It's the day after Election Day, and here's hoping the justices got a good night's rest—because there are arguments this morning. An international dispute over service-of-process puts the U.S. on the side of Sudan—and drew claims of a “dubious bottom line” from counsel for the victims. Plus: in extraordinary times, the Supreme Court exudes normalcy. Tuesday's arguments were no exception. And scroll down for what could be the next big ACA case to arrive at the high court. Thanks for reading Supreme Court Brief. Feedback and other comments welcome: [email protected] and [email protected].

 

 

Serving Sudan (and the Broader Implications)

The payment of a $314 million-default judgment hangs on the Supreme Court's answer to an arcane question with significant implications here and abroad: Did the families of sailors killed and injured in the 2000 bombing of the USS Cole properly serve Sudan, accused of supporting the Al Qaeda bombers, by sending their complaint to that country's embassy in the United States? Or were they required by domestic and international law to send it to the foreign affairs minister's address in Sudan?

This morning in the case Republic of Sudan v. Harrison, Williams & Connolly partner Kannon Shanmugam, counsel to the Cole families, will argue against Sudan, represented by White & Case partner Christopher Curran. The U.S. is an amicus party backing Sudan. Shanmugam, in his high court brief, sharply criticized the government's support for Sudan, calling it “mind-boggling” and its legal brief “sloppy analysis” and a “dubious bottom line.”

Here are some of the issues at play in the case:

>> Sudan: Key language in the Foreign Sovereign Immunities Act, or FSIA, requiring that the mailing be “addressed and dispatched … to the head of the ministry of foreign affairs of the foreign state concerned, ”is naturally understood to require that the mailing be sent to the minister's address in the foreign state without going through an intermediary such as the foreign state's Washington, D.C. embassy.”

>> Kingdom of Saudi Arabia: Mitchell Berger of Squire Patton Boggsargues: “Allowing service of process by delivery to an embassy or mission would also create a host of practical problems for the Kingdom and other foreign sovereigns, not least of which would be complicating efforts to ensure an organized and timely response to U.S. litigation. The Second Circuit's decision is especially problematic as it casts doubt on the inviolability of missions to the United Nations in New York.”

>> United States: The Second Circuit holding “contravenes the most natural reading of the statutory text, the United States' treaty obligations, and the FSIA's legislative history. It also threatens harm to the United States' foreign relations and reciprocal treatment in courts abroad.”

>> Cole families: The FSIA language “does not mandate a particular location” where service of process should be sent. The embassy can decline to sign for the packet if it doesn't wish to forward it to the foreign minister. The Vienna Convention says nothing about service of process, and mailing is not a trespass. Because the United States has inconsistently interpreted the Convention “(yet another inconvenient fact the government ignores), its current position is entitled to little weight.”

>> Former U.S. counterterrorism and national security officials: J. Carl Cecere of Dallas's Cecere PC says the case is “another effort to undermine the potency of civil lawsuits as terror-fighting tools by eliminating one of the few available options to effectuate service of process on most state sponsors of terror.”

>> U.S. Veterans of Foreign Wars: Stris & Maher partner Peter Strisargues there is no rule of customary international law “categorically barring mail service on an embassy, as demonstrated by the State Department's own regulations authorizing that method when 'otherwise appropriate.'”

 

 

Just Another Routine Day in Extraordinary Times

On a day when the high-drama midterm elections were finally ending, the U.S. Supreme Court on Tuesday exuded normalcy.

At the right end of the bench sat new Justice Brett Kavanaugh, confidently asking informed questions of the lawyers before him. Some pundits and pollsters think his explosive confirmation hearings could affect the election outcomes nationwide. At the lectern was Lisa Blatt, head of Arnold & Porter's appellate and Supreme Court practice, skillfully answering Kavanaugh's questions.

Two months earlier, the liberal Blatt praised Kavanaugh on his first confirmation hearing day, which she said earned her “many angry calls” from friends and strangers. No one suggested that Kavanaugh recuse himself in a case argued by a high–profile supporter, and no one expected him to do so. Just last year, Hogan Hovells partner Neal Katyal argued before Justice Neil Gorsuch, not long after Katyal had expressed similar praise.

Before the court was BNSF Railway Company v. Loos, a mind-numbing case involving railroad payments to injured employees under the Railroad Retirement Tax Act. Yet Blatt, who represented the railroad, sparred vigorously with her adversary David Frederick of Kellogg, Hansen, Todd, Figel & Frederick.

The back-and-forth displayed no anger. Blatt and Frederick have known each other since their first day at University of Texas School of Law in 1986, and they worked together at the solicitor general's office 10 years later.

On Tuesday they cheerfully congratulated each other at the end of the oral argument. Just another routine day in extraordinary times.

 

 

The Next ACA Case at the Supreme Court?

The Affordable Care Act case in Texas has gotten lots of attention—that's the one where Texas and other conservative states are suing to end the landmark health care law. The U.S. Justice Department, under the leadership of Attorney General Jeff Sessions, dropped its defense of key provisions of the law.

The case is awaiting a decision from the trial judge, and so we've got some time before it reaches the Supreme Court. Until then, let's turn our attention to another ACA case that likely has a much shorter timeline to land at the high court—this dispute would arrive from the U.S. Court of Appeals for the Federal Circuit.

The divided en banc court on Tuesday refused to reconsider a panel ruling from June that said the federal government has no obligation to pay billions of dollars in so-called “risk corridor” payments to health insurers. These payments were meant to cover the risk of jumping into the ACA health markets. Some insurers incurred enormous losses, and the government had been making do on its end of the deal. Before the payments stopped, and breach-of-contract suits piled up at the Federal Claims court in Washington.

“[T]he insurers, who had performed their part of the bargain, were denied the promised compensation. My colleagues now ratify that denial,” Federal Circuit Judge Pauline Newman, who voted to rehear the dispute, said in her dissent Tuesday.

Newman added: “This is a question of the integrity of the government. Our system of public-private partnership depends on trust in the government as a fair partner. And when conflicting interests arise, assurance of fair dealing is a judicial responsibility.”

The health insurers have an army of Big Law partners on their side. At the time of the panel decision, Steven Rosenbaum of Covington & Burling, the lead attorney for Moda Health Inc., said in a statement: “Moda Health is disappointed by the decision, and is actively considering its options for further pursuit of the litigation.”

Several firms—including Barnes & Thornburg; Reed Smith; and Crowell & Moring—represented health insurers in various related cases. We'll stay tuned to any cert petition. Other firms—including Akin Gump Strauss Hauer & Feld; Quinn Emanuel Urquhart & Sullivan; Husch Blackwell; and Faegre Baker Daniels—represented amicus parties involved in the health insurance industry.

>> More reading at ThinkAdvisor: Two Judges Blast USA in Risk Corridors Appeal Dissents

Supreme Court Headlines

>> Deepak Gupta of Washington's Gupta Wessler got the amicus call to argue a position the U.S. government has abandoned in a Social Security case.

>> The justices unanimously extended the reach of federal provisions against age-discrimination.

>> “It was Justice Brett M. Kavanaugh's first death penalty case, and there is good reason to think that he holds the crucial vote,” the NYT reports.