Justia Government & Administrative Law Opinion Summaries

Hayden, a member of the Air Force Reserves, has worked as a protocol specialist at Wright-Patterson Air Force Base since 2002. The Base is geographically divided into Areas A and B: each has a protocol office. Hayden worked in B Flight, classified as GS-9, until 2010. Because he acquired new duties in transferring to Area A, the agency upgraded Hayden’s position to GS-11. In 2012, Hayden’s supervisor requested to upgrade his position to GS-12, “based on accretion of duties.” Hayden received orders to begin active service in April, 2012. In May, a human resources position classifier notified Hayden’s supervisor that she needed to interview Hayden in person. As a result, his upgrade was cancelled because he was in nonpay status. In July, protocol support duties for AFSAC were transferred to another unit, reducing the need for GS-12 level employees. Hayden’s supervisor did not resubmit the upgrade request. In May 2013, Hayden received a performance feedback memorandum which stated that he was no longer working at the GS-12 level. Hayden filed a request for corrective action alleging Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301, violations. The Federal Circuit agreed with the Merit Systems Protection Board in rejecting his reemployment and retaliation claims, but vacated its rejection of his claim of discrimination based on military service and remanded.. View "Hayden v. Dep't of the Air Force" on Justia Law

International Boundary and Water Commissioner Ruth hired McCarthy as an attorney in 2009. Within months, McCarthy had prepared four legal memoranda challenging Commission activities as “gross mismanagement,” contrary to existing law, and characterizing certain officers as lacking “core competencies.” McCarthy submitted a report: “Disclosures of Alleged Fraud, Waste and Abuse” to the Office of Inspector General (OIG), and other federal agencies and informed Ruth of his reports. Ruth terminated McCarthy’s employment, citing McCarthy’s failure to support the executive staff in a constructive manner. McCarthy filed a complaint with the Office of Special Counsel (OSC), alleging whistleblower retaliation, citing his report to OIG, but not the legal memoranda, as protected activity. Existing precedent held that reports made in the course of an employee’s normal duties and reports made to a supervisor about a supervisor’s conduct were not protected under the Whistleblower Protection Act, 103 Stat. 16. The administrative judge found no retaliation. The Merit Systems Protection Board and Federal Circuit affirmed in 2012. While McCarthy’s petition was pending, Congress enacted the Whistleblower Protection Enhancement Act of 2012, 126 Stat. 1465-76, under which McCarthy’s legal memoranda could be protected disclosures. The Act can be applied retroactively to pending cases. McCarthy did not raise the change in law while his petition for rehearing was pending. The Federal Circuit affirmed MSPB’s refusal to reopen his case. McCarthy has not exhausted OSC remedies with respect to the memoranda, rendering the MSPB without jurisdiction. View "McCarthy v. Merit Sys. Protection Bd." on Justia Law

Before enactment of the 2008 Veterans’ Benefits Improvement Act, if a veteran seeking DVA benefits died while his claim was pending, the veteran’s survivor could not take the place of the veteran and continue prosecuting the claim. The survivor had to file a claim for accrued benefits, 38 U.S.C. 5121, proceeding from the beginning of the process, regardless of how far the veteran’s claim had progressed. The Act, 38 U.S.C. 5121A, authorizes eligible survivors to be “substituted as the claimant for the purposes of processing the claim to completion.” The Federal Circuit rejected a challenge to regulations intended to implement the Act, which require that a request to substitute be filed with the agency of original jurisdiction (DVA regional office) within one year of the claimant’s death; the prospective substitute is required to submit evidence of his eligibility to substitute; and, if the claimant died while his appeal was pending before the Board of Veterans’ Appeals, the Board must dismiss the appeal without prejudice so that the agency of original jurisdiction can address the substitution request. If the agency of original jurisdiction grants the request to substitute, then the case returns to the same place on the Board’s docket that it held at the time of the veteran’s death. View "Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs" on Justia Law

GA entered into a blanket purchase agreement (BPA 218), with the Department of Veterans Affairs (VA) in June 2011, to furnish trained service dogs for disabled veterans. A year later, the contracting officer sent an email questioning GA's performance. On August 31, 2012, the officer sent notice terminating BPA 218 for default and suspending open orders, informing GA that it had the right to appeal under the disputes clause of the contract. On December 21, 2012, GA sent a letter to the VA’s Rehabilitation Research & Development Service, arguing that it had fulfilled its duties and that the default termination should be converted to a termination for the convenience of the government. On February 28, 2013, GA sent the contracting officer a “formal demand.” On March 21, the officer sent a letter stating that she had received the claim but needed supporting documentation. GA began compiling documentation, but on May 3, the officer sent another letter, stating that she would not reconsider her decision, but that GA could appeal under 41 U.S.C. 7104(b). On January 7, 2014, GA filed suit. The Court of Federal Claims dismissed, finding the claim time-barred because, while the February 2013 letter qualified as a request for reconsideration, the officer did not reconsider, so the statute of limitations never tolled. The Federal Circuit reversed. The 12-month statutory appeal period did not begin to run until the officer rejected the request for reconsideration on May 3. View "Guardian Angels Med. Serv. Dogs, Inc. v. United States" on Justia Law

Cogburn served in the Army, 1968-1971, including 12 months in Vietnam. In 1974, Cogburn sought VA disability compensation and pension benefits based on a severe nervous condition. A 1975 denial of his pension claim did not address the disability claim. He did not appeal. In 1983, Cogburn again sought disability compensation and pension benefits. He was diagnosed with Post-PTSD after a VA examination that failed to connect Cogburn’s PTSD to stressors from military service; the VA granted a non-service connection pension but denied service connection. In 1985, the Board of Veterans’ Appeal concluded that the record did not identify any in-service traumatic events, noting that Cogburn repeatedly failed to attend VA examinations to determine if service-connected stressors caused his PTSD. The Board determined that “the preponderance of the medical evidence suggests that the veteran’s post service emotional and adjustment difficulties are manifestations of schizophrenia.” There was no opportunity for further review. In 2002, Cogburn claimed that his 1974 disability compensation claim was never adjudicated. The RO determined that the claim was adjudicated as a claim for PTSD and had been implicitly denied in the 1985 decision. In 2012, on remand, the Board affirmed the finding of implicit denial. The Veterans Court and Federal Circuit affirmed; the implicit denial rule applies to both formal and informal claims. Its use does not violate the VA due process regulation's notice provision.. View "Cogburn v. McDonald" on Justia Law

Ford imported automotive goods and paid duties. Ford later claimed North American Free Trade Agreement (NAFTA) preference on those imports and sought a refund of duties under 19 U.S.C. 1520(d). The parties relied on a June 1997 entry as a test case. Ford was required to file certificates of origin within one year of importation, but did not file the certificate until November 1998 and was unable to secure a written waiver. Customs denied Ford’s claim, then denied Ford’s protest. The Federal Circuit rejected Ford’s argument that Customs had an affirmative obligation under its regulations to accept Ford’s untimely filing, but remanded for determination of whether traditional refund claims, not processed through the electronic “reconciliation” program, should enjoy the same waiver benefit available through that program. On remand, Customs explained that the reconciliation program (19 U.S.C. 1484(b)) is a procedural means for processing import entries, including an ability to claim the substantive duty refund benefit under section 1520(d), and has statutory safeguards that permit Customs to remedy mistakes and misconduct in awarding NAFTA duty free treatment. Many reconciliation program safeguards are not available in the traditional post-entry duty refund process. The reconciliation program provides added confidence in the legitimacy of the importer’s claims. The Federal Circuit affirmed that Customs’ interpretation of the statutory scheme was reasonable. View "Ford Motor Co. v. United States" on Justia Law

In 2006, the Department of Commerce announced that it was changing a method it used to calculate whether imported goods are being sold in the United States at less than fair value, i.e., being dumped. Previously, Commerce employed “zeroing” in that calculation: for goods sold above fair value, Commerce treated the sale price as being at (rather than above) fair value—it zeroed out margins above fair value and permitted no offset against below-fair-value sales in calculation of the average, resulting in larger average dumping margins than if offsetting had been allowed. The new policy generally made it more difficult to find dumping. Commerce stated that the change would apply “in all current and future antidumping investigations as of the effective date” and that it would apply the final modification to all investigations pending as of the effective date. There were seven such investigations, all initiated by petitions filed after March 6, 2006, when the new no-zeroing policy was proposed. Two companies found to have engaged in dumping argued that their cases were governed by the new policy. The Federal Circuit upheld Commerce’s determination that they were not. Commerce spoke ambiguously on timing in adopting its new policy and reasonably resolved the ambiguity to exclude the cases. View "Diamond Sawblades Mfr. Coal. v. United States" on Justia Law

MCM Portfolio LLC owns U.S. Patent No. 7,162,549 (the ‘549 patent). Hewlett-Packard Co. (HP) filed a petition requesting inter partes review of claims 7, 11, 19, and 21 of the ‘549 patent. The Patent Trial and Appeal Board determined that there was a reasonable likelihood that HP would prevail with respect to at least one of the challenged claims based on obviousness and rejected MCM’s argument that it could not institute inter partes review under 35 U.S.C. 315(b). Thereafter, the Board issued a final decision concluding that the challenged claims would have been obvious. MCM appealed. The Federal Circuit affirmed, holding (1) the Court lacks jurisdiction to review the Board’s decision that the institution of inter partes review was not barred by 35 U.S.C. 315(b); (2) on the merits, inter partes review does not violate Article III or MCM’s right to a trial by jury under the Seventh Amendment; and (3) the Board correctly found that claims 7, 11, 19, and 21 of the ‘549 patent would have been obvious. View "MCM Portfolio LLC v. Hewlett-Packard Co." on Justia Law

The Department of Commerce determined that utility scale wind towers from the People’s Republic of China and utility scale wind towers from the Socialist Republic of Vietnam (together, the subject merchandise) were sold in the United States at less than fair value and that it received countervailable subsidies. The International Trade Commission made a final affirmative determination of material injury to the domestic industry. The determination was by divided vote of the six-member Commission. The Court of International Trade upheld the Commission’s affirmative injury determination. Siemens Energy, Inc., an importer of utility scale wind towers, challenged the determination. The issues on appeal concerned the interpretation and effect of the divided vote. The Federal Circuit affirmed, holding that the Court of International Trade properly upheld the Commission’s affirmative injury determination. View "Simens Energy, Inc. v. United States, Wind Tower Trade Coalition" on Justia Law

Straight Path IP Group owns U.S. Patent No. 6,108,704 (“the ’704 patent”), entitled Point-to-Point Internet Protocol, which describes protocols for establishing communication links through a network. Sipnet EU S.R.O. filed a petition for inter partes review of the ‘704 patent, requesting cancellation of claims 1-7 and 32-42, as anticipated by and obvious over several prior-art references. The Patent Trial and Appeal Board conducted the review and reached a final decision canceling the challenged claims based on determinations of anticipation and obviousness. The Federal Circuit reversed, holding that the Board adopted a claim construction in arriving at its decision that was erroneous, even under the broadest-reasonable-interpretation standard. Remanded for further proceedings under the correct construction. View "Straight Path IP Group, Inc. v. Sipnet EU S.R.O." on Justia Law