Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, an amicus brief was filed in support of respondent in Vidal v. Elster. With respect to petitions, two new petitions in two pro se cases were filed with the Court. Additionally, the government waived its right to respond to petitions in an employment case and in a pro se case. Here are the details.
Granted Cases
In Vidal v. Elster, the Supreme Court is reviewing whether the U.S. Patent and Trademark Office’s “refusal to register a mark under Section 1052(c) [of the Lanham Act] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” Since our last update, Samuel F. Ernst submitted an amicus brief in support of Elster. In this brief, Ernst argues that, due to Section 2(c) of the Lanham Act, “celebrities are free to veto marks that are critical of themselves while consenting to marks that are neutral or convey praise,” thus constituting “de facto viewpoint discrimination.” Ernst cites precedent, in particular Matal v. Tam and Iancu v. Brunetti, for support for his view that “such content-based restrictions are subject to strict scrutiny, just like viewpoint discriminatory provisions.” Further, Ernst asserts, the provision in question “burdens speech without taking any countervailing First Amendment interests into account.”
Petition Cases
New Petitions
New petitions were filed in two pro se cases.
In Trimble v. Department of Veterans Affairs, a pro se petitioner presented following questions for the Court to review:
- “When a qualified preference eligible seeks initial appointment under an open competition announcement, does Congress allow federal agencies to deny and violate that veteran’s statutory right to preference if the announcement is also open to status candidates seeking merit promotion?”
- “When a federal agency publishes an open competition announcement and hires federal employees they already know, after emailing instructions to consider them first while naming other employees to consider irrespective of interviews, does that prove pre-selection activity, granting of unfair advantages and denial of a qualified preference eligible’s right to compete for initial appointment?”
- “Under an open competition announcement and legislation that requires one Certificate to be issued, does Congress allow federal agencies to issue several Certificates causing a preference eligible seeking initial appointment to be segregated, illegally ranked and denied their statutory right to have extra points added to their score?”
In Chae v. Yellen, another pro se petitioner filed a new petition with the Court.
Waivers of Right to Respond
The government waived its right to respond in two cases.
It waived its right to respond in Cooperman v. Social Security Administration, an employment case asking the Court to review two questions:
- “Is the ‘conduct unbecoming’ standard for subjecting an employee to disciplinary proceedings unconstitutionally vague, and therefore violative of the Due Process Clause of the Fifth Amendment to the United States Constitution in a situation where free speech concerns are implicated?”
- “Is an ALJ, employed by the Respondent, required to follow the Respondent’s Program Operations Manual System (POMS) and if so, does doing so insulate him from discipline for matters covered by the POMS?”
The government also waived its right to respond in Pohl v. United States. In this case, a pro se petitioner submitted the following question the Court to review:
- “Is the proper standard of review for an appeal to correct a military record 10 U.S.C. § 1552 as stated in both the statute and Respondents DD Form 149, or is it 28 U.S.C. § 1491 known as the Tucker Act?”