Petitions / Supreme Court Activity
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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Last week, the Supreme Court granted a petition for certiorari in a case concerning the Merit Systems Protection Board. With respect to petitions, three new petitions were filed with the Court in two patent cases and one pro se case. Additionally, six waivers of right to respond, three briefs in opposition, and two reply briefs were filed with the Court. Finally, the Supreme Court denied certiorari in a patent case and two pro se cases. Here are the details.

Supreme Court Grants Petition in Harrow v. Department of Defense

The Supreme Court granted the petition for certiorari in Harrow v. Department of Defense, which asked the Court to consider whether the deadline to file a petition to review a decision of the Merit Systems Protection Board is jurisdictional. Specifically, the petition presented the following question:

  • “When a federal employee petitions the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board, 5 U.S.C. § 7703(b)(1)(A) provides: ‘Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.’ In the decision below, the Federal Circuit relied on settled circuit precedent holding this filing deadline to be jurisdictional, despite recent opinions from other Circuits and this Court holding analogous filing deadlines to be nonjurisdictional.”
  • “The question presented is whether the 60-day deadline in Section 7703(b)(1)(A) is jurisdictional.”

Petitions

New Petitions

Three new petitions were filed with the Court.

In Traxcell Technologies LLC v. Sprint Communications Co., a patent case, the petitioner asked the Court to review the following questions:

  1. “Where petitioner’s patent infringement claims were not finally rejected until the district court judge approved the Magistrate Judge’s ruling disposing of same, can petitioner’s conduct in pressing its claims in the meantime and before that final ruling by the district court be relied upon to conclude that petitioner ‘knew or should have known’ its claims were baseless so that this was an ‘exceptional’ case under 35 U.S.C. § 285 justifying an award of respondents’ attorney’s fees?”
  2. “Is the Magistrate Judge’s decision rejecting petitioner’s infringement claims—a decision to which it timely objected—a final ruling so that petitioner should have known that its claims were baseless even when that ruling had not yet been adopted by the district judge as a final disposition?”

In Tehrani v. Hamilton Technologies LLC, another patent case, the following questions were presented:

  1. “Whether the Court of Appeals for the Federal Circuit erred by declaring a non-expert as a POSITA despite all the evidence presented to the contrary.”
  2. “Whether the Court of Appeals for the Federal Circuit erred by relying on unsupported statements against the Petitioner in the face of reliable published evidence to the contrary.”
  3. “Whether the Court of Appeals for the Federal Circuit erred by affirming the decision by the Patent Trial and Appeal Board invalidating the challenged claims of US Patent 7,802,571 while none of the requirements of those claims were met by any combinations of the alleged prior art.”
  4. “Whether the Court of Appeals for the Federal Circuit erred by using a) a paper presenting untrue results and b) a fatal device against the challenged claims of US Patent 7,802,571.”
  5. “Whether the Court of Appeals for the Federal Circuit (‘Federal Circuit’) erred by affirming the decision by the Patent Trial and Appeal Board invalidating the challenged claims of U.S. Patent 7,802,571 while none of the requirements of obviousness under 35 U.S.C. § 103(a) were met by either of the alleged grounds, and against the Decisions of the Supreme Court of the United States and the Precedents of the Federal Circuit.”

In Glover v. Cohen, a pro se petitioner presented the following questions:

  1. “Is this a case of patent infringement where judges are abusing Summary Judgment at the request of the law firm; which showed bias, and prejudice toward a Pro Se litigant?”
  2. “Is a Summary Judgment lawful where no discovery, no depositions, no admissions, no plaintiff, no defendants was present, and no due process when a Constitutional Seventh Amendment jury trial was demanded?”
  3. “Is it true that two or more persons can have a patent for the same device that goes over the bridge of the Nose; and does it matter who was first patented?”

Waivers of Right to Respond

The government waived its right to respond to petitions in the following cases:

Two waivers of right to respond were filed in Realtime Data LLC v. Fortinet, Inc., a patent case asking the Court a question regarding patent eligibility:

  • Panzura, Inc. waived its right to respond.
  • MongoDB Inc. waived its right to respond.

Sprint waived its right to respond in Traxcell Technologies LLC v. Sprint Communications Co., the patent case mentioned above related to exceptional case status.

Briefs in Opposition

The government filed briefs in opposition to the petitions in three cases.

In Oman Fasteners, LLC v. United States, a trade case, the government filed its brief in opposition. The petition presented the following question for review:

  • “Must a federal court defer to the President’s interpretation of the Trade Expansion Act’s procedural requirements for imposing tariffs unless the President’s actions were clearly or explicitly unlawful?”

In its brief in opposition, the government argues “[n]either the text nor the history of the 1988 amendment to Section 232 provides any clear indication that Congress intended to deprive the President of his longstanding authority to modify initial actions in response to changed circumstances.” The government asserts that this authority does not violate the nondelegation doctrine as there are “constraints imposed by the statute.” According to the government, the actions by the President are “subject only to a narrow form of review” when “‘the President’ makes ‘highly discretionary’ decisions.”

In Martin v. United States, a Fair Labor Standards Act case, the government filed its brief in opposition. The petition presented the following question:

  • “Do either the Anti-Deficiency Act or the Gov­ernment Employee Fair Treatment Act dis­place, modify or require a special narrower interpretation of the obligations created by the FLSA insofar as those obligations apply to federal employees?”

In its brief in opposition, the government argues “the FLSA does not expressly address the timing of wage payments ‘at all.’” According to the government, although the Supreme Court has “recognized an implicit prompt-payment requirement,” the Court has also “held that the statute ‘does not require the impossible.’” Thus, the government asserts, “when it is infeasible to make payments on an employee’s regularly scheduled payday, employers comply with the FLSA by making the required payments ‘as soon as convenient or practicable.’” Furthermore, according to the government, “[p]etitioners do not address this Court’s long-held understanding of the FLSA’s implicit promptness requirement.”

In Van Dermark v. McDonough, a veterans case, the government filed its brief in opposition. The petition asked the Court to consider “whether eligible veterans are entitled to reimbursement of out-of-pocket costs incurred while receiving emergency treatment abroad based on the specific commands in 38 U.S.C. §§ 1728 & 1725.” 

In its brief in opposition, the government asserts “[t]his case does not satisfy the Court’s usual criteria for review” because “Petitioner does not assert a circuit conflict or any conflict with a specific decision of this Court.” According to the government, “Sections 1725 and 1728, which require reimbursement of ‘emergency treatment’ in certain circumstances . . . do not create additional exceptions to the [38 U.S.C. §] 1724(a) bar on furnishing treatment abroad.” As a result, the government argues, “[r]equiring the VA to reimburse petitioner for that foreign medical treatment . . . would constitute an impermissible extraterritorial application of the statute.” In short, according to the government, “Sections 1725 and 1728 do not purport to address emergency treatment provided outside the United States.”

New Replies

Two replies in support of petitions were filed in two cases.

In Van Dermark v. McDonough, the case just discussed, Van Dermark filed his reply brief. In it, Van Dermark argues the “government misconstrues the plain text of Sections 1728 and 1725, and . . . misappl[ies] various canons of statutory construction.” Turning to the presumption against extraterritoriality canon, Van Dermark argues “the operative commands in Sections 1728 and 1725 are directed to a U.S. official in the United States reimbursing U.S. veterans with funds from the U.S. treasury,” which constitute “domestic conduct and involves a quintessentially domestic concern.” According to Van Dermark, the government also “misapplies the rule that more specific statutes govern over more general ones” because “Sections 1728 and 1725 are more specific in every relevant respect.”

In Intel Corp. v. Vidal, a patent case, Intel filed its reply brief. Intel is asking the Court to review “whether 35 U.S.C. § 314(d), which bars judicial review of ‘[t]he determination . . . whether to institute an inter partes review,’ applies even when no institution decision is challenged to preclude review of PTO rules setting standards governing institution decisions.”  

In its brief in opposition, the government argued that, “even when a petition meets the statutory conditions for inter partes review, there is ‘no mandate’ for the USPTO ‘to institute review.’” Additionally, the government asserted, “the statute identifies no criteria the agency should consider” and, thus, the “decision whether to institute inter partes review . . . is committed to the USPTO’s discretion by law.” Furthermore, the government argued, the “APA’s judicial-review provisions do not apply where another ‘statute[] preclude[s] judicial review.’” And, according to the government, a statute precludes judicial review where “the congressional intent to preclude judicial review is ‘fairly discernible,’” and “[s]uch an intent is fairly discernible here.”

Now, in its reply brief, Intel argues the Federal Circuit’s decision “gives the PTO a blank check to adopt rules governing institution of inter partes review that are substantively immune from judicial scrutiny, no matter how arbitrary or unlawful.” According to Intel, the Supreme Court has “recognized that stretching a judicial-review bar beyond its text would subvert the presumption of reviewability and the critical role it plays in ensuring that agencies ‘obey [their] statutory commands.’” Intel asserts the “Federal Circuit’s ‘unreviewability principle’ is the antithesis of that presumption and endorses the very argument this Court rejected.”

Denials

The Supreme Court denied certiorari in three cases: