Editor's Note :

Editor's Note :

The Senate Judiciary Committee has concluded its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Transcripts of previous live blogs are available at this link.
Our full coverage of the nomination is 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)
15-1509 U.S. Bank National Association v. Village at Lakeridge (1) Whether an assignee of an insider claim acquires the original claimant's insider status, such that his or her vote to confirm a cramdown plan cannot be counted under 11 U.S.C. § 1129(a)(10); (2) whether the appropriate standard of review for determining non-statutory insider status is the de novo standard of review applied by the U.S. Courts of Appeals for the 3rd, 7th and 10th Circuits, or the clearly erroneous standard of review adopted for the first time by the U.S. Court of Appeals for the 9th Circuit in this action; and (3) whether the proper test for determining non-statutory insider status requires bankruptcy courts to conduct an “arm's length” analysis as applied by the 3rd, 7th and 10th Circuits, or to apply a “functional equivalent” test which looks to factors comparable to those enumerated for statutory insider classifications as erroneously applied for the first time by the 9th Circuit in this action. CVSG: 2/13/2017.
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.
16-515 Salazar-Limon v. City of Houston Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did.
16-581 Leidos v. Indiana Public Retirement System Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding – in direct conflict with the decisions of the U.S. Courts of Appeals for the 3rd and 9th Circuits – that Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.
16-881 Needham v. Lewis (1) Whether, viewing the evidence from the officer's perspective at the time of the incident as shown in the dashboard video, a reasonable officer could have believed that the decedent posed an imminent threat of serious harm to the officer or others in the vicinity; and (2) whether, at the time of the incident, the law clearly established in a particularized sense, considering the evidence available including the dashboard video, that the use of deadly force was unlawful in this situation.
16-6795 Ayestas v. Davis (1) Whether reasonable jurists could disagree that, by anticipatorily applying a procedural default not actually grounded in state law, a district court abused its discretion when it refused a routine stay and amendment necessary to exhaust claims associated with newly discovered evidence revealing overt discrimination in the prosecution's decision to seek the death penalty; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.

Petitions Featured as Petition of the Day

Docket Case Page Issue(s)
16-1068 Northeast Ohio Coalition for the Homeless v. Husted Whether private parties can sue to enforce 52 U.S.C. § 10101.
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.”
16-917 Mera v. City of Glendale, California Whether the Constitution preempts local government expressive conduct that intrudes on the federal government's exclusive foreign affairs power.
16-902 Jones v. Wells Fargo Bank, N.A. Whether, where the right to foreclose is extinguished as a matter of law by federal statute (Truth in Lending Act) and a unanimous Supreme Court decision (Jesinoski v. Countrywide Home Loans, Inc.), and a homeowner's home is foreclosed upon by improper foreclosure judgment, a lender can use res judicata to bar examination of an invalid judgment that was barred by federal consumer protection law.
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.
16-877 DeCoster v. U.S. (1) Whether the due process clause prohibits the imposition of a term of imprisonment as punishment for a supervisory liability offense, such as the one described in United States v. Park; and (2) whether Park and its precursor, United States v. Dotterweich, should be overruled.
16-876 Doe v. U.S. Whether a federal district court's ancillary jurisdiction in criminal cases includes the power to hear motions to expunge criminal records.
16-860 Hernandez v. Sessions (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that the causation of bodily injury necessarily establishes that an offense is a “crime of violence” within the meaning of 18 U.S.C. § 16(a), even if the offense does not have as an element the use, attempted use or threatened use of any force; and (2) whether the 9th Circuit erred in holding that the California offense of criminal threats, California Penal Code § 422(a) – which requires a threat of bodily injury but not the use, attempted use or threatened use of any force – is a “crime of violence” within the meaning of 18 U.S.C. § 16(a).
16-850 Energy Conversion Devices Liquidation Trust v. Trina Solar Limited (1) Whether the U.S. Court of Appeals for the 6th Circuit erred in holding, in conflict with the U.S. Courts of Appeals for the 3rd and 9th Circuits and this court's precedents, that there is an exception to the rule that horizontal price-fixing among competitors is illegal per se under Section 1 of the Sherman Act where the prices are fixed below cost and the plaintiff does not allege that the conspirators' purported losses will later be recouped via higher prices; and (2) whether a competitor bankrupted by its rivals' below-cost horizontal price-fixing agreement has antitrust standing to challenge the agreement under Section 1 (as the 9th Circuit has held), or whether, absent allegations of recoupment, only consumers may challenge a price-fixing agreement under Section 1 and only if it fixes prices at supra-competitive levels (as the 6th Circuit held below).
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.
16-845 Welch v. Brown (1) Whether a state may bar ministers from inculcating or encouraging certain religious values in youth, when those ministers are also licensed by the state as mental health providers; (2) whether repeated references by a legislature to religious motivations, prayer, spiritual interventions, and religious conversion as a cause for governmental concern are of no religion clause significance, so long as the legislature identifies an additional secular concern; (3) whether facial neutrality shields from strict scrutiny a regulation that directly or indirectly restricts religious practices; and (4) whether minors' rights to privacy, autonomy and self-definition are violated by a state's determination that they may only seek to reduce same-sex attraction on their own or with the assistance of unlicensed individuals, and they may not seek professional help to do so.
16-841 Int'l Paper Company v. Kleen Products LLC (1) Whether an antitrust class may be certified under Federal Rule of Civil Procedure 23(b)(3) based on a presumption that an increase in an index price demonstrates class-wide antitrust injury, even though most sales in the industry are individually negotiated and executed at prices below the index price; and (2) whether the fact that individualized inquiries are needed to determine the amount of damages due each class member is, as the U.S. Court of Appeals for the 7th Circuit held here, legally irrelevant to the predominance inquiry under FRCP 23(b)(3).
16-832 Alabama Democratic Conference v. Marshall (1) Whether the First Amendment permits the government to ban or limit independent-spending donations to a political committee that segregates those donations in a separate bank account to be used only for independent spending; and (2) whether a complete ban on any political committee’s financial contribution to any other political committee for any purpose is an adequately tailored constitutional means to achieve a state's interest in effective campaign-finance disclosure.
16-830 El-Nahal v. Yassky (1) Whether an individual whose location was tracked by a GPS device placed in his vehicle has Fourth Amendment standing to challenge that tracking if he was not in possession of the vehicle when the GPS tracking device was installed; and (2) whether there is a Fourth Amendment right against the government searching an individual's tracking information to investigate criminal activity without a warrant.
16-828 Gardner v. Rideout (1) Whether New Hampshire Revised Statute Annotated § 659:35, I, which prohibits a voter from allowing “his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA [§] 659:20," is narrowly tailored to serve a significant governmental interest, thus passing intermediate scrutiny; (2) whether any restriction placed on speech by New Hampshire RSA § 659:35, I, is content-neutral; and (3) whether New Hampshire RSA § 659:35, I, serves a compelling governmental interest and is narrowly tailored to achieve that interest, thus passing strict scrutiny.
16-825 Taylor v. Extendicare Health Facilities (1) Whether the Federal Arbitration Act or the “federal policy favoring arbitration” requires courts to discriminate in favor of arbitration agreements; (2) whether the FAA requires courts to preempt neutral state laws that merely have a disproportionate impact on the enforcement of arbitration agreements; and (3) whether, if the answer to either question above is “yes,” that violates basic principles of federalism.
16-814 Sterling v. U.S. Whether the existence of a forced choice between what religion and government command is necessary to establish a “substantial burden” under the Religious Freedom Restoration Act.
16-812 Castro v. Department of Homeland Security (1) Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that the petitioners are not entitled to judicial review of their statutory, regulatory and constitutional claims, even by habeas corpus, and are “prohibited from invoking the protections of the suspension clause" to challenge their removal; and (2) whether the 3rd Circuit erred in concluding, contrary to every other circuit to address the issue, that persons who have entered the United States may be “assimilated” to the constitutional status of noncitizens arriving at our borders, and thereby denied constitutional rights.
16-810 Nacchio v. U.S. (1) Whether funds forfeited pursuant to a criminal conviction are deductible in cases in which such forfeited funds (in contrast with a simultaneously imposed punitive fine) are earmarked and used to compensate victims of the underlying criminal offense; and (2) whether the U.S. Court of Appeals for the Federal Circuit's holding in this case that such forfeited funds are not deductible conflicts with the U.S. Court of Appeals for the 2nd Circuit's holding in Stephens v. Commissioner of Internal Revenue and the U.S. Court of Appeals for the 1st Circuit's holding in Fresenius Medical Care Holdings, Inc. v. United States.
16-808 Vitreo Retinal Consultants of the Palm Beaches, P.A. v. Department of Health and Human Services Whether the Secretary of Health and Human Services may ignore the statutory payment rate for a drug covered under Part B of the Medicare Act and instead cap payments at a physician's costs to acquire that drug, either directly or under the guise of assessing “medical reasonableness.”
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.
16-786 Justice v. Internal Revenue Service What constitutes a “return” for purposes of bankruptcy.
16-784 Merit Management Group, LP v. FTI Consulting Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.
16-771 Capitol Records, LLC v. Vimeo, LLC Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding, contrary to the considered view of the United States Copyright Office and in conflict with the New York state appellate courts, that when Congress enacted the Digital Millennium Copyright Act and added Section 512 to the Copyright Act, it implicitly limited and preempted the state-law rights and remedies that Section 301(c) says “shall not be annulled or limited.”
16-764 General Motors LLC v. Elliott (1) Whether the due process clause requires a debtor selling its assets under Section 363 of the Bankruptcy Code to notify its creditors not only of the details of the sale, as required by Section 363, but also of the grounds for potential claims against the seller; and (2) whether a seller's failure to provide potential creditors with adequate notice of a Section 363 sale deprives the good-faith purchaser of Section 363's “free and clear” protections.
16-759 Rutgerson v. U.S. (1) Whether a defendant “induce[s]" the assent of another person, within the meaning of 18 U.S.C. § 2422, where the defendant accepts the request of the other person, who has already assented to the course of conduct prior to and independent of any action by the defendant; and (2) whether the court of appeals correctly applied the harmless-error doctrine to the exclusion of evidence of a government investigation showing the petitioner's lack of interest in sex involving any underage person prior to contact with the government, where the petitioner's lack of predisposition was essential to his entrapment defense.
16-736 DIRECTV Group Holdings, LLC v. Michigan Department of Treasury (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.
16-733 Sanchez de Lozada v. Mamani Whether plaintiffs may pursue claims against the former head of state and defense minister of a foreign country under the Torture Victim Protection Act for alleged misconduct in that country when they have already recovered adequate remedies in the foreign country for their alleged losses.
16-729 Buehler v. Austin Police Department Whether a third-party finding of probable cause—including a post-arrest grand jury indictment—precludes a false arrest suit under 42 U.S.C. § 1983, as the U.S. Court of Appeals for the 5th Circuit has held pursuant to its “independent intermediary doctrine,” in conflict with precedent of this court and other courts of appeals.
16-706 Detroit Free Press v. Department of Justice Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.
16-699 Goodyear Tire & Rubber Co. v. Michigan Department of Treasury (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.
16-684 PLIVA v. Kohles Whether the prohibition on private enforcement of the federal Food, Drug, and Cosmetic Act precludes state-law tort claims predicated on allegations that a generic drug manufacturer violated the FDCA by failing to implement Food-and-Drug-Administration-approved labeling changes in a manner considered timely under state law.
16-683 Jankovic v. Int'l Crisis Group (1) Whether, for a defamation plaintiff to be deemed a limited-purpose public figure, the defamatory statement must be directly related (or “germane”) to the plaintiff's voluntary involvement in the particular public controversy; and (2) if the court grants certiorari on the above question, whether a court may grant summary judgment in an actual-malice case on the ground that the plaintiff has not proven that the defendant “actually possessed subjective doubt” about the truth of a story, even if, based on the admissible evidence, a reasonable jury could find that the defendant actually possessed subjective doubt.
16-679 McFadden v. U.S. (1) Whether and under what circumstances overwhelming evidence of an element omitted from a criminal jury instruction is a sufficient basis for finding the error harmless; and (2) whether proof that the defendant knew the name and physiological effects of the product he was selling compels a jury to conclude that the defendant “knew he was dealing with a ‘controlled substance’” as required by McFadden v. United States.
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.
16-643 Estate of Jimma Pal Reat v. Rodriguez Whether the U.S. Court of Appeals for the 10th Circuit erred in reversing a judgment denying qualified immunity to a 911 operator and holding, in accord with the U.S. Courts of Appeals for the 4th and 5th Circuits, but in contrast to the U.S. Courts of Appeals for the 2nd, 6th, 7th, 8th, and 9th Circuits, that a 14th Amendment state-created danger claim covers only conduct by a state actor that imposes limitations on a person's freedom to act on his own behalf.
16-636 Walker v. Texas (1) Whether, as Justices Ginsburg and Thomas suggested last term, this court should conduct a “fresh examination” of the “separate sovereigns” exception to the double jeopardy clause, Puerto Rico v. Sanchez Valle (Ginsburg, J., concurring); and (2) whether, as this court has previously suggested, the “separate sovereigns” exception at least should be inapplicable when state and federal prosecutors have worked so closely together that they are “in essential fact” one entity, Bartkus v. Illinois.
16-629 American Civil Liberties Union v. Central Intelligence Agency Whether the Senate Select Committee on Intelligence's investigative report concerning the Central Intelligence Agency's former program of detention, torture, and abuse of detainees became an “agency record,” subject to the Freedom of Information Act, when the Senate Committee transmitted it to several executive agencies with instructions for its wide dissemination and use.
16-612 Langbord v. Department of Treasury (1) Whether, when the government seizes property from private citizens and intends to retain it indefinitely, it can avoid the procedures, deadlines and penalties set forth in the Civil Asset Forfeiture Reform Act of 2000 by merely asserting that the property was stolen from the government and declaring that it has no intention of seeking forfeiture; and (2) whether the government can avoid CAFRA's protections by strategically waiting for years and then filing a declaratory judgment claim that seeks essentially the same relief as is barred by CAFRA.
16-610 Alaska Oil and Gas Association v. Jewell Whether the U.S. Court of Appeals for the 9th Circuit's exceedingly permissive standard improperly allows the U.S. Fish and Wildlife Service to designate huge geographic areas as “critical habitat” under the Endangered Species Act when much of the designated area fails to meet the statutory criteria.
16-596 Alaska v. Jewell Whether the U.S. Court of Appeals for the 9th Circuit's exceedingly permissive standard improperly allows the U.S. Fish & Wildlife Services to designate huge geographic areas as “critical habitat” under the Endangered Species Act when much of the designated area fails to meet the statutory criteria.
16-577 Shelton v. McQuiggin Whether, under Schriro v. Landigran, a habeas petitioner is entitled to an evidentiary hearing where his allegations would entitle him to relief and are not contravened by the record, as at least three circuits have held, or whether the petitioner must already have factual support for his allegations, as four other circuits have now held.
16-572 Citizens Against Reservation Shopping v. Haugrud (1) Whether, under the Indian Reorganization Act, to have been a “recognized Indian tribe now under Federal jurisdiction” in 1934, a tribe must have been “recognized” at that time; and (2) whether, to have been “under Federal jurisdiction” in 1934, a tribe must have been located in Indian country—that is, on land over which the United States exercised jurisdiction to the exclusion of state jurisdiction.
16-543 Mickelson v. County of Ramsey Whether due process allows governments to confiscate money from innocent people on the basis of an arrest and then force those people to prove that they are entitled to have their money returned.
16-499 Jesner v. Arab Bank, PLC Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.
16-498 Patchak v. Zinke (1) Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this court's determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitutions separation of powers principles; and (2) whether a statute which does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.
16-492 PEM Entities LLC v. Levin Whether bankruptcy courts should apply a federal rule of decision (as five circuits have held) or a state law rule of decision (as two circuits have held, expressly acknowledging a split of authority) when deciding to recharacterize a debt claim in bankruptcy as a capital contribution.
16-467 Taylor v. Maryland (1) Under the exception to the warrant requirement announced in Arizona v. Gant, permitting a vehicular search incident to a recent occupant's arrest “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,” what quantum of particularized suspicion is required by the Fourth Amendment to justify the search; and (2) whether the unquantified experience of the arresting officer, alone, may supply the necessary particularized suspicion to justify the vehicular search.
16-402 Carpenter v. U.S. Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.
16-317 Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation (1) Whether the the U.S. Court of Appeals for the 2nd Circuit correctly held—contrary to several other courts of appeals—that the presumption against federal preemption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held—following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits—that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held—contrary to this court's decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the Code—that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly preempt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).
16-308 Dot Foods v. Department of Revenue for the State of Washington Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

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.
16-668 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.
16-217 Lenz v. Universal Music Corp. Whether the Ninth Circuit erred in concluding that the affirmation of good faith belief that a given use of material use is not authorized “by the copyright owner, its agent, or the law,” required under Section 512(c) of the Digital Millennium Copyright Act (“DMCA”), may be purely subjective and, therefore, that an unreasonable belief—such as a belief formed without consideration of the statutory fair use factors—will not subject the sender of a takedown notice to liability under Section 512(f) of the DMCA.
16-130 U.S. ex rel. Advocates for Basic Legal Equality v. U.S. Bank, N.A. Whether, under the public disclosure bar of the False Claims Act, 31 U.S.C. § 3730(e)(4)(A), which prohibits qui tam actions when “substantially the same allegations or transactions” have been publicly disclosed, unless the qui tam plaintiff is an original source of the information, a qui tam action may proceed where it is based on specific allegations of fraud that were not the subject of prior public disclosures and that add substantial material information to the public disclosures, and when the publicly disclosed allegations “encompass” the qui tam allegations only if both sets of allegations are characterized at a very high level of generality.
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.
15-1223 Southwest Securities v. Segner Whether, under Section 506(c) of the Bankruptcy Code, which authorizes the trustee to “recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of such property to the extent of any benefit to the holder of such claim[,]” secured creditors are obliged to shoulder the trustee's maintenance costs when retaining encumbered property in the hope of benefiting other creditors for the period a trustee abandons encumbered property.
Term Snapshot
Awards