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, V.O.S. Holdings filed its response brief in President Trump’s appeal challenging judgments and injunctions entered by the Court of International Trade in cases related to his tariffs. Sixteen amicus briefs were also filed in that case. Additionally, the Federal Circuit received three new petitions for en banc review in patent cases. Here are the details.

En Banc Case

In V.O.S. Holdings, Inc. v. Trump, there are two updates. As a reminder, this case involves challenges to the legality of President Trump’s tariffs under the International Emergency Economic Powers Act.

First, V.O.S. Holdings filed its response brief. In it, V.O.S. Holdings argues that, “under the familiar framework of Youngstown Sheet & Tube Co. v. Sawyer, the President may exercise executive power over U.S. persons and property only if given authority by ‘an act of Congress’ or ‘the Constitution itself.'” According to V.O.S. Holdings, “[n]either grants him that authority here.”

Second, sixteen amicus briefs have been filed. All support V.O.S Holdings:

  • The Cato Institute filed a brief arguing “the Constitution vests the power to impose tariffs solely in Congress,” and that “the government’s reliance on IEEPA as a source of unilateral tariff authority breaks with this tradition and misreads the statute.”
  • The Institute for Policy Integrity at New York University School of Law filed a brief arguing that, “[b]ecause the challenged action triggers the major questions doctrine, the government must identify ‘clear congressional authorization’ supporting it,” and also maintained that “the Government’s argument that the major questions doctrine does not apply to the President lacks support in the Supreme Court’s opinions.”
  • Peter W. Sage filed a brief arguing that President Trump’s tariffs are “an escalation in the Executive’s determination to exert its will over coordinate branches of government,” and urged the Federal Circuit “to reaffirm the separation of powers and the foundational principle that the President is subject to the law.”
  • Amici Curiae George F. Allen, Joshua A. Claybourn, John C. Danforth, Richard A. Epstein, Charles T. Hagel, Harold Hongju Koh, Gerard N. Magliocca, Michael B. Mukasey, Alan Sykes, John Daniel Tinder, Alexander Volokh, Peter Wallison, and Philip Zelikow filed a brief arguing that the President “may not impose tariffs” unless Congress “has delegated that authority through a valid and clearly bounded framework.”
  • Burlap & Barrel, Inc. filed a brief arguing that President Trump’s tariffs have forced it “to pause spending on innovation and R&D,” which “impacts the company’s growth as well as the American economy.” It maintained that the tariffs also “threaten to irreparably fracture Burlap & Barrel’s business relations with foreign vendors if they lead to reduced ordering or other downstream effects.”
  • Princess Awesome, LLC; StoneMaier, LLC; 300 Below, Inc.; Up-Ward Glance, LLC and other corporations filed a brief arguing that “President Trump arrogated Congress’s tariff power to himself and imposed steep new tariffs on goods imported from nearly every country in the world,” even though the IEEPA “says nothing about duties, imposts or tariffs” and “does not grant the President any tariff power.”
  • Advancing American Freedom, Inc.; Frontline Policy Council; Independent Institute; Mountain States Policy Center; Rio Grande Foundation; and Paul Stam, former speaker Pro Tempore of the North Carolina House of Representatives, filed a brief arguing that the powers asserted by President Trump when issuing “changes to tariff rates worldwide” are “not within the constitutional authority of the presidency.”
  • The New Civil Liberties Alliance filed a brief arguing the Federal Circuit “should issue an even stronger opinion unreservedly holding that any tariffs imposed through the [IEEPA] are unlawful, as it is not a statute that provides for tariffs.”
  • Goldwater Institute and Dallas Market Center filed a brief arguing that, “[e]ven if the [IEEPA] or other statutes cited in the challenged Executive Order authorize the ‘Liberation Day’ tariffs, that act is an unconstitutional delegation of taxing power that contradicts our constitutional order’s most basic principles.”
  • 191 members of the United States Congress filed a brief arguing that President Trump “has usurped Congress’s constitutional authority by impermissibly using the International Emergency Economic Powers Act (‘IEEPA’) to impose tariffs.”
  • Vikram David Amar and Mickey Edwards filed a brief arguing that IEEPA “does not authorize the President to impose ‘unbounded tariffs’ or to use tariffs as ‘leverage’ to obtain unrelated policy goals,” and that “the IEEPA’s text and history show that it was enacted to rein in presidential overreach and limit the President’s power to adjust tariffs.”
  • Former Government Officials and Legal Scholars filed a brief arguing that IEEPA “does not authorize the president to impose the worldwide and ‘reciprocal’ tariffs because trade imbalances are not an ‘unusual and extraordinary threat.'”
  • The Chamber of Commerce and the Consumer Technology Association filed a brief arguing IEEPA “does not authorize” President Trump’s “sweeping tariffs,” and that the statute “does not even mention ‘tariffs’ or any other type of ‘duty.'”
  • Various economists filed a brief arguing that, “[e]ven assuming that IEEPA permits the issuance of tariffs—an authority that is not clear from IEEPA’s plain language—IEEPA has certain requirements that must be met before the President can invoke its authority.”
  • The Protect Democracy Project argued President Trump’s “challenged tariffs are both unlawful and reviewable,” and that “Congress did not intend emergency declarations pursuant to IEEPA to allow end-runs around the standard law-making process or as a means to implement long-term policy goals.”
  • The Brennan Center for Justice at NYU School of Law filed a brief arguing “the president’s emergency declarations and invocations of IEEPA for the purpose of imposing worldwide tariffs are contrary to the original purpose of both the NEA and IEEPA.”

En Banc Petitions

New En Banc Petitions

Since our last update, three new en banc petitions have been filed.

In Surfcast, Inc. v. Microsoft Corporation, Surfcast asked the following questions:

  1. “Whether the Panel failed to apply its own precedent in Phillips and subsequent cases when reviewing the PTAB’s claim construction.”
  2. “Whether the Panel erred in upholding the PTAB’s claim construction based on plain and ordinary meaning, and more particularly, erred in not recognizing that the inventors’ lexicography overcomes any plain and ordinary meaning.”

In Ingenico Inc. v. IOENGINE, LLC, IOENGINE asked the following questions:

  1. “Whether 35 U.S.C. § 315(e)(2) allows the petitioner in an inter partes review (‘IPR’) that has resulted in a final written decision to avoid estoppel in a civil action by relabeling patents or printed publications that reasonably could have been raised as a ‘ground’ in the IPR.”
  2. “Whether 35 U.S.C. § 311(b) limits ‘a ground that could be raised under section 102 or 103’ to only certain subparts of 35 U.S.C. §§ 102 or 103.”

In Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V v. Sirius XM Radio Inc., Sirius XM filed a petition for en banc review. Sirius XM asked the following question in its petition:

  • Whether “[t]o avoid confusion, inconsistent rulings, and inequitable results, the Court should grant panel or en banc rehearing, and rule that SXM has satisfied the reliance element of equitable estoppel on summary judgment.”