PETITIONS OF THE WEEK

Religious liberty and patent validity

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the autonomy of faith-based nonprofits to hire only candidates who share their religious beliefs, and Apple’s attempt to shake up the process for contesting patent validity by expanding the jurisdiction of federal courts to hear appeals.

The First Amendment establishes that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The establishment clause prohibits the federal government from endorsing a particular religion or belief set. The free exercise clause protects the rights of citizens to practice the religion of their choice, without interference from the government. In Seattle’s Union Gospel Mission v. Woods, the justices are faced with a free exercise question regarding the rights of religious nonprofits to hire individuals who share in their beliefs.

Seattle’s Union Gospel Mission provides a legal-aid clinic to assist vulnerable community members. As a prerequisite to employment, the mission requires regular church attendance, a pastor’s recommendation, and an explanation of the applicant’s relationship with Jesus. In 2016, Matthew Woods expressed interest in an open position for a staff attorney with the clinic and disclosed to the director of the clinic that he was currently in a same-sex relationship. The director informed him that because his relationship violated the mission’s “religious-lifestyle” requirements he would not be able to apply. Woods applied anyway, despite also not satisfying any of the mission’s other prerequisites for employment. The mission denied his application and he sued for employment discrimination, alleging a violation of Washington’s Law Against Discrimination, which forbids discrimination based on sexual orientation.

A Washington state trial court dismissed the action, explaining that the mission is statutorily exempt from state non-discrimination law because it is a religious nonprofit and thus falls under the exception to “employer,” which excludes “any religious or sectarian organization not organized for private profit.” The Washington Supreme Court disagreed and reversed, holding that the exemption may violate the Washington state constitution, as applied to Woods, and remanded the case to determine whether staff attorneys can qualify as “ministers.” Although the mission’s legal clinic is a faith-based nonprofit that expects its staff attorneys to “share their faith with clients,” the clinic also engages in legal activities separate from ministry, and the court found “no indication that religious training is necessary” for such a position. The mission petitions for the justices’ review, explaining that if the court does not intervene, the Washington Supreme Court’s ruling “threatens to extinguish” religious nonprofits or at the least extinguish their right to “live their faith.”

Next, Apple Inc. v. Optis Cellular Technology, LLC concerns the ability of the U.S. Court of Appeals for the Federal Circuit to hear appeals from the Patent Trial and Appeal Board. To improve the review process of patents, Congress created inter partes review, an administrative process that serves as an alternative to litigation for reviewing patent validity. Despite the presence of this process, Apple alleges that the director of the Patent and Trademark Office has routinely acted to undermine access to inter partes review by instituting a rule, the NHK–Fintiv Rule, requiring the board to deny review when it would be “inefficient” in light of pending patent infringement litigation involving the same patent. Apple argues that Congress only granted such authority in circumstances when proceedings involving the same patent are ongoing and that no such authority was given to deny review over pending parallel infringement suits.

At the center of the issue is the jurisdiction of the Federal Circuit to act when the board improperly denies an inter partes review petition on the basis of an unlawful rule. Upon denial of Apple’s prior petitions, the company sought to argue that these denials were unlawful because the NHK-Fintiv Rule, used to justify them, exceeds the PTO’s authority under the Leahy-Smith America Invents Act. However, the Federal Circuit dismissed Apple’s complaints each time – for lack of jurisdiction – and held that mandamus relief was also unavailable. Apple argues that this position undermines congressional intent because it precludes judicial review in every instance, even if the agency were to deny petitions “based on a coin flip.” Apple asks the justices to take the case and enable courts to review PTO decisions.

These and other petitions of the week are below:

Apple Inc. v. Optis Cellular Technology, LLC
21-118
Issue: Whether the U.S. Court of Appeals for the Federal Circuit may review, by appeal or mandamus, a decision of the U.S. Patent & Trademark Office denying a petition for inter partes review of a patent, where review is sought on the grounds that the denial rested on an agency rule that exceeds the PTO’s authority under the Leahy-Smith America Invents Act, is arbitrary or capricious, or was adopted without required notice-and-comment rulemaking.

González-Bermúdez v. Abbott Laboratories P.R., Inc.
21-138
Issues: (1) Whether comparator evidence can support an inference of discrimination if the plaintiff and comparators do not share the same position, duties, and supervisor; and (2) whether a jury’s disbelief of an employer’s proffered reason for an adverse employment action can sustain an inference of discrimination or retaliation.

Rodriguez-Rivera v. United States
21-143
Issue: Whether the United States Sentencing Guidelines’ definition of a “controlled substance offense” as one that includes “the offense of . . . conspiring . . . to commit such offenses” is limited to only those state and federal crimes that categorically overlap the generic definition of a conspiracy, requiring proof of both an overt act and an agreement, as two circuits have held, or whether it does not, as six circuits have held.

Seattle’s Union Gospel Mission v. Woods
21-144
Issues: (1) Whether the First Amendment protects Seattle’s Union Gospel Mission’s right to hire coreligionists; (2) whether denying the Mission a total exemption from non-discrimination law that the state grants to secular, small businesses violates the Free Exercise Clause; and (3) whether the Washington Supreme Court violated the Free Exercise Clause by showing at least a “slight suspicion” of hostility to religious beliefs in deleting a total exemption the legislature bestowed.

Zupnik v. United States
21-171
Issue: Whether 18 U.S.C. § 2422(b), which prohibits using a facility or means of interstate commerce to “persuade, induce, entice, or coerce” a minor to engage in any sexual activity that is forbidden by state law, sweeps in any conduct that simply attempts to cause commission of unlawful sexual activity (as the court below and some other Circuits have held), or whether the verbs also require something more—an effort by the defendant to transform the minor’s will, alter the minor’s mental state, or otherwise secure the minor’s assent (as several other Circuits have held).