En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. It has been a quiet week. In pending en banc cases, this week’s update is a citation to supplemental authority in a veterans case along with the government’s response. In cases with pending petitions for en banc rehearing, this week’s update is a correction to a precedential opinion in a patent case. Here are the details.

En Banc Cases

In National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, NOVA submitted a letter brief citing to supplemental authority pursuant to Federal Rule of Appellate Procedure 28(j). In its letter brief, NOVA alleges that a new rule recently promulgated by the Department of Veterans Affairs supports NOVA’s argument in the case because it (1) “confirms that the ordinary and well-understood administrative-law meaning of the phrase ‘of general applicability’ is simply ‘appli[cable] to more than just one person, event, or transaction,’” and (2) “confirms that an agency statement can be ‘of general applicability’ even if it is not ‘binding.’” The Secretary responded to NOVA’s letter brief with its own letter brief, arguing that the court should not place any weight on the new rule “because [the rule] does not interpret 5 U.S.C. § 552(a)(1)(D) or its reference to ‘interpretations of general applicability,’ which is at the heart of this dispute.”

En Banc Petitions

In Biogen MA Inc. v. EMD Serono, Inc., the court issued a correction to the precedential opinion.