This morning the Federal Circuit released two precedential opinions. The first comes in a veterans case appealed from the Court of Appeals for Veterans Claims; the second comes in a case appealed from the Western District of Wisconsin and reverses a contempt finding based on an alleged violation of protective order. Notably, in the second case, Judge Reyna filed a dissent. The Federal Circuit also released a precedential order sua sponte granting en banc consideration to a case appealed from the Court of Federal Claims. The Federal Circuit released a nonprecedential opinion in a trade case appealed from the Court of International Trade and three nonprecedential orders denying petitions for a writ of mandamus, denying a petition for a writ of control, and granting a motion for a summary affirmance. Here are the introductions to the opinions and text from the orders.
Bowling v. McDonough (Precedential)
Appellants Charlotte Bowling (substituting as the claimant for her deceased spouse, Charles Bowling) and Kevin Appling argued to the Court of Appeals for Veterans Claims (Veterans Court) that it should declare a longstanding regulation of the Department of Veterans Affairs (VA) to be vague on its face, in violation of the Due Process Clause of the Fifth Amendment. The Veterans Court rejected the argument. We affirm.
Static Media LLC v. Leader Accessories LLC (Precedential)
Leader Accessories LLC appeals a decision of the District Court for the Western District of Wisconsin. The district court held Leader and its attorney, Jen-Feng Lee, in contempt for allegedly violating a protective order by disclosing confidential documents and awarded Static Media LLC sanctions and attorney’s fees. We hold that the disclosure was not a clear violation of the protective order and accordingly reverse the district court’s contempt finding and its award of sanctions and attorney’s fees.
REYNA, Circuit Judge, dissenting.
I respectfully dissent.
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Here, Appellant alleges that its disclosure was for the purpose of facilitating a “more effective joint defense consultation and discussion.” J.A. 98. In other words, Appellant and the nonparty shared and discussed Appellee’s confidential information to formulate a joint defense strategy that would be used in both cases, not solely this action. Even if Appellant believed that the disclosed information, and the joint defense strategy formulated based on that confidential disclosure, would be used only for the purposes of this litigation, that belief was unreasonable and, in my view, was a violation of the protective order. More specifically, on this record, it would be unreasonable for Appellant to believe that Appellant could make the disclosure and that the nonparty would not use that information, or the joint defense strategy formulated based on the disclosed confidential information, in the second litigation. Indeed, in my view, Appellant was in violation of the protective order independently of whether the information was eventually used in the second litigation. Accordingly, on this record, I would conclude that the district court did not abuse its discretion in determining that Appellant violated the protective order.
Adams v. United States (Precedential Order)
This case was argued before a panel of three judges on October 6, 2021. Thereafter, a sua sponte request for a poll on whether to hear this case en banc was made. A poll was conducted, and a majority of the judges in regular active service voted for en banc consideration.
IT IS ORDERED THAT:
(1) This case will be heard en banc under 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 35(a). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified.
(2) The parties are requested to file supplemental briefs to address the following issues:
A. How should the term “unusual” be understood in the context of establishing “pay differentials” and “proper differentials” under 5 U.S.C. §§ 5343(c)(4), 5545(d)?
B. In view of Adair v. United States, 497 F.3d 1244 (Fed. Cir. 2007), 5 C.F.R. § 550.902 (HDP Regulation), and Appendix A of 5 C.F.R. Pt. 550, Subpt. I (HDP Schedule), what is the meaning of “accident?” What distinction, if any, is there between accidental exposure and incidental exposure?
C. If we hold that the HDP Schedule and 5 C.F.R. Pt. 532, Subpt. E, Appx. A (EDP Schedule) are not limited to laboratory-specific duties, what limits, if any, are there to the “work with or in close proximity to” language in the HDP and EDP Schedules?
D. Are infected persons and surfaces “primary containers of organisms pathogenic for man,” as recited in the EDP Schedule for distinguishing between high- and low-degree hazards? See EDP Schedule, at Microorganisms (emphasis added).
E. If we conclude that the Court of Federal Claims properly granted dismissal, to what extent could the underlying complaint be amended to establish a plausible claim for relief that satisfies the “short and plain statement” standard of RCFC 8?
(3) Appellants’ en banc opening brief is due 60 days from the date of this order. Appellee’s en banc response brief is due within 45 days of service of Appellants’ en banc opening brief, and Appellants’ reply brief within 30 days of service of the response brief. The court requires 28 paper copies of all briefs and appendices provided by the filer within 5 business days from the date of electronic filing of the document. The parties’ briefs must comply with Fed. Cir. R. 32(b)(1).
(4) The court invites the views of amici curiae. Any amicus brief may be filed without consent and leave of court. Any amicus brief supporting Appellants’ position or supporting neither position must be filed within 14 days after service of Appellants’ en banc opening brief. Any amicus brief supporting the Appellee’s position must be filed within 14 days after service of the Appellee’s en banc response brief. Amicus briefs must comply with Fed. Cir. R. 29(b).
(5) This case will be heard en banc based on all of the briefing and oral argument.
(6) Oral argument will be scheduled at a time and date to be announced later.
Prime Time Commerce, LLC v. United States (Nonprecedential)
Prime Time Commerce, LLC (“Prime Time”), a U.S. importer of cased pencils, appeals from the final judgment of the U.S. Court of International Trade (“Trade Court”) sustaining the United States Department of Commerce’s (“Commerce”) application of the China-wide antidumping duty rate to Prime Time, rather than calculating an importer-specific rate. Prime Time Com. LLC v. United States, 495 F. Supp. 3d 1308, 1317–18 (Ct. Int’l Trade 2021) (“Prime Time II”). The Trade Court also held that Prime Time was barred from making arguments for which it failed to exhaust its administrative remedies by not commenting on Commerce’s remand redetermination. Id. at 1316. For the reasons below, we affirm.
In re ZTE Corp. (Nonprecedential Order)
In these patent infringement cases, the district court entered an order granting a motion by the plaintiff WSOU Investments LLC d/b/a Brazos Licensing and Development (“Brazos”) for alternative service. ZTE Corporation (“ZTE”), the foreign defendant in these actions, now petitions this court for a writ of mandamus reversing the district court’s order and directing dismissal. Brazos opposes.
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IT IS ORDERED THAT:
The petitions are denied.
In re Francis (Nonprecedential Order)
Addisa Jahrusalem Francis petitions this court for “a writ of control to compel mandate in accordance with the judgment” of this court in Francis v. United States, Appeal No. 2022-1188. She also submits motions for “entry of default judgment” and an “order of supersedeas bond.”
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IT IS ORDERED THAT:
(1) The petition is denied.
(2) All pending motions are denied.
Jump Rope Systems, LLC v. Coulter Ventures, LLC (Nonprecedential Order)
The appellant Jump Rope Systems, LLC moves unopposed for summary affirmance of the district court’s judgment, conceding that, under existing caselaw, the outcome is controlled by this court’s earlier decision in Jump Rope Systems, LLC v. Coulter Ventures, LLC, Nos. 20-2284, 2020-2285, 2021 WL 4592276 (Fed. Cir. 2021) (affirming the Patent Trial and Appeal Board’s unpatentability determination for all asserted claims).
IT IS ORDERED THAT:
(1) The motion for summary affirmance is granted.
(2) Each side shall bear its own costs.