Court Week / Panel Activity

This week is Court Week at the Federal Circuit. The court will continue to hear oral arguments telephonically given the coronavirus pandemic, and again this month the court is providing access to live audio of each panel scheduled for argument via the court’s YouTube channel. In total, the court will convene 15 panels to consider 65 cases. Of these 65 cases, the court will hear oral arguments in 47, and three cases attracted amicus briefs: one a veterans case, one a patent case, and one a case challenging the Merit Systems Protection Board. Here’s what you need to know about these three cases.

Buffington v. McDonough

As explained in our argument preview, this is a veterans case presenting the question of whether the Secretary of Veterans Affairs validly exercised rulemaking authority when promulgating a regulation related to the timing of payment of disability benefits.

According to Buffington, the question presented “is governed by the two-step framework of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984),” and the government fails at both steps. Regarding Chevron, however, the Secretary maintains that “Congress did not speak to the precise question at issue – whether the Secretary may predicate the effective date for the recommencement on the date of the veteran’s claim – and a gap remained for VA to fill.”

This case attracted an amicus brief by New Civil Liberties Alliance.

Doris Johnson Hines will argue for Buffington.

Shari A. Rose will argue for the Secretary.

This argument is scheduled to take place, Monday, May 3 at 10:00 A.M. Eastern in (virtual) Courtroom 402.

Mobility Workx, LLC v. Unified Patents, LLC

In our argument preview we highlighted that, in this case, Mobility Workx appeals an adverse decision by the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office in an inter partes review proceeding.

On appeal, Mobility Workx presents several arguments that inter partes review violates the Constitution. In particular, Mobility Workx argues that inter partes review violates its right to due process and qualifies as a taking under the Fifth Amendment.

In response, Unified Patents argues that Mobility Workx waived its patentability and constitutional arguments, and that those arguments fail anyway on the merits.

The Director of the U.S. Patent and Trademark Office intervened. It his brief, he argues that Mobility Workx “misunderstand[s] both due process principles and the USPTO’s compensation practices.”

US Inventor, Inc. filed an amicus brief in support of Mobility Workx.

David A. Randall will argue for Mobility Workx.

Jason R. Mudd will argue for Unified Patents.

Dana Kaersvang will argue for the Director.

This case is also scheduled for argument on Monday, May 3 at 10:00 A.M. Eastern, but in (virtual) Courtroom 201.

Tao v. Merit Systems Protection Board

In this case, Tao argues that the Merit Systems Protection Board wrongly concluded that it did not have jurisdiction over her appeal.

Tao maintains that the MSPB incorrectly “rejected jurisdiction for certain claims that were presented as evidence of protected activity under section 2302(b)(9)(A)(i), (B), (C), or (D) by analyzing such activity in the context of a (b)(8) activity.”

The MSPB admits that “[t]he AJ erred in his decision by using the standard applicable to a protected disclosure claim under section 2302(b)(8) to evaluate protected activity claims under section 2302(b)(9)(A)(i), (B), (C) or (D).” The MSPB agrees the case should be remanded.

The U.S. Office of Special Counsel filed an amicus brief in support of Tao.

As discussed in our argument week preview for this case, this case is not scheduled for oral argument. Instead, it will be decided on the briefs.