Relist Watch

John Elwood reviews Monday’s relists perfunctorily.

The long crunch at work continues for yet another week, so it’ll be another short installment today. For readers bemoaning the loss of installments that go on for page after labored page with dozens of carefully culled semi–humorous hyperlinks, I say: Don’t worry — it can still get worse.

Four new relists this week. Some pretty juicy ones, and it’s a particularly important week for 21st century intellectual property.

Google LLC v. Oracle America, Inc., 18-956, has been to the Supreme Court twice in the last five years, with about half the appellate bar taking turns on the covers of the petitioner’s briefs. This seems like a good time for a [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] The case involves the copyrightability of certain kinds of computer code. Twice the court has called for the views of the solicitor general, and twice the government has argued (again, with virtually complete turnover in the lawyers involved) that cert is not warranted. Last time the case was in an interlocutory posture, meaning that a final judgment had not been issued by the lower court, which ordinarily weighs against Supreme Court review. We’ll see if the court follows the solicitor general’s recommendation now that the case is on review of a final judgment. There are nearly twice as many amicus briefs as last time (15 versus eight), so it may be hard to persuade the court that the case is not certworthy.

The Lanham Act provides that generic terms may not be registered as trademarks. United States Patent and Trademark Office v. Booking.com B.V., 19-46, is a government petition that asks whether an online business’s addition of “.com” to an otherwise generic term creates a protectable trademark. The U.S. Court of Appeals for the 4th Circuit concluded that it does; the Patent and Trademark Office argues it does not. If this case is granted, it may be the first time in the court’s history that its plenary docket features two website names in case captions.

Thompson v. Hebdon, 19-122, raises the question whether Alaska’s $500 individual-to-candidate and individual-to-group contribution limits violate the First Amendment. A group of contributors (mostly from Alaska, though the named petitioner is from Wisconsin) wanted to give more money to candidates and brought suit challenging those limits, and the U.S. Court of Appeals for the 9th Circuit rejected their claims. Before the Supreme Court, the challengers argue that Alaska is an “extreme outlier[],” that it is one of only three states that have such low limits and that its limit is badly out of date because it is just half the size of the limit the court upheld more than 40 years ago in Buckley v. Valeo, and lower when adjusted for inflation than the $400 limit the court struck down in Randall v. Sorrell. Alaska argues that the evidence at trial demonstrated that its limits are appropriate for “the unique 49th state, which only recently recovered from a public corruption scandal implicating ten percent of its legislature,” and given how campaigns are conducted in the state.

That leaves the week’s most puzzling relist, Eady v. United States, 18-9424. When you’re trying to read tea leaves from the docket, any petition that presents three questions (as Eady does) causes an involuntary shudder. Lamar Eady Jr. raises challenges to his conviction for being a felon in possession of a firearm and to a sentence enhancement he received under the Supreme Court’s favorite statute, the Armed Career Criminal Act. Eady argues that last term’s decision in Rehaif v. United States, which held that a statute prohibiting aliens “unlawfully in the United States” from possessing firearms requires showing the alien knew he was unlawfully present, should be extended to his case, so that the government must show Eady knew he was a felon. The government argues Eady failed to preserve that issue. Near as I can tell, the court is trying to sort that out.

That’s all for this week. We’ll be back next week with more. No, wait: less.

New Relists

Google LLC v. Oracle America, Inc., 18-956
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
Issues: (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. CVSG: 09/27/2019.
(relisted after the November 1 conference)

Eady v. United States, 18-9424
Issues: (1) Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a 18 U.S.C. § 922(g) crime; (2) whether, under the “realistic probability” standard of Gonzalez v. Duenas-Alvarez, it is necessary to identify a reported case to establish that a state statute is overbroad vis-a-vis a federal definition if the plain language of the state statute so indicates; and (3) whether the U.S. Court of Appeals for the 11th Circuit erred under Miller-El v. Cockrell and Buck v. Davis in denying the petitioner, Lamar Eady, a certificate of appealability based upon adverse circuit precedent, when the question of whether Florida felony battery under Fla. Stat. § 784.041(1) is an ACCA “violent felony” is debatable among reasonable jurists.
(relisted after the November 1 conference)

United States Patent and Trademark Office v. Booking.com B.V., 19-46
Issue: Whether, when the Lanham Act states generic terms may not be registered as trademarks, the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark.
(relisted after the November 1 conference)

Thompson v. Hebdon, 19-122
Issue: Whether Alaska’s $500 individual-to-candidate and individual-to-group contribution limits violate the First Amendment.
(relisted after the November 1 conference)

Returning Relists

Gundy v. United States, 17-6086
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the October 1, October 11, October 18 and November 1 conferences)

Paul v. United States, 17-8830
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the September 24, 2018, June 27, 2019, October 18, 2019, and November 1, 2019, conferences)

Caldwell v. United States, 18-6852
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the February 15, June 27, October 18 and November 1 conferences)

Terry v. Oklahoma, 18-8801
Issue: Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C § 1151(a).
(relisted after the October 11, October 18 and November 1 conferences)

Isom v. Arkansas, 18-9517
Issue: Whether Sam Pope and Kenneth Isom’s significant adversarial history created an unconstitutional risk of bias under the due process clause when Pope later sat as the trial judge in Isom’s unrelated coram nobis hearing.
(relisted after the October 11, October 18 and November 1 conferences)

McGirt v. Oklahoma, 18-9526
Issue: Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
(relisted after the October 11, October 18 and November 1 conferences)

Peithman v. United States, 19-16
[Disclosure: Arnold & Porter Kaye Scholer LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to an amicus in this case.]
Issue: Whether 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture imposed jointly and severally among co-conspirators, as the U.S. Courts of Appeals for the 6th and 8th Circuits have held, or whether such joint and several liability is foreclosed under the reasoning of Honeycutt v. United States, as the U.S. Court of Appeals for the 3rd Circuit has held.
(relisted after the October 11, October 18 and November 1 conferences)