The OSG and More Potential Cases for 2016


With the Supreme Court’s 2016 Term around the corner, there is nowhere near a full slate of cases for the Justices to hear.  While the October and November hearing schedules were released and there are a handful of other granted cases without oral argument dates on the calendar, there are currently only approximately 29 cases (see SCOTUSBlog’s list of granted cases for more) on the Court’s merits docket (factoring in when cases with similar parties are consolidated for hearings).  Based on previous years grants this leaves over half of the Court’s merits docket still open.

This is not unusual as the Court often grants cases on cert well into a Term, although the pace of grants for the 2016 has been sluggish.  One obvious question is which cases the Court is likely to hear based on those with open cert petitions. The most likely sources for upcoming grants are the federal government’s filings.  Even the most successful attorneys on cert do not approach the cert success rates of the Office of the Solicitor General’s (OSG) petitions (see charts on page 27 and 33 of this forthcoming paper).  To get a sense of potential cases the Court may hear, we can look to cases where the OSG has sought cert.

The OSG is already involved in 21 of the 29 or so cases that the Court has on its 2016 docket:

  • It is petitioner in three cases: National Labor Relations Board v. SW General, Lynch v. Morales-Santana, Jennings v. Rodriguez;
  • Respondent in five: Beckles v. U.S., Shaw v. U.S., Bravo-Fernandez v. U.S., Salman v. U.S., Manrique v. U.S.;
  • It filed amicus briefs on the merits in six cases (including one yesterday, 9-21-2016 in Star Athletica): Manuel v. City of Joliet, Samsung Electronics Co. v. Apple, Pena-Rodriguez v. Colorado, Star Athletica, LLC v. Varsity Brands, Murr v. Wisconsin, Bethune-Hill v. Virginia State Board of Elections;
  • And responded to Calls for the Views of the Solicitor General (see this post for more on the CVSGs) with cert stage amicus briefs in seven: Fry v. Napoleon Community Schools, State Farm Fire and Casualty Co. v. United States ex rel. Rigsby, Venezuela v. Helmerich & Payne International, Ivy v. Morath, Lightfoot v. Cendant Mortgage Corporation, Life Technologies Corporation v. Promega Corporation, Czyzewski v. Jevic Holding Corporation

The above list accounts for already granted cases.  It should also be noted that the OSG did not respond to every CVSG above with a recommendation stipulating that the Court should grant the case (see for example this petition in Ivy v. Morath).  CVSGs preliminarily signal the Court’s interest in a case irrespective of the OSG’s response.  In cases where the views of the SG are requested, grants are much more likely upon favorable recommendations however.  There are currently eight cases with outstanding CVSGs.  The OSG filed has yet to file cert stage amicus briefs in seven of these. In the eighth, the OSG recommended a grant (in Endrew F. v. Douglas County School District).

I) Here is information about these eight petitions

1) Endrew F. v. Douglas County School District (15-827) looks at the responsible party for tuition and expenses for an autistic student

  • Lower Court – 10th circuit: Opinion for the court filed by Circuit Judge TYMKOVICH
  • Attorneys:
    •  Jack D. Robinson from Spies Powers & Robinson, PC (Petitioner)
    • Neal K. Katyal from Hogan Lovells US LLP, Robert Sherman Ross Jr. of the Douglas County School District and W. Stuart Stuller from Caplan and Earnest LLC  (Respondent)
  • Currently one other amicus brief filed in the by the Public Interest Law Center

2) Amgen Inc., et al., Petitioners v. Sandoz Inc. (15-1195) deals with patent infringement under the Biologics Price Competition and Innovation Act (BPCIA)

  • Lower Court- Federal Circuit: Opinion for the court filed by Circuit Judge LOURIE. Opinion concurring in part, dissenting in part filed by Circuit Judge NEWMAN. Opinion dissenting in part filed by Circuit Judge CHEN.
  • Attorneys:
    • Nicholas Groombridge from Paul, Weiss, Rifkind, Wharton & Garrison, LLP (Petitioner)
    • Deanne E. Maynard from Morrison & Foerster LLP (Respondent)

3) Impression Products, Inc.v. Lexmark International, Inc. looks at a patent action based on remanufactured printer cartridges originally sold outside of United States

  • Lower Court- Federal Circuit: Opinion for the court filed by Circuit Judge TARANTO, in which Chief Judge PROST and Circuit Judges NEWMAN, LOURIE, MOORE, O’MALLEY, REYNA, WALLACH, CHEN, and STOLL join. Dissenting opinion filed by Circuit Judge DYK, in which Circuit Judge HUGHES joins.
  • Attorneys:
    • Andrew J. Pincus from Mayer Brown LLP (Petitioner)
    • Constantine L. Trela Jr. from Sidley Austin, LLP (Respondent)
  • Eight cert stage amicus briefs currently filed by: Public Knowledge, et al., Association of Service and Computer Dealers International, Inc., et al., Costco Wholesale Corporation, et al.,Auto Care Association, et al., Sandisk Corporation, The Association of Medical Device Reprocessors, Intellectual Property Professors, et al., Intel Corp., et al.

4) SmithKline Beecham Corporation King Drug Company of Florence (15-1055) examines monopoly claims predicated on a settlement between original and generic drug manufacturer

  • Lower Court – 3rd Circuit: Opinion for the court filed by Circuit Judge SCIRICA
  • Attorneys:
    • Jay P. Lefkowitz from Kirkland & Ellis LLP (Petitioner)
    • Bruce E. Gerstein from Garwin Gerstein & Fisher, LLP (Respondent)
  • Five cert stage amicus briefs currently filed by: National Association of Manufacturers, Generic Pharmaceutical Association, Pharmaceutical Research and Manufacturers of America, Washington Legal Foundation, et al., Allergan PLC

5) Pennsylvania Higher Education Assistance Agency v. Lee Pele / United Stages, ex rel. John H. Oberg (15-1044, 1045) focuses on qui tam action under the False Claims Act relating to fraudulently issuing student loans.

  • Lower Court -4th Circuit: Affirmed in part, vacated in part, and remanded. Judge MOTZ wrote the opinion, in which Judge KEENAN joined. Chief Judge TRAXLER wrote a separate opinion concurring in the judgment in part and dissenting in part.
  • Attorneys:
    • Paul D. Clement from Bancroft PLLC (now at Kirkland & Ellis) (Petitioner)
    • Allison M. Zieve from Public Citizen Litigation Group (Pele Respondent)
    • Scott Michelman from Public Citizen Litigation Group (Pele Respondent)
    • Bert W. Rein from Wiley Rein LLP (Oberg Respondent)
  • Seven cert stage amicus briefs from: States of Wisconsin, et al., American Federation of State, County and Municipal Employees, Council 13, AFL-CIO VIDED, Relators Dr. Christian Kreipke and Michael Willette. VIDED, Timothy Reese, Pennsylvania State Treasurer. VIDED., The Speaker of the Pennsylvania House of Representatives, et al. VIDED., Temple University, et al. VIDED., Association of Independent Colleges and Universities of Pennsylvania. VIDED.

6) John Howell v. Sandra Howell (15-1031) deals with ex-wife’s claims to ex-husband’s military retirement pay when ex-husband waived a portion for other benefits.

  • Lower Court-  Sup. Ct. of Arizona: Justice TIMMER authored the opinion of the Court
  • Attorneys:
    • Adam G. Unikowsky from Jenner & Block, LLP (Petitioner)
    • Charles W. Wirken from Gust Rosenfeld, PLC (Respondent)

7) Government of Belize, Petitioner v. Belize Social Development Limited (15-830) looks at when a foreign forum is inadequate due to the forum’s ability to reach U.S. assets

  • Lower Court -D.C. Circuit Opinion for the Court filed by Senior Circuit Judge SENTELLE.
  • Attorneys:
    • Juan C. Basombrio from Dorsey & Whitney LLP (Petitioner)
    • Louis B. Kimmelman from Sidley Austin LLP (Respondent)

8) Jesus C. Hernandez, et al. v. Jesus Mesa, Jr. (15-118) examines an action brought by parents of a Mexican boy shot by a U.S. Border Patrol Agent while playing in an area between the Mexican and U.S. borders.

  • Lower Court- 5th Circuit: Per Curiam decision in en-banc rehearing with multiple concurring decisions.
  • Attorneys:
    • Deepak Gupta from Gupta Wessler PLLC (Petitioner)
    • Ian Heath Gershengorn, Acting Solicitor General (Federal Respondent)
    • Randolph J. Ortegafrom Oretega McGlashan Hicks & Perez, PLLC (Mesa Respondent)
  • Four current cert stage amicus briefs filed by: Government of the United Mexican States, International USA, et al., Paso del Norte Civil Rights Project, et al., Dean Erwin Chemerinsky filed.


II) The United States also has outstanding petitions in six cases. Given the U.S. success rate with cert filings, more than half of these should lead to grants.

1) United States v. Lost Tree Village Corporation (15-1192) looks at the definition of “parcel whole” in regulatory-takings dealing with wetlands

  • Lower Court- Federal Circuit: Opinion for the court filed by Judge REYNA
  • Respondent Attorney: Jerry Stouck from Greenberg Traurig, LLP

2) Michelle K. Lee, Director, United States Patent and Trademark Office v. Simon Shiao Tam (15-1293): This case focuses on what constitutes disparagement under the Lanham Act balancing trademark and First Amendment law.

  • Lower Court – Federal circuit en banc: Opinion for the court Judge MOORE, Concurring opinion filed by Circuit Judge O’MALLEY, in which Circuit Judge WALLACH joins. Opinion concurring in part and dissenting in part filed by Circuit Judge DYK, in which Circuit Judges LOURIE and REYNA join with respect to parts I, II, III, and IV. Dissenting opinion filed by Circuit Judge LOURIE. Dissenting opinion by Circuit Judge REYNA.
  • Respondent Attorney: John C. Connell from Archer & Greiner, P.C.
  • Amicus brief filed on behalf of Pro-Football

3) Ashcroft, et al. v. Ibrahim Turkmen, et al. (15-1359) examines whether the Attorney General and Director of the Federal Bureau of Investigation should be held personally liable for policy decisions made about national-security and immigration in the aftermath of the September 11, 2001 terrorist attacks or should receive qualified immunity

  • Lower Court- 2nd Circuit:Opinion by Circuit Judges POOLER AND WESLEY;  Judge Raggi concurs in part in the judgment and dissents in part
  • Respondent Attorneys:
    • William Alden McDaniel Jr. from Ballard Spahr LLP
    • Rachel Meeropol from Center for Constitutional Rights (both resp)
  • Amicus brief filed on behalf of Former U.S. Attorneys General William P. Barr, et al.


4) United States Forest Service, et al. v. Cottonwood Environmental Law Center (15-1387) examines when the Forest Service must consult with the Fish and Wild Service under the Endangered Species Act.

  • Lower Court- 9th Circuit: Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Pregerson.
  • Respondent Attorneys:
    • Matt G. Kenna from Public Interest Envtl. Law
    • Scott L. Nelson from Public Citizen Litigation Group
  • Amicus brief filed on behalf of the American Forest Resource Council, et al.


5) Loretta E. Lynch, Attorney General, Petitioner v. Manuel Jesus Lopez-Islava, Jose Rodolfo Magana-Pena, James Garcia Dimaya (15-1494, 1496, 1498) deals with when a non-citizen is improperly denied cancellation of removal based on statutes found to be unconstitutionally vague.

  • Lower Court Opinions – 9th Circuit: Opinion by Judge Reinhardt, Dissent by Judge Callahan (in Dimaya), unsigned (in Lopez-Islava), unsigned (in Magana-Pena)
  • Respondent Attorney:
    • Joshua Rosenkranz from Orrick, Herrington & Sutcliffe LLP


6) National Labor Relations Board, Petitioner v. Murphy Oil USA (16-307) looks at when an arbitration agreement’s language violates the National Labor Relations Act even after the NLRB orders the corporation to take corrective action, especially relating to the filing of Board charges.

  • Lower Court- 5th Circuit: Opinion by Judge LESLIE H. SOUTHWICK
  • No response yet (Response due October 11, 2016)

12 Comments Add yours

  1. E6 says:

    Tam v. Lee is not about the Washington Redskins. It is about the Asian-American ban THE SLANTS.


    1. Adam Feldman says:

      Thanks (and right). Tam was the related case. I removed that reference.


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