Articles Posted in Government & Administrative Law

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Alimanestianu, a U.S. citizen, was killed in the 1989 bombing of Flight 772 by the Abu Nidal Organization. The State Department determined that the Libyan government sponsored the bombing. Libya was protected from suit in the U.S. under the Foreign Sovereign Immunities Act (FSIA); in 1996, FSIA was amended to permit claims for personal injury or death caused by acts of foreign sovereigns designated as state sponsors of terrorism, 28 U.S.C. 1605(a)(7). Libya had been designated in 1979. In 2002, the Alimanestianus and others sued Libya and obtained summary judgment in 2008, awarding $6.9 billion in total; the Alimanestianus received $1.297 billion. While the defendants appealed, the United States entered into a Claims Settlement Agreement with Libya. Libya agreed to deposit $1.5 billion into a humanitarian fund, $681 million of which was for claims by U.S. nationals for wrongful death or physical injury in pending case as “a full and final settlement.” The Foreign Claims Settlement Commission subsequently awarded the Alimanestianus $10 million. The Federal Circuit rejected a claim that vacating their judgment constituted a compensable taking. The court considered the Penn Central factors: the Executive has an overwhelming interest in conducting foreign affairs; the plaintiffs have no evidence that they had an investment-backed expectation in their claims and nonfinal judgment; plaintiffs’ claim that the Commission’s award was less than their nonfinal judgment does not refute that they received more than they would have without government action. View "Alimanesianu v. United States" on Justia Law

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Burris’s father served on active duty in Vietnam, 1969-1971, and was granted a permanent and total disability rating for schizophrenia effective 2000. Because of his father’s disability, Burris was eligible to receive Dependents’ Educational Assistance (DEA) benefits. In October 2010, Burris, then 35-years old, elected to receive retroactive benefits for a period 2002-2010. During a portion of that period, Burris was enrolled as an undergraduate student. Burris’s studies were interrupted in 2005 when his mother unexpectedly passed away. Burris became the primary caretaker for his father, who suffered from prostate cancer. Burris was unable to attend school until his DEA eligibility had expired. The VA denied Burris’s request for an extension of his eligibility period, citing VA regulations that prohibit extensions for dependents “beyond age 31,” 38 C.F.R. 21.3041(g)(1), (g)(2), 21.3043(b), and refused to reimburse Burris for educational expenses incurred 2002-2004 because DEA benefits cannot be paid for expenses incurred more than one year prior to the application date. The Board of Veterans’ Appeals and Veterans Court affirmed the denial of equitable relief. The Federal Circuit affirmed. The Veterans Court lacks jurisdiction to grant equitable relief in these circumstances, 38 U.S.C. 7261. View "Burris v. Wilkie" on Justia Law

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Saint Bernard Parish Government and other owners of real property in St. Bernard Parish or in the Lower Ninth Ward of the City of New Orleans sued under the Tucker Act, 28 U.S.C. 1491(a)(1), alleging a taking. They claimed that the government was liable for flood damage to their properties caused by Hurricane Katrina and other hurricanes. Plaintiffs’ theory was that the government incurred liability because of government inaction, including the failure to properly maintain or to modify the Mississippi River-Gulf Outlet (MRGO) channel, and government action (the construction and operation of the MRGO channel). The Claims Court found a taking occurred and awarded compensation. The Federal Circuit reversed. The government cannot be liable on a takings theory for inaction and the government action in constructing and operating MRGO was not shown to have been the cause of the flooding. The Claims Court failed to apply the correct legal standard, which required that the causation analysis account for government flood control projects that reduced the risk of flooding. View "St. Bernard Parish Government v. United States" on Justia Law

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In 2003, the Coalition Provisional Authority (CPA) was established to rule Iraq pending transfer of authority to the Iraqi Interim Government (IIG). CPA awarded Agility a Contract to operate warehouses, providing that “[t]he obligation under this contract is made with Iraqi funds.” Agility acknowledged the impending transfer of authority and CPA’s scheduled dissolution. CPA authorized the IIG Minister of Finance to delegate contract administration to CPA’s Program Management Office (PMO). CPA administered Development Fund for Iraq (DFI), composed of various sources, including revenue from sales of Iraqi petroleum and natural gas. The IIG Minister delegated contract-administration responsibility concerning DFI-funded contracts to the PMO but did not give PMO contracting authority. Subsequent Contract task orders obligated U.S. funds. A U.S. contracting officer (CO) determined that Agility owed the government $81 million due to overpayment. Separately, Agility unsuccessfully sought $47 million for unpaid fees. The Armed Services Board of Contract Appeals dismissed Agility's appeals for lack of jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. 7101–7109. The Federal Circuit affirmed. The Board’s CDA jurisdiction is limited to contracts “made by an ‘executive agency.’” CPA was not an executive agency under the CDA. CPA awarded the Contract and there was no evidence that it was novated or assigned to an executive agency. The government acted as a contract administrator, not as a contracting party. View "Agility Logistics Services Co., KSC v. Mattis" on Justia Law

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The FBI is the sole tenant in a building under a lease between Cleveland Assets and the General Services Administration (GSA) that began in 2002 and was to expire in 2012. The lease has been extended multiple times. GSA has paid a penalty rate of $44.72 per rentable square foot (PSF) since its expiration. GSA must seek the approval of the Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure before obligating funds on the lease, by sending a prospectus of the proposed facility, including “an estimate of the maximum cost.” GSA prepared a prospectus for the Cleveland FBI office and considered a range of rental values, finally approving a maximum proposed rate of $26.00 PSF and an escalation clause for inflation. Both congressional committees approved the rate. GSA’s 2016 Request for Lease Proposals cited the "Congressionally-imposed rent limitation” of $26.00 PSF. Cleveland Assets sued, claiming that the Request exceeded GSA’s authority to solicit offers and that the rental cap was unreasonably low, imposed an undue restriction on competition, and shifted all risk to the contractor. The Federal Circuit affirmed dismissal by the Claims Court. The authorization statute, 40 U.S.C. 3307, is an appropriation, not a procurement, statute, so the challenge is not subject to Tucker Act jurisdiction. GSA’s choice of the maximum rental rate was not arbitrary or lacking a rational basis. View "Cleveland Assets, LLC v. United States" on Justia Law

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In 1985, EgyptAir Flight 648 was hijacked by terrorists, who killed passengers and destroyed the aircraft. The U.S. State Department determined that the terrorists received support from the Libyan government. In 1988, a Libyan Intelligence Service agent detonated explosives on Pan Am Flight 103, killing 270 people and destroying the aircraft. Insurers paid $97 million in claims. Libya was shielded by the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1604, before enactment of the 1996 State Sponsors of Terrorism Exception to FSIA, 28 U.S.C. 1605(a)(7). The insurers sued, asserting their insurance subrogation rights. While those claims were pending, President Bush negotiated a settlement with Libya, The U.S. agreed to terminate pending lawsuits; Libya paid the government $1.5 billion, which funded the Foreign Claims Settlement Commission. The Libyan Claims Resolution Act, 122 Stat. 2999, provides that Libya shall not be subject to the FSIA exceptions. The insurers’ suit was dismissed. Some of the insurers submitted claims with the Commission, which were denied because of a rule requiring that claimants be U.S. nationals from the date of injury to the date of the espousal of their claims by the U.S. They then sued, alleging that the government took their property without just compensation. The Federal Circuit affirmed summary judgment in favor of the government. The insurers “cannot claim an investment-backed expectation free of government involvement nor can they characterize the Government’s action as novel or unexpected.” View "Aviation & General Isurance Co., Ltd. v. United States" on Justia Law

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On September 11, 2012, President Obama published notice “continuing for [one] year the national emergency . . . with respect to the terrorist attacks.” In April 2013, O’Farrell, an Army Reservist, received an order directing him to replace another Reservist, an attorney, who had been deployed. After reaching his maximum total years of active commissioned service (28 years), O’Farrell was transferred to the Army Reserve Retired List in October 2013. O’Farrell served his active duty as legal counsel until September 30, 2013. By August 26, 2013, O’Farrell had used his 15 days of military leave, most of his accrued annual leave, and advance annual leave. To avoid being placed on Military Leave Without Pay for the remainder of his active duty service, O’Farrell (unsuccessfully) requested an additional 22 days leave under 5 U.S.C. 6323(a)(1). O’Farrell did not cite any statutory provision that would qualify him as "called to full-time military service as a result of a call or order to active duty in support of a contingency operation." He argued that he was “serving . . . during a national emergency." O’Farrell sued under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301– 4333. The Federal Circuit reversed. Section 6323(b) does not require that “a specific contingency operation" be identified in military orders when an employee is activated; “in support of” includes indirect assistance to a contingency operation, 5 U.S.C. 6323(b)(2)(B), which includes a military operation that results in service members being called to active duty under any law during a national emergency, 10 U.S.C. 101(a)(13). A service member’s leave request need not use particular language. View "O'Farrell v. Department of Defense" on Justia Law

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In an inter partes review proceeding (IPR), Arthrex disclaimed all the subject claims before the Patent and Appeal Board issued an institution decision. The Board entered an adverse judgment. The Federal Circuit affirmed, holding that the decision is appealable and that the Board’s interpretation is consistent with the regulation. The court did not address whether the regulation is authorized by the statute or whether it was properly promulgated. While 37 C.F.R. 42.107(e) states that no IPR "will be instituted based on disclaimed claims,” 37 C.F.R. 42.73(b) provides: A party may request judgment against itself at any time... Actions construed to be a request for adverse judgment include: (1) Disclaimer of the involved application or patent; (2) Cancellation or disclaimer of a claim such that the party has no remaining claim in the trial; (3) Concession of unpatentability or derivation of the contested subject matter; and (4) Abandonment of the contest. Although Arthrex stated that it was not requesting an adverse judgment, the rules permit the Board to construe a statutory disclaimer of all challenged claims as a request for adverse judgment, even when the disclaimer occurs before the Board has entered a decision, The court noted that the adverse judgment has an estoppel effect and that Arthrex had two pending continuation patent applications that have since issued as patents. View "Arthrex, Inc. v. Smith & Nephew, Inc." on Justia Law

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The Court of Federal Claims enjoined the U.S. Army from proceeding with, or awarding, a contract to Airbus Helicopter, finding that Army Execution Order 109-14, which implemented the Army’s Aviation Restructure Initiative designating the UH-72A Lakota helicopter as the Army’s “Institutional Training Helicopter,” was a procurement decision in violation of the Competition in Contracting Act and the Federal Acquisition Regulation. The court also found the Sole Source Justification and Approval (J&A) was arbitrary and capricious. The Federal Circuit reversed and vacated the injunction, holding that Execution Order 109-14 was not a procurement decision subject to Tucker Act review because it did not begin “the process for determining a need for property or services.” The Order simply formalized the Army’s decision designating the UH-72A Lakota as the Army’s training helicopter. The Sole Source J&A was not arbitrary and capricious, and it was an abuse of discretion to supplement the administrative record. The J&A sufficiently supports the Army’s decision to award a sole-source follow-on contract because it is likely that award to any other source would result in substantial duplication of cost to the government that is not expected to be recovered through competition, or unacceptable delays in fulfilling the agency’s requirements.” View "AgustaWestland North America v. United States" on Justia Law

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A U.S. Department of Commerce regulation states: “The Secretary will rescind an administrative review ... if a party that requested a review withdraws the request within 90 days of the date of publication of notice ... The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so,” 19 C.F.R. 351.213(d)(1). In 2011, Commerce announced in a published guidance document that parties seeking untimely withdrawals would no longer be able to get an extension based on what might be reasonable under the circumstances in light of the concerns previously identified and employed by Commerce, but would have to demonstrate the existence of an “extraordinary circumstance.” Commerce applied the 2011 guidance in the Glycine case. The Court of International Trade remanded, invalidating the change in methodology. Commerce, under protest, extended the deadline for Glycine to withdraw its request for administrative review of an antidumping order and rescinded the review. The Trade Court and Federal Circuit affirmed. Since the 2011 Notice was intended to effectively rewrite the substantive meaning of the regulation without going through the necessary notice-and-comment rulemaking, it has no legal standing. The Administrative Procedure Act, 5 U.S.C. 551, does not permit amendment of an agency regulation, previously adopted by formal notice-and-comment rulemaking procedure, by a guidance document that is not so enacted. View "Glycine & More, Inc. v. United States" on Justia Law