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October Term 2021

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October Sitting

Mississippi v. Tennessee, No. 22O143 [Arg: 10.4.2021; Decided 11.22.2021]
Holding: The waters of the Middle Claiborne Aquifer are subject to the judicial remedy of equitable apportionment; Mississippi’s complaint is dismissed without leave to amend.
Wooden v. U.S., No. 20-5279 [Arg: 10.4.2021]
Issue(s): Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act.
Brown v. Davenport, No. 20-826 [Arg: 10.5.2021]
Issue(s): Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.
Hemphill v. New York, No. 20-637 [Arg: 10.5.2021]
Issue(s): Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.
U.S. v. Zubaydah, No. 20-827 [Arg: 10.6.2021]
Issue(s): Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
Thompson v. Clark, No. 20-659 [Arg: 10.12.2021]
Issue(s): Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2nd Circuit decided in Lanning v. City of Glens Falls.
Issue(s): Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.
U.S. v. Tsarnaev, No. 20-443 [Arg: 10.13.2021]
Issue(s): (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
Babcock v. Kijakazi, No. 20-480 [Arg: 10.13.2021; Decided 01.13.2022]
Holding: Civil-service pension payments based on employment as a dual-status military technician are not payments based on “service as a member of a uniformed service” under 42 U.S.C. §415(a)(7)(A)(III).

November Sitting

U.S. v. Texas, No. 21-588 [Arg: 11.1.2021; Decided 12.10.2021]
Holding: The writ of certiorari is dismissed as improvidently granted and the application to vacate stay presented to Justice Alito and by him referred to the court is denied.
Whole Woman’s Health v. Jackson, No. 21-463 [Arg: 11.1.2021; Decided 12.10.2021]
Holding: A pre-enforcement challenge under the federal Constitution to Texas Senate Bill 8 — the Texas Heartbeat Act — may proceed past the motion to dismiss stage against certain of the named defendants but not others; the order of the district court is affirmed in part and reversed in part, and the case is remanded.
Issue(s): Whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech.
Badgerow v. Walters, No. 20-1143 [Arg: 11.2.2021]
Issue(s): Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act when the only basis for jurisdiction is that the underlying dispute involved a federal question.
Issue(s): Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.
Issue(s): Whether the U.S. Court of Appeals for the 9th Circuit erred in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration.
Issue(s): Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.
Ramirez v. Collier, No. 21-5592 [Arg: 11.9.2021]
Issue(s): (1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.
U.S. v. Vaello-Madero, No. 20-303 [Arg: 11.9.2021]
Issue(s): Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.
Issue(s): Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.

December Sitting

Issue(s): Whether, for purposes of calculating additional payment for hospitals that serve a “significantly disproportionate number of low-income patients,” the secretary of health and human services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days.
Issue(s): (1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data; and (2) whether petitioners’ suit challenging HHS’s adjustments is precluded by 42 U.S.C. § 1395l(t)(12).
Issue(s): Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.
Issue(s): Whether all pre-viability prohibitions on elective abortions are unconstitutional.
Patel v. Garland, No. 20-979 [Arg: 12.6.2021]
Issue(s): Whether 8 U.S.C. 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a nondiscretionary determination that a noncitizen is ineligible for certain types of discretionary relief.
Issue(s): Whether allegations that a defined-contribution retirement plan paid or charged its participants fees that substantially exceeded fees for alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1104(a)(1)(B).
U.S. v. Taylor, No. 20-1459 [Arg: 12.7.2021]
Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).
Carson v. Makin, No. 20-1088 [Arg: 12.8.2021]
Issue(s): Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.
Shinn v. Ramirez, No. 20-1009 [Arg: 12.8.2021]
Issue(s): Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

January Sitting

Biden v. Missouri, No. 21A240 [Arg: 1.7.2022; Decided 01.13.2022]
Holding: The court grants the applications to stay the two injunctions barring the Secretary of Health and Human Services’ regulation requiring facilities that participate in Medicare and Medicaid to ensure that their employees are vaccinated against COVID–19.
Holding: The court grants the applications to stay the Occupational Safety & Health Administration’s challenged rule mandating that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine.
Gallardo v. Marstiller, No. 20-1263 [Arg: 1.10.2022]
Issue(s): Whether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the portion of the beneficiary’s tort recovery that compensates for future medical expenses.
Garland v. Gonzalez, No. 20-322 [Arg: 1.11.2022]
Issue(s): (1) Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community; and (2) whether, under 8 U.S.C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.
Johnson v. Arteaga-Martinez, No. 19-896 [Arg: 1.11.2022]
Issue(s): Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the alien is a flight risk or a danger to the community.
Issue(s): Whether the 30-day time limit to file a petition for review in the Tax Court of a notice of determination from the commissioner of internal revenue in 26 U.S.C. § 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.
Issue(s): Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.
Shurtleff v. City of Boston, No. 20-1800 [Arg: 1.18.2022]
Issue(s): (1) Whether the U.S. Court of Appeals for the 1st Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers; (2) whether the 1st Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and (3) whether the 1st Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.
Issue(s): (1) Whether appellees have standing to challenge the statutory loan-repayment limit of 52 U.S.C. 30116(j); and (2) whether the loan-repayment limit violates the Free Speech clause of the First Amendment.
Concepcion v. U.S., No. 20-1650 [Arg: 1.19.2022]
Issue(s): Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

February Sitting

Denezpi v. U.S., No. 20-7622 [Arg: 02.22.2022]
Issue(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.
Ysleta del Sur Pueblo v. Texas, No. 20-493 [Arg: 02.22.2022]
Issue(s): 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.
Issue(s): (1) Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.
Issue(s): 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.
Ruan v. U.S., No. 20-1410 [Arg: 03.1.2022]
Issue(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.
Issue(s): (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.
Egbert v. Boule, No. 21-147 [Arg: 03.02.2022]
Issue(s): (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

Decided without oral argument

Holding: Officer Rivas-Villegas is entitled to qualified immunity in this excessive force action brought under 42 U.S.C. § 1983; the U.S. Court of Appeals for the 9th Circuit’s holding that circuit precedent “put him on notice that his conduct constituted excessive force” is reversed.
Holding: Officers Girdner and Vick are entitled to qualified immunity in this excessive force action brought under 42 U.S.C. § 1983; the U.S. Court of Appeals for the 10th Circuit’s contrary holding is not based on a single precedent finding a Fourth Amendment violation under similar circumstances.

Cases Not (Yet) Set for Argument

Issue(s): Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.
Issue(s): Whether a locomotive is in use on a railroad’s line and subject to the Locomotive Inspection Act and its safety regulations when its train makes a temporary stop in a railyard as part of its unitary journey in interstate commerce, or whether such use does not resume until the locomotive has left the yard as part of a fully assembled train, as held by the U.S. Court of Appeals for the 7th Circuit below, contrary to the decisions of the Supreme Court and other circuits.
Issue(s): 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.
Issue(s): Whether the Private Securities Litigation Reform Act’s discovery-stay provision applies to a private action under the Securities Act of 1933 in state or federal court, or solely to a private action in federal court.
Issue(s): Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act.
Issue(s): 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.
Issue(s): (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.
Issue(s): 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.
Issue(s): 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."
Issue(s): 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.
Issue(s): 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.”
Issue(s): (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.
Issue(s): (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.
Issue(s): 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.
Issue(s): 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.
Issue(s): (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.
Issue(s): Whether Federal Rule of Civil Procedure 60(b)(1) authorizes relief based on a district court’s error of law.

Cases dismissed from merits docket

Issue(s): (1) Whether the Department of Health and Human Services' rule for the Title X family planning program — which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options — is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that “all pregnancy counseling” under Title X “shall be nondirective”; and (3) whether the rule violates Section 1554 of the Affordable Care Act, which requires that HHS “shall not promulgate any regulation” that harms patient care in any one of six ways, including by “interfer[ing] with communications” between a patient and her provider.
Issue(s): (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained in Immigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Security's final rule interpreting the statutory term “public charge” and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.
Issue(s): (1) Whether the Department of Health and Human Services' rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agency’s statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.
Issue(s): (1) Whether the Department of Health and Human Services' final rule — which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information — violates appropriations statutes requiring that “all pregnancy counseling” in the Title X program “shall be nondirective”; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating “any regulation” that creates “unreasonable barriers” to obtaining appropriate medical care, impedes “timely access” to such care, interferes with patient-provider communications “regarding a full range of treatment options,” restricts providers from disclosing “all relevant information to patients making health care decisions,” or violates providers’ ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.
Issue(s): Whether the discretion granted to district courts in 28 U.S.C. § 1782(a) 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 without expressing an exclusionary intent, as the U.S. Courts of Appeals for the 2nd, 5th and, in the case below, the 7th Circuit, have held.
Issue(s): Whether Section 504 of the Rehabilitation Act of 1973 — and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes — provides a disparate-impact cause of action for plaintiffs alleging disability discrimination.