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. With respect to granted cases, the petitioners’ reply brief was filed in Bufkin v. McDonough, a veterans case concerning the benefit-of-the-doubt rule. With respect to petitions, two new petitions were filed in a patent case and a veterans case, and new waivers of the right to respond were filed in the same patent case and in a pro se case. Here are the details.

Granted Cases

New Reply

In Bufkin v. McDonough, a veterans case, the petitioners filed a reply brief in support of their petition. The petition presented the following question:

  • “Must the Veterans Court ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the Veterans Court to ‘take due account’ of VA’s application of that rule?”

In his response brief, the Secretary of Veterans Affairs argued that his “determination that the evidence on a particular material issue is not in approximate balance is itself a factual finding, or at worst as predominantly factual mixed law-fact question.” Thus, that determination is “subject to review only for clear error under . . . [38 U.S.C. §] 7261(a)(4).” Furthermore, he argues, 38 U.S.C. § “7261(b)(2), which directs the Veterans Court to apply harmless-error principles in reviewing the Board’s decisions, provides no basis for rejecting the most natural reading of . . . [§] 7261(b)(1)’s text.”

Now, in their reply, the petitioners argue “[t]he government’s reading is incurably atextual.” In particular, they contend, the fact “[t]hat the Veterans Court must perform its . . . [38 U.S.C. § 7261] (b) tasks ‘[i]n making the determinations under . . . [38 U.S.C. § 7261] (a)’ does not somehow convert those separate tasks into a part of subsection (a).” According to the petitioners, “the government’s reading violates the fundamental rule that . . . [§] 7261(b)(1) must have meaning,” because under its reading “this separately enacted provision requires nothing more than what . . . [38 U.S.C. §] 7261(a) already demands.”

Petition Cases

New Petitions

In Plotagraph, Inc. v. Lightricks, Ltd., a patent case, Plotagraph asked the Court to review the following question:

  • “Whether the claims at issue in the Plotagraph patents are patent-eligible under 35 U.S.C. § 101, as interpreted in Alice Corporation Pty v. CLS Bank International, 573 U.S. 208 (2014) in view of the claims directed to computer animation as allowed in McRO, Inc. v. Bandai Namco Games America, 837 F.3d 1299 (Fed. Cir. 2016).”

In Soto v. United States, a veterans case, Soto asked the Court to review the following question:

  • “When a person makes a demand for money from the federal government pursuant to federal statute, what test should courts and agencies use to determine whether that statute includes a settlement procedure that displaces the default procedures and limitations set forth in the Barring Act (31 U.S.C. § 3702)?”

Waivers of Right to Respond

Waivers of the right to respond to petitions were filed in the following cases: