Certiorari Grants 2020 to 2021

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?

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?

Badgerow v. Walters, No. 20-1143.

When a motion to confirm or vacate an arbitration award does not facially present any ground for federal jurisdiction, can federal jurisdiction be based on the nature of parties’ underlying dispute?

• 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?

Cummings v. Premier Rehab Keller, PLLC, No. 20-219.

Title VI of the Civil Rights Act allows successful plaintiffs to recover “compensatory damages” for racial discrimination, and this remedy has been carried over into other federal anti-discrimination statutes. Does “compensatory damages” include compensation for emotional distress?

CVS Pharmacy, Inc. v. Doe, No. 20-1374.

The Affordable Care Act prohibits discrimination on the basis of disability, and incorporates the enforcement mechanisms of other anti-discrimination statutes, including the Rehabilitation Act. Does the Rehabilitation Act, and by extension the ACA, provide a disparate-impact cause of action for claims of disability discrimination?

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?

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?

United States v. Taylor, No. 20-1459.

The federal Hobbs Act prohibits interference with commerce by threats or violence, and defines “robbery” as the unlawful taking of personal property “by means of actual or threatened force, or violence, or fear of injury.” Does attempted “robbery” of this kind qualify as a “crime of violence,” for purposes of the federal statute prohibiting possession of a firearm in furtherance of a crime of violence?

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?

• 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?

Shinn v. Ramirez, No. 20-1009.

Under the Antiterrorism and Effective Death Penalty Act, can a habeas petitioner’s failure to develop the basis for a habeas claim in state court be excused due to the ineffective assistance of post-conviction counsel?

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?

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?

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?

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?

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?

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?

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?

Hughes v. Northwestern University, No. 19-1401.

When an ERISA plaintiff alleges that a plan fiduciary breached the duty of prudence by paying (or charging plan participants) fees that were substantially higher than those for alternative investment products, under what circumstances (if any) must the court consider the explanation for the amount of these fees in deciding whether to dismiss the complaint?

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?

City of Austin v. Reagan National Advertising of Texas, Inc., No. 20-1029.

Austin, Texas, allows digitized billboards only if they advertise goods or services located on the same premises as the billboard; a billboard that advertises any other goods or services may not be digitized. Is that unconstitutional discrimination based on the content of speech?

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?

Carson v. Makin, No. 20-1088.

Does the First Amendment permit a State to provide funding for private schools — including those operated by religious organizations — but only if the schools refrain from teaching any religious material?

American Hospital Ass’n v. Becerra, No. 20-1114.

Do the courts have statutory authority to review the Department of Health and Human Services’ decision in 2018 and 2019 to reduce the Medicaid compensation rates the government pays for pharmaceuticals to certain hospitals? If so, did HHS act within its statutory authority in reducing the payments?

Gallardo v. Marstiller, No. 12-1263.

When a Medicaid patient wins a tort recovery that includes compensation for medical expenses, the federal Medicaid Act allows the relevant State’s Medicaid program to recover those funds. May a Medicaid program recover for past, already-paid medical expenses out of a patient’s tort recovery for future medical expenses?

Becerra v. Empire Health Foundation, No. 20-1312.

In calculating whether a hospital is entitled to extra Medicare payments as a result of serving a significantly disproportionate number of low-income patients, may the government count the number of days spent in the hospital by patients who meet the income criteria for Medicare or Medicaid, but who have exceeded the maximum length of hospital stay that is compensable by those programs?

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?

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?

Johnson v. Arteaga-Martinez, No. 19-896.

When an alien is ordered removed from the country and detained for several months pending removal, under what circumstances (if any) is he entitled to be released on bond, and what bond procedures are required?

Garland v. Gonzalez, No. 20-322.

• 8 USC 1252(f)(1) provides that federal courts lack jurisdiction to enjoin most proceedings for removal of aliens from the country, except “with respect to … an individual alien against whom proceedings … have been initiated.” Does that permit a class-action injunction requiring bond hearings for aliens who are detained pending removal from the country?
• When an alien is ordered removed from the country and detained for several months pending removal, under what circumstances (if any) is he entitled to be released on bond, and what bond procedures are required?

Patel v. Garland, No. 20-979.

When the executive branch determines that an alien does not meet the statutory criteria to be eligible to apply for discretionary immigration relief, do the Courts of Appeals have jurisdiction to review the determination that the alien does not meet the criteria?

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?

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?

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”?

Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20-915.

17 U.S.C. 411 provides that a copyright is invalid if the application included knowingly inaccurate information, and if the Register of Copyrights would have refused registration had it known of the inaccuracy. When an allegation of inaccuracy in a copyright application is raised in litigation, the statute requires the court to request that the Register of Copyrights advise whether the alleged inaccuracy would have led to refusal of registration. In order to trigger this referral requirement, must there be some indication that applicant knew of the alleged inaccuracy?

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?

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?

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?

Federal Bureau of Investigation v. Fazaga, No. 20-828.

• The Foreign Intelligence Surveillance Act (FISA) allows a party to move to suppress evidence that the government collected in violation of FISA, and authorizes a court to decide such a motion in camera and ex parte. In a case where these procedures apply, do they displace a court’s common-law authority to dismiss the case entirely to avoid the disclosure of state secrets?
• When the substance of a plaintiff’s claim is that the government surveilled him in violation of FISA, and the plaintiff moves pursuant to FISA to exclude the evidence that resulted from the allegedly illegal surveillance, does ruling on that motion require the court to decide the merits of the case?

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?

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?

Does the Constitution prohibit all prohibitions on elective abortions before the fetus is viable?

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?

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?

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?

Pivotal Software, Inc. v. Superior Court, No. 20-1541.

The Private Securities Litigation Reform Act requires an automatic stay of proceedings in certain securities cases during the pendency of a motion to dismiss. Does that stay requirement apply to actions brought in state court?

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?

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?

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?