National Association of Manufacturers v. Department of Defense

National Association of Manufacturers v. Department of Defense

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky

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Conference of May 16, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
16-299	6th Cir.	Oct 11, 2017 Tr.Aud.	Jan 22, 2018	9-0	Sotomayor	OT 2017

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Holding: Because the Waters of the United States Rule – a definition of the statutory term “waters of the United States” proffered by the Environmental Protection Agency and the Army Corps of Engineers in a 2015 regulation – falls outside the ambit of Section 1369(b)(1) of the Clean Water Act, challenges to the rule must be filed in federal district courts.

Judgment: Reversed and remanded, 9-0, in an opinion by Justice Sotomayor on January 22, 2018.

OT2017 #13: "Poker Face" (First Mondays)
Opinion analysis: Challenges to the WOTUS rule must begin in district court (Miriam Seifter)
A "view" from the courtroom: Open for business, with a hiccup (Mark Walsh)
Argument analysis: Wading through the "themeless pudding" of Clean Water Act jurisdiction (Miriam Seifter)
OT2017 #2: "Who is the River Master?" (First Mondays)
Argument preview: Justices to determine how Clean Water Act litigation flows (Miriam Seifter)
Court releases October calendar (Amy Howe)
Court adds 16 new cases to its merits docket (Expanded) (Amy Howe)
Petition of the day (Kate Howard)

Date	Proceedings and Orders (key to color coding)
Jun 30 2016	Application (16A11) to extend the time to file a petition for a writ of certiorari from July 20, 2016 to September 2, 2016, submitted to Justice Kagan.
Jul 01 2016	Application (16A11) granted by Justice Kagan extending the time to file until September 2, 2016.
Sep 02 2016	Petition for a writ of certiorari filed. (Response due October 7, 2016)
Sep 29 2016	Order extending time to file response to petition to and including November 7, 2016.
Oct 05 2016	Brief of respondents Agrowstar LLC, et al. in support filed.
Oct 07 2016	Brief of respondents American Farm Bureau Federation, et al. in support filed.
Oct 07 2016	Brief of respondents Ohio, et al. filed.
Oct 28 2016	Order further extending time to file response to petition to and including December 7, 2016.
Dec 07 2016	Brief of Federal Respondents in opposition filed.
Dec 20 2016	Reply of petitioner National Association of Manufacturers filed.
Dec 21 2016	DISTRIBUTED for Conference of January 6, 2017.
Jan 09 2017	DISTRIBUTED for Conference of January 13, 2017.
Jan 13 2017	Petition GRANTED.
Jan 27 2017	Consent to the filing of amicus curiae briefs in support of either party or of neither party from counsel for the petitioner filed.
Jan 31 2017	Motion to dispense with printing the joint appendix filed by petitioner National Association of Manufacturers.
Feb 01 2017	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondents AGrowStar, LLC, et al.
Feb 15 2017	The time to file petitioner's brief on the merits is extended to and including March 29, 2017.
Feb 17 2017	The time to file respondents' briefs on the merits is extended to and including May 31, 2017.
Feb 21 2017	Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
Mar 06 2017	Motion to hold the briefing schedule in abeyance filed by federal respondents.
Mar 07 2017	The time to file petitioner's brief on the merits is further extended to and including April 13, 2017.
Mar 15 2017	Motion DISTRIBUTED for Conference of March 31, 2017.
Mar 15 2017	Opposition of respondents American Farm Bureau Federation, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
Mar 15 2017	Response of respondents Ohio, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
Mar 15 2017	Opposition of respondents Natural Resources Defense Council, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
Mar 16 2017	Opposition of respondents Waterkeeper Alliance, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
Mar 17 2017	Opposition of respondents New York, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
Apr 03 2017	Motion to hold the briefing schedule in abeyance DENIED.
Apr 06 2017	The time to file petitioner's brief on the merits is further extended to and including April 27, 2017.
Apr 21 2017	Consent to the filing of amicus curiae briefs in support of either party or neither party from counsel for respondents American Farm Bureau Federation, et al. filed.
Apr 26 2017	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the Federal Respondent.
Apr 26 2017	Brief of respondents Agrowstar LLC, et al. in support filed.
Apr 27 2017	Brief of respondents Waterkeeper Alliance, Inc., et al. in support filed.
Apr 27 2017	Brief of respondent Utility Water Act Group in support filed.
Apr 27 2017	Brief of petitioner National Association of Manufacturers filed.
Apr 27 2017	Brief of respondents Ohio, et al. in support filed.
Apr 27 2017	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents Ohio, et al
May 03 2017	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for intervenors-respondents New York, et al.
May 04 2017	Brief amici curiae of The Chamber of Commerce of the United States of America, et al. filed.
May 05 2017	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents Waterkeeper Alliance, et al.
May 10 2017	The time to file respondents' briefs on the merits is extended to and including July 28, 2017.
Jun 26 2017	Motion for divided argument filed by respondents Ohio, et al.
Jul 19 2017	SET FOR ARGUMENT on Wednesday, October 11, 2017.
Jul 28 2017	Brief of respondents Department of Defense, et al. filed.
Jul 28 2017	Brief of respondents Natural Resources Defense Council, et al. filed.
Aug 01 2017	Record requested from the U.S.C.A. 6th Circuit.
Aug 03 2017	Record received from the U.S.C.A. 6th Circuit is electronic.
Aug 03 2017	Application (17A146) to extend the time to file reply briefs on the merits from August 28, 2017 to September 11, 2017, submitted to Justice Kagan.
Aug 07 2017	Application (17A146) granted by Justice Kagan extending the time to file reply briefs on the merits until September 11, 2017.
Aug 09 2017	CIRCULATED
Aug 25 2017	Motion for divided argument filed by respondents Ohio, et al. in support of petitioner GRANTED.
Sep 08 2017	Reply of respondents State Respondents Ohio, et al. in support of petitioner filed. (Distributed)
Sep 11 2017	Reply of respondent Utility Water Act Group in support of petitioner filed. (Distributed)
Sep 11 2017	Reply of respondents Waterkeeper Alliance, Inc., et al. in support of petitioner filed. (Distributed)
Sep 11 2017	Reply of petitioner National Association of Manufacturers filed. (Distributed)
Oct 11 2017	Argued. For petitioner: Timothy S. Bishop, Chicago, Ill. For respondents Ohio, et al. in support of petitioner: Eric E. Murphy, State Solicitor for Ohio, Columbus, Ohio. For respondents: Rachel P. Kovner, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
Nov 17 2017	Letter of petitioner National Association of Manufacturers filed. (Distributed)
Nov 22 2017	Letter of respondents Department of Defense, et al. filed. (Distributed)
Jan 22 2018	Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court.
Feb 23 2018	JUDGMENT ISSUED.

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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This Week at the Court
The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices meet for their May 23 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.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- 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.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
More Petitions »
Recent Special Features
Statistical Snapshot

Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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