resources v. Trump (loss), Trump v. Slaughter (victory), Trump v. Cook (loss), Watson v. RNC (supporting respondent, loss), Trump v. Barbara (loss), Mullin v. Doe (victory).

Principal Deputy Sarah Harris argued in: NRSC v. FEC (supporting petitioner, victory), Wolford v. Lopez (supporting petitioner, victory), US v. Hemani (loss), Monsanto Co. v. Durnell (supporting petitioner, victory).

Principal Deputy Hashim Mooppan argued in: Chiles v. Salazar (supporting petitioner, victory), Louisiana v. Callais (supporting appellee, victory), Little v. Hecox (supporting petitioner, victory), West Virginia v. B.P.J. (supporting petitioner, victory).

Deputy Malcolm Stewart argued in: Cox Communications v. Sony Music (supporting petitioner, victory), Sripetch v. SEC (victory), Hikma Pharmaceuticals v. Amarin Pharma (supporting petitioner, victory).

Deputy Curtis Gannon argued in: Hencely v. Fluor Corp (supporting respondent, loss), Exxon Mobil v. Corporacion Cimex (supporting petitioner, victory), Cisco Systems v. Doe (supporting petitioner, victory).

Deputy Eric Feigin argued in: Fernandez v. US (victory), Rutherford v US (victory), Chatrie v. US (loss).

Assistant Anthony Yang argued in: Bowe v. US (loss), Abouammo v. US (loss).

Assistant Frederick Liu argued in: USPS v. Konan (victory), Pung v. Isabella County (supporting neither party but mostly respondent, victory?), Keathley v. Buddy Ayers Construction (supporting petitioner, victory).

Assistant Sopan Joshi argued in: GEO Group v. Menocal (supporting respondent, victory), Montgomery v. Caribe Transport II (supporting respondent, loss), Blanche v. Lau (victory).

Assistant Vivek Suri argued in: First Choice Women’s Resource Centers v. Platkin (supporting petitioner, victory), Noem v. Al Otro Lado (victory), FCC v. AT&T (victory?).

Assistant Aimee Brown argued in: Barrett v. US (respondent supporting petitioner, victory), Havana Docks Corp v. Royal Caribbean Cruises (supporting petitioner, victory).

Assistant Kevin Barber argued in: Villarreal v. Texas (supporting respondent, victory), M&K Employee Solutions v. IAM National Pension Fund (supporting respondent, victory).

Assistant Zoe Jacoby argued in: Case v. Montana (supporting respondent, victory), Hunter v. US (loss).

Assistant Ashley Robertson argued in: Ellingburg v. US (respondent supporting vacatur, victory), Olivier v. City of Brandon (supporting petitioner, victory).

Assistant Michael Talent argued in: Bost v. Illinois Board of Elections (supporting petitioner, victory).

Assistant Joshua Handell argued in: Rico v. US (loss).

Assistant Libby Baird argued in: Landor v. Louisiana Department of Corrections (supporting petitioner, loss).

Assistant Joshua Dos Santos argued in: Urias-Orellana v. Bondi (victory).

Assistant Harry Graver argued in: Hamm v. Smith (supporting petitioner, loss).

Assistant Max Schulman argued in: FS Credit Opportunities v. Saba Capital (supporting petitioner, victory).

Assistant Aaron Roper argued in: Chevron USA v. Plaquemines Parish (supporting petitioner, victory).

Assistant Emily Ferguson argued in: Pitchford v. Cain (supporting respondent, loss).

I think I’m not alone when I say that I think that Sauer isn’t great, but that could also just be his voice which is unfortunately grating. Not his fault (I hope). Out of the various assistants, I think the MVP performance for me this term is Anthony Yang in Bowe, who had an inherently very tough argument to make about the Court lacking jurisdiction. He lost, but it was very close. These are all very accomplished lawyers with excellent argument skills, so I’m interested in what members think of various members of the group or if there are other standout arguments to you all.

The Solicitor General has filed several CVSG briefs, or Calls for the Solicitor General. This is where the U.S. Supreme Court directs the Solicitor General (SG) to file a brief on whether it should or should not hear a case, usually where there is a substantial issue of federal law in which the Court is interested but where the Federal Government is not a party and its perspective would be appreciated. The SG has filed six such briefs this past week, and recommends hearing two cases.

Nebraska v. Colorado is an original jurisdiction complaint where Nebraska argues that Colorado is violating a 1926 River Compact in several ways, such as by not providing the agreed-upon amount of water to flow to Nebraska, by having complicated compliance mechanisms, and by obstructing its efforts to build a canal as contemplated in the Compact.

In his brief, the Solicitor General argues that the Court should hear the case but limited to only the first issue. Whether a state is following federal law on water distribution is the ur example of the Court’s exercise of original jurisdiction, and is the only way for Nebraska to vindicate its claims. However, on the other points, the Court should deny leave because (1) the Compact nowhere has any requirement that compliance mechanisms be simple or uncomplicated and (2) any dispute about the construction of the Canal can be resolved separately, especially because Nebraska has not yet embarked on construction of the Canal, so any decision on that would be premature.

Highland Capital Management L.P. v. NexPoint Advisors LP is a bankruptcy case where the parties dispute whether a bankruptcy court can exculpate non-debtor participants in bankruptcy from liability arising from the bankruptcy process and whether the bankruptcy court can act as a gatekeeper for non-colorable lawsuits against non-debtor participants in bankruptcy. The underlying bankruptcy case seems highly litigious, with the former director and CEO of the debtor company (who has been ousted) bringing various claims against the company, its new directors, and various other parties in bankruptcy. The Fifth Circuit held that exculpation could only apply to the debtor, creditors’ committee and its members, and bankruptcy trustees; and also that the gatekeeping provision could only protect those parties as well.

In his brief, the SG argues that the Court should deny review. While the authority of bankruptcy courts to exculpate or provide a gatekeeping function for claims relating to the bankruptcy process itself is important, it should await further percolation in light of the recent 2024 Harrington decision which concerned the related area of third-party releases in bankruptcy, and only the Fifth Circuit has confronted the issue in the short time since. While not staking a firm position, the SG suggests that the Fifth Circuit was correct: there is one part of the Bankruptcy Code which immunizes bankruptcy participants for post-filing conduct, but the bankruptcy court’s exculpation order issued here goes far beyond that statute. Additionally, the petitioner’s arguments seem inconsistent with the spirit, if not the literal terms, of Harrington.

Hoffman v. WBI Energy Transmission Inc. is a Natural Gas Act case about just compensation. The NGA allows federal licensees to exercise the Federal Government’s eminent domain authority to construct natural gas infrastructure, such as pipelines, in exchange for just compensation. The dispute in this case is about attorney’s fees. Under the Fifth Amendment, just compensation does not include ancillary costs such as attorney fees. Under North Dakota state law (the forum state below), just compensation can include attorney fees. The NGA does not speak to the issue of whether just compensation should be defined in reference to federal or state law standards. The Eighth Circuit below held that the federal standard applies, forming a circuit conflict with the Third, Fifth, Sixth and Eleventh Circuits.

In his brief, the SG argues that the Court should grant review in order to resolve the circuit conflict. The SG believes that the decision below was correct, and that the federal standard applies, contra the other side of the split. Congress can, and in other statutes has, expanded what counts as “just compensation” regarding eminent domain beyond the constitutional floor or to adopt state standards. But when Congress is silent, the Constitution is the standard. It is true that in other areas, where Congress leaves a gap in a statute, state law (or federal common law) can be used to fill it. But here there is no gap, because congressional silence already tells us the answer based on the background rule of the Fifth Amendment. Therefore, the Court should also grant review to correct the erroneous decisions in the other side of the circuit split.

Doe v. Hochul is a Title VII case about reasonable religious accommodations. During COVID, New York enacted a vaccine mandate for healthcare workers that contained a medical exemption but no religious exemption. Petitioners were employees whose requests to be exempt from vaccination on religious grounds were denied. The Second Circuit held that no violation of Title VII occurred.

In his brief, the SG argues that the Court should deny review. While the Second Circuit’s unpublished decision in this case is somewhat “difficult to parse,” it should be read in the context of other precedential Second Circuit decisions on the same issue. If the Second Circuit had said that state law could forbid an employer from granting a religious accommodation, then that would be plainly preempted. But that is not what happened. Title VII mandates a reasonable accommodation, not an employee’s preferred accommodation, and petitioners here sought only complete exemption from the vaccination requirement. The complaint does not present anything except for the defendants’ failure to provide a complete exemption, but says nothing about whether other accommodations were sought or offered. The New York state law, as interpreted by the Second Circuit, allowed for religious accommodation short of complete exemption. The petitioners disagree with that reading of state law, but that is how the court understood it, and the law was repealed with the end of COVID and never interpreted by New York’s highest court during its existence. Ultimately, then, this case comes down to a dispute about the meaning of state law, and the Court should deny review. Even if the Second Circuit decision is read in the way that petitioners characterize it (which it should not be), the decision below is of minimal importance because the New York law at issue was repealed. While the petitioners here could still get damages, their claim remains of only “isolated significance,” and so does not warrant review.

RiseandShine Brewing Corp. v. PepsiCo Inc. is a trademark case about the likelihood-of-confusion analysis. To show infringement, the holder of a mark must show that the alleged infringement is likely to produce confusion for the public as to the source of the goods or services. Each circuit has a somewhat different multifactor test to determine infringement, but all agree that “strength of the mark” is an important factor, including looking at the distinctiveness of the mark and its real-world recognition. Petitioner registered RISE as a mark and produces coffee beverages under that name. Respondent was producing Mtn Dew RISE energy drinks, prompting this suit. The Second Circuit ultimately held that the RISE mark was weak as a matter of law, noting the strong generic correlation between coffee/energy drinks and rising, such as in the morning or from tiredness. The petitioner argued that strength of the mark is a factual, not purely legal, question for jury resolution instead of court decision.

In his brief, the SG argues that the Second Circuit was incorrect, but the Court should still deny review. Under trademark precedent, where the question is how an ordinary person would make an assessment, the question is for the traditionally fact-intensive jury resolution. While there is a legal standard at play, that simply makes this case one about mixed questions of law and fact, which are still regularly sent to factfinders. The way that appeals courts review mixed questions, under other precedent, depends on whether the issue is more factual or more legal. The inherent strength of a mark is fact-specific and mark-specific. The analysis the Second Circuit performed below, noting the types of correlation between coffee and ‘rise,’ bears little resemblance to how pure legal questions are resolved. Nonetheless, the Court should deny review because the issue about strength-of-the-mark was just one of many factors the lower court looked at in determining that petitioner could not survive summary judgment. It also looked at the similarity-of-marks and real-world recognition factors, finding they also favored respondent. The Court reviews judgments, not opinions, and while one portion of the Second Circuit’s opinion was incorrect, its whole judgment was not.

Wells Pharma of Houston, LLC v. Zyla Life Sciences, LLC is a preemption case about the Federal Food, Drug and Cosmetic Act (FDCA). While the FDCA has long regulated drug distribution, it has traditionally left the regulation of drug compounding to states. In 2012, the Act was amended to also regulate compounding, with a complicated set of exemptions and rules. Petitioner is a compounder that sells indomethacin suppositories without premarket approval, and respondent is a company with premarket approval from FDA to market indomethacin suppositories (there seems to be an underlying dispute about whether petitioner needed approval at all or fits into an exemption). Respondent sued to enjoin petitioner from manufacturing or selling in various states, including California and Florida, which under state law require premarket approval from FDA to manufacture or sell there. Petitioner argued that the state law claims were preempted by the FDCA, reasoning that federal law did not require them to get approval from FDA and so state law cannot require it either, especially because the FDCA’s requirements can only be enforced by the Federal Government by statute; there is no private right of action. The Fifth Circuit rejected this, holding that state law was not preempted based on the idea that states were simply making state law their own law, and that the Federal Government’s enforcement discretion was not implicated because states can also regulate the primary conduct of manufacturers even if that state regulation mirrors federal regulation. It does not add any requirements to federal law, because it is state law operating independently.

In his brief, the SG argues the Court should deny review. The FDCA does not preempt state laws regulating the manufacture or sale of drugs which the FDA has not approved. Petitioner cannot argue that it cannot comply with both federal or state law, or that the state laws impose requirements that the FDCA does not. To the extent that the state laws incorporate the FDCA’s requirements, it simply makes federal law the in-state standard as well. In other portions of the FDCA, like the medical devices provisions, Congress enacted an express preemption of state law but did no such thing here. If petitioner was correct, then congressional silence here goes even further to preempt state law than does an express preemption clause in the same overarching statute. While the FDCA states that its enforcement may only be done by the Federal Government, the respondent is not suing under the FDCA: they are suing under state law. Actions to enforce state law are not actions to enforce the FDCA, even if they lead to the same outcome. Whether petitioner actually violated the premarket approval rules is a more fact-bound question not presented at this stage of the case, but if it didn’t then it faces no liability because state law is only triggered by an actual violation of federal law. That the FDA has not brought any enforcement action against petitioner is not an implicit decision that petitioner is complying with the FDCA, it is instead a reflection of enforcement priorities and discretion. The petitioner identifies a circuit split with the Ninth Circuit, but its unclear whether the split is genuine. Finally, the more important factual questions, about the extent to which state law is genuinely mirror to federal law, can be litigated as the case proceeds and, if necessary, on certiorari review from final judgment.

To summarize: the SG recommends granting review in Nebraska and Hoffman but denying review in Doe, Highland Capital, RiseandShine, and Wells Pharma.

EDIT: Formatting.