This morning, the Federal Circuit released one precedential opinion, two nonprecedential opinions, and one nonprecedential order. The precedential opinion addresses an appeal from a judgment of the Patent Trial and Appeal Board—challenging both the Board’s claim construction and asserting that the Board’s decision violates the Administrative Procedure Act. The two nonprecedential opinions address appeals from decisions of the Merit Systems Protection Board, with one opinion sparking a dissent from Judge Reyna. The order grants a voluntary withdrawal of a petition for review. Here are the introductions to the opinions and a link to the order.  

Google LLC v. Ecofactor, Inc. (Precedential)

Appellants Google LLC and ecobee, Inc. (collectively, “Google”) appeal from a Final Written Decision of the United States Patent and Trademark Office’s Patent Trial and Appeal Board, which found the challenged claims of U.S. Patent No. 8,498,753 not unpatentable.  Google challenges the Board’s determination on the basis that the Board made an erroneous claim construction of a limitation in Claim 1.  Google also argues that the Board’s Final Written Decision violates the Administrative Procedure Act because Google had no notice or an opportunity to address the Board’s construction.  We reverse the Board’s claim construction, vacate the Board’s Final Written Decision, and remand. 

Agnew v. United States Postal Service (Nonprecedential)

Gary R. Agnew appeals a decision of the Merit Systems Protection Board (“Board”) denying his petition for enforcement that sought back pay and related benefits from the United States Postal Service (“Postal Service”).  We affirm.

Reed v. Department of Veterans Affairs (Nonprecedential)

Margaret Michelle Reed appeals from a decision of the Merit Systems Protection Board (“the Board”) denying a request for relief in an Individual Right of Action (“IRA”) appeal that asserted agency retaliatory action for alleged whistleblowing activity.  Reed v. Dep’t of Veterans Affs., No. CH-1221-13-1557-B-1, 2023 WL 2213175 (M.S.P.B. Feb. 24, 2023), R.A. 78–92. For the following reasons, we affirm.

REYNA, Circuit Judge, dissenting.

This appeal comes upon a curious path, the facts and history of which are aptly laid out in the majority opinion.  The underlying case has involved several remands by the Board, a remand from this court, and two decisions by the ALJ, all addressing the “foundational question” that the majority declares is “at the heart of [Reed’s] appeal”: “did she engage in the January 12, 2012 altercation as Pardun alleged.”  Maj. Op. 10.  This is a question of fact that we review for substantial evidence.  Welshans v. United States Postal Serv., 550 F.3d 1100, 1102 (Fed. Cir. 2008).  

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Based on the foregoing, I would find that substantial evidence supports that Reed alleged a reasonable belief that the June 22, July 26, and August 29, 2012 disclosures each were protected disclosures under § 2302(b)(8)(A)(ii).  I respectfully dissent.