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Papp alleged that his late wife suffered secondary “take home” asbestos exposure while washing the work clothes of her first husband, Keck. Keck had several jobs that exposed him to asbestos. Papp sued multiple companies in New Jersey. In a deposition, he indicated that the landing gear Keck sandblasted was for a C-47 military cargo plane, built by Boeing’s predecessor. Boeing removed the case, citing the federal officer removal statute, 28 U.S.C. 1442(a)(1). Boeing asserted that it was entitled to government contractor immunity because the C-47 was produced for, and under the specific supervision of, the U.S. military and that the supervision extended to labels and warnings for all parts of the aircraft, including those parts laden with the asbestos to which Keck would later be exposed. The district court remanded, reasoning that Boeing, as a contractor and not a federal officer, had a “special burden” to demonstrate “that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties … worked or otherwise provided services.” The Third Circuit reversed, holding that the statute extends to contractors who possess a colorable federal defense and that Boeing made a sufficient showing of such a defense. View "Papp v. Fore-Kast Sales Co Inc" on Justia Law

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At issue in this case was the constitutionality of a Syracuse noise ordinance that prohibits the creation of “unnecessary noise” emanating beyond fifty feet from a motor vehicle operated on a public highway. Defendant was convicted of sound reproduction in violation of the ordinance. The Appellate Division affirmed, holding that the noise ordinance was constitutional. The Appellate Division concluded that while a similar local noise ordinance was held to be void for vagueness in People v. New York Trap Rock Corp., the Syracuse noise ordinance at issue was not unconstitutionally vague. The Court of Appeals affirmed, holding that the statute does not offend the constitutional void-for-vagueness doctrine of due process. View "People v. Stephens" on Justia Law

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Heartland Alliance’s National Immigrant Justice Center submitted to the Department of Homeland Security a Freedom of Information Act request for information relating to Tier III terrorist organizations. Membership in any tier makes a person inadmissible to the United States, with narrow exceptions. Tier I and Tier II organizations are publicly identified terrorist groups such as ISIS and al‐Qaeda. Tier III organizations are defined in 8 U.S.C. 1182(a)(3)(B)(vi)(III) as any group that engages in terrorist activity (defined in 8 U.S.C. 1182(a)(3)(B)(iv)), even if the activity is conducted exclusively against regimes that are enemies of the United States. The government typically does not have good intelligence about Tier III organizations. The Department provided only some of the requested information. The Center filed suit. The district judge granted, and the Seventh Circuit affirmed, summary judgment for the government on the ground that the names of the Tier III organizations are protected from disclosure by the Freedom of Information Act’s exemption, 5 U.S.C. 552(b)(7)(E), for “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” View "Heartland Alliance National Immigrant Justice Center v. Department of Homeland Security" on Justia Law

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Zafer, an Ankara, Turkey, contractor, and the Army Corps of Engineers (USACE) entered into a firm-fixed-price contract to construct the MILCON Support Facility at the Bagram Air Force Field in Afghanistan. Zafer was responsible for delivering materials to the site, and assumed the risk “for all costs and resulting loss or profit.” After issuing notice to proceed, USACE recognized that it could not make the project site available immediately and increased the contract price and set a new completion date. In November 2011, Pakistan closed its border from the seaport city of Karachi along the land routes into Afghanistan in response to a combat incident with the U.S. and NATO. The route remained closed for 219 days, Zafer notified USACE that the closure would greatly impact its delivery of materials and requested direction on how to proceed. USACE replied that the closure was “purely the act of Pakistan governmental authorities,” that the U.S. government was “not responsible” and denied further compensation. Zafer subsequently, repeatedly, asked for payment for additional costs. In 2013, Zafer submitted an unsuccessful request for an equitable adjustment. The contracting officer found no evidence supporting a constructive change claim. The Claims Court granted USACE summary judgment. The Federal Circuit affirmed. Zafer failed to designate specific facts to establish a constructive change claim based on either a constructive acceleration theory or on a government fault theory. View "Zafer Taahhut Insaat v. United States" on Justia Law

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Plaintiffs, employed by the U.S. Customs and Border Protection, (CBP) as Supply Chain Security Specialists in its Customs-Trade Protection Against Terrorism program, travelled and worked at foreign posts designated by the Secretary of State as “danger pay posts.” They alleged that they did not receive overtime pay as required by the Fair Labor Standards Act, 29 U.S.C. 216(b). Count II, citing the Overseas Differentials and Allowances Act (ODAA) of 1960, 5 U.S.C. 5928, claimed that CBP denied them danger pay allowances for work performed at posts that the Department of State has designated as eligible for such allowances. The Claims Court dismissed Count II for lack of jurisdiction on grounds that ODAA is not a money-mandating statute, that the State Department regulation (DSSR) is not money-mandating, and that CBP has not adopted a policy of paying danger pay to all eligible employees. The Federal Circuit affirmed; section 5928, the DSSR, and the alleged unwritten policy of providing danger pay, cannot reasonably be construed as “money-mandating.” View "Acevedo v. United States" on Justia Law

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In 1996, Zoltek sued, alleging that the process used to produce carbon fiber sheet materials for the B-2 Bomber and the F-22 Fighter Plane, with the consent of the Air Force and Navy, infringed its patent. The Federal Circuit answered a certified question, holding that the patentee has no claim against the government when any step of the patented method is practiced outside of the U.S., as for the F-22. On remand, the Claims Court granted Zoltek leave to substitute as defendant Lockheed, the F-22’s general contractor. The Federal Circuit then acted en banc and reversed its earlier ruling, recognizing the liability of the United States for infringement by acts that are performed with its authorization and consent, citing 28 U.S.C. 1498(a), and dismissed Lockheed. On remand, the Claims Court separated trial of the issues of validity and infringement and denied discovery as to infringement with respect to the F-22. The Federal Circuit denied a petition for mandamus. The Claims Court sustained patent eligibility, but held the asserted claims invalid on the grounds of obviousness and inadequate written description. The Federal Circuit held that in these circumstances, given the government’s official invocation of state secret privilege, the court acted within its discretion in limiting trial initially to issues of validity, but erred in its judgment of patent invalidity. View "Zoltek Corp. v. United States" on Justia Law

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Plaintiffs, Woodward employees, filed a qui tam action under the False Claims Act, alleging that Woodward falsely certified helicopter engine parts that it sold to the government. Plaintiffs had complained that the sensors at issue did not meet quality standards and had refused to work on the order. Following an investigation, a Defense Contract Management Agency Technical Specialist concluded that there was “nothing either incorrect or wrong with the procedures, assembly, or testing of the sensors.” The government continues to order, pay for, and use Woodward’s sensor The Seventh Circuit affirmed summary judgment in favor of Woodward, agreeing that even if Woodward made false statements to the government, no reasonable jury could find that it made the statements knowingly or that the statements were material. View "Marshall v. Woodward, Inc." on Justia Law

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Mokdad, a naturalized U.S. citizen, alleges that he has been denied boarding on commercial airline flights between the U.S. and his native country, Lebanon because he was on the No Fly List. Mokdad applied for redress under the Department of Homeland Security Traveler Redress Inquiry Program (TRIP). Mokdad received a letter that did not confirm or deny whether he was on the List but informed him that “we have conducted a review of any applicable records in consultation with other federal agencies ... no changes or corrections are warranted at this time.” The letter notified him of his right to file administrative appeal with the Transportation Security Administration (TSA) within 30 days, that the TRIP determination would become final if he did not, and that final determinations are reviewable by the Court of Appeals under 49 U.S.C. 46110. Mokdad did not file a TSA administrative appeal or a petition with the Court of Appeals but filed a complaint in the Eastern District of Michigan against the Attorney General, the FBI, and the Director of the Terrorist Screening Center. Mokdad did not name TSA or any TSA officer. The Sixth Circuit reversed dismissal, finding that the district court had jurisdiction, but declined to address the challenge to the adequacy of procedures to contest inclusion on the No Fly List, for failure to join a necessary party. View "Mokdad v. Lynch" on Justia Law

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The U.S. Air Force solicited bids from private companies to supply equipment and services to build a new radar system. Raytheon, Northrop Grumman, and Lockheed Martin cleared early hurdles; each received a solicitation for proposals for Engineering and Manufacturing Development. The Air Force subsequently sent Evaluation Notices to Raytheon and Northrop that “contractors would not be permitted to use IR & D costs to reduce their costs of performing . . . if those costs were implicitly or explicitly required for contract performance.” Raytheon objected; Northrop did not.. The Air Force then changed its view and accepted Raytheon’s treatment of certain costs as IR & D costs, but never communicated its new view to Northrop. In final proposals, Raytheon proposed IR & D cost reductions, whereas Northrop did not. The Air Force awarded the contract to Raytheon. Northrop and Lockheed filed protests with the Government Accountability Office (31 U.S.C. 3551). In response, the Air Force “decided to take corrective action” and to reopen discussions. Raytheon filed a protest under 28 U.S.C. 1491(b) to challenge the decision to take corrective action. The Federal Circuit affirmed denial of the protest, concluding that the reopening decision was proper based on the disparate-information violation. View "Raytheon Co. v. United States" on Justia Law

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The National Federation of Federal Employees Local 1442 filed a group grievance on behalf of 138 NFFE bargaining unit employees at Letterkenny Army Depot (LEAD); Local 2109 filed two grievances on behalf of all of bargaining unit employees at Watervliet Arsenal (WVA). In both grievances, the Union challenged the furloughing of bargaining unit employees for six discontinuous days between July and September in Fiscal Year 2013. The furloughs were the result of an automatic process of federal agency spending reductions called “sequestration.” Arbitrator Kaplan ruled that the furloughs of the employees at LEAD were in accordance with law. Months later, Arbitrator Gross ruled that the furloughs of WVA security employees were not in accordance with law, but that the furloughs of non-security bargaining unit employees at WVA were in accordance with law. The Federal Circuit upheld both decisions. Arbitrators Kaplan and Gross had substantial evidence before them demonstrating that the furlough decisions were reasonable management solutions to the financial restrictions placed on DOD by the sequester, thus promoting the efficiency of the service. View "Nat'l Fed'n of Fed. Employees v. Dep't of the Army" on Justia Law