This morning, the Federal Circuit issued a precedential opinion in a case appealed from the Merit Systems Protection Board, a precedential opinion in a case appealed from the Armed Services Board of Contract Appeals, and a precedential opinion in a veterans case. The Federal Circuit also issued two nonprecedential opinions in a veterans case and a patent case. Here are the introductions to the opinions.

Braun v. Department of Health and Human Services (Precedential)

Dr. Allen Braun worked at the National Institutes of Health (NIH) for almost 32 years as a research doctor with a specialty in neurological disorders, and he had tenured status since 2003. In 2016, the NIH, which is located within the U.S. Department of Health and Human Services, removed Dr. Braun from his position after an audit revealed that his records were incomplete for all but 9% of the human subjects who had participated in his research over the course of six years. Dr. Braun challenged that decision before the Merit Systems Protection Board (Board), arguing that an NIH policy required de-tenuring of tenured scientists (which NIH had not done in his case) before they could be removed for performance-related reasons and that the NIH committed certain other errors. The Board ruled that Dr. Braun’s removal was proper under a provision of the cited NIH policy that allows removal “for cause” without de-tenuring, and it also rejected Dr. Braun’s other challenges. Braun v. Dep’t of Health & Human Servs., No. DC0752-16-0743-I-2, 2019 WL 1047556 (M.S.P.B. Feb. 28, 2019). We affirm.

NEWMAN, Circuit Judge, dissenting.

The National Institutes of Health (“NIH”), a division of the Department of Health and Human Services (“HHS”), has a “tenure” system for its research scientists, governed by a complex of rules and procedures including, as relevant here, the “NIH Policy on Performance Management, Disciplinary Actions and Administrative Removals for Title 42 Employees” (“Policy Manual”) and the Performance Management Appraisal Program Handbook (“PMAP Handbook”). PMAP Handbook, https://hr.nih.gov/sites/default/files/public/documents/workforce/performance-management/pdf/hhspmaphandbook.pdf. This appeal concerns the failure and refusal of the NIH to apply these required provisions to the removal of tenured scientist Dr. Allen Braun.

Dr. Braun came to NIH employ in 1984 and was awarded tenure in 2003. He is a medical doctor, board certified in neurology and nuclear medicine. His research at NIH produced over 125 publications, which have been cited in the scientific literature about 14,000 times, and he is described in the record as a world-recognized expert in the neural bases of language, sleep, and motor functions. At the time of his removal from employ at NIH, his position was Chief of the Voice, Speech, and Language Branch; and Senior Investigator, Division of Intramural Research, National Institute of Deafness and Other Communication Disorders (“NIDCD”).

Based on an issue that arose concerning a multi-year study of the effect of trauma on speech and language, of which he was Principal Investigator, he was removed from NIH employ. In effecting this removal, he was not accorded the procedural safeguards for tenured scientists as set
forth in the NIH Policy Manual and PMAP Handbook. This court now affirms the NIH removal procedure, and holds that these provisions need not be applied. Thus the court affirms elimination of critical aspects of the NIH tenure system.

I write in dissent, not only because of the errors and inequities that affect Dr. Braun, but because of the loss to NIH of the benefits of a viable system of tenure.

Boeing Co. v. Secretary of the Air Force (Precedential)

The Boeing Company (“Boeing”) appeals from the final judgment of the Armed Services Board of Contract Appeals (the “Board”). Appeals of Boeing Co., ASBCA Nos. 61387, 61388, 2019 ASBCA LEXIS 87 (Mar. 18, 2019) (“Final Judgment”). The Board entered final judgment after denying Boeing’s motion for summary judgment regarding the legends that Boeing may mark on technical data it delivers to the United States Air Force under certain government contracts. See Appeals of Boeing Co., ASBCA Nos. 61387, 61388, 2018 ASBCA LEXIS 352 (Nov. 28, 2018) (“Summary Judgment Decision”). For the reasons explained below, we reverse the Board’s denial of summary judgment, we vacate the Board’s entry of final judgment, and we remand to the Board for further proceedings consistent with this opinion.

Murphy v. Wilkie (Precedential)

David G. Murphy, a veteran of the United States Army, appeals a decision from the Court of Appeals for Veterans Claims (Veterans Court) denying his claim for disability benefits. Mr. Murphy argues that the Veterans Court erred in determining that the Board of Veterans’ Appeals (Board) lacked jurisdiction over his claim for disability benefits due to his schizophrenia. We affirm.

Tippitt v. Wilkie (Nonprecedential)

Sandra L. Tippitt, the surviving spouse of veteran John M. Richardson, appeals a decision of the United States Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans Appeals’ denial of her claim for service connection. Tippitt v. Wilkie, No. 18-0815, 2019 WL 3923141 (Vet. App. Aug. 20, 2019). For the reasons below, we dismiss-in-part, vacate-in-part, and remand.

Eli Lilly & Co. v. Apotex, Inc. (Nonprecedential)

Apotex, Inc. appeals from the judgment of the district court in a patent-infringement suit brought by Eli Lilly & Company under the Hatch-Waxman Act, 21 U.S.C. § 355. The district court granted Lilly’s motion for summary judgment of infringement, holding that prosecution history estoppel does not bar Lilly from asserting infringement of certain claims of U.S. Patent No. 7,772,209 under the doctrine of equivalents. Because we discern no error in the district court’s decision, we affirm.