Dismissed as improvidently granted explained

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

The Supreme Court normally DIGs a case through a per curiam decision, 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]

  1. 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.
  2. 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.
  3. The Court sometimes DIGs cases where it is unable to agree on a clear resolution for the case, deciding 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 nameOpinionGrantedArguedDecidedNotes<--
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Moyle v. United States
Idaho v. United States		5 Jan 202424 Apr 202427 Jun 2024One line (which also included vacating the stays that the Supreme Court had previously granted). Kagan concurred, joined by Sotomayor and in part by Jackson. Barrett concurred, joined by Roberts and Kavanaugh. Jackson concurred in part and dissented in part. Alito dissented, joined by Thomas and in part by Gorsuch.
Coinbase, Inc. v. Suski8 Dec 202221 Mar 202323 Jun 2023Footnote 7 in Coinbase, Inc. v. Bielski.
In re Grand Jury3 Oct 20229 Jan 202323 Jan 2023One line.
Arizona v. City and County of San Francisco29 Oct 202123 Feb 202215 Jun 2022One line. Roberts concurred, joined by Thomas, Alito, and Gorsuch.
United States v. Texas22 Oct 20211 Nov 202110 Dec 2021One 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)15 Jun 20208 Dec 202025 Jan 2021One 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. Varjabedian4 Jan 201915 Apr 201923 Apr 2019One line.
City of Hays v. Vogt28 Sep 201720 Feb 201829 May 2018One line. Gorsuch was recused.
28 Sep 201716 Jan 201822 Jun 2018One line. Argued and announced with Ortiz v. United States.
Duncan v. Owens1 Oct 201512 Jan 201620 Jan 2016One line.
City and County of San Francisco v. Sheehan25 November 201423 March 201518 May 2015
Unite Here Local 355 v. Mulhall24 Jun 201313 Nov 201310 Dec 2013One line. Breyer dissented, joined by Sotomayor and Kagan.
Madigan v. Levin18 Mar 20137 Oct 201315 Oct 2013One line.
Boyer v. Louisiana5 Oct 201214 Jan 201329 Apr 2013One line. Alito concurred, joined by Scalia and Thomas. Sotomayor dissented, joined by Ginsburg, Breyer, and Kagan.
First American Financial Corp. v. Edwards20 Jun 201128 Nov 201128 Jun 2012One line.
Vasquez v. United States28 Nov 201121 Mar 20122 Apr 2012One line.
Tolentino v. New York15 Nov 201021 Mar 201129 Mar 2011One line.
Robertson v. United States ex rel. Watson14 Dec 200931 Mar 201024 May 2010One line. Roberts dissented, joined by Scalia, Kennedy, and Sotomayor. Sotomayor dissented, joined by Kennedy.
Sullivan v. Florida4 May 20099 Nov 200917 May 2010One line.
Philip Morris USA Inc. v. Williams (2009)9 Jun 20083 Dec 200831 Mar 2009One line. This was the Supreme Court's second time hearing the case, following Philip Morris USA Inc. v. Williams (2007).
Bell v. Kelly12 May 200812 Nov 200817 Nov 2008One line.
Roper v. Weaver7 Dec 200621 Mar 200721 May 2007The per curiam includes an explanation of its reasons. Roberts concurred in the result. Scalia dissented, joined by Thomas and Alito.
Toledo-Flores v. United States3 Apr 20063 Oct 20065 Dec 2006One line. Argued and announced with Lopez v. Gonzales.
Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc.31 Oct 200521 Mar 200622 Jun 2006One line. Roberts was recused.
Mohawk Industries, Inc. v. Williams12 Dec 200526 Apr 20065 Jun 2006One 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. Blake18 Apr 20051 Nov 200514 Nov 2005One line.
Medellín v. Dretke10 Dec 200428 Mar 200523 May 2005The 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. Mississippi28 Jun 200429 Nov 200424 Jan 2005The per curiam includes an explanation of its reasons.
Nike, Inc. v. Kasky10 Jan 200323 Apr 200326 Jun 2003One 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. Bell22 Apr 20026 Nov 200210 Dec 2002One line. Stevens dissented.
Ford Motor Co. v. McCauley537 U.S. 119 Feb 20027 Oct 200215 Oct 2002One line.
Mathias v. WorldCom Technologies, Inc.5 Mar 20015 Dec 200120 May 2002The per curiam includes an explanation of its reasons. O'Connor was recused.
Adams v. Florida Power Corp.535 U.S. 13 Dec 200120 Mar 20021 Apr 2002One line.
Adarand Constructors, Inc. v. Mineta26 Mar 200131 Oct 200127 Nov 2001The 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. Garrett11 Oct 200021 Feb 2001
District of Columbia v. Tri County Industries, Inc.531 U.S. 28710 Jan 200117 Jan 2001One line.
Ricci v. Arlington Heights523 U.S. 61321 Apr 19984 May 1998One line.
Rogers v. United States5 Nov 199714 Jan 1998Stevens 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. Robertson14 Jan 19973 Mar 1997The per curiam includes an explanation of its reasons.
Grimmett v. Brown519 U.S. 2336 Jan 199714 Jan 1997One line.
Ticor Title Insurance Company v. Brown1 Mar 19944 Apr 1994The per curiam includes an explanation of its reasons. O'Connor dissented, joined by Rehnquist and Kennedy.
Tennessee v. Middlebrooks1 Nov 199313 Dec 1993One line. Blackmun dissented without an opinion.
Cavanaugh v. Roller510 U.S. 428 Nov 199330 Nov 1993One line.
Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp.12 Oct 199330 Nov 1993The per curiam includes an explanation of its reasons. Stevens dissented, joined by Blackmun.
Hadley v. United States506 U.S. 194 Nov 199216 Nov 1992One line.
Montana v. Imlay506 U.S. 57 Oct 19923 Nov 1992One line. Stevens concurred. White dissented.
PFZ Properties, Inc. v. Rodriguez503 U.S. 25726 Feb 19929 Mar 1992One line.
Gibson v. Florida Bar6 Nov 19914 Dec 1991One line.
Ohio v. Huertas16 Jan 199122 Jan 1991One line.
Parker v. Duggar7 Nov 199022 Jan 1991
White v. United States439 U.S. 53 Oct 198916 Oct 1989One 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 nameOrderGrantedArguedDecidedNotes<--
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Ardoin v. Robinson21-159628 Jun 2022N/A26 Jun 2023One paragraph/docket order
PEM Entities LLC v. Levin16-49227 Jun 2017N/A10 Aug 2017One line/docket order.
580 U.S. 99328 Jun 2016N/A17 Nov 2016Docket order with explanation.
Public Employees' Retirement System of Mississippi v. IndyMac MBS, Inc.573 U.S. 98810 Mar 2014N/A29 Sep 2014One line/docket order.
Cline v. Oklahoma Coalition for Reproductive Justice571 U.S. 98527 Jun 2013N/A4 Nov 2013One 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 Carolina533 U.S. 97526 Mar 2001N/A25 Sep 2001One line/docket order.

See also

Further reading

Notes and References

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

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