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On Monday the Supreme Court will release orders from the June 21 conference at 9:30 a.m. and one or more opinions in argued cases at 10 a.m. We will live-blog at this link, where readers can sign up for an email reminder when the live blog begins.
We're hosting an online symposium on October Term 2017’s separation-of-powers and administrative-law decisions. Contributions are available at this link.

Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
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. CVSG: 05/22/2018.
16-1498 Washington State Department of Licensing v. Cougar Den Inc. 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. CVSG: 05/15/2018.
16-9541 Clark v. Louisiana (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.
17-108 Arlene’s Flowers Inc. v. Washington (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one's religious beliefs violates the free exercise clause.
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. CVSG: 05/15/2018.
17-425 Wass v. Idaho Whether, when an officer elicits an admission from a suspect without providing a Miranda warning, the admissibility of the suspect’s post-warning statement is governed by the objective, suspect-focused test adopted by the plurality opinion in Missouri v. Seibert, or the subjective, officer-focused test adopted by Justice Anthony Kennedy’s separate opinion in that case.
17-646 Gamble v. U.S. Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
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.”
17-1056 Quality Systems v. City of Miami Fire Fighters’ and Police Officers’ Retirement Trust Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.
17-1094 Nutraceutical Corp. v. Lambert Whether the U.S. Court of Appeals for the 9th Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules—such as Federal Rule of Civil Procedure 23(f), which establishes a 14-day deadline to file a petition for permission to appeal an order granting or denying class-action certification—and can excuse a party’s failure to file timely within the deadline specified by Federal Rule of Civil Procedure 23(f), in conflict with the decisions of the U.S. Courts of Appeals for the 2nd, 3rd, 4th, 5th, 7th, 10th and 11th Circuits.
17-1174 Nieves v. Bartlett Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.
17-1184 Biestek v. Berryhill Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.
17-1229 Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. Whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.
17-1269 Kumar v. Republic of Sudan Whether a service packet is “addressed and dispatched . . . to the head of the ministry of foreign affairs” of a foreign state, as required by 28 U.S.C. § 1608(a)(3), when the service packet is sent by registered mail to the head of the ministry of foreign affairs of the foreign state at the state’s embassy in the United States.
17-1272 Henry Schein Inc. v. Archer and White Sales Inc. Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”
17-1354 Gelhaus v. Estate of Andy Lopez (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.
17-1356 Kaushal v. Indiana (1) Whether, when a resident alien pleads guilty after incorrect advice by counsel as to clear immigration consequences and discovers the error prior to sentencing, a defendant must prove that he would have opted for trial had he been correctly advised when the sole remedy he seeks is to proceed to trial; (2) whether, when a defendant learns the immigration consequences three weeks after his guilty plea and promptly demands to go to trial, that adequately proves he would have opted for trial had he known the immigration consequences of his plea before he plead guilty; (3) whether the instant case represents a pattern of Indiana cases in which alien defendants who plead guilty while ignorant of the immigration consequences of their respective plea are unfairly denied their Sixth Amendment rights to effective assistance of counsel and trial by jury.
17-1364 North Carolina v. Covington (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.
17-5410 Tyler v. U.S. Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
17-5503 Ochoa v. U.S. (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.
17-6856 Bearcomesout v. U.S. Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.
17-7153 Jordan v. Mississippi (1) Whether incarcerating a prisoner awaiting execution for over four decades, even after the state found a life-without-parole sentence to be appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; and (2) whether incarcerating a prisoner awaiting execution for over four decades, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.
17-7177 Gordillo-Escandón v. U.S. Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.
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.
17-7793 Ramirez-Hidalgo v. U.S. Whether 18 U.S.C. § 16(b) violates the Constitution’s prohibition on vague criminal laws by requiring application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
17-8002 Sanders v. U.S. Whether the Supreme Court should overrule the “dual sovereignty” exception to the double jeopardy clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.

Petitions Featured as Petition of the Day

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.
17-1566 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.
17-1516 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.
17-1351 Greer v. Green Tree Servicing LLC Whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings.
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.
17-1314 Raza v. U.S. Whether, in a federal fraud prosecution involving a private victim, materiality turns on the misrepresentation’s ability to influence the actual decisionmaker to which it was addressed, as three circuits have held, or instead on its ability to influence a hypothetical “reasonable person,” as six circuits have held.
17-1307 Obduskey v. McCarthy & Holthus LLP Whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings.
17-1304 Vazquez v. Sessions Whether a conviction under a state criminal statute whose plain terms sweep in more conduct than a corresponding federal offense can be a categorical match with that federal offense.
17-1302 Nomura Securities Int'l Inc. v. Federal Housing Finance Agency (1) Whether the Housing and Economic Recovery Act of 2008, which extends “the applicable statute of limitations” for claims brought by the Federal Housing Finance Agency, displaces federal and state statutes of repose as well as statutes of limitations; and (2) whether the Seventh Amendment requires a claim under Section 12(a)(2) of the Securities Act to be tried to a jury.
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.
17-1300 Findlay v. Federal Housing Finance Agency (1) Whether the Seventh Amendment requires a claim under Section 12(a)(2) of the Securities Act to be tried by a jury when petitioners did not sell the relevant securities and never possessed any proceeds from those sales; and (2) whether the Housing and Economic Recovery Act of 2008, which extends “the applicable statute of limitations” for claims brought by the Federal Housing Finance Agency, displaces federal and state statutes of repose as well as statutes of limitations.
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.
17-1251 Casey v. U.S. Whether a court may grant a federal habeas petition collaterally challenging a sentence under Johnson v. United States, which held that a sentence enhanced under the “residual clause” of the Armed Career Criminal Act violated the Due Process Clause, when the sentencing judge never specified—and therefore the record is silent on—whether the petitioner’s original sentence was enhanced pursuant to the ACCA’s now-invalidated residual clause.
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.
17-1180 Union Pacific Railroad Co. v. Equal Employment Opportunity Commission (1) Whether the U.S. Court of Appeals for the 7th Circuit erred in holding, in conflict with decisions of the U.S. Court of Appeals for the 5th Circuit, that the Equal Employment Opportunity Commission may enforce a subpoena after the charging employee has initiated litigation, even after the charging employee’s claim has been adjudicated meritless in court; and (2) whether the U.S. Court of Appeals for the 7th Circuit erred by holding, in conflict with the decisions of the U.S. Courts of Appeals for the 10th and 11th Circuits, that a charge alleging only individual discrimination permits the EEOC to subpoena nationwide information about suspected discrimination against other employees in other employment practices.
17-1172 Dassey v. Dittmann Whether the Wisconsin Court of Appeals unreasonably applied the Supreme Court’s precedent when it held that a confession made by a juvenile with significant intellectual and social limitations was voluntary—and, if so, whether on de novo review the confession was involuntary.
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.
17-1164 Eastern Shoshone Tribe v. Wyoming Whether—when the Supreme Court has instructed that only Congress may diminish the boundaries of an Indian reservation, and only when its intent is clear and plain— Congress clearly intended in 1905 to diminish the Wind River Reservation in Wyoming, home to the Eastern Shoshone Tribe.
17-1159 Northern Arapaho Tribe v. Wyoming Whether—when the Supreme Court has instructed that only Congress may diminish the boundaries of an Indian reservation, and only when its intent is clear and plain—Congress evinced a clear and plain intent in the 1905 Act to diminish the Wind River Reservation by nearly two-thirds simply by using language of cession.
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. CVSG: 05/22/2018.
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.
17-571 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. CVSG: 05/16/2018.
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.
17-532 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. CVSG: 05/22/2018.
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).
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.

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.
17-1285 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.
17-938 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.
17-804 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.
17-667 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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