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Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
20-7805 Knight v. Pennsylvania Whether a state may require a defendant to present an IQ score of 75 or below that was “documented prior to age 18” to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.
21-53 Holcombe v. Florida (1) Whether a criminal defendant establishes an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the “presumed prejudice” conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsel’s conflict of interest – a conflict which is described by the prosecutor as “not waivable” – and the judge thereafter fails to inquire into the nature and scope of the conflict.
21-164 Trustees of the New Life in Christ Church v. City of Fredericksburg, Virginia (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “‘may not refuse to extend that [exemption] system to [the Church] without compelling reason.’”

Petitions We’re Watching for the Next Conference

Docket Case Page Issue(s)
21-518 AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a “foreign or international tribunal” under 28 U.S.C. § 1782(a) when the arbitral panel does not exercise any governmental or quasi-governmental authority.
21-401 ZF Automotive US v. Luxshare, Ltd. Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in “a foreign or international tribunal,” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the 2nd, 5th and 7th Circuits have held.
21-311 Willis v. U.S. (1) Whether the discretionary-function exception of the Federal Tort Claims Act shields the government from suit whenever a government agent fails to fulfill a mandatory duty that applies only in certain circumstances, on the theory that the agent must have determined those circumstances did not exist; and (2) whether the discretionary-function exception shields a government agent’s undisputed failure to exercise discretion.
21-309 Southwest Airlines Co. v. Saxon Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act.
21-271 Benitez v. Charlotte-Mecklenburg Hospital Authority Whether a multibillion-dollar “hospital authority” that operates in multiple states in a manner indistinguishable from private hospitals can be a “local government” for purposes of the Local Government Antitrust Act of 1984.
21-196 SNH SE Ashley River Tenant, LLC v. Arredondo Whether the Federal Arbitration Act preempts the South Carolina Supreme Court’s arbitration-specific approach to construing comprehensive powers of attorney to preclude an agent’s power to agree to arbitrate future claims.
21-171 Zupnik v. U.S. Whether 18 U.S.C. § 2422(b), which prohibits using a facility or means of interstate commerce to “persuade, induce, entice, or coerce” a minor to engage in any sexual activity that is forbidden by state law, sweeps in any conduct that simply attempts to cause commission of unlawful sexual activity (as the court below and some other Circuits have held), or whether the verbs also require something more—an effort by the defendant to transform the minor’s will, alter the minor’s mental state, or otherwise secure the minor’s assent (as several other Circuits have held).
21-111 NC Financial Solutions of Utah, LLC v. Virginia Whether a state attorney general who is not a signatory to an arbitration agreement may bring claims that are covered by the agreement and seek individualized relief on those claims on behalf of persons who are signatories to the agreement and thus would be required to arbitrate if they brought those claims themselves.
21-102 Walker v. U.S. Whether attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), is a “crime of violence” under 18 U.S.C. § 924(c)(1)(A), meaning that it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
21-48 Shenandoah Valley Juvenile Center Commission v. John Doe (1) Whether professional judgment rather than deliberate indifference is the proper constitutional standard for a claim of inadequate medical care brought against a secure juvenile detention center by a minor immigrant detainee in federal custody; and (2) whether a minor’s claim for injunctive relief seeking constitutionally adequate medical treatment from a secure juvenile detention center may be redressed by the court without a parent, guardian, or legal custodian joined as a party to the case.
21-27 Arrow Highway Steel v. Dubin (1) Whether the dormant commerce clause may be used to invalidate the application of a state's neutral, non-discriminatory tolling statute to defeat the enforcement of a former resident's stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.
20-1732 Bryant v. U.S. Whether Section 1B1.13 of the United States Sentencing Guidelines is an “applicable” policy statement that binds a district court in considering a defendant-filed motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), as amended by the First Step Act of 2018.
20-1676 Public Watchdogs v. Southern California Edison Company Whether the Hobbs Act deprives a federal district court of subject matter jurisdiction over state law and Price-Anderson Act claims asserted by a private actor against private party Nuclear Regulatory Commission licensees, on the ground such claims are “ancillary or incidental to” an NRC final order.
20-1034 Golan v. Saada Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding. CVSG: 10/27/2021

Featured Petitions

Docket Case Page Issue(s)
21-6001 Andrus v. Texas (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
21-771 Herrera v. Cleveland Whether Federal Rule of Civil Procedure 15(c)(1)(C) categorically excludes relation back — when a plaintiff files an amended complaint changing the name of a defendant and that amendment relates back to the date of the original complaint — if the plaintiff initially used John Doe placeholders in the complaint due to inadequate knowledge regarding the defendants’ names.
21-770 Hawkins v. Banks (1) Whether the U.S. Court of Appeals for the 8th Circuit wrongly denied qualified immunity to Officer Shelby Hawkins by finding the use of force was not reasonable as a matter of law when Hawkins had probable cause to believe there was a threat of serious physical injury or death; and (2) whether the 8th Circuit wrongly denied qualified immunity to Hawkins in the absence of any precedent finding a Fourth Amendment violation based on similar facts.
21-767 Williams v. U.S. Whether a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).
21-764 Huff v. Florida Whether, as the court below and two other states hold, trial courts may close a courtroom pursuant to a closure statute without undertaking an analysis under Waller v. Georgia; or, as nine states and the federal courts of appeals hold, the Sixth Amendment and Waller require an assessment of the specific facts of the case and proposed closure, notwithstanding the existence of a statute governing closure.
21-763 Ham v. Breckon Whether a district court has jurisdiction under 28 U.S.C. § 2241 to review a claim that a federal prisoner’s sentence is invalid in light of an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court, when circuit precedent foreclosed the claim at the time of the prisoner’s prior motion under 28 U.S.C. § 2255.
21-760 Kelly v. Animal Legal Defense Fund Whether Kan. Stat. Ann. § 47-1827(b), (c), and (d) violate the free speech clause of the First Amendment by criminalizing trespass by deception at animal facilities with intent to damage the enterprise.
21-752 Hammond v. U.S. (1) Whether a government agent’s direction to a wireless carrier to send a signal to a person’s phone, so that the phone reveals the person’s precise location and movements in real time, is a search within the meaning of the Fourth Amendment; and (2) whether a government agent’s good faith but objectively incorrect reading of a statute prevents the exclusion of constitutionally tainted evidence in a criminal trial.
21-746 Apple Inc. v. Qualcomm Incorporated Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.
21-742 Lyft v. Seifu Whether the Federal Arbitration Act requires the enforcement of a bilateral arbitration agreement providing that a worker cannot raise representative claims under California’s Private Attorneys General Act, thereby preempting the contrary holding in Iskanian v. CLS Transportation Los Angeles LLC.
21-728 Cedado Nuñez v. U.S. Whether the three ways to identify nationless vessels enumerated in the Maritime Drug Law Enforcement Act are exhaustive.
21-721 Transpacific Steel LLC v. U.S. (1) Whether the president acted outside of the scope of the statutory authority Congress granted under Section 232 of the Trade Expansion Act of 1962 by doubling the tariff on steel imports from Turkey after the expiration of the statutory periods for presidential action specified in Section 232(c)(1); and (2) whether Section 232, as construed by the U.S. Court of Appeals for the Federal Circuit majority in this case to eliminate mandatory deadlines for presidential action, is inconsistent with the Supreme Court’s ruling in Federal Energy Administration v. Algonquin SNG, Inc. and is therefore an unconstitutional delegation of legislative power to the president in violation of Article I, section 8 of the Constitution and the principle of separation of powers because it cedes to the president the virtually unbounded power to tax and otherwise regulate imports.
21-717 Does v. Mills (1) Whether a state governor’s order mandating that private healthcare employers, on penalty of revocation of their business licenses, terminate their healthcare workers who are not fully vaccinated for COVID-19, and deny any worker’s request for religious accommodation from the mandate while allowing medical exemptions from the mandate, violates the employers’ and employees’ rights under the free exercise clause of the First Amendment; (2) whether, under the supremacy clause of the United States Constitution, a state governor’s order mandating that private healthcare employers, on penalty of revocation of their business licenses, terminate their healthcare workers who are not fully vaccinated for COVID-19 with no opportunity for any worker to seek a religious accommodation from the mandate, is preempted by the religious accommodation provisions of Title VII of the Civil Rights Act of 1964; and (3) whether Article III courts have incidental equitable powers to grant preliminary injunctive relief to employees in aid of their Title VII remedies when the harm suffered by the employees in the absence of injunctive relief has a chilling effect on their religious free exercise and protection from religious discrimination.
21-708 CLMS Management Services Limited Partnership v. Amwins Brokerage of Georgia, LLC Whether a provision of state law prohibiting mandatory arbitration in a policy of insurance issued by a foreign insurer is preempted by the Federal Arbitration Act or whether the McCarran-Ferguson Act reverse-preempts the Federal Arbitration Act.
21-707 Students for Fair Admissions v. University of North Carolina (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.
21-706 Gilbert v. U.S. (1) Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action; and (2) whether a jury must be instructed that merely “expressing support” for a policy cannot support conviction under the federal bribery laws.
21-692 Haystings v. Korb Whether, when a prisoner violates the Prison Litigation Reform Act by initiating litigation without first exhausting administrative remedies, the prisoner can escape that violation by filing a supplemental pleading under Federal Rule of Civil Procedure 15(d).
21-683 Kitchin v. Bridgeton Landfill, LLC Whether the Class Action Fairness Act’s “local controversy” exception under which a federal district court must decline jurisdiction over a class action can be satisfied when the local and non-local defendants engaged in the same alleged conduct (as the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits hold), or whether the alleged conduct of the local defendant must be different from that of the non-local defendants (as the U.S. Court of Appeals for the 5th and 8th Circuits hold).
21-682 Shivers v. U.S. Whether the discretionary function exception to the Federal Tort Claims Act immunizes the United States from tort liability for acts taken by its employees in violation of the Constitution.
21-679 Shoop v. Cassano (1) Whether the Supreme Court should summarily reverse the U.S. Court of Appeals for the 6th Circuit’s award of habeas relief; and (2) whether, when a three-judge panel clearly errs in awarding habeas relief, its decision raises questions important enough to justify en banc review.
21-676 Musta v. Mendota Heights Dental Center Whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.
21-674 North Carolina State Health Plan for Teachers & State Employees v. Kadel Whether the residual clause of Section 1003 of the Rehabilitation Act Amendments of 1986 provides an “unequivocal textual waiver” of sovereign immunity, permitting suits against states under subsequently enacted statutory provisions that refer to neither states nor sovereign immunity.
21-659 Asociación de Periodistas de Puerto Rico v. Puerto Rico (1) Whether courts may summarily close judicial proceedings and deny access to the official recordings of those proceedings without determining whether the First Amendment public access right attaches to them; and (2) whether Article 5.005 of Puerto Rico’s Judiciary Act of 2003, as construed by the Puerto Rico Supreme Court to require automatic closure of all domestic violence proceedings and the official recordings of those proceedings, violates the First Amendment public access right under Globe Newspaper Co. v. Superior Court.
21-641 Ferrellgas Partners, LP v. Director, Division of Taxation of New Jersey Whether a levy that raises revenue for a state’s general fund, and that is not restricted to the in-state activities of the levy-payor, may be characterized as a locally focused regulatory fee, and thus be imposed without regard to whether it is internally consistent.
21-637 Lee v. Garlick (1) Whether, in granting habeas corpus relief to a state court prisoner, the U.S. Court of Appeals for the 2nd Circuit created a circuit split and denied the state court judgment the deference mandated by 28 U.S.C. § 2254(d)(1) when it relied on a test that was not clearly established by the Supreme Court’s precedents to determine that an autopsy report was testimonial under the confrontation clause; (2) whether the 2nd Circuit violated Yarborough v. Alvarado by applying an overly specific “unreasonable application” analysis; and (3) whether the 2nd Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the admission of the autopsy report was not harmless despite (a) uncertainty as to whether the report was admissible to form the basis of an in-court expert opinion, and (b) overwhelming evidence of guilt including surveillance video of James Garlick stabbing the victim to death.
21-634 Wright v. Indiana (1) Whether a defendant’s otherwise clear invocation of his right to represent himself becomes equivocal when he prefers representation by an attorney who cannot or will not represent him; and (2) whether courts may override a defendant’s right to represent himself in a high-penalty case out of fear that he will be unable to represent himself well.
21-622 Devine v. Absolute Activist Value Master Fund Limited Whether the voluntary dismissal of a plaintiff’s suit under Federal Rule of Civil Procedure 41(a)(1) permanently strips the district court of jurisdiction to consider a motion to modify a previously issued protective order.
21-605 Roberson v. U.S. (1) Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action; and (2) whether a jury must be instructed that merely “expressing support” for a policy cannot support conviction under the federal bribery laws.
21-603 Ohio v. Brinkman (1) Whether the due process clause of the 14th Amendment to the United States Constitution prohibits review of the entire record to determine whether a guilty plea was knowingly, intelligently, and voluntarily entered; and (2) whether the Supreme Court should grant certiorari to resolve the conflict among the courts on whether the failure to strictly adhere to the advisement of rights in Boykin v. Alabama should result in the automatic reversal of a guilty plea.
21-594 Alphabet Inc. v. Rhode Island Whether the “risk factors” disclosed in a securities filing must disclose only future risks or must also disclose whether a risk has come to fruition in the past.
21-587 Clarkston v. Whole Woman’s Health Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.
21-583 Carlton v. Whole Woman’s Health Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.
21-582 Dickson v. Whole Woman’s Health (1) Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey; and (2) whether the Supreme Court should overrule Whole Woman’s Health v. Hellerstedt, which refused to enforce an explicit severability requirement in a state abortion statute.
21-581 Loughry v. U.S. Whether circumstantial evidence of extrajudicial social-media contact with a juror about the case can be enough to entitle a criminal defendant to a hearing under Remmer v. United States to determine “what actually transpired, or whether the incidents that may have occurred were harmful or harmless.”
21-577 Eshelman v. Puma Biotechnology Whether, under Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. and the Federal Rules of Civil Procedure, a defendant who did not file a Rule 50 motion for judgment as a matter of law in the district court can nonetheless raise a sufficiency of the evidence challenge to damages on appeal.
21-568 Jarvis v. U.S. Whether non-retroactive changes in federal law can serve as “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).
21-552 Edward D. Jones & Co., L.P. v. Anderson Whether the U.S. Court of Appeals for the 9th Circuit, in conflict with other U.S. Courts of Appeals, erred in concluding that Chadbourne & Parke v. Troice narrowed Merrill Lynch, Pierce, Fenner & Smith v. Dabit’s interpretation of the Securities Litigation Uniform Standards Act’s “in connection with” prong to require that the alleged deception induce a specific transaction in a particular covered security.
21-551 Watford v. U.S. Whether a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).
21-541 Tuggle v. U.S. Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment.
21-540 Warsaw Orthopedic v. Sasso Whether a dispute raises substantial issues of federal patent law when its resolution necessarily depends on patent-law determinations regarding claim scope and validity.
21-538 Reagle v. Lewis Whether, after Roderick Lewis's counsel failed at sentencing to say anything more than that Lewis would speak on his own behalf, the U.S. Court of Appeals for the 7th Circuit misapplied 28 U.S.C. § 2254 in holding that the failure to apply United States v. Cronic — in which the Supreme Court suggested that, though Strickland v. Washington requires an ineffective-assistance claimant to prove both deficient performance and prejudice, some “circumstances. . . are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified” — violated “clearly established Federal law, as determined by the Supreme Court of the United States.”
21-533 Martin v. Castro (1) Whether, when a law enforcement officer reasonably deploys a police K9 to restrain a fleeing suspect known to have a history of violent crime and believed to be in possession of a deadly weapon and under the influence of an illegal stimulant, the Fourth Amendment is violated when the K9’s handler commands the K9 to release the suspect within seconds after the suspect is handcuffed and ceases resisting arrest; (2) whether the U.S. Court of Appeals for the 9th Circuit erred when it failed to consider the totality of the circumstances in assessing the reasonableness of force used to restrain a suspect with a known history of violent crime who is actively resisting arrest and is believed to be in possession of a deadly weapon and under the influence of an illegal stimulant; and (3) whether the 9th Circuit violated City and County of San Francisco v. Sheehan and other binding precedent when it denied a police officer qualified immunity by defining clearly established law at too high a level of generality.
21-522 Simko v. U.S. Steel Corporation Whether, or under what circumstances, a claim that an employer unlawfully retaliated against an employee for filing a charge of discrimination with the Equal Employment Opportunity Commission under the remedial structure of Title VII may be addressed in an ensuing civil action, if the employee did not file a second formal administrative charge specifically alleging the retaliation.
21-516 Haggerty v. U.S. (1) Whether the “interracial” nature of a minor offense in Indian Country is an element of 18 U.S.C. § 1152, rather than an affirmative defense, and thus must be both pled and proved by the prosecution; and (2) whether the government must plead and prove the “interracial” nature of a minor offense in Indian Country to establish federal subject matter jurisdiction under 18 U.S.C. § 1152.
21-511 Shoop v. Twyford (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.
21-505 Bank of America Corporation v. Fund Liquidation Holdings LLC Whether a district court lacking Article III jurisdiction can create such jurisdiction by adding a new plaintiff via Federal Rule of Civil Procedure 17.
21-499 Vega v. Tekoh Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda v. Arizona.
21-495 Black v. Pension Benefit Guaranty Corporation (1) Whether the Employee Retirement Income Security Act permits the termination of a distressed pension plan through an agreement between Pension Benefit Guaranty Corporation and the plan administrator; (2) whether termination through such an agreement, which avoids a hearing, violates the participants’ constitutional rights to due process; and (3) whether, if ERISA and due process allow for termination by agreement, the termination’s substantive legality is to be judged under the standards in 29 U.S.C. § 1342(c), or whether it is enough that the conditions in Section 1342(a) to “institute” proceedings may exist.
21-477 Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria Whether the immovable-property exception applies to tribal sovereign immunity.
21-476 303 Creative LLC v. Elenis (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith.
21-475 Brookhart v. Smith Whether the U.S. Court of Appeals for the 7th Circuit violated 28 U.S.C. § 2254(d)’s strictures in awarding habeas relief to the respondent, Kenneth Smith, based on its own reweighing of the evidence rather than deferring to the state court’s contrary view.
21-469 Jobe v. National Transportation Safety Board (1) Whether Exemption 5 of the Freedom of Information Act — which provides that federal agencies need not release privileged “inter-agency or intra-agency memorandums or letters” — includes an unwritten “consultant corollary,” under which documents prepared by private, outside consultants are deemed “intra-agency memorandums or letters”; and (2) whether any “consultant corollary” in FOIA Exemption 5 could ever render “intra-agency” the communications between an agency and (1) employees of a private, regulated company with an economic interest in the agency’s actions; or (2) the representative of a foreign government.
21-468 National Pork Producers Council v. Ross (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.
21-467 Parish v. Oklahoma Whether McGirt v. Oklahoma applies retroactively to convictions that were final when McGirt was announced.
21-465 Kisor v. McDonough Whether the term “relevant official service department records” in 38 C.F.R. § 3.156(c)(1)’s “reconsideration” provision encompasses all records that “go to a benefits criterion,” or is instead restricted to only those records that “relate to the basis of the [Department of Veterans Affairs’] initial denial of benefits,” as in Kisor v. Wilkie.
21-462 Johnson v. Bethany Hospice and Palliative Care LLC Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases who plead a fraudulent scheme with particularity to also plead specific details of false claims.
21-454 Sackett v. Environmental Protection Agency Whether Rapanos v. United States — in which the Supreme Court held that the Clean Water Act does not regulate all wetlands, but without a majority opinion explaining why that is so — should be revisited to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.
21-453 Uber Technologies v. Gregg Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-442 Reed v. Goertz Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
21-441 Siegel v. Fitzgerald Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Constitution's bankruptcy clause by increasing quarterly fees solely in districts under the U.S. Trustee program, not in those under the Bankruptcy Administrator program.
21-439 Nance v. Ward (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.
21-432 Arellano v. McDonough (1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.
21-427 Lamoureux v. Montana Whether a statute that criminalizes speech intended to annoy or offend is unconstitutionally overbroad under the First Amendment.
21-420 Postmates, LLC v. Santana Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-418 Kennedy v. Bremerton School District (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.
21-406 Impax Laboratories v. Federal Trade Commission (1) Whether the presence of a “reverse payment” that exceeds a patentee’s saved litigation costs and the value of any services provided by a patent challenger suffices to render a patent settlement unlawful, despite the Supreme Court’s holding to the contrary in Federal Trade Commission v. Actavis, Inc.; and (2) whether courts reviewing antitrust challenges to patent settlements can disregard evidence of the strength of the patents at issue, as the U.S. Court of Appeals for the 5th Circuit held here, or instead whether they must consider what “the patent’s strength would otherwise permit,” as the U.S. Court of Appeals for the 3rd Circuit held in King Drug Co. of Florence v. Smithkline Beecham Corp.
21-404 U.S. v. Washington Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. § 3172(a), which permits the application of state workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”
21-396 Delta Air Lines v. Oman Whether, consistent with the commerce clause and the deregulatory preferences of the Airline Deregulation Act, California may extend its wage-and-hour laws to flight attendants who spend the vast majority of their workweek outside of California simply because they report to a California airport to begin their multi-day, multi-state work shift.
21-395 McCarthy v. Pelosi Whether the speech-and-debate clause forecloses judicial review of the constitutionality of the proxy voting resolution in this action against the speaker of the house, the clerk and the sergeant-at-arms; and (2) whether the U.S. House of Representatives resolution allowing members to cast floor votes by proxy is unconstitutional.
21-388 John K. MacIver Institute for Public Policy v. Evers Whether the government’s selective exclusion of members of the press from the incoming governor's official press conferences and briefings implicates the equal treatment guarantee of the First Amendment’s press clause, as the U.S. Courts of Appeals for the 1st, 2nd and District of Columbia Circuits have held, or instead should be analyzed under the speech clause’s forum analysis, as the U.S. Court of Appeals for 7th Circuit below and the U.S. Court of Appeals for the 4th Circuit have held.
21-382 Strauss v. Credit Lyonnais, S.A. Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act.
21-381 Weiss v. National Westminster Bank, PLC Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act.
21-380 Brackeen v. Haaland (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.
21-379 Texas v. Commissioner of Internal Revenue (1) Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine; and (2) whether the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity starts to run when the agency delegates the authority or when the private entity exercises the delegated authority.
21-378 Texas v. Haaland (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in the Indian Child Welfare Act and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congress’s child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.
21-377 Cherokee Nation v. Brackeen (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions — 25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a) — as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari.
21-376 Haaland v. Brackeen (1) Whether various provisions of the Indian Child Welfare Act of 1978 — namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915(a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a) — violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster home[s]”; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.
21-374 Struve v. Iowa Whether police officers in the more than 20 states that have laws that prohibit sending text messages on a cellphone while driving, but that allow drivers to use their cellphones for other purposes, such as navigation or playing music, have reasonable suspicion under the Fourth Amendment to initiate an investigatory traffic stop, when they observe a driver briefly holding and manipulating a cellphone, in a manner that does not indicate whether the cellphone is being used for a lawful or prohibited purpose.
21-365 Branch Banking & Trust Company v. Sevier County Schools Federal Credit Union Whether the Federal Arbitration Act displaces a state common-law rule forbidding companies from adding an arbitration requirement to their standard-form contract with customers unless the contract already includes a dispute-resolution clause.
21-335 Begani v. U.S. Whether the Constitution permits the court-martial of retired servicemembers for offenses committed after their discharge from active duty.
21-273 Brune v. U.S. Whether, under the Fifth Amendment’s double-jeopardy clause, upon a defendant’s plea of guilty, jeopardy attaches when the district court accepts the defendant’s plea of guilty, when the district court adjudges the defendant guilty of the offense or independent of a specific event.
21-268 Coverall North America v. Rivas Whether the Federal Arbitration Act preempts a state-law rule which precludes the enforcement of an agreement to arbitrate claims on an individual basis when a state declares that a private litigant has an unwaivable right to pursue certain claims on a representative basis.
21-267 Broadnax v. Lumpkin Whether, under 28 U.S.C. § 2254(d) and Cullen v. Pinholster, a federal habeas petitioner may present evidence of a prosecutor’s racially discriminatory intent in support of a claim under Batson v. Kentucky when the evidence was not available to the petitioner during state court Batson proceedings.
21-258 Oklahoma v. Davis Whether McGirt v. Oklahoma should be overruled.
21-241 Monsanto Company v. Hardeman (1) Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency's approval and the EPA has repeatedly concluded that the warning is not appropriate; and (2) whether the U.S. Court of Appeals for the 9th Circuit’s standard for admitting expert testimony — which departs from other circuits’ standards — is inconsistent with the Supreme Court’s precedent and Federal Rule of Evidence 702.
21-234 George v. McDonough Whether, when the Department of Veterans Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.
21-211 Valueland Auto Sales v. U.S. Whether, when the district court dismisses all criminal charges against a defendant, that court has jurisdiction over a motion to expunge the records relating to those charges, as held by the U.S Courts of Appeals for the 2nd, 10th and D.C. Circuits, or whether the district court lacks jurisdiction over such motions, as held by the U.S. Courts of Appeals for the 1st, 3rd, 4th, 5th, 6th, 7th and 11th Circuits.
21-210 Wisconsin v. Jensen (1) Whether a person’s statement expressing fear about a possible future crime is testimonial under the Sixth Amendment’s confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the person’s statement aimed at ending an ongoing emergency is non-testimonial.
21-198 Knights v. U.S. (1) Whether a court analyzing if a Fourth Amendment seizure has occurred is categorically barred from considering a person’s race; and (2) whether a seizure occurred under all the circumstances of this case.
21-187 Mohamud v. Weyker Whether a constitutional remedy is available against federal officers for individual instances of law enforcement overreach in violation of the Fourth Amendment.
21-184 Byrd v. Lamb Whether, under either step of the Abbasi test, line-level federal officers may be sued for violating the Fourth Amendment.
21-159 Aposhian v. Garland (1) Whether courts should defer under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. to an agency interpretation of federal law when the federal government affirmatively disavows Chevron deference; (2) whether the Chevron framework applies to statutes with criminal-law applications; and (3)whether, if a court determines that a statute with criminal-law applications is ambiguous, the rule of lenity requires the court to construe the statute in favor of the criminal defendant, notwithstanding a contrary federal agency construction.
21-133 Rojas v. Federal Aviation Administration Whether the 9th Circuit, in a sharply divided en banc decision, erred by adopting the consultant corollary and holding that “intra-agency memorandums or letters” in Freedom of Information Act’s Exemption 5 (5 U.S.C. § 552(b)(5)) encompasses documents prepared by APTMetrics, a private, outside consultant.
21-119 Postmates, LLC v. Rimler Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-118 Apple Inc. v. Optis Cellular Technology, LLC Whether the U.S. Court of Appeals for the Federal Circuit may review, by appeal or mandamus, a decision of the U.S. Patent & Trademark Office denying a petition for inter partes review of a patent, where review is sought on the grounds that the denial rested on an agency rule that exceeds the PTO’s authority under the Leahy-Smith America Invents Act, is arbitrary or capricious, or was adopted without required notice-and-comment rulemaking.
21-31 Fast Auto Loans v. Maldonado Whether California’s McGill rule, under which agreements for individualized arbitration are invalidated when a plaintiff seeks public injunctive relief, is preempted by the Federal Arbitration Act.
20-1046 Marin Housing Authority v. Reilly Whether a public housing authority, in calculating a family’s annual income, is required by 24 C.F.R. 5.609(c)(16) to exclude Medicaid-funded payments made to a family by a state agency to allow the Section 8 tenant to provide personal caregiving services in order to keep a developmentally disabled family member at home. CVSG: 11/10/2021
20-609 Gannett Co. v. Quatrone Whether a plaintiff adequately pleads breach of the duties of prudence and diversification solely by alleging that fiduciaries permitted participants in a defined contribution plan to choose, from an adequately diversified menu of investment options, to invest in an undiversified single-stock fund. CVSG: 11/09/2021
20-603 Torres v. Texas Department of Public Safety Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers. CVSG: 11/09/2021

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
21-260 Virgin America v. Bernstein Whether the Airline Deregulation Act preempts generally applicable state laws that have a significant impact on airline prices, routes, and services, as the Supreme Court and four circuits have held, or whether it preempts such laws only if they bind an airline to a particular price, route, or service, as the U.S. Court of Appeals for the 9th Circuit has held.
21-194 California Trucking Association v. Bonta Whether the Federal Aviation Administration Authorization Act preempts the application to motor carriers of a state worker-classification law that effectively precludes motor carriers from using independent owner-operators to provide trucking services.
20-1426 Epic Systems Corp. v. Tata Consultancy Services Ltd. Whether a state statute that expressly caps punitive damages at two times compensatory damages satisfies the notice requirement of the due process clause such that a punitive damages award that complies with the statute is constitutionally sound under the due process clause.
20-1425 C.H. Robinson Worldwide v. Miller Whether a common-law negligence claim against a freight broker is preempted because it does not constitute an exercise of the “safety regulatory authority of a State with respect to motor vehicles” within the meaning of the Federal Aviation Administration Authorization Act’s safety exception.
20-1394 PersonalWeb Technologies, LLC v. Patreon Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit correctly interpreted Kessler v. Eldred to create a freestanding preclusion doctrine that may apply even when claim and issue preclusion do not; and (2) whether the Federal Circuit properly extended its Kessler doctrine to cases in which the prior judgment was a voluntary dismissal.
20-1229 Robertson v. Intratek Computer (1) Whether mandatory compelled arbitration of claims under 41 U.S.C. § 4712 disrupts the administrative scheme set up by Congress to remedy and enforce violations of 41 U.S.C. § 4712; and (2) whether Congress intended to prohibit enforcement of mandatory employment arbitration agreements in 41 U.S.C. § 4712, even if the statute does not expressly refer to arbitration, when it (a) expressly provided for a federal trial in the remedy and enforcement section and (b) expressly prohibited waiver of any rights and remedies provided as a condition of employment.
20-1199 Students for Fair Admissions Inc. v. President & Fellows of Harvard College (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.
20-891 American Axle & Manufacturing Inc. v. Neapco Holdings LLC (1) What standard determines whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent.