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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Yesterday the Supreme Court heard oral argument in Trump v. V.O.S. Selections, the case challenging President Trump’s tariffs. Also, since our last update, four new petitions have been filed in takings, patent, and pro se cases; two waivers of the right to respond to petitions were filed in a trademark case and a pro se patent case; and an amicus brief was filed in a case challenging the Federal Circuit’s use of Federal Circuit Rule 36 and its application of the Whistleblower Protection Act. Here are the details.

Oral Arguments

Oral arguments in Trump v. V.O.S. Selections, Inc., the case challenging President Trump’s tariffs, were heard yesterday. We will release a recap soon.

New Petitions

Since our last update, four new petitions were filed in cases decided by the Federal Circuit.

United Water Conservation District v. United States

The United Water Conservation District filed a petition in United Water Conservation District v. United States, a takings case. It presents the following question:

  • “Whether the government’s appropriation of water that a person had a property right to use is analyzed as a physical taking, rather than a regulatory taking, under the Fifth Amendment.”

Dinh v. United States

Johnathan H. Dinh filed a petition in Dinh v. United States, a takings case. The petition presents the following questions:

  1. “Can Congress insulate itself from Fifth Amendment takings liability by creating a separate, third-party entity and authorizing that entity to ‘independently’ take private property without paying for it?”
  2. “To state a claim for a Government-authorized third-party taking under the Fifth Amendment must the property owner also show that the third-party was coerced into taking the property?”

Li v. Apple, Inc.

A pro se petitioner filed a petition in Li v. Apple, Inc., a patent case. The petition presents the following question:

  • “Whether, under 35 U.S.C. § 112(a), a patent specification must include a written description supporting a claimed negative limitation.”

Nguyen v. Corporation of Catholic Archbishop

A pro se petition filed a petition in Nguyen v. Corporation of Catholic Archbishop.

Waivers of the Right to Respond

Since our last update, two waivers of the right to respond to petitions were filed in the following cases:

Amicus Brief

Since our last update, an amicus brief was filed Farrington v. Department of Transportation. The brief, which was filed by Senator Charles Grassley, supports the petitioner.

The petition asked the Court to consider the following questions:

  1. “Whether Federal Circuit Rule 36 affirmances without opinion violate the Fifth Amendment guarantee of procedural due process by denying aggrieved federal employees meaningful judicial review of agency statutory interpretations.”
  2. “Whether Federal Circuit Rule 36 affirmances without opinion violate the Fifth Amendment guarantee of procedural due process by denying aggrieved federal employees meaningful judicial review of agency statutory interpretations.”
  3. “Whether the addition of the word ‘normal’ to ‘course of duties of an employee’ in 5 U.S.C. § 2302(f)(2) modifies the scope of such duties, within the plain text meaning of the statute.”

In the amicus brief, Senator Grassley argues the Whistleblower Protection Act permits Circuit Courts to “review decisions of the Merit Systems Protection Board . . . in WPA cases.” He contends this is important to ensure Federal Circuit decisions are subject to “peer review” by other circuits. Senator Grassley maintains the Federal Circuit “frustrates” this goal by “using a single word, ‘[a]ffirmed,’ instead of explaining its reasons for denying relief to Farrington.” Furthermore, Senator Grassley argues, it is “troubling” the Federal Circuit did not “reject the Agency’s claim that Farrington’s disclosures to the National Transportation Safety Board were part of her job duties as described in the Agency’s job description.” According to Senator Grassley, the Supreme Court has “cautioned against using the employer’s job description to determine the scope of duties.” Senator Grassley argues the Court should “require the Federal Circuit to explain its reasons why the Agency need not establish that the disclosure at issue is of the type which the employer has regularly required the employee to make.” Lastly, Senator Grassley contends, the Federal Circuit violated “principles of statutory construction,” which will discourage “federal employees from speaking out about aviation safety or any other compliance issue or danger to public health.”