Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
15-7848 Elmore v. Holbrook (1) Whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel's post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. § 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice from unconstitutional shackling.

Petitions Featured as Petition of the Day

Docket Case Page Issue(s)
15-7073 Chase v. Mississippi (1) Whether it violates the Eighth and Fourteenth Amendments, as understood in Atkins v. Virginia and Hall v. Florida, for a State court to refuse to accept data from clinical interviews with persons who knew a death-sentenced prisoner during the “developmental period” where the uncontested testimony and scientific and clinical consensus finds such data to be useful in determining the second criteria for intellectual disability, i.e., adaptive functioning deficits; (2) whether it violates the Eighth and Fourteenth Amendments, as understood in Atkins and Hall, for a State court to impose a requirement that a death-sentenced prisoner present “normed data” from clinical instruments in order to prove the second criteria for intellectual disability under Atkins; and (3) whether it violates the Fourteenth Amendment Due Process Clause for a State court to create a novel requirement that a death-sentenced prisoner present “normed data” from clinical instruments in order to prove the second criteria for intellectual disability under Atkins, and impose that requirement to deny relief to a prisoner who had no notice of the requirement during his evidentiary hearing.
15-1525 Sergeants Benevolent Ass’n Health and Welfare Fund v. Sanofi-Aventis U.S. LLP Whether, where purchasers allege that a manufacturer misrepresented a drug's safety to prescribing doctors to increase sales, the presence of the doctors breaks the causal chain—for purposes of the Racketeering Influenced and Corrupt Organizations Act causation—between the misrepresentations and the purchasers' economic injuries.
15-1504 Overton v. U.S. Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.
15-1503 Turner v. U.S. (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.
15-1500 Lewis v. Clarke Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.
15-1498 Lynch v. Dimaya Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.
15-1496 Lynch v. Lopez-Islava Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.
15-1482 Bondi v. Dana’s Railroad Supply Whether Florida's nearly thirty-year-old Surcharge Statute is a facially unconstitutional speech restriction, as the Eleventh Circuit held, or whether such a law regulates only conduct and does not even implicate the First Amendment, as the Second and Fifth Circuits have held.
15-1461 Meshal v. Higgenbotham Whether a U.S. citizen may bring a Bivens claim in the absence of any other remedy when federal law enforcement officers unlawfully detain and grossly mistreat him during a criminal counterterrorism investigation abroad.
15-1455 Rowell v. Pettijohn Whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate only economic conduct (as the Second and Fifth Circuits have held).
15-1443 The Bank of New York Mellon v. American Fidelity Assurance Co. Whether, under this Court's decision in Daimler AG v. Bauman, personal jurisdiction may be asserted over a corporate defendant only in the defendant's place of incorporation or principal place of business, except in extraordinary circumstances.
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.
15-1420 Schulman v. LexisNexis Risk and Information Analytics Group Whether, in a class action settlement providing injunctive relief not authorized by statute and releasing or impairing the money-damages claims of absent or objecting members, class certification under Federal Rule of Civil Procedure 23(b)(2) and the denial of the right to opt out as to the damages claims violate Rule 23 or the Due Process Clause of the Fifth Amendment.
15-1419 Kreipke v. Wayne State University (1) Whether Wayne State University (WSU), a unique, autonomous institution, free from all relevant state control, who receives a minority share of its funding from the State, and who is responsible for its own debts, is a “person” under the False Claims Act (FCA); and (2) whether WSU's Board of Governors, a creation of the State and a properly formed corporation in every respect, is a “person” under the FCA.
15-1412 Mech v. School Board of Palm Beach County Whether the decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc. allows the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection.
15-1409 New Mexico Association of Nonpublic Schools v. Moses Whether applying a Blaine Amendment to exclude religious organizations from a state textbook lending program violates the First and Fourteenth Amendments.
15-1408 Masimo Corp. v. Ruhe (1) Whether the Ninth Circuit properly concluded—in conflict with the decisions of other courts—that an arbitrator's refusal to refer a disqualification motion to a neutral decision maker, reliance on a party's disqualification motion as basis for imposing punitive damages, or other circumstances like those presented here, where the arbitrator's brother had served as lead counsel to petitioner's chief competitor in recent litigation against petitioner, does not establish “evident partiality” justifying vacatur of the award; and (2) whether the Ninth Circuit properly held—in conflict with the decisions of other courts—that an appellee waives an argument pressed in, but not passed on by, the district court by not advancing it as an alternative ground for affirming the judgment below.
15-1406 Goodyear Tire & Rubber Co. v. Haeger (1) Whether a federal court is required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process; and (2) whether a court may award attorneys' fees under its inherent powers as sanctions against a client for actions by its attorney that are not fairly attributable to the client's own subjective bad faith.
15-1399 Principal Investments v. Harrison (1) Whether, given “the presumption . . . that the arbitrator should decide ‘allegations of waiver,’” Howsam v. Dean Witter Reynolds, Inc., a court violates the Federal Arbitration Act (FAA) by presuming that allegations of waiver based upon a party's pre-arbitration litigation conduct should be decided by the court, not the arbitrator; and (2) whether, in light of the holding in AT&T Mobility LLC v. Concepcion, that “[w]hen state law prohibits outright the arbitration of a particular type of claim, the . . . conflicting rule is displaced by the FAA,” the FAA preempts a state's waiver doctrine that categorically prohibits arbitration of abuse-of-process claims arising from prior litigation.
15-1397 Robinson v. North Carolina Whether, given that the state law's designated trier of fact concluded that the four petitioners were each ineligible for the death penalty under the state law, the state supreme court erred under the Double Jeopardy Clause as explained in Bullington v. Missouri, by remanding for further proceedings that could expose petitioners to the death penalty.
15-1391 Expressions Hair Design v. Schneiderman Whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held).
15-1389 Anderson v. Carter (1) Whether a sufficiently tangible and concrete reputational injury meets the “collateral consequences” exception to the mootness doctrine, Carafas v. LaVallee; and (2) if this case is not moot, whether Petitioner failed to plead a cause of action for retaliation in violation of the First Amendment simply because he never used the word “retaliation” in his pro se Complaint.
15-1388 NCAA v. O’Bannon (1) Whether the Ninth Circuit erred in holding that NCAA rules defining “the eligibility of participants” in NCAA-sponsored athletic contests, NCAA v. Board of Regents of Univ. of Okla., violated the Sherman Act; and (2) whether the First Amendment protects a speaker against a state-law right-of-publicity claim based on the realistic portrayal of a person in an expressive work (here, a student-athlete in a college-sports videogame).
15-1387 U.S. Forest Service v. Cottonwood Environmental Law Center (1) Whether respondent has Article III standing to challenge the Forest Service's failure to reinitiate Section 7 of the Endangered Species Act (ESA) consultation on the Lynx Amendments, which were completed in 2007, after the Fish and Wildlife Service designated additional critical habitat for the lynx in 2009, when respondent cannot identify any member who has or will suffer a concrete injury as a result; (2) whether respondent's challenge to the Forest Service's programmatic amendments is ripe for review when respondent failed to challenge any site-specific project authorized under the amended plan provisions; and (3) whether Section 7(a)(2) of the ESA requires the Forest Service to reinitiate consultation on a completed programmatic agency action that has no on-the-ground effects when a new species is listed or new critical habitat is designated.
15-1379 Jones v. Hardwick (1) Whether the Eleventh Circuit may reject the state court's findings of fact under Anderson v. Bessemer City, where the defendant's post conviction hearing was full and fair and the findings were not clearly erroneous; (2) whether, in granting habeas corpus relief to a state prisoner under pre-Antiterrorism and Effective Death Penalty Act, the Eleventh Circuit impermissibly relieved the defendant of his burden of proof under Strickland v. Washington; (3) whether the Eleventh Circuit may grant habeas relief under Strickland not withstanding that (a) the defendant waived presentation of mitigation and impeded counsel's attempts to do so, or (b) the evidence the defendant claims should have been presented was either not available, not credible, or not mitigating; and (4) whether Schriro v. Landrigan requires denial of Hardwick's habeas claim where counsel's unchallenged and credible testimony was that his client instructed him not to present any evidence in mitigation.
15-1375 Sousa v. Branch Banking and Trust Company (1) Whether NRS §40.459(1)(c), which limits the amount of a deficiency judgment that a person seeking the judgment can recover if that person acquired the right to obtain the deficiency judgment from a person who had that right is preempted by the Financial Institutions and Recovery of 1989 because the notes or mortgages in question were acquired from the Federal Deposit and Insurance Corporation; and (2) whether the NRS §40.459(1)(c) limitations on deficiency claims violate the Contract Clause of the U.S. and/or Nevada Constitutions when the notes or mortgages in question were acquired by a Third Party Purchaser prior to the effective date of the statute.
15-1373 SSC Mystic Operating Company, LLC v. National Labor Relations Board (1) Whether the National Labor Relation Board's interpretation of § 153(b), which authorizes the Board to delegate certain statutory powers to its regional directors, is entitled to any level of judicial deference; and (2) whether the Board's interpretation of § 153(b), that regional directors can exercise the statutory powers delegated to them by the Board regardless of whether the Board has a quorum, should be upheld.
15-1358 Ziglar v. Turkmen (1) Whether the Court of Appeals, in finding that Respondents' Fifth Amendment claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality where Respondents challenge the actions taken in the immediate aftermath of the attacks of September 11, 2001 regarding the detention of persons illegally in the United States whom the FBI had arrested in connection with its investigation of the September 11 attacks, thereby implicating concerns regarding national security, immigration, and the separation of powers; (2) whether the Court of Appeals, in denying qualified immunity to Petitioner Ziglar erred: (A) by failing to focus on the specific context of the case to determine whether the violative nature of Mr. Ziglar's specific conduct was at the time clearly established, instead defining the “established law” at the high level of generality that this Court has warned against; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like Petitioner Ziglar was not clearly established at the time in question, Respondents nevertheless could maintain a § 1985(3) claim against him so long as his conduct violated some other clearly established law; and (3) whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal , and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims.
15-1346 GEICO General Insurance Co. v. Calderon (1) Whether insurance fraud investigators are covered by the administrative exemption from the Fair Labor Standards Act's overtime-pay requirement, 29 U.S.C. § 213(a), as the Sixth Circuit has held in conflict with the Fourth Circuit's judgment below; and (2) whether an exemption to the Fair Labor Standard Act's overtime-pay requirement must be narrowly construed and established by clear-and-convincing evidence, as the Fourth Circuit held, in conflict with fundamental principles of statutory construction and the decisions of every other court of appeals.
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.
15-1336 Air Liquide Industrial U.S. LP v. Garrido (1) Whether the California Court of Appeal erred by holding, in direct conflict with DirectTV v. Imburgia, that the parties' agreement to apply the Federal Arbitration Act (“FAA”) to govern their arbitration contract was unenforceable because the FAA's transportation worker exemption applied; and (2) whether the California Court of Appeal erred by holding, in direct conflict with the Second, Eighth, and Eleventh Circuits, that an employee was exempt from the FAA as a “transportation worker” even though he was not employed in the transportation industry.
15-1330 MCM Portfolio LLC v. Hewlett-Packard Company (1) Whether inter partes review (IPR) violates Article III of the Constitution; and (2) whether IPR violates the Seventh Amendment to the Constitution.
15-1317 Vanessa G. v. Tennessee Dep’t of Children’s Services Whether the right to counsel in a termination of parental rights proceeding includes the right to the effective assistance of counsel.
15-1315 Armel v. Virginia Whether the Virginia Supreme Court committed error by denying petitioner’s appeal, implicitly holding the Virginia anti-sodomy statute to be constitutional as applied.
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.
15-1281 Hartley v. Sanchez Whether individual detectives and an investigator are entitled to qualified immunity from a 42 U.S.C. § 1983 claim for malicious prosecution based on allegations they knew or should have known the criminal suspect had cognitive limitations making his confession to a crime untrustworthy and not appropriately relied upon by law enforcement to support his arrest.
15-1257 Akbar v. U.S. Whether it violates the constitutional separation-of-powers or exceeds statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.
15-1248 McLane Co. v. EEOC (1) Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review; and (2) whether the Ninth Circuit’s decision to enforce an EEOC subpoena, depending upon a notion of relevance so broad that it effectively abrogates statutory limits on the EEOC‘s investigative powers, conflicts with EEOC v. Shell Oil and the holdings of at least three other circuits.
15-1205 Shanahan v. Lora (1) Whether criminal and terrorist aliens who are subject to mandatory detention under 8 U.S.C. § 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (2) whether, in any such bond hearing, the criminal or terrorist alien is entitled to release unless the government demonstrates by clear and convincing evidence that he is a flight risk or a danger to the community.
15-1194 Packingham v. North Carolina Whether, under this Court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner – who was convicted based on a Facebook “post” in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
15-1190 Hebert v. U.S. (1) Whether petitioner’s 92-year sentence for nonviolent fraud offenses causing $16,000 in loss is unconstitutional, where, as the government and court of appeals each acknowledged below, the sentence would be substantively unreasonable, and therefore unlawful, but for the district judge’s contested murder finding; and (2) whether a criminal defendant’s Fifth and Sixth Amendment rights to a jury place any constraints on an appellate court’s ability to use judicial-found facts as the basis to affirm the substantive reasonableness, and therefore the lawfulness, of the defendant’s sentence, a question this Court acknowledged but postponed answering in Rita v. United States.
15-1167 O’Bannon v. NCAA (1) Whether, in determining an appropriate remedy for a violation of Section 1 of the Sherman Act under the “Rule of Reason,” a court may treat the restraint itself – here, the agreement among the NCAA and its members prohibiting college athlete compensation, or what the NCAA calls “amateurism” – as a legitimate procompetitive effect: and (2) whether, after finding a violation of Section 1 of the Sherman Act under the Rule of Reason, a court is restricted to awarding relief that the plaintiff proves is “virtually as effective” as the restraint in serving its alleged purposes, “without significantly increased cost.”
15-1142 West Virginia Dep’t of Health and Human Resources v. E.H. (1) Whether a court may abdicate to a state executive agency its duty under the Supremacy Clause to determine whether state law has been preempted; and (2) whether the Privacy Rule, which forbids the disclosure of a patient’s records without patient authorization, preempts West Virginia state law, which requires the disclosure of patient records without patient authorization.
15-1121 Neusoft Medical System Co., Ltd. v. NeuIsys, LLC Whether the North Carolina state courts improperly disregarded the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards by refusing to stay state court proceedings pending international arbitration in China of claims arising from a contract containing a valid arbitration clause.
15-1086 H. v. California (1) Whether a ten-year-old child in a custodial interrogation can give a voluntary, knowing and intelligent waiver of his rights against self-incrimination and to legal counsel in a criminal case, without further constitutional protections such as mandatory access to legal counsel or an unconflicted adult guardian; (2) whether the presence of petitioner’s conflicted stepmother during his interrogation tainted his purported waiver; and (3) whether petitioner voluntarily, knowingly and intelligently waived his rights under the circumstances.
15-955 Cooper v. Lee Whether 35 U.S.C. § 318(b) violates Article III of the United States Constitution, to the extent that it empowers an executive agency tribunal to assert judicial power canceling private property rights amongst private parties embroiled in a private federal dispute of a type known in the common law courts of 1789, rather than merely issue an advisory opinion as an adjunct to a trial court.
15-118 Hernández v. Mesa (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; and (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident. CVSG: 03/01/2016.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
15-1195 Amgen Inc. v. Sandoz Inc. Whether a biosimilar applicant (“Applicant”) is required by 42 U.S.C. § 262(l)(2)(A) to provide the reference product sponsor (“Sponsor”) with a copy of its biologics license application and related manufacturing information, which the statute says the Applicant “shall provide;” and (2) whether, where an Applicant fails to provide that required information, the Sponsor's sole recourse is to commence a declaratory judgment under 42 U.S.C.(l)(9)(C) and/or a patent-infringement action under 35 U.S.C. § 271(e)(2)(C)(ii).
15-1189 Impression Products v. Lexmark Int'l (1) Whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this Court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside of the United States exhausts the U.S. patent rights in that article.
15-1055 SmithKline Beecham Corp. v. King Drug Co. of Florence Whether the Third Circuit’s sweeping holding that a patentee’s grant of an exclusive license must undergo antitrust scrutiny by courts and juries - even though such a license is specifically permitted under the patent laws - is inconsistent with this Court’s decision in FTC v. Actavis and decades of this Court’s earlier precedents.
15-1045 Pennsylvania Higher Education Assistance Agency v. U.S. ex rel. Oberg Whether the Pennsylvania Higher Education Assistance Agency, a statewide agency located in the capital and unambiguously treated as an arm of the state by Pennsylvania, is an arm of Pennsylvania for purposes of federal law, or is instead an “independent political subdivision” as determined by the Fourth Circuit and its multifactor balancing test.
15-1044 Pennsylvania Higher Education Assistance Agency v. Pele Whether the Pennsylvania Higher Education Assistance Agency, a statewide agency located in the capital and unambiguously treated as an arm of the state by Pennsylvania, is an arm of Pennsylvania for purposes of federal law, or is instead an “independent political subdivision” as determined by the Fourth Circuit and its multifactor balancing test.
15-1039 Sandoz Inc. v. Amgen Inc. (1) Whether notice of commercial marketing given before Food and Drug Administration (FDA) approval can be effective; and (2) whether, in any event, it is improper to treat Section 262(l)(8)(A)—the Biologics Price Competition and Innovation Act of 2009's “Notice of commercial marketing” provision which states that a biosimilar applicant shall provide notice to the incumbent seller of the biological product “not later than 180 days before the date of the first commercial marketing of the biological product licensed under” an abbreviated pathway for biosimilars—as a stand-alone requirement and creating an injunctive remedy that delays all biosimilars by 180 days after approval.
15-1031 Howell v. Howell Whether the Uniformed Services Former Spouses’ Protection Act preempts a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, where that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability.
15-830 Belize v. Belize Social Development Ltd. (1) Whether, under the doctrine of forum non conveniens, as applied to the New York Convention by Article III, a foreign forum is per se inadequate because specific assets in the United States cannot be attached by a foreign court, as the D.C. Circuit has held, or whether it is adequate if it has jurisdiction and some attachable assets, as the Second Circuit held; and (2) whether, under Article V(2)(b) of the New York Convention, the public policy in favor of arbitration yields where confirmation of an arbitral award would be contrary to countervailing public policies, such as those grounded in constitutional separation of powers principles, combating government corruption and/or international comity.
15-827 Endrew F. v. Douglas County School District What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act.
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