A grant of appellate review is dismissed as improvidently granted (DIG) when a court with discretionary appellate jurisdiction later decides that it should not review the case.[1] Notably, the Supreme Court of the United States occasionally grants a petition of the writ of certiorari, only to later DIG the case.[2]

Supreme Court of the United States

Seal of the Supreme Court of the United States

The Supreme Court normally DIGs a case through a per curiam decision,[lower-alpha 1] usually without giving reasons,[2] but rather issuing a one-line decision: "The writ of certiorari is dismissed as improvidently granted." However, justices sometimes file separate opinions, and the opinion of the Court may instead give reasons for the DIG.

A DIG can come as a surprise or disappointment to parties who have put significant effort into getting a case to the Court, to third parties who have filed amicus briefs to express their views to the Court, or to members of the public expecting resolution of a high-profile dispute.[1] However, respondents who had urged the Court not to take a case in the first place may seek to convince the Court to DIG the case, leaving their lower-court victory intact and avoiding a potentially unfavorable precedent.

In most cases, the reasons for a DIG fall into three main categories:[2]

  • First, the most common reason for a DIG is that the Court discovers that the case is a "poor vehicle" for resolving the question presented. That is, there may be difficult threshold issues that the Court would have to decide before getting to the issue that the Court agreed to review.
  • Second, the Court also may DIG a case when it believes the petitioner has engaged in a "bait-and-switch", pressing new arguments or issues that were not the focus of the cert petition or the question upon which the Court granted review.
  • Third, the Court sometimes DIGs cases where it is unable to agree on a clear resolution for the case, and decides to issue no decision rather than a fractured or muddled decision.

It has not always been clear how many votes are needed to DIG a case. By custom, it takes only four votes to grant certiorari, not a majority of five, so it has been suggested that six votes should be required to DIG a case (i.e., four justices could insist on keeping the case).[3] Nevertheless, the Supreme Court has DIGged some cases over four justices' dissent, such as Medellin v. Dretke (2005), Robertson v. United States ex rel. Watson (2010), and Boyer v. Louisiana (2012).

Because per curiam opinions are issued from the Court as an institution, these opinions lack the attribution of who authored or joined the decision. Sometimes, the Supreme Court DIGs a case through a simple docket order, rather than issuing even a per curiam opinion. (See Other cases below.) Accordingly, the lists below may not include every case with a DIG.

DIGs after oral argument since Term 1989

Case name Opinion Granted Argued Decided Notes
Coinbase, Inc. v. Suski No. 22-105, 599 U.S. ___ 8 Dec 2022 21 Mar 2023 23 Jun 2023 Footnote 7 in Coinbase, Inc. v. Bielski.[lower-alpha 2]
In re Grand Jury 21-1397 3 Oct 2022[lower-alpha 3] 9 Jan 2023 23 Jan 2023 One line.[lower-alpha 4]
Arizona v. City and County of San Francisco 20-1775 29 Oct 2021[lower-alpha 5] 23 Feb 2022 15 Jun 2022 One line. Roberts concurred, joined by Thomas, Alito, and Gorsuch.
United States v. Texas 21-588 22 Oct 2021[lower-alpha 6] 1 Nov 2021 10 Dec 2021 One line. Sotomayor dissented without an opinion. Argued and announced with Whole Woman's Health v. Jackson.
Henry Schein, Inc. v. Archer & White Sales, Inc. (2021) 19-963 15 Jun 2020[lower-alpha 7] 8 Dec 2020 25 Jan 2021 One line. This was the Supreme Court's second time hearing the case, following Henry Schein, Inc. v. Archer & White Sales, Inc. (2019).
Emulex Corp. v. Varjabedian 18-459 4 Jan 2019[lower-alpha 8] 15 Apr 2019 23 Apr 2019 One line.
City of Hays v. Vogt 16-1495 28 Sep 2017[lower-alpha 9] 20 Feb 2018 29 May 2018 One line. Gorsuch was recused.
 28 Sep 2017[lower-alpha 10] 16 Jan 2018 22 Jun 2018 One line. Argued and announced with Ortiz v. United States.
Duncan v. Owens 14-1516 1 Oct 2015[lower-alpha 11] 12 Jan 2016 20 Jan 2016 One line.
City and County of San Francisco v. Sheehan No. 13-1412, 575 U.S. ___ (2015) 25 November 2014 23 March 2015 18 May 2015
Unite Here Local 355 v. Mulhall 571 U.S. 83 24 Jun 2013[lower-alpha 12] 13 Nov 2013 10 Dec 2013 One line. Breyer dissented, joined by Sotomayor and Kagan.
Madigan v. Levin 571 U.S. 1 18 Mar 2013[lower-alpha 13] 7 Oct 2013 15 Oct 2013 One line.
Boyer v. Louisiana 11-9953 5 Oct 2012[lower-alpha 14] 14 Jan 2013 29 Apr 2013 One line. Alito concurred, joined by Scalia and Thomas. Sotomayor dissented, joined by Ginsburg, Breyer, and Kagan.
First American Financial Corp. v. Edwards 10-708 20 Jun 2011[lower-alpha 15] 28 Nov 2011 28 Jun 2012 One line.
Vasquez v. United States 11-199 28 Nov 2011[lower-alpha 16] 21 Mar 2012 2 Apr 2012 One line.
Tolentino v. New York 563 U.S. 123 15 Nov 2010[lower-alpha 17] 21 Mar 2011 29 Mar 2011 One line.
Robertson v. United States ex rel. Watson 560 U.S. 272 14 Dec 2009[lower-alpha 18] 31 Mar 2010 24 May 2010 One line. Roberts dissented, joined by Scalia, Kennedy, and Sotomayor. Sotomayor dissented, joined by Kennedy.
Sullivan v. Florida 560 U.S. 181 4 May 2009[lower-alpha 19] 9 Nov 2009 17 May 2010 One line.
Philip Morris USA Inc. v. Williams (2009) 556 U.S. 178 9 Jun 2008[lower-alpha 20] 3 Dec 2008 31 Mar 2009 One line. This was the Supreme Court's second time hearing the case, following Philip Morris USA Inc. v. Williams (2007).
Bell v. Kelly 555 U.S. 55 12 May 2008[lower-alpha 21] 12 Nov 2008 17 Nov 2008 One line.
Roper v. Weaver 550 U.S. 598 7 Dec 2006[lower-alpha 22] 21 Mar 2007 21 May 2007 The per curiam includes an explanation of its reasons. Roberts concurred in the result. Scalia dissented, joined by Thomas and Alito.
Toledo-Flores v. United States 549 U.S. 69 3 Apr 2006[lower-alpha 23] 3 Oct 2006 5 Dec 2006 One line. Argued and announced with Lopez v. Gonzales.
Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. 548 U.S. 124 31 Oct 2005[lower-alpha 24] 21 Mar 2006 22 Jun 2006 One line. Roberts was recused.
Mohawk Industries, Inc. v. Williams 547 U.S. 516 12 Dec 2005[lower-alpha 25] 26 Apr 2006 5 Jun 2006 One paragraph. The Court initially granted review of only Question 1 of the cert petition. After hearing arguments, the Court dismissed as improvidently granted, but simultaneously issued a grant, vacate, remand of the entire cert petition in light of Anza v. Ideal Steel Supply Corp., which had been decided the same day.
Maryland v. Blake 546 U.S. 72 18 Apr 2005[lower-alpha 26] 1 Nov 2005 14 Nov 2005 One line.
Medellín v. Dretke 544 U.S. 660 10 Dec 2004[lower-alpha 27] 28 Mar 2005 23 May 2005 The per curiam includes an explanation of its reasons. Ginsburg concurred, join by Scalia as to Part II. O'Connor dissented, joined by Stevens, Souter, and Breyer. Breyer dissented, joined by Stevens. Souter dissented. The Court later decided a related case, Medellín v. Texas (2008).
Howell v. Mississippi 543 U.S. 440 28 Jun 2004[lower-alpha 28] 29 Nov 2004 24 Jan 2005 The per curiam includes an explanation of its reasons.
Nike, Inc. v. Kasky 539 U.S. 654 10 Jan 2003 23 Apr 2003 26 Jun 2003 One line. Stevens concurred, joined by Ginsburg, and joined by Souter as to Part III. Kennedy dissented without an opinion. Breyer dissented, joined by O'Connor.
Abdur'Rahman v. Bell 537 U.S. 88 22 Apr 2002 6 Nov 2002 10 Dec 2002 One line. Stevens dissented.
Ford Motor Co. v. McCauley 537 U.S. 1 19 Feb 2002 7 Oct 2002 15 Oct 2002 One line.
Mathias v. WorldCom Technologies, Inc. 535 U.S. 682 5 Mar 2001[lower-alpha 29] 5 Dec 2001 20 May 2002 The per curiam includes an explanation of its reasons. O'Connor was recused.
Adams v. Florida Power Corp. 535 U.S. 1 3 Dec 2001 20 Mar 2002 1 Apr 2002 One line.
Adarand Constructors, Inc. v. Mineta 534 U.S. 103 26 Mar 2001 31 Oct 2001 27 Nov 2001 The per curiam includes an explanation of its reasons. This was the Supreme Court's third time hearing the case, following Adarand Constructors, Inc. v. Peña (1995) and Adarand Constructors, Inc. v. Slater (2000).
Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356 11 Oct 2000 21 Feb 2001
District of Columbia v. Tri County Industries, Inc. 531 U.S. 287 10 Jan 2001 17 Jan 2001 One line.
Ricci v. Arlington Heights 523 U.S. 613 21 Apr 1998 4 May 1998 One line.
Rogers v. United States 522 U.S. 252 5 Nov 1997 14 Jan 1998 Stevens wrote the plurality opinion, joined by Thomas, Ginsburg, and Breyer. O'Connor concurred in the result, joined by Scalia. Kennedy dissented, joined by Rehnquist and Souter.
Adams v. Robertson 520 U.S. 83 14 Jan 1997 3 Mar 1997 The per curiam includes an explanation of its reasons.
Grimmett v. Brown 519 U.S. 233 6 Jan 1997 14 Jan 1997 One line.
Ticor Title Insurance Company v. Brown 511 U.S. 117 1 Mar 1994 4 Apr 1994 The per curiam includes an explanation of its reasons. O'Connor dissented, joined by Rehnquist and Kennedy.
Tennessee v. Middlebrooks 510 U.S. 124 1 Nov 1993 13 Dec 1993 One line. Blackmun dissented without an opinion.
Cavanaugh v. Roller 510 U.S. 42 8 Nov 1993 30 Nov 1993 One line.
Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp. 510 U.S. 27 12 Oct 1993 30 Nov 1993 The per curiam includes an explanation of its reasons. Stevens dissented, joined by Blackmun.
Hadley v. United States 506 U.S. 19 4 Nov 1992 16 Nov 1992 One line.
Montana v. Imlay 506 U.S. 5 7 Oct 1992 3 Nov 1992 One line. Stevens concurred. White dissented.
PFZ Properties, Inc. v. Rodriguez 503 U.S. 257 26 Feb 1992 9 Mar 1992 One line.
Gibson v. Florida Bar 502 U.S. 104 6 Nov 1991 4 Dec 1991 One line.
Ohio v. Huertas 498 U.S. 336 16 Jan 1991 22 Jan 1991 One line.
Parker v. Duggar 498 U.S. 308 7 Nov 1990 22 Jan 1991
White v. United States 439 U.S. 5 3 Oct 1989 16 Oct 1989 One line. White dissented without an opinion.


Other cases dismissed as improvidently granted since 2001

The following cases were dismissed as improvidently granted by the Court through a docket order rather than a published opinion. The Supreme Court's online docket search system "contains complete information regarding the status of cases filed since the beginning of the 2001 Term". Orders from before 2001 may appear instead in the United States Reports.

Case name Order Granted Argued Decided Notes
Ardoin v. Robinson 21-1596 28 Jun 2022 N/A 26 Jun 2023 One paragraph/docket order[lower-alpha 30]
PEM Entities LLC v. Levin 16-492 27 Jun 2017 N/A 10 Aug 2017 One line/docket order.
  • Visa Inc. v. Osborn
  • Visa Inc. v. Stoumbos
 580 U.S. 993 28 Jun 2016 N/A 17 Nov 2016 Docket order with explanation.
Public Employees' Retirement System of Mississippi v. IndyMac MBS, Inc. 573 U.S. 988 10 Mar 2014 N/A 29 Sep 2014 One line/docket order.
Cline v. Oklahoma Coalition for Reproductive Justice 571 U.S. 985 27 Jun 2013 N/A 4 Nov 2013 One line/docket order. Before the DIG, the Court certified a question of Oklahoma law to the Supreme Court of Oklahoma, and received its response.
McCarver v. North Carolina 533 U.S. 975 26 Mar 2001 N/A 25 Sep 2001 One line/docket order.

See also

Notes

  1. ↑ One rare exception of a signed majority opinion is Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70 (1955). In a 5–3 decision written by Frankfurter, the Court reconsidered a 4–4 affirmance of the Iowa Supreme Court, and instead DIGged the case. Harlan did not participate.
  2. ↑ "The Court's judgment today pertains to respondent Abraham Bielski. The writ of certiorari as to respondents David Suski et al. is dismissed as improvidently granted."
  3. ↑ Question: Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.
  4. ↑ "The writ of certiorari is dismissed as improvidently granted."
  5. ↑ Question: Whether States with interests should be permitted to intervene to defend a rule when the United States ceases to defend.
  6. ↑ Question: May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.
  7. ↑ Question: Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.
  8. ↑ Question: Whether the Ninth Circuit correctly held, in express disagreement with five other courts of appeals, that Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on a negligent misstatement or omission made in connection with a tender offer.
  9. ↑ Question: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.
  10. ↑ Question (directed by the Court): Whether this Court has jurisdiction to review [these two cases] under 28 U.S.C. §1259(3).
  11. ↑ Question: Did the Seventh Circuit violate 28 U.S.C. § 2254 and a long line of this Court's decisions by awarding habeas relief in the absence of clearly established precedent from this Court?
  12. ↑ Question: Whether an employer and union may violate § 302 by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer's property and employees, and its freedom of contract by obtaining the union's promise to forego its rights to picket, boycott, or otherwise put pressure on the employer's business?
  13. ↑ Question: Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act's comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.
  14. ↑ Question: Whether a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the state for speedy trial purposes?
  15. ↑ Question: [As to certain violations of the Real Estate Settlement Procedures Act of 1974, does a private purchaser of real estate settlement services] have standing to sue under Article III, § 2 of the United States Constitution, which provides that the federal judicial power is limited to "Cases" and "Controversies" and which this Court has interpreted to require the plaintiff to "have suffered an 'injury in fact,'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)?
  16. ↑ Questions:
    1. 1. Did the Seventh Circuit violate this Court's precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on this jury at all?
    2. Did the Seventh Circuit violate Mr. Vasquez's Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court's error on the jury that heard the case?
  17. ↑ Question: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?
  18. ↑ Question: Whether an action for criminal contempt in a congressionally created court may be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.
  19. ↑ Questions:
    1. Does imposition of a life-without-parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?
    2. Given the extreme rarity of a life imprisonment without parole sentence imposed on a 13-year-old child for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so?
  20. ↑ Question: Whether, after this Court has adjudicated the merits of a party’s federal claim and remanded the case to state court with instructions to "apply" the correct constitutional standard, the state court may interpose—for the first time in the litigation—a state-law procedural bar that is neither firmly established nor regularly followed.
  21. ↑ Question: Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims "adjudicated on the merits" in state court, to evaluate a claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing?
  22. ↑ Question: Since this court has neither held a prosecutor's penalty phase closing argument to violate due process, nor articulated, in response to a penalty phase claim, what the standard of error and prejudice would be, does a court of appeals exceed its authority under 28 U.S.C. §2254(d)(l) by overturning a capital sentence on the ground that the prosecutor's penalty phase closing argument was "unfairly inflammatory?"
  23. ↑ Question: Has the Fifth Circuit erred in holding – in opposition to the Second, Third, Sixth, and Ninth Circuits – that a state felony conviction for simple possession of a controlled substance is a "drug trafficking crime" under 18 U.S.C. §924(c)(2) and hence an "aggravated felony", under 8 U.S.C. §1101(a)(43)(B), even though the same crime is a misdemeanor under federal law?
  24. ↑ Question: Whether a method patent setting forth an indefinite, undescribed, and non-enabling step directing a party simply to "correlat[e]" test results can validly claim a monopoly over a basic scientific relationship used in medical treatment such that any doctor necessarily infringes the patent merely by thinking about the. relationship after looking at a test result.
  25. ↑
    • Question 1: Whether a defendant corporation and its agents can constitute an "enterprise" under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 ("RICO"), in light of the settled rule that a RICO defendant must "conduct" or "participate in" the affairs of some larger enterprise and not just its own affairs.
    • Question 2 (not granted): Whether plaintiffs state proximately caused injuries to business or property by alleging that the hourly wages they voluntarily accepted were too low.
  26. ↑ Question: When a police officer improperly communicates with a suspect after invocation of the suspect's right to counsel, does Edwards v. Arizona permit consideration of curative measures by the police, or other intervening circumstances, to conclude that a suspect later initiated communication with the police?
  27. ↑
    • Question 1: In a case brought by a Mexican national whose rights were adjudicated in the Avena Judgment, must a court in the United States apply as the rule of decision, notwithstanding any inconsistent United States precedent, the Avena holding that the United States courts must review and reconsider the national's conviction and sentence, without resort to procedural default doctrines?
    • Question 2: In a case brought by a foreign national of a State party to the Vienna Convention [on Consular Relations], should a court in the United States give effect to the LaGrand and Avena Judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation?
  28. ↑
    • Question 1: Can a state court, consistent with the Eighth and Fourteenth Amendments to the Constitution of the United States, refuse to instruct a jury in a death penalty case on at least one lesser included offense that is recognized in state law and supported by the evidence?
    • Question 2 (directed by the Court): Was petitioner's federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 U.S.C. Sec. 1257?
  29. ↑
    • Question 1: Whether a state commission's action relating to the enforcement of a previously approved section 252 interconnection agreement is a "determination under section 252" and thus is reviewable in federal court under 47 U.S.C. Sec. 252(e)(6).
    • Question 2: Whether a state commission's acceptance of Congress's invitation to participate in implementing a federal regulatory scheme that provides that state commission determinations are reviewable in federal court
    constitutes a waiver of Eleventh Amendment immunity.
    • Question 3: Whether an official capacity action seeking prospective relief against state public utility commissioners for alleged ongoing violations of federal law in performing federal regulatory functions under the federal Telecommunications Act of 1996 can be maintained under the Ex parte Young doctrine.
  30. ↑ "The writ of certiorari before judgment is dismissed as improvidently granted. The stay heretofore entered by the Court on June 28, 2022, is vacated. This will allow the matter to proceed before the Court of Appeals for the Fifth Circuit for review in the ordinary course and in advance of the 2024 congressional elections in Louisiana. See this Court's Rule 11."

References

  1. 1 2 Brad Hughes (September–October 2013). "Can you 'DIG' it? The dismissal of appeals as improvidently granted" (PDF). Ohio Lawyer. Ohio State Bar Association. Retrieved 2 March 2023.
  2. 1 2 3 Kevin Russell (25 April 2019). "Practice Pointer: Digging into DIGs". SCOTUSblog. Retrieved 2 March 2023.
  3. ↑ Solimine, Michael E.; Gely, Rafael (2010). "The Supreme Court and the Sophisticated Use of DIGs". Supreme Court Economic Review. 18: 155, 157–158. doi:10.1086/659985. S2CID 53410375. Retrieved 2 March 2023.

Further reading

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