Odysseus, Avocados, and Election Litigation Timing

MICHAEL C. DORF

Cornell law professor Michael C. Dorf explains the legal concepts of ripeness and laches, which pertain to the timing of filing a lawsuit, and argues that in the context of election lawsuits, it is far better for courts to relax ripeness rules and risk unnecessary adjudications than to discard the doctrine of laches and risk widespread disenfranchisement and the undermining of confidence in fair elections.

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Boeing Co. v. Secretary of the Air Force

Docket: 19-2147

Opinion Date: December 21, 2020

Judge: Alan David Lourie

Areas of Law: Aerospace/Defense, Government Contracts

Boeing entered into contracts with the Air Force that require Boeing to deliver technical data with “unlimited rights,” meaning that the government has the right to “use, modify, reproduce, perform, display, release, or disclose [the] technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.” Notwithstanding the government’s unlimited rights, Boeing retains ownership of any technical data it delivers under the contracts. Boeing marked each submission to the Air Force with a legend that purports to describe Boeing’s rights in the data with respect to third parties. The government rejected Boeing’s technical data, finding that Boeing’s legend is a nonconforming marking because it is not in the format authorized by the contracts under the Defense Federal Acquisition Regulation Supplement, Subsection 7013(f). Boeing argued that Subsection 7013(f) is inapplicable to legends that only restrict the rights of third parties. The Armed Services Board of Contract Appeals agreed with the government. The Federal Circuit vacated. Subsection 7013(f) applies only in situations when a contractor seeks to assert restrictions on the government’s rights. The court remanded for resolution of an unresolved factual dispute remains between the parties regarding whether Boeing’s proprietary legend, in fact, restricts the government’s rights.

Braun v. Department of Health and Human Services

Docket: 19-1949

Opinion Date: December 21, 2020

Judge: Richard Gary Taranto

Areas of Law: Education Law, Government & Administrative Law, Government Contracts, Labor & Employment Law

Dr. Braun worked at the National Institutes of Health (NIH) for almost 32 years as a research doctor with a specialty in neurological disorders. He obtained tenured status in 2003. In 2016, the NIH, which is located within the U.S. Department of Health and Human Services, removed Dr. Braun from his position after an audit revealed that his records were incomplete for all but 9% of the human subjects who had participated in his research over the course of six years. The Merit Systems Protection Board rejected Braun’s argument that an NIH policy required de-tenuring of tenured scientists (which NIH had not done in his case) before they could be removed for performance-related reasons and that the NIH committed certain other errors. The Board reasoned that the cited NIH policy allows removal “for cause” without de-tenuring. The Federal Circuit affirmed. The “for cause” provision was properly applied to this case. The evidence permitted the conclusions that Dr. Braun, “over a long period of time,” failed to a “dramatic and disturbing” degree, to comply with protocol requirements that exist “for the safety of the patients and the credibility of the research.” There was no denial of due process.

Murphy v. Wilkie

Docket: 19-2064

Opinion Date: December 21, 2020

Judge: Raymond T. Chen

Areas of Law: Military Law, Public Benefits

Murphy served in the Army, 1971-1974. In 2003, he sought disability benefits for PTSD; the VA regional office (RO) denied this claim because Murphy lacked a PTSD diagnosis. A private doctor had diagnosed Murphy with schizophrenia in 1982. In 2006, Murphy submitted another claim for disabilities, including schizophrenia. He requested that the RO reopen his PTSD claim. The RO denied the claim for schizophrenia for failure to show service connection and declined to reopen the PTSD claim for lack of material evidence. In 2007-2012, the RO denied multiple requests to reopen both claims. A 2012 request to reopen listed only PTSD. The VA physician found no PTSD but noted the schizophrenia diagnosis. The RO denied Murphy’s request to reopen his PTSD claim. Murphy filed a Notice of Disagreement. The cover page referred to PTSD; a handwritten attachment mentions “schizophrenia” and “PTSD” multiple times. His Form 9 included numerous mentions of both “PTSD” and “schizophrenia.” The RO determined that Murphy was also seeking to reopen his schizophrenia claim but denied that request for lack of new and material evidence. Murphy did not appeal. The Board remanded the PTSD claim; the RO maintained its denial. The Veterans Court determined that the Board correctly found it lacked jurisdiction over the schizophrenia claim, which was a request to reopen, not an initial claim. The Federal Circuit affirmed. Murphy’s request to reopen cannot be construed as seeking to reopen his schizophrenia claim. Although the lenient-claim-scope rule applies to requests to reopen, Murphy demonstrated an understanding that the conditions would be addressed separately.