This morning the Federal Circuit issued a precedential order sua sponte granting en banc rehearing in a veterans case, as well as four nonprecedential opinions in cases addressing the jurisdiction of the Court of Federal Claims, patent law, trademark law, and the jurisdiction of the Merit Systems Protection Board. Here is text from today’s order and the introductions of the opinions.

Arellano v. Wilkie (Precedential Order)

This case was argued before a panel of three judges on July 6, 2020. A sua sponte request for a poll on whether to consider this case en banc in the first instance was made. A poll was conducted and a majority of the judges who are in regular active service voted for sua sponte en banc consideration.



(1) This case will be heard en banc under 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 35(a). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified.

(2) The parties are requested to file new briefs addressing the following four issues:

A. Does the rebuttable presumption of the availability of equitable tolling articulated in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), apply to 38 U.S.C. § 5110(b)(1), and if so, is it necessary for the court to overrule Andrews v. Principi, 351 F.3d 1134 (Fed. Cir. 2003)?

B. Assuming Irwin’s rebuttable presumption applies to § 5110(b)(1), has that presumption been rebutted?

C. Assuming this court holds that Irwin’s rebuttable presumption applies to § 5110(b)(1), would such a holding extend to any additional provisions of § 5110, including but not limited to § 5110(a)(1)?

D. To what extent have courts ruled on the availability of equitable tolling under statutes in other benefits programs that include timing provisions similar to § 5110?

(3) The opening brief of Appellant Adolfo R. Arellano must be filed within 45 days from the date of this order. The brief of Appellee Secretary of Veterans Affairs is due within 45 days after service of Mr. Arellano’s opening brief. Mr. Arellano’s reply brief must be filed within 30 days after service of the Secretary’s brief. The parties’ briefs must comply with Fed. Cir. R. 32(b)(1).

(4) The court invites the views of amici curiae. Any amicus brief may be filed without consent and leave of court. Any amicus brief supporting Mr. Arellano’s position or supporting neither position must be filed within 20 days after service of Mr. Arellano’s opening brief. Any amicus brief supporting the Secretary’s position must be filed within 20 days after service of the Secretary’s brief. Amicus briefs must comply with Fed. Cir. R. 29(b).

(5) The court requires 26 paper copies of all briefs and appendices provided by the filer within 5 business days from the date of electronic filing of the document. Administrative Order No. 20-01 does not exempt the filing of these paper copies.

(6) This case will be heard en banc on the basis of the briefing ordered herein and oral argument.

(7) Oral argument will be scheduled at a later date.

Allen v. United States (Nonprecedential)

The Court of Federal Claims (“Claims Court”) has jurisdiction to render judgment “upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Absent from this grant of jurisdiction are claims based on personal grievances against post office employees. Walter L. Allen (“Allen”) appeals a decision of the Claims Court dismissing for lack of subject matter jurisdiction his complaint alleging such a grievance. Allen v. United States, No. 19-1304C, 2020 WL 975438 (Fed. Cl. Feb. 28, 2020). We affirm.

Verify Smart Corp. v. Askeladden LLC (Nonprecedential)

Verify Smart Corp. (“Verify”) appeals from the final written decision of the United States Patent and Trademark Office Patent Trial and Appeal Board (“the Board”) holding claims 1–19 of U.S. Patent 8,825,648 (“the ’648 patent”) unpatentable as obvious. See Askeladden LLC v. Verify Smart Corp., No. IPR2017-00726, 2018 WL 3572368 (P.T.A.B. July 23, 2018) (“Decision”). Because the Board did not err in its conclusion that the challenged claims would have been obvious over the prior art, we affirm.

Kaszuba v. Iancu (Nonprecedential)

This appeal stems from a cancellation proceeding before the Trademark Trial and Appeal Board (“Board”). The record reveals a proceeding peppered with unnecessary filings, ultimately concluding with sanctions in the form of default judgment. Finding no abuse of discretion or legal error in the Board’s determinations, we affirm.

Kent v. Merit Systems Protection Board (Nonprecedential)

Mr. Kenneth Ray Kent appealed his employment termination from the Internal Revenue Service (“IRS”). The Merit Systems Protection Board (“Board”) dismissed Mr. Kent’s appeal for lack of jurisdiction. Mr. Kent now petitions for review. For the reasons below, we affirm the Board’s decision.