Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. There are currently no cases pending before the Supreme Court that were previously decided by the Federal Circuit. As for pending petitions, since our last update, two new petitions were filed in a veterans case and a pro se case; three waivers of the right to respond to petitions were filed in pro se cases; and a reply brief in support of a petition was filed in an Indian Tucker Act case. Here are the details.
New Petitions
Since our last update, two new petitions have been filed in cases decided by the Federal Circuit:
Kernz v. Collins
In this veterans case, Kernz filed a petition asking the Court to review the following question:
- “May an agency defeat the existence of a case or controversy in a reviewing court by taking unilateral, ultra vires action after the agency has lost jurisdiction following an appeal to the court?”
Isaacson v. National Veterans Legal Services Program
In this pro se case, Isaacson filed a petition asking the court to review the following question:
- “May district courts, consistent with the common-fund doctrine of Greenough and Pettus, and without authorization by statute or rule, approve payments from class-action common-fund settlement funds to reward litigants for serving as representative plaintiffs?”
Waivers of the Right to Respond
Since our last update, three waivers of the right to respond to petitions were filed in the following cases:
- Hood v. Merit Systems Protection Board (pro se)
- Thorogood v. Department of the Navy (pro se)
- Caldwell v. United States (pro se)
Reply Brief
Since our last update, a reply brief in support of a petition was filed in Winnemucca Indian Colony v. United States, an Indian Tucker Act case. As a reminder, the petition in this case presented the following questions:
- “Is the United States’ promise to provide the Winnemucca Indian Colony, a federally recognized Tribe with lands held in trust established by an Executive Order and a separate legislative act, coupled with the government’s nearly exclusive statutory and regulatory control over the water on Indian lands, sufficient to entitle an Indian tribe to money damages when the United States breaches its fiduciary duty to protect the natural resources on those Indian lands?
- “Did the Federal Court of Appeals, Federal Circuit, err when it affirmed dismissal of the Winnemucca Indian Colony’s third claim for relief – Breach of Trust – Water?”
- “Can the Winnemucca Indian Colony state a cognizable claim for breach of trust against the United States in relation to BIA failure to prevent trespass and theft of natural resources by third parties, under the Winters doctrine and 25 C.F.R. § 152.22?”
In its brief in opposition, the United States contended “petitioner failed to establish” the Court of Federal Claims’s “jurisdiction over its Third Claim under the Tucker and Indian Tucker Acts seeking damages for a third party’s alleged diversion of water from the Tribe’s reservation.” Furthermore, the United States claimed, “[r]eview is particularly unwarranted because—as the CFC further held—the jurisdictional bar in 28 U.S.C. 1500 and the statute of limitations in 28 U.S.C. 2501 both confirm that the CFC lacks jurisdiction over petitioner’s claim.”
Now, in its reply brief, Winnemucca Indian Colony asserts the Federal Circuit “should hold that the Winnemucca Indian Colony states a cognizable claim for breach of trust against the United States in relation to BIA failure to prevent trespass and theft of natural resources by third parties, under the Winters doctrine and 25 C.F.R. § 152.22.” Winnemucca Indian Colony further emphasizes “the dire effects of a ruling to the contrary cannot be overstated.” According to the Colony, “[i]t would sound a death knell to any hopes by members of the Winnemucca Indian Colony to return to their land.”