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Petitions We’re Watching

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Petitions We’re Watching for the Next Conference

Docket Case Page Issue(s)
21-207 Behrman Capital IV, L.P. v. Reynolds Whether the derivative jurisdiction doctrine precludes federal courts from exercising personal jurisdiction following removal from state courts that lacked personal jurisdiction “of the parties.”
21-109 California State Lands Commission v. Davis (1) Whether the States’ consent to suit in the bankruptcy courts, found to exist in Central Virginia Community College v. Katz, reaches a suit brought against a State, after the effective date of a debtor’s plan of liquidation, seeking money damages from a State treasury on a claim that does not arise under federal bankruptcy law, insolvency law, or a claim that was historically brought “as a core aspect of the administration of bankruptcy estates”; and (2) whether the Supreme Court should reconsider Central Virginia Community College v. Katz.
21-13 KinderCare Education, LLC v. Superior Court of California, County of San Francisco Whether California courts can avoid consideration of Lamps Plus, Inc. v. Varela and instead adhere to a contrary state appellate precedent, Securitas Security Services USA, Inc. v. Superior Court.
21-10 Braun v. Burke (1) Whether a court should apply the intent-to-harm standard of liability to all police high-speed driving, as have the 8th and 9th Circuits, or instead employ an analysis which examines the facts of individual cases to decide whether there was an opportunity to deliberate and apply the standard of deliberate indifference or another standard other than intent-to-harm, as have the 3rd, 4th, 7th, and 10th Circuits; and (2) whether a court reviewing high-speed driving by a police officer should use an objective test to determine whether an emergency existed, as have the 3rd, 4th, and 7th Circuits, or rely merely on the asserted claim of an officer that he subjectively believed there to be an emergency, as has the 8th Circuit.
21-3 Schmitt v. Planned Parenthood of the St. Louis Region (1) Whether Missouri’s restriction on abortions performed solely because the unborn child may have Down syndrome is categorically invalid under Planned Parenthood of Southeastern Pennsylvania v. Casey and Roe v. Wade, or whether it is a valid, reasonable regulation of abortion that seeks to prevent the elimination of children with Down syndrome through eugenic abortion; (2) whether Missouri’s restrictions on abortions performed after eight, 14, 18, and 20 weeks of gestational age are categorically invalid, or whether they are valid, reasonable regulations of abortion that advance important state interests; and (3) whether the “penumbral” right to abortion recognized in Roe v. Wade, and partially reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, should be overruled.
21-2 Lewis v. Pension Benefit Guaranty Corporation Whether the U.S. Court of Appeals for the D.C. Circuit improperly extended Chevron deference to Pension Benefit Guarantee Corporation’s construction of ambiguous statutory provisions in informal, non-binding adjudications undertaken not in the agency’s congressionally assigned role as insurer (or in any other regulatory capacity) but instead as a plan trustee and fiduciary.
20-1784 Ohio v. Deuble (1) Whether probable cause existed under the Fourth Amendment to detain a person suspected of soliciting sexual activity from a law enforcement officer posing as a minor through a social media application where the person’s identity is corroborated through the person’s actions. Here the suspect agreed to meet the law enforcement officer posing as a minor for sexual activity, and was the only person observed at the agreed meeting location using his cell phone as the law enforcement officer posing as the minor sent communications to the suspect through the social media application; and (2) whether a phone is searched for purposes of the Fourth Amendment where the phone’s content was not affirmatively accessed by law enforcement officers.
20-1780 North Dakota v. Environmental Protection Agency Whether the Environmental Protection Agency can promulgate regulations for existing stationary sources that require states to apply binding nationwide “performance standards” at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive States of all implementation and decision making power in creating their Section 111(d) plans.
20-1778 Westmoreland Mining Holdings, LLC v. Environmental Protection Agency (1) Whether the Environmental Protection Agency may employ 42 U.S.C. § 7411(d) to impose standards of performance on existing stationary sources that are regulated under the “hazardous air pollutants” program of 42 U.S.C. § 7412; and (2) whether 42 U.S.C. § 7411(d) clearly authorizes the EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation’s energy system.
20-1761 Berrier v. Delaware River Joint Toll Bridge Commission Whether compacting States, simply by creating an interstate compact, relinquish all sovereign authority over that compact entity unless expressly reserved.
20-1698 Palade v. Board of Trustees University of Arkansas System Whether the lower courts erred in holding that Petitioners lacked standing to seek declaratory relief concerning the retroactive application of newly revised policies concerning the grounds for dismissal and academic discipline to faculty who are on the tenure-track and faculty who have already earned tenure under prior Board of Trustees policies.
20-1673 Nettles v. Midland Funding, LLC (1) Whether, under Spokeo, it is sufficient for standing simply to allege a violation of the procedural rights created by the Fair Debt Collection Practices Act, as six circuits have held, or must a plaintiff also always allege an additional injury beyond such a violation, as five circuits (including the 7th in this case) have held; and (2) whether some additional injury is required for standing under the Act, whether it is sufficient to allege mental distress or lost time dealing with a violation of the Act, as the 4th, 11th, and D.C. Circuits have held, or whether something more than mental distress or lost time is required, as the 7th (in this case) and 9th Circuits have held.
20-1668 City of Tahlequah, Oklahoma v. Bond (1) Whether use of force that is reasonable at the moment it is employed can nonetheless violate the Fourth Amendment if the officers recklessly or deliberately created the need to use force; and (2) whether it was clearly established for qualified immunity purposes that advancing toward an intoxicated individual wielding a deadly weapon inside a garage was a “reckless” act that would render unconstitutional any subsequent use of lethal force in response to a threat to officer safety.
20-1643 Baisley v. Int'l Association of Machinists and Aerospace Workers Whether opt-out procedures for collecting union fees for ideological and political activities violate the First Amendment or the Railway Labor Act.
20-1611 Healthcare Distribution Alliance v. James Whether the New York Opioid Stewardship Act’s surcharge is a “tax” within the meaning of the Tax Injunction Act, despite having features that other circuits repeatedly have held indicative of a punitive fee.
20-1596 Taylor Lohmeyer Law Firm PLLC v. U.S. Whether documents that reflect the client’s identity are protected by the attorney-client privilege when the Government is aware of a citizen’s confidential communication with legal counsel or the motive for seeking advice but is unaware of the citizen’s identity.
20-1587 Louisiana v. Hill (1) Whether a state may require convicted sex offenders to obtain and carry a state identification bearing the words “sex offender” without facially violating the First Amendment’s prohibition on compelled speech; and (2) whether a convicted sex offender has a First Amendment right not to be prosecuted for fraudulently altering a state identification card after scratching off a statutorily required sex offender designation.
20-1562 Strain v. Regalado Whether a pretrial detainee can prevail against a jail official who disregarded an obvious risk of serious harm or whether the pretrial detainee must prove that the official subjectively knew of and disregarded a serious risk of harm.
20-1539 Rivas-Villegas v. Cortesluna (1) Whether the U.S. Court of Appeals for the 9th Circuit departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard in denying qualified immunity to Daniel Rivas-Villegas based upon the absence of a constitutional violation, by concluding that pushing a suspect down with a foot and briefly placing a knee against the back of a prone, armed suspect while handcuffing him, could constitute excessive force; and (2) whether the 9th Circuit departed from the Supreme Court’s decision in Kisela v. Hughes and numerous other cases by denying qualified immunity even though two judges concluded the use of force was reasonable, and notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting Rivas-Villegas.
20-1531 North American Coal Corp. v. Environmental Protection Agency Whether 42 U.S.C. § 7411(d), which authorizes the Environmental Protection Agency to impose standards “for any existing source” based on limits “achievable through the application of the best system of emission reduction” that has been “adequately demonstrated,” grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.
20-1530 West Virginia v. Environmental Protection Agency Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.
20-1507 Association of New Jersey Rifle & Pistol Clubs Inc. v. Grewal (1) Whether a blanket, retrospective and confiscatory law prohibiting ordinary law-abiding citizens from possessing magazines in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that was lawfully acquired and long possessed without incident violates the takings clause.
20-1501 Roman Catholic Diocese of Albany v. Lacewell (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.
20-1479 Houston v. U.S. Whether a sentencing court must consider applicable sentencing factors codified in 18 U.S.C. § 3553(a) when deciding whether to impose a reduced sentence under Section 404(b) of the First Step Act.
20-1474 Colone v. Superior Court of California, San Francisco County (1) Whether federal statutes must contain express privilege language before courts may decide that Congress intended the statute to create an evidentiary privilege that abrogates the legislated subpoena and discovery rules, and impedes judicial truth-seeking, as the U.S. Courts of Appeals for the 9th, 10th and 11th Circuits have ruled, or whether courts may read ambiguous silence in statutory text to impliedly create such a privilege, as the U.S. Courts of Appeals for the District of Columbia, 3rd and 5th Circuits, and the lower courts in this case, have ruled; and (2) whether the Stored Communications Act yields to judicial process, as the 9th Circuit has presumed, or whether the act impliedly creates a novel, unqualified evidentiary privilege for the Internet that bars judicial subpoenas requested by non-governmental litigants, as the U.S. Court of Appeals for the 2nd Circuit, the Ohio State Supreme Court, the District of Columbia Court of Appeals and the lower courts in this case have ruled.
20-1462 Eni USA Gas Marketing LLC v. Gulf LNG Energy, LLC Whether the Federal Arbitration Act permits a court to refuse to enforce an arbitration agreement delegating all questions, including questions of arbitrability, to an arbitrator when a party contends that the claim sought to be arbitrated represents a “collateral attack” on a prior arbitration award.
20-1453 Cal Cartage Transportation Express, LLC v. California Whether the Federal Aviation Administration Authorization Act, which expressly preempts state laws “related to a price, route, or service of any motor carrier,” preempts state worker-classification laws that have an effect on a motor carrier’s prices and services by discouraging the use of independent contractors.
20-1434 Rutledge v. Little Rock Family Planning Services Whether the 14th Amendment bars states from prohibiting abortions that are sought solely because of a prenatal diagnosis of Down syndrome.
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.
20-1419 Russell v. New Jersey (1) Whether the Second Amendment protects the right to carry arms outside of the home for self-defense; and (2) whether the government may deny law-abiding citizens their exercise of the right to carry a handgun outside of their homes by conditioning the exercise of the right on showings of need.
20-1410 Ruan v. U.S. Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.
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.
20-1391 Sportswear Inc. v. Savannah College of Art and Design Inc. (1) Whether the scope of a federally-registered service mark extends to unrelated goods bearing that service mark; and (2) whether the defendant’s copying of a mark, without proof of consumer confusion as to the source of the parties’ goods or services, establishes trademark infringement merely because consumers recognize the mark.
20-1390 Reyes-Romero v. Garland Whether, when circumstances such as agency misconduct deprive an immigration applicant of a fundamental right, a federal court may grant "nunc pro tunc" relief — in which allows a court decides a matter “now for then,” as though at an earlier date — to remedy the deprivation.
20-1379 Southeastern Pennsylvania Transportation Authority v. Center for Investigative Reporting Whether the Supreme Court’s decision in Minnesota Voters Alliance v. Mansky overruled or abrogated the court’s holding in Lehman v. City of Shaker Heights that transit authorities have the discretion to categorically prohibit political advertisements.
20-1349 Threatt v. Farrell Whether, and to what degree, a district court must consider counsel’s lodestar in awarding “reasonable attorney’s fees” under Federal Rule of Civil Procedure 23(h).
20-1334 Boardman v. Inslee Whether a law that skews the debate over the value of public-sector unions and undermines public-sector employees’ opt-out rights by giving incumbent unions exclusive access to information necessary to communicate with public-sector employees is consistent with the First Amendment.
20-1287 Recovery Innovations Inc. v. Rawson Whether through the provision of mental health services, a private, nonprofit hospital and private health care providers become state actors, subject to claims under 42 U.S.C. § 1983, when they provide mental health services to a person who was deemed to be “gravely disabled” and to “present[] a likelihood of serious harm to others” under the state’s involuntary commitment law.
20-1279 Castañon v. U.S. Whether the three-judge district court erred by holding that residents of the District of Columbia are not entitled to voting representation in the House of Representatives because they do not live in a “State,” even though (1) Americans living overseas and residents of “federal enclaves” have voting representation in Congress despite not being State residents, (2) Congress has concluded that it may extend voting rights to District residents under the “District Clause” of the Constitution, Article I, Section 17, Clause 8, and (3) the Supreme Court has held that the right to vote is the most fundamental of all rights because it is preservative of all other rights.
20-1246 Valentine v. Phillips (1) Whether the U.S. Court of Appeals for the 6th Circuit violated Federal Rule of Civil Procedure 52(a)(6) when it failed to apply the proper, heightened and deferential standard to the district court’s expert witness credibility determination; and (2) whether the 6th Circuit usurped the district court’s expert witness gatekeeping function when it held that the district court should have credited the testimony of Johnny Phillips’s expert — and granted Phillips’s petition — simply because that testimony was not blatantly self-serving or dishonest.
20-1141 Doe Company v. U.S. (1) Whether an appealing party’s substantial interest in a disclosure order directing a disinterested third party to produce documents provides appellate jurisdiction under Perlman v. United States, when that interest will be lost absent immediate appellate review; and (2) whether a federal court lacks specific personal jurisdiction to enforce a subpoena that is directed to a foreign recipient and demands the production of documents that are unrelated to the recipient’s contacts with the United States.
20-1135 Dignity Health v. Minton (1) Whether the free exercise clause of the First Amendment bars a state-law claim that seeks to compel a religiously affiliated hospital to allow medical procedures that violate its longstanding, deeply held religious beliefs; and (2) whether the First Amendment’s free expression and free association guarantees bar a state-law claim that seeks to compel a religiously affiliated hospital to allow — and thereby endorse and be associated with — medical procedures that violate its longstanding, deeply held religious beliefs.
20-1057 Oracle America Inc. v. U.S. (1) Whether a bid protest that establishes a violation of federal law may be denied for “harmless error” based on a rationale not present in the administrative record; and (2) whether, in resolving a bid protest that establishes a violation of the criminal conflict-of-interest statute, the U.S. Court of Appeals for the Federal Circuit can enforce the contract based on deference to an agency’s assessment that the criminal violation did not taint the procurement.
20-1026 Eagle Trust Fund v. U.S. Postal Service (1) Whether the Postal Reorganization Act of 1970 impliedly bars non-Administrative Procedure Act review, including claims of arbitrary-and-capricious conduct or failure to follow the U.S. Postal Service’s own rules; and (2) whether the PRA violates Article III as applied to bar judicial review of USPS adjudications.
20-1006 City of Hayward, California v. Stoddard-Nunez (1) Whether an accelerating fleeing driver’s sudden turn deprives a threatened shooting officer of qualified immunity; and (2) whether an unintended victim-passenger of a fleeing vehicle is “seized” for purposes of the Fourth Amendment.
20-905 Independent School District No. 283 v. E.M.D.H. ex rel. L.H. and S.D. Whether the continuing-violation doctrine applies to the two-year statutory time limit to file an administrative complaint under the Individuals with Disabilities Education Act. CVSG: 8/23/2021
20-685 Biden v. Sierra Club (1) Whether the Sierra Club has a cognizable cause of action to obtain review of the secretary of defense’s compliance with 10 U.S.C. § 2808 in reprioritizing appropriated but unobligated funds for the military construction projects involving border barriers being authorized; and (2) whether the secretary exceeded his statutory authority under Section 2808 in reprioritizing appropriated funds for the military construction projects following the president’s declaration of a national emergency requiring the use of the armed forces at the southern border.
20-493 Ysleta del Sur Pueblo v. Texas Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the 5th Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the pueblo to all Texas gaming regulations. CVSG: 8/25/2021

Featured Petitions

Docket Case Page Issue(s)
21-463 Whole Woman’s Health v. Jackson Whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.
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.”
21-401 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.
21-396 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.
21-383 Wyoming v. Mahaffy Whether the Supreme Court’s rejection in Rodriguez v. United States of de minimis extensions to traffic stops abrogated or limited Arizona v. Johnson, thereby prohibiting officers from posing any unrelated questions even where the inquiry does not measurably extend the duration of the stop.
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.
21-365 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.
21-347 Jackson v. Hudson Whether a federal prisoner is entitled to bring a habeas claim under the saving clause of 28 U.S.C. § 2255(e) to challenge the unlawful application of a mandatory minimum sentence, and imposition of a sentence that exceeded the proper statutory maximum, when his challenge was previously precluded by binding circuit precedent that has since been overruled by the circuit sitting en banc on the basis of an intervening decision of the Supreme Court.
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.
21-328 Morgan v. Sundance Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violates the Supreme Court’s instruction in AT&T Mobility LLC v. Concepcion that lower courts must “place arbitration agreements on an equal footing with other contracts."
21-312 Volkswagen Aktiengesellschaft v. Ohio, ex rel. Yost Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems.
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.
21-275 Stars Interactive Holdings v. Kentucky, ex rel. Brown (1) Whether an award of statutory damages violates due process when it exceeds by a factor of more than 30 any conceivable harm; and (2) whether the excessive-fines clause prohibits a state from punishing a defendant by imposing a penalty 50 times in excess of the defendant’s revenue earned from the prohibited conduct.
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.
21-267 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.
21-248 Berger v. North Carolina State Conference of the NAACP (1) Whether a state agent authorized by state law to defend the state’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant; (2) whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion; and (3) whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation.
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.
21-221 Cretacci v. Call Whether a prisoner who submits a filing through the prison mail system loses the benefit of the mailbox rule if he has counsel.
21-219 Clear Channel Outdoor, LLC v. Raymond Whether a tax singling out off-premises billboards is subject to heightened scrutiny under the First Amendment.
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.
21-196 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.
21-195 Belmora LLC v. Bayer Consumer Care AG (1) Whether, in view of the principle of trademark territoriality, the zone of interests encompassed by Lanham Act Sections 43(a) and 14(3) extends to the foreign owner of a foreign trademark that has not registered or used the mark in the United States; and (2) whether, in the absence of an express limitations period in the Lanham Act, the timeliness of a Section 43(a) suit for false association and false advertising is governed by the most analogous state-law statute of limitations, or instead, by laches.
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.
21-171 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).
21-152 Estate of Madison Jody Jensen v. Tubbs Whether private medical personnel working in correctional or mental-health facilities can assert qualified immunity.
21-144 Seattle’s Union Gospel Mission v. Woods (1) Whether the First Amendment protects Seattle’s Union Gospel Mission’s right to hire coreligionists; (2) whether denying the Mission a total exemption from non-discrimination law that the state grants to secular, small businesses violates the Free Exercise Clause; and (3) whether the Washington Supreme Court violated the Free Exercise Clause by showing at least a “slight suspicion” of hostility to religious beliefs in deleting a total exemption the legislature bestowed.
21-138 González-Bermúdez v. Abbott Laboratories P.R. (1) Whether comparator evidence can support an inference of discrimination if the plaintiff and comparators do not share the same position, duties, and supervisor; and (2) whether a jury’s disbelief of an employer’s proffered reason for an adverse employment action can sustain an inference of discrimination or retaliation.
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.
21-111 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.
21-86 Axon Enterprise v. Federal Trade Commission (1) Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the Commission’s cease-and desist orders; and (2) whether, on the merits, the structure of the Federal Trade Commission, including the dual-layer for-cause removal protections afforded its administrative law judges, is consistent with the Constitution.
21-84 Foundation for Individual Rights in Education v. Victim Rights Law Center Whether a movant who seeks to intervene as of right, under FRCP 24(a)(2), on the same side as a governmental litigant must overcome a presumption of adequate representation.
21-82 Alpine Securities Corp. v. Securities and Exchange Commission Whether the Security and Exchange Commission’s assertion of independent authority to interpret and enforce the Bank Secrecy Act contravenes Congress’s decision to entrust enforcement of the Bank Secrecy Act’s comprehensive anti-money-laundering regime to the Treasury Department, a politically accountable executive agency.
21-80 Outdoor Amusement Business Association v. Department of Homeland Security Whether Congress, consistent with the nondelegation doctrine and clear-statement rule, impliedly authorized the Secretary of Labor individually to promulgate legislative rules for the admission of H-2B workers and adjudicate H-2B labor certifications.
21-68 Janis v. U.S. (1) Whether Standard Condition 12 of the U.S. Sentencing Guidelines, codified in U.S.S.G. § 5D1.3(c)(12), unconstitutionally delegates authority to the probation officer; and (2) whether Standard Condition 12 is unconstitutionally vague.
21-57 Frasier v. Evans (1) Whether training or law enforcement policies can be relevant to whether a police officer is entitled to qualified immunity; and (2) whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.
21-51 Central Payment Co., LLC v. Custom Hair Designs by Sandy, LLC Whether a class may be certified under Rule 23 of the Federal Rules of Civil Procedure when the class claims turn on materially different contractual rights and obligations between the defendant and each class member.
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.
21-31 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.
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.
21-26 Billetts v. Mentor Worldwide, LLC Whether preemption under the Medical Device Amendments to the Food, Drug, and Cosmetic Act supports Rule 12(b)(6) dismissal of state common law claims alleging failure to warn by virtue of inaccurate post-approval, post-sale public reporting of adverse events, and claims alleging defective manufacture of medical devices.
21-17 Hargreaves v. Nuverra Environmental Solutions Whether the doctrine of equitable mootness is inconsistent with the federal courts’ “virtually unflagging” obligation to hear and decide cases within their jurisdiction.
20-1817 Ezaki Glico Co. v. Lotte Int'l America Corp. (1) Whether trade dress is “functional” if it is “essential to the use or purpose of the article” or “affects the cost or quality of the article,” as the Supreme Court and nine circuit courts have held, or if it is merely “useful” and “nothing more,” as the U.S. Court of Appeals for the 3rd Circuit held below; and (2) whether the presence of alternative designs serving the same use or purpose creates a question of fact with respect to functionality, where the product’s design does not affect cost or quality and is not claimed in a utility patent.
20-1790 Campbell v. U.S. (1) Whether a trial court violates a defendant’s rights under the Confrontation clause by prohibiting cross-examination of accomplice witnesses about the sentencing benefits they hope to receive in exchange for their cooperation with the government; and (2) whether appellate courts should review violations of the Confrontation clause de novo or for abuse of discretion.
20-1788 City of New York v. Frost Whether, where a Section 1983 plaintiff alleges that his pretrial detention was influenced by fabricated evidence, and the existence of probable cause independent of the challenged evidence defeats his Fourth Amendment claim, he may still pursue a due process-based claim based on alleged use of the same challenged evidence in securing the same pretrial detention.
20-1779 Morales-Vázquez v. QBE Seguros Whether the traditional doctrine of uberrimae fidei (“utmost good faith”) continues to apply in its strict form (as held by the U.S. Court of Appeals for the 1st Circuit in the decision below and also by the U.S. Courts of Appeals for the 3rd, 9th, and 11th Circuits), or is the doctrine limited to cases in which the insurer relied on a mistake or omission when issuing the policy (as held by the U.S. Courts of Appeals for the 2nd and 8th Circuits), or is the traditional doctrine no longer part of federal maritime law (as held by the U.S. Court of Appeals for the 5th Circuit), or should the doctrine be modified to limit an insurer’s ability to avoid the policy (which would restore uniformity with the law in England).
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.
20-1709 Pon v. U.S. Whether an appellate court reviewing a cold criminal trial record may determine that an error at trial was harmless by applying an “overwhelming evidence of guilt” test that considers only the potential effect of the error on the government’s case and not on the defense.
20-1704 Simmons v. U.S. Whether a court can summarily dismiss a pro se habeas petition as untimely for failure to adequately allege a causal connection when petitioner explains how a government impediment “prevented” him from filing timely but does not allege with specificity how he discovered and attempted to remedy that impediment.
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.
20-1648 Fischer v. Forrest (1) Whether the name of the author of a copyrighted work is copyright management information or whether it must also be apparent from context that the name is copyright-related; and (2) whether the name of the copyright owner of a copyrighted work is copyright management information or whether it must also be apparent from context that the name is copyright-related.
20-1641 Marietta Memorial Hospital Employee Health Benefit Plan v. Davita (1) Whether a group health plan that provides uniform reimbursement of all dialysis treatments observe the prohibition provided by the Medicare Secondary Payer Act that group health plans may not “take into account” the fact that a plan participant with end stage renal disease is eligible for Medicare benefits; (2) whether a plan that provides the same dialysis benefits to all plan participants, and reimburses dialysis providers uniformly regardless of whether the patient has end stage renal disease, observe the prohibition under the Medicare Secondary Payer Act that a group health plan also may not “differentiate” between individuals with end stage renal disease and others “in the benefits it provides”; and (3) whether the Medicare Secondary Payer Act is a coordination-of-benefits measure designed to protect Medicare, not an antidiscrimination law designed to protect certain providers from alleged disparate impact of uniform treatment.
20-1614 Leontaritis v. U.S. (1) Whether, if a jury is instructed to “determine” a fact by indicating a “unanimous finding beyond a reasonable doubt” and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district court’s sentencing decision must accept the jury’s determination or instead may base the sentence on its own independent finding that contradicts the jury’s.
20-1598 Project Veritas Action Fund v. Rollins (1) Whether a recording law, which makes it a felony for individuals to secretly record under any circumstances, is not facially overbroad under the First Amendment; and (2) whether a party challenging a speech suppressive law has the burden to precisely articulate every type of contemplated speech activity to satisfy ripeness for as-applied challenges.
20-1499 American Civil Liberties Union v. U.S. (1) Whether the Foreign Intelligence Surveillance Court, like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions, and whether the Foreign Intelligence Surveillance Court of Review has jurisdiction to consider an appeal from the denial of such a motion; and (2) whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions.
20-1389 Savage v. U.S. Whether the U.S. Court of Appeals for the 3rd Circuit properly held — in conflict with decades of federal practice endorsing flexible procedures to assemble a complete record on appeal — that an appellant seeking a complete appellate record must overcome procedural impediments lacking any basis in Federal Rule of Appellate Procedure 10’s text: namely, that when an appellant lacks any “means” to “prepare a statement of” untranscribed “proceedings” under Rule 10(c), the district court has no obligation to assist in reconstructing those proceedings unless the appellant first files a declaration “saying he does not remember what happened,” and that when an appellant wishes to review and supplement the record with undocketed trial correspondence in the district court’s possession, he must first show how the correspondence would “give rise to ‘any difference[s]’ about whether the record truly discloses what occurred in the district court.”
20-994 Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Florida Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems. CVSG: 9/27/2021

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
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.
20-1046 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.
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.
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.
20-772 Waterfront Commission of New York Harbor v. Murphy Whether, under the doctrine of Ex parte Young, an interstate compact agency may sue a state official to prevent that official from implementing a state law that would be preempted under a congressionally approved interstate compact.
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.
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.