This morning the Federal Circuit released a nonprecedential opinion in a patent case appealed from the Patent Trial and Appeal Board. Late yesterday and this morning, the Federal Circuit also released two nonprecedential orders. One dismisses an appeal, and one transfers an appeal to the Western District of New York. Here is the introduction to the opinion, text from the order, and a link to the dismissal.
AMP Plus, Inc. v. DMF, Inc. (Nonprecedential)
Appellant AMP Plus, Inc., d/b/a ELCO Lighting (“ELCO”) petitioned for inter partes review (“IPR”) of U.S. Patent No. 9,964,266 (“the ’266 patent”), which is owned by appellee DMF, Inc. In its Final Written Decision, the Patent Trial and Appeal Board determined that a number of the challenged claims of the ’266 patent were not unpatentable, but that claim 17 was unpatentable. Both parties appealed the Board’s decision. We affirm in part, vacate in part, and remand.
Cordaro v. Department of Defense (Nonprecedential Order)
Michael Cordaro petitions for review of a decision of the Merit Systems Protection Board and moves for leave to proceed in forma pauperis. We determine that this matter should be transferred to the United States District Court for the Western District of New York.
Mr. Cordaro’s mixed case (involving an alleged adverse personnel action appealable to the Board based, at least in part, on a claim of discrimination) has been before this court once before. Previously, Mr. Cordaro filed petitions for review from the same initial decision to the Board and this court. We transferred the case to the Western District of New York. Cordaro v. Dep’t of Def., No. 2019-2073 (Fed. Cir. Aug. 16, 2019).* That court entered judgment against Mr. Cordaro, and he has an appeal pending before the United States Court of Appeals for the Second Circuit.
On August 25, 2022, the Board denied Mr. Cordaro’s petition as barred on res judicata grounds in light of the district court’s judgment. Mr. Cordaro now petitions this court for review of the Board’s final decision. Mr. Cordaro’s filings before this court indicate that he wishes to continue to pursue his discrimination claim. See ECF No. 3; ECF No. 4.
As we previously explained, only federal district courts have jurisdiction to review a mixed case. See Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1985 (2017); Williams v. Dep’t of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en banc); 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.151. We therefore transfer this matter under 28 U.S.C. § 1631 to the Western District of New York.
Accordingly,
IT IS ORDERED THAT:
Pursuant to 28 U.S.C. § 1631, this matter and all transmittals are transferred to the United States District Court for the Western District of New York.