Last week we hosted an online symposium, “Year in Review–The Federal Circuit in 2020,” reviewing important opinions of the Federal Circuit from 2020. Seven authors published six blog posts addressing various cases within the Federal Circuit’s exclusive jurisdiction: trade, patent, Tucker Act, federal employment, and veterans law cases. Here, we wrap up our online symposium by linking to and highlighting the focus of each contribution.
In the first contribution to our Year In Review, Devin S. Sikes analyzed the Federal Circuit’s en banc decision in 2020 addressing trade law, Sunpreme Inc. v. United States. According to Sikes, the decision “stands head-and-shoulders above the rest in terms of its importance and potential impact.”
In its opinion, the court held that the U.S. Department of Commerce has the authority to preliminarily suspend liquidation of goods based on an ambiguous antidumping or countervailing duty order, such that the suspension may be continued following a scope inquiry.
Sikes contended that, while the Sunpreme case may seem to have broad implications, the case “may in fact have limited application.” Sikes, however, did identify one lingering question: Does “Customs get to decide in the first instance whether the scope of an order contains an ambiguity?”
The second contribution to the symposium focused on the Federal Circuit’s patent law decisions in 2020. Kristen Osenga covered cases concerning patent-eligible subject matter, jurisdiction and venue, standard essential patents, Patent Trial and Appeal Board (PTAB) practices, and the Appointments Clause.
For patent-eligible subject matter, Osenga highlighted Illumina, Inc. v. Ariosa Diagnostics, Inc. In that case, the Federal Circuit “provided some direction towards eligibility in the medical and biotech fields.” Osenga also points out that, in In re Rudy, the court “reminded everyone that it was not bound by Patent Office guidance” regarding eligibility.
Regarding jurisdiction and venue, Osenga selected the In re Google and Valeant Pharmaceuticals v. Mylan Pharmaceuticals cases. In the former, the court granted a petition for writ of mandamus in the context of venue. In the latter, the Federal Circuit clarified jurisdiction in Hatch-Waxman cases.
Osenga also highlighted Godo Kaisha IP Bridge 1 v. TCL Communication Technology Holding, which concerns standard essential patents. In that case, the Federal Circuit “clarified that whether a patent is essential to a standard is a question of fact for a jury, rather than a question of claim construction for the judge.”
Osenga also highlighted multiple cases concerning PTAB practices, as well as the Arthrex case concerning the Appointments Clause and PTAB judges, which garnered a large amount of attention last year.
In our third Year In Review blog post, Mark Lemley and Tyler Robbins provide a summary of four of the patent cases decided by the Federal Circuit in 2020 that they deemed most significant. The cases address assignor estoppel, transfer, venue, and the application of the Appointments Clause to administrative patent judges.
They, for example, highlight Hologic, Inc. v. Minerva Surgical, Inc., in which the Federal Circuit held that “assignor estoppel does not prevent an alleged infringer from challenging the validity of patent claims in inter partes review but may nonetheless preclude validity challenges in parallel court proceedings.” As they noted, the Supreme court has granted certiorari in this case, and a decision is expected in 2021.
Regarding venue and transfer, Lemley and Robins highlighted two cases originating from Texas district courts. In In re Google LLC–which originated from the Eastern District of Texas–the “Federal Circuit held the venue was not appropriate because a ‘place of business’ generally requires an employee or agent be conducting business there.” And in In re Adobe Inc.–coming from the Western District of Texas–the Federal Circuit granted a petition for writ of mandamus to direct the district court to grant a motion to transfer because it “had abused its discretion by improperly weighing the factors for transfer.”
Lastly, the authors covered Arthrex, where the Federal Circuit held that the appointment of Administrative Patent Judges by the Secretary of Commerce violates the Appointments Clause of the U.S. Constitution.
The Federal Circuit’s 2020 Rulings Reviewing Decisions of the Court of Federal Claims in Tucker Act Cases
In our fourth blog post, Gregory C. Sisk discussed various Court of Federal Claims/Tucker Act decisions by the Federal Circuit in 2020.
Sisk first explored money-mandating claims under the Tucker Act in Sanford Health Plan v. United States. In that case, the court held that the “payment mandate [in the Affordable Care Act] not only was plainly stated, but comfortably falls into the distinct category of Tucker Act claims that compensate for a past loss, as contrasted with attempts to enjoin a future lost opportunity (which is beyond the remedial authority of the Court of Federal Claims).”
He also analyzed Boeing Company v. United States, which falls in the “illegal exaction” category of claims against the federal government. This exception to the “money-mandating” requirement of the Tucker Act provides that “[i]f the government illegally exacted payments, the claimant automatically had a Tucker Act remedy for the return of the money, whether or not the statute that precluded the government’s taking of the money could be read as mandating compensation for the wrong.”
Third, Sisk examines a case regarding the Indian Tucker Act. In Inter-Tribal Council of Arizona, Inc. v. United States, the court held that “the pertinent land-exchange statute established a specific fiduciary duty between the United States and Indian tribes.”
Lastly, Sisk reviewed the Taylor v. United States case where the Federal Circuit held “that a claimant may pursue a taking claim under the Tucker Act, even if the governmental conduct could alternatively have been framed as a tort.”
A Review of the Most Significant Federal Circuit Decisions in 2020 Related to the Merit Systems Protection Board
In our fifth contribution, James M. Eisenmann reviewed a series of precedential decisions in 2020 (and early 2021) pertaining to the Merit System Protection Board (MSPB).
Eisenmann focused on Sayers and Harrington, in which the Federal Circuit tackled the issue of “whether the MSPB had the authority to consider the reasonableness of the penalty imposed by the Secretary notwithstanding the [Civil Service Reform] Act’s prohibition on mitigation by MSPB.” Eisenmann explained that the Federal Circuit held that the MSPB “may review the reasonableness of imposed penalties and that Veterans Affairs (VA) may not use 38 U.S.C. § 714 to remove employees for conduct or performance that occurred prior to the enactment of the Act.”
Eisenmann pointed out that these two opinions left some ambiguity regarding the MSPB’s authority. He highlighted, however, that a more recent case, Brenner, resolves the ambiguity. That case requires that if the “MSPB finds the VA’s penalty to not be supported by substantial evidence, the VA will need mitigate its own penalty.”
In our final contribution, Blair E. Thompson reviewed the Federal Circuit’s most important veterans law decisions from 2020. She looked at cases regarding “pro-claimant” policies and rules governing the Department of Veterans Affairs.
Thompson first highlighted two cases regarding delay in VA adjudication. In Mote v. Wilkie, she explained, the Federal Circuit found that “the Veterans Court’s failure to apply the standard outlined in Telecommunications Research & Action Center v. FCC (‘TRAC‘) before dismissing a petition for a writ of mandamus alleging unreasonable delay by VA constituted legal error.” In Monk v. Wilkie, the Federal Circuit declined to impose on the Board of Veterans a one-year deadline by which to issue decisions for a class of veterans who had been waiting over one year for decisions from the Board since time they filed their Notices of Disagreement.
Thompson also selected Sellers v. Wilkie, which concerns the scope of veterans claims. In that case, the court held that a veteran’s formal claim for disability compensation “is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality.”
She also covered a series of three cases that impact effective dates in veterans’ disability claims; she highlighted National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs (“NOVA”), which clarified the Federal Circuit’s judicial review of agency manual provisions; and, lastly, she reviewed Garvey v. Wilkie, where the “Federal Circuit upheld VA’s interpretation of a veteran’s discharge due to ‘willful and persistent misconduct’ as one that is ‘issued under dishonorable conditions’ and, therefore, a bar to VA benefits under 38 C.F.R. § 3.12(d)(4).”
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Thanks to all of our guest bloggers for their insights into the most important decisions of the Federal Circuit in 2020.