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Petitions We’re Watching

You can see all paid petitions we’re following below, organized by petitions relisted for the next conference, those scheduled for initial consideration at the next conference, other featured petitions, and finally, petitions in which the court has called for the views of the solicitor general.

View this list sorted by case name.

Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
21-444 Thomas v. Lumpkin (1) Whether, under the Supreme Court’s clearly established precedent, Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— was denied his constitutional right to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Thomas’s mental illness and make the individualized sentencing judgment required by the Constitution; and (2) whether Thomas was denied his constitutional right to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.
21-679 Shoop v. Cassano (1) Whether the Supreme Court should summarily reverse the U.S. Court of Appeals for the 6th Circuit’s award of habeas relief; and (2) whether, when a three-judge panel clearly errs in awarding habeas relief, its decision raises questions important enough to justify en banc review.
21-783 Cope v. Cogdill (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
21-1028 Int'l Energy Ventures Management, L.L.C. v. United Energy Group, Ltd. Whether a reviewing court must strictly adhere to Federal Rule of Civil Procedure 52(a)’s requirement that a district court’s fact-findings “must not be set aside unless clearly erroneous,” as the U.S. Court of Appeals for the 1st, 8th, 9th, and District of Columbia Circuits have held, or whether the appellate court may engage in its own review with less deference (or “no” deference, as the U.S. Court of Appeals for the 5th Circuit held below) when the court of appeals decides the fact-findings are insufficient, as the U.S. Courts of Appeals for the 2nd, 5th, 6th, and 11th Circuits have concluded.
21-5967 Grzegorczyk v. U.S. Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
21-6001 Andrus v. Texas (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.

Petitions We’re Watching for the Next Conference

Docket Case Page Issue(s)
21-1194 Duncan v. Bonta (1) Whether a blanket, retrospective, and confiscatory law prohibiting ordinary law-abiding citizens from possessing magazines in common use violates the Second Amendment; (2) whether a law dispossessing citizens without compensation of property that was lawfully acquired and long possessed without incident violates the takings clause; and (3) whether the “two-step” approach that the U.S. Court of Appeals for the 9th Circuit and other lower courts apply to Second Amendment challenges is consistent with the Constitution and the Supreme Court’s precedent.
21-1164 Wilkins v. U.S. Whether the Quiet Title Act’s statute of limitations is a jurisdictional requirement or a claim-processing rule.
21-1047 Roy v. Canadian Pacific Railway Company (1) Whether the term “cases under title 11” — for which the Federal Rules of Bankruptcy Procedure govern procedure — extends to cases in district court that are merely “related to a case under title 11,” such that the bankruptcy rules govern in all civil cases that could conceivably affect a bankruptcy; and (2) whether, assuming the bankruptcy rules apply in district court, the rules require a motion to reconsider a district court’s judgment under Federal Rule of Civil Procedure 59(e) to be filed within 14 days, as a similar motion under Federal Rule of Bankruptcy Procedure 9023 must be filed in the bankruptcy court within 14 days.
21-1019 ERISA Industry Committee v. City of Seattle, Washington Whether state and local play-or-pay laws that require employers to make minimum monthly healthcare expenditures for their covered employees relate to ERISA plans and are thus preempted by the Employee Retirement Income Security Act of 1974.
21-938 Stirling v. Stokes (1) Whether the U.S. Court of Appeals for the 4th Circuit violated basic principles of Strickland v. Washington when it failed to reweigh the whole of the evidence in its prejudice analysis in Sammie Stokes' habeas action to determine if there was a reasonable probability of a different result; (2) whether the 4th Circuit erred in granting relief on a defaulted ineffective-assistance-of-trial-counsel claim when trial counsel had reasonable strategic reasons not to pursue a “bad upbringing” mitigation defense and collateral counsel had reasonable strategic reasons not to pursue an ineffective-assistance-of-trial-counsel claim; and (3) alternatively, whether this case should be held pending the outcome of Shinn v. Ramirez, argued Dec. 8, 2021.
21-365 Branch Banking & Trust Company v. Sevier County Schools Federal Credit Union Whether the Federal Arbitration Act displaces a state common-law rule forbidding companies from adding an arbitration requirement to their standard-form contract with customers unless the contract already includes a dispute-resolution clause.
20-7065 Canales v. Lumpkin (1) Whether, for penalty-phase ineffective assistance of counsel violations, Harrington v. Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the standard in Wiggins v. Smith of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death; and (2) whether the U.S. Court of Appeals for the 5th Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflicts with Wiggins and Andrus v. Texas.

Featured Petitions

Docket Case Page Issue(s)
22o156 New York v. New Jersey Whether the Supreme Court should issue declaratory judgment and/or enjoin New Jersey from withdrawing from its Waterfront Commission Compact with New York, which grants the Waterfront Commission of New York Harbor broad regulatory and law-enforcement powers over all operations at the Port of New York and New Jersey.
21A756 Guillen v. League of United Latin American Citizens Whether the Supreme Court should stay the district-court ordered deposition subpoenas of members of the Texas House of Representatives in a consolidated suit brought by the U.S. Department of Justice and various plaintiffs to enjoin redistricting legislation in the state.
21-1463 Missouri v. Biden (1) Whether the Centers for Medicare & Medicaid Services' Nov. 5, 2021, vaccine mandate for workers in most federally funded healthcare facilities violates the Administrative Procedure Act because it is arbitrary, capricious, and unlawful; (2) whether the mandate is unconstitutional under the Constitution's spending clause, the anti-commandeering doctrine, and the 10th Amendment; (3) whether the mandate violates the APA because it was issued without notice and comment; and (4) whether the mandate exceeds CMS’s statutory authority.
21-1455 Northport Health Services of Arkansas, LLC v. Department of Health and Human Services (1) Whether the Federal Arbitration Act is indifferent to rules that penalize parties for using arbitration agreements but leave enforceable any theoretical agreements parties enter into despite those penalties; and (2) whether the Department of Health and Human Services may promulgate a rule that concededly singles out arbitration agreements for disfavored treatment even though Congress has nowhere expressly empowered HHS to override the FAA or its federal policy favoring arbitration.
21-1450 Turkiye Halk Bankasi A.S. v. U.S. Whether U.S. district courts may exercise subject-matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act.
21-1444 Dolgen California, LLC v. Galarsa Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot assert representative claims, including under the California Private Attorneys General Act.
21-1431 Kerr v. Planned Parenthood South Atlantic (1) Whether spending-clause statutes ever give rise to privately enforceable rights under 42 U.S.C. § 1983, and if so, what the proper framework is for deciding when they do; and (2) whether, assuming spending-clause statutes ever give rise to privately enforceable rights under Section 1983, the Medicaid Act’s any-qualified-provider provision creates a privately enforceable right to challenge a state’s determination that a provider is not qualified to provide certain medical services.
21-1428 Blankenship v. U.S. Whether, to establish a violation of Brady v. Maryland, a defendant must show that he could not have obtained the suppressed, exculpatory evidence through his own independent efforts of “self-help” or “due diligence” as the U.S. Court of Appeals for the 4th Circuit and five other circuits have held, or whether the defendant’s failure to uncover the evidence independently is irrelevant, as the remaining six courts of appeals have held.
21-1422 Ferris v. Scism (1) Whether the Fourth Amendment requires a police officer to wait until an armed suspect points the barrel of his handgun in the officer’s direction before the officer can deploy lethal force to protect himself and innocents in the area; (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in denying Detective Brett Ferris qualified immunity without even identifying what material facts defined the immunity questions; (3) whether the 2nd Circuit erred in deferring the qualified immunity questions to the “post-verdict” stage of the trial so that immunity would only be addressed in the event a jury issued a verdict against Ferris; and (4) whether the 2nd Circuit’s decision below disregarded the Supreme Court’s repeated holdings that qualified immunity is immunity from suit, not merely immunity from judgment, when it declined to define or decide the immunity questions despite a robust record containing undisputed facts.
21-1418 Santos v. U.S. (1) Whether, if a physician’s good faith is a complete defense to a prosecution for prescribing controlled substances without a legitimate medical purpose or outside the usual course of professional practice 21 U.S.C. § 841(a)(1), as the Supreme Court may hold in Ruan v. United States, an expert may provide incorrect legal opinion testimony that the test is purely objective; and (2) whether, at sentencing, district courts may find relevant conduct that has a wag-the-dog effect on the guidelines calculation by using a mere preponderance-of-evidence standard (as four circuits have held), or whether they must instead apply a clear-and-convincing-evidence standard (as one circuit has held).
21-1405 Smith v. Ward (1) Whether the U.S. Court of Appeals for the 11th Circuit erred in applying the Religious Land Use and Institutionalized Persons Act when it held that Georgia need not grant a religious accommodation offered in 39 other prison systems; (2) whether RLUIPA allows religious accommodations to be denied based on any plausible risk to penological interests, if the government merely asserts that it chooses to take no risks; and (3) whether RLUIPA prohibits courts from granting any religious accommodation short of the full accommodation sought by a plaintiff prisoner.
21-1402 Outdoor One Communications LLC v. Charter Township of Canton, Michigan (1) Whether a speaker must first engage in self-censorship to have standing to attack the constitutionality of a prior restraint on its speech; and (2) whether a speaker lacks standing to challenge a facially content-based regulation of its speech if a court concludes the speaker receives “generous” treatment under the scheme.
21-1399 Al-Maqablh v. Heinz Whether the U.S. Court of Appeals for the 6th Circuit’s decision, rejecting Ali Al-Maqablh's claim on the ground that the prosecution terminated in a manner that did not affirmatively indicate his innocence or demonstrate that a conviction had become improbable, should be vacated and remanded for reconsideration in light of Thompson v. Clark, in which the Supreme Court held that, to satisfy the favorable-termination requirement for a malicious-prosecution claim under 42 U.S.C. § 1983, a plaintiff “need only show that his prosecution ended without a conviction.”
21-1398 Centeno v. Puerto Rico Whether the Supreme Court’s decision in Ramos v. Louisiana bars Puerto Rico from continuing to authorize non-unanimous acquittals.
21-1397 In re Grand Jury Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.
21-1394 Fitisemanu v. U.S. Whether persons born in United States territories are entitled to birthright citizenship under the 14th Amendment’s citizenship clause, including whether the Insular Cases should be overruled.
21-1384 Florida v. U.S. Whether Title II of the Americans with Disabilities Act, which grants any “person alleging discrimination” certain “remedies, procedures, and rights,” authorizes the United States to sue the states in its own name.
21-1373 D.D. v. Los Angeles Unified School District (1) Whether Section 1415(l) of the Individuals with Disabilities Education Act requires exhaustion of a non-IDEA claim seeking money damages that are not available under the IDEA; and (2) whether, and in what circumstances, courts should excuse further exhaustion of the IDEA’s administrative proceedings under Section 1415(l) when such proceedings would be futile by virtue of settlement, or otherwise.
21-1370 Spireon v. Procon Analytics, LLC (1) What the appropriate standard is for determining whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of the art at the time of the patent.
21-1368 Old Dominion Electric Cooperative v. PJM Interconnection, LLC Whether state-law claims that allegedly conflict with federally filed tariffs involve a substantial federal question; or whether the filed-rate doctrine merely operates as a federal preemption defense that, under the well-pleaded-complaint rule, does not confer arising-under jurisdiction.
21-1357 Tyler v. Vannoy (1) Whether, when a capital defendant objected to his attorney’s concession of guilt, the explicit text of the Sixth Amendment and longstanding right-to-counsel jurisprudence circumvent the bar under Teague v. Lane and require the application of McCoy v. Louisiana to cases on collateral review; (2) whether McCoy announced a substantive rule that should be applied retroactively to criminal defendants who were subjected to conviction without being afforded their constitutional right to counsel; and (3) whether the Griffith v. Kentucky rather than Teague standard should apply to determine the retroactive application of McCoy, where initial review collateral claims are not final after direct review.
21-1354 Bast Amron LLP v. U.S. Trustee Region 21 Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Constitution's bankruptcy clause by increasing quarterly fees solely in U.S. Trustee districts.
21-1340 Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation (1) Whether a federal court may force a non-consenting, non-Indian plaintiff to exhaust his claims in tribal court when the defendant tribe has expressly consented by contract to federal or state court jurisdiction and waived both sovereign immunity and tribal exhaustion; and (2) whether a state court may adjudicate a contractual dispute between a tribe and a non-Indian when the tribe has provided specific contractual consent to state court jurisdiction; or instead, whether the Constitution or laws of the United States prohibit such exercises of state court jurisdiction unless the state has assumed general civil jurisdiction over tribal territory under Sections 1322 and 1326 of Title 25.
21-1333 Gonzalez v. Google LLC Whether Section 203(c)(1) of the Communications Decency Act immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information.
21-1327 Apple Inc. v. Qualcomm Incorporated Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.
21-1326 U.S. ex rel. Schutte v. SuperValu Inc. Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it “knowingly” violated the False Claims Act.
21-1322 Sensenich v. PHH Mortgage Corporation (1) Whether appellate courts may affirm a bankruptcy sanctions order on an alternate correct ground even if the order does not analyze the ground; (2) whether sanctions based on inherent judicial power always require a finding of bad faith; and (3) whether Federal Rule of Bankruptcy Procedure 3002.1 authorizes punitive fines as a form of “appropriate relief.”
21-1319 Nordlicht v. U.S. Whether district courts have discretion to weigh the evidence, including the credibility of witnesses, when deciding to grant a new trial under Federal Rule of Criminal Procedure 33, or whether they must defer to the jury’s view of the evidence unless the evidence is patently incredible, defies physical realities, or is similarly flawed.
21-1313 Gottesfeld v. U.S. (1) Whether, under the Speedy Trial Act, if one judge grants an “ends of justice” continuance but fails to explain why, a different judge can make the requisite findings to support the continuance; and (2) whether, when confronted with specific allegations supporting judicial disclosure and disqualification, a district court exceeds its discretion by denying a disqualification motion without any explanation or disclosure necessary to facilitate meaningful appellate review.
21-1307 Santa Ana Healthcare & Wellness Centre, LP v. Mondragon Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act.
21-1297 Grady v. U.S. Whether the Religious Freedom Restoration Act imposes a burden on the government to demonstrate that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice (in this case, prosecution of Clare Grady, Carmen Trotta, and Martha Hennessy) as the U.S. Courts of Appeals for the 1st, 3rd, and 9th Circuits would require, or whether the persons claiming under RFRA the infringement of their religious freedoms bear the burden to provide alternative means which the government need merely refute, as the U.S. Courts of Appeals for the 8th and 10th Circuits would hold, and as the U.S. Court of Appeals for the 11th Circuit held below.
21-1296 City of Edmond, Oklahoma v. BNSF Railway Company (1) Whether, in determining whether a state law affecting railroads is preempted, a court may look only to the Interstate Commerce Commission Termination Act, as the U.S. Courts of Appeals for the 5th and 10th Circuits have held, or whether courts must also consider all other relevant federal railroad statutes (such as the Federal Railroad Safety Act), as the U.S. Courts of Appeals for the 2nd, 6th, 8th, 9th, and District of Columbia Circuits have held; and (2) whether state authority over rail safety, expressly preserved by the FRSA, includes public safety at rail crossings, as the 8th Circuit holds with agreement from the relevant federal agency, or whether it is limited to state regulation of the safety of participants in the railroad system, as the 10th Circuit held.
21-1295 St. Augustine School v. Underly (1) Whether summary reversal is warranted when the U.S. Court of Appeals for the 7th Circuit did not consider this case in light of Espinoza v. Montana Department of Revenue, as ordered by the Supreme Court on July 2, 2020; (2) whether summary reversal is warranted when the 7th Circuit concluded that an overlapping state remedy rendered unnecessary resolution of the petitioners' federal constitutional claims under 42 U.S.C. § 1983 in compliance with the Supreme Court’s mandate; and (3) whether summary reversal is warranted when the 7th Circuit declined to hold that the petitioners' First Amendment rights were violated, despite agreeing that the respondents withheld from the petitioners otherwise-available public benefits “for reasons that can be tied to [the petitioners'] religious preference” and following a “doctrinal determination” by the government.
21-1292 Jones v. City of Detroit, Michigan Whether a public entity can be vicariously liable under a theory of respondeat superior for its employees’ violations of Title II of the Americans with Disabilities Act or the Rehabilitation Act.
21-1283 Animal Science Products v. Hebei Welcome Pharmaceutical Co. Ltd. (1) Whether, despite the Supreme Court’s “well established” interpretation of the Sherman Act, U.S. courts may reinterpret the same text of that act case by case using a discretionary 10-factor balancing test under the doctrine of prescriptive comity; and (2) whether a court interpreting the meaning of foreign law under Federal Rule of Civil Procedure 44.1 is limited to the “face” of written legal materials, as the decision below held, or may also consider evidence as to how foreign law is implemented and enforced that would be relevant to the interpretive inquiry in the foreign legal system.
21-1281 Interactive Wearables, LLC v. Polar Electro Oy (1) What the appropriate standard is for determining whether a patent claim is “directed to” a patent-ineligible concept under step one of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent; and (3) whether it is proper to apply 35 U.S.C. § 112 considerations to determine whether a patent claims eligible subject matter under 35 U.S.C. § 101.
21-1272 Monsanto Company v. Pilliod (1) Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency’s approval and the EPA has repeatedly concluded that the warning is not appropriate; and (2) whether a punitive-damages award that is a fourfold multiple of a substantial compensatory-damages award violates the 14th Amendment’s due process clause when the defendant, Monsanto Company, acted in accordance with the scientific and regulatory consensus regarding the safety of its product.
21-1271 Moore v. Harper Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.
21-1270 MOAC Mall Holdings LLC v. Transform Holdco LLC Whether Bankruptcy Code Section 363(m) limits the appellate courts’ jurisdiction over any sale order or order deemed “integral” to a sale order, such that it is not subject to waiver, and even when a remedy could be fashioned that does not affect the validity of the sale.
21-1262 TitleMax of Delaware v. Weissmann Whether the dormant commerce clause prohibits Pennsylvania from extending its lending laws beyond its borders to loans that out-of-state lenders make to Pennsylvania residents at brick-and-mortar stores in Delaware, Virginia, and Ohio.
21-1258 Hegar v. Texas Entm't Association Whether, under the Tax Injunction Act, a state revenue measure is a tax if it raises public revenue, notwithstanding a regulatory purpose, as three circuits would hold; if the measure lacks corresponding administrative benefits, as eight circuits would hold; or only if it serves no regulatory purpose at all, as the U.S. Court of Appeals for the 5th Circuit has held.
21-1246 Postmates, LLC v. Winns Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-1245 O’Donnell & Sons v. New York State Department of Tax and Finance Whether the Federal Credit Union Act—which exempts federal credit unions “from all taxation” other than taxes on credit unions’ real property and tangible personal property—prohibits the imposition of a state tax on the recording of federal credit union mortgages.
21-1243 City of Oakland, California v. Oakland Raiders Whether a court may deny a plaintiff with an antitrust injury proximately caused by a defendant’s antitrust violation a Clayton Act cause of action based on a multifactor, prudential balancing test of “antitrust standing.”
21-1228 Ameranth v. Olo (1) What the appropriate standard is for determining whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the two-step framework from Alice Corp. v. CLS Bank International for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court, based on the scope of the claims alone or a question of fact, based on the state of art at the time of the invention.
21-1218 Ayres v. Indirect Purchaser Plaintiffs (1) Whether a final judgment moots a pending appeal from an order denying intervention-of-right; and (2) whether a district court possesses subject matter jurisdiction to allow class members to intervene-of-right directly into a case coordinated in a multi-district litigation proceeding.
21-1217 Columbia House of Brokers Realty v. Designworks Homes Whether floor plans constitute “pictures, paintings, photographs, or other pictorial representations” of an architectural work within the meaning of 17 U.S.C. § 120(a).
21-1215 Gun Owners of America v. Garland (1) Whether the definition of “machinegun” found in 26 U.S.C. § 5845(b) is clear and unambiguous, and whether bump stocks meet that definition; (2) whether deference under Chevron v. Natural Resources Defense Council should be given to agency interpretations of ambiguous criminal statutes, displacing the rule of lenity; and (3) whether courts should give deference to agencies when the government expressly waives Chevron.
21-1211 George v. House of Hope Recovery Whether Federal Rule of Appellate Procedure 3 permits a court of appeals to dismiss an appeal because the appellant did not serve the notice of appeal.
21-1210 Scott County, Tennesse v. Brawner Whether the Supreme Court should apply the subjective test for deliberate indifference set forth in Farmer v. Brennan to claims by pretrial detainees of inadequate medical care when the application of the solely objective standard in Kingsley v. Hendrickson to these claims fails to consider the difference between action and inaction, results in the constitutionalization of medical malpractice, and creates the only situation in which a person can be held personally liable for violating the constitutional rights of another without committing any intentional act.
21-1197 KK-PB Financial, LLC v. 160 Royal Palm, LLC (1) Whether the dismissal of an appeal of a bankruptcy court confirmation order based on “equitable mootness” renders an appeal from the same case “constitutionally moot,” even though a possibility of relief for the appellant still exists; and (2) whether the judge-made doctrine of “equitable mootness” in the context of bankruptcy appeals – which has been used to dismiss appeals despite the presence of federal jurisdiction and the existence of live disputes – should be rejected or at least subject to a requirement to conduct a preliminary review of the merits of the appeal.
21-1193 Oklahoma v. Wadkins What requirements a criminal defendant must satisfy to qualify as an “Indian” under the Major Crimes Act.
21-1191 Gonzalez v. U.S. Whether federal district courts exceed their statutory or Article III power by issuing proclamations that their dismissal “counts as a ‘strike’ within the meaning of 28 U.S.C. § 1915(g)” even though that question is not presented and, if so, whether such ultra vires proclamations are immune from appellate review.
21-1179 Lund v. Datzman Whether the Heck v. Humphrey bar on suits under 42 U.S.C. § 1983 that “would necessarily imply the invalidity” of a conviction that has not been set aside is categorically inapplicable when a convicted individual brings a Fourth Amendment claim seeking damages for an unreasonable search or seizure but not for the conviction obtained using fruits of the constitutional violation, regardless of whether the factual record reveals a particular exclusionary-rule exception or harmless-error theory that could potentially sustain the conviction’s validity despite the violation.
21-1170 Ciminelli v. U.S. Whether the U.S. Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud — which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud — states a valid basis for liability under the federal wire fraud statute.
21-1169 Kaloyeros v. U.S. Whether the deprivation of accurate information regarding a transaction, without more, is “property” under the wire fraud statute, as the U.S. Court of Appeals for the 2nd Circuit held under its “right to control” theory of property-based fraud.
21-1161 Aiello v. U.S. (1) Whether paying an influential private citizen to advocate one’s position before a government agency can constitute honest services fraud under 18 U.S.C. § 1346; and (2) whether deception that deprives a person of “potentially valuable economic information,” without more, can constitute “money or property” fraud under the federal mail and wire fraud statutes.
21-1158 Percoco v. U.S. Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.
21-1145 Molina Healthcare of Illinois v. Prose (1) Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases to plead details of the alleged false claims; and (2) whether a request for payment that makes no specific representations about the goods or services provided can be actionable under an implied false certification theory.
21-1134 Adams v. Department of Homeland Security Whether 10 U.S.C. § 12301(d) is “a provision of law referred to in section 101(a)(13)(B) of title 10,” with the consequence that federal employees serving on active duty may collect differential pay for periods when they are called to active duty under Section 12301(d).
21-1124 National Postal Policy Council v. Postal Regulatory Commission Whether the nondelegation doctrine should be strengthened to disallow Congress from transferring to a federal agency the power to rewrite the postal rate-setting system without establishing any requirements that the system would have to meet.
21-1123 Harrington v. Clinton Nurseries (1) Whether Section 1004(a) of the Bankruptcy Judgeship Act of 2017, which amended the schedule of quarterly fees payable to the United States Trustee in certain pending bankruptcy cases, contravened Congress’s constitutional authority to “establish ... uniform Laws on the subject of Bankruptcies” because it was initially applied only in the 88 federal judicial districts that have United States Trustees but not in the 6 districts that have Bankruptcy Administrators; and (2) whether, if Section 1004(a) is found unconstitutional, the appropriate remedy is to require the United States Trustee to refund a portion of the quarterly fees paid by respondents in a United States Trustee district.
21-1089 Smith v. U.S. (1) Whether the jury should have been allowed to convict the defendants on the hypothetical existence of all of the elements of a conspiracy under the Racketeer Influenced and Corrupt Organizations Act; and (2) whether the jury instruction – which, for example, asked the jury to find that “a conspirator was or would be employed by or associated with the enterprise” – violated the defendants’ right to free speech in violation of the First Amendment by punishing mere talk.
21-1066 Washington Bankers Association v. Washington Whether a law that is triggered by a proxy for participating in interstate commerce and that burdens out-of-state entities almost exclusively violate the dormant commerce clause.
21-1065 Hope v. Harris (1) Whether decades of solitary confinement can, under some circumstances, violate the Eighth Amendment, as at least five circuits have held, or whether solitary confinement can never run afoul of the Eighth Amendment, as the U.S. Court of Appeals for the 5th Circuit held below and three other circuits have held; and (2) whether the due process clause requires hearings where prison officials are open to the possibility of a different outcome, as at least seven circuits have held, or whether a hearing that rubber-stamps a prisoner’s placement suffices, as the 5th Circuit held below.
21-1052 U.S., ex rel. Polansky v. Executive Health Resources Whether the government has authority to dismiss a False Claims Act suit after initially declining to proceed with the action, and what standard applies if the government has that authority.
21-998 Bierbach v. Digger’s Polaris Whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury. CVSG: 5/16/2022
21-994 Kapoor v. U.S. (1) Whether a non-physician may be convicted of conspiring with a physician to prescribe controlled substances outside the course of professional practice under 21 U.S.C. § 841(a) without regard to the non-physician’s understanding that the physician believed their prescribing to be within the usual course of professional practice; and (2) whether a federal court must grant a motion for judgment of acquittal when, after construing the evidence in the light most favorable to the government and considering both exculpatory and inculpatory inferences, the evidence of guilt and innocence is in equipoise.
21-975 Idaho v. Howard Whether, when officers lawfully deploy a narcotics-detection dog on the exterior of a vehicle and, without any direction, prompting, or facilitation by officers, the dog briefly touches the vehicle or places its snout through an open window, the dog’s conduct constitutes a Fourth Amendment search by officers.
21-970 Crow v. Fontenot Whether “new” evidence, as referred to in Schlup v. Delo and McQuiggin v. Perkins, means evidence that was not available at the time of trial or, under the broad reading adopted below, encompasses any evidence, including evidence known by the defendant and/or available with due diligence, not presented at trial.
21-746 Apple Inc. v. Qualcomm Incorporated Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents. CVSG: 5/24/2022
21-676 Musta v. Mendota Heights Dental Center Whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury. CVSG: 5/16/2022
21-471 Doe 1 v. Express Scripts (1) Whether an administrator hired by a plan under the Employee Retirement Income Security Act of 1974 acts as a fiduciary when it controls prices paid by the plan or its participants (as the U.S. Courts of Appeals for the 4th, 5th, 7th, 8th, and 9th Circuits hold) or whether control over pricing is exempt from the definition of “fiduciary” (the exception from DeLuca v. Blue Cross Blue Shield of Michigan) if the administrator is in the “business” of setting prices for its clients (as the U.S. Courts of Appeals for the 2nd and 6th Circuits maintain); and (2) whether, if the DeLuca exception is, in fact, a proper gloss on ERISA based on the Supreme Court’s decision in Pegram v. Herdrich, it exempts from fiduciary status a third-party benefit manager that exercises ongoing discretion over the actual prices charged to the plans pursuant to a contract with the plan administrator. CVSG: 5/24/2022
21-462 Johnson v. Bethany Hospice and Palliative Care LLC Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases who plead a fraudulent scheme with particularity to also plead specific details of false claims. CVSG: 5/24/2022
21-438 Olaf Sööt Design, LLC v. Daktronics Whether the Seventh Amendment allows the U.S. Court of Appeals for the Federal Circuit to reverse a jury verdict based on a sua sponte new claim construction of a term the district court concluded was not a term of art and construed to have its plain and ordinary meaning; where the Federal Circuit’s sua sponte claim construction essentially recasts a specific infringement factual question, previously decided by the jury, as a claim construction issue, to be decided de novo by the appellate court. CVSG: 5/11/2022
21-420 Postmates, LLC v. Santana Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-382 Strauss v. Credit Lyonnais, S.A. Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act. CVSG: 5/24/2022
21-381 Weiss v. National Westminster Bank, PLC Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act. 21-260 Virgin America v. Bernstein Whether the Airline Deregulation Act preempts generally applicable state laws that have a significant impact on airline prices, routes, and services, as the Supreme Court and four circuits have held, or whether it preempts such laws only if they bind an airline to a particular price, route, or service, as the U.S. Court of Appeals for the 9th Circuit has held. CVSG: 5/24/2022
21-241 Monsanto Company v. Hardeman (1) Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency's approval and the EPA has repeatedly concluded that the warning is not appropriate; and (2) whether the U.S. Court of Appeals for the 9th Circuit’s standard for admitting expert testimony — which departs from other circuits’ standards — is inconsistent with the Supreme Court’s precedent and Federal Rule of Evidence 702. CVSG: 5/10/2022
21-194 California Trucking Association v. Bonta Whether the Federal Aviation Administration Authorization Act preempts the application to motor carriers of a state worker-classification law that effectively precludes motor carriers from using independent owner-operators to provide trucking services. CVSG: 5/24/2022
21-119 Postmates, LLC v. Rimler Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
20-1425 C.H. Robinson Worldwide v. Miller Whether a common-law negligence claim against a freight broker is preempted because it does not constitute an exercise of the “safety regulatory authority of a State with respect to motor vehicles” within the meaning of the Federal Aviation Administration Authorization Act’s safety exception. CVSG: 5/24/2022
20-891 American Axle & Manufacturing Inc. v. Neapco Holdings LLC (1) What standard determines whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent. 5/24/2022

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
21-1043 Abitron Austria GmbH v. Hetronic Int'l Whether the U.S. Court of Appeals for the 10th Circuit erred in applying the Lanham Act, which provides civil remedies for infringement of U.S. trademarks, extraterritorially to Abitron Austria GmbH's foreign sales, including purely foreign sales that never reached the United States or confused U.S. consumers.
21-1013 Republic of Turkey v. Usoyan (1) Whether the discretionary function rule within the Foreign Sovereign Immunities Act—which preserves foreign sovereign immunity for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused”—applies to claims based upon a presidential security detail’s use of force during an official state visit to the United States, when they are acting within the scope of their employment; (2) whether the U.S. Court of Appeals for the District of Columbia Circuit’s opinion conflicts with relevant decisions of the Supreme Court interpreting the policy prong of the discretionary function rule by authorizing judges to second-guess whether a visiting presidential security detail’s discretionary use of physical force was “plausibly” related to protecting their president, rather than determining whether a presidential security detail’s decisions to physically engage with encroaching civilians is “susceptible to policy analysis”; and (3) which party bears the burden of proving that the discretionary function rule does not apply.
21-968 Fairfax County School Board v. Doe (1) Whether a recipient of federal funding may be liable in damages in a private action under Davis v. Monroe County Board of Education in cases alleging student-on-student sexual harassment when the recipient’s response to such allegations did not itself cause any harassment actionable under Title IX; and (2) whether the requirement of “actual knowledge” in a private action under Davis is met when a funding recipient lacks a subjective belief that any harassment actionable under Title IX occurred.
21-936 U.S. ex rel. Owsley v. Fazzi Associates Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases who plead a fraudulent scheme with particularity to also plead specific details of false claims.
21-867 Midwest Air Traffic Control Service v. Badilla Whether state-law tort claims that arise out of the uniquely federal sphere of the military’s combat operations are preempted by the interests embodied in the Federal Tort Claims Act’s combatant-activities exception.
21-757 Amgen Inc. v. Sanofi (1) Whether enablement for purposes of Section 112 of the Patent Act is “a question of fact to be determined by the jury,” as the Supreme Court has held, or “a question of law that [the court] review[s] without deference,” as the U.S. Court of Appeals for the Federal Circuit holds; and (2) whether enablement is governed by the statutory requirement that the specification teach those skilled in the art to “make and use” the claimed invention, or whether it must instead enable those skilled in the art “to reach the full scope of claimed embodiments” without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial “‘time and effort.’”
21-599 Kinney v. HSBC Bank USA, N.A. Whether a bankruptcy court may deny a motion to dismiss and/or grant a completion discharge when there remains, at the end of that plan term, a shortfall that the debtor is willing and able to cure within a reasonable time, or whether such a payment made after the five-year period of a Chapter 13 plan is not a payment “under the plan” but an impermissible modification after the plan ended.