October 01, 2021

Certiorari Grants 2021 to 2022

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

Administrative Law

Arizona v. City & County of San Francisco, No. 20-1775.

When a rule promulgated by a federal agency is challenged in court, but the United States ceases defending the rule, under what circumstances (if any) can States intervene in the case to defend the rule?

George v. McDonough, No. 21-234.

By statute, an agency decision on veterans benefits can be revised if it is based on “clear and unmistakable error.” Under that standard, when the courts invalidate a veterans-benefits regulation as inconsistent with the governing statute, may previous agency decisions applying the invalidated regulation be revised?

Axon Enterprise, Inc. v. Federal Trade Comm’n, No. 21-86.

Does a federal district court have jurisdiction over a lawsuit that alleges the Federal Trade Commission’s structure and procedures are unconstitutional, and seeks to enjoin an ongoing FTC proceeding?

Affirmative Action

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, No. 20-1199; Students for Fair Admissions, Inc. v. University of North Carolina, No. 21-707.

  • In Grutter v. Bollinger, in 2003, the Supreme Court said that colleges and universities may, in some circumstances, consider race as a factor in making admissions decisions. Should that decision be overruled?
  • If not, then under what circumstances (if any) may a university consider race in admissions decisions in order to achieve a desired composition of the student body?
  • Is Harvard violating Title VI of the Civil Rights Act by considering race in making admissions decisions?

Agriculture

National Pork Producers Council v. Ross, No. 21-468.

Under what circumstances, if any, does the Dormant Commerce Clause prevent a State from regulating the in-state sale of goods produced in other states using methods that the state disfavors?

Appellate Procedure

Cruz v. Arizona, No. 21-846.

Under certain circumstances, due process entitles a capital defendant to inform the jury that he would be ineligible for parole if sentenced to life imprisonment rather than death. Arizona’s parole statutes are complex; but in a previous case, the Supreme Court held that they trigger this requirement for certain defendants. When an Arizona defendant invokes this Supreme Court decision in a successive post-conviction attack on his sentence, may the Arizona courts apply Arizona procedural law to bar the challenge?

Arbitration

Viking River Cruises, Inc. v. Moriana, No. 20-1573.

The Supreme Court has previously held that the Federal Arbitration Act does not apply to “transportation workers” in interstate commerce. Does that include workers who load or unload goods for interstate transport?

ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401; AlixPartners, LLP v. Fund for Protection of Investors’ Rights in Foreign States, No. 21-518.

28 U.S.C. 1782(a) allows U.S. courts to order third-party discovery for use “in a foreign or international tribunal.” Does that include foreign arbitral tribunals?

Morgan v. Sundance, Inc., No. 21-328.

Under the Federal Arbitration Act, do the elements of a waiver of arbitration rights include prejudice to the opposing party?

Viking River Cruises, Inc. v. Moriana, No. 20-1573

If the parties to an arbitration clause agree to waive a statutory cause of action to sue in a representative capacity for the claims of others, or to collect statutory penalties on behalf of the state, does the Federal Arbitration Act preempt state-law principles prohibiting such waivers?

Bankruptcy

Bartenwerfer v. Buckley, No. 21-908.

The Bankruptcy Code bars chapter-11 discharge of debts for money obtained by fraud. Does that bar discharge of a debt owed because of the fraud of someone else (such as the debtor’s business partner), without the debtor’s participation or knowledge?

Siegel v. Fitzgerald, No. 21-441.

The Constitution’s Bankruptcy Clause allows Congress to “establish … uniform Laws on the subject of Bankruptcies throughout the United States.” Current bankruptcy law imposes quarterly fees of up to $250,000 on Chapter 11 debtors. To what extent, if any, does the Bankruptcy Clause allow Congress to specify different amounts for these quarterly fees in different geographical areas of the country?

Capital Punishment

Cruz v. Arizona, No. 21-846.

Under certain circumstances, due process entitles a capital defendant to inform the jury that he would be ineligible for parole if sentenced to life imprisonment rather than death. Arizona’s parole statutes are complex; but in a previous case, the Supreme Court held that they trigger this requirement for certain defendants. When an Arizona defendant invokes this Supreme Court decision in a successive post-conviction attack on his sentence, may the Arizona courts apply Arizona procedural law to bar the challenge?

Nance v. Ward, No. 21-439.

  • When an inmate sentenced to death wishes to bring an as-applied challenge to the constitutionality of the method by which the state proposes to execute him, he is required by law to allege a feasible, available alternative method of execution. If such an inmate relies on an alternative execution method that is not permitted by the relevant state’s law, may he bring his claims under 28 U.S.C. 1983, or must he bring them as a petition for habeas corpus?
  • If such a claim sounds in habeas, under what circumstances may a petitioner avoid the statutory bar on “second or successive” petitions by arguing that his method-of-execution claim was not ripe at the time he filed a previous habeas petition?

Civil Procedure

Whole Woman’s Health v. Jackson, No. 21-463.

When a state statute — such as Texas’ prohibition of many abortions — is enforceable only through private lawsuits and not by any official in the state’s executive branch, under what circumstances (if any) can parties who object to the statute bring a federal lawsuit seeking to enjoin it as unconstitutional?

Kemp v. United States, No. 21-5726.

Federal Rule of Civil Procedure 60(b)(1) allows relief from final judgment based on (among other things) “mistake.” Does that include an error of law by the district court?

Civil Rights

Health & Hospital Corp. v. Talevski, No. 21-806.

Should the Supreme Court overrule its previous holdings that federal spending statutes can sometimes give rise to rights enforceable by private individuals in lawsuits under Section 1983? If not, does the Federal Nursing Home Amendments Act create privately enforceable rights to bring lawsuits challenging what medications a nursing-home resident is given, or what facility he is assigned to?

Reed v. Goertz, No. 21-442.

  • When a defendant convicted of a crime later files a civil suit under Section 1983, claiming that due process requires DNA testing be done on the crime-scene evidence, does the plaintiff have standing to name the prosecuting attorney as the defendant? Do the Rooker-Feldman doctrine or the Eleventh Amendment bar federal-court jurisdiction over such claims?
  • If the federal courts have jurisdiction, does the limitations period for a claim of this kind begin to run at the moment during the criminal proceedings when the trial court denied DNA testing, or does the period begin later, after state-court appellate review of that ruling is complete and the ruling becomes final?

Vega v. Tekoh, No. 21-499.

When a criminal suspect’s Miranda rights are violated, under what circumstances (if any) may he bring a 1983 action based on the violation?

Copyright & Trademark

Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869.

For purposes of the fair use doctrine, what standard determines whether a work of art is “transformative” of its source material?

Criminal Law

Oklahoma v. Castro-Huerta, No. 21-429.

Does a State have jurisdiction to prosecute non-Indians who commit crimes against Indians in Indian country?

Criminal Procedure

Reed v. Goertz, No. 21-442.

  • When a defendant convicted of a crime later files a civil suit under Section 1983, claiming that due process requires DNA testing be done on the crime-scene evidence, does the plaintiff have standing to name the prosecuting attorney as the defendant? Do the Rooker-Feldman doctrine or the Eleventh Amendment bar federal-court jurisdiction over such claims?
  • If the federal courts have jurisdiction, does the limitations period for a claim of this kind begin to run at the moment during the criminal proceedings when the trial court denied DNA testing, or does the period begin later, after state-court appellate review of that ruling is complete and the ruling becomes final?

Vega v. Tekoh, No. 21-499.

When a criminal suspect’s Miranda rights are violated, under what circumstances (if any) may he bring a 1983 action based on the violation?

Criminal Sentencing

Concepcion v. United States, No. 20-1650.

Previous versions of the sentencing guidelines recommended significantly greater punishment for crack cocaine offenses than powder cocaine offenses. Congress eventually eliminated this disparity, and allowed for re-sentencing of defendants previously convicted of crack cocaine offenses. In a resentencing proceeding of this kind, under what circumstances (if any) may or must the court consider other post-conviction changes in the facts or law?

Education

Kennedy v. Bremerton School District, No. 21-418.

  • When a public-school employee says a quiet private prayer at school, under what circumstances is the prayer government speech that is not protected by the First Amendment?
  • To the extent that private prayers by public-school employees are not government speech, under what circumstances (if any) does the Establishment Clause require the school to prohibit those prayers?

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, No. 20-1199; Students for Fair Admissions, Inc. v. University of North Carolina, No. 21-707.

  • In Grutter v. Bollinger, in 2003, the Supreme Court said that colleges and universities may, in some circumstances, consider race as a factor in making admissions decisions. Should that decision be overruled?
  • If not, then under what circumstances (if any) may a university consider race in admissions decisions in order to achieve a desired composition of the student body?
  • Is Harvard violating Title VI of the Civil Rights Act by considering race in making admissions decisions?

Election Law

Berger v. North Carolina State Conference of the NAACP, No. 21- 248.

  • When a plaintiff challenging a state action in federal court names as defendants some, but not all, of the officials designated by the State to defend its interests in litigation, must the other officials make some showing that the named defendants are not adequately defending the case in order to intervene of right in the case?
  • If so, what is the standard of review on appeal for a district court’s ruling on this issue?
  • North Carolina law designates certain legislators as agents of the State for purposes of defending legislation in lawsuits. May they intervene in a suit against North Carolina’s governor that challenges the validity of the State’s voter-ID law?

FEC v. Ted Cruz for Senate, No. 21-12.

Federal campaign-finance laws limit the amount that a candidate can lend to his or her own campaign at $250,000 — but the limit does not apply if the loan is repaid within 20 days following the election, using funds that were donated to the campaign before the election. Senator Ted Cruz lent more than that amount to his campaign, and the campaign intentionally delayed repayment past the 20-day window in order to challenge the constitutionality of the limitation. Does the campaign have standing to bring that suit? If so, do the limitations violate the First Amendment?

Employment Law

Helix Energy Solutions Group v. Hewitt, No. 21-984.

The Fair Labor Standards Act exempts an employee from the entitlement to extra pay for overtime worked if, among other things, the employee’s salary exceeds $455 per week. Does an executive meet this criterion if is calculated on a daily basis, and exceeds $455 per day?

National Federation of Independent Businesses v. Occupational Safety & Health Admin., No. 21A244; Ohio v. Dep’t of Labor, No. 21A247.

Should the Biden Administration’s requirement that most private-sector employees be vaccinated against (or regularly tested for) COVID-19 be allowed to go into effect, pending litigation over its validity?

Environmental Law

West Virginia v. EPA, No. 20-1530; North American Coal Corp. v. EPA, No. 20-1531; Westmoreland Mining Holdings LLC v. EPA, No. 20-1778; North Dakota v. EPA, No. 20-1780.

The Clean Air Act authorizes the EPA to impose emissions standards “for any existing source” based on “application of the best system of emission reduction” that has been “adequately demonstrated.” Does that allow the EPA to impose a regionwide or industrywide cap-and-trade regime, or is the EPA limited to imposing standards based on what can be achieved at each particular source of emissions?

Sackett v. Environmental Protection Agency, No. 21-454.

What is the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act?

False Claims Act

Polansky v. Executive Health Resources, Inc., No. 21-1052.

When the United States declines to take over a qui tam action from the private relator who filed it, under what circumstances can it have the action dismissed?

Family Law

Haaland v. Brackeen, Cherokee Nation v. Brackeen, Texas v. Haaland, Brackeen v. Haaland, Nos. 21-376, 21-377, 21-378 & 21-380.

For decades, the federal Indian Child Welfare Act has required state courts to follow certain rules and procedures giving preference to the adoption or foster of Indian children by members of their own families or tribes (or, failing that, members of other tribes) over their adoption or foster care by non-Indians. Do the plaintiffs, who are non-Indian couples who adopted or tried to adopt Indian children and the birth mother of an Indian child who wished the child to be adopted by a non-Indian, have standing to challenge the validity of the statutory preferences? If so:

  1. Does the Constitution’s Indian Commerce Clause give Congress authority to enact adoption preferences like these?
  2. Are the adoption preferences an impermissible attempt by Congress to commandeer the operations of state agencies and courts?
  3. Are the adoption preferences a racial classification forbidden by the Equal Protection Clause?
  4. Is there a rational basis for the adoption preferences?

Golan v. Saada, No. 20-1034.

The Hague Convention on the Civil Aspects of International Child Abduction requires that children be returned to their country of habitual residence so that custody disputes can be resolved there — but a child need not be returned if there is a grave risk that it would expose the child to physical or psychological harm. Once a district court finds that this risk exists, is it required to consider whether there are ways to ameliorate the risk and so allow return of the child?

Federal Contracts

United States v. Washington, No. 21-404.

40 U.S.C. 3172(a) allows States to apply their workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” Does that allow a State to enact workers’ compensation rules that apply only to federal contract workers at a single, specified federal facility?

Federal Courts

SEC v. Cochran, No. 21-1239.

The Securities Exchange Act provides for direct judicial review of decisions by the Commission, including in cases that the Commission initially assigns to an administrative law judge. Does that deprive the federal courts of jurisdiction to hear a separate lawsuit seeking to enjoin SEC administrative proceedings before an ALJ?

Berger v. North Carolina State Conference of the NAACP, No. 21-248.

  • When a plaintiff challenging a state action in federal court names as defendants some, but not all, of the officials designated by the State to defend its interests in litigation, must the other officials make some showing that the named defendants are not adequately defending the case in order to intervene of right in the case?
  • If so, what is the standard of review on appeal for a district court’s ruling on this issue?
  • North Carolina law designates certain legislators as agents of the State for purposes of defending legislation in lawsuits. May they intervene in a suit against North Carolina’s governor that challenges the validity of the State’s voter-ID law?

Arizona v. City & County of San Francisco, No. 20-1775.

When a rule promulgated by a federal agency is challenged in court, but the United States ceases defending the rule, under what circumstances (if any) can States intervene in the case to defend the rule?

Shoop v. Twyford, No. 21-511.

  • 28 U.S.C. 2241(c) allows a federal court to issue a writ requiring transportation of a state prisoner only in order to bring the prisoner into court to testify or for trial. Under what circumstances (if any) does the All Writs Act permit a federal court to issue a writ requiring transportation of a state prisoner for other reasons?
  • Before ordering that a habeas petitioner be allowed to develop new evidence, under what circumstances must a district court decide whether the evidence would be admissible and material to the petitioner’s habeas claim?

Axon Enterprise, Inc. v. Federal Trade Comm’n, No. 21-86.

Does a federal district court have jurisdiction over a lawsuit that alleges the Federal Trade Commission’s structure and procedures are unconstitutional, and seeks to enjoin an ongoing FTC proceeding?

Federal Lands

Wilkins v. United States, No. 21-1164.

The federal Quiet Title Act provides a 12-year period to file civil actions. Is this deadline jurisdictional in nature?

Federalism

Health & Hospital Corp. v. Talevski, No. 21-806.

Should the Supreme Court overrule its previous holdings that federal spending statutes can sometimes give rise to rights enforceable by private individuals in lawsuits under Section 1983? If not, does the Federal Nursing Home Amendments Act create privately enforceable rights to bring lawsuits challenging what medications a nursing-home resident is given, or what facility he is assigned to?

National Pork Producers Council v. Ross, No. 21-468.

Under what circumstances, if any, does the Dormant Commerce Clause prevent a State from regulating the in-state sale of goods produced in other states using methods that the state disfavors?

Berger v. North Carolina State Conference of the NAACP, No. 21- 248.

  • When a plaintiff challenging a state action in federal court names as defendants some, but not all, of the officials designated by the State to defend its interests in litigation, must the other officials make some showing that the named defendants are not adequately defending the case in order to intervene of right in the case?
  • If so, what is the standard of review on appeal for a district court’s ruling on this issue?
  • North Carolina law designates certain legislators as agents of the State for purposes of defending legislation in lawsuits. May they intervene in a suit against North Carolina’s governor that challenges the validity of the State’s voter-ID law?

First Amendment

303 Creative LLC v. Elenis, No. 21-476.

Does the Free Speech Clause allow the government to apply a nondiscrimination provision of a public accommodations law to compel an artist to speak or stay silent — in this case, to design web sites celebrating same-sex marriages?

Shurtleff v. City of Boston, No. 20-1800.

Private groups may apply to conduct brief ceremonies raising their flags on flagpoles at Boston City Hall. The city had never denied an application until a Christian group sought to raise a flag with a cross on it. Does the First Amendment allow that denial?

Kennedy v. Bremerton School District, No. 21-418.

  • When a public-school employee says a quiet private prayer at school, under what circumstances is the prayer government speech that is not protected by the First Amendment?
  • To the extent that private prayers by public-school employees are not government speech, under what circumstances (if any) does the Establishment Clause require the school to prohibit those prayers?

Habeas Corpus

Jones v. Hendrix, No. 21-857.

The main federal habeas corpus statute, 28 U.S.C. 2255, places strict limits on second or successive petitions. Another statute, 28 U.S.C. 2241, allows a habeas petition only where a 2255 petition “is inadequate or ineffective to test the legality of [the petitioner’s] detention.” Under what circumstances, if any, does this statute allow a prisoner to argue that a change in caselaw has shown that his conduct of conviction was not actually illegal?

Shoop v. Twyford, No. 21-511.

  • 28 U.S.C. 2241(c) allows a federal court to issue a writ requiring transportation of a state prisoner only in order to bring the prisoner into court to testify or for trial. Under what circumstances (if any) does the All Writs Act permit a federal court to issue a writ requiring transportation of a state prisoner for other reasons?
  • Before ordering that a habeas petitioner be allowed to develop new evidence, under what circumstances must a district court decide whether the evidence would be admissible and material to the petitioner’s habeas claim?

Health Care

Biden v. Missouri, No. 21A240; Becerra v. Louisiana, No. 21A241.

Should the Biden Administration’s requirement that all health-care workers in Medicare- or Medicaid-participating facilities be vaccinated against COVID-19 be allowed to go into effect, pending litigation over its validity?

Immigration

Arizona v. City & County of San Francisco, No. 20-1775.

When a rule promulgated by a federal agency is challenged in court, but the United States ceases defending the rule, under what circumstances (if any) can States intervene in the case to defend the rule?

Indian Law

Haaland v. Brackeen, Cherokee Nation v. Brackeen, Texas v. Haaland, Brackeen v. Haaland, Nos. 21-376, 21-377, 21-378 & 21-380.

For decades, the federal Indian Child Welfare Act has required state courts to follow certain rules and procedures giving preference to the adoption or foster of Indian children by members of their own families or tribes (or, failing that, members of other tribes) over their adoption or foster care by non-Indians. Do the plaintiffs, who are non-Indian couples who adopted or tried to adopt Indian children and the birth mother of an Indian child who wished the child to be adopted by a non-Indian, have standing to challenge the validity of the statutory preferences? If so:

  1. Does the Constitution’s Indian Commerce Clause give Congress authority to enact adoption preferences like these?
  2. Are the adoption preferences an impermissible attempt by Congress to commandeer the operations of state agencies and courts?
  3. Are the adoption preferences a racial classification forbidden by the Equal Protection Clause?
  4. Is there a rational basis for the adoption preferences?

Ysleta del Sur Pueblo v. Texas, No. 20-493.

The Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act prohibits gaming activities on tribal lands if those activities are also prohibited under Texas law. If Texas regulates a gaming activity but does not prohibit it, does the Restoration Act apply those regulations on the Tribes’ lands?

Denezpi v. United States, No. 20-7622.

When the United States prosecutes a defendant in a Court of Indian Offenses and obtains a conviction for violating tribal law, under what circumstances (if any) does the Double Jeopardy Clause prevent the defendant from being prosecuted in U.S. District Court for violating federal law, based on the same conduct?

Oklahoma v. Castro-Huerta, No. 21-429.

Does a State have jurisdiction to prosecute non-Indians who commit crimes against Indians in Indian country?

International Law & Foreign Relations

Golan v. Saada, No. 20-1034.

The Hague Convention on the Civil Aspects of International Child Abduction requires that children be returned to their country of habitual residence so that custody disputes can be resolved there — but a child need not be returned if there is a grave risk that it would expose the child to physical or psychological harm. Once a district court finds that this risk exists, is it required to consider whether there are ways to ameliorate the risk and so allow return of the child?

Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566.

In a lawsuit against a foreign nation under the Foreign Sovereign Immunities Act, how should the court determine what choice-of-law rules to apply?

Labor & Employment

Torres v. Texas Dep’t of Public Safety, 20-603.

The federal Uniformed Services Employment and Re-employment Rights Act of 1994 allows veterans to sue, in state court only, for employment discrimination based on their military service. Does Congress’s War Power allow it to abrogate state sovereign immunity for actions of this kind?

United States v. Washington, No. 21-404.

40 U.S.C. 3172(a) allows States to apply their workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” Does that allow a State to enact workers’ compensation rules that apply only to federal contract workers at a single, specified federal facility?

Military Justice

Torres v. Texas Dep’t of Public Safety, 20-603.

The federal Uniformed Services Employment and Re-employment Rights Act of 1994 allows veterans to sue, in state court only, for employment discrimination based on their military service. Does Congress’s War Power allow it to abrogate state sovereign immunity for actions of this kind?

Personal Jurisdiction

Mallory v. Norfolk Southern Railway Co., No. 21-1168.

Does due process allow a state to require corporations to consent to general personal jurisdiction in the state in order to do business there?

Railroads

LeDure v. Union Pac. R.R. Co., No 20-807.

The federal Locomotive Inspection Act regulates locomotives that are “in use.” Under what circumstances, if any, does that include a locomotive that is temporarily stopped in a railyard during a journey in interstate commerce?

Securities

SEC v. Cochran, No. 21-1239.

The Securities Exchange Act provides for direct judicial review of decisions by the Commission, including in cases that the Commission initially assigns to an administrative law judge. Does that deprive the federal courts of jurisdiction to hear a separate lawsuit seeking to enjoin SEC administrative proceedings before an ALJ?

Taxation

Bittner v. United States, No. 21-1195.

The Bank Secrecy Act and its implementing regulations require taxpayers to file annual reports of their interests in foreign bank accounts, and provide penalties for each violation. If a taxpayer fails to report, has he or she committed a separate violation for each foreign bank account, or only a single violation for filing an incomplete report?

Boechler, PC v. Commissioner, No. 20-1472.

The Tax Code gives a taxpayer 30 days to seek review in the Tax Court of an IRS determination regarding unpaid taxes. Is that deadline jurisdictional in nature?

Veterans Benefits

Arellano v. McDonough, No. 21-432.

In order to receive disability compensation effective as of a veteran’s discharge, the veteran must apply for benefits within one year after discharge. Is that deadline subject to equitable tolling?

George v. McDonough, No. 21-234.

By statute, an agency decision on veterans benefits can be revised if it is based on “clear and unmistakable error.” Under that standard, when the courts invalidate a veterans-benefits regulation as inconsistent with the governing statute, may previous agency decisions applying the invalidated regulation be revised?

Services and Industries

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