On Tuesday, February 19, the Court heard oral arguments in Return Mail, Inc. v. USPS. The issue in the case is whether, under the America Invents Act (AIA),  the government is a “person” who can petition the United States Patent and Trademark Office to review patent validity. Return Mail, the petitioner, owns a patent involving the processing of undeliverable mail items due to incorrect or obsolete addresses for the intended recipient. After Return Mail unsuccessfully attempted to license the patent to the US Postal Service, Return Mail filed suit against USPS alleging “unlicensed and unlawful use and infringement of the patent.”

In response, USPS filed a petition to the Patent and Trademark Office’s Patent Trial and Appeal Board asking for the Board to void the patent. Return Mail countered that USPS lacked statutory standing to establish any review proceedings under the AIA. Return Mail argues that the AIA intended a meaning of “person” that excludes the government and therefore government agencies cannot initiate AIA review proceedings. USPS contends that historical evidence and Supreme Court statements show that Congress intended to include government agencies as a person, at least in the context of the AIA. The United States Court of Appeals for the Federal Circuit held that “person” under the AIA did not exclude government agencies and therefore the government could petition for a patent review. Return Mail is appealing that Court of Appeals decision.

Oral argument was lively, with Justice Ginsburg, back on the bench for the first time since undergoing cancer surgery, asking the first question. It was hard to tell from oral argument which way the Court is likely to come out in the case. Recaps of oral argument can be found at SCOTUSBlog and  IPWatchdog has a

This Post was Written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

           The Court heard oral arguments in two cases on Wednesday, January 16, 2019. First up was Knick v. Township of Scott, Pennsylvania, in which the Court is being asked to decide two questions: (1) whether to uphold the ripeness doctrine of Williamson County Regional Planning Commission v. Hamilton Bank (a rule that property owners must exhaust their state court options to ripen a federal takings claim); and (2) whether the Williamson County rule applies to a takings claim asserting that a law is unconstitutional on its face. Petitioner Knick argued that the interpretation of the Fifth Amendment’s Just Compensation Clause should be the same regardless of whether a claim is brought against a local government entity or against the United States in a claim under the Tucker Act.  Respondents countered by noting that permitting all takings plaintiff to go straight to federal court would upset the congressionally created balance of authority between state and federal courts. This is the second time that the Court has heard oral arguments in Knick; the was on October 3, 2018 before the confirmation of Justice Kavanaugh. More coverage on this year’s arguments can be found in this Forbes article and this Daily Caller article.

           The second case argued was Tennessee Wine & Spirits Retailers Association v. Blair, in which the Court is being asked to decide whether states, consistent with the Dormant Commerce Clause, can regulate liquor sales by granting liquor licenses only to individuals or entities that have resided in the state for a specified period of time.

Petitioner Tennessee Wine & Spirits argued that their policy is justified under the Twenty-First Amendment, the 1933 amendment that repealed Prohibition.  The purpose of the Twenty-First Amendment, they argue, was to constitutionalize states’ pre-Prohibition powers, which included the power to discriminate against out-of-state interests. They contested that protectionist policies that might otherwise violate the Dormant Commerce Clause are constitutional because they involve the regulation of alcohol and therefore are justified under the Twenty-First Amendment. Respondents counter that if a statute’s only purpose is to be protectionist of local industries, that statute ought to be considered an unconstitutional discrimination against out-of-state economic interests, and that the Twenty-First Amendment does not immunize this regulation from Dormant Commerce Clause scrutiny. Respondent further argued that Tennessee’s interest in protecting against alcohol can be fully achieved without the durational residency requirements. Coverage of the arguments and the case can be found in this WREG News article, this Forbes article, and this Wine Spectator article. The Jurist also briefly summarizes both cases.

This Article was Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On January 15, the Court heard oral arguments for two cases: Home Depot v Jackson and Azar v. Allina Health Services. Justice Ginsburg is recovering from lung cancer surgery she underwent last month and was not in attendance.

In Home Depot, Citibank sued George Jackson in North Carolina state court for debt collection. Jackson then brought a counterclaim against Citibank but also added third-party class action claims against Home Depot and Carolina Water Systems, Inc. (CWS). Jackson’s counterclaim asserted that Citibank, Home Depot, and CWS were misleading customers about their water treatment systems and financing thereof.

When Citibank dismissed its original claim against Jackson, Home Depot petitioned to remove its counterclaim to federal court under the Class Action Fairness Act of 2005. But then the federal district court granted Jackson’s request to remand the case back to state court, on the basis that since Home Depot was not technically a defendant, it could not remove the case to federal court. Meanwhile, Jackson dropped his counterclaim against Citibank, eliminating them from the case. Home Depot and CWS appealed the district court’s decision to remand to state court to the Court of Appeals for the Fourth Circuit. Home Depot based its appeal on two arguments: that the term “defendant” should be read to allow third-party defendant’s to remove a case from state to federal court; and that since Citibank was no longer a defendant, Home Depot should be recognized as the “defendant” rather than a “third-party defendant.” The Fourth Circuit affirmed the district court ruling, and Home Depot petitioned the Supreme Court for a writ of certiorari, which the Court granted.

Oral arguments revealed a Supreme Court with mixed opinions on the case. Justice Kagan indicated disagreement with Home Depot’s argument. She went so far as to state that the plaintiff’s complaint doesn’t have any claims that belong in federal court and questioned the authority of Home Depot to remove under 28 U.S. Code § 1441 (a). Justices Sotomayor and Breyer echoed Kagan’s comments. But Chief Justice Roberts and Justice Alito seemed to lean in the other direction, pressing Jackson’s counsel. “But in the ordinary sense of the term are they not defendants?” Alito asked, adding, “They are some kind of defendants.”

Audio of the oral arguments is available here; a transcript can be accessed here.

In Azar, the Court is asked to determine whether or not the Department of Health and Human Services (HHS) erred by not providing public notice and comment on a rule change which altered the calculations used in Medicare reimbursement payments. Medicare, which helps provide Americans over age 64 with health insurance, is divided into several parts. They inclue Part A, in which the government directly administers health insurance to enrollees, and Part C, in which the government subsidizes enrollees to obtain private insurance plans. HHS issued a rule that provided that Medicare Part C enrollees are entitled to benefits under Part A. After the United States Court of Appeals for the District of Columbia ruled that an opportunity for public notice and comment was required before issuing such a rule. the Court granted petition for writ of certiorari by HHS Secretary Alex Azar.

Justices Kagan, Sotomayor, and Gorsuch questioned the government’s interpretation of statutory language regarding substantive changes and public notice and comment requirements. Justices Breyer and Gorsuch pointed out that the legislative history of the Medicare Act is “confused.” HHS pointed to the negative consequences for the agency if it would have to go through the public vetting process for all substantive changes, stating there are “thousands of pages of regulations, but the Court has recognized that [it] can’t answer all questions that come up.” Counsel for Allina and other hospitals dismissed the government’s warnings, arguing that the provision in question would only apply to roughly 35 pages of Medicare manuals.

Justice Kavanaugh has recused himself from the case because he wrote a circuit court decision invalidating the HHS formula.

Audio of the oral arguments is available here; a transcript can be accessed here.

This Post was Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On Monday, January 15th, the Supreme Court heard oral arguments in two cases involving statutory interpretation. Thacker v. Tennessee Valley Authority (TVA) raises the question of whether the TVA is immune from tort liability as a government entity. Gary Thacker and a friend were fishing on the Tennessee River. At the same time, the TVA was attempting to raise a downed power line that was above the part of the river Thacker and his friend was located. An electrical component hit Thacker, severely injuring him, and his friend, killing him instantly.

Thacker attempted to sue TVA, alleging negligence. The TVA Act, which created the TVA,  provides that TVA is a corporate entity that can be sued. However, the district court dismissed Thacker’s suit on the basis of governmental discretionary function immunity. The issue in the case involves whether that immunity is available to the TVA. A discretionary function immunity provision is codified in the the Federal Tort Claims Act of 1946 (FTCA), which allows individuals to sue the federal government for tort liability. But the TVA is not covered by the FTCA. As a result, the issue before the Court involves when and whether to infer such an immunity into the TVA Act. You can read more about the question on Jurist, and the Federalist Society has posted a helpful video explanation.

The second case the court heard, Rimini Street, Inc. v. Oracle USA, Inc., involves the scope of costs that can be awarded to a plaintiff under the Copyright Act. The Court might read the statute to authorize the same relatively narrow set of costs that are taxable in most litigation or a broader set of costs that would “come closer to compensating a party for all of its litigation costs.” You can read more at The National Law Journal.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

The Supreme Court delved into the complicated history of the relationships between the federal government and Native American tribes on Tuesday, January 8, in Herrera v. Wyoming. In January 2014, Clayvin Herrera, a member of the Crow Tribe in Montana and a tribe game warden, went hunting to find food to feed his family. He, along with other fellow tribe members, shot and killed three elk on land in the Big Horn National Forest outside of their reservation. In 2015, Herrera was cited by Wyoming authorities for hunting during closed season and without a state license — laws that do not apply on the reservation itself — and was convicted.

Although this incident occurred recently, the validity of Herrera’s conviction depends on whether and how the Supreme Court will choose to enforce an 1868 treaty between the Crow Tribe and the United States, which gave the tribe “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon.” Because the treaty was created in 1868 and Wyoming did not gain statehood until 1890, the first question the Court must answer is whether the treaty survives Wyoming’s statehood. There is case law indicating that the treaty did not survive, but there is subsequent case law calling those holdings into question. If the Court decides that the treaty remains in operation, the next issue is whether the land in the Bighorn National Forest constitutes “the unoccupied lands of the United States.” Check out SCOTUSblog, Time Magazine, Indian Country Today, and  Great Falls Tribune for more information on this case and the arguments presented by both sides.

Also on January 8 the Court considered what someone has to do before filing a copyright infringement lawsuit in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. Although copyright owners do not have to register with the Copyright Office to have rights, registration is a prerequisite to filing an infringement suit. When the plaintiff in this case filed its lawsuit for copyright infringement, it had only filed an application to register its potentially infringed copyrights but the copyright office had not yet registered the claims. Therefore, the issue is whether the registration of a copyright claim is complete when the copyright holder “delivers the required application, fees, and materials to the copyright office” or if it is complete only when the copyright office has approved the application. Check out the Trademark and Copyright Law Blog and World Intellectual Property Review for commentary on how the Court’s decision could impact copyright owners.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.