Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting!
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[Ballotpedia's Bold Justice]

Welcome to the May 4 edition of Bold Justice, Ballotpedia's newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Stay up-to-date on the latest news by following us on Twitter ([link removed]) or subscribing to the Daily Brew ([link removed]) .
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[We #SCOTUS so you don't have to]
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** ARGUMENTS
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The Supreme Court will hear four hours of argument this week in cases it had postponed in March and April. The court will use a teleconferencing system to hear oral arguments. Several procedures were announced in a press release ([link removed]) on April 28, including rules for which Justices will ask questions, based on seniority.

The court has agreed to hear arguments in 73 cases this term. Click here ([link removed]) to read more about SCOTUS' current term.

Click the links below to read more about the specific cases SCOTUS will hear this week:

*
MAY 4

*
_United States Patent and Trademark Office v. Booking.com B.V. ([link removed]) _ concerns trademark law. The U.S. Patent and Trademark Office (USPTO) denied Booking.com's four applications to trademark the name Booking.com. The USPTO said the name was generic and not a protectable mark. The Trademark Trial and Appeal Board upheld the USPTO's decision.

On further appeal, the U.S. District Court for the Eastern District of Virginia ordered the USPTO to accept two of Booking.com's trademark applications and remanded the case for further proceedings on the remaining two applications. The USPTO filed a motion to remand all four trademark applications and to require Booking.com to pay the USPTO's attorneys' fees.

The district court denied the motion to remand all four applications but accepted the motion about attorneys' fees. Both Booking.com and the USPTO appealed the district court's ruling, which the 4th U.S. Circuit Court of Appeals affirmed. The USPTO petitioned the U.S. Supreme Court to review the case.

THE ISSUE: Whether the addition by an online business of a generic top-level domain (".com") to an otherwise generic term can create a protectable trademark.

*
MAY 5

*
_USAID v. Alliance for Open Society International ([link removed]) _ concerns the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. The U.S. Agency for International Development (USAID) provides federal funds to U.S.-based organizations like the Alliance for Open Society International, Inc. (AOSI). The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 barred AOSI from receiving the funds unless they adopted "a policy explicitly opposing prostitution and sex trafficking," known as the _policy requirement._

In 2005, AOSI sought to prohibit the policy requirement's enforcement. After a series of decisions in lower federal courts, the U.S. Supreme Court upheld AOSI's claim in _Agency for International Development v. Alliance for Open Society International, Inc. _(2013). In that case, SCOTUS held the policy requirement violated the 1st Amendment.

According to the 2nd Circuit, "The Government subsequently interpreted the Supreme Court’s opinion as allowing the Policy Requirement to continue to be applied to foreign affiliates." AOSI challenged this interpretation in the U.S. District Court for the Southern District of New York, obtaining a permanent injunction. The 2nd Circuit affirmed the injunction on appeal.

USAID petitioned the Supreme Court.

THE ISSUE: Whether, in light of the 2013 SCOTUS decision, the 1st Amendment further bars enforcement of that requirement with respect to legally distinct foreign entities operating overseas that are affiliated with U.S.-based organizations like AOSI.

*
MAY 6

*
_Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania ([link removed]) _ (consolidated with _Trump v. Pennsylvania_) concerns the legality of agency rules providing a religious or moral exemption to the contraception mandate created under the Affordable Care Act (ACA). The contraception mandate requires some employers who provide health insurance to their employees to offer insurance plans that cover contraceptives.

After several years of litigation, including two U.S. Supreme Court decisions surrounding regulatory accommodations for religious and moral objections to contraception under the ACA, the Trump administration issued regulations allowing for exceptions to the federal contraceptive mandate.

The 3rd Circuit upheld a nationwide injunction that kept the rules from going into effect. The 3rd Circuit held that the states challenging the rules were likely to succeed in proving that the Trump administration violated the Administrative Procedure Act (APA), that the ACA did not allow the regulations, and that the Religious Freedom Restoration Act (RFRA) did not require them.

The Little Sisters of the Poor appealed to the U.S. Supreme Court, arguing that the 3rd Circuit wrongly denied the organization standing to appeal the court's decision against the contraceptive mandate exemption rules.

THE ISSUES:
1) From SCOTUSblog ([link removed]) : "Whether the nuns have the legal right to appeal the decision invalidating the exemption when a district court in Colorado had blocked the enforcement of the mandate against the Little Sisters."

2) Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.

* _Barr v. American Association of Political Consultants Inc. ([link removed]) _ concerns the Telephone Consumer Protection Act of 1991 (TCPA). In May 2016, the American Association of Political Consultants, Inc. and three other plaintiffs filed suit in the U.S. District Court for the Eastern District of North Carolina, claiming that one of the statutory exemptions to the TCPA violated the free speech clause of the 1st Amendment. The exemption—otherwise known as the government-debt exception or debt-collection exemption—allows automated calls relating to collecting debts owed to or guaranteed by the federal government.

The plaintiffs and the U.S. Government each filed motions for summary judgment in the Eastern District of North Carolina. The court denied the plaintiffs' motion for summary judgment and granted summary judgment to the U.S. Government. The court also rejected the plaintiffs' free speech clause challenge.

On appeal, the 4th Circuit vacated the district court's judgment in favor of the U.S. Government, directed debt-collection exemption be separated from the remainder of the automated call ban, and remanded the case for further proceedings.

THE ISSUE: Whether the government-debt exception to the TCPA’s automated-call restriction violates the 1st Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

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** OPINIONS
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SCOTUS has ruled on 11 cases since our April 6 issue. The court has issued rulings in 29 cases so far this term.

Click the links below to read more about the specific cases SCOTUS ruled on since April 6:

*
APRIL 6

*
_Kansas v. Glover ([link removed]) _ was argued before the court on November 4, 2019.

THE CASE: A Douglas County police officer stopped Charles Glover on suspicion of driving without a valid license. The officer did not witness any traffic violations. Glover was charged with driving as a habitual violator. Glover moved to suppress evidence from the stop, arguing the officer violated Glover's 4th Amendment rights. The state district court agreed, dismissing the case. On appeal, the Kansas Court of Appeals reversed the district court's ruling. Glover petitioned the Kansas Supreme Court for review. The state supreme court affirmed the district court's ruling, dismissing the case. The State of Kansas asked SCOTUS for review.

THE OUTCOME: In an 8-1 opinion, the court reversed the Kansas Supreme Court's decision and remanded the case. The majority held that when an officer lacks information negating an inference that the vehicle's owner is driving the vehicle, an investigative traffic stop is reasonable under the 4th Amendment.

Justice Sonia Sotomayor dissented, arguing the majority "ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof."

* _Babb v. Wilkie ([link removed]) _ was argued before the court on January 15, 2020.

THE CASE: Dr. Noris Babb, a pharmacist working at the VA Medical Center in Bay Pines, Florida, sued the U.S. Department of Veterans Affairs (VA) secretary, alleging age and gender discrimination and a hostile work environment. The U.S. District Court for the Middle District of Florida rejected Babb's claims, granting summary judgment to the VA secretary.

On appeal, the 11th Circuit reversed the district court's ruling on Babb's gender discrimination claim and affirmed the district court's ruling on Babb's age discrimination and hostile work environment claims. The court remanded the case.

Babb petitioned the U.S. Supreme Court for review, arguing the 11th Circuit's decision disadvantaged federal employees bringing discrimination claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) of 1967.

THE OUTCOME: The court reversed the 11th Circuit's judgment in an 8-1 opinion. The majority held the plain meaning of the federal-sector provision ([link removed]) of the ADEA, which provides for nondiscrimination based on age for federal government employees "indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account."

Justice Clarence Thomas dissented, arguing, "This novel 'any consideration' standard does serious damage to our interpretation of antidiscrimination statutes and disrupts the settled expectations of federal employers and employees."

*
APRIL 20

*
_Ramos v. Louisiana ([link removed]) _ was argued before the court on October 7, 2019.

THE CASE: Evangelisto Ramos was convicted of murder and sentenced to life imprisonment on a 10-2 jury verdict. He appealed his conviction to the Louisiana 4th Circuit Court of Appeal, arguing his conviction by a non-unanimous jury violated his federal constitutional rights. The court of appeal affirmed Ramos' conviction and sentence. The Louisiana Supreme Court denied review.

THE OUTCOME: The court reversed the Louisiana 4th Circuit Court of Appeal's decision in a 6-3 ruling, holding "if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court."

*  Atlantic Richfield Co. v. Christian ([link removed]) _ _was argued before the court on December 3, 2019.

THE CASE: A group of landowners located within the bounds of the Anaconda Smelter superfund ([link removed]) site sued the Atlantic Richfield Co. (ARCO) for common law trespass, nuisance, and strict liability and sought restoration damages. ARCO argued the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) preempted the landowners' claims.

The state district court dismissed the case on the grounds that the statute of limitations had run out. On appeal, the Montana Supreme Court affirmed in part, reversed in part, and remanded the case. On remand, the district court denied ARCO's motions. ARCO appealed again, and the state Supreme Court affirmed the district court's denial and remanded the case.

THE OUTCOME: The court affirmed in part and vacated in part the Montana Supreme Court's decision in a 7-2 ruling, holding the state supreme court was wrong to rule that "the landowners were not potentially responsible parties under the [CERCLA] and thus did not need EPA approval to take remedial action."
 
* _Thryv, Inc. v. Click-To-Call Technologies, LP ([link removed]) _ was argued before the court on December 9, 2019.

THE CASE: Inforocket.com, Inc. sued Keen, Inc. in 2001 for infringement of U.S. Patent No. 5,818,836 (the "836 Patent"). In 2003, the companies merged and the charges were dropped. The companies later became Dex Media, Inc. In 2011, Click-To-Call Technologies, LP acquired the 836 Patent. In 2012, CTC filed charges of patent infringement against Dex Media. The Patent Trial and Appeal Board ("Board") allowed for an inter partes review (IPR) of the patent challenge.

An IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the Board as long as the challenge is filed within a statutory time limit.

Click-To-Call Technologies challenged the IPR, arguing it was barred from time limitations under Title 35 U.S.C. § 315(b). The Board rejected Click-To-Call's time bar challenge and ruled in favor of Dex Media. On appeal, the U.S. Court of Appeals for the Federal Circuit issued a split decision vacating the Board's grant of IPR. Dex Media petitioned the U.S. Supreme Court to review the case. In July 2019, Dex Media changed its name to Thryv, Inc.

THE OUTCOME: The court ruled 7-2 in favor of Thryv, Inc., vacating the Federal Circuit's ruling and remanding the case with instructions that the Federal Circuit dismiss for lack of jurisdiction. The court held that courts may not review the PTAB's decision to institute IPR. 

*
APRIL 23

*
_Barton v. Barr ([link removed]) _ was argued before the court on November 4, 2019.

THE CASE: Andre Barton, a Jamaican national, entered the U.S. in 1989 and became a lawful permanent resident in 1992. In 1996, 2007, and 2008, Barton was convicted of several criminal charges. The U.S. Department of Homeland Security charged Barton as removable.

Barton challenged the charges for removal under 8 U.S.C. § 1229b(a), which allows the U.S. attorney general to cancel the removal of a lawful permanent resident if the individual "has resided in the United States continuously for 7 years after having been admitted in any status." The continuous residence requirement is subject to a "stop-time" rule, which ends the accrual of continuous residence when the individual commits a crime and renders them "inadmissible" under § 1182(a)(2).

The U.S. government argued Barton's crimes made him "inadmissible" under § 1182(a)(2). Barton argued that as an already-admitted lawful permanent resident, he could not be rendered inadmissible. An immigration judge ruled in favor of the government. On appeal, the Board of Immigration Appeals agreed with the immigration judge. On further appeal, the 11th Circuit upheld the immigration judge and the Board of Immigration Appeals' rulings.

THE OUTCOME: The court affirmed the 11th Circuit's decision in a 5-4 ruling, holding that for purposes of cancellation-of-removal eligibility, a §1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal.

* _County of Maui, Hawaii v. Hawaii Wildlife Fund ([link removed]) _ was argued before the court on November 6, 2019.

THE CASE: Maui County, Hawaii, owns and operates four wells acting as the county's primary means of liquid waste disposal into groundwater and the Pacific Ocean. The Clean Water Act (CWA) prohibits the discharge of pollutants from point sources unless a party obtains an exemption from the National Pollutant Discharge Elimination System. A point source is "any discernible, confined and discrete conveyance, including but not limited to any ... well ... from which pollutants are or may be discharged."

The Hawaii Wildlife Fund sued Maui County for violating the CWA by discharging waste without a permit. The U.S. District Court for the District of Hawaii agreed. On appeal, the 9th Circuit affirmed the district court's judgment.

THE OUTCOME: The court vacated the 9th Circuit's decision in a 6-3 ruling and remanded the case. The court held "a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge." In the majority opinion, Justice Stephen Breyer wrote that the 9th Circuit's holding was too broad, while the petitioners' argument was too narrow.
 
* _Romag Fasteners v. Fossil ([link removed]) _ was argued before the court on January 14, 2020.

THE CASE: Romag Fasteners, Inc., sued Fossil for patent and trademark infringement in the U.S. District Court for the District of Connecticut. A jury found Fossil guilty of unintentional patent and trademark infringement. The jury decided Fossil should pay more than $6.8 million in profits to Romag.

In a separate trial, the district court ruled Romag was not entitled to receive profits because Fossil's infringement was unintentional.

On appeal, the U.S. Court of Appeals for the Federal Circuit affirmed the district court's ruling that the infringement was unintentional. Romag appealed to the U.S. Supreme Court, asking the court to clarify a circuit court split on requiring proof of willful infringement for rewarding profits.

THE OUTCOME: The unanimously ruled to vacate the Federal Circuit's decision, holding that a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a pre-condition to a profits award.

*
APRIL 27

*
_Maine Community Health Options v. United States ([link removed]) _ was argued before the court on December 10, 2019.

THE CASE: As part of Section 1342 of the 2010 Patient Protection and Affordable Care Act (ACA), the federal government established a program to lessen the risk of insurers entering the new health insurance marketplace. Under the program, the government agreed to pay a portion of the costs to insurers who experienced higher-than-expected costs. In 2014, Congress included appropriations riders, or provisions, barring the U.S. Department of Health and Human Services from using its appropriations toward Section 1342 payments.

Insurer Maine Community Health Options sued the federal government to recover nearly $57 million in unpaid debts. Maine Community Health Options believed the government was legally obligated to pay the debts under Section 1342 of the ACA. On appeal, the Federal Circuit held the government was not obligated to distribute payments under Section 1342 because of Congress' appropriations provisions.

The case was consolidated with _Moda Health Plan Inc. v. United States_ and _Land of Lincoln Mutual Health Insurance Co. v. United States_.

THE OUTCOME: The court reversed the Federal Circuit's decision in an 8-1 ruling and remanded the case. The court held that (1) the risk corridors statute created a government obligation to pay insurers the full amount set out in Section 1342's formula; (2) Congress did not implicitly repeal the obligation through its appropriations riders; and (3) petitioners properly relied on the Tucker Act to sue for damages in the U.S. Court of Federal Claims.

* _Georgia v. Public.Resource.Org Inc. ([link removed]) _ was argued before the court on December 2, 2019.

THE CASE: In 2015, the Georgia Code Revision Commission sued the nonprofit organization Public.Resource.Org (PRO) for copyright infringement. The Commission argued that PRO could not distribute copies of the Official Code of Georgia Annotated (OCGA). PRO disagreed, arguing the OCGA was in the public domain. The U.S. District Court for the Northern District of Georgia ruled in favor of the Commission and barred PRO from distributing the OCGA. On appeal, the 11th Circuit Court of Appeals reversed in part and vacated in part the district court's ruling, concluding the state of Georgia had no valid copyright.

The State of Georgia appealed to the U.S. Supreme Court. In its petition, the state said the 11th Circuit showed "considerable confusion regarding the government edicts doctrine." The government edicts doctrine originated in the 1800s with three U.S. Supreme Court cases that held judicial opinions are not copyrightable. Lower courts later expanded the doctrine to apply to state law.

THE OUTCOME: The court affirmed the 11th Circuit's decision in a 5-4 ruling, holding the OCGA annotations are not eligible for copyright protection. Writing for the majority, Chief Justice John Roberts wrote that under the government edicts doctrine, judges and legislators "may not be considered the 'authors' of the works they produce in the course of their official duties." The rule applies even if the material in question is not legally binding.
 
* _New York State Rifle & Pistol Association Inc. v. City of New York, New York ([link removed]) _ was argued before the court on December 2, 2019.

THE CASE: A group of New York City residents challenged New York City's rule that an individual with a premises license for a handgun is only allowed to take the handgun out of his or her home to go to a shooting range within the city limits. The residents argued the rule violated their 2nd Amendment right, the dormant Commerce Clause, the 1st Amendment right of expressive association, and the fundamental right to travel.

The Southern District of New York rejected the residents' argument. On appeal, the 2nd Circuit upheld the district court's ruling. The New York State Rifle & Pistol Association appealed to the U.S. Supreme Court, which accepted the case on January 22, 2019. New York City repealed the gun rule in July 2019.

THE OUTCOME: The court vacated the 2nd Circuit's decision in a 6-3 _per curiam ([link removed]) _ ruling, holding the petitioners' claim was moot because the city changed the ban in 2019. A per curiam decision is issued collectively by the court. The authorship is not indicated.

Justice Brett Kavanaugh filed a concurring opinion. Justice Samuel Alito ([link removed]) filed a dissenting opinion, joined in full by Justice Neil Gorsuch and in all but Part IV-B by Justice Clarence Thomas.

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** UPCOMING SCOTUS DATES
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Here are the court’s upcoming dates of interest, pending further notice:

*
May 5: SCOTUS will hear arguments in one case.

*
May 6: SCOTUS will hear arguments in two cases.

*
May 7: SCOTUS will conference. A conference is a private meeting of the justices.

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** [link removed]
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** THE FEDERAL VACANCY COUNT
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The Federal Vacancy Count ([link removed]) tracks vacancies, nominations, and confirmations to all United States Article III ([link removed]) federal courts in a one-month period. This month's edition ([link removed]) includes nominations, confirmations, and vacancies from April 3 to May 1.

 
** HIGHLIGHTS
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*
VACANCIES: There have been two new judicial vacancies since the March 2020 report ([link removed]) . As of May 1, 77 (or 8.9%) of 870 active Article III judicial positions on the courts covered in this report were vacant.

Including the United States Court of Federal Claims and the United States territorial courts, 83 of 890 active federal judicial positions are vacant.

* NOMINATIONS: There have been three new nominations since the March 2020 report.
 
* CONFIRMATIONS: There have not been any new confirmations since the March 2020 report.

 
** VACANCY COUNT FOR MAY 1, 2020
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A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here ([link removed]) .

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*Though the United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here ([link removed]) for more information.
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** NEW VACANCIES
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Two judges left active status, creating Article III vacancies. As Article III judicial positions, these vacancies must be filled by a presidential nomination. Nominations are subject to Senate confirmation.

*
Judge Karon Bowdre ([link removed]) assumed senior status ([link removed]) on the U.S. District Court for the Northern District of Alabama ([link removed]) .

*
Judge Liam O'Grady ([link removed]) assumed senior status ([link removed]) on the U.S. District Court for the Eastern District of Virginia ([link removed]) .

The chart below shows the number of vacancies on the United States Court of Appeals ([link removed]) from the inauguration of President Donald Trump ([link removed]) (R) on January 20, 2017 to May 1, 2020.

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** U.S. DISTRICT COURT VACANCIES
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The following map displays U.S. District Court vacancies as of May 1.

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** NEW NOMINATIONS
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President Trump has announced three new nominations since the March 2020 report.

*
Justin Walker ([link removed]) , to the U.S. Court of Appeals for the D.C. Circuit.

*
Aileen Cannon ([link removed]) , to the U.S. District Court for the Southern District of Florida.

*
Dirk Paloutzian ([link removed]) , to the U.S. District Court for the Eastern District of California.

The president has announced 255 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here ([link removed]) .

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** NEW CONFIRMATIONS
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Between April 3 and May 1, 2020, the Senate did not confirm any of the president’s nominees to Article III courts.

Since January 2017, the Senate has confirmed 194 of President Trump’s judicial nominees—139 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here ([link removed]) for continuing updates on the status of all federal judicial nominees.
Or, if you prefer, we also maintain a list of individuals ([link removed]) the president has nominated.
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[Looking ahead]
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We'll be back May 11 with a new edition of_ Bold Justice._

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