Free Speech Press

24-297 MAHMOUD V. TAYLOR

DECISION BELOW: 102 F.4th 191

LOWER COURT CASE NUMBER: 23-1890

QUESTION PRESENTED:

Respondent Montgomery County Board of Education requires elementary school teachers to read their students storybooks celebrating gender transitions, Pride parades, and same-sex playground romance. The storybooks were chosen to disrupt "cisnormativity" and "either/or thinking" among students. The Board's own principals objected that the curriculum was "not appropriate for the intended age group," presented gender ideology as "fact," "sham[ed]" students with contrary opinions, and was "dismissive of religious beliefs." The Board initially allowed parents to opt their kids out-but then reversed course, saying that no opt-outs would be permitted and that parents would not even be notified when the storybooks were read.

Petitioners filed suit, not challenging the curriculum, but arguing that compelling their elementary-age children to participate in instruction contrary to their parents' religious convictions violated the Free Exercise Clause. Construing Wisconsin v. Yoder, the Fourth Circuit found no free-exercise burden because no one was forced "to change their religious beliefs or conduct."

The question presented is:

o Do public schools burden parents' religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents' religious convictions and with-out notice or opportunity to opt out?

CERT. GRANTED 1/17/2025

You can read the oral argument transcript here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24-297_j426.pdf

24-275 PARRISH V. UNITED STATES

DECISION BELOW: 74 F.4th 160

LOWER COURT CASE NUMBER: 20-1766

QUESTION PRESENTED:

Ordinarily, litigants must file a notice of appeal within 30 or 60 days of an adverse 28 U.S.C. § 2107(a)-(b). Under 28 U.S.C. § 2107(c) and Fed. R. App. P. 4(a)(6), however, district courts can reopen an expired appeal period when a party did not receive timely notice of the judgment. The Courts of Appeals have divided about whether a notice of appeal filed after the expiration of the ordinary appeal period but before the appeal period is reopened becomes effective once reopening is granted.

The Question Presented is whether a litigant who files a notice of appeal after the ordinary appeal period expires must file a second, duplicative notice after the appeal period is reopened.

MICHAEL R. HUSTON, ESQUIRE, OF WASHINGTON, D. C., IS INVITED TO BRIEF AND ARGUE THIS CASE, AS AMICUS CURIAE , IN SUPPORT OF THE JUDGMENT BELOW.

CERT. GRANTED 1/17/2025

You can read the oral argument transcript here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24-275_6j37.pdf

24-316 KENNEDY V. BRAIDWOOD MANAGEMENT, INC.

DECISION BELOW: 104 F.4th 930

LOWER COURT CASE NUMBER: 23-10326

QUESTION PRESENTED:

The U.S. Preventive Services Task Force (Task Force), which sits within the Public Health Service of the Department of Health and Human Services (HHS), issues clinical recommendations for preventive medical services, such as screenings and medications to prevent serious diseases. Under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, health insurance issuers and group health plans must cover certain preventive services recommended by the Task Force without imposing any cost-sharing requirements on patients. 42 U.S.C. 300gg-13(a)(1). The question presented is as follows:

o Whether the court of appeals erred in holding that the structure of the Task Force violates the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, and in declining to sever the statutory provision that it found to unduly insulate the Task Force from the HHS Secretary’s supervision.

CERT. GRANTED 1/10/2025

You can read the oral transcript here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24-316_e29g.pdf

23-1275 MEDINA, DIRECTOR SC DEPT OF HEALTH V. PLANNED PARENTHOOD

DECISION BELOW: 95 F.4th 152

LOWER COURT CASE NUMBER: 21-1043

QUESTION PRESENTED:

More than 30 years ago, this Court first applied what would become known as the "Blessing factors," holding that a Medicaid Act provision created a privately enforceableright to certain reimbursement rates. Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 509-10 (1990). Later, the Court distilled from Wilder a multi-factor test for deciding whether a "statutory provision gives rise to a federal right" privately enforceable under Section 1983. Blessing v. Freestone, 520 U.S. 329, 340 (1997). Five years later, though, the Court disparaged Blessing's test while clarifying that only "an unambiguously conferredright is enforceable by § 1983." Gonzaga University v. Doe, 536 U.S. 273, 282 (2002). Then, in Health & Hospital Corp. of Marion County v. Talevski, 599 U.S. 166, 180 (2023), the Court doubled down on Gonzaga's "demanding bar."

The Court did not apply Blessing or Wilder in Talevski, but it did not overrule them either. After the Court GVR'd this case in light of Talevski, the Fourth Circuit applied Wilder and Blessing again and reaffirmed its prior opinions, maintaining a 5-2 circuit split over the first question presented and a 3-1 circuit split over the proper reading of O'Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), which frames the second question. Those questions are:

1. Whether the Medicaid Act's any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider.

2. What is the scope of a Medicaid beneficiary's alleged right to choose a provider that a state has deemed disqualified?

THE PETITION FOR CERTIORARI IS GRANTED LIMITED TO QUESTION 1 PRESENTED BY THE PETITION.

CERT. GRANTED 12/18/2024

You can read the transcript here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-1275_0pl1.pdf

24-20 FULD V. PLO

DECISION BELOW: 82 F.4th 74

LOWER COURT CASE NUMBER: 22-76, 22-496

QUESTION PRESENTED:

The Anti-Terrorism Act (ATA), 18 U.S.C. § 2331 et seq., provides an extraterritorial private right of action for victims of terror attacks committed against American nationals abroad. In 2019, Congress amended the ATA by enacting the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA). Under the PSJVTA, the Palestinian Liberation Organization (PLO) and Palestinian Authority (PA) "shall be deemed to have consented to personal jurisdiction" in an ATA action if:

(a) more than 120 days after the statute's enactment, they pay any terrorist convicted of or killed while committing a terror attack against an American national, and the payment is made "by reason of' the conviction or terror attack, 18 U.S.C. § 2334(e) (1)(A); or

(b) more than 15 days after the statute's enactment, they "conduct any activity" while physically present in the United States (with limited exceptions), id. § 2334(e)(1) (B).

The PLO and PA engaged in both categories of conduct after the trigger dates. But in the decisions below, the Second Circuit facially invalidated the PSJVTA. The court held that the Fifth Amendment forbids Congress from specifying conduct thattriggers a defendant's consent to federal jurisdiction unless the statute provides the defendant with some "governmental benefit" in return, and that the PLO and PA had not received such a benefit.

The question presented is:

Whether the PSJVTA violates the Fifth Amendment.

CONSOLIDATED WITH 24-151 FOR ONE HOUR ORAL ARGUMENT

CERT. GRANTED 12/6/2024

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24-151 UNITED STATES V. PLO

DECISION BELOW: 82 F.4th 74

LOWER COURT CASE NUMBER: 22-76, 22-496

QUESTION PRESENTED:

In the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), Pub. L. No. 116-94, Div. J, Tit. IX,§ 903, 133 Stat. 3082, Congress provided that the Palestine Liberation Organization and the Palestinian Authority "shall be deemed to have consented to personal jurisdiction" in certain terrorism-related civil suits if they took specified actions in the future: (a) made payments to designees or family members of terrorists who injured or killed U.S. nationals, or (b) maintained certainpremises or conducted particular activities in the United States. 18 U.S.C. 2334(e)(1) (Supp. IV 2022).

The question presented is whether the PSJVTA's means of establishing personal jurisdiction complies with the Due Process Clause of the Fifth Amendment.

CONSOLIDATED WITH 24-20 FOR ONE HOUR ORAL ARGUMENT.

CERT. GRANTED 12/6/2024

You can read the transcript here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24-20_f2bh.pdf

23-1345 RIVERS V. GUERRERO

DECISION BELOW: 99 F.4th 216

LOWER COURT CASE NUMBER: 21-11031

QUESTION PRESENTED:

Under the federal habeas statute, a prisoner "always gets one chance to bring a federal habeas challenge to his conviction," Banister v. Davis, 590 U.S. 504, 509 (2020). After that, thestringent gatekeeping requirements of 28 U.S.C. § 2244(b)(2) bar nearly all attempts to file a "second or successive habeas corpus application." Here, petitioner sought to amend his initialhabeas application while it was pending on appeal. The Fifth Circuit applied § 2244(b)(2) and rejected the amended filing.

The circuits are intractably split on whether § 2244(b)(2) applies to such filings. The Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits hold that § 2244(b)(2) categoricallyapplies to all second-in-time habeas filings made after the district court enters final judgment. The Second Circuit disagrees, applying § 2244(b)(2) only after a petitioner exhausts appellate review of his initial petition. And the Third and Tenth Circuits exempt some second-in-time filings from § 2244(b)(2), depending on whether a prisoner prevails on his initial appeal (Third Circuit) or satisfies a seven-factor test (Tenth Circuit).

The question presented is:

Whether § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after CERT. GRANTED 12/6/2024final judgment, or (iii) to some second-in-time filings, depending on a prisoner's success on appeal or ability to satisfy a seven-factor test.

CERT. GRANTED 12/6/2024

You can read the transcript here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-1345_9ol1.pdf

QUESTION PRESENTED:

Wisconsin exempts from its state unemployment tax system certain religious organizations that are "operated, supervised, controlled, or principally supported by a church or convention or association of churches" and that are also "operated primarily for religious purposes."

Petitioners are Catholic Charities of the Diocese of Superior and several sub-entities. Although all agree Catholic Charities is controlled by a church-the Diocese of Superior-the Wisconsin Supreme Court held that Catholic Charities is not "operated primarily for religious purposes" and thus does not qualify for the tax exemption. Specifically, the court held that Catholic Charities' activities are not "typical" religious activities because Catholic Charities serves and employs non-Catholics, Catholic Charities does not "attempt to imbue program participants with the Catholic faith," and its services to the poor and needy could also be provided by secular organizations.

The questions presented are:

1. Does a state violate the First Amendment's Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet thestate's criteria for religious behavior?

2. In addressing federal constitutional challenges, may state courts require proof of unconstitutionality "beyond a reasonable doubt?"

ORDER OF 12/16/2024:

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED LIMITED TO QUESTION 1 PRESENTED BY THE PETITION.

CERT. GRANTED 12/13/2024

You can read the transcript here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24-154_5h26.pdf

24-354 FEDERAL COMMUNICATIONS COMMISSION V. CONSUMERS' RESEARCH

DECISION BELOW: 109 F.4th 743

LOWER COURT CASE NUMBER: 22-60008

QUESTION PRESENTED:

In 47 U.S.C. 254, Congress required the Federal Communications Commission (Commission) to operate universal service subsidy programs using mandatorycontributions from telecommunications carriers. The Commission has appointed a private company as the programs' Administrator, authorizing that company to perform administrative tasks such as sending out bills, collecting contributions, and disbursing funds to beneficiaries. The questions presented are as follows:

1. Whether Congress violated the nondelegation doctrine by authorizing the Commission to determine, within the limits set forth in Section 254, the amount that providers must contribute to the Fund.

2. Whether the Commission violated the nondelegation doctrine by using the Administrator's financial projections in computing universal service contribution rates.

3. Whether the combination of Congress's conferral of authority on the Commission and the Commission's delegation of administrative responsibilities to the Administrator violates the nondelegation doctrine.

CONSOLIDATED WITH 24-422 FOR ONE HOUR ORAL ARGUMENT

IN ADDITION TO THE QUESTIONS PRESENTED BY THE PETITIONS, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: WHETHER THIS CASE IS MOOT IN LIGHT OF THE CHALLENGERS' FAILURE TO SEEK PRELIMINARY RELIEF BEFORE THE FIFTH CIRCUIT.

CERT. GRANTED 11/22/2024

24-422 SHLB COALITION V. CONSUMERS' RESEARCH

DECISION BELOW: 109 F.4th 743

LOWER COURT CASE NUMBER: 22-60008

QUESTION PRESENTED:

In the Telecommunications Act of 1996, Congress required the FCC to update existing subsidy mechanisms in order to promote "universal service," supported by statutorily required contributions from carriers offering interstate telecommunications service. Congress defined universal service and adopted specific, detailed principles to guide and cabin the FCC's exercise of delegated authority. See 47 U.S.C. §§ 254(b), (c), (h).

Following Congress's directive in Section 254, the FCC has administered the Universal Service Fund ("USF" or "the Fund") for decades, with support from the Universal Service Administrative Company ("USAC"). The FCC's rules limit USAC's role to administrative matters, prohibit USAC from making policy decisions, and provide for de novo FCC review of any USAC decision upon request.

The questions presented are:

1. Whether Congress violated the nondelegation doctrine by authorizing the Commission to determine, within the limits set forth in Section 254, the amount that providers must contribute to the Fund.

2. Whether the Commission violated the nondelegation doctrine by using USAC's financial projections in computing universal service contribution rates.

3. Whether the combination of Congress's conferral of authority on the Commission and the Commission's delegation of administrative responsibilities to USAC violates the nondelegation doctrine.

CONSOLIDATED WITH 24-354 FOR ONE HOUR ORAL ARGUMENT.

IN ADDITION TO THE QUESTIONS PRESENTED BY THE PETITIONS, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: WHETHER THIS CASE IS MOOT IN LIGHT OF THE CHALLENGERS' FAILURE TO SEEK PRELIMINARY RELIEF BEFORE THE FIFTH CIRCUIT.

CERT. GRANTED 11/22/2024

Read the transcript here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-354_2co3.pdf

23-1067 OKLAHOMA V. ENVIRONMENTAL PROTECTION AGENCY

DECISION BELOW: 93 F.4th 1262

LOWER COURT CASE NUMBER: 23-9514

QUESTION PRESENTED:

Under the Clean Air Act, each state must adopt an implementation plan to meet national standards, which EPA then reviews for compliance with the Act. See 42 U.S.C. § 7410. In 2023, EPA published disapprovals of 21 states' plans implementing national ozone standards. It did so in a single Federal Register notice. The Act specifies that "[a] petition for review of the [EPA's] action in approving or promulgatingany implementation plan ... or any other final action of the [EPA] under this Act ... which is locally or regionally applicable may be filed only in" the appropriate regional circuit, while "nationally applicable regulations ... may be filed only in" the D.C. Circuit. 42U.S.C. § 7607(b)(1). Parties from a dozen states sought judicial review of their respective state plan disapprovals in their appropriate regional circuits.

The Fourth, Fifth, Sixth, and Eighth Circuits held that the implementation plan disapprovals of states within those circuits are appropriately challenged in their respective regional courts of appeals. In the decision below, the Tenth Circuit held that challenges to the disapprovals of Oklahoma's and Utah's plans can only be brought in the D.C. Circuit, explicitly disagreeing with the decisions of its sister circuits.

The question presented is:

Whether a final action by EPA taken pursuant to its Clean Air Act authority with respect to a single state or region may be challenged only in the D.C. Circuit because EPA published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states

CONSOLIDATED WITH 23-1068 FOR ONE HOUR ORAL ARGUMENT. JUSTICE ALITO TOOK NO PART.

CERT. GRANTED 10/21/2024

23-1068 PACIFICORP V. ENVIRONMENTAL PROTECTION ACENCY

DECISION BELOW: 93 F.4th 1262

LOWER COURT CASE NUMBER: 23-9512

QUESTION PRESENTED:

Whether the Environmental Protection Agency's disapproval of a State Implementation Plan may only be challenged in the D.C. Circuit under 42 U.S.C. § 7607 (b)(1) if EPA packages that disapproval with disapprovals of other States' SIPs andpurports to use a consistent method in evaluating the state-specific determinations in those SIPs.

CONSOLIDATED WITH 23-1067 FOR ONE HOUR ORAL ARGUMENT. JUSTICE ALITO TOOK NO PART.

CERT. GRANTED 10/21/2024

Read the transcript here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-1067_6647.pdf

23-1229 ENVIRONMENTAL PROTECTION AGENCY V. CALUMET SHREVEPORT REFINING

DECISION BELOW: 86 F.4th 1121

LOWER COURT CASE NUMBER: 22-60266, 22-60425, 22-60433, 22-60434

QUESTION PRESENTED:

In a pair of final actions, the United States Environmental Protection Agency (EPA) denied 105 petitions filed by small oil refineries seeking exemptions from the requirements of the Clean Air Act's Renewable Fuel Standard Program. Six of those refineries petitioned for review of EPA's decisions in the Fifth Circuit, which denied the government's motion for transfer to the D.C. Circuit. The question presented is as follows:

Whether venue for the refineries' challenges lies exclusively in the D.C. Circuit because the agency's denial actions are "nationally applicable" or, alternatively, are "based on a determination of nationwide scope or effect." 42 U.S.C. 7607(b)(1).

CERT. GRANTED 10/21/2024

Read the Transcript Here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-1229_qol1.pdf