Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
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.
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.
17-5772 Conde v. U.S. Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
17-6026 Williams v. U.S. Whether petitioner’s prior conviction for robbery under Florida law was a conviction for a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i).
17-6054 Everette v. U.S. Whether a conviction for armed robbery qualifies as a “violent felony” under the Armed Career Criminal Act’s elements clause where, as in Florida and several other states, the offense may be committed by using a de minimis amount of force.
17-6140 Jones v. U.S. (1) Whether reasonable jurists can debate whether Florida armed robbery and attempted armed robbery qualify as “violent felon[ies]” under the Armed Career Criminal Act after Johnson v. United States; and (2) whether reasonable jurists can debate whether Florida attempted first-degree murder qualifies as a violent felony under the Armed Career Criminal Act after Johnson v. United States.
17-6271 James v. U.S. (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).
17-6276 Middleton v. U.S. (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).
17-6357 Reeves v. U.S. (1) Whether any conviction for robbery qualifies as a “violent felony” under Armed Career Criminal Act’s elements clause where, as in Florida and several other states, the offense may be committed by using a de minimis amount of force; and (2) whether the U.S. Court of Appeals for the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent for determining whether a movant has made the threshold showing necessary to obtain a certificate of appealability, even when a judge on the panel who issued the binding precedent subsequently stated that the panel’s decision may be erroneous, misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis.
17-6374 Rivera v. U.S. Whether reasonable jurists could debate whether petitioner was denied his due process rights under the Fifth Amendment when he was sentenced as an armed career criminal to an 188-month term of imprisonment pursuant to 18 U.S.C. § 924(e) for possessing a gun after three Florida state armed robbery convictions, when such offenses are not violent felonies after Johnson v. United States.
17-6540 Shotwell v. U.S. Whether petitioner’s prior convictions for armed robbery, in violation of Fla. Stat. § 812.13, were convictions for “violent felon[ies]” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(i).
17-6577 Orr v. U.S. Whether, when the Supreme Court held in Johnson v. United States that the phrase “physical force” in the Armed Career Criminal Act requires “violent force – that is, force capable of causing physical pain or injury to another person,” the elements of a robbery offense satisfy the “violent force” threshold if state law requires only that the robber use “any degree” of force to overcome the victim’s resistance, such as the force exerted by a “bump” of the victim’s shoulder while snatching her purse or the force needed to snatch cash from the victim’s grasp.
17-6664 Mays v. U.S. (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).
17-6829 Hardy v. U.S. (1) Whether a conviction for Florida robbery qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably require the use of “violent force,” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause, if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
17-6887 Wright v. U.S. (1) Whether the district court erred when it ruled that a Florida “strong-armed robbery” is a crime of violence under the Armed Career Criminal Act; and (2) whether the district court erred when it denied defendant’s motion to suppress physical evidence.
17-6991 Baxter v. U.S. (1) Whether a conviction for robbery under Florida law qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably requires the use of “violent force” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
17-7140 Pace v. U.S. (1) Whether a conviction for Florida robbery qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as a “violent felony” under the ACCA because Florida caselaw confirms that overcoming victim resistance does not invariably require the use of “violent force,” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common-law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
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.
18-292 Lewis v. English Whether a federal prisoner may file a petition for habeas corpus under 28 U.S.C. § 2241 in order to raise arguments that were foreclosed by binding (but erroneous) circuit precedent at the time of his direct appeal and original application for post-conviction relief under 28 U.S.C. § 2255, but which are meritorious in light of a subsequent decision overturning that erroneous precedent.
18-328 Rotkiske v. Klemm Whether the “discovery rule” applies to toll the one-year statute of limitations under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq., as the U.S. Courts of Appeals for the 4th and 9th Circuits have held but the U.S. Court of Appeals for the 3rd Circuit (sua sponte en banc) has held contrarily.
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.
18-420 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.
18-483 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.
18-566 Menendez v. Garber Whether a state statute that tolls limitations while the defendant is absent from the state imposes constitutionally impermissible burdens on interstate commerce when applied to a resident who permanently departs the state after the events giving rise to suit, yet remains amenable to service under the state’s long-arm statute.
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)
18-899 Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc. Whether inter partes review before the Patent Trial and Appeal Board is the type of proceeding in which tribal sovereign immunity may be asserted.
18-890 D’Addario v. D’Addario (1) Whether the beneficiary of a probate estate can establish the direct injury necessary to bring a civil RICO claim when the alleged RICO violation harms the estate as a whole and any impact on beneficiaries of the estate is indirect and derivative; and (2) whether outside parties who are not members of the alleged RICO enterprise can nevertheless be liable under 18 U.S.C. 1962(c) when they are alleged only to have “assisted” or acted as “necessary tools” to a single RICO defendant in his own operation or management of the RICO enterprise.
18-879 Electric Power Supply Association v. Rhodes Whether the Federal Power Act pre-empts only state subsidies that explicitly require a wholesale generator to sell its output in auctions approved by the Federal Energy Regulatory Commission, or whether the Federal Power Act also pre-empts state subsidies that lack such an express requirement but that, by design, subsidize only generators that sell their entire output via such auctions, thereby achieving the same effect.
18-868 Electric Power Supply Association v. Star Whether the Federal Power Act pre-empts only state subsidies that explicitly require a wholesale generator to sell its output in auctions approved by the Federal Energy Regulatory Commission, or whether the Federal Power Act also pre-empts state subsidies that lack such an express requirement but that, by design, subsidize only generators that sell their entire output via such auctions, thereby achieving the same effect.
18-817 Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc. Whether patents that claim a method of medically treating a patient automatically satisfy Section 101 of the Patent Act, even if they apply a natural law using only routine and conventional steps.
18-814 Walker v. City of Calhoun, Georgia (1) Whether heightened scrutiny under the 14th Amendment applies to a government policy that keeps misdemeanor and traffic-offense arrestees in jail pretrial solely because they are poor; and (2) whether the government can keep misdemeanor and traffic-offense arrestees in jail for up to 48 hours after arrest solely because they are poor when it has offered no reason for doing so.
18-810 Maguire v. Edrei Whether the U.S. Court of Appeals for the 2nd Circuit erred in finding a potential constitutional violation for excessive force and denying the officers qualified immunity, particularly given that no case had addressed whether and when sound constitutes force, much less held that the use of an acoustic device crosses the line into constitutionally excessive force under circumstances resembling those here or, indeed, under any circumstances at all.
18-801 Iancu v. NantKwest Inc. Whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in Section 145 litigation.
18-779 Power Integrations Inc. v. Fairchild Semiconductor Int'l Inc. Whether a plaintiff who proves that a patented feature creates the basis for customer demand for infringing products is entitled to patent damages based on the entire market value of the products, or whether the plaintiff must also prove that other features do not drive demand for the products.
18-774 Anderson News, LLC v. American Media Inc. Whether a horizontal agreement to boycott a supplier can escape per se condemnation under Section 1 of the Sherman Act based on the assertion that the conspirators organized the boycott in response to the supplier’s proposed price increase and not for the purpose of reducing competition in the supplier’s market.
18-763 Fattah v. U.S. Whether, to remove a juror for alleged misconduct during deliberations, a district court must determine that there is no possibility that the allegations of misconduct stem from the juror’s view of the evidence.
18-759 Sample v. U.S. Whether a district court may reduce a prison sentence, or impose a probationary term in lieu of imprisonment, to enable a defendant to earn income to pay restitution to his victims.
18-742 Washington v. Alabama Whether, under Strickland v. Washington, a court assessing the prejudice resulting from trial counsel’s errors should consider each error in isolation or should consider the cumulative effect of the errors.
18-719 Uradnik v. Inter Faculty Organization Whether it violates the First Amendment to appoint a labor union to represent and speak for public-sector employees who have declined to join the union.
18-709 Bentley v. Vooys Whether a statute requiring a court, upon a defendant’s request, to order a nonresident plaintiff to post a minimal security bond for costs violates either the privileges and immunities clause of Article VI, Section 2 of the United States Constitution or the equal protection clause of the 14th Amendment.
18-689 Moya v. Garcia Whether, when a jailer detains a person for an extended period with no access to a court hearing for arraignment and bail review, in violation of his or her due process rights, the jailer can avoid liability under 42 U.S.C. § 1983 on the ground that the state court caused the violation because it bears sole responsibility for setting such a hearing.
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.
18-672 City of Newport Beach, California v. Vos (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody; (2) whether, under the Fourth Amendment “totality of the circumstances” analysis for assessing the reasonableness of force used against a suspect who attacks law enforcement officers, a court must take into account allegedly unreasonable police conduct that took place before the use of force, but foreseeably created the need to use that force; and (3) whether, under the Fourth Amendment’s analysis for use of force, a law enforcement officer’s interest in using deadly force against a suspect threatening an officer’s life is diminished if the assailant is mentally ill.
18-670 SFR Investments Pool 1, LLC v. Federal Home Loan Mortgage Corp. (1) Whether 12 U.S.C. § 4617(j)(3) applies to foreclosures of properties for which the Federal Housing Finance Authority holds a securitized mortgage solely as trustee for the security holders; and (2) whether a foreclosure sale in violation of 12 U.S.C. § 4617(j)(3) is void in its entirety, such that an unknowing purchaser can seek to unwind the deal, or whether the statute only prevents extinguishment of Fannie Mae and Freddie Mac’s liens.
18-661 Zank v. Moreno Whether a child’s habitual residence can be changed based on one parent’s unilateral removal of a child to or retention of the child in another country plus the passage of time.
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.
18-589 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.
18-588 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.
18-587 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.
18-579 Alaska Airlines Inc. v. Schurke Whether federal courts lack authority to inquire into the nature and scope of an alleged state-law claim in determining whether resolution of that claim would involve interpretation or application of a collective bargaining agreement and thus trigger pre-emption.
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.
18-540 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.
18-472 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).
18-349 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.
18-285 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.
18-234 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.
17-1189 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.

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.
Term Snapshot
Awards