Certiorari Grants 2022 to 2023

Department of Education v. Brown, No. 22-535.

The Supreme Court granted certiorari to review the injunction entered by the United States District Court for the Northern District of Texas, which halted the federal student-loan debt-relief program. The Court granted review of the following questions:

• Whether respondents have Article III standing.
• Whether the Department’s plan is statutorily authorized and was adopted in a procedurally proper manner.

Biden, President of the U.S. v. Nebraska, No. 22-506.

The Supreme Court granted certiorari to review the injunction entered by the Eighth Circuit Court of Appeals, which halted the federal student-loan debt-relief program. The Court granted review of the following questions:

• Whether respondents have Article III standing.
• Whether the plan exceeds the Secretary’s statutory authority, or is arbitrary and capricious.

Gonzalez v. Google LLC, No. 21-1333.

Does Section 230(c)(1) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?

Twitter, Inc. v. Taamneh, No. 21-1496.

• Whether a defendant that provides generic, widely available services to all its numerous users and “regularly” works to detect and prevent terrorists from using those services “knowingly” provided substantial assistance under Section 2333 merely because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use.
• Whether a defendant whose generic, widely available services were not used in connection with the specific “act of international terrorism” that injured the plaintiff may be liable for aiding and abetting under Section 2333.

In re Grand Jury, No. 21-1397.

Whether a communication involving both legal and nonlegal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.

Coinbase, Inc. v. Bielski, No. 22-105.

Does a non-frivolous appeal of the denial of a motion to compel arbitration oust a district court’s jurisdiction to proceed with litigation pending appeal, as the Third, Fourth, Seventh, Tenth, Eleventh and D.C. Circuits have held, or does the district court retain discretion to proceed with litigation while the appeal is pending, as the Second, Fifth, and Ninth Circuits have held?

Jack Daniel’s Properties, Inc. v. VIP Products LLC, No. 22-148.

• Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims.
• Whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.

Abitron Austria GmbH v. Hetronic International, Inc., No. 21-1043.

Whether the court of appeals erred in applying the Lanham Act extraterritorially to petitioners’ foreign sales, including purely foreign sales that never reached the United States or confused U.S. consumers.

Smith v. United States, No. 21-1576.

Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the Fifth and Eighth Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the Sixth, Ninth, Tenth, and Eleventh Circuits have held.

Samia v. United States, No. 22-196.

Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.

Lora v. United States, No. 22-49.

Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

United States v. Hansen, No. 22-179.

Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Dubin v. United States, No. 22-10.

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

Turkiye Halk Bankasi A.S. v. United States, No. 21-1450.

Whether U.S. district courts may exercise subject matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1441(d), 1602-1611.

Perez v. Sturgis Public Schools, No. 21-887.

• Whether, and in what circumstances, courts should excuse further exhaustion of the IDEA’s administrative proceedings under Section 1415(l) when such proceedings would be futile.
• Whether Section 1415(l) requires exhaustion of a non-IDEA claim seeking money damages that are not available under the IDEA.

Financial Oversight Board v. CPI, No. 22-96.

Does 48 U.S.C. § 2126(a)’s general grant of jurisdiction to the federal courts over claims against the Board and claims otherwise arising under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) abrogate the Board’s sovereign immunity with respect to all federal and territorial claims?

Santos-Zacaria v. Garland, No. 21-1436.

• Whether Section 1252(d)(1)’s exhaustion requirement is jurisdictional, or merely a mandatory claims processing rule that may be waived or forfeited.
• Whether, to satisfy Section 1252(d)(1)’s exhaustion requirement, a noncitizen who challenges a new error introduced by the BIA must first ask the agency to exercise its discretion to reopen or reconsider.

Arizona v. Navajo Nation, No. 21-1484.

• Does the Ninth Circuit opinion — allowing the Nation to proceed with a claim to enjoin the Secretary to develop a plan to meet the Nation’s water needs and manage the mainstream of the LBCR so as not to interfere with that plan — infringe upon this Court’s retained and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California?
• Can the Nation state a cognizable claim for breach of trust consistent with this Court’s holding in Jicarilla based solely on unquantified implied rights to water under the Winters Doctrine?

Department of Interior v. Navajo Nation, No. 22-51.

Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.

Turkiye Halk Bankasi A.S. v. United States, No. 21-1450.

Whether U.S. district courts may exercise subject matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1441(d), 1602-1611.

Glacier Northwest, Inc. v. International Brotherhood of Teamsters, No. 21-1449.

Does the National Labor Relations Act impliedly preempt a state tort claim against a union for intentionally destroying an employer’s property in the course of a labor dispute?

The Ohio Adjutant General’s Department v. Federal Labor Relations Authority, No. 21-1454.

Does the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, see 5 U.S.C. § 7105(g), empower it to regulate the labor practices of state militias?

Amgen Inc. v. Sanofi, No. 21-757.

Whether enablement is governed by the statutory requirement that the specification teach those skilled in the art to “make and use” the claimed invention, 35 U.S.C. § 112, or whether it must instead enable those skilled in the art “to reach the full scope of claimed embodiments” without undue experimentation — i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial “‘time and effort.’”

Slack Technologies, LLC v. Pirani, No. 22-200.

Whether Sections 11 and 12(a)(2) of the Securities Act of 1933 require plaintiffs to plead and prove that they bought shares registered under the registration statement they claim is misleading.

Polselli v. United States Department of the Treasury — Internal Revenue Service, No. 21-1599.

Whether the § 7609(c)(2)(D)(i) exception applies only when the delinquent taxpayer owns or has a legal interest in the summonsed records (as the Ninth Circuit holds), or whether the exception applies to a summons for anyone’s records whenever the IRS thinks that person’s records might somehow help it collect a delinquent taxpayer’s liability (as the Sixth Circuit, joining the Seventh Circuit, held below).

In re Grand Jury, No. 21-1397.

Whether a communication involving both legal and nonlegal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.