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, six amicus briefs were filed in George v. McDonough, a case raising a question related to clear and unmistakable error in the context of review of denials of veterans’ claims for benefits. As for still-pending petitions, one new petition was filed by a pro se petitioner; two amicus briefs were filed in a case related to patent eligibility, including a brief filed by a former Federal Circuit judge; and two reply briefs were filed: one in a veterans case and one in a trade case. Finally, four waivers of right to respond were filed and the Court denied a petition in a case concerning patent eligibility. Here are the details.

Granted Cases

Six amicus briefs were filed in George v. McDonough, a case in which the Supreme Court recently granted review.

  • Disabled American Veterans filed an amicus brief arguing that, as applied in this case, “ordinary civil litigation concepts of finality and res judicata conflict with Congress’s clear and deliberate choice that veterans benefits claimants have a pathway to correction of VA’s clear and unmistakable errors.” Thus, the veterans group urges the Court to reverse the Federal Circuit holding, which foreclosed petitioner’s clear and unmistakable error (CUE) claim.
  • The National Law School Veterans Clinic Consortium (NLSVCC) raised the argument in its brief that a finding of CUE “would be consistent with principles of collateral review in both Social Security and habeas corpus contexts.” In drawing a comparison between the VA and the Social Security Administration (SSA), the NLSVCC stated that “[b]oth agencies allow reopening of otherwise final determinations or decisions to correct certain erroneous applications of the law.” The NLSVCC furthered this argument by contending that, “[w]here a criminal statute is clarified to remove the defendant’s conduct from the statute’s scope, habeas is appropriate because the clarification merely explains what the statute has always meant.”
  • Senators Ted Cruz and Mike Lee jointly submitted an amicus brief arguing that the Federal Circuit’s holding fails to recognize that, because the original regulation was a nullity, “it could never have been the law or an interpretation of the law in the first place, meaning the opinion recognizing its invalidity was no subsequent change.” Accordingly, the amicus brief asserts that the holding should be reversed because the Federal Circuit “improperly credited an impermissible regulation as law, when it should have determined instead that the VA’s reliance on the unlawful regulation in denial of a benefits claim was ‘clear and unmistakable error.'”
  • In the brief submitted by the Military-Veterans Advocacy, an argument is made that “Congress enacted CUE to serve as a safety valve that suspends the usual consequences of finality and ensures that veterans subjected to these sorts of errors are ultimately able to obtain the benefits to which their service has entitled them.” According to the brief, if the Federal Circuit’s decision stands, then that safety valve is eliminated.
  • An amicus brief was also filed jointly by four national veterans organizations: the National Veterans Legal Services Program (NVLSP),the National Organization of Veterans’ Advocates (NOVA), Paralyzed Veterans of America (PVA), and the Service Women’s Action Network (SWAN). In submitting this amicus brief, the veterans organizations explained the “unique and essential role that claims for clear and unmistakable error have played for nearly a century in this country’s pro-veteran system of adjudicating benefits.” Against this backdrop, the organizations urged the Court to reverse the Federal Circuit holding and maintain “the system’s pro-veteran disposition.”
  • Swords to Plowshares (Swords) filed an amicus brief alongside Vietnam Veterans of America (VVA), raising the argument that the CUE rule is particularly relevant to Vietnam veterans. The brief further stated that, were the Federal Circuit decision to stand, “it [would] lead to absurd results: a valid, unambiguous statute will have had no effect for decades and the VA will be allowed to ignore a second statutory mandate that requires it to provide veterans redress for VA errors.”

Petition Cases

New Petitions

A pro se petitioner filed a petition in Broaden v. Department of Transportation raising a question concerning employment of veterans.

Amicus Briefs

Two amicus briefs were filed in Universal Secure Registry LLC v. Apple Inc., which raises questions related to patent eligibility.

  • Paul R. Michel, a former Federal Circuit Chief Judge, filed an amicus brief arguing that “at the ten-year mark since the Court decided Mayo, it is time to ask more careful questions about the two-part test” for patent eligibility. According to Michel, this case is a “proper vehicle for asking those questions.” Michel also recommended that the Supreme Court “use the current case to reign [sic] in the appeals court’s overly broad application of the Mayo/Alice test and its continued overexpansion of that test—an overextension that has led to a conflation of the requirements of patentability and patent eligibility.”
  • Intertrust Technologies Corporation also submitted an amicus brief, stating that the Federal Circuit’s attempts “to graft additional rules onto the Alice test” have created inconsistencies in recent holdings, thereby causing “uncertainty and disincentivizing creation.” Intertrust Technologies asserted that this case presents an opportunity for the Court to clarify patent eligibility determinations.


The petitioner submitted a reply in Esparraguera v. Department of the Army, a case asking the Court to consider “[w]hether the Federal Circuit erred in holding that neither it nor the [Merit Systems Protection Board” may review a career senior executive’s removal from the Senior Executive Service.” The reply brief asserts that the “government’s brief betrays” the United States’ commitment to protecting senior executives from arbitrary or capricious actions, as it is stated in the Civil Service Reform Act. According to the petitioner, the government’s brief is “at war not only with statutory text, but also with fundamental due-process and fair-notice principles.” The petitioner further argued that this case presents a question “vitally important to preserving a professional and nonpoliticized civil service.”

In Transpacific Steel LLC v. United States, which raises concerns over the President’s ability to adjust imports under Section 232 of the Trade Expansion Act of 1962, the petitioner’s reply rejected the government’s statutory contentions regarding Section 232’s time limits and presidential authority. Moreover, the petitioner found the government’s reliance on the President’s foreign affairs powers “unavailing because the President has no foreign affairs power to tax imports or regulate international commerce absent congressional authorization.”

Waivers of Right to Respond

Both the government and Chemours Company filed waivers of right to respond in Daikin Industries, Ltd. v. Chemours Company FC, LLC.

The government also waived its right to respond in Holland v. United States as well as in another pro se case, Kurkjian v. Secretary of the Army.

Respondents waived their right to respond in Ikorongo Texas LLC v. Samsung Electronics Co., which concerns venue in patent cases.


The Court denied certiorari in Gabara v. Facebook, Inc., which raised questions concerning patent eligibility.