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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. There are currently no pending cases. As for pending petitions, since our last update, four new petitions were filed in a government contract case, a patent case, and two pro se cases; one waiver of the right to respond to a petition was filed in a case originally decided by the Merit Systems Protection Board; two reply briefs were filed in a takings case and a patent case; and the Supreme Court denied three petitions in a trade case, a takings case, and a veterans case. Here are the details.

Pending Petitions

New Petitions

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

ASG Solutions Corp. v. United States

In this government contract case, ASG Solutions filed a petition asking the Court to review the following questions:

  1. “Whether the government must prove that a contracting officer exercised independent, contemporaneous discretion prior to T4D, or whether a T4D remains valid when the evidentiary record contains zero evidence that the contracting officer exercised any independent business discretion, so long as an underlying breach occurred.”
  2. “Whether the government may satisfy its burden to prove the contemporaneous exercise of administrative discretion by relying solely on an unauthenticated memorandum that appears fraudulent on its face and is admitted ‘not for the truth of its contents.’”

Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC

In this patent case, Sunoco Partners Marketing & Terminals filed a petition asking the Court to review the following questions:

  1. “Whether the Federal Circuit’s standard for recovery of lost profits damages violates 35 U.S.C. § 284.”
  2. “Whether Rule 702 requires courts to exclude expert testimony when record evidence is contrary to a critical fact upon which the expert relied, as the Federal Circuit holds, or whether juries should determine whether facts upon which an expert relied are true, as all other Circuits have held.”

Kammunkun v. Department of Defense

In this pro se case, Kammunkun filed a petition asking the Court to review two questions.

Raiszadeh v. Department of Homeland Security

In this pro se case, Raiszadeh filed a petition asking the Court to review six questions.

Waivers of the Right to Respond

Since our last update, one waiver of the right to respond to a petition was filed:

Reply Briefs

Since our last update, two reply briefs in support of petitions were filed in the following cases:

Operating Engineers Trust Fund of Washington, D.C. v. United States

As a reminder, the petition in this case presented the following question:

  • “Whether the ACA’s requirement that group health plans contribute billions of dollars to subsidize reinsurance for third parties was a taking of the plans’ private property.“

The United States filed a brief in opposition arguing “the Just Compensation Clause plainly does not encompass all mandatory payments to the government or to fund government programs.” The United States further contended that, under the Supreme Court’s “precedents, a payment obligation generally does not constitute a taking unless the obligation at least targets a specific, identified fund of money.”

Now, in its reply brief, Operating Engineers Trust Fund of Washington, D.C. asserts “the decision below is both wrong and dangerous because it provides a roadmap for Congress and states or local governments to circumvent the protections of the Takings Clause by dividing their confiscatory actions into two laws rather than one.”

Finesse Wireless LLC v. AT&T Mobility LLC

As a reminder, the petition in this case presented the following question:

  • “Whether a purported inconsistency in the testimony of an expert witness is an issue of credibility for the jury to resolve, as every regional circuit holds, or whether it instead supplies a basis for a judgment as a matter of law, as the Federal Circuit held below and routinely holds in other cases.”

AT&T Mobility’s brief in opposition argued the “petition does not merely fail to present any issue warranting review.” According to AT&T Mobility, “[i]t fails even to present the question on which petitioner seeks review.” AT&T Mobility explains the petition “attacks an alternative holding without addressing the primary (case-specific) rationale that independently supports the judgment.”

Now, in its reply brief, Finesse Wireless asserts that, on “the merits, respondents have no real defense of the Federal Circuit’s decision to disregard the jury’s verdict (and the Seventh Amendment) based on purported inconsistencies in one expert’s testimony.” It further contends no “other circuit accepts the Federal Circuit’s uniquely intrusive approach to appellate review of jury findings and expert testimony, which effectively creates a patent-only exception to the normal standards of appellate review.”

Denials

Since our last update, the Supreme Court denied petitions in the following three cases: