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, an opening merits brief and an amicus brief were submitted in Rudisill v. McDonough, a veterans case. Five new petitions were filed, one in a personnel case and four related to the same pro se case. Additionally, three briefs in opposition were filed, one in response to a petition raising a question related to the jurisdiction of the Court of International Trade and two in response to a petition raising a question related to patent eligibility. Finally, a reply in support of a petition was filed in a case addressing hazardous duty pay for federal employees. Here are the details.

Granted Cases

Rudisill submitted his opening merits brief in Rudisill v. McDonough, a veterans case. Rudisill asserts “the Federal Circuit misread[] the Post-9/11 GI Bill as abandoning th[e] pro-veteran regime for long-serving veterans who have separate periods of qualifying service under the Montgomery GI Bill and Post-9/11 GI Bill, in favor of a reading that singles out such veterans for disfavored treatment.” Rudisill explains how, under the Federal Circuit’s approach, “such veterans must either first use up all 36 months of their Montgomery benefits before using any Post-9/11 benefits . . . or forfeit any remaining Montgomery benefits, meaning that they could not receive more than 36 months of total benefits as between both programs.” He argues, to reach this result, the Federal Circuit effectively “re-writes Section 3327 by inserting words into that provision not found in the text, while also ignoring the statutory context.”

Additionally, Jeremy C. Doerre submitted an amicus brief in support of Rudisill. In this brief, Doerre discusses that, “by the plain text of the statute, only entitlement under 38 U.S.C. § 3327(d)(1) is ‘subject to’ the limitation of 38 U.S.C. § 3327(d)(2) ─ entitlement to educational assistance under 38 U.S.C. § 3311(a) is not.” Doerre further contends that “canons of statutory construction suggest that entitlement to educational assistance under 38 U.S.C. § 3311(a) is not constrained by the limitation of 38 U.S.C. § 3327(d)(2).” The brief asserts Petitioner’s “periods of service entitle the Petitioner to Chapter 33 educational assistance under 38 U.S.C. § 3311(a).”

Petition Cases

New Petitions

A new petition was filed with the Court in Cooperman v. Social Security Administration. In this case, the following questions were submitted for review:

  1. “Is the ‘conduct unbecoming’ standard for subjecting an employee to disciplinary proceedings unconstitutionally vague, and therefore violative of the Due Process Clause of the Fifth Amendment to the United States Constitution in a situation where free speech concerns are implicated?”
  2. “Is an ALJ, employed by the Respondent, required to follow the Respondent’s Program Operations Manual System (POMS) and if so, does doing so insulate him from discipline for matters covered by the POMS?”

Four new petitions were filed with the Court by the same pro se petitioner. In the first of these petitions, Adams v. Merit Systems Protection Board (Adams I), Adams submitted the following questions for review:

  1. “Whether CAFC made an error in their decision to dismiss CAFC 2023-1212 (DC- 3443-22-0385-1-1) which was about Mr. Waschull colluding with his former employer, the Defense Intelligence Agency (DIA). And whether Employer Discrimination is going to be allowed to flourish in the Department of Defense (DoD) and the Missile Defense Agency (MDA). And whether CAFC Violated Constitutional Law when they failed to address the discrimination by MDA and the collusion by DIA.”
  2. “Whether anyone or any organization can deny access to EEO records in a Discrimination Case, Complaint or Appeal. And whether MDA can intentionally withhold vital evidence they have in their possession that would change the outcome of the CAFC decision, such as the H: harddrive containing dates, times, and people for numerous instances of disparate treatment, discrimination and retaliation, the EEO records of the discriminators and the EEO records of the discriminating organization, and The FBI investigation that cleared Mr. Adams of any wrongdoing.”
  3. “Whether CAFC can deny an Oral Argument Request for a case of this magnitude and have justice prevail. And whether Mr. Adams’ Sixth Amendment Rights were violated when CAFC disregarded/ignored my request for an oral argument, in effect, denying him of his right to be heard, and denying him of his right to face his accuser.”

In the other petitions, Adams submitted similar questions.

Briefs in Opposition

Three briefs in opposition were submitted to the Court in two cases.

In Acquisition 362, LLC v. United States, the United States filed a brief in opposition to the petition, which presented three questions to the Court concerning the jurisdiction of the Court of International Trade. In its brief, the United States argues “[t]he court of appeals correctly held that the CIT lacked subject matter jurisdiction over this case.” According to the government, the Federal Circuit correctly explained that “‘the statute is quite clear that liquidation of an entry finally establishes the duties unless a protest to the liquidation is filed.’” The United States further asserts that “petitioner could and should have filed timely challenges to the allegedly premature liquidations if it wished to preserve its entitlement to CIT review.”

In CareDx Inc. v. Natera Inc., two entities submitted briefs in opposition to the petition, which asked the Court to consider “whether a new and useful method for measuring a natural phenomenon . . . is eligible for patent protection under Section 101.”

First, Natera Inc. submitted a brief in opposition that relies upon the Supreme Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. as the basis for its argument. Natera argues “the methods claimed by” the patents in suit “‘are indistinguishable from other diagnostic method claims’ that this Court found ineligible in Mayo.” According to Natera, “the ‘practice of the asserted method claims does not result in an inventive concept that transforms . . . natural phenomena into a patentable invention.’” Moreover, it contends, “this case—a straightforward application of Mayo that presents nothing new—does not warrant certiorari.”

Second, Eurofins Viracor, Inc. submitted its own brief in opposition. It argues “this case would be a poor vehicle to reconsider the interpretation of Section 101 . . . because petitioners . . . so clearly are attempting to do what this Court’s decisions forbid—claim ownership of subject matter that is ineligible for patenting.” The brief goes on to highlight how “CareDx argues that its claims are eligible for patent protection despite Mayo because it applied a known measurement technique (which it did not invent) to a known natural phenomenon (which it did not discover).” According to Eurofins Viracor, this “approach would eviscerate Section 101.”

New Reply

A reply brief was filed in Adams v. United States. In this case, the petitioners presented the following question for review:

  • “Under the regulation requiring hazardous duty pay for federal employees who work ‘with or in close proximity to’ virulent biologicals, are federal employees who work in close proximity to individuals infected with virulent biologicals entitled to hazardous duty pay when such exposure is not usually involved in carrying out the performance of their regularly assigned duties?”

In its brief in opposition, the government argued the Federal Circuit’s interpretation of the Hazardous Duty Pay Statute “is consistent with the text, structure, and history of the relevant regulatory provisions.” It also maintained “this case would be a poor vehicle for considering the issues petitioners seek to raise because they previously failed to raise or expressly disavowed several of the arguments they now seek to assert.”

In their reply brief, the petitioners now assert “[t]he Federal Circuit incorrectly interpreted the implementing regulations in a way that not only resulted in the Correctional Officers being ineligible for HDP, but in a manner in which no employee could ever be eligible for hazardous duty pay for workplace exposure to a deadly infectious disease.” The reply brief maintains the Federal Circuit’s “interpretation is contrary to principles of statutory and regulatory interpretation and is contrary to Congressional intent when implementing the HDP program.” According to the petitioners, “the Government itself conceded that Correctional Officers could get HDP for workplace exposure.” Furthermore, they argue, “the Federal Circuit denied them the compensation they are owed on the pretense that this regulation does not apply to any federal worker.”