Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights a comment on upcoming oral arguments over whether PTAB judges are inferior or superior officers, news about South Carolina’s opening brief in their fight with the U.S. government over fines for storage of plutonium in the state, and a note on the U.S. Army urging the Federal Circuit to uphold a contracting board’s decision sparing the Army from paying $48 million for military escort delays.

Scott Graham of commented on the Federal Circuit’s upcoming oral arguments in Polaris Innovations v. Kingston Technology, a case about whether “PTAB judges are inferior officers accountable to the PTO director, and therefore don’t have to be nominated by the president and confirmed by the Senate” or instead are “principal officers . . . and have been acting outside their authority.” Graham notes that “a Federal Circuit panel sounded very sympathetic to the constitutional argument in the separate case of Arthrex v. Smith & Nephew.” According to Graham, “Judges Kimberly Moore and Raymond Chen have already thrown serious shade on most of the DOJ’s positions in the Arthrex arguments.” We previously reported on news related to the oral argument in the Arthrex case.

The Aiken Standard’s Colin Demarest highlighted the opening brief filed by South Carolina State Attorney General Alan Wilson in State of South Carolina v. United States. South Carolina is seeking $200 million, which “represents two years of fines levied against the U.S. Department of Energy for not removing plutonium stored at the Savannah River Site, a 310-square-mile nuclear reserve” in South Carolina. The state’s legal team argues in its brief that Federal Claims Judge Margaret M. Sweeney “was wrong to dismiss South Carolina’s $200 million lawsuit against the federal government, and the state is due its money for storing metric tons of defense plutonium years on end.” Judge Sweeney “ruled the courts were not the right place for South Carolina to pursue plutonium fines.”

At Law 360, Kaitlyn Burton reported that in Kellogg Brown & Root Services v. Secretary of the Army, “[t]he Army urged the Federal Circuit to back a contracting board’s decision sparing it from having to pay Kellogg Brown & Root Services Inc. more than $48 million for military escort delays, saying that KBR’s deal with a subcontractor barred compensation for such delays.” The Armed Services Board of Contract Appeals “had found in November 2018 that the Army’s 2001 contract with KBR didn’t have a deadline by which the Army was required to provide security transportation.” “The board also said that the amount KBR paid the subcontractor was unreasonable,” and KBR has appealed the decision to the Federal Circuit. In response to the appeal, “the Army said it shouldn’t be held liable for additional expenses KBR paid a subcontractor to install live-in trailers for troops at U.S. military bases in Iraq.”