Justia Government & Administrative Law Opinion Summaries

The Department of Defense issued a solicitation seeking offers for a multiple award, indefinite delivery/indefinite quantity contract for information technology services. The agency described the services as “Net-Centric Integrated Enterprise Information Technology Services,” including help desk, server, network, and applications support services. The solicitation instructed bidders to submit separate bids for the Basic Contract, Task Order 1, and Task Order 2. Every bidder, including Comint, submitted separate bids. The Department then limited the initial award to the Basic Contract and amended the solicitation. Comint acknowledged the amendment. The Source Selection Evaluation Board evaluated each proposal according to factors in the solicitation, the most important of which was “Quality/Capability.” The Board rated Comint’s proposal as “marginal,” concluding that Comint had a “moderate to high associated risk of unsuccessful performance.” The district court rejected Comint’s challenge of the award to another bidder; Comint lacked standing to challenge the solicitation or award because the agency had not erred in rejecting Comint’s bid on technical grounds. The Federal Circuit affirmed, holding that Comint failed to preserve its right to challenge the solicitation by failing to raise objections before award and that Comint has not demonstrated standing to protest the agency’s failure to award it a contract. View "Comint Sys. Corp. v. United States" on Justia Law

Free-Flow and Pregis are competitors in the air-filled packaging cushion industry. Air-filled cushions are used to fill space in shipping boxes carrying lightweight items that do not take up all the available space in a box. Demand for lightweight packaging rose rapidly with the growth of internet retail sales. “Air-pillow” packaging emerged as a preferred alternative to polystyrene foam, “peanuts,” or crumpled paper as filling material. Free-Flow holds three patents relating to air-filled packaging technology that claim priority to applications filed in 1999-2000. Free-Flow claims to have improved on prior art machines by increasing the ease of loading film, and by creating a more reliable seal to produce uniformly-inflated air cushions. Pregis sought a declaratory judgment of noninfringement and invalidity and took the unusual step of suing the PTO, its then-director, and Free-Flow under the Administrative Procedure Act, 5 U.S.C. 701–706, to prevent the issuance of two pending Free-Flow patent applications. The district court dismissed Pregis’ APA claims for lack of subject matter jurisdiction, but upheld a verdict of noninfringement and invalidity against Free-Flow. The Federal Circuit affirmed. View "Pregis Corp. v. Kappos" on Justia Law

A VA regional office awarded King disability compensation for residuals of a left knee surgery and right knee arthritis. King later sought disability compensation for disabilities of the back and hips on a direct basis and as secondary to his service-connected knee disabilities. Records revealed no treatment for back or hip problems during King's active duty service 1973-1974. King underwent a VA spine examination in 2000. The examiner diagnosed minimal degenerative joint disease of both hips and lumbosacral spine, related to age. A private physician disagreed. In 2007, the Board of Veterans denied King's appeal. The Veterans Court remanded. Additional evidence was developed and, in 2008, the Board obtained an opinion from a Veterans Hospital Administration orthopedist that it was not likely that King’s back and bilateral hip disabilities were directly caused or permanently worsened by the service-connected knee disabilities. The Board and Court of Appeals for Veterans Claims affirmed the denial. The Federal Circuit affirmed, rejecting an argument that the Veterans Court erred by discounting lay testimony offered by King and his wife. The Veterans Court did not fail to consider the proffered lay evidence, so King’s appeal was merely a challenge to the weight given his evidence.View "King v. Shinseki" on Justia Law

In 1993, Bowers and the FAA entered into a lease for office and warehouse space. The FAA agreed to monthly payments, $19,509, beginning in January 1994, payable each month “in arrears.” The parties modified the lease eight times until termination on September 30, 2006. In 2008, Bowers filed a claim of $82,203.72 with the contracting officer (41 U.S.C. 7103(a)(1)), for the final month’s rent and property damage. Bowers claimed that because the contract provided for payment “in arrears,” payment made in September, 2006 was for the August rent. The contracting officer held that rent was actually paid in advance, but allowed other, minor, claims. Before the Civilian Board of Contract Appeals, Bowers attempted to establish that the FAA had not paid rent for three months in 1994. CBCA rejected the attempt and Bowers signed a certificate of finality. In 2009 Bowers submitted two more claims: $56,640.78 (plus interest) for assertedly unpaid rent for January, February, and March of 1994 and that the FAA underpaid by $664 every month from October 1, 1998 to October 1, 2006, a total of $64,408.00 (plus interest). The contracting officer denied the claims. The Claims Court held that the CBCA’s final decision precluded the litigation. The Federal Circuit affirmed. View "Bowers Inv. Co, LLC v. United States" on Justia Law

The 1989 Ethics Reform Act, 103 Stat. 1716, limited a federal judge’s ability to earn outside income, but provided for automatic, non-discretionary cost of living adjustments (COLA); whenever a COLA for General Schedule federal employees takes effect under 5 U.S.C. 5303, the salary of judges “shall be adjusted.” The only limitation on General Schedule COLAs is a presidential declaration of a “national emergency or serious economic conditions” 5 U.S.C. 5303(b). Nonetheless, in 1995, 1996, 1997, and 1999, General Schedule employees received adjustments, but Congress blocked adjustments for judges. Judges alleged violation of Article III, which provides that “Compensation” for federal judges “shall not be diminished during their Continuance in Office.” The district court agreed, but the Federal Circuit reversed, based on United States v. Will, 449 U.S. 200 (1980). In 2001, Congress enacted legislation blocking COLAs in certain years. Judges sought back pay. The Court of Federal Claims dismissed; the Federal Circuit affirmed. The Supreme Court vacated. On remand, the Federal Circuit held that the claim was not precluded, but affirmed dismissal. On rehearing en banc, the Federal Circuit overruled its earlier decision, holding that the 1989 Act triggered the Compensation Clause’s basic protections. In this unique context, the Constitution prevents Congress from abrogating that precise commitment to COLAs. The 1989 Act controls over the 2001 enactments. View "Beer v. United States" on Justia Law

In 2007 the Postal Service awarded Tip Top a contract under which the Postal Service would assign individual projects by issuing work orders. In 2009, the Postal Service issued a work order to replace the air conditioning system at the Main Post Office in Christiansted, Virgin Islands, for the price of $229,736.92. As a result of that work Tip Top submitted a claim and request for an equitable adjustment under the Contract Disputes Act, 41 U.S.C. 7101-7109, in the amount of $34,553.77, consisting of a subcontractor’s price for a change, plus 10% profit, 4% insurance, and 4% gross receipts tax, plus $9,655 for “Preparation Costs & Extended Overhead” and $2,745 for “Legal Fees.” The Postal Service Board of Contract Appeals ruled that Tip Top was entitled to recover $2,565. The Board ruled that Tip Top was not entitled to recover the balance of the amount claimed because it had failed to demonstrate that the costs at issue were incurred as a result of the change order. The Federal Circuit reversed and remanded, with directions to grant the appeal in its entirety. The ruling was based upon an error of law and not supported by substantial evidence. View "Tip Top Constr., Inc.v. Donahoe" on Justia Law

Landowners along a trail in Missouri and Kansas sought to join an existing “takings” suit against the United States, concerning the Rails-to-Trails program, filed under the Tucker Act. The initial plaintiff characterized her suit as a class action on behalf of herself and similarly situated persons; the owners qualified as such persons. The class action had been filed before the running of the six-year statute of limitations for the Tucker Act; however, the plaintiffs who sought to join as named parties did not do so until after the limitations period had run. The Court of Federal Claims refused to permit the original plaintiff to amend her complaint for joinder of additional plaintiffs; their suits were dismissed as time barred. The Federal Circuit reversed; the merits are before the Court of Federal Claims. In the meantime, the owners filed “protective suits” under 28 U.S.C. 1346, the “Little Tucker Act” which authorizes suits against the government in federal district courts, if damages sought do not exceed $10,000. The district courts declined to stay those suits pending the appeal and dismissed them as time barred. The Federal Circuit vacated and instructed the district courts to dismiss those suits without prejudice. View "Evans v. United States" on Justia Law

Semper worked as a probation officer for the District Court of the Virgin Islands until he was removed from his position on August 6, 2010. The reason given for his termination was that he was negligent in supervision of a convicted defendant who was killed while on release pending sentencing. . Semper filed a complaint in the Claims Court against the United States, the Chief Judge, and the court’s Chief Probation Officer. The Claims Court dismissed, holding that it lacked jurisdiction. The Federal Circuit affirmed, first holding that the Civil Service Reform Act of 1978, 5 U.S.C. 7501-7543, applied to Semper, regardless of which governmental branch employed him. He was classified as a member of the “excepted service,” not the “competitive service,” and was not among those excepted service employees whom the statute makes eligible for judicial or administrative review of adverse agency action. View "Semper v. United States" on Justia Law

Hillyard suffered a head injury and was hospitalized for two weeks while serving in the U.S. Army. Hillyard filed a single claim for service connection for a mental condition, which he attributed to his in-service head injury. The Veterans Administration denied his claim and the Board affirmed and subsequently denied Hillyard’s request for revision. The Veterans Court affirmed. Hillyard later filed a second request for revision alleging clear and unmistakable error (CUE) by the Board in failing to consider and apply 38 U.S.C. 105(a) and 1111, a different CUE allegation from the one he made in his first request. The Board dismissed the second request for revision with prejudice, concluding 38 C.F.R. 20.1409(c) permitted only one request for revision to be filed. The Veterans Court affirmed. The Federal Circuit affirmed. The interpretation of Rule 1409(c) proffered by the VA is consistent with the language of the regulation and is in harmony with the VA’s description of the regulation in its notice of rule-making. View "Hillyard v. Shinseki" on Justia Law

Conyers and Northover were indefinitely suspended and demoted, respectively, from their positions with the Department of Defense after they were found ineligible to occupy “noncritical sensitive” positions. The Department argued that, because the positions were designated “noncritical sensitive,” the Merit Systems Protection Board could not review the merits of the Department’s determinations under the precedent set forth in Navy v. Egan, 484 U.S. 518 (1988). The Board held that Egan limits review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The Federal Circuit reversed and remanded. Egan prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information. View "Berry v. Conyers" on Justia Law