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Sharpe has been a DEA employee since 1995. Until 2008, he was also a Navy reservist. While at the DEA, Sharpe was deployed three times, twice for six months. As of 2015, Sharpe had applied for 14 GS-14 positions since 2012. Since 2009, Sharpe has been supervised by Sherman, who is responsible for recommending agents for promotion. Because he scored 91 out of 100 on his examination, Sharpe was on the Best Qualified List for every GS-14 position for which he applied, but he was only selected by Sherman three times and never as Sherman’s first-ranked agent. The Career Board often selects Sherman’s first-ranked agent, absent an agent requiring a lateral transfer from abroad or for hardship. In 2015, Sharpe requested corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311(a), asserting his non-selection was motivated by his military status and that Sherman was hostile towards reservist. Six other current and former reservists working as agents in San Diego, including Sorrells, also filed USERRA claims. Before the Merit Systems Protection Board Sharpe unsuccessfully sought to introduce an email sent to Sorrells by Tomaski, who reported directly to Sherman. At the hearing, Sharpe was not allowed to question Sherman about the email. The Federal Circuit vacated the MSPB’s denial of corrective action. Evidence of the Tomaski email and of Sherman’s response to it is relevant to Sherman’s potential hostility towards others’ military or USERRA activity. View "Sharpe v. Department of Justice" on Justia Law

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Hornseth worked at the Puget Sound Naval Shipyard, which houses nuclear-powered vessels; every position requires a security clearance. Hornseth attended rehabilitation for alcoholism and provided the Navy with documents regarding his treatment. From Hornseth’s rehabilitation discharge letter, the Navy learned that Hornseth had used marijuana during his employment. The Commander notified Hornseth that his security clearance was suspended and that the Navy proposed to indefinitely suspend his employment. Hornseth filed a reply. Combs, the deciding official, engaged in communications with the Shipyard’s Human Resources staff, primarily concerning positions that would not require a security clearance. The HR department drafted a “Decision on Proposed Indefinite Suspension” and forwarded it to Combs. Combs signed the decision. The Merit Systems and Protection Board ALJ affirmed, rejecting due process arguments that the reply process was an empty formality because Combs did not have the ability to take or recommend alternative agency action and Combs and the HR staff engaged in an improper ex parte communication. The Federal Circuit affirmed. Homseth received the procedural protections of 5 U.S.C. 7513(b); he received notice, had an opportunity to respond and to be represented, and was provided with a written decision with reasons. Although Hornseth had not seen the communication to Combs before the discovery process, the information it contained was already known to Hornseth or cumulative. View "Hornseth v. Department of the Navy" on Justia Law

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The University of Florida Research Foundation (UFRF) patent is titled “Managing Critical Care Physiologic Data Using Data Synthesis Technology.” In 2017, UFRF sued GE, alleging infringement. GE argued that the claims of the patent were directed to ineligible subject matter under 35 U.S.C. 101. The district court dismissed, applying the two-step framework described by the Supreme Court in its 2014 “Alice” decision to conclude that the claims are directed to an abstract idea and do not recite an inventive concept. The Federal Circuit affirmed, first rejecting UFRF’s argument that, as an arm of the State of Florida, it enjoyed sovereign immunity under the Eleventh Amendment. By bringing its claim of infringement, UFRF waived its sovereign immunity as to any relevant defenses. The patent seeks to automate “pen and paper methodologies” to conserve human resources and minimize errors, a quintessential “do it on a computer” patent. Such claims are directed to abstract ideas. The claimed “programmatic action involving said machine-independent data” can be performed using “[a]ny kind of computer system or other apparatus,” including a “general-purpose computer system.” The claims do no “more than simply instruct the practitioner to implement the abstract idea . . . on a generic computer.” View "University of Florida Research Foundation, Inc. v. General Electric Co." on Justia Law

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CODA’s CEO, Hrabal, invented self-inflating tire (SIT) technology. In 2008, GM representatives approached CODA, wanting to involve Goodyear in commercializing the technology. The parties executed a nondisclosure agreement, then met in 2009. Goodyear’s representatives included Benedict. At Goodyear’s request, CODA shared confidential information concerning the SIT. Goodyear representatives expressed skepticism about its viability. The parties agreed to continue discussions. Benedict requested to review an updated technical presentation, the latest testing methods, and performance results. At a second meeting, CODA allowed Goodyear to examine a functional prototype of the technology. Benedict requested that his team have time alone with the prototype, during which he photographed it without permission. Months then passed without any communication. In December 2009, a Goodyear employee on Benedict’s team independently inquired about the status of CODA’s SIT in preparation for an internal Goodyear meeting. Unbeknownst to CODA, Goodyear applied for a patent entitled “Self-Inflating Tire Assembly.” The 586 patent issued in 2011, naming Benedict and Losey as the inventors. CODA later received an unsolicited email from the ex-Goodyear employee with whom it corresponded in December 2009, stating, “I am retired now .. and see ... that they have copied your SIT.” The Federal Circuit vacated the dismissal of CODA’s complaint, seeking correction of inventorship, 35 U.S.C. 256. The district court erred in considering outside evidence about an article, by Hrabal, concerning the technology and in concluding that the complaint was time-barred.CODA’s claims allow the reasonable inference that Hrabal conceived the invention and that Benedict and Losey did not. View "CODA Development SRO v. Goodyear Tire & Rubber Co." on Justia Law

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Donaldson, a Capitol Police officer, was involved in an off-duty domestic incident. The Office of Professional Responsibility investigated and recommended termination. The Disciplinary Review Board agreed that Donaldson should be punished but recommended only a 45-day unpaid suspension. The Chief of Police decided to terminate Donaldson. After 30 days passed without intervention by the Capitol Police Board, the Chief’s decision was deemed approved and Donaldson was terminated (2 U.S.C. 1907(e)(1)(B)) Under a collective bargaining agreement (CBA), the Chief’s termination decisions are subject to binding arbitration. The Union requested arbitration. The Police refused to select an arbitrator, arguing that it “would be in violation of a determination of the Capitol Police Board and its distinct statutory authority by consenting to the jurisdiction of any arbitrator.” The Union protested to the General Counsel for the Office of Compliance (OOC) that the Police violated section 220(c)(2) of the Congressional Accountability Act of 1995, 2 U.S.C. 1301–1438, by refusing to arbitrate an unresolved grievance and therefore committed an unfair labor practice. A hearing officer granted OOC judgment. The Board of Directors of the Congressional Accountability Office of Compliance reasoned that the Police is obligated to arbitrate disputes arising under its CBA unless it can cite clearly-established law that removes the dispute in question from arbitration; the Police’s legal arguments fell short. The Federal Circuit rejected an appeal by the Police and granted the OOC’s petition for an order of enforcement. View "United States Capitol Police v. Office of Compliance" on Justia Law

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The Katten law firm signed an engagement letter with Bausch & Lomb, a corporate affiliate of Valeant, that broadly defined Katten’s client as any Valeant entity. Attorneys Mukerjee and Soderstrom represented Mylan during various stages of proceedings in which Valeant was adverse, first, as Alston & Bird attorneys, but later, as Katten attorneys. Valeant and others moved to disqualify Katten as counsel for Mylan in three pending appeals concerning patents and trademarks. The Federal Circuit granted those motions. Katten has an ongoing attorney-client relationship with Valeant and its subsidiaries, so Katten’s representation of Mylan in these appeals presents concurrent conflicts of interest in violation of Rule 1.7(a) of the Model Rules of Professional Conduct. View "Dr. Falk Pharma GMBH v. Generico, LLC" on Justia Law

Posted in: Legal Ethics

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In 2007, the VA sought to lease space for a Parma, Ohio VA clinic. A pre-solicitation memorandum stated that the building must comply with the Interagency Security Committee (ISC) Security Design Criteria. The subsequent Solicitation discussed the physical security requirements. Premier submitted a proposed design narrative that did not address those requirements. In 2008, Premier and the VA entered into a Lease. Premier was to provide a built-out space as described in the Solicitation. About 18 months later, the VA inquired about Premier’s first design submittal, advising Premier to obtain access to the ISC standards, because “the project needs to be designed according to the ISC.” The ISC denied Premier’s request, stating that the documents had to be requested by a federal contracting officer who has a “need to know.” The VA forwarded copies of three ISC documents. Some confusion ensued as to which standard applied. The VA then instructed Premier to disregard the ISC requirements and to incorporate the requirements from the latest VA Physical Security Guide. Months later, the VA changed position, stating that “[t]he ISC is the design standard.” Premier’s understanding was that only individual spaces listed in a Physical Security Table needed to comply with the ISC. The VA responded that the entire building must conform to the ISC at no additional cost. Premier constructed the building in accordance with the ISC standards then unsuccessfully requested $964,356.40 for additional costs. The Federal Circuit affirmed summary judgment in favor of the government. The contract unambiguously requires a facility conforming to ISC security requirements. View "Premier Office Complex of Parma, LLC v. United States" on Justia Law

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U.S. Customs and Border Protection classified ADC's imported merchandise under Harmonized Tariff Schedule of the United States (HTSUS) Subheading 9013.80.90, which bears a duty rate of 4.5% ad valorem and covers “other optical appliances and instruments, not specified or included elsewhere in this chapter.” The merchandise at issue “consists of fiber optic telecommunications network equipment” and “is included in [ADC’s VAMs] product line.” ADC argued that the merchandise should be classified under HTSUS Subheading 8517.62.00, which bears a duty-free rate, and covers “[t]elephone sets, including telephones for cellular networks or for other wireless networks” and “other apparatus for the transmission or reception of voice, images or other data." The Trade Court upheld the classification. The Federal Circuit affirmed. The merchandise falls within HTSUS Heading 9013’s definition of optical appliances or instruments. View "ADC Telecommunications, Inc. v. United States" on Justia Law

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The U.S. Department of Housing and Urban Development (HUD) administers the project-based Section 8 housing program using Housing Assistance Payments renewal contracts. The landlords own publicly-assisted housing in Yonkers and allege that the government breached the renewal contracts, resulting in money damages. The trial court determined that it had jurisdiction, found the government liable for breach of contract, and awarded $7.9 million in total damages. The Federal Circuit vacated, finding that the trial court lacked jurisdiction because the parties were not in privity of contract. The contracts at issue were executed in a two-tiered system. First, HUD contracted with a public housing agency (New York State Housing Trust Fund Corporation), which contracted with the Landlords. Neither contract explicitly named both the government and the Landlords as directly contracting parties. View "Park Properties Associates v. United States" on Justia Law

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Doorknobs with integral locks, imported by Home Depot, were classified by U.S. Customs and Border Protection as locks under the Harmonized Tariff Schedule of the United States (HTSUS) heading 8301. Home Depot argued that the products should have been classified under HTSUS heading 8302 as metal fittings for doors, including metal doorknobs. The International Trade Court affirmed. The Federal Circuit vacated, holding that the products are properly classified as composite goods within the meaning of HTSUS General Rule of Interpretation 3(b). The court remanded to the Trade Court to make a finding as to the “essential nature” of the composite goods, as directed by GRI 3(b), in order to determine under which of the two competing headings the goods should be classified. The two headings “each refer to part only” of the materials in the composite goods, and, according to GRI 3(a), the competing headings must be regarded as equally specific. View "Home Depot U.S.A., Inc. v. United States" on Justia Law