CONSTRUCTION, GOVERNMENT

United Pacific Insurance v. USA, September 20

United Pacific, which had acted as a Miller Act surety in connection with a government construction project, sought to recover in quantum meruit the amount over and above the original contract price that it was required to pay in order to complete the project after the contractor defaulted. J. Schall finds that the contract was not illegal based on violations of statutory expenditure limitations and required oversight in connection with certain military construction projects.

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VETERANS

Metz v. USA, Sept 18

The Court of Federal Claims found that Metz's separation from the Air Force was involuntary and granted his motion for judgment upon the administrative record. J. Prost finds that Metz failed to assert that his separation was involuntary before the Air Force Board for Correction of Military Records and thus he is foreclosed from relying on the Military Pay Act's money-mandating status as a basis for his Tucker Act claim. Reversed.

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RETIREMENT, EMPLOYMENT

Snyder v. Office of Personnel Management, September 13

J. Prost finds that defendant improperly determined a wife was to be treated as surviving spouse only for pre-retirement survivor benefits that accrued during her marriage to her ex-husband, who worked as a state and federal government employee throughout the 30 year marriage. The wife is entitled to post-retirement survivor annuity.

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PATENT

MIT v. Abacus Software, September 13

J. Dyk finds that a camera that operates without relative movement is not a scanner within the meaning of plaintiffs' patent. The term scanner in 1982 should be construed to include a requirement of close proximity. The phrase "colorant selection mechanism" should be construed as a means-plus-function limitation. Reversed in part.

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EMPLOYMENT 

Greenspan v. Department Veterans Affairs, September 8 

Plaintiff requested review of disciplinary actions he claimed were brought in retaliation for criticism he expressed while he was medical director of a veterans hospital. The circuit finds that the agency presented no evidence that the disciplinary actions would have been taken absent the protected disclosures and thus the Merit System Protection Board erroneously held that plaintiff was not entitled to whistleblower protection.

INTERNATIONAL TRADE

Brother International v. USA, September 18

J. Schall finds that the Court of International Trade improperly sustained a denial by the US Customs Service of two protests by Brother, which asserted a misclassification based on a mistake of fact, of goods previously entered into the US by Brother. The court erred when it held that the misclassification of Brother's goods involved a mistake of law, as well as a mistake of fact. Remanded so that Customs may reliquidate the goods at the correct duty and refund to Brother the excess duties previously paid as a result of the misclassification.

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HOUSING

Independence Park Apartments v. USA, September 15

Low-income housing providers brought a takings claim after they were barred by statute from prepaying their mortgages and leaving the federal low-income housing program. J. Bryson finds that St. Andrews and Sherman Park did not have the choice of prepaying their mortgages at the time they entered into their use agreements, and thus the damages determination cannot be conducted as if the HOPE Act had restored the plaintiffs' right to prepay their mortgages, after which they then voluntarily chose to forgo that right in favor of obtaining the use agreement benefits.

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INTERNATIONAL LAW, CIVIL PROCEDURE

Pam v. USA, September 13

The Court of International Trade held that the Department of Commerce's latest administrative review of dumping by eight foreign pasta exporters was void ab initio as to PAM because the domestic petitioners failed to serve PAM. J. Michel finds that rescission of a completed administrative review is not a proper remedy for lack of service because PAM did not demonstrate substantial prejudice.

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ADMINISTRATIVE LAW

Coalition for Common Sense in Government Procurement v. Secretary of Veterans Affairs, September 11

The VA sent a letter to manufacturers of drugs covered by the health care benefits program of the Department of Defense to refund to the Department the difference between the drugs' wholesale commercial price and their federal ceiling prices. The circuit holds that the letter comprises a substantive rule that was enacted without compliance with notice and comment procedures required by the Administrative Procedures Act. The letter is set aside and the matter remanded for compliance.

PATENT

Zoltek v. USA, September 21
Zoltek Corporation v. US, March 30

[Rehearing denied.] The circuit finds that the US is liable for the use of a method patent only when it practices every step of the claimed method in the United States but reverses the trial court's finding of jurisdiction based on plaintiff's allegation of patent infringement as a Fifth Amendment taking. Remanded.

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PATENT

Kim v. Conagra Foods, September 20

Kim, a food chemist, claimed that Conagra violated her patent for a combination of ascorbic acid and food acid that would serve as a suitable alternative to potassium bromate in the breadmaking process. J. Dyk finds that the district court's claim construction for potassium bromate replacer composition" was proper. Also, while Kim, a qualified expert, offered conclusory testimony that the additional ingredients would not have materially affected the pertinent characteristics of the bread, Kim did not support this determination with any examinations or tests of the actual accused products.

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EMPLOYMENT

Flowers v. MSPB, September 13

J. Rader finds that Flowers, who took leave for major depression, is not entitled to reinstatement to her former job with the Postal Service because she refused to accept the reinstatement with conditions attached and did not file her challenge to the denial of reinstatement in a timely fashion.

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VETERANS, ATTORNEY FEES

Kelly v. Nicholson, September 13

Kelly claimed to have suffered to different problems related to his exposure to Agent Orange during military service in Vietnam. J. Mayer finds that Kelly prevailed in his civil action by securing a remand that required consideration of his ataxia diagnosis. To impose a requirement that the veteran must succeed on his underlying benefits claim to prevail before the Veterans Court on a motion for attorney fees would defy precedent and logic.

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CLASS ACTIONS, EMPLOYMENT

Doe v. US, September 11

A class of more than 9,000 Department of Justice attorneys alleged government violations of the overtime provisions of the Federal Employees Pay Act, seeking holiday and overtime pay. The circuit holds that overtime and holiday hours must be "ordered or approved" in advance to be compensable. Dismissal affirmed.