Washington, DC Court of Federal Claims Litigation Attorney Nancie, Roger Marzulla Law Firm

U.S. Court of Federal Claims Awards Federal Judges Back Pay, With Interest

June 19, 2013

Four years, eight judicial opinions, and a trip to the Supreme Court later, the CFC—on remand from the Federal Circuit’s decision finding liability—has finally ruled on what back pay the federal judges can recover. Beer v. United States, No. 09-37C, is one of several cases brought by federal judges seeking back pay under Article III of the Constitution for cost-of-living adjustments required by Article III and the Ethics Reform Act of 1989. The Ethics Reform Act severely restricted what income federal judges could earn from outside sources, such as speaking honoraria. But the Act also provided that federal judges would also receive a cost-of-living adjustment, commonly known as a COLA, every time regular federal employees received an adjustment. Yet Congress later denied funding for the judges’ COLA, not once, not twice, but six times—in 1995, 1996, 1997, 1999, 2007, and 2010. The six judges in Beer first filed suit in 2009.

No Case or Controversy if Patent-Holder Promises Not to Sue

June 18, 2013

On June 10, 2013, the Federal Circuit issued its opinion in Organic Seed Growers & Trade Association v. Monsanto Company, No. 2012-1298. In that case, approximately 300,000 farmers who did not use genetically engineered crops sued Monsanto, seeking a declaratory judgment that if their crops were inadvertently contaminated with the biotech firm’s patented seed (which represent up to 90% of the seeds sown for some crops) then Monsanto could not sue them for patent infringement. The farmers also sought to have all of Monsanto’s seed patents declared invalid. But because Monsanto’s policy is that it does not sue for inadvertent use of its patented seeds, the Federal Circuit held that there was no case or controversy.

The Supreme Court Holds the Just Compensation Clause Can Be Used as a Defense

June 17, 2013

Until this week, it had almost become a truism that the Just Compensation Clause only required that the Government pay for whatever property it took, and imposed no other restrictions. That is, the Just Compensation Clause is a sword, not a shield. Not so anymore. With the Supreme Court’s unanimous decision in Horne v. Department of Agriculture, property owners effectively have a taking defense, not just a taking claim, if the Government seeks to take their property.

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Attorneys’ Fees Denied After Case Removed from CFC

June 14, 2013

On May 15, 2013, the U.S. Court of Federal Claims denied a request for attorneys’ fees under the Equal Access to Justice Act (EAJA) in a case that was previously filed in the CFC, but was ultimately remanded and resolved in an administrative proceeding without the CFC hearing the merits of the claims. The case is Hughett v. United States and the opinion can be read in its entirety here.

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Co-Op Has No Capacity to Sue for Alleged Taking

June 13, 2013

Identifying a protected property right is critical in takings litigation in the U.S. Court of Federal Claims—but it is rare for a case to turn on the identity of the plaintiff, rather than the identity of the property. In the recent case of International Federation of Professional and Technical Engineers v. United States, the CFC held that the plaintiffs could not identify any property that was taken, and even if they had, it seems that they were the wrong plaintiffs to sue for that taking.

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Untimely Filing Costs Successful Plaintiff its Costs

June 12, 2013

In July of 2012, the Federal Circuit largely affirmed a decision by the CFC to award over $10.6 million in breach of contract damages stemming from the Government’s failure to accept spent nuclear fuel from the owners of the Wolf Creek Generating Station in Coffey County, Kansas. On remand, the CFC entered a revised judgment in favor of the utility companies.

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CFC Declines to Reconsider Flooding Case

June 3, 2013

In May of 2011, the U.S. Army Corps of Engineers breached a levy along the Mississippi River as part of a plan to reduce flooding near Cairo, Illinois. The result was a flood that temporarily blanketed the plaintiffs’ farmland. But when the farmers sued for just compensation, the U.S. Court of Federal Claims—relying heavily on the Federal Circuit’s opinion in Arkansas Game & Fish Commission v. United States—dismissed the takings case. Although the CFC acknowledged that “[i]t is well-settled that government-induced flooding can give rise to a physical taking,” the farmers’ “allegations of two floods separated by nearly 75 years are not enough to support an inference of frequent and inevitably recurring flooding” to amount to a taking.

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Federal Court Protects Grazing Permits Under the Due Process Clause

May 31, 2013

In United States v. Estate of E. Wayne Hage, the U.S. District Court for the District of Nevada held that the U.S. Forest Service and Bureau of Land Management arbitrarily denied the Defendant Hage, a Nevada ranching family, its long-held grazing permits on federal land. Of particular significance, the court held that there are property rights in federal grazing permits that are entitled to protection under the Due Process Clause of the Fifth Amendment.

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Attorney’s Fees May Be Awarded to Petitioners Who File Untimely Claims Under The National Childhood Vaccine Injury Act

May 27, 2013

The National Childhood Vaccine Injury Act of 1986 is a no-fault compensation system that expedites compensation to persons injured by vaccines. Under the Act, attorney’s fees and costs are automatically awarded to a person who is unsuccessful in their claim for compensation for a vaccine-related injury or death, if the petition “was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” But under the Act, attorneys are not permitted to charge fees for their services in connection with filing a petition for compensation.

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CFC Dismisses Case in Light of Plaintiff’s Intent to Pursue Congressional Reference

May 22, 2013

In 2007, the U.S. Court of Federal Claims awarded First Annapolis Bancorp $13,665,907 in restitution damages for breach of contract in First Annapolis Bancorp v. United States, 75 Fed. Cl. 263. That case arose out of the savings and loan crisis of the 1980s. First Annapolis had made a monetary contribution of capital to a bank in exchange for an agreement with the Government for five years of regulatory forbearance. But after one year, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”). FIRREA included new capital standards, which deprived First Annapolis of the benefit of its bargain.

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