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. While no new petitions were filed with the Court, a brief in opposition was filed in a veterans case, a reply brief was filed in a trade case regarding separation of powers in imposing tariffs, and an amicus brief was filed in a patent case asking the Court to consider a question regarding patent eligibility. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

Brief in Opposition

In Military-Veterans Advocacy Inc. v. McDonough, a veterans case, the government filed its brief in opposition to the petition. The petition presented the following questions for review:

  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 its brief in opposition, the government asserts “[n]othing in the text of the Agent Orange Act suggests that Congress intended the Act’s presumptions to apply to veterans who served . . . in the high-altitude skies.” As for why, the government argues that in “Vietnam’s atmosphere, . . . the chances of herbicide exposure were close to nonexistent.” According to the government, moreover, by “drafting the BWN Act so that it substantively mirrors the Agent Orange Act . . . Congress clearly indicated that the BWN Act would . . . supply an exclusive definition of the relevant geographic area” for offshore service disability claims. Furthermore, the government argues, “the pro-veteran canon should be invoked only to resolve ‘interpretive doubt’ when the relevant statutory text remains ambiguous” and, here, the government says, traditional statutory interpretation tools support the government’s interpretation.


In Oman Fasteners, LLC v. United States, a trade case, Oman Fasteners filed its reply brief. Oman Fasteners is asking the Court to consider whether “a federal court [must] defer to the President’s interpretation of the Trade Expansion Act’s procedural requirements for imposing tariffs unless the President’s actions were clearly or explicitly unlawful.”

In its brief in opposition, the government argued “[n]either the text nor the history” of a statutory amendment “provides any clear indication that Congress intended to deprive the President of his longstanding authority to modify initial actions in response to changed circumstances.” The government asserted that this authority does not violate the nondelegation doctrine because there are “constraints imposed by the statute.” According to the government, moreover, the actions by the President are “subject only to a narrow form of review” when “‘the President’ makes ‘highly discretionary’ decisions.”

Now, in its reply brief, Oman Fasteners argues “the implicit authority for a President to modify” a tariff “with ‘modest adjustments’ does not permit him ‘to transform’ an older tariff years later . . . without any plausible connection to U.S. national security.” Oman Fasteners asserts the Federal Circuit’s precedent “holds that a plaintiff like Oman Fasteners cannot prevail by having the best reading of the statutory text on its side.” According to Oman Fasteners, the Federal Circuit’s approach “will confer on the President a nearly boundless delegation of Congress’s constitutionally assigned foreign-commerce authority.”

Amicus Brief

An amicus brief was filed in Realtime Data LLC v. Fortinet, Inc., a patent case in which the petitioner asked the Court to review the following question:

  • “Whether the claimed inventions are ineligible for patent protection under the abstract-idea exception to Section 101.”

Alan J. Heinrich and Christopher T. Abernethy filed an amicus brief in support of the petitioner. In it, Heinrich and Abernethy “write . . . to highlight that the time is ripe to address this issue given this Court’s decision in Amgen v. Sanofi” that O’Reilly v. Morse “was in fact about the doctrine of enablement.” According to the the brief, “Section 101 jurisprudence . . . incorrectly relies upon Morse as a patent eligibility case, and Section 112 jurisprudence . . . correctly relies upon Morse as having applied the doctrine of enablement.” Thus, the brief argues, the Court should “reexamine the legal underpinnings of the judicially created ‘exceptions’ to Section 101” that “came into being largely due to an unfortunate misinterpretation of Morse.”