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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. Notably, the Supreme Court of the United States occasionally grants a petition of the writ of certiorari, only to later DIG the case.

Supreme Court of the United States

The Supreme Court normally DIGs a case through a per curiam decision, usually without giving reasons, 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. 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:

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). 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 the 1989 term

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.

See also

• Procedures of the Supreme Court of the United States

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 writ of certiorari is dismissed as improvidently granted."
3. "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."
4. 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.
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 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: 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" 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 , 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. ^ 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. ^ 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

• "Cases - Writ improvidently granted". Oyez Project. Retrieved 2 March 2023.

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