Articles Posted in Government & Administrative Law

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Morrison’s position as a New London Naval Submarine Base firefighter required a security clearance. The Navy revoked Morrison's clearance, citing concerns regarding his personal finances. Regional Fire Chief Cox signed a letter finalizing Morrison’s removal but it was not immediately formally issued. Instead, District Fire Chief Clapsadle, who was to deliver the letter, offered Morrison the option to retire preemptively. Morrison chose to retire, thinking his retirements benefits were at risk. In fact, Morrison would have received those benefits regardless of whether he retired or was terminated, 5 U.S.C. 8312-8315. After learning that his benefits were not at risk, Morrison appealed to the Merit Systems Protection Board, claiming that his retirement was involuntary. Based on Morrison’s allegations that an agency manager had told him he would lose his benefits if he were terminated, the Board held that an agency is required to provide employees with adequate information to make an informed retirement decision but that, if the Navy would have removed Morrison, he was not entitled to reinstatement or back pay. The Federal Circuit dismissed Morrison’s petition for lack of jurisdiction. The Board’s ruling was not a “final decision,” but required the Navy to decide whether and when Morrison would have been terminated if he had not retired. . View "Morrison v. Department of the Navy" on Justia Law

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To receive disability compensation based on service, a veteran must demonstrate that the disability was incurred or aggravated in the line of duty, 38 U.S.C. 101(16). Congress has enacted presumptive service connection laws to protect certain veterans who faced exposure to chemical toxins but would find it difficult to prove a “nexus” between their exposure and their disease. Under the Agent Orange Act, 38 U.S.C. 1116, any veteran who served in Vietnam during the Vietnam era and who suffers from any designated disease “shall be presumed to have been exposed during such service” to herbicides. The VA determines which diseases qualify for presumptive service connection and defines service in Vietnam. Absent on-land service, the VA concluded that the statute did not authorize presumptive service connection for veterans serving in the open waters surrounding Vietnam. The Federal Circuit upheld that position in 2007. In 2016, the VA amended its M21-1 procedures manual to also exclude veterans who served in bays, harbors, and ports of Vietnam. The VA did not implement this additional restriction by way of notice and comment regulation as it did its open waters restriction and has not published its view on this issue in the Federal Register. The Federal Circuit rejected a challenge for lack of jurisdiction. The VA’s revisions are not agency actions reviewable under 38 U.S.C. 502. The M21-1 Manual provisions are only binding on Veterans Benefits Administration employees. View "Gray v. Secretary of Veterans Affairs" on Justia Law

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TRICARE provides current and former members of the military and their dependents' medical and dental care. Hospitals that provide TRICARE services are reimbursed under Department of Defense (DoD) guidelines. TRICARE previously did not require, DoD to use Medicare reimbursement rules. A 2001 amendment, 10 U.S.C. 1079(j)(2), required TRICARE to use those rules to the extent practicable. DoD regulations noted the complexities of the transition process and the lack of comparable cost report data and stated “it is not practicable” to “adopt Medicare OPPS for hospital outpatient services at this time.” A study, conducted after hospitals complained, determined that DoD underpaid for outpatient radiology but correctly reimbursed other outpatient services. TRICARE created a process for review of radiology payments. Each plaintiff-hospital requested a discretionary payment, which required them to release “all claims . . . known or unknown” related to TRICARE payments. Several refused to sign the release and did not receive any payments. Although it discovered calculation errors with respect to hospitals represented by counsel, TRICARE did not recalculate payments for any hospitals that did not contest their discretionary payment offer. The Claims Court dismissed the hospitals’ suit. The Federal Circuit reversed in part, finding that they may bring a claim for breach of contract but may not bring money-mandating claims under 10 U.S.C. 1079(j)(2) and 32 C.F.R. 199.7(h)(2) because the government’s interpretation of the statute was reasonable. View "Ingham Regional Medical Center v. United States" on Justia Law

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Freeman's company, RNR located eight mining claims on public lands of the Rogue River Siskiyou National Forest. In 2011, RNR filed a plan of operations with the U.S. Forest Service for commercial mining of ore that “contains commercially recoverable amounts of nickel, chromium[,] and iron” from two deposits over the course of 30 years. RNR proposed the construction of nearly eight miles of new roads, excavation of a pit for water storage, construction of two crossings over a creek, and creation of a processing facility on a 20-acre site, to be located on lands managed by the U.S. Department of the Interior’s Bureau of Land Management (BLM). Officials concluded that the BLM office had not received a complete plan of operation and requested a proposal for bulk sampling and construction of a pilot-prototype plant. Officials repeatedly asserted they would not process the pending plan without more specific information and a pilot-prototype. RNR did not respond to those requests, but sued, alleging a regulatory taking. The Federal Circuit affirmed the dismissal, of the suit finding the claim not ripe. The Forest Service has not reached a final decision and it is not clear compliance with its requests would be futile. View "Freeman v. United States" on Justia Law

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Sacramento FBI Agent Parkinson led a group tasked with relocating a previously compromised undercover facility. In 2006, the FBI leased a facility from Rodda, who agreed to contribute $70,000 to construction, documents, permits and fees. Parkinson negotiated the lease for the FBI, and managed the tenant improvement funds. In 2008, during the work, Parkinson made whistleblower-eligible disclosures, implicating pilots in misconduct. Parkinson’s supervisor issued Parkinson a low-performance rating, removed him as group leader, and reassigned him. Believing this to be retaliation, Parkinson contacted Senator Grassley, who forwarded Parkinson’s allegations to the Department of Justice’s Office of the Investigator General (OIG), which OIG sent the FBI its report. The Merit Systems Protection Board (MSPB) upheld Parkinson’s subsequent termination for lack of candor under oath and obstruction of the Office of Professional Responsibility. The Federal Circuit sustained the obstruction charge and dismissal of Parkinson’s affirmative defense of violations of the Uniformed Services Employment and Reemployment Rights Act, but remanded the lack of candor charge. On rehearing, en banc, the court concluded that 5 U.S.C. 2303 requires all FBI employees to bring claims of whistleblower reprisal to the Attorney General and vacated that portion of its prior opinion. View "Parkinson v. Department of Justice" on Justia Law

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Under the Native American Housing Assistance and Self-Determination Act (NAHASDA), 25 U.S.C. 4101–4243, tribes receive direct funding to provide affordable housing to their members. Grants are based on factors including “[t]he number of low-income housing dwelling units . . . owned or operated” by the tribes on NAHASDA’s effective date. Grantees are limited in how and when they may dispense the funds. The Tribes received NAHASDA block grants. In 2001, a HUD Inspector General report concluded that HUD had improperly allocated their funds because the formula applied by HUD had included housing that did not qualify. HUD provided the Tribes with the opportunity to dispute HUD’s findings, then eliminated the ineligible units from the data and deducted the amount overfunded from subsequent allocations. The Tribes brought suit under the Tucker Act and Indian Tucker Act, 28 U.S.C. 1491(a)(1) and 1505. The Claims Court held that NAHASDA is money mandating, but that the failure to give a hearing alone did not support an illegal exaction claim. Because the finding that NAHASDA is money-mandating was dispositive concerning jurisdiction, the government filed an interlocutory appeal. The Federal Circuit vacated and ordered dismissal for lack of subject-matter jurisdiction.The underlying claim is not for presently due money damages but is for larger strings-attached NAHASDA grants—including subsequent supervision and adjustment—and, therefore, for equitable relief. NAHASDA does not authorize a free and clear transfer of money. View "Lummi Tribe v. United States" on Justia Law

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Piccolo, an officer at the Bureau of Immigration and Customs Enforcement, within the Department of Homeland Security (DHS) made a disclosure related to DHS’s practice of releasing unaccompanied alien children to non-family sponsors with criminal records. The Merit Systems Protection Board (MSPB) dismissed, for lack of jurisdiction, his individual right of action appeal claiming that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. The MSPB found that he failed to make nonfrivolous allegations “to demonstrate that his protected activity was a contributing factor in the agency’s decision to take [adverse] personnel action,” 5 U.S.C. 1221(e)(1). The MSPB subsequently agreed that Piccolo had established jurisdiction and that “the AJ made legal errors in his jurisdictional findings” The Federal Circuit reversed and remanded, “reiterating” that a petitioner’s credibility including, as in this case, consideration of affidavits submitted by an allegedly retaliatory supervisor claiming no knowledge of the petitioner’s protected disclosure or motivation to retaliate, “relate[s] to the merits of [the] claim.” Non-frivolous allegations suffice at the jurisdictional stage Piccolo’s disclosures allege serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to negative personnel action deserve a merits hearing. View "Piccolo v. Merit Systems Protection Board" on Justia Law

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There are 10 federal holidays each year; six are celebrated on Mondays. All federal employees are paid for holidays that fall on a workday but on which the employee is not required to work. 5 C.F.R. 610.405-406. When employees are required to work on holidays, they are entitled to premium pay for their work on that day that is not overtime work, 5 U.S.C. 5546(b). Certain employees whose basic workweek of five workdays is Monday through Friday are granted days off “in-lieu-of” holidays when holidays fall on weekends. Employees whose basic workweek of five workdays is other than Monday through Friday enjoy corresponding benefits. Yanko has been employed, part-time, by the VA for several years. His regular workweek is Sunday through Thursday. Between December 15, 2009, and May 16, 2016, eight public holidays fell on either Friday or Saturday. Yanko, as a part-time employee, was not credited with an in-lieu-of holiday for any of those days, pursuant to a longstanding policy of the Office of Personnel Management. The Court of Federal Claims and Federal Circuit rejected Yanko’s claims, holding that the statute and Executive Order do not provide part-time employees with a right to in-lieu-of holidays when federal holidays fall outside the employees’ normal workweek. The term “basic workweek,” which appears in both, refers only to full-time employees. View "Yanko v. United States" on Justia Law

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Gazelle served in the U.S. Army, 1962-1965, and incurred service-connected disabilities. He receives compensation for: degenerative disc disease and joint disease of the cervical spine rated at 20 percent; degenerative disc disease and spondylosis of the thoracolumbar spine rated at 20 percent; left upper extremity radiculopathy rated at 10 percent; left lower extremity radiculopathy rated at percent; and post-traumatic stress disorder. In 2009, the VA increased Gazelle’s disability rating for his service-connected PTSD to 100 percent. Gazelle filed a Notice of Disagreement, alleging the VA failed to award him additional special monthly compensation under 38 U.S.C. 1114(s)(1). In 2011, Gazelle was denied entitlement to special monthly compensation because he did not have additional service-connected “disabilities . . . independently ratable as [60 percent] or more disabling.” Instead of adding together Gazelle’s additional service-connected disabilities at their respective amounts, the VA calculated the independent additional rating via the combined ratings table pursuant to 38 C.F.R. 4.25 (2010), which resulted in a combined rating of 50 percent. In 2014, the Board affirmed. The Veterans Court and Federal Circuit affirmed, holding that consistent with the plain meaning of subsection 1114(s), the Board appropriately applied the combined ratings table to determine eligibility for special monthly compensation benefits. View "Gazelle v. Shulkin" on Justia Law

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Prime Hospitals provide inpatient services under the Medicare program, submitting payment claims to private contractors, who make initial reimbursement determinations. Prime alleged that many short-stay claims were subject to post-payment review and denied. Prime appealed through the Medicare appeal process. Prime alleged short-stay claims audits were part of a larger initiative that substantially increased claim denials and that the Center for Medicare & Medicaid Services (CMS) was overwhelmed by the number of appeals. CMS began offering partial payment (68 percent) in exchange for dismissal of appeals. Prime alleged that it executed CMS's administrative settlement agreement so that CMS was contractually required to pay their 5,079 Medicare appeals ($23,205,245). CMS ultimately refused to allow the Prime to participate because it was aware of ongoing False Claims Act cases or investigations involving the facilities. Prime alleged that the settlement agreement did not authorize that exclusion. The district court denied a motion to dismiss Prime’s suit but transferred it to the Court of Federal Claims. The Federal Circuit affirmed in part. The breach of contract claim is fundamentally a suit to enforce a contract and does not arise under the Medicare Act, so the Claims Court has exclusive jurisdiction under the Tucker Act, 28 U.S.C. 1491. That court does not have jurisdiction, however, over Prime’s alternative claims seeking declaratory, injunctive, and mandamus relief from an alleged secret and illegal policy to prevent and delay Prime from exhausting administrative remedies. View "Alvarado Hospital, LLC v. Cochran" on Justia Law