October 02, 2018

Supreme Court Certiorari Grants: October 2018 Term

October 2, 2018

1. Federal Agencies; Sovereign Immunity. Thacker v. Tennessee Valley Authority, No. 17-1201.
When Congress waives a federal agency’s sovereign immunity by authorizing it to “sue and be sued,” does that waiver extend to claims arising out of the agency’s discretionary functions?

2. Civil Procedure; Class Actions. Home Depot U.S.A. Inc. v. Jackson, No. 17-1471.
A plaintiff who sues in state court may not remove the case to federal court, even if the defendant asserts counterclaims that would otherwise be removable. If the state-court defendant asserts removable counterclaims against third parties who are not plaintiffs in state court, can the new third-party defendants remove the case?

3. Administrative Procedure; Medicare. Azar v. Alline Health Services, No. 17-1484.
HHS hires third-party contractors to calculate payments due to hospitals, but HHS itself must perform certain calculations to allow the contractors to determine the amount of “disproportionate share” payments. When the courts invalidated HHS’ rules governing how it would perform these calculations, HHS continued making the calculations the same way—but recognized that the correctness of its methodology would be decided on administrative appeal and ultimately in the courts. Under the Medicare statute, could HHS continue using the vacated calculation methodology in this way without engaging in notice-and-comment rulemaking?

4. Copyright. Rimini Street, Inc. v. Oracle USA, Inc., No. 17-1625.
The Copyright Act provides that a court may award “full costs” to a prevailing party. 17 U.S.C. 505. Is that limited to costs that are “taxable” under the general federal cost-shifting statute (such as transcript and copying fees), or does it also include other costs (such as expert fees and e-discovery costs)?

5. Alcoholic Beverages. Tennessee Wine & Spirits Retailers Ass’n v. Byrd, No. No. 18-96.
Does the 21st Amendment allow a state to impose durational-residency requirements for liquor-sale licenses?


October 17, 2018

1. Television; First Amendment. Manhattan Community Access Corp. v. Coughlin, No. 17-1702.
Under what circumstances do constitutional restrictions on state action apply to private operators of public-access television stations?


November 2, 2018

1. Intellectual Property. Return Mail, Inc. v. United States Postal Service, No. 17-1594.
The Leahy-Smith America Invents Act allows a “person” to challenge a patent’s validity through a covered business method review before the Patent Trial and Appeal Board. May the federal government itself bring such a challenge?

2. Bankruptcy; Intellectual Property. Mission Products Holdings, Inc. v. Tempnology, LLC, No. 17-1657.
The Bankruptcy Code allows a debtor to “reject”—that is, “breach”—its contracts. If a debtor has licensed out patent or copyright rights and rejects the license agreement, the Bankruptcy Code provides that this does not terminate the licensee’s rights. The Code does not address what happens when a debtor rejects a license agreement for one of its trademarks. Does a similar rule apply?

3. Criminal Sentencing; Sex Offenses. United States v. Haymond, No. 17-1672.
18 U.S.C. § 3583(k) requires that, if certain criminal offenders commit specified additional crimes while on supervised release, the offender must be imprisoned for a minimum of five years. The relevant facts are to be found by the sentencing court, by a preponderance of the evidence. Does this violate the Fifth and Sixth Amendments’ guarantees of due process and a jury trial?


November 9, 2018

1. Social Security. Smith v. Berryhill, No. 17-1606.
“[A]ny final decision” by the Commissioner of Social Security rejecting a benefits claim is reviewable in federal court. 42 U.S.C. § 405(g). Does that include a decision that an applicant’s administrative appeal was untimely filed?

2. Veterans Benefits. Gray v. Wilkie, Nos. 17-1679 and 17-1693.
Many rules adopted by the Department of Veterans Affairs can be challenged before their enforcement, in the Court of Appeals for the Federal Circuit. 38 U.S.C. § 502. Does that include interpretations of VA regulations that appear in the Department’s internal adjudication manual?

3. Establishment Clause. American Legion v. American Humanist Ass’n, No. 17-117, and Maryland-National Capital Park v. American Humanist Ass’n, No. 18-18.

  1. Is a 93-year-old World War I memorial unconstitutional because it is shaped like a cross?
  2. What Establishment-Clause test governs the constitutionality of a passive display on government property that incorporates religious symbolism?
  3. If the Lemon test applies, does the expenditure of government funds for upkeep and maintenance alone amount to an “excessive entanglement”?

4. Criminal Sentencing; Criminal Procedure. Mont v. United States, No. 17-8995.
If an offender on supervised release for one offense is placed in pretrial confinement for a different offense, does that toll the running of the supervised-release period?

5. Criminal Procedure. Flowers v. Mississippi, No. 17-9572.
After the courts found Batson violations in two previous trials for the same crime, the same prosecutor accepted one African-American juror from the panel for the next trial, but struck the five others. The Mississippi Supreme Court found no Batson violation, concluding that the prosecutor’s past violations should not color the analysis. Was that correct?


November 16, 2018

1. Election Law. Virginia House of Delegates v. Bethune-Hill, No. 18-281.

  1. Are several districts for Virginia’s House of Delegates unconstitutional racial gerrymanders?
  2. The trial court held the districts unconstitutional and Virginia’s Attorney General declined to appeal. The House of Delegates itself intervened. Does it have standing to bring an appeal?

2. Telecommunications. PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705. Does the Hobbs Act require the courts to defer to the FCC’s legal interpretations of the Telephone Consumer Protection Act?


November 20, 2018

1. Government Contracts; False Claims Act. Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18-315. Qui tam actions under the False Claims Act must be brought either within six years of the alleged violation, or within three years of when the relevant facts knew or reasonably should have been known to “the official of the United States charged with responsibility to act in the circumstances.” 31 U.S.C. § 3731(b). Does this three-year limitations period apply when the United States declines to intervene in a qui tam action? If so, does the relator’s knowledge of the relevant facts start the three-year period running?

2. Administrative Procedure; Census. In re United States Department of Commerce, No. 18-557. When a district court is reviewing agency action under the Administrative Procedure Act, under what circumstances may it order discovery outside the administrative record to probe the mental processes of the agency decisionmaker? In the litigation over citizenship questions on the Census form, was it proper to depose the Secretary of Commerce?


December 12, 2018

1. Administrative Law; Separation of Powers. Kisor v. Wilkie, No. No. 18-15. Should the courts defer to an agency’s reasonable interpretation of its own ambiguous regulation? Should the Supreme Court’s decisions to that effect in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. be overruled?


January 9, 2019

1. Voting Rights. Rucho v. Common Cause, No. 18-422.

  1. Are partisan-gerrymandering claims justiciable?
  2. Is North Carolina’s 2016 congressional districting plan an unconstitutional partisan gerrymander?

2. Voting Rights. Lamone v. Benisek, No. 18-726.

  1. Are partisan-gerrymandering claims justiciable under the First Amendment?
  2. Is Maryland’s 2011 congressional districting plan an unconstitutional partisan gerrymander?
  3. Under what circumstances should a court require the drawing of a new electoral map near the end of the 10-year census cycle?

3. Intellectual Property. Iancu v. Brunetti, No. 18-302.
The Lanham Act prohibits trademarking “immoral ... or scandalous matter.” 15 U.S.C. § 1052(a). Is that facially invalid under the First Amendment?

4. Securities Litigation. Emulex Corp. v. Varjabedian, No. 18-459.
Section 14(e) of the Securities Exchange Act prohibits false statements or omissions, as well as “fraudulent, deceptive, or manipulative acts or practices,” regarding “any tender offer.” 15 U.S.C. § 78n(e). Does this create a private right of action for negligent misstatements and omissions, or is a higher degree of culpability required?

5. Bankruptcy. Taggart v. Lorenzen, No. 18-489.
If a creditor believes—wrongly but in good faith—that a bankruptcy discharge does not apply to a debt previously owed to it, can the creditor still be held in civil contempt for violating the discharge injunction?

6. Criminal Sentencing. United States v. Davis, No. 18-431.
18 U.S.C. § 924 imposes a mandatory minimum sentence for offenders who possess a firearm “during and in relation to any crime of violence,” and defines “crime of violence” as including any felony that “involves a substantial risk” of the use of “physical force against the person or property of another.” Is that definition unconstitutionally vague?


January 14, 2019

1. Criminal Sentencing. Quarles v. United States, No. 17-778.
The Armed Career Criminal Act imposes a mandatory 15-year sentence for unlawfully possessing a firearm after three or more prior convictions for any “violent felony,” which includes a burglary conviction punishable by more than one year’s imprisonment. For a crime to qualify as ACCA “burglary,” when must the criminal intent have been formed—must the offender have intended to commit a crime when he began entering or remaining in a building or structure, or can the intent have been formed while the offender was already inside the structure?

2. Immigration; Gun Control. Rehaif v. United States, No. 17-9560.
Persons unlawfully present in the United States are prohibited from possessing firearms or ammunition, and “knowingly” violating this rule is a crime. 18 U.S.C. §§ 922(g), 924(a)(2). Does an unlawfully-present person commit the crime if he knows he is possessing a firearm or ammunition, but is not aware that he is unlawfully present?

3. Maritime law. Parker Drilling Management Services, Ltd. v. Newton, No. 18-389.
Under the Outer Continental Shelf Lands Act, the outer continental shelf is governed by federal law, sometimes supplemented by borrowing the law of the adjacent state. Under what circumstances does this borrowing occur—does it happen whenever state law is not preempted, or instead must there be a “gap” in the coverage of federal law?

4. State Taxes; Trusts & Estates. North Carolina Department v. Revenue v. Kimberly Rice Kastner 1992 Family Trust, No. 18-457.
Under the Due Process Clause, may the state where a trust beneficiary lives tax all of the trust’s worldwide income?

5. Freedom of Information Act. Food Marketing Institute v. Argus Leader Media, No. 18-481.
The Freedom of Information Act exempts from disclosure any “confidential” private-sector “commercial or financial information” in the government’s possession. 5 U.S.C. § 552(b)(4). What characteristics qualify information as confidential? Must its disclosure cause specific competitive harm to a business? Is it enough if the information could be potentially useful to a competitor? Or need the information only be confidentially held and not publicly available?

6. Civil Rights; Criminal Procedure. McDonough v. Smith, No. 18-485.
When criminal proceedings terminate in the accused’s favor, and he brings a Section 1983 claim alleging that evidence against him was fabricated, when does the limitations period for that claim begin—when the criminal proceeding terminated, or when the defendant became aware that fabricated evidence was being used?

7. Employment Discrimination. Fort Bend County v. Davis, No. 18-525.
Title VII of the Civil Rights Act requires that a plaintiff exhaust an employment-discrimination claim with the Equal Employment Opportunity Commission before suing in federal court. 42 U.S.C. §2000e. Is that requirement a condition of federal jurisdiction over such a suit, or is it waivable?

8. Search and Seizure. Mitchell v. Wisconsin, No. 18-6210.
Does the Fourth Amendment permit statutes that authorize warrantless blood draws from unconscious motorists?


January 23, 2019

1. Firearm Rights. New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280.
New York City prohibits the possession of licensed handguns except in one’s home or in transit to a shooting range within the city. It thus prohibits transporting a handgun out of the city. Is that consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel?


February 21, 2019

1. Census; Administrative Law. U.S. Department of Commerce v. New York, No. 18-966.

  1. Does the Administrative Procedure Act (APA) permit the 2020 Census to ask about people’s citizenship?
  2. In an action to set aside agency action under the APA, under what circumstances may a district court order discovery about the mental processes of the agency decisionmaker, including high-ranking Executive-Branch officials?  

2. Environmental Law. County of Maui v. Hawai’i Wildlife Fund, No. 18-260.
The Clean Water Act regulates the pollution of navigable waters from point sources. Does that cover pollutants that originate from a point source, but are only conveyed to navigable water through a nonpoint source such as groundwater?


February 28, 2019

1. Debt Collection. Rotkiske & Klemm, No. 18-328.
Can the Fair Debt Collection Practices Act's one-year statute of limitations be tolled by the "discovery rule?"


March 5, 2019

1. Intellectual Property. Iancu v. NantKwest, Inc., No. 18-801.
When the Patent and Trademark Office denies a patent application, 35 U.S.C. 145 allows the applicant to sue in district court to challenge the denial, but requires that “[a]ll the expenses of the proceedings shall be paid by the applicant.” Does that include the personnel expenses for USPTO employees and attorneys to defend the lawsuit?


March 21, 2019

1. Immigration; Labor and Employment. Kansas v. Garcia, No. 17-834.
Federal law requires all prospective employees to complete a “Form I-9” verifying their employment eligibility. The federal Immigration Reform and Control Act (IRCA) forbids this form “and any information contained in” it to be used for any purpose other than enforcing specified federal laws. 8 U.S.C. 1324a(b)(5). Some individuals may use the same false information—such as a false name, date of birth, or social security number—in both a Form I-9 and in other paperwork, such as state tax forms, leases, or credit applications. Does IRCA expressly or implicitly preempt a state from prosecuting false statements in that other paperwork?

2. Constitutional Law; Criminal Procedure; Criminal Sentencing. Mathena v. Malvo, No. 18-217.
Lee Boyd Malvo was 17 years old when, as one of the notorious “D.C. snipers,” he murdered multiple people. In 2004 a Virginia state court, exercising discretion granted by state law, sentenced him to life imprisonment without parole. In Miller v. Alabama in 2012, the Supreme Court held that the Eighth Amendment prohibits a mandatory life sentence without parole for an offender under the age of 18. In Montgomery v. Louisiana in 2016, the Court held that this rule applies retroactively to cases on collateral review. When Malvo sought re-sentencing, the Fourth Circuit held that Montgomery also expanded the rule of Miller to prohibit discretionary life sentences like Malvo’s, and that this expansion of the rule also applies retroactively. Was that correct?

3. Criminal Procedure; Criminal Sentencing. Ramos v. Louisiana, No. 18-5924.
Does the Fourteenth Amendment incorporate against the states a requirement that criminal guilty verdicts be reached by a unanimous jury? Should the Supreme Court’s holding that it does not, in Apodaca v. Oregon, be overruled?

4. Criminal Law. Kahler v. Kansas, No. 18-6135.
Kansas has abolished insanity as a separate defense to criminal liability. Unless a Kansas criminal defendant’s mental disease or defect prevented him from having the mens rea required to commit a given crime, it is not a defense to a finding of guilt. Do the Eighth and Fourteenth Amendments allow that?


April 2, 2019

1. Search and Seizure; Traffic Stops. Kansas v. Glover, No. 18-556.
If a vehicle is registered to someone whose driver’s license has been revoked, does the Fourth Amendment allow police to conduct a traffic stop of a driver of that vehicle on suspicion of unlicensed driving, where the police have no specific information about whether the driver is the person to whom the vehicle is registered?

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