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, one petition for rehearing en banc was granted in a case raising a question related to whether veterans’ preference rights are applicable to veterans currently employed by the federal government, and one new amicus brief was filed in a case raising a question related to the President’s Article II removal powers. In addition, one new petition for en banc rehearing was filed raising questions related to appellate procedure and means-plus-function treatment. Lastly, three petitions were denied in cases raising questions related to test for design patent infringement, the constitutional right to a jury trial, the Administrative Procedure Act, appellate procedure, and transfer. Here are the details.

En Banc Cases

Since our last update, the Federal Circuit granted one petition for rehearing en banc and received one amicus brief in another case.

New Grant

Since our last update, the Federal Circuit granted a petition for rehearing en banc and issued a modified opinion in Brimer v. Department of the Navy. In the petition, Brimer asked the court to consider the following question:

  • “Whether the provision that ‘veterans . . . may not be denied the opportunity to compete’ in section 2 of the Veterans Employment Opportunities Act of 1998 (‘VEOA’), Pub. L. No. 105-339, § 2, 112 Stat. 3182, 3182 (1998) (codified at 5 U.S.C. § 3304(l)) (previously codified at 5 U.S.C. § 3304(f)), excludes from its coverage veterans applying for positions from within the federal civil service.”

In Part I of the modified opinion, the en banc court unanimously answered this question with a resounding “no.” Here is Part I’s conclusion:

We conclude that the VEOA guarantees veterans and preference eligibles the right to compete regardless of their status as current federal employees. Accordingly, we hold that under § 3304(f)(1) an agency cannot rely on a veteran’s or preference eligible’s status as a current federal employee to deny him or her the right to compete, a right enforceable before the Board. We thus endorse the Board’s prior opinions in Jolley and Styslinger. Of course, however, while the VEOA guarantees preference eligibles and veterans the right to compete, it does not exempt them from the eligibility criteria, such as time-in-grade restrictions, that are applicable to all candidates.

Amicus Brief

Since our last update, one amicus brief was filed in Jackler v. Department of Justice. 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.”

The amicus brief supports reversal:

En Banc Petitions

New Petitions

In TrackTime, LLC v. Amazon.com Services LLC, TrackTime asked the court to review the following questions:

  1. “Whether, in light of the disqualification disclosed in the Clerk’s July 6, 2026 letter, the Court should vacate the July 2, 2026 opinion as to U.S. Patent No. 8,856,638 and redecide that part of the appeal before a reconstituted panel, to protect public confidence in the judgment under 28 U.S.C. § 455 and Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988).”
  2. “Whether the panel’s § 112(f) analysis of U.S. Patent No. 8,862,978, under the standards of Williamson, Dyfan and Zeroclick: a. departs from the text of 35 U.S.C. § 112(f) by elevating extrastatutory subsidiary inquiries, such as the availability of commercial embodiments, into effective preconditions for patentees to prove validity of ‘executable code’–style claims that omit the word ‘means’; and b. conflicts with those decisions by remanding rather than reversing, where the panel found that neither side’s expert evidence directly addressed the controlling question which, under the presumption against § 112(f) and the challenger’s burden, required a holding that the claims are not indefinite.”

Denials

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