This morning the Federal Circuit issued a precedential opinion addressing jurisdiction in an appeal from the Merit Systems Protection Board; a precedential order denying a petition for panel and en banc rehearing in an appeal from the Trademark Trial and Appeal Board over a dissent by Judge Wallach; and a nonprecedential erratum correcting a typographical error in an opinion issued in trade case yesterday. Here is the introductions to the opinions and text from the erratum.
This is a case about jurisdiction. Maria Esparraguera was removed for performance reasons from her senior executive position as the top labor lawyer at the Department of the Army (“Army”) and placed instead into another highlevel position at the same agency but outside the Senior Executive Service (“SES”). On appeal, Ms. Esparraguera effectively seeks to obtain review of the Army’s removal decision and insists that she was deprived of constitutionally protected property and liberty interests without due process. By statute, Ms. Esparraguera cannot avail herself of the ordinary appellate provisions of the Merit Systems Protection Board (“Board”) for this kind of removal. But she petitions for review of a Board order made under 5 U.S.C. § 3592(a), a narrow provision permitting a career senior executive removed for performance reasons to instead “appear and present arguments” at an “informal hearing.” The resulting order, however, simply forwarded Ms. Esparraguera’s evidence and arguments to her employer, the Army, for consideration—as well as to the United States Office of Special Counsel (“OSC”) and Office of Personnel Management (“OPM”). For the reasons below, the appealed order—styled an “Order Referring Record”—is not a “final order or decision” of the Board, as required for our appellate jurisdiction over her removal. And because we lack jurisdiction, we must dismiss this appeal.
Appellee Naked TM, LLC filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by Appellant Australian Therapeutic Supplies Pty. Ltd. A motion for leave to file an amicus brief was filed by Lee Thomason and granted by the court. The petition for rehearing, response, and amicus brief were first referred to the panel that heard the appeal, and thereafter, to the circuit judges who are in regular active service. A poll was requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
The mandate of the court will issue on December 11, 2020.
Wallach, Circuit Judge, dissenting from denial of a petition for rehearing en banc.
I write to express my disagreement with the merits of the decision in Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC (Australian III), 965 F.3d 1370 (Fed. Cir. 2020), and to note a potential point of confusion in our case law going forward. Statutory standing is a question of “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). A cause of action “extends only to plaintiffs whose interests fall within the zone of interests protected by the law invoked.” Id. at 129 (internal quotation marks and citation omitted). Australian III concerns how broad the “zone of interests” is for 15 U.S.C. § 1064—specifically, whether a prior settlement agreement may preclude a petitioner from establishing a valid cause of action. Compare Australian III, 965 F.3d at 1374–76 (concluding that a petitioner had a valid cause of action because “proprietary rights” are not required), with Australian III, 965 F.3d at 1376–81 (Wallach, J. dissenting) (concluding that a petitioner did not have a valid cause of action because it was precluded by a prior settlement agreement). See 15 U.S.C. § 1064 (providing for cancellation of registration of a trademark).
Australian III: (1) conflicts with our case law requiring a “legitimate commercial interest” to have a valid cause of action under 15 U.S.C. § 1064, see Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1274 (Fed. Cir. 2014) (following Lexmark, noting that a petitioner must have a “legitimate commercial interest sufficient to confer standing”); (2) undermines our case law favoring the enforcement of settlement agreements, see Wells Cargo, Inc. v. Wells Cargo, Inc., 606 F.2d 961, 965 (C.C.P.A. 1979) (“If there [is] a policy favoring challenges to trademark validity, it too has been viewed as outweighed by the policy favoring settlements.”); and (3) raises questions as to the impact of Supreme Court precedent on our statutory standing jurisprudence, see Lexmark, 572 U.S. at 128 n.4 (noting that statutory standing does not implicate Article III subject matter jurisdiction), 134 (providing “a direct application of the zone-of-interests test and the proximate-cause requirement [to] suppl[y] the relevant limits on who may sue”). Accordingly, I respectfully dissent from our denial of rehearing en banc. See FED. R. APP. P. 35(a)(1)–(2).
Please make the following change:
On page 2, line 19, “Defendant Dillinger” is changed to “Plaintiff Dillinger”