This morning, the Federal Circuit released two precedential opinions, one nonprecedential opinion, and three nonprecedential orders. In the precedential opinions, the court respectively vacated and remanded a judgment in a government contract case and reversed and affirmed in part in a patent case. Notably, Judge Newman dissented in the government contract case. In the nonprecedential opinion, the court affirmed a judgment of the Court of Federal Claims in a pro se case. In the nonprecedential orders, the Federal Circuit dismissed appeals. Here are the introductions to the opinions and text from the orders.

Department of Transportation v. Eagle Peak Rock & Paving, Inc. (Precedential)

In May 2016, the Department of Transportation’s Federal Highway Administration (FHWA) entered into a contract with Eagle Peak Rock & Paving, Inc., under which Eagle Peak would do specified construction work in Yellowstone National Park, with the work to be completed by October 5, 2018. The contract required Eagle Peak to submit to FHWA a schedule detailing how it would complete the project on time. But by late January 2017, FHWA (acting through either its contracting officer or project engineer) had rejected all eight formal schedule submissions by Eagle Peak as not complying with the contract’s requirements, and in early February 2017, the contracting officer terminated the contract for default, concluding that Eagle Peak was insufficiently likely to complete the project on time.

Eagle Peak challenged the termination for default under the Contract Disputes Act of 1978 (CDA), Pub. L. No. 95-563, 92 Stat. 2383, codified as amended at 41 U.S.C. §§ 7101–7109, choosing to proceed before the Civilian Board of Contract Appeals under 41 U.S.C. §§ 7104(a) and 7105(b). The Board ruled that the termination for default was improper and converted the termination to one for the convenience of the government. It relied heavily, though not exclusively, on its view of deficiencies in the contracting officer’s reasoning, rather than on de novo findings about what the record developed in the Board proceeding showed about whether the standard for a termination for default was met. Eagle Peak Rock & Paving, Inc. v. Department of Transportation, CBCA 5692, 21-1 BCA ¶ 37752, 2020 WL 7409948 (Dec. 7, 2020). We now vacate the Board’s judgment and remand for the Board to adjudicate the case de novo on the record before it.

NEWMAN, Circuit Judge, dissenting.

The Civilian Board of Contract Appeals (CBCA or “Board”) determined that the United States Department of Transportation, Federal Highway Administration (FHWA or “agency”) improperly terminated a contract with Eagle Peak Rock & Paving, Inc. on the ground of default. The asserted default was based on the contracting officer’s finding that Eagle Peak made inadequate progress during the first year of this three-year contract. The Board converted the termination for default into a termination for convenience of the government under 48 C.F.R. § 52.212-4(l).

The Board’s decision was reached after an evidentiary hearing with witnesses for both sides and briefing, argument, and explanation. The Board’s decision is supported by substantial evidence and is in accordance with law. Nonetheless, the panel majority declines to complete our appellate review, and returns the case to the Board for redetermination of the same issue on the same record – to the delay, burden, and cost of both sides. I respectfully dissent.

Yita LLC v. Macneil IP LLC (Precedential)

MacNeil IP LLC is the assignee of two U.S. patents, Nos. 8,382,186 and 8,833,834, that were the subject of decisions by the Patent Trial and Appeal Board in inter partes reviews (IPRs) of challenges to all claims of the patents on obviousness grounds presented in petitions filed by Yita LLC. In IPR 2020-01139, the Board rejected Yita’s challenge to all claims (1–7) of the ’186 patent, concluding that—although a relevant artisan would have been motivated to combine, and had a reasonable expectation of success in combining, the teachings of the asserted prior-art references to arrive at each challenged claim—“[MacNeil’s] evidence of secondary considerations [was] compelling and indicative of non-obviousness.” J.A. 81. Yita appeals that ruling. In IPR 2020-01142, the Board, while agreeing with Yita’s challenge to claims 13–15 of the ’834 patent (a ruling that MacNeil does not appeal), rejected Yita’s challenge to claims 1–12. Yita appeals that ruling. For the reasons below, we reverse the Board’s judgment in the ’1139 IPR and affirm its judgment in the ’1142 IPR.

May v. United States (Nonprecedential)

Samuel May brought the present action against the United States in the U.S. Court of Federal Claims (Claims Court) in June 2021. Central to this action is Mr. May’s allegation that his unsuccessful 2010 lawsuit in federal district court against his former employer Amgen, Inc.— which Mr. May brought on behalf of the United States under the False Claims Act—alerted the United States to alleged misconduct by Amgen and thereby helped the United States secure a settlement with Amgen in December 2012, under which Amgen paid the government more than half a billion dollars. In the present action, Mr. May seeks a share of the settlement amount, asserting constitutional, contract, tort, and 42 U.S.C. § 1983 claims against the United States. The Claims Court dismissed the action for lack of subject-matter jurisdiction. We affirm, concluding that Mr. May’s takings and contract claims are time-barred by 28 U.S.C. § 2501 and that his remaining claims are outside the Claims Court’s jurisdiction for substantive reasons to the extent that they are not time-barred.

Beaudoin v. McDonough (Nonprecedential Order)

Upon consideration of Louis J. Duigou and the Secretary of Veterans Affairs’s stipulation to dismiss Appeal No. 2022-2214 under Rule 42(b) of the Federal Rules of Appellate Procedure, which the court construes as a joint motion to dismiss,


(1) The motion is granted. Appeal No. 2022-2214 is dismissed. The caption for the remaining three consolidated appeals is reflected above.

(2) Each side to bear its own costs as to Appeal No. 2022-2214.

(3) The Clerk of Court shall forward a copy of this order to the merits panel assigned to this case.

A.M. v. United States (Nonprecedential Order)

The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is

ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

Markham v. Merit Systems Protection Board (Nonprecedential Order)

Upon consideration of John Markham’s unopposed motion to dismiss this petition for review, ECF No. 3, and the Merit Systems Protection Board’s response at ECF No. 8,


(1) The motion is granted. The appeal is dismissed.

(2) The parties shall bear their own costs.