This morning the Federal Circuit issued two nonprecedential opinions: one in a patent case and one in a government contract case. The Federal Circuit also issued two separate nonprecedential orders denying petitions for writs of mandamus. Finally, the Federal Circuit issued one Rule 36 judgment. Here are the introductions to the opinions, text from the orders, and a link to the Rule 36 judgment.

In re Devlin (Nonprecedential)

Daniel Joseph Devlin, IV, and Kevin P. Eaton (collectively, Devlin) appeal from a decision of the Patent Trial and Appeal Board affirming an examiner’s rejection of claims 1–4 of U.S. Patent Application No. 15/078,167. For the reasons discussed below, we affirm.

LAX Electronics, Inc. v. United States (Nonprecedential)

LAX Electronics, Inc., doing business as Automatic Connector (Automatic), has long supplied electronic connectors to federal-government contractors and directly to the government. According to Automatic, for many years it had parts listed on the Defense Logistics Agency’s (DLA) Qualified Parts List (QPL), which designates government-approved sources of supply, and it sold its QPL-listed products to contractors and the government in procurements that required QPL listing of the manufacturer. In September 2019, DLA removed Automatic from the QPL for certain electronic connectors—specifically, parts MIL-PRF39012 and MIL-PRF-55339. Because of the removal, Automatic is barred from responding to solicitations from Department of Defense entities for those parts.

Automatic challenged its removal from the QPL by filing suit in the U.S. Court of Federal Claims (Claims Court), invoking the court’s bid-protest jurisdiction under 28 U.S.C. § 1491(b)(1). Automatic’s amended complaint asserted two claims—one for injunctive relief under 5 U.S.C. § 706 for the government’s violation of Department of Defense Manual (DoDM) 4120.24 and one for declaratory relief under 28 U.S.C. § 2201 for the government’s violation of Federal Acquisition Regulation (FAR) § 9.205(a). The government moved to dismiss the claims for lack of jurisdiction.

The Claims Court agreed in part. LAX Electronics, Inc. v. United States, No. 19-1668C, 2019 WL 6880939 (Fed. Cl. Dec. 17, 2019). As to the first claim, the court held that it lacks bid-protest jurisdiction; but rather than dismiss the claim, it transferred the claim to the U.S. District Court for the Eastern District of New York under 28 U.S.C. § 1631. Id. at *3–5. As to the second claim, the Claims Court held that the claim is within the court’s bid-protest jurisdiction, but it dismissed the claim for failure to state a claim on which relief could be granted. Id. at *4. We now vacate the court’s jurisdictional dismissal of the first claim and remand for further proceedings on that claim, and we affirm the merits dismissal of the second claim.

In re Miller (Nonprecedential Order)

Concerning his pending individual right of action appeal before the Merit Systems Protection Board, Robert Michael Miller petitions for a writ of mandamus (1) directing the presiding administrative judge to recuse herself; (2) directing the Board to vacate prior orders from that judge, grant certain discovery requests, and assign a new judge; (3) directing the Board to take action against the Federal Deposit Insurance Corporation, including disqualifying FDIC attorneys, enforcing sanctions against the FDIC, and enjoining the FDIC from taking personnel action against Mr. Miller; (4) granting discovery at the Board regarding its judges; (5) granting judgment on the merits; and (6) issuing “other mandates and prohibitions as this Court deems appropriate.”

In July 2020, Mr. Miller filed this matter with the Board, alleging adverse action following whistleblowing activity. The administrative judge has not yet issued an initial decision, and the case remains pending. The administrative judge has, however, denied Mr. Miller’s motions to recuse herself because of her race, gender, and political affiliation; for reconsideration and certification for interlocutory appeal of that order; for sanctions against the FDIC; and to disqualify FDIC’s counsel, as well as several discovery requests.

* * *

Mr. Miller seeks to challenge several of the administrative judge’s decisions to date and also requests a preliminary injunction, stay, and judgment on the pleadings. However, he generally fails to show why raising the vast majority of his arguments on appeal from final judgment would be inadequate here. See, e.g., Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953) (holding that the cost and inconvenience of trial are generally insufficient to warrant mandamus relief). Though he contends that “[t]he absence of sitting Board members leaves no other remedy,” Pet. at 38, the Board’s lack of quorum does not prevent judicial review of an administrative judge’s initial decision that has become final, see 5 U.S.C. § 7703.

Mr. Miller also contends that an appeal would be inadequate because he seeks depositions now of witnesses who may be unavailable later. These discovery decisions, however, are committed to the Board’s discretion. See Graves v. Dep’t of the Navy, 451 F. App’x 931, 933 (Fed. Cir. 2011) (“We review the Board’s discovery rulings for abuse of discretion.” (citation omitted)). The administrative judge considered Mr. Miller’s arguments and rejected them, and Mr. Miller has not shown a clear and indisputable error in the exercise of that discretion. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (“Where a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is ‘clear and indisputable.’” (citation omitted)).



The petition for writ of mandamus is denied.

In re Ivantis, Inc. (Nonprecedential Order)

Ivantis, Inc. petitions for a writ of mandamus asking this court to vacate the United States District Court for the Central District of California’s order granting an adverse-inference instruction and to bar the district court from issuing any adverse-inference instruction or alternatively to require the district court to defer consideration of any adverse-inference instruction until the end of trial. Glaukos Corporation opposes the petition. Ivantis replies.

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While immediate intervention by way of mandamus may be appropriate in certain exceptional circumstances to review novel important legal issues, see In re Seagate Tech., LLC, 497 F.3d 1360, 1367 (Fed. Cir. 2007) (en banc), abrogated on other grounds by Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923 (2016), we cannot say that such circumstances have been presented here. Ivantis’s petition challenges the assessment that it “acted with the intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e). That assessment was based on the specific sequence of events leading up to the litigation, including: (1) one of the inventors informing Ivantis in 2009 that he was sure the accused product infringed; (2) Ivantis instituting its retention policy the same year it retained patent litigation counsel; (3) Ivantis’s CEO circulating a report in 2017 from an industry analyst who stated the expectation Glaukos would sue for patent infringement in 2018; and (4) Ivantis preparing a petition for inter partes review at least a month before the complaint. We discern no obvious basic, undecided legal issue underlying the district court’s ruling, nor can we say that it was so patently unreasonable as to warrant mandamus. As to Ivantis’s request to order the court to defer any intent ruling until hearing trial testimony, the district court denied that request as procedurally improper under its local rules for not raising it until requesting reconsideration, and the court did not clearly and indisputably err in denying a request that it was not properly asked to consider.



The petition for a writ of mandamus is denied.

Rule 36 Judgment