Yesterday the Federal Circuit released one precedential opinion, two nonprecedential opinions, and six nonprecedential orders. The precedential opinion comes in an appeal from the Merit Systems Protection Board. Both nonprecedential opinions come in appeals from the Merit Systems Protection Board as well, with one of them appealed pro se. Of the nonprecedential orders, one grants a petition to appeal a case from the Court of Federal Claims, one denies a similar petition, two deny petitions for writs of mandamus, and two dismiss appeals. Here are the introductions to the opinion and all of the orders other than the dismissals, which are simply linked.
Biswas v. Department of Veterans Affairs (Precedential)
Dr. Neena Biswas petitions for review of the decision of the Merit Systems Protection Board (Board) denying her request for corrective action under the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended in scattered sections of 5 and 22 U.S.C.) (WPA), for two personnel actions taken against her by the Department of Veterans Affairs (VA). Although the Board held that Dr. Biswas made protected disclosures under the WPA and that these disclosures contributed to the VA’s personnel actions, the Board denied relief because it determined that the VA showed it would have taken the same personnel actions even in the absence of Dr. Biswas’s protected disclosures. For the reasons explained below, we affirm.
Chapman v. Merit Systems Protection Board (Nonprecedential)
Terry R. Chapman appeals from the final order of the Merit Systems Protection Board (“Board”) dismissing his petition for review as untimely. See Chapman v. Off. of Pers. Mgmt., No. PH-0841-17-0440-I-1, 2024 WL 1174194 (M.S.P.B. March 18, 2024). We affirm.
Lee v. Department of the Army (Nonprecedential)
Roberta A. Lee appeals pro se a final decision of the Merit Systems Protection Board, which affirmed the agency’s charge of insubordination and penalty of removal. Ms. Lee had 60 days from the date of the Board’s decision, or the Board’s notice of the final order, to file a petition of review to this court. 5 U.S.C. § 7703(b)(1). The Supreme Court recently decided that this 60-day filing deadline is non-jurisdictional. Harrow v. Dep’t of Def., 601 U.S. 480, 489–90 (2024). The Court, however, declined to decide whether the 60-day filing deadline is subject to equitable tolling. Id.
The government argues that we must dismiss Ms. Lee’s appeal because she filed it six days past the 60-day deadline. Respondent’s Br. 7–8. The government also argues the 60-day filing deadline is not subject to equitable tolling and that, in any event, Ms. Lee would not be entitled to equitable tolling. Id. We do not reach these issues because we find that the Board did not err on the merits. Accordingly, for the reasons explained below, we affirm the Board’s final decision.
112 Genesee Street, LLC v. United States (Nonprecedential Order)
Pursuant to 28 U.S.C. § 1292(d)(2), the United States petitions for permission to appeal an order of the United States Court of Federal Claims denying its motion to dismiss Respondents’ complaint. Respondents oppose.
Under § 1292(d)(2), the Court of Federal Claims may certify that an order that is not otherwise immediately appealable is one involving a controlling question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Ultimately, this court must exercise its own discretion in deciding whether to grant permission to appeal an interlocutory order. See In re Convertible Rowing Exerciser Pat. Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). In this case, we exercise our discretion to permit the interlocutory appeal.
In re Garner (Nonprecedential Order)
Theresa Garner petitions this court for a writ of mandamus directing the United States Court of Federal Claims to enter default judgment against the United States and for other procedural and monetary relief. ECF No. 2 at 2. Ms. Garner also moves for a stay and “remand” to the Office of Personnel Management (“OPM”). ECF No. 3.
In re Visiat, Inc. (Nonprecedential Order)
Viasat, Inc. petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to schedule trial “as soon as practicable” or, alternatively, to expedite oral argument in Appeal No. 2024-1384, Pet. 1, which involves the patent claim asserted in the district court case. Kioxia America, Inc. opposes.
Sikorsky Aircraft Corporation v. United States (Nonprecedential Order)
The United States petitions for permission to appeal orders of the United States Court of Federal Claims determining the scope of the claim covered by the contracting officer’s decision and limiting the scope of the United States’s discovery. The trial court certified the order for appeal pursuant to 28 U.S.C. § 1292(d)(2). Sikorsky Aircraft Corporation opposes the petition.
Under § 1292(d)(2), the Court of Federal Claims may certify that an order that is not otherwise appealable is one involving a controlling question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Ultimately, this court must exercise its own discretion in deciding whether to grant permission to appeal an interlocutory order. See In re Convertible Rowing Exerciser Pat. Litig., 903 F.2d 822, 822 (Fed. Cir. 1990) (applying § 1292(b)). In this case, we conclude that an interlocutory appeal under § 1292(d)(2) is not appropriate.