The Things That Are Caesar’s

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on the recent oral argument before the U.S. Supreme Court in Our Lady of Gaudalupe School v. Morrissey-Berru, which raises the question how broadly to construe the word “minister” within the ministerial exception to anti-discrimination law required by the First Amendment. Colb explains where the ministerial exception doctrine might be headed and suggests that an exemption even for criminal misconduct against ministers might be within the existing doctrine.

Read More

Electric Boat Corp. v. Secretary of the Navy

Docket: 19-1621

Opinion Date: May 19, 2020

Judge: Kimberly Ann Moore

Areas of Law: Government Contracts

In 2003, Electric Boat (EB) and the Navy entered into a contract for the construction of up to six nuclear-powered submarines. The Contract includes a “Change-of-Law Clause,” which provides for a price adjustment in the event that compliance with a new federal law, or a change to existing federal laws or regulations, directly increases or decreases EB’s costs of performance. In September 2004, OSHA issued a new regulation, "Fire Protection in Shipyard Employment." In February 2005, EB submitted a Notification of Change, stating that it anticipated that compliance would result in a cost increase exceeding $125,000 per ship. In June 2007, EB sought price adjustments across all six submarines. The Navy challenged the calculations. In April 2009, EB submitted a revised cost proposal. In May 2011, the Contracting Officer formally denied an adjustment of the contract price, citing discrepancies between the proposal and documents related to the OSHA change.. The memorandum stated that if EB decided to further pursue the adjustment, it should file “Requests for Equitable Adjustment’” by June 3, 2011. In December 2012, EB filed a certified claim, seeking a price adjustment. The Contracting Officer, the Armed Services Board of Contract Appeals, and the Federal Circuit concluded that the claim was barred by the six-year limitations period, 41 U.S.C. 7103(a)(4)(A). EB knew of its claim by February 2005 and suffered some injury by August 2005.

ESIP Series 2, LLC v. Puzhen Life USA, LLC

Docket: 19-1659

Opinion Date: May 19, 2020

Judge: Jimmie V. Reyna

Areas of Law: Intellectual Property, Patents

ESIP’s patent relates to “a novel system and method for combining germicidal protection and aromatic diffusion in enclosed habitable spaces.” ’ Products of this type are commonly known as “vaporizers” or “diffusers.” On inter partes review, the Patent Trial and Appeal Board found that certain claims of ESIP’s patent are invalid as obvious. The Federal Circuit affirmed, first rejecting ESIP’s claim that the Board should not have instituted inter partes review because appellee Puzhen failed to identify “all real parties in interest” as required by 35 U.S.C. 312. The Board’s decision to institute inter partes review is final and not appealable. The Board’s determination of obviousness in light of prior art was supported by substantial evidence.