Opinions

This morning the Federal Circuit released a precedential en banc opinion in a veterans case appealed from the Court of Appeals for Veterans Claims. In the court’s majority opinion, the Federal Circuit reversed, holding that a statute limiting educational assistance applies to veterans with multiple periods of service. Notably, both Judge Newman and Judge Reyna filed separate dissenting opinions. The Federal Circuit also released five nonprecedential opinions today. One comes in a case appealed from the Court of Federal Claims; one comes in a veterans case appealed from the Court of Appeals for Veterans Claims; and three come in patent cases appealed from the Patent Trial and Appeal Board. Finally, the court released three nonprecedential orders. Two dismiss appeals, and one grants motions to sever claims and transfer remaining claims to the District of Colorado. Here are the introductions to the opinions, text from the order granting the motions, and links to the dismissals.

Rudisill v. McDonough (Precedential)

This case involves two education programs enacted by Congress for the benefit of veterans—the Montgomery program and the Post-9/11 program. Section 3327(d)(2) of Title 38 limits “the number of months of entitlement . . . to educational assistance” for veterans who switch from Montgomery program to Post-9/11 program benefits without first exhausting their Montgomery benefits. The Secretary of Veterans Affairs appeals from a Court of Appeals for Veterans Claims (“Veterans Court”) decision that held that § 3327(d)(2) does not apply to veterans with multiple periods of service. BO v. Wilkie, 31 Vet. App. 321 (2019). Because we hold that the plain language of § 3327(d)(2) applies to veterans with multiple periods of service, we reverse.

NEWMAN, Circuit Judge, with whom REYNA, Circuit Judge, joins, dissenting.

The court now holds, en banc, that veterans with more than one period of military service who switch their unused Montgomery education benefits to Post-9/11 benefits are not entitled to the aggregate 48 months of education benefits that the statute provides. The court holds: “Section 3327(d)(2) of Title 38 limits ‘the number of months of entitlement . . . to educational assistance’ for veterans who switch from Montgomery program to Post-9/11 program benefits without first exhausting their Montgomery benefits,” thereby capping at 36 months the total benefits for veteran Rudisill’s three separate enlistments. Maj. Op. at 2–3 (ellipses in original). The court holds that a veteran’s total education benefits are limited to “the number of months of unused entitlement of the individual under [the Montgomery program].” Maj. Op. at 13 (brackets in original).

Thus the court reverses the decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”), and holds that three-time Army veteran James Rudisill is not entitled to the 48 months of total education benefits earned by re-enlistment. The court instead limits him to the 36 months of education benefits from his initial period of military service. This holding is contrary to statute, regulation, and policy. I respectfully dissent.

REYNA, Circuit Judge, with whom NEWMAN, Circuit Judge, joins, dissenting.

Etched in stone at the headquarters of the U.S. Department of Veterans Affairs, a mere stone’s throw from the steps of this court, are President Abraham Lincoln’s words:

To care for him who shall have borne the battle and for his widow, and his orphan.

These words are more than a mere recitation of the mission statement of the Department of Veterans Affairs. They are a promise manifested in veterans’ benefits laws passed by Congress since the founding of this nation. Nothing reflects the benevolence, sincerity, and security of that promise more than the pro-veteran canon of statutory construction.

I dissent for two reasons. First, I disagree with the majority’s cursory, legally unsupported conclusion that the pro-veteran canon “plays no role” when there is no ambiguity. Maj. Op. 15. Second, I disagree with the majority’s interpretation that 38 U.S.C. § 3327 limits Mr. Rudisill’s Post-9/11 benefits to 10 months and 16 days, the amount of his unused Montgomery entitlement. I would affirm the judgment of the U.S. Court of Appeals for Veteran’s Claims on this point.

Rudometkin v. United States (Nonprecedential)

David J. Rudometkin appeals an order from the Court of Federal Claims (“Claims Court”) dismissing his complaint for lack of jurisdiction. We reverse and remand with instructions to stay the case until the court-martial proceedings against Mr. Rudometkin are resolved.

Silva v. McDonough (Nonprecedential)

Phillip D. Silva appeals the February 23, 2021 decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”). Silva v. McDonough, No. 19-5119, 2021 WL 684880 (Vet. App. Feb. 23, 2021). To the extent relevant here, in that decision the Veterans Court affirmed the April 4, 2019 decision of the Board of Veterans’ Appeals (“Board”) that denied Mr. Silva an evaluation in excess of 10 percent prior to April 4, 2014, for bipolar disorder. Also to the extent relevant here, the court denied Mr. Silva’s request that it remand to the Board for adjudication what Mr. Silva argued was a still-pending appeal of a claim of service connection for post-traumatic stress disorder (“PTSD”). For the reasons set forth below, we affirm.

Uniloc 2017 LLC v. Netflix, Inc. (Nonprecedential)

Uniloc 2017 LLC appeals a decision by the Patent Trial and Appeal Board that claims 1, 3, 5, and 6 of U.S. Patent No. 6,584,229 are unpatentable. Because we reject Uniloc’s arguments that the Board improperly construed two claim limitations, we affirm.

P Tech, LLC v. Intuitive Surgical, Inc. (Nonprecedential)

P Tech, LLC (“P Tech”) appeals from two final written decisions of the U.S. Patent and Trademark Office Patent Trial and Appeal Board (“the Board”) collectively holding that claims 1 and 4 of U.S. Patent 9,192,395 and claims 1−20 of U.S. Patent 9,149,281 are unpatentable because they would have been obvious over the cited prior art. P Tech, LLC v. Intuitive Surgical, Inc., No. IPR2020-00649 (P.T.A.B. Sept. 3, 2021) (“’395 Decision”); P Tech, LLC v. Intuitive Surgical, Inc., No. IPR2020-00650 (P.T.A.B. Sept. 8, 2021) (“’281 Decision”). For the following reasons, we affirm.

Provisur Technologies, Inc. v. Weber, Inc. (Nonprecedential)

On petitions filed by Weber, Inc. (“Weber”), the Patent Trial and Appeal Board (“Board”) instituted inter partes review (“IPR”) proceedings as to the patentability of U.S. Patent Nos. 7,065,936 (the “’936 patent”) and 7,533,513 (the “’513 patent”), which are assigned to Provisur Technologies, Inc. (“Provisur”). The ’936 patent covers an apparatus and the ’513 patent covers a method, both relating to an industrial food production device for depositing food into containers.1 The Board found most – but not all – of the claims in both patents to be unpatentable as obvious. Provisur appeals based on what it contends is an erroneous construction of the patents’ “multi-fill” limitation. We conclude that the Board’s construction, which rejected Provisur’s proposal to limit the claims to simultaneous deposits, was correct – and, even if it was not, any error was harmless. Weber cross-appeals the Board’s failure to find certain claims of the ’936 and ’513 patents unpatentable. With respect to those claims, substantial evidence supports the Board’s finding that Weber did not prove the required motivation to combine. Accordingly, we affirm the Board’s determinations.

In re Amazon.com, Inc. (Nonprecedential Order)

Amazon.com, Inc. petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to sever the claims against Coghlan Family Enterprises LLC and to transfer the remaining claims against Amazon to the United States District Court for the District of Colorado. Because we find the district court clearly abused its discretion in evaluating the motions to sever and transfer, we grant the petition and direct the district court to grant Amazon’s motions to sever and transfer.

Accordingly,

IT IS ORDERED THAT:

(1) Amazon’s motion for leave to file a supplemental appendix is granted.

(2) The petition for a writ of mandamus is granted to the extent described in this order. The district court is directed to grant Amazon’s motion to sever the claims involving CFE. Furthermore, the district court is directed to transfer the claims against Amazon to the United States District Court for the District of Colorado.

Dismissals