Kisor v. Wilkie

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Kisor v. Wilkie

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.	Op. Below	Argument	Opinion	Vote	Author	Term
18-15	Fed. Cir.	Mar 27, 2019 Tr.Aud.	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.

Argument analysis: Justices divided on agency deference doctrine (Amy Howe)
Argument preview: Justices to tackle important agency-deference question (Amy Howe)
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
Feb 21 2019	Record requested from the U.S.C.A. Federal Circuit.
Feb 25 2019	Brief of respondent Robert Wilkie, Secretary of Veterans Affairs filed. (Distributed)
Feb 28 2019	The record received from the U.S.C.A. Federal Circuit is electronic and located on PACER. The record is complete.
Feb 28 2019	The record received from U.S. Court of Appeals for Veterans Claims are electronic and located on USCAVC web site. Also received are the pleadings from USCAVC which is confidential, (1 Envelope).
Mar 04 2019	Brief amici curiae of Administrative Law Scholars filed. (Distributed)
Mar 04 2019	Brief amicus curiae of Senator Sheldon Whitehouse filed. ((Distributed).
Mar 14 2019	Reply of petitioner James L. Kisor filed. (Distributed)
Mar 27 2019	Argued. For petitioner: Paul W. Hughes, Washington, D. C. For respondent: Noel G. Francisco, Solicitor General, Department of Justice, Washington, D. C.

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

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10
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