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SCOTUS Declares That the PTO Is Not A Safe Space

John Shu June 26, 2017
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Yesterday, the U.S. Supreme Court released its opinion, Matal v. Tam, previously known as Lee v. Tam, regarding viewpoint discrimination and the First Amendment. The name changed when Michelle Kwok Lee,[1] the U.S. Patent & Trademark Office (“PTO”) director at the time of the original lawsuit and appeals, resigned and Secretary of Commerce Wilbur Ross appointed Joseph Matal as interim PTO director on June 7, 2017.

The heart of the case was whether the PTO could deny registration to those trademarks which it deems “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” (emphasis added) under § 2 of the Lanham Act of 1946, 15 U.S.C. § 1052(a).[2], [3]  The trademark in question was the name of a dance-rock band, “The Slants,” of which Mr. Simon Tam and his fellow band members, all Asian-Americans, belonged. In other words, did the Lanham Act authorize the PTO to make an offense-free “safe space” out of trademark applications? [Read More]

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With the Supreme Court's Abandonment, it's Time for States to Protect Property Rights

Christina Sandefur June 26, 2017
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Private property is a critical ingredient in freedom. That’s why the U.S. Constitution refers to it more than any other right—it protects our “homes” and “things,” and forbids government from taking our property away without paying just compensation.  Unfortunately, in a 5-3 opinion on Friday, the Supreme Court largely washed its hands of serious legal protections for property owners—a decision that rivals the infamous 2005 Kelo decision in its betrayal of constitutional guarantees. Now, more than ever, states must take it in their hands to shield citizens against government abuse. [Read More]

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Photo Credit: Shutterstock | Sean Pavone (link)

Supreme Court Opinions & Orders Update

Timothy Courtney June 23, 2017
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Today the Supreme Court released three more opinions. A summary follows:

(1)  Perry v. Merit Systems Protection Bd.:  By a vote of 7-2, the judgment of the U.S. Court of Appeals for the D.C. Circuit is reversed and the case remanded.  Per Justice Ginsburg's opinion for the Court:  "This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA).... In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. §7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner v. Solis, 568 U. S. 41, 46 (2012); the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, §7703(b)(1)(A), lacks authority over claims arising under antidiscrimination laws, see §7703(c).  When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not in the Federal Circuit. In Kloeckner, 568 U. S., at 50, 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner itself, failure to meet a deadline for Board review set by the MSPBWe hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as 'jurisdictional.' As in Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, but to secure expeditious resolution of the claims employees present." [Read More]

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Photo Credit: Shutterstock | Sean Pavone (link)

SCOTUS Opinions & Orders Update

Timothy Courtney June 19, 2017
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Today the Supreme Court issued six opinions and a new Order List.

OPINIONS

(1)  Ziglar v. Abbasi (with Ashcroft v. Abbasi and Hasty v. Abbasi):  By a vote of 4-2, the judgment of the U.S. Court of Appeals for the Second Circuit is reversed in part and vacated and remanded in part.  Per Justice Kennedy's opinion for the Court:  "After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court. The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.... The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent.... If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office. On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril.... The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens.... One of respondents’ claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC’s warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents.... [B]efore allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other 'sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy' in a suit like this one.... One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3).... [T]he Court has held that qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' Malley v. Briggs, 475 U. S. 335, 341 (1986).... Under these principles, it must be concluded that reasonable officials in petitioners’ positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.... The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings." [Read More]

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Photo Credit: Shutterstock | Sean Pavone (link)

SCOTUS Opinions and Orders Update

Timothy Courtney May 31, 2017
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OPINIONS

(1)  County of Los Angeles v. Mendez:  By a vote of 8-0 the judgment of the U.S. Court of Appeals for the Ninth Circuit is vacated and the case remanded.  Per Justice Alito's opinion for the Court:  "If law enforcement officers make a 'seizure' of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use forceThe Ninth Circuit has adopted a 'provocation rule' that imposes liability in such a situationWe hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure." [Read More]