Briefly Mentioned :

Briefly Noted :

On Friday, the court released an order from the Dec. 4 conference. The justices granted a pair of consolidated cases regarding Medicaid work requirements for a combined one hour of oral argument.

October Term 2020

View this list sorted by case name.

October Sitting

Texas v. New Mexico, No. 22O65 [Arg: 10.5.2020 Trans./Aud.]

Issue(s): Whether the River Master correctly allocated evaporation losses under the Pecos River Compact.
Carney v. Adams, No. 19-309 [Arg: 10.5.2020 Trans./Aud.]

Issue(s): (1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts; and (3) whether the respondent, James Adams, has demonstrated Article III standing.
Tanzin v. Tanvir, No. 19-71 [Arg: 10.6.2020 Trans./Aud.]

Issue(s): Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, permits suits seeking money damages against individual federal employees.
Rutledge v. Pharmaceutical Care Management Association, No. 18-540 [Arg: 10.6.2020 Trans./Aud.]

Issue(s): Whether the U.S. Court of Appeals for the 8th Circuit erred in holding that Arkansas’ statute regulating pharmacy benefit managers’ drug-reimbursement rates, which is similar to laws enacted by a substantial majority of states, is pre-empted by the Employee Retirement Income Security Act of 1974, in contravention of the Supreme Court’s precedent that ERISA does not pre-empt rate regulation.
Ford Motor Company v. Bandemer, No. 19-369 [Arg: 10.7.2020 Trans./Aud.]

Issue(s): Whether the “arise out of or relate to” requirement of the 14th Amendment's due process clause is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.
Ford Motor Company v. Montana Eighth Judicial District Court, No. 19-368 [Arg: 10.7.2020 Trans./Aud.]

Issue(s): Whether the “arise out of or relate to” requirement for a state court to exercise specific personal jurisdiction over a nonresident defendant under Burger King Corp. v. Rudzewicz is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.
Google LLC v. Oracle America Inc., No. 18-956 [Arg: 10.7.2020 Trans./Aud.]

Issue(s): (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
City of Chicago, Illinois v. Fulton, No. 19-357 [Arg: 10.13.2020 Trans./Aud.]

Issue(s): Whether an entity that is passively retaining possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition.
U.S. v. Briggs, No. 19-108 [Arg: 10.13.2020 Trans./Aud.]

Issue(s): Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
U.S. v. Collins, No. 19-184 [Arg: 10.13.2020 Trans./Aud.]

Issue(s): Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
Torres v. Madrid, No. 19-292 [Arg: 10.14.2020 Trans./Aud.]

Issue(s): Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.
Pereida v. Barr, No. 19-438 [Arg: 10.14.2020 Trans./Aud.]

Issue(s): Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

November Sitting

Salinas v. U.S. Railroad Retirement Board, No. 19-199 [Arg: 11.02.20 Trans./Aud.]

Issue(s): Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a “final decision” subject to judicial review.
U.S. Fish and Wildlife Service v. Sierra Club, No. 19-547 [Arg: 11.02.20 Trans./Aud.]

Issue(s): Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.
Jones v. Mississippi, No. 18-1259 [Arg: 11.03.20 Trans./Aud.]

Issue(s): Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.
Borden v. U.S., No. 19-5410 [Arg: 11.03.20 Trans./Aud.]

Issue(s): Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.
Fulton v. City of Philadelphia, Pennsylvania, No. 19-123 [Arg: 11.04.20 Trans./Aud.]

Issue(s): Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
Niz-Chavez v. Barr, No. 19-863 [Arg: 11.09.20 Trans./Aud.]

Issue(s): Whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule, the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses.
Brownback v. King, No. 19-546 [Arg: 11.09.20 Trans./Aud.]

Issue(s): Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1) of the Federal Tort Claims Act, on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.
California v. Texas, No. 19-840 [Arg: 11.10.20 Trans./Aud.]

Issue(s): (1) Whether the individual and state plaintiffs in this case have established Article III standing to challenge the minimum-coverage provision in Section 5000A(a) of the Patient Protection and Affordable Care Act (ACA); (2) whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum-coverage provision unconstitutional; and (3) if so, whether the minimum-coverage provision is severable from the rest of the ACA.
Texas v. California, No. 19-1019 [Arg: 11.10.20 Trans./Aud.]

Issue(s): (1) Whether the unconstitutional individual mandate to purchase minimum essential coverage is severable from the remainder of the Patient Protection and Affordable Care Act; and (2) whether the district court properly declared the ACA invalid in its entirety and unenforceable anywhere.

December Sitting

Trump v. New York, No. 20-366 [Arg: 11.30.2020 Trans.]

Issue(s): (1) Whether a group of states and local governments have standing under Article III of the Constitution to challenge a July 21, 2020, memorandum by President Donald Trump instructing the secretary of commerce to include in his report on the 2020 census information enabling the president to exclude noncitizens from the base population number for purposes of apportioning seats in the House of Representatives; and (2) whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment.
Van Buren v. U.S., No. 19-783 [Arg: 11.30.2020 Trans.]

Issue(s): Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.
Nestlé USA v. Doe I, No. 19-416 [Arg: 12.1.2020 Trans.]

Issue(s): (1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity; and (2) whether the judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.
CIC Services, LLC v. Internal Revenue Service, No. 19-930 [Arg: 12.1.2020 Trans.]

Issue(s): Whether the Anti-Injunction Act’s bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.
Cargill v. Doe I, No. 19-453 [Arg: 12.1.2020 Trans.]

Issue(s): (1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in – and the plaintiffs suffered their injuries in – a foreign country; and (2) whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.
Edwards v. Vannoy, No. 19-5807 [Arg: 12.2.2020 Trans.]

Issue(s): Whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review.
Republic of Hungary v. Simon, No. 18-1447 [Arg: 12.7.2020]

Issue(s): Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.
Federal Republic of Germany v. Philipp, No. 19-351 [Arg: 12.7.2020]

Issue(s): (1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.
Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963 [Arg: 12.8.2020]

Issue(s): Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.
Facebook Inc. v. Duguid, No. 19-511 [Arg: 12.8.2020]

Issue(s): Whether the definition of an "automatic telephone dialing system" in the Telephone Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”
Mnuchin v. Collins, No. 19-563 [Arg: 12.9.2020]

Issue(s): (1) Whether the statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” 12 U.S.C. 4617(f), precludes a federal court from setting aside the Third Amendment. 2. Whether the statute’s succession clause—under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises—precludes the shareholders from challenging the Third Amendment.
Collins v. Mnuchin, No. 19-422 [Arg: 12.9.2020]

Issue(s): (1) Whether the Federal Housing Finance Agency’s structure violates the separation of powers; and (2) whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.

January Sitting

Pham v. Guzman Chavez, No. 19-897 [Arg: 1.11.2021]

Issue(s): Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.
Uzuegbunam v. Preczewski, No. 19-968 [Arg: 1.12.2021]

Issue(s): Whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.
AMG Capital Management, LLC v. Federal Trade Commission, No. 19-508 [Arg: 1.13.2021]

Issue(s): Whether Section 13(b) of the Federal Trade Commission Act, by authorizing “injunction[s],” also authorizes the Federal Trade Commission to demand monetary relief such as restitution—and if so, the scope of the limits or requirements for such relief.
National Association of Broadcasters v. Prometheus Radio Project, No. 19-1241 [Arg: 1.19.2021]

Issue(s): Whether under Section 202(h) of the Telecommunications Act of 1996 the Federal Communications Commission may repeal or modify media ownership rules that it determines are no longer “necessary in the public interest as the result of competition” without statistical evidence about the prospective effect of its rule changes on minority and female ownership.
Federal Communications Commission v. Prometheus Radio Project, No. 19-1231 [Arg: 1.19.2021]

Issue(s): Whether the U.S. Court of Appeals for the 3rd Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which, among other things, relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.
BP P.L.C. v. Mayor and City Council of Baltimore, No. 19-1189 [Arg: 1.19.2021]

Issue(s): Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.

Decided without oral argument

Mckesson v. Doe, No. 19-1108 [ Decided 11.2.2020]

Holding: Under the unusual circumstances of this case, the U.S. Court of Appeals for the 5th Circuit should not have ventured into such an uncertain area of state tort law without first using state certification procedures to seek guidance from the Louisiana Supreme Court.
Taylor v. Riojas, No. 19-1261 [ Decided 11.2.2020]

Holding: Because any reasonable correctional officer should have realized that Trent Taylor’s conditions of confinement offended the Eighth Amendment, the U.S. Court of Appeals for the 5th Circuit erred in granting the officers qualified immunity.
Roman Catholic Diocese of Brooklyn, New York v. Cuomo, No. 20A87 [ Decided 11.25.2020]

Holding: New York Gov. Andrew Cuomo is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on religious services during the COVID-19 pandemic, pending disposition of the appeal in the U.S. Court of Appeals for the 2nd Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.

Cases Not (Yet) Set for Argument

Barr v. Dai, No. 19-1155

Issue(s): (1) Whether a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination; and (2) whether the court of appeals violated the remand rule as set forth in INS v. Ventura when it determined in the first instance that the respondent, Ming Dai, was eligible for asylum and entitled to withholding of removal.
Barr v. Alcaraz-Enriquez, No. 19-1156

Issue(s): Whether a court of appeals may conclusively presume an applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates a withholding-of-removal application without making an explicit adverse credibility determination.
Wolf v. Innovation Law Lab, No. 19-1212

Issue(s): (1) Whether the Department of Homeland Security policy known as the Migrant Protection Protocols is a lawful implementation of the statutory authority conferred by 8 U.S.C. 1225(b)(2)(C); (2) whether MPP is consistent with any applicable and enforceable non-refoulement obligations; (3) whether MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking; and (4) whether the district court’s universal preliminary injunction is impermissibly overbroad.
Brnovich v. Democratic National Committee, No. 19-1257

Issue(s): (1) Whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, violates Section 2 of the Voting Rights Act; and (2) whether Arizona’s ballot-collection law, which permits only certain persons (i.e., family and household members, caregivers, mail carriers and elections officials) to handle another person’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.
Arizona Republican Party v. Democratic National Committee, No. 19-1258

Issue(s): (1) Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by supposedly “unfounded” concerns about voter fraud.
Department of Justice v. House Committee on the Judiciary, No. 19-1328

Issue(s): Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.
U.S. v. Cooley, No. 19-1414

Issue(s): Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.
U.S. v. Arthrex Inc., No. 19-1434

Issue(s): (1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether, if administrative patent judges are principal officers, the court of appeals properly cured any appointments clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.
Carr v. Saul, No. 19-1442

Issue(s): Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.
Smith & Nephew Inc. v. Arthrex Inc., No. 19-1452

Issue(s): (1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether, if administrative patent judges are principal officers, the court of appeals properly cured any appointments clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.
Arthrex Inc. v. Smith & Nephew Inc., No. 19-1458

Issue(s): (1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether, if administrative patent judges are principal officers, the court of appeals properly cured any appointments clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.
Lange v. California, No. 20-18

Issue(s): Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.
Azar v. Gresham, No. 20-37

Issue(s): Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in concluding that the secretary of health and human services may not authorize demonstration projects to test requirements that are designed to promote the provision of health-care coverage by means of facilitating the transition of Medicaid beneficiaries to commercial coverage and improving their health.
Arkansas v. Gresham, No. 20-38

Issue(s): Whether the approval by the secretary of health and human services of the Arkansas Works Amendment was lawful.
Davis v. Saul, No. 20-105

Issue(s): Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.
Cedar Point Nursery v. Hassid, No. 20-107

Issue(s): Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
Trump v. Sierra Club, No. 20-138

Issue(s): (1) Whether respondents have a cognizable cause of action to obtain review of the acting secretary of defense’s compliance with a proviso in Section 8005 of the Department of Defense Appropriations Act that the secretary’s authority to transfer funds internally between DOD appropriations accounts “may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress”; and (2) whether in 2019 the acting secretary exceeded his statutory authority under Section 8005 by transferring approximately $2.5 billion in response to a request from the Department of Homeland Security for counterdrug assistance under 10 U.S.C. 284, including in the form of construction of fences along the southern border of the United States.
Caniglia v. Strom, No. 20-157

Issue(s): Whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.
Term Snapshot
At a Glance
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