Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, the Supreme Court issued its opinion in George v. McDonough. With respect to petition cases, four new petitions were filed with the Court; a waiver of right to respond was filed in a veterans case brought by a pro se petitioner; three amicus brief were filed in another veterans case raising a question about the standard of proof for disability claims; and the Court denied two petitions, one in a patent case and one in a pro se case. Notably, in the patent case the petitioner presented the same two questions presented to the Court in American Axle & Mfg, Inc. v. Neapco Holdings LLC. Here are the details.
As mentioned, the Supreme Court issued its opinion in George v. McDonough. In a six to three decision, the Court affirmed the Federal Circuit’s ruling, finding that “[t]he invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error.”
Four new petitions were filed with the Court.
In Worlds Inc. v. Activision Blizzard Inc., the petitioner asked the court to consider two questions:
- “What is the appropriate standard for determining whether a patent claim is ‘directed to’ a patent-ineligible concept under step one of the Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101?”
- “Whether a movant seeking a ruling of patent-ineligibility under Section 101 as a matter of law can prevail on step two where the movant submits no evidence of what was well-known, routine, and conventional in the industry as of the date of invention?”
In Bonner v. McDonough, the petitioner asked the Court to answer two questions:
- “Whether it is within the jurisdiction of the U.S. Court of Appeals for Veterans Claims to decide a veteran’s claim on the basis of the equitable remedy of collateral estoppel where no statute so provides.”
- “Whether it is within the jurisdiction of the U.S. Court of Appeals for Veterans Claims to deny a CUE claim on the basis of Collateral Estoppel (issue preclusion) where it is forbidden to do so on the basis of Res Judicata (claim preclusion).”
In Horton v. United States, a pro se petitioner asked the court to consider three questions:
- “Did the courts below improperly construe the ‘notice’ to the debtor requirement of 31 U.S.C. § 3720D(b)(2) and 31 C.F.R. § 285.11(e)(1) when the courts below allowed the 2019 debtor notice to be mailed to an address which the debtor had not lived at since 2011 when the triggering mechanisms for the garnishment was the debtor filling a 2019 IRS Form W-2 (known as the ‘Wage and Tax Statement’) which clearly listed the debtor’s 2019 home address, or in the alternative, the collector could have been mailed the garnishment notice to the debtor’s current employer who could have forwarded it to the debtor, or in the alternative, the collector could have emailed the notice to the debtor’s email address of firstname.lastname@example.org which has been the same since the email address was created in 1996?”
- “Did the courts below improperly ignore the notice . . . ‘from the head of the executive . . . agency, informing the . . . [debtor of the debt]’ requirement of 31 U.S.C. § 3720D(b)(2) and 31 C.F.R. § 285.11(e)(1) when the courts below allowed the fly-by-night federal contractor collection agency ‘Coast Professional’ to issue the pre-garnishment notice?”
- “This matter is appropriate for class action status under FRCP 23 to include all class members who are federal debtors who under 31 U.S.C. § 3720D(b)(2) and 31 C.F.R. § 285.11(e)(1) did not:
- receive the notice of garnishment at the W-2 listed address which triggered the garnishment to include at the debtor’s home address, the debtor’s employer’s address or at the debtor’s email address known to the collecting federal agency, and/or,
- receive the notice of garnishment ‘from the head of the executive [or other] agency . . . ’ but rather, wrongfully received the notice of garnishment from a federal contractor collection agency which was not authorized by statute and/or regulation and is thus invalid, null, void and outside the scope of the law.”
In MacDonald v. United States, a pro se petitioner asked the Court to answer three questions:
- “Did the United States Court of Federal Claims lawfully invalidate this Arbitration Award? Or, question restated: Can a lower Federal Court vacate, dismiss, override, or render invalid, a contract, award or claim for enforcement without any basis, material facts, grounds or proof of any violation of law, including violations under the Federal Arbitration Act § 10 (l-5)?”
- “Did the United States Court of Federal Claims unlawfully deny these parties their right to grant authority to their Arbitrator, as an obligation of their Contract? Or, question restated: When all parties unanimously agree to a contract, an Arbitration Association and [its] award, before any court is involved, can a lower federal court, diminish, remove or deny the authority given to the Arbitrator by all parties, when the Supreme Court holds, the Arbitrator derives [its] authority from the parties?”
- “Did the United States Court of Federal Claims lawfully render invalid, an arbitration award, as a neutral party to the Contract? Or, question restated: Can a lower Federal Court vacate, dismiss, or render invalid a Contract, Arbitration Award, or Claim for enforcement when neither party has disputed them or filed a motion or application to vacate them?”
Waiver of Right to Respond
The government waived its right to respond in Akard v. McDonough, a veterans case brought by a pro se petitioner.
Three amicus briefs were filed in Lynch v. McDonough, a case concerning the standard of proof used to deny veterans disability claims.
- Vietnam Veterans of America (VVA) submitted an amicus brief in support of Lynch, the petitioner. According to VVA, the benefit-of-the-doubt rule of 38 U.S.C. § 5107(b) “gives the benefit of the doubt to veterans when there is ‘an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.’” VVA argues, however, that in Ortiz v. Principi, the Federal Circuit adopted a new “equipoise” standard, allowing “VA to defeat claims by showing nothing more than a bare preponderance of evidence against a veteran.” VVA argues that this “standard finds no support in the statute’s legislative history and contravenes the surplusage and pro-veteran canons of statutory construction.” Moreover, VVA contends, the Federal Circuit affirmed this standard in this case under a different name—“the persuasion of evidence standard.” Accordingly, VVA argues that, “[b]y allowing the VA to prevail when it tips the scales just enough to show a preponderance of evidence, Ortiz ensured that the statutory benefit-of-the-doubt rule will have only minimal, if any, effect, leaving the weight of an increased burden on the veteran.”
- Swords to Plowshares (Swords) and Connecticut Veterans Legal Center (CVLC) jointly submitted an amicus brief also in support of Lynch. They urge that the Federal Circuit’s decision in Lynch “is contrary to the text and purpose of 38 U.S.C. § 5107 and will severely prejudice the rights of veterans seeking service-connected disability benefits.” According to the brief, the heightened evidentiary standard upheld in this case “is contrary to Congressional intent, statutory language, and this Court’s historic respect for the nonadversarial pro-veteran nature of the VA adjudication process.” Moreover, the organizations contend, “VA’s abandonment of the intended ‘benefit of the doubt’ standard improperly deprives veterans of the care to which they are entitled.”
- The Federal Circuit Bar Association (FCBA) also filed an amicus brief in support of Lynch, urging the Supreme Court to “grant certiorari to restore to veterans seeking benefits the generous standard of proof that Congress expressly provided them.” According to the FCBA, the risk allocation of the “benefit of the doubt” standard “reflects Congress’s recognition, repeatedly confirmed by the courts, of the ‘special solicitude’ granted veterans, those among us who have ‘performed an especially important service for the Nation, often at the risk of his or her own life.'” The brief, however, maintains that the Federal Circuit has “now twice construed the standard of proof in § 5107(b) at odds with the statute.” The FCBA emphasizes the confusion caused by these decisions, contending that “it is unclear what the standard of proof is, as the law has never recognized [the] ‘persuasive’ evidence standard.” Accordingly, the FCBA urges, “[t]his Court’s review is warranted to ensure that veterans benefits claims are decided based on the correct standard of proof, so that veterans actually get the benefit of the doubt.”
The Supreme Court denied certiorari in the following cases:
- Ameranth, Inc. v. Olo, Inc. (patent case)
- Hibbard v. McDonough (pro se case)
Notably, the petitioner in Ameranth, Inc. v. Olo, Inc. presented the same two questions presented to the Court in American Axle & Mfg, Inc. v. Neapco Holdings LLC. The Solicitor General filed an amicus brief supporting review in that case, and the Supreme Court has indicated it will consider the case at its conference on June 23.