Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Since our last update, seven new petitions have been filed. These new petitions raise various questions related to employment law, trademark law, free speech, procedure, and patent law. Also, two waivers of the right to respond to petitions were filed in a case related to military disability retirement and a pro se case. Here are the details.
Granted Petitions
There are no pending cases at the Supreme Court that were decided by the Federal Circuit.
Pending Petitions
New Petitions
Since our last post, seven new petitions have been filed at the Supreme Court. Here are the cases and the questions presented:
Baker v. Social Security Administration
- “Whether federal whistleblowers have to prove ‘retaliatory intent’ in an Individual Right to Action, (IRA), under the Whistleblower Protection Enhancement Act (WPEA).”
Foster, APC v. Stewart
- “Whether the Federal Circuit improperly considered government developments that postdate a trademark applicant’s filing to support a refusal under Section 2(a) of the Lanham Act, despite the applicant’s statutory right to constructive use based on the application’s filing date.”
- “Whether the Federal Circuit improperly deferred to the USPTO’s statutory interpretation of Section 2(a) after this Court’s ruling in Loper Bright Enterprises v. Raimondo, which reaffirmed the judiciary’s duty to independently interpret the law under the Administrative Procedure Act.”
- “Whether Section 2(a)’s prohibition against marks that ‘falsely suggest a connection’ is unconstitutionally vague as applied to an intent‑to‑use trademark application which the USPTO claims references a fictionalized entity that did not exist at the time of filing.”
Mallonee v. Department of the Interior
- “Whether a federal employee’s speech—reporting unsafe school conditions, unauthorized personnel practices, and retaliation to oversight bodies—is protected under the First Amendment, and whether the agency’s retaliation and judicial suppression of that speech violated constitutional protections.”
- “Whether a federal agency’s misclassification of employment status in violation of 62 BIAM § 11.25 and misuse of the probationary framework—used to justify termination and deny procedural rights— violated Petitioner’s Fifth Amendment due process rights.”
- “Whether an Administrative Judge’s suppression of material evidence, manipulation of testimony, and disregard of agency regulations constitutes judicial misconduct and fraud on the tribunal requiring vacatur of the proceedings under Hazel-Atlas and Brady v. Maryland.”
- “Whether the Federal Circuit’s summary affirmance without opinion, in a case raising serious constitutional, regulatory, and whistleblower claims, contravened its duty of meaningful review under Universal Camera Corp. v. NLRB, thereby enabling systemic due process violations.”
Lowe v. ShieldMark, Inc.
- “Whether a district court, after first deciding it lacks subject matter jurisdiction and dismissing with prejudice a cause of action, retains the power to declare an ‘alternative’ decision on the merits despite the apparent ‘advisory’ character of any such ‘alternative’ decision; and”
- “Whether a court of appeals has the power to affirm a decision of a district court issued ‘in the alternative’ after that district court first decided it lacked subject matter jurisdiction to hear the cause of action on the merits?”
R. J. Reynolds Vapor Co. v. Altria Client Services LLC
- “Does the Federal Circuit’s judicially created ‘built-in apportionment’ exception, which allows patent owners to use unrelated prior licenses to prove damages without providing ‘evidence tending to separate or apportion’ the patent’s contribution, violate Garretson v. Clark’s requirement that apportionment ‘must in every case’ be shown?”
- “Alternatively, in light of the Federal Circuit’s intervening en banc decision in EcoFactor, Inc. v. Google LLC, . . which reiterated that expert damages opinion evidence ‘that is connected to existing data only by the ipse dixit of the expert’ is inadmissible under Daubert and Federal Rule of Evidence 702 and rejected damages expert testimony regarding a royalty rate purportedly used in reaching lump-sum license agreements that did not support such a rate—should the Court grant the petition, vacate the judgment, and remand for application of that precedent, as is typical practice when an intervening development reasonably shows that the lower court’s decision rests on a premise that it would reject if given the opportunity for further consideration?”
United States Automobile Association v. PNC Bank N.A.
- “Whether an agency decision is arbitrary and capricious when it fails to justify a different result reached on saliently similar facts, but involving a different party?”
A petition was also filed in Lee v. Department of the Army, a pro se case.
Waivers of the Right to Respond to Petitions
Another waiver of the right to respond was filed by the United States in Pipes v. United States, a case related to military disability retirement.
Since our last update, Coke Morgan Stewart, Acting Director of the USPTO, submitted a waiver of the right to respond to the petition in Behnamian v. Stewart, a pro se case.