Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, the petitioner submitted his opening merits brief in George v. McDonough, a case which raises a question related to clear and unmistakable error in the context of a denial of a veteran’s claim for benefits. With respect to petitions, three new petitions have been filed: one raising a question in a takings case and two filed by pro se petitioners. The government filed a brief in opposition in a case concerning a government contract. The government also filed waivers of right to respond in a case appealed from the Merit Systems Protection Board as well as in a case submitted by a pro se petitioner. Finally, the Court denied certiorari in a patent case as well as in two cases filed by pro se petitioners. Here are the details.

Granted Cases

In George v. McDonough, the Court has been asked to clarify the scope of clear and unmistakeable error (CUE) with regard to cases involving veterans whose benefits have been wrongly withheld based on an incorrect interpretation of a statute. The petitioner recently submitted its opening merits brief arguing that under a “correct understanding of CUE, [the petitioner] is entitled to have the 1977 Board decision in his case corrected.” According to the petitioner, the Court should reject the argument that an agency’s reliance in good faith on an invalid regulation excepts the agency’s interpretation from the purview of CUE. The petitioner further asserts that, “[a]t a minimum, a remand is required for the Federal Circuit to address whether applying the correct legal standard to the undisputed facts compels the legal conclusion” that a decision based upon an invalid legal standard constitutes clear and unmistakable error.

Petition Cases

New Petitions

In Bailey-Johnson v. United States, the petitioner asked the Court to review the following question:

  • “Should the Court revisit its holding in Tohono to determine whether, under 28 U.S.C. § 1500, a U.S. District Court action solely for injunctive or declaratory relief under the Administrative Procedure Act is ‘for or in respect’ to a ‘claim’ against the United States in the United States Court of Federal Claims for money damages?”

Additionally, two petitions were filed by pro se petitioners:

Brief in Opposition

The government submitted its brief in opposition in NVS Technologies, Inc. v. Department of Homeland Security arguing that the Federal Circuit correctly rejected petitioner’s contention that the “[DHS] breached the duty of good faith and fair dealing by deciding not to allot additional funds to the contract and deciding to terminate the contract for convenience.” According to the government, “agency officials had legitimate and good-faith concerns about the contract and its spending rate, in light of the large number of modifications to the contract, the steadily increasing contract ceiling, the diminishing number of deliverables, and the lack of a working prototype.” The brief further argues that, contrary to the petitioner’s arguments, the Federal Circuit’s precedents regarding terminations for convenience are not in “disarray.” The government maintains that “any supposed tension” was resolved by the Federal Circuit over twenty-five years ago in Krygoski Construction Co. v. United States.

Waivers of Right to Respond

In Finizie v. Department of Veterans Affairs, the government waived its right to respond.

The government also filed a waiver of right to respond in Pride v. McDonough, a case filed by a pro se petitioner.


The Court denied three petitions.