In his dissent from the denial of certiorari in Baston v. United States, 580 U.S. 1182, 1186 (2017) (Thomas, J. dissenting from the denial of certiorar1), Justice Thomas observed that “the courts of appeals have taken this Court’s modern interstate commerce doctrine and assumed that the foreign commerce power is at least as broad. The result 1s a doctrine justified neither by our precedents nor by the origi- nal understanding.” This language aptly describes the D.C. Circuit’s decision here, in which the lower court essentially adopted this Court’s “affects test” from United States v. Lopez, 514 U.S. 549, 559 (1995) as the governing standard under the Foreign Com- merce Clause.

The question presented is precisely the one for which Justice Thomas urged a grant of certiorari 1n Baston, and one that has divided the courts of ap- peals: namely, whether the Foreign Commerce Clause—and, by extension, the jurisdictional provi- sion in the criminal material-support statute (18 U.S.C. § 2339B(d)(1)(E)) on which it relies—requires a “nexus to the United States” in the form of foreign commercial act “with” the United States rather than simply an act occurring entirely abroad among foreign actors, if that commerce “affects” the United States.

Rubicon obtained a final judgment in this case, Plaintiffs exhausted the appellate process, and this Court denied certiorari. Then Congress amended the operative statute. Plaintiffs invoked the amendment as a basis for reopening the judgment under Rule 60(b). The district court refused, both because the amendment did not apply to Plaintiffs’ case and because the district court had _ provided two alternative grounds for ruling in Rubicon’s favor, neither of which the statute affected. But on appeal, the en banc Ninth Circuit construed the statutory amendment as a legislative command to reopen the judgment. It then went even further and used the Rule 60(b) appeal to declare, de novo, that the district court had also erred as to the independent grounds that the statutory amendment did not affect.

This petition presents two questions about the limits of Rule 60(b) and the finality of judgments:

1. Whether a post-judgment amendment to the governing statute 1s an impermissible basis for reopening a final judgment retroactively under Rule 60(b)(6).

2. Whether a court of appeals exceeds its authority under Rule 60(b) when it reviews the merits of the underlying judgment de novo, rather than limiting review to the Rule 60(b) decision and applying abuse of discretion.

In this Fifth Amendment takings case, the court below dismissed the property owner’s as applied claim on prudential ripeness grounds. It held that an owner cannot sue without first petitioning the legislature to change the law responsible for the taking. The decision presents two splits of authority.

First, courts conflict about whether a property owner must exhaust legislative remedies to ripen a regulatory takings claim. The Ninth Circuit, Virginia, California, New York, Ohio, Michigan and Hawaii, say no. However, the Fourth Circuit below, plus Illinois, Florida, Georgia, and Wisconsin demand legislative exhaustion.

Second, courts conflict about whether ripeness is an element of jurisdictional standing or, instead, a prudential doctrine that allows the court to dismiss justiciable cases. On the jurisdictional side are this Court’s decisions in Williamson County Regional Planning Commission, Horne, and Pakdel, plus the Third and Eighth Circuits. On the prudential side are this Court’s decisions in Lucas and Suitum, and the Fourth, Fifth, Seventh, Ninth, and Tenth Circuits.

The questions presented are:

1. Must a property owner exhaust legislative remedies in order to ripen an as-applied regulatory takings claim under the Fifth Amendment?

2. When a property owner sufficiently pleads jurisdictional standing for a Fifth Amend- ment regulatory takings claim, may the court nonetheless dismiss the case on prudential ripeness grounds?

In the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et seg., Congress estab- lished a comprehensive scheme for the management and disposal of federal lands, superseding a patchwork of thousands of land laws that had accumulated since the Founding. FLPMA applies to all “public lands,” defined as “any land and interest in land owned by the United States within the several States and administered by ** * the Bureau of Land Management, without regard to how the United States acquired ownership.” Jd. § 1702(e). FLPMA authorizes the Bureau (inter alia) to exchange any “tract of public land” for non-federal lands under a uniform set of criteria and procedures. Id. § 1716(a).

The Ninth Circuit held, however, that a 1900 statute that ratified the original acquisition of public lands from an Indian tribe and authorized their disposal through certain listed methods barred the Bureau from exercis- ing FLPMA’s statutory authority for those lands. The court recognized that “it is clear that if the 1900 Act did not exist, FLPMA would permit disposal” here. App., unfra, 14a. But it reasoned that Congress could not sup- plement the 1900 Act’s initial enumeration of disposal methods—which are all now repealed or unavailable— without an express reference to that statute or those lands. The question presented is:

Whether the Bureau may exercise its authority under FLPMA to dispose of public lands by exchange notwith- standing an earlier federal statute that had expressly au- thorized the disposal of those lands only through speci- fied methods.

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There is a substantial split of authority about whether final decision ripeness 1s jurisdictional or prudential for Fifth Amendment regulatory takings claims. On the jurisdictional side are this Court’s decisions in Williamson County Regional Planning Commission v. Hamilton Bank and Horne v. Department of Agriculture, plus the Third and Fighth Circuits. On the prudential side are this Court’s decisions in Lucas v. S.C. Coastal Council and Suitum v. Tahoe Regional Planning Agency, and the Fourth, Fifth, Seventh, Ninth, and Tenth Circuits. The Federal and Second Circuits have intra-circuit splits and in the remaining Circuits, it is an open question. As a result, there is substantial uncertainty about what a property owner must plead for its constitutional claim to be heard on the merits.

Here, Petitioner’s regulatory takings claim was dis- missed at the pleadings stage on prudential ripeness erounds, despite plausibly alleging a concrete injury and an established government position.

The questions presented are:

1. When a property owner has sufficiently pled jurisdictional standing for a Fifth Amendment regulatory takings claim, may the court nonetheless dismiss the case on prudential ripeness grounds?

2. Whether a regulatory takings claim under the Fifth Amendment can be dismissed as prudentially unripe when a plaintiff is ineligible for administrative relief or such relief is facially incapable of altering the economic impact of the regulation?

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