Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to the Supreme Court’s October 2021 term, the Court still has not granted any petitions in cases decided by the Federal Circuit. As for pending petitions, since our last update five new petitions were filed with the Court: one in a government contract case, one in a veterans case, two in takings cases, and one in a pro se case. Additionally, two waivers of rights to respond were filed, one amicus brief was filed in a takings case, and three briefs in opposition to petitions addressing patent eligibility and preclusion were filed. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

New Petitions

Five new petitions were filed with the Court this week.

In Pyrotechnic Specialties, Inc. v. Secretary of Defense, the petitioner asked the Court to answer three questions:

  1. “Is a litigant entitled to have the correct standard of law applied by the Armed Services Board of Contract Appeals or does a ‘right for any reason’ doctrine apply?”
  2. “Is a litigant entitled to have the scope of fact and law determined prior to an evidentiary hearing; or may a tribunal hold an evidentiary hearing, exclude evidence, thereby deterring the proffer of additional evidence on an issue, only to later determine the evidence was admissible while simultaneously refusing additional proffers of evidence on the issue in question?”
  3. “Is it appropriate for the United States Court of Appeals for the Federal Circuit to affirm a ruling without an opinion pursuant to Fed. Cir. R. 36, when both the United States Court of Appeals for the Federal Circuit and the Government acknowledge that the wrong standard of review was applied by the Armed Services Board of Contract Appeals?”

In George v. McDonough, the petitioner asked the Court to review the following question:

  • “When the Department of Veterans Affairs (VA) denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, is that the kind of ‘clear and unmistakable error’ that the veteran may invoke to challenge VA’s decision?”

In Taylor & Sons, Inc. v. United States, the Court was asked to consider the following questions:

  1. “Does the fact that the property is generating profits on the date of taking satisfy the economic impact requirement to find a regulatory taking under Penn Central?”
  2. “Does Penn Central provide an adequate rule of law to guide federal and state courts in determining whether a compensable Fifth Amendment regulatory taking has occurred?”

In Mike Finnin Motors, Inc. v. United States, the petitioner presented the Court with three questions:

  1. “Whether the novel Federal Circuit ‘but for’ defense to takings liability conflicts with Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (2012) (categorical defenses are barred in takings cases), Horne v. Dept. of Agric., 576 U.S. 351 (2015) (hypothetical analysis is not permitted to bar takings liability), Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (ad hoc balancing factors are required in regulatory takings cases), and Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002) (regulatory takings requirements may not be imported into direct takings cases), as reiterated in Cedar Point Nursery v. Hassid, 210 L.Ed.2d 369 (2021)?”
  2. “Whether the dismissal of the direct takings claims that were not even defended by the Government—on a ground it never raised departs—so far from the accepted and usual course of judicial proceedings that the exercise visory power is justified because it contradicts the controlling precedents of United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020) (party presentation rule), Day v. McDonough, 547 U.S. 198 (2006) (entitlement to be heard before a court rules upon defenses it injected for the Government), and Murr v. Wisconsin, 137 S.Ct. 1933 (2017) (fairness is required in takings cases)?”
  3. “Whether the affirmance of the economic valuation decisions conflicts with the holding of Mission Product Holdings Inc. v. Tempnology LLC, 139 S.Ct. 1652 (2019) (franchisee rights are not rendered worthless by rejection in bankruptcy) and Kimball Laundry Co. v. United States, 338 U.S. 1 (1949) (proof of fair market value is not required in cases of economic emergency)?”

In Bondyopadhyay v. United States, a pro se party filed a petition.

Amicus Briefs

An amicus brief was filed by the Cato Institute in Albright v. United States, arguing that the Federal Circuit erred in its application of Oregon property law and in holding that the government did not take an easement across Oregon landowners’ property in violation of the Takings Clause. The Cato Institute contends that, “[b]ut for the federal government’s order invoking section 8(d) of the Trails Act, these Oregon landowners would have enjoyed unencumbered title to, and exclusive possession of, their land.” Moreover, because “Congress granted the Federal Circuit exclusive national jurisdiction of every Fifth Amendment taking case against the United States,” the Cato Institute believes that this case is a proper vehicle for the Court to provide guidance as to when lower federal courts should “certify unsettled questions of state law to the state’s highest court.”

Waivers of Right to Respond

In Albright v. United States, the Government submitted its waiver of right to respond.

In Hu v. Hirshfeld, the Government submitted its waiver of right to respond.


In VoIP-Pal.Com, Inc. v. Apple, Inc., the respondent filed its brief in opposition to the petition, which presented questions regarding patent eligibility. The petitioner seeks a “hold” pending the Court’s disposition of American Axle & Manufacturing, Inc. v. Neapco Holdings LLC. Apple, however, argues that the “outcome in this case would not change regardless of how American Axle is resolved” because “the very Federal Circuit judges that were divided in American Axle unanimously agreed that these claims are ineligible under Section 101.”

In another case concerning patent eligible subject matter, the respondent in iLife Technologies, Inc. v. Nintendo of America, Inc. filed its brief in opposition similarly arguing that a hold is not necessary. Like the above case, the petitioner in this case asks that this case be held for American Axle. The respondent believes a hold is unwarranted for two reasons: “First, Petitioner waived its right to raise the two questions presented in American Axle . . . by failing to preserve those questions at any stage of the proceedings below,” and, second, the outcome of American Axle would not affect the outcome of this case.

In PersonalWeb Technologies, LLC v. Patreon, Inc., the respondent filed its brief in opposition to the petition, which challenges the Federal Circuit’s application of the Supreme Court’s holding in Kessler v. Eldred with regard to the preclusion doctrine. Relying on the principles of stare decisis, Patreon, Inc. characterizes the petition as an attempt to overrule Kessler, despite the Court refusing to do so in previous cases. Moreover, the respondent argues that, “even if there were any cause to revisit Kessler, this case would be a poor vehicle for doing so because it will soon be moot.” Specifically, Patreon, Inc. argues that the Federal Circuit provided an alternative basis for judgment in favor of the respondents when the court affirmed a non-infringement holding in a later case that involved the same allegedly infringing technology. According to the respondents, this subsequent holding renders this case moot.