FedCircuitBlog

Earlier this month the Federal Circuit heard oral argument in Milton v. United States, a case arising from the Court of Federal Claims. We have been following this case because it attracted an amicus brief. In this case, 150 plaintiffs are appealing a grant of summary judgment for the United States. These plaintiffs-appellants have asserted takings claims against the federal government based on properties that were flooded as a result of government action when the Addicks and Barker Reservoirs released water during Hurricane Harvey. The amicus brief was filed by 205 other plaintiffs with similar cases that have been stayed by the Court of Federal Claims. Judges Lourie, Chen, and Cunningham heard the argument. This is our argument recap.

A Federal Circuit panel heard oral argument earlier this month in SAS Institute Inc. v. World Programming Ltd., a copyright case originally filed in the Eastern District of Texas. We have been following this case because it attracted ten amicus briefs, six in support of SAS and four in support of WPL. In this case, SAS appeals a decision by the district court dismissing its claim of copyright infringement by WPL. SAS contends the district court incorrectly analyzed the copyrightability of a computer program and improperly excluded relevant witness testimony. Judges Newman, Reyna, and Wallach heard the oral argument. This is our argument recap.

Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight an opinion in a tax case addressing subject matter jurisdiction and “duly filed” requirements, a new patent case about prosecution laches that attracted an amicus brief, and an upcoming oral argument in a case appealed from the Patent Trial and Appeal Board. Here are the details.

On January 5 the Federal Circuit issued its opinion in Brown v. United States, a case we have been following because it attracted an amicus brief. The case was argued before Judges Lourie, Dyk, and Stoll. The Browns appealed a dismissal by the United States Court of Federal Claims of a tax refund suit for lack of subject matter jurisdiction. Judge Lourie authored the opinion in the case, affirming the dismissal. This is our opinion summary.

In December, the court heard oral argument in Military-Veterans Advocacy, Inc. v. Secretary of Veterans Affairs, a case arising from the Department of Veterans Affairs. We have been following this case because it attracted two amicus briefs in support of the petitioner, Military-Veterans Advocacy, Inc. MVA challenges a denial of rulemaking by the Secretary of Veterans Affairs that would have sought to extend the presumption of herbicide exposure to veterans who served on Guam from January 9, 1962, through December 31, 1980; Johnston Island from January 1, 1972, until September 30, 1977; and American Samoa. Judges Newman, Prost, Cunningham heard last month’s argument. This is our argument recap.

In December, the Federal Circuit heard oral argument in Wolfe v. McDonough. We have been following this veterans case because it attracted three amicus briefs in support of the plaintiff-appellee, Wolfe. On appeal, the Secretary of Veterans Affairs asks the Federal Circuit to reverse the Court of Appeals for Veterans Claims, which “granted a petition for a writ of mandamus filed by Wolfe on behalf of a class of claimants to invalidate 38 C.F.R. § 17.1005(a)(5) and require [the Department of Veterans Affairs] to readjudicate and grant claims for reimbursement of coinsurance and deductibles.” Judges Dyk, Reyna, and Stoll heard last week’s argument. This is our argument recap.

In December, the Federal Circuit heard oral argument in Cross v. Office of Personnel Management, an appeal from the Merit Systems Protection Board. We have been following this death benefit case because it attracted an amicus brief. On appeal, Cross asks the Federal Circuit to reverse a decision of the Merits Systems Protection Board regarding the denial of survivor benefits. In particular, the petitioner is claiming survivor benefits as a surviving former spouse when her deceased former husband failed affirmatively to re-elect her survivor benefits during the few months between their divorce and his death. Judges Moore, Schall, and Stoll heard last Wednesday’s argument. This is our argument recap.

This week is Court Week at the Federal Circuit, with hearings starting today. As it has for some time now, the Federal Circuit is providing access to live audio of each panel scheduled for argument via the Federal Circuit’s YouTube channel. In total, including a case set to be argued next week, the court will convene 15 panels to consider about 61 cases. Of these 61 cases, the court will hear oral arguments in 48. Of these argued cases, three attracted amicus briefs: two veterans cases and a benefits case. Here’s what you need to know about these three cases.

Last Friday, the court heard oral argument in Brown v. United States, a tax case. We have been following it because it attracted an amicus brief. On appeal, the Browns ask the Federal Circuit to overrule the holding of the Court of Federal Claims that it did not have subject matter jurisdiction because the Browns did not attach a power of attorney to amended income tax returns filed by their agent with the Internal Revenue Service. The United States argues “[t]he Browns’ refund claims admittedly violated the taxpayer signature and verification requirements,” and the United States maintains this means “the Browns’ refund claims were not ‘duly filed’ with the IRS before the Browns sued.” The arguments attracted an amicus brief from the Center of Taxpayer Rights in support of the Browns. Judges Lourie, Dyk, and Stoll heard Friday’s argument. This is our argument recap.

This past week, the court heard oral argument in In re Elster, an appeal from the Trademark Trial and Appeal Board. We have been following this case because it attracted an amicus brief. On appeal, Elster argues a refusal of his trademark registration based on section 2(c) the Lanham Act violates of the Constitution’s First Amendment. Section 2(c) recites that “[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it . . . [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent . . . .” The United States argues that section 2(c) is constitutionally legal and applied correctly in this case. The amicus brief in this case was filed by Matthew Handel, an individual who says he has trademark applications similar to Elster. Judges Dyk, Taranto, and Chen heard the argument. This is our argument recap.