Editor's Note :

Editor's Note :

The court will release orders from the March 16 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday and Wednesday.
On Monday the court hears oral argument in Sveen v. Melin. Amy Howe has our preview.

Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
16-317 Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held – contrary to several other courts of appeals – that the presumption against federal pre-emption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held – following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits – that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held – contrary to the Supreme Court's decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code – that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).
16-1363 Nielsen v. Preap Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.
16-9604 Sykes v. U.S. Whether Missouri's second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
17-225 Garco Construction v. Secretary of the Army Whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled.
17-251 Hidalgo v. Arizona (1) Whether Arizona's capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
17-467 Kisela v. Hughes (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife given Kisela's well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred—to the point of warranting summary reversal—in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.
17-654 Azar v. Garza Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.
17-682 Oliver v. McDaniels (1) Whether a one-sentence allegation of fact in the background section of a prisoner’s state court brief can be sufficient to exhaust a novel and complex federal constitutional double jeopardy claim; and (2) whether it is unreasonable to conclude that double jeopardy does not bar retrial, when the Supreme Court has repeatedly indicated that double jeopardy does not apply if the trial court lacks the power to enter a verdict.
17-742 Sause v. Bauer Whether the U.S. Court of Appeals for the 10th Circuit’s holding—granting qualified immunity to law-enforcement officers who stopped the petitioner from praying silently in her own home because there was no prior case law involving similar facts—conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.”
17-5684 Allen v. U.S. (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and, if so, whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.
17-6262 Gates v. U.S. Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.
17-6769 James v. U.S. Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.
17-6877 Robinson v. U.S. Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.
17-7245 Evans v. Mississippi Whether the death penalty, in and of itself, violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

Petitions Featured as Petition of the Day

Docket Case Page Issue(s)
17-1112 Connecticut v. Torres Whether the due process clause requires judicial prescreening of first time in-court identifications in criminal trials, and, if it does, what test applies for determining their admissibility.
17-1110 Slough v. U.S. (1) Whether private security guards contracted by the State Department to provide diplomatic security in Iraq, performing that State Department responsibility at the time of the charged offense conduct, are “employed by the Armed Forces outside the United States” under the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261(a)(1), 3267(1)(A); and (2) whether a trial court violates criminal defendants’ right to jury trial by removing the disputed issue of venue from the jury.
17-1108 Medical Devise Business Services v. U.S. ex rel. Nargol Whether the False Claims Act realtor can satisfy Federal Rule of Civil Procedure 9(b)’s particularity requirement without alleging details about any specific false claim.
17-1107 Royal v. Murphy Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).
17-1099 Coscia v. U.S. (1) Whether the “anti-spoofing” provision of the Dodd-Frank Act, 7 U.S.C. § 6c(a)(5)(C), is unconstitutionally vague; and (2) whether placing genuine open-market orders that could be and, in some instances, were executed can constitute commodity fraud under 18 U.S.C. § 1348(1) based solely on the trader’s purported intent in placing the orders.
17-1098 Parkinson v. Department of Justice Whether preference-eligible employees of the Federal Bureau of Investigation may raise whistleblower retaliation as an affirmative defense in proceedings before the Merit Systems Protection Board.
17-1095 Melton v. Phillips (1) Whether a law enforcement officer who recklessly or deliberately reports false information that is ultimately relied upon in a warrant application violates the Fourth Amendment; and (2) whether the law in this area was clearly established, such that an officer who violates the Fourth Amendment by recklessly or deliberately reporting false information later used in a warrant is not entitled to qualified immunity.
17-1091 Timbs v. Indiana Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
17-1090 Petro-Hunt, LLC v. U.S. (1) Whether the takings clause applies to the decisions of federal courts, and, if so, under what circumstances may federal courts review and remedy federal judicial takings claims; and (2) whether the Court of Federal Claims may adjudicate federal judicial takings claims against the United States when the remedy sought is just compensation and not invalidation of another federal court’s decision.
17-1089 Lake v. Skelton Whether county sheriffs in Georgia function as an arm of the state, and are thus entitled to Eleventh Amendment immunity, when they feed (or fail to properly feed) people detained in the county jail.
17-1084 Colorado v. Fuentes-Espinoza Whether, under principles of implied pre-emption, the federal Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., forbids states from enacting legislation to prohibit human smuggling.
17-1077 Lorenzo v. Securities and Exchange Commission Whether a misstatement claim that does not meet the elements set forth in Janus Capital Group, Inc. v. First Derivative Traders can be repackaged and pursued as a fraudulent scheme claim.
17-1058 SNR Wireless License Co. v. Federal Communications Commission Whether, and what, notice an agency must provide to regulated parties in order to provide proper administrative fair notice.
17-1042 BNSF Railway Company v. Loos Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.
17-1026 Garza v. Idaho Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.
17-1011 Jam v. Int'l Finance Corp. (1) Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11; and (2) whether, and what, rules govern the immunity to which international organizations are entitled if the IOIA does not afford the same immunity.
17-1009 Constitution Pipeline Company, LLC v. New York State Department of Environmental Conservation Whether a state’s denial of a federally-approved interstate natural gas pipeline’s request for certification under Section 401 of the Clean Water Act, 15 U.S.C. § 717b(d)(3), on the basis of purportedly receiving insufficient information regarding alternative routes for the interstate natural gas pipeline, exceeds the state’s limited authority under the Energy Policy Act of 2005 and the Natural Gas Act of 1938, interferes with the Federal Energy Regulatory Commission’s exclusive jurisdiction over the routing of interstate natural gas pipelines when consideration of alternative routes is explicitly not part of the state’s federally-approved water quality standards, and violates the fundamental principles of federal supremacy arising from the Constitution’s supremacy clause.
17-1005 Oath Holdings v. Ajemian Whether a court-appointed legal representative, such as an estate administrator, should be able to provide lawful consent under the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq., for the disclosure of private email messages stored in an online email account by a user who died without a will or any other indication of actual consent.
17-991 Long v. Pfister Whether there are exceptions to the Supreme Court’s ruling in Napue v. Illinois that would allow a criminal defendant to be convicted based on perjury that the prosecution fails to correct.
17-986 IQ Products Co. v. WD-40 Co. Whether a court must grant a motion to compel arbitration of the gateway question of arbitrability even where a contract containing an arbitration clause is unrelated to the parties’ instant dispute, or whether the court should deny the motion where the arbitrability argument is “wholly groundless.”
17-982 Teixeira v. Alameda County, California (1) Whether, when Second Amendment claims are suitable for means-ends scrutiny, courts must apply some form of heightened scrutiny, or might rational-basis review suffice; and (2) whether the Second Amendment secures a right to sell firearms.
17-976 CTIA-The Wireless Association v. City of Berkeley, California (1) Whether–when the Supreme Court held in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio that an exception allowing for less rigorous review applies when the government seeks to combat misleading commercial speech by requiring (as an alternative to restricting speech) the disclosure of “purely factual and uncontroversial information” that is not “unduly burdensome” and is “reasonably related to the state’s interest in preventing deception of consumers”–this reduced standard of scrutiny of compelled commercial speech applies beyond the need to prevent consumer deception; and (2) whether, when the Zauderer standard applies, it is sufficient that the compelled speech be: factually accurate, even if controversial and, when read as a whole, potentially misleading; and merely reasonably related to any non-“trivial” governmental interest.
17-975 Total Gas & Power North America v. Federal Energy Regulatory Commission Whether forcing an entity to defend claims for civil liability and penalties in an ultra vires agency proceeding, when “exclusive jurisdiction” of those claims lies in federal district court, presents a ripe case or controversy under Article III and the Declaratory Judgment Act as to the proper forum for adjudication.
17-972 Nordyke v. Howmedica Osteonics Corp. Whether the Supreme Court's decision in Atlantic Marine Construction Corp. v. United States District Court supplants the traditional transfer of venue analysis under 28 U.S.C. § 1404(a) where some, but not all, parties to a litigation have agreed to a forum-selection clause.
17-952 Wyoming v. Sam Whether, when a juvenile is sentenced for murder and other violent crimes, the Eighth Amendment limits a judge to sentencing the juvenile to an aggregate term of years that allows a meaningful opportunity for release even though none of the separate sentences are cruel and unusual.
17-951 Vitol S.A. v. Autoridad de Energia Electrica de Puerto Rico Whether the rule espoused in Steel Company v. Citizens for a Better Environment, which held that a federal court generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction over the matter, is limited to Article III jurisdictional disputes, as the U.S. Court of Appeals for the 1st Circuit and other circuits have held, or whether it applies to statutory as well as Article III jurisdictional disputes, as the U.S. Court of Appeals for the 11th Circuit and other circuits have held.
17-950 Ulbricht v. U.S. (1) Whether the warrantless seizure of an individual’s internet traffic information without probable cause violates the Fourth Amendment; and (2) whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.
17-942 R. K. B. v. E. T. Whether the Indian Child Welfare Act defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
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.
17-935 Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley Whether the undue burden test established in Whole Woman's Health v. Hellerstedt and Planned Parenthood of Southeastern Pennsylvania v. Casey entitles a court to preliminarily enjoin a state abortion law—which mandates a “contracted physician” with hospital admitting privileges that effectively bans medication abortion, offers no discernible medical benefit, and leaves only one remaining abortion provider hundreds of miles away from significant population centers—without making a concrete estimate of the number of women who would be prevented or postponed in having an abortion.
17-913 D. T. v. W. G. Whether the 14th Amendment gives adoptive parents the same right as biological parents to direct the upbringing of their children.
17-912 Bostic v. Dunbar Whether, when the Supreme Court held in Graham v. Florida that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide,” states can bypass that rule by sentencing a juvenile offender who did not commit homicide to a term-of-years sentence under which he will die in prison, because he will not be eligible for parole until he is 112 years old.
17-904 Loudoun County, Virginia v. Dulles Duty Free, LLC (1) Whether the validity under the import-export clause of a non-discriminatory local business license tax calculated on the basis of gross receipts should be evaluated using the Supreme Court's approach in Michelin Tire Corp. v. Wages or in Richfield Oil Corp. v. State Board of Equalization; and (2) whether a local business license tax calculated based on gross receipts, which does not specifically target imports or exports, violates the import-export clause if some of the gross receipts include export sales.
17-900 Crane Co. v. Poage (1) Whether the due process clause requires appellate review that considers factors undermining the reasonableness of the punitive damages award; and (2) whether the due process clause prohibits a punitive damages award that is more than ten times a substantial compensatory damages award against a defendant who faces multiple suits arising from a single course of conduct.
17-887 Brown v. Brown Whether the Indiana procedure which allows trial-counsel Strickland v. Washington claims on direct appeal in one of two ways–defendants may assert the claims in their brief on direct appeal if they choose to make no further record in support of their claims or, if they wish to develop a record, defendants may suspend their direct appeal while they develop the factual record in the trial court–satisfies the Martinez-Trevino doctrine, which allows a federal habeas court to hear a substantial claim of ineffective assistance of trial counsel if a state denies a meaningful opportunity to raise the claim on direct appeal.
17-869 Davenport v. City of Sandy Springs, Georgia Whether the mootness of claims for prospective relief renders federal courts powerless to decide a claim for nominal damages.
17-862 Maricopa County, Arizona v. Villa Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which states that “the principal prosecuting attorney” of a state or locality may apply for an order authorizing the interception of wire, oral, or electronic communications, 18 U.S.C. § 2516(2), allows a principal prosecuting attorney to delegate the task of applying for such an order to a subordinate.
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.
17-830 Trent v. U.S. Whether the exclusion of testimony on the specific length of the mandatory minimum sentence faced by a cooperating witness violates a defendant's Sixth Amendment right to cross-examination.
17-818 Huertas v. U.S. Whether an individual can “submit” to an assertion of police authority—and thus become seized within the meaning of the Supreme Court's fourth amendment precedents—by complying temporarily before fleeing.
17-804 EVE-USA v. Mentor Graphics Corp. (1) Whether, and under what circumstances, assignors and their privies are free to contest a patent's validity; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred in holding that proof of but-for causation, without more, satisfies the requirement that damages be apportioned between patented and un-patented features.
17-781 Asboth v. Wisconsin Whether standardized criteria must guide police discretion to seize a vehicle without a warrant or probable cause after its operator has been taken into police custody.
17-779 Parker v. Montgomery County Correctional Facility Whether the “three strikes” provision of the federal in forma pauperis statute, 28 U.S.C. § 1915(g), bars a prisoner from appealing in forma pauperis a district court dismissal constituting a third strike.
17-778 Quarles v. U.S. Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.
17-773 Culbertson v. Berryhill Whether fees subject to 42 U.S.C. § 406(b)’s 25-percent cap related to the representation of individuals claiming Social Security benefits include, as the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits hold, only fees for representation in court or, as the U.S. Courts of Appeals for the 4th, 5th, and 11th Circuits hold, also fees for representation before the agency.
17-766 U.S. v. Sims Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
17-765 U.S. v. Stitt Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
17-749 Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.
17-747 Teva Pharmaceuticals USA v. Wendell (1) Whether the two-part standard of reviewing expert-admissibility rulings employed by the U.S. Court of Appeals for the 9th Circuit, along with the U.S. Courts of Appeals for the 3rd and 7th Circuits, improperly empowers these courts to reverse district court decisions to exclude evidence without “the deference that is the hallmark of abuse-of-discretion review"; and (2) whether an expert's qualifications and mere invocation of a scientific methodology can be sufficient to require admission of his testimony, as the U.S. Court of Appeals for the 9th Circuit concluded, or whether Federal Rule of Evidence 702 requires that a witness, no matter how qualified, must also satisfy the court that his methodology was “reliably applied to the facts of the case,” as several other circuits have held.
17-736 Blatt, Hasenmiller, Leibsker & Moore, LLC v. Oliva (1) Whether good faith reliance on controlling circuit precedent, prior to any retroactive change in that law, is an unintentional “bona fide error” and a procedure “reasonably adapted to avoid error” within the meaning of the “bona fide error” defense in the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(c); and (2) whether the due process clause prohibits punishment for conduct that was lawful when committed, but later prohibited by a retroactive change of law.
17-696 Gonzalez-Badillo v. U.S. Whether, upon obtaining general consent to search a bag or other area, law enforcement may, consistent with the Fourth Amendment, “pry open” or otherwise cause intentional damages to personal property found within that might reasonably hold the object of the search.
17-670 Stone v. Montana Whether the Fifth Amendment's protection from double jeopardy attaches when the court accepts a defendant's guilty plea.
17-667 Pioneer Centres Holding Company Stock Ownership Plan and Its Trustees v. Alerus Financial, N.A. 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.
17-659 All Nippon Airways v. Wortman (1) Whether the filed-rate doctrine—which the Supreme Court firmly established in Keogh v. Chicago & Northwest Railway Co. and reaffirmed in Square D Co. v. Niagara Frontier Tariff Bureau, Inc.—still applies where rates are filed with a federal agency pursuant to a statutory regulatory scheme (as held by the U.S. Courts of Appeals for the 1st, 2nd, and 7th Circuits), or whether it no longer applies to such rates if a court finds the agency lacks sufficient “practical ability” to regulate those rates (as held by the U.S. Court of Appeals for the 9th Circuit below); and (2) whether, and to what extent, the filed-rate doctrine applies where a federal agency retains regulatory authority over rates, but chooses to exercise that authority by establishing a regulatory system, which it periodically revisits and revises, that does not require each rate to be literally filed with the agency.
17-565 Rowan County, North Carolina v. Lund Whether legislative prayer delivered by legislators comports with the Supreme Court's decisions in Town of Greece v. Galloway and Marsh v. Chambers as the en banc U.S. Court of Appeals for the 6th Circuit has held, or does not, as the en banc U.S. Court of Appeals for the 4th Circuit has held.
17-540 Starr Int'l Company v. U.S. Whether a private party with Article III standing may be barred from asserting constitutional claims for money damages against the federal government because of the equitable doctrine of “third-party prudential standing.”
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).
17-202 Daleidan v. National Abortion Federation (1) Whether the U.S. Court of Appeals for the 9th Circuit erred by its unprecedented holding, in conflict with decisions of the U.S. Courts of Appeals for the 2nd and 4th Circuits, and the consistent teachings of the Supreme Court, that the First Amendment permits issuance of an injunction restraining the release of information of undisputed and legitimate public interest; and (2) whether the U.S. Court of Appeals for the 9th Circuit's application of the “abuse of discretion” standard on appeal in a case involving restrictions on First Amendment rights merits summary reversal.
16-1189 E.I. DuPont de Nemours and Co. v. Smiley (1) Whether the Fair Labor Standards Act prohibits an employer from using compensation paid to employees for non-compensable, bona fide meal breaks that it included in their regular rate of pay as a credit against compensation owed for work time; and (2) whether an agency's interpretation of a statute advanced for the first time in litigation is entitled to Skidmore v. Swift & Co. deference.
16-1180 Brewer v. Arizona Dream Act Coalition (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in creating an immigration-specific rule under which state police power regulations that “arrang[e]” federal immigration classifications are pre-empted, even if pre-emption was not “the clear and manifest purpose of Congress”; and (2) whether the 9th Circuit erred in assuming that the Deferred Action for Childhood Arrivals program, an executive-branch policy of non-enforcement, was valid “federal law” capable of pre-empting a state police power regulation. CVSG: 02/14/2018.
16-1071 Sokolow v. Palestine Liberation Organization Whether the Fifth Amendment's due process clause precludes federal courts from exercising personal jurisdiction in this suit by American victims of terrorist attacks abroad carried out by the Palestinian Authority and the Palestine Liberation Organization. CVSG: 02/22/2018.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
17-1060 U.S. ex rel. Carter v. Halliburton Co. (1) Whether, under the first-to-file bar of the False Claims Act, 31 U.S.C. § 3730(b)(5), later actions may proceed without refiling once all earlier action have been dismissed, or whether later actions must be dismissed and refiled; and (2) whether the first-to-file bar of the FCA is jurisdictional, and, if so, whether the bar applies only at the time of filing, or whether it may be lifted by amendment, supplement, or later events.
17-571 Fourth Estate Public Benefit Corp. v. Wall-Street.com Whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeal for the 5th and 9th Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the 10th and, in the decision below, the 11th Circuits have held.
17-532 Herrera v. Wyoming Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.
17-419 Dawson v. Steager Whether the Supreme Court's precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income.
17-204 Apple v. Pepper Whether consumers may sue anyone who delivers goods to them for antitrust damages, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.
16-1498 Washington Department of Licensing v. Cougar Den Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.
16-1275 Virginia Uranium v. Warren Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings).
16-1094 Republic of Sudan v. Harrison Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state's ministry of foreign affairs “via” or in “care of” the foreign state's diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
Term Snapshot