Justia Government & Administrative Law Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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In 2009, Avalos was confirmed as the Under Secretary of Agriculture for Marketing and Regulatory Programs at the USDA. Avalos met Trevino, also a USDA political appointee. Trevino later moved to the Department of Housing and Urban Development and was involved in developing a vacancy announcement and reviewing candidates for the Field Office Director position in HUD’s Albuquerque office. Avalos applied, but the certificate of eligible candidates from which selection would be made listed only a preference-eligible veteran. Treviño sought to consider additional candidates; she did not complete a pass-over request but let the certificate expire and began revising the vacancy announcement. HUD again announced the vacancy. Avalos applied and was the only candidate listed on the certificate. Avalos got the position.During a regular review of appointments, the Office of Personnel Management (OPM) noted that HUD had appointed Avalos without OPM approval and advised HUD that it would not have approved the appointment. OPM instructed HUD to “regularize” the appointment. HUD reconstructed the hiring record and found no intent to grant an unauthorized preference but determined that it could not certify that the appointment met merit and fitness requirements because of Treviño’s involvement. Avalos received a Notice of Proposed Termination. The Merit Systems Protection Board upheld the termination. The Federal Circuit affirmed. The Board correctly found that it had jurisdiction to review Avalos’s appointment and substantial evidence supports the decision to remove Avalos to correct his illegal appointment. View "Avalos v. Department of Housing and Urban Development" on Justia Law

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Water levels in Eagle Lake, near Vicksburg, are controlled by the Muddy Bayou Control Structure, part of the Army Corps of Engineers’ Mississippi River flood control program. Eagle Lake's predictable water levels allowed the plaintiffs to build piers, boathouses, and docks. In 2010, the Corps determined that “sand boils” threatened the stability of the nearby Mississippi River Mainline Levee, a component of the same flood-control program. Unusually wet weather in 2011 exacerbated the problem. The Corps declared an emergency, finding that the rise in nearby water levels threatened the structural integrity of the levee and “that the likelihood of breach was over 95%.” The Corps decided to flood Eagle Lake to reduce pressures along the levee. Because of that action, the levee did not breach. A breach would have resulted in widespread flooding affecting “about a million acres and possibly between four thousand to six thousand homes and businesses.” The damage to the plaintiffs’ properties would have exceeded the damage caused by raising the lake level. The plaintiffs sued, seeking compensation. The Federal Circuit reversed the Claims Court’s finding that the government was liable and award of $168,000 in compensatory damages. The relative benefits doctrine bars liability. The plaintiffs were better off as a result of the Corps’ actions. If the government had not raised the water level, the levee would almost certainly have breached, and the plaintiffs would have suffered more damage. View "Alford v. United States" on Justia Law

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Young was serving a one-year probationary period working for the IRS when the agency removed her for misconduct. Young appealed to the Merit Systems Protection Board, challenging her removal as an unlawful adverse action and filed a formal Equal Employment Opportunity (EEO) complaint alleging that she had been terminated because of discrimination based on her national origin, disability, and prior protected EEO activity. An administrative judge (AJ) dismissed Young’s action, reasoning that Young was a probationary employee, not entitled to full appellate rights. Young filed a complaint with the Office of Special Counsel, alleging whistleblower retaliation. The Office did not take action.Young then filed an Individual Right of Action (IRA) appeal, claiming that she had disclosed attendance violations and a hostile work environment, including refusal to accommodate her disabilities, and that she had been removed from her position in retaliation for those disclosures. The AJ ordered Young to make a nonfrivolous showing that she had made protected disclosures that led to her removal with detailed factual support. Young did not respond. The AJ dismissed her IRA appeal. Young contends that she was unable to file a timely response because of health issues, but she never sought an extension and she submitted other filings during the period she was given for filing a response. The Federal Circuit affirmed. Young failed to make nonfrivolous allegations that she made disclosures that the Board has jurisdiction to address in an IRA appeal, View "Young v. Merit Systems Protection Board" on Justia Law

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Caquelin's land was subject to a railroad easement. The Surface Transportation Board granted the railroad permission to abandon the line unless the process (16 U.S.C. 1247(d)) for considering the use of the easement for a public recreational trail was invoked. That process was invoked. The Board issued a Notice of Interim Trail Use or Abandonment (NITU), preventing effectuation of the abandonment approval and blocking the ending of the easement for 180 days, during which the railroad could try to reach an agreement with two entities that expressed interest in the easement for trail use. The NITU expired without such an agreement. The railroad completed its abandonment three months later.Caquelin sued, alleging that a taking occurred when the government, by issuing the NITU, prevented the termination of the easement during the 180-day period. Following a remand, the Claims Court again held that a taking had occurred. The Federal Circuit affirmed, rejecting the contention that the multi-factor approach adopted for government-created flooding in the Supreme Court’s 2012 “Arkansas Game” decision displaced the categorical-taking analysis adopted in Federal Circuit precedents for a NITU that blocks termination of an easement. The categorical taking analysis is applicable even when that NITU expires without a trail-use agreement. A NITU does not effect a taking if, even without a NITU, the railroad would not have abandoned its line during the period of the NITU. Here, the evidence permits a finding that abandonment would have occurred during the NITU period if the NITU had not issued. View "Caquelin v. United States" on Justia Law

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The plaintiffs each own a wind farm that was put into service in 2012. Each applied for a federal cash grant based on specified energy project costs, under section 1603 of the American Recovery and Reinvestment Tax Act of 2009. The Treasury Department awarded each company less than requested, rejecting as unjustified the full amounts of certain development fees included in the submitted cost bases. Each company sued. The government counterclaimed, alleging that it had actually overpaid the companies.The Claims Court and Federal Circuit ruled in favor of the government. Section 1603 provides for government reimbursement to qualified applicants of a portion of the “expense” of putting certain energy-generating property into service as measured by the “basis” of such property; “basis” is defined as “the cost of such property,” 26 U.S.C. 1012(a). To support its claim, each company was required to prove that the dollar amounts of the development fees claimed reliably measured the actual development costs for the windfarms. Findings that the amounts stated in the development agreements did not reliably indicate the development costs were sufficiently supported by the absence in the agreements of any meaningful description of the development services to be provided and the fact that all, or nearly all, of the development services had been completed by the time the agreements were executed. View "California Ridge Wind Energy, LLC v. United States" on Justia Law

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In 2012, Lozano gave birth to a baby. While still hospitalized, Lozano received a tetanus-diphtheria-acellular-pertussis (Tdap) vaccination. Two weeks later, Lozano reported a low-grade fever, body aches, and breast tenderness. Lozano’s symptoms persisted through visits to her physician and the emergency room. She developed abdominal pain, difficulty urinating, weakness, loss of balance, vision changes, neck pain, headache, vomiting, and dizziness. A brain MRI suggested that Lozano possibly had multiple sclerosis (MS), acute disseminated encephalomyelitis (ADEM), or vasculitis. Lozano’s symptoms improved with steroid treatment, following a working diagnosis of MS. After several months, a repeat MRI “showed dramatic improvement, suggesting that ADEM was a more likely etiology, which was confirmed through later serological findings.” Lozano’s doctors opine that ADEM is the likely explanation for her symptoms.Lozano sought compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa. Lozano’s expert opined that Lozano’s ADEM was the result of her receipt of the Tdap vaccine. The special master granted Lozano’s petition, finding that her expert’s testimony and the supporting medical literature demonstrated that the Tdap vaccine can cause autoimmune diseases such as ADEM and that Lozano offered preponderant evidence of a proximate temporal relationship between the vaccine and her injury. The Claims Court and Federal Circuit upheld the award of a lump-sum payment of $1,199,216.86, finding that the decision was neither an abuse of discretion nor contrary to law and that the fact-findings were neither arbitrary nor capricious. View "Lozano v. Secretary of Health and Human Services" on Justia Law

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In 1999, the Taylors purchased land near a New Mexico Air Force base to raise calves. The Air Force began flying training missions over the land, sometimes “no more than 20 feet . . . off the deck.” In 2008, the Taylors granted Wind Energy an exclusive five-year option for an easement on the Taylors’ property, for “wind resource evaluation, wind energy development, energy transmission and related wind energy development uses.” In 2012, Air Force employees suggested to Wind Energy that the FAA would not issue a “No Hazard” designation for the air space above the Taylors’ land, which would be “fatal to the construction of planned wind turbines.” Wind Energy exercised its contractual right to terminate the agreement.The Taylors sued, claiming that the Air Force’s informal advice to Wind Energy caused a regulatory taking of their property interest in their contract and that the flyovers effected a physical taking. The Federal Circuit affirmed the dismissal of the complaint. Wind Energy’s termination was not a breach of the agreement so the Taylors had no property right in the continuation of that agreement nor did they have any investment-backed expectations. Any advice given by Air Force employees did not amount to an FAA denial. The Taylors did not provide factual allegations of how the flights “directly, immediately, and substantially interfere” with their quiet enjoyment and use of the land View "Taylor v. United States" on Justia Law

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In 2019, the Federal Circuit (Arthrex) held that the appointment of the APJs by the Secretary of Commerce, 35 U.S.C. 6(a), violated the Appointments Clause. The Patent and Trademark Office and Cisco argued that the Federal Circuit erred in extending Arthrex beyond the context of inter partes reviews to an appeal from a decision of the Patent Trial and Appeal Board in an inter partes reexamination. They claimed that administrative patent judges (APJs) should be deemed constitutionally appointed officers at least when it comes to their duties reviewing appeals of inter partes reexaminations.The Federal Circuit rejected the argument. The fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status under the Constitution. Courts should look not only to the authority exercised in the case but to all of the appointee’s duties when assessing an Appointments Clause challenge. An APJs’ duties include both conducting inter partes reviews and reviewing appeals of inter partes reexaminations. Although no discovery is held and no trial conducted in inter partes reexaminations, the proceedings are otherwise similar. The Director’s authority over the Board’s decisions is not meaningfully greater in the context of inter partes reexaminations than in inter partes reviews. View "Virnetx Inc. v. Cisco Systems, Inc." on Justia Law

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Oyster sued, alleging that Ciena infringed several patents. Ciena petitioned the Patent Trial and Appeal Board for inter partes review of the asserted patents. The district court stayed the litigation. The Board concluded that Ciena had failed to demonstrate by a preponderance of the evidence that any of the challenged claims were unpatentable.The Federal Circuit denied Ciena’s motion to vacate the decision. Ciena forfeited its argument that the members of the Board panel that issued the decision were not appointed in compliance with the Appointments Clause. Ciena requested that the Board adjudicate its petition and affirmatively sought a ruling from the Board members, regardless of how they were appointed. Ciena was content to have the assigned Board judges adjudicate its invalidity challenges until the Board ruled against it. View "Ciena Corp. v. Oyster Optics, LLC" on Justia Law

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Attorney Ravin represented veteran Cook on a claim for past-due disability benefits. Their agreement provided for a contingent fee and contemplated that VA would withhold the fee from any past-due benefits awarded and pay that amount directly to Ravin under 38 U.S.C. 5904(d)(3). Within days of executing that agreement, Ravin sent a copy to the Board of Veterans’ Appeals, where it was date-stamped on December 11, 2009. No copy of the agreement was submitted to the Regional Office (RO) “within 30 days of the date of execution,” as required by 38 C.F.R. 14.636(h)(4). The RO awarded Cook past-due benefits in April 2010. On April 13, 2010, the RO’s Attorney Fee Coordinator searched for any attorney fee agreement and determined that “no attorney fee decision is required” and “[a]ll retroactive benefits may be paid directly to the veteran.” The RO paid the past-due benefits to Cook. On April 27, 2010, Ravin mailed a copy of Cook’s direct-pay fee agreement to the RO. The RO informed Ravin that it had not withheld his attorney’s fees because the agreement was “not timely filed.”The Veterans Court and Federal Circuit affirmed the Board’s denial of Ravin’s claim. Section 5904(d)(3) does not mandate withholding and direct payment; 38 C.F.R. 14.636(h)(4)'s submission requirement is valid. Ravin’s fees have not been forfeited; he may use all available remedies to obtain them from Cook, per their agreement. View "Ravin v. Wilkie" on Justia Law