Recently in Employment Law Category

Notice regarding an application for an administrative law judge position is not an employment action

Chadwell v. Merit Sys. Prot. Bd., 09-3302, concerned a plaintiff's challenge to the Office of Personnel Management's (OPM's) notice that it would not review or process his 2008 application for an administrative law judge (ALJ) position because one year had not passed since the date he received a Notice of Results from his successful 2007 application for an ALJ position.  The court afifrmed the Merit Systems Protections Board's dismissal of the challenge, as the Board lacked jurisdiction because the OPM's one-year rule is not an employment action.

Related Link:

• Read the Federal Circuit's Full Decision in Chadwell v. Merit Sys. Prot. Bd., 09-3302

Lack of jurisdiction in orthotist's appeal of termination of his employment with the DVA

Carrow v. Merit Sys. Prot. Bd., 10-3061, concerned a challenge to the the Merit Systems Protection Board's dismissal of the appeal, on remand, for lack of jurisdiction, in petitioner's challenge to the termination of his employment as an orthotist-prosthetist with the Department of Veterans Affairs (DVA).  In affirming, the court held that, by statute, petitioner's position with the DVA did not carry Board appeal rights, as he does not qualify as an "employee" under 5 U.S.C. section 7511(a)(1)(C)(ii).  Further, any failure on the part of the DVA to provide full information to petitioner regarding the terms of his employment with the DVA did not give the Board jurisdiction over his appeal seeking reinstatement to his position at the DVA.

Dismissal of former government employer's grievance appeal as untimely vacated

Johnson v. Dep't of Veterans Affairs, 09-3292, concerned a challenge to an arbitrator's dismissal of petitioner's grievance for lack of jurisdiction in finding petitioner's grievance appeal untimely In a former government employee's request for arbitration regarding her discharge from the Department of Veterans Affairs.  In vacating the judgment, the court held that, under the terms of the CBA, petitioner could have, and did, file a letter which simultaneously served as a formal grievance and requested ADR, and it was legal error for the arbitrator to find otherwise.

Related Link:

• Read the Federal Circuit's Full Decision in Johnson v. Dep't of Veterans Affairs, 09-3292

Merit Systems Protection Board's Decision Sustaining Petitioner's Removal From His Position at the Defense Logistics Agency Affirmed

Smiley v. Dep't of Defense, 10-3039, concerned a challenge to a final decision by the Merit Systems Protection Board's (Board) sustaining petitioner's removal from the position of Supervisory Supply Technician at the Defense Logistics Agency's New Cumberland, Pennsylvania facility.  In affirming, the court held that a review of the record demonstrates that substantial evidence supports the Board's decision sustaining petitioner's removal.  Further, the record is clear that the deciding official considered each of the pertinent Douglas factors, and, where appropriate, gave petitioner mitigating credit.

Related Link:

• Read the Federal Circuit's Full Decision in Smiley v. Dep't of Defense, 10-3039

Tri-Star Elec. Int'l, Inc. v. Preci-Dip Durtal, SA, 09-1337, concerned a challenge to the district court's denial of a motion to dismiss for lack of standing under Federal Rule of Civil procedure 12(b)(1), in a patent infringement suit.  In affirming, the court held that the assignment transferred ownership to Tri-Star of California and thus, the Tri-Star Delaware corporation has standing to bring this suit.

Kahn v. Dep't of Justice, 09-3125, concerned a challenge to the Merit Systems Protection Board's final decision that plaintiff did not make protected disclosures under the WPA, in a DEA agent's suit under the Whistleblower Protection Act (WPA).  In affirming, the court held that the administrative judge did not err in finding that plaintiff's communications with an agent were not protected disclosures because they were made as part of normal duties through normal channels.  The court concluded that plaintiff's report was not a disclosure because he did not reveal something that was hidden and not known to the DEA.  Lastly, because plaintiff's communications were not protected under the WPA, the question of whether the government could have shown by clear and convincing evidence that it would have transferred plaintiff on the absence of his communications need not be addressed.

Henry E. & Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. US, 09-5122, concerned a challenge to the Court of Federal Claims' denial of a claim, in a university trusts' tax refund suit. In affirming, the court held that the securities purchased on margin by otherwise tax-exempt organizations are debt-financed property, and thus, income from an unrelated trade or business, which is subject to the UBIT.

Green Edge Enter., LLC v. Rubber Mulch Etc., LLC., 09-1455, involved a suit for infringement of a patent related to a synthetic mulch that is colored with a water based acrylic colorant to imitate natural mulch.  In reversing, the court held that the district court erred by invalidating a patent, and by dismissing defendant's trademark claims.  The court also reversed as the district court abused its discretion by precluding all damages evidence for the Lanham Act counterclaims.  However, the court affirmed the district court's holding with respect to counterclaims of noninfringement and invalidity of the mark as there was no case or controversy.

Geoddel v. Sugano, 09-1156, concerned a challenge to the Board of Patent Appeals and Interferences' decision that appellee is entitled to the benefit of the filing date of its initial Japanese application in awarding appellee priority as to the counts of both interferences, in two related patent interference priority contests, related to human fibroblasts interferon used in combating pathogens and tumors. In reversing, the court remanded the matter in concluding that the Board's decision that the Japanese Application constitutes constructive reduction to practice of the subject matter of these interferences is not in accordance with law, for the Japanese Application does not meet the criteria of section 112, first paragraph, as to this subject matter.

Related Resources:

• Full text of Kahn v. Dep't of Justice, 09-3125
• Full text of Green Edge Enter., LLC v. Rubber Mulch Etc., LLC., 09-1455
• Full text of Henry E. & Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. US, 09-5122
• Full text of Geoddel v. Sugano, 09-1156

Morse v. Merit Sys. Prot. Bd., 10-3030, involved a plaintiff's action claiming that the Transportation Security Administration violated his veterans' preference rights when it declined to waive its maximum entry age requirement in connection with his application for employment as a Federal Air Marshal.  In affirming the Merit Systems Protection Board's dismissal for lack of jurisdiction, the court held that the TSA is exempt from section 3330(a) of Title 5, which provides Board appeal rights for preference eligible veterans.

Pass & Seymour, Inc. v. Int'l Trade Comm'n., 09-1338, concerned a challenge to the International Trade Commission's judgment in favor of the defendants, in plaintiff's suit against various defendants claiming infringement of its patents related to circuit interrupters for use with household electrical appliances.  In affirming the judgment, the court held that, because the accused products at issue here do not meet the "mounting means" limitation as properly construed, and thus do not meet every limitation of the asserted claims, there can be no infringement.  Accordingly, Commission's finding of no violation of section 337 of the Tariff Act of 1930 is affirmed.

Morris v. Office of Compliance, No. 09-6001, concerned an appeal by an officer of the United States Capitol Police under the Congressional Accountability Act arising from his termination, challenging the Board of Directors of the Office of Compliance's decision denying exceptions to an arbitrator's decision rejecting the officer's request for arbitration.  In dismissing the appeal for lack of jurisdiction, the court held that the statutes defining the right to judicial review of Board decisions make clear that only the Board's General Counsel and the respondent to an unfair labor practice complaint are authorized to obtain review in federal courts of an adverse Board decision.    

Pequignot v. Solo Cup Co., No. 09-1547, concerned a licensed patent attorney's qui tam action under 35 U.S.C. section 292 alleging that defendant had falsely marked its products with expired patent numbers for the purpose of deceiving the public.  

In affirming in part, the court held that the grant of summary judgment of no liability in favor of defendant was proper as false marking, combined with knowledge of the falsity, merely creates a rebuttable presumption of intent to deceive the public, and here, defendant provided credible evidence that its purpose was not to deceive the public with either the expired patent markings or the "may be covered" language, and plaintiff raised no genuine issue of material fact showing otherwise.  However, the court vacated in part district court's determination on the meaning of the word "offense," in holding that defendant could have committed at most three offenses was in error as Forest Group, 590 F.3d 1295 holds that every false marked product constitutes an "offense" under section 292.  

Related Resources:

• Full text of Morris v. Office of Compliance
• Full text of Pequignot v. Solo Cup Co

In Colantonio v. Shinseki, No. 09-7067, the Federal Circuit faced a challenge to the decision of the United States Court of Appeals for Veterans Claims finding that petitioner was not entitled to a free medical examination in connection with his claim for compensation for a service-connected disability.

In reiterating the interpretation of subparagraph B adopted in Waters v. Shinseki, the court wrote: "[M]edically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service.  Of course, that is not to say that it will always be possible to establish a nexus through lay evidence, as there may be instances, such as Waters case itself, in which the lay evidence falls short of satisfying the statutory standard."

 Thus, in concluding that the Veterans Court may have applied an erroneous interpretation of 38 U.S.C. section 5103A(d)(2), the court vacated and remanded the judgment to permit the Veterans Court to reconsider its harmless error analysis in light of the proper interpretation of 38 U.S.C. section 5103A(d)(2). 

Related Resource:

• Full text of Colantonio v. Shinseki