The fourth case being argued next week at the Federal Circuit that attracted amicus briefs is Euzebio v. Wilkie. In this case, the court will consider three issues related to veterans law: (1) whether “[t]he Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board because it excludes relevant matters that are known or should be known to the Board;” (2) whether “the Veterans Court erred in holding that it lacks the legal authority to look at relevant facts known to the agency for purposes of reviewing the Board’s decision;” and (3) whether “the Veterans Court misinterpreted the scope of VA’s duty to assist when it affirmed VA’s failure to develop the record with relevant facts concededly known to the agency.” This is our argument preview.
The third of four cases being argued next week at the Federal Circuit that attracted amicus briefs is Monk v. Wilkie. In this case, the court will consider three issues related to veterans law: (1) Did the Court of Appeals for Veterans Claims misinterpret 38 U.S.C. § 7261(a)(2) in holding that a five-year delay in deciding a disabled veteran’s administrative appeal does not amount to an unreasonable delay; (2) Did the CAVC misinterpret and misapply the Fifth Amendment Due Process Clause in holding that such a five-year delay does not violate the veteran’s due process rights; and (3) Did the CAVC misinterpret the mootness standard in dismissing certain Appellants’ claims. This is our argument preview.
Here is an update on recent en banc activity at the Federal Circuit. An amended petition was filed in a veterans case recently argued before the en banc court. As for pending en banc petitions in patent cases, highlights include new responses to petitions raising questions related to claim preclusion and sanctions; a new amicus brief filed in a case raising a question related to obviousness; and the denial of three petitions raising questions related to remedies, issue and claim preclusion, jurisdiction in inter partes review, and alleged due process and takings violations in inter partes review. Here are the details.
As we mentioned yesterday, four cases being argued next week at the Federal Circuit attracted amicus briefs. The second case we are previewing is Boeing Co. v. Secretary of the Air Force. In this case, the court will consider whether the Armed Services Board of Contract Appeals erred in holding that the Defense Federal Acquisition Regulation Supplement 252.227-7013 precludes government contractors from marking technical data delivered to the Government in a certain way. In particular, Boeing argues it should be permitted to mark technical data in a way that (a) recognizes the Government’s unlimited rights in the data, (b) does not restrict or impair the Government’s rights, and (c) restricts only the rights of third parties to use the data absent permission from the contractor or the Government. This is our argument preview.
Last week, the Federal Circuit issued its opinion in Monk v. Wilkie, a veterans case we have been tracking because it attracted five amicus briefs. The panel comprised of Judges Newman, Lourie, and Reyna unanimously affirmed a decision by the Court of Appeals for Veterans Claims that the petitioners in this case did not meet the commonality requirement for class certification. Judge Newman wrote the opinion, and Judge Reyna provided additional views in a separate opinion. Here is a summary of the opinions.
This past Friday, the Federal Circuit announced an order closing the court on Friday, November 27, 2020, immediately following the Thanksgiving federal holiday on Thursday, November 26, 2020. Here is the text of the order.