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?

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?

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?

Federal Courts

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?

Immigration

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?

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?

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?

Services and Industries

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