This morning the Federal Circuit issued two precedential opinions addressing an award of attorneys’ fees in a patent case and an appeal from an arbitrator’s decision in an employment case. The court also issued a nonprecedential order denying a petition for a writ of mandamus on the issue of forum non conveniens in a patent case. Here are the introductions to the opinions and text from the order.

Hitkansut LLC v. United States (Precedential)

The United States appeals from a decision of the United States Court of Federal Claims (“Claims Court”) awarding attorneys’ fees and costs to Hitkansut LLC and Acceledyne Technologies, Ltd., LLC (collectively, “Hitkansut”) under 28 U.S.C. § 1498(a). Section 1498(a) provides for the award of attorneys’ fees when certain conditions are met, unless “the court finds that the position of the United States was substantially justified.” We agree with the United States that “the position of the United States” as used in this statutory provision refers to positions taken by the United States during litigation and does not encompass pre-litigation conduct by government actors. The Claims Court erred to the extent it interpreted “the position of the United States” to include pre-litigation conduct. However, because the examples of conduct cited by the Claims Court demonstrate that the position of the United States was not substantially justified even under this narrower definition, we affirm the award of fees.

Buffkin v. Department of Defense (Precedential)

Jimmiekaye Buffkin appeals from an arbitrator’s decision dismissing her grievance against her employer, the Department of Defense (“agency” or “government”). The arbitrator concluded that Ms. Buffkin’s request for arbitration was untimely under the collective bargaining agreement (“agreement”) between Ms. Buffkin’s union and the agency. We hold that the arbitrator erred in concluding that the request for arbitration was filed too late under the terms of the agreement. However, we also conclude that the request was filed prematurely. We accordingly vacate and remand with instructions to address whether the union’s premature request for arbitration ripened into a timely request.

In re Fortinet, Inc. (Nonprecedential Order)

Fortinet, Inc. petitions for a writ of mandamus vacating the United States District Court for the District of Delaware’s order denying Fortinet’s motion to dismiss and remanding for reconsideration. Fortinet also moves to stay the underlying proceedings pending its petition to this court for a writ of mandamus. British Telecommunications plc and BT Americas, Inc. (collectively, “BT”) oppose the petition and the motion. Fortinet replies.

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Even with some regional circuits calling into question the need to assess the availability of the alternative forum in a forum non conveniens analysis when there exists an applicable, mandatory, valid and enforceable forum-selection clause, with other courts, including the regional circuit in which this case arose, seemingly going the other way, it simply is not indisputably clear that Fortinet has established a right to dismissal under the doctrine of forum non conveniens. Given the additional questions surrounding the applicability of the forum selection clause here, we must conclude that mandamus relief is inappropriate.