October Term 2019

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Merits cases (to be) decided during OT 2019
Allen v. Cooper, No. 18-877 [Arg: 11.5.2019]

Issue(s): Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.
Altitude Express Inc. v. Zarda, No. 17-1623 [Arg: 10.8.2019]

Issue(s): Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, No. 18-1587

Issue(s): Whether the United States Forest Service has the authority under the Mineral Leasing Act and National Trails System Act to grant rights-of-way through national-forest lands that the Appalachian Trail traverses.
Atlantic Richfield Co. v. Christian, No. 17-1498 [Arg: 12.3.2019]

Issue(s): (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies. CVSG: 04/30/2019.
Aurelius Investment, LLC v. Puerto Rico, No. 18-1475 [Arg: 10.15.2019 Trans.]

Issue(s): Whether the de facto officer doctrine allows courts to deny meaningful relief to successful separation-of-powers challengers who are suffering ongoing injury at the hands of unconstitutionally appointed principal officers.
Babb v. Wilkie, No. 18-882

Issue(s): Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.
Banister v. Davis, No. 18-6943 [Arg: 12.4.2019]

Issue(s): Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.
Barton v. Barr, No. 18-725 [Arg: 11.4.2019]

Issue(s): Whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1).
Bostock v. Clayton County, Georgia, No. 17-1618 [Arg: 10.8.2019 Trans./Aud.]

Issue(s): Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., No. 18-565 [Arg: 11.5.2019]

Issue(s): Whether under federal maritime law a safe-berth clause in a voyage charter contract is a guarantee of a ship's safety, as the U.S. Courts of Appeals for the 2nd and 3rd Circuits have held, or a duty of due diligence, as the U.S. Court of Appeals for the 5th Circuit has held.
Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171 [Arg: 11.13.2019]

Issue(s): Whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation.
County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260 [Arg: 11.6.2019]

Issue(s): Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. CVSG: 01/03/2018.
Department of Homeland Security v. Regents of the University of California, No. 18-587 [Arg: 11.12.2019]

Issue(s): (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
Department of Homeland Security v. Thuraissigiam, No. 19-161

Issue(s): Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.
Espinoza v. Montana Department of Revenue, No. 18-1195

Issue(s): Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, No. 18-1334 [Arg: 10.15.2019 Trans.]

Issue(s): Whether the appointments clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC, No. 18-1048

Issue(s): Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
Gee v. June Medical Services, LLC, No. 18-1460

Issue(s): (1) Whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sure on their own behalf; and (2) whether objections to prudential standing are waivable – per the U.S. Courts of Appeals for the 4th, 5th, 7th, 9th, 10th and Federal Circuits – or non-waivable per the U.S. Courts of Appeals for the D.C., 2nd, and 6th Circuits.
Georgia v. Public.Resource.Org Inc., No. 18-1150 [Arg: 12.2.2019]

Issue(s): Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.
Guerrero-Lasprilla v. Barr, No. 18-776 [Arg: 12.9.2019]

Issue(s): Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”
Hernandez v. Mesa, No. 17-1678 [Arg: 11.12.2019]

Issue(s): Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
Holguin-Hernandez v. U.S., No. 18-7739 [Arg: 12.10.2019]

Issue(s): Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.
Intel Corp. Investment Policy Committee v. Sulyma, No. 18-1116 [Arg: 12.4.2019]

Issue(s): Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, which runs from “the earliest date on which the plaintiff had actual knowledge of the breach or violation,” bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.
June Medical Services LLC v. Gee, No. 18-1323

Issue(s): Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.
Kahler v. Kansas, No. 18-6135 [Arg: 10.7.2019 Trans./Aud.]

Issue(s): Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.
Kansas v. Garcia, No. 17-834 [Arg: 10.16.2019 Trans.]

Issue(s): (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents. CVSG: 12/04/2018.
Kansas v. Glover, No. 18-556 [Arg: 11.4.2019]

Issue(s): Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.
Kelly v. U.S., No. 18-1059

Issue(s): Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.
Land of Lincoln Mutual Health Insurance Co. v. U.S., No. 18-1038 [Arg: 12.10.2019]

Issue(s): Whether a temporary cap on appropriations availability from certain specified funding sources may be construed, based on its legislative history, to abrogate retroactively the government’s payment obligations under a money-mandating statute, for parties that have already performed their part of the bargain under the statute.
Lomax v. Ortiz-Marquez, No. 18-8369

Issue(s): Whether prior Heck v. Humphrey dismissals without prejudice are strikes under 28 U.S.C. 1915(g).
Lucky Brand Dungarees Inc. v. Marcel Fashion Group Inc., No. 18-1086

Issue(s): Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.
Maine Community Health Options v. U.S., No. 18-1023 [Arg: 12.10.2019]

Issue(s): (1) Whether—given the “cardinal rule” disfavoring implied repeals, which applies with “especial force” to appropriations acts and requires that repeal not to be found unless the later enactment is “irreconcilable” with the former—an appropriations rider whose text bars the agency’s use of certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, and is thus not inconsistent with it, can nonetheless be held to impliedly repeal the obligation by elevating the perceived “intent” of the rider (drawn from unilluminating legislative history) above its text, and the text of the underlying statute; and (2) whether—when the federal government has an unambiguous statutory payment obligation, under a program involving reciprocal commitments by the government and a private company participating in the program—the presumption against retroactivity applies to the interpretation of an appropriations rider that is claimed to have impliedly repealed the government’s obligation.
Mathena v. Malvo, No. 18-217 [Arg: 10.16.2019 Trans.]

Issue(s): Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
McAleenan v. Vidal, No. 18-589 [Arg: 11.12.2019]

Issue(s): (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
McKinney v. Arizona, No. 18-1109 [Arg: 12.11.2019]

Issue(s): (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.
Moda Health Plan v. U.S., No. 18-1028 [Arg: 12.10.2019]

Issue(s): Whether Congress can evade its unambiguous statutory promise to pay health insurers for losses already incurred simply by enacting appropriations riders restricting the sources of funds available to satisfy the government’s obligation.
Monasky v. Taglieri, No. 18-935 [Arg: 12.11.2019]

Issue(s): (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held, or under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention.
Nasrallah v. Barr, No. 18-1432

Issue(s): Whether, notwithstanding 8 U.S.C. § 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.
New York State Rifle & Pistol Association Inc. v. City of New York, New York, No. 18-280 [Arg: 12.2.2019]

Issue(s): Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.
Official Committee of Debtors v. Aurelius Investment, LLC, No. 18-1496 [Arg: 10.15.2019 Trans.]

Issue(s): Whether the appointments clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
Opati v. Republic of Sudan, No. 17-1268

Issue(s): Whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute. CVSG: 05/21/2019.
Ovalles v. Barr, No. 18-1015 [Arg: 12.9.2019]

Issue(s): Whether the criminal alien bar, 8 U.S.C. § 1252(a)(2)(C), tempered by 8 U.S.C. § 1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
Peter v. NantKwest Inc., No. 18-801 [Arg: 10.7.2019 Trans./Aud.]

Issue(s): Whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in Section 145 litigation.
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107 [Arg: 10.8.2019 Trans./Aud.]

Issue(s): Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.
Ramos v. Louisiana, No. 18-5924 [Arg: 10.7.2019 Trans./Aud.]

Issue(s): Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
Retirement Plans Committee of IBM v. Jander, No. 18-1165 [Arg: 11.6.2019]

Issue(s): Whether Fifth Third Bancorp v. Dudenhoeffer’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.
Ritzen Group Inc. v. Jackson Masonry, LLC, No. 18-938 [Arg: 11.13.2019]

Issue(s): Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).
Rodriguez v. Federal Deposit Insurance Corp., No. 18-1269 [Arg: 12.3.2019]

Issue(s): Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law “Bob Richards rule,” as three circuits hold, or based on the law of the relevant state, as four circuits hold.
Romag Fasteners Inc. v. Fossil Inc., No. 18-1233

Issue(s): Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a).
Rotkiske v. Klemm, No. 18-328 [Arg: 10.16.2019 Trans.]

Issue(s): Whether the “discovery rule” applies to toll the one-year statute of limitations under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq., as the U.S. Courts of Appeals for the 4th and 9th Circuits have held but the U.S. Court of Appeals for the 3rd Circuit (sua sponte en banc) has held contrarily.
Seila Law LLC v. Consumer Financial Protection Bureau, No. 19-7

Issue(s): Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers.
Shular v. U.S., No. 18-6662

Issue(s): Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the act.
Thole v. U.S. Bank, N.A., No. 17-1712

Issue(s): (1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; (2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof. CVSG: 05/21/2019; and (3) whether petitioners have demonstrated Article III standing.
Thryv v. Click-To-Call Technologies, LP, No. 18-916 [Arg: 12.9.2019]

Issue(s): Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply.
Trump v. NAACP, No. 18-588 [Arg: 11.12.2019]

Issue(s): (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
U.S. Forest Service v. Cowpasture River Preservation Association, No. 18-1584

Issue(s): Whether the United States Forest Service has the authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.
U.S. v. Aurelius Investment, LLC, No. 18-1514 [Arg: 10.15.2019 Trans.]

Issue(s): Whether members of Financial Oversight and Management Board for Puerto Rico are “Officers of the United States” within the meaning of the appointments clause of the United States Constitution, Art. II, § 2, Cl. 2.
U.S. v. Sineneng-Smith, No. 19-67

Issue(s): Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.
UTIER v. Financial Oversight and Management Board for Puerto Rico, No. 18-1521 [Arg: 10.15.2019 Trans.]

Issue(s): Whether the de facto officer doctrine allows for unconstitutionally appointed principal Officers of the United States to continue acting, leaving the party that challenges their appointment with an ongoing injury and without an appropriate relief.
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