Recently in Civil Rights Law Category

The Court of Federal Claims' dismissal of plaintiff's takings claim pursuant to RCFC 12(b)(6) is affirmed as the court did not err in holding that the plaintiff failed to allege a legally cognizable property interest for Fifth Amendment purposes in the ability to freely transfer a portfolio of insurance policies, and thus, there was no cognizable property interest that could be taken when the Risk Management Agency rejected the proposed sale to another company in the crop insurance business. 

Read Acceptance Ins. Co., Inc. v. US, No. 09-5015

Appeal from:  United States Court of Federal Claims

Decided October 1, 2009

Judges

Before Rader, Plager, and Schall, Circuit Judges

Opinion by Schall, Circuit Judge.   

Counsel

For Appellant:  Lewis S. Wiener, Sutherland Asbill & Brennan LLP

For Appellee:  Michael N. O'Connell, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

In an action brought by a former postal service employee under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Merit Systems Protection Board judgment is affirmed in part and reversed in part where: 1) the Board erred in rejecting plaintiff's claim of unlawful discrimination based on his military service as plaintiff's cumulative military absence at the time of his removal did not exceed five years and thus he retained employment rights under USERRA; 2) the Board properly held that plaintiff failed to make a timely application for reemployment under USERRA and thus defendant did not unlawfully refuse to reemploy him after his service; and 3) the case is remanded so that the Board can explicitly address whether plaintiff waived his USERRA rights by abandoning his civilian career to pursue one in the military.   

Read Erickson v. US Postal Service, No. 08-3216

Appellate Information
Petition for review of the Merit Systems Protection Board.
Decided July 14, 2009

Judges
Before BRYSON,and GAJARSA, Circuit Judges, and ST. EVE, District Judge.
Opinion by BRYSON, Circuit Judge.

Counsel
For Petitioner: Ariel E. Solomon, Tully Rinckey P.L.L.C.

For Respondent: Tara K. Hogan, United States Department of Justice.

Trademark Trial and Appeal Board judgment is affirmed where: 1) the board properly affirmed the rejection of petitioner's trademark application, as the Shinnecock Indian Nation is an institution and thus falls within the protection of 15 U.S.C. sec. 1052(a); 2) the USPTO's refusal to register his marks was not a violation of the due process clause of the Fifth Amendment, as the petitioner was provided a full opportunity to prosecute his applications and to appeal the examining attorney's final rejections to the Board; 3) the refusal did not violate petitioner's equal protection rights, as the Board and the examining attorney had legitimate, nondiscriminatory reasons for denying registration; and 4) the refusal to register the mark was not racial discrimination in violation of the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination, as petitioner failed to establish any racial discrimination, and he has no private right of action under the treaty.    

Read In re Shinnecock Smoke Shop, No. 09-1100

Appellate Information
Appeal from the United States Patent and Trademark Office Trademark Trial and Appeal Board.
Decided: July 1, 2009

Judges
Before Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.
Opinion by CLEVENGE, Circuit Judge.

Counsel
For Appellant: Scott Michael Moore, Moore International Law Offices, New York, NY.
For the Director of the United States Patent and Trademark Office: Thomas V. Shaw, United States Patent and Trademark Office, Alexandria, VA.

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