Here is the order list — the docket no. is 09-32, and the notice is on page 3.
Supreme Court
Onion: Justice Sotomayor Misses SCT Oral Argument Due to Jury Duty
From the Onion via How Appealing:
WASHINGTON—Recently appointed justice Sonia Sotomayor told reporters that, despite making dozens of excuses, she was selected for jury duty this week, causing her to miss a landmark Supreme Court case addressing campaign finance reform.
“I probably threw away four of those letters before I got one that said I had to appear or ‘face serious penalties,’ whatever that means,” said Sotomayor, who was forced to appear at a nearby municipal courthouse Monday. “I just got a new job, for Christ’s sake. I can’t afford to be sitting in some dingy courtroom all day. God, what a waste of time.”
“The guy is totally guilty, by the way,” Sotomayor continued. “You can tell just by looking at him.” Continue reading
Pyke v. Cuomo Cert Petition
Second Circuit opinion here.
Questions presented:
1. Whether a summary judgment motion which turns on the adequacy of plaintiffs’ evidence of intentional discrimination must be denied where a “plausible” inference of invidious intent can be drawn from all of the evidence, circumstantial and direct, taken as a whole?
2. Whether this Court should resolve a conflict among the circuits on the issue of what standards to apply in considering the strength of summary judgment evidence in cases of alleged intentional discrimination?
3. Whether Congress’s enactment of 25 U.S.C. §232 obviated any distinctions based on geography or sovereignty regarding New York’s duty to provide police protection to Native Americans residents of reservations within the State?
Barrett v. United States Cert Petition Materials
NYTs: SCT’s Shrinking Docket
This isn’t really news anymore, is it, since the extreme shrinkage of the docket in the first years of the Roberts Court stabilized a few years back.
From the NYTs:
In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many.
A couple of weeks ago, the Supreme Court advocacy clinic at Yale Law School held a conference to explore the mystery of the court’s shrinking docket. Law professors presented data, theories and speculation. Expensive lawyers told rueful stories about can’t-miss cases that somehow did not make the cut.
Some participants blamed the newer justices, others their clerks. Some blamed Congress, saying it is not cranking out enough confusing legislation. And some blamed the Justice Department, which is filing fewer appeals.
But there emerged nothing like a definitive answer to why the court now selects perhaps 80 cases from more than 8,000 requests for review it receives every year.
The most striking possible explanation came from David R. Stras, a researcher at the University of Minnesota Law School. A crop of five new justices who joined the court starting in 1986, he found, voted to hear cases far less often than the justices they replaced. Continue reading
Who is an Indian under the Major Crimes Act?
The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.
Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.
Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.
And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard.
The Stymiest case likely conflicts in large part with the Ninth Circuit’s recent decision in United States v. Cruz. There, the court held that Christopher Cruz was not an Indian, despite being nearly quarter blood, although ineligible for tribal membership with the Blackfeet Nation. He worked for the BIA, spent several years of his childhood on the reservation, is eligible for some IHS and treaty hunting and fishing benefits, and was even once prosecuted in tribal court for a minor violation. In other words, Cruz is spectacularly similar to Stymiest.
Cruz isn’t an Indian under the Major Crimes Act, but Stymiest is. There’s a problem here.
LATs Article on Eagle Cases
From the LATs:
On Wyoming’s Wind River Indian Reservation, Winslow Friday is preparing to surrender in his long fight with the federal government.
The seeds of the conflict were planted four years ago when Friday shot a bald eagle out of a tree. His cousin needed a tail fan for an upcoming Sun Dance, the Northern Arapaho tribe’s most important religious ceremony, and Friday wanted to help.
So when Friday spotted the bird, he seized his chance.
Charged with killing a bald eagle in violation of federal law, Friday had argued that the law hinders the practice of his religion — a battle closely watched on the reservation.
“Some agreed with what he did, some didn’t,” said tribal spokesman Donovan Antelope. “But they all agree with the reason he did it — for the Sun Dance. We know he wasn’t doing it just to kill an eagle.”
Now, though, Friday is giving up. Having exhausted his legal options, he’s hoping for a plea agreement that will avoid a trial. “The attorneys say that [a trial] would be a losing battle,” said Friday, 25, a former oil field worker studying to be a civil engineer.
Friday’s case represents the latest and most high-profile fight in a string of battles over how to balance conservation with religious liberty.
Harjo v. Pro-Football, Inc. Cert Petition
Here it is — Harjo Petition for Writ of Certiorari
The question presented:
The United States District Court for the
District of Columbia reversed the Trademark Trial
and Appeal Board’s order scheduling cancellation of
the disputed marks and granted summary judgment
to Pro-Football, Inc., finding that the doctrine of
laches precluded consideration of Petitioners’
cancellation petition brought pursuant to Section
14(3) of the Lanham Act, 15 U.S.C. § 1064(3). On
appeal, a panel of the District of Columbia Circuit
agreed and, after a remand, ultimately affirmed the
District Court’s decision in full. The District of
Columbia Circuit’s decision and the Federal Circuit’s
decision in Bridgestone/Firestone Research, Inc. v.
Auto. Club De L’Ouest De La France, 245 F.3d 1359,
1360-61 (Fed. Cir. 2001), are in conflict with the
holding of the Court of Appeals for the Third Circuit
in Marshak v. Treadwell, 240 F.3d 184 (3d Cir. 2001)
(Alito, J.), that petitions made pursuant to Section
14(3) may be filed “at any time,” rendering defenses
such as laches and statutes of limitation
inapplicable.
A single question is presented for review:
1. Whether the doctrine of laches is applicable
to a cancellation petition filed pursuant to Section
1064(3) of the Lanham Act despite the plain
meaning of the statutory language stating that such
a petition may be filed “at any time.”
The United States District Court for the District of Columbia reversed the Trademark Trial and Appeal Board’s order scheduling cancellation of the disputed marks and granted summary judgment to Pro-Football, Inc., finding that the doctrine of laches precluded consideration of Petitioners’ cancellation petition brought pursuant to Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3). On appeal, a panel of the District of Columbia Circuit agreed and, after a remand, ultimately affirmed the District Court’s decision in full. The District of Columbia Circuit’s decision and the Federal Circuit’s decision in Bridgestone/Firestone Research, Inc. v. Auto. Club De L’Ouest De La France, 245 F.3d 1359, 1360-61 (Fed. Cir. 2001), are in conflict with the holding of the Court of Appeals for the Third Circuit in Marshak v. Treadwell, 240 F.3d 184 (3d Cir. 2001) (Alito, J.), that petitions made pursuant to Section 14(3) may be filed “at any time,” rendering defenses such as laches and statutes of limitation inapplicable.
A single question is presented for review:
1. Whether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act despite the plain meaning of the statutory language stating that such a petition may be filed “at any time.”
Harjo v. Redskins Case Has Potential for Supreme Court
Or so says this IP firm’s website, which asserts that there is a trademark-related circuit split:
We do not believe that the issues raised in this case are going away. In the
first place, there is considerable question as to the correctness of the rulings by the District
Court and the D.C. Circuit that laches is applicable to a case such as this. Section 14(3) of
the Lanham Act, 15 U.S.C. § 1064(3), provides that a petition to cancel a registered mark
because, inter alia, it has become generic, was obtained by fraud, or is disparaging, may be
brought “at any time”. With the D.C. Circuit’s Harjo opinion, there is now a split among the
circuits regarding this issue that could give rise to a cert petition. In addition, following the
Circuit Court’s original remand decision, a group of six Native Americans, all of whom only
recently reached the age of majority, filed a new cancellation petition with the TTAB. Although
this proceeding has been stayed pending the outcome of the Harjo lawsuit, it will be activated
in the event that the D.C. Circuit’s decision on laches stands.
We do not believe that the issues raised in this case are going away. In the first place, there is considerable question as to the correctness of the rulings by the District Court and the D.C. Circuit that laches is applicable to a case such as this. Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3), provides that a petition to cancel a registered mark because, inter alia, it has become generic, was obtained by fraud, or is disparaging, may be brought “at any time”. With the D.C. Circuit’s Harjo opinion, there is now a split among the circuits regarding this issue that could give rise to a cert petition. In addition, following the Circuit Court’s original remand decision, a group of six Native Americans, all of whom only recently reached the age of majority, filed a new cancellation petition with the TTAB. Although this proceeding has been stayed pending the outcome of the Harjo lawsuit, it will be activated in the event that the D.C. Circuit’s decision on laches stands.
It gets more interesting. This is consistent with the Harjo plaintiffs’ lawyer asserts (WaPo article), who suggests that one of the split is a Third Circuit decision authored by then-Judge Alito. Maybe there is a chance for this case to be heard.
Still haven’t seen the cert petition. No indication on the SCOTUS site that anything’s been filed.
Oh, and here’s an update on that notorious Quinn Emmanuel lawyer who got fired after emailing the firm questioning whether its successful representation of the Redskins was a good thing.
BLT: Harjo v. Redskins Case Reaches Supreme Court
From the BLT:
The long-running dispute over the appropriateness of the “Redskins” name for the Washington D.C. NFL football franchise reached the Supreme Court today. Philip Mause, partner at Drinker Biddle & Reath in D.C., representing a group of Native Americans offended by the name, filed a petition for certiorari in the case titled Susan Harjo v. Pro-Football, Inc.
“This is a derogatory term for Indians that sticks out like an anomaly,” said Mause today. “No other group still has to deal with this kind of a term being used” in such a public and widespread way.
The case began with a petition in 1992 to cancel the Redskins trademark under the Lanham Act, which bars trademarks that “disparage … persons living or dead … or bring them into contempt, or disrepute.” The latest ruling by the U.S. Court of Appeals for the D.C. Circuit found that the claims were barred by the doctrine of laches, a defense that acts like a statute of limitations to protect defendants from being sued for long-ago violations of rights.
But Mause asserted that the doctrine does not apply, because the law explicitly allows cancellations of trademarks “at any time.” He cites a 2001 ruling by the U.S. Court of Appeals for the 3rd Circuit in Marshak v. Treadwell, in which now-Justice Samuel Alito Jr. said trademark cancellation claims are not time-barred. “We hope that ruling will be of some help,” said Mause.
In a footnote in the brief, Mause also suggested that “the views of the United States may be helpful to the Court.” Mause said the U.S. trademark office has sided with the Native Americans in the past, but the government has not spoken on whether the Supreme Court should take up the issue. Even without the government filing a brief, it is unlikely the Court will act on the petition before the end of this year, Mause indicated.
Turtle Talk 
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