Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. As for granted cases, we are still waiting for the Court to issue opinions in the two pending patent cases. As for petitions, a new petition was filed in a pro se veterans case; five petitioners filed reply briefs in cases presenting questions related to Tucker Act, patent, and takings law; one petitioner filed a motion to dismiss in a patent case; and the Court denied five petitions in cases involving patent, contracts, and veterans law.

Here are the details.

Granted Cases

There is no new activity to report. We are still waiting for the opinions in United States v. Arthrex, Inc. and Minerva Surgical, Inc. v. Hologic, Inc.

Petition Cases

New Petition

In Robinson v. McDonough, a pro se petitioner asked the Court to review the following questions:

  1. “Did the court of appeals violate constitutional rights of ‘[d]ue process’ and ‘[e]qual protection’ when it deferred to the [Board of Veterans’ Appeals] and failed to review according to 38 U.S.C. [§] 7261 as petitioned by the veteran.”
  2. “Whether the court of appeals erred in accepting a [joint motion for remand] that was rejected, by the veteran, leading to the abandonment of issues favorable to the veteran.”
  3. “Should ‘Auer Deference’ be repealed when it leads to abuse of discretion.”


Five new reply briefs were filed with the Court.

In Maine Community Health Options v. United States, Maine Community Health Options (MCHO) filed its reply brief supporting its petition, which asks the Court to review a question regarding the government’s statutory shall-pay obligations under the Affordable Care Act. MCHO contends that “[t]he government has no real defense for the Federal Circuit’s latest attempt to excuse it from complying with its unambiguous shall-pay obligations under the Affordable Care Act.” MCHO also explains that the Court’s holding in Maine Community last term . . . leaves no room for the Federal Circuit’s misguided attempt to reduce the government’s obligations by inventing a novel ‘mitigation’ theory with no basis in the statutory text or the common law.” MCHO further argues that, “[w]hen the government defaults on unambiguous shall-pay obligations under a money-mandating statute, the plain and obvious remedy is to mandate payment of the full amount of money Congress mandated.” MCHO claims that “[t]he government’s convoluted alternative, under which clear statutory obligations are zeroed out and the government may ignore statutory mandates in perpetuity, has nothing to recommend it” and “contradicts Maine Community, unsettles well-settled law, and makes the government an unreliable contracting partner.”

In another case bearing the same name, United States v. Maine Community Health Options, the government filed its reply brief supporting its cross-petition, which presents a question regarding affording implied money-damages remedies to insurers. The government claims that “[c]ross-respondents identify no sound reason why, if the Court grants review of their petition addressing the damages determination, it should not also grant, or at a minimum hold, the conditional cross-petition presenting the antecedent liability issue.” Rather, the government explains, “cross-respondents . . . underscore[] the magnitude of the sums the government would be required to pay if the liability ruling stands but the damages ruling is set aside—asserting only that . . . those redundant recoveries should not be viewed as duplicative.”

In Common Ground Healthcare Cooperative v. United States, Common Ground filed its reply brief in support of its petition, which presents a question regarding the application of a non-statutory mitigation defense to a provision of the Affordable Care Act. In its brief, Common Ground argues that “[t]he Government ignores entirely a distinct and additional argument [made] in the instant petition showing that the conflict with Maine Community warrants review: the claim here is for specific relief,” and because of “the Government’s failure to dispute this dispositive issue, certiorari is warranted in this case with enormous consequences for the healthcare system and for countless other statutory payment requirements.” Common Ground also contends that “[t]he proper course to avoid inefficient, piecemeal decisions is . . . to grant both petitions [in this case and Maine Community] and consolidate them for briefing and argument, so that this Court can consider at the same time all of the issues concerning the same underlying Federal Circuit opinions.” Common Ground further argues that, “[i]ndependent of the specific-relief issue, the Federal Circuit’s decision warrants this Court’s review because it applies common-law mitigation to reduce payments that the Government ‘shall make,’ in conflict with Maine Community and other precedents.”

In Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc., Amarin filed its reply brief in support of its petition, which presents a question relating to the factors that must be considered in an obviousness challenge. Amarin argues that the “framework [employed by the lower courts] hinders research and innovation” and that “Respondents’ opposition misunderstands the totality framework this Court prescribed.” Amarin further claims that “Respondents repeatedly point to the district court’s statement that it found obviousness ‘in view of all four Graham factors’ which they argue shows a totality analysis.” However, Amarin explains, “the problem with the district court’s decision . . . is that it found prima facie obviousness based solely on Graham’s technical factors and only then turned to objective indicia to ask if they rebutted that finding, . . . [which] artificially diminishes the weight accorded to objective indicia and incorrectly shifts the burden to the patentee to show nonobviousness.” Therefore, Amarin argues, “the Federal Circuit has now settled on the prima facie framework, which reinforces the need for this Court’s review.”

In Gadsden Industrial Park, LLC v. United States, Gadsden Industrial Park (Gadsden) filed its reply brief supporting its petition, which ask the Court to review two questions regarding takings law. Gadsden argues that “[t]he Federal Circuit’s decision in this case sets a very dangerous precedent, . . . plac[ing] its imprimatur on a ruling that unequivocally finds a clear appropriation of valuable private property without payment, yet affords no compensation.” Gadsden further contends that “[t]he Government’s conduct in this matter is unconstitutional” and, “[i]f allowed to stand, the decision in this case will further encourage government agencies to run roughshod over private property rights.” Gadsden argues that “[t]he Federal Circuit decision in this case encourages tenacious defense of inverse condemnation cases, more governmental obstinacy, less impetus for amicable settlement, and further reduces the likelihood of meaningful awards.” Gadsden continues, explaining that “[t]he Federal Circuit’s decisions are irreconcilable with this Court’s takings jurisprudence, which uniformly recognizes that the Constitution categorically prohibits a taking without payment to begin with; and it commands that there must be an assurance of eventual just compensation.”

Motion to Dismiss

In Sowinski v. California Air Resources Board, the petitioner filed a joint motion to dismiss.


The Court denied five petitions.