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, there is no new activity to report since our last update. With respect to petitions, two new petitions were filed, both in pro se cases; the government waived its right to respond in two other pro se cases and a Merit Systems Protection Board case; the government filed a brief in opposition in a veterans case; three petitioners filed reply briefs in three takings cases; two amicus briefs were filed in a veterans case and one amicus brief was filed in a patent case concerning inter partes review estoppel; and, finally, the Court denied three petitions, one in a judicial disqualification case and two in pro se cases. Here are the details.

Granted Cases

There is no new activity to report. 

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In Woods v. United States, a pro se petitioner asked the Court to review the following questions:

  1. “The Pullman-Standard, 456 U.S. 273 (1982), this Court developed which is the standard for reviewing jurisprudence for issues of fact and issues of law, and held the Court of Appeals, according to Rule 52(a) broadly requires that findings of fact of a lower court, may not be set aside unless clearly erroneous. This Rule, however, does not apply to conclusions of law. The question before this Court is, did the Appeals Court for the Federal Circuit enter a decision in conflict with the decision of another United States Court of Appeals on the same important matter?”
  2. “Whether the Appeals Court for the Federal Circuit itself, along with the Court of Claims findings rested on an erroneous view of the law, requiring both to be set aside on that basis?”

In London v. McDonough, another pro se petitioner asked the Court to review the following questions:

  1. “Does Cushman’s determination of the constitutional duty to protect a veteran’s property rights apply to the six-year statutory deadline in 31 U.S.C. § 3702(b) for seeking retroactive benefits, and, if so, are the Government’s challenged actions lawful?”
  2. “Because 31 U.S.C. § 3702(b) limits retroactive benefits to a six-year statutory deadline, to what extent is the Government liable for avoidable damages resulting from its actions prior to and following the expiration of the statutory deadline.”

Waivers of Right to Respond

The government waived its right to respond in three cases:

Brief in Opposition

The government filed a brief in opposition in Jones v. United States, a case concerning the statute of limitations for a veteran’s claim for retirement pay. The petitioner presented the following questions for review:

  1. “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 . . . .”
  2. “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 . . . .”

In 1988, the petitioner was honorably discharged after the Physical Evaluation Board (PEB), the board of the U.S. Air Force, determined that petitioner was unfit for service. The PEB further found that, because petitioner’s otherwise qualifying disability rendered him less than 30% disabled, he was entitled to severance rather than retirement pay. 

In its brief, the government argues that the Federal Circuit was correct to hold that “petitioner’s challenge to those PEB determinations accrued [in 1988].” Accordingly, it argues, “if petitioner had believed in 1988 that he was at least 30% disabled, the Secretary’s contrary determination would not have foreclosed petitioner from filing suit to challenge the denial of retirement pay.” The government maintains that the relevant statutory provision “provides retirement pay to those servicemembers who are at least 30% disabled at the time of their separation.” The government contends, moreover, that “the factual record did not support the application of the accrual-suspension rule because petitioner ‘had an understanding of the seriousness of his condition . . . at the time of the 1988 PEB evaluation.’” Finally, the government argues that, at least in the circumstances presented, “[the] application of the accrual-suspension rule would not be compatible with the statute.” 

Reply Briefs

In three takings cases, the petitioners filed reply briefs in support of their petitions challenging the rejection of their claims. All three of the cases concern the Federal Housing Financing Agency taking conservatorship of two private companies, Fannie Mae and Freddie Mac. 

In Barrett v. United States, the petitioner presented the following question for review: 

  • “[W]hether the Government’s uncompensated appropriation of these private companies’ earnings and net worth through the Net Worth Sweep effects a taking under the Fifth Amendment.”

In Cacciapalle v. United States, the petitioner asked the Court to consider the following questions:

  1. “Did the Federal Circuit err in barring as ‘substantively derivative’ the claims of private shareholders of Fannie Mae and Freddie Mac for the Taking of their shareholder rights, and the transfer of 100% of their economic interest to the U.S. Treasury, without making a determination as to whether the private shareholders had identified a valid property right that they directly owned and that the government had taken?”
  2. “Were the rights to future dividends and other distributions held by shareholders cognizable property rights protected by the Takings Clause?”

In Owl Creek Asia I, L.P. v. United States, the petitioner asked the Court the following question:

  • “If the United States causes a company to transfer to the United States for the public benefit private shareholders’ rights incident to their ownership of shares in the company, do the private shareholders have a direct, personal interest in a cause of action challenging that taking?”

In response, the government argued that the cases do not warrant the Court’s review because “any taking . . . was a taking of the enterprises’ quarterly net worth, not a taking of the shareholders’ property.” Accordingly, “[a]ny just-compensation recovery would therefore flow to the enterprises, not to petitioners.” The government contended, moreover, that the “threshold argument that the succession clause [of the Recovery Act] bars petitioner’s suit . . . make[s] this case a poor vehicle for reviewing petitioner’s contentions.” Alternatively, it argued, the “Treasury did not simply take possession of the enterprises’ funds.” Instead, this case “involves a negotiated agreement between Treasury and the enterprises.” 

Now, in reply, Barrett argues that the “supposed threshold question, whether Petitioner lost the right to maintain a derivative suit by virtue of the Recovery Act’s Succession Clause, was not addressed by the Federal Circuit, is not relevant to its takings analysis, and need not be addressed in reversing that analysis.” On the merits, he argues that the Government “does not dispute Petitioner’s characterization of the . . . takings inquiry, which allows statutes to eliminate property interests only in accordance with history, tradition, and longstanding practice.” Moreover, Barrett contends, the Government does not deny that the Federal Circuit “put a unique spin on that inquiry that in effect allows the Government to take whatever it wants without paying just compensation—so long as Congress first enacts a statute that purports to abolish the owner’s interest in the property at issue.” According to Barrett, this analysis “creates a loophole through which the Government can evade an important constitutional protection via legislative ipse dixit.”

In his reply, Cacciapalle argues that the Government “deliberately sidesteps the issue.” He contends the Court should grant review “to address the untenable principle underlying the Federal Circuit’s decision, i.e., that shareholders are not permitted to bring their own ‘direct’ Takings claim.” According to Cacciapalle, the correct legal test for determining whether a shareholder may bring a takings claim is “whether the shareholder identified a property right that the shareholder owned, and whether the shareholder has alleged that such property right was taken by the government.” Turning to the jurisdictional inquiry, Cacciapalle argues that, “if there really were an important jurisdictional issue to address along with the merits, the proper approach would be to address both, rather than duck them both.”

Finally, in its reply, Owl Creek argues that “this Court’s foundational rule . . . is that in a derivative claim ‘[t]he injury feared is the indirect harm which may result to every stockholder from harm to the corporation.’” According to Owl Creek, the Government “omits the italicized language, never acknowledges Treasury as a ‘stockholder,’ and misstates Petitioners’ claims as depending on some harm to the Companies.” In response to the Government’s contention that the claim does not warrant review because it might require drawing on Delaware corporate law, it explains that “the claim is a constitutional one governed by federal law.” Addressing the jurisdictional question, Owl Creek echoes both replies by Barrett and Cacciapalle, arguing that the Government’s “half-hearted” arguments fail, and do not counsel against certiorari. 

Amicus Brief

Two amicus briefs were filed in Veteran Warriors, Inc. v. McDonough, a case concerning pro-veteran statutory construction. 

  • The Federal Circuit Bar Association filed an amicus brief in support of the petitioner. It maintains that “the [Pro-Veteran] Canon serves a critical role in preserving the uniquely pro-claimant system that Congress sought to protect through judicial review: it places a ‘thumb on the scale’ for the veteran.” It contends that the division at the Federal Circuit of how the canon applies “leaves veterans and their counsel profoundly uncertain of what they must do to invoke the Canon, and seek its protection, in judicial review of benefit determinations.” 
  • The Military-Veterans Advocacy Inc., Jewish War Veterans of the United States of America, and National Defense Committee jointly filed an amicus brief also in support of the petitioner. They maintain that “the long history of this Court’s application of this and similar canons illustrates its proper role as ‘an additional tool” for “provid[ing] re-medial treatment to veterans in acknowledgement of their service to this country.’” They contend that the Federal Circuit’s application of the pro-veteran canon, however, “has long been inconsistent and has sown confusion, especially regarding whether and in what circumstances a court will defer to an agency’s interpretation of a statute.” They insist that “[o]nly this Court can restore the canon to its rightful place among the traditional tools of statutory interpretation—at Step 1 of Chevron.”

An amicus brief was also filed in Jump Rope Systems, LLC v. Coulter Ventures, LLC, a patent case raising a question related to inter partes review estoppel. 

  • J. Malone, J. Schwendimann, and US Inventor, Inc. jointly submitted an amicus brief in support of the petitioner. They maintain that “rigidly extending collateral effect to PTAB invalidity determinations does not comport with the traditional standards of collateral estoppel—and its traditional limitations—that have governed everywhere until now.” They assert that inter partes review estoppel “has been a driving factor making the PTAB the ultimate arbiter in any district court infringement action and making inter partes review a forum in which where given enough time and opportunities, the likelihood an infringer will be able to invalidate a patent approaches 100%.” Moreover, they contend, “it is ultimately a threat to the entire American economy.” 


The Supreme Court denied certiorari in three cases: