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

Following floods at Houston’s Buffalo Bayou watershed, the federal government built the Barker and Addicks Dams. By 1963, each dam held a large reservoir with gated outflowing conduits. The Army Corps of Engineers’ 2012 Water Control Manual provides that if an inch of rain falls within a 24- hour period or if downstream flooding is expected, the Corps must close the floodgates. If “inflow and pool elevation conditions dictate,” the Corps releases water according to a schedule. The reservoirs were empty before Hurricane Harvey made landfall. On August 25, 2017, the Corps closed the floodgates; more than 30 inches of water poured onto the city in four days. The Corps released water. Some downstream properties were flooded for more than 11 days, some at more than eight feet above the first finished floor. Suits alleging that the flooding constituted an uncompensated, physical taking of property were split. In the Upstream Sub-Docket, the Claims Court found that plaintiffs were owners of land not subject to flowage easements and had valid property interests and that the government flooded plaintiffs’ properties and engaged in a taking. The court dismissed the Downstream Sub-Docket claims, finding that the owners did not articulate a cognizable property interest; “neither Texas law nor federal law creates a protected property interest in perfect flood control.” The court reasoned that the plaintiffs acquired their properties subject to the superior right of the Corps to engage in flood mitigation.The Federal Circuit reversed. The government is not immune from suit under the Flood Control Act of 1928, 33 U.S.C. 702c. There is no blanket rule under Texas law that property rights are held subject to owners’ expectations on acquisition. The Supreme Court has rejected the notion that private property is subject to “unbridled, uncompensated qualification under the police power." View "Milton v. United States" on Justia Law

Arthrex sued S&N, alleging infringement. S&N sought inter partes review (IPR). The Patent Trial and Appeal Board found that prior art anticipated several claims. Arthrex challenged the decision on the merits and argued that the Board lacked constitutional authority to issue the final decision because its Administrative Patent Judges (APJs) were not nominated by the President and confirmed by the Senate, as the Appointments Clause requires for principal officers.The Federal Circuit severed the statutory limitations on the removal of APJs and remanded for rehearing by a new panel. The Supreme Court vacated and remanded, finding that the appropriate remedy was to exempt the Director from 35 U.S.C. 6(c), which precludes anyone but the Board from granting rehearing of a Board decision, and remand to the Acting Director for a decision on whether to rehear the case. The offices of the Director and Deputy Director were vacant. Agency Organization Order 45-1 states, “If both the [Director] and the Deputy [Director] positions are vacant, the Commissioner for Patents . . . will perform the non-exclusive functions and duties of the [Director].” The Commissioner denied rehearing and ordered that the Board’s decision “is the final decision of the agency.”The Federal Circuit affirmed, rejecting arguments that the Commissioner violated the Appointments Clause, the Federal Vacancies Reform Act, 5 U.S.C. 3345, or the Constitution’s separation of powers in denying Arthrex’s rehearing request. The court agreed that prior art anticipated the challenged claims. View "Smith & Nephew, Inc. v. Arthrex, Inc." on Justia Law

The Federal Employees’ Retirement System Act provides early retirement benefits to law enforcement officers (LEOs), 5 U.S.C. 8412(d) after obtaining sufficient "LEO credit," which may be awarded for time served in either a primary law enforcement position or secondary (supervisory or administrative) law enforcement position if an employee is “transferred directly” to a secondary position after serving in a primary position. Klipp worked for the TSA, 1991-2009. In a parallel case, Klipp was determined to be entitled to LEO credit for 1991–98, but not for 1998–2008; his 2004–2009 position was not eligible for LEO credit, although it was a secondary position, because there was a break in service between his primary position and his secondary position.Klipp then sought primary LEO credit for his post-2004 position. In 2004, TSA hired Klipp as a Supervisory Criminal Investigator-Assistant Federal Security Director-Law Enforcement (AFSD-LE) for the New Orleans International Airport. The government never hired subordinate officers or investigators for him to supervise. In 2005, Klipp’s position title changed to “nonsupervisory” criminal investigator. Klipp argued that LEO credit can be awarded if the applicant’s actual duties were primarily LEO duties, even if the position description denotes a secondary position. The Merit Systems Protection Board denied Klipp's request for retroactive LEO retirement coverage for 2005-2009. The Federal Circuit vacated. The Board did not properly analyze whether 50 percent or more of Klipp’s actual duties were LEO duties under circuit precedent. View "Klipp v. Department of Homeland Security" on Justia Law

The 1938 Javits-Wagner-O’Day Act prioritized purchasing products from suppliers that employed blind individuals; 41 U.S.C. 8501–06, establishes a procurement system in which the government procures certain commodities and services from nonprofit agencies that employ the blind or otherwise severely disabled. The “AbilityOne Program” regulations govern the procurement system. 41 C.F.R. 51 and reiterate the Program's mandatory nature. The DLA, within the Defense Department, issued a Solicitation that contemplated awards for a Rifleman Set with Tactical Assault Panel (TAP) and Advanced TAP (ATAP). Before an ATAP award was made, SEKRI, a nonprofit agency qualified as a mandatory source of ATAP under the AbilityOne Program, sought an injunction prohibiting the federal government from procuring ATAP from any other source.The Claims Court dismissed for lack of standing, reasoning that SEKRI cannot claim to be a prospective bidder because the solicitation period had ended and the only action SEKRI took before filing its complaint was contacting DLA, through a third party, to inform DLA that SEKRI was a mandatory ATAP source. SEKRI did not submit a bid before the deadline despite DLA’s invitation. The Federal Circuit reversed. SEKRI qualifies as a prospective bidder for standing purposes under the Tucker Act. Given DLA’s awareness during the bidding process that SEKRI is the mandatory ATAP source, SEKRI has not waived its right to bring its bid protest action under the “Blue & Gold” standard. View "SEKRI, Inc. v. United States" on Justia Law

Rickel, a Fire Protection Specialist at Naval Air Station Jacksonville, was Assistant Chief of Training, responsible for determining training requirements, reviewing training records, and ensuring that firefighters’ certifications were current. Rickel applied for the Deputy Fire Chief position. Fire Chief Brusoe selected Gray. Rickel questioned the promotion and Gray’s candor in his application, asserting that several unidentified candidates had been promoted without required credentials. Gray responded that Rickel should update the training records. Rickel questioned Gray’s authority as his supervisor and claimed that his position did not require him to do so. Chief Brusoe informed Rickel that Gray was his supervisor. Gray instructed Rickel to update the records and documented that such a task was within his job description. The due date passed. The Executive Officer of Naval Air Station Jacksonville confirmed that the task was within Rickel’s responsibilities. Rickel did not respond to requests for status updates nor did he complete the work. Gray undertook the project, noting that it took 16.5 hours.Chief Brusoe proposed to remove Rickel for failure to follow instructions. Rickel appealed to the Merit Systems Protection Board, alleging unlawful retaliation for his protected disclosures. The Federal Circuit affirmed the Board’s finding that Rickel had engaged in protected whistleblowing activity, which was a contributing factor in the removal decision but that the agency had proven “by clear and convincing evidence that it would have removed [Rickel] even in the absence of his protected activity.” View "Rickel v. Department of the Navy" on Justia Law

“Red Sun Farms” is the trade name under which various entities do business as “U.S. producers of fresh tomatoes grown in the United States, U.S. importers and resellers of fresh tomatoes from Mexico, and foreign producers and exporters of fresh tomatoes from Mexico.”Red Sun filed suit against the government based on an antidumping duty investigation to determine whether fresh Mexican tomatoes were being imported into the United States and sold at less than fair value. In its motion to dismiss, the government observed, with respect to the five identified entities doing business as “Red Sun Farms,” that “[i]t is unclear whether all of these parties possess standing or can be considered real parties in interest” and reserved its right to raise additional arguments on the subject. In a discovery filing, the government noted the varying singular/plural usage by Red Sun Farms and stated that “‘Plaintiff’ Red Sun Farms actually consists of several companies.”The Federal Circuit reversed the dismissal of the suit. Red Sun challenged the Department of Commerce’s Final Determination resulting from a continued investigation under 19 U.S.C. 1516a(a)(2)(B)(iv); although no final antidumping order had been issued, its claims are not premature. Jurisdiction exists based on 28 U.S.C. 1516a(g)(3)(A)(i) and 1516a(a)(2)(B)(i). View "Red Sun Farms v. United States" on Justia Law

In 2015, the Federal Circuit affirmed summary judgment invalidating BriarTek’s patent claims, which BriarTek had asserted against DBN in a parallel investigation by the International Trade Commission (ITC). The court upheld the ITC’s imposition of a $6,242,500 civil penalty for DBN’s violation of a consent order, in which it agreed not to import or sell in the U.S. any two-way global satellite communication devices that infringe those claims. The court stated that the invalidation of the asserted claims did not negate DBN’s pre-invalidation violations of the consent order.DBN petitioned the ITC to rescind or modify the civil penalty order. Following a remand, the ITC again denied DBN’s petition. The ITC reassessed the relevant factors for determining civil penalties and concluded that the invalidation of the asserted claims did not change its original assessment, citing: the good or bad faith of the respondent, the injury to the complainant, respondent’s ability to pay, the extent to which respondent has benefited from its violations, the need to vindicate the ITC’s authority; and the public interest. The ITC again noted that the consent order expressly accounted for the subsequent invalidation of the patent claims. The Federal Circuit affirmed the determination as supported by substantial evidence. View "DBN Holding, Inc. v. International Trade Commission" on Justia Law

Congress established the Osage reservation in Oklahoma Territory in 1872. Years later, “mammoth reserves of oil and gas” were found. Congress severed the subsurface mineral estate, reserved it to the tribe, and placed it into trust with the federal government as trustee. Royalties are distributed to tribal members listed on an approved membership roll (a headright).In previous litigation, the Claims Court found the tribe had standing and found the government liable for breaching its fiduciary duties by failing to collect the full amount of royalties and failing to invest the royalty revenue. Individual headright owners (not the present plaintiffs) attempted to intervene. The Claims Court found that the individuals had no legal interest in the dispute because they were not a party to the trust relationship. The $380 million settlement agreement stated that the tribe, “on behalf of itself and the [h]eadright [h]olders,” waived any claims relating to the tribe’s trust assets or resources that were based on violations occurring before September 30, 2011. In a federal suit, filed by individual headright owners, the Tenth Circuit held that headright owners had a trust relationship with the federal government, which was ordered to provide an accounting.In 2019, based on allegations that the accounting revealed mismanagement of the trust fund, headright owners filed the present suit under the Tucker Act and the Indian Tucker Act, citing breach of statutorily imposed trust obligations. The Federal Circuit reversed the dismissal of the suit. A trust relationship exists between the headright owners and the government and the 1906 Act imposes an obligation on the federal government to distribute funds to headright owners in a timely and proper manner. View "Fletcher v. United States" on Justia Law

Bryant was a VA police officer, assigned to the Columbus Community Based Out-Patient Clinic in Columbus, Georgia. The VA issued Bryant a notice of proposed removal under 38 U.S.C. 714 based on conduct unbecoming a federal employee. The notice alleged that while sheriff's officers were attempting to serve Bryant “with a Temporary Family Violence Order of Protection,” Bryant made inappropriate statements and displayed a lack of professionalism; Bryant “ma[de] threats” that “caused these [officers] to fear for their safety,” which was “unacceptable” and “inexcusable” for a “[f]ederal [p]olice [o]fficer entrusted with carrying a loaded firearm each day.”The deciding official found that the charge was supported by substantial evidence and decided to remove Bryant from employment. Bryant contested whether the charged conduct occurred and whether removal was an appropriate penalty under the Douglas factors, and alleged as an affirmative defense of reprisal for protected whistleblowing activity. The administrative judge found that “the agency proved the charge by substantial evidence.” The Federal Circuit vacated in part. The Merit Systems Protection Board applied the wrong standard and, on remand, must apply a “preponderance of the evidence” standard to determine whether the conduct occurred and apply the Douglas factors to the penalty. Bryant failed to prove his affirmative defense of whistleblower reprisal. View "Bryant v. Department of Veterans Affairs" on Justia Law

Bannister has been employed by the VA for over two decades. While working as a pharmacist at the Baton Rouge Southeast Louisiana Veterans Health Care System, Bannister received a notice of proposed removal under 38 U.S.C. 714 based on conduct unbecoming a federal employee. The notice alleged that Bannister had repeatedly spoken rudely and inappropriately to veterans and coworkers, had “yell[ed] and scream[ed]” at pharmacy personnel after being informed that she had been assigned to provide curbside triage to patients.The VA issued a final decision sustaining the charge but mitigating the proposed penalty to a 30-day suspension. After considering Bannister’s “written replies” “along with all the evidence developed and provided to [Bannister],” the deciding official “found that the charge as stated in the notice of proposed removal [was] supported by substantial evidence.” Bannister contested whether the charged conduct occurred, and she alleged as an affirmative defense that the VA suspended her in reprisal for protected whistleblowing activity. The Merit Systems Protection Board upheld Bannister’s suspension.The Federal Circuit rejected her whistleblower claim but found that the Board’s decision as to the underlying suspension rested on an incorrect statement of law. On remand, the Board should apply the preponderance-of-the-evidence standard of proof. View "Bannister v. Department of Veterans Affairs" on Justia Law