Petitions / 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 opening merits brief in Arellano v. McDonough, a case that raises questions regarding equitable tolling and retroactive disability benefits. As for cases with pending petitions, one new petition was filed in a veterans case; following a Supreme Court request in January, the government submitted the view of the United States in a patent case that raises a question related to the intersection of the Seventh Amendment and claim construction on appeal; and a brief in opposition was filed in an employment case concerning differential pay for federal employees serving on active duty. Finally, the Court denied petitions in three patent cases.

Granted Cases

In Arellano v. McDonough, a case raising questions about equitable tolling of a one-year filing deadline for retroactive veterans benefits, the petitioner submitted his opening merits brief. The petitioner argues that the Court should “rectify this situation by . . . making clear that [38 U.S.C.] § 5110(b)(1)—like nearly all claim-processing rules in private litigation—may be equitably tolled in appropriate circumstances.” The petitioner maintains that the Court “has long employed a canon of statutory interpretation that holds that statutes concerning the provision of veterans’ benefits should be, in cases of interpretive doubt, construed in the veteran’s favor.” Accordingly, the petitioner contends that, given his disability,”‘the one-year filing deadline . . . should be equitably tolled to allow Mr. Arellano to request retroactive benefits back to the date of his discharge from service.’” 

Petition Cases

New Petitions

One new petition was filed with the Court:

In Lynch v. McDonough, the petitioner asked the Court the following question:

  • “Are the many millions of disabled veterans, their survivors and dependents entitled to have the VA meet a higher threshold of proof to deny their claims than the preponderance-of-the-evidence standard?”

Amicus Brief

In Olaf Sööt Design, LLC v. Daktronics, Inc., the government submitted its amicus brief in response to the Court’s January order inviting the Solicitor General to express the views of the United States. In this case, the petitioner asked 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.”

The government’s brief presents the view of the United States that the petition should be denied. According to the government, “[t]he court of appeals’ decision is consistent with this Court’s precedents addressing the allocation of power between judges and juries in patent-infringement suits, and with more general Seventh Amendment principles.” The government also argues that this case is “an unsuitable vehicle for clarifying the respective roles of judges and juries in construing disputed claim terms because there is no apparent inconsistency between the claim construction the jury applied and the one the court of appeals adopted.”

Brief in Opposition

The Department of Homeland Security filed a brief in opposition to the petition in Adams v. Department of Homeland Security, a case concerning differential pay for federal employees serving on active duty. In its brief, the Department of Homeland Security argues that the petition should be denied because “the differential-pay requirement . . . applies only when an individual ‘is absent from’ his federal civilian position ‘in order to perform active duty in the uniformed services pursuant to a call or order to active duty.'” The Department of Homeland Security maintains that the “court of appeals . . . correctly determined that petitioner’s active-duty service in 2018 had no connection to a national emergency,” and thus did not fall within the statutory requirements for differential pay.


The Supreme Court denied certiorari in the following cases: