October 09, 2020

Certiorari Grants 2020 to 2021

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

Administrative Law

FCC v. Prometheus Radio Project, Nos. 19-1231; National Ass’n of Broadcasters v. Prometheus Radio Project, Nos. 19-1241.

For 17 years, a panel of the U.S. Court of Appeals for the Third Circuit has repeatedly vacated the Federal Communications Commission’s attempts to reform its restrictions on a broadcaster’s ownership of multiple media outlets in a single market. Most recently, the panel held that the FCC must consider statistical evidence about the prospective effect of the rule changes on minority and female ownership. Should the panel be showing greater deference to the FCC’s determinations?

Wolf v. Innovation Law Lab, No. 19-1212.

The Department of Homeland Security’s (DHS) “Migrant Protection Protocols” require many people who enter the United States illegally to be returned to Mexico during their removal proceedings.

  • The Immigration and Nationality Act authorizes a program of this type, but not for aliens to whom the Act’s expected removal provision “applies.” Does that allow the protocols to be applied to aliens who were eligible for expedited removal, but who DHS lawfully chose to place into regular removal proceedings instead?
  • Do the protocols violate the United States’ obligations not to remove people to countries where they face persecution or torture because, although they require that an alien not be returned to Mexico if immigration officials determine he or she reasonably fears persecution or torture there, they do not require that aliens be asked about this matter?
  • Are the protocols a “general statement of policy” that the Administrative Procedure Act exempts from notice-and-comment rulemaking?
  • Was a nationwide injunction against the protocols overbroad?

Carr v. Saul, No. 19-1442; Davis v. Saul, No. 20-105.

If a Social Security claimant wishes to argue that the administrative law judge (ALJ) assigned to his case was not appointed in conformity with the Appointments Clause of the Constitution, must the claimant raise the issue with the ALJ, or may he make the argument for the first time when seeking judicial review?

Antitrust

NCAA v. Alston, No. 20-512; American Athletic Conference v. Alston, No. 20-520.

  • Can a defining feature of a product, such as amateur athletics, be subjected to antitrust scrutiny?
  • Do the NCAA’s amateurism rules violate the antitrust laws?

Capital Punishment

United States v. Tsarnaev, No. 20-443.
  • In examining potential jurors for the trial of one of the Boston Marathon bombers, was the district court required to ask each potential juror for a specific accounting of the media coverage about the case that he or she had seen?
  • At the penalty stage, the defendant’s principal mitigation argument was that his jihadi older brother was the main perpetrator and that the defendant acted under his influence. Was it reversible error for the district court to exclude evidence of murders previously committed by the older brother?

Civil Rights

Thompson v. Clark, No. 20-659.

  • In order for a Section 1983 plaintiff to claim that criminal proceedings against him were malicious prosecution in violation of the Fourth Amendment’s guarantee against unreasonable seizures, the criminal proceedings must first have been terminated in his favor. Must the termination affirmatively indicate his innocence of the crime he was accused of, or is it enough to allow a Fourth Amendment claim that the termination was compatible with his innocence?
  • In a Section 1983 action claiming unlawful warrantless entry of a home, when the defendant asserts a defense of exigent circumstances, which side bears the burden of proof on that defense?

Class Actions

TransUnion LLC v. Ramirez, No. 20-297.

In a class action alleging that a credit reporting agency falsely designated certain people as terrorists and failed to provide them statutorily required information about how to remove the designation, do Article III and Rule 23 allow the inclusion of class members whose terrorist designation was never published outside the credit reporting agency?

Criminal Law

United States v. Gary, No. 20-444.

When a district court fails to advise a defendant in a guilty-plea colloquy that a conviction for being a felon in possession of a firearm requires the defendant to have known that he was disqualified from possessing a firearm, can the defendant withdraw his guilty plea without showing that he would have proceeded to trial if he had been properly advised?

United States v. Tsarnaev, No. 20-443.
  • In examining potential jurors for the trial of one of the Boston Marathon bombers, was the district court required to ask each potential juror for a specific accounting of the media coverage about the case that he or she had seen?
  • At the penalty stage, the defendant’s principal mitigation argument was that his jihadi older brother was the main perpetrator and that the defendant acted under his influence. Was it reversible error for the district court to exclude evidence of murders previously committed by the older brother?

Criminal Procedure

Lange v. California, No. 20-18.

Does pursuit of a person who a police officer has probable cause to believe committed a misdemeanor qualify as an exigent circumstance that allows warrantless entry of a home?

Hemphill v. New York, No. 20-637.

Under what circumstances (if any) does a criminal defendant’s introduction of evidence “open the door” to prosecution evidence that otherwise would be barred by the Confrontation Clause?

Criminal Sentencing

Wooden v. United States, No. 20-5279.

The Armed Career Criminal Act provides a sentencing enhancement based on a defendant’s prior felony convictions for offenses that were “committed on occasions different from one another.” Is that standard unconstitutionally vague?

Terry v. United States, No. 20-5904.

Sentencing reforms enacted by Congress in 2010 and 2018 increased the quantities of crack cocaine required to trigger certain sentencing enhancements, and allowed for modification of sentences entered under the previous rules. Does this allow modification of crack-related sentences that were not subject to the enhancements?

Education

Mahanoy Area School District v. B.L., No. 20-255.

May public school officials regulate students’ off-campus speech that the officials fear would disrupt the work and discipline of the school?

Election Law

Brnovich v. Democratic National Committee, No. 19-1257; Arizona Republican Party v. Democratic National Committee, No. 19-1258.

  • If a voting practice would be used disproportionately by racial minorities, is that enough to compel a state to adopt the practice under Section 2 of the Voting Rights Act?
  • Arizona, like most states, does not count provisional ballots cast in person on Election Day outside the voter’s designated precinct. Is that allowed under Section 2?
  • Arizona limits the people who may handle another person’s completed early ballot to that person’s family or household members, caregivers, mail carriers, and election officials. Is that allowed under Section 2?

Trump v. New York, No. 20-366.

  • Do state and local governments have standing to sue, challenging the methods by which the executive branch determines the population of States for purposes of apportioning seats in the House of Representatives?
  • If so, does the Census Act’s requirement that apportionment be based on “total population” allow the President to exclude aliens unlawfully present in the country from the apportionment count?

Eminent Domain

PennEast Pipeline Co. v. New Jersey. No. 19-1039.

  • On a motion for a preliminary injunction in an action seeking to condemn land owned by New Jersey, the district court rejected New Jersey’s argument about sovereign immunity, entered an order allowing the plaintiff to take control of the property in question, and appointed special masters to determine just compensation awards. Did the Court of Appeals have jurisdiction over an appeal from that order?
  • The Natural Gas Act allows gas companies to exercise federal eminent domain power to construct approved interstate pipelines. May a gas company use this power to take property owned by a State?

Energy

PennEast Pipeline Co. v. New Jersey. No. 19-1039.

  • On a motion for a preliminary injunction in an action seeking to condemn land owned by New Jersey, the district court rejected New Jersey’s argument about sovereign immunity, entered an order allowing the plaintiff to take control of the property in question, and appointed special masters to determine just compensation awards. Did the Court of Appeals have jurisdiction over an appeal from that order?
  • The Natural Gas Act allows gas companies to exercise federal eminent domain power to construct approved interstate pipelines. May a gas company use this power to take property owned by a State?

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

Territory of Guam v. United States, No. 20-382.

  • Can a settlement with the United States regarding environmental contamination trigger CERCLA contribution rights (and their accompanying statute of limitations) even if the settled claims were not asserted under CERCLA?
  • Can a settlement with the United States regarding environmental contamination trigger CERCLA contribution rights (and their limitations period) if the defendant does not admit liability and the release of claims is contingent on the defendant performing certain cleanup operations?

HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n, No. 20-472.

The Clean Air Act requires refineries to blend renewable fuels into their products, but allows small refineries to apply for certain exemptions. Under the statute, if a small refinery allows such an exemption to lapse, is it allowed to later apply for renewal?

Federal Courts

Department of Homeland Security v. New York, No. 20-449.

The Immigration and Nationality Act makes aliens inadmissible if they are “likely at any time to become a public charge.” The Department of Homeland Security promulgated a regulation broadening the definition of “public charge,” to include participants in more public benefits programs than previously.

  • Do States, and charitable organizations that serve immigrants, have standing to challenge the regulation’s validity under the Administrative Procedure Act?
  • Was the district court correct to issue a preliminary injunction against enforcement of the regulation?

BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189.

Under 28 U.S.C. 1447, a federal court’s order remanding a removed case back to state court “is not reviewable on appeal or otherwise” — unless the case was “removed pursuant to [28 U.S.C.] 1442 or 1443.” Sections 1442 and 1443 pertain respectively to certain claims against federal officers and certain civil-rights claims. Is an appeal pursuant to that exception limited to the federal-officer or civil-rights ground for removal, or may it also seek review of other grounds for remand that were included in the same remand order?

Greer v. United States, No. 19-8709.

When an appellate court applies plain-error review, may it consider matters outside the trial record in order to determine whether the alleged error prejudiced the appellant?

City of San Antonio v. Hotels.com, LP, No. 20-334.

When a party seeks to recover costs from the other side and the requested costs are indeed taxable under Federal Rule of Appellate Procedure 39(e), does the district court have any discretion to deny or reduce the award?

Cameron v. EMW Women’s Surgical Center, P.S.C., No. 20-601.

When a federal court of appeals invalidates a state statute and the original state defendant will not defend the statute, should the state’s attorney general be allowed to intervene as a defendant?

First Amendment

Houston Community College System v. Wilson, No. 20-804.

Does the First Amendment allow an elected body to censure a member for his or her speech?

Americans for Prosperity Foundation v. Becerra, No. 19-251; Thomas More Law Center v. Becerra, No. 19-255.

May a State require nonpolitical charitable organizations to disclose the identities of their major donors?

Mahanoy Area School District v. B.L., No. 20-255.

May public school officials regulate students’ off-campus speech that the officials fear would disrupt the work and discipline of the school?

Health Care

Azar v. Gresham, No. 20-37; Arkansas v. Gresham, No. 20-38.

What work qualifications (if any) may the secretary of Health and Human Services approve States to require for people to receive Medicaid benefits?

Homeland Security

United States v. Husayn, No. 20-827.

After the CIA interrogated a high-ranking member of al Qaeda using waterboarding and other severe methods, does the state-secrets privilege prevent him from obtaining certain civil discovery about his treatment?

Immigration

Department of Homeland Security v. New York, No. 20-449.

The Immigration and Nationality Act makes aliens inadmissible if they are “likely at any time to become a public charge.” The Department of Homeland Security promulgated a regulation broadening the definition of “public charge,” to include participants in more public benefits programs than previously.

  • Do States, and charitable organizations that serve immigrants, have standing to challenge the regulation’s validity under the Administrative Procedure Act?
  • Was the district court correct to issue a preliminary injunction against enforcement of the regulation?

Barr v. Dai, No. 19-1155; Barr v. Alcaraz-Enriquez, No. 19-1156.

  • Must an asylum applicant’s testimony be treated as credible and true unless an immigration judge or the Board of Immigration Appeals makes an explicit adverse credibility determination?
  • If so, and if the Board denies asylum without making an explicit adverse credibility determination in a case where one is required, must a reviewing Court of Appeals remand for the Board to consider that issue, or may the Court of Appeals reverse the denial of asylum?

Wolf v. Innovation Law Lab, No. 19-1212.

The Department of Homeland Security’s (DHS) “Migrant Protection Protocols” require many people who enter the United States illegally to be returned to Mexico during their removal proceedings.

  • The Immigration and Nationality Act authorizes a program of this type, but not for aliens to whom the Act’s expected removal provision “applies.” Does that allow the protocols to be applied to aliens who were eligible for expedited removal, but who DHS lawfully chose to place into regular removal proceedings instead?
  • Do the protocols violate the United States’ obligations not to remove people to countries where they face persecution or torture because, although they require that an alien not be returned to Mexico if immigration officials determine he or she reasonably fears persecution or torture there, they do not require that aliens be asked about this matter?
  • Are the protocols a “general statement of policy” that the Administrative Procedure Act exempts from notice-and-comment rulemaking?
  • Was a nationwide injunction against the protocols overbroad?

Sanchez v. Wolf, No. 20-315.

If an alien who entered the United States illegally is later granted temporary protected status under the Immigration and Nationality Act (INA) due to a humanitarian crisis in his home country, does he become eligible for lawful permanent resident status under the INA?

United States v. Palomar-Santiago, No. 20-437.

When an alien is mistakenly removed from the United States based on conduct that was not actually removable, but fails to exhaust administrative remedies or judicial review on that issue, can the invalidity of the removal order be a defense to a later charge of illegal reentry?

Indian Law

United States v. Cooley, No. 19-1414

Do tribal police officers have authority on reservations to detain and search non-Indians when the officers have reason to suspect a violation of state or federal (not tribal) law, but the violation is not obvious?

Mnuchin v. Confederated Tribes of the Chehalis Reservation, No. 20-543; Alaska Native Village Corp. v. Confederated Tribes of the Chehalis Reservation, No. 20-544.

Are Alaska Native regional and village corporations eligible to receive coronavirus relief funding that the CARES Act (42 U.S.C. 801(a)(2)(B)) reserves for “Tribal governments”?

International Law

Servotronics, Inc. v. Rolls-Royce PLC, No. 20-794.

Federal law allows a district court to order discovery “for use in a proceeding in a foreign or international tribunal.” Does that include an arbitral tribunal in a foreign country?

Labor & Employment

Cedar Point Nursery v. Hassid, No. 20-107.

California requires agricultural businesses to allow labor organizers onto certain parts of their property at certain times, in effect requiring the grant of a limited easement for that purpose. Is the required access extensive enough to qualify as a physical taking, for which the Fifth Amendment requires compensation?

Military Justice

Trump v. Sierra Club, No. 20-138.

The 2019 Department of Defense Appropriations Act allows the secretary of Defense to transfer appropriated funds from one account to another “for higher priority items, based on unforeseen military requirements,” but not for any “item for which funds” have “been denied by the Congress.” Congress separately appropriated about $1.5 billion to construct a wall along certain sections of the Mexican border. The secretary then transferred approximately $2.5 billion between Department of Defense accounts to pay for additional wall construction.

  • Do the Sierra Club and border States have a cause of action to challenge the lawfulness of the transfer?
  • If so, did the transfer violate the conditions of the Act?

Nonprofit Organizations

Americans for Prosperity Foundation v. Becerra, No. 19-251; Thomas More Law Center v. Becerra, No. 19-255.

May a State require nonpolitical charitable organizations to disclose the identities of their major donors?

Patents

United States v. Arthrex, Inc., No. 19-1434; Smith & Nephew, Inc. v. Arthrex, Inc., No. 19-1452; Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1458.

  • Administrative patent judges (APJs) are removable only for cause, and they issue decisions that are reviewable only by the courts, not by superiors in the U.S. Patent and Trademark Office. By statute, APJs are appointed by the secretary of Commerce. Are they “inferior officers” who the Constitution allows to be appointed by the head of a department?
  • If not, can and should they be rendered inferior officers by severing and striking down the statutory for-cause removal requirement?
  • If past appointments of APJs violated the Constitution, may a party who received an adverse decision from an APJ raise the appointment issue for the first time when seeking review of that decision in the Court of Appeals?

Minerva Surgical, Inc. v. Hologic, Inc., No. 20-440.

Does assigning a patent estop the assignor (or her privies) from later contesting its validity?

Regulation and Rights: Abortion

American Medical Ass’n v. Cochran, No. 20-429; Cochran v. Mayor & City Council of Baltimore, No. 20-454.

A regulation promulgated by the Department of Health and Human Services requires providers in the Title X family planning program to make referrals for prenatal care but not for abortions, and requires facilities funded by Title X to be physically separated from facilities that provide abortions or certain abortion-related information.

  • Does this regulation comply with the relevant statutes, where Title X requires that federal funds not be “used in programs where abortion is a method of family planning” but its appropriations act requires that “all pregnancy counseling shall be nondirective;” and the Affordable Care Act prohibits any regulation that “interferes with communications regarding a full range of treatment options between the patient and the provider” or that creates “unreasonable barriers” to medical care or interferes with medical communications “regarding a full range of treatment options?”
  • Is the regulation arbitrary and capricious under the Administrative Procedure Act because the agency did not adequately consider medical ethics or the financial costs it imposes?

Search & Seizure

Caniglia v. Strom, No. 20-157

Does the “community caretaking” function of the police allow them to enter a home without a warrant, and seize persons and property therein, when they believe an individual is at risk of harming himself or others?

Second Amendment

New York State Rifle & Pistol Ass’n v. Corlett, No. 20-843.

Under what circumstances (if any) does a State violate the Second Amendment by denying a permit to carry a concealed firearm for purposes of self-defense?

Securities

Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, No. 20-222.

  • May a defendant in a securities fraud class action rebut the Basic presumption of classwide reliance on its statements, by showing that the statements were too generic or aspirational in nature to affect the security’s price?
  • Does a defendant seeking to rebut the Basic presumption bear the burden of persuasion, or only the burden of production?

Social Security

United States v. Vaello-Madero, No. 20-303.

The Social Security Act offers Supplemental Security Income to eligible individuals in the 50 States, the District of Columbia, and the Northern Mariana Islands — but not Puerto Rico. Does that violate the Equal Protection Clause?

Babcock v. Saul, Commissioner of Social Security, No. 20-480.

For purposes of calculating benefits eligibility based on earnings history, the Social Security Act grants favorable treatment to payments that a person receives “based wholly on service as a member of a uniformed service.” Does that include payments for “dual status technician” services performed for the National Guard by federal employees who are also Guard members?

Takings

Cedar Point Nursery v. Hassid, No. 20-107.

California requires agricultural businesses to allow labor organizers onto certain parts of their property at certain times, in effect requiring the grant of a limited easement for that purpose. Is the required access extensive enough to qualify as a physical taking, for which the Fifth Amendment requires compensation?

Services and Industries

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