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On Wednesday the Supreme Court hears reargument in Knick v. Township of Scott, Pennsylvania; Miriam Seifter has our coverage.
On Wednesday the Supreme Court also hears oral argument in Tennessee Wine & Spirits Retailers Association v. Blair; Amy Howe has our preview.

Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
17-1445 U.S. v. Herrold Whether a state offense that criminalizes continued unpermitted presence in a dwelling following the formation of intent to commit a crime has “the basic elements of unlawful . . . remaining in . . . a building or structure, with intent to commit a crime” thereby qualifying as “burglary” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).
17-1511 Newton v. Indiana (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.
17-1618 Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
17-1623 Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
17-7224 Secord v. U.S. Whether — when, for the purposes of the Armed Career Criminal Act, generic burglary occurs when a defendant unlawfully enters a building or unlawfully remains in the building, with the intent to commit a crime — the requisite intent to commit a crime must exist when the defendant enters or decides to remain in the building, or whether the intent may be formed at any time while the defendant is present in the building.
17-7496 Ferguson v. U.S. Whether the Taylor v. United States definition of generic burglary in the Armed Career Criminal Act extends to burglary statutes that do not require an intent to commit a further crime at the time of entry, as held by the U.S. Court of Appeals for the 4th Circuit and the court below, or whether it only encompasses burglary statutes that require such intent at the time of entry, as held by the U.S. Courts of Appeals for the 5th and 8th Circuits.
17-8153 Moore v. U.S. Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or initial unlawful remaining, as two circuits hold, or whether, as the court below and three other circuits hold, it is enough that the defendant formed the intent to commit a crime at any time while unlawfully “remaining in” the building or structure.
17-9127 Herrold v. U.S. (1) Whether the Texas burglary statute — which states that a person commits burglary of a “habitation” if the target of the burglary is “a structure or vehicle that is adapted for the overnight accommodation of persons” — is a generic burglary statute for the purposes of the Armed Career Criminal Act; and (2) whether — if both of petitioner’s prior burglary convictions are deemed “generic burglaries” and therefore violent felonies under the ACCA, in conflict with the majorities in the U.S. Courts of Appeals for the 4th, 5th, 6th, 7th, 8th, 9th and 11th Circuits — the ACCA gave petitioner fair notice that both of his burglary convictions were “violent felonies.”
18-12 Kennedy v. Bremerton School District Whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.
18-107 R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.
18-217 Mathena v. Malvo Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
18-272 Yovino v. Rizo (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.
18-280 New York State Rifle & Pistol Association Inc. v. City of New York, New York Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel.
18-364 Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.
18-365 The Presbyterian Church in Morristown v. Freedom From Religion Foundation Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the Free Exercise Clause of the Constitution of the United States.
18-406 Schock v. U.S. (1) Whether a member of the Legislative Branch may immediately appeal from the denial of his motion to dismiss an indictment on the ground that it violates the separation of powers protected by the Constitution’s rulemaking clause; (2) whether such a claim is immediately appealable by virtue of the collateral order doctrine where it invokes a claim of non-justiciability and separation of powers immunity and as a result cannot be redressed after a trial; (3) whether there is a pendant appellate jurisdiction doctrine to hear such a claim because of its relationship with an immediately appealable speech or debate clause claim, or whether that doctrine is categorically unavailable in criminal cases; and (4) whether the speech and debate clause provides a legislator with immunity from criminal charges that are founded in part on the content of internal House of Representatives communications concerning the interpretation, application or administration of Rules of the Proceedings.
18-443 Moore v. Texas (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.
18-483 Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
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 Nielsen 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.
18-676 Trump v. Karnoski Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.
18-677 Trump v. Jane Doe 2 Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.
18-678 Trump v. Stockman Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.
18-5924 Ramos v. Louisiana Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
18-6135 Kahler v. Kansas Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

Featured Petitions

Docket Case Page Issue(s)
18-682 Santana v. U.S. Whether the use of a name, without more, constitutes the use of a “means of identification of another person” under 18 U.S.C. § 1028A.
18-679 Hall v. Idaho (1) Whether certain of the “aggravating circumstances” used by Idaho to determine whether a defendant may be sentenced to death—those that ask whether the crime was especially “heinous, atrocious or cruel, manifesting exceptional depravity”; whether the defendant exhibited “utter disregard for human life”; and whether the defendant “has exhibited a propensity to commit murder”—fail to provide sentencing juries with constitutionally adequate guidance; and (2) whether Idaho’s felony-murder aggravating circumstance, which substantially duplicates Idaho’s felony-murder statute, violates the constitutional requirement that Idaho sufficiently narrow the class of persons subject to the death penalty.
18-658 Doe v. Boyertown Area School District (1) Whether, given students’ constitutionally protected privacy interest in their partially clothed bodies, a public school has a compelling interest in authorizing students who believe themselves to be members of the opposite sex to use locker rooms and restrooms reserved exclusively for the opposite sex, and whether such a policy is narrowly tailored; and (2) whether the Boyertown policy constructively denies access to locker room and restroom facilities under Title IX “on the basis of sex,” 20 U.S.C. § 1681.
18-640 Acklin v. Alabama Whether a criminal defendant is deprived of his Sixth and 14th Amendment right to conflict-free counsel when his lawyer is paid by a third party; the third party threatens to withhold payment unless the lawyer conducts the defense in a manner that serves the third party’s interests; the lawyer does not inform his client or the court of the conflict; and the lawyer in fact conducts the defense in a manner that serves the third-party payer’s interests and sacrifices the client’s interests.
18-580 Nu Image Inc. v. Int'l Alliance of Theatrical Stage Employees Whether federal courts have subject-matter jurisdiction pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), over a complaint for intentional and negligent misrepresentation and declaratory relief, when the lawsuit seeks relief from claims that the plaintiff violated the parties’ collective-bargaining agreement.
18-560 Peaje Investments LLC v. The Financial Oversight and Management Board for Puerto Rico Whether the Supreme Court should resolve a conflict among the courts of appeals over the correct legal standard for determining whether a lien is a “statutory lien” under the Bankruptcy Code.
18-556 Kansas v. Glover Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.
18-546 Frosh v. Association for Accessible Medicines Whether the commerce clause prohibits a state from protecting consumer access to essential off-patent and generic prescription drugs by requiring manufacturers to refrain from unconscionably raising the price of those drugs sold in the state.
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.
18-530 Congregation Jeshuat Israel v. Congregation Shearith Israel (1) Whether, in ordinary trust and property disputes, the establishment clause precludes courts from considering secular evidence that is relevant and admissible under governing state law merely because the litigants are religious parties; (2) whether, in ordinary trust and property disputes, excluding secular evidence that is relevant and admissible under state law merely because the litigants are religious parties violates the free exercise clause by treating religious parties differently from—and, here, less favorably than—secular parties; and (3) whether, in ordinary trust and property disputes, federal courts sitting in diversity may disregard governing state substantive law and fashion federal common law merely because the litigants are religious parties.
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.
18-500 The First Presbyterian Church U.S.A. of Tulsa, Oklahoma v. Doe (1) Whether the religious-autonomy doctrine derives from the First Amendment or rather is a consent-based doctrine applicable only to disputes between a church and one of its own members; and (2) whether the religious-autonomy doctrine is a threshold jurisdictional issue or an affirmative defense.
18-472 Behr Dayton Thermal Products, LLC v. Martin Whether plaintiffs, having failed to demonstrate that common issues predominate over individual issues as to their cause of action under Federal Rule of Civil Procedure 23(b)(3), may nevertheless obtain certification of issue classes for that cause of action under Rule 23(c)(4).
18-428 U.S. v. Salas Whether the subsection-specific definition of ”crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.
18-420 U.S. v. Wheeler Whether a prisoner whose 28 U.S.C. § 2255 motion challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed.
18-410 Yates v. U.S. Whether, to establish a violation of Brady v. Maryland, a defendant must show that he did not know of the evidence suppressed by the government and could not have obtained it with reasonable diligence.
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.
18-306 Larrabee v. U.S. (1) Whether the Constitution permits the court-martial of a retired military service member; and (2) whether, if so, the Constitution limits the jurisdiction of courts-martial in such cases to offenses that are related to the retiree’s military status.
18-285 Missouri v. Douglass (1) Whether severance is the default remedy when part of a warrant is valid, or whether the Fourth Amendment requires that the valid sections make up “the greater part of the warrant”; (2) whether the particularity clause—which requires a warrant to describe “the place to be search[ed]” and “the things to be seized” with sufficient particularity— also requires a warrant to state its probable-cause findings with particularity; and (3) whether the exclusionary rule applies when the issuing judge signs off on the officer’s legal mistake in filling out a warrant form.
18-268 Kinder Morgan Energy Partners, L.P. v. Upstate Forever (1) Whether the Clean Water Act’s permitting requirement is confined to discharges from a point source to navigable waters, or whether it also applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby navigable waters; and (2) whether an “ongoing violation” of the Clean Water Act exists for purposes of the act’s citizen-suit provision when a point source has permanently ceased discharging pollutants, but some of the pollutants are still reaching navigable water through groundwater. CVSG: 01/03/2019.
18-260 County of Maui, Hawaii v. Hawaii Wildlife Fund (1) Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater; and (2) whether the County of Maui had fair notice that a Clean Water Act permit was required for its underground injection control wells that operated without such a permit for nearly 40 years. CVSG: 01/03/2018.
18-234 Campos v. U.S. Whether, and to what extent, the discretionary-function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), restricts the FTCA’s law enforcement proviso, which waives the United States’ sovereign immunity for “[a]ny claim” arising out of an enumerated list of intentional common-law torts committed by federal law-enforcement officers.
18-192 J. B. R. v. U.S. Whether the due process clause forbids the government from prosecuting an individual who was a juvenile at the time of the crime under a statute that provides no punishment that can constitutionally be applied to that individual.
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.
17-6943 Jones v. Oklahoma (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case, denies the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
17-6891 Wood v. Oklahoma (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case, denies the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
17-1542 McKee v. Cosby Whether a victim of sexual misconduct who merely publicly states that she was victimized (i.e., #metoo) has thrust herself to the forefront of a public debate in an attempt to influence the outcome, thereby becoming a limited-purpose public figure who loses her right to recover for defamation absent a showing of actual malice by clear and convincing evidence.
17-1189 Torrez v. U.S. (1) Whether the categorical approach set forth in Taylor v. United States and its progeny applies to determine whether a defendant has “previously been convicted” of a relevant offense; (2) whether prior-conviction aggravators can be satisfied by convictions for conduct that occurred after the capital offense; and (3) whether the warrantless seizure and search of historical cell-site location information, revealing a cell-phone user’s location and movement over a prolonged period of time, violates the Fourth Amendment.
17-834 Kansas v. Garcia (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) if IRCA bars the states from using all such information for any purpose, whether Congress has the constitutional power to so broadly pre-empt the states from exercising their traditional police powers to prosecute state law crimes. CVSG: 12/04/2018.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
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.
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.
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.
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.
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.
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).
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.
18-309 Swartz v. Rodriguez (1) Whether the panel’s decision to create an implied remedy for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics in the new context of a cross-border shooting misapplies Supreme Court precedent and violates the separation-of-powers principles, when foreign relations, border security and the extraterritorial application of the Fourth Amendment are some of the special factors that counsel hesitation against such an extension; and (2) whether, if the above “antecedent” question is answered in the negative, Agent Swartz is entitled to qualified immunity because there is no clearly established law applying the Fourth Amendment to protect a Mexican citizen, with no significant connection to the United States, who is injured in Mexico by a federal agent’s cross-border shooting.
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.
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.
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.
17-1686 RPX Corp. v. ChanBond LLC Whether the U.S. Court of Appeals for the Federal Circuit can refuse to hear an appeal by a petitioner from an adverse final decision in a Patent Office inter partes review on the basis of lack of a patent-inflicted injury-in-fact when Congress has (i) statutorily created the right to have the Director of the Patent Office cancel patent claims when the petitioner has met its burden to show unpatentability of those claims, (ii) statutorily created the right for parties dissatisfied with a final decision of the Patent Office to appeal to the U.S. Court of Appeals for the Federal Circuit, and (iii) statutorily created an estoppel prohibiting the petitioner from again challenging the patent claims.
17-1678 Hernandez v. Mesa (1) Whether, when the plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; and (2) whether, if the federal courts do not recognize such a claim, the Westfall Act violates the due process clause of the Fifth Amendment insofar as it pre-empts state-law torts suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.
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.
17-1498 Atlantic Richfield Co. v. Christian (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.
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.
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.
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.
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.
17-1175 Poarch Band of Creek Indians v. Wilkes Whether an Indian tribe is immune from civil liability for tort claims asserted by nonmembers.
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