Justia Government & Administrative Law Opinion Summaries

The U.S. Air Force solicited bids from private companies to supply equipment and services to build a new radar system. Raytheon, Northrop Grumman, and Lockheed Martin cleared early hurdles; each received a solicitation for proposals for Engineering and Manufacturing Development. The Air Force subsequently sent Evaluation Notices to Raytheon and Northrop that “contractors would not be permitted to use IR & D costs to reduce their costs of performing . . . if those costs were implicitly or explicitly required for contract performance.” Raytheon objected; Northrop did not.. The Air Force then changed its view and accepted Raytheon’s treatment of certain costs as IR & D costs, but never communicated its new view to Northrop. In final proposals, Raytheon proposed IR & D cost reductions, whereas Northrop did not. The Air Force awarded the contract to Raytheon. Northrop and Lockheed filed protests with the Government Accountability Office (31 U.S.C. 3551). In response, the Air Force “decided to take corrective action” and to reopen discussions. Raytheon filed a protest under 28 U.S.C. 1491(b) to challenge the decision to take corrective action. The Federal Circuit affirmed denial of the protest, concluding that the reopening decision was proper based on the disparate-information violation. View "Raytheon Co. v. United States" on Justia Law

Astornet alleges that it is sole exclusive licensee and owner of all rights in the 844 patent, issued in 2009 to Haddad as the inventor and entitled “Airport vehicular gate entry access system” and asserted the patent against NCR, MorphoTrust USA, and BAE Astornet alleged that the three had contracts with the Transportation Security Administration (TSA) to supply boarding-pass scanning systems; that TSA’s use of the equipment infringed and would infringe the patent; and that NCR and MorphoTrust were bidding for another contract to supply modified equipment whose use by TSA would also infringe. The Federal Circuit affirmed dismissal, finding that Astornet’s exclusive remedy for the alleged infringement was a suit against the government in the Court of Federal Claims under 28 U.S.C. 1498. View "Astornet Techs., Inc. v. BAE Sys., Inc." on Justia Law

The Transportation Security Administration (TSA) prohibited Ege, a pilot for Emirates Airlines, from flying to, from, or over the United States. Ege had experienced travel problems and had submitted an online inquiry to the DHS’s Traveler Redress Inquiry Program. He believes the TSA’s prohibition is based on his alleged inclusion on the “No-Fly List,” a subset of the Terrorist Screening Database (TSDB) used by the TSA to “deny boarding of individuals on commercial aircraft operated by U.S. carriers or flying to, from, or over the United States.” He sought removal from the No-Fly List or, at a minimum, a “meaningful opportunity to be heard.” The D.C. Circuit dismissed his petition for lack of standing and lack of jurisdiction. Neither the TSA nor the Department of Homeland Security (DHS), the only two rnamed agencies, has “authority to decide whose name goes on the No-Fly List.” The Terrorist Screening Center, which is administered by the Federal Bureau of Investigation), is “the sole entity with both the classified intelligence information” Ege wants and “the authority to remove” names from the No-Fly List/TSDB. View "Ege v. Dep't of Homeland Sec." on Justia Law

The TSA screens passengers and property moving by passenger aircraft, 49 U.S.C. 44901(a) and is authorized to impose a “uniform fee . . . on passengers . . . in air transportation and intrastate air transportation originating at airports in the United States.” Airlines collect the fees from passengers and remit the funds to TSA. In 2013, Congress reset the fee to “$5.60 per one-way trip in air transportation or intrastate air transportation that originates at an airport in the United States.” TSA implemented the amendment; a “one-way trip” means a continuous trip from one point to another with no stopover exceeding specified limits, so that a trip from New York to Los Angeles to San Francisco and back to New York, with stopovers exceeding four hours would be three one-way trips. Airlines challenged TSA’s rules, arguing that TSA lacked authority to impose fees in excess of $11.20 on roundtrip itineraries that involved multiple “one-way trips.” While the case was pending, Congress amended the statute, mooting that claim. The airlines also claimed that the statute precludes TSA from charging a fee on travel that begins abroad but includes a connecting flight within the U.S. The D.C. Circuit held that the airlines have standing but accepted TSA’s explanation that its construction of ambiguous text better aligns the imposition of the fee with those who benefit from the security services provided. View "Airlines for Am. v. Transp. Sec. Admin" on Justia Law

The 2002 Homeland Security Act provides that the Transportation Security Administration (TSA) “shall prescribe regulations prohibiting the disclosure of information . . . if the Under Secretary decides that disclosur[e] would . . . be detrimental to the security of transportation,” 49 U.S.C. 114(r)(1)(C). TSA promulgated regulations prohibiting the unauthorized disclosure of “sensitive security information,” including “[s]pecific details of aviation security measures.” 49 CFR 1520.7(j). In 2003, TSA briefed all air marshals, including MacLean, about a potential plot to hijack passenger flights. A few days later, MacLean received from TSA a text message temporarily cancelling all overnight missions from Las Vegas. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal; he told a reporter about the decision. TSA fired him. The Merit Systems Protection Board rejected claims that his disclosure was whistleblowing activity under 5 U.S.C. 2302(b)(8)(A), which protects employees who disclose information that reveals “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety” unless disclosure was “specifically prohibited by law.” The Federal Circuit vacated. The Supreme Court affirmed. MacLean’s disclosure was not specifically prohibited by law because regulations do not qualify as “law” under the whistleblower statute. Interpreting the word “law” to include rules and regulations could defeat the purpose of the statute, allowing an agency to insulate itself simply by promulgating a regulation that “specifically prohibited” all whistleblowing. MacLean’s disclosure was not prohibited by Section 114(r)(1). That statute does not prohibit anything, but only authorizes TSA to “prescribe regulations.” View "Department of Homeland Security v. MacLean" on Justia Law

In a 2011 memorandum, the Secretary of the Navy explained that the Navy would be “challenged to reduce enlisted manning to meet future planned end strength controls due to record high retention in the current economic environment.” To address these concerns and to “optimize the quality” of the Navy, the Secretary initiated an Enlisted Retention Board (ERB) to identify 3,000 sailors for separation. The Navy notified all personnel, outlined a timeline, and identified particular pay grades and occupational classifications or specialties that would be subject to review. Sailors were informed that if their job rating was over-manned and slated for review, they could apply for conversion to an undermanned rating that would not be subject to review. The Navy also published the quotas for each overmanned rating that would be subject to the ERB to give the sailors information about competition among the different ratings and to enable them to make informed decisions about their careers. The ERB selected 2,946 sailors for honorable discharge. A putative class of about 300 of those discharged challenged their dismissal and sought back pay. The Court of Federal Claims dismissed the merit-based claims as nonjusticiable and denied remaining claims on the administrative record. The Federal Circuit affirmed. View "Anderson v. United States" on Justia Law

Daoud, an 18-year-old American citizen, had an email conversation with undercover FBI employees posing as terrorists who responded to messages that he had posted online. Daoud planned “violent jihad” and discussed his interest in committing attacks in the U.S, using bomb-making instructions that he had read in Inspire magazine, an English-language organ of Al Qaeda, and online. Daoud selected a Chicago bar as the target of a bomb that the agent would supply. The agent told him the bomb would destroy the building and would kill “hundreds” of people. Daoud replied: “that’s the point.” On September 14, 2012, Daoud parked a Jeep containing the fake bomb in front of the bar. In an alley, in the presence of the agent, he tried to detonate the fake bomb and was arrested. In jail, he tried to solicit someone to murder the undercover agent with whom he had dealt. The government notified Daoud, under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801, that it intended to present evidence derived from electronic surveillance conducted under the Act. His attorney sought access to the classified materials submitted in support of the government’s FISA warrant applications. The government supplied a heavily redacted, unclassified response and a classified version, accessible only to the court with a statement that disclosure “would harm the national security.” The harm was detailed in a classified affidavit signed by the FBI’s Acting Assistant Director for Counterterrorism. The district judge ordered the materials sought by defense counsel turned over. In an interlocutory appeal, the Seventh Circuit reversed, stating that in addition to having the requisite security clearance the seeker of such information must establish need to know. View "United States v. Daoud" on Justia Law

Following the 1941 attack on Pearl Harbor, each of the Oil Companies entered into contracts with the government to provide high-octane aviation gas (avgas) to fuel military aircraft. The production of avgas resulted in waste products such as spent alkylation acid and “acid sludge.” The Oil Companies contracted to have McColl, a former Shell engineer, dump the waste at property in Fullerton, California. More than 50 years later, California and the federal government obtained compensation from the Oil Companies under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601, for the cost of cleaning up the McColl site. The Oil Companies sued, arguing the avgas contracts require the government to indemnify them for the CERCLA costs. The Court of Federal Claims granted summary judgment in favor of the government. The Federal Circuit reversed with respect to breach of contract liability and remanded. As a concession to the Oil Companies, the avgas contracts required the government to reimburse the Oil Companies for their “charges.” The court particularly noted the immense regulatory power the government had over natural resources during the war and the low profit margin on the avgas contracts. View "Shell Oil Co. v. United States" on Justia Law

In 2008, the FBI issued its Domestic Investigations and Operations Guide (DIOG) to implement newly revised Department of Justice guidelines, addressing use of race and ethnicity in investigations. Under this guidance, the FBI may identify and map “locations of concentrated ethnic communities” to “reasonably aid the analysis of potential threats and vulnerabilities … assist domain awareness,” and collect “[f]ocused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community.” The ACLU submitted a Freedom of Information Act request, seeking release of documents concerning policy on collecting such information, and records containing information actually collected. The FBI initially released 298 pages (48 partially redacted) of training material, previously released for a similar request by the ACLU’s Atlanta affiliate. The ACLU filed suit. With additional releases, the FBI identified 1,553 pages of potentially responsive records: training materials, “domain intelligence notes,” “program assessments,” “electronic communications,” and maps. The district court held that the FBI appropriately withheld records under a FOIA exemption for law enforcement information whose release could “interfere with enforcement proceedings,” 5 U.S.C. 552(b)(7)(A). The Sixth Circuit affirmed; release of publicly available information selectively used in investigations may reveal law-enforcement priorities and methodologies and interfere with enforcement. The ACLU’s proposed procedure for resolving the dispute was inadequately protective of sensitive information; in camera review was appropriate. View "Am. Civil Liberties Union v. Fed. Bureau of Investigation" on Justia Law

Based on misconduct that he allegedly committed in his previous positions as a police officer and deputy sheriff, the Transportation Security Administration suspended and ultimately revoked Gargiulo’s security clearance, which was necessary for his job as a Federal Air Marshall. The Merit Systems Protection Board affirmed. On appeal, Gargiulo argued that the agency deprived him of constitutional due process by not timely providing him with documentary materials relied upon in deciding to suspend his security clearance. Although he was given notice of the reasons for the suspension of his security clearance as early as August 2008, he was not provided with copies of the documentary materials until May 2009, three months after he was suspended from his job. The Federal Circuit affirmed, stating that security clearance decisions do not implicate any due process rights. View "Gargiulo v. Dep't of Homeland Sec." on Justia Law