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.

Decided on June 1st, 2020

  • 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.

Decided on June 29th, 2020

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?

U.S. Fish & Wildlife Service v. Sierra Club, No. 19-547.

When a federal agency consults with another agency in the course of making a decision, under what circumstances will the second agency’s written recommendation or opinion be exempted from disclosure by the Freedom of Information Act’s deliberative-process privilege?

Bankruptcy

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

Decided on June 1st, 2020

  • 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?

City of Chicago v. Fulton, No. 19-357.

When an owner of repossessed property files for bankruptcy, under what circumstances (if any) does the automatic stay require the holder of the repossessed property to return it to the debtor?

Civil Procedure and Judgments

Schein v. Archer & White Sales, Inc., No. 19-963.

When an arbitration agreement delegates questions of arbitrability to the arbitrator but expressly says that certain kinds of disputes are not arbitrable, has the agreement delegated to the arbitrator the question of whether a given dispute comes within the express carveout?

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?

Decided on June 1st, 2020

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

Decided on May 14, 2020

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.

Decided on June 1st, 2020

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.

Decided on June 29th, 2020

  • 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?

Ford Motor Co. v. Montana Eighth Judicial District Court, No. 19-368; Ford Motor Co. v. Bandemer, No. 19-369.

To allow a court to exercise specific personal jurisdiction consistently with the Due Process Clause, what causal connection (if any) must exist between the defendant’s forum contacts and the plaintiff’s claims?

Little Sisters of the Poor Ss. Peter & Paul Home v. Pennsylvania, No. 19-431; Trump v. Pennsylvania, No. 19-454.

  • After the Supreme Court in 2016 directed the government to try to reach a resolution with religious entities who object to providing contraceptive coverage under the Affordable Care Act (ACA), the Departments of Health and Human Services, Labor, and the Treasury issued regulations exempting many such objectors. Are those religious exemptions authorized under the ACA and the Religious Freedom Restoration Act (RFRA)?
  • The agencies did not give the public notice and an opportunity to comment before promulgating the rules on an interim basis but did so before permanently promulgating the same rules. Does that invalidate the permanent rules?
  • Was a nationwide injunction against the exemptions appropriate?

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?

Brownback v. King, No. 19-546.

The Federal Tort Claims Act (FTCA) waives the United States’ sovereign immunity for certain torts committed by federal employees “where the United States, if a private person, would be liable.” 28 U.S.C. 1346(b)(1). It also provides that a judgment for the United States in such a case is “a complete bar to any action … by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” 28 U.S.C 2676. If a district court rules that it lacks subject-matter jurisdiction because a private person would not be liable under the facts alleged by the plaintiff, and therefore the claim does not come within the statutory waiver of sovereign immunity, does that bar a later claim on the same facts against the government employee?

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. 

Decided on April 27, 2020

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.

Decided on June 30, 2020

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?

Van Buren v. United States, No. 19-783

The federal Computer Fraud and Abuse Act prohibits “obtaining information from any protected computer” by “access[ing] a computer without authorization or exceed[ing] authorized access.” 18 U.S.C. § 1030(a)(2)(C). Does a person violate this provision by obtaining information that he has authorization to access, but doing so for an improper purpose?

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. 

Decided on April 6, 2020

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?

Torres v. Madrid, No. 19-292.

Does a Fourth Amendment “seizure” occur when an officer applies physical force to a suspect but fails to detain her?

Edwards v. Vannoy, No. 19-5807.

Earlier this Term, the Supreme Court decided that the Sixth Amendment requires a unanimous jury verdict for a state to convict a defendant of a serious offense. Does that holding apply retroactively to state convictions that are currently on federal collateral review?

U.S. Department of Justice v. Committee on the Judiciary of the U.S. House of Representatives, No. 19-1328.

Federal Rule of Criminal Procedure 6 allows a court to authorize disclosure of a grand-jury matter “preliminarily to or in connection with a judicial proceeding.” Does that include an impeachment trial in the House of Representatives?

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.

Borden v. United States , No. 19-5410.

The Armed Career Criminal Act requires an enhanced sentence for certain offenders who have previously been convicted of felonies that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. 924(e)(2)(B). Can that include crimes involving a mens rea of recklessness?

Jones v. Mississippi, No. 18-1259.

Before a court imposes a sentence of life without parole for a crime committed when the offender was a juvenile, does the Eighth Amendment require the court to make a finding that the offender is “permanently incorrigible?”

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?"

Election Law

Chiafalo v. Washington, No. 19-465; Colorado Dept. of State v. Baca, No. 19-518.

  • May a state require its delegates to the Electoral College to cast their votes for President and Vice President in accord with that state’s popular vote?
  • May it punish “faithless electors” who do not follow such a directive?
  • If a state prevents an elector from casting a vote in violation of such a state law, does he or she have standing to sue over it in federal court?

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?

U.S. Fish & Wildlife Service v. Sierra Club, No. 19-547.

When a federal agency consults with another agency in the course of making a decision, under what circumstances will the second agency’s written recommendation or opinion be exempted from disclosure by the Freedom of Information Act’s deliberative-process privilege?

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.

Decided on February 26, 2020

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.

Decided on June 1st, 2020

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?

Rutledge v. Pharmaceutical Care Management Ass’n, No. 18-540.
Most states have enacted legislation regulating “pharmacy benefit managers”—businesses that act as middlemen between health insurers and pharmacies, earning money on the difference between what they charge insurers for prescription drugs and what they pay the pharmacies for those drugs. Do these state regulations “relate to” employee benefit plans, so as to be preempted by ERISA?

Executive Powers

Trump v. Vance, No. 19-635.

Under what circumstances, if ever, may a state grand jury subpoena the personal records of the sitting President—including, in this case, President Trump’s tax returns?

Trump v. Mazars USA, LLP, No. 19-715, Decided on July 9, 2020 ; Trump v. Deutsche Bank AG, No. 19-760.

Does the House of Representatives’ Committee on Oversight and Reform have the constitutional and statutory authority to subpoena private financial records of the sitting President—including, in this case, President Trump’s tax returns?

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.

    Decided on April 27, 2020

    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.

    Decided on June 30th, 2020

    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?

    Tanzin v. Tanvir, No. 19-71.

    When government impermissibly burdens an individual’s religious practice, can money damages be part of the “appropriate relief” authorized by the Religious Freedom Restoration Act (RFRA)?

    Carney v. Adams, No. 19-309.

    For each level of its judiciary, Delaware requires that (1) no more than a “bare majority” of judges can belong to any one political party; and (2) the rest of the bench is reserved for members of the “other major political party.”

    • Is there Article III standing for a challenge to these requirements by a Delaware lawyer whose application for a judgeship was rejected while he was a registered Democrat, who later ceased affiliation with any political party, and who still desires to be a judge but has not re-applied?
    • If so, does the First Amendment allow a state to require applicants for judgeships to be a member of a major political party?
    • If not, is Delaware’s requirement of that type severable from its requirement that no political party’s members hold more than a “bare majority” of judgeships?

    USAID v. Alliance for Open Society International, Inc., No. 19-177

    Decided on June 29th, 2020

    Federal law requires that to receive certain federal funding to fight HIV/AIDS in foreign countries, an organization must “have a policy explicitly opposing prostitution and sex trafficking.” In this case, the Supreme Court previously held that the First Amendment does not permit this restriction to be enforced against U.S.-based organizations. Can the restriction be enforced against the foreign affiliates of U.S.-based organizations?

    Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267; St. James School v. Biel, No. 19-348.

    Under what circumstances (if any) do the Religion Clauses allow an employment-discrimination claim against a religious employer by an employee who performed religious functions but did not have a religious job title?

    Barr v. American Ass’n of Political Consultants, No. 19-631.
    The Telephone Consumer Protection Act prohibits most automatically-dialed calls to cellular phones, but it contains an exception for calls “to collect a debt owed to or guaranteed by the United States.” Is that an unconstitutional content-based speech regulation? If so, is the proper remedy to strike down the exception—causing the statute to prohibit more speech—or instead to invalidate or narrow the ban on auto-dialed calls itself?

    Little Sisters of the Poor Ss. Peter & Paul Home v. Pennsylvania, No. 19-431; Trump v. Pennsylvania, No. 19-454.

    • After the Supreme Court in 2016 directed the government to try to reach a resolution with religious entities who object to providing contraceptive coverage under the Affordable Care Act (ACA), the Departments of Health and Human Services, Labor, and the Treasury issued regulations exempting many such objectors. Are those religious exemptions authorized under the ACA and the Religious Freedom Restoration Act (RFRA)?
    • The agencies did not give the public notice and an opportunity to comment before promulgating the rules on an interim basis but did so before permanently promulgating the same rules. Does that invalidate the permanent rules?
    • Was a nationwide injunction against the exemptions appropriate?

    Fulton v. Philadelphia, No. 19-123.

    • Under the Supreme Court’s decision in Employment Division v. Smith, a law that burdens religious practice may violate the Free Exercise Clause if it is not neutral and generally applicable. Does that standard require that a law must forbid religiously motivated conduct while allowing similar non-religious conduct, or may a plaintiff show in some other way that the law targets religious practice?
    • Should Smith be overruled? Can a law that burdens religious practice violate the Free Exercise Clause even if it is neutral and generally applicable?

    Health Care

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

    Decided on April 27, 2020

    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?

    Little Sisters of the Poor Ss. Peter & Paul Home v. Pennsylvania, No. 19-431; Trump v. Pennsylvania, No. 19-454.

    • After the Supreme Court in 2016 directed the government to try to reach a resolution with religious entities who object to providing contraceptive coverage under the Affordable Care Act (ACA), the Departments of Health and Human Services, Labor, and the Treasury issued regulations exempting many such objectors. Are those religious exemptions authorized under the ACA and the Religious Freedom Restoration Act (RFRA)?
    • The agencies did not give the public notice and an opportunity to comment before promulgating the rules on an interim basis but did so before permanently promulgating the same rules. Does that invalidate the permanent rules?
    • Was a nationwide injunction against the exemptions appropriate?

    California v. Texas , No. 19-840; Texas v. California, No. 19-1019.

    • The original Affordable Care Act (ACA) created an “individual mandate” requiring people to buy health insurance, and imposed a “shared responsibility payment” on people who don’t. The Supreme Court previously held that Congress cannot order people to buy health insurance, but may tax people who don’t. Subsequently, Congress amended the ACA to reduce the amount of the tax to zero, without repealing the individual mandate itself. Does that render the individual mandate unconstitutional?
    • If so, is the ACA as a whole inseverable from the individual mandate, such that it must be struck down in its entirety?
    • Do citizens have standing to bring a legal challenge to the individual mandate if they felt obligated to buy insurance by the statutory language, even though there is no legal consequence for failing to do so? Have the states challenging the individual mandate adequately shown that it increased their expenses by forcing people into state-run insurance programs, or by requiring the state to complete additional paperwork?

    Immigration

    Albence v. Chavez, No. 19-897.

    8 U.S.C. 1226(a) allows an alien to be released on bond “pending a decision on whether the alien is to be removed.” 8 U.S.C. 1231 requires 90 days of detention of an alien who “is ordered removed,” and discretionary detention thereafter. An alien who has previously been removed from the country and who illegally reenters is automatically removable, but may apply under the Convention Against Torture for protection against removal to specific countries where he or she fears persecution. In that situation, which detention provision applies?

    Niz-Chavez v. Barr, No. 19-863.

    Under 8 U.S.C. 1229b, an alien’s eligibility for cancellation of removal may depend on the date when the alien received a “notice to appear” for immigration proceedings. 8 U.S.C. 1229(a) specifies the information that must be contained in a “notice to appear.” Can the government satisfy this requirement by serving an alien with the required information in multiple documents, or must all the information be contained in a single document?

    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.

    Decided on June 18, 2020

    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.

    Decided on June 1st, 2020

    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?

    Pereida v. Barr, No. 19-438.

    An alien may not apply for relief from deportation if he has been convicted of a disqualifying criminal offense, as defined in the Immigration and Nationality Act. May an alien apply for relief if he was convicted of violating a statute that defines multiple crimes, some of which are disqualifying, but the record does not make clear which crime he was convicted of?

    Indian Law

    Sharp v. Murphy, No. 17-1107

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

    McGirt v. Oklahoma, No. 18-9526

    Do certain areas of eastern Oklahoma remain Indian reservations, such that federal courts have exclusive jurisdiction over major criminal proceedings against tribal members arising from those areas?

    International Law and Foreign Relations

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

    Decided on June 1st, 2020

    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?

    Federal Republic of Germany v. Philipp, No. 19-351.

    • The Foreign Sovereign Immunities Act abrogates sovereign immunity when “rights in property taken in violation of international law are in issue.” Under what circumstances, if any, does this create jurisdiction over claims that a foreign sovereign took property from its own national within its own borders?
    • Under what circumstances, if any, may a district court decline to exercise jurisdiction under the Foreign Sovereign Immunities Act based on considerations of international comity?

    Republic of Hungary v. Simon, No. 18-1447 .

    • Under what circumstances, if any, may a district court decline to exercise jurisdiction under the Foreign Sovereign Immunities Act based on considerations of international comity?
    • Should the district court have abstained in this case, where Holocaust survivors who are former Hungarian nationals are suing Hungary for nearly 40% of Hungary’s annual GDP, but have not sought any remedy in Hungarian courts?

    Nestlé USA, Inc. v. Doe, No. 19-416; Cargill, Inc. v. Doe, No. 19-453 .

    • Can domestic corporations be held liable under the Alien Tort Statute, 28 U.S.C. 1350?
    • Does the Alien Tort Statute create a cause of action for aiding and abetting a violation of international law?
    • The Alien Tort Statute generally does not allow “extraterritorial” claims. Does it allow claims based on corporate oversight in the United States of allegedly unlawful extraterritorial activity?

    Labor & Employment

    Babb v. Wilkie, No. 18-882.

    Decided on April 6, 2020

    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.

    Decided on June 15, 2020

    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.

    Decided on June 15, 2020

    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?

    Railroads

    Salinas v. United States Railroad Retirement Board, No. 19-199.
    A “final decision” of the Railroad Retirement Board is subject to judicial review in the Courts of Appeals. Is such review available when the Board denies a request to reopen a previous benefits determination?

    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?

    CIC Services v. IRS, No. 19-930.

    The Anti-Injunction Act bars lawsuits seeking to restrain the collection of any tax, but does not bar lawsuits seeking injunctions against tax-related reporting and information-gathering requirements. Does the Act prevent a lawsuit seeking to enjoin a tax-related reporting or information-gathering requirement, if a taxpayer’s non-compliance with the requirement results in the IRS assessing a tax penalty?

    Terrorism & Homeland Security

    Opati v. Sudan, No. 17-1268.

    Decided on May 18, 2020

    • 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?
    Van Buren v. United States, No. 19-783

    The federal Computer Fraud and Abuse Act prohibits “obtaining information from any protected computer” by “access[ing] a computer without authorization or exceed[ing] authorized access.” 18 U.S.C. § 1030(a)(2)(C). Does a person violate this provision by obtaining information that he has authorization to access, but doing so for an improper purpose?

    Services and Industries

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