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

The National Organization of Veterans’ Advocates (NOVA), sought review under 38 U.S.C. 502. The Knee Joint Stability Rule, promulgated in 2018 and set forth in the Veterans Affairs Adjudication Procedures Manual, assigns a joint instability rating under Diagnostic Code (DC) 5257, 38 C.F.R. 4.71a, based on the amount of movement that occurs within the joint. The Knee Replacement Rule provides that evaluation under DC 5055, 38 C.F.R. 4.71a, is not available for partial knee replacement claims. The Replacement Rule was published in the Federal Register in 2015, stating that section 4.71a was amended to explain that “‘prosthetic replacement’ means a total, not a partial, joint replacement.” It was published in a 2016 Manual provision, which informs regional office staff that evaluation under DC 5055 is not available for partial knee replacement claims filed on or after July 16, 2015.The Federal Circuit referred the case for adjudication on the merits. NOVA has standing because it has veteran members who are adversely affected by the Rules. The Manual provision is an interpretive rule reviewable under 38 U.S.C. 502 and constitutes final agency action. The Knee Replacement Rule is a final agency action. The merits panel will determine whether the Manual provision or the Federal Register publication constitutes the reviewable agency action. The challenge is timely under the six-year statute of limitations, 28 U.S.C. 2401(a); Federal Circuit Rule 15(f), establishing a 60-day time limit for bringing section 502 petitions, is invalid. View "National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans' Affairs" on Justia Law

Harrington, a Bay Pines VA Healthcare System police officer, sent a photograph of a document contained on the secure agency server to a former VA police officer, Hooker, who was no longer employed by VA. VA had provided Hooker with a text file of the contents of that document in response to a FOIA request but did not provide the document itself. Two weeks later, Congress enacted the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017; 38 U.S.C. 714 speeds up removal proceedings, lowers VA’s burden of proof at the Merit Systems Protection Board from a preponderance of the evidence to substantial evidence, and eliminates the MSPB’s authority to mitigate VA’s imposed penalty. The VA brought a removal action under section 714, alleging misconduct by sending the photograph, and issued a decision removing Harrington. The MSPB found that substantial evidence supported the charge of misconduct and did not review the appropriateness of the severity of the penalty.The Federal Circuit vacated. Section 714 does not apply to proceedings instituted based on conduct occurring before its enactment. The proper interpretation of section 714 requires the MSPB to review the entire decision below, including the choice of penalty. View "Harrington v. Department of Veterans Affairs" on Justia Law

Esparraguera was removed for performance reasons from her position as the Army’s top labor lawyer and placed into another high-level position at the same agency but outside the Senior Executive Service (SES). Federal civil service is divided into the competitive service, the excepted service, and the SES, 5 U.S.C. 2101a, 2102, 2103. . Esparraguera’s request for reconsideration was denied by the Under Secretary. She requested an informal hearing under 5 U.S.C. 3592(a)(2), which entitled her to “appear and present arguments” before an official designated by the Merit Systems Protection Board. By statute, she could not avail herself of the ordinary appellate provisions of the Board. Esparraguera submitted exhibits designated A through UU into evidence and read a prepared statement into the record. The Army neither presented evidence nor objected to the entry of these exhibits. Esparraguera did not expressly ask the Board to review her removal—and it did not. The Board official issued the Order Referring Record, which summarized the proceedings. The Army did not change its decision.Esparraguera argued that she was deprived of constitutionally protected property and liberty interests without due process. The Federal Circuit dismissed her appeal. An “Order Referring Record” is not a “final order or decision” of the Board, as required for appellate jurisdiction. View "Esparraguera v. Department of the Army" on Justia Law

Dr. Hessami was the Chief of Pharmacy at a West Virginia VA Medical Center when the first curative therapies for Hepatitis C Virus infection (HCV) entered the market. The Center struggled to provide patients with access to the enormously expensive but life-saving new therapies. The Regional Veteran Integrated Service Network funded and provided treatment guidelines for administration of HCV therapies. Hessami was familiar with HCV treatment guidelines, monitored all purchases of HCV medications, and provided information to the VISN. Hessami repeatedly raised concerns about the prescribing practices of one physician, asserting that treatment decisions were unnecessarily exposing patients to increased risk of adverse drug reactions and side effects, and overspending the Center’s HCV funds. Hessami claims that her comments were met with hostile, derogatory statements. A pharmacy employee accused Hessami of misconduct. Hessami was suspended and later demoted. The Merit Systems Protection Board dismissed her claim that she had been accused of wrongdoing and punished in reprisal for her protected disclosures regarding the agency’s spending.The Federal Circuit vacated. When determining whether an appellant has non-frivolously alleged that she disclosed information that she reasonably believed evidenced misconduct under the Whistleblower Protection Enhancement Act, 5 U.S.C. 2302(b)(8), the Board’s inquiry should be limited to evaluating whether the appellant has alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. The Board erroneously relied on the testimony of agency witnesses in dismissing Hessami’s appeal. View "Hessami v. Merit Systems Protection Board" on Justia Law

SFM owns the federal registration for SPROUTS for use in connection with grocery store services. The SPROUTS mark was first used in commerce not later than April 2002. Corcamore owns a federal trademark registration for SPROUT for use in connection with vending machine services, claiming a first use date of May 2008. Corcamore’s SPROUT mark is used on a cashless payment card, an associated customer loyalty program, and a website for customers.SFM filed a petition with the Trademark Trial and Appeal Board to cancel Corcamore’s registration. Corcamore argued that SFM lacked standing. The Board determined that the Supreme Court’s Lexmark decision was not applicable; Lexmark was limited to civil actions for false advertising (15 U.S.C. 1125(a)) and does not extend to cancellation of registered marks (section 1064). The court concluded that SFM had standing because it sufficiently alleged a real interest in the proceeding and a reasonable belief of damage. Corcamore informed SFM’s counsel that it would bring “procedural maneuvers,” then proceeded to file motions in violation of Board orders, to refuse to cooperate with discovery, and to disregard Board-imposed sanctions.The Board granted SFM default judgment, citing 37 C.F.R. 2.120(h) and its inherent authority to control its docket. The Board concluded that a lesser sanction would be inappropriate because Corcamore had already violated sanctions and had engaged in willful, bad-faith tactics, consistent with its “procedural maneuvers” letter, taxing Board resources. The Federal Circuit affirmed. SFM was entitled to maintain a petition for cancellation of trademark registrations. The Board did not abuse its discretion in imposing default judgment. View "Corcamore, LLC v. SFM, LLC" on Justia Law

Veterans sought certification for the class of veterans whose disability claims had not been resolved by the Board of Veterans Appeals within one year of the filing of a Notice of Disagreement (NOD), requesting judicial action to compel the Secretary of Veterans Affairs to decide all pending appeals within one year of receipt of a timely NOD. The Veterans Court requested that they separate or limit the requested class action into issues that meet the Federal Rule of Civil Procedure 23(b)(2) “commonality” standard. The veterans declined, stating that “systemic delay” exists in the VA claims system, and broad judicial remedy is required.The Veterans Court denied the requested class certification. While the case was pending, the Veterans Appeals Improvement and Modernization Act of 2017, 131 Stat. 1105 purportedly improved processing times by allowing claimants to choose: higher-level review, a supplemental claim, board review with a hearing and opportunity to submit additional evidence, board review without a hearing, but with an opportunity to submit additional evidence, or board review without a hearing or additional evidence, based on their priorities on appeal.The Federal Circuit affirmed the denial of class certification, citing the lack of proof of commonality. When Congress has crafted a comprehensive remedial structure, that structure warrants evaluation in practice before judicial intervention is contemplated. View "Monk v. Wilkie" on Justia Law

Mote served in the Air Force, 1961-1965, participating in missions to Vietnam, where Agent Orange was deployed. Mote later developed coronary artery disease and lung cancer. In 2010, Mote filed a disability claim based. In 2013, Mote filed his Notice of Disagreement with the denial of that claim. He died months later. Mrs. Mote substituted for his claim and filed a dependency-and-indemnity compensation claim. The VA denied Mrs. Mote’s claim in 2015; she filed her Notice of Disagreement and requested a Board of Veterans’ Appeals “Travel Board hearing.”Mote sought mandamus relief, 28 U.S.C. 1651, alleging unreasonable delay. The Veterans Court denied the petition, applying the “Costanza” standard. The government claimed, due to limited resources, it “could not predict how long” Mote might have to wait for a hearing. The Federal Circuit consolidated her appeal with others and held that the Veterans Court should use the Telecommunications Research & Action Center v. FCC (TRAC) standard to evaluate unreasonable-delay mandamus petitions rather than the Costanza standard. On remand, Mote requested a “reasoned decision” from the Board (within 45 days) and periodic progress reports. In March 2019. the Board scheduled her Travel Board hearing for May 2019. The Veterans Court dismissed Mrs. Mote’s mandamus petition without applying the TRAC standard. The Board subsequently remanded for further factual findings.The Federal Circuit again remanded, for a TRAC analysis, noting that Mote sought progress reports, in addition to a decision, and that the Veterans Court was not powerless to fashion other relief, such as a more lenient, specific, deadline. Whether a delay is so egregious as to justify the extraordinary writ depends on issues that are likely to arise frequently among veterans. The Veterans Court is uniquely well-positioned to address these issues first. View "Mote v. Wilkie" on Justia Law

The Fair Labor Standards Act (FLSA) exempts from overtime requirements those employed in an executive, administrative, or professional capacity, 29 U.S.C. 213(a)(1). If an employer violates the overtime requirement, it is liable for unpaid overtime compensation plus an equal amount as liquidated damages. If the employer shows “good faith and that [it] had reasonable grounds for believing that [its] act or omission was not a violation," the court may award no liquidated damages. The FLSA applies to civilian employees of the federal government. In 2007, the Naval Criminal Investigative Service (NCIS) classified Shea’s position, Investigations Specialist, as exempt from the overtime requirements.The Claims Court held that NCIS that it had not willfully misclassified Shea, so that the relevant period started in 2014, and found that Shea’s team leader duty was optional and comprised a minority of the Investigations Specialist position’s duties so that Shea’s primary duty was not management but was “conducting surveillance,” which would not qualify for the administrative exemption. The court awarded Shea compensatory damages and back pay but denied liquidated damages, finding NCIS’s classification decision objectively reasonable and in good faith. The Federal Circuit affirmed. The statute does not require documentation of the original classification decision and requiring frequent classification review would be untenable. Between the position description and the testimony of Shea, his supervisor, and NCIS’s classification witness, the evidence supports the holding that NCIS reasonably believed that Shea’s position had substantial managerial duties. View "Shea v. United States" on Justia Law

Ramirez was a Customs Officer, required to remain medically qualified to carry a service firearm. His wife reported to the police that he had cocked his service weapon and pointed it at her head. The police concluded that the allegations were unfounded. Ramirez was not charged. The Agency temporarily revoked Ramirez’s authority to carry a firearm and ordered a fitness-for-duty evaluation, with a psychiatric evaluation. His first evaluation was inconclusive. A second psychiatrist was also unable to assess Ramirez’s dangerousness but recommended that Ramirez be restricted from weapons-carrying positions based on his “lack of full cooperativeness.” A third-party psychologist had determined that Ramirez’s Minnesota Multiphasic Personality Inventory results were invalid due to “extreme defensiveness.” Ramirez answered every MMPI question; the finding was based on his answers. The Agency terminated him.In arbitration, the Agency denied Ramirez access to the MMPI assessments and interpretations. Ramirez offered the testimony of his own expert, who administered another MMPI and interpreted his scores as within a range typical among law enforcement personnel. After a fourth fitness-for-duty evaluation and MMPI assessment, the same psychologist again interpreted the results as invalid “because of high defensiveness.” The arbitrator affirmed Ramirez’s removal and denied Ramirez’s request to order the Agency to produce the records of his MMPI assessments.The Federal Circuit vacated. The arbitrator did not exceed his authority by seeking additional evidence after issuing his interim award but Ramirez was entitled to a meaningful opportunity to review and challenge the assessments underlying his adverse psychiatric evaluations. View "Ramirez v. Department of Homeland Security" on Justia Law

Taylor's leases for the Outer Continental Shelf (OCS), set to expire in 2007, incorporated Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1301, regulations. They required Taylor to leave the leased area “in a manner satisfactory to the [Regional] Director.” Taylor drilled 28 wells, each connected to an oil platform. In 2004, Hurricane Ivan toppled Taylor’s platform, rendering the wells inoperable. Taylor discovered leaking oil but took no action. In 2007, Taylor was ordered to decommission the wells within one year. Taylor sought extensions. The government required Taylor to set aside funds for its decommissioning obligations. For Taylor to receive reimbursement, the government must confirm the work was conducted “in material compliance with all applicable federal laws and . . . regulations" and with the Leases. The resulting Trust Agreement states that it “shall be governed by and construed in accordance with the laws of" Louisiana. Taylor attempted to fulfill its obligations. The government approved a departure from certain standards but ultimately refused to relieve Taylor of its responsibilities.Taylor filed claims involving Louisiana state law: breach of the Trust Agreement; request for dissolution of the trust account based on impossibility of performance; request for reformation for mutual error; and breach of the duty of good faith and fair dealing. The Federal Circuit affirmed the dismissal of the complaint. OCSLA makes federal law exclusive in its regulation of the OCS. To the extent federal law applies to a particular issue, state law is inapplicable. OCSLA regulations address the arguments underlying Taylor’s contract claims, so Louisiana state law cannot be adopted as surrogate law. View "Taylor Energy Co. LLC v. United States" on Justia Law