Showing an interest for the first time in a case involving claims of torture during the “war on terrorism,” the Supreme Court opened a new Term on Monday by asking the federal government to offer its views on lawsuits against private contractors who work overseas for the U.S. military.  The new case involves former Iraqi civilian detainees who had been held at the notorious Abu Ghraib prison that the U.S. military operated in Baghdad during combat operations there.  This was one of seven new appeals on which the Court asked for the views of the U.S. Solicitor General — an unusually large number on a single day.

The petition seeking to sue over torture claims is Saleh, et al., v. CACI International and Titan Corp (09-1313).  Lawyers for the Iraqis argued, with the support of international law scholars, retired military officers, and human rights activists, that there is a sharp split among federal appeals courts on whether the U.S. Alien Tort Statute applies to private, non-state actors.  The former Abu Ghraib prisoners also argued that the D.C. Circuit Court has created an entirely unprecedented “battlefield preemption” doctrine that effectively insulates more than 200,000 employees of military contractors in Iraq from any form of legal accountability for wrongdoing.

The detainees’ lawsuit targeted CACI because it provided interrogators to the U.S. military, and Titan because it provided interpreters.   Two groups initially filed the lawsuit — seven Iraqis who claimed that they or their late husbands had been tortured at Abu Ghraib, and 12 Iraqis, the estate of one other, and 1,050 “John Does” representing other former detainees.  All of those still living remain residents of Iraq.

There is no deadline for the Solicitor General to respond to any of Monday’s invitations for its views.

Among the other six cases, the government is to make recommendations to the Court on two securities class-action cases, a case about attempted recovery of art work stolen by the Nazis during the Holocaust, a case on the validity under federal law of a prison grooming rule that may interfere with inmates’ religious practices, a case about remedies for a chronic shortage of railroad freight cars, and a river water allocation dispute among three states.

One of the securities cases tests whether a group of investors may pursue a securities fraud lawsuit as a class action if they cannot prove, at the outset, that any loss they suffered was traced directly to the company that allegedly misled the stock market about its share values.  The case of Erica P. John Fund, et al., v. Halliburton Co., et al. (09-1403) involves the so-called “fraud on the market” theory — that is, the view that individual investors had relied on the market to properly value a stock, given the information that was publicly available to the market. That theory would not hold, of course, if a company provided misinformation about its financial condition.

A group of investment funds, retirement plans and individual investors had filed a class-action securities fraud lawsuit in September 2007, against Halliburton Co., and its former president and CEO, David J. Lesar.  The investors had bought Halliburton common stock between June 1999 and December 2001.  Their lawsuit contended that Halliburton and Lesar committed fraud by falsifying financial results and by issuing misleading statements about its financial condition — on the company’s liability for claims of asbestos injury or death, about the adequacy of its reserves to cover asbestos liability, its ability to collect revenues on claims for construction contracts, and the benefits of its merge with Dresser Industries.

The Fifth Circuit denied class certification, finding that the investors had not proved that any losses they suffered were actually caused by  movements in the market traced directly to the alleged misinformation — that is, that the alleged fraud had actually moved the market, causing their losses.

In taking the case to the Supreme Court, the investors argued that the Fifth Circuit had set an unduly high bar for securities class-action lawsuits, and that the ruling conflicted with decisions of the Supreme Court and other federal courts.

In the second securities case referred to the Solicitor General for advice, the issue is the standard of pleading that should apply when investors sue in a class-action lawsuit for securities fraud, in a case where proof of fraud or mistake is not an element of liability.  That case is Laborers District Council, et al., v. Omnicare, et al. (09-1400).  The case grows out of a $761 million public offering of securities by Omnicare, Inc.,  the nation’s largest provider of medicines for the elderly.

Workers’ pension funds, including the Laborers District Council, Construction Industry Pension Fund, had bought some of those securities in 2005 and 2006.  The investors contended in their lawsuit against Omnicare and some of its executives had made misleading statements about Medicare plans, about a contract dispute with United Health Group, about its accounting practices, and about a drug recycling program.  The lawsuit was filed under two different sections of federal securities law, which have differing legal elements.

As the case went to the Supreme Court, it involved issues under a part of the Securities Act that imposes strict liability.  The Sixth Circuit Court ruled that the lawsuit had to be dismissed on that claim (as well as on other, differing securities fraud claims) because the investors had failed to plead their complaint with sufficient factual particulars.  Their petition to the Supreme Court contends that proof of fraud or mistake is not an element of liability under the strict-liability provision.  There is a clear conflict among lower courts on that issue, the petition contended.

Although the Court has often declined to hear appeals raised by victims of the Nazi Holocaust, on Monday it did seek the government’s response to another such case from California — a state that has made several attempts to restore claims by such victims.  The new case, Von Saher v. Norton Simon Museum of Art at Pasadena, et al. (09-1254), involves a dispute over two life-size paintings entitled “Adam” and “Eve,” by Lucas Cranach the Elder, now on display at the Norton Simon Museum.

The Museum was sued by Marei von Saher, a Connecticut resident and the sole living heir of a Jewish art dealer, Jacques Goudstikker, whose gallery in the Netherlands was looted by the Nazi invasion in May 1940.   After World War II, a dispute arose over the rightful owner of the two paintings, but the Norton Simon ultimately bought them in 1971.  In 2002, the California legislature passed a law extending the time limit for filing claims for the return of Nazi-looted artworks,when such a lawsuit targeted a museum or gallery in California. The Norton Simon was sued, relying upon that provision.  Federal courts, however, ruled that the law intruded on the federal government’s exclusive power to deal with foreign policy, including the resolution of war claims.

The prison grooming case — Thunderhorse v. Pierce, et al. (09-1353) — will test the government’s views on the scope of the federal Religious Land Use and Institutionalized Persons Act.  The case, brought by a Native American who is being held in Texas prison, Iron Thunderhorse, who is serving a 99-year prison term for robbery, rape, kidnapping and attempted escape.

He has sought to engage in prison in several Native American religious rituals, and has sought to grow his hair long enough to wear it in braids.  When transferred to a different prison facility, he faced discipline for wearing his hair long enough for braiding.  He failed with grievances filed within the prison system, then sued.   The RLUIPA law requires that burdens on inmates’ religious exercise be the least restrictive means to accomplish prison policy objectives.  The federal Circuit Courts are split, Thunderhorse contended in his petition to the Supreme Court, over how much deference is owed to prison officials when they enforce grooming rules that can interfere with an inmate’s religious practices.  The Fifth Circuit, the petition contended, goes the furthest to defer to prison officials’ claims of a need for grooming restrictions.

Another issue sent to the Solicitor General for a response tests whether a business firm named as the recipient of freight is liable for money damages for holding rail cars too long after freight has been delivered, or whether it is liable for such penalties only if it has consented to that duty.   The case of Norfolk Southern Railway v. Groves, et al. 909-1212) revolves around the meaning of the word “consignee” in the tariffs or policy declarations that railroads issue to set rental fees for railroad freight cars.

The nation’s freight railroads use about 1.3 million rail cars every year, to move about 2.26 billion tons of physical cargo.  Most of the cars are owned by the railroads or by a car leasing company owned by several railroads.  Congress has provided that the railroads maintains tariffs spelling out fees for renting the rail cars, if they are held by anyone longer than a specified period of free time after the freight is dropped off.

With disputes over who must pay fees or “demurrages” for holding rail cars too long, railroads have gone to court increasingly to collect the money from consignees — the entities that have had title to the freight being shipped.  But there is now a split among federal circuit courts on how to define “consignee” in this context.  In the case now before the Supreme Court, the Norfolk Southern Railway has contended that the Eleventh Circuit Court has taken upon itself the duty to redefine the term “consignee,” adding to the duties a railroad owes toward a consignee.  In this case, the Circuit Court ruled that a freight re-loader — who repackages freight for further shipment — cannot be held liable as a consignee until it has had notice that it will listed on that capacity on the bill of lading for the rail transportation service.

The final case on which the Court on Monday asked for a response from the federal government is an original case — that is, one involving a dispute between states, with one state seeking to sue others directly in the Supreme Court — bypassing any lower court proceedings.  The new case — Kansas v. Nebraska and Colorado (126 Original) — is actually a revived version of an old case involving allotments to use waters from the Republican River that flows through those states on the Plains.

There is a congressionally approved compact among the states over who can pump water from the Republican.  For some years, Kansas has been complaining that Nebraska is violating the compact by doing excessive amounts of pumping groundwater — more, Kansas argued, than Nebraska is entitled to pump.  Kansas sought to sue Nebraska in the Supreme Court in 1998, but that led to a settlement among the states, approved by the Court in 2003.

Now,Kansas has contended in its new Original lawsuit, a new dispute has arisen over how much Nebraska is permitted to pump from groundwater supplies affecting the Republican River.   There is, Kansas conended, a serious problem regarding compliance with the settlement approved by the Court seven years ago.

Posted in Cases in the Pipeline, Detainee Litigation, Featured