Kisor v. Wilkie

Editor's Note :

Kisor v. Wilkie

Argument preview: Justices to consider whether First Amendment applies to public-access channels – Amy Howe

Argument analysis: Justices seem divided about government right to challenge patents in administrative process – Ronald Mann

A "view" from the courtroom: Back to the bench for Justice Ginsburg – Mark Walsh

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Orders

RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)

Opinions

Conference

Orders

MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

UNITED STATES V. HAYMOND (17-1672)

MONT V. UNITED STATES (17-8995)

THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

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Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
18-15	Fed. Cir.	Mar 27, 2019	TBD	TBD	TBD	OT 2018

Issue: 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.

Symposium: Government agencies shouldn’t get to put a thumb on the scales (Jonathan Adler)
Symposium: Why Kisor is a case to watch (Brianne Gorod)
Symposium: Reverse Seminole Rock and Auer (Elizabeth Murrill)
Symposium: The puzzling and troubling grant in Kisor (Gillian Metzger)
Symposium: The Supreme Court and the forgotten “Three Ring Government” (Kimberly Hermann)
Symposium: Tampering with the structure of administrative law (Adrian Vermeule)
Justices to tackle important agency-deference question: In Plain English (Amy Howe)
One new grant, one dissent from the denial of review (Amy Howe)

Date	Proceedings and Orders (key to color coding)
Apr 19 2018	Application (17A1154) to extend the time to file a petition for a writ of certiorari from May 1, 2018 to June 29, 2018, submitted to The Chief Justice.
Apr 24 2018	Application (17A1154) granted by The Chief Justice extending the time to file until June 29, 2018.
Jun 29 2018	Petition for a writ of certiorari filed. (Response due August 1, 2018)
Jul 25 2018	Motion to extend the time to file a response from August 1, 2018 to August 31, 2018, submitted to The Clerk.
Jul 26 2018	Motion to extend the time to file a response is granted and the time is extended to and including August 31, 2018.
Jul 27 2018	Brief amici curiae of Southeastern Legal Foundation and The Beacon Center of Tennessee filed.
Jul 27 2018	Brief amicus curiae of Center for Constitutional Jurisprudence filed.
Aug 01 2018	Brief amicus curiae of The Chamber of Commerce of the United States of America filed.
Aug 01 2018	Brief amici curiae of National Association of Home Builders, et al. filed.
Aug 01 2018	Brief amici curiae of The State's of Utah, et al. filed.
Aug 17 2018	Motion to extend the time to file a response from August 31, 2018 to October 1, 2018, submitted to The Clerk.
Aug 20 2018	Motion to extend the time to file a response is granted and the time is further extended to and including October 1, 2018.
Sep 26 2018	Motion to extend the time to file a response from October 1, 2018 to October 31, 2018, submitted to The Clerk.
Sep 27 2018	Motion to extend the time to file a response is granted and the time is further extended to and including October 31, 2018.
Oct 31 2018	Brief of respondent Robert Wilkie, Secretary of Veterans Affairs in opposition filed.
Nov 19 2018	Reply of petitioner James L. Kisor filed.
Nov 20 2018	DISTRIBUTED for Conference of 12/7/2018.
Dec 10 2018	Petition GRANTED limited to Question 1 presented by the petition.
Jan 16 2019	Blanket Consent filed by Respondent, Robert Wilkie, Secretary of Veterans Affairs
Jan 24 2019	Joint appendix filed. (Statement of costs filed)
Jan 24 2019	Brief of petitioner James L. Kisor filed.
Jan 25 2019	SET FOR ARGUMENT on Wednesday, March 27, 2019
Jan 30 2019	Brief amici curiae of Pacific Legal Foundation, et al. filed.
Jan 31 2019	Brief amici curiae of State and Local Government Associations filed.
Jan 31 2019	Brief amicus curiae of American Federation of Labor and Congress of Industrial Organizations in support of neither party filed.
Jan 31 2019	Brief amicus curiae of The Chamber of Commerce of the United States of America filed.
Jan 31 2019	Brief amici curiae of National Veterans Legal Services Program, et al. filed.
Jan 31 2019	Brief amicus curiae of Utility Air Regulatory Group filed.
Jan 31 2019	Brief amicus curiae of Professor Thomas Merrill filed.
Jan 31 2019	Brief amici curiae of Professors - Dean Ronald A. Cass, Christopher DeMuth, Sr., and James L. Huffman filed.
Jan 31 2019	Brief amicus curiae of Washington Legal Foundation filed.
Jan 31 2019	Brief amicus curiae of Center for Workplace Compliance filed.
Jan 31 2019	Brief amici curiae of National Immigrant Justice Center and American Immigration Lawyers Association filed.
Jan 31 2019	Brief amici curiae of National Organization of Veterans’ Advocates, Inc., et al. filed.
Jan 31 2019	Brief amici curiae of National Association of Home Builders, et al. filed.
Jan 31 2019	Brief amici curiae of Stephen C. Connaker and the Military and Veterans' Law Institute filed.
Jan 31 2019	Brief amici curiae of States of Utah, et al. filed.
Jan 31 2019	Brief amicus curiae of Public Citizen, Inc. in support of neither party filed.
Jan 31 2019	Brief amicus curiae of Center for Constitutional Jurisprudence filed.
Jan 31 2019	Brief amici curiae of Professors of Administrative Law and Federal Regulation in support of neither party filed. (Corrected version submitted)
Jan 31 2019	Brief amici curiae of Professors of Administrative Law and Federal Regulation in support of neither party filed (2/14/19). (Distributed)
Jan 31 2019	Brief amicus curiae of Sergeant Major Jeff S. Howard (Retired) filed.
Jan 31 2019	Brief amici curiae of The Cato Institute, et al. filed.
Jan 31 2019	Brief amici curiae of Southeastern Legal Foundation, et al. filed.
Jan 31 2019	Brief amicus curiae of National Right to Work Legal Defense Foundation, Inc. filed.
Jan 31 2019	Brief amicus curiae of New Civil Liberties Alliance filed.
Jan 31 2019	Brief amicus curiae of Jeremy C. Doerre filed.
Jan 31 2019	Brief amicus curiae of Atlantic Legal Foundation filed.
Feb 14 2019	CIRCULATED

Featured Posts

Argument preview: Justices to consider whether First Amendment applies to public-access channels – Amy Howe

Argument analysis: Justices seem divided about government right to challenge patents in administrative process – Ronald Mann

A "view" from the courtroom: Back to the bench for Justice Ginsburg – Mark Walsh
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This Week at the Court
The Supreme Court released orders from the February 15 conference on Tuesday; the justices added County of Maui, Hawaii v. Hawaii Wildlife Fund to next term's merits docket and summarily reversed in Moore v. Texas.
There is a possibility of opinions on Wednesday at 10 a.m.
On Tuesday, the justices heard oral argument in Return Mail Inc. v. United States Postal Service.
On Wednesday, the justices hear oral argument in Mission Product Holdings Inc. v. Tempnology, LLC.
On Friday, the justices will meet for their February 22 conference.
Major Cases
- 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.
- New York State Rifle & Pistol Association Inc. v. City of New York, New York
  Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.
- The American Legion v. American Humanist Association
  (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.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Moore v. Texas The Texas Court of Criminal Appeals’ redetermination that Bobby James Moore does not have an intellectual disability and is thus eligible for the death penalty is inconsistent with the Supreme Court's 2017 decision in Moore v. Texas.
- Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. The sale of an invention to a third party who is obligated to keep the invention confidential may place the invention “on sale” for purposes of the Leahy-Smith America Invents Act, which bars a person from receiving a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention,” 35 U. S. C. §102(a)(1).
- New Prime Inc. v. Oliveira A court should determine whether the Federal Arbitration Act’s Section 1 exclusion for disputes involving the “contracts of employment” of certain transportation workers applies before ordering arbitration; here, truck driver Dominic Oliveira’s independent contractor operating agreement with New Prime Inc. falls within that exception.
- Stokeling v. United States The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.
- Culbertson v. Berryhill The Social Security Act’s fee cap of 25 percent of past-due benefits imposed on attorneys who successfully represent Title II benefit claimants in court proceedings applies only to fees for court representation and not to aggregate fees for both court and agency representation.
- Henry Schein Inc. v. Archer and White Sales Inc. The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent.
see all this term’s cases »
Current Relists
- Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
- Baxter v. United States (1) Whether a conviction for robbery under Florida law qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably requires the use of “violent force” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
- Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
More Petitions »
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Cases argued 44

Cases decided 11

Summary reversals 3

Merits cases granted to date 74

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Justice Sotomayor at the Library of Congress

On February 14, Justice Sonia Sotomayor appeared at the Library of Congress with Chief Judge Robert Katzmann of the U.S. Court of Appeals for the 2nd Circuit and Professor Eloise Pasachoff of the Georgetown University Law Center for the Supreme Court Fellows Annual Lecture.

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15
Conference

19
Orders
RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

20
MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)
Opinions

22
Conference

25
Orders
MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

26
UNITED STATES V. HAYMOND (17-1672)
MONT V. UNITED STATES (17-8995)

27
THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

Cases argued	44
Cases decided	11
Summary reversals	3
Merits cases granted to date	74