Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, the petitioner filed his reply brief in Feliciano v. Department of Transportation, a case originating at the Merit Systems Protection Board. With respect to petitions, two new petitions were filed. One comes in a patent case raising questions related to summary judgment and Rule 36 summary affirmances. The other comes in a pro se case. Finally, one new reply in support of a petition was filed in another patent case raising a question related to the abstract idea exception to patent eligibility. Here are the details.
Granted Cases
New Reply
In Feliciano v. Department of Transportation, a case originating at the Merit Systems Protection Board, the petitioner filed a reply brief in support of his petition. The petition presented the following question:
- “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.”
In its response brief, the Department of Transportation argued that “[s]tatutory text, context, and structure demonstrate that servicemembers are entitled to differential pay only if they are called to active duty in the course of a national emergency—not merely while an unrelated emergency declaration happens to be in effect.” According to the Department of Transportation, “Congress’s repeated amendments adding other types of active-duty service to . . . [10 U.S.C. §] 101(a)(13)(B) and . . . [5 U.S.C. §] 5538 would have been unnecessary if the statute already encompassed all such service.”
Now, in his reply, the petitioner argues that a “reservist is entitled to differential pay whenever ‘call[ed] or order[ed] to active duty under . . . [any provision] referred to in [10 U.S.C.] section 101(a)(13)(B)’”, which includes “any other provision of law during a war or during a national emergency declared by the President or Congress.” According to the petitioner, “[a]ny speaker of ordinary English would immediately know the rule of decision from the statute’s plain text.” According to the petitioner, “Congress used an ordinary word here to mean what ‘is surely [its] most natural reading'” and, in particular, “'[d]uring’ means ‘during.’”
Petitions Cases
New Petitions
In Island Intellectual Property LLC v. TD Ameritrade, Inc., a patent case, Island Intellectual Property asked the Court to review the following questions:
- “Do the Federal Rules of Civil Procedure apply to patent cases like any other federal case, including in particular FRCP 56 and its prescription against granting summary judgment when the nonmoving party presents evidence that raises material facts in dispute?”
- “Is it proper for the Federal Circuit to use its own unique Local Rule 36 to affirm district court rulings with one-word decisions lacking explanation or analysis, when the grounds for affirmance are unclear in view of the arguments made on appeal?”
In Frederick v. McDonough, a pro se case, Frederick asked the Court to review the following questions:
- “The SHA medical exam is required at discharge by the [Department of Defense and the Department of] Veterans Affairs. When a serviceman is overlooked, would this be a Grave Prejudicial Error and a violation of the Due Process under the Fifth Amendment?”
- “If there is Spoliation of favorable evidence, how is ‘Benefit of the Doubt’ under 38 U.S.C. [§] 5107 evenly balanced?”
- “When the VA has proof of unemployability and denies a claim . . . [, h]as the VA just violated the Veteran[’s] 14th Amendment, Equal Protection Clause . . . [and] Due Process Rights under the Constitution?”
- “Under 38 U.S.C. [§] 5103A, [w]hen [the] VA does not schedule an examination or help find missing records, could this be considered Fraudulent Concealment?”
- “Can a Veteran use the Continuing Violation Doctrine, in an Equitable Estoppel claim with alleged unconstitutional conduct and intentional infliction of emotional stress?”
- “Is it possible for 42 U.S.C. [§] 1983, Equitable Estoppel and a Medical Malpractice Tort claim to be used in the same case?”
New Reply
In Return Mail, Inc. v. United States, a patent case, Return Mail filed its reply brief in support of its petition. The petition presented the following question:
- “Whether the claimed invention is ineligible for patent protection under the abstract-idea exception to 35 U.S.C. § 101.”
In its response brief, the government argued the “Court has consistently held that claims seeking to patent abstract concepts cannot be rendered patent-eligible merely by reciting the use of a generic computer to apply the concept.” According to the government, “the claims here attempt to patent an abstract idea,” and “[n]othing in the claims identifies any particular technological method for accomplishing those steps.” The government further asserted that this case “is not an appropriate vehicle . . . to clarify the abstract-idea exception or patent-eligibility under Section 101 more generally . . . . [b]ecause the claims . . . fall within any reasonable conception or articulation of the abstract-idea exception.”
Now, in its reply, Return Mail argues that “the government doesn’t contest that the question presented is cleanly presented, outcome determinative, and fully developed.” Instead, according to Return Mail, the government’s argument “boils down to a prediction that this Court’s opinion will not provide ‘elaboration or clarification of the relevant legal principles.'” Return Mail asserts, moreover, that this petition is “[m]ore than a ‘suitable vehicle'”, because it presents “all the major flaws in the Federal Circuit’s caselaw—the conflation of separate doctrines with § 101, the collapsing of steps one and two of Alice/Mayo, the treatment of fact as law, and the rest.”