Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit.
Three new petitions were filed in Dupuch-Carron v. Secretary of Health and Human Services, Optimum Services, Inc. v. Secretary of the Interior, and Sasso v. Warsaw Orthopedic, Inc. A new reply was filed in Sandoz Inc. v. Immunex Corp. and Merit Medical Systems, Inc. v. Khan.
Here are the details.
Granted Cases
There is no new activity to report.
Petition Cases
New petitions
In Dupuch-Carron v. Secretary of Health and Human Services, the petitioner presented the following issues for review:
- Does the ordinary meaning of the words of section 11(c)(1)(B)(i)(III) of the National Childhood Vaccine Injury Act (the NCVIA or “Vaccine Act”), 42 USC § 300aa-11(c) (1)(B)(i)(III), require that a person who received a covered vaccine outside of the United States be a resident of the United States in order to be eligible to seek compensation under that section of the Vaccine Act?
- Does the ordinary meaning of the words in section 11(c)(1)(B)(i)(III) of the National Childhood Vaccine Injury Act (the NCVIA or “Vaccine Act”), 42 USC § 300aa-11(c) (1)(B)(i)(III), require that a person who received a covered vaccine outside of the United States had been present in the United States “While living and breathing outside of his mother’s body” before receiving that vaccine in order to satisfy Section 11(c)(1)(B)(i)(III)’s requirement that the person “returned to the United States not later than six months after the date of “ the vaccination received outside of the United States?
In Optimum Services, Inc. v. Secretary of the Interior, the petitioner presented the following issues for review:
I. Is an agency’s termination for convenience of a contract for voluntary corrective action in response to the filing of a post-award bid protest in the Court of Federal Claims subject to review under the Contract Disputes Act (“CDA”) for breach of contract, where the record shows that:
- the agency knew or should have known that the post-award bid protest had no merit;
- the agency knew or should have known that the post-award bid protest was subject to a motion to dismiss for untimeliness;
- the agency had a requirement and the funding and ability to perform the contract; and
- the termination for convenience was based in part on the agency’s stated desire to obtain a better bargain for the same work by terminating the contract and cancelling the solicitation and awarding new contracts for the same work to other contractor(s).
II. If a termination for convenience is subject to judicial review for breach of contract under the CDA, what standard(s) of judicial review should be applied when reviewing a termination for convenience for breach of contract under the CDA?
III. If a termination for convenience is subject to judicial review for breach of contract under the CDA, should a CDA board of contract appeals give preclusive effect or deference to a non-binding GAO advisory opinion approving of the termination, that was issued months after the termination in the terminated contractor’s GAO protest against the cancellation of the solicitation, without considering the merits of the GAO’s advisory opinion?
In Sasso v. Warsaw Orthopedic, Inc., the petitioner presented the following issues for review:
Whether this is a case “arising under” federal patent laws under 28 U.S.C. § 1338(a) within the Federal Circuit’s jurisdiction under 28 U.S.C. § 1295(a)(1) when cross-respondents chose not to remove an earlier, underlying state court breach-of-contract case and instead litigated for four years in state court and then, on the eve of the state court jury trial after discovery closed, filed this federal declaratory judgment action claiming that inoperative contractual language transformed this breach-of-contract claim into a patent case within the exclusive jurisdiction of the federal courts.
New Responses
There is no new activity to report.
New Replies
A new reply was filed in Sandoz Inc. v. Immunex Corp. and Merit Medical Systems, Inc. v. Khan.
Amicus Briefs
There is no new activity to report.