This morning the Federal Circuit issued three precedential opinions: one in a government contracts case, one in a takings case, and one in a tax case. The court also issued one precedential order in a government contracts case, as well as two nonprecedential opinions: one in a Merit Systems Protection Board case and one in a patent case. Here are the introductions to the opinions and text from the order.

Cooper/Ports America, LLC v. Secretary of Defense (Precedential)

Cooper/Ports America LLC (“CPA”) provided stevedoring and related terminal services to the government under a contract dated January 28, 2015. CPA submitted a claim that the government failed to provide a timely preliminary written notice of intent to exercise the government’s option to extend the parties’ contract, and that the subsequent option exercise was ineffective. The claim was denied by a contracting officer, and CPA appealed before the Armed Services Board of Contracts Appeals (“Board”). The Board held that the government satisfied the preliminary written notice requirement. We affirm.

Caquelin v. United States (Precedential)

Without ruling on the merits of the government’s arguments, we remanded for the trial court to receive additional evidence, as needed, and to make findings under an Arkansas Game approach, so that consideration of the legal challenges could proceed on a fuller record. Caquelin v. United States, 697 F. App’x 1016, 1019–20 (Fed. Cir. 2017) (Caquelin II). On remand, the trial court again held that a taking had occurred. Caquelin v. United States, 140 Fed. Cl. 564 (2018) (Caquelin III).


The government appeals. We affirm. We reject the contention that Arkansas Game calls for displacing the categorical-taking analysis adopted in our precedents for a NITU that blocks termination of an easement, an analysis applicable even when that NITU expires without a trail-use agreement that would indefinitely extend the federal law blocking of the easement’s termination. We clarify, however, that a NITU does not effect a taking if, even in the absence of a NITU, the railroad would not have abandoned its line (a necessary prerequisite for termination of the easement under state law) during the period of the NITU: in such a case, the NITU takes nothing from the landowner that the landowner would have had in the absence of the NITU. We leave to future cases further questions about that issue. Here, the government has not sought a remand for findings on when the railroad would have abandoned the line in the absence of a NITU, and the evidence permits a finding that abandonment would have occurred during the NITU period if the NITU had not issued.

Adkins v. United States (Precedential)

Charles P. Adkins and Jane E. Adkins (collectively, “the Adkinses”) appeal the Court of Federal Claims’ (the “Claims Court”) decision dismissing with prejudice their claim for an income tax refund. Adkins v. United States, 140 Fed. Cl. 297 (2018) (“Adkins II”).


The Adkinses now allege that, in addition to erroneously finding that they failed to establish a lack of a reasonable prospect of recovery in 2004, the Claims Court improperly relied on the government’s affirmative defenses; again misconstrued the relevant legal standard; ignored regulations governing the effect of a criminal indictment; and abused its discretion in denying the Adkinses’ motion to compel. Because we find that the Claims Court once more misconstrued a taxpayer’s legal obligations in this tax refund context and thus, required too much with respect to the showing required, we reverse the Claims Court’s conclusion that the Adkinses failed to show that, as of 2004, they lacked a reasonable prospect of recovery for the losses they incurred by virtue of the substantial fraud perpetuated upon them. We do not reach the Adkinses’ other objections to the Claims Court’s reasoning and rulings.

Guarantee Company of North America, USA v. Ikhana, LLC (Precedential Order)

A petition for rehearing en banc was filed by appellant Guarantee Company of North America, USA and a response was invited by the court and filed by appellee Ikhana, LLC. A motion for leave to file an amicus curiae brief was filed by The Surety & Fidelity Association of America (“SFAA”) and granted by the court. The court further invited the United States to file an amicus curiae brief. The petition for rehearing and SFAA amicus curiae brief were first referred to the panel that heard the appeal, and thereafter, the petition for rehearing, response, and amici curiae briefs of SFAA and the United States were referred to the circuit judges who are in regular active service. A poll was requested, taken, and failed.

Upon consideration thereof,


1) The petition for panel rehearing is denied.

2) The petition for rehearing en banc is denied.

3) The mandate of the court will issue on June 5, 2020.

WALLACH, Circuit Judge, with whom NEWMAN, DYK, and MOORE, Circuit Judges, join, dissenting from denial of a petition for rehearing en banc.

I respectfully dissent from the court’s decision declining to rehear this appeal en banc. I believe that under the doctrine of equitable subrogation a surety should be able to step into the shoes of a government contractor in the event of that contractor’s default under fundamental principles of contract law. As our precedent now erroneously stands, a surety is hindered from playing its necessary role in government contracting—bringing efficient resolution to contract disagreements, assuming financial risk, and ensuring execution of performance—because it lacks the legal rights it needs to ensure speedy dispute resolution. See Admiralty Constr. by Nat’l Am. Ins. Co. v. Dalton, 156 F.3d 1217 (Fed. Cir. 1998), Fireman’s Fund Ins. Co. v. England, 313 F.3d 1344 (Fed. Cir. 2002). Moreover, I think that the interpretations of the Contract Disputes Act (“CDA”), which governs government contracting, in Admiralty and Fireman’s Fund are based on an erroneous extrapolation of the CDA’s legislative history and are at odds with basic tenets of insurance contract law. I also have grave concerns about the implications of the impediment Admiralty and Fireman’s Fund pose. Specifically, sureties for government contracts must recognize the downstream shoals of our case law, and either opt out of providing the service or, recognizing the potential for heightened financial risk, charge a higher rate for their service—a cost that is passed onto the U.S. taxpayer and a court created structural inefficiency in the system. Accordingly, I respectfully dissent.

McGrath v. OPM (Nonprecedential)

Richard McGrath petitions for review of a final decision of the Merit Systems Protection Board affirming the Office of Personnel Management’s decision declining to credit 87 days of military service toward his retirement annuity under the Federal Employee Retirement System. Because the Board’s decision is in accordance with the law and is supported by substantial evidence, we affirm.

Boston Scientific Neuromodulation Corp. v. Nevro Corp. (Nonprecedential)

This is an appeal from a consolidated inter partes review proceeding requested by Nevro Corp. (“Nevro”). The U.S. Patent Trial and Appeal Board (the “Board”) concluded that certain claims of U.S. Patent No. 6,895,280 (“the ’280 patent”), claims 8, 18, 22–24, and 27, are unpatentable as obvious. J.A. 39–66, 73–97,103–151. The Board concluded that claims 26 and 28–30 are not unpatentable as obvious. Patent Owner Boston Scientific Neuromodulation Corp. (“Boston Scientific”) appeals the Board’s invalidity findings. Nevro cross-appeals the Board’s conclusion that claims 26 and 28–30 are not unpatentable as obvious. Because we agree with the Board’s claim constructions and conclude that substantial evidence supports the Board’s underlying factual findings, we affirm the Board’s conclusions as to all challenged claims.