Thursday, March 18, 2021

Mylan fails in its challenge to "failure to institute" appeal

Mylan fails at the CAFC in the Janssen case. The outcome:

Because we lack jurisdiction over appeals from decisions denying institution, we grant Janssen’s motion to dismiss. Although we have jurisdiction over mandamus petitions challenging such decisions, Mylan has not shown it is entitled to such an extraordinary remedy. Thus, we dismiss Mylan’s appeal and deny its request for mandamus. B

For the foregoing reasons, we lack jurisdiction over Mylan’s direct appeal. Though we have jurisdiction over its request for mandamus, Mylan has failed to show a clear right to relief.

Of the constitutional issue:

Finally, Mylan fails to state a colorable claim for constitutional relief. It does not identify a deprivation of “life, liberty, [or] property,” so any procedural due process challenge is foreclosed. Stone v. F.D.I.C., 179 F.3d 1368, 1375 (Fed. Cir. 1999) (“Procedural due process requires that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures.”); see also Oral Arg. at 44:38–46:15 (questioning whether deprivation of a property right is required for a due process claim, but not identifying any property right).


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