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Petitions We’re Watching

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Featured Petitions

Docket Case Page Issue(s)
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 Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth Amendment’s due process and equal protection clauses.
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 respondent’s ten-year term of supervised released, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that 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.
17-1645 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..
17-1636 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 silences 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 Fourteenth 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 non-custodial 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.
17-1516 Evans v. U.S. (1) Whether the Supreme Court’s prior precedent applying the discretionary-function exception to the Federal Tort Claims Act to government employees acting on the operational level should be modified to accord with Justice Scalia’s concurring opinion in United States v. Gaubert; (2) whether the Supreme Court should resolve the circuit split regarding which party has the burden of proof under the discretionary-function exception to the Federal Tort Claims Act; and (3) whether Gaubert should be clarified to reaffirm that government policy, as applicable to the discretionary-function exception, may be established on a case-by-case basis and formed in partnership with a state government based on local conditions under that state’s statute, regulation or policy.
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 non-consensual, compulsory arbitration—thereby abrogating the workers’ rights to determine their own bargaining representative—without violating the due process and equal protection clauses of the Fourteenth 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 which 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)
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 District of Colombia 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 which 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 where 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.
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