Petitions / Supreme Court Activity
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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 a veterans case in support of the petitioner. With respect to petitions, two new petitions were filed in a patent case concerning alleged fraud on the court and a pro se veteran’s case; a waiver of a right to respond was filed in the patent case; another waiver of a right to respond was filed in a veterans case; a brief in opposition was filed in a patent case concerning eligibility; and a petitioner filed a reply in support of a petition in another patent case raising questions about eligibility. Here are the details.

Granted Cases

Six amicus briefs in support of the petitioner were filed in Arellano v. McDonough, a case raising questions about equitable tolling of a one-year filing deadline for retroactive veterans benefits.

  • Disabled American Veterans (DAV) and Lee Kirby jointly submitted an amicus brief arguing that “the Federal Circuit’s ruling is antithetical to Congress’s emphasis on fairness and the appearance of fairness in VA claims adjudication.” According to the brief, “the one-year limitation period in 38 U.S.C. § 5110(b)(1) [should] be subject to equitable tolling.” Thus, DAV and Kirby urge the Court to reverse the Federal Circuit holding, which foreclosed petitioner’s claim for retroactive veterans benefits.
  • The Constitutional Accountability Center (CAC) filed an amicus brief arguing that the Federal Circuit’s decision to preclude equitable tolling was “wholly disconnected from the history of and traditional justifications for equitable tolling, as well as this Court’s precedents.” Thus, the CAC urges, “[c]onsistent with the long history of equitable tolling, and this Court’s decisions holding that tolling is presumptively available to all ‘statutory time limits’, . . . this Court should conclude that equitable tolling is available here.”
  • In the brief submitted by the Federal Circuit Bar Association (FCBA), an argument is made that the “rebuttable presumption of equitable tolling” should apply to the one-year deadline in 38 U.S.C. § 5110(b)(1). According to the brief, the provision “governs a veteran’s claims for statutory benefits for a service-connected disability that, by its very nature, may not present itself until well beyond the one-year period required for the filing of a claim, or may itself impair a veteran’s ability to file a claim within that timeframe.” In addition, the FCBA maintains that “applying for benefits unassisted by counsel may impede a veteran’s ability to file a timely claim.”
  • An amicus brief was also filed jointly by six national interest groups: Edgewood Veterans, National Veterans Legal Services Program (NVLSP), National Organization of Veterans’ Advocates (NOVA), Paralyzed Veterans of America (PVA), AARP, and AARP Foundation. In submitting this amicus brief, the organizations contend that many disabled veterans “remain unable to receive the benefits Congress appropriated for them because the Federal Circuit precludes equitable tolling for veterans.” Moreover, the organizations argue, “[t]his Court has been clear that Congress designed the veterans’ benefits scheme to be friendly and deferential to veterans.” Accordingly, the organizations urge the Court to reverse the Federal Circuit’s holding.
  • The Military-Veterans Advocacy Inc. (MVA) and Jewish War Veterans of the United States of America, Inc. (JWV) jointly submitted an amicus brief in support of the petitioner. Accordingly to the brief, when recognizing “Congress’s intent to make equitable tolling available, the vast benefits to vulnerable veterans, the absence of significant problems for VA’s operation, and the system’s pro-veteran disposition, there is no way to justify the Federal Circuit’s categorical bar on tolling § 5110(b)(1)’s time period.” The brief further urges that this “categorical prohibition is both unsupported as a legal matter and deeply harmful to the veteran community.”
  • The National Law School Veterans Clinic Consortium filed an amicus brief arguing that “[f]oreclosing equitable tolling of a statutory time limitation in the veterans’ benefits system would be illogical.” According to the brief, courts “should be allowed to consider whether, given a particular veteran’s circumstances during that year, it would be unfair to apply the statutory time limitation.”

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In EPA Drug Initiative II v. Hikma Pharmaceuticals USA Inc., EPA Drug Initiative II asked the Court to consider two questions:

  1. “By completely ignoring and failing to remedy Respondents’ fraud upon the court in direct contravention of Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), did the Federal Circuit so far depart from the accepted and usual course of judicial proceedings and/or sanction such a departure by the District Court, as to call for an exercise of this Court’s supervisory power?”
  2. “Where Petitioner, a third-party intervenor whose interests were adversely affected, was denied standing to uncover, expose, and seek a remedy for Respondents’ fraud upon the court, did the Federal Circuit so far depart from the accepted and usual course of judicial proceedings and/or sanction such a departure by the District Court, as to call for an exercise of this Court’s supervisory power?”

In Akard v. McDonough, Akard, a pro se petitioner, asked the Court to consider three questions:

  1. “Does a disabled veteran have a ‘personal stake, interest, or standing’ on seeing that his withheld 20% benefit, due to his incarceration, receive a ‘special apportionment to be sent to his SSA disabled father?”
  2. “If this disabled veteran had a wife, child, and disabled father, wouldn’t the veteran file for whom it goes to and be the person to file appeals for his apportionment decision?”
  3. “When a veteran’s withheld 20% benefit’s dollar amount per month is not enough money for the veteran’s father, or anyone, to obtain ‘dependent’ status, then shouldn’t the veteran be the party to file for ‘special’ apportionment?”

Waivers of Right to Respond

Hikma Pharmaceuticals USA waived its right to respond in EPA Drug Initiative II v. Hikma Pharmaceuticals USA Inc., the patent case identified above raising questions about alleged fraud upon the court.

The government waived its right to respond in Hibbard v. McDonough, a case raising questions about veterans’ survivor benefits.

Brief in Opposition

Procon Analytics filed a brief in opposition to the petition in Spireon, Inc. v. Procon Analytics, LLC, a patent case raising questions about eligibility. Procon Analytics argues that Spireon’s petition should be denied because, “[g]iven three opportunities, Spireon could not escape the simple conclusion that its claimed method of managing a vehicle inventory is not patent eligible.” Procon Analytics explains that the “patent claims in this case recite routine data management functions.” Accordingly, Procon Analytics urges, “[c]ontextualizing these . . . functions in a vehicle inventory management framework does not transform the claims into patent-eligible subject matter.”

Reply

In Ameranth, Inc. v. Olo, Inc., another case concerning patent eligibility, Ameranth filed its reply in support of its petition. Ameranth argues that this case exemplifies the “same core misapplications of [35 U.S.C.] § 101 that have ‘swallowed up’ entire areas of recognized technological innovations deemed patentable for decades.” Ameranth urges that “[t]he dispositive question of whether to grant this petition and/or hold it for decision with (or in light of) American Axle is simply a ‘yes’ or ‘no’ as to whether § 101 law truly needs this Court’s clarification.” And, Ameranth notes, “[t]his question has been answered by the Federal Circuit . . . the answer is yes.”