SCOTUS Watch: The final stretch

SupremeCourtThe U.S. Supreme Court is now in the final stretch of its 2014-15 Term.  68 merit cases were argued before the Court this term, with 35 cases having been decided to date.

Orders and opinions will be announced this Tuesday (because of the Memorial Day holiday) and on each of the five consecutive Mondays in June. Additional opinion days may be added by the Court.

The hearing date of a case is not always determinative of when a decision will be announced by the Court. For example, a pair of cases heard in late March have already been decided, while there are still a pair of cases pending from November and December of last year.

Hat tip to SCOTUSblog for the case summaries. Major cases are highlighted.

There is one case still pending from November:

Zivotofsky v. Kerry, No. 13-628

Issue(s): Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

There is also one case still pending from December:

Elonis v. U.S., No. 13-983

Issue(s): (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten.

From the January sitting of the Court:

Reed v. Town of Gilbert, Arizona, No. 13-502

Issue(s): Whether the Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

Kellogg Brown & Root Services v. U.S. ex rel. Carter, No. 12-1497

Issue(s): (1) Whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling; and (2) whether, contrary to the conclusion of numerous courts, the False Claims Act’s so-called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “onecase- at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing. CVSG: 10/07/2013.

Mellouli v. Holder, No. 13-1034

Issue(s): Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

Wellness Int’l Network, Limited v. Sharif, No. 13-935

Issue(s): (1) Whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, No. 13-1371

Issue(s): Whether disparate-impact claims are cognizable under the Fair Housing Act.

From the February sitting of the Court:

Kerry v. Din, No. 13-1402

Issue(s): (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, No. 14-86

Issue(s): Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Baker Botts, L.L.P. v. ASARCO, L.L.C., No. 14-103

Issue(s): Whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.

Ohio v. Clark, No. 13-1352

Issue(s): (1) Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314

Issue(s): (1) Whether the Elections Clause of the United States Constitution and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

City of Los Angeles v. Patel, No. 13-1175

Issue(s): (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

Davis v. Ayala, No. 13-1428

Issue(s): Whether a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson.

King v. Burwell, No. 14-114

Issue(s): Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

From the March sitting of the Court:

Walker v. Texas Division, Sons of Confederate Veterans, No. 14-144

Issue(s): (1) Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.

Bank of America, N.A. v. Toledo-Cardona, No. 14-163

Issue(s): Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral.

Bank of America, N.A. v. Caulkett, No. 13-1421

Issue(s): Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral.

Utility Air Regulatory Group v. Environmental Protection Agency, No. 14-47

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Michigan v. Environmental Protection Agency, No. 14-46

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

National Mining Association v. Environmental Protection Agency, No. 14-49

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Brumfield v. Cain, No. 13-1433

Issue(s): (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Kimble v. Marvel Enterprises, No. 13-720

Issue(s): Whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” CVSG: 10/30/2014.

Commil USA, LLC v. Cisco Systems, No. 13-896

Issue(s): Whether the Federal Circuit erred in holding that a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b). CVSG: 10/16/2014. (Breyer, J., recused.)

From the April sitting of the Court:

Johnson v. U.S., No. 13-7120

Issue(s): (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.

McFadden v. U.S., No. 14-378

Issue(s): Whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar” to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Horne v. Department of Agriculture, No. 14-275

Issue(s): (1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

Kingsley v. Hendrickson, No. 14-6368

Issue(s): Whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.

DeBoer v. Snyder, No. 14-571

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Tanco v. Haslam, No. 14-562

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Obergefell v. Hodges, No. 14-556

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Bourke v. Beshear, No. 14-574

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Note: The four same-sex marriage appeals are likely to be announced together under the Oberkefell v. Hodges case name citation.

Glossip v. Gross, No. 14-7955

Issue(s): (1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious; (2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

Mata v. Lynch, No. 14-185

Issue(s): Whether the Fifth Circuit erred in this case in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).

There are also several cases we are tracking on the Court’s Conference Calendar, including County of Maricopa, Arizona v. Lopez-Valenzuela, 14-825 (on its fourth relist), “asks whether the Ninth Circuit erred in holding that a denial of bail is permissible only after individualized assessments of flight risk or future dangerousness.” The Ninth Circuit struck down Arizona’s Proposition 100 (2006) to deny bail to persons charged with serious felonies who are in the US illegally.

This past Thursday, the Obama administration notified the Supreme Court of two more of its appeals-court victories in the running legal battles over religious groups’ protests against the new birth-control mandate in the federal Affordable Care Act. Updating the Court on the birth-control mandate:

The letter by Solicitor General Donald F. Verrilli, Jr., noted new rulings by two federal appeals courts that extended a trend of decisions rejecting claims that the government is trying to coerce religious groups such as colleges, hospitals, and other charities into helping to arrange contraceptive services to which they object for their employees or people they serve, such as college students.

The widespread activity on the non-profits’ challenges is almost certain to produce one or more major test cases for the Court for its next Term, starting in October.

The new lower-court actions cited by the Solicitor General were a two-to-one ruling on Tuesday by the U.S. Court of Appeals for the Seventh Circuit in a case involving the University of Notre Dame and a six-to-three decision Wednesday by the U.S. Court of Appeals for the District of Columbia Circuit, refusing rehearing en banc of the case known as the Priests for Life dispute, rejecting the claims of several religious entities.

Those actions were the first in the appeals courts analyzing whether the Justices’ ruling last Term against enforcement of the contraceptive mandate against for-profit businesses owned by a small group of religiously devout individuals would affect scores of cases now moving through the courts involving religious non-profit organizations.

Both the majorities in the Seventh Circuit and the D.C. Circuit found that the non-profits could not take advantage of that ruling in their challenges to the mandate.

Among the other developing cases in the appeals courts are a trio in the U.S. Court of Appeals for the Third Circuit.  The non-profits lost their cases in that court last month, and two of the cases were then taken to the Supreme Court, in requests for a temporary delay of the Third Circuit ruling until the organizations could file full formal appeals with the Justices.

Justice Samuel A. Alito, Jr., who handles such requests from the geographic region of the Third Circuit, on April 15 granted a temporary delay.  (The Alito order is here, affecting the two Third Circuit disputes now known as the Zubik and Persico cases.)

Alito, however, only put the Third Circuit’s ruling on hold until the Justice Department had a chance to reply, or until “further order” either from him or from the full Court.  Five days later, the government opposed a temporary delay, and the religious groups’ lawyers answered.

So far as is known, Justice Alito has taken no further action.  It is not clear whether he is continuing to study it on his own or has instead referred it to his colleagues for action; he has the option of handling the cases either way.

Stay tuned.

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