En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. As for the only pending en banc case, which relates to the President’s Article II removal powers, since our last update the petitioner filed their reply brief. As for pending petitions for en banc rehearing, one new petition was filed in a pro se case raising questions about claim construction. The court also denied two petitions in cases that raised questions about appellate procedure and the enablement and written description requirements. Here are the details.

En Banc Cases

Since our last update, the petitioners in Jackler v. Department of Justice filed their reply brief. As a reminder, in this case the court will review a decision of the Merit Systems Protection Board and answer the following question:

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

In their opening brief, the petitioners argued 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 highlighted that, “[u]nder the Appointments Clause, Congress may vest the appointment of inferior officers in the heads of departments.” They said “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.”

The response brief filed by the Department of Justice asserted that immigration judges are “executive officers . . . who wield ‘significant authority pursuant to the laws of the United States,’” and therefore they are “subject to the usual rule that ‘lesser officers must remain accountable to the President.’”

The MSPB’s response brief argued the MSPB “properly followed the Supreme Court’s interpretation, which has made clear that Congress may not create removal restrictions for executive branch inferior officers who are vested with significant administrative authority.”

Now, in their reply brief, the petitioners assert “the executive branch has embraced a vision of the removal power that has no end, lacks any basis in precedent, and would do violence to the executive branch.”

En Banc Petitions

New Petition

Since our last update, a new petition for en banc rehearing was filed in Hafeman v. Google LLC. In its petition, Hafeman asked the en banc court to review the following questions:

  1. Whether “[t]he panel’s precedential decision warrants rehearing because its treatment of the disputed limitation is difficult to reconcile with Phillips v. AWH Corp. . . . and this Court’s related claim construction precedent requiring disputed language to be construed in the context of the claim as a whole.”
  2. “When a claim requires ‘initiating or changing return information which appears on the display through remote communication without assistance by a user with the computer,’ may a tribunal categorically exclude the user’s establishment of that required remote communication from the assistance inquiry, or must it determine—using the complete claim language and intrinsic record—whether that user act constitutes assistance to the claimed initiating or changing through remote communication?”

Denials

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