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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, the classification of Title VII’s administrative-exhaustion requirement as a jurisdictional prerequisite or a waivable claim-processing rule; the meaning of the statutory term “confidential” in the Freedom of Information Act’s Exemption 4; the derivation of the religious-autonomy doctrine; and whether a state can require health-care facilities to dispose of fetal remains in the same manner as other human remains.

The petitions of the week are:

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issues: (1) Whether the statutory term “confidential” in the Freedom of Information Act’s Exemption 4 bears its ordinary meaning, thus requiring the government to withhold all “commercial or financial information” that is confidentially held and not publicly disseminated—regardless of whether a party establishes substantial competitive harm from disclosure—which would resolve at least five circuit splits; and (2) whether, in the alternative, if the Supreme Court retains the substantial-competitive-harm test, that test is satisfied when the requested information could be potentially useful to a competitor, as the U.S. Courts of Appeals for the 1st and 10th Circuits have held, or whether the party opposing disclosure must establish with near certainty a defined competitive harm like lost market share, as the U.S. Courts of Appeals for the 9th and District of Columbia Circuits have held, and as the U.S. Court of Appeals for the 8th Circuit required here.


Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.


Issues: (1) Whether the religious-autonomy doctrine derives from the First Amendment or rather is a consent-based doctrine applicable only to disputes between a church and one of its own members; and (2) whether the religious-autonomy doctrine is a threshold jurisdictional issue or an affirmative defense.


Issue: Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.

Recommended Citation: Aurora Barnes, Petitions of the week, SCOTUSblog (Nov. 29, 2018, 12:26 PM),