Justia Government & Administrative Law Opinion Summaries

Adams was employed as an Information Technology Specialist with the Missile Defense Agency of the Department of Defense, a position designated Special Sensitive and requiring the employee to maintain a Top Secret security clearance with access to Sensitive Compartmented Information. The Defense Intelligence Agency notified Adams that it had suspended his access to Sensitive Compartmented Information and had made a preliminary determination to revoke his security clearance for violations of agency security regulations. Weeks later, the Missile Defense Agency notified Adams that he would be suspended from his position indefinitely without pay. The Merit Systems Protection Board sustained the decision and the Federal Circuit affirmed, holding that the agency had afforded Adams the required minimal procedural protections and that “an employee is not entitled to a transfer to a nonsensitive position absent a separate transfer right arising from some” other source. Adams remained on indefinite suspension without pay pending completion of the agency appeals process. The Department of Defense terminated his employment and denied his request for early retirement. The MSPB held that it lacked jurisdiction to review the termination and denial. The Federal Circuit affirmed in part, but reversed concerning MSPB authority to review denial of a retirement request.

Jensen, a licensed customs broker, filed with Customs 308 protests on behalf of importers, seeking reliquidation of 1,529 entries of softwood lumber from Canada. More than two years later, Jensen inquired about the status of the protests. After nearly two months, Customs replied that the protests had been consolidated under a “lead protest” and that a draft decision letter had been prepared, but not finalized, and suggested that Jensen contact the Port of Detroit for a list of consolidated protests. Jensen expressed concern that Port of Detroit might not possess a complete list, as some protests had been filed in other ports. Receiving no response, Jensen filed suit in the Court of International Trade to preserve appeal rights. Customs subsequently stated, via email, that pursuant to 19 C.F.R. 177.7(b), it would not issue a ruling with respect to any issue pending before the Court of International Trade. Jensen then sought a writ of mandamus to compel Customs to rule on its protests. The Court of International Trade held that it lacked jurisdiction under 28 U.S.C. 1581(i), reasoning that Jensen could seek accelerated disposition of its protests by Customs under 19 U.S.C. 1515(b) and contest any subsequent denial. The Federal Circuit affirmed.

Whiteman was employed by the FAA and reported violations of regulations, mismanagement, and abuses of authority. Whiteman alleged that colleagues and supervisors began to threaten and intimidate her. She filed EEO actions and reported one incident to police. She was excluded from the radar room and stripped of duties, then reassigned to the control tower instead of her previous job. In 2003, Whiteman settled with the FAA resolving all claims, “known or unknown” in exchange for guaranteed priority consideration for the next available supervisor position. December 9, 2003, Whiteman applied for a position. No other applicants were considered. December 18, 2003, the FAA adopted pay scale changes, which reduced the salary of the position. Whiteman accepted the position, but sued, alleging that the FAA’s delay in notifying her of the vacancy breached the settlement agreement and caused loss of earnings. The district court dismissed for lack of subject matter jurisdiction. Whiteman appealed to the Merit Systems Protection Board contending that the FAA had unlawfully retaliated against her for whistleblowing. The Board concluded that the claim was barred. The Federal Circuit affirmed in part. The MSPB incorrectly concluded that Whiteman’s post-settlement retaliation claim was collaterally estopped, but its conclusion that the settlement agreement is enforceable is supported by substantial evidence.

Gallo served as an FAA air traffic control specialist from 1982 until 1995 when she experienced a job-related injury for which she received OWCP benefits. Gallo recovered enough to return to light duty. In 1996 she lost her medical certification to continue as an operational ATCS. Until 2000 she was assigned to a “non-operational” automation specialist position, which did not provide the same retirement credit or weekend pay. She received OWCP benefits for the differential. Gallo fully recovered in 2000 and received medical clearance; the Agency terminated OWCP benefit. She applied for restoration under 5 U.S.C. 8151(b)(2), which provides the right to priority consideration for restoration to federal employees who have overcome a compensable injury. The Agency assigned Gallo to a supervisory ATCS position. In setting her salary, the Agency did not take into account pay increases granted to operational ATCS employees during while Gallo was working as an automation specialist. The Merit Systems Protection Board denied her claim. The Federal Circuit reversed. The Board erred in interpreting “resumes employment with the Federal Government” under section 8151(a), and any pay increases that Gallo would have received based on her creditable service time with the federal government are “benefits based on length of service.”

In 1978, Hages acquired a ranch in Nevada occupying approximately 7,000 acres of private land and approximately 752,000 acres of federal lands under grazing permits. Their predecessors had acquired water rights now located on federal lands, 43 U.S.C. 661. Hages had disputes with the government concerning release of non-indigenous elk onto federal land for which Hages had grazing permits, unauthorized grazing by Hages’ cattle, and fence and ditch maintenance. After a series of incidents, in 1991, Hages filed suit alleging takings under 43 U.S.C. 1752(g), and breach of contract. After almost 20 years, the Claims Court awarded compensation for regulatory taking of water rights; physical taking of water rights; and range improvements. The court awarded pre-judgment interest for the takings, but not for the range improvements. The Federal Circuit vacated in part. The regulatory takings claim and 43 U.S.C. 1752 claim are not ripe. To the extent the claim for physical taking relies on fences constructed 1981-1982, it is untimely. To the extent the physical takings claim relies on fences constructed 1988-1990, there is no evidence that water was taken that Hages could have put to beneficial use. Hages are not entitled to pre-judgment interest for range improvements because Hages failed to identify a cognizable property interest.

In 2008, Rocha was appointed to an excepted service position at the State Department. By letter (July, 2010), the Department informed Rocha that his appointment would soon expire and that the agency would not convert his appointment into a career or career-conditional position. An administrative judge concluded that the board had no jurisdiction over Rocha’s appeal because he was serving under an excepted service appointment in the Federal Career Intern Program. Rocha was informed by the administrative judge that the decision would become final on December 15, 2010. The initial decision was served upon Rocha by email; he had consented to electronic filing. On June 3, 2011, Rocha filed a petition with the board, which informed Rocha that his petition was untimely and that it would consider the merits only if he established good cause for untimely filing. In response, Rocha asserted that he never received notification that his case had been dismissed. On December 22, the board dismissed, noting that its regulations require an e-filer to monitor case activity at e-Appeal Online to ensure receipt of all documents. Rocha presented no evidence of circumstances beyond his control that affected his ability to comply with time limits. The Federal Circuit affirmed.

Locane, born in 1983, was adopted and does not know her family medical history. She suffered her first symptoms within two weeks of being vaccinated in 1997 and was diagnosed with Crohn’s Disease. She sought compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-1 to -34, alleging that she suffered Crohn’s disease as a result of hepatitis B vaccination. A special master denied the claim, finding Locane’s disease began before her vaccination and that Locane failed to prove by a preponderance of the evidence that the vaccine caused or significantly aggravated her disease. The Federal Circuit affirmed.

Reeves served as a heavy mortar crewman during combat offensives, 1942-1945, and was awarded three Bronze Stars. In 1981, Reeves filed a claim seeking service-connected disability benefits, with a medical opinion, stating that Reeves had bilateral, nerve-type hearing loss in 1962, attributable to noise exposure or to treatment with quinine for malaria. He also submitted records of an audiogram and statements from officers with whom he had served. The board denied the claim, stating that hearing loss documented in 1962 was too remote from active service. Reeves did not appeal. In 2004, the board granted an application to re-open, citing new evidence of treatment from 1946 to 1954, and awarded him service-connected disability benefits, effective 2002. In 2006, Reeves sought revision to an earlier effective date. The board denied the motion. The Veterans Court affirmed, rejecting an assertion that the evidence of record in 1983 was such that the board had no choice but to resolve in his favor that his hearing disability was incurred in service. Reeves died in 2011; the Federal Circuit substituted his widow and reversed. The Veterans Court misinterpreted 38 U.S.C. 1154(b) in rejecting the clear and unmistakeable error claim.

Heinzelman, born in 1971, received a flu vaccine in 2003, and within 30 days, was hospitalized for Guillain-Barre syndrome, a disorder affecting the peripheral nervous system. She was previously employed full-time as a hairstylist earning $49,888 per year. Due to her injury, Heinzelman will never be able to work again and is eligible to receive SSDI benefits of approximately $20,000 per year. In 2007, she sought compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa-1 to 300aa-34. A special master rejected the government’s argument that her eligibility for SSDI benefits should be considered in determining compensation under the Vaccine Act, finding that SSDI is not a "federal . . . health benefits program" within the meaning of section 300aa-15(g), and awarded $1,133,046.08, plus an annuity to cover future medical expenses. According to the government, Heinzelman's lost earnings award would have been roughly $316,000 less had the special master taken her anticipated SSDI benefits into account. The Claims Court and the Federal Circuit affirmed.

In 1983, the Nuclear Waste Policy Act, 42 U.S.C. 10101-10270, authorized the Department of Energy to contract with nuclear facilities for disposal of spent nuclear fuel and high level radioactive waste. The Standard Contract provided that rights and duties may be assignable with transfer of SNF title. Plaintiff entered into the Standard Contract in 1983 and sold its operation and SNF to ENVY in 2002, including assignment of the Standard Contract, except one payment obligation. Plaintiff transferred claims related to DOE defaults. As a result of DOE’s breach, ENVY built on-site dry-storage facilities. The Claims Court consolidated ENVY’s suit with plaintiff’s suit. The government admitted breach; the Claims Court awarded ENVY $34,895,467 (undisputed damages) and certain disputed damages. The Federal Circuit affirmed in part. Plaintiff validly assigned pre-existing claims; while partial assignment of rights and duties under the contract was not valid, the government waived objection. The assignment encompassed claims against the government. Legal and lobbying fees to secure Vermont approval for mitigation were foreseeable, but other expenses were not recoverable. ENVY failed to prove costs of disposing of contaminated material discovered due to the breach and its characterization of spent fuel moved to dry storage. ENVY is not entitled to recover cost of capital for funding mitigation, or Resource Code 19 payroll loader overhead costs, but may recover capital suspense loader overhead costs,.