En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. Highlights include a sua sponte grant of an en banc hearing in a veterans case, the filing of the government’s brief in another veterans case in which the court previously granted an en banc hearing, a new petition raising questions related to patent claim construction, the denial of a petition raising questions related to injunctive relief, and the denial of a petition in a pro se case. Here are the details.

En Banc Cases

En Banc Hearing Granted in Veterans Case

Recently the Federal Circuit sua sponte issued an order granting an en banc hearing in Arellano v. Wilkie. After the case was argued before a panel of three judges, the court sua sponte considered whether to take the case en banc in the first instance. A majority of the judges voted for en banc consideration. The en banc court will consider the following four issues:

  1. “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)?”
  2. “Assuming Irwin’s rebuttable presumption applies to § 5110(b)(1), has that presumption been rebutted?”
  3. “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)?”
  4. “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?”

The parties have been requested to file briefs addressing these issues. We will continue to track this case and report on it.

Respondent’s Brief Filed in Another En Banc Veterans Case

As we previously noted, in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs the Federal Circuit granted a petition for initial hearing en banc to consider two questions related to veterans law:

  1. “Whether this Court has jurisdiction under 38 U.S.C. § 502 to review a generally applicable interpretive rule that the Department of Veterans Affairs (VA) promulgates through its Adjudication Procedures Manual.”
  2. “Whether Federal Circuit Rule 47.12(a) impermissibly supersedes the six-year limitations period in 28 U.S.C. § 2401(a), which applies to actions brought under 38 U.S.C. § 502.”

The Secretary of Veterans Affairs has now filed his brief. In it, he argues two points to answer the two issues presented to the court.

First, he argues that “[i]nterpretive provisions that VA publishes in the Manual, like the knee provisions that NOVA challenges, are not subject to pre-enforcement review under 38 U.S.C. § 502 because they do not fall within the categories of agency action referred to in 5 U.S.C. §§ 552(a)(1) or 553.” Further he contends that NOVA’s assertions “conflict[] with the text, structure, history, and purpose of FOIA.”

Second, he argues that “Federal Circuit Rule 47.12(a), recently renumbered as Rule 15(f), . . . . governs in tandem with 28 U.S.C. § 2401(a).” In contrast to NOVA, he asserts that “there is no indication in the VJRA or elsewhere that Congress intended section 2401(a) to bar courts from adopting claim-processing rules like Rule 15(f), which ‘promote the orderly progress of’ litigation.”

En Banc Petitions

New Petitions

A new petition was filed in one case.

In Ford Global Technologies, LLC v. New World International, Inc., New World International asked the en banc court to review the following two questions:

  1. “Whether under the doctrine of repair as applied to design patents the article of manufacture undergoing the repair or reconstruction analysis is determined by a claiming test that demonstrably does not work for some design patent claims, an embodiment test similar to that used for method patents, see Quanta Computer Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008), or by some other multi-factor test.”
  2. “Whether the utility patent indefiniteness standard from Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014) applies to design patents with multiple drawings.”


The Federal Circuit denied petitions in the following two cases: