2 Very Different Fed. Cir. Cases on SCOTUS' Docket

The Federal Circuit is weird. It hears patent cases, of course, but it also hears a whole lot of other random federal appeals: Court of Federal Claims appeals, veterans' appeals, trademark appeals, Merit Systems Protection Board appeals, and of course, Little Tucker Act appeals. (Bonus points if you already knew that that was.)

So far this Term, two cases have been granted certiorari by the Supreme Court out of the Federal Circuit, one involving the termination of a Transportation and Safety Administration whistleblower and a second which involves patents -- two very different, yet very interesting cases.

DHS v. Robert MacLean (Oral Argument: November 4)

This might be one of the most exhaustively covered cases in FindLaw history, largely because it is so darn interesting. A federal Air Marshal learns that the TSA is planning to ignore a terrorist threat and remove all Marshals from flights that day (though the scope of the order is a point of contention). After his supervisors ignore his complaints, he leaks the news. Many laud him as a hero. The TSA retroactively designates the information as confidential and fires him.

The case involves confidential information, national security, terrorist threats, and whistleblower protection. And for statutory interpretation fanatics, there's a whole lot of legislative history that made its way into the lower court opinions. Here is our past coverage of the case:

• Grant of the Week: Air Marshal Whistleblower Meets DHS Regs
• Government's Merit Brief Filed in MacLean TSA Whistleblower Case
• SCOTUS Grants Cert in Air Marshal's Whistleblower Case
• MacLean Files Opposition to Cert. in DHS Whistleblower Case
• Feds Try to Take Air Marshal Whistleblower's Case to SCOTUS
• Fed Cir Rejects DHS' Request In TSA Whistleblower Case
• Whistleblowing Air Marshal Robert MacLean's Case Gets New Life

The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure "specifically prohibited by law," can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (Oral Argument: October 15)

Teva makes a $3 billion drug, Copaxone, which is protected by patents until mid-2015. Or at least it was, until the Federal Circuit reviewed a district court's determination of the facts de novo and invalidated the patent, opening up the market for generics.

This case is all about review standards: Does the Federal Circuit's odd rule, where it can reinterpret the facts de novo on appeal, trump the Federal Rules of Civil Procedure, which leave that duty to the trial courts and restrict appellate review to "clear error"? Our prior coverage:

• Supreme Court Grants Cert. in Teva v. Sandoz Patent Case
• The Latest in Copaxone Patent Appeal: Supreme Court Denies Stay

Rule 52(a) of the Federal Rules of Civil Procedure provides that in matters tried to a district court, the court's "[f]indings of fact ... must not be set aside unless clearly erroneous."

The question presented is as follows: Whether a district court's factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.

Which of these two cases will you be following? Let us know @FindLawLP.

Related Resources:

• Preview: 1st Week's Oral Arguments, FindLaw's 'SCOTUS Week' (FindLaw's U.S. Supreme Court Blog)
• Navajo Nation Gets $554M Settlement Over Trust Mismanagement (FindLaw's U.S. Supreme Court Blog)
• Adult Diaper Patent Claim Barred by Laches, Not Equitable Estoppel (FindLaw's U.S. Supreme Court Blog)