Cases To Watch This Supreme Court Term

I have spent a fair bit of time the past couple days reviewing the Supreme Court’s docket for the upcoming term with an eye for any cases that might be of particular interest to our readers. Here is my list of the most important cases that are germane to our discipline. The big issues are (1) senior government officials’ immunity for detainee abuse; (2) the nexus between military exercises and endangered species; (3) the eligibility of the persecutor to claim asylum for fear of persecution; (4) the ability of terrorist victims to attach a judgment lien against Iranian assets; (5) the impact that a congressional apology for the overthrow of the Kingdom of Hawaii has on the rights of indigenous Hawaiians; and (6) whether uranium enrichment can be subject to an antidumping duty under our trade laws.

1. Ashcroft v. Iqbal: This one has the potential to be a blockbuster case, addressing whether senior government officials can be sued for detainee treatment. The questions presented highlight the momentous nature of the case: “1. Whether a conclusory allegation that a cabinet level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens; 2. Whether a cabinet-level officer or other high ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.”

2. Winter v. NRDC: Addresses the question of whether military exercises off the coast of southern California constituted “emergency circumstances” within the meaning of NEPA such that the Navy need not conduct an environmental impact statement. Absent such circumstances, such an EIS is required to assess the possible adverse consequences that sonar would have on marine mammals, some of which are endangered. Although it reads like an environmental case, it really is best viewed as a separation of powers case in the continuing saga of judicial versus executive branch authority in the conduct of military engagement. In short, can the courts rather than the military decide what constitutes an “emergency circumstance” within the meaning of the relevant statute?

3. Negusie v. Mukasey: Very interesting case about the knotty problem of seeking asylum after you have engaged in persecution of others. The asylee Negusie was a prison guard in which he allegedly assisted in the persecution of other. Negusie argues that he did so only because he would be tortured if he refused to become a prison guard. Does the “persecution exception” in the statute preclude his claim of asylum in such circumstances? The statute does not address the issue of culpability, simply stating that an alien does not enjoy the status as a refugee if he or she “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” I would put my money on Negusie losing, with the Court encouraging a legislative fix.

4. Iran v. Elahi: This case wins the award for the most complicated facts. Wonderful mix of international tribunal judgments, treaty interpretation and judgment liens arising from terrorism litigation. Here are the basic facts: Iran’s Ministry of Defense wins an arbitration award against Cubic Defense Systems at the Iran-United States Claims Tribunal. MOD sought to confirm the $2.8 million award under the FAA in California. Meanwhile Elahi successfully brought terrorism claim against Iran and attaches a judgment lien against the $2.8 million. Meanwhile Iran has brought a new claim before the Iran-United States Claims Tribunal to enforce a treaty provision that requires the United States to return all Iranian assets. The question is whether this attachment is a “blocked asset” within the meaning of the TVPA.

5. State of Hawaii v. Office of Hawaiian Affairs: Probably a sleeper case, but could have broad implications for the rights of indigenous peoples. In 1993 Congress enacted a joint resolution apologizing for the federal government’s role in the overthrow of the Kingdom of Hawaii. The Supreme Court of Hawaii has now ruled that this resolution impairs the state of Hawaii’s authority to sell 1.2 million acres of state land–about 29 percent of the total land area of the state–until it has struck a political settlement with native Hawaiians. Can such a joint resolution have that affect on state law?

6. United States v. Eurodif: Only a trade lawyer could be interested in this case. I happen to be one and am happy to see the Court take its first antidumping case since 1941. The case addresses the nexus between national security and antidumping laws because it implicates our purchase of uranium from Russia through the dilution and sale of highly enriched uranium. Antidumping duties were applied against low-enriched uranium from France. LEUs are used in the production of domestic nuclear power. The question presented is unusually technical but essentially addresses whether the LEUs delivered to a uranium enricher constitutes a “good” subject to antidumping duties rather than a “service” exempt from antidumping duties.