Last Week in the Federal Circuit (January 18-21): A Roundup of Non-Patent Decisions

The Federal Circuit was quite productive last week despite the holiday weekend. The Court issued a dozen non-precedential decisions, several precedential opinions, and a handful of Rule 36 summary affirmances in cases argued during the Court’s January sitting. Below we provide our usual weekly statistics and our cases of the week—our highly subjective selection based on whatever cases piqued our interest.

Precedential opinions: 5

Non-precedential opinions: 12

Rule 36: 6

Longest pending case from argument: Nicely v. United States, No. 20-1856 (198 days)

Shortest (non-Rule 36) pending case from argument: Smolinski v. Merit Systems Protection Board, No. 21-1751 (41 days)

Cases of the week:

As our readers know, the Federal Circuit isn’t just a “patent court.” It also has jurisdiction over appeals involving veterans’ benefits, claims for money damages against the United States, federal employment, and government contracts, among other areas. This week we’re highlighting several recent decisions from the Federal Circuit’s non-patent docket. These cases involve issues of statutory construction, agency deference, and contract interpretation—all of which may have broader significance for patent practitioners.

Nicely v. United States, No. 20-1856: Appeal from the Court of Federal Claims. Panel: Chief Judge Moore and Judges Prost and O’Malley, with the opinion for the court filed per curiam and Judge O’Malley concurring in the result

The Federal Circuit held that retired military members were eligible to serve on the Board for Correction of Naval Records. The statute governing correction of military records, 10 U.S.C. § 1552, requires that the Secretary of the relevant military department “act[] through boards of civilians of the executive part of that military department” (emphasis added). The Court noted that Congress did not expressly define “civilians” in this statutory text. But it explained that dictionary definitions of “civilian,” as well as other statutory provisions involving “members of the armed forces,” suggest that “a person who is not on active duty in the armed services” qualifies as a civilian.

The Court further reasoned that the “broader statutory context” supported its interpretation. For instance, Congress elsewhere created post-retirement waiting periods before former military members could be appointed to certain high-level civilian positions, like Secretaries of the Army and Navy. According to the Court, these provisions “impl[y] that those individuals would have been eligible for service as civilians immediately upon retirement but for the statutorily-imposed ‘cooling-off’ period.” The Court declined to “decide whether or how the Chevron framework applies here,” as it concluded that the Board’s interpretation of “civilians” in § 1552 was “the best interpretation of” the statute.

Gurley v. McDonough, No. 21-1490: Appeal from the Court of Appeals for Veterans Claims. Panel: Judges Taranto, Bryson, and Stoll, with Judge Taranto writing the opinion

The Federal Circuit held that the Department of Veterans Affairs (VA) was authorized to withhold future disability-benefits payments to recoup payments that the agency erroneously made while a veteran was incarcerated. The relevant statute, 38 U.S.C. § 5313(a)(1), provides that a veteran convicted of a felony “shall not be paid compensation” above a certain level “for the period beginning” on the 61st day of incarceration “and ending on the day” the incarceration ends.

The Court concluded that the statute does not preclude the agency from “mak[ing] a post-incarceration decision to reduce benefits retroactively.” To start, the statutory text “does not use language that addresses the time at which VA must make its reduction decision regarding those benefits.” And a neighboring statutory provision, 38 U.S.C. § 5314, “specifically contemplates VA’s recovery of overpayments through withholding from future benefits.” The Court further saw an “evident reason” to interpret the statute as permitting retroactive benefits reductions: “VA might not have the contemporaneous knowledge of a particular veteran’s incarceration needed to take the initiative of reducing benefits by the 61st day.”

Anderson v. United States, No. 21-1445: Appeal from the Court of Federal Claims. Panel: Judges Prost, Reyna, and Stoll, with Judge Reyna writing the opinion

The Federal Circuit held that the government’s conversion of an unused railroad corridor into recreational hiking trails did not constitute a taking of adjacent landowners’ real property interests. The dispute centered on whether the landowners’ predecessors had conveyed fee simple interests or merely easements to the railroad. The granting clauses of the deeds conveyed “all that piece or parcel of land” described therein. But later passages in the deeds described the conveyance as a “right of way” over which the railroad would operate.

Under Texas law, which applied to the deeds here, the granting clause in a deed controls so long as it is unambiguous, even if there is contradictory language elsewhere in the deed. The Court concluded that the granting clauses in the deeds at issue “unambiguously convey[ed] a piece or parcel of land” in fee simple, “not an easement right of way.” This “unambiguous granting clause” governs over “the subsequent language in the deeds that contradict the fee simple conveyance.” The landowners thus had no remaining property interests in the rail corridor. And that meant the government’s authorization of third parties to use the corridor recreationally could not constitute a taking from the landowners.