In this case, the Board denied institution based on two co-pending district court infringement actions brought by Janssen Pharmaceutica—one against Mylan Laboratories and the other against Teva Pharmaceuticals. In balancing the NHK-Fintiv factors to deny institution, the Board reasoned that both district court proceedings involved substantially similar invalidity contentions as Mylan’s IPR petition and were set (or likely to be set) for trial prior to the mandatory deadline for Board to issue a Final Written Decision in the IPR.Mylan sought both direct appellate review of this denial under 28 U.S.C. § 1295(a)(4)(A) and mandamus relief under 28 U.S.C. § 1651. Mylan made the same two legal assertions in its appeal and request for mandamus relief. First it argued that the Board’s denial of institution based on the timing of the Teva litigation undermines Mylan’s constitutional due process rights.

In United States v. Rutigliano, No. 16-3754 et al., the Second Circuit (Jacobs, Raggi, Droney) refused to endorse the reduction of a restitution order against defendants who had conspired to submit fraudulent disability pension applications, either via a motion under 28 U.S.C. § 2255, or via a petition for a writ of coram nobis pursuant to 28 U.S.C. § 1651. Although the panel declined to hold that such vehicles could never be used by criminal defendants to collaterally attack an order of restitution, the Court made clear that the facts at hand rendered both § 2255 and § 1651 relief unavailable to these defendants, and vacated the district court’s order reducing defendants’ restitution obligations.Background and Proceedings Below In 2013, four defendants were convicted in the U.S. District Court for the Southern District of New York for engaging in a scheme to defraud the United States Railroad Retirement Board (“RRB”) by submitting falsified medical records in support of pension disability applications available to employees of the Long Island Rail Road (“LIRR”).

Research and Action CTR. V. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984) (“Because the statutory obligation of a Court of Appeals to review on the merits may be defeated by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction.”). See also 28 U.S.C. § 1651(a) (providing that federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions”); Nader v. FCC, 520 F.2d 182, 207 (D.C. Cir. 1975) (noting that excessive delay can lead to a “breakdown of the regulatory process”).250 See Potomac Elec. Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C. Cir. 1983) (“[E]xcessive delay saps the public confidence in an agency’s ability to discharge its responsibilities and creates uncertainty for the parties.”).

Under the AWA, “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). This relatively simple and short statutory phrase, which the United States Supreme Court has described as “a residual source of authority to issue writs that are not otherwise covered by statute,” has proven to be a fertile ground for litigation, most recently in the San Bernardino massacre.

In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant, 15-MC-1902 (JO) (E.D.N.Y. Feb. 29, 2016)( (USMJ Orenstein):The government seeks an order requiring Apple, Inc. (“Apple”) to bypass the passcode security on an Apple device. It asserts that such an order will assist in the execution of a search warrant previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the “AWA”), empowers the court to grant such relief. Docket Entry (“DE”) 1 (Application).

complete overview” (Aug. 16, 2023)5Id.6Id.7 Federal Circuit Rules, Rule 47.2.8 UPC Agreement, Articles 73(1), (2); UPC Rules of Procedure, Rules 220(1), (2).9 UPC Agreement, Article 73(1); UPC Rules of Procedure, Rules 220(1)(a), 224(1)(a).10 UPC Agreement, Article 59.11 UPC Agreement, Article 60.12 UPC Agreement, Article 61.13 UPC Agreement, Article 62.14 UPC Agreement, Article 73(2)(a); UPC Rules of Procedure, Rules 220(1)(c), 224(1)(b). This 15-day deadline also applies to appeals of orders under Articles 49(5) and 67. UPC Agreement, Article 73(2)(a).15 UPC Agreement, Article 73(2)(b)(ii); UPC Rules of Procedure, Rules 220(2), 224(1)(b).16 UPC Agreement, Article 73(2)(b)(i); UPC Rules of Procedure, Rules 220(2), 224(1)(b).17 UPC Rules of Procedure, Rules 157, 221(1).18 28 U.S.C. §§ 1295(a)(1), (a)(4)(A), (a)(6); 19 U.S.C. § 1337(c); 35 U.S.C. §§ 141, 314(d), 319.19 28 U.S.C. §§ 1292(a)(1), 1292(c)(1).20 Federal Rules of Appellate Procedure, Rule 21; Federal Circuit Rules, Rule 21; 28 U.S.C. § 1651(a).21 Federal Rules of Appellate Procedure, Rule 4(a)(1)(A); 28 U.S.C. § 2107(a).22 Federal Rules of Appellate Procedure, Rule 15(a)(1); Federal Circuit Rules, Rule 15; 19 U.S.C. § 1337(c).23 Federal Rules of Appellate Procedure, Rule 15(a)(1); Federal Circuit Rules, Rule 15; 35 U.S.C. § 142; 37 C.F.R. § 90.3(a) (1).24 UPC Rules of Procedure, Rules 224-241.25 To appeal a costs decision, an appellant must lodge an Application for leave to appeal within the 15-day deadline, which must set forth “the reasons why the appeal should be heard” and, “where necessary, the facts, evidence and arguments relied on.” UPC Rules of Procedure, Rules 221(1), (2)(a)-(b). A standing judge decides whether to grant leave to appeal and, if leave is granted, also decides the appeal. UPC Rules of Procedure, Rules 221(3), (4).26 UPC Rules of Procedure, Rules 224(1)(a)-(b).27 UPC Rules of Procedure, Rules 225(a)-(e).28 UPC Rules of Procedure, Rule 224(2)(b).29 UPC Rules of Procedure, Rule 224(2)(a).30 UPC Rules o

iff and Class Members who do not opt out now have, own, or hold against any of the Defendant Releasees that arise out of and/or relate to the facts and claims alleged by Named Plaintiff in this case.”Despite the settlement, on January 18, 2023, a class member filed another putative class action against LGE in Georgia state court. As in the 2015 federal case, the state-court plaintiff alleged that LGE improperly assessed overdraft fees on members’ accounts in violation of its standard member agreements. The state-court plaintiff, who had declined to opt out of the 2015 settlement, similarly pleaded claims for breach of contract and unjust enrichment.LGE filed a motion in the Northern District of Georgia seeking to enforce the district court’s final judgment and enjoin the state-court case pursuant to the All Writs Act, which authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). LGE also argued that the state-court action was barred by the doctrine of res judicata, which prohibits parties from relitigating claims that have been resolved on the merits through a final judgment entered in a previous action.At first blush, LGE’s case seems open and shut. A class member who did not opt out of the approved settlement agreement brought a claim against LGE based on LGE’s allegedly improper overdraft fees. But there’s more to the story. The plaintiff in the state-court action based his claim on an overdraft fee incurred in December 2018—more than three years after the latest date encompassed by the settlement class definitions. The state-court plaintiff also had a different factual theory for why the overdraft fee he incurred violated LGE’s standard member agreement. Specifically, he alleged that LGE’s practice of charging an overdraft fee when a member’s account balance was positive at the time the transaction was authorized but negative at the time the transaction

The District Court granted Twyford’s motion, determining that the order was appropriate under the All Writs Act, which authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). The District Court rejected the State’s argument that the evidence Twyford hoped to obtain would not be useful to his habeas case.

In denying institution, the PTAB relied on the fact that the co-pending district court litigation involved substantial overlapping issues which were to be tried long before any final written decision. Thus, in the Director’s opinion, IPR institution would be an inefficient use of resources.Under the hood, the CAFC’s analysis in Mylan relies on its reading of the All Writs Act (28 U.S.C. § 1651(a)) as permitting a federal court to issue a writ of mandamus “necessary to protect its prospective jurisdiction.” (emphasis added).

On the same day that the Director filed its response supporting dismissal, the IPR petitioner filed its opposition, noting that its appeal will challenge the Board’s procedures and raise a due process challenge. Because the IPR petitioner filed later in the day it was able to respond to the Director’s arguments (sometimes it does pay to not file too early).Then, in a bit of a rarity, the Court ordered oral argument on the motion to dismiss, and it directed the parties to address two questions at oral argument:If this court does not have jurisdiction to review this constitutional challenge in this appeal, is there any other vehicle or forum that would have jurisdiction to review a constitutional challenge to the denial of institution?Should we interpret the Notice of Appeal, which cites 28 U.S.C. § 1651, as seeking, in the alternative, a writ of mandamus? If so, how does that affect our jurisdiction and the availability of judicial review?In its decision, the Court didn’t pause long on whether it had jurisdiction over the IPR petitioner’s appeal.