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

In 1992, Brenner joined the VA as an attorney. In 2015, he suffered an accident that resulted in the amputation of his lower leg. He missed approximately six months of work and was reassigned to the Collections National Practice Group (CNPG). He received an overall “unacceptable” rating for 2017. Brenner unsuccessfully challenged the rating. In 2018, his supervisor proposed Brenner’s removal under 38 U.S.C. 714, listing 31 instances in which Brenner failed to meet deadlines and other errors. Brenner challenged the charges, citing his assignment to the CNPG and the “discrimination, retaliation, hostile work environment[,] and abuse of authority he has endured since.” Brenner also asserted that he had previously engaged in protected EEO and whistleblowing activity and attached copies of his complaints filed with the Office of Special Counsel (OSC) and Office of Accountability and Whistleblower Protection (OAWP). He argued that the deciding official, Hipolit, was required to recuse himself, given his prior involvement in Brenner’s complaints and discipline.Following the conclusion of Brenner's OSC and OAWP cases, Hipolit upheld the proposed removal as supported by substantial evidence. The Merit Systems Protection Board affirmed, finding that Brenner had not proven his affirmative defenses. The Federal Circuit vacated. The MSPB erred when it concluded that the Accountability and Whistleblower Protection Act of 2017, 38 U.S.C. 714, precluded, rather than required, review of the penalty imposed on Brenner and erred in applying the Act retroactively. View "Brenner v. Department of Veterans Affairs" on Justia Law

Taylor Energy leased and operated Gulf of Mexico oil and gas properties, on the Outer Continental Shelf, offshore Louisiana. In 2004, Hurricane Ivan destroyed those operations, causing oil leaks. The Outer Continental Shelf Lands Act, the Clean Water Act, and the Oil Pollution Act required Taylor to decommission the site and stop the leaks. Taylor and the Department of the Interior developed a plan. Interior approved Taylor’s assignments of its leases to third parties with conditions requiring financial assurances. Three agreements addressed how Taylor would fund a trust account and how Interior would disburse payments. Taylor began decommissioning work. In 2009, Taylor proposed that Taylor “make the full final deposit into the trust account,” without any offsets, and retain all insurance proceeds. Interior rejected Taylor’s proposal. Taylor continued the work. In 2011, Taylor requested reimbursement from the trust account for rig downtime costs. Interior denied the request. In 2018, the Interior Board of Land Appeals (IBLA) affirmed Interior’s 2009 and 2011 Decisions.Taylor filed suit in the Claims Court, asserting contract claims. The Federal Circuit affirmed the dismissal of the suit, rejecting “Taylor’s attempt to disguise its regulatory obligations as contractual ones,” and stating an IBLA decision must be appealed to a district court.In 2018, Taylor filed suit in a Louisiana district court, seeking review of the IBLA’s 2018 decision and filed a second complaint in the Claims Court, alleging breach of contract. On Taylor's motion, the district court transferred the case, citing the Tucker Act. The Federal Circuit reversed. The Claims Court does not have subject matter jurisdiction over this case. Taylor is challenging the IBLA Decision and must do so in district court under the APA. View "Taylor Energy Co., L.L.C. v. Department of the Interior" on Justia Law

In 2009, Meidinger submitted whistleblower information to the IRS under 26 U.S.C. 7623, concerning “one million taxpayers in the healthcare industry that are involved in a kickback scheme.” The IRS acknowledged receipt of the information, but did not take action against the accused persons. The IRS notified Meidinger of that determination. Meidinger argued that the IRS created a contract when it confirmed receipt of his Form 211 Application, obligating it to investigate and to pay the statutory award. The Tax Court held that it lacked the authority to order the IRS to act and granted the IRS summary judgment. The D.C. Circuit affirmed that Meidinger was not eligible for a whistleblower award because the information did not result in initiation of an administrative or judicial action or collection of tax proceeds.In 2018, Meidinger filed another Form 211, with the same information as his previous submission. The IRS acknowledged receipt, but advised Meidinger that the information was “speculative” and “did not provide specific or credible information regarding tax underpayments or violations of internal revenue laws.” The Tax Court dismissed his suit for failure to state a claim; the D.C. Circuit affirmed, stating that a breach of contract claim against the IRS is properly filed in the Claims Court under the Tucker Act: 28 U.S.C. 1491(a)(1). The Federal Circuit affirmed the Claims Court’s dismissal, agreeing that the submission of information did not create a contract. View "Meidinger v. United States" on Justia Law

In 2013, the Naval Facilities Engineering Command installed copyrighted graphics-rendering software created by German company Bitmanagement onto all computers in the Navy-Marine Corps Intranet. No express contract or license agreement authorized the Navy’s actions. In 2016, Bitmanagement filed suit, alleging copyright infringement, 28 U.S.C. 1498(b). The Claims Court found that, while Bitmanagement had established a prima facie case of copyright infringement, the Navy was not liable because it was authorized to make copies by an implied license, arising from the Navy’s purchase of individual licenses to test the software and various agreements between the Navy and the vendor.The Federal Circuit vacated and remanded for the calculation of damages. The Claims Court ended its analysis prematurely by failing to consider whether the Navy complied with the terms of the implied license, which can readily be understood from the parties’ entire course of dealings. The implied license was conditioned on the Navy using a license-tracking software, Flexera, to “FlexWrap” the program and monitor the number of simultaneous users. The Navy failed to effectively FlexWrap the copies it made; Flexera tracking did not occur as contemplated by the implied license. That failure to comply creates liability for infringement. View "Bitmanagement Software GMBH v. United States" on Justia Law

Crocs's Design Patent 789, titled “Footwear,” has a single claim for the “ornamental design for footwear.” Crocs sued Dawgs for infringement, Dawgs sought inter partes reexamination (IPE) under 35 U.S.C. 311. The district court stayed its proceedings. The examiner rejected the claim as anticipated, 35 U.S.C. 102(b). While an appeal to the Patent Trial and Appeal Board was pending, Dawgs filed for Chapter 11 bankruptcy. The bankruptcy court approved the sale of all of its assets to a new entity, Holdings, “not free and clear of any Claims Crocs . . . may hold for patent infringement occurring post-Closing Date by any person ... or any defenses Crocs may have in respect of any litigation claims that are sold.” The bankruptcy court authorized the distribution of the net sale proceeds and dismissed Dawgs’s bankruptcy case. Holdings assigned all rights, including explicitly the claims asserted by Dawgs in the infringement action and the IPE, to Mojave. Dawgs dissolved but continued to exist for limited purposes, including “prosecuting and defending suits" and "claims of any kind.”The Board declined to change the real-party-in-interest from the IPE requestor to Mojave, then reversed the examiner’s rejection of the patent’s claim. The Federal Circuit granted the motion to substitute. The assignments indicate that Mojave is Dawgs's successor-in-interest; as such, Mojave has standing. If the Board precludes substitution on the basis of a transfer in interest because of a late filing, it would defeat the important interest in having the proper party before the Board. View "Mojave Desert Holdings, LLC v. Crocs, Inc." on Justia Law

Holmes began working for the USPS in 1989. An investigation revealed that another letter carrier, Baxter, was selling marijuana from Baxter’s postal truck. Surveillance video showed Holmes and other USPS employees engaged in transactions with Baxter while on duty. Baxter later admitted to selling marijuana from his USPS vehicle; six other letter carriers admitted to purchasing marijuana from Baxter. Holmes denied purchasing marijuana while on duty. The surveillance video showed two relevant interactions between Baxter and Holmes, while on duty.At pre-disciplinary interviews, Holmes invoked his Fifth Amendment right to remain silent. Following a Notice of Proposed Removal, Holmes met with the deciding official, Bush, and stated that he “wanted to apologize,” and that he “made this little mistake.” Bush issued a termination, explaining that removal was consistent with the penalties received by the other employees. Bush considered Holmes’s lengthy federal service and lack of disciplinary record but concluded that they did not outweigh the support for his removal. In five grievance arbitrations, the arbitrators mitigated the penalty to long-term suspension without back pay. Holmes instead appealed to the Merit System Protection Board, arguing that the agency had insufficient evidence to find that he purchased marijuana from Baxter.The Board upheld his removal. The Federal Circuit affirmed, rejecting arguments that the removal was arbitrary or otherwise not in accordance with law; obtained without procedures required by law,; or unsupported by substantial evidence, 5 U.S.C. 7703(c) View "Homes v. United States Postal Service" on Justia Law

The Army Corps of Engineers issued a request for proposals. NIKA bid but was not awarded a contract. NIKA made a timely request for debriefing. The Corps sent NIKA a written debriefing and alerted NIKA of the right to submit additional questions. NIKA did not submit additional questions. NIKA filed a protest at the Government Accountability Office (GAO) six days after the written debriefing. Under 31 U.S.C. 3553(d), bid protests filed at the GAO invoke an automatic stay of procurement during the pendency of the protest if the federal agency awarding the contract receives notice within five days of debriefing. GAO denied the stay as untimely.NIKA filed suit, citing 10 U.S.C. 2305(b)(5)(B)(vii), which states that “[t]he debriefing shall include . . . an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.” The Claims Court instituted the stay. The bid protest concluded and the stay has ended.The Federal Circuit reversed, first holding that the issue was not moot, being capable of repetition but evading review. The text of 31 U.S.C. 3553(d) indicates that when no additional questions are submitted, the “debriefing date” is the date upon which the party receives its debriefing. The five-day period begins on the debriefing date, rather than two days later. Because NIKA did not file at the GAO within the five-day period, it did not timely invoke the stay. View "NIKA Technologies, Inc. v. United States" on Justia Law

Mouton-Miller worked for the Postal Service as an Audit Manager. Her position was classified as GG-0511-14, step 8, with a salary of $128,081. In 2017, Homeland Security’s Office of the Inspector General hired Mouton-Miller for the position of Supervisory Auditor, classified as GS-0511-14, step 8, with an initial pay rate of $142,367. There was no break between her Postal Service employment and her Homeland Security employment. Mouton-Miller’s Homeland Security position was subject to a one-year supervisory probationary period before becoming final. In March 2018, less than one year after beginning her position, Mouton-Miller received notice that she had “performed unsatisfactorily.” She was reassigned to the nonsupervisory position of Communications Analyst, GS-0301-14, step 7, with a $129,937 salary.The Merit Systems Protection Board dismissed Mouton-Miller’s appeal, determining that it lacked jurisdiction because the challenged agency action was excluded from the Board’s jurisdiction by 5 U.S.C. 7512(C). The Federal Circuit affirmed. For Mouton-Miller’s demotion to be an agency action subject to Board review, she must have completed the probationary period referred to in 5 U.S.C. 3312(a)(2). Mouton-Miller spent less than one year in her supervisory position at Homeland Security and her previous role at the Postal Service was in the excepted service; she has not satisfied the required supervisory probationary period. View "Mouton-Miller v. Merit Systems Protection Board" on Justia Law

The VA sought to procure cable gun locks with information about its suicide prevention line imprinted on the lock body, on a label attached to the cable, and an accompanying wallet card. VA submitted a requisition form to the Government Publishing Office (GPO), which issued an invitation for bids, with unrestricted competition. In a bid protest, the Government Accountability Office found that the Veterans Benefits Act (VBA), 38 U.S.C. 8127(i), applied. VA submitted a revised requisition. VA maintains a database of all verified Service-Disabled Veteran-Owned Small Businesses (SDVOSBs). The GPO’s contracting officer concluded that the GPO was obligated to employ unrestricted competitive bidding without a Rule of Two analysis. The Rule of Two requires that when two or more verified and capable SDVOSBs are identified, the acquisition must be set-aside for SDVOSBs, provided the contracting officer has a reasonable expectation that two or more verified SDVSOBs will submit offers and that the award can be made at a reasonable price. The contracting officer stated that the GPO would “leverage the VA database" to ensure that verified firms received an opportunity to bid.The Claims Court dismissed a pre-award bid protest, reasoning that the solicitation fell within the printing mandate, 44 U.S.C. 501, which requires that governmental "printing, binding, and blank-book work” be done at the GPO; that the VA adequately explained its decision to employ the GPO; and that the VA had met its obligation to secure GPO compliance “to the maximum extent feasible” with the Rule of Two. The Federal Circuit reversed. The printing mandate applies only to the production of written or graphic published materials; the solicitation at issue does not involve “printing.” View "Veterans4You, Inc. v. United States" on Justia Law

Dr. Braun worked at the National Institutes of Health (NIH) for almost 32 years as a research doctor with a specialty in neurological disorders. He obtained tenured status in 2003. In 2016, the NIH, which is located within the U.S. Department of Health and Human Services, removed Dr. Braun from his position after an audit revealed that his records were incomplete for all but 9% of the human subjects who had participated in his research over the course of six years.The Merit Systems Protection Board rejected Braun’s argument that an NIH policy required de-tenuring of tenured scientists (which NIH had not done in his case) before they could be removed for performance-related reasons and that the NIH committed certain other errors. The Board reasoned that the cited NIH policy allows removal “for cause” without de-tenuring. The Federal Circuit affirmed. The “for cause” provision was properly applied to this case. The evidence permitted the conclusions that Dr. Braun, “over a long period of time,” failed to a “dramatic and disturbing” degree, to comply with protocol requirements that exist “for the safety of the patients and the credibility of the research.” There was no denial of due process. View "Braun v. Department of Health and Human Services" on Justia Law