Editor's Note :

Editor's Note :

On Monday morning the court hears oral argument in Lucia v. Securities and Exchange Commission. Ronald Mann has our preview.
On Monday morning the court also hears oral argument in Pereira v. Sessions. Jennifer Chacon has our preview.
On Monday afternoon the court hears oral argument in Chavez-Meza v. United States. Susan Klein has our preview.

Briefly Mentioned :

Briefly Noted :

The Supreme Court will release orders from the April 20 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.

Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
17-646 Gamble v. U.S. Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
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.
17-742 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.”
17-961 Frank v. Gaos Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”
17-988 Lamps Plus Inc. v. Varela Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.
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.
17-5684 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.
17-6883 Trevino v. Davis Whether—when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim—it denied the petitioner due process.
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.
17-7517 Smith v. U.S. Whether the statement of general principle that a burglary of a vehicle is not generic burglary within the meaning of the Armed Career Criminal Act because vehicles are not buildings allows generic burglary status when the vehicle is a dwelling place.
17-8151 Bucklew v. Precythe (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Petitions Featured as Petition of the Day

Docket Case Page Issue(s)
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.
17-1184 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.
17-1183 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.
17-1180 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.
17-1179 American Economy Insurance Co. v. New York (1) Whether an amendment to state law violates the contracts clause of the U.S. Constitution when it transfers the substantial cost for certain claims under pre-existing insurance policies from employers to their insurance carriers, when those insurance policies reflect an agreement that the carriers would not cover those claims, when the carriers correspondingly pay premiums that do not account for those claims, and when the legislative basis for the new law is obviously false at the time of enactment; (2) whether an amendment to state law violates the due process clause of the U.S. Constitution when it transfers the substantial cost for certain claims under pre-existing state-approved insurance policies from employers to their insurance carriers, when those insurance policies reflect an agreement that the carriers would not cover those claims, when the carriers correspondingly accept state-approved premiums that do not account for the cost of such claims in reliance on the terms of those insurance policies and longstanding state law, and when the legislative basis for the new law is obviously false at the time of the enactment; and (3) whether an amendment to state law violates the takings clause of the U.S. Constitution when it transfers the substantial cost for certain claims under pre-existing state-approved insurance policies from employers to their insurance carriers, when those insurance policies reflect an agreement that the carriers would not cover those claims, when the carriers correspondingly accept state-approved premiums that do not account for the cost of such claims in reliance on the terms of those insurance policies and longstanding state law, and when the legislative basis for the new law is obviously false at the time of the enactment.
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.
17-1154 Coleman v. U.S. Whether a district court is required to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when determining a term of imprisonment for a defendant whose supervised release has been revoked pursuant to 18 U.S.C. § 3583(g).
17-1152 Contest Promotions, LLC v. City and County of San Francisco, California Whether the First Amendment permits a municipality to ban all signs, of any kind, advertising off-premises commercial activity, without making any showing that the ban furthers a substantial government interest in a direct, material and tailored way.
17-1142 Michigan Gaming Control Board v. Moody (1) Whether government licensees who were never charged with a crime can demonstrate a violation of a Fifth Amendment right to refuse to answer regulatory-related questions without threat of a regulatory penalty, unless they were offered immunity; and (2) whether the licensees demonstrated a violation of clearly established law as to a right against self-incrimination and as the due-process right to a timely post-exclusion hearing.
17-1136 The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church Whether the “neutral principles of law” approach to resolving church property disputes requires courts to recognize a trust on church property even if the alleged trust does not comply with the state’s ordinary trust and property law.
17-1136 The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church Whether the “neutral principles of law” approach to resolving church property disputes requires courts to recognize a trust on church property even if the alleged trust does not comply with the state’s ordinary trust and property law.
17-1130 Okechuku v. U.S. Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error.
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.
17-1107 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.
17-1091 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.
17-1086 Grede v. FCStone, LLC (1) Whether, in mass financial fraud bankruptcy and federal receivership cases, all victims of a debtor’s fraud should share equally in the distribution of commingled funds (a) without regarding to whether an individual creditor has attempted to pursue a trust remedy against such funds or has elected to rely on the trustee to recover and distribute the recovered funds equally to all creditors; and (b) even where “actual tracing” is possible; and (2) whether 11 U.S.C. § 546(e), which neither expressly nor implicitly pre-empts state law causes of action brought outside of bankruptcy cases, pre-empts a trustee from asserting a state law cause of action that is assigned to the trustee by creditors under the theory that the state law claim constitutes an “end run” around 11 U.S.C. § 546(e).
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.
17-1056 Quality Systems v. City of Miami Fire Fighters’ and Police Officers’ Retirement Trust Whether, or in what circumstances, a defendant must admit 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.
17-1042 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.
17-991 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.
17-952 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.
17-935 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.
17-912 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.
17-862 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.
17-830 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.
17-778 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).
17-565 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.
17-504 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)
17-1060 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.
17-936 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.
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). CVSG: 04/09/2018.
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.
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