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October Term 2018

View this list sorted by case name.

October Sitting

Weyerhaeuser Company v. U.S. Fish and Wildlife Service, No. 17-71 [Arg: 10.1.2018]

Issue(s): (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.
Mount Lemmon Fire District v. Guido, No. 17-587 [Arg: 10.1.2018]

Issue(s): Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.
Gundy v. U.S., No. 17-6086 [Arg: 10.2.2018]

Issue(s): Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.
Madison v. Alabama, No. 17-7505 [Arg: 10.2.2018]

Issue(s): (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.
New Prime Inc. v. Oliveira, No. 17-340 [Arg: 10.3.2018]

Issue(s): (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.
Knick v. Township of Scott, Pennsylvania, No. 17-647 [Arg: 10.3.2018]

Issue(s): (1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.
U.S. v. Stitt, No. 17-765 [Arg: 10.9.2018]

Issue(s): 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).
U.S. v. Sims, No. 17-766 [Arg: 10.9.2018]

Issue(s): 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).
Stokeling v. U.S., No. 17-5554 [Arg: 10.9.2018]

Issue(s): Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
Nielsen v. Preap, No. 16-1363 [Arg: 10.10.2018]

Issue(s): Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.
Air and Liquid Systems Corp. v. Devries, No. 17-1104 [Arg: 10.10.2018]

Issue(s): Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.

Cases Not (Yet) Set for Argument

Garza v. Idaho, No. 17-1026

Issue(s): Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when 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.
Nieves v. Bartlett, No. 17-1174

Issue(s): Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.
Washington State Department of Licensing v. Cougar Den Inc., No. 16-1498

Issue(s): 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.
Virginia Uranium v. Warren, No. 16-1275

Issue(s): 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.
Biestek v. Berryhill, No. 17-1184

Issue(s): 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.
BNSF Railway Company v. Loos, No. 17-1042

Issue(s): Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.
Timbs v. Indiana, No. 17-1091

Issue(s): Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
Sturgeon v. Frost, No. 17-949

Issue(s): Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over state, native corporation and private land physically located within the boundaries of the national park system in Alaska.
Bucklew v. Precythe, No. 17-8151

Issue(s): (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; (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; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.
Royal v. Murphy, No. 17-1107

Issue(s): 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).
Republic of Sudan v. Harrison, No. 16-1094

Issue(s): 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.
Obduskey v. McCarthy & Holthus LLP, No. 17-1307

Issue(s): Whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings.
Nutraceutical Corp. v. Lambert, No. 17-1094

Issue(s): 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.
Culbertson v. Berryhill, No. 17-773

Issue(s): 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.
Gamble v. U.S., No. 17-646

Issue(s): Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
Dawson v. Steager, No. 17-419

Issue(s): Whether the doctrine of intergovernmental tax immunity, as codified in 4 U.S.C. § 111, prohibits the state of West Virginia from exempting the retirement benefits of certain former state law-enforcement officers from state taxation without providing the same exemption for the retirement benefits of former employees of the United States Marshals Service. CVSG: 05/15/2018.
Fourth Estate Public Benefit Corp. v. Wall-Street.com, No. 17-571

Issue(s): 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.
Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290

Issue(s): Whether a state-law failure-to-warn claim is pre-empted when the Food and Drug Administration rejected the drug manufacturer's proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning. CVSG: 05/22/2018.
Franchise Tax Board of California v. Hyatt, No. 17-1299

Issue(s): Whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.
Apple v. Pepper, No. 17-204

Issue(s): Whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense. CVSG: 05/08/2018.
Lamps Plus Inc. v. Varela, No. 17-988

Issue(s): 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.
Frank v. Gaos, No. 17-961

Issue(s): 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.”
Jam v. Int'l Finance Corp., No. 17-1011

Issue(s): 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.
Herrera v. Wyoming, No. 17-532

Issue(s): 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.
Henry Schein Inc. v. Archer and White Sales Inc., No. 17-1272

Issue(s): 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.”
Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., No. 17-1229

Issue(s): 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.
Lorenzo v. Securities and Exchange Commission, No. 17-1077

Issue(s): 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.
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