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. Since our last update, however, five new petitions have been filed with the Court: one in a veterans case, three in patent cases, and one filed by a pro se petitioner. As for previously filed petitions, one supplemental brief and two waivers of right to respond were filed. Here are the details.
Granted Cases
There is no new activity to report.
Petition Cases
New Petitions
Since our last update, five new petitions were filed.
In Arellano v. McDonough, the petitioner asked the Court to consider two questions:
- “Does Irwin’s rebuttable presumption of equitable tolling apply to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, has the Government rebutted that presumption?”
- “If 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, should this case be remanded so the agency can consider the particular facts and circumstances in the first instance?”
In ENCO Systems, Inc. v. DaVincia, LLC, the petitioner asked the Court the following question:
- “What is the appropriate standard for determining whether a patent claim is directed to a patent-ineligible concept when determining whether an invention is eligible for patenting under 35 U.S.C. § 101?”
In West v. United States, the Court is asked to consider six questions:
- “As a matter of statutory construction and application, is petitioner entitled to the exercise of the authority of the United States Federal Court of Claims under 28 U.S.C. §1491(a)(2) to a remand of the review of petitioner’s general court martial conviction to OJAG USN with further order to OJAG USN to exercise its authority under 28 U.S.C. §869(d)(1) to refer petitioner’s general court martial conviction to the NMCCA for further judicial appellate review?”
- “Under the Due Process Clause of the Fifth Amendment of the United States Constitution, is petitioner entitled to have his general court martial conviction vacated in the case of United States v. West?”
- “Can the Court of Federal Claims issue a protective order placing the record under a partial seal preventing the disclosure of the names of petitioner’s sexual assault/sexual harassment accusers in his general court martial, whereby the validity of the conviction in said general court martial is the subject of the dispute in the proceedings before the Court of Federal Claims?”
- “Does the Privacy Act, 5 U.S.C. § 552a, impose upon the petitioner (and by extension his counsel) the duty to protect information regarding the identity of petitioner’s sexual assault/sexual harassment accusers at petitioner’s public court martial?”
- “If the Privacy Act, 5 U.S.C. § 552a, can be interpreted to impose such a duty upon the petitioner (and by extension his counsel), does the imposition of that duty violate petitioner’s rights under the First Amendment of the United States Constitution?”
- “Does the doctrine of Issue Preclusion (Collateral Estoppel) apply to bar petitioner from litigating in the proceedings below the issue of whether the sexual assault/sexual harassment accusations against him were false where: a) a court in an earlier proceeding found that plaintiff failed to prove by preponderance of evidence that the allegations were false; b) the prior proceeding was a Westfall Act certification challenge and the findings on the merits regarding the falsity of the sexual assault/sexual harassment allegations was made pursuant to Osborn v. Haley, 549 U.S. 225 (2007); c) the finding of the court in the prior proceeding was that the court did not have subject matter jurisdiction over petitioner’s claims; and d) the opposing parties did not explicitly deny defendant’s allegations that the sexual assault/sexual harassment allegations were false (either by affidavit, answer, or other responsive pleading)?”
In Olaf Sööt Design, LLC v. Daktronics, Inc., the petitioner asked the Court to review the following question:
- “Whether the Seventh Amendment allows the Federal Circuit to reverse a jury verdict based on a sua sponte new claim construction of a term the district court concluded was not a term of art and construed to have its plain and ordinary meaning; where the Federal Circuit’s sua sponte claim construction essentially recasts a specific infringement factual question, previously decided by the jury, as a claim construction issue, to be decided de novo by the appellate court.”
In Solar-Somohano v. Hirshfeld, a pro se petitioner asked the Court to consider two questions related to the Appointments Clause.
Supplemental Brief
Since our last update, the pro se petitioner in Kaszuba v. Hirshfeld filed a supplemental brief.
Waivers of Right to Respond
In Infinity Computer Products, Inc. v. Oki Data Americas, Inc., a patent case raising a question related to indefiniteness, Oki Data Americas filed a waiver of right to respond.
The Government filed a waiver of right to respond in one of the pro se cases mentioned above, Solar-Somohano v. Hirshfeld, which raises questions related to the Appointments Clause.