Peter v. NantKwest, Inc.

Issues

Does the term “expenses” under 35 U.S.C. § 145 read broadly enough that prospective litigants must cover the United States Patent and Trademark Office's attorneys’ fees when challenging a rejected patent application?

This case asks the Supreme Court to determine whether the term “expenses” in 35 U.S.C. § 145 should be interpreted to include attorneys’ fees. To appeal a denied patent application under § 145, the patent applicant must be willing to pay the United States Patent and Trademark Office’s (“PTO”) “expenses” related to the litigation. The PTO contends that its attorneys’ fees incurred from litigating § 145 appeals should count as reimbursable “expenses.” NantKwest counters that the American Rule, a presumption that each party in litigation will pay its own attorneys’ fees unless there is explicit and specific statutory language allowing fee-shifting, is not defeated by the vague § 145 language regarding “expenses,” and that accordingly the PTO must pay its own attorneys’ fees in § 145 actions. The outcome of this case has important implications for the future of the American Rule, the interpretation of the term “expenses” in other statutes, and the cost of making a § 145 appeal from a rejected patent application.

Questions as Framed for the Court by the Parties

Whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in § 145 litigation.

In 1839, Congress passed  35 U.S.C. § 145’s predecessor which set forth the modern framework for reimbursing the United States Patent and Trademark Office (“PTO”) for the expenses it incurs from litigating rejected patent claims. NantKwest, Inc. v.

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R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

Issues

Does Title VII of the Civil Rights Act of 1964 prohibit discrimination against transgender individuals, either as a form of sex discrimination or as impermissible “sex stereotyping” under Price Waterhouse v. Hopkins?

This case asks the Supreme Court to decide whether the prohibition of sex-based discrimination under Title VII of the Civil Rights Act of 1964 also extends to discrimination based on gender identity. Harris Funeral Homes (“Harris Homes”) terminated Aimee Stephens’s employment shortly after Stephens informed Harris Homes that she was transgender. Harris Homes and the Equal Opportunity Employment Commission (“EEOC”) take the position that Stephens’s termination was not discriminatory because her termination was premised upon her refusal to follow Harris Homes’s sex-specific and strictly applied dress code. Stephens counters that her dismissal was impermissible under Title VII because the decision to fire her was based on her sex and general principles of “sex stereotyping.” The Supreme Court’s decision will have implications for the wellbeing of transgender employees and for the religious interests of employers.

Questions as Framed for the Court by the Parties

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

From October 2007 to August 2013, Aimee Stephens was employed as a funeral director for R.G. & G.R. Harris Funeral Homes (“Harris Homes”), a for-profit corporation operating funeral homes in Michigan. Equal Employment Opportunity Commission v. R.G. & G.R.

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Acknowledgments

The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.

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Ramos v. Louisiana

Issues

Does the U.S. Constitution require a unanimous jury verdict to convict a state criminal defendant?

This case asks the U.S. Supreme Court to reconsider its holding in Apodaca v. Oregon, where the Court held that states could permit non-unanimous jury verdicts to convict criminal defendants. In July 2016, Evangelisto Ramos was found guilty of second-degree murder by a ten to two jury verdict. Ramos contends that a non-unanimous jury conviction violates the Sixth Amendment right to a fair jury trial, and therefore, the Court should overrule Apodaca. Louisiana counters that, under Apodaca, states are not constitutionally required to mandate unanimous jury verdicts because the Sixth Amendment imposes that requirement only on the federal government. The outcome of this case has important implications for criminal procedure and the participation of minority citizens in jury deliberation.

Questions as Framed for the Court by the Parties

Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

On November 26, 2014, while inspecting blighted areas in New Orleans, a code enforcement officer discovered the dead body of a woman, later identified as Trinece Fedison, inside a trash can in an alley. Louisiana v. Ramos at 2. New Orleans homicide detectives investigated and learned that Trinece’s nephew, Jerome Fedison, had information on a possible suspect.

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Acknowledgments

The authors would like to thank Professors Blume, Johnson, Rana, and Weyble for their guidance and insight into this case.

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Department of Commerce v. New York

Issues

Can a district court order the collection of evidence outside the administrative record—including compelling a high-ranking government official’s deposition—without any evidence showing that the decisionmaker did not believe the objective reasons behind the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis?

Was the Department of Commerce’s decision to add a citizenship question to the 2020 census unlawful—either under the Administrative Procedure Act or the Enumeration Clause of the Constitution?

In addition to determining whether the Census Bureau’s addition of a citizenship question to the 2020 Census was lawful, the Court must also determine whether the Court can order discovery outside the administrative record, including a deposition of the Secretary of Commerce. The Department of Commerce argues that the deposition substantially intrudes on the Secretary’s job because there is no showing of bad faith nor extraordinary circumstances which warrant the additional discovery. The Department of Commerce also posit that the addition of the citizenship question was not arbitrary and capricious, was in accordance with law, and did not violate the Enumeration Clause of the Constitution. The Department of Commerce finally contends that adding a citizenship question would provide more accurate citizenship information and help enforce the Voting Rights Act. However, the State of New York and the New York Immigration Coalition assert that the Secretary exhibited bad faith by submitting an incomplete record and they contend that his reasons for doing so are incomplete and pretextual. They argue that because he is uniquely and personally involved in adding the citizenship question, extraordinary circumstances warrant his deposition. The State of New York and the New York Immigration Coalition counter that adding a citizenship question would lower response rates from noncitizens and affect apportionment of representatives.  

Questions as Framed for the Court by the Parties

(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq;

(2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking executive branch officials —without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and

(3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

The Constitution requires that the United States population be counted every ten years. New York v. United States Department of Commerce (“N.Y. v. Department”), at 2.

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Fort Bend County, Texas v. Davis

Issues

Is Title VII’s administrative-exhaustion requirement a waivable rule that agencies can raise as an affirmative defense, or is it a jurisdictional prerequisite for suit?

The Supreme Court will determine whether federal jurisdiction over Title VII claims is limited to claims that have met Title VII’s administrative-exhaustion requirement by first being presented to the Equal Employment Opportunity Commission (“EEOC”). Fort Bend County, Texas (“Fort Bend”) argues that it is “fairly discernable” from the text, structure, and purpose of Title VII that Congress intended to limit jurisdiction in this way, and so presenting a claim before the EEOC should constitute a jurisdictional prerequisite to suit. Lois Davis (“Davis”), who filed a Title VII complaint alleging sexual harassment, retaliation, and religious discrimination while employed by Fort Bend, contends that because Congress has not made a “clear statement” that the administrative exhaustion requirement under Title VII is jurisdictional, jurisdiction should not be limited where the exhaustion requirement has not been met. This case will have implications for the efficiency and costs of administrative actions and Title VII enforcement.

Questions as Framed for the Court by the Parties

Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.

Lois Davis (“Davis”), an information technology supervisor employed by Fort Bend County (“Fort Bend”), reported to the human resources office that the information technology director (“director”) sexually harassed her. Davis v. Fort Bend County, Texas, 893 F.3d 300, 302 (5th Cir. 2018). The director eventually resigned because of the ensuing investigation.

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Food Marketing Institute v. Argus Leader Media

Issues

Is information exempt from disclosure under Exemption 4 of the Freedom of Information Act if the disclosure of the information does not cause substantial competitive harm to the third-party submitter?

This case asks the Supreme Court to resolve conflicting interpretations of Exemption 4 of the Freedom of Information Act (“FOIA”). Food Marketing Institute contends that the plain meaning interpretation of Exemption 4 applies the exemption to confidential information, regardless of the competitive harm that will be caused if disclosed. And, if the Court selectively applies Exemption 4 to confidential information that will cause substantive competitive harm if disclosed, Food Marking Institute argues, then a reasonable possibility of competitive harm should satisfy the substantive harm standard. In response, Argus Leader Media asserts that Food Marketing Institute lacks the standing to bring this argument, because the Supreme Court cannot prohibit the disclosure of this information, precluding redressability. Argus Leader Media additionally asserts that the statutory context of Exemption 4—including multiple uses of identical language in other statutes—suggests that the Exemption 4 only applies to information that causes competitive harm. The outcome of this case will have implications on the disclosure of Supplemental Nutrition Assistance Program (“SNAP”) data and other privately-held data, consumer interests, and public health and safety.

Questions as Framed for the Court by the Parties

(1) Whether the statutory term “confidential” in the Freedom of Information Act’s Exemption 4 bears its ordinary meaning, thus requiring the government to withhold all “commercial or financial information” that is privately held and not publicly disseminated, regardless of whether a party establishes substantial competitive harm from disclosure—which would resolve at least five circuit splits; and

(2) whether, in the alternative, if the Supreme Court retains the substantial-competitive-harm test, that test is satisfied when the requested information could be potentially useful to a competitor, as the U.S. Courts of Appeals for the 1st and 10th Circuits have held, or whether the party opposing disclosure must establish with near certainty a defined competitive harm like lost market share, as the U.S. Courts of Appeals for the 9th and District of Columbia Circuits have held, and as the U.S. Court of Appeals for the 8th Circuit required here.

Respondent Argus Leader Media (“Argus Leader”) is a daily newspaper published in Sioux Falls, South Dakota. In February 2011, Argus Leader filed a Freedom of Information Act (“FOIA”) request with the U.S. Department of Agriculture (“USDA”) in order to investigate the effectiveness of the federally-subsidized Supplemental Nutrition Assistance Program (“SNAP”).

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Quarles v. United States

Issues

Does burglary, which is a predicate offense triggering enhanced sentencing under the Armed Career Criminal Act, require that a defendant form an intent to commit a crime at the time of first unlawful entry into a building, or does it allow for the formation of intent at any time in which the defendant remains in the building?

In this case, the Supreme Court will determine whether parts of the Michigan third-degree home invasion statute fall under the Armed Career Criminal Act’s (“ACCA”) definition of “burglary.” Specifically, the Court will determine at what point in time a defendant who unlawfully enters a building must form the intent to commit another crime. Petitioner Jamar Alonzo Quarles argues that a defendant must form the intent to commit another crime at the initial moment of unlawful entry or unlawful remaining in a structure, in order for his or her conduct to qualify as burglary. Respondent United States contends that it is sufficient that a defendant develops the intent to commit another crime at any point while unlawfully remaining in the structure. This case will impact the number of criminal defendants subjected to enhanced sentencing under the ACCA.

Questions as Framed for the Court by the Parties

Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.

Petitioner Jamar Alonzo Quarles pleaded guilty in the United States District Court for the Western District of Michigan to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Quarles at 837. According to 18 U.S.C.

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Mitchell v. Wisconsin

Issues

Does the Fourth Amendment require law enforcement to obtain a warrant before drawing blood from an unconscious motorist when, under state law, intoxicated motorists have given their implied consent for blood draws?

This case asks the Supreme Court to determine whether the Fourth Amendment permits police to draw blood from unconscious drivers under a theory of implied consent in lieu of a warrant. Gerard Mitchell, a driver from whom police drew blood while he was unconscious, contends that the Fourth Amendment’s consent exception should not apply because a blood draw is a serious intrusion that calls for a warrant. Wisconsin argues that it has a great interest in addressing intoxicated driving, and it fairly uses an implied-consent statute that allows it to draw blood from unconscious drivers. Mitchell suggests that permitting these warrantless blood draws may seriously threaten privacy rights and open the door to additional forms of warrantless intrusions. Wisconsin warns of the dangers posed by impeding police efforts to remove intoxicated drivers from the road.

Questions as Framed for the Court by the Parties

In a state with an implied-consent statute for intoxicated motorists, is a warrantless blood draw of an unconscious driver for whom police have probable cause of operating under the influence an unlawful search under the Fourth Amendment?

In 2013, the City of Sheboygan Police Department received a report that a neighbor saw Gerald Mitchell, who appeared intoxicated, drive away in a van. State v. Mitchell at 3. The police officers responding to the report found Mitchell walking near a beach. Id. Mitchell was wet, shirtless, covered in sand, unbalanced, and had slurred speech.

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Rehaif v. United States

Issues

Does the knowledge requirement in 18 U.S.C. § 924(a) apply to both the possession and immigration status elements in 18 U.S.C. § 922(g), which prohibits any person unlawfully in the United States from possessing firearms or ammunition, or just to the possession element?

This case asks the Supreme Court to decide whether the government must prove that a defendant knew that they were prohibited from purchasing a firearm as a result of their residency status in violation of 18 U.S.C. § 922(g), which prohibits a person who is unlawfully in the United States from possessing any firearm or ammunition and its penalty statute, 18 U.S.C. § 924(a)(2). Hamid Rehaif was charged with violating these provisions when he purchased a firearm after, unbeknownst to him, his visa had expired. Rehaif contends that the government must prove that he knew about his unlawful status when he had purchased the fire arm. The United States government counters that they need not prove Rehaif knew he was unlawfully in the United States. The outcome of this case will impact the degree of protection defendants have against unknowingly unlawful conduct, the nature of evidence that the prosecution must present at federal criminal trials, and the legal consequences of making an unauthorized purchase of a firearm.

Questions as Framed for the Court by the Parties

Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

Hamid Mohamed Ahmed Ali Rehaif is a citizen of the United Arab Emirates. United States v. Rehaif at 3. Rehaif applied and was accepted to the Florida Institute of Technology (“FIT”). Id. The United States issued Rehaif an F-1 nonimmigrant student visa to study at FIT on the condition that Rehaif pursue a full course of study or engage in training following graduation.

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Taggart v. Lorenzen

Issues

Does a creditor’s good-faith belief that an attempt to collect non-dischargeable debt does not violate a bankruptcy court’s discharge order protect the creditor from contempt?

This case asks the Supreme Court to determine what role, if any, good-faith belief plays in relation to contempt and bankruptcy discharge orders. Petitioner Bradley Weston Taggart contends that the bankruptcy code does not afford protection for creditors who violate a discharge order, even when a creditor holds a good-faith belief that his or her attempt at collection is permissible under the law. Respondents Shelley A. Lorenzen and others counter that the bankruptcy code must consider a creditor’s good-faith belief, because otherwise creditors would be held in contempt for minor violations that make it harder for them to seek collection of non-dischargeable debt. The outcome of this case will have significant implications on the limits of creditor liability and debtor protection in the discharge context as well as implications for legal advocacy, state taxation, and the economy.

Questions as Framed for the Court by the Parties

Whether, under the Bankruptcy Code, a creditor’s good-faith belief that the discharge injunction does not apply precludes a finding of civil contempt.

Petitioner Bradley Weston Taggart, a real estate developer, owned a twenty-five percent interest in Sherwood Park Business Center (“SPBC”). Lorenzen v. Taggart, 888 F.3d 438, 440 (9th Cir. 2018). In 2007, Taggart transferred his interest in SPBC to his lawyer, John Berman. Id.

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