En banc oral argument of NOVA v. Secretary of Veteran Affairs

The Federal Circuit sat en banc on October 8, 2020 to hear an oral argument in a non-patent case. I think en banc oral arguments are interesting regardless of whether they are patent cases. For one, the judges tend to be on their best behavior when in front of all their peers. For another, the judges seem to approach the questioning with a little bit more advocacy toward their positions than they seem to do in a three-judge oral argument.

I have not had a chance to listen to the entirety of this oral argument yet, as it is a doozy — it lasted well over two hours. I’m pretty sure that is the longest oral argument at the Federal Circuit that I have downloaded since mid-2006.

One interesting thing I noticed was that Chief Judge Prost organized the oral argument to allow questioning to take place by seniority level.

You can listen to the oral argument here: [Link].

The questions presented are:

1. Are the allegations of the Petition sufficient to establish standing, even without any evidence from NOVA, given that the Secretary does not challenge standing, or must NOVA submit evidence to establish Article III standing, see Phigenix, Inc. v. Immunogen, Inc., 845 F.3d 1168, 1171-73 (Fed. Cir. 2017)Shrimpers & Fishermen of RGV v. Texas Commission on Environmental Quality, 968 F.3d 419, 423-24 (5th Cir. 2020) (citing cases from six other circuits)?

2. Is there evidence that, at the time of the Petition, NOVA had members with standing to challenge the provisions at issue?

3. Does NOVA have standing on any basis apart from having had members who would have had standing to challenge the provisions at issue?

4. Whether this court has jurisdiction under 38 U.S.C. § 502 to review provisions of the Department of Veterans Affairs’ Adjudication Procedures Manual M21-1 that are binding on the agency’s initial adjudicators but not on the Board of Veterans’ Appeals, and whether this court should overrule Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017).

5. Whether the time for filing a direct action for judicial review under 38 U.S.C. § 502 is governed by the 60-day deadline specified by Federal Circuit Rule 47.12(a) or only by the six-year statute of limitations in 28 U.S.C. § 2401(a).

Judge Moore recused herself from this appeal.

Update 10/22/20:

One interesting sound bite from the en banc oral argument was when Judge Chen inquired about other agency manuals and whether they would also be required to be published in the Federal Register.

As an aside, you might recall that then-Judge Gorsuch of the Tenth Circuit Court of Appeals did not appear to be a big fan of the Trademark Trial and Appeal Board Manual of Procedure (TBMP) [Link].

In other news, the USPTO published in the Federal Register a “Request for Comments on Discretion To Institute Trials Before the Patent Trial and Appeal Board.” The USPTO is considering the codification of its current policies and practices, or the modification thereof, through rulemaking and wishes to gather public comments on the Office’s current approach and on various other approaches suggested to the Office by stakeholders. To assist in gathering public input, the USPTO is publishing questions, and seeks focused public comments, on appropriate considerations for instituting AIA trials.

Article suggestion: (1) What manuals of the USPTO have been published in the Federal Register (and when); and, (2) do any of the manuals that were not published in the Federal Register have provisions that are generally applicable interpretive rules promulgated by the USPTO through those manuals?

For followers of the Arthrex case, Judge Chen also asked if members of the Board of Veterans’ Appeals (BVA) are employees or officers:

The Federal Circuit Blog has a nice recap of this oral argument: [Link].

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