Federal Circuit: June 2009 Archives
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June 2009 Archives

Am. Contractors Indem. Co. v. US, No. 08-5188

In a breach of contract action brought pursuant to the Tucker Act, Court of Federal Claims judgment is reversed and remanded where the court erred in dismissing plaintiff's complaint for failure to state a claim, as the effective date of a surety bond is not necessarily the date of agreement or acquiescence within the meaning of 13 C.F.R. sec. 115.19(e). 

Read Am. Contractors Indem. Co. v. US, No. 08-5188

Appellate Information
Appeal from the United States Court of Federal Claims.
Decided June 29, 2009

Judges
Before NEWMAN, SCHALL, and DYK, Circuit Judges.
Opinion by DYK, Circuit Judge.

Counsel
For Plaintiff: Jefferson B. Slagle, Thompson, Slagle & Hannan, LLC, Duluth, Georgia.
For Defendant: Sean M. Dunn, United States Department of Justice, Washington, DC.

Amberman v. Shinseki, No. 08-7111

In an action involving the appropriate disability rating for a veteran, Court of Appeals for Veterans Claims' judgment upholding the finding that plaintiff's disorders had properly been rated together is affirmed where 38 C.F.R. sec. 4.14 prohibits separately rating the same symptoms merely because those symptoms have multiple causes. 

Read Amberman v. Shinseki, No. 08-7111

Appellate Information
Appeal from the United States Court of Appeals for Veterans Claims.
Decided June 29, 2009

Judges
Before LOURIE, GAJARSA, and PROST, Circuit Judges.
Opinion by GAJARSA, Circuit Judge.

Counsel
For Appellant: Kenneth M. Carpenter, Carpenter, Chartered, Topeka, Kansas.

For Respondent: L. Misha Preheim, United States Department of Justice, Washington, DC.

Garber v. Chicago Mercantile Exchange, No. 09-1047

In a patent infringement action, district court order denying plaintiff's motion for relief under Fed.R.Civ.P. 60(b) is reversed where the joint stipulation between the parties was filed pursuant to Rule 41(a)(1) and therefore divested the court of jurisdiction to enter any subsequent orders. 

Read Garber v. Chicago Mercantile Exchange, No. 09-1047

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois.
Decided June 26, 2009

Judges
Before MICHEL, Chief Judge, LOURIE and PROST, Circuit Judges.
Opinion by LOURIE, Circuit Judge..

Counsel
For Appellant: Andrew Staes, Staes & Scallan P.C., Chicago, Illinois.

For Appellee: Jerrold E. Salzman, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, Illinois

Knowles v. Shinseki, No. 08-7119

Court of Appeals for Veterans Claims judgment is affirmed where the court properly held that plaintiff's finality claim was an impermissible freestanding challenge to the finality of a prior regional office decision, as the law does not recognize a freestanding finality claim filed after the period for direct appeal has expired. 

Read Knowles v. Shinseki, No. 08-7119

Appellate Information
Appeal from the United States Court of Appeals for Veterans Claims
Decided June 26, 2009

Judges
Before LOURIE, ARCHER, and LINN, Circuit Judges.
Opinion by LINN, Circuit Judge..

Counsel
For Appellant: Kenneth M. Carpenter, Carpenter, Chartered, Topeka, Kansas.

For Appellee: Tara K. Hogan, United States Department of Justice, Washington, DC.

Winter v. Floorpro, Inc., No. 08-1407

Armed Services Board of Contract Appeals judgment is vacated and remanded where defendant is not a contractor and thus the Board lacks jurisdiction over its appeal of the contracting officer's decision, as the Contract Disputes Act does not gives the Board jurisdiction over a claim against the government brought by a subcontractor that is a third-party beneficiary of a contract between the government and the prime contractor. 

Read Winter v. Floorpro, Inc., No. 08-1407

Appellate Information
Appeal from the Armed Services Board of Contract Appeals
Decided June 26, 2009

Judges
Before MICHEL, Chief Judge, LOURIE and PROST, Circuit Judges.
Opinion by PROST, Circuit Judge.

Counsel
For Appellant: Domenique Kirchner, United States Department of Justice, Washington, DC.

For Appellee: James S. DelSordo, Argus Legal LLC, Manassas, Virginia

Bell BCI Co. v. US, No. 08-5087

In a breach of contract action, Court of Federal Claims judgment for plaintiff is affirmed in part, vacated in part and remanded where: 1) the court erred in holding that plaintiff did not release its cumulative impact claims attributable to paragraph 8 of Modification 93 in the contract as the language the modification is unambiguous; 2) the monetary award for delays on the project and award of profits on the delay and cumulative impact claims is vacated as the release language present in Mod 93 and later modifications excuses the government from liability for plaintiff's delay claims; and 3) the trial court did not err in the other aspects of its decision. 

Read Bell BCI Co. v. US, No. 08-5087

Appellate Information
Appeal from the United States Court of Federal Claims.
Decided: June 25, 2009

Judges
Before NEWMAN, RADER, and PROST, Circuit Judges.
Opinion by PROST, Circuit Judge.
Dissenting opinion filed by NEWMAN, Circuit Judge.

Counsel
For Plaintiff: Richard O'Shea Wolf, Moore & Lee, LLP, McLean, Virginia.

For Defendant: Brian M. Simkin, United States Department of Justice, Washington, DC.

Huvis Corp. v. US, No. 09-1021

Court of International Trade affirming the Dept. of Commerce's valuation of plaintiff's imports is affirmed where Commerce's decision to use a constructed market price in valuing plaintiff's imports was supported by substantial evidence and not contrary to law, as Commerce has shown that its new methodology of constructing a market price was permissible under the statute and that it had good reasons for the new methodology. 

Read Huvis Corp. v. US, No. 09-1021

Appellate Information
Appeal from the United States Court of International Trade.
Decided: June 25, 2009

Judges
Before LOURIE, DYK, and PROST, Circuit Judges.
Opinion by LOURIE, Circuit Judge.

Counsel
For Plaintiff: Michael P. House, McDermott Will & Emery LLP, Washington.
For Defendant: Stephen C. Tosini, United States Department of Justice, Washington, DC. 

Tyler Construction Group v. US, No. 08-5177

Court of Federal Claims judgment holding that the United States Army Corps of Engineers was authorized to use Indefinite Deliver/Indefinite Quantity Contracts for the design and construction of military buildings is affirmed where: 1) there is no statutory or regulatory provision that precludes such use of IDIQ contracts for a procurement of construction; 2) the Corps did not abuse its discretion in concluding that the use of IDIQ contracts to obtain a large military construction was the most appropriate method of proceeding and therefore best served the interests of the United States; and 3) the Corps' conduct of this procurement did not violate statutory and regulatory provisions designed to aid and protect small businesses. 

Read Tyler Construction Group v. US, No. 08-5177

Appellate Information
Appeal from the United States Court of Federal Claims.
Decided: June 25, 2009

Judges
Before MAYER, FRIEDMAN, and RADER, Circuit Judges.
Opinion by FRIEDMAN, Circuit Judge.

Counsel

For Plaintiff: Michael H. Payne, Payne Hackenbracht & Sullivan, Fort Washington, Pennsylvania.

For Defendant: Douglas G. Edelschick, United States Department of Justice, Washington, DC. 

Andreu v. Sec'y. of Health & Human Servs., No. 2008-5184

In a petition for compensation under the National Childhood Vaccine Injury Act, the denial of the petition is reversed where the special master erroneously: 1) determined that the testimony of Petitioner's physicians was insufficient to establish "a logical sequence of cause and effect" leading to Petitioner's vaccine-related injury; and 2) imposed upon Petitioner an elevated evidentiary burden, requiring conclusive proof in the medical literature linking Petitioner's symptoms to the vaccine at issue.

Read the full decision in Andreu v. Sec'y. of Health & Human Servs., No. 2008-5184.

Appellate Information:

Appeal from the United States Court of Federal Claims in case 98-VV-817, Senior Judge James F. Merow.

DECIDED on June 18, 2009

Judges:

Before NEWMAN, MAYER, and GAJARSA, Circuit Judges.

Opinoin by MAYER, Circuit Judge.

Counsel:

Clifford J. Shoemaker, Shoemaker and Associates, of Vienna, Virginia, argued for petitioners-appellants.

Darryl R. Wishard, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Timothy P. Garren, Director, Vincent J. Matanoski, Acting Deputy Director, and Catharine E. Reeves, Assistant Director.

Schooner Harbor Ventures, Inc. v. US, No. 2008-5084

In a Takings Clause action claiming that the U.S. deprived Plaintiff of the beneficial use of its property, summary judgment for Defendant is reversed where Plaintiff identified a cognizable property interest, namely fee title to land that could not be developed without regulatory compliance.

Read the full decision in Schooner Harbor Ventures, Inc. v. US, No. 2008-5084.

Appellate Information:

Appeal from the United States Court of Federal Claims in case no. 06-CV-00087, Judge Marian Blank Horn.
Decided June 16, 2009

Judges:

Before NEWMAN, SCHALL, and GAJARSA, Circuit Judges.

Opinion by GAJARSA, Circuit Judge.

Counsel:

William Lee Guice III, Rushing & Guice, P.L.L.C., of Biloxi, Mississippi, argued for plaintiff-appellant. Of counsel was Lauren Sonnier, of Ocean Springs, Mississippi.

Robert J. Lundman, Attorney, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief was Ronald J. Tenpas, Assistant Attorney General.

Value Vinyls, Inc. v. US, No. 2007-1562

In the government's appeal from the Court of International Trade's order classifying a plastic-coated fabric material as a "product with textile components in which man-made fibers predominate by weight over any other single textile fiber" under the Harmonized Tariff Schedule, the order is affirmed where that category encompasses products solely containing man-made fibers.

Read the full decision in Value Vinyls, Inc. v. US, No. 2007-1562.

Appellate Information:

Appeal from the United States Court of International Trade in Case No. 01-00896, Senior Judge Thomas J. Aquilino, Jr.
Decided June 16, 2009

Judges:

Before NEWMAN and MOORE, Circuit Judges, and GETTLEMAN, District Judge. The Honorable Robert W. Gettleman, United States District Court for the Northern District of Illinois, sitting by designation.

Opinion for the court filed by Circuit Judge NEWMAN. Dissenting opinion filed by District Judge GETTLEMAN.

Counsel:

Robert T. Givens, Givens & Johnston, PLLC, of Houston, Texas, argued for plaintiff-appellee.

Marcella Powell, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of New York, New York, argued for defendant-appellant. With her on the brief were Barbara S. Williams, Attorney in Charge, International Trade Field Office, and Jeanne E. Davidson, Director, of Washington, DC. Of counsel was Beth C. Brotman, Attorney, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection, of New York, New York.

Adams v. Shinseki, No. 2008-7162

In a petition for review of the Court of Appeals for Veterans Claims' order setting an effective date for Petitioner's receipt of disability benefits, the petition is denied where an earlier decision by the Department of Veterans Affairs implicitly denied Petitioner's informal claim that his heart condition was connected to his military service.

Read the full decision in Adams v. Shinseki, No. 2008-7162.

Marshall O. Potter, Jr., of Vienna, Virginia, argued for claimant-appellant.

Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims, Judge Mary J. Schoelen

Before NEWMAN, SCHALL, and BRYSON, Circuit Judges. Authored by BRYSON, Circuit Judge.

Fellhoelter v. Dep't of Agriculture, No. 2008-3244

In a petition for review of a Merit Systems Protection Board decision affirming Petitioner's removal from a supervisory position with the Department of Agriculture, the petition is denied where the administrative judge exercised sound discretion by excluding evidence on the grounds that it was nonprobative, cumulative, or likely to unduly delay the proceedings.

Read the full decision in Fellhoelter v. Dep't of Agriculture, No. 2008-3244.

Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and CUDAHY, Senior Circuit Judge. The Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit, sitting by designation.