Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the Court's May 28 Conference, followed by one or more opinions in argued cases at 10. We will begin live-blogging shortly before 9:30.

Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
14-395 Joyner v. Barnes Whether the Fourth Circuit contravened 28 U.S.C. § 2254(d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied "clearly established" law when they held that third-party religious discussions with jurors did not concern "the matter[s] pending before the jury."
14-807 Dunn v. Debruce (1) Whether the state courts were objectively unreasonable when they held that DeBruce failed to establish that his counsel performed deficiently at the penalty phase of his trial; and (2) whether the state courts were objectively unreasonable when they held that DeBruce had not been prejudiced by his counsel’s performance.
14-825 County of Maricopa v. Lopez-Valenzuela (1) Whether the Ninth Circuit erred in holding, contrary to this Court's decision in Demore v. Kim, that under United States v. Salerno, a denial of bail is permissible “only” after individualized assessments of flight risk or future dangerousness, thereby barring categorical denials of bail such as Arizona's Proposition 100 and calling into question categorical bans on bail in non-capital cases that exist in seventeen other states (and perhaps even calling into question categorical bans on bail in capital cases that exist in an additional twenty-two states); (2) whether, when adopting a categorical ban on bail for illegal aliens charged with serious felonies, a state may rely on logical assumptions, testimonial evidence of front-line prosecutors, and other anecdotal evidence that is in conformity with the empirical evidence of heightened flight risk by those unlawfully present in this country contained in studies conducted elsewhere, similar to what this Court has approved in analogous contexts, see City of Renton v. Playtime Theaters, Inc., or whether the state must conduct its own empirical analysis that is both jurisdiction- and category-specific in order to meet the requirements of Due Process; and (3) whether the Ninth Circuit erred in holding that Proposition 100 was facially unconstitutional, contrary to Salerno's requirement that a statute is facially invalid only if “no set of circumstances exists under which the Act would be valid,” because among those categorically denied bail by Arizona’s Proposition, 100 are individuals charged with capital crimes, whom the Ninth Circuit recognized could categorically be denied bail.
14-704 Jackson v. City and County of San Francisco Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia's invalidated effort to do the same.
14-997 Currier v. Jackson Women’s Health Organization (1) Whether the Due Process Clause of the Fourteenth Amendment requires Mississippi to exempt physicians at the State's only abortion clinic from complying with a medically legitimate health and safety regulation that applies to physicians at all other outpatient surgical facilities; and (2) whether Mississippi House Bill 1390, which requires that abortion physicians have admitting privileges at a local hospital to handle complications that require emergency hospitalization, imposes an undue burden under Planned Parenthood v. Casey regardless of the geographical availability of abortion services in adjoining states in light of the equal protection principle articulated in Missouri ex rel. Gaines v. Canada.
14-939 Taylor v. Barkes (1) Whether the Third Circuit erred in holding that 42 U.S.C. § 1983 authorizes the imposition of supervisory liability on state officials for a subordinate’s alleged constitutional violation; and (2) whether the Third Circuit erred in holding that there is a clearly established right under the Eighth Amendment to the “proper implementation of adequate suicide prevention protocols.”
14-990 Shapiro v. Mack Whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).
14-981 Fisher v. University of Texas at Austin Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.
14-631 Manzano v. Indiana Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).
14-419 Luis v. U.S. Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

Petitions for Conference of 05.28.2015

Docket Case Page Issue(s)
14-1146 Tyson Foods v. Bouaphakeo (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
14-1124 Wal-Mart Stores v. Braun Whether the Due Process Clause of the Fourteenth Amendment prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, where the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses to class members’ claims.
14-1123 Wal-Mart Stores v. Braun Whether the Due Process Clause of the Fourteenth Amendment prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, where the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses to class members’ claims.
14-1028 Duble v. FedEx Ground Package System (1) Whether, when the filing of an Equal Employment Opportunity Commission (EEOC) charge of retaliation prompts a new retaliatory act, a plaintiff must file a second EEOC charge in order to judicially pursue the post-charge retaliation; and (2) whether, where the claimant reports post-charge retaliation to the EEOC, the employer defends the post-charge retaliatory act in its position statement to the EEOC, and the EEOC investigates and makes an express final determination regarding the post-charge retaliation, the post-charge retaliatory act has been administratively exhausted.
14-1008 Hardin v. Ohio Whether an autopsy report created as part of a homicide investigation, and asserting that the death was caused by homicide, is “testimonial” under the Confrontation Clause framework established in Crawford v. Washington.
14-954 Animal Care Trust v. United Pet Supply (1) Whether the Sixth Circuit correctly held, in an acknowledged split with other circuits, that private entities are categorically ineligible to claim qualified immunity; and (2) whether the Sixth Circuit erred in denying individual McKamey Animal Care and Adoption Center employees Karen Walsh and Paula Hurn qualified immunity.
14-740 Massi v. U.S. Whether the good faith exception to the exclusionary rule applies to a search warrant that is itself the fruit of the poisonous tree.

Petitions for Conference of 06.04.2015

Docket Case Page Issue(s)
14-882 U.S. Legal Services Group, L.P. v. Atalese Whether the Federal Arbitration Act preempts a state-law rule holding that an arbitration agreement is unenforceable unless it affirmatively explains that the contracting party is waiving the right to sue in court.
14-844 Bruce v. Samuels Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner's monthly income regardless of the number of cases or appeals for which he owes filing fees.
14-772 Fields v. U.S. (1) Whether the Fifth Circuit's categorical rule that counsel’s failure to investigate and present even the most compelling mitigating evidence of mental illness can never prejudice the defendant at sentencing, because such evidence always establishes a degree of dangerousness presumed to outweigh any jury finding of decreased culpability, is consistent with this Court's Sixth, Eighth and Fourteenth Amendment decisions; and (2) whether the Fifth Circuit’s decision denying petitioner an evidentiary hearing regarding his competence to proceed pro se is consistent with the jurisprudence of this Court and the plain language of 28 U.S.C. § 2255, which requires an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”
14-602 Umana v. U.S. Whether, at capital sentencing, the government may seek to prove the aggravating factor that the defendant committed previous unadjudicated murders through hearsay statements to police of other suspects in those murders, without permitting the defendant to confront or cross-examine his accusers.
13-1496 Dollar General Corporation v. Mississippi Band of Choctaw Indians Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members. CVSG: 5/12/2015.

Petitions for Conference of 06.11.2015

Docket Case Page Issue(s)
22o143 Mississippi v. Tennessee (1) Whether the Court will grant Mississippi leave to file an original action to seek relief from respondents’ use of a pumping operation to take approximately 252 billion gallons of high quality groundwater; (2) whether Mississippi has sole sovereign authority over and control of groundwater naturally stored within its borders, including in sandstone within Mississippi’s borders; and (3) whether Mississippi is entitled to damages, injunctive, and other equitable relief for the Mississippi intrastate groundwater intentionally and forcibly taken by respondents. CVSG: 5/12/2015.
14-1172 Walker-McGill v. Stuart Whether North Carolina's statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First Amendment rights of the provider.
14-1122 Motorola Mobility LLC v. AU Optronics (1) Whether a cartel's delivery of price-fixed goods overseas for incorporation into finished products imported directly to the United States is immune from private suit under U.S. antitrust law; and (2) whether, absent special circumstances, a motions panel may assign itself to decide the merits of a case.
14-1121 Hsiung v. U.S. (1) Whether a foreign seller's conduct can “involv[e] *** import trade or import commerce” even when the seller himself does not import any goods into the United States; (2) whether a foreign price-fixing agreement can have an effect on U.S. commerce that is “direct” and “gives rise to” a Sherman Act claim even when the agreement fixes prices only in foreign sales; and (3) whether foreign price-fixing agreements should be condemned as per se unlawful, instead of evaluated on a case-by-case basis under the rule of reason.
14-910 Allstate Insurance Company v. Jimenez (1) Whether the court of appeals erred in holding, in conflict with decisions of the Second, Fifth, Eighth, and Eleventh Circuits, that the requirements of Federal Rule of Civil Procedure 23 are satisfied by purportedly “common” questions that do not resolve the defendant's liability as to any individual class member and would require hundreds of separate follow-up trials; and (2) whether the court of appeals erred in holding that Rule 23 and the Due Process Clause permit class-wide resolution of a defendant's liability through a class process that prevents the defendant from raising individualized defenses in the liability phase.

Petitions for Conference of 06.18.2015

Docket Case Page Issue(s)
14-1138 The Aransas Project v. Shaw (1) Whether the court of appeals below inappropriately engaged in de novo review of district court factfindings that should be reviewed for clear error, evidencing a pattern of appellate overreach that calls for the exercise of this Court's supervisory power, as urged by several members of the Fifth Circuit in recent dissents; and (2) whether ordinary standards of proximate cause are satisfied by a foreseeable chain of events, even if it involves intervening actors and forces of nature, as the First, Second, Fourth, Sixth, Eighth, and Eleventh Circuits have held, or whether the presence of “contingencies” and “unpredictable” forces of nature renders proximate cause lacking as a matter of law, as the Fifth Circuit held below.
14-1129 Picard v. Ida Fishman Revocable Trust (1) Whether the “stockbroker defense” in the Bankruptcy Code, 11 U.S.C. § 546(e), applies to payments that involve only fictitious securities transactions; and (2) whether the application of the “stockbroker defense” in the Bankruptcy Code to payments that involve only fictitious securities transactions is barred as inconsistent with the Securities Investor Protection Act, 15 U.S.C. § 78fff(b).
14-1128 Securities Investor Protection Corporation v. Ida Fishman Revocable Trust (1) Whether the “stockbroker defense” under the Bankruptcy Code, 11 U.S.C. § 546(e), applies to payments that involve only fictitious securities transactions; and (2) whether the application of the “stockbroker defense” under the Bankruptcy Code, 11 U.S.C. § 546(e), to payments that involve only fictitious securities transactions is barred as inconsistent with the Securities Investor Protection Act, 15 U.S.C. § 78fff(b).
14-1096 Torres v. Lynch Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.
14-1037 Nyambal v. Int'l Monetary Fund Whether the present-day scope of immunity enjoyed by international organizations is absolute and unrestricted, as it was for foreign states prior to the enactment of the Foreign Sovereign Immunity Act of 1976 (FSIA); or, whether it is now limited by the commercial activities exception to sovereign immunity contained in FSIA.
14-1006 Johnson v. U.S. Whether restitution imposed on a criminal defendant is a criminal penalty subject to the requirement under the Sixth Amendment that the government allege in the indictment and prove to a jury beyond a reasonable doubt any fact that increases the amount of criminal sentences, penalties, and punishments.
14-448 Google v. Vederi, LLC Whether, when an applicant for a patent amends a claim to overcome the Patent and Trademark Office’s earlier disallowance of the claim, a court should (i) presume that the amendment narrowed the claim and strictly construe the amended claim language against the applicant, as this Court has held; or (ii) presume that the claim scope remained the same and require that any narrowing be clear and unmistakable, as the Federal Circuit has held. CVSG: 05/19/2015.
14-181 Gobeille v. Liberty Mutual Insurance Company Whether the Second Circuit – in a two-to-one panel decision that disregarded the considered opinion advanced by the United States as amicus – erred in holding that the Employee Retirement Income Security Act of 1974 (ERISA) preempts Vermont's health care database law as applied to the third-party administrator for a self-funded ERISA plan. CVSG: 05/19/2015.

Petitions for Conference of 06.25.2015

Docket Case Page Issue(s)
14-1164 Kobach v. U.S. Election Assistance Commission (1) Whether Article I, Section 2 and the Seventeenth Amendment of the U.S. Constitution require the U.S. Election Assistance Commission to defer to the states’ determination that provision of documentary evidence of citizenship is necessary to enforce the states’ voter qualifications; and (2) whether Article I, Section 2 and the Seventeenth Amendment of the U.S. Constitution permit a dual voter rolls system in which some voters who are qualified to vote for federal office holders are not also qualified to vote for those “in the most numerous branch of the state legislature.”
14-1145 Whiteside v. U.S. Whether, under Holland v. Florida, a court may impose a per se rule precluding the application of equitable tolling to a 28 U.S.C. § 2255 petition where a petitioner relies to his detriment on binding circuit precedent that would have rendered his claim futile.
14-1095 Musacchio v. U.S. (1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.
14-973 Nguyen v. North Dakota Whether or under what circumstances police officers conduct a search within the meaning of the Fourth Amendment when they trespass in common areas of locked apartment buildings to look for evidence of criminal activity.
14-921 Vaughn v. U.S. Whether the minimum required culpability state for denying a bankruptcy debtor a discharge of a tax debt based on the debtor's participation in a disallowed tax shelter, and spending decisions in light of a known or potential tax debt is: (1) negligence (i.e., the debtor should have known better than to participate in the tax shelter or spend money on something other than a present or potential future tax bill), per the analysis of several circuits including the Tenth Circuit in In re Vaughn; (2) specific intent (i.e., the debtor must specifically intend for his spending to defeat the IRS's ability to collect a tax debt), per the Ninth Circuit's analysis in Hawkins v. Franchise Tax Board; (3) the mental state of knowingly (i.e., the debtor knows it is practically certain that his spending will put money beyond the reach of the IRS's collection efforts), in conformity with this Court's decisions equating willfulness with knowledge; or (4) some other mental state.
14-915 Friedrichs v. California Teachers Association (1) Whether Abood v. Detroit Bd. of Ed. should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
14-656 RJR Pension Investment Committee v. Tatum (1) Whether the plaintiff bears the burden of proving loss causation under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1109, or whether it can shift the burden on that element to the defendant by carrying its burden on the analytically distinct elements of breach of fiduciary duty and loss to the plan; and (2) whether an ERISA fiduciary with a duty of prudence can be held liable for money damages under Section 1109 even though its ultimate investment decision was objectively prudent.
14-510 Menominee Indian Tribe of Wisconsin v. U.S. Whether the D.C. Circuit misapplied this Court's decision in Holland v. Florida when it ruled – in direct conflict with a holding of the Federal Circuit on materially similar facts – that the Tribe did not face an “extraordinary circumstance” warranting equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act.
14-471 Contorinis v. Securities and Exchange Commission Whether a defendant in a Securities and Exchange Commission civil enforcement action can be ordered to disgorge profits that he or she never received, possessed, or controlled, but that instead accrued directly to innocent third parties.
14-410 Google Inc. v. Oracle America Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way.
13-1559 Corr v. Metropolitan Washington Airports Authority (1) Whether, as the United States implicitly conceded below, the Metropolitan Washington Airports Authority (MWAA) exercises sufficient federal power to mandate separation-of-powers scrutiny for purposes of a suit seeking injunctive relief and invoking the Little Tucker Act to seek monetary relief; and (2) whether the Metropolitan Washington Airports Act of 1986, 49 U.S.C. §§ 49101 et seq., which transferred to MWAA all of the federal government's “rights, liabilities, and obligations” concerning, inter alia, Dulles Airport and its “access highways and other related facilities,” violates the separation of powers, including the Executive Vesting, Appointments, and Take Care Clauses of Article II, by depriving the president of control over MWAA, an entity exercising – as the United States admits – executive branch functions pursuant to federal law. CVSG: 05/22/2015.
13-1467 Aetna Life Insurance Company v. Kobold Whether the Federal Employees Health Benefits Act (FEHBA), which expressly “preempt[s] any State or local law” that would prevent enforcement of “[t]he terms of any contract” under FEHBA that “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits),” preempts state laws precluding carriers that administer FEHBA plans from seeking reimbursement or subrogation pursuant to the terms of FEHBA contracts. CVSG: 05/22/2015.
13-1305 Coventry Health Care of Missouri v. Nevils Whether the Federal Employees Health Benefits Act (FEHBA), which governs the federal government’s provision of health benefits to millions of federal employees and their dependents, preempts state laws precluding carriers that administer FEHBA plans from seeking subrogation as required by their contracts with the Office of Personnel Management. CVSG: 05/22/2015.

Petitions Not Set for Conference

Docket Case Page Issue(s)
14-1177 Oklahoma v. Hobia Whether Michigan v. Bay Mills Indian Community requires the dismissal of a state’s suit to prevent tribal officers from conducting gaming that would be unlawful under the Indian Gaming Regulatory Act and a state-tribal compact when (1) the suit for declaratory and injunctive relief has been brought against tribal officials - not the tribe; (2) the gaming will occur in Indian country, on the land of another tribe; and (3) the state-tribal compact's arbitration provision does not require arbitration before filing suit.
14-1153 LaChance v. Massachusetts Whether a defendant asserting ineffective assistance under Strickland v. Washington based upon counsel's failure to raise a structural error must – in addition to demonstrating deficient performance – show that he was prejudiced by counsel's ineffectiveness, or whether prejudice is presumed because the harm from structural errors is “necessarily unquantifiable and indeterminate,” Sullivan v. Louisiana.
14-1143 Mullenix v. Luna (1) Whether, when viewing the facts from the perspective of an officer who fired his service rifle at a vehicle involved in a high-speed chase, the officer acted reasonably under the Fourth Amendment when an officer in his situation would believe that the suspect posed a risk of serious harm to other officers or members of the public; and (2) whether the law clearly established that this use of potentially deadly force was unlawful when existing precedent did not address the use of force against a fleeing suspect who had explicitly threatened to shoot police officers.
14-1136 Nestle Purina PetCare Company v. Curts Whether, under the All Writs Act and the Anti-Injunction Act, a district court's injunction to enjoin parallel state litigation pending final approval of a comprehensive settlement of a complex case can ever be “necessary in aid of its jurisdiction.”
14-1088 Internet Machines LLC v. Cyclone Microsystems Whether sales of an infringing product that occur within the United States are beyond the reach of the Patent Act because the products are manufactured and initially shipped overseas, even though they are ultimately imported into and used in the United States.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
22o144 Nebraska and Oklahoma v. Colorado (1) Whether the Court will grant Nebraska and Oklahoma leave to file an original action to seek a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution; (2) whether Colorado should be enjoined from any and all application and implementation of Sections 16(4) and (5) of Article XVIII of the Colorado Constitution; (3) whether Colorado should be enjoined from any and all application and implementation of statutes or regulations promulgated pursuant to Sections 16(4) and (5) of Article XVIII of the Colorado Constitution; and (4) whether Colorado should be ordered to pay the plaintiff states’ costs and expenses associated with this legal action, including attorneys’ fees.
14-770 Bank Markazi v. Peterson Whether 22 U.S.C. § 8772 – a statute that effectively directs a particular result in a single pending case – violates the separation of powers.
14-694 Fiordaliso v. PPL EnergyPlus, LLC Whether, where, as part of a state-directed procurement, the resulting contract between local utilities and a power plant developer provides for a payment to the power plant developer based on the differential between the developer's competitive bid to build a new power plant and the amount the developer receives from capacity sales in the auction supervised by the Federal Energy Regulatory Commission, and where the contract does not involve any actual sale of capacity, the contract is “field preempted” as an attempt by the state to set interstate electric rates.
14-634 CPV Power Development v. PPL EnergyPlus, LLC Whether, where, as a result of a state-directed procurement, the contract price to build and operate a power plant is the developer's bid price, and may result in payments beyond what the developer earns selling the plant's capacity in the Federal Energy Regulatory Commission (FERC)-supervised auction, the program is “field preempted” as a state's attempt to set interstate wholesale rates.
14-623 CPV Maryland, LLC v. PPL EnergyPlus, LLC (1) Whether, where, as a result of a state-directed procurement, the contract price to build and operate a power plant is the developer’s bid price, and may result in payments beyond what the developer earns selling the plant’s capacity in the auction supervised by the Federal Energy Regulatory Commission (FERC) the program is “field preempted” as a state’s attempt to set interstate wholesale rates; and (2) whether a state-directed contract to support construction of a power plant is “conflict preempted” because its long-term pricing structure provides incentives different from the incentives provided by prices generated in the FERC-supervised yearly capacity auction.
14-614 Nazarian v. PPL EnergyPlus, LLC (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether the Federal Energy Regulatory Commission’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis.
13-1379 Athena Cosmetics v. Allergan Whether, under Buckman Co. v. Plaintiffs’ Legal Committee, the Federal Food, Drug, and Cosmetic Act impliedly preempts a private state-law claim for unfair competition premised on a party’s purported failure to obtain Food and Drug Administration approval, where the Food and Drug Administration itself has not imposed any such requirement.

Petitions Held for Another Conference

N/A

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