Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

Articles Posted in Government & Administrative Law

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Smith worked at the General Services Administration for nearly 30 years before GSA removed him. For most of his career, he received positive evaluations and faced no discipline. When Smith began to complain about GSA’s ineffective collection and management practices, his supervisor warned him to communicate his concerns only to his supervisor. He was eventually suspended for failure to follow that instruction and his relationship with his supervisor deteriorated. Smith was also disciplined for disrespect toward his supervisor and failing to remove his computer access card from his laptop, although Smith, a quadriplegic, was physically unable to remove the card. The Merit Systems Protection Board agreed that GSA retaliated against him for his repeated disclosure of gross mismanagement; Smith was a whistleblower, 5 U.S.C. 2302(b)(8), and his protected disclosures contributed to the decision to remove him. The Board nevertheless upheld the removal. Without addressing evidence relevant to GSA’s motive to retaliate or its treatment of other similarly situated non-whistleblowers, the Board ruled that because GSA had strong evidence of misconduct, removal was justified. The Federal Circuit vacated. The Board conflated two distinct inquiries: whether the penalty was reasonable and whether the agency would have imposed that same penalty absent Smith’s protected whistleblowing. Given Smith’s disability and his supervisors’ knowledge that he could not remove his computer access card, the GSA policy did not apply to him. View "Smith v. General Services Administration" on Justia Law

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Under a 2011 contract with the U.S. Army Corps of Engineers (USACE), HHL was to provide transportation services in Afghanistan. After the contract expired, HHL requested additional compensation based on alleged contract violations: suspension of work, changes to the contract requirements, and termination of the original contract. After various preliminary submissions, HHL submitted a “Request for Equitable Adjustment (REA)” with a sworn statement by HHL’s Deputy Managing Director having “full management [authority].” The submission requested that it be “treated as a[n] REA,” not as a claim, and requested $4,137,964 in compensation. HHL’s request was denied in what the contracting officer characterized as the “Government’s final determination in this matter.” The Armed Services Board of Contract Appeals concluded that it did not have jurisdiction because “[a]t no point, in six years of communication with the [USACE], has HHL requested a contracting officer’s final decision” under 41 U.S.C. 7103(a)(1). The Federal Circuit reversed and remanded, concluding that there was a request for a final decision by a contracting officer and a final decision entered by the contracting officer. A defect in the certification of a claim does not preclude jurisdiction over the claim; HHL can cure any issues with its certification on remand. View "Hejran Hejrat Co. Ltd v. United States Army Corps of Engineers" on Justia Law

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WestRock’s Virginia paper mill was fueled by steam from boilers that burned various fuels, including fossil fuels. In 2013, WestRock placed into service a cogeneration facility that burns open-loop biomass, material not originally intended for use as fuel. Steam from a new biomass-fired boiler and an old paper mill boiler are comingled and fed into a steam turbine generator. Electricity is generated after WestRock diverts some steam to the paper mill for use in the industrial paper process. In 2013, WestRock submitted an American Recovery and Reinvestment Act of 2009 Section 1603 application seeking a grant; it claimed that its qualifying property cost $286,191,571 and requested $85,857,471. The National Renewable Energy Laboratory determined that WestRock used only 49.1 percent of the steam energy to produce electricity and that fossil fuel still comprised about 0.22 percent of its boiler fuel. The Department of Treasury reduced the cost basis by 51.2 percent and awarded WestRock $38,881,758—30 percent of the cost of what Treasury deemed qualifying property. The Claims Court affirmed, finding that Section 1603 provides for reimbursement of only costs associated with electricity production at WestRock’s facility. The court afforded deference to nonbinding Treasury guidance, which provides for allocation of the cost basis between qualifying and non-qualifying activities. The Federal Circuit affirmed. Section 1603 provides for a grant in the amount of 30 percent of the basis or cost of any qualified property that is used as an integral part of a facility that uses open-loop biomass to produce electricity. View "WestRock Virginia Corp. v. United States" on Justia Law

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Robinson became the Associate Director of the Phoenix Veterans Administration Health Care System in 2012, having started his VA career in 1987. Robinson was aware of scheduling issues, including that it often took more than 30 days for patients to receive new-patient appointments. In 2014, the Chairman of the U.S. House Committee on Veterans’ Affairs alleged that veterans died while on “secret” waitlists at the Phoenix VA. Based on an investigation by the Office of the Inspector General and the Department of Justice, Robinson’s removal was proposed for “failure to provide oversight.” The Deciding Official did not take action. Robinson remained on administrative leave for two years, returning to duty in January 2016. The Senate Committee on Veterans’ Affairs questioned why many senior executives were placed on paid leave instead of removed from office. In March 2016, a second proposal for Robinson’s removal issued. The Deciding Official sustained all charges. Robinson was removed. The Merit Systems Protection Board affirmed the removal, finding that Robinson was negligent in the performance of his duties and failed to provide accurate information to his supervisors but did not sustain a whistleblowing retaliation charge. The Federal Circuit affirmed the decision as supported by substantial evidence, rejecting Robinson’s claim that he was treated differently than other supervisors. Robinson had notice and a pre-termination opportunity to be heard. Robinson had a duty to ensure compliance with VA policy but the record demonstrated that he did not. View "Robinson v. Department of Veterans Affairs" on Justia Law

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Under the Medicare administrative contractor (MAC) program, 42 U.S.C. 1395kk1, the Centers for Medicare & Medicaid Services (CMS) use contractors to administer Medicare claims and benefits. CMS must use competitive procedures when entering into contracts with MACs, taking into account performance quality, price, and other factors. In 2010, CMS prepared solicitations to replace the original MAC contracts and implemented a policy in the solicitations for several jurisdictions, placing a limit on the amount of MAC contract responsibility that any single entity could win in a prime contractor capacity. CMS would not award more than 26% of the national A/B Medicare workload to any single contractor or more than 40% of the national A/B Medicare workload to any one set of affiliates. An “Exception” stated that, for the sake of continuity of service, CMS retained the discretion to award a particular prime contract to a particular contractor, even where doing so would exceed the policy workload. Because of the policy, with NGS’s current contracts, NGS cannot win the MAC contract for Jurisdiction H. NGS filed a pre-award protest. The Government Accountability Office rejected the protest. The Claims Court affirmed. The Federal Circuit reversed. The policy precludes “full and open competition through the use of competitive procedures,” 41 U.S.C. 3301(a)(1). Congress outlined the circumstances under which an agency may avoid the full and open competition requirement. The court rejected the government’s argument that the workload caps fall within an exception for “procurement procedures otherwise expressly authorized by statute.” View "National Government Services, Inc. v. United States" on Justia Law

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Amarin markets Vascepa®, a prescription drug consisting of eicosapentaenoic acid in ethyl ester form, synthetically produced from fish oil, intended to reduce triglyceride levels in adult patients with severe hypertriglyceridemia. Vascepa® is the only FDA-approved purified ethyl ester E-EPA product sold in the U.S. Amarin filed a complaint with the International Trade Commission (ITC) under 19 U.S.C. 1337 (Tariff Act), alleging that certain companies were falsely labeling and deceptively advertising their imported synthetically produced omega-3 products as “dietary supplements,” where the products are actually “new drugs” under the Food, Drug, and Cosmetic Act (FDCA) that have not been approved for use in the U.S. Amarin claimed that their importation and sale was an unfair act or unfair method of competition because it violates the Lanham Act, 15 U.S.C. 1125(a), and the Tariff Act “based upon" FDCA standards. The FDA urged the Commission not to institute an investigation and to dismiss Amarin’s complaint, arguing that the FDCA prohibits private enforcement actions and precludes any claim that would “require[] the Commission to directly apply, enforce, or interpret the FDCA.” The ITC and Federal Circuit agreed.Amarin’s allegations are based entirely on FDCA violations; such claims are precluded by the FDCA, where the FDA has not yet provided guidance as to whether violations have occurred. Although Amarin claimed violations of the Tariff Act, its claims constituted an attempt to enforce the FDCA. View "Amarin Pharma, Inc. v. International Trade Commission" on Justia Law

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The Virgin Islands is a U.S. territory that can set and receive proceeds from duties, Virgin Islands Port Authority (VIPA) is authorized to “determine, fix, alter, charge, and collect reasonable rates, fees, rentals, ship’s dues and other charges.” Since 1968, VIPA has set wharfage and tonnage fees for Virgin Islands ports. Customs collected those fees from 1969-2011, deducting its costs. The remaining funds were transferred to VIPA. In 1994, the Virgin Islands and Customs agreed to “the methodology for determining the costs chargeable to [the Virgin Islands] . . . for operating various [Customs] activities.” The agreement cited 48 U.S.C. 1469c, which provides: To the extent practicable, services, facilities, and equipment of agencies and instrumentalities of the United States Government may be made available, on a reimbursable basis, to the governments of the territories and possessions of the United States. Customs increased collection costs, which outpaced the collection of the disputed fees starting in 2004, leaving VIPA without any proceeds. After failed efforts to resolve the issue, VIPA notified Customs in February 2011, that VIPA would start to collect the fees in March 2011. VIPA sued Customs to recover approximately $ 10 million in disputed fees that Customs collected from February 2008 to March 1, 2011. The Federal Circuit affirmed a judgment in favor of Customs. Customs had authority to collect the disputed fees during the time at issue under the 1994 agreement, in combination with 48 U.S.C. 1469c. View "Virgin Islands Port Authority v. United States" on Justia Law

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Montano, a service-disabled veteran, owns 51% of VCG, which qualified as a service-disabled-veteran-owned small business (SDVOSB) under the VA system, 38 U.S.C. 8127(e)–(f), and appeared on the VetBiz database as eligible for set-aside contracts. VCG was the lowest bidder on an SDVOSB set-aside contract for an agency working with the Small Business Administration (SBA). Another bidder challenged VCG’s eligibility. The SBA determined that, because of the limitations on Montano's ownership in case of his death or incapacity, Montano did not “unconditionally” own his interest, and VCG did not qualify as an SDVOSB under 15 U.S.C. 657f. VA regulations required the removal from VetBiz of any business found ineligible in an SBA proceeding. Before VCG’s removal from VetBiz, the VA solicited bids for SDVOSB set-aside contracts for a roof replacement and for relocation. Hours before the deadline on the roof solicitation, VCG filed a bid protest in the Court of Federal Claims. Because VCG was not listed on VetBiz on the day bidding closed, the contracting officer could not consider VCG’s roofing bid and recommended cancellation and reposting. VCG sought a preliminary injunction. The VA finalized cancellation; hours later, the Claims Court entered a preliminary injunction restoring VCG to VetBiz, noting that the VA and SBA differ in defining unconditional ownership, but specifically declined to address relief related to the roofing solicitation. The Federal Circuit affirmed, finding that the contracting officer acted rationally in requesting cancellation based on the record. View "Veterans Contracting Group, Inc. v. United States" on Justia Law

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Ruel served in the Marine Corps, 1966-1969, including two tours in Vietnam; he was exposed to Agent Orange. He died in 1984. His wife, Teresa, sought benefits. In July 1984, the VA received her Form 21-534, which the VA treats as an application for Dependency and Indemnity Compensation (DIC) a benefit paid to eligible survivors of veterans whose death resulted from a service-related injury or disease, and for a Death Pension, a benefit payable to a low-income, un-remarried surviving spouse of a deceased veteran with wartime service, 38 U.S.C. 5101(b)(1). The claim for pension benefits was denied based on her income; the denial did not mention a DIC claim. In response to Teresa's “Application for Burial Benefits,” the VA authorized payment of $150.00, stating: The evidence does not show that the veteran’s death was due to a service-connected condition. Teresa did not appeal. In 2009, ischemic heart disease was added to the presumptive list of diseases related to herbicide exposure while serving in Vietnam. Teresa submitted a new Form 21-534. Her claim was granted with an effective date of October 2009. Teresa sought an effective date of July 1984 arguing that the VA never adjudicated her 1984 DIC claim, which remained “pending.” The Federal Circuit reversed the Board and Veterans Court; proper notice of an explicit denial of a claim under 38 C.F.R. 3.103 requires an actual statement or otherwise clear indication of the claim being denied. View "Ruel v. Wilkie" on Justia Law

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James served on active duty during the Vietnam War. He sought service-connected disability compensation for “a lumbar spine disability and cervical spine disability, as well as an increased rating claim for pseudofolliculitis barbae.” On January 28, 2016, the Board of Veterans’ Appeals denied his claims.. On Friday, May 27, James placed his notice of appeal (NOA) in a stamped envelope addressed to the Veterans Court in the mailbox at his residence and put the flag up for collection. James left town and did not return until late on Monday, May 30. James discovered the NOA still in his mailbox and deposited it that night at the post office. The next day, the Veterans Court received and docketed James’s NOA, which bore a postmark of May 31, more than 120 days after the Board mailed its decision. The court ordered James to “show cause why his appeal should not be dismissed.” James argued that the 120-day appeal window should be equitably tolled because an errantly lowered mailbox flag constituted an extraordinary circumstance beyond his control. The Veterans Court dismissed James’s appeal as untimely. The Federal Circuit vacated. The Veterans Court erred in creating a categorical ban by holding that equitable tolling can never apply to an entire category of cases involving a fallen mailbox flag. The extraordinary circumstance element necessarily requires a case-by-case analysis and not a categorical determination. View "James v. Wilkie" on Justia Law