FedCircuitBlog

On Tuesday, the Supreme Court will hear oral arguments in Arellano v. McDonough, a case raising questions about equitable tolling of a one-year filing deadline for retroactive veterans benefits. Under 38 U.S.C. § 5110(b)(1), “[t]he effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.” Although the Supreme Court held in Irwin v. Dep’t of Veterans Affairs that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States,” in this case the Federal Circuit held 6-6 that veterans are precluded from pursuing equitable tolling of § 5110(b)(1)’s one-year deadline. The Supreme Court granted review to consider the following questions:

1. “Does Irwin’s rebuttable presumption of equitable tolling apply to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, has the Government rebutted that presumption?”
2. “If 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, should this case be remanded so the agency can consider the particular facts and circumstances in the first instance?”

This is our argument preview. 

This morning the Federal Circuit released two precedential opinions. The first opinion comes in a takings case appealed from the Court of Federal Claims. In its opinion, the Federal Circuit affirms the Court of Federal Claims’s determination on liability, vacates its judgment as to compensation and interest, and remands the case. The second opinion comes in a patent case appealed from the Northern District of California. In its opinion, the Federal Circuit reverses the district court’s grant of a motion to dismiss for lack of eligibility and remands the case. Here are the introductions to the opinions.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Next week the court will hear oral argument in one of the two pending en banc cases. As for petitions for en banc review, the court received a new petition filed by a pro se party, and the court denied two petitions raising questions related to the critical date of prior art and the written description requirement, respectively. Here are the details.

Earlier this month, the Federal Circuit issued its opinion in Skarr v. McDonough, a case we have been following because it attracted two amicus briefs. In this case, after being diagnosed with leukopenia Skarr filed a claim with the Department of Veterans Affairs for service-connected benefits. The Board of Veterans’ Appeals denied Skarr’s claim, and Skarr appealed to the Court of Appeals for Veterans Claims. That court certified a class including Skarr and similarly situated veterans. The Secretary of Veterans Affairs appealed the class certification to the Federal Circuit, asserting the Veterans Court lacked authority to certify the class. Skarr cross-appealed the Veterans Court’s definition of the class. In an opinion authored by Judge Hughes and joined by Judge Newman and Chief Judge Moore, this month the Federal Circuit vacated the Veterans Court’s class certification and denied Skarr’s cross-appeal. This is our opinion summary.

This morning The Federal Circuit released a precedential opinion in a patent case appealed from the Patent Trial and Appeal Board. In its opinion, the Federal Circuit affirms the Board’s decision to deny a motion to exclude evidence, vacates the Board’s decision as to the obviousness of certain claims, and remands the case for the limited purpose of addressing certain claim limitations. Here is the introduction to the opinion.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article about the Biden Administration advising the Supreme Court not to review a pharmaceutical patent decision raising questions related to the enablement requirement;
• a second article about the United States Patent and Trademark Office Director Kathi Vidal’s response “to a number of questions surrounding abuse of the inter partes review . . . system”; and
• a third article about “[a] recent district court order punt[ing] concerns about an administrative patent tribunal’s alleged bias to the Federal Circuit.”

This morning the Federal Circuit released a precedential order in a personnel case appealed from an arbitrator’s decision. In its opinion, the Federal Circuit reversed the arbitrator’s decision, which had upheld the petitioner’s termination, and remanded the case to the arbitrator based on a violation of the petitioner’s due process rights. The Federal Circuit also released nonprecedential opinions in two cases appealed from the Merit Systems Protection Board. Finally, the Federal Circuit released two nonprecedential orders. One dismisses an appeal and one transfers an appeal due to lack of jurisdiction. Here are the introductions to the opinions, text from the order, and a link to the dismissal.

Next week, in an en banc session, the Federal Circuit will hear arguments in Rudisill v. McDonough, a veterans case. The court will consider the question of a veteran’s statutory entitlement to education benefits under the Montgomery GI Bill and the Post-9/11 GI Bill. In particular, the court will consider two related questions: (1) “for a veteran who qualifies for the Montgomery GI Bill and the Post-9/11 GI Bill under a separate period of qualifying service, what is the veteran’s statutory entitlement to education benefits;” and (2) “what is the relation between the 48-month entitlement in 38 U.S.C. § 3695(a), and the 36-month entitlement in § 3327(d)(2), as applied to veterans such as Mr. Rudisill with two or more periods of qualifying military service?” This is our argument preview.

This morning the Federal Circuit released a precedential opinion in a trade case appealed from the Court of International Trade. In its opinion, the Federal Circuit affirmed the Court of International Trade’s judgment sustaining Commerce’s antidumping order. The Federal Circuit also released a nonprecedential order denying a writ of mandamus to transfer a patent infringement suit from the Western District of Texas to the Southern District of Florida. Here is the introduction to the opinion and text from the order.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article about a path to “clarity on patent subject matter eligibility in the wake of the Supreme Court’s refusal to take up the issue”;
• an article about a challenge at the Supreme Court to a Federal Circuit panel’s decision to grant panel rehearing and issue a new decision reaching an opposite conclusion based solely on the retirement of Judge O’Malley; and
• an article about the Federal Circuit’s recent finding that the “U.S. Department of Veterans Affairs guidance excluding vets with partial knee replacements from evaluation for 100% disability benefits was arbitrary and capricious.”