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, the Supreme Court heard arguments last week in Vidal v. Elster, a trademark case and, yesterday, the Supreme Court heard arguments in Rudisill v. McDonough, a veterans case. With respect to petitions, one new petition was filed with the Court in a veterans case. Additionally, a reply brief was filed in a Tucker Act case and the Court denied a petition in a patent case. Here are the details.

Granted Cases

Last week, the Supreme Court heard argument in Vidal v. Elster, a trademark case in which the Supreme Court is reviewing whether the U.S. Patent and Trademark Office’s “refusal to register a mark under Section 1052(c) [of the Lanham Act] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” Our argument recap is posted here

Yesterday, the Supreme Court heard arguments in Rudisill v. McDonough, a veterans case in which the Supreme Court is reviewing a question concerning the intersection of two statutory provisions related to the education benefits to veterans. We will post an argument recap later this week. 

Pending Petitions

New Petition

In Dolbin v. McDonough, a veterans case, the Court was asked to review the following question:

  • “If [a request for class certification and class action (RCA)] under Rule 23 of the Federal Rules of Civil Procedure is dismissed based on an erroneous interpretation of law, but not on the merits, does the named plaintiff seeking to represent the class retain a personal interest to appeal the dismissal if his/her individual claim became moot after the dismissal of the RCA?”

New Reply

Indiana Municipal Power Agency filed a reply brief 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 asserted 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 contended, 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.”

Now, in its reply brief, Indiana Municipal Power Agency maintains the “government does not deny the profound importance of this case or . . . that its refusal to honor promises made by Congress threatens the ‘principle as old as the Nation itself: The Government should honor its obligations.’” Additionally, it argues that, in contrast to the “government’s technical responses to the statutory language,” the Supreme Court has “found it necessary to look beyond specific statutory provisions to determine the existence of contractual obligations.” Finally, it asserts the Federal Circuit’s decision “corrodes trust in the federal government and undermines future cooperation and partnership with state and local governments.


The Supreme Court denied certiorari in HIP, Inc. v. Hormel Foods Corp., a patent case asking the Court to review the following questions:

  1. “Whether joint inventorship requires anything more than a contribution to conception that is stated in a patent claim.”
  2. “Whether, under 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.”