This week the Federal Circuit will convene fifteen panels to consider about 64 cases. This month, as in the past several months, the court will hear all of its oral arguments telephonically given the coronavirus pandemic. Of the 64 cases, the court will hear oral arguments in 42. Of these argued cases, four attracted amicus briefs: one in a government contract case and three in veterans cases. Here’s what you need to know about these cases.
Veterans4You LLC v. United States
As discussed in our argument preview, Veterans4You asserts that the VA wrongly invoked the “printing mandate” in 44 U.S.C. § 501 to route a Department of Veterans Affairs (“VA”) procurement through the Government Publishing Office (“GPO”). Veterans4You contends this approach violated the “Rule of Two,” a statutory preference for veteran-owned small businesses or service-disabled veteran-owned small businesses.
In response, the government argues that the CFC properly determined that the VA was not required to do a “Rule of Two” analysis.
Kingdomware Technologies, Inc. filed an amicus brief supporting Veterans4You.
Sarah C. Reida will argue for Veterans4You, LLC.
Corinee A. Niosi will argue for the government.
This argument will take place on Monday, November 2, at 10:00 A.M.
Boeing Co. v. Secretary of the Air Force
As discussed in our argument preview, in this case the court will consider whether the Armed Services Board of Contract Appeals erred in holding that the Defense Federal Acquisition Regulation Supplement 252.227-7013 precludes government contractors from marking technical data delivered to the Government in a certain way. In particular, Boeing argues it should be permitted to mark technical data in a way that (a) recognizes the Government’s unlimited rights in the data, (b) does not restrict or impair the Government’s rights, and (c) restricts only the rights of third parties to use the data absent permission from the contractor or the Government.
In response, the Secretary of the Air Force asserts that the “technical data at issue here are noncommercial data.” Therefore, according to the Air Force, “by the plain terms of Boeing’s contracts, the Government obtained an ‘unlimited rights license’ that broadly grants the Government the ‘rights to use modify, reproduce, perform, display, release, or disclose, [Boeing’s] technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.’”
The Chamber of Commerce of the United States of America and the Professional Services Council filed an amicus brief in support of Boeing.
Scott McCaleb will argue for The Boeing Co.
Corinee A. Niosi will argue for the government.
This argument will take place on Wednesday, November 4, at 10:00 A.M.
Monk v. Wilkie
As discussed in our argument preview, in this case the court will consider three issues related to veterans law: (1) Did the Court of Appeals for Veterans Claims misinterpret 38 U.S.C. § 7261(a)(2) in holding that a five-year delay in deciding a disabled veteran’s administrative appeal does not amount to an unreasonable delay; (2) Did the CAVC misinterpret and misapply the Fifth Amendment Due Process Clause in holding that such a five-year delay does not violate the veteran’s due process rights; and (3) Did the CAVC misinterpret the mootness standard in dismissing certain Appellants’ claims.
The veterans argue that, in this case, the CAVC committed two fundamental errors. First, the veterans contend, “the en banc CAVC misinterpreted the standard that governs Mr. Dolphin’s statutory right to be free from unreasonable delay.” Second, the veterans argue that, under 38 U.S.C. § 7292(d)(2), “the CAVC failed to independently analyze Mr. Dolphin’s constitutional due process claim, an issue this Court is mandated to review.”
In response, the Secretary of Veterans Affairs first responds that the veterans’ arguments are moot. Even if the court reaches the issue of unreasonable delay, the Secretary contends, the court “should hold that the Veterans Court did not abuse its discretion in declining to issue a writ for Mr. Dolphin.”
Three separate amicus briefs were filed supporting the veterans.
Michael J. Wishnie will argue for the veterans.
David Pehlke will argue for the Secretary.
This argument will take place on Wednesday, November 4, at 10:00 A.M.
Euzebio v. Wilkie
As discussed in our argument preview, the court will consider three issues related to veterans law: (1) whether “[t]he Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board because it excludes relevant matters that are known or should be known to the Board;” (2) whether “the Veterans Court erred in holding that it lacks the legal authority to look at relevant facts known to the agency for purposes of reviewing the Board’s decision;” and (3) whether “the Veterans Court misinterpreted the scope of VA’s duty to assist when it affirmed VA’s failure to develop the record with relevant facts concededly known to the agency.”
Euzebio, a veteran, urges the court to find that, as a matter of law, “the Board’s undisputed knowledge of relevant evidence—here, Veterans and Agent Orange: Update 2014—requires . . . that the evidence be deemed to have been before the Board in an adjudication.”
In response, the Secretary argues the “Veterans Court properly found that ‘the record of proceedings’ in 38 U.S.C. § 7252(b) did not include Update 2014.”
Two amicus briefs were filed in support of Euzebio.
April M. Donahower will argue for Mr. Euzebio.
Martin F. Hockey, Jr. will argue for the Secretary.
This argument will take place on Friday, November 6, at 10:00 A.M.