Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report since our last update. With respect to petitions, two new petitions were filed with the Court in a veterans case and a case raising a question concerning judicial disqualification; a brief in opposition was submitted in another veterans case addressing the standard of proof governing rejection of disability claims; the government waived its right to respond in a Merit Systems Protection Board case; and one reply brief was submitted in a patent case raising a question related to patent eligibility. Here are the details.
There is no new activity to report.
Two new petitions were filed with the Court.
In Jones v. United States, the petitioner asked the Court to review the following questions:
- “Whether a cause of action for retirement pay can accrue and for the statute of limitations to run before a service member receives a disability rating of at least 30 percent, as the Federal Circuit held, or whether such a cause of action may instead be brought after the service member is denied retirement pay after attaining the requisite 30 percent disability rating.”
- “Whether the Federal Circuit erred in holding that the ‘accrual suspension rule’—i.e., the principle that the accrual of a cause of action against the United States is suspended during the period of time that the nature of the injury is inherently unknowable—is categorically inapplicable to veterans’ injuries that were previously unknowable due to insufficient medical knowledge or technology, or to injuries that were otherwise undiagnosable at the time of a service member’s discharge from the Armed Services.”
In Centripetal Networks, Inc. v. Cisco Systems, Inc., the petitioner asked the Court to review the following:
- “Whether placing stock in a blind trust satisfies §455(f)[indicating when judicial disqualification is not required]—and, if not, whether placing trivial amounts of stock in a blind trust, in lieu of selling it outright, constitutes harmless error under Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) [offering guidance on how courts should make the ‘harmless error’ determination].”
Brief in Opposition
McDonough filed a brief in opposition to the petition in Lynch v. McDonough, which presented a question related to the standard of proof used to deny veterans disability claims. Lynch pointed out that 38 U.S.C. § 5107(b) provides that “the Secretary [of Veterans Affairs] shall give the benefit of the doubt to the claimant” when “there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.” Lynch presented the following question to the Supreme Court:
- “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?”
Lynch, in particular, argued that the Secretary of Veterans Affairs should be required to present “clear-and-convincing evidence” to reject a veteran’s disability claim.
Now, in response, the government argues that the Federal Circuit’s decision “reflects the most natural understanding of Section 5107(b) text.” It contends that, “[b]y adding the adjective ‘approximate’ to modify ‘balance,’ Congress expanded Section 5107(b)’s coverage to include circumstances where the positive and negative evidence are of nearly but not precisely equal weight.” The government rejects Lynch’s argument that the Federal Circuit “specifically disavowed” that one of its prior decisions “reinstitut[ed] the preponderance of the evidence standard.” The government also maintains that “[Lynch]’s failure to make his current clear-and-convincing-evidence argument below is sufficient reason for this Court to deny certiorari.”
Waiver of Right to Respond
Tropp filed his reply brief in support of his petition in Tropp v. Travel Sentry, Inc., a case raising a question about patent eligibility. Tropp asked the Court to “revisit the Alice two-step framework [governing patent eligibility] and to provide much-needed guidance on the scope of the judicially created exceptions to 35 U.S.C. § 101.” In response, Travel Sentry argued that “[t]here is no ‘pressing need’ for the Court to revisit Alice or to provide further ‘guidance’ on the judicially created exceptions to eligibility under 35 U.S.C. § 101.” Travel Sentry contends that, “even if there were [a pressing need], this case is a very poor candidate” for review.
In his reply, Tropp now argues that “Travel Sentry’s rosy view of the state of patent-eligibility review is belied by the recent even en banc split at the Federal Circuit [American Axle & Manufacturing, Inc. v. Neapco Holdings LLC] . . . as well as amici here.” He maintains that “[t]here remain fundamental problems both with the substantive requirements of the Alice framework and with its consistent application across patent claims.” Moreover, Tropp contends “it is no answer simply to hope that eventually Congress might provide greater clarity on the Court’s judicially created exceptions to patent eligibility.” He notes that the “application of the Alice framework here highlights the problems with 35 U.S.C. § 101 patent-eligibility review, and thus this case would make a good vehicle to revisit that doctrine.”