Court Week

This week the Federal Circuit will convene eleven panels to consider about 48 cases. This month, as in the past several months, the court will hear all of its oral arguments telephonically given the coronavirus pandemic. The court will hear 33 cases argued this month. Of the argued cases, two attracted amicus briefs: one a patent case case and one a veterans case. Notably, the veterans case will be heard by the en banc court. Here’s what you need to know about these cases.

Trimble Inc. v. PerDiemCo LLC

As discussed in our argument preview, Trimble, the plaintiff-appellant, asks the Federal Circuit to reverse a district court’s dismissal of a declaratory judgment action. Trimble argues that the district court wrongly determined that it lacked personal jurisdiction over a patent owner. Trimble contends that “PerDiemCo has the required minimum contacts with the forum because it purposefully directed its patent-enforcement activities at Trimble, a forum resident, and this declaratory-judgment lawsuit arose out of and is related to those activities.” In particular, Trimble argues the district court erred in reasoning that the Federal Circuit opinion of “Red Wing Shoe compelled it to dismiss the case.” In the alternative, Trimble asserts that the Federal Circuit can reconsider and overrule Red Wing Shoe either as a panel or en banc.

In response, PerDiemCo explains Red Wing Shoe is “consistent with the Supreme Court’s personal jurisdiction jurisprudence [and] is consistent with other Circuits’ declaratory judgment personal jurisdiction precedent outside the patent context.”

The R Street Institute, Public Knowledge, the Electronic Frontier Foundation, Engine Advocacy, and the Innovation Defense Foundation filed an amicus brief in support of Trimble. In it, the amici contend that Red Wing Shoe “was incorrectly decided and should now be deemed overruled.” 

Dan L. Bagatell will argue for Trimble Inc.

Larry Sandell will argue for PerDiemCo LLC.

This argument will take place on Tuesday, October 6, 2020, at 10:00 A.M.

National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs

As discussed in our argument preview, this case concerns Federal Circuit precedent holding that the court lacks jurisdiction to review interpretive rules that the Department of Veterans Affairs promulgates in its Adjudication Procedures Manual. In particular, the court is tasked with deciding the following two questions en banc:

  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.”

In its opening brief, NOVA argues that “this Court has jurisdiction to review generally applicable interpretive rules set forth in the M21-1 Manual.” According to NOVA, “[u]nder the clear meaning of 38 U.S.C. § 502 and its cross-references to 5 U.S.C. 15 §§ 552(a)(1) and 553, this Court has jurisdiction to review the challenged M21-1 Manual provisions.”

Secondly, NOVA asserts that the 60-day deadline for filing Section 502 actions expressed in Federal Circuit Rule 47.12(a) (recently renumbered Rule 15(f)) “impermissibly overrides the six-year statute of limitations in Section 2401(a), which this Court has held applies to Section 502 actions.” Similar to its jurisdictional argument, which focuses on alleged clarity in the governing statute, NOVA contends that “under the clear meaning of 28 U.S.C. § 2401(a), NOVA’s challenges are timely.”

In response, the Secretary of Veterans Affairs first 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 related assertions “conflict[] with the text, structure, history, and purpose of FOIA.”

Secondly, he explains 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 [Veterans Judicial Review Act] 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.”

Military-Veterans Advocacy Inc., the National Veterans Legal Service Program, and the National Law School Veterans Clinic Consortium each filed amicus briefs in support of NOVA.

Roman Martinez will argue for NOVA.

Eric P. Bruskin will argue for the Secretary of Veterans Affairs.

This argument will take place on Thursday, October 8, 2020, at 10:00 A.M.