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

During the COVID-19 pandemic, the Federal Circuit issued administrative orders that prohibited public access to the National Courts Building. When the court resumed allowing counsel in the courthouse for argument in September 2021, it implemented protocols, including “[o]nly arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel” were permitted access. All persons entering the building had to complete Form 33C declaring under penalty of perjury that the individual was “scheduled to appear” and that the individual was either fully vaccinated for or received a negative test result for COVID-19 within 48 hours. Arguing counsel also completed Form 33A, certifying that “I am personally responsible for ensuring all individuals attending argument with me" will comply with the protocols.Attorneys unsuccessfully sought permission to bring additional attendees. On the day of their argument, four attorneys proceeded together to the courtroom. The clerk informed special counsel and a non-arguing partner that they could not be in the courtroom. They were escorted out. The attorneys argued that their non-compliance was not intentional and that it was not unreasonable for special counsel and the non-arguing partner to come to court to seek permission to attend the argument.The Federal Circuit did not impose discipline. The court noted that while there was no ambiguity in the instructions, the attorneys expressed earnest remorse, have not previously been accused of misconduct, and this situation has not arisen before. View "In Re Violation of the Revised Protocols for In-Person Arguments" on Justia Law

The Trademark Trial and Appeal Board affirmed an examiner’s refusal to register the trademark “TRUMP TOO SMALL” for use on T-shirts. According to Elster’s registration request, the phrase he sought to trademark invokes a memorable exchange between then-candidate Trump and Senator Marco Rubio from a 2016 presidential primary debate, and aims to “convey[] that some features” of Trump’s “policies are diminutive.” The Board’s decision was based on the Lanham Act, 15 U.S.C. 1052(c), and the Board’s finding that the mark included the surname of a living individual without his consent.The Federal Circuit reversed. Applying section 2(c) to bar registration of Elster’s mark unconstitutionally restricts free speech in violation of the First Amendment. Section 2(c), prohibits registration of a trademark that [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” As applied in this case, section 2(c) involves content-based discrimination that is not justified by either a compelling or substantial government interest. View "In Re Elster" on Justia Law

Alarm.com filed petitions seeking inter partes reviews (IPRs) under 35 U.S.C. 311–19 of claims of three Vivint patents. The Patent Trial and Appeal Board issued three final written decisions, which rejected Alarm.com’s challenges to certain claims. The Federal Circuit affirmed in 2018. In 2020, Alarm.com filed three requests for ex parte reexamination of those same claims under 35 U.S.C. 301–07. The Patent Office’s Director, without deciding whether the requests presented a “substantial new question of patentability,” vacated the ex parte reexamination proceedings based on section 315(e)(1), which, the Director concluded, estopped Alarm.com from pursuing the requests once the IPRs resulted in final written decisions.The district court dismissed Alarm.com’s complaint, reasoning that review under the Administrative Procedure Act, 5 U.S.C. 706(2)(A), (C), of the Director’s decision, was precluded by the ex parte reexamination scheme viewed as a whole. The Federal Circuit reversed The only portion of the ex parte reexamination statutory scheme that expressly precludes judicial review is section 303(c), but the preclusion established by that text does not apply to Alarm.com’s challenge. View "Alarm.com Inc, v. Hirshfeld" 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

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

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

In 2007, CalBio acquired two facilities and began upgrading them to biomass facilities. CalBio secured Authority to Construct permits that allowed construction and allowed the facilities to generate and sell electricity. The permits could be converted into Permits to Operate after the facilities met conditions, including emissions tests. CalBio labeled the facilities “in operation” in 2008. The facilities passed pre-parallel testing under PG&E interconnection agreements and began selling electricity on the spot market and later to PG&E. The facilities operated fairly continuously throughout 2009, occasionally noncompliant with emissions regulations.The 2009 American Recovery and Reinvestment Act, 123 Stat. 115, allowed entities to receive federal grants if they “placed in service” a renewable energy facility during 2009-2010 or began constructing property in 2009-2010. CalBio was experiencing financial difficulties but did not seek grants because its facilities had been placed in service in 2008. CalBio suspended operations in 2010 and sold the facilities. Akeida spent $15 million improving the facilities, which passed emissions tests in 2011. Akeida applied for grants, claiming that the facilities were placed in service when Akeida’s emissions improvements were certified.The Treasury Department largely rejected Akeida’s claims, reasoning that most of the property had been placed in service in 2008. The Claims Court and Federal Circuit agreed, applying Treasury’s regulatory definition of “placed in service,” which required it to determine the “taxable year in which the property is . . . availabil[e] for a specifically assigned function.” View "Ampersand Chowchilla Biomass, LLC v. United States" on Justia Law

The Enterprises, Fannie Mae and Freddie Mac, suffered financial losses in 2008 when the housing market collapsed. The Housing and Economic Recovery Act of 2008 (HERA), created the Federal Housing Finance Agency (FHFA), an independent agency tasked with regulating the Enterprises, including stepping in as conservator, 12 U.S.C. 4511.With the consent of the Enterprises’ boards of directors, FHFA placed the Enterprises into conservatorship, then negotiated preferred stock purchase agreements (PSPAs) with the Treasury Department to allow the Enterprises to draw up to $100 billion in exchange for senior preferred non-voting stock having quarterly fixed-rate dividends. A “net worth sweep” under the PSPAs replaced the fixed-rate dividend formula with a variable one that required the Enterprises to make quarterly payments equal to their entire net worth, minus a small capital reserve amount, causing the Enterprises to transfer most of their equity to Treasury, leaving no residual value for shareholders.Shareholders challenged the net worth sweep. Barrett, an individual shareholder, separately asserted derivative claims on behalf of the Enterprises. The Claims Court dismissed the shareholders’ direct Fifth Amendment takings and illegal exaction claims for lack of standing; dismissed for lack of subject matter jurisdiction the shareholders’ direct claims for breach of fiduciary duty, and breach of implied-in-fact contract; and found that Barrett had standing to bring his derivative claims, notwithstanding HERA. The Federal Circuit affirmed the dismissal of shareholders’ direct claims but concluded that the shareholders’ derivatively pled allegations should also be dismissed. View "Fairholme Funds, Inc. v, United States" on Justia Law

The Enterprises, Fannie Mae and Freddie Mac, suffered financial losses in 2008 when the housing market collapsed. The Housing and Economic Recovery Act of 2008 (HERA), created the Federal Housing Finance Agency (FHFA), tasked with regulating the Enterprises, including stepping in as conservator, 12 U.S.C. 4511. FHFA placed the Enterprises into conservatorship, then negotiated preferred stock purchase agreements (PSPAs) with the Treasury Department to allow the Enterprises to draw up to $100 billion in exchange for senior preferred non-voting stock having quarterly fixed-rate dividends. A “net worth sweep” under the PSPAs replaced the fixed-rate dividend formula with a variable one that required the Enterprises to make quarterly payments equal to their entire net worth, minus a small capital reserve amount, causing the Enterprises to transfer most of their equity to Treasury, leaving no residual value for shareholders.In a companion case, the Federal Circuit affirmed the dismissal of shareholders’ direct claims challenging the net worth sweep and concluded that the shareholders’ derivatively pled allegations should also be dismissed.The Washington Federal Plaintiffs alleged direct takings and illegal exaction claims, predicated on the imposition of the conservatorships, rather than on FHFA's subsequent actions. The Federal Circuit affirmed the dismissal of those claims. Where Congress mandates the review process for an allegedly unlawful agency action, plaintiffs may not assert a takings claim asserting the agency acted in violation of a statute or regulation. These Plaintiffs also lack standing to assert their substantively derivative claims as direct claims. View "Washington Federal v. United States" on Justia Law

VAS leased a facility that housed “ICE” in Warwick, Rhode Island. In 2017, the General Services Administration (GSA) issued a request for lease proposals for a facility to house ICE in Rhode Island. VAS offered the building that ICE was already occupying, indicating that the building met the requirements. After several revisions, GSA awarded the contract to a competitor. An Office of the Inspector General report found that the procurement was “significantly flawed,” because GSA accepted a late proposal; used a calculation of the lease’s present value that favored the chosen bid; awarded the contract to a bidder that did not own or control the property at the time of its proposal; failed to timely and adequately debrief VAS; and used unclear acquisition terminology. GSA declined to take any corrective action.The Claims Court dismissed VAS’s bid protest for lack of standing, reasoning that VAS failed to show it has a substantial chance of winning the lease. The Federal Circuit reversed. If VAS’s protest proves successful, VAS would have an opportunity to participate in any new procurement. Under such circumstances, a protester has a substantial chance of winning the award for standing purposes. View "VAS Realty, LLC v. United States" on Justia Law