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McDonough v. Smith

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
18-485	2d Cir.	Apr 17, 2019 Tr.Aud.	TBD	TBD	TBD	OT 2018

Issue: Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held below.

SCOTUSblog Coverage

Argument analysis: Spinning heads and swimming constitutional rights in debates over an accrual rule (Howard M. Wasserman)
Argument preview: Searching for an accrual rule when the government fabricates evidence in a criminal proceeding (Howard M. Wasserman)
Eight new grants, Ginsburg recovery from surgery “on track” (Amy Howe)

Date	Proceedings and Orders (key to color coding)
Oct 12 2018	Petition for a writ of certiorari filed. (Response due November 15, 2018)
Nov 02 2018	Motion to extend the time to file a response from November 15, 2018 to December 7, 2018, submitted to The Clerk.
Nov 06 2018	Motion to extend the time to file a response is granted and the time is extended to and including December 7, 2018.
Nov 15 2018	Brief amici curiae of Criminal Defense Organizations, et al. filed.
Nov 15 2018	Brief amicus curiae of Cause of Action Institute filed.
Nov 15 2018	Brief amicus curiae of Criminal Justice Institute of Harvard Law School filed.
Dec 07 2018	Brief of respondent Youel Smith in opposition filed.
Dec 17 2018	Letter waiving the 14-day waiting period under Rule 15.5 filed.
Dec 18 2018	Reply of petitioner Edward G. McDonough filed.
Dec 19 2018	DISTRIBUTED for Conference of 1/4/2019.
Jan 07 2019	DISTRIBUTED for Conference of 1/11/2019.
Jan 11 2019	Petition GRANTED.
Feb 11 2019	SET FOR ARGUMENT on Wednesday, April 17, 2019
Feb 25 2019	Brief of petitioner Edward G. McDonough filed.
Feb 25 2019	Joint appendix filed.
Feb 26 2019	Blanket Consent filed by Petitioner, Edward G. McDonough.
Mar 04 2019	Brief amicus curiae of Criminal Justice Institute of Harvard Law School filed.
Mar 04 2019	Brief amicus curiae of Cause of Action Institute filed.
Mar 04 2019	Brief amici curiae of Criminal Defense Organizations, et al. filed.
Mar 04 2019	Brief amicus curiae of Constitutional Accountability Center filed.
Mar 04 2019	Brief amicus curiae of United States filed.
Mar 04 2019	Brief amici curiae of Center on the Administration of Criminal Law at NYU School of Law, et al. filed.
Mar 04 2019	Brief amici curiae of Federal Court Scholars, et al. filed.
Mar 04 2019	Brief amicus curiae of St. Thomas More Lawyers Guild of Rochester, New York filed.
Mar 04 2019	Brief amicus curiae of The Innocence Network filed.
Mar 20 2019	CIRCULATED
Mar 21 2019	Record requested from the U.S.C.A. 2nd Circuit.
Mar 27 2019	Brief of respondent Youel Smith filed. (Distributed)
Apr 02 2019	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Apr 03 2019	Record received from the U.S.D.C. Northern District of New York is electronic.
Apr 03 2019	Brief amici curiae of International Municipal Lawyers Association, et al. filed. (Distributed)
Apr 03 2019	Brief amici curiae of Indiana, et al. filed. (Distributed)
Apr 03 2019	Motion of International Municipal Lawyers Association, et al. for leave to participate in oral argument as amici curiae and for divided argument filed.
Apr 03 2019	Motion of St. Thomas More Lawyers Guild of Rochester, New York for leave to participate in oral argument as amicus curiae and for divided argument filed.
Apr 03 2019	Motion of Indiana, et al. for leave to participate in oral argument as amici curiae and for divided argument filed.
Apr 10 2019	Reply of petitioner Edward G. McDonough filed. (Distributed)
Apr 12 2019	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Apr 12 2019	Motion of Indiana, et al. for leave to participate in oral argument as amici curiae and for divided argument DENIED.
Apr 12 2019	Motion of International Municipal Lawyers Association, et al. for leave to participate in oral argument as amici curiae and for divided argument DENIED.
Apr 12 2019	Motion of St. Thomas More Lawyers Guild of Rochester, New York for leave to participate in oral argument as amicus curiae and for divided argument DENIED.
Apr 17 2019	Argued. For petitioner: Neal K. Katyal, Washington, D. C.; and Jeffrey B. Wall, Principal Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondent: Thomas J. O'Connor, Albany, N. Y.

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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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Recent Decisions
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- Biestek v. Berryhill A vocational expert’s refusal to provide private market-survey data during a Social Security disability benefits hearing upon the applicant’s request does not categorically preclude the testimony from counting as “substantial evidence” in federal court under 42 U. S. C. §405(g).
- 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.
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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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14	15 Orders IANCU V. BRUNETTI (18-302) EMULEX CORP. V. VARJABEDIAN (18-459)	16 PARKER DRILLING MANAGEMENT SERVICES V. NEWTON (18-389) NORTH CAROLINA DEPARTMENT OF REVENUE V. KAESTNER FAMILY TRUST (18-457)	17 UNITED STATES V. DAVIS (18-431) MCDONOUGH V. SMITH (18-485)	18 Conference	19	20
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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

McDonough v. Smith

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