Feds Thumb Nose at Court in Slants Case, Court Says “Oh Hell No”
So last Monday evening I had the pleasure of attending a talk given by Ron Coleman about the Slants case. (Regular readers know that Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog and Bruce Godfrey of Jezic & Moyse LLC, have been representing me for what seems like forever in a frivolous lawsuit brought by convicted bomber and perjurer Brett Kimberlin.) For background on the Slants case, please read my post Ron Coleman Wins Historic First Amendment Victory in Trademark Case.
In a nutshell, Ron convinced the Federal Circuit Court of Appeals sitting en banc that, as the court held: “The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks.” Accordingly, the court found that the provision in federal law that allows the USPTO to deny or cancel a trademark as “disparaging” is unconstitutional. The decision will undoubtedly serve as a help to the Redskins in protecting their trademark, and is a landmark First Amendment case.
In his talk, Ron told the assembled crowd what the USPTO had done in response to the Federal Circuit’s decision. The answer: precisely nothing. This is, of course, entirely unacceptable — and Ron hinted that he was going to take action, although he couldn’t talk about the specifics just yet.
Indeed he had. On the day after he spoke to us, Ron filed a petition for writ of mandamus, which you can read here. And on the very same day, the Federal Circuit issued an order to show cause. [UPDATE: A commenter corrects this to “an order that the USPTO respond to the petition.” Here is a link to the order. Thanks to commenter mh.] They have until this Tuesday to explain why they have taken it upon themselves to defy the court’s order. Marc Randazza at Popehat compares the USPTO’s inaction to Bartleby’s refrain: “I would prefer not to.”
Guess what, USPTO guys? Your preferences are subordinate to the U.S. Constitution and its First Amendment. Ron Coleman is holding your feet to the fire, and on Tuesday I will close my eyes and savor the aroma of your burning foot-flesh.
Ding.
Patterico (86c8ed) — 3/20/2016 @ 4:37 pmAnd so the court then issues the writ and the agency still does nothing. What then?
Kevin M (25bbee) — 3/20/2016 @ 4:45 pmKevin M, this is an extremely unusual procedural setting, but the ultimate teeth for enforcement would be the court ordering the U.S. Marshals Service to take under arrest and into custody one or more specified public servants who were refusing to comply, their release to be conditioned upon compliance.
Beldar (fa637a) — 3/20/2016 @ 4:51 pmThere are likely to be a few more intervening steps before the cuffs actually go on. But this is a giant one in that direction.
Beldar (fa637a) — 3/20/2016 @ 4:52 pmI thought that cuffs would be involved, but there are so many orders being ignored by this administration and, as yet, no cuffs.
Kevin M (25bbee) — 3/20/2016 @ 4:59 pmStill, en banc Federal Circuit, you would think that someone would think twice about that.
Kevin M (25bbee) — 3/20/2016 @ 5:00 pmwhat narrative does it serve, what ethnic group does such a decision appease, there’s your answer.
narciso (732bc0) — 3/20/2016 @ 5:03 pmSo, the court doesn’t need to go through some other agency, they just directly tell the US Marshall’s service to go arrest, and then they do, no approval from the DOJ or the president or nobody else.
Sounds good, real good.
maybe it will start a trend.
MD in Philly (at the moment not in Philly) (f315c7) — 3/20/2016 @ 5:17 pmThe USPTO’s handling of this matter has been bewilderingly presumptuous and this will be very interesting to watch. However, note the Federal Circuit did not issue a show cause order. Rather, it simply issued an order requiring the USPTO to respond to the writ. Here’s the order: http://cdn2.hubspot.net/hubfs/454850/1._John_Welch_Images/Tam_Mandamus_Response_Order-c.pdf?t=1458064307285
mh (3371d0) — 3/20/2016 @ 5:41 pmThat’s nice.
Somehow, I’m reminded of a little Dutch boy. This time he is trying to plug the tsunami which has veritably destroyed the Rule of Law.
If the federal judiciary actually goes after HRC and the Department of State in a similar fashion prior to November, we’ll actually have something.
Ed from SFV (3400a5) — 3/20/2016 @ 6:19 pmThe insolence of office more than the law’s delay in this case, I think. And the notorious fecklessness of the USPTO, which is not used to lawyers who stand up to it. Kick a little butt, Mr. Coleman.
nk (dbc370) — 3/20/2016 @ 6:36 pm@ Kevin M: If the U.S. Marshals are inadequate to the task, they can enlist help from the Executive Branch, as was needed during some of the enforcement decisions, particularly in the old Fifth Circuit, during the 1950s & 1960s. It seems unlikely that the USPTO will get quite as unruly as were the resisters in those cases.
Beldar (fa637a) — 3/20/2016 @ 7:44 pmI can’t imagine a lawyer who has passed the bar advising the USPTO that the 90-day period to petition for certiorari is an automatic stay. This is the kind of arrogance that we saw at all the House hearings from Fast and Furious, to the Snowden debacle, to the IRS/Lerner scandal.
nk (dbc370) — 3/20/2016 @ 8:00 pmRon is so hot
SPQR (a3a747) — 3/20/2016 @ 8:01 pmThanks mh, I added an update for accuracy.
Patterico (86c8ed) — 3/20/2016 @ 8:03 pmIf the executive branch is uninterested in enforcing the courts decision, what happens?
kaf (ba6093) — 3/20/2016 @ 8:09 pmCongress can impeach the offending government employees up to and including barring them from holding any federal job. Short of that, defund their salaries and perks, or whole departments, or the whole agency.
nk (dbc370) — 3/20/2016 @ 8:16 pmTheoretically. It will not get that far. USPTO will cave.
nk (dbc370) — 3/20/2016 @ 8:21 pmBravo, Patterico, but could I edit the last line to read: “… and on Tuesday I will close my eyes and savor the aroma of your melting toe cheese.”?
Johnny Mustard (7537d3) — 3/21/2016 @ 7:55 amOur esteemed host wrote:
You’re kidding, right? You expect elements of the federal government, under this President, to accept either your statement or their responsibility to uphold the law and the Constitution?
The wryly amused Dana (f6a568) — 3/21/2016 @ 8:58 am#17: nk, Congress? Another great joke. I didn’t get it at first.
BobStewartatHome (a52abe) — 3/21/2016 @ 9:12 amhttp://www.valdezflyin.com/
May 6th, 7th, and 8th.
Steve57 (08b8c6) — 3/21/2016 @ 9:59 amMaybe me and Pat are kidding ourselves. And I can’t speak for anyone but me.
Steve57 (08b8c6) — 3/21/2016 @ 10:21 amBut the CENTCOM analysts who mutinied give me hope.
Sorry if I imply or state I am on Patterico’s side.
Steve57 (08b8c6) — 3/21/2016 @ 10:27 amThe last President to defy a court order was
nk (dbc370) — 3/21/2016 @ 10:28 amAndrew JacksonAbraham Lincoln, as best as I could find out. The Supreme Court mandate making Bush President in Bush v. Gore was signed by Bill Clinton. It simply is not done.Beldar–
If I remember my history, when Governor Faubus tried to use the state guard to prevent the integration of Central High, Ike sent in the 101st Airborne, and they cleared the demonstrators at bayonet-point. Ironically this was under the command of General Walker who was not exactly a fan of integrated schools.
Kevin M (25bbee) — 3/21/2016 @ 10:46 amShould any nation be stupid enough to give me command of a ship my break away song will be Mambo Italiano.
https://www.youtube.com/watch?v=zx1zYCYQu6w
Steve57 (08b8c6) — 3/21/2016 @ 10:49 amSay, how’s the impeachment of the IRS Commissioner coming along?
Kevin M (25bbee) — 3/21/2016 @ 10:53 amSay, how’s the impeachment of the IRS Commissioner coming along?
It’s progressing along just great! I think they expect to schedule a vote on his impeachment the day after he retires from the job at full pension.
JVW (9e3c77) — 3/21/2016 @ 10:58 amKevin, all I can say.
http://cdrsalamander.blogspot.com/2016/03/fullbore-friday_18.html
We don’t train for that.
Steve57 (08b8c6) — 3/21/2016 @ 11:12 amSay, how’s the impeachment of the IRS Commissioner coming along?
neither fox news propaganda bimbo megyn kelly nor any of the other tapperbash propaganda sluts have seen fit to ask about this in the hard-hitting informative “debates”
happyfeet (831175) — 3/21/2016 @ 11:14 amprowlerguy will be along any minute now.
Steve57 (08b8c6) — 3/21/2016 @ 11:16 amhe’s late!
happyfeet (831175) — 3/21/2016 @ 11:18 amGod damn.
Steve57 (08b8c6) — 3/21/2016 @ 11:21 amI’d like to ask prowlerguy how exactlty I hid out.
Steve57 (08b8c6) — 3/21/2016 @ 11:30 amCan you cite a few examples? As far as I know the administration is in compliance with all orders that have not been stayed. Except this one.
Milhouse (87c499) — 3/21/2016 @ 11:44 amThe State Department is repeatedly not releasing emails ordered by a federal judge. So he issues new orders and they partially comply and etc.
Kevin M (25bbee) — 3/21/2016 @ 3:10 pmAs I understand it the State Dept is in full compliance with the order. It is releasing the emails as fast as it can find and process them, and within the deadlines the judge set.
Milhouse (87c499) — 3/21/2016 @ 3:53 pmBOOM!! HEADSHOT!!
Joe Mama (e9a0b5) — 3/21/2016 @ 4:53 pm