Articles Posted in US Court of Appeals for the Federal Circuit

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Under the Native American Housing Assistance and Self-Determination Act (NAHASDA), 25 U.S.C. 4101–4243, tribes receive direct funding to provide affordable housing to their members. Grants are based on factors including “[t]he number of low-income housing dwelling units . . . owned or operated” by the tribes on NAHASDA’s effective date. Grantees are limited in how and when they may dispense the funds. The Tribes received NAHASDA block grants. In 2001, a HUD Inspector General report concluded that HUD had improperly allocated their funds because the formula applied by HUD had included housing that did not qualify. HUD provided the Tribes with the opportunity to dispute HUD’s findings, then eliminated the ineligible units from the data and deducted the amount overfunded from subsequent allocations. The Tribes brought suit under the Tucker Act and Indian Tucker Act, 28 U.S.C. 1491(a)(1) and 1505. The Claims Court held that NAHASDA is money mandating, but that the failure to give a hearing alone did not support an illegal exaction claim. Because the finding that NAHASDA is money-mandating was dispositive concerning jurisdiction, the government filed an interlocutory appeal. The Federal Circuit vacated and ordered dismissal for lack of subject-matter jurisdiction.The underlying claim is not for presently due money damages but is for larger strings-attached NAHASDA grants—including subsequent supervision and adjustment—and, therefore, for equitable relief. NAHASDA does not authorize a free and clear transfer of money. View "Lummi Tribe v. United States" on Justia Law

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Piccolo, an officer at the Bureau of Immigration and Customs Enforcement, within the Department of Homeland Security (DHS) made a disclosure related to DHS’s practice of releasing unaccompanied alien children to non-family sponsors with criminal records. The Merit Systems Protection Board (MSPB) dismissed, for lack of jurisdiction, his individual right of action appeal claiming that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. The MSPB found that he failed to make nonfrivolous allegations “to demonstrate that his protected activity was a contributing factor in the agency’s decision to take [adverse] personnel action,” 5 U.S.C. 1221(e)(1). The MSPB subsequently agreed that Piccolo had established jurisdiction and that “the AJ made legal errors in his jurisdictional findings” The Federal Circuit reversed and remanded, “reiterating” that a petitioner’s credibility including, as in this case, consideration of affidavits submitted by an allegedly retaliatory supervisor claiming no knowledge of the petitioner’s protected disclosure or motivation to retaliate, “relate[s] to the merits of [the] claim.” Non-frivolous allegations suffice at the jurisdictional stage Piccolo’s disclosures allege serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to negative personnel action deserve a merits hearing. View "Piccolo v. Merit Systems Protection Board" on Justia Law

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There are 10 federal holidays each year; six are celebrated on Mondays. All federal employees are paid for holidays that fall on a workday but on which the employee is not required to work. 5 C.F.R. 610.405-406. When employees are required to work on holidays, they are entitled to premium pay for their work on that day that is not overtime work, 5 U.S.C. 5546(b). Certain employees whose basic workweek of five workdays is Monday through Friday are granted days off “in-lieu-of” holidays when holidays fall on weekends. Employees whose basic workweek of five workdays is other than Monday through Friday enjoy corresponding benefits. Yanko has been employed, part-time, by the VA for several years. His regular workweek is Sunday through Thursday. Between December 15, 2009, and May 16, 2016, eight public holidays fell on either Friday or Saturday. Yanko, as a part-time employee, was not credited with an in-lieu-of holiday for any of those days, pursuant to a longstanding policy of the Office of Personnel Management. The Court of Federal Claims and Federal Circuit rejected Yanko’s claims, holding that the statute and Executive Order do not provide part-time employees with a right to in-lieu-of holidays when federal holidays fall outside the employees’ normal workweek. The term “basic workweek,” which appears in both, refers only to full-time employees. View "Yanko v. United States" on Justia Law

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Gazelle served in the U.S. Army, 1962-1965, and incurred service-connected disabilities. He receives compensation for: degenerative disc disease and joint disease of the cervical spine rated at 20 percent; degenerative disc disease and spondylosis of the thoracolumbar spine rated at 20 percent; left upper extremity radiculopathy rated at 10 percent; left lower extremity radiculopathy rated at percent; and post-traumatic stress disorder. In 2009, the VA increased Gazelle’s disability rating for his service-connected PTSD to 100 percent. Gazelle filed a Notice of Disagreement, alleging the VA failed to award him additional special monthly compensation under 38 U.S.C. 1114(s)(1). In 2011, Gazelle was denied entitlement to special monthly compensation because he did not have additional service-connected “disabilities . . . independently ratable as [60 percent] or more disabling.” Instead of adding together Gazelle’s additional service-connected disabilities at their respective amounts, the VA calculated the independent additional rating via the combined ratings table pursuant to 38 C.F.R. 4.25 (2010), which resulted in a combined rating of 50 percent. In 2014, the Board affirmed. The Veterans Court and Federal Circuit affirmed, holding that consistent with the plain meaning of subsection 1114(s), the Board appropriately applied the combined ratings table to determine eligibility for special monthly compensation benefits. View "Gazelle v. Shulkin" on Justia Law

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Prime Hospitals provide inpatient services under the Medicare program, submitting payment claims to private contractors, who make initial reimbursement determinations. Prime alleged that many short-stay claims were subject to post-payment review and denied. Prime appealed through the Medicare appeal process. Prime alleged short-stay claims audits were part of a larger initiative that substantially increased claim denials and that the Center for Medicare & Medicaid Services (CMS) was overwhelmed by the number of appeals. CMS began offering partial payment (68 percent) in exchange for dismissal of appeals. Prime alleged that it executed CMS's administrative settlement agreement so that CMS was contractually required to pay their 5,079 Medicare appeals ($23,205,245). CMS ultimately refused to allow the Prime to participate because it was aware of ongoing False Claims Act cases or investigations involving the facilities. Prime alleged that the settlement agreement did not authorize that exclusion. The district court denied a motion to dismiss Prime’s suit but transferred it to the Court of Federal Claims. The Federal Circuit affirmed in part. The breach of contract claim is fundamentally a suit to enforce a contract and does not arise under the Medicare Act, so the Claims Court has exclusive jurisdiction under the Tucker Act, 28 U.S.C. 1491. That court does not have jurisdiction, however, over Prime’s alternative claims seeking declaratory, injunctive, and mandamus relief from an alleged secret and illegal policy to prevent and delay Prime from exhausting administrative remedies. View "Alvarado Hospital, LLC v. Cochran" on Justia Law

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Rumsey, a Department of Justice employee, protested grant-making decisions and ultimately went to the media and members of Congress and filed a complaint with the Inspector General, alleging fraud. Her efforts resulted in corrective action. Rumsey alleged that the agency subsequently gave her improperly low performance ratings, moved some of her job duties to other employees, and canceled her telework agreement. She prevailed in an individual right of action appeal with the Merit Systems Protection Board, alleging whistleblower reprisal. Rumsey sought attorney’s fees under 5 U.S.C. 1221(g)(1)(B). At the time of that request, Rumsey and Slavet, one of the three lawyers that represented Rumsey during the Board proceedings, were in fee dispute before the District of Columbia Bar, Attorney/Client Arbitration Board. Rumsey “distanced herself from Slavet,” who had been Rumsey’s principal lawyer before and during the initial hearing before the administrative judge. The AJ had previously awarded sanctions based on Slavet’s failure to respond to discovery requests. The Board affirmed the AJ’s refusal to award attorney’s fees for Slavet’s services. Slavet and Rumsey settled their fee dispute, agreeing that Rumsey would pay $120,000 of the $145,445 sought by Slavet. The Federal Circuit reversed. Rumsey carried her burden of showing entitlement to some award of attorney’s fees. View "Rumsey v. Department of Justice" on Justia Law

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Rumsey, a Department of Justice employee, protested grant-making decisions and ultimately went to the media and members of Congress and filed a complaint with the Inspector General, alleging fraud. Her efforts resulted in corrective action. Rumsey alleged that the agency subsequently gave her improperly low performance ratings, moved some of her job duties to other employees, and canceled her telework agreement. She prevailed in an individual right of action appeal with the Merit Systems Protection Board, alleging whistleblower reprisal. Rumsey sought attorney’s fees under 5 U.S.C. 1221(g)(1)(B). At the time of that request, Rumsey and Slavet, one of the three lawyers that represented Rumsey during the Board proceedings, were in fee dispute before the District of Columbia Bar, Attorney/Client Arbitration Board. Rumsey “distanced herself from Slavet,” who had been Rumsey’s principal lawyer before and during the initial hearing before the administrative judge. The AJ had previously awarded sanctions based on Slavet’s failure to respond to discovery requests. The Board affirmed the AJ’s refusal to award attorney’s fees for Slavet’s services. Slavet and Rumsey settled their fee dispute, agreeing that Rumsey would pay $120,000 of the $145,445 sought by Slavet. The Federal Circuit reversed. Rumsey carried her burden of showing entitlement to some award of attorney’s fees. View "Rumsey v. Department of Justice" on Justia Law

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Miskill was employed as an IT Specialist with the Social Security Administration for 14 years. Her supervisor proposed to remove Miskill for violations of the time and attendance policy. The Assistant Associate Commissioner sustained four charges and removed Miskill from Federal Service. The Union submitted a grievance and subsequently invoked arbitration. Miskill obtained the records of the eight other individuals within her component at the Division of Network Engineering (DNE) for the relevant time period. Those records were analyzed by a CPA, Certified Product Examiner, and Certified Information Technology professional, who concluded that the eight other DNE employees had committed the same or similar violations as Miskill; none were investigated or charged with misconduct. The parties later stipulated that those employees were under investigation, but had not yet been charged. The Arbitrator sustained Miskill’s removal, finding that the comparators were not similarly situated because possible disciplinary action regarding them was still pending. The Federal Circuit vacated. Miskill sufficiently raised the issue of disparate treatment but arbitrator erred in its treatment of the comparator evidence. His categorical conclusion that the eight DNE employees could not be comparator employees because they were under investigation was an incorrect statement of law. Although the fact that a comparator employee is under investigation is a factor to be considered in determining whether that comparator is similarly situated, it is not a complete bar. View "Miskill v. Social Security Administration" on Justia Law

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Louisiana law recognizes the right to extract minerals separately from ownership of the land (mineral servitudes). Servitudes generally revert back to the landowner if not used for 10 years. The servitudes at issue were established in 1932-1934, by deeds contemplating the 10-year prescriptive period. From 1934-1937, the United States acquired 180,000 acres of the encumbered land in Kisatchie National Forest. In 1940, Louisiana’s Act 315 retroactively declared that outstanding mineral rights in land sold to the United States would be imprescriptible while the government remained the landowner. Nebo acquired mineral rights in 1942, believing its rights imprescriptible. The government sought a declaratory judgment. The Fifth Circuit held that Nebo’s rights to a specific tract were imprescriptible. In 1973, the Supreme Court held that Act 315 could not be applied retroactively to land acquired by the government under the Migratory Bird Conservation Act. The Court did not overrule Nebo, distinguishing its facts. The government began issuing mineral leases. Servitude owners sought declaratory relief. The Fifth Circuit held that Act 315 could not provide the federal rule of decision and that the Kisatchie servitudes had prescribed. The Supreme Court denied certiorari. One servitude holder sued in the Claims Court, based on the same facts. The Federal Circuit affirmed dismissal of permanent takings claims, contract claims, and some temporary takings claims under the statute of limitations. The Claims Court subsequently held that remaining temporary takings claims were barred by 28 U.S.C. 1500; because the judicial takings claim would require the Claims Court to question the merits of the Fifth Circuit’s decision it also lacked jurisdiction over those claims. View "Petro-Hunt, L.L.C. v. United States" on Justia Law

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Appellants, current and former employees of the U.S. Secret Service, alleged that, as a result of new practices, the government denied them the two consecutive days off from work to which they were entitled under 5 U.S.C. 6101(a)(3)(B). The Claims Court concluded that it was without jurisdiction because this provision is not money-mandating because it only concerns work scheduling practices and does not address employees’ entitlement to pay. The Federal Circuit affirmed that court's dismissal of the case. “At most,” section 6101(a)(3)(B) entitles employees to have their basic 40-hour workweek scheduled in a particular fashion; whether their basic 40- hour workweek is Monday through Friday with Saturday and Sunday off, or Monday through Saturday with Wednesday and Sunday off, does not, itself, affect employees’ statutory entitlement to pay. Because section 6101(a)(3)(B) does not “‘command[] payment of money to the employee,’” nor is it “reasonably amenable to the reading that it mandates a right to money damages,” violations of the subsection do not implicate the remedies prescribed in the Back Pay Act. View "Adams v. United States" on Justia Law