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Kisor v. Wilkie

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.

SCOTUSblog Coverage

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.

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The Supreme Court released orders from the April 18 conference on Monday; the justices agreed to decide Bostock v. Clayton County, Georgia, consolidated with Altitude Express Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., and Barton v. Barr. The justices also called for the views of the U.S. solicitor general in Putnam Investments, LLC v. Brotherston.
On Tuesday, the justices dismissed Emulex Corp. v. Varjabedian as improvidently granted.
On Wednesday, the justices released their opinion in Lamps Plus Inc. v. Varela.
On Monday, the justices heard oral argument in Food Marketing Institute v. Argus Leader Media and Fort Bend County, Texas v. Davis.
On Tuesday morning, the justices heard oral argument in Department of Commerce v. New York. On Tuesday afternoon, they heard argument in Mitchell v. Wisconsin and Rehaif v. United States.
On Wednesday, the justices heard oral argument in Quarles v. United States and Taggart v. Lorenzen.
On Friday, the justices meet for their April 26 conference; John Elwood compiles the petitions relisted for this conference.
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
  (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.
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- Bucklew v. Precythe Baze v. Rees and Glossip v. Gross govern all Eighth Amendment challenges alleging that a method of execution inflicts unconstitutionally cruel pain; Russell Bucklew’s as-applied challenge to Missouri’s single-drug execution protocol -- that it would cause him severe pain because of his particular medical condition -- fails to satisfy the Baze-Glossip test.
see all this term’s cases »
Current Relists
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (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.
- City of Newport Beach, California v. Vos (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody; (2) whether, under the Fourth Amendment “totality of the circumstances” analysis for assessing the reasonableness of force used against a suspect who attacks law enforcement officers, a court must take into account allegedly unreasonable police conduct that took place before the use of force, but foreseeably created the need to use that force; and (3) whether, under the Fourth Amendment’s analysis for use of force, a law enforcement officer’s interest in using deadly force against a suspect threatening an officer’s life is diminished if the assailant is mentally ill.
- Dahne v. Richey Whether prison inmates have a First Amendment right to include threatening, abusive and irrelevant language in grievances.
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Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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Cases argued	70
Cases decided	32
Summary reversals	4
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Kisor v. Wilkie

SCOTUSblog Coverage

Featured Posts

Justices allow Texas execution to go forward – Amy Howe

Reschedule Watch Returns – John Elwood

Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon – Evan Lee

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Peabody Award

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