This week is Court Week at the Federal Circuit, with hearings starting today. Arguments are being held in person absent granted motions for leave to appear remotely, and the Federal Circuit is also providing access to live audio of each panel scheduled for argument via the Federal Circuit’s YouTube channel. In total, the court will convene 14 panels to consider about 59 cases. Of these 59 cases, the court will hear oral arguments in 52. Of these argued cases, three attracted amicus briefs: an Equal Access to Justice Act case, a trademark case, and a tax case. Here’s what you need to know about these three cases.
Monroe v. United States
As explained in our argument preview, this is an Equal Access to Justice Act case where the United States asks the Federal Circuit to overrule what it characterizes as an abuse of discretion by the trial court in awarding to the plaintiff-appellee its attorney fees and expenses.
According to the United States, the Federal Circuit “should reverse the trial court’s judgment awarding attorney fees and expenses to Mr. Monroe because the trial court abused its discretion.” In the alternative, the United States argues, the Federal Circuit “should reverse the judgment below because the trial court failed to reduce Mr. Monroe’s requested fees and expenses based upon his lack of success on the merits.”
Monroe, however, maintains that in his efforts to alter his Air Force disability record he has “prevailed at each procedural stage of the litigation.” As such, the Monroe contends “a fully compensatory fee award was warranted.”
This case attracted an amicus brief from the National Veterans Legal Services Program in support of Monroe.
William P. Rayal will argue for the United States.
Scott W. MacKay will argue for Monroe.
This argument is scheduled to take place on Tuesday, November 2 at 10:00 A.M. Eastern in Courtroom 203.
In re Elster
As discussed in our argument preview, in this trademark case Elster asks the Federal Circuit to hold that the Lanham Act’s provision on which his application was rejected violates the Constitution’s First Amendment. In particular, Elster argues that “section 2(c) [of the Lanham Act] imposes a content-based and speaker-based burden on speech [by] prohibiting the registration of any mark that ‘identif[ies] a particular living individual.’” Elster argues that “[t]hat alone ‘is sufficient to justify application of heightened scrutiny.’” Elster, however, alternatively maintains that “section 2(c) is subject to at least intermediate scrutiny.”
In response, the United States argues that, “under the laws of most states, it is tortious to appropriate someone’s identity for use in a trademark without that person’s consent.” As such, the government argues Section 2(c) of the Lanham Act is “fully consistent with the First Amendment, both facially and as applied here.” Also, the government argues, “[s]ection 2(c) serves a substantial governmental interest in respecting the widely recognized rights of publicity and privacy.”
This case attracted an amicus brief in support of Elster from Matthew Handel, an individual with pending trademark applications that may be impacted by the court’s decision in this case.
Jonathan E. Taylor will argue for Elster.
Joshua M. Saltzman will argue for the United States.
This argument will take place on Wednesday, November 3 at 10:00 A.M. Eastern in Courtroom 201.
Brown v. United States
As explained in our argument preview, this is a tax case where the Browns ask the Federal Circuit to overrule the holding of the Court of Federal Claims that it did not have subject matter jurisdiction over their case because the Browns did not attach a power of attorney to amended income tax returns filed by their agent.
According to the Browns, the statutory signature and verification requirements “delegate rule making authority to the Secretary [of the Treasury] to promulgate rules for how taxpayers can sign and verify their tax returns.” And, the Browns contend, the Department of the “Treasury intentionally waived its formal requirement of calling for a power of attorney to be attached to Appellants’ claims for refund.”
The United States, however, points out that “[t]he Browns’ refund claims admittedly violated the taxpayer signature and verification requirements,” and the government maintains this means “the Browns’ refund claims were not ‘duly filed’ with the IRS before the Browns sued.” The United States also argues that “[t]he IRS had no authority to waive the taxpayer signature and verification requirements, and it did not purport to waive them here.” Also, the United States contends, “the Federal Circuit “should . . . decline to reexamine its longstanding precedent treating the requirements of [one of the statutory provisions in question] as jurisdictional.”
This case attracted an amicus brief from the Center for Taxpayer Rights in support of the Browns.
Tiffany Michele Hunt will argue for the Browns.
Isaac B. Rosenberg will argue for the United States.
This argument is scheduled to take place on Friday, November 5 at 10:00 A.M. Eastern in Courtroom 402.