En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. Since our last update, the parties filed their en banc briefs in a pending case raising questions related to statutory interpretation and agency deference in the context of a regulation adopted by the Office of Personnel Management related to overtime pay. Two amicus briefs were also filed in President Trump’s appeal challenging judgments and injunctions entered by the Court of International Trade in cases related to his tariffs. Additionally, the Federal Circuit invited a response from appellants in two patent cases and denied three petitions. Here are the details.

En Banc Cases

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

New Briefing

In Lesko v. United States, Lesko and the United States filed their en banc briefs. This case raises questions concerning how “officially ordered or approved” in 5 U.S.C. § 5542(a) should be interpreted after Loper Bright Enterprises v. Raimondo, and ultimately whether the Office of Personnel Management is authorized to exercise discretion to adopt a writing requirement.

In her opening en banc brief, Lesko argues that, “[in] light of the Supreme Court’s decision in Loper,” the Federal Circuit should interpret “‘officially ordered or approved’ . . . as encompassing Ms. Lesko’s inducement theory of overtime.” Lesko contends that the “plain meaning of the statute unambiguously supports” her interpretation, and that the government conceded this point “at initial oral argument.” Lesko additionally maintains that the Federal Circuit’s precedent rejecting an inducement theory, Doe, was decided under Chevron, and since “Chevron is gone, Doe should be as well.” Finally, Lesko argues that no constitutionally delegated authority “specifically authorizes OPM to define the term ‘officially ordered or approved'” or to otherwise adopt a requirement that overtime be authorized in writing.

In its response, the United States argues the Federal Circuit should hold “that the writing requirement contained in 5 C.F.R. § 550.111(c) is a valid construction of the ‘officially ordered or
approved’ language in 5 U.S.C. § 5542(a).” The government contends that, “[b]y declining to specify how overtime must be ordered or approved . . . Congress left it to OPM to ‘fill up the details of a statutory scheme.'” The United States maintains that statutory interpretation principles “long applied by courts” provide “further support” for the OPM’s construction. Finally, the government rejects Lesko’s proposed standard because it “invites problems of administration.”

Amicus Briefs

Since our last update, two amicus briefs were filed in V.O.S. Selections, Inc. v. Trump. As a reminder, this case involves challenges to the legality of President Trump’s tariffs under the International Emergency Economic Powers Act. Both of the amicus briefs were filed in support of V.O.S Selections:

  • Crutchfield Corporation filed a brief arguing that “[t]he unprecedented assertion that the International Emergency Economic Powers Act of 1977 (IEEPA), 50 U.S.C. §§ 1701–1710, grants the President unilateral and unreviewable authority to impose, increase, decrease, suspend, or alter tariffs on virtually every country in the world cannot be reconciled with the plain language of the IEEPA and the U.S. Constitution.” Crutchfield maintains that this interpretation could not survive “a straightforward textual analysis,” and that it would also “violate the major questions doctrine and the non-delegation doctrine.”
  • Consumer Watchdog filed a brief arguing that, if the IEEPA was read “as the President does,” it would require the Federal Circuit “to decide whether IEEPA would violate the prohibition against Congress delegating legislative power to the President.” Consumer Watchdog maintains that, because “there are no explicit or implied limits or guardrails in IEEPA that prevent the President from doing whatever he pleases with tariffs,” Congressional delegation of authority to impose tariffs “without limits or guardrails would violate the Constitution.” Consumer Watchdog also argues President Trump’s tariffs were not simply “imposed once and . . . remained constant,” but have been “almost constant on-again, off-again changes for selected tariffs and countries.” The group contends IEEPA “provides no statutory justification” for this “lawless and capricious regime.”

En Banc Petitions

Invitations for Response

Since our last update, the Federal Circuit invited a response to the petition in Longitude Licensing Ltd. v. Google LLC. In its petition, Longitude Licensing raised the following question:

  • Whether “[r]ehearing en banc is necessary because the panel decision conflicts with the Court’s body of § 101 precedent applying Alice and introduces uncertainty as to the role of the specification in the § 101 analysis.”

The Federal Circuit also invited a response to the petition in Power2B, Inc. v. Samsung Electronics Co. In its petition, Power2B asked the following questions:

  1. “Whether the Court can invalidate a patent claim on appeal from the PTAB where the petitioner below failed to address a claim limitation in its petition for inter partes review.”
  2. “Whether the Court can shift the burden to the patent owner to prove that different patent claim terms have different meanings to invalidate a patent claim on appeal from the PTAB.”
  3. “Whether the Court can revive forfeited arguments not presented to the PTAB to invalidate a patent claim on appeal.”

Denials

Since our last update, the Federal Circuit denied three petitions for en banc rehearing: