This morning the Federal Circuit released two precedential opinions, two nonprecedential opinions, and three nonprecedential orders. The first precedential opinion reverses and remands a judgment of the Court of Appeals for Veterans Claims, while the other precedential opinion affirms the Western District of Texas’s dismissal of a case for failure to state a claim. The first nonprecedential opinion affirms the dismissal of a petition for review by the Merit Systems Protection Board, and the second nonprecedential opinion affirms two final decisions by the Merit Systems Protection Board in a whistleblower case. The first nonprecedential order dismisses an appeal, while the other two nonprecedential orders grant summary affirmances under Rule 36. Here are the introductions to the opinions and links to the orders.

Barry v. McDonough (Precedential)

Daniel D. Barry appeals a final decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) limiting his entitlement to additional special monthly compensation (“SMC”). Barry v. McDonough, 35 Vet. App. 111 (2022) (“Decision”). In the underlying proceedings, Mr. Barry argued that the Board of Veterans’ Appeals (“Board”) should have considered his entitlement to multiple SMC increases, rather than just one, under 38 C.F.R. § 3.350(f)(3).1 A majority of the Veterans Court disagreed and interpreted § 3.350(f)(3) to permit only one SMC increase, regardless of how many qualifying disabilities Mr. Barry could demonstrate. As we explain below, § 3.350(f)(3) does not limit how many SMC increases can be provided; instead, it is a mandatory entitlement that can apply multiple times, subject to a statutory cap. We thus reverse and remand.

Creager Ireland v. United States (Precedential)

This appeal is about whether Pandemic Unemployment Assistance remains available to a group of Texans after the Texas governor informed the Department of Labor that Texas would withdraw from its agreement with the Secretary of Labor to participate in the PUA program.

Plaintiffs appeal the decision of the United States District Court for the Western District of Texas granting the Federal Government’s motion to dismiss for failure to state a claim. Appellants allege that the Federal Government violated the mandate in PUA that the Secretary of Labor “shall provide . . . assistance” to “any covered individual.” 15 U.S.C. § 9021(b). We affirm because PUA does not require the Secretary to pay PUA benefits to individual citizens; rather, the Secretary must provide assistance through agreements with the states.

Mulligan v. Merit Systems Protection Board (Nonprecedential)

The Merit Systems Protection Board (Board) dismissed Mr. Sean Mulligan’s petition for review for being filed late after Mr. Mulligan had not responded to the Board’s notice to show good cause for his untimely filing. Mulligan v. Dep’t of Homeland Sec., No. SF-0752-16-0093-I-2, 2023 WL 4628844, at *1–2 (M.S.P.B. July 19, 2023) (Final Order). Because we cannot say that the Board abused its discretion in considering the petition to be untimely filed, we affirm.

Etzel v. Merit Systems Protection Board (Nonprecedential)

Dr. Ruth A. Etzel petitions for review of two final decisions of the United States Merit Systems Protection Board (“Board”). In the first decision, the Board found Dr. Etzel failed to show that she made a protected disclosure under the Whistleblower Protection Act (“WPA”) contributing to an adverse personnel action. Etzel v. EPA, No. DC-1221- 19-0827-W-2, 2022 WL 1204453 (M.S.P.B. Apr. 18, 2022). In the second decision, the Board determined that she failed to raise a nonfrivolous allegation of Board jurisdiction with respect to her pay reduction. Etzel v. EPA, No. DC-3443-21-0391-I-1, 2022 WL 1204454 (M.S.P.B. Apr. 18, 2022). We affirm.


Rule 36 Judgments