The justices will also consider the proper procedure for appealing a suit when the initial appeals window had closed but is now reopen, and the breadth of the U.S. Tax Court's jurisdictions over disputes related to tax debts.
Additionally, the court will issue orders on Monday and opinions on Tuesday.
Here, Law360 breaks down this week's oral arguments.
Preventive Care
On Monday, the Supreme Court will hear arguments over whether members of a task force that sets preventative healthcare coverage requirements under the Affordable Care Act are unconstitutionally appointed.
Health and Human Services Secretary Robert F. Kennedy Jr. has asked the justices to reverse a Fifth Circuit panel opinion finding that members of the U.S. Preventive Services Task Force are principal officers capable of making final decisions on behalf of the government and, therefore, must be appointed by the president. The June 2024 decision held the HHS secretary lacked the necessary level of supervision over the task force's actions to characterize its members as inferior officers.
Task force members are medical experts currently appointed by the director of the Agency for Healthcare Research and Quality who recommend which preventative services should be fully covered by ACA insurers. The current case arose out of a religious challenge to the task force's recommendation that, along with cancer screenings and physical therapy for older adults, insurers should cover HIV prevention medications, or PrEP, at no cost to patients.
Kennedy and the federal government contend the Fifth Circuit panel overlooked the extent of the secretary's control over the task force, arguing its members are quintessential inferior officers because their recommendations have no binding legal effect until the secretary adopts them. The secretary also has unlimited power to remove task force members at-will, the government said. With that and other tools, the secretary has the ability to influence the task force's recommendations.
However, Braidwood Management Inc., a small business and four individuals who challenged the task force's PrEP decision, claim the task force's foundational statute requires its members to be independent of political pressure, belying Kennedy's claim that he has any control over the group. Insurers are even required to follow some of the task force's recommendations even if the secretary vetoes them, the challengers claim.
The U.S. Constitution's appointments clause also requires even inferior officers to be appointed by the president and confirmed by the U.S. Senate unless lawmakers say otherwise, Braidwood Management and the challengers said. They argue the founding statute's failure to explicitly state who appoints the task force members means the duty automatically falls to the president.
Kennedy and the federal government contend the Fifth Circuit panel overlooked the extent of the secretary's control over the task force, arguing that the
Hashim M. Mooppan of the U.S. Solicitor General's Office will argue for the federal government, and Jonathan F. Mitchell of Mitchell Law PLLC will argue for Braidwood Management.
The case is Kennedy v. Braidwood Management Inc. et al., case number 24-316.
Ripe Appeals
Also on Monday, the justices will consider whether a tardy notice of appeal that prompts a court to reopen the appeals window can become the operative filing or if litigants must then submit a subsequent, duplicative notice of appeal.
Donte Parrish, a federal inmate wrongly accused of a jailhouse murder, has urged the court to overturn a Fourth Circuit panel order that tossed his bid to revive a lawsuit seeking damages for the three years he was kept in solitary confinement while federal officials investigated the murder before ultimately clearing him. The panel faulted Parrish, who was representing himself, for not filing a subsequent notice of appeal after his original notice was construed by a district court judge as a motion to reopen the appeals window.
Despite Parrish and the U.S. Department of Justice agreeing at the Fourth Circuit that his original notice could serve both purposes, the panel found that the word "reopen" in 28 U.S.C. Section 2107(c) precludes courts from considering notices filed before the window was reopened. Parrish and the government have once again teamed up, this time to ask the justices to correct the Fourth Circuit and align it with the Third, Sixth, Seventh, Ninth and Tenth circuits.
Parrish and the government argue that as long as a notice adequately details what ruling the litigant is appealing and to which court, there is nothing in the text of Section 2107(c) or the Federal Rules of Appellate Procedure that prohibit notices filed outside of an appeals window from becoming effective. Filing a subsequent, duplicative notice would serve no purpose, and the requirement could act as a "tripwire" for pro-se litigants, they said. Supreme Court precedent also counsels against using technical defects to doom an otherwise proper appeal, the government added.
Perkins Coie LLP partner Michael R. Huston, who was tapped by the justices to argue in favor of the lower court decision, counters that Congress and the high court had limited the extent of the so-called ripening principle, or the idea that a premature notice of appeal can become effective, to situations completely different than Parrish's. And when dealing with jurisdictional requirements, only lawmakers, not justices, can redraw the lines, he said.
Jones Day partner Amanda K. Rice will argue for Parrish, and Aimee W. Brown of the U.S. Solicitor General's Office will argue for the government. Perkins Coie LLP partner Michael R. Huston will argue in favor of the Fourth Circuit's decision.
The case is Parrish v. United States, case number 24-275.
LGBTQ Storybooks
On Tuesday, the high court will debate whether a public schools' decision to not allow opt-outs from its policy weaving LGBTQ-themed storybooks into its K-21 English curriculum burdens parents' rights to raise their children with certain religious beliefs.
Three sets of Catholic and Muslim parents, led by Tamer Mahmoud, have asked the justices to reverse a Fourth Circuit panel order denying their request to stop Montgomery County Public Schools' 2023 policy directing teachers to incorporate at least one pre-approved, age-appropriate book involving LGBTQ characters or themes into their classrooms however they see fit, including by placing it on the shelf with other reading books or reading it aloud to the class.
The parents claim the policy, which originally allowed opt-outs but prohibited them after alleged abuses, violates their First Amendment right to raise their children in accordance with their religious beliefs. So far, a Maryland judge and the 2-1 Fourth Circuit panel held the parents hadn't proven that the policy likely burdens the parents' rights.
Mahmoud contends the policy is an attempt to indoctrinate students against their parents' religious beliefs through compelled instruction on gender and sexuality. The case, he argues, also falls squarely under the Supreme Court's 1972 ruling in Wisconsin v. Yoder, which held that Amish parents' interests in the free exercise of religion outweighed the state's interests in compelling school attendance beyond the eighth grade.
The federal government, which will argue as amici in favor of Mahmoud, adds that previous high court rulings have held that people cannot be compelled to choose between the exercise of their religious rights and participation in a public program. Without the choice to opt-out, parents who object to the storybooks will be faced with that exact scenario, the government argued.
But the school board and MCPS Superintendent Thomas W. Taylor claim the policy is merely exposing children to LGTBQ themes, something parents must reasonably expect to happen when they send their children to public school. The parents have also provided no evidence that they or their children were penalized for their religious beliefs or asked to abandon their views, Taylor said. He claims ruling otherwise would make public education "unworkable."
Eric S. Baxter, vice president and senior counsel of the Becket Fund for Religious Liberty, will argue for Mahmoud, and WilmerHale partner Alan E. Schoenfeld will argue for Taylor. Sarah M. Harris of the U.S. Solicitor General's Office will argue for the federal government in favor of Mahmoud.
The case is Mahmoud et al. v. Taylor et al., case number 24-297.
Tax Levies
Also on Tuesday, the justices will contemplate whether U.S. Tax Court proceedings aimed at seizing property to pay for unpaid taxes become moot if the Internal Revenue Service drops its request for a tax levy.
The IRS has asked the Supreme Court to overturn a Third Circuit panel's decision to revive Jennifer Zuch's yearslong challenge to the amount of unpaid taxes that served as the basis for the agency's levy request. The appellate panel sent the case back to Tax Court for further proceedings even though the IRS had dropped its bid for a levy after using Zuch's overpayments in the intervening tax years to pay down the debt.
The agency argues the Tax Court no longer has authority to hear Zuch's challenge because 29 U.S.C. Section 6330 only gives the court jurisdiction over pre-levy proceedings. Under the plain text of that statute, the Tax Court's duty is only to determine whether a levy may go forward. Now that a levy is no longer on the table, there is no statutory basis for Zuch and the IRS to continue their legal battle in the special court.
Instead, Zuch can — and already has — filed a refund suit in federal district court, the IRS said.
Zuch, on the other hand, said that Section 6330 doesn't condition Tax Court jurisdiction on a levy request, but on the underlying alleged tax liability. She said the statue was enacted for the specific purpose of giving taxpayers a chance to challenge purported debt before they had to pay anything.
The IRS intentionally skirted the congressionally mandated levy process by simply counting Zuch's overpayments toward her tax debt without addressing the central issue over how the debt should be calculated, she said, adding that such gamesmanship doesn't moot the dispute.
Erica L. Ross of the U.S. Solicitor General's Office will argue for the IRS, and Shay Dvoretzky, a Skadden Arps Slate Meagher & Flom LLP partner, will argue for Zuch.
The case is Commission of Internal Revenue v. Zuch, case number 24-416.
Car Emissions
On Wednesday, the Supreme Court will hear oral arguments over whether a party can establish the redressability component of standing by relying on the effects of a regulation on third parties.
Diamond Alternative Energy LLC and several other oil industry groups have asked the justices to reverse a D.C. Circuit panel opinion finding they lacked standing to challenge the U.S. Environmental Protection Agency's Biden-era reinstatement of California's Advanced Clean Cars program, which requires automakers to meet a certain zero-emission target by the 2025 model year.
The panel ruled that the challengers couldn't establish standing by arguing the regulations would lead to a lower demand in fuel-powered vehicles and, therefore, a lower demand for their products.
Diamond Alternative and its fellow challengers allege the appellate panel got it wrong, arguing that predictable and obvious market impacts establish that they will be injured by the regulations and thus have standing to challenge them. A favorable decision would remove a regulatory hurdle to their products, the challengers argued, proving that a court order wiping out the regulations would address their alleged harms.
However, the EPA, which under President Donald Trump is reviewing the basis for the reinstatement, claims there is no proof that the legal remedy Diamond Alternative seeks would actually redress their alleged harm. Market forces and a growing demand for zero-emission vehicles likely mean a court order would change little. Automakers would still move toward expanding their fleet of no-fuel vehicles as long as there is a market for them, the agency said.
California reiterated those arguments and added that Diamond Alternative provided out-of-date evidence to support its claims for standing. If the challengers had relied on current information when they filed suit in May 2022, there would be no reason to believe their claims that they will suffer significant harm in direct relation to the regulations, the state said.
Sullivan & Cromwell LLP partner Jeffrey B. Wall will argue for Diamond Alternative, Edwin S. Kneedler of the U.S. Solicitor General's Office will argue for the EPA, and Joshua A. Klein of the California Solicitor General's Office will argue for the state.
The case is Diamond Alternative Energy LLC et al. v. Environmental Protection Agency et al., case number 24-7.
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