Articles Posted in US Court of Appeals for the Federal Circuit

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The Court of Federal Claims enjoined the U.S. Army from proceeding with, or awarding, a contract to Airbus Helicopter, finding that Army Execution Order 109-14, which implemented the Army’s Aviation Restructure Initiative designating the UH-72A Lakota helicopter as the Army’s “Institutional Training Helicopter,” was a procurement decision in violation of the Competition in Contracting Act and the Federal Acquisition Regulation. The court also found the Sole Source Justification and Approval (J&A) was arbitrary and capricious. The Federal Circuit reversed and vacated the injunction, holding that Execution Order 109-14 was not a procurement decision subject to Tucker Act review because it did not begin “the process for determining a need for property or services.” The Order simply formalized the Army’s decision designating the UH-72A Lakota as the Army’s training helicopter. The Sole Source J&A was not arbitrary and capricious, and it was an abuse of discretion to supplement the administrative record. The J&A sufficiently supports the Army’s decision to award a sole-source follow-on contract because it is likely that award to any other source would result in substantial duplication of cost to the government that is not expected to be recovered through competition, or unacceptable delays in fulfilling the agency’s requirements.” View "AgustaWestland North America v. United States" on Justia Law

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Securiforce entered into a requirements contract with the government to deliver fuel to eight sites in Iraq. The government terminated the contract for convenience with respect to two sites because Securiforce intended to supply fuel from Kuwait, reasoning that delivery to those sites would violate the Trade Agreements Act, 19 U.S.C. 2501, and that obtaining a waiver would take too long. Weeks later, the government ordered small deliveries to two sites, to occur by October 24. Securiforce indicated that it could not deliver until November. The government notified Securiforce that it should offer justifiable excuses or risk termination. Securiforce responded that the late deliveries were excused by improper termination for convenience, failure to provide required security escorts, small orders, and other alleged irregularities. The government terminated the contract for default. Securiforce filed suit (Tucker Act, 28 U.S.C. 1491; Contract Disputes Act, 41 U.S.C. 7101-09). The Claims Court found that it had jurisdiction to review both terminations; that the Contracting Officer abused her discretion in partially terminating the contract for convenience; and that the termination for default was proper. The Federal Circuit affirmed in part. The court lacked jurisdiction over the termination for convenience; a contractor’s request for a declaratory judgment that the government materially breached a contract violates the rule that courts will not grant equitable relief when money damages are adequate. The government did not breach the contract by terminating for convenience or with respect to providing security. View "Securiforce International America, LLC v. United States" on Justia Law

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In 1996, the Federal Communications Commission awarded spectrum licenses to Alpine, for use in the provision of wireless telecommunications services. Alpine bid approximately $8.9 million for one license and $17.3 million for the other. As a small business, Alpine was eligible to pay in installments over the 10-year term of the licenses. Alpine’s failure to make required payments in 2002 triggered automatic cancellation under FCC regulations. In addition to taking other steps in response, Alpine sought relief from the FCC and, on review under the Communications Act, 47 U.S.C. 402(b)(5), from the District of Columbia Circuit. In 2016, Alpine filed this action against the United States under the Tucker Act, 28 U.S.C. 1491(a)(1), arguing that the FCC breached contractual obligations in canceling the licenses and that the cancellation was a taking for which Alpine was entitled to just compensation. The Federal Circuit affirmed dismissal by the Claims Court for lack of jurisdiction under the Tucker Act. The Communications Act provides a comprehensive statutory scheme through which Alpine could raise its contract claims and could challenge the alleged taking and receive a remedy that could have provided just compensation in this case, foreclosing jurisdiction under the Tucker Act. View "Alpine PCS, Inc. v. United States" on Justia Law

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Henderson was a VA Program Analyst. Veterans may, under certain circumstances, obtain medical care from private physicians and facilities after obtaining preauthorization from a VA supervisory physician. An “unresolved authorized consult” means that a veteran’s medical appointment with an outside provider has not been scheduled or completed, or the completed appointment has not been memorialized. Henderson was charged with 50 counts of making false statements related to health care matters, 18 U.S.C. 1035, for ordering VA employees under his direction to close 2700 unresolved authorized consults by falsely declaring the consults were completed or refused by the patients. The VA informed Henderson that it proposed to suspend him for an indefinite period, noting that if convicted, he would face a maximum sentence of five years in prison on each count. Henderson, through counsel, denied the allegations, requested documentary evidence from the VA regarding his alleged wrongdoing, and asked that the proposed suspension be stayed pending the outcome of the criminal proceedings. The VA indefinitely suspended Henderson. A Merit Systems Protection Board administrative judge found, and the Board, and Federal Circuit affirmed, that the indictment provided the VA with reasonable cause to believe that he had committed a crime for which imprisonment could be imposed. The VA established a nexus between the criminal charges and the efficiency of the service. View "Henderson v. Department of Veterans Affairs" on Justia Law

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TRICARE provides current and former members of the military and their dependents' medical and dental care. Hospitals that provide TRICARE services are reimbursed under Department of Defense (DoD) guidelines. TRICARE previously did not require, DoD to use Medicare reimbursement rules. A 2001 amendment, 10 U.S.C. 1079(j)(2), required TRICARE to use those rules to the extent practicable. DoD regulations noted the complexities of the transition process and the lack of comparable cost report data and stated “it is not practicable” to “adopt Medicare OPPS for hospital outpatient services at this time.” A study, conducted after hospitals complained, determined that DoD underpaid for outpatient radiology but correctly reimbursed other outpatient services. TRICARE created a process for review of radiology payments. Each plaintiff-hospital requested a discretionary payment, which required them to release “all claims . . . known or unknown” related to TRICARE payments. Several refused to sign the release and did not receive any payments. Although it discovered calculation errors with respect to hospitals represented by counsel, TRICARE did not recalculate payments for any hospitals that did not contest their discretionary payment offer. The Claims Court dismissed the hospitals’ suit. The Federal Circuit reversed in part, finding that they may bring a claim for breach of contract but may not bring money-mandating claims under 10 U.S.C. 1079(j)(2) and 32 C.F.R. 199.7(h)(2) because the government’s interpretation of the statute was reasonable. View "Ingham Regional Medical Center v. United States" on Justia Law

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LFD operates a Lake Cumberland, Kentucky marina under a lease from the Army Corps of Engineers, covering approximately 130 acres of water and 36 acres of land. The Lease states: The right is reserved to the United States ... to enter upon the premises at any time and for any purpose necessary or convenient ... to flood the premises; to manipulate the level of the lake or pool in any manner whatsoever; and/or to make any other use of the lands as may be necessary in connection with project purposes, and the Lessee shall have no claim for damages. By 2007, Wolf Creek Dam, which created the lake, was at a high risk of failure; the Corps began lowering the lake's water level. The Corps returned the lake to its previous levels in 2014, when restoration was complete. LFD submitted a certified claim to the District Engineer, asserting $4,000,000 in damages. The Federal Circuit affirmed rejection of the claim. While the Lease is a contract for “the disposal of personal property” under 41 U.S.C. 7102(a)(4), giving the court jurisdiction, LFD did not properly present its reformation claim to the District Engineer. Rejecting a breach of contract claim, the court stated the Lease granted the Corps the right to manipulate the level of the lake in any manner whatsoever. View "Lee's Ford Dock, Inc. v. Secretary of the Army" on Justia Law