Justia Government & Administrative Law Opinion Summaries

The plaintiff was demoted from Supervisory Special Agent in the IRS criminal investigation office to Investigative Analyst based on: failure to obtain appropriate approval authority for certain actions; unauthorized disclosure of taxpayer information; and repeated entry of false information in the agency's computer system. The Merit Systems Protection Board found the third charge to be unsubstantiated, but affirmed. The Federal Circuit remanded, vacating the first charge because witnesses did not contradict the plaintiff's testimony that he had oral authority to refer cases to the U.S. Attorney and the administrative law judge did not address other evidence. The second charge would not justify the demotion.

The plaintiff was an "excepted" (not in the competitive service or the Senior Executive Service) employee of the Veterans Canteen Service and was not preference-eligible (as a veteran or close relative). She appealed a notice of termination for misconduct. The Merit Systems Protection Board dismissed for lack of jurisdiction because she had been hired under 38 U.S.C. 7802(e). The Federal Circuit affirmed, holding that the plain language of the statute allows removal of such employees without regard to other civil service laws. Civil Service Due Process Amendments in 1990 did not extend protections to excepted, non-preference eligible employees.

The Department of Veterans Affairs disability rating schedule governs entitlement to compensation based on loss of earning capacity. The Veterans Court held that the petitioner, whose 100% disability rating is based on multiple disabilities, no one of which is rated at 100%, did not qualify under 38 U.S.C. 1114(s), which provides $320 in additional monthly compensation to a veteran with âa service-connected disability rated as totalâ if the veteran either has another independently rated disability or combination of disabilities rated at 60%, or is permanently housebound by reason of service-connected disability. The Federal Circuit affirmed. The use of the singular and plural terms was purposeful and intended to limit payment of the special monthly compensation to a veteran who has at least one condition that has been rated as totally disabling. The court rejected an argument based on a rule that allows the Secretary to rate the veteran as âtotally disabled based on individual unemployabilityâ even if a veteran does not qualify for a rating of 100%.

After the Board of Veteransâ Appeals denied the veteran's claim for service-connected benefits for a thyroid disorder, the Veterans Court vacated and remanded the case for reconsideration. The veteran sought fees of $11,710.57 for attorney work under the Equal Access to Justice Act, 28 U.S.C. 2412. The district court awarded $8,601.80 and denied a request for supplemental fees for time spent defending the original fee request. The Federal Circuit reversed and remanded. A veteran is entitled to attorney fees incurred throughout the litigation, including those incurred in preparation and defense of the fee application to the extent those fees are defensible; the veteran was partially successful in defending his original fee application.

The U.S. Department of Energy entered into standard contracts to accept spent nuclear fuel from utility companies by January 1998 and has not yet accepted delivery, resulting in suits by several nuclear utilities. The district court awarded Dominion damages. The Federal Circuit affirmed, first holding that the Nuclear Waste Policy Act, 42 U.S.C. 10222, permitted assignment by Dominion's predecessor, that the assignment complied with the Act and the contract, and that the assignment included the right to pre-assignment damages. The district court properly denied discovery on the government's claim that Dominion has benefited from its breach because it has not yet been required to pay a one-time fee for disposal of waste generated prior to 1983.

The VA denied the plaintiff's claim for benefits for post-traumatic stress disorder resulting from a sexual assault that she claimed occurred in 1984, while she was stationed in Japan. The Veterans Court and Federal Circuit affirmed. The Veterans Court committed harmless error in stating that a medical opinion based on a post-service exam cannot be used to establish the occurrence; the Veterans Board of Appeals detailed its consideration of all of the plaintiff's evidence and determined that the preponderance of the evidence was against a finding of verification of the occurrence.

In 1978 the VA published an Agent Orange Program Guide that was the basis for denial of many claims of service-related injury. While a suit, challenging the Guide as issued in violation of the Administrative Procedures Act (APA), was pending, Congress enacted the 1984 Veteransâ Dioxin and Radiation Exposure Compensation Standards Act, which rendered the Guide irrelevant to new claims. Plaintiffs continued to pursue their suit and, in 2005, new named plaintiffs were added. In 2008, the district court granted the government's 1979 motion for judgment. The D.C. Circuit first remanded the case for transfer under the 1988 Veterans Judicial Review Act, 38 U.S.C. 502, but, on rehearing, ordered dismissal. The veterans refiled in the Federal Circuit, which dismissed for failure to file within the Act's six-year limitations period. When the claim was filed, no court had jurisdiction to hear APA challenges to VA regulations and the 1988 Act did not retroactively create a cause of action.

In 1983 the Department of Energy contracted to dispose of spent nuclear fuel from plaintiff's Columbia, Washington facility. The DOE failed to perform and, with its own temporary storage filling up, the plaintiff began work on its own permanent storage facility in 2002. The trial court award of $56.9 million included amounts for modifications to the temporary storage facility, indirect overhead, and financing costs. The Federal Circuit vacated. The plaintiff was entitled to damages for modifications only to the extent that it could prove that, but for the breach, those costs would not have been incurred; the trial court did not require the plaintiff to prove causation. The trial court properly included an award for indirect overhead calculated to a reasonable certainty. The government was entitled to sovereign immunity (28 U.S.C. 2516) with respect to the award of $6 million in interest; the contract did not waive immunity.

Following a Veterans Court remand of a claim for service benefits relating to post-traumatic stress, the veteran submitted a petition for attorney fees and expenses in the amount of $6,193. The VA found that the veteran was a prevailing party, with a net worth of less than $2,000,000, and that the VA position was not substantially justified, as required by the Equal Access to Justice Act, 28 U.S.C. 2412, but that several billing items should be denied for lack of sufficient detail. The Veterans Court agreed and reduced the fee award by $437.50, rejecting a claim that additional detail would violate attorney-client privilege. The Federal Circuit affirmed. The Act does not abrogate privilege; its specificity requirements do not require disclosure of the exact contents of communications identified on a bill and do not violate privilege. Having been publicly filed, the general nature of the claim and documents filed are not privileged.

The Department of Commerce has employed a technique known as "zeroing" when it investigates a claim that a foreign producer is "dumping" products in the United States at a price below the price in the country of origin. Using zeroing, margins for sales of merchandise sold by a particular exporter at dumped prices are aggregated and margins for sales at non-dumped prices are given a value of zero; the alternative, known as "offsetting," involves aggregating both dumped and non-dumped prices. The statute, 19 U.S.C. 1677(35)(A), refers to calculation of a "dumping margin" equal to "the amount by which the normal value exceeds the export price." Domestic producers read the word "exceeds" as requiring zeroing. The Federal Circuit has previously upheld use of zeroing in both investigation and administrative review. Following a World Trade Organization decision disapproving the practice, the Department began using offsetting for investigations and zeroing in administrative review. The Court of International Trade upheld the practice. The Federal Circuit reversed, holding that the Department had not adequately justified use of two different interpretations of an ambiguous statute.