This morning the Federal Circuit issued two precedential opinions in veterans cases, one nonprecedential opinion in a patent case, two nonprecedential opinions in Merit Systems Protection Board cases, one nonprecedential opinion in a veterans case, and two Rule 36 judgments. Continue reading for introductions to the opinions and a list of the Rule 36 judgments.

Strand v. United States (Precedential)

The government appeals a decision of the United States Court of Federal Claims setting aside the Secretary of the Navy’s denial of Walter Strand’s request to correct his military service records. Against the recommendation of a records correction board, the Secretary denied Mr. Strand’s request for a six-month service credit to become eligible for military retirement benefits. Because the Secretary did not exceed his authority in rejecting the board’s recommendation and substantial evidence supports his decision, we reverse and thereby reinstate the Secretary’s decision to deny the correction.

REYNA, Circuit Judge, dissenting.

The majority upholds an agency decision that relies on an unsupported factual finding: that Mr. Strand “engaged in misconduct in 1993.” J.A. 283. Because that finding was an integral part of the Secretary’s decision, our law requires that we remand to the Secretary for further review. I respectfully dissent.

Ashford University, LLC v. Secretary of Veterans Affairs (Precedential)

The Department of Veterans Affairs (“VA”) provides educational assistance in the form of monetary benefits to veterans enrolled in “approved” “course[s] of education.” See 38 U.S.C. § 3483. Typically, approval must be provided by “the State approving agency [(“SAA”)] for the State where [an] educational institution is located.” 38 U.S.C. § 3672(a)(1). For online courses, the educational institution must obtain approval from the SAA where the institution’s “main campus” is located. 38 C.F.R. § 21.4250(a)(3). The VA is authorized to suspend and discontinue educational assistance, after following certain procedures, if this requirement is not met. See 38 U.S.C. § 3690(b).

Petitioner Ashford University, LLC (“Ashford”) is a for-profit educational institution that provides online courses to veterans and other students. In November 2017, the VA sent a letter (“Cure Letter”) to Ashford stating that Ashford’s online courses were not approved by the correct SAA. See 38 C.F.R. § 21.4250(a)(3). The VA expressed its “inten[t] to suspend payment of educational assistance and suspend approval of new enrollments and reenrollments [for Ashford’s online programs] in 60 days unless corrective action is taken.” J.A. 1. The Cure Letter provided that, absent corrective action, the VA would invoke procedures for discontinuing Ashford’s educational assistance, including “refer[ring] the matter to the Committee on Educational Allowances . . . to assist . . . in making a determination as to whether educational assistance should be discontinued” and providing Ashford with “the opportunity for a hearing before the Committee.” J.A. 3 (citing 38 C.F.R. §§ 21.4210–14).

Ashford petitions this court for review, contending that the Cure Letter “announces” new “rules” and that 38 U.S.C. § 502 provides this court with jurisdiction to review those alleged rules. Appellant’s Br. 19, 48. On the merits, Ashford argues that these alleged rules are invalid, and requests that this court “hold unlawful and set aside” the rules. Id. at 52.

We conclude that the Cure Letter is not rulemaking or any other action reviewable under section 502. The Cure Letter is also not subject to judicial review because it is not a final agency action under the Administrative Procedure Act (“APA”). We accordingly dismiss the petition.

Uber Technologies, Inc. v. X One, Inc. (Nonprecedential)

Uber Technologies, Inc. (“Uber”) appeals a decision of the Patent Trial and Appeal Board (“Board”). The Board declined to find certain claims of U.S. Patent No. 8,798,647 (“the ’647 patent”) unpatentable as obvious. We reverse the Board’s determination of non-obviousness as to the independent claims, vacate the Board’s determination as to the dependent claims, and remand for further proceedings.

Lucena v. DOJ (Nonprecedential)

Petitioner David Lucena seeks review of a final decision of the Merit Systems Protection Board (“MSPB”) affirming his indefinite suspension from duty and pay by the U.S. Department of Justice (“DOJ”) for approximately seven months, while resolution of his suspended security clearance was pending. See Lucena v. Dep’t of Justice, No. DC-0752-19-0097-I-1, 2019 WL 1242602 (M.S.P.B. Mar.13, 2019)(P.A.1–15)(FinalDecision) at P.A.1.2,3 We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We affirm.

Keys v. MSPB (Nonprecedential)

James Keys appeals from the final decision of the Merit Systems Protection Board (“the Board”), dismissing Keys’ appeal for lack of jurisdiction. We agree with the Board that Keys’ constructive removal claim is barred by collateral estoppel. With respect to Keys’ reassignment claim, however, both parties now agree that Keys established jurisdiction and is entitled to a hearing. Accordingly, we affirm the Board’s decision regarding Keys’ constructive removal claim but reverse the Board’s findings regarding Keys’ reassignment claim and remand for further proceedings.

Ramirez v. Wilkie (Nonprecedential)

Suely Ramirez appeals from an order of the Court of Appeals for Veterans Claims (“the Veterans Court”) dismissing her appeal from a decision of the Board of Veterans’ Appeals (“the Board”) denying her claim of entitlement to Dependents’ Educational Assistance for lack of jurisdiction. See Ramirez-Diaz v. Wilkie, No. 18-3162, 2019 WL 982884 (Vet. App. March 1, 2019) (“Decision”). Because this appeal presents no statutory or constitutional issues, we conclude that we lack jurisdiction and accordingly dismiss the appeal.

Rule 36 Judgments