Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Most notably, this week the Supreme Court granted certiorari in a case originally decided by the Merit Systems Protection Board. In other news, a new petition was filed in a pro se case, a party waived its right to respond in a patent case, six new amicus briefs were filed in another patent case, and a pro se petition was denied. Here are the details.
Petitions
Grant
As mentioned, this week the Supreme Court granted certiorari in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board. The petitioner presented the following arguments and question in his petition:
“This case presents a question of critical importance to hundreds of thousands of Americans who serve their country both as federal civilian employees and members of the Armed Services’ reserve components.”
“Congress enacted the differential pay statute, 5 U.S.C. § 5538, to eliminate the financial burden that reservists face when called to active duty at pay rates below their federal civilian salaries. To ensure that these reservists suffer no financial penalty for active-duty service, the differential pay statute requires that the government make up the difference. Federal civilian employees are entitled to differential pay when performing active duty ‘pursuant to a call or order to active duty under * * * a provision of law referred to in section 101(a)(13)(B) of title 10.’ That section, Section 101(a)(13)(B), enumerates several statutory authorities and includes a catchall provision: ‘any other provision of law during a war or during a national emergency declared by the President or Congress.’”
“Recently, in a decision that departed from settled understandings of this language, the Federal Circuit held that reservists relying on Section 101(a)(13)(B)’s catchall provision to claim differential pay must show that they were ‘directly called to serve in a contingency operation.’ Adams v. DHS, 3 F.4th 1375, 1379 (Fed. Cir. 2021). Under that demanding, fact-intensive standard, the Federal Circuit has rejected claims for differential pay even by reservists like petitioner whose activation orders expressly invoked a presidential emergency declaration.”
“The question presented is:”
- “Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.”
New Petitions
Since our last update, one new petition was filed with the Court in Jones v. United States, a pro se case.
Waiver of the Right to Respond
In United Therapeutics Corp. v. Liquidia Technologies, Inc., a patent case, Liquidia Technologies waived its right to respond.
Amicus Briefs
Six amicus briefs were filed in Cellect, LLC v. Vidal, a patent case presenting the following question:
- “Whether a patent procured in good faith can be invalidated on the ground that statutory Patent Term Adjustment, which requires lengthening a patent’s term to account for time lost to Patent and Trademark Office delays, can trigger a judge-made patent-invalidation doctrine.”
The amicus briefs were filed by the following entities, all of which support a grant of certiorari:
- Intellectual Property Owners Association
- American Intellectual Property Law Association
- Sanofi, Beigene, Ltd., Merck Sharp and Dohme LLC, EMD Serano, Inc., and Pfizer Inc.
- Teige P. Sheehan
- Pharmaceutical Research and Manufacturers of America
- Sonos, Inc.
Denial
Since our last update, the Supreme Court denied certiorari in the following pro se case: