Briefly Mentioned :

Briefly Noted :

On Monday, the Supreme Court released additional orders from the October 18 conference. The justices did not add any new cases to their merits docket.

Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
17-6086 Gundy v. U.S. Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.
17-8830 Paul v. U.S. Whether the Sex Offender Registration and Notification Act’s delegation to the U.S. attorney general in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
18-1019 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.
18-6852 Caldwell v. U.S. Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
18-8801 Terry v. Oklahoma Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an "Indian reservation" today under 18 U.S.C § 1151(a).
18-9517 Isom v. Arkansas Whether Sam Pope and Kenneth Isom’s significant adversarial history created an unconstitutional risk of bias under the due process clause when Pope later sat as the trial judge in Isom’s unrelated coram nobis hearing.
18-9526 McGirt v. Oklahoma Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
19-16 Peithman v. U.S. Whether 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture imposed jointly and severally among co-conspirators, as the U.S. Courts of Appeals for the 6th and 8th Circuits have held, or whether such joint and several liability is foreclosed under the reasoning of Honeycutt v. United States, as the U.S. Court of Appeals for the 3rd Circuit has held.

Featured Petitions

Docket Case Page Issue(s)
19-343 New York Republican State Committee v. Securities and Exchange Commission (1) Whether Rule 2030 – which regulates the political contributions of those members of the Financial Industry Regulatory Authority who act as “placement agents” – violates the First Amendment by (a) imposing different contribution limits on candidates running for the same office, and/or (b) restricting otherwise lawful political activity despite the Security and Exchange Commission’s failure to identify one instance in which a lawful political contribution alone led to quid pro quo corruption; (2) whether the SEC has the authority to impose restrictions by regulation on the First Amendment rights of placement agents to make or solicit federal political contributions that are otherwise lawful under the Federal Election Campaign Act; and (3) whether Rule 2030 is arbitrary and capricious because it restricts otherwise lawful political activity despite the SEC’s failure to identify one instance in which a lawful political contribution alone led to fraudulent or manipulative practices.
19-337 Regents of the University of Minnesota v. LSI Corporation Whether the inter partes review proceedings brought by private respondents against the University of Minnesota in this case are barred by sovereign immunity.
19-331 Sequoia Capital Operations, LLC v. Gingras Whether, when an arbitration agreement contains a separate “delegation provision” that reserves for an arbitrator the authority to decide any disputes concerning arbitrability, Section 2 of the Federal Arbitration Act requires a court to decide any challenge to that provision’s validity before the court may proceed to address whether the parties’ underlying dispute is arbitrable.
19-329 Winston-Salem Industries for the Blind v. PDS Consultants Inc. (1) Whether the Tucker Act’s grant of bid-protest jurisdiction to the Court of Federal Claims extends to suits that challenge the lawfulness of a federal agency’s acquisition policies and practices, and their underlying statutory foundation, outside the context of a specific solicitation regarding, or the award of, a government contract; and (2) whether Congress intended 38 U.S.C. § 8127(d)’s competitive-bidding preference for providers owned and controlled by veterans to trump the mandatory requirements of the Javits-Wagner-O’Day Act, which directs the federal government to acquire certain goods and services exclusively from nonprofit entities that employ blind and severely disabled individuals, that dictate that agencies must acquire goods and services in the first instance using the AbilityOne Procurement List.
19-312 Ekhlassi v. National Lloyds Insurance Company Whether the provision under Section 4072 of the National Flood Insurance Act of 1968 of “exclusive” federal jurisdiction applies to suits against private insurers.
19-309 Carney v. Adams (1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; and (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts.
19-307 McKeever v. Barr Whether district courts have inherent authority to release grand jury materials in extraordinary circumstances, such as when the case is historically significant and the public interest strongly favors disclosure.
19-304 Ranger American of the V.I. Inc. v. Balboni Whether the Virgin Islands Supreme Court is bound by the Supreme Court’s equal-protection decisions when Congress explicitly applied the equal protection clause to the territory via a federal statute.
19-293 TKC Aerospace Inc. v. Muhs Whether a debtor’s conduct qualifies as causing a “willful and malicious” injury under 11 U.S.C. § 523(a)(6) when the debtor’s acts were objectively certain to result in the injury giving rise to the debt.
19-293 TKC Aerospace Inc. v. Muhs Whether a debtor’s conduct qualifies as causing a “willful and malicious” injury under 11 U.S.C. § 523(a)(6) when the debtor’s acts were objectively certain to result in the injury giving rise to the debt.
19-284 Mercado-Ramirez v. Barr (1) Whether the phrase “crime involving moral turpitude” in the Immigration and Nationality Act is void for vagueness; and (2) whether an agency may apply its new rule retroactively to a noncitizen who pleaded guilty relying on the agency’s previous rule.
19-281 Capital Associated Industries Inc. v. Stein (1) Whether North Carolina statutes prohibiting Capital Associated Industries Inc.’s attorneys from providing legal assistance to its members violate the freedom of association guaranteed by the First and 14th Amendments; and (2) whether North Carolina statutes prohibiting Capital Associated Industries Inc.’s attorneys from providing legal assistance to its members are a content-based restriction on speech that must be reviewed under strict scrutiny.
19-268 Park Properties Associates, L.P. v. U.S. Whether the Court of Federal Claims has jurisdiction over a breach-of-contract claim against the government when the government signs a contract that establishes contractual obligations for the government but interposes a third-party as a “contract administrator.”
19-251 Americans for Prosperity Foundation v. Becerra Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.
19-248 Jammal v. American Family Insurance Company (1) Whether a district court’s finding that a worker is an employee under the common-law test should be reviewed for clear error, as the U.S. Courts of Appeals for the 4th, 7th, 9th and 10th Circuits hold; using a hybrid standard, as the U.S. Courts of Appeals for the 2nd and 8th Circuits hold; or de novo, as the U.S. Court of Appeals for the 6th Circuit held here; and (2) whether the same traditional inquiry governs under all the statutes that incorporate the common-law test for employee status, as several circuits hold, or whether courts may modify the test based on the purpose of each statute, as the 6th Circuit held here.
19-247 City of Boise, Idaho v. Martin Whether the enforcement of generally applicable laws regulating public camping and sleeping constitutes “cruel and unusual punishment” prohibited by the Eighth Amendment of the Constitution.
19-239 Benzon v. Kell Whether a district court’s order staying and holding in abeyance a capital prisoner’s habeas corpus petition under Rhines v. Weber is immediately appealable under the collateral-order doctrine.
19-234 Libertarian National Committee Inc. v. Federal Election Commission (1) Whether limiting the size of Joseph Shaber’s uncoordinated testamentary bequest to the Libertarian Party violates the party’s First Amendment right to free speech; and (2) whether 52 U.S.C. §§ 30116(a)(1)(B), (a)(9) and 30125(a)(1) violate the First Amendment right of free speech by conditioning the size of contributions to a political party on the content of the party’s speech.
19-230 Prade v. Ohio Whether, when there is newly discovered evidence making it more likely than not that, in a new trial, the defendant would be acquitted, it violates the 14th Amendment’s due process clause to deny a new trial based on Ohio’s uniquely elevated burden of proof in which criminal defendants with newly discovered evidence are granted a new trial only if they provide clear and convincing evidence that, in a new trial, they would be acquitted.
19-229 C.D. v. Natick Public School District Whether a school district’s decision to educate a child with disabilities outside the regular classroom violates the Individuals with Disabilities Education Act’s mainstreaming mandate.
19-227 Syed v. Maryland Whether a court evaluating prejudice under Strickland v. Washington must take the state’s case as it was presented to the jury, as 10 state and federal courts have held, or whether the court may instead hypothesize that the jury may have disbelieved the state’s case, as the Maryland Court of Appeals held below.
19-211 Time Warner Cable Inc. v. Sprint Communications Co. (1) Whether the U.S. Court of Appeals for the Federal Circuit erred by affirming a damages award based on unapportioned end-user service revenues; and (2) whether the Federal Circuit erred in ruling that a patent satisfies 35 U.S.C. §112(a)’s requirement of “a written description of the invention” merely because the specification does “not expressly exclude[]” technology within the scope of the patent claims.
19-205 City of Flint, Michigan v. Guertin (1) Whether the substantive-due-process right to bodily integrity should be extended to protect the public at large from exposure to an environmental toxin resulting from governmental policy decisions; (2) whether it is plausible that a municipal officer’s actions were conscience-shocking when the respondents admit that the policy decisions were based on the advice and direction of the controlling state regulatory agency and with the advice of expert advisors; (3) whether, if the answer to the first or second question is “yes,” the right was clearly established; and (4) whether the city, which was under the substantially complete control and authority of the state under Michigan’s “Local Financial Stability and Choice Act of 2012,” was an arm of the state and thus entitled to immunity from suit under the 11th Amendment.
19-184 U.S. v. Collins Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
19-177 U.S. Agency for Int'l Development v. Alliance for Open Society Int'l Inc. Whether - when in Agency for International Development v. Alliance for Open Society International Inc., the Supreme Court held that the First Amendment bars enforcement of Congress’ directive, which required respondents, United States-based organizations that receive federal funds to fight HIV/AIDS abroad, to “have a policy explicitly opposing prostitution and sex trafficking” as a condition of accepting those funds - the First Amendment further bars enforcement of that directive with respect to legally distinct foreign entities operating overseas that are affiliated with respondents.
19-168 Remington Arms Co. v. Soto Whether the Protection of Lawful Commerce in Arms Act’s predicate exception encompasses alleged violations of broad, generally applicable state statutes, such as the Connecticut Unfair Trade Practices Act, which forbids “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
19-164 Samarripa v. Kizziah Whether federal courts have the authority to impose partial filing fees on habeas petitioners.
19-159 Tapia v. New York Whether, when a witness’s total memory loss prevents him from testifying about his prior out-of-court testimonial statement, the witness’s mere presence at trial is enough to provide the defendant with the opportunity for cross-examination guaranteed by the confrontation clause.
19-152 Amarin Pharma Inc. v. Int'l Trade Commission Whether, when a manufacturer files a Lanham Act claim under the Tariff Act for competitive injuries caused by unfair trade practices, the claim is barred as a matter of law when the International Trade Commission would need to consider the meaning of terms used in the Food, Drug and Cosmetic Act in order to determine whether the claim has merit.
19-131 Knighton v. Cedarville Rancheria of Northern Paiute Indians Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers.
19-122 Thompson v. Hebdon Whether Alaska’s $500 individual-to-candidate and individual-to-group contribution limits violate the First Amendment.
19-107 Asaro v. U.S. Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge of which the defendant was acquitted by a jury.
19-71 FNU Tanzin v. Tanvir Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, permits suits seeking money damages against individual federal employees.
19-64 Lilley v. New Hampshire (1) Whether an ordinance expressly punishing only women, but not men, for identical conduct—being topless in public—classifies on the basis of gender; and (2) whether an ordinance criminalizing exposure of “the female breast,” under which only women are prosecuted for public exposure of their areolas, violates the 14th Amendment’s equal protection clause.
19-62 Carter v. Massachusetts (1) Whether a petitioner’s conviction for involuntary manslaughter, based on words alone, violates the free speech clause of the First Amendment when the petitioner’s communications, which were found to have caused the deceased’s suicide, did not constitute speech that was “an integral part of conduct in violation of a valid criminal statute,” Giboney v. Empire Storage & Ice Co.; and (2) whether the petitioner’s conviction violated the due process clause of the Fifth Amendment because in assisted- or encouraged-suicide cases the common law of involuntary manslaughter fails to provide reasonably clear guidelines to prevent “arbitrary and discriminatory enforcement,” McDonnell v. United States.
19-47 Morgan v. Schott Whether Heck v. Humphrey bars Section 1983 claims for damages in mixed-sanctions cases when the inmate challenges only the nondurational elements of the sanction, expressly forfeiting the right to challenge any addition to the length of his criminal sentence.
19-46 U.S. Patent and Trademark Office v. Booking.com B.V. Whether, when the Lanham Act states generic terms may not be registered as trademarks, the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark.
19-28 Daniels v. U.S. Whether solicitation can by itself constitute an “attempt” within the meaning of the Controlled Substances Act.
18-1566 Scoville v. Securities and Exchange Commission Whether Section 929P(b) of the Dodd-Frank Act’s jurisdictional amendments conferred substantive extraterritorial reach under Sections 10(b) and 17(a) of the Securities Exchange Act in Securities and Exchange Commission enforcement actions and in federal criminal prosecutions.
18-1530 Enplas Display Device Corp. v. Seoul Semiconductor Company, Ltd. Whether, in view of the presumption against extraterritoriality, a foreign defendant’s foreign sales of components to a foreign company qualify as induced infringement, when the defendant knew of, at most, a risk that the components might be incorporated by third parties into infringing products that might be sold by other third parties in the United States.
18-1516 Price v. City of Chicago, Illinois Whether the Supreme Court should reconsider Hill v. Colorado in light of the Supreme Court’s intervening decisions in Reed v. Town of Gilbert and McCullen v. Coakley.
18-1498 UnitedHealth Group Inc. v. Peterson (1) Whether the U.S. Court of Appeals for the 8th Circuit erred in holding—consistent with decisions of the U.S. Court of Appeals for the 1st Circuit but in conflict with those of the U.S. Courts of Appeals for the 3rd, 5th and 7th Circuits—that under Firestone Tire & Rubber Co. v. Bruch, which imposes a highly deferential standard of judicial review to interpretations of Employee Retirement Income Security Act plans by administrators to whom the plans delegate interpretive discretion, an administrator’s determination that an ERISA plan authorizes certain remedial actions or measures is necessarily unreasonable merely because the plan is silent on the matter; and (2) whether the Firestone deference standard allows courts to reject an otherwise reasonable plan construction that is lawful under ERISA but, in the court’s view, pushes ERISA’s boundaries.
18-1469 Department of Homeland Security v. Casa de Maryland (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.
18-1455 Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (1) Whether the Washington Metropolitan Transit Authority’s policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.
18-1424 Thomas v. Anderson Whether the U.S. Court of Appeals for the 7th Circuit correctly held, in an acknowledged conflict with the U.S. Court of Appeals for the 3rd Circuit, that a district court may deny a request for the issuance of a writ of habeas corpus to compel the appearance of a nonparty inmate as a witness at trial based only upon a consideration as to the inconvenience to the government of making that inmate available to testify and without regard to the importance of the potential witness’s testimony to the case at bar.
18-1218 Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa Indians Whether the Bankruptcy Code abrogates the sovereign immunity of Indian tribes.
18-956 Google LLC v. Oracle America Inc. (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. CVSG: 09/27/2019.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
22O65 Texas v. New Mexico
18-1401 Peterson v. Linear Controls Inc. Whether the “terms, conditions, or privileges of employment” covered by Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 are limited only to hiring, firing, promotions, compensation and leave.
18-1140 Avco Corp. v. Sikkelee Whether the Federal Aviation Act pre-empts state-law design-defect claims.
18-926 Putnam Investments, LLC v. Brotherston (1) Whether an ERISA plaintiff bears the burden of proving that “losses to the plan result[ed] from” a fiduciary breach, as the U.S. Courts of Appeals for the 2nd, 6th, 7th, 9th, 10th and 11th Circuits have held, or whether ERISA defendants bear the burden of disproving loss causation, as the U.S. Court of Appeals for the 1st Circuit concluded, joining the U.S. Courts of Appeals for the 4th, 5th and 8th Circuits; and (2) whether, as the U.S. Court of Appeals for the 1st Circuit concluded, showing that particular investment options did not perform as well as a set of index funds, selected by the plaintiffs with the benefit of hindsight, suffices as a matter of law to establish “losses to the plan.”
18-921 Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.
18-817 Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc. Whether patents that claim a method of medically treating a patient automatically satisfy Section 101 of the Patent Act, even if they apply a natural law using only routine and conventional steps.
18-540 Rutledge v. Pharmaceutical Care Management Association Whether the U.S. Court of Appeals for the 8th Circuit erred in holding that Arkansas’ statute regulating pharmacy benefit managers’ drug-reimbursement rates, which is similar to laws enacted by a substantial majority of states, is pre-empted by the Employee Retirement Income Security Act of 1974, in contravention of the Supreme Court’s precedent that ERISA does not pre-empt rate regulation.
18-415 HP Inc. v. Berkheimer Whether patent eligibility 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.
18-349 Patterson v. Walgreen Co. (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be “reasonable” as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employer’s burden in establishing “undue hardship,” as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion of TWA v. Hardison opining that “undue hardship” simply means something more than a “de minimis cost” should be disavowed or overruled.
17-1534 Bank Markazi v. Peterson Whether a foreign sovereign’s property outside of the United States is entitled to sovereign immunity.
17-1530 Banca UBAE, S.p.A. v. Peterson Whether a federal appellate court is required to decide personal jurisdiction over a defendant when the record in the trial court and on appeal is complete, the parties briefed the issue in the trial court and on appeal, but the appellate court ignored the question.
17-1529 Clearstream Banking S.A. v. Peterson Whether foreign sovereign property held by a foreign financial intermediary in a foreign country may, under any circumstances, be subject to execution in United States courts.
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