In Return Mail v. US Postal Service, the Supreme Court held that the United States Government does not qualify as a “person” in the organic statutory provisions that created the Patent Trial & Appeal Board (PTAB) in the American Invents Act of 2011. The patent statutes provide that a “person” may file petitions in the various administrative review programs at the PTAB, i.e., inter partes review, post-grant view, and covered business methods. Thus, governmental agencies may not file petitions to cancel patents at the PTAB. The PTAB has been a flashpoint of controversy in the patent system. It was created to provide efficient and quick cancelation of mistakenly issued patents that hampered the innovation economy. Since it began operations in 2012, the PTAB has been accused by judges, lawyers, and commentators of engaging in procedural and substantive “shenanigans.” With very high cancelation rates, one federal judge has called it a “death squad[] killing property rights.” This Courthouse Steps teleforum will review Return Mail v. US Postal Service and discuss its legal and policy implications for the patent system, the PTAB, the innovation economy, and limitations on federal executive power.
Featuring:
Prof. Adam MacLeod, Professor of Law, Faulkner University
Matthew J. Dowd, Founder and Partner, Dowd Scheffel PLLC

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On May 20, 2019, the U.S. Supreme Court issued a 5-4 ruling in the case of Herrera v. Wyoming. In Herrera, the Court encountered the question of whether a portion of an 1868 treaty between the Crow, a Native American tribe which today resides on Montana reservation land, and the United States, is enforceable. In the treaty, the Crow were promised, in exchange for the tribe’s territory in Montana and Wyoming, “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon…and peace subsists…on the borders of the hunting districts.” The State of Wyoming, in prosecution of Crow tribal member Clayvin Herrera, argued that the Tenth Circuit decision in Repsis precluded the argument of Mr. Herrera that the treaty’s hunting rights provision remains valid. In defense, Mr. Herrera argued that the Supreme Court decision in Minnesota v. Mille Lacs repudiated Repsis and the 1896 Supreme Court decision in Ward v. Race Horse.

Justice Sotomayor, writing for Justices Ginsburg, Breyer, Kagan, and Gorsuch issued an opinion in favor of Mr. Herrera, and remanded for further proceedings.

What is the proper balance between Congressional oversight and Executive privilege? As it becomes clear that Congress is not satisfied with the Mueller Report on its face, and it will seek to conduct follow-up inquiries on its own, it has requested an unredacted copy of the Mueller Report, and its supporting documentation, and several witnesses who were interviewed during the investigation, including the former White House Counsel.

Historically, Congress and the Executive have resolved their differences on disclosure requirements and moved forward, without significant resort to the Judiciary. What will and should be the role of the courts in any upcoming litigation? Could a final court ruling enhance rather than limit the power of the Executive? These and other questions will be discussed by our experts.

We are honoring William “Bill” Colwell with a teleforum on a topic we know he would love – the President’s power to approve – and revoke – security clearances. We will discuss recent media accounts of the President reportedly ordering the revocation of clearances of former government officials and insisting on other clearances being granted over the objections of senior government personnel. We will also – in true Federalist fashion – examine the historical wellsprings of each branch of government’s power to act within this realm. It is time to take a closer look at whether there are any practical limits on the Executive’s discretion, and whether Congress can and should play a stronger role.

Bill Colwell was a great patriot and friend to many of us in the Federalist Society, and a pillar within the Washington D.C. legal community, but his appeal was by no means limited to one side of the aisle or to people with whom he agreed. As one recent description phrased it, Bill was “a beautiful mind of insatiable curiosity and creativity, a comedian who made us laugh until tears rolled down our faces, chef and mixologist par excellence.” Bill, a devoted and loving husband and father, was a man of great faith. Bill was Assistant General Counsel and Corporate Director of the Northrop Grumman Corporation. Prior to that, he was employed at The Boeing Company and Wiley, Rein & Fielding LLP. He served in the United States Navy as a nuclear submarine officer on the USS Hampton, where he received numerous awards. A nationally recognized expert in government contracts, Bill frequently spoke and published on procurement issues. He served on the Board of the Federal Circuit Bar Association, chaired the Legal Committee of the National Defense Industrial Association, and recently received the 2018 NDIA Howard H. Cork Memorial Award for exceptional service to NDIA and the defense industry. But beyond all professional interests, Bill loved his family and is mourned by his wife, Robin, their twin daughters and their extended families.

The Texas Tech Medical School recently approved an agreement with the United States Department of Education’s Office for Civil Rights, to end the use of racial preferences in their admissions process. The agreement was reached after over a decade of negotiation, initiated by a complaint filed by the Center for Equal Opportunity against Texas Tech in 2004. The agreement is a promising sign for opponents of racial preferencing in school admissions process, and could have significant implications for the future.
Roger Clegg joins us to discuss the recent agreement, and its implications.

On February 14, 2019, the Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rule defining “waters of the United States” under the Clean Water Act (CWA). This is a critical definition because it clarifies the waters that are regulated under the CWA.
For decades, the EPA and Corps have struggledto come up with a proper definition that is both consistent with the plain language of the statute, respects the state role in addressing water pollution, and is consistent with the rule of law. Does the new proposed rule address these concerns? What are some of the concerns with the proposed rule? How should the EPA and the Corps define key terms such as “tributaries” and “adjacent wetlands?” Should a final rule include intermittent waters? Please join us as we discuss these questions and many others in this timely Teleforum.

Featuring:
Deidre Duncan, Partner, Hunton Andrews Kurth LLP
Tony Francois, Senior Attorney, Pacific Legal Foundation
Moderator: Daren Bakst, Senior Research Fellow in Agricultural Policy, Roe Institute for Economic Policy Studies, The Heritage Foundation

On the morning of March 27, the Supreme Court heard oral argument in Kisor v. Wilkie. The Supreme Court granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members have cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years. Many observers believe that the doctrine’s days are numbered.

Importantly, the United States filed a merits brief in Kisor that forcefully criticized Auer/Seminole Rock deference, yet argued that the Court should not overrule Auer and Seminole Rock “in their entirety.” The brief foreshadows what will likely be a memorable oral argument, featuring Paul Hughes of Mayer Brown LLP and Solicitor General Noel Francisco. Hughes represents James Kisor, the Vietnam War veteran who is the petitioner in the case. Kisor is challenging a decision of the Department of Veterans Affairs (VA) that denied Kisor’s request for retroactive disability benefits connected to his wartime service. Francisco will be defending the VA’s decision.

What is the nature of government involvement in religious matters, and what is the future of crosses used in war memorials? On February 27, the Supreme Court will hear consolidated oral arguments for two cases concerning World War I crosses: American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association. These cases raise important questions: does the Establishment Clause require the removal of these memorials because they are shaped as religious symbols? Is offense over passive religious display substantive enough to establish standing?

Featuring:
Mark Rienzi, President, The Becket Fund

Free speech and open inquiry on campus have long been a fundamental part of higher education. However, in recent years public universities have started to enact speech codes and other guidelines. These measures have resulted in several lawsuits filed against the public universities across the country with interesting results. Please join us for a discussion with representatives from the Alliance Defending Freedom, the Foundation for Individual Rights in Education, and SpeechFirst, who all have active litigation related to campus free speech moving through the federal judiciary.
Featuring:
Mr. Michael Connolly, Partner, Consovoy McCarthy Park PLLC.
Mr. Will Creeley, Senior Vice President of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)
Mr. Tyson Langhofer, Sr. Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

In Timbs v. Indiana today, the Supreme Court held that the Eighth Amendment prohibition against excessive fines is incorporated against the states under the Due Process Clause — not the Privilege and Immunities Clause — of the 14th Amendment. In doing so, the Court explicitly rejected Indiana’s argument that a civil forfeiture is not a “fine” and thus its “excessiveness” may not be reviewed. The Court’s ruling has significant implications for the practice of civil forfeiture in the United States, for broader criminal justice policy, and for constitutional interpretation.
Vikrant Reddy joins us to discuss the decision and its implications
Featuring:
Vikrant Reddy, senior research fellow, Charles Koch Institute
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

There has been much in the news lately concerning the President’s use of emergency power to shift budgeted funds from one purpose to another, namely, construction of a barrier along the southern border of the U.S. Does the President have inherent constitutional authority to declare an emergency and move the funds? Has Congress otherwise given the President statutory authority to do so, and, if so, has that authority been granted constitutionally? These and other questions will be debated on our Teleforum conference call.
Featuring:
Professor John C. Yoo, Emanuel Heller Professor of Law and Director of the Korea Law Center, the California Constitution Center, and Public Law and Policy Program, University of California at Berkeley School of Law
David A. French, Senior Fellow, National Review Institute, and Senior Writer, National Review

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.