Editor's Note :

Editor's Note :

The court will be issuing opinions on Friday at 10 a.m. We will begin live-blogging at 9:30 a.m.
Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.
The Supreme Court proceedings and orders in the legal challenges to the administration’s entry ban are available at this link.

Petitions We’re Watching

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View this list sorted by case name.

Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
16-111 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.
16-677 Mathis v. Shulkin Whether the U.S. Court of Appeals for the Federal Circuit erred by creating a presumption of competency for all U.S. Department of Veterans Affairs medical evaluators, (including physician assistants, nurses and other non-physician health practitioners) to provide an expert opinion on any medical issue, thereby placing the burden on disabled veteran claimants, most of whom are pro se and many of whom suffer “from very significant psychiatric and physical disabilities,” to rebut the presumption by raising a competency objection, by ascertaining evidence of the evaluator’s lack of qualifications, and then by articulating specific reasons in support of the competency challenge.
16-847 Sessions v. Binderup Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.
16-894 Peruta v. California Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.
16-983 Binderup v. Sessions Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”
16-992 Pavan v. Smith Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother's spouse entered as the second parent on their child's birth certificate.
16-1075 Coutts v. Watson Whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding.
16-1077 Bay Point Properties v. Mississippi Transportation Commission (1) Whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated; and (2) whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement.
16-1208 Bourne Valley Court Trust v. Wells Fargo Bank, N.A. Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Nevada's statute authorizing nonjudicial foreclosure of association liens, Nev. Rev. Stat. §§ 1116.3116 et seq., was facially unconstitutional under the due process clause for not requiring direct notice to junior lienholders, when the only state action involved was the enactment of the statute regulating the private sale.
16-1276 Digital Realty Trust v. Somers Whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the act’s definition of “whistleblower.”
16-7835 Johnson v. Alabama Whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

Petitions Featured as Petition of the Day

Docket Case Page Issue(s)
16-8327 Lo v. U.S. Whether a district court may order an in personam forfeiture money judgment against an impecunious criminal defendant in the absence of a statute expressly authorizing such a form of punishment.
16-1207 Bellant v. Snyder Whether a law that removes all governmental authority from locally-elected officials in municipalities that have disproportionately large minority populations, and thereby denies the residents of those municipalities the ability to elect representatives of their choice to govern them, is subject to scrutiny under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301.
16-1206 Batato v. U.S. (1) Whether a district court, consistent with Article III of the United States Constitution, can exercise in rem jurisdiction over foreign property that is within the exclusive custody and control of foreign courts; (2) whether a district court, consistent with 28 U.S.C. § 2466 and due process, can resolve factual disputes and make adverse credibility determinations at the pleading stage in finding that a claimant is a disentitled fugitive; and (3) whether a foreign national residing abroad should be deemed to have the intent “to avoid criminal prosecution” and be disentitled as a fugitive, consistent with 28 U.S.C. § 2466 and due process, merely because avoiding criminal prosecution is a reason (not the sole or primary reason) why the foreign national has not entered the United States while aware that he faces criminal prosecution here.
16-1198 Patriotic Veterans v. Hill (1) Whether Indiana’s Automatic Dialing Machine Statute creates a content-based restriction that cannot survive strict scrutiny under Reed v. Town of Gilbert, Arizona; and (2) whether the ADMS is a valid time, place and manner restriction.
16-1197 QinetiQ U.S. Holdings & Subsidiaries v. Commissioner of Internal Revenue Whether an Internal Revenue Service Notice of Deficiency, just like any other final agency action, is subject to the reasoned-explanation requirement of the Administrative Procedure Act, 5 U.S.C. § 706(2).
16-1190 Davis v. U.S. Whether the government violates a criminal defendant's right to due process when it immunizes a significant prosecution witness but refuses to immunize a directly contradictory defense witness solely on the ground that the prosecutor disbelieves the defense witness' proffered testimony.
16-1189 E.I. DuPont de Nemours and Co. v. Smiley (1) Whether the Fair Labor Standards Act prohibits an employer from using compensation paid to employees for non-compensable, bona fide meal breaks that it included in their regular rate of pay as a credit against compensation owed for work time; and (2) whether an agency's interpretation of a statute advanced for the first time in litigation is entitled to Skidmore v. Swift & Co. deference.
16-1180 Brewer v. Arizona Dream Act Coalition (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in creating an immigration-specific rule under which state police power regulations that “arrang[e]” federal immigration classifications are pre-empted, even if pre-emption was not “the clear and manifest purpose of Congress”; and (2) whether the 9th Circuit erred in assuming that the Deferred Action for Childhood Arrivals program, an executive-branch policy of non-enforcement, was valid “federal law” capable of pre-empting a state police power regulation.
16-1167 Ohio v. Moore (1) Whether Graham v. Florida's categorical rule applies to consecutive, fixed-term prison sentences for multiple non-homicide offenses committed by a juvenile that result in a lengthy aggregate sentence; (2) if Graham's categorical rule applies to consecutive, fixed-term prison sentences for multiple non-homicide offenses, at what point must a juvenile be provided “some meaningful opportunity for release”; and (3) whether Graham applies retroactively to juveniles sentenced to consecutive, fixed-term prison sentences for multiple non-homicide offenses that result in a lengthy aggregate sentence.
16-1153 Livingwell Medical Clinic v. Becerra (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.
16-1150 Hall v. Hall Whether the clarity Gelboim v. Bank of America gave to multidistrict cases should be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case.
16-1148 Evergreen Partnering Group v. Pactiv Corp. (1) Whether Eastman Kodak Industry Co. v. Image Technical Services, Inc.'s Rule 56 standard or the more stringent “tends to exclude the possibility of independent action” standard articulated in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. applies where the alleged conduct, unlike in Matsushita, is not inherently pro-competitive and is not economically or otherwise irrational; and (2) whether the U.S. Court of Appeals for the 1st Circuit improvidently applied the heightened “tends to exclude” test to the petitioner's concerted refusal to deal claim, in circumstances in which it is not warranted, and thus erroneously denied the plaintiff its right to have its case heard by the trier of fact.
16-1146 A Woman’s Friend Pregnancy Resource Clinic v. Becerra (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court's decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious non-profits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.
16-1141 Payne v. West Virginia Whether the Fourth Amendment prohibits a warrantless search of a guest's container found inside a home or vehicle searched by officers relying on consent given by the home or vehicle owner, who lacked actual authority to consent to the search of the container.
16-1140 National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.
16-1137 616 Croft Ave., LLC v. City of West Hollywood Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management District, Dolan v. City of Tigard and Nollan v. California Coastal Commission.
16-1130 Santander Holdings USA v. U.S. Whether foreign tax payments should be treated as “expenses” and thereby factored into a court's pre-tax profitability calculation under the economic substance test.
16-1125 Lacaze v. Louisiana (1) Whether, under McDonough Power Equipment, Inc. v. Greenwood, “a valid basis for a challenge for cause” requires a showing that a correct response would have subjected the juror to mandatory or per se disqualification, or whether it requires a showing that a hypothetical reasonable judge would have granted a motion to dismiss the juror for cause; (2) whether the McDonough test applies only in cases of deliberate dishonesty by the juror or whether it applies also in cases of misleading omissions; and (3) whether a trial judge's involvement as a witness in a police investigation before and during trial, and his failure to even disclose it, creates an “unconstitutional potential for bias” under Williams v. Pennsylvania.
16-1102 Samsung Electronics Co., Ltd. v. Apple Inc. (1) Whether the court's decisions in Graham v. John Deere Co. and KSR International Co. v. Teleflex Inc. require a court to hold patents obvious as a matter of law under 35 U.S.C. § 103 where the patents make at most trivial advances over technologies well-known to a person of skill in the art; (2) whether the court's decision in eBay Inc. v. MercExchange, L.L.C. requires application of the four-factor test for injunctions in accordance with traditional equitable principles, and therefore requires more than merely “some connection” between an infringing feature and asserted irreparable harm to support issuance of an injunction for patent infringement; and (3) whether the court's decision in Warner-Jenkinson Co. v. Hilton Davis Chemical Co. requires evidence that an accused product meets all elements of the relevant claim to support entry of a judgment of patent infringement.
16-1094 Republic of Sudan v. Harrison Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state's ministry of foreign affairs “via” or in “care of” the foreign state's diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
16-1087 Carvalho v. North Carolina (1) Whether the burden of proof concerning the reasons for pretrial delay rests (a) with the state, to show that the reasons for delay were justified, as eleven circuits and many state courts of last resort have held; or (b) with the defendant, to show that the reasons for delay were unjustified, as the court below held; and (2) whether a defendant who was incarcerated during a nearly-nine-year pretrial delay must also produce “affirmative proof of prejudice” for Barker v. Wingo's prejudice factor to weigh in his favor.
16-1071 Sokolow v. Palestine Liberation Organization Whether the Fifth Amendment's due process clause precludes federal courts from exercising personal jurisdiction in this suit by American victims of terrorist attacks abroad carried out by the Palestinian Authority and the Palestine Liberation Organization.
16-1067 Murphy v. Smith Whether the parenthetical phrase “not to exceed 25 percent,” as used in 42 U.S.C. § 1997e(d)(2), means any amount up to 25 percent (as four circuits hold), or whether it means exactly 25 percent (as the U.S. Court of Appeals for the 7th Circuit holds).
16-1027 Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.
16-1022 Bell v. McAdory Whether the denial of a motion under Federal Rule of Appellate Procedure 4(a)(5) is a separately appealable final order, as defined by 28 U.S.C. § 1291.
16-1009 Aksu v. California What is the standard by which appellate courts review a trial court's holding that a defendant voluntarily consented to a warrantless search for Fourth Amendment purposes.
16-999 Negrón v. U.S. Whether lower courts are bound by the rationale of Justice Sotomayor's lone concurrence in Freeman v. United States – with which all other justices in Freeman expressly disagreed – on the theory that it is the “narrowest grounds” of a plurality opinion under Marks v. United States.
16-961 Dalmazzi v. U.S. (1) Whether the Court of Appeals for the Armed Forces erred in holding that the petitioner's challenge to Judge Martin T. Mitchell's continued service on the U.S. Air Force Court of Criminal Appeals, after he was nominated and confirmed to the Article I U.S. Court of Military Commission Review, was moot – because his CMCR commission had not been signed until after the U.S. Air Force CCA decided her case on the merits, even though she moved for reconsideration after the commission was signed; (2) whether Judge Mitchell's service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii), which requires express authorization from Congress before active-duty military officers may hold a “civil office,” including positions that require “an appointment by the President by and with the advice and consent of the Senate”; and (3) whether Judge Mitchell's simultaneous service on both the CMCR and the AFCCA violated the appointments clause.
16-790 Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.
16-673 Gordon v. Consumer Financial Protection Bureau (1) Whether a federal official may retroactively ratify an ultra vires government action when: (a) no federal official was authorized to perform the act at the time it was initially undertaken; (b) the purported ratification does not include an examination of any facts related to the act performed; or (c) the ratification purports to encompass not only the initial act but also federal court rulings entered in response to the act; and (2) whether federal courts possess subject-matter jurisdiction under Article III of the Constitution to hear a case filed at the behest of an individual who, from the time suit was filed until judgment was entered, lacked authority to vindicate the executive branch's interest in seeing that the law is obeyed.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
22O147 New Mexico v. Colorado (1) Whether Colorado is liable under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(a), and common law for all costs, including prejudgment interest, incurred by New Mexico in responding to releases or threatened releases of hazardous substances from the Gold King Mine, the Sunnyside Mine, or the American Tunnel to the date of judgment; (2) whether Colorado is liable under CERCLA, 42 U.S.C. § 9613(g)(2), and common law, for all response costs that will be incurred by New Mexico in responding to releases or threatened releases of hazardous substances from the Gold King Mine, the Sunnyside Mine, or the American Tunnel; (3) whether Colorado is in violation of the Resource Conservation and Recovery Act's imminent and substantial endangerment provision, 42 U.S.C. § 6972(a)(1)(B), until it ceases the disposal of hazardous substances from the Gold King Mine and the Sunnyside Mine, including, but not limited to, acid wastewater, mine sludge, mine-dump runoff, and metals into the Animas River watershed; (4) whether Colorado has negligently, recklessly and willfully authorized and allowed the discharge of toxic mine waste directly into the Animas River in a manner that has injured and continues to threaten the health, safety, and comfort of downstream New Mexico residents; (5) whether the court should award New Mexico compensatory, consequential, and punitive damages caused by Colorado's negligent, reckless, and willful conduct, including, but not limited to, investigation, clean-up, and remedial costs, economic loss, diminution in value, and stigma damages; (6) whether the court should order Colorado to abate the ongoing public nuisance in the Upper Animas Mining District and the Animas River within Colorado; and (7) whether Colorado is liable for all costs incurred and costs that may be incurred by New Mexico to abate the nuisance in the Animas and San Juan Rivers within New Mexico.
16-6387 Loomis v. Wisconsin (1) Whether it is a violation of a defendant's constitutional right to due process for a trial court to rely on the risk assessment results provided by a proprietary risk assessment instrument such as the Correctional Offender Management Profiling for Alternative Sanctions at sentencing because the proprietary nature of COMPAS prevents a defendant from challenging the accuracy and scientific validity of the risk assessment; and (2) whether it is a violation of a defendant's constitutional right to due process for a trial court to rely on such risk assessment results at sentencing because COMPAS assessments take gender and race into account in formulating the risk assessment.
16-1215 Lamar, Archer & Cofrin, LLP v. Appling Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor's ... financial condition” within Section 523(a)(2) of the Bankruptcy Code.
16-1043 Clark v. Virginia Department of State Police (1) Whether, by enacting 38 U.S.C. § 4323(b)(2) in 1998, Congress lawfully subjected state employees to suit in state court under the Uniformed Services Employment and Reemployment Rights Act of 1994 pursuant to a valid exercise of Congress’s war powers that was consistent with the framework and design of the Constitution; (2) whether Congress lawfully abrogated any sovereign immunity the Virginia Department of State Police purportedly retained with respect to USERRA actions in state court when Congress enacted 38 U.S.C. § 4323(b)(2); and (3) whether the Supreme Court of Virginia erroneously affirmed the Circuit Court of Chesterfield County's decision to sustain the Virginia Department of State Police's amended special plea of sovereign immunity and dismiss petitioner's complaint.
16-1011 WesternGeco LLC v. ION Geophysical Corp. Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases where patent infringement is proven under 35 U.S.C. § 271(f).
16-970 Rinehart v. California Whether the Supreme Court of California erred in holding, in conflict with decisions of the U.S. Courts of Appeals for the 8th and Federal Circuits and the Colorado Supreme Court, that the Mining Law of 1972, as amended, does not pre-empt state bans of mining on federal lands despite being “an obstacle to the accomplishment and execution of the full purposes and objectives” of that law.
16-768 Snyder v. Doe Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders' activities within school zones imposes “punishment” in violation of the ex post facto clause.
16-668 Magee v. Coca-Cola Refreshments USA Whether Title III of the Americans with Disabilities Act of 1990 applies only to physical spaces that people can enter.
16-534 Rubin v. Islamic Republic of Iran (1) Whether 28 U.S.C. § 1610(g) provides a freestanding attachment immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether assets are otherwise subject to execution under Section 1610; and (2) whether the commercial use exception to execution immunity, codified at 28 U.S.C. § 1610(a), applies to a foreign sovereign's property located in the United States only when the property is used by the foreign state itself.
16-477 New Jersey Thoroughbred Horsemen’s Association v. National Collegiate Athletic Association Whether a federal statute that prohibits adjustment or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States and Printz v. United States.
16-476 Christie v. National Collegiate Athletic Association Whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.
16-334 Bank Melli v. Bennett (1) Whether Section 1610(g) of the Foreign Sovereign Immunities Act establishes a freestanding exception to sovereign immunity, as the U.S. Court of Appeals for the 9th Circuit held below, or instead merely supersedes First National City Bank v. Banco Para El Comercio Exterior de Cuba’s presumption of separate status while still requiring a plaintiff to satisfy the criteria for overcoming immunity elsewhere in Section 1610, as the U.S. Court of Appeals for the 7th Circuit has held and the United States has repeatedly urged; and (2) whether a court should apply federal or state law to determine whether assets constitute “property of” or “assets of” the sovereign under the Terrorism Risk Insurance Act and Section 1610(g), and whether those provisions require that the sovereign own the property in question, as the U.S. Court of Appeals for the District of Columbia Circuit has held and the United States has repeatedly urged, contrary to the decision below.
16-26 Bulk Juliana, Ltd. v. World Fuel Services (Singapore) PTE, Ltd. (1) Whether foreign parties, who have no actual or apparent authority to bind a vessel, can contractually bestow presumptive authority on the time charterer, without the vessel owner's knowledge or involvement, and thereby create a maritime lien that would not otherwise arise without the contract; (2) whether the exercise of in rem jurisdiction premised on the existence of a maritime lien that only exists by virtue of a contractual choice of U.S. law entered into by parties without authority to bind the vessel, and that would not exist in the absence of the contract, violates the axiom that jurisdiction that would not otherwise exist cannot be conferred by the parties' consent; (3) whether a contract between a marine fuel supplier and a time charterer selecting U.S. law as the law governing an entirely foreign transaction, for the purpose of creating a maritime lien that would not arise but for the contract, violates the prescription that two contracting parties cannot encumber the property of a third party; and (4) whether the plain and ordinary meaning of the “General Maritime Law of the United States” includes the statutory remedies afforded by the U.S. maritime lien statutes.
15-1464 Warfaa v. Ali Whether a claim against an individual defendant who committed war crimes, crimes against humanity, and other serious violations of international law abroad touches and concerns the United States such that the Alien Tort Statute that confers federal jurisdiction over the claim where that defendant sought safe haven in the United States, obtained lawful permanent residency in the United States, and continues to reside in the United States, availing himself of the benefits and privileges associated with living in the United States.
15-1439 Cyan v. Beaver County Employees Retirement Fund Whether state courts lack subject matter jurisdiction over covered class actions that allege only Securities Act of 1933 claims.
15-1345 Ali v. Warfaa Whether a foreign official's common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiff's allegations that those official acts violated jus cogens norms of international law.
15-1305 BeavEx Inc. v. Costello Whether the Federal Aviation Administration Authorization Act preempts generally-applicable state laws that force motor carriers to treat and pay all drivers as “employees” rather than as independent contractors.
Term Snapshot
Awards