This morning the Federal Circuit issued two precedential opinions, one reviewing a decision of the Merit Systems Protection Board and the other reviewing a decision of the Court of International Trade; two nonprecedential opinions, one reviewing another decision of the Merit Systems Protection Board and the other in a patent case; a nonprecedential order in Oracle America, Inc. v. Oracle LLC, on remand from the Supreme Court; and two Rule 36 summary affirmances. Here are the introductions to the opinions, text from the order, and a list of the summary affirmances.

Jerry Edward Beck v. Department of the Navy (Precedential)

This appeal marks the decade-long journey of a hardworking man who served his country honorably, only to face workplace discrimination on the basis of that service.

Jerry Edward Beck challenges a decision of the Merit Systems Protection Board denying corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994. The Board determined that Beck’s prior military service was a motivating or substantial factor in the United States Department of the Navy’s decision not to select him for an employment position. The Board, however, found that the Navy had permissibly preselected the successful applicant and, thus, met its evidentiary burden to establish that it would have hired her regardless of Beck’s military service.

In view of the totality of this record, we conclude that the Navy’s preselection determination is not supported by substantial evidence. We further hold that under the Uniformed Services Employment and Reemployment Rights Act of 1994, preselection can buttress an agency’s personnel decision to hire a less qualified candidate, but only when the preselection is not tainted by an unlawful discriminatory intent. Because we hold that the Board erred in finding that Beck’s nonselection would have occurred regardless of his prior military service as required under 38 U.S.C. § 4311(c)(1), we affirm in part and reverse in part the Board’s decision denying Beck’s request for corrective action.

TARANTO, Circuit Judge, concurring in part and in the judgment.

I join the opinion through Section A of the Discussion, and I concur in the judgment.

I agree with affirmance of the Merit Systems Protection Board’s finding at the first step of the analysis re- quired by Sheehan v. Department of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001): Substantial evidence supports the finding that Mr. Beck showed that his performance of his military service was a motivating factor in the Navy’s decision not to select him for the position at issue in 2011, and Mr. Beck’s showing comes within the coverage of 38 U.S.C. § 4311. I agree, as well, with reversal of the Board’s finding, at the second step of the Sheehan analysis, that the Navy carried its burden to show that it would have taken the same action in the absence of the motivating factor found at Sheehan’s first step. I agree, therefore, with re- versal of the Board’s rejection of Mr. Beck’s claim for corrective action, which the Board must provide when this matter returns to the Board.

I respectfully depart from the majority in one respect. I would decide no more, under the second step of Sheehan, than that the Navy failed to support its assertion that it had legitimate reasons for not choosing Mr. Beck for the position in May 2011. The assertion of legitimate reasons was the only basis on which the Navy sought to meet its Sheehan burden. Although the Navy addressed “preselection” in response to our request for supplemental briefing about the topic, the Navy did not, before the Board or in its brief as appellee, present any meaningful argument that it met its Sheehan burden on any ground other than that it had legitimate reasons, in a comparative-qualifications judgment, for selecting Ms. Wible over Mr. Beck. In its brief as appellee, the Navy, in its very short discussion of “preselection,” asserted only that the Board did not rely on preselection, that no preselection occurred because the Navy had legitimate reasons for choosing Ms. Wible, and that there was “no finding of intent here,” i.e., an intent to give “an unauthorized preference.” Navy Response Br. at 23 (internal quotation marks omitted); id. at 22–23. The Navy presented no argument that it should prevail at the second step of Sheehan based on “preselection” even if the evidence did not support its assertion that it had legitimate reasons for choosing Ms. Wible. In this circumstance, the conclusion that the evidence does not support the Navy’s assertion of legitimate reasons suffices for reversal, and I would not address questions about preselection in this case.

Uttam Galva Steels Limited v. United States (Precedential)

This appeal arises out of an antidumping duty investigation by the United States Department of Commerce concerning certain corrosion-resistant steel products from India. Following two remands, the United States Court of International Trade (Trade Court) sustained Commerce’s determination that granted Uttam Galva Steels Ltd. a duty drawback adjustment under 19 U.S.C. §1677a(c)(1)(B) that resulted in no dumping margin. Defendants-Appellants ArcelorMittal USA LLC, Steel Dynamics, Inc., United States Steel Corp., and Nucor Corp. appeal, challenging the propriety of the Trade Court’s first remand to Commerce and arguing that Commerce’s original determination should be reinstated. We affirm.

Jocelyn Lisa Doyle v. Department of Veterans Affairs (Nonprecedential) 

Ms. Jocelyn Doyle appeals a decision from the Merit Systems Protection Board that affirmed the Department of Veterans Affairs’s denial of her request for corrective action connection with her whistleblower complaint. The Board determined that although Ms. Doyle had made whistleblower protected disclosures and that the agency had at least a slight motive to retaliate against her, the Department of Veteran Affairs established that it would have taken the same action in the absence of those protected dis- closures. Because the Board erred in that determination, we reverse.

Wastow Enterprises, LLC, v. Truckmovers.com, Inc. (Nonprecedential)

Wastow Enterprises, LLC, which owns U.S. Patent No. 8,613,583, sued TruckMovers.com, Inc., Dealer’s Choice Truckaway System, Inc., d/b/a Truckmovers (collectively, Truckmovers), alleging that Truckmovers was infringing claims 1–15 of the ’583 patent by making, using, selling, or offering to sell its Z-Wing towing system. The district court held that the ’583 patent’s claims must be construed to be limited to a universal folding boom trailer, and the parties then stipulated to noninfringement. We agree with the district court’s claim construction and therefore affirm the judgment.

Oracle America, Inc. v. Google LLC (Nonprecedential Order)

Upon consideration of the judgment of the Supreme Court of the United States in Google LLC v. Oracle America, Inc., No. 18-956, reversing and remanding to this court for further proceedings consistent with the opinion of the Supreme Court,


  1. The mandate of this court issued on September 4, 2018 is recalled solely with respect to fair use.
  2. Appeal No. 2017-1118 is reinstated.
  3. This court’s March 27, 2018 judgment on the question of fair use is vacated.
  4. The district court’s final judgment in favor of Google is affirmed.
  5. No costs.

Rule 36 Judgments