En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the Federal Circuit heard oral argument in an en banc government contract case. The Federal Circuit also received two amicus briefs and the government’s reply brief in President Trump’s pending case involving tariffs, in which the en banc court granted an immediate administrative stay of the judgments and permanent injunctions entered by the Court of International Trade. As for petitions, the court received an amicus brief in a case with a petition raising questions related to interpretation of the statute defining the power of the International Trade Commission. The Federal Circuit also denied a petition in a patent case. Here are the details.

En Banc Cases

There are three pending en banc cases. There are updates in two.

Percipient.AI, Inc. v. United States

Since our last update, the en banc Federal Circuit heard oral argument. As a reminder, in this case, the Federal Circuit is considering is “Who can be ‘an interested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement or a proposed procurement’ under 28 U.S.C. § 1491(b)(1)?” We will post an argument recap soon.

V.O.S. Selections, Inc. v. Trump

Since the court granted the administrative stay, two amicus briefs and the government’s reply brief have been filed.

As a reminder, in this case the en banc Federal Circuit issued an order last week granting an immediate administrative stay of the judgments and permanent injunctions entered by the Court of International Trade against President Trump’s Executive orders imposing various tariffs. The Federal Circuit is currently considering whether to grant the government’s motion to stay the judgments and injunctions.

Two amicus briefs were filed in support of V.O.S. Selections:

  • Former government officials and legal scholars filed an amicus brief in support of V.O.S. Selections’s opposition to the government’s motion for an emergency stay. They argue the “International Emergency Economic Powers Act (‘IEEPA’) does not authorize the president to impose the worldwide and ‘reciprocal’ tariffs because trade imbalances are not an ‘unusual and extraordinary threat.'” They additionally contend the “structure of the comprehensive statutory scheme of which IEEPA is a part confirms that it does not authorize the president to impose tariffs to respond to trade deficits,” and that the “history of presidential practice under IEEPA further confirms that the statute does not authorize the president to impose tariffs to address trade imbalances.”
  • Thirty three members of the United States Senate filed another amicus brief urging the Federal Circuit “to deny the request for a stay of the Court of International Trade’s judgment.” The Senators argue “[t]he Administration fails to carry its burden to establish all the factors required to grant a stay pending appeal,” and that “IEEPA does not authorize tariffs—Congress has never delegated its constitutional tariff power so broadly or carelessly.” The Senators additionally maintain “[d]enial of the stay causes the Administration no irreparable harm,” while “continued collection of unlawful tariffs irreparably harms Amici’s constituents and violates separation of powers principles.”

The government also filed its reply in support of the motion to stay. In the reply, the government argues the “injunction is legally untenable and risks irreparable economic and national-security harms,” and that it is “an illegal injunction that improperly usurps political choices by the political branches and arrogates to the Judiciary a central role in managing foreign negotiations, the national economy, and national security.” The government also argues that, if the Federal Circuit denies a stay, “it should extend its administrative stay for seven days to let the government seek relief from the Supreme Court.”

Petitions

New Amicus Brief

Since our last update, the ITC Modernization Alliance filed an amicus brief in Lashify, Inc. v. International Trade Commission. In this case, the International Trade Commission asked the court to consider the following questions:

  1. “Under 19 U.S.C. §§ 1337(a)(2) and (a)(3)(B), does the statutory language require that ‘labor or capital’ include only labor or capital that establishes an ‘industry,’ consistent with the statute’s plain language and purpose to provide trade relief to only U.S. industries, or does the statute require inclusion of all labor or capital?”
  2. “Did the panel overlook certain relevant tools of statutory interpretation by reading the terms labor and capital in isolation without regard to the whole text and overall statutory scheme of 19 U.S.C. § 1337, contrary to King v. Burwell, 576 U.S. 473 (2015), and Hibbs v. Winn, 542 U.S. 88 (2004), thus rendering the statutory term ‘industry’ meaningless?”

The brief of the ITC Modernization Alliance argues “Congress enacted a three-part definition of ‘domestic industry'” and, while the Federal Circuit “correctly recognized” that the third part “expands the ‘enterprise functions’ that can constitute a domestic industry,” it says the court “erred in concluding that the first two parts, although a codification of prior caselaw, are stripped of the limiting enterprise functions that accompanied that caselaw.”

Denial

Since our last update, the Federal Circuit denied the petition for en banc rehearing in the following case: