Department of Commerce v. U.S. District Court for the Southern District of New York

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Department of Commerce v. U.S. District Court for the Southern District of New York

Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information – Mark Fenster

Opinion analysis: Punitive damages not available under general maritime law in personal-injury unseaworthiness action – Joel Goldstein

Opinion analysis: Long-time prohibition on registration of scandalous and immoral trademarks is struck down – Megan Carpenter

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Docket No.	Argument	Opinion	Vote	Author	Term
18-557	TBD	TBD	TBD	TBD	OT 2018

Issue: 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.

Government asks justices to resolve census citizenship case this term (Amy Howe)
Challengers urge justices to dismiss census case after district court ruling (Updated) (Amy Howe)
In a letter, government "suggests" hold for trial in census citizenship dispute (Amy Howe)
Justices to weigh in on evidence in census citizenship-question dispute (Amy Howe)
Federal government returns in census deposition dispute (Amy Howe)
Justices block Ross deposition in census dispute (Amy Howe)
Ginsburg puts census depositions on hold (Amy Howe)
Federal government asks justices to intervene in census dispute (Updated) (Amy Howe)

Date	Proceedings and Orders (key to color coding)
Oct 03 2018	Application (18A350) for a stay, submitted to Justice Ginsburg.
Oct 05 2018	Application (18A350) denied by Justice Ginsburg. The application is denied without prejudice, provided that the Court of Appeals will afford sufficient time for either party to seek relief in this Court before the depositions in question are taken.
Oct 09 2018	Application (18A375) for a stay, submitted to Justice Ginsburg.
Oct 09 2018	UPON CONSIDERATION of the application of counsel for the applicants, IT IS ORDERED that the orders of the United States District Court for the Southern District of New York, dated July 3, 2018, August 17, 2018, and September 21, 2018, are stayed pending receipt of a response, due on or before October 11, 2018, by 4 p.m., and further order of Justice Ginsburg or of the Court.
Oct 10 2018	Letter of applicants received.
Oct 11 2018	Response to application from respondent New York, et al. filed.
Oct 11 2018	Response to application from respondent New York Immigration Coalition, et al. filed.
Oct 12 2018	Reply of applicants United States Department of Commerce, et al. filed.
Oct 12 2018	Motion for leave to file amicus brief and motion for leave to file brief in compliance with Rule 33.2 filed by Eagle Forum Education & Legal Defense Fund.
Oct 17 2018	Motion for leave to file amicus brief filed by California.
Oct 22 2018	Application (18A375) referred to the Court.
Oct 22 2018	The application for stay (18A375) presented to JUSTICE GINSBURG and by her referred to the Court is granted in part and denied in part. The application is granted as to the order of the United States District Court for the Southern District of New York dated September 21, 2018, which is stayed through October 29, 2018 at 4 p.m. The application is denied as to the orders of the United States District Court for the Southern District of New York dated July 3,2018 and August 17, 2018. If the applicants file a petition for a writ of certiorari or a petition for a writ of mandamus with respect to the stayed order by or before October 29, 2018 at 4 p.m., the stay will remain in effect until disposition of such petition by this Court. Should the petition be denied, this stay shall terminate automatically. In the event the petition is granted, the stay shall terminate upon the sending down of the judgment of this Court. The denial of the stay with respect to the remaining orders does not preclude the applicants from making arguments with respect to those orders. Justice Gorsuch, with whom Justice Thomas joins, concurs in part and dissents in part. (Detached opinion)
Oct 29 2018	Petition for a writ of mandamus filed. (Response due November 28, 2018)
Oct 29 2018	Application (18A455) for a stay, submitted to Justice Ginsburg.
Nov 02 2018	Application (18A455) referred to the Court.
Nov 02 2018	Application (18A455) denied by the Court. Justice Thomas, Justice Alito, and Justice Gorsuch would grant the application.
Nov 06 2018	The respondents are directed to file a response to the petition on or before 5 p.m., Tuesday, November 13, 2018. Petitioners may file a reply brief on or before 2 p.m., Thursday, November 15, 2018. Amicus curiae briefs may be filed on or before 5 p.m., Tuesday, November 13, 2018.
Nov 13 2018	Brief amicus curiae of State of California filed.
Nov 13 2018	Brief amicus curiae of Public Interest Legal Foundation filed.
Nov 13 2018	Brief of respondents New York Immigration Coalition, et al. in opposition filed.
Nov 13 2018	Brief of respondents State of New York, et al. and Other Government Plaintiffs in opposition filed.
Nov 15 2018	Reply of petitioners Department of Commerce, et al. filed.
Nov 16 2018	The petition for a writ of mandamus is treated as a petition for a writ of certiorari. The petition for certiorari is GRANTED. Petitioners' brief on the merits is to be filed on or before Monday, December 17, 2018. Respondents' brief on the merits is to be filed on or before Thursday, January 17, 2019. The reply brief is to be filed on or before Monday, February 4, 2019. The case is set for oral argument on Tuesday, February 19, 2019.
Nov 26 2018	Letter of petitioners filed.
Dec 12 2018	Motion of petitioners for an extension of time to file the joint appendix filed.
Dec 14 2018	Motion to extend the time to file the joint appendix is granted and the time is extended to and including January 4, 2019.
Dec 17 2018	Brief of petitioners Department of Commerce, et al. filed.
Dec 20 2018	Brief amicus curiae of Eagle Forum Education & Legal Defense Fund filed.
Dec 21 2018	SET FOR ARGUMENT on Tuesday, February 19, 2019.
Dec 21 2018	Brief amici curiae of State of Oklahoma, et al. filed.
Dec 24 2018	Brief amicus curiae of Public Interest Legal Foundation filed.
Jan 04 2019	Joint appendix filed.
Jan 11 2019	Record requested from the U.S.C.A. 2nd Circuit.
Jan 14 2019	Record request from the U.S.C.A. 2nd Circuit is electronic.
Jan 15 2019	CIRCULATED
Jan 17 2019	Brief of respondents New York Immigration Coalition, et al. filed. (Distributed)
Jan 17 2019	Joint motion of respondents to dismiss as improvidently granted filed. (Distributed)
Jan 17 2019	Brief of respondents State of New York, et al. filed (with 1 vol. appendix). (Distributed)
Jan 18 2019	This case is REMOVED FROM THE ARGUMENT CALENDAR for Tuesday, February 19, 2019. The briefing schedule is suspended pending further order of the Court.
Jan 22 2019	Petitioners' response to motion to dismiss as improvidently granted filed. (Distributed)
Jan 29 2019	Reply of respondents to response to motion to dismiss as improvidently granted filed. (Distributed)
Jan 30 2019	Motion DISTRIBUTED for Conference of 2/15/2019.

Featured Posts

Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information – Mark Fenster

Opinion analysis: Punitive damages not available under general maritime law in personal-injury unseaworthiness action – Joel Goldstein

Opinion analysis: Long-time prohibition on registration of scandalous and immoral trademarks is struck down – Megan Carpenter
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This Week at the Court
On Monday, the Supreme Court released orders from the June 20 conference; the justices granted eight new cases, for a total of five hours of oral argument next term: Guerrero-Lasprilla v. Barr, Ovalles v. Barr, Dex Media Inc. v. Click-To-Call Technologies, LP, Maine Community Health Options v. United States, Moda Health Plan Inc. v. United States, Land of Lincoln Mutual Health Insurance Co. v. United States, Georgia v. Public.Resource.Org Inc. and Banister v. Davis.
Also on Monday, the justices released their opinions in four argued cases: United States v. Davis, Food Marketing Institute v. Argus Leader Media, Iancu v. Brunetti and The Dutra Group v. Batterton.
The Supreme Court will release opinions in one or more argued cases on Wednesday at 10 a.m.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, 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 -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  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.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
- Gamble v. United States
see all this term’s cases »
Recent Decisions
- Food Marketing Institute v. Argus Leader Media Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of 5 U. S. C. §552(b)(4), the Freedom of Information Act’s Exemption 4.
- Iancu v. Brunetti The Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment.
- The Dutra Group v. Batterton A plaintiff may not recover punitive damages on a maritime claim of unseaworthiness.
- United States v. Davis Title 18 U. S. C. §924(c)(3)(B), which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague.
see all this term’s cases »
Current Relists
- Atlanta Gas Light Co. v. Bennett Regulator Guards Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in concluding that it had jurisdiction to review the Patent Trial and Appeal Board’s decision to institute inter partes review of respondent’s patent over respondent’s objection that it was time-barred; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits.
- Department of Homeland Security v. Regents of the University of California (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
- Kelly v. United States Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.
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On June 3, Justice Clarence Thomas spoke with David Rubenstein for the Supreme Court Historical Society’s annual lecture at the Supreme Court.

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Cases argued	69
Cases decided	61
Summary reversals	5
Merits cases granted to date	74

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