Petitions We’re Watching

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Petitions We're Watching
Docket Case Page Issue(s)
16-1137 616 Croft Ave., LLC v. City of West Hollywood Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management District, Dolan v. City of Tigard and Nollan v. California Coastal Commission.
16-1146 A Woman’s Friend Pregnancy Resource Clinic v. Becerra (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court's decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious non-profits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.
17-178 American Humanist Association v. Birdville Independent School District Whether the establishment clause is violated when a school district subjects its students to prayers at school board meetings.
16-1220 Animal Science Products v. Hebei Welcome Pharmaceutical Co. Ltd. (1) Whether the U.S. Court of Appeals for the 2nd Circuit, in conflict with the decisions of three courts of appeals, erred in exercising jurisdiction under 28 U.S.C. § 1291 over a pre-trial order denying a motion to dismiss following a full trial on the merits; (2) whether a court may exercise independent review of an appearing foreign sovereign's interpretation of its domestic law (as held by the U.S. Courts of Appeals for the 5th, 6th, 7th, 11th and District of Columbia Circuits), or whether a court is “bound to defer” to a foreign government's legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the U.S. Court of Appeals for the 9th Circuit); and (3) whether a court may abstain from exercising jurisdiction on a case-by-case basis, as a matter of discretionary international comity, over an otherwise valid Sherman Antitrust Act claim involving purely domestic injury.
17-168 Antonick v. Electronic Arts (1) Whether, to determine infringement between original and allegedly infringing works of computer code, it is sufficient that the jury, assisted by expert testimony, finds the copyrightable elements to be substantially similar, or conversely, as the U.S. Court of Appeals for the 9th Circuit held, whether expert testimony is prohibited simply because juries assess infringement from the perspective of the “ordinary reasonable person”; and (2) whether, in a case involving computer code where access to the original work is conceded, other reliable proof demonstrates the content, and the defendant does not object under the Federal Rules of Evidence, the factfinder can determine that copying took place, or conversely, as the U.S. Court of Appeals for the 9th Circuit held, whether the Copyright Act mandates that the original and infringing works be in evidence at trial.
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.
16-1369 Arizona v. Bahr Whether the U.S. Court of Appeals for the 9th Circuit erred in holding, in conflict with the U.S. Court of Appeals for the 5th Circuit, that the Environmental Protection Agency's interpretation of the Clean Air Act's contingency measures provision, 42 U.S.C. § 7502(c)(9), was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.
17-99 Board of Commissioners of the Southeast Louisiana Flood Protection Authority – East v. Tennessee Gas Pipeline Company, LLC (1) Whether the “substantial[ity]” and “federal-state balance” requirements of Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing are satisfied whenever a federal law standard is referenced to inform the standard of care in a state-law cause of action, so long as the parties dispute whether federal law embodies the asserted standard; and (2) whether a federal court applying Grable to a case removed from state court must accept a colorable, purely state-law claim as sufficient to establish that the case does not “necessarily raise” a federal issue, even if the court believes the state court would ultimately reject the purely state-law basis for the claim on its merits.
16-1180 Brewer v. Arizona Dream Act Coalition (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in creating an immigration-specific rule under which state police power regulations that “arrang[e]” federal immigration classifications are pre-empted, even if pre-emption was not “the clear and manifest purpose of Congress”; and (2) whether the 9th Circuit erred in assuming that the Deferred Action for Childhood Arrivals program, an executive-branch policy of non-enforcement, was valid “federal law” capable of pre-empting a state police power regulation.
17-321 Christensen v. Tennessee Whether a private citizen has the right to revoke a law enforcement officer's implied license to enter property to conduct a knock-and-talk by placing a “No Trespassing” sign on their property.
16-1043 Clark v. Virginia Department of State Police (1) Whether, by enacting 38 U.S.C. § 4323(b)(2) in 1998, Congress lawfully subjected state employees to suit in state court under the Uniformed Services Employment and Reemployment Rights Act of 1994 pursuant to a valid exercise of Congress’s war powers that was consistent with the framework and design of the Constitution; (2) whether Congress lawfully abrogated any sovereign immunity the Virginia Department of State Police purportedly retained with respect to USERRA actions in state court when Congress enacted 38 U.S.C. § 4323(b)(2); and (3) whether the Supreme Court of Virginia erroneously affirmed the Circuit Court of Chesterfield County's decision to sustain the Virginia Department of State Police's amended special plea of sovereign immunity and dismiss petitioner's complaint.
16-1548 Cleaton v. Department of Justice Whether a federal law enforcement officer is “convicted” within the meaning of 5 U.S.C. § 7371 when a guilty plea has been entered but no sentence has been imposed, no judgment has been issued, and the plea can still be withdrawn.
17-40 Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians Whether, when, and to what extent the federal reserved right doctrine recognized in Winters v. United States, pre-empts state-law regulation of groundwater.
17-42 Desert Water Agency v. Agua Caliente Band of Cahuilla Indians (1) Whether the U.S. Court of Appeals for the 9th Circuit's standard for determining whether a federal reserved water right impliedly exists—that the right impliedly exists if the reservation purpose “envisions” the use of water—conflicts with the standard established by the Supreme Court in United States v. New Mexico, which the petitioners contend held that a federal reserved water right impliedly exists only if the reservation of water is “necessary” to accomplish the primary reservation purposes and prevent these purposes from being “entirely defeated"; (2) whether the reserved rights doctrine applies to groundwater; and (3) whether the Agua Caliente Band of Cahuilla Indians has a reserved right in groundwater, and in particular whether the Tribe's claimed reserved right is “necessary” to primary reservation purposes under the New Mexico standard in light of the fact that the Tribe has the right to use groundwater under California law.
17-193 Dunn v. Madison (1) Whether the Supreme Court's precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.
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.
17-370 Evans v. Georgia Regional Hospital Whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination “because of . . . sex” encompasses discrimination based on an individual's sexual orientation.
17-184 Great Plains Lending, LLC v. Consumer Financial Protection Bureau Whether a generally applicable federal statute, which is silent as to its applicability to Indian Tribes, should nevertheless be presumed to apply to Indian Tribes.
17-278 Ho v. ReconTrust Co. Whether entities conducting foreclosure-related activities, including notifying borrowers that their homes will be sold unless payment is made, are subject to the Fair Debt Collection Practices Act's general restrictions on “debt collectors.”
17-163 Jarreau v. South Lafourche Levee District Whether the government must pay compensation under the just compensation clause of the Fifth Amendment when the condemnation of real property inevitably destroys the value of a business as a going concern—as the high courts of Minnesota, Nevada, New Mexico, and Pennsylvania have held—or whether property owners are entitled to such compensation only if the government directly takes the business itself—as the court below held, joining the U.S. Court of Appeals for the Federal Circuit and the highest courts of the District of Columbia, Montana, and Wisconsin.
17-301 Kenosha Unified School District No. 1 Board of Education v. Whitaker (1) Whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is sex stereotyping that constitutes discrimination “based on sex” in violation of Title IX; and (2) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is a sex-based classification triggering heightened scrutiny under an Equal Protection analysis.
16-1468 Kernan v. Cuero Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.
17-375 Kokocinski v. Collins (1) Whether a federal court of appeals reviews de novo a district court's dismissal with prejudice of a shareholder-derivative action based on a special litigation committee's recommendation, as the U.S. Courts of Appeals for the 1st, 2nd, 5th, 6th, and 9th Circuits have held, or for an abuse of discretion, as held by the U.S. Courts of Appeals for the 8th and 11th Circuits; (2) whether a federal court of appeals reviews an appeal from a Federal Rule of Civil Procedure 23.1 order in a derivative action de novo, as the U.S. Courts of Appeals for the 1st, 2nd, 6th, and 7th Circuits have held, or for an abuse of discretion, as held by the U.S. Courts of Appeals for the 3rd, 8th, 9th, 10th, 11th, and D.C. Circuits; and (3) whether a plaintiff in a shareholder-derivative action is entitled to discovery before the court rules on a special litigation committee's motion to dismiss.
17-127 Kolbe v. Hogan (1) Whether District of Columbia v. Heller excludes the most popular semiautomatic rifles and magazines from Second Amendment protection; and (2) whether they may be banned even though they are typically possessed for lawful purposes, including self-defense in the home.
16-1519 Lagos v. U.S. Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.
16-1215 Lamar, Archer & Cofrin, LLP v. Appling Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor's ... financial condition” within Section 523(a)(2) of the Bankruptcy Code.
17-313 Ledezma-Cosino v. Sessions Whether, when assessing a statute under rational basis review, a court must consider both the ultimate effect of the statute and the statutory means by which it achieves that effect, or whether a court must look only at the ultimate effect of the statute; and (2) whether the habitual drunkard provision of 8 U.S.C. § 1101(f) is unconstitutionally vague.
17-132 Lindsey v. Virginia Whether the jury instruction—that the defendant’s actions were “evidence of [the requisite intent] . . . unless there is believable evidence to the contrary”—violated due process by shifting to the defendant the burden of producing "believable evidence" to show that he lacked the requisite intent.
16-1153 Livingwell Medical Clinic v. Becerra (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.
17-21 Lozman v. City of Riviera Beach, Florida Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.
17-130 Lucia v. Securities and Exchange Commission Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.
16-1524 M-I, LLC v. Syed (1) Whether an “informational injury” satisfies the article III standing requirement of real-world harm articulated in Spokeo v. Robins, where the plaintiff alleges at most a bare procedural violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681b; and (2) whether a bare procedural violation of a statute may be deemed “willful”—i.e. knowing and reckless—under Safeco Insurance Company of America v. Burr, where no risk of harm resulted from the alleged violation.
17-85 McCarthan v. Collins Whether a person in federal custody is entitled to file an application for habeas corpus under 28 U.S.C. § 2241 because a 28 U.S.C. § 2255 motion is “inadequate or ineffective” to permit him to raise a claim that his conviction or sentence is invalid under an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court.
17-212 Nagelvoort v. U.S. Whether completely severing ties with an organization engaged in a conspiracy constitutes “affirmative action . . . to disavow or defeat the purpose” of the conspiracy that establishes withdrawal from the conspiracy.
16-1140 National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.
17-340 New Prime v. Oliveira (1) Whether a dispute over applicability of the Federal Arbitration Act's Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA's Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.
16-1456 Opalinski v. Robert Half Int'l Whether, where an arbitration agreement does not expressly refer to class arbitration, the determination of whether class arbitration is permitted by the agreement is a question of arbitrability for the court to decide or a question of interpretation and procedure for the arbitrator to decide.
17-57 Pacific Gas and Electric Company v. U.S. (1) Whether sales of energy through centralized market exchanges form direct contractual privity between buyers of that energy and the federal agencies selling it, such that the Court of Federal Claims has jurisdiction over a suit to recover overcharges from the federal agencies; and (2) whether petitioners were in privity with the federal power marketing agencies for those sales because the energy exchanges acted as the parties' agents in facilitating their transactions.
17-320 Perfect 10 v. Giganews (1) Whether the U.S. Court of Appeals for the 9th Circuit correctly held—in conflict with the U.S. Courts of Appeals for the 2nd, 6th, 7th, and 8th Circuits—that a defendant “profits from” direct infringement for purposes of vicarious copyright liability only if a plaintiff proves that its work, as opposed to the totality of the infringing content offered by defendants, was the reason customers were drawn to the defendant's business; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held—contrary to the decisions of the Supreme Court—that a defendant does not engage in direct copyright infringement when it displays, reproduces, or distributes infringing material, so long as that conduct is accomplished through an automated process.
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.
17-241 Reyes v. Sessions Whether the U.S. Court of Appeals for the 9th Circuit erred in deferring to the Board of Immigration Appeals' interpretation of the term “particular social group” from the Immigration and Nationality Act under Chevron U.S.A., Inc. v. Natural Resources Defense Council.
16-970 Rinehart v. California Whether the Supreme Court of California erred in holding, in conflict with decisions of the U.S. Courts of Appeals for the 8th and Federal Circuits and the Colorado Supreme Court, that the Mining Law of 1972, as amended, does not pre-empt state bans of mining on federal lands despite being “an obstacle to the accomplishment and execution of the full purposes and objectives” of that law.
17-95 S.S. v. Colorado River Indian Tribes (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1912(d) and 1912(f), applies in a private severance action initiated by one birth parent against the other birth parent of an Indian child; and (2) whether, if the sections apply in such an action, this de jure discrimination and separate-and-substandard treatment of Indian children violate the due process and equal protection guarantees of the Fifth and Fourteenth Amendments.
17-368 Salt River Project Agricultural Improvement and Power District v. SolarCity Corp. Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.
16-1102 Samsung Electronics Co., Ltd. v. Apple Inc. (1) Whether the court's decisions in Graham v. John Deere Co. and KSR International Co. v. Teleflex Inc. require a court to hold patents obvious as a matter of law under 35 U.S.C. § 103 where the patents make at most trivial advances over technologies well-known to a person of skill in the art; (2) whether the court's decision in eBay Inc. v. MercExchange, L.L.C. requires application of the four-factor test for injunctions in accordance with traditional equitable principles, and therefore requires more than merely “some connection” between an infringing feature and asserted irreparable harm to support issuance of an injunction for patent infringement; and (3) whether the court's decision in Warner-Jenkinson Co. v. Hilton Davis Chemical Co. requires evidence that an accused product meets all elements of the relevant claim to support entry of a judgment of patent infringement.
16-1546 Scott v. Maryland State Department of Labor Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process even without a showing of good cause, as the U.S. Court of Appeals for the 2d, 3d, 5th, 7th, 8th, 9th, 10th, 11th, and D.C. Circuits have held, and as the Supreme Court has interpreted, or whether the district court lacks such discretion, as the U.S. Court of Appeals for the 4th Circuit has squarely held and as the U.S. Court of Appeals for the 6th Circuit has repeatedly suggested.
17-342 Silvester v. Becerra (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly applied lenient scrutiny in a Second Amendment challenge to the application of California's full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit's concerted resistance to and disregard of the Supreme Court's Second Amendment decisions.
16-1071 Sokolow v. Palestine Liberation Organization Whether the Fifth Amendment's due process clause precludes federal courts from exercising personal jurisdiction in this suit by American victims of terrorist attacks abroad carried out by the Palestinian Authority and the Palestine Liberation Organization.
17-250 Stein v. U.S. Whether the Due Process Clause excuses the government's knowing use of false testimony where the government does not also suppress evidence indicating that the testimony was false.
16-1432 Sveen v. Melin Whether the application of a revocation-upon-divorce statute to a contract signed before the statute's enactment violates the contracts clause.
17-294 Thompson v. Park Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that evidence can be material for purposes of a 42 U.S.C. § 1983 claim alleging deprivation of compulsory process or denial of a fair trial when the defendant was acquitted at trial.
17-346 Touchet v. Estis Well Service, LLC (1) Whether seamen may recover punitive damages for their employer's willful and wanton breach of the general maritime law duty to provide a seaworthy vessel, as held by the Washington Supreme Court and the U.S. Courts of Appeals for the 9th and 11th Circuits; or whether punitive damages are categorically unavailable in an action for unseaworthiness, as held by the U.S. Courts of Appeals for the 1st, 5th, and 6th Circuits and the Texas Supreme Court; and (2) whether the Jones Act, 46 U.S.C. § 30104, “prohibits the recovery of punitive damages in action under that statute,” a question explicitly left open by the Supreme Court in Atlantic Sounding Co., Inc. v. Townsend.
17-312 U.S. v. Sanchez-Gomez (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in asserting authority to review respondents' interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents' individual claims were moot; and (2) whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the Fifth Amendment forbids the U.S. Marshals Service for the Southern District of California, with the approval of district judges in that high-volume jurisdiction, from implementing a policy of placing pretrial detainees in physical restraints during non-jury court proceedings.
16-1275 Virginia Uranium v. Warren Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings).
16-1498 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.
16-1011 WesternGeco LLC v. ION Geophysical Corp. Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases where patent infringement is proven under 35 U.S.C. § 271(f).
17-270 White v. U.S. Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as “other proceedings concerning the defendant” under 18 U.S.C. § 3161(h)(1), as four circuits hold; or whether such time is excludable only if the district court makes case-specific “ends of justice” findings under 18 U.S.C. § 3161(h)(7), as four other circuits hold.
16-1274 Xue v. Sessions (1) Whether an asylum applicant suffers “persecution” under 8 U.S.C. § 1101(a)(42)(A) if he or she is forced to practice his or her religion in secret in order to avoid state-imposed punishment; and (2) whether a court of appeals reviews the Board of Immigration Appeals' determination regarding the existence of persecution de novo (as a question of law) or for substantial evidence (as a question of fact), where all the underlying facts giving rise to the claim of persecution are undisputed.
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