Overtime July ends with the "Clean-Up" List

The Court GVR's other contraceptive mandate cases, but grants the FHFA and First Amendment cases


The October Term 2019 is finally over. Overtime July came to a close with the anticlimactic final order sheet. This list, known as the "clean-up," takes care of all lingering cases on the docket. (SCOTUSBlog collects all the links).

First, the Court GVR'd four cases based on McGirt v. Oklahoma. Second, the Court GVR'd three cases involving the contraceptive mandate; those all go back to the Ninth Circuit. No surprises here.

Third, the Court took action on Collins v. Mnuchin. This appeal presented a challenge to the Federal Housing Finance Agency. The FHFA, like the CFPB, is headed by a single director with "for-cause" protection. (I blogged about the Fifth Circuit's en banc decision here). I had expected the Court to GVR Collins in light of Seila Law. Instead, the Court granted certiorari. This grant suggests the Court may expand beyond Seila Law next term. And maybe the Court can come together on severability.

Fourth, the Court granted Facebook's petition in a Telephone Consumer Protection Act case. It raises similar First Amendment issues that were present in Barr v. AAPC. Facebook's petition was put on hold, pending Barr. Now that Barr was decided--in a very fractured fashion--one would have expected a GVR to reconsider in light of Barr. But instead we have a grant. Perhaps the Court wants to use this vehicle to expand upon Barr, and perhaps reach a unified five-member majority on the First Amendment, and severability. (See my five part series on Barr: 1, 2, 3, 4, 5).

Fifth, the Court granted cert in Uzuegbunam v. Preczewski. In this case, A college student distributed religious literature on campus, and was punished. No, the case does not present controversial free speech or exercise issues. Instead, the case concerns whether the university's change of policy moots a claim based on nominal damages. The political valences here will be whacky. Usually, progressive groups would not favor an Alliance Defending Freedom petition. But civil rights advocates are often burned when the government tries to moot cases by changing a policy. Here, the conservative justices, who might otherwise be favorable to a petition from ADF, could be leery about expanding civil rights protections.

Sixth, the Court granted cert in two cases involving Section 5 of the Federal Trade Commission Act. I'd be lying if I told you I knew what it was about.

I'll have much more to say about VanceMazarsMcGirt, as well as Little Sisters over the next few days.