National Association of Homebuilders v. EPA!

Argued Nov. 1, 2011
Decided Hune 22, 2012

In 2008, the EPA issued a rule regulating renovation and remodeling activities that create health hazards arising from lead paint. The rule contained an "opt-out" provision, which exempted owner-occupied housing from the rule's requirements if the homeowner certified that no pregnant women or young children lived there. In 2010, EPA amended the rule to eliminate the opt-out provision. The National Association of Home Builders and other trade associations petitioned for review of the amended rule, arguing (1) the decision to abandon the opt-out provision was arbitrary and capricious, in violation of the APA; and (2) EPA failed to convene a panel of representatives of small businesses before issuing the new rule, in violation of the Regulatory Flexibility Act. The D.C. Circuit Court of Appeals denied the petition for review, holding (1) EPA's decision was not arbitrary or capricious; and (2) the Court lacked jurisdiction to entertain the petitioners' second challenge. Download PDF

Friends of Blackwater v. Salazar: West Virginia Northern Flying Squirrel!

Argued January 24, 2012
Decided August 17, 2012

The Fish and Wildlife Services, an agency in the Department of the Interior, removed the West Virginia Northern Flying Squirrel from the list of endangered species. Friends of Blackwater filed a complaint in the district court claiming (1) promulgation of the delisting rule violated the Endangered Species Act by ignoring the objective, measurable criteria in the Recovery Plan and (2) the Rule itself was arbitrary and capricious. The district court entered summary judgment for the plaintiff on the ground that the Service violated the Act by removing the squirrel from the list of endangered species when several criteria in the agency's Recovery Plan for the species had not been satisfied. The D.C. Circuit Court of Appeals reversed, holding (1) the district court erred by interpreting the Recovery Plan as binding the Secretary of the Interior in his delisting decision; and (2) the Service's action was not arbitrary, capricious, and contrary to law.

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Nat'l Labor Relations Bd v. Int'l Bhd. of Teamsters, Local 251!

Lynch is a highway construction contractor and a signatory of the Construction Industries of Rhode Island's collective bargaining agreement with Local 251, as representative of truck drivers employed by Lynch. Lynch employed 26 Local 251 members in 1995, 16 in 1997, and only 10 in 2001. Local 251's vice president, Boyajian, testified that each time a truck driver retired, Lynch would sell a truck and replace that person with a subcontractor, gradually reducing the number of bargaining unit employees. The collective bargaining agreement states that employers are not permitted to use subcontractors unless employees of the subcontractors are paid the prevailing rate. Boyajian complained to Lynch about its use of subcontractors that did not pay prevailing rate and, in 1999, filed grievances with the NLRB. Lynch and the union entered into a letter of agreement, which was later challenged as violating the National Labor Relations Act, 29 U.S.C. 158(e), by impermissibly preventing Lynch from doing business with two subcontractors. The NLRB upheld the challenge and subsequently sought enforcement. The First Circuit noted contradictory evidence that the Board failed to consider and reversed with respect to one company, while entering an order of enforcement with respect to the other.

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Shell Oil Co. vs. United States!

Decided August 14, 2012

Shell imported petroleum products, 1993-1994, upon which custom duties, taxes, and other fees were paid. During the same period, Shell exported drawback-eligible substitute finished petroleum derivatives. In 1995-1996, substitution drawback claims were filed with the U.S. Customs and Border Protection on Shell’s behalf. Generally, Customs provides a drawback of 99% of any duty, tax, or fee imposed under federal law upon entry or importation if the merchandise (or a commercially interchangeable substitute) is subsequently exported or destroyed under Customs supervision and not used within the U.S. before exportation or destruction, 19 U.S.C. 1313(j),(p). Drawback claims must be filed within three years of exportation. During the time of Shell’s imports, drawback eligibility of Harbor Maintenance Tax and Environmental Tax payments, which Shell now seeks, were heavily disputed. Shell was found not to have included an express request for HMT and ET in the “net claim” figure. In 1997, after the three-year period for the filing of drawback claims had expired Shell filed protests with Customs, seeking drawback as to HMT and ET payments. Customs denied Shell’s protests. The Court of International Trade found the claims time-barred. The Federal Circuit affirmed, holding that 1999 and 2004 statutory amendments did not change Shell’s position.

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Association for Molecular Pathology vs. U.S. Patent & Trademark Office!

Decided: August 16, 2012

The district court held that medical organizations, researchers, genetic counselors, and patients had standing under the Declaratory Judgment Act to challenge patent claims to "isolated" DNA molecules and granted summary judgment that all of the challenged claims were drawn to non-patentable subject matter under 35 U.S.C. 101. On remand for consideration under Mayo Collaborative Services v. Prometheus, Inc., 132 S. Ct. 1289 (2012), the Federal Circuit affirmed with respect to standing and reversed, in part, on the merits. The court reversed a holding that composition claims to “isolated” DNA molecules cover patent-ineligible products of nature under section 101 because each of the claimed molecules represents a nonnaturally occurring composition of matter. The court also reversed a holding that a method claim to screening potential cancer therapeutics via changes in cell growth rates of transformed cells is directed to a patent-ineligible scientific principle. The court affirmed that method claims directed to “comparing” or “analyzing” DNA sequences are patent ineligible; such claims include no transformative steps and cover only patent-ineligible abstract, mental steps.

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ActiveVideo Networks, Inc. vs. Verizon Communication, Inc.!

Decided: August 24, 2012

ActiveVideo asserted that Verizon’s video on demand (VoD) feature of the FiOS-TV system infringed its 578, 678, and 883 patents, which share a common specification and generally disclose and claim interactive television systems and methods for delivering interactive television to subscribers. Verizon counterclaimed that ActiveVideo infringed three of its patents. The jury found that Verizon infringed four ActiveVideo patents and that ActiveVideo infringed two Verizon patents and awarded damages to both. The court entered an injunction against Verizon but delayed enforcement for six months during which Verizon was ordered to pay a sunset royalty. The Federal Circuit reversed the injunction and the judgment of infringement against Verizon as to one patent; vacated the grant of summary judgment of invalidity as to one Verizon patent is vacated and remanded for further proceedings. The court affirmed other findings of infringement and the imposition of a sunset royalty.

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Intercollegiate Broadcasting vs. Copyright Royalty Bd.!

Argued Feb. 7, 2012
Decided July 6, 2012

Intercollegiate Broadcasting, Inc. appealed a final determination of the Copyright Royalty Judges (CRJs) setting the default royalty rates and terms applicable to internet-based webcasting of digitally recorded music. The D.C. Circuit Court of Appeals held that the positions of the CRJs, as currently constituted, violates the Appointments Clause of the U.S. Constitution. To remedy that violation, the Court followed the Supreme Court's approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd. by invalidating and severing the restrictions on the Librarian of Congress's ability to remove CRJs. The Court concluded that with such removal power in the Librarian's hands, the CRJs are "inferior" rather than "principal" officers, and no constitutional problem remained. Because of the Appointments Clause violation at the time of the decision, the Court vacated and remanded the determination challenged here.

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