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Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
18-587 Department of Homeland Security v. Regents of the University of California (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.
18-588 Trump v. NAACP (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.
18-589 McAleenan v. Vidal (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.
18-776 Guerrero-Lasprilla v. Barr Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”
18-916 Dex Media Inc. v. Click-To-Call Technologies, LP (1) Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply; and (2) whether 35 U.S.C. § 315(b) bars institution of an inter partes review when the previously served patent infringement complaint, filed more than one year before the inter partes review petition, had been dismissed without prejudice.
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.
18-999 Atlanta Gas Light Co. v. Bennett Regulator Guards Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in concluding that it had jurisdiction to review the Patent Trial and Appeal Board’s decision to institute inter partes review of respondent’s patent over respondent’s objection that it was time-barred; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits.
18-1015 Ovalles v. Barr (1) Whether the application of a legal standard to an undisputed set of facts is a question of law, or a pure question of fact that may be barred from judicial review; or, more specifically (2) whether the criminal alien bar, 8 U.S.C. § 1252(a)(2)(C), tempered by 8 U.S.C. § 1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
18-1023 Maine Community Health Options v. U.S. (1) Whether—given the “cardinal rule” disfavoring implied repeals, which applies with “especial force” to appropriations acts and requires that repeal not to be found unless the later enactment is “irreconcilable” with the former—an appropriations rider whose text bars the agency’s use of certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, and is thus not inconsistent with it, can nonetheless be held to impliedly repeal the obligation by elevating the perceived “intent” of the rider (drawn from unilluminating legislative history) above its text, and the text of the underlying statute; and (2) whether—when the federal government has an unambiguous statutory payment obligation, under a program involving reciprocal commitments by the government and a private company participating in the program—the presumption against retroactivity applies to the interpretation of an appropriations rider that is claimed to have impliedly repealed the government’s obligation.
18-1027 Superior Communications Inc. v. Voltstar Technologies Inc. (1) Whether, under 35 U.S.C. § 314(d), a party may appeal the Patent Trial and Appeal Board’s application of 35 U.S.C. § 315(b)’s time-bar provision made during its decision to institute inter partes review; and (2) whether 35 U.S.C. § 315(b) precludes the Patent Trial and Appeal Board from instituting inter partes review when the petitioner sought inter partes review more than a year after it was served with a patent infringement complaint that was voluntarily dismissed without prejudice.
18-1028 Moda Health Plan Inc. v. U.S. Whether Congress can evade its unambiguous statutory promise to pay health insurers for losses already incurred simply by enacting appropriations riders restricting the sources of funds available to satisfy the government’s obligation.
18-1038 Land of Lincoln Mutual Health Insurance Co. v. U.S. Whether a temporary cap on appropriations availability from certain specified funding sources may be construed, based on its legislative history, to abrogate retroactively the government’s payment obligations under a money-mandating statute, for parties that have already performed their part of the bargain under the statute.
18-1059 Kelly v. U.S. Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.
18-1150 Georgia v. Public.Resource.Org Inc. Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.
18-6943 Banister v. Davis (1) Whether Gonzalez v. Crosby extends to post-judgment motions filed under Federal Rule of Civil Procedure 59(e); (2) whether, if Gonzalez does apply, a timely filed Rule 59(e) motion should toll the time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(iv); and (3) whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has be recharacterized as a successive habeas petition if that recharacterization will effect his ability to file a timely notice of appeal.
18-7277 McGee v. McFadden (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.
18-7449 Patton v. U.S. (1) Whether a district court has the authority to reconsider the merits of a 28 U.S.C. § 2255 action in response to a prisoner’s timely post-judgment motion under Federal Rule of Civil Procedure 59(e); and (2) whether, assuming that a prisoner’s notice of appeal would otherwise be timely under Federal Rule of Appellate Procedure 4(a)(4)(A), the court of appeals’s subsequent decision that the post-judgment motion was, in substance, a successive “claim” for relief renders the appeal of the original judgment untimely and deprives that court of jurisdiction over the appeal.

Featured Petitions

Docket Case Page Issue(s)
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.
18-1367 Norfolk Southern Railway Co. v. Sumner Whether the Federal Employers Liability Act permits liability when a plaintiff cannot meet the common-law standard of proof for but-for causation.
18-1362 Hall v. Merrill Whether, and under what circumstances, a candidate can continue to challenge a ballot-access rule after the election over which he originally sued has passed.
18-1285 Hyatt v. Iancu Whether the Manual of Patent Examining Procedure Section 1207.04 violates patent applicants’ statutory right of appeal following a second rejection.
18-1276 Levert v. U.S. Whether, or under what circumstances, a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, when the record is silent as to whether the district court based on its original judgment on that provision or another provision of the same statute.
18-1269 Rodriguez v. Federal Deposit Insurance Corp. Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law “Bob Richards rule,” as three circuits hold, or based on the law of the relevant state, as four circuits hold.
18-1265 September Ends Co. v. Pension Benefit Guaranty Corp. What is the proper standard for successor liability for unpaid Employee Retirement Income Security Act pension obligations?
18-1233 Romag Fasteners Inc. v. Fossil Inc. Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a).
18-1230 Zamudio v. U.S. Whether a search-warrant application that fails to provide any particularized nexus between an individual’s alleged drug-trafficking activity and the individual’s residence can provide probable cause for a warrant to search the residence.
18-1224 NuStar Energy Services v. ING Bank N.V. Whether a party that physically supplies a vessel with fuel or other necessaries possesses a statutory maritime lien when the vessel owner or its authorized agent ordered those necessaries and directed the supplier to provide them, regardless of contractual relationships between the vessel owner and intermediate parties.
18-1219 Illinois v. Bonilla (1) Whether a sniff by a drug-detection dog conducted in the common area of an apartment building is a Fourth Amendment search under Florida v. Jardines; and (2) whether, if the dog-sniff was an unreasonable search, the good-faith exception to the exclusionary rule applies.
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.
18-1211 NuStar Energy Services v. ING Bank N.V. Whether a party that physically supplies a vessel with fuel or other necessaries possesses a statutory maritime lien when the vessel owner or its authorized agent ordered those necessaries and directed the supplier to provide them, regardless of contractual relationships between the vessel owner and intermediate parties.
18-1199 InvestPic, LLC v. SAP America Inc. Whether the U.S. Court of Appeals for the Federal Circuit’s “physical realm” test contravenes the Patent Act and the Supreme Court’s precedent by categorically excluding otherwise patentable processes from patent eligibility.
18-1195 Espinoza v. Montana Department of Revenue Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.
18-1166 Sievers v. Nebraska Whether Illinois v. Lidster allows the police to stop a criminal suspect in the absence of reasonable suspicion on the ground that the stop is merely “information-seeking.”
18-1154 Integrity Staffing Solutions Inc. v. Busk (1) Whether the Portal-to-Portal Act modified the Fair Labor Standards Act’s broad, pre-1947 definition of “work”; and (2) whether the FLSA’s definition of “work” requires exertion beyond the minimal effort involved in passing through a security screening.
18-1140 Avco Corp. v. Sikkelee Whether the Federal Aviation Act pre-empts state-law design-defect claims.
18-1086 Lucky Brand Dungarees Inc. v. Marcel Fashion Group Inc. Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.
18-1048 GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
18-837 Marshall v. West Alabama Women’s Center Whether a state ban on dismemberment abortions is unconstitutional when there is a reasonable medical debate that alternatives to the banned procedure are safe.
18-612 CSX Transportation Inc. v. Alabama Department of Revenue Whether, as the U.S. Court of Appeals for the 11th Circuit held, Alabama’s imposition of a motor-fuels tax on the fuel used by interstate motor carriers sufficiently justifies Alabama’s imposition of a facially discriminatory sales-and-use tax on railroad diesel fuel, notwithstanding decisions of the Supreme Court and at least one state supreme court. CVSG: 05/21/2019.
18-600 Texas Advanced Optoelectronic Solutions Inc. v. Renesas Electronics America Inc. Whether, under the Patent Act, an “offer[] to sell” occurs when the offer is actually made or when the offer contemplates that the proposed sale will take place. CVSG: 05/21/2019.
18-505 In re U.S. (1) Whether this suit is justiciable under article III; (2) whether this suit should be dismissed for failure to comply with the requirements of the Administrative Procedure Act, 5 U.S.C. § 551, et seq.; and (3) whether this suit should be dismissed because there is no right to “a climate system capable of sustaining human life” under the due process clause or a public-trust doctrine.
18-486 Toshiba Corp. v. Automotive Industries Pension Trust Fund Whether the Securities Exchange Act applies, without exception, whenever a claim is based on a domestic transaction, as the U.S. Court of Appeals for the 9th Circuit held below, or whether in certain circumstances the Exchange Act does not apply, despite the claim being based on a domestic transaction, because other aspects of the claim make it impermissibly extraterritorial, as the U.S. Court of Appeals for the 2nd Circuit has held. CVSG: 05/20/2019.
18-447 Alabama Department of Revenue v. CSX Transportation Inc. Whether, and under what circumstances, a state can justifiably maintain a sales-and-use tax exemption for fuel used by vessels to transport goods interstate without extending the same exemption to rail carriers under 49 U.S.C. § 11501(b)(4). CVSG: 05/21/2019.
18-164 First Solar Inc. v. Mineworkers’ Pension Scheme Whether a private securities-fraud plaintiff may establish the critical element of loss causation based on a decline in the market price of a security where the event or disclosure that triggered the decline did not reveal the fraud on which the plaintiff’s claim is based. CVSG: 05/15/2019.
18-109 Ariosa Diagnostics Inc. v. Illumina Inc. Whether unclaimed disclosures in a published patent application and an earlier application it relies on for priority enter the public domain and thus become prior art as of the earlier application’s filing date, or, as the U.S. Court of Appeals for the Federal Circuit held, does the prior art date of the disclosures depend on whether the published application also claims subject matter from the earlier application. CVSG: 05/21/2019.
18-106 Turner v. U.S. (1) Whether the Sixth Amendment right to counsel attaches when the prosecutor conducts plea negotiations before the filing of a formal charge; and (2) whether the Sixth Amendment right to counsel attaches when a federal prosecutor conducts plea negotiations before the filing of a formal charge in federal court when the defendant has already been charged with the same offense in state court.
17-1712 Thole v. U.S. Bank, N.A. (1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; and (2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof. CVSG: 05/21/2019.
17-1406 Republic of Sudan v. Opati (1) Whether the term “extrajudicial killing” means a summary execution by state actors, as is consistent with international law and the statutory text, context and purpose of 28 U.S.C. § 1605A(a); (2) whether foreign sovereign immunity may be withdrawn for emotional distress claims brought by family members of victims under 28 U.S.C. § 1605A(a)(2)(A)(ii); (3) whether 28 U.S.C. § 1605A(c) provides the exclusive remedy for actions brought under 28 U.S.C. § 1605A(a), and forecloses state substantive causes of action previously asserted through the “pass-through” provision of 28 U.S.C. § 1606; (4) whether the statute of limitations contained in 28 U.S.C. § 1605A(b) is jurisdictional in nature and, if it is not, whether the U.S. Court of Appeals for the District of Columbia Circuit should nonetheless have heard Sudan’s limitations defense asserted through its timely, direct appeal; and (5) whether the undisputed fact of civil war, internal strife and partitioning of Sudan into two counties constitutes excusable neglect or extraordinary circumstances for vacatur under Rule 60(b) of the Federal Rules of Civil Procedure. CVSG: 05/21/2019.
17-1268 Opati v. Republic of Sudan (1) Whether a party who knowingly and intentionally twice defaults; acts to delay, and not in good faith; and affirmatively elects not to contest a nonjurisdictional legal issue before judgment may nevertheless demonstrate “extraordinary” and “exceptional” circumstances warranting appellate review of the forfeited nonjurisdictional legal issue post-judgment; and (2) whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute. CVSG: 05/21/2019.
17-1236 Sudan v. Owens (1) Whether plaintiffs suing a foreign state bear a “lighter burden” in establishing the facts necessary for jurisdiction than in proving a case on the merits despite the Supreme Court’s holding to the contrary — at the urging of the Solicitor General and the Department of State — in Venezuela v. Helmerich & Payne International Drilling Co.; (2) whether plaintiffs suing a foreign state can establish facts necessary for jurisdiction “based solely upon” the opinion testimony of so-called “terrorism experts,” when the record lacks admissible factual evidence sufficient to establish jurisdiction; and (3) whether plaintiffs’ failure to prove a foreign state “either specifically intended or directly advanced” a terrorist attack is “irrelevant to proximate cause and jurisdictional causation,” when (i) the Foreign Sovereign Immunities Act’s “terrorism exception” establishes jurisdiction over a foreign state only when the foreign state provided material support “for” a specified act of terrorism, and (ii) proximate causation requires a “direct relationship” between the defendant’s conduct and the resultant injury. CVSG: 05/21/2019.
17-1183 Airline Service Providers Association v. Los Angeles World Airports Whether the “market participant” exception to federal pre-emption allows a state or local government to impose an otherwise pre-empted rule on private companies even if the government is not procuring any good or service from them. CVSG: 05/21/2019.
17-1175 Poarch Band of Creek Indians v. Wilkes Whether an Indian tribe is immune from civil liability for tort claims asserted by nonmembers. CVSG: 05/21/2019.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
22O65 Texas v. New Mexico
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.
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.”
18-817 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.
18-581 Argentine Republic v. Petersen Energia Inversora S.A.U. Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation. CVSG: 05/21/2019.
18-575 YPF S.A. v. Petersen Energia Inversora S.A.U. Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation. CVSG: 05/21/2019.
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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