Justia Government & Administrative Law Opinion Summaries

The Federal Grant and Cooperative Agreement Act, 31 U.S.C. 6301, states that an executive agency must use: “a procurement contract . . . when . . . the principal purpose … is to acquire … property or services for the direct benefit or use” of the government and must adhere to the Competition in Contracting Act and the Federal Acquisition Regulation However, an “agency shall use a cooperative agreement . . . when . . . the principal purpose … is to transfer a thing of value … to carry out a public purpose of support or stimulation … instead of acquiring . . . property or service” and can avoid procurement laws. Under Section 8 of the Housing Act, HUD provides rental assistance, including entering Housing Assistance Program (HAP) contracts and paying subsidies directly to private landlords. A 1974 amendment gave HUD the option of entering an Annual Contributions Contract (ACC) with a Public Housing Agency (PHA), which would enter into HAP contracts with owners and pay subsidies with HUD funds. In 1983, HUD’s authority was amended. HUD could administer existing HAP contracts, and enter into new HAP contracts for existing Section 8 dwellings by engaging a PHA if possible, 42 U.S.C. 1437f(b)(1). Later, HUD began outsourcing services and initiated a competition to award a performance-based ACC to a PHA in each state, with the PHA to assume “all contractual rights and responsibilities of HUD.” After making an award, HUD chose to re-compete, seeking greater savings, expressly referring to “cooperative agreements,” outside the scope of procurement law. The Government Accountability Office agreed with protestors that the awards were procurement contracts. HUD disregarded that recommendation. The Claims Court denied a request to set aside the award. The Federal Circuit reversed, finding that the awards are procurement contracts, not cooperative agreements.View "CMS Contract Mgmt. Servs. v. United States" on Justia Law

Biggers had been employed by the Navy for 29 years and in 2007 was Security Manager for the Naval Facilities Engineering Service Center. The position required him to maintain a top secret security clearance. In 2008, a duty officer found that an outer vault door of the Secret Internet Protocol Router Network room was left open. Biggers notified the Commanding Officer of the potential violation. After an investigation, the Command Evaluator recommended that all security personnel (including Biggers) have their access to classified material suspended because “the investigation revealed numerous systemic problems, violations and deficiencies.” Biggers’ security clearance was suspended pending a final determination by the Department of Navy Central Adjudication Facility (DONCAF) pursuant to 5 U.S.C. 7513. Ultimately, DONCAF concluded that the information provided by Biggers and the Center “sufficiently explained, mitigated, or provided extenuating circumstances,” and Biggers was found eligible for a Top Secret clearance and assignment to a sensitive position and returned to duty status.. His suspension had lasted nine months. The Navy did not provide back pay or treat him as employed for calculation of retirement benefits. Biggers alleged that the suspension was motivated by retaliatory animus arising from his participation in an EEOC proceeding. An AJ determined that the Merit Systems Protection Board may not review the merits of a security clearance revocation or suspension. The Federal Circuit affirmed, holding that Biggers was not entitled to back pay. View "Biggers v. Dep't of the Navy" on Justia Law

Plaintiffs are or were air-traffic-control specialists or traffic-management coordinators with the Federal Aviation Administration and alleged that the FAA’s policies governing how to compensate them when they worked overtime did not comply with the time-and-a-half- payment requirement of the Fair Labor Standards Act 29 U.S.C. 207. They sought damages under 29 U.S.C. 216(b) and invoked jurisdiction under the Tucker Act, 28 U.S.C.1491. The Claims Court ruled in their favor, holding that the agency’s personnel policies are contrary to the FLSA and are not authorized by any other provision of law. The Federal Circuit vacated, holding that the FAA has such authority under the federal personnel laws, 5 U.S.C. 5543 and 6120-6133. The court remanded for determination of whether the challenged FAA policies are fully, or only partly, within the authority of those title 5 exemptions from the FLSA. View "Abbey v. United States" on Justia Law

The companies obtained an oil and gas lease from the government for a 5760-acre tract on the Outer Continental Shelf. They made an initial bonus payment of $23,236,314 and have paid additional rental payments of $54,720 per year. The lease became effective on August 1, 2008, and had an initial term running through July 31, 2016. It provided that it issued pursuant to and was subject to the Outer Continental Shelf Lands Act of August 7, 1953, (OCSLA) 43 U.S.C. 1331 and “all regulations issued pursuant to the statute in the future which provide for the prevention of waste and conservation of the natural resources of the Outer Continental Shelf and the protection of correlative rights therein; and all other applicable statutes and regulations.” In 2010, an explosion and fire on the Deepwater Horizon semi-submersible oil drilling rig in the Gulf of Mexico killed 11 workers and caused an oil spill that lasted several months. As a result, the government imposed new regulatory requirements, Oil Pollution Act (OPA), 33 U.S.C. 2701. The companies sued for breach of contract. The Claims Court and Federal Circuit ruled in favor of the government, finding that the government made the changes pursuant to OCSLA, not OPA. View "Century Exploration New Orleans, LLC v. United States" on Justia Law

DeLeon and Williams were separated from their jobs as cooks at a facility at Fort Riley installation, for allegedly removing government-owned food from the facility without authorization. The facility was a non-appropriated fund instrumentality (NAFI), and DeLeon and Williams were paid with non-appropriated funds. After denial grievances, filed under the collective bargaining agreement with their union, an arbitrator upheld the charges and removal penalties. The Federal Circuit dismissed for lack of jurisdiction, citing 5 U.S.C. 2105(c), which excludes NAFI employees from appealing adverse actions to the Merit Systems Protection Board As NAFI employees, DeLeon and Williams had no route available other than the grievance process; 5 U.S.C. 7121 (f) does not establish jurisdiction. View "Deleon v. Dep't of the Army" on Justia Law

In 2001 KBR agreed to provide the Army with logistics support services during Operation Iraqi Freedom. Individual task orders required KBR to install, operate and maintain dining services near Mosul, Iraq on a cost-plus-award-fee basis. KBR selected ABC, a subcontractor, to build a prefabricated metal dining facility and to provide dining services for a camp population of 2,573. In June 2004, the Army ordered KBR to stop construction of the metal facility and begin construction of a reinforced concrete facility for an estimated 2,573 to 6,200+ persons. Instead of requesting bids for the new work, KBR kept ABC as the subcontractor due to the urgency of the request. ABC submitted a new proposal with a total monthly cost about triple the monthly cost initially quoted. ABC attributed the increased costs to additional labor and equipment to serve a larger population and to a drastic increase in the cost of labor and a severe shortage of staff willing to work in Iraq. Due to a calculation error, it was determined that ABC’s proposal was reasonable. KBR’s management reviewed and approved a change order, embodying ABC’s proposal. In 2005 the subcontract ended and title to the dining facility passed to the Army. In 2007, the Defense Contract Auditing Agency suspended payment of certain costs paid by KBR to ABC pursuant to the change order. KBR prepared a new price justification for the concrete dining facility and ultimately filed suit, seeking recovery of the $12,529,504 in costs disapproved for reimbursement. The Claims Court awarded $6,779,762. The Federal Circuit affirmed.View "Kellogg Brown & Root Servs. v. United States" on Justia Law

The Job Corps program, a national residential training and employment program administered by the Department of Labor, was reformed by the 1998 Workforce Investment Act, which authorized the Secretary of Labor to enter into agreements with government agencies or private organizations to operate “Job Corps centers,” 29 U.S.C. 2887. Adams is the incumbent contractor for the Gadsden and the Shriver Job Corps Centers. When the contracts expired, Adams was disqualified from renewal because of the small business limitation imposed by the Department on the bids. Adams cannot does not qualify as a small business. The limit is $35.5 million in annual receipts, 13 C.F.R. 121.201. After unsuccessful bid protests, the Claims Court and the Federal Circuit upheld the administrative actions against challenges that they were arbitrary. View "Adams & Assocs., Inc. v. United States" on Justia Law

Mitchell began working as a Social Security Administration lawyer in 1998. The Department of Justice appointed her as a Special Assistant United States Attorney in 2006, a one-year appointment during which she remained an employee of and was paid by, the SSA. The Department extended that appointment, so that she served more than two years in the Special Assistant position. Effective December 21, 2008, the Department hired Mitchell as an AUSA in the same office. The Department’s form 50-B cited 28 U.S.C. 542, which authorizes AUSA appointments generally. The form stated that the appointment was not to exceed 18 months, was “temporary” and “subject to” successful completion of a pending background investigation. The background check concluded in July 2009. In August 2009, the Department provided Mitchell another form 50-B, citing 28 U.S.C. 542, but stating that Mitchell was subject to a two-year trial period beginning August 2, 2009, during which she could be removed without cause or appeal. The Department fired Mitchell days before that period was to end, without notice or opportunity to respond. The Merit Systems Protection Board dismissed an appeal for lack of jurisdiction, concluding that Mitchell was not an “employee” under 5 U.S.C. 7511(a). The Federal Circuit reversed, reasoning that Mitchell had “completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less,” considering the time during which the background check was performed.View "Mitchell v. Merit Sys. Protection Bd." on Justia Law

Salem, under contract, coordinated Marine Corps Community Services (MCCS) shipments around the country. Estes, a federal motor carrier, handled some shipments under its common carrier tariff, without a written contract. The Salem-MCCS contract provided that Salem would pay carriers directly and invoice MCCS. Salem agreed not to represent itself as a representative of MCCS. All bills of lading indicated that “third party freight charges” were to be billed to “Marine Corps Exchange C/O Salem Logistics.” Delivery receipts specified that charges should be billed to the “Marine Corps Exchange” and were signed by a representative of the MCCS or MCX delivery location. MCCS paid Salem for some of the shipments; Salem never paid Estes. After becoming aware that Salem was not paying carriers, MCCS began paying carriers directly, for shipments for which it had not yet paid Salem. Estes sued Salem and the government, seeking to recover $147,645.33. The Claims Court dismissed, finding that there was no privity of contract between Estes and the government and rejecting a claim under 49 U.S.C. 13706, which governs the liability of consignees for shipping charges incurred by a common carrier. The Federal Circuit reversed and remanded, concluding that the bills of lading were sufficient to establish privity. View "Estes Express Lines v. United States" on Justia Law

In 1997, the U.S. Department of Commerce determined, under 19 U.S.C. 1673b, that freshwater crawfish tail meat from China was being sold in the U.S. at less than fair value and directed Customs to suspend final computation of duties on such entries and to require a deposit or bond to cover estimated duties. In 2000-2001, New Phoenix made entries of the product. The exporters were subject to “new shipper” review to determine whether they were entitled to antidumping-duty rates distinct from the default rate. Each of five bonds issued by Great American to cover anticipated duties was for $1,219,458 and was signed by Davis and accepted by the government, although the power-of-attorney filed with Customs indicated a limit of $1 million on his authority. Great American later revoked his authority. In 2003, Commerce published final results, finding that the exporter was not entitled to a different rate and sought payment from New Phoenix and Great American. The amount owed is greater than the amounts of the bonds. The trial court granted the government summary judgment, without pre- and post-judgment interest, finding that the government did not timely address those issues. The Federal Circuit affirmed that the bonds were not enforceable beyond Davis’s stated authority and the denial of pre-judgment interest View "United States v. Great Am. Ins. Co" on Justia Law