Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
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).
18-9526 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.
18-9674 Andrus v. Texas Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
19-223 Smyth v. Conservation Commission of Falmouth (1) Whether the loss of all developmental use of property and a 91.5 percent decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central Transportation Co. v. New York City; (2) whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction; and (3) whether the Supreme Court should excise the “character” factor from Penn Central regulatory takings analysis.
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.
19-411 Reed v. Texas (1) How a court should consider under the Brady materiality standard the impact of a key trial witness's assertion of the privilege against self-incrimination and refusal to testify when confronted with the suppressed exculpatory evidence; (2) when expert testimony relied on by the state in a criminal trial is later shown to be scientifically invalid, what is the appropriate standard to assess whether the state’s use of the testimony violated due process; and (3) whether the conviction or execution of a person who is actually innocent of a crime violates the U. S. Constitution.

Featured Petitions

Docket Case Page Issue(s)
19-6875 Runnels v. Texas Whether it is a due process violation when the prosecution uses false expert testimony to obtain a death sentence, regardless of whether the prosecution knows of the falsity.
19-715 Trump v. Mazars USA, LLP Whether the Committee on Oversight and Reform of the U.S. House of Representatives has the constitutional and statutory authority to issue a subpoena to the accountant for President Trump and several of his business entities demanding private financial records belonging to the president.
19-635 Trump v. Vance Whether a grand-jury subpoena served on a custodian of the president’s personal records, demanding production of nearly 10 years’ worth of the president’s financial papers and his tax returns, violates Article II and the Supremacy Clause of the Constitution.
19-583 Cunningham v. McGuire Whether Section 3730(b)(5) of the False Claims Act is a jurisdictional provision that permits courts to consider all the “facts underlying the pending action” to determine its application.
19-574 Poole v. New York State Citizens’ Coalition for Children Whether the Adoption Assistance and Child Welfare Act of 1980’s criteria for partial federal reimbursement unambiguously confer on foster parents a private right of action to compel states to cover the costs of all the eligible expenses for eligible children identified in the CWA.
19-565 Passaro v. Virginia Whether, in the context of a federal claim brought in state court where the state would enjoy sovereign immunity, a state’s voluntary removal to federal court waives sovereign immunity.
19-549 Hannah P. v. Maguire Whether an employment decision that is based on conduct caused by a qualified individual’s disability is insulated from scrutiny under the federal disability-discrimination statutes on the ground that the decision is not made on the basis of disability.
19-547 U.S. Fish and Wildlife Service v. Sierra Club Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.
19-546 Brownback v. King Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1) of the Federal Tort Claims Act, on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.
19-539 Office of Recovery Services v. Latham Whether a state may seek reimbursement for medical expenses, incurred because a third-party tortfeasor injured a Medicaid recipient, from the portion of a settlement that represents all medical expenses—past and future—or only from the portion allocable to past medical expenses.
19-534 Kadria v. Barr Whether the government may commence removal proceedings by issuing a notice to appear that omits the proceedings' time and place.
19-532 U.S. v. California Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.
19-512 Robinson v. Department of Education Whether the Fair Credit Reporting Act authorizes consumers to file civil suits against federal governmental agencies under 15 U.S.C. § 1681n and § 1681o.
19-510 Banegas-Gomez v. Barr Whether the government may commence removal proceedings by issuing a notice to appear that omits the proceedings' time and place.
19-507 Publishers Business Services Inc. v. Federal Trade Commission (1) Whether a district court can award monetary relief under Section 13(b) of the Federal Trade Commission Act, consistent with separation-of-powers principles; and (2) whether a monetary disgorgement award under Section 13(b) of the FTC Act is a penalty and therefore outside a district court’s inherent equity powers.
19-494 Morgan v. Washington Whether a government official who would like to seize someone’s personal property, and has both probable cause and the time to obtain a warrant, must bring his probable cause to a magistrate to obtain a warrant or may, under the plain-view exception, send a fellow officer to take the property.
19-475 Karingithi v. Barr (1) Whether the government may commence removal proceedings by serving a noncitizen with a “notice to appear” that fails to specify the hearing’s time and place; and (2) whether deference under Auer v. Robbins allows an executive agency to interpret a regulation in a way that conflicts with a congressional statute.
19-454 Trump v. Pennsylvania (1) Whether the Departments of Health and Human Services, Labor and the Treasury had statutory authority under the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act of 1993 to expand the conscience exemption to the contraceptive-coverage mandate; (2) whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules – which were issued after notice and comment – invalid under the Administrative Procedure Act; and (3) whether the U.S. Court of Appeals for the 3rd Circuit erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
19-453 Cargill Inc. v. Doe I (1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in – and the plaintiffs suffered their injuries in – a foreign country; and (2) whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.
19-438 Pereida v. Barr Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.
19-433 Sutherland v. U.S. (1) Whether, when a defendant makes false statements to a United States Attorney’s Office in an effort to persuade that office to decline prosecution, the objective institutional relationship of that office with the grand jury satisfies the “nexus” required for obstruction or attempted obstruction of a grand jury proceeding under 18 U.S.C. § 1512(c)(2), regardless of whether the defendant subjectively knew, understood or believed the false documents would be given to the grand jury; and (2) whether, when a prosecutor commits misconduct in summation by misstating evidence relevant to an essential element of the offense, but the defendant fails to object, the fact that the district court provided the jury a standard instruction that “arguments are not evidence” necessarily precludes reversal on appeal for plain error based on the prosecutor’s misconduct.
19-430 Athena Diagnostics Inc. v. Mayo Collaborative Services, LLC Whether a new and specific method of diagnosing a medical condition is patent-eligible subject matter, when the method detects a molecule never previously linked to the condition using novel man-made molecules and a series of specific chemical steps never previously performed.
19-404 Worman v. Healey Whether Massachusetts’ ban on the possession of firearms and ammunition magazines for lawful purposes unconstitutionally infringes the individual right to keep and bear arms under the Second Amendment.
19-386 Monroe County Commission v. A.A. Nettles, Sr. Properties Limited Whether federal law giving the Surface Transportation Board exclusive jurisdiction over abandonment of rail lines and expressly stating that conversion of a railroad right-of-way to an interim trail use shall not be treated “for purposes of any law” as abandonment preempts state law that would deem a railroad right-of-way abandoned because of disuse or conversion to interim trail use.
19-376 Thompson v. Saul Whether, when a party mistakenly but timely files a case in a forum that lacks jurisdiction, that can ever support equitably tolling the statute of limitations.
19-361 Smith v. U.S. (1) Whether the government makes a good-faith effort to obtain a witness’s presence at trial if it curtails its search for that witness because it already has the witness’s deposition testimony; (2) whether the government makes a good-faith effort to obtain a witness’s presence at trial if it forgoes an “easy” investigative step that it has “reason to believe” would procure the absent witness; and (3) whether a witness is “unavailable” if the government releases the witness from its custody without making any arrangements to secure the witness’s presence at trial.
19-357 City of Chicago, Illinois v. Fulton Whether an entity that is passively retaining possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition.
19-351 Federal Republic of Germany v. Philipp (1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.
19-347 AER Advisors Inc. v. Fidelity Brokerage Services, LLC Whether the Bank Secrecy Act, 31 U.S.C. § 5318(g)(3)(A), confers (a) absolute immunity for any disclosure or (b) immunity only if the disclosure is an objectively “possible criminal violation,” is made in good faith, or is not fraudulent; and (2) whether in a diversity case, the transferee court, which is receiving jurisdiction pursuant to 28 U.S.C. § 1404(a) (i.e., only because of witness convenience), must apply the law of the transferor court (including federal law allowing for an immunity defense), or the law of its own court.
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.
19-333 Arlene’s Flowers Inc. v. Washington (1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.
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.
19-307 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.
19-284 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.
19-205 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.
19-177 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.
19-64 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.
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.
18-1455 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.
18-1218 Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa Indians Whether the Bankruptcy Code abrogates the sovereign immunity of Indian tribes.
18-1140 Avco Corp. v. Sikkelee Whether the Federal Aviation Act pre-empts state-law design-defect claims. CVSG: 12/9/2019.
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.
18-926 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.” CVSG: 11/27/2019.
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. CVSG: 12/6/2019.
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. CVSG 12/6/2019.
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. CVSG 12/4/19.
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. CVSG: 12/6/2019.
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. CVSG: 12/9/2019.
17-1534 Bank Markazi v. Peterson Whether a foreign sovereign’s property outside of the United States is entitled to sovereign immunity. CVSG: 12/9/2019.
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. CVSG: 12/9/2019.
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. CVSG: 12/9/2019.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
19-277 HSBC Holdings PLC v. Picard (1) Whether applying Bankruptcy Code Section 550(a)(2) to permit recovery of the proceeds of a foreign transaction that occurred abroad between two foreign parties governed by foreign law constitutes a “domestic” application of Section 550(a)(2) for the purpose of an extraterritoriality analysis; and (2) Whether a bankruptcy court’s and district court’s abstentions from applying U. S. law on grounds of international comity should be reviewed for abuse of discretion, as seven circuits that reached the issue have held, or de novo, as the U.S. Court of Appeals for the 2nd Circuit held.
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.
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