Justia Government & Administrative Law Opinion Summaries

Kluge, an Army Reserve commissioned officer and a civilian employee of the Department of Homeland Security (DHS), was ordered under 10 U.S.C. 12301(d) to report to active duty in support of a contingency operation, Operation Enduring Freedom. He was absent from his DHS job from January 15 to July 30, 2011. For the first few weeks, Kluge was on paid military leave; from February 27 until July 30, DHS did not pay him except for the July 4 holiday. Kluge sought to recover differential pay under 5 U.S.C. 5538 for himself and similarly situated service members employed by the federal government, naming the Office of Personnel Management (OPM) as the respondent.An administrative judge denied class certification and substituted DHS for OPM. DHS and Kluge stipulated that he was eligible for differential pay. The AJ determined that DHS owed Kluge $274.37 plus interest. The Federal Circuit affirmed. The court upheld a finding that putative class members lack commonality or that identifying class members and adjudicating their claims as a class would not be fairer or more efficient. There was no legal error or abuse of discretion in the substitution of DHS for OPM. Kluge failed to show any error in calculating the differential pay. View "Kluge v. Department of Homeland Security" on Justia Law

Congress passed the American Recovery and Reinvestment Act ARRA) to stabilize the U.S. economy following the 2008 financial crisis, 123 Stat. 115, creating two types of government-subsidized Build America Bonds (BABs). “Direct Payment BABs,” entitled bond issuers to a tax refund from the Treasury Department equal to 35 percent of the interest paid on their BABs. Treasury pays issuers of BABs annually. The payments are funded by the permanent, indefinite appropriation for refunds of internal revenue collections. 31 U.S.C. 1324. Local power agencies (Appellants) collectively issued over four billion dollars in qualifying Direct Payment BABs before 2011. Through 2012, Treasury paid the full 35 percent.In 2011 and 2013, Congress passed legislation reviving sequestration: “[T]he cancellation of budgetary resources provided by discretionary appropriations or direct spending law,” 2 U.S.C. 900(c)(2), 901(a). Treasury stopped making payments to Appellants at 35 percent. Since 2013, Appellants have been paid reduced rates as determined by the Office of Management and Budget’s calculations; for example, 2013 payments were reduced to 8.7 percent.Appellants sued, arguing a statutory theory that the government violates ARRA section 1531 by not making the full 35 percent payments and that the government breached a contract that arises out of section 1531. The Federal Circuit affirmed the Claims Court’s dismissal of the suit. No statutory claim existed because sequestration applied to these payments. No contractual claim existed because the ARRA did not create a contract between the government and Appellants. View "Indiana Municipal Power Agency v. United States" on Justia Law

The Office of Personnel Management (OPM), promulgated regulations (5 U.S.C. 5545(d) and 5343(c)(4)), to provide hazardous duty and environmental differential pay to federal employees. Current and former employees of the Federal Bureau of Prisons filed suit, alleging that they were entitled to hazardous duty and environmental differential pay due to their “work [with] or in close proximity to objects, surfaces, and/or individuals infected with COVID-19 without sufficient protective devices.”The Federal Circuit affirmed the Claims Court’s dismissal of their claims for hazardous duty and environmental differential pay (plus related overtime, interest, and attorneys’ fees and costs). For the plaintiffs to prevail, it is not enough that COVID-19 can readily be characterized as “unusual”—one of the requirements of the statutory provisions; their case depends on whether their allegations come within OPM’s existing regulations, which are not challenged and which delimit particular situations in which federal employees are entitled to hazardous duty and environmental differential payments. OPM has not addressed contagious-disease transmission outside certain situations within laboratories and jungle-work situations. Although OPM might be able to provide for differential pay based on COVID-19 in various workplace settings, it has not to date adopted regulations that do so. View "Adams v. United States" on Justia Law

The 1976 Magnuson–Stevens Act contemplated “[a] national program for the conservation and management of the fishery resources of the United States,” 16 U.S.C. 1801(a)(6), and established the United States 200-mile Exclusive Economic Zone (EEZ). A 2007 amendment established national criteria for quota-based fishing programs, (limited access privilege programs) and authorized the quota-based fishing permits and licenses at issue in this Fifth Amendment takings claim, in which fishing businesses challenged four different permitting, licensing, and endorsement requirementsThe Federal Circuit affirmed the dismissal of the suit for lack of a cognizable property interest in the fishing endorsements, licenses, and permits, separate from or appurtenant to their fishing vessels. Precedent establishes that fishing permits and licenses issued under the Act are revocable privileges, not compensable property interests. The Magnuson–Stevens Act refers to “congressional intent not to confer any right, title, or interest, and to preserve the government’s authority to revoke privileges enjoyed in” fishing licenses and permits. The National Marine Fisheries Service’s regulations did not create compensable property rights in permits or licenses. licenses; permits did not have the essential characteristics of compensable property—transferability and the right to exclude others. There is no inherent right in vessel ownership to fish within the EEZ. View "Fishermen's Finest, Inc. v. United States" on Justia Law

In 2018, under the Trade Expansion Act, 19 U.S.C. 1862, the Secretary of Commerce reported to the President that steel imports threatened national security by contributing to unsustainably low use of domestic steel-producing capacity. The President, agreeing with the finding, issued Proclamation 9705, imposing higher tariffs on steel imports from certain countries but providing for monitoring and future adjustments. In 2020, the President issued Proclamation 9980, which, based on the required monitoring, raised tariffs on imports of steel derivatives such as nails and fasteners. The Trade Court held Proclamation 9980 to be unauthorized by the statute because the new derivatives tariffs were imposed after the passing of certain deadlines; within 90 days of receiving the Secretary’s report, the President must determine whether to concur in the finding and, if so, within the same 90 days “the President shall” also “determine the nature and duration of the action.”In the meantime, in another case, the Federal Circuit upheld a presidential proclamation that increased tariffs on steel beyond Proclamation 9705’s rate, concluding that when the President, within the Act’s time limits, adopts a plan that contemplates future contingency-dependent modifications, those time limits do not preclude the President from adding to the initial import impositions to help achieve the originally stated national-security objective if the underlying findings and objective have not grown stale.The Federal Circuit then upheld Proclamation 9980, reversing the Trade Court. The proclamation’s new imposition reaches imports that are within section 232’s authorization of presidential action based on the Secretary’s finding and there is no staleness or other persuasive reason for overriding the President’s judgment. View "PrimeSource Building Products, Inc.v, United States" on Justia Law

The 2010 ACA (Patient Protection and Affordable Care Act; Health Care and Education Reconciliation Act) created a three-year Risk Corridors program with the creation of new health-insurance marketplaces, which presented uncertain risks for participating health-insurance companies. Qualified health-plan issuers (QHP issuers) that offered their products in the new marketplaces were entitled to payments from HHS if they suffered sufficient losses, 42 U.S.C. 18062(b).The government failed to make those payments. QHP issuers sued under the Tucker Act, 28 U.S.C. 1491(a)(1). In two such lawsuits, the Quinn law firm was lead counsel for classes of QHP issuers seeking payments. In the opt-in notices sent to potential class members with court approval, Quinn represented that it would seek attorney’s fees out of any recovery, that it would seek no more than 5% of any judgment or settlement, and that the Claims Court would determine the exact amount by considering how many issuers participated, the amount at issue, and a “lodestar cross-check” (based on hours actually worked). Meanwhile, the Supreme Court, in other cases, held that QHP issuers were entitled to collect ACA-promised payments.The Claims Court entered judgments in favor of the classes, totaling about $3.7 billion, then awarded Quinn 5% of the common funds, rejecting objections. The total fee was about $185 million. The Federal Circuit vacated. The Claims Court’s analysis was inconsistent with the class opt-in notices and did not adequately justify the extraordinarily high award. View "Health Republic Insurance Co. v. United States" on Justia Law

Government agencies can issue Indefinite Delivery, Indefinite Quantity Multiple Award (IDIQ) contracts to multiple companies, which then compete for subsequent task orders. The Army solicited proposals for the RS3 IDIQ Contract. The solicitation was not set aside for small businesses but allowed the Army to restrict task orders to small businesses. In 2019, the Army awarded Century an RS3 IDIQ contract. In 2015, when Century submitted its proposal, it was a small business. A 2020 Task Order Request for Proposals required a contractor submitting a bid to represent whether it was a small business for purposes of the task order. Century was no longer a small business but represented that it had been a small business at the time of its original RS3 IDIQ proposal. The Army issued the task order to Century, Other companies filed size protests. The Small Business Association found that Century was “other-than-small” for purposes of the Task Order. The Office of Hearings and Appeals (OHA) affirmed. The Army terminated the award.Century filed a Tucker Act, 28 U.S.C. 1491(b)(1), bid protest. The Federal Circuit affirmed the dismissal of the suit. OHA’s size determination was made in connection with the issuance of a task order, so the Federal Acquisition Streamlining Act of 1994, 10 U.S.C. 3406(f), barred the Claims Court from exercising jurisdiction. A claim based on improper contract termination falls under the Contract Disputes Act, 41 U.S.C. 7101–09; Century failed to present its claim to the contracting officer as required by that statute. View "22nd Century Technologies, Inc. v. United States" on Justia Law

Raytheon has cost-reimbursement government contracts. Raytheon’s Government Relations Department engaged in information gathering, internal discussions on lobbying strategies, attending meals with contractors and Congresspeople or staff, meeting with internal Raytheon customers, attending political fundraisers, administering Raytheon’s Political Action Committee, interfacing with the legislative branch, responding to requests from Congressional staffers, and similar activities. Raytheon instructed employees to record all compensated time spent on lobbying activities. Accounting personnel withdrew costs associated with that time from Raytheon’s incurred-cost submissions. Raytheon’s employees considered time worked outside of regular hours part of their regular work duties, yet Raytheon’s policy instructed them not to report “[t]ime spent on lobby activity after the scheduled working day.” Raytheon’s Corporate Development Department worked with Raytheon’s business units, including internal investment, research and development, intellectual property licensing, partnerships, or acquisitions. Corporate Development had rules establishing when employees begin recording their time on acquisitions and divestitures.In 2007-2008, Raytheon charged the government for roughly half of the salary costs of its Government Relations and Corporate Development Departments. The Defense Contract Audit Agency audited both departments, determined that Raytheon’s incurred-cost submissions for those departments included unallowable costs, and demanded reimbursement and penalties. The Armed Services Board of Contract Appeals ruled in favor of Raytheon. The Federal Circuit reversed. The Board erred in interpreting Raytheon’s corporate practices and policies, which are inconsistent with the Federal Acquisition Regulation and led Raytheon to charge the government for unallowable costs. View "Secretary of Defense v. Raytheon Co." on Justia Law

DiMasi, then a 47-year-old nurse-practitioner student, received an influenza vaccine on December 4, 2012. She was admitted to the hospital on December 5, 2012, released the next day, and then readmitted on December 8. Almost three years later, DiMasi sought compensation under 42 U.S.C. 300aa-10 to -34 (Vaccine Act). In 2019, a special master denied compensation, noting that the parties agreed on the post-vaccination conditions at issue, ultimately diagnosed in 2016 and 2017: “small fiber neuropathy” and “postural tachycardia syndrome” (POTS), which are related. He also noted that no claim of significant aggravation of a preexisting condition had been presented and found that the vaccine was not the cause in fact of the conditions. DiMasi had 30 days to seek Claims Court review.On September 15, 2020, within a year of the final judgment, DiMasi sent the special master a letter, with medical records and other attachments, requesting that she be allowed to proceed pro se and that her case be reopened. The special master allowed DiMasi to proceed pro se and construed her request to reopen her case as a motion for relief from judgment under Claims Court Rule 60. The special master ultimately vacated the denial. The Federal Circuit appointed counsel for DiMasi and requested additional briefing, noting that it had “more questions than answers” about the findings and proceedings concerning DiMasi’s former counsel’s submissions and choices. View "DiMasi v. Secretary of Health & Human Services" on Justia Law

In 2011, Cranford, on active duty in the Army, was charged with possessing and using Spice, an unregulated intoxicant, in violation of a lawful general order. Captain Lease recommended that Cranford be tried by general court-martial and forwarded the charges. Cranford requested to be discharged in lieu of trial by court-martial, acknowledging that the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge for the charge. Cranford admitted guilt and acknowledged that he would qualify for an “other than honorable” (OTH) discharge, potentially barring him from receiving benefits. Cranford received an OTH discharge. Cranford later requested VA benefits. The regional office denied that request, reasoning that Cranford’s discharge status barred him from receiving benefits. The Board of Veterans’ Appeals affirmed the denial, applying 38 C.F.R. 3.12(d)(1), to conclude that Cranford had been discharged under dishonorable conditions and was ineligible for benefits as a non-veteran under 38 U.S.C. 101(2).The Veterans Court and Federal Circuit affirmed, rejecting arguments that the Board mischaracterized his discharge as being “in lieu of a general court-martial,” instead of a summary court-martial and that section 3.12(d)(1) did not apply to him because he had accepted an OTH discharge, not an “undesirable discharge.” An OTH discharge accepted in lieu of a general court-martial is equivalent to an undesirable discharge—despite the military service departments’ shift in terminology. View "Cranford v. McDonough" on Justia Law