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Fed Cir Rejects DHS' Request In TSA Whistleblower Case

Last month, the Federal Circuit rejected a petition from the Justice and Homeland Security departments (DHS). On August 30, the U.S. Appeals Court for the Federal Circuit assessed a petition from the DHS requesting a full court review of a decision supporting former TSA air marshal Robert MacLean and his whistleblower actions back in 2006, CNN reports.

Seven years ago, MacLean had exposed a 2003 DHS decision to sever the inclusion of federal air marshals on long-distance flights, even with the increasing threat of terrorism on passenger flights. Marshal was then fired for leaking this information about air marshal travel cuts.

Vets Aren't Guaranteed Effective Counsel for Benefits Appeals

Ernest Pitts, Jr., a veteran, claimed that he was entitled to disability benefits from the Department of Veterans Affairs (VA) based on post-traumatic stress syndrome (PTSD), a psychiatric disorder other than PTSD, a sinus disorder, and a skin disorder, all of which he contends are service-connected conditions.

The Board of Veterans' Appeals found that (1) Pitt's lower back condition resulted not from service but from a post-service work-related injury; (2) there was no evidence that his psychiatric disorder other than PTSD was linked to his service; and (3) his PTSD claim was not shown to be service-connected because there was no evidence of an in-service stressor.

The Court of Appeals for Veterans Claims (CAVC) affirmed the Board's ruling.

Navajo Nation v. U.S., 10-5036

Indian Tribe's Fifth Amendment Taking Claim

Navajo Nation v. U.S., 10-5036, concerned a challenge to the district court's dismissal of the complaint in concluding that plaintiff did not have the requisite property interest to establish a valid takings action, in an Indian Tribe's suit seeking damages for an alleged Fifth Amendment taking of its right to develop land granted to it by the United States in 1934.


Ladd v. US, 10-5010

Compensable taking claim against the United States

Ladd v. US, 10-5010, concerned a challenge to an order of the Court of Federal Claims granting summary judgment that no compensable taking occurred when the Department of Transportation's Surface Transportation Board (STB) issued a Notice of Interim Trail Use or Abandonment (NITU) concerning an easement over plaintiff's land.

Kahn v. Dep't of Justice, 09-3125, concerned a challenge to the Merit Systems Protection Board's final decision that plaintiff did not make protected disclosures under the WPA, in a DEA agent's suit under the Whistleblower Protection Act (WPA).  In affirming, the court held that the administrative judge did not err in finding that plaintiff's communications with an agent were not protected disclosures because they were made as part of normal duties through normal channels.  The court concluded that plaintiff's report was not a disclosure because he did not reveal something that was hidden and not known to the DEA.  Lastly, because plaintiff's communications were not protected under the WPA, the question of whether the government could have shown by clear and convincing evidence that it would have transferred plaintiff on the absence of his communications need not be addressed.

Henry E. & Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. US, 09-5122, concerned a challenge to the Court of Federal Claims' denial of a claim, in a university trusts' tax refund suit. In affirming, the court held that the securities purchased on margin by otherwise tax-exempt organizations are debt-financed property, and thus, income from an unrelated trade or business, which is subject to the UBIT.

Green Edge Enter., LLC v. Rubber Mulch Etc., LLC., 09-1455, involved a suit for infringement of a patent related to a synthetic mulch that is colored with a water based acrylic colorant to imitate natural mulch.  In reversing, the court held that the district court erred by invalidating a patent, and by dismissing defendant's trademark claims.  The court also reversed as the district court abused its discretion by precluding all damages evidence for the Lanham Act counterclaims.  However, the court affirmed the district court's holding with respect to counterclaims of noninfringement and invalidity of the mark as there was no case or controversy.

Geoddel v. Sugano, 09-1156, concerned a challenge to the Board of Patent Appeals and Interferences' decision that appellee is entitled to the benefit of the filing date of its initial Japanese application in awarding appellee priority as to the counts of both interferences, in two related patent interference priority contests, related to human fibroblasts interferon used in combating pathogens and tumors. In reversing, the court remanded the matter in concluding that the Board's decision that the Japanese Application constitutes constructive reduction to practice of the subject matter of these interferences is not in accordance with law, for the Japanese Application does not meet the criteria of section 112, first paragraph, as to this subject matter.

Related Resources:

Found. of Human Understanding v. US, 09-5129

Found. of Human Understanding v. US, 09-5129, concerned a challenge to the United States Court of Federal Claims' decision that a nonprofit organization did  not qualify as a "church" under section 170(b)(1)(A)(i) of the Internal Revenue Code for the period from January 1, 1998 through December 31, 2000.

In Wyeth Holdings Corp. v. Sebelius, No. 09-1368, the Federal Circuit faced a challenge to the district court's rejection of petitioner's challenge to the FDA's determination of the date on which the approval phase of its phased regulatory review process begins for purposes of calculating patent term extensions, related to an animal drug for the treatment and control of parasites in beef and dairy cattle.  First, the court rejected the petitioner's argument that section 156(g) unambiguously indicates that an application is initially submitted when a sponsor submits its first technical section in concluding that the section 156(g) is ambiguous.  Second, the court held that FDA's interpretation is permissible and that it is not arbitrary and capricious, in affirming the district court's judgment. 

Bright v. US, No.09-5048, involved a putative class action lawsuit, brought by landowners seeking compensation under the Fifth Amendment pursuant to the Tucker Act for the alleged taking of their respective property interests under the National Trail Systems Act, 16 U.S.C. sections 1241-1251.  In reversing the United States Court of Federal Claims' dismissal of the second amended complaint as to all named plaintiff except for one, the court held that when a class action complaint is filed in the Court of Federal Claims and a class certification is sought prior to expiration of the section 2501 limitations period, the limitations period is tolled, and is tolled during the period the court allows potential class members to opt into the class. 

Related Resources:

Griffin v. US, No. 09-5045

In plaintiff's suit against the Secretary of Army claiming sex discrimination after the Army granted a promotion to a male colleague instead of plaintiff, United States Court of Federal Claims' dismissal of her suit is affirmed as 28 U.S.C. section 1500 applies and divests the Court of Federal Claims of jurisdiction over her Equal Pay Act claim because plaintiff's claims arise from the same operative facts and seek the same relief as the pending claim in the district court.     

Read Griffin v. US, No. 09-5045

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided December 28, 2009

Judges

Before: Gajarsa, Plager and Linn,  Circuit Judges

Opinion by Linn, Circuit Judge

Counsel

For Appellant:  Robert E. Rigrish, Bodker Ramsey Andrews Winograd & Wildstein, PC

For Appellee:   Robert E. Chandler, US Department of Justice

Yant v. US, No. 09-5058

In a suit brought by thirty-five current and former nurse practitioners employed by the U.S. Department of Veterans Affairs in the Tennessee Valley Healthcare System alleging that, as predominantly female NPs, they are paid at a lower rate than the predominantly male physician assistants performing jobs of equal skill, effort, and responsibility under similar working conditions, judgment of the United States Court of Federal Claims granting the US summary judgment that plaintiffs do not qualify for coverage under the Equal Pay Act, 29 U.S.C. is affirmed as, plaintiffs have failed to make a prima facie case of an Equal Pay Act violation as they failed to raise a genuine issue of material fact that the pay differential between NPs and PAs is based on sex. 

Read Yant v. US, No. 09-5058

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided December 14, 2009

Judges

Before Mayer, Prost, and, Newman ,Circuit Judges

Opinion by Mayer, Circuit Judge

Counsel

For Appellant: John F. Burke, III, Mansour Gavin Gerlack & Manos, Co., LPA

For Appellee:    Douglas G. Edelschick, Commercial Litigation Branch, U.S. Department of Justice

Acceptance Ins. Co., Inc. v. US, No. 09-5015

The Court of Federal Claims' dismissal of plaintiff's takings claim pursuant to RCFC 12(b)(6) is affirmed as the court did not err in holding that the plaintiff failed to allege a legally cognizable property interest for Fifth Amendment purposes in the ability to freely transfer a portfolio of insurance policies, and thus, there was no cognizable property interest that could be taken when the Risk Management Agency rejected the proposed sale to another company in the crop insurance business. 

Read Acceptance Ins. Co., Inc. v. US, No. 09-5015

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided October 1, 2009

Judges

Before Rader, Plager, and Schall, Circuit Judges

Opinion by Schall, Circuit Judge.   

Counsel

For Appellant:  Lewis S. Wiener, Sutherland Asbill & Brennan LLP

For Appellee:  Michael N. O'Connell, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice.