This morning the Federal Circuit released three nonprecedential opinions. One comes in a government contract case on appeal from the Court of Federal Claims, one comes in a pro se veterans case on appeal from the Court of Appeals for Veterans Claims, and the other comes in an appeal from a decision of the Merit Systems Protection Board. Here are the introductions to the opinions.
Hawaiian Dredging Construction Co. v. United States (Nonprecedential)
Hawaiian Dredging Construction Company (“HDCC”) appeals a decision from the United States Court of Federal Claims (“CFC”) granting the government’s Rule 12(b)(6) of the Rules of the CFC (“RCFC”) motion to dismiss HDCC’s complaint for failure to state a claim upon which relief can be granted. See Hawaiian Dredging Constr. Co., Inc v. United States, No. 22-339, 2023 WL 1979542 (Fed. Cl. Feb. 14, 2023) (“Opinion”). For the reasons that follow, we agree with the CFC’s conclusion that HDCC has not pled sufficient facts to demonstrate excusable delay regarding its retaining wall construction, but disagree that the alleged government delays regarding the Rights of Way (“ROWs”) delivery and utility relocation related claims, as well as HDCC’s repayment claim, are ripe for granting the government’s motion to dismiss under RCFC 12(b)(6). We also conclude that HDCC’s claim that the final ROWs delivered by the government differed from the ROWs as stated in the request for proposals should not have been dismissed. We thus affirm in part, reverse in part, and remand for further proceedings.
Lownsdale v. Collins (Nonprecedential)
James E. Lownsdale appeals a January 25, 2024, decision by the United States Court of Appeals for Veterans Claims. Mr. Lownsdale seeks an earlier effective date for an increased disability rating for his service-connected right knee disability, asserting that his 1980 claim for an increased rating remained pending until 2015. The Veterans Court affirmed the Board’s decision finding Mr. Lownsdale was not entitled to an earlier effective date for his right knee condition. J.A. 1–14.
On appeal, Mr. Lownsdale primarily argues that the Veterans Court erred by affirming the Board’s determination that his 1980 claim had been finally adjudicated by a 2010 Board decision. He also argues that the Board’s decisions rejecting his claims for an increased rating demonstrate its bias toward him. Those arguments involve challenges to factual determinations or application of law to fact, which we lack jurisdiction to consider. See 38 U.S.C. § 7292(d)(2) (“[T]he Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.”); see also Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011) (“This court may not review the Veterans Court’s factual findings or its application of law to facts absent a constitutional issue.”); Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (“[An appellant’s] characterization of [a] question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.”). We have considered all of the other arguments raised by Mr. Lownsdale and conclude that they likewise fail to raise any issue within our limited jurisdiction. Because we lack jurisdiction to review Mr. Lownsdale’s appeal, we dismiss.
Rosales v. Department of Homeland Security (Nonprecedential)
The United States Department of Homeland Security (DHS) removed Jose Rosales, the petitioner, from his position as a United States Customs and Border Protection (CBP) Officer. Mr. Rosales appealed his removal to the Merit Systems Protection Board (Board), which affirmed in an initial decision. See Rosales v. DHS, No. SF-0752-17-0615-I-1, 2018 WL 1146166 (M.S.P.B. Mar. 2, 2018) (Appx. 8–39) (Decision). The full Board denied Mr. Rosales’s petition for review, thereby making the administrative judge’s initial decision the final decision of the Board. See Rosales v. DHS, No. SF-0752-17-0615-I-1, 2024 WL 510904, at *1 (M.S.P.B. Feb. 8, 2024) (Appx. 1–7); 5 C.F.R. § 1201.113(b). Mr. Rosales now petitions for our review of the Board’s final decision. For the following reasons, we affirm.