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 was submitted in Harrow v. Department of Defense, a case concerning the Merit Systems Protection Board. With respect to petitions, three new petitions were filed with the Court in one patent case and two pro se cases, a reply brief was filed in a patent case, and the Court denied certiorari in a veterans case. Here are the details.

Granted Cases

Harrow filed his opening merits brief in Harrow v. Department of Defense. The question presented is “[w]hether the 60-day filing deadline in 5 U.S.C. § 7703(b)(1)(A) is jurisdictional.” In his brief, Harrow argues a “requirement is jurisdictional ‘only if Congress clearly states that it is.’” According to Harrow, moreover, because “[n]othing in the deadline’s text provides such clear and unmistakable evidence,” “[i]t is a run-of-the-mill filing deadline.” Harrow asserts, as well, that the “statutory context” does not “provide the required clear and unmistakable evidence” because “Congress has not ‘conditioned’ any jurisdictional grant on compliance with the deadline.” Harrow also turns to the Court’s precedent, asserting the Court “has never issued a ‘definitive earlier interpretation of [the] statutory provision as jurisdictional.’”


New Petitions

Three new petitions were filed with the Court.

In Schwendimann v. Neenah, Inc., a patent case, the Court was asked to review the following question:

  • “In conducting an obviousness analysis under 35 U.S.C. § 103, did the Federal Circuit err in holding that there ‘is no basis in our case law’ for requiring an articulated basis for choosing a reference in a prior art combination as the primary reference, when such a basis is required to comply with controlling precedent in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421, 127 S. Ct. 1727, 1742, 167 L. Ed. 2d 705 (2007), WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1337 (Fed. Cir. 2016), and Yeda Rsch. v. Mylan Pharms. Inc., 906 F.3d 1031, 1044-45 (Fed. Cir. 2018), and where the choice of primary reference was dispositive?”

In Adams v. Merit Systems Protection Board, a pro se case, Adams presented the following questions:

  1. “Whether CAFC made an error in their decision to dismiss CAFC 2023-1680 (DC- 3443-20-0832-1-1) which was about MDA COC’s and MDA’s Aiding And Abetting Employer Discrimination! 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.”
  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 his 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 Golden v. Qualcomm, Inc., a pro se petitioner filed a petition.

New Reply

In VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., a patent case, VirnetX filed its reply brief. The petition presented 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.”

In its reply brief, VirnetX asserts “Section 315 requires both a ‘properly file[d] petition’ and a joinder request before a party may be joined, but exempts only the latter from the one-year time limitation.” Thus, according to VirnetX, “Apple’s petition was untimely because it was filed outside § 315(b)’s one-year time limit for defendants sued for infringement.” In response to the second question in the petition, while the “government contends . . . that whether the Director’s review authority is non-delegable does not merit [the Supreme] Court’s consideration,” VirnetX argues that, if “FVRA applies only to non-delegable duties, deciding what duties count as non-delegable will provide essential guidance” for its application. 


The Supreme Court denied certiorari in Military-Veterans Advocacy Inc. v. McDonough, a veterans case asking the Court 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[.]”