Petitions of the week
By Andrew Hamm
January 21, 2022
at 3:49 p.m.
Jeffrey Fisher pleads for plaintiffs in jam c. International Finance Corporation. in 2018. (Art Link)
This week, we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the International Finance Corporation is immune from prosecution for its actions regarding the Tata Mundra power plant in Gujarat, India, and whether the Chicago Police Department’s policy of destroying or selling property of arrested persons not recovered after 30 days violates the Fourth or Fifth Amendments.
The Business Activity Exception of the Foreign Sovereign Immunities Act
On Tuesday, the Supreme Court of Cassirer c. Thyssen-Bornemisza Collection Foundation heard oral argument in a case under the Foreign Sovereign Immunities Act regarding conflict of law rules. In jam c. International Finance Corporation, the Supreme Court faces another problem under the FSIA in a case that is back before the justices after sending it back to the United States Court of Appeals for the District of Columbia Circuit earlier in 2019. Jam began in 2015, when farmers and fishermen who live near the Tata Mundra power station in Gujarat, India, along with other petitioners, sued the IFC in federal district court in Washington, DC. The petitioners alleged that the power plant – financed by the IFC and approved from its headquarters in Washington – has “devastated” the local environment and way of life. First Jam case, the Supreme Court ruled that the IFC did not have absolute immunity as an international organization, but only “limited immunity”, meaning that plaintiffs could sue the IFC for claims involving its commercial activity carried on in the United States, or they could sue if the IFC had waived its immunity.
On remand, the DC circuit ruled again that the IFC was immune from suit against the applicants. First, upholding the district court, the appeals court held that the FSIA’s business activity exception did not apply. Since the “construction and operation” of the power plant in India was what “actually harmed” the claimants, their claims were not based on any of IFC’s business activities in the United States. Second, despite the wording of the IFC charter stating that “[a]actions may be brought against it”, the Court of Appeal considered itself “compelled” by the case law to find waivers of immunity only if a waiver “benefited” the organization – and the court estimated that it would not be in this case.
In their motion for judicial review, the petitioners argue that the DC Circuit created a new divided circuit with its approach to the FSIA’s business activity exception and invented its doctrine avoiding waiver in the face of seemingly clear text. waiver of immunity.
The Chicago Police’s Sell or Destroy Policy
In Conyers v. City of Chicago, Illinois, Blake Conyers challenges the Chicago Police Department’s policy of selling or destroying personal property seized from arrestees if the arrestee does not recover it within 30 days. After Chicago police destroyed an earring, bracelet and two cell phones belonging to Conyers (who was in pretrial detention when the 30 days elapsed), Conyers filed suit under the fourth, fifth and 14th amendments. The United States Court of Appeals for the 7th Circuit upheld the district court’s dismissal of Conyers’ claims, in part on the grounds that he had been notified of his need to recover property.
These and others petitions of the week are below:
Conyers v. City of Chicago, Illinois
Publish: If a municipality may, pursuant to the Fourth and Fifth Amendments and pursuant to an explicit policy, destroy or sell property seized during an inventory search of an arrested person because the arrested person remains in custody awaiting trial for more than 30 days and is unable to recover the property.
Corbeau v. Fontenot
Publish: if “new” evidence, within the meaning Schlup vs. Delo and McQuiggin v. Perkins, means evidence that was not available at the time of trial or, as broadly construed below, encompasses any evidence, including evidence known to the defendant and/or available with due diligence, not presented at trial .
Idaho vs. Howard
PublishIf, when officers are lawfully deploying a narcotics detection dog outside a vehicle, and without any instruction, prompting or facilitation from officers, the dog briefly touches the vehicle or sticks its muzzle through a window open, the conduct of the dog constitutes a Fourth Amendment investigation by officers.
Helix Energy Solutions Group, Inc. v. Hewitt
Publish: If a supervisor earning more than $200,000 a year is entitled to overtime pay because the stand-alone regulatory exemption set out in 29 CFR § 541.601 remains subject to the detailed requirements of 29 CFR § 541.604 to determine whether highly paid supervisors are exempt from the overtime pay requirements of the Fair Labor Standards Act.
jam c. International Finance Corporation
Problems: (1) If the business activity exception to the immunity for foreign sovereigns and international organizations under the Foreign Sovereign Immunities Act authorizes suits where the alleged acts of the defendant giving rise to its liability constitute a commercial activity carried on in the United States, whether or not the conduct of another party more directly caused the damage; and (2) if a treaty provision stipulating that “[a]actions can be brought against [international organization]” waives the immunity of the organization.