En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. The court sua sponte granted en banc consideration in a case appealed from the Court of Federal Claims. In another pending en banc veterans case, the veteran filed his en banc response brief, and the Federal Circuit scheduled the case for oral argument in October. The court also received a new petition raising questions related to the court’s grant of a petition for a writ of mandamus to order transfer of a patent case from the Western District of Texas to the Northern District of California. Here are the details.

En Banc Cases

Grant of En Banc Consideration

The Federal Circuit released an order sua sponte granting en banc consideration in Adams v. United States, a case concerning whether on-the-job exposure to the coronavirus entitled employees to additional pay.

The Federal Circuit requested the parties to file supplemental briefs addressing the following issues:

  1. “How should the term ‘unusual[]’ be understood in the context of establishing ‘pay differentials’ and ‘proper differentials’ under 5 U.S.C. §§ 5343(c)(4), 5545(d)?”
  2. “In view of Adair v. United States, 497 F.3d 1244 (Fed. Cir. 2007), 5 C.F.R. § 550.902 (HDP Regulation), and Appendix A of 5 C.F.R. Pt. 550, Subpt. I (HDP Schedule), what is the meaning of ‘accident?’ What distinction, if any, is there between accidental exposure and incidental exposure?”
  3. “If we hold that the HDP Schedule and 5 C.F.R. Pt. 532, Subpt. E, Appx. A (EDP Schedule) are not limited to laboratory-specific duties, what limits, if any, are there to the ‘work[] with or in close proximity to’ language in the HDP and EDP Schedules?”
  4. “Are infected persons and surfaces ‘primary containers’ of organisms pathogenic for man,’ as recited in the EDP Schedule for distinguishing between high- and low-degree hazards? See EDP Schedule, at Microorganisms (emphasis added).”
  5. “If we conclude that the Court of Federal Claims properly granted dismissal, to what extent could the underlying complaint be amended to establish a plausible claim for relief that satisfies the ‘short and plain statement’ standard of RCFC 8?”

Response Brief and Notice of Oral Argument

In Rudisill v. McDonough, Mr. Rudisill filed a brief in response to the government’s opening brief. In its opening brief, VA argued that the “Veterans Court erred when it imposed a further ‘single period of service’ condition . . . and thereby expanded Mr. Rudisill’s entitlement to Post-9/11 benefits beyond the limits Congress explicitly imposed.” In response, Rudisill first argues that “the Court lacks jurisdiction due to the Solicitor General’s untimely attempted retroactive authorization of the Secretary’s appeal.” Rudisill next contends that “a veteran entitled to the Montgomery and Post-9/11 GI Bills based on separate periods of qualifying service is entitled to 36 months of benefits under each program, subject only to [38 U.S.C.] § 3695(a)’s 48-month aggregate cap.” Rudisill further argues that “the relationship between § 3695(a) and [38 U.S.C.] § 3327(d)(2) is that the former limits the total months of benefits a veteran can receive under all programs listed in § 3695(a)(1)-(7) to 48, regardless of how many periods of qualifying service the veteran has, while the latter limits the months of Post-9/11 benefits a veteran can obtain for any single period of qualifying service when a veteran exchanges previously established Montgomery benefits for Post-9/11 benefits.”

The Federal Circuit also issued a Notice of Oral Argument, scheduling this case for oral argument on October 6, 2022.

En Banc Petitions

New Petition

In In re Apple LLC, BillJCo, LLC asked the en banc court to review the following questions:

Whether “this Court overlooked, or did not have the benefit of at the time of its ruling, the following points of law and fact:

  1. Apple’s venue witness, Mark Rollins, was found to be unreliable and uncredible by the District Court in another case the day prior to this Court’s ruling;
  2. the Court disregarded the high burden a petitioner must satisfy to obtain mandamus relief;
  3. the Court placed too heavy an emphasis on the convenience factor in contravention of its prior case law; and
  4. the Court improperly ignored the weight entitled to the plaintiff’s choice of forum.”