October Term 2018

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Merits cases (to be) decided during OT 2018
Air and Liquid Systems Corp. v. DeVries, No. 17-1104 [Arg: 10.10.2018 Trans./Aud.]

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.
Apple Inc. v. Pepper, No. 17-204 [Arg: 11.26.2018 Trans./Aud.]

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.
Azar v. Allina Health Services, No. 17-1484 [Arg: 1.15.2019]

Issue(s): Whether 42 U.S.C. § 1395hh(a)(2) or § 1395hh(a)(4) required the Department of Health and Human Services to conduct notice-and-comment rulemaking before providing the challenged instructions to a Medicare administrative contractor making initial determinations of payments due under Medicare.
Biestek v. Berryhill, No. 17-1184 [Arg: 12.4.2018 Trans./Aud.]

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 [Arg: 11.6.2018 Trans./Aud.]

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.
Bucklew v. Precythe, No. 17-8151 [Arg: 11.6.2018 Trans./Aud.]

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.
Carpenter v. Murphy, No. 17-1107 [Arg: 11.27.2018 Trans./Aud.]

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).
Cochise Consultancy Inc. v. U.S., ex rel. Hunt, No. 18-315

Issue(s): Whether a relator in a False Claims Act qui tam action may rely on the statute of limitations in 31 U.S.C. § 3731(b)(2) in a suit in which the United States has declined to intervene and, if so, whether the relator constitutes an “official of the United States” for purposes of Section 3731(b)(2).
Culbertson v. Berryhill, No. 17-773 [Arg: 11.7.2018 Trans./Aud.]

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.
Dawson v. Steager, No. 17-419 [Arg: 12.3.2018 Trans./Aud.]

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.
Flowers v. Mississippi, No. 17-9572

Issue(s): Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky in this case.
Fourth Estate Public Benefit Corp. v. Wall-Street.com, No. 17-571 [Arg: 1.8.2019]

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.
Franchise Tax Board of California v. Hyatt, No. 17-1299 [Arg: 1.9.2019]

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.
Frank v. Gaos, No. 17-961 [Arg: 10.31.2018 Trans./Aud.]

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.”
Gamble v. U.S., No. 17-646 [Arg: 12.6.2018 Trans./Aud.]

Issue(s): Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
Garza v. Idaho, No. 17-1026 [Arg: 10.30.2018 Trans./Aud.]

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.
Gray v. Wilkie, No. 17-1679

Issue(s): Whether the U.S. Court of Appeals for the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting the Department of Veteran Affairs’ definitive interpretation of its own regulation, even if the VA chooses to promulgate that rule through its adjudication manual.
Gundy v. U.S., No. 17-6086 [Arg: 10.2.2018 Trans./Aud.]

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.
Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., No. 17-1229 [Arg: 12.4.2018 Trans./Aud.]

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.
Henry Schein Inc. v. Archer and White Sales Inc., No. 17-1272 [Arg: 10.29.2018 Trans./Aud.]

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.”
Herrera v. Wyoming, No. 17-532 [Arg: 1.8.2019]

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.
Home Depot U.S.A. Inc. v. Jackson, No. 17-1471 [Arg: 1.15.2019]

Issue(s): (1) 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; and (2) whether the Supreme Court's holding in Shamrock Oil & Gas Co. v. Sheets -- that an original plaintiff may not remove a counterclaim against it -- extends to third-party counterclaim defendants.
In re Department of Commerce, No. 18-557 [Arg: 2.19.2019]

Issue(s): Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
Jam v. Int'l Finance Corp., No. 17-1011 [Arg: 10.31.2018 Trans./Aud.]

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.
Kisor v. Wilkie, No. 18-15

Issue(s): Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
Knick v. Township of Scott, Pennsylvania, No. 17-647 [Arg: 1.16.2019]

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.
Lamps Plus Inc. v. Varela, No. 17-988 [Arg: 10.29.2018 Trans./Aud.]

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.
Lorenzo v. Securities and Exchange Commission, No. 17-1077 [Arg: 12.3.2018 Trans./Aud.]

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.
Madison v. Alabama, No. 17-7505 [Arg: 10.2.2018 Trans./Aud.]

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.
Manhattan Community Access Corp. v. Halleck, No. 17-1702

Issue(s): (1) Whether the U.S. Court of Appeals in the 2nd Circuit erred in rejecting the Supreme Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public access television stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations.
Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18

Issue(s): Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290 [Arg: 1.7.2019]

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.
Mission Product Holdings Inc. v. Tempnology, LLC, No. 17-1657

Issue(s): Whether, under Section 365 of the Bankruptcy Code, a debtor-licensor’s “rejection” of a license agreement—which “constitutes a breach of such contract,” 11 U.S.C. § 365(g)—terminates rights of the licensee that would survive the licensor’s breach under applicable non-bankruptcy law.
Mont v. U.S., No. 17-8995

Issue(s): Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.
Mount Lemmon Fire District v. Guido, No. 17-587 [Arg: 10.1.2018 Trans./Aud.; Decided 11.6.2018]

Holding: State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.
New Prime Inc. v. Oliveira, No. 17-340 [Arg: 10.3.2018 Trans./Aud.]

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.
Nielsen v. Preap, No. 16-1363 [Arg: 10.10.2018 Trans./Aud.]

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.
Nieves v. Bartlett, No. 17-1174 [Arg: 11.26.2018 Trans./Aud.]

Issue(s): Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.
Nutraceutical Corp. v. Lambert, No. 17-1094 [Arg: 11.27.2018 Trans./Aud.]

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.
Obduskey v. McCarthy & Holthus LLP, No. 17-1307 [Arg: 1.7.2019]

Issue(s): Whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings.
PDR Network, LLC v. Carlton & Harris Chiropractic Inc., No. 17-1705

Issue(s): Whether the Hobbs Act required the district court in this case to accept the Federal Communication Commission's legal interpretation of the Telephone Consumer Protection Act.
Republic of Sudan v. Harrison, No. 16-1094 [Arg: 11.7.2018 Trans./Aud.]

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.
Return Mail Inc. v. U.S. Postal Service, No. 17-1594

Issue(s): Whether the government is a “person” who may petition to institute review proceedings under the Leahy-Smith America Invents Act.
Rimini Street Inc. v. Oracle USA Inc., No. 17-1625 [Arg: 1.14.2019]

Issue(s): Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.
Smith v. Berryhill, No. 17-1606

Issue(s): Whether the decision of the Appeals Council—the administrative body that hears a claimant’s appeal of an adverse decision of an administrative law judge regarding a disability benefit claim—to reject a disability claim on the ground that the claimant’s appeal was untimely is a “final decision” subject to judicial review under Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g).
Stokeling v. U.S., No. 17-5554 [Arg: 10.9.2018 Trans./Aud.]

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.
Sturgeon v. Frost, No. 17-949 [Arg: 11.5.2018 Trans./Aud.]

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.
Tennessee Wine & Spirits Retailers Association v. Blair, No. 18-96 [Arg: 1.16.2019]

Issue(s): Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time.
Thacker v. Tennessee Valley Authority, No. 17-1201 [Arg: 1.14.2019]

Issue(s): 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.
The American Legion v. American Humanist Association, No. 17-1717

Issue(s): (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
The Dutra Group v. Batterton, No. 18-266

Issue(s): Whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.
Timbs v. Indiana, No. 17-1091 [Arg: 11.28.2018 Trans./Aud.]

Issue(s): Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
U.S. v. Haymond, No. 17-1672

Issue(s): Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.
U.S. v. Sims, No. 17-766 [Arg: 10.9.2018 Trans./Aud.; Decided 12.10.2018]

Holding: The term “burglary” in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.
U.S. v. Stitt, No. 17-765 [Arg: 10.9.2018 Trans./Aud.; Decided 12.10.2018]

Holding: The term “burglary” in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.
Virginia House of Delegates v. Bethune-Hill, No. 18-281

Issue(s): (1) Whether the district court conducted a proper “holistic” analysis of the majority-minority Virginia House of Delegates districts under the prior decision in this case, Bethune-Hill v. Virginia State Board of Elections, even though it ignored a host of evidence, including the overwhelming majority of district lines, which were carried over unchanged from the prior map; the geographic location of population disparities, which imposed severe redistricting constraints and directly impacted which voters were moved into and out of the majority-minority districts; and the degree of constraint the House’s Voting Rights Act compliance goals imposed in implementation, which was minimal; (2) whether the Bethune-Hill “predominance” test is satisfied merely by a lengthy description of ordinary Voting Rights Act compliance measures; (3) whether the district court erred in relying on expert analysis it previously rejected as unreliable and irrelevant and expert analysis that lacked any objective or coherent methodology; (4) whether the district court committed clear error in ignoring the entirety of the house’s evidentiary presentation under the guise of credibility determinations unsupported by the record and predicated on expert testimony that should not have been credited or even admitted; (5) whether Virginia’s choice to draw 11 “safe” majority-minority districts of around or above 55 percent black voting-age population (“BVAP”) was narrowly tailored in light of the discretion the Voting Rights Act afforded covered jurisdictions to “choose to create a certain number of ‘safe’ districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice,” under Georgia v. Ashcroft, or the requirement the Voting Rights Act, as amended, imposed on covered jurisdictions “to prove the absence of racially polarized voting” to justify BVAP reductions towards or below 50 percent BVAP; (6) whether the district court erred in ignoring the district-specific evidence before the house in 2011 justifying safe districts at or above 55 percent BVAP; and (7) whether appellants have standing to bring this appeal.
Virginia Uranium v. Warren, No. 16-1275 [Arg: 11.5.2018 Trans./Aud.]

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.
Washington State Department of Licensing v. Cougar Den Inc., No. 16-1498 [Arg: 10.30.2018 Trans./Aud.]

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.
Weyerhaeuser Company v. U.S. Fish and Wildlife Service, No. 17-71 [Arg: 10.1.2018 Trans./Aud.; Decided 11.27.2018]

Holding: An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.
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