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 petitioner’s brief was filed in the only pending en banc case, which raises questions related to the President’s Article II powers and the Civil Service Reform Act. As for petitions, one new petition was filed raising questions related to appellate procedure and a motion to transfer. Finally, one petition was denied in a case raising several questions related to attorney’s fees. Here are the details.

En Banc Cases

In the only ongoing en banc case, Jackler v. Department of Justice, the petitioners filed their opening brief. As a reminder, the question presented is:

  • “Whether the Civil Service Reform Act’s procedural and substantive protections for federal workers conflict with the President’s Article II removal powers.”

In their opening en banc brief, the petitioners argue that, “[i]n the Court’s words, Article II’s Appointments Clause provides Congress the authority to ‘limit and restrict the’ ‘removal’ of inferior officers—public servants, like Jackler and Jaroch, who are subordinate to high-ranking principal officers.” They highlight that, “[u]nder the Appointments Clause, Congress may vest the appointment of inferior officers in the heads of departments.” They say “that express ‘constitutional authority’ to ‘vest’ ‘appointment implies’ a corresponding ‘authority to limit, restrict, and regulate’ ‘removal’—in other words, to enact civil service laws.” According to the petitioners, “the Supreme Court’s recent decision in Trump v. Slaughter . . . confirms that the government’s arguments are wrong.”

En Banc Petitions

New Petition

In In re Core Scientific, Inc., Core Scientific asked the court to consider the following questions:

  1. “Whether a party is precluded from addressing in its reply an issue raised by the Court and raised in the opposing response brief for the first time on appeal and for the first time in the case.”
  2. “(A) Whether ‘[m]otions to transfer venue are to be decided based on the situation which existed when suit was instituted,’ In re EMC Corp., 501 F. App’x 973, 976 (Fed. Cir. 2013), see also Hoffman v. Blaski, 363 U.S. 335, 343 (1960); and are to be given ‘top priority,’ In re Horseshoe Ent., 337 F.3d 429, 433 (5th Cir. 2003); In re Apple Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020); or (B) Whether motions to transfer must always consider a subsequent pleading, in view of In re Samsung Electronics Co., 2 F.4th 1371 (Fed. Cir. 2021), even when the opposing party delayed filing the subsequent pleading in a manner that attempts to manipulate the venue analysis.”

Denial

Since our last update, the Federal Circuit denied one petition for en banc rehearing: