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Petitions We’re Watching

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Featured Petitions

Docket Case Page Issue(s)
18-238 South Carolina v. Samuel Whether the South Carolina Supreme Court erred when it held, in conflict with many federal courts of appeals, that a trial court may not deny a criminal defendant’s motion to represent himself based on the “defendant’s improper motive or unethical conduct.”
18-234 Campos v. U.S. Whether, and to what extent, the discretionary-function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), restricts the FTCA’s law enforcement proviso, which waives the United States’ sovereign immunity for “[a]ny claim” arising out of an enumerated list of intentional common-law torts committed by federal law-enforcement officers.
18-225 Zappos.com Inc. v. Stevens Whether individuals whose personal information is held in a database breached by hackers have Article III standing simply by virtue of the breach even without concrete injury, as the U.S. Courts of Appeals for the 3rd, 6th, 7th, 9th and District of Columbia Circuits have held, or whether concrete injury as a result of the breach is required for Article III standing, as the U.S. Courts of Appeals for the 1st, 2nd, 4th and 8th Circuits have held.
18-217 Mathena v. Malvo Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
18-212 Bank of America, N.A. v. Lusnak (1) Whether the National Bank Act pre-empts state laws regulating national-bank loan terms, such as California’s law requiring payment of interest on mortgage-loan escrow accounts; and (2) whether the U.S. Court of Appeals for the 9th Circuit erred in disregarding regulations from the Office of the Comptroller of the Currency, the primary regulator of national banks, concerning the applicability of state real-estate lending laws to national banks.
18-192 J. B. R. v. U.S. Whether the due process clause forbids the government from prosecuting an individual who was a juvenile at the time of the crime under a statute that provides no punishment that can constitutionally be applied to that individual.
18-188 Tucker v. U.S. (1) Whether trial counsel’s failure to make an argument that courts of appeals outside the circuit have accepted (and the circuit has not addressed) may amount to constitutionally deficient assistance of counsel or, instead, whether only directly controlling precedent is relevant; and (2) whether, when a defendant and the government have agreed that the court will address at sentencing a factual question for purposes of imposing a statutory mandatory-minimum sentence, they have also implicitly agreed that the defendant’s “offense of conviction” has “established” the factual finding for purposes of the Sentencing Guidelines.
18-175 Applied Underwriters Inc. v. Citizens of Humanity, LLC (1) Whether a general choice-of-law clause in a contract that contains an arbitration agreement should be read, consistent with the Federal Arbitration Act and the Supreme Court’s decisions, to import state substantive law without importing state rules impairing arbitration, as ten federal courts of appeals and nine state courts of appeals have held, or whether a general choice-of-law clause should be read to incorporate both state substantive law and state arbitration principles, including those barring or otherwise evincing hostility to arbitration, as four state courts of appeals and one federal court of appeals have held; and (2) whether a litigant may avoid the enforcement of a contractual clause delegating questions of arbitrability to the arbitrator merely by stating that the litigant’s objection to arbitration—which must ordinarily be resolved by the arbitrator—apply equally to the delegation clause itself.
18-174 Applied Underwriters Captive Risk Assurance Company Inc. v. Citizens of Humanity, LLC (1) Whether a general choice-of-law clause in a contract that contains an arbitration agreement should be read, consistent with the Federal Arbitration Act and the Supreme Court’s decisions, to import state substantive law without importing state rules impairing arbitration, as ten federal courts of appeals and nine state courts of appeals have held, or whether a general choice-of-law clause should be read to incorporate both state substantive law and state arbitration principles, including those barring or otherwise evincing hostility to arbitration, as four state courts of appeals and one federal court of appeals have held; and (2) whether a litigant may avoid the enforcement of a contractual clause delegating questions of arbitrability to the arbitrator merely by stating that the litigant’s objection to arbitration—which must ordinarily be resolved by the arbitrator—apply equally to the delegation clause itself.
18-164 First Solar Inc. v. Mineworkers’ Pension Scheme Whether a private securities-fraud plaintiff may establish the critical element of loss causation based on a decline in the market price of a security where the event or disclosure that triggered the decline did not reveal the fraud on which the plaintiff’s claim is based.
18-162 Ball v. LeBlanc Whether the Prison Litigation Reform Act’s tailoring requirement - which provides that before a district court may order prospective relief with respect to prison conditions, it must find “that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right,” 18 U.S.C. § 3626(a)(1)(A) - prohibits a district court from ordering a prison to maintain a maximum heat index to remedy a constitutional violation caused by heat.
18-153 Louisiana Public Service Commission v. Federal Energy Regulatory Commission (1) Whether, given the Supreme Court’s holdings that the Federal Power Act pre-empts inconsistent state ratemaking and requires state agencies to treat cost allocations made by the Federal Energy Regulatory Commission as reasonable, FERC may deny a refund authorized by FPA Section 206(b) based on the threat of a state regulatory commission to violate the supremacy clause by denying recovery of the surcharge needed to make the refund; and (2) whether - when the FERC grants a refund for an unjust and unreasonable holding-company cost allocation, pursuant to its policy to grant refunds for unjust and unreasonable rates, and numerous holding-company refund decisions support the policy - a U.S. court of appeals may, without scrutiny, accept FERC’s subsequent reversal of its refund decision based on its assertion that its previously cited policy never existed, and its reversal of key prior findings without explanation.
18-127 Amgen Inc. v. Sanofi Whether the standard for determining the adequacy of the “written description of the invention” in a patent must be “in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains . . . to make and use the same,” as stated within the Patent Act, 35 U.S.C. § 112(a), or whether court-created standards should control instead.
18-113 Rodgers v. Florida Whether waiving a state-law right to have a jury make an advisory sentencing recommendation constitutes a knowing and intelligent waiver of the federal constitutional right to have a jury make all requisite findings for the imposition of death, particularly when the latter right did not exist at the time of the waiver.
18-107 R.G. & G.R. Harris Funeral Homes Inc. v. Equal Opportunity Employment Commission (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.
18-106 Turner v. U.S. (1) Whether the Sixth Amendment right to counsel attaches when the prosecutor conducts plea negotiations before the filing of a formal charge; and (2) whether the Sixth Amendment right to counsel attaches when a federal prosecutor conducts plea negotiations before the filing of a formal charge in federal court when the defendant has already been charged with the same offense in state court.
18-89 AmeriCulture Inc. v. Los Lobos Renewable Power, LLC (1) Whether a state anti-SLAPP provision requiring an award of attorney’s fees and costs to a prevailing defendant applies in federal court as the U.S. Courts of Appeals for the 1st, 2nd, 5th and 9th Circuits have concluded, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits; and (2) whether a state anti-SLAPP provision requiring expedited disposition of dismissal motions applies in federal court as the U.S. Courts of Appeals for the 1st and 5th Circuits have held, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits.
18-86 The Sherwin-Williams Co. v. California (1) Whether, in conflict with decisions of the Supreme Court and the U.S. Court of Appeals for the 3rd Circuit, the First Amendment permits California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses; and (2) whether the due process clause allows a state to impose retroactive and grossly disproportionate public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence.
18-84 ConAgra Grocery Products Co. v. California (1) Whether imposing massive and retroactive “public nuisance” liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the due process clause; and (2) whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment.
18-78 Ramirez-Barajas v. Sessions Whether, when a state statute criminalizes only the causation or threat of bodily harm without a distinct element requiring the use or threatened use of physical force, that offense qualifies as a crime of violence within the meaning of 18 U.S.C. § 16(a) as the U.S. Courts of Appeal for the 7th, 8th and 9th Circuits have held, or whether 18 U.S.C. § 16(a) applies only if the statute also requires the use, attempted use or threatened use of physical force as the U.S. Courts of Appeals for the 1st, 2nd and 5th Circuits have held.
18-64 Lucio-Rayos v. Sessions Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.
18-56 Shoop v. Hill Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Hill was not intellectually disabled.
18-50 Carty v. Texas (1) Whether the Constitution requires a court on habeas review in a capital case to assess cumulatively the prejudice caused by multiple constitutional errors at a criminal trial; and (2) whether the state’s intentional suppression of evidence in violation of Brady v. Maryland prejudiced the petitioner by itself or in combination with the objectively unreasonable performance of her trial counsel.
18-42 GlaxoSmithKline LLC v. Louisiana Whether state sovereign immunity bars a federal court from binding a state to a Rule 23 class settlement as an absent class member plaintiff based on the state’s failure to opt out of the class.
18-39 Boyd v. Washington Whether the requirement of frequent, in-person reporting renders an offender-registration law punitive, such that applying the law retroactively violates the ex post facto clause.
18-18 Maryland-National Capital Park and Planning Commission v. American Humanist Association Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
18-12 Kennedy v. Bremerton School District Whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.
18-3 Ohlendorf v. Local 876, United Food & Commercial Workers Int'l Union (1) Whether Section 302(e) of the Labor Management Relations Act, 29 U.S.C. § 186(e), provides for a private right of action; and (2) whether a labor organization violates its duty of fair representation by refusing to honor, at the end of the next applicable irrevocability period, employees’ check-off authorization revocations that are not sent during an annual, fifteen-day window period and by certified mail.
18-2 Natural Resources Defense Council v. Mexichem Fluor Inc. Whether the Environmental Protection Agency has authority under Section 612 of the Clean Air Act to prohibit the use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before the EPA placed them on the prohibited list.
17-6943 Jones v. Oklahoma (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case, denies the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
17-6891 Wood v. Oklahoma (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case, denies the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
17-1717 The American Legion v. American Humanist Association (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
17-1713 Emerson Electric Co. v. Superior Court of California, Orange County Whether the Occupational Safety and Health Act “preempts all state occupational safety and health laws" relating to issue covered by federal standards “unless they are included in the state plan,” as the U.S. Court of Appeals for the 9th Circuit has held; or whether a state may employ supplemental enforcement mechanisms for workplace safety standards even if not included in the state plan, as the Supreme Court of California held in this case.
17-1712 Thole v. U.S. Bank, N.A. (1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; and (2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof.
17-1703 Honeywell Int'l Inc. v. Mexichem Fluor Inc. Whether, under the “safe alternatives policy” of Section 612 of the Clean Air Act, the Environmental Protection Agency lacks authority to prohibit the use of a less-safe substitute for an ozone-depleting substance in favor of a safer alternative, just because a company has already begun using the less-safe substitute.
17-1701 Sun v. Sessions Whether, under 8 U.S.C. § 1158(b)(1)(B)(ii), an asylum applicant whose testimony is deemed credible, but whom the Immigration Judge determines “should provide evidence that corroborates otherwise credible testimony,” must be given the opportunity to obtain and provide such evidence.
17-1700 Turzai v. League of Women Voters of Pennsylvania (1) Whether the Pennsylvania Constitution’s substantive provisions and whatever interpretation Pennsylvania courts afford them, however atextual, can restrict time, place and manner rules Pennsylvania’s lawmakers have passed to govern congressional elections pursuant to the elections clause of the United States Constitution; and (2) whether the Pennsylvania Supreme Court, which has no lawmaking authority, may, consistent with the elections clause, adopt a redistricting plan as a remedy solely for state-law violations and, if so, whether it may, consistent with the elections clause, craft redistricting wholesale in creating that remedy.
17-1695 California State Teachers’ Retirement System v. Alvarez Whether, if a court determines that a complaint filed by one shareholder does not plead demand futility with the requisite particularity, the due process clause and the Supreme Court’s decisions in Taylor v. Sturgell and Smith v. Bayer Corp. permit binding other shareholders that were not parties to the initial litigation to that decision, thus barring consideration of whether a new complaint filed by those shareholders pleads sufficient allegations to demonstrate that pre-suit demand was futile.
17-1692 Ahsan v. Staples the Office Superstore East Inc. Whether, as the U.S. Court of Appeals for the 2nd Circuit held, the Seventh Amendment categorically bars review of district court denials of motions for a new trial made on the ground that the weight of the evidence does not support the verdict; or whether, as all other geographic circuits hold, such denials are reviewable.
17-1687 Suhl v. U.S. Whether the government may obtain convictions for bribery under the honest-services fraud statute, 18 U.S.C. § 1346, and the federal-programs bribery statute, 18 U.S.C. § 666, in the absence of jury instructions expressly requiring an intended quid pro quo exchange.
17-1678 Hernandez v. Mesa (1) Whether, when the plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; and (2) whether, if the federal courts do not recognize such a claim, the Westfall Act violates the due process clause of the Fifth Amendment insofar as it pre-empts state-law torts suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.
17-1676 Stuart v. Alabama Whether the Alabama courts’ decision to permit the introduction of written “reports” to law enforcement, regarding blood alcohol tests, into evidence for the truth of the matters asserted therein — despite the lack of testimony from the person who performed the test and signed the report, or any witness who personally involved in the testing of the blood samples in question — is contrary to Bullcoming v. New Mexico.
17-1672 U.S. v. Haymond Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.
17-1662 Aspen Insurance (UK) Ltd. v. Black & Veatch Corp. Whether a federal court sitting in diversity must give deference to state intermediate appellate court decisions on a question of state law, absent state-highest-court precedent, or whether those intermediate court decisions are merely one factor among many to be considered in predicting the highest court’s likely ruling on that question.
17-1657 Mission Product Holdings Inc. v. Tempnology, LLC (1) Whether, under Section 365 of the Bankruptcy Code, a debtor-licensor’s “rejection” of a license agreement—which “constitutes a breach of such contract,” 11 U.S.C. § 365(g)—terminates rights of the licensee that would survive the licensor’s breach under applicable non-bankruptcy law; and (2) whether an exclusive right to sell certain products practicing a patent in a particular geographic territory is a “right to intellectual property” within the meaning of Section 365(n) of the Bankruptcy Code.
17-1656 Violet Dock Port Inc., LLC v. St. Bernard Port, Harbor & Terminal District (1) Whether the Louisiana Supreme Court erred when it held that the Fifth Amendment’s “public use” requirement is a question of fact to be resolved in the trial court, subject only to manifest error review on appeal; and (2) whether the Fifth and 14th Amendments prohibit the government from taking a fully-functioning private facility with the intent to lease it to another private entity to operate when the revenues earned from those operations are to be shared by both the local government entity and its favored private actor.
17-1652 Credit One Bank, N.A. v. Anderson Whether an agreement that requires a customer to resolve a dispute through arbitration is enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., notwithstanding the provisions of the Bankruptcy Code providing for a statutorily enforceable discharge of a debtor’s debts.
17-1645 Bombardier Recreational Products Inc. v. Arctic Cat Inc. Whether a finding of willful infringement based on In re Seagate’s “should have been known” negligence standard violates the requirement that subjective willfulness must be “intentional or knowing,” as set forth by the Supreme Court in Halo Electronics Inc. v. Pulse Electronics Inc..
17-1637 Doe v. Holcomb (1) Whether the 11th Amendment prevents the entry of injunctive and declaratory relief in federal court against a governor, attorney general and state-court administrator to prevent the continued enforcement of a categorical and nonwaivable state ban against granting a legal change of name to any person who is not a United States citizen; and (2) whether the article III standing doctrines of causation and redressability bar the entry of injunctive and declaratory relief in federal court against a county clerk of court to prevent the continued enforcement of a categorical and nonwaivable state ban on granting a legal change of name to any person who is not a United States citizen.
17-1636 California Sea Urchin Commission v. Combs (1) Whether statutory silence, when a statute neither authorizes nor forbids an agency action, triggers Chevron deference; and (2) whether, if statutory silence triggers Chevron deference, an agency’s interpretation is reasonable when the interpretation is not based on any statutory text but instead on the absence of relevant text.
17-1625 Rimini Street Inc. v. Oracle USA Inc. Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the Act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.
17-1624 Citizen Potawatomi Nation v. Oklahoma Whether the U.S. Court of Appeals for the 10th Circuit erred when it reversed the district court’s confirmation and enforcement of the arbitrator’s award pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
17-1623 Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
17-1616 Regeneron Pharmaceuticals Inc. v. Merus N.V. Whether a patent right can be fully extinguished based on misconduct committed by the patentee’s counsel during federal district court litigation to enforce the patent right.
17-1607 Fairley v. U.S. Whether Federal Rule of Evidence 801(d)(2)(E) permits the admission of out-of-court statements that were not made during and in furtherance of a criminal conspiracy, but were instead made during a non-criminal “venture.”
17-1606 Smith v. Berryhill Whether the decision of the Appeals Council—the administrative body that hears a claimant’s appeal of an adverse decision of an administrative law judge regarding a disability benefit claim—to reject a disability claim on the ground that the claimant’s appeal was untimely is a “final decision” subject to judicial review under Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g).
17-1603 Kelley v. Florida Whether the Florida Supreme Court’s novel and unprecedented decision to apply the Hurst decisions only to inmates whose death sentences became final after Ring v. Arizona, known as partial retroactivity, violates the Eighth and 14th Amendments because it arbitrarily uses as the cutoff point for retroactivity an earlier decision invalidating Arizona’s capital sentencing scheme under the Sixth Amendment and denies relief to the inmates who deserve it the most.
17-1594 Return Mail Inc. v. U.S. Postal Service (1) Whether the government is a “person” who may petition to institute review proceedings under the Leahy-Smith America Invents Act; and (2) whether an action under 28 U.S.C. § 1498(a) for the eminent domain taking of a patent license by the government is a suit for patent “infringement” under the Leahy-Smith America Invents Act.
17-1584 Bartelt v. Wisconsin Whether a noncustodial interrogation at a police station becomes custodial once the defendant confesses to a serious crime because at that point a reasonable person would know that he is not free to leave.
17-1572 Peterson v. Franklin (1) Whether there is interlocutory appellate jurisdiction to review the district court’s assessment that disputed facts establish a triable question on whether, in this deadly force case, it was reasonable to believe that the suspect posed a significant threat of death or serious bodily harm when he was shot; and (2) whether there is interlocutory appellate jurisdiction to review the district court’s assessment that a fact dispute establishes a dispute on another fact that is not a legal element essential to liability.
17-1568 Padilla-Ramirez v. Culley Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that a noncitizen placed in withholding of removal proceedings before an immigration judge is subject to detention under 8 U.S.C. § 1231(a)—the detention authority created by Congress for a person with a final order of removal that has not yet been executed—as opposed to 8 U.S.C. § 1226—the detention authority Congress created for a person awaiting a determination of whether they may remain in the United States.
17-1566 Lacaze v. Louisiana (1) Whether the district court judge’s failure to recuse himself – or even disclose his involvement with the police investigation relating to the likely murder weapon in this case – violated the petitioner’s rights under the due process clause; (2) whether, under McDonough Power Equipment, Inc. v. Greenwood, demonstrating “a valid basis for a challenge for cause” requires a showing that the juror would have been subject to mandatory disqualification, or whether it requires that a reasonable judge would have granted a challenge for cause; and (3) whether the McDonough test applies only to a juror’s deliberate concealment, or whether it also applies to misleading omissions.
17-1559 Villegas-Sarabia v. Sessions Whether misprision of felony—the crime of “having knowledge of the actual commission of a felony” and concealing it, 18 U.S.C. § 4—is categorically a “crime involving moral turpitude” under the Immigration and Nationality Act, 8 U.S.C. § 1182, 1255.
17-1543 Olivar v. Public Service Employee Credit Union Long Term Disability Plan (1) Whether a benefit plan subject to the Employee Retirement Income Security Act, as an entity, is always a proper defendant in an action to recover benefits pursuant to 29 U.S.C. § 1132(a)(1)(B), as held by the U.S. Court of Appeals for the 2nd Circuit, New Mexico Court of Appeals and others, or is an ERISA plan sometimes not a proper defendant as held here by the Colorado Supreme Court and the U.S. Court of Appeals for the 11th Circuit; and (2) whether service of process on the Secretary of Labor is proper under 29 U.S.C. § 1132(d)(1) when a summary plan description designates a corporation for service given that ERISA differentiates between an “individual” and a “person” — specifically defining only the term “person” to include corporations.
17-1542 McKee v. Cosby Whether a victim of sexual misconduct who merely publicly states that she was victimized (i.e., #metoo) has thrust herself to the forefront of a public debate in an attempt to influence the outcome, thereby becoming a limited-purpose public figure who loses her right to recover for defamation absent a showing of actual malice by clear and convincing evidence.
17-1534 Bank Markazi v. Peterson Whether a foreign sovereign’s property outside of the United States is entitled to sovereign immunity.
17-1529 Clearstream Banking S.A. v. Peterson Whether foreign sovereign property held by a foreign financial intermediary in a foreign country may, under any circumstances, be subject to execution in United States courts.
17-1498 Atlantic Richfield Co. v. Christian (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.
17-1484 Azar v. Allina Health Services Whether 42 U.S.C. § 1395hh(a)(2) requires the Department of Health and Human Services to conduct notice-and-comment rulemaking before providing instructions to a Medicare administrative contractor that makes initial determinations of payments due under Medicare, when those instructions rest on a non-legally-binding administrative interpretation of a relevant statutory provision.
17-1471 Home Depot U.S.A. Inc. v. Jackson Whether, under the Class Action Fairness Act – which permits “any defendant” in a state-court class action to remove the action to federal court if it satisfies certain jurisdictional requirements – an original defendant to a class-action claim that was originally asserted as a counterclaim against a co-defendant can remove the class action to federal court if it otherwise satisfies the jurisdictional requirements of the Class Action Fairness Act.
17-1459 World Programming Limited v. SAS Institute Inc. (1) Whether federal or state law governs the respect that must be accorded to the judgment of a foreign court in diversity cases; and (2) whether a district court’s decision on the merits of a claim becomes moot, and must be vacated, if the court of appeals determines that the plaintiff has not proven entitlement to the only remaining relief sought in connection with that claim.
17-1449 Arizona v. Rushing (1) Whether the Supreme Court of Arizona erred in holding that the introduction of a defendant’s past violent conduct in the penalty phase of a capital trial automatically requires that jurors be informed about the defendant’s parole ineligibility pursuant to the due process clause as interpreted in Simmons v. South Carolina and its progeny; and (2) whether Simmons applies in a sentencing proceeding for capital murder committed by a defendant already in prison, a context demonstrating that incarceration is not a sufficient means of preventing future violence by that defendant.
17-1438 Noble Energy Inc. v. ConocoPhillips Co. (1) Whether a state court may impose onerous contractual obligations on a non-signatory to the contract by disregarding the full-disclosure requirements of federal bankruptcy law and foisting the undisclosed perpetual indemnity obligation of a Chapter 11 debtor upon an unknowing purchaser of related assets; and (2) whether boilerplate “assumed-unless-rejected” language in a bankruptcy reorganization plan renders an undisclosed executory contract assumed under 11 U.S.C. § 365.
17-1398 SWC, LLC v. Herr (1) Whether the United States Forest Service’s powers under the property clause of the Constitution to limit gas-powered motorboat use on lakes in congressionally designated wilderness areas are dependent upon and subservient to whether a state has first acted to restrict motorboat activities on the same lakes; and (2) whether prior existing uses of property near the many national wilderness areas are immunized from and ossified against regulations to achieve the Wilderness Act of 1964’s goal to protect wildernesses and keep them “unimpaired for future use and enjoyment as wilderness,” 16 U.S.C. § 1131(a).
17-1382 Lance v. Sellers (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.
17-1375 Gerawan Farming Inc. v. Agricultural Labor Relations Board Whether California may impose a contract on one private employer and its employees through nonconsensual, compulsory arbitration—thereby abrogating the workers’ rights to determine their own bargaining representative—without violating the due process and equal protection clauses of the 14th Amendment.
17-1353 Fort Peck Housing Authority v. Department of Housing and Urban Development Whether an action for the restoration of grant-in-aid funds illegally recouped by the United States constitutes a suit for specific relief such that the United States’ sovereign immunity is waived pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, or whether it is a suit for money damages, barring relief in the federal district courts.
17-1349 Johnson v. U.S. Whether the Fourth Amendment forbids a pretextual seizure of a motorist based solely on probable cause to suspect a civil parking infraction.
17-1343 Davis v. Mississippi (1) Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible in order to impose a sentence of life in prison without the possibility of parole; and (2) whether the Eighth Amendment prohibits a life without parole sentence for a crime committed by a juvenile.
17-1340 Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.
17-1320 Garvin v. New York (1) Whether a police officer who remains outside a suspect’s home violates the Fourth Amendment by arresting the suspect by show of authority without a warrant when the suspect is at the front door but has not stepped outside; and (2) whether New York’s persistent-felony-offender statute, which requires judicial fact-finding on the question whether an enhanced sentence will “best serve the public interest,” violates the Sixth Amendment’s jury-trial guarantee.
17-1316 Sportswear Inc. v. Savannah College of Art and Design Inc. Whether the scope of a federally registered service mark extends to unrelated goods bearing that service mark.
17-1290 American Exploration & Mining Association v. Zinke Whether Congress intended to grant the Secretary of the Interior the authority to make large-tract withdrawals without the congressional oversight provided by the legislative veto embedded in the delegation of authority.
17-1289 Lowe v. Raemisch Whether clearly established Eighth Amendment law permits prison officials to permanently deprive a prisoner in solitary confinement of outdoor exercise without a security rationale.
17-1286 National Mining Association v. Zinke Whether Congress’ delegation to the Department of the Interior of withdrawal authority over large tracts of land can survive without the legislative-veto right that Congress included as a check on the exercise of that authority.
17-1284 Apodaca v. Raemisch Whether clearly established Eighth Amendment law permits prison officials to permanently deprive a prisoner in solitary confinement of outdoor exercise without a security rationale.
17-1222 Multnomah County, Oregon v. Updike (1) Whether the level of discriminatory intent required to award compensatory damages under the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, is “discriminatory animus,” as three circuits have held, or “deliberate indifference,” as five circuits have held; and (2) whether the provision of an effective accommodation can amount to discriminatory intent.
17-1201 Thacker v. Tennessee Valley Authority (1) Whether the U.S. Court of Appeals for the 11th Circuit erred by using a “discretionary-function exception” derived from the Federal Tort Claims Act, from which the Supreme Court generally has declined to borrow rules, instead of the test set forth in Federal Housing Authority v. Burr when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority), to immunize the Tennessee Valley Authority from the plaintiffs’ claims; and (2) whether the U.S. Court of Appeals for the 11th Circuit correctly applied the discretionary-function test, in any case; and whether the lower court correctly held that safely raising a downed power line from the Tennessee River constitutes the sort of “policy”-laden discretionary work that this exception was designed to immunize from suit.
17-1198 Martins Beach 1, LLC v. Surfrider Foundation (1) Whether a compulsory public-access easement of indefinite duration is a per se physical taking; and (2) whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the takings clause, the due process clause, and/or the First Amendment.
17-1189 Torrez v. U.S. (1) Whether the categorical approach set forth in Taylor v. United States and its progeny applies to determine whether a defendant has “previously been convicted” of a relevant offense; (2) whether prior-conviction aggravators can be satisfied by convictions for conduct that occurred after the capital offense; and (3) whether the warrantless seizure and search of historical cell-site location information, revealing a cell-phone user’s location and movement over a prolonged period of time, violates the Fourth Amendment.
17-504 U.S. Telecom Association v. Federal Communications Commission Whether the Federal Communications Commission lacked the clear congressional authorization required to assert plenary authority over a large and growing segment of the economy by imposing public-utility, common-carrier obligations on broadband internet-access service.
17-503 TechFreedom v. Federal Communications Commission (1) Whether the Federal Communications Commission's Order imposing common carrier status upon broadband providers constitutes a major rule of vast “economic and political significance,” requiring Congress to “speak clearly” if it wishes to delegate the matter to an agency's interpretive discretion, when the Order will affect (i) every American Internet service provider, which collectively invest over $78 billion in network investments annually as of 2014; (ii) every Internet content provider, an industry that currently includes the five largest companies in the United States by market capitalization; and (iii) every Internet consumer, currently totaling over 275 million Americans; and, if so, whether Congress expressly authorized the FCC to issue the major rule, when (i) Congress enacted Telecommunications Act of 1996, upon which the FCC relies, with the express purpose of ensuring “the Internet and other interactive computer services,” remain “unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2); and (ii) the FCC concedes that “the Communications Act did not clearly resolve the issue of how broadband should be classified”; and (2) whether the FCC's reinterpretation of the term “public switched network” to include IP enabled services is, by virtue of implicating additional services, a minor or major question.
17-502 NCTA- The Internet and Television Association v. Federal Communications Commission (1) Whether it was arbitrary and capricious for the Federal Communications Commission to reverse long-standing policy without identifying and substantiating any actual changed circumstances or accounting for broadband providers’ massive reliance interests; (2) whether the FCC violated the Administrative Procedure Act by failing to give adequate notice of key aspects of the final order; and (3) whether the FCC exceeded its statutory authorization by reclassifying broadband as a “telecommunications service.”
17-501 CTIA-The Wireless Association v. Federal Communications Commission (1) Whether the Federal Communications Commission unlawfully reclassified broadband internet-access service as a “telecommunications service” under 47 U.S.C. § 153; and (2) whether the FCC unlawfully reclassified mobile broadband internet-access service as a “commercial mobile service” under 47 U.S.C. § 332.
17-500 American Cable Association v. Federal Communications Commission (1) Whether the Federal Communications Commission has statutory authority under the Telecommunications Act of 1996 to impose common-carrier regulation on internet-access service; and (2) whether the FCC's order below was arbitrary, capricious, an abuse of discretion, or undertaken without observance of the procedures required by law.
17-499 AT&T v. Federal Communications Commission (1) Whether the Federal Communications Commission has statutory authority to reclassify fixed and mobile broadband internet-access service as a “telecommunications service” subject to common-carrier regulation; and (2) whether the FCC has statutory authority to reclassify mobile broadband internet-access service as a “commercial mobile service” subject to common-carrier regulation.
17-498 Berninger v. Federal Communications Commission (1) Whether the Federal Communications Commission's assumption of gatekeeper power over new methods of communication, “in the most important place [] for the exchange of views. . . the ‘vast democratic forums of the Internet,’” violates the First Amendment; (2) whether the radical reinterpretation of the Communications Act of 1934 by the FCC is entitled to deference under Chevron U.S.A. v. Natural Resources Defense Counsel, Inc., and, if so, whether that deference violates Article I, § 1 of the Constitution; and (3) whether the FCC has statutory authority to promulgate the Open Internet Order, vastly expanding regulation of the internet, in light of the policy enacted by Congress “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services [defined as services that provide access to the Internet], unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2).

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
22O149 Indiana v. Massachusetts Whether the Massachusetts Animal Law, which prohibits farmers both inside and outside of the state from selling certain food products in Massachusetts that are the “product of a covered animal that was confined in a cruel manner,” constitutes economic protectionism and extraterritorial regulation in violation of the Commerce Clause.
22O148 Missouri v. California (1) Whether the Egg Products Inspection Act, 21 U.S.C. § 1031 et seq., pre-empts the California regulations that require eggs shipped to California to comport with different standards of quality, condition, weight, quantity, or grade which are in addition to and different from the EPIA; and (2) whether the California regulations constitute a protectionist measure in violation of the Commerce Clause.
17-1406 Republic of Sudan v. Opati (1) Whether the term “extrajudicial killing” means a summary execution by state actors, as is consistent with international law and the statutory text, context and purpose of 28 U.S.C. § 1605A(a); (2) whether foreign sovereign immunity may be withdrawn for emotional distress claims brought by family members of victims under 28 U.S.C. § 1605A(a)(2)(A)(ii); (3) whether 28 U.S.C. § 1605A(c) provides the exclusive remedy for actions brought under 28 U.S.C. § 1605A(a), and forecloses state substantive causes of action previously asserted through the “pass-through” provision of 28 U.S.C. § 1606; (4) whether the statute of limitations contained in 28 U.S.C. § 1605A(b) is jurisdictional in nature and, if it is not, whether the U.S. Court of Appeals for the District of Columbia Circuit should nonetheless have heard Sudan’s limitations defense asserted through its timely, direct appeal; and (5) whether the undisputed fact of civil war, internal strife and partitioning of Sudan into two counties constitutes excusable neglect or extraordinary circumstances for vacatur under Rule 60(b) of the Federal Rules of Civil Procedure.
17-1301 Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation (1) Whether the tribal remedies exhaustion doctrine, which requires federal courts to stay cases challenging tribal jurisdiction until the parties have exhausted parallel tribal court proceedings, applies to state courts; and (2) whether the tribal remedies exhaustion doctrine requires that nontribal courts yield to tribal courts when the parties have not invoked the tribal court’s jurisdiction.
17-1285 Association des Éleveurs de Canards et d’Oies du Québec v. Becerra (1) Whether a state’s ban on the sale of wholesome, federally approved poultry products based on the state’s disapproval of the way in which the poultry ingredient was produced imposes an “ingredient requirement” in addition to or different than those in the Poultry Products Inspection Act; and (2) whether Congress has pre-empted the field of poultry-product ingredients, as the U.S. Courts of Appeals for the 5th and 6th Circuits have long held — or not, as the U.S. Court of Appeals for the 9th Circuit has just held.
17-1268 Opati v. Republic of Sudan (1) Whether a party who knowingly and intentionally twice defaults; acts to delay, and not in good faith; and affirmatively elects not to contest a nonjurisdictional legal issue before judgment may nevertheless demonstrate “extraordinary” and “exceptional” circumstances warranting appellate review of the forfeited nonjurisdictional legal issue post-judgment; and (2) whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.
17-1237 Osage Wind, LLC v. Osage Mineral Council (1) Whether a court of appeals has jurisdiction over an appeal filed by a nonparty when the nonparty did not participate in any capacity in the district court proceedings; and (2) whether the U.S. Court of Appeals for the 10th Circuit improperly invoked the Indian canon of construction to deprive surface-estate owners who are members or successors-in-interest to Indian tribe members of important property rights by overriding clear regulatory language for the express purpose of favoring the economic interests of an Indian tribe without examining congressional intent.
17-1236 Sudan v. Owens (1) Whether plaintiffs suing a foreign state bear a “lighter burden” in establishing the facts necessary for jurisdiction than in proving a case on the merits despite the Supreme Court’s holding to the contrary — at the urging of the Solicitor General and the Department of State — in Venezuela v. Helmerich & Payne International Drilling Co.; (2) whether plaintiffs suing a foreign state can establish facts necessary for jurisdiction “based solely upon” the opinion testimony of so-called “terrorism experts,” when the record lacks admissible factual evidence sufficient to establish jurisdiction; and (3) whether plaintiffs’ failure to prove a foreign state “either specifically intended or directly advanced” a terrorist attack is “irrelevant to proximate cause and jurisdictional causation,” when (i) the Foreign Sovereign Immunities Act’s “terrorism exception” establishes jurisdiction over a foreign state only when the foreign state provided material support “for” a specified act of terrorism, and (ii) proximate causation requires a “direct relationship” between the defendant’s conduct and the resultant injury.
17-1183 Airline Service Providers Association v. Los Angeles World Airports Whether the “market participant” exception to federal pre-emption allows a state or local government to impose an otherwise pre-empted rule on private companies even if the government is not procuring any good or service from them.
17-1165 de Csepel v. Republic of Hungary Whether a foreign state itself is immune from suit in the United States in a case in which rights in property taken in violation of international law are at issue, the property is located outside the United States, the property is owned or operated by an agency or instrumentality of the foreign state, and that agency or instrumentality is engaged in commercial activity in the United States.
17-938 City of Cibolo, Texas v. Green Valley Special Utility District (1) Whether “[t]he service” protected by 7 U.S.C. § 1926(b) – which provides that a rural utility association that receives a federal loan for water or wastewater infrastructure enjoys monopoly protection for “[t]he service provided or made available” by the association during the term of the loan – refers to the service funded by the federal law, as the U.S. Court of Appeals for the 8th Circuit has held, or to all services provided by a federal loan recipient, as the U.S. Court of Appeals for the 5th Circuit held in this case; and (2) whether an association seeking to demonstrate that it has “provided or made available” a protected “service” must show that the service is being or can promptly be furnished, as the U.S. Court of Appeals for the 4th, 6th, 8th and 10th Circuits have held, or need only show that it has a legal duty under state law to provide that service, as the U.S. Court of Appeals for the 5th Circuit has held.
17-936 Gilead Sciences v. U.S. ex rel. Campie Whether a False Claims Act allegation fails when the government continued to approve and to pay for products after learning of alleged regulatory infractions and the pleadings offer no basis for overcoming the strong inference of immateriality that arises from the government's response.
17-834 Kansas v. Garcia (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) if IRCA bars the states from using all such information for any purpose, whether Congress has the constitutional power to so broadly pre-empt the states from exercising their traditional police powers to prosecute state law crimes.
17-667 Pioneer Centres Holding v. Alerus Financial Whether a plaintiff bears the full burden of establishing loss causation under 29 U.S.C. § 1109(a), which allows an employee plan to recover for “any losses to the plan resulting from [a fiduciary's] breach of its duties” under ERISA, as the U.S. Courts of Appeals for the 6th, 9th, 10th, and 11th Circuits have held, or whether the burden shifts to the fiduciary to establish the absence of loss causation once the beneficiary makes a prima facie case by establishing breach of fiduciary duty and associated loss, as the U.S. Courts of Appeals for the 2nd, 4th, 5th, and 8th Circuits have held.
Term Snapshot
Awards