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 with the Court, one in a veterans case and one in a pro se case. Additionally a waiver of right to respond was filed in a pro se case and an amicus brief was filed in a patent case raising a question related to the Federal Vacancies Reform Act. Finally, the Court denied petitions in a Tucker Act case and in a takings case. 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 Hampton v. McDonough, a veterans case, the Court was asked to review the following questions:

  1. “When the VA fails to adjudicate the disposition of a claim for benefits, may a reviewing Court find that the VA meant to implicitly deny the claim, without running afoul of the Chenery Doctrine and further engaging in impermissible first-hand fact finding?”
  2. “And does the Federal Circuit’s use of the implicit denial rule undermine and contradict the VA’s statutory duty to provide a written statement of the reasons or bases for its findings and conclusions, that are adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in a higher Court?”

In Ferrell v. Department of Housing and Urban Development, a pro se petitioner filed a petition.

Waiver of Right to Respond

The government waived its right to respond to the petition in Trimble v. Department of Veterans Affairs, a pro se case.

Amicus Brief

An amicus brief was filed in VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., a patent case in which the petitioner 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.”

The Cato Institute filed an amicus brief in support of review of the second question. In its brief, Cato asserts the Federal Vacancies Reform Act “ensures that . . . the President remains accountable for the decisions of the acting officer” and “giv[es] the President a limited time from the date a vacancy arises to submit a permanent nominee for Senate consideration.” According to Cato, however, the delegation in this case “disregarded both of these limitations, severing the chain of accountability to the President that the FVRA was meant to protect.” Cato asserts the “plain text of the FVRA forbids delegations that ‘temporarily authoriz[e] an acting official to perform the functions and duties” of an office of a person nominated by the President and confirmed by the Senate, and Cato argues this “is exactly what the delegation [in this case] purported to do.”


The Supreme Court denied certiorari in two cases: