October 11, 2019

Certiorari Grants 2019 to 2020

The United States Supreme Court Has Granted Review in the Following Cases for Decision This Term:

Administrative Law

Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment, Nos. 18-1334, 18-1475, 18-1498, 18-1514, & 18-1521.
  • The Financial Oversight and Management Board for Puerto Rico is a federally-created entity within Puerto Rico’s territorial government. It oversees, enforces, and executes the federal statutes that created a bankruptcy-like process to resolve Puerto Rico’s financial and humanitarian crisis. Are the Board’s members “principal Officers of the United States” who, under the Appointments Clause of the Constitution, must be nominated by the President and confirmed by the Senate?
  • None of the Board’s members have been confirmed by the Senate. If the Constitution required them to be, does the de facto officer doctrine nonetheless validate their official actions and allow them to continue acting as Board members?

Seila Law LLC v. Consumer Financial Protection Bureau, No. 19-7.

The Dodd-Frank Act authorized the creation of the Consumer Financial Protection Bureau (CFPB) and prohibits the President from removing the CFPB’s director except for “inefficiency, neglect of duty, or malfeasance in office.” 12 U.S.C. 5491(c)(3). Does that violate the separation of powers? If so, is this provision severable from the rest of the Act?

Bankruptcy

Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment, Nos. 18-1334, 18-1475, 18-1498, 18-1514, & 18-1521. 

  • The Financial Oversight and Management Board for Puerto Rico is a federally-created entity within Puerto Rico’s territorial government. It oversees, enforces, and executes the federal statutes that created a bankruptcy-like process to resolve Puerto Rico’s financial and humanitarian crisis. Are the Board’s members “principal Officers of the United States” who, under the Appointments Clause of the Constitution, must be nominated by the President and confirmed by the Senate?
  • None of the Board’s members have been confirmed by the Senate. If the Constitution required them to be, does the de facto officer doctrine nonetheless validate their official actions and allow them to continue acting as Board members?

Ritzen Group, Inc. v. Jackson Masonry, LLC, No. 18-938. 

A bankruptcy filing automatically stays most debt-collection activities against the debtor unless the bankruptcy court grants relief from the stay “for cause.” When a bankruptcy court denies this relief, under what circumstances (if any) is that a final appealable order?

Civil Procedure and Judgments

GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC, No. 18-1048. 

When a signatory to an international contract that contains an arbitration clause sues a non-signatory for claims arising out of the contract, does the Convention on the Recognition and Enforcement of Foreign Arbitral Awards allow the non-signatory to enforce the arbitration clause through equitable estoppel?

Lucky Brand Dungarees, Inc. v. Marcel Fashion Group, No. 18-1086. 

When a defendant loses a case without litigating a potentially available defense, but continues its underlying course of conduct and is sued again by the same plaintiff for this later conduct, is the defendant precluded from invoking that defense in the second suit?

Opati v. Sudan, No. 17-1268. 

  • When victims of al-Qaeda’s 1998 bombing of U.S. embassies in the Middle East sued the government of Sudan for supporting the bombings, Sudan failed to respond or appear in court for a year, then unsuccessfully contested personal jurisdiction for three years, then refused to participate in the litigation for another six years, during which the district court held a trial and entered judgment against Sudan for more than $10 billion. Has Sudan forfeited non-jurisdictional objections to the judgment?
  • During the litigation, Congress amended the Foreign Sovereign Immunities Act to allow punitive-damages awards against state sponsors of international terrorism. The district court’s judgment included $4.3 billion in punitive damages. Does the amendment apply retroactively to activities occurring before its passage?

Thole v. U.S. Bank, N.A., No. 17-1712.

Does an ERISA plan beneficiary have Article-III standing to sue a plan fiduciary whose breach of duty causes losses to the plan, but does not create a risk that the plan will default on its obligations to the beneficiary? If so, what if any remedies does ERISA offer such a beneficiary?

June Medical Services LLC v. Gee; Gee v. June Medical Services LLC. Nos. 18-1323 & 18-1460.

  • May Louisiana require doctors who perform abortions to have admitting privileges at a local hospital?
  • Under what circumstances can doctors who perform abortions have third-party standing to challenge abortion regulations on behalf of their patients? Should the Court re-examine its previous ruling on this question in Singleton v. Wulff?
  • Are objections to a plaintiff’s prudential standing waivable?

Civil Rights

Comcast Corp. v. National Ass’n of African American-Owned Media and Entertainment Studios Networks, Inc., No. 18-1171. 

Is but-for causation an element of a claim of race discrimination under 42 USC 1981?

Hernández v. Mesa, No. 17-1678.

A federal officer fired shots across the Mexican border and killed a boy, whose parents allege that this violated the Fourth and Fifth Amendments. Should the courts imply a Bivens damages remedy in this context?

Lomax v. Ortiz-Marquez, No. 18-8369.

28 U.S.C. 1915(g) bars most civil suits or appeals by a prisoner who “has, on 3 or more prior occasions,” had a suit “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” If a prisoner’s prior suit was dismissed without prejudice for failure to state a claim, does that count as one of the three strikes?

Copyright and Trademark

Allen v. Cooper, No. 18-877. 

The federal Copyright Remedy Clarification Act purports to abrogate the States’ sovereign immunity with respect to claims of federal copyright infringement. Does Congress have the constitutional authority to do that?

Georgia v. Public.Resource.Org, No. 18-1150. 

Government edicts, such as a state’s code of statutes, cannot be copyrighted. Can annotations to the code be copyrighted?

Lucky Brand Dungarees, Inc. v. Marcel Fashion Group, No. 18-1086. 

When a defendant loses a case without litigating a potentially available defense, but continues its underlying course of conduct and is sued again by the same plaintiff for this later conduct, is the defendant precluded from invoking that defense in the second suit?

Romag Fasteners, Inc. v. Fossil, Inc., No. 18-1233.

The Lanham Act allows a plaintiff to recover a trademark infringer’s profits, “subject to the principles of equity.” 15 U.S.C. 1117(a). Does that require a finding that the infringement was willful?

U.S. Patent & Trademark Office v. Booking.com B.V., No. 19-46.

Generic terms may not be registered as trademarks. If a generic term is used as an internet address—such as “Booking.com”—can the address be trademarked?

Google LLC v. Oracle America, Inc., No. 18-956.

  • Like some other computer-programming languages, Oracle’s Java language includes “software interfaces” that software developers can use to access preexisting libraries of computer code used to perform particular tasks. Can software interfaces be copyrighted, or are they an underlying “idea, procedure, process, system, method operation, concept, principle or discovery” that cannot be copyrighted pursuant to 17 U.S.C. 102(b)?
  • Was it fair use for Google to use Java’s software interfaces in its Android operating system for mobile phones?

Criminal Law

Kelly v. United States, No. 18-1059.

After the mayor of Fort Lee, New Jersey, declined to endorse Governor Chris Christie for re-election, senior officials at the Port Authority of New York and New Jersey invoked a “traffic study” to reallocate traffic lanes on the George Washington Bridge in a way that gridlocked the streets of Fort Lee. If public officials lie about their reasons for an official act in order to conceal their political motives, can that qualify as “fraud” on a federally funded entity under 18 U.S.C. 666(a)(1)(A), or wire fraud under 18 U.S.C. 1343?

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?

Criminal Procedure

Banister v. Davis, No. 18-6943. 

Second or successive habeas petitions are subject to special restrictions. When a district court denies a habeas petition, under what circumstances (if any) should the petitioner’s timely motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e) be treated as a second or successive habeas petition?

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?

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?

Criminal Sentencing

Holguin-Hernandez v. United States, No. 18-7739. 

What standard of appellate review applies to the substantive reasonableness of a criminal sentence if the defendant did not object to it in the district court?

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?

McKinney v. Arizona, No. 18-1109. 

  • When a criminal sentence is defective under the law that existed when it was imposed, and a corrected sentence or resentencing is later required, must the new sentence also reflect changes in the law that occurred after the original conviction?
  • The sentencer in a death-penalty case must consider any relevant mitigating evidence that the defendant offers. If the sentencer fails to do this, is a remand for resentencing always required?

Shular v. United States, No. 18-6662.

The Armed Career Criminal Act (ACCA) imposes a mandatory minimum sentence for firearm possession by someone with three prior convictions for a “serious drug offense” or a “violent felony.” 18 U.S.C. 922(g). Under established law, whether a prior conviction is a “violent felony” depends on whether the generic elements of the crime necessarily meet ACCA’s definition. Does a similar categorical approach apply to determining whether a prior conviction is a “serious drug offense?”

Walker v. United States, No. 19-373.

Whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act.

Debt Collection

Rotkiske v Klemm, No. 18-328.

Can the Fair Debt Collection Practices Act's one-year statute of limitations be tolled by the "discovery rule?"

Energy

United States Forest Services v. Cowpasture River Ass’n; Atlantic Coast Pipeline, LLC v. Cowpasture River Ass’n. Nos. 18-1584 & 18-1587.

Federal law does not authorize agencies to grant mineral rights-of-way that cross lands in the National Parks system. The Appalachian Trail stretches 2,200 miles from north to south in the eastern United States. For mineral-leasing purposes, is the Trail (or parts of it) national parkland?

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 conveyed to navigable water only through a nonpoint source such as groundwater?

Atlantic Richfield Co. v. Christian, No. 17-1498.

  • CERCLA bars courts from hearing most “challenges to removal or remedial action” ordered under the CERCLA regime. When the EPA issues cleanup orders for a Superfund site and private litigants bring common-law claims seeking conflicting cleanup remedies, does CERCLA bar those claims?
  • If not, does CERCLA preclude such claims through conflict preemption?
  • If the EPA has never ordered a landowner at a Superfund site to pay for a cleanup, can the landowner still be a “potentially responsible party” who must seek EPA’s approval before engaging in remedial action?

ERISA

Retirement Plans Committee v. Jander, No. 18-1165

To state a claim that the fiduciary of an employee stock option plan breached ERISA’s duty of prudence by buying or holding the employer’s own stock despite having nonpublic information that it was overvalued, a plaintiff must plausibly allege an alternative action that the defendant could have taken that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it. When such an overvaluation inevitably will be disclosed publicly at some point, delaying the disclosure often will increase the harm that the fund will suffer from it. Can a plaintiff satisfy the pleading standard by making generalized allegations that, because eventual disclosure was inevitable, a fiduciary should have immediately disclosed the information or divested the stock?

Intel Corp. v. Investment Policy Committee v. Sulyma, No. 18-1116.

ERISA’s limitations period for fiduciary-duty lawsuits often begins on “the earliest date on which the plaintiff had actual knowledge of the breach or violation.” 29 USC 1113. If the relevant information is disclosed to a plaintiff but the plaintiff did not read it, does that start the limitations period?

Thole v. U.S. Bank, N.A., No. 17-1712.

Does an ERISA plan beneficiary have Article-III standing to sue a plan fiduciary whose breach of duty causes losses to the plan, but does not create a risk that the plan will default on its obligations to the beneficiary? If so, what if any remedies does ERISA offer such a beneficiary?

Family Law

Monasky v. Taglieri, No. 18-935.

  • In a lawsuit under the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of a child to the country of her “habitual residence,” what standard of appellate review applies to a district court’s findings as to the location of the child’s “habitual residence”?
  • When a child is too young to acclimate to her surroundings, her parents can establish a “habitual residence” for her by agreeing to raise her in a certain place. Does such an agreement require an actual, subjective “meeting of the minds” by the parents, or is it enough if their objective actions indicate an agreement?

    Federal Lands

    United States Forest Services v. Cowpasture River Ass’n; Atlantic Coast Pipeline, LLC v. Cowpasture River Ass’n. Nos. 18-1584 & 18-1587.

    Federal law does not authorize agencies to grant mineral rights-of-way that cross lands in the National Parks system. The Appalachian Trail stretches 2,200 miles from north to south in the eastern United States. For mineral-leasing purposes, is the Trail (or parts of it) national parkland?

    Financial Regulation

    Seila Law LLC v. Consumer Financial Protection Bureau, No. 19-7.

    The Dodd-Frank Act authorized the creation of the Consumer Financial Protection Bureau (CFPB) and prohibits the President from removing the CFPB’s director except for “inefficiency, neglect of duty, or malfeasance in office.” 12 U.S.C. 5491(c)(3). Does that violate the separation of powers? If so, is this provision severable from the rest of the Act?

    Firearms

    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?

    First Amendment

    Espinoza v. Montana Department of Revenue, No. 18-1195.

    May a state student-aid program allow beneficiaries to use its funding to attend nonreligious private schools of their choice, but not religious ones?

    United States v. Sineneng-Smith, No. 19-67.

    8 U.S.C. § 1324(a)(1)(A)(iv) criminalizes “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States” without lawful status. Is that facially unconstitutional as an abridgement of free speech?

    Health Care

    Maine Community Health Options v. United States, Nos. 18-1023, 18-1028, 18-1038.

    When a federal statute states that the government “shall pay” certain sums—here, amounts due under the “risk corridors” provision of the Affordable Care Act (ACA) to health insurers who lost money on the ACA’s exchanges during their first three years, 42 U.S.C. § 18062—under what circumstances (if any) can a later Congress abrogate that payment obligation by enacting appropriations riders that do not repeal the statute, but that restrict the sources of funding from which the sums may be paid?

    Immigration

    Barton v. Barr, No. 18-725.

    A removable alien may apply for cancellation of removal if he or she has lived in the United States for a specified period of time. The statutory “stop-time” rule provides that, for these purposes, an alien’s period of residence ends at the time when he or she commits an offense “that renders the alien inadmissible.” 8 USC 1229b(d)(1). Does this stop-time rule apply only to aliens who were actually seeking admission to the United States, or does it also apply to aliens who have already been lawfully admitted as permanent residents, but who later became removable?

    Guerrero-Lasprilla v. Barr, Nos. 18-776, 18-1015.

    For aliens who are found removable as a result of certain criminal offenses, the order of removal is judicially reviewable only as to “constitutional claims or questions of law.” 8 U.S.C. 1252(a)(2)(D). When an agency denies equitable tolling for an untimely petition to reopen removal proceedings, on the ground that the petitioner did not act with sufficient diligence, does that involve reviewable questions of law?

    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?

    United States Department of Homeland Security v. Regents of the University of California, Nos. 18-587, 18-588, 18-589.

    Is the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program judicially reviewable? If so, it is lawful?

    United States v. Sineneng-Smith, No. 19-67.

    8 U.S.C. § 1324(a)(1)(A)(iv) criminalizes “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States” without lawful status. Is that facially unconstitutional as an abridgement of free speech?

    Nasrallah v. Barr, No. 18-1432.

    The “criminal bar” of 8 U.S.C. 1252(a)(2)(C) provides that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense” of a certain type. When a criminal alien unsuccessfully seeks withholding of removal under the Convention Against Torture, does the criminal bar preclude appellate review of factual findings on that issue?

    Department of Homeland Security v. Thuraissigiam, No. 19-161.

    When an arriving or recently-arrived alien seeks asylum, the “expedited removal” system applies if an asylum officer and immigration judge find that the alien has not established a credible fear of persecution. No judicial review of that determination is available, and 8 U.S.C. 1252(e)(2) precludes most review by habeas corpus petition as well. Does that violate the Constitution’s Suspension Clause?

    Indian Law

    Sharp v. Murphy, No. 17-1107

    Were the Indian reservations that once existed in the eastern half of Oklahoma ever disestablished?

    International Law and Foreign Relations

    GE Energy Power Conversion France SAS v. Outokumpue Stainless USA, LLC, No. 18-1048.

    When a signatory to an international contract that contains an arbitration clause sues a non-signatory for claims arising out of the contract, does the Convention on the Recognition and Enforcement of Foreign Arbitral Awards allow the non-signatory to enforce the arbitration clause through equitable estoppel?

    Opati v. Sudan, No. 17-1268.

    • When victims of al-Qaeda’s 1998 bombing of U.S. embassies in the Middle East sued the government of Sudan for supporting the bombings, Sudan failed to respond or appear in court for a year, then unsuccessfully contested personal jurisdiction for three years, then refused to participate in the litigation for another six years, during which the district court held a trial and entered judgment against Sudan for more than $10 billion. Has Sudan forfeited non-jurisdictional objections to the judgment?
    • During the litigation, Congress amended the Foreign Sovereign Immunities Act to allow punitive-damages awards against state sponsors of international terrorism. The district court’s judgment included $4.3 billion in punitive damages. Does the amendment apply retroactively to activities occurring before its passage?

    Labor & Employment

    Babb v. Wilkie, No. 18-882.

    To establish that a federal employer committed unlawful “discrimination based on age” under 29 U.S.C. 633a(a), must a plaintiff prove that age was a but-for cause of the challenged personnel action?

    Bostock v. Clayton County, Nos. 17-1618 & 17-1623.

    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.

    R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107.

    Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

    Maritime Law

    CITGO Asphalt Refining Co. v. Frescati Shipping Co., No. 18-565.

    Many ship-charter contracts include a “safe berth” clause, which allows the party chartering the ship to designate a safe harborage of its choice as the place to unload the ship. Is such a clause a contractual promise by the charterer that the chosen berth will be safe for the ship, or does it merely impose a duty of due diligence on the charterer to attempt to choose a safe berth?

    Military Justice

    United States v. Briggs, No. 19-108, & United States v. Collins, No. 19-184.

    The Uniform Code of Military Justice provides that there is no statute of limitations for crimes punishable by death. Before 2006, the Code provided that rape was punishable “by death or such other punishment as a court-martial may direct.” If the Eighth Amendment prohibits the death penalty for rapes committed in the military, does the exemption from any limitations period still apply?

    Patents

    Dex Media, Inc. v. Click-to-Call Technologies, LP, No. 18-916.

    35 U.S.C. § 314(d) provides that the Patent Trial and Review Board’s decision “whether to institute an inter partes review” of a patent’s validity “under this section shall be final and nonappealable.” 35 U.S.C. § 315(b) requires that a petition for such review must be filed within “[one] year after the date on which the petitioner … is served with a complaint alleging infringement of the patent.” If the Board institutes an inter partes review after deciding that the one-year time bar does not apply to a given petition, is that decision appealable?

    Regulation and Rights: Abortion

    June Medical Services LLC v. Gee; Gee v. June Medical Services LLC. Nos. 18-1323 & 18-1460.

    • May Louisiana require doctors who perform abortions to have admitting privileges at a local hospital?
    • Under what circumstances can doctors who perform abortions have third-party standing to challenge abortion regulations on behalf of their patients? Should the Court re-examine its previous ruling on this question in Singleton v. Wulff?
    • Are objections to a plaintiff’s prudential standing waivable?

    Taxation

    Rodriguez v. FDIC, No. 18-1269.

    The members of an affiliated corporate group may file a consolidated federal income-tax return. When this results in a tax refund, does state law or federal common law govern which of the affiliated corporations owns the money?

    Terrorism & Homeland Security

    Opati v. Sudan, No. 17-1268.
    • When victims of al-Qaeda’s 1998 bombing of U.S. embassies in the Middle East sued the government of Sudan for supporting the bombings, Sudan failed to respond or appear in court for a year, then unsuccessfully contested personal jurisdiction for three years, then refused to participate in the litigation for another six years, during which the district court held a trial and entered judgment against Sudan for more than $10 billion. Has Sudan forfeited non-jurisdictional objections to the judgment?
    • During the litigation, Congress amended the Foreign Sovereign Immunities Act to allow punitive-damages awards against state sponsors of international terrorism. The district court’s judgment included $4.3 billion in punitive damages. Does the amendment apply retroactively to activities occurring before its passage?
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