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 filed his reply merits brief in George v. McDonough, a case concerning the scope of clear and unmistakable error in the context of review of denials of veterans’ claims for benefits. As to cases with pending petitions, the government filed a brief in opposition in a veterans case challenging the Federal Circuit’s application of the Chevron doctrine. Also, following a Supreme Court request last fall, the government finally submitted the view of the United States in a patent case raising questions related to preclusion. The Court also denied three petitions: one in a government contracts case and two in patent cases. Here are the details.

Granted Cases


In George v. McDonough, a case in which 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, the petitioner submitted his merits reply brief. In it, the petitioner asserts that, “because VA, as a federal agency, has authority to promulgate regulations only to the extent they are consistent with the laws that Congress enacts, the regulation that dictated the outcome in Mr. George’s case was not law but a legal nullity.” The petitioner therefore contends that “VA’s reliance on that regulation was a ‘clear and unmistakable error’ under the plain meaning of those words, under the law that Congress looked to when codifying them, and under the pro-veteran purpose that pervades this area of law.” Furthermore, the petitioner states, the principles underlying clear and unmistakable error “do not turn on whether the agency adjudicator was somehow at fault, but simply on the clarity of the error under the law as it existed at the time.” Accordingly, the petitioner urged the Court to reverse the Federal Circuit.

Petition Cases

Brief in Opposition

The government filed a brief in opposition to the petition in Buffington v. McDonough, which presents a challenge to the Chevron doctrine and its use in veterans’ cases. The government states that the Federal Circuit correctly upheld “VA’s determination that petitioner’s disability-based compensation would be recommenced with an effective date one year before the agency received his recommencement application, rather than effective as of petitioner’s release from active duty.” The government also argues that the Chevron doctrine should not be overruled, stating that the “petitioner has not carried his burden of demonstrating any special justification that could plausibly warrant such a departure from stare decisis principles.” Moreover, the government asserts, this case is a poor vehicle to address the interplay between the Chevron doctrine and the pro-veteran canon.

Amicus Brief

In PersonalWeb Technologies, LLC v. Patreon, Inc., the government finally submitted its amicus brief in response to the Court’s October order inviting the Solicitor General to express the views of the United States. In this case, the petitioner presented the following two questions:

  1. “Whether the Federal Circuit correctly interpreted Kessler to create a freestanding preclusion doctrine that may apply even when claim and issue preclusion do not.”
  2. “Whether the Federal Circuit properly extended its Kessler doctrine to cases where the prior judgment was a voluntary dismissal.”

The government’s brief presents the view of the United States that the petition should be denied. According to the government, it is true that Kessler should not control in this case “[b]ecause the prior judgment in Kessler was premised on a judicial finding of noninfringement, while the Texas judgment at issue in this case was entered after a stipulated dismissal.” Nonetheless, the United States argues that the decision below does not warrant further review. The Solicitor General states that “[t]he ultimate outcomes of this case and other recent Federal Circuit decisions applying Kessler could alternatively be explained under traditional principles of claim and issue preclusion.” As a result, the brief explains, “this Court’s resolution of the question presented would not affect the ultimate disposition of petitioner’s suits against Amazon’s customers.”


The Court denied review in the following cases: