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, five amicus briefs were submitted in Harrow v. Department of Defense, a case concerning the Merit Systems Protection Board. With respect to petitions, two new petitions were filed with the Court in a veterans case and a patent case, and four waivers of right to respond were filed in four pro se cases. Here are the details.

Granted Cases

Five amicus briefs were filed in Harrow v. Department of Defense, a Merit Systems Protection Board case presenting the question “whether the 60-day deadline in [5 U.S.C.] Section 7703(b)(1)(A) is jurisdictional.” All of the briefs support the petitioner:

  • Federal Circuit Bar Association filed an amicus brief in support of petitioner.
  • National Treasury Employees Union filed an amicus brief in support of petitioner.
  • American Federation of Government Employees filed an amicus brief in support of petitioner.
  • Law Professors filed an amicus brief in support of petitioner.
  • National Veterans Legal Services Program filed an amicus brief in support of petitioner.


New Petitions

Two new petitions were filed with the Court.

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

  1. “Whether the Federal Circuit misinterpreted 38 U.S.C. § 5103(a)(1) to allow VA to issue evidentiary notice only before receiving a veteran’s claim, even though the statute requires notice that accounts for evidence ‘not previously provided to the Secretary that is necessary to substantiate the claim.'”
  2. “Whether the Federal Circuit violated the longstanding doctrine of Accardi v. Shaughnessy, 347 U.S. 260 (1954), by permitting VA to violate its own regulation on the ground that the agency’s noncompliance cannot be ‘prejudicial’ to veterans.”

In Vanda Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc., a patent case, the following question was presented to the Court for review:

  • “Whether obviousness requires a showing of ‘predictable’ results, as this Court held in KSR, or a mere ‘reasonable expectation of success,’ as the Federal Circuit has held both before and after KSR?”

Waivers of Right to Respond

The government waived its right to respond to petitions in the following cases: