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, a reply brief was filed in Rudisill v. McDonough, a veterans case. With respect to pending petitions, two new petitions were filed with the Court in a veterans case and in a pro se case, and a waiver of right to respond was filed in a patent case addressing both joinder in inter partes review proceedings and the Federal Vacancies Reform Act. Additionally, a brief in opposition was filed in a Tucker Act case and two reply briefs in support of petitions were filed in two different cases, one in a trade case presenting questions related to separation of powers and steel tariffs and one in a patent case addressing joint inventorship. Finally, the Court denied petitions in one patent case and two pro se cases. Here are the details.

Granted Cases

In Rudisill v. McDonough, Rudisill submitted his reply brief. In this case, the Supreme Court is considering whether “a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill, . . .  and under the Post-9/11 GI Bill, . . . is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.”

In its merits brief, the government looked to the language of 38 U.S.C. § 3327(a), focusing on the statute’s use of the phrase “‘may elect to receive’ Post-9/11 benefits implie[d] that those veterans will receive those benefits only if they elect them.” The government argued that the petitioner’s interpretation of § 3327 could not “overcome the statute’s plain text” because the meaning of the statute “turn[ed] on the enacted text, not on speculation about congressional intent.”

Now, in his reply brief, Rudisill asserts § 3327 “has no relevance for . . . veterans [with these benefits] because that provision provides only an optional . . . mechanism for trading Montgomery benefits for Post-9/11 benefits.” According to Rudisill, the government’s argument suggests that “when Subsection 3327(a) says that veterans ‘may elect’ Post-9/11 benefits, that really means that veterans ‘must elect’ if they want to use such benefits.” Rudisill further contends that this is an “ideal case for resolution under the pro-veteran canon” that is “part of the background against which Congress enacts veterans’ benefits laws.”

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In Military-Veterans Advocacy Inc. v. McDonough, a veterans case, the Court was asked to review the following questions:

  1. “Whether the Federal Circuit’s Decision Warrants Certiorari When the ‘Airspace’ Rule was upheld despite its conflict with the Convention on International Civil Aviation, T.I.A.S. No. 1591, arts. 1-2 (Dec. 7, 1944) (Chicago Convention).”
  2. “Whether a Proper Construction of the BWN Act Warrants Certiorari when the Federal Circuit’s decision and the VA’s BWN Rule conflicts with the plain statutory language and departs from the plain meaning of the Agent Orange Act and the Federal Circuit’s Own decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc).”
  3. “Whether the Secretary conducted a flawed interpretation of the Agent Orange Act contrary to its own established precedent and in contravention of the pro-veteran/pro-claimant canon of construction[.]”

In Lomax v. United States, a pro se petitioner filed a petition.

Waiver of Right to Respond

Black Swamp IP, LLC waived its right to respond to the petition in VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., which asked the Court to review the following questions:

  1. “Whether the Federal Circuit erred in upholding joinder of a party under 35 U.S.C. § 315(c), where the joined party did not ‘properly file[ ] a petition’ for inter partes review within the statutory time limit.”
  2. “Whether the Commissioner’s exercise of the Director’s review authority pursuant to an internal agency delegation violated the Federal Vacancies Reform Act.”

Brief in Opposition

The government filed it brief in opposition to the petition in Indiana Municipal Power Agency v. United States, a case concerning the federal government’s alleged statutory and contractual obligations under the Tucker Act. The petition presented the following questions:

  1. “Whether a payment obligation imposed by Congress on the federal government under a money-mandating statute and specifically exempted from later reduction can be reduced, without congressional repeal, by agencies based on administrative interpretations of later-enacted statutes that make no reference to the payment obligation contained in the earlier statute.”
  2. “Whether a statutory provision creates a contractual obligation when its language and the parties’ course of dealing reflect an intent to contract by the government.”

In its brief in opposition to the petition, the government asserts that, although “petitioners suggest that Congress can amend a statutory payment rate only by referencing a particular statute,” the Supreme Court “has never endorsed that unwritten limit on Congress’s power.” Furthermore, the government contends, a provision of the American Recovery and Reinvestment Act of 2009 “establishes a statutory payment program for issuers of qualifying bonds, which does not suffice to establish that Congress intended to assume contractual duties” because it does not “contain any ‘clear indication’ that Congress intended to bind the government contractually.”

New Replies

Two new reply briefs in support of petitions were submitted to the Court in two cases.

In PrimeSource Building Products, Inc. v. United States, PrimeSource filed its reply brief. In its original petition, PrimeSource presented two questions for the Court to review:

  1. “Whether separation of powers principles require courts to resolve ambiguity in statutory limits on delegations of vast legislative power to the Executive in a way that constrains the delegation or, as the Federal Circuit holds, courts must uphold the President’s actions absent ‘a clear misconstruction of the governing statute.’”
  2. “Whether, under the proper standard of review, the Trade Expansion Act of 1968 permitted the President to impose tariffs on steel derivatives without complying with the statute’s procedural prerequisites.”

In its brief in opposition, the government asserted “Section 232 [of the Trade Expansion Act of 1962] establishes a procedure through which the President may ‘adjust the imports’ of an article in order to protect ‘national security.’” The government argued that PrimeSource “ha[d] not identified . . . justification for revisiting” the Court’s prior “constitutional holding that Section 232 complies with Article I, or its statutory-interpretation holding that a court need not ‘construe [Section 232] narrowly in order to avoid’ nondelegation issues.”

Now, in its reply brief, PrimeSource asserts this Presidential power is “subject . . . to certain procedural requirements” and the government “acknowledges that the President did not undergo that deliberative statutory process before imposing significant tariffs on steel derivatives.” Furthermore, PrimeSource contends, “the Court need not declare the Trade Expansion Act unconstitutional or overrule any of its prior precedents” to “restor[e] the constitutional balance.” Instead, according to PrimeSource, it only needs to “hold that judges (rather than Presidents) are charged with construing the statutory limits on delegations of vast legislative powers to the Executive.”

In HIP, Inc. v. Hormel Foods Corp., HIP also filed its reply brief. In its original petition, HIP presented the following questions for the Court to review:

  1. “Whether joint inventorship requires anything more than a contribution to conception that is stated in a patent claim.”
  2. “Whether, under [Title 35] Section 116(a), a claimed and enabled contribution to conception can be deemed insignificant in quality based on the quantity of disclosure in the specification.”

In its brief in opposition, Hormel Foods asserted the Federal Circuit found the contributions allegedly made by HIP were “‘insignificant in quality’ to the claimed invention,” which did not meet the Federal Circuit’s test for joint inventorship. According to Hormel Foods, moreover, “HIP ha[d] waived any argument” that this is an incorrect test. In particular, Hormel argued that HIP has “repeatedly argued to the lower courts” that the Federal Circuit’s test “is the proper test.”

Now, in its reply brief, HIP asserts the Federal Circuit “changed the ‘not-insignificant-in-quality’ joint invention inquiry in a way that conflicts with Sections 112(b) and 116(a) of Title 35.” According to HIP, “determining whether a contributor is a co-inventor on a claim must be resolved by resort to the claim language.” Moreover, HIP argues, Hormel “intentionally included” a contribution by HIP’s president in its claim.


The Court denied certiorari in the following cases: