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Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
19-333 Arlene’s Flowers Inc. v. Washington (1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.
19-1135 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.
19-7862 Coonce v. U.S. (1) Whether, because the age at which a capital defendant became intellectually disabled does not bear on his moral culpability, the U.S. Court of Appeals for the 8th Circuit erred in concluding that the Eighth and Fifth Amendments permit the government to execute the petitioner, Wesley Coonce ― though his 71 I.Q. and severe adaptive deficits otherwise meet the criteria for a medical diagnosis of intellectual disability that would bar his execution under 18 U.S.C. § 3596(c) and Atkins v. Virginia ― solely because his impairment originated at age 20 rather than before age 18; and (2) whether the 8th Circuit erred in concluding, like other circuits but unlike numerous state courts of last resort, that notwithstanding the Supreme Court’s recent teaching concerning the Sixth Amendment’s confrontation clause, its 70-year-old decision in Williams v. New York allows the admission of testimonial hearsay to prove an aggravating factor at a capital sentencing hearing.
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
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.
20-1480 Naum v. U.S. Whether the elements of 21 U.S.C. § 841(a)(l) as defined in United States v. Moore, requiring the government to prove unlawful distribution of a controlled substance “outside the usual course of professional practice” and “for other than a legitimate medical purpose” can be applied in the disjunctive, permitting the government to prove only that a prescription was prescribed “outside the usual course of professional practice” or “outside the bounds of professional practice” solely for violation of a professional standard without regard to the medical legitimacy of the medication.
20-1492 Abdulla v. Garland Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that petitioner did not derive citizenship through his father under former 8 U.S.C. § 1432(a) because his father naturalized before, rather than after, allegedly separating from his mother.
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.
20-1501 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.
20-1530 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.
20-1531 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.
20-1539 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.
20-1668 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.
20-1690 Cortesluna v. Rivas-Villegas Whether the U.S. Court of Appeals for the 9th Circuit departed from longstanding procedure and precedent and failed to view video and other evidence in the light most favorable to the plaintiff with respect to the central facts of the case and accepted a version of facts that is a “visible fiction” when it “should have viewed the facts in the light depicted by the videotape” and other evidence.
20-1775 Arizona v. City and County of San Francisco, California (1) Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend; (2) whether the Department of Homeland Security's final rule interpreting the statutory term “public charge” is contrary to law or arbitrary and capricious; and (3) whether the decision below as to the rule should be vacated as moot under United States v. Munsingwear.
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.
20-1780 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.
20-7622 Denezpi v. U.S. Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.
20-7934 Couch v. U.S. (1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician.

Petitions We’re Watching for the Next Conference

Docket Case Page Issue(s)
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.

Featured Petitions

Docket Case Page Issue(s)
21-518 AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a “foreign or international tribunal” under 28 U.S.C. § 1782(a) when the arbitral panel does not exercise any governmental or quasi-governmental authority.
21-516 Haggerty v. U.S. (1) Whether the “interracial” nature of a minor offense in Indian Country is an element of 18 U.S.C. § 1152, rather than an affirmative defense, and thus must be both pled and proved by the prosecution; and (2) whether the government must plead and prove the “interracial” nature of a minor offense in Indian Country to establish federal subject matter jurisdiction under 18 U.S.C. § 1152.
21-511 Shoop v. Twyford (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.
21-505 Bank of America Corporation v. Fund Liquidation Holdings LLC Whether a district court lacking Article III jurisdiction can create such jurisdiction by adding a new plaintiff via Federal Rule of Civil Procedure 17.
21-499 Vega v. Tekoh Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda v. Arizona.
21-496 Smith v. U.S. (1) Whether the categorical approach for generic offenses applies to the offense of conspiring under U.S.S.G. § 4B1.2 Application Note 1 and requires an overt act element; and (2) whether U.S.S.G. § 4B1.2 Application Note 1 is a valid and controlling interpretation of that guideline.
21-495 Black v. Pension Benefit Guaranty Corporation (1) Whether the Employee Retirement Income Security Act permits the termination of a distressed pension plan through an agreement between Pension Benefit Guaranty Corporation and the plan administrator; (2) whether termination through such an agreement, which avoids a hearing, violates the participants’ constitutional rights to due process; and (3) whether, if ERISA and due process allow for termination by agreement, the termination’s substantive legality is to be judged under the standards in 29 U.S.C. § 1342(c), or whether it is enough that the conditions in Section 1342(a) to “institute” proceedings may exist.
21-482 Ali v. U.S. Whether a court must apply the modified categorical approach to determine whether a verdict of conviction under 18 U.S.C. § 924(c) necessarily rests on a valid predicate offense, as the Supreme Court directed in United States v. Davis, Mathis v. United States and Shepard v. United States or whether it may affirm such a Section 924(c) conviction if it is merely possible that the jury relied on a valid predicate offense.
21-477 Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria Whether the immovable-property exception applies to tribal sovereign immunity.
21-476 303 Creative LLC v. Elenis (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith.
21-475 Brookhart v. Smith Whether the U.S. Court of Appeals for the 7th Circuit violated 28 U.S.C. § 2254(d)’s strictures in awarding habeas relief to the respondent, Kenneth Smith, based on its own reweighing of the evidence rather than deferring to the state court’s contrary view.
21-469 Jobe v. National Transportation Safety Board (1) Whether Exemption 5 of the Freedom of Information Act — which provides that federal agencies need not release privileged “inter-agency or intra-agency memorandums or letters” — includes an unwritten “consultant corollary,” under which documents prepared by private, outside consultants are deemed “intra-agency memorandums or letters”; and (2) whether any “consultant corollary” in FOIA Exemption 5 could ever render “intra-agency” the communications between an agency and (1) employees of a private, regulated company with an economic interest in the agency’s actions; or (2) the representative of a foreign government.
21-467 Parish v. Oklahoma Whether McGirt v. Oklahoma applies retroactively to convictions that were final when McGirt was announced.
21-465 Kisor v. McDonough Whether the term “relevant official service department records” in 38 C.F.R. § 3.156(c)(1)’s “reconsideration” provision encompasses all records that “go to a benefits criterion,” or is instead restricted to only those records that “relate to the basis of the [Department of Veterans Affairs’] initial denial of benefits,” as in Kisor v. Wilkie.
21-463 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.
21-454 Sackett v. Environmental Protection Agency Whether Rapanos v. United States — in which the Supreme Court held that the Clean Water Act does not regulate all wetlands, but without a majority opinion explaining why that is so — should be revisited to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.
21-453 Uber Technologies v. Gregg Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-442 Reed v. Goertz Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
21-441 Siegel v. Fitzgerald Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Constitution's bankruptcy clause by increasing quarterly fees solely in districts under the U.S. Trustee program, not in those under the Bankruptcy Administrator program.
21-439 Nance v. Ward (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.
21-432 Arellano v. McDonough (1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.
21-420 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.
21-273 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.
21-271 Benitez v. Charlotte-Mecklenburg Hospital Authority Whether a multibillion-dollar “hospital authority” that operates in multiple states in a manner indistinguishable from private hospitals can be a “local government” for purposes of the Local Government Antitrust Act of 1984.
21-267 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.
21-211 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).
21-144 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.
21-133 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.
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.
20-1676 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.
20-1598 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.
20-1594 Rojas v. U.S. Whether the Federal Food, Drug and Cosmetic Act’s felony prohibitions on “dispensing” drugs reach the administering of drugs by practitioners, which has been left to state and local regulation for more than a century.
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)
20-1426 Epic Systems Corp. v. Tata Consultancy Services Ltd. Whether a state statute that expressly caps punitive damages at two times compensatory damages satisfies the notice requirement of the due process clause such that a punitive damages award that complies with the statute is constitutionally sound under the due process clause.
20-1425 C.H. Robinson Worldwide v. Miller Whether a common-law negligence claim against a freight broker is preempted because it does not constitute an exercise of the “safety regulatory authority of a State with respect to motor vehicles” within the meaning of the Federal Aviation Administration Authorization Act’s safety exception.
20-1394 PersonalWeb Technologies, LLC v. Patreon Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit correctly interpreted Kessler v. Eldred to create a freestanding preclusion doctrine that may apply even when claim and issue preclusion do not; and (2) whether the Federal Circuit properly extended its Kessler doctrine to cases in which the prior judgment was a voluntary dismissal.
20-1229 Robertson v. Intratek Computer (1) Whether mandatory compelled arbitration of claims under 41 U.S.C. § 4712 disrupts the administrative scheme set up by Congress to remedy and enforce violations of 41 U.S.C. § 4712; and (2) whether Congress intended to prohibit enforcement of mandatory employment arbitration agreements in 41 U.S.C. § 4712, even if the statute does not expressly refer to arbitration, when it (a) expressly provided for a federal trial in the remedy and enforcement section and (b) expressly prohibited waiver of any rights and remedies provided as a condition of employment.
20-1199 Students for Fair Admissions Inc. v. President & Fellows of Harvard College (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.
20-1046 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.