Petitions / Supreme Court Activity
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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, the government’s reply brief was filed in Vidal v. Elster, a trademark case concerning the First Amendment. With respect to pending petitions, one new petition was filed with the Court in a pro se case, a waiver of right to respond was filed in another pro se case, and a brief in opposition was filed in response to a petition asking the Court to consider whether the deadline to file a petition to review a decision of the Merit Systems Protection Board is jurisdictional. In addition, the Court denied the petitions in two employment cases, two veterans cases, a patent case, and a pro se case, and the Court also dismissed the petitions in four pro se cases. Here are the details.

Granted Cases

In Vidal v. Elster, the government submitted its reply brief. The Court is considering 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.”

In his merits brief, Elster argued that, because “no one would ever consent to the registration of speech that insults them, Section 1052(c) effectively precludes the registration of all marks that disparage or criticize living people.” According to Elster, the government “concede[d] that the right of publicity does not trump Elster’s First Amendment right to express his political message on T-shirts.” Thus, Elster argued, this clause is “unconstitutional as applied here.”

Now, in its reply brief, the government asserts “the living-individual clause [in Section 1052(c)] does not ‘silence,’ ‘burden,’ or otherwise restrict speech.” According to the government, it “merely establishes a condition on the government-conferred benefits that flow from federal trademark registration.” Further, the government argues, because a registered trademark allows for the owner “to restrict the speech of others, denial of registration may enhance overall free-speech rights.”

Petition Cases

New Petition

In Martin v. Bravenec, a pro se party presented a petition.

Waiver of Right to Respond

The government waived its right to respond in Aljindi v. United States, another pro se case.

Brief in Opposition

In Harrow v. Department of Defense, the government filed its brief in opposition. The petition presented the following question:

  • “When a federal employee petitions the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board, 5 U.S.C. § 7703(b)(1)(A) provides: ‘Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.’ In the decision below, the Federal Circuit relied on settled circuit precedent holding this filing deadline to be jurisdictional, despite recent opinions from other Circuits and this Court holding analogous filing deadlines to be nonjurisdictional.”
  • “The question presented is whether the 60-day deadline in Section 7703(b)(1)(A) is jurisdictional.”

In its brief in opposition, the government contends previous Supreme Court decisions have recognized that Section 7703(b)(1) “confers the operative grant of jurisdiction.” Thus, the government maintains, “[t]he timely filing of a petition from the Board’s final decision is a jurisdictional requirement.” 

Denials

The Court denied certiorari in the following cases:

Dismissals

The Court dismissed the petitions for writs of certiorari in four cases: