Justia Government & Administrative Law Opinion Summaries

Articles Posted in Military Law
by
Enacted pursuant to Article I of the Constitution, the Uniformed Services Employment and Reemployment Rights Act (USERRA), gives returning service members the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities, 38 U.S.C. 4301. Torres, a state trooper, was called to active duty in the Army Reserves and deployed to Iraq, where he was exposed to toxic burn pits. Torres, honorably discharged, returned home with constrictive bronchitis. Torres asked his former employer to accommodate his condition by re-employing him in a different role. Texas refused. A state court held that his USERRA claims should be dismissed based on sovereign immunity.The Supreme Court reversed. By ratifying the Constitution, the states agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Congress may exercise this power to authorize private damages suits against nonconsenting states, as in USERRA.The test for whether the structure of the original Constitution itself reflects a waiver of states’ immunity is whether the federal power is “complete in itself, and the states consented to the exercise of that power—in its entirety—in the plan of the Convention.” Congress’ power to build and maintain the Armed Forces fits that test. Congress has long legislated regarding military forces at the expense of state sovereignty. USERRA expressly “supersedes any State law . . . that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.” View "Torres v. Texas Department of Public Safety" on Justia Law

by
The U.S. military sprayed over 17 million gallons of herbicides over Vietnam during “Operation Ranch Hand,” primarily Agent Orange. Concerns about the health effects of veterans’ exposure to Agent Orange led to the Agent Orange Act of 1991, 105 Stat. 11. For veterans who served in the Republic of Vietnam during a specified period, the Act presumes exposure to an herbicide agent containing 2,4-D or dioxin, 38 U.S.C. 1116(f), and presumes a service connection for certain diseases associated with herbicide-agent exposure, such as non-Hodgkin’s lymphoma and soft-tissue sarcoma. The VA subsequently issued regulations extending similar presumptions to other groups of veterans. In 2017, the House of Representatives Armed Services Committee expressed concern that additional exposures to Agent Orange may have occurred in Guam.In 2018, MVA petitioned the VA to issue rules presuming herbicide-agent exposure for veterans who served on Guam or Johnston Island during specified periods. The VA denied MVA’s petition. The Federal Circuit rejected MVA’s petitions under 38 U.S.C. 502 to set aside the VA’s denial. MVA has not shown that the VA’s determination that the evidence did not warrant presuming exposure for every single veteran who served in named areas during the relevant period was contrary to law nor that the denial “lacked a rational basis.” View "Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs" on Justia Law

by
George joined the Marine Corps in 1975 without disclosing his history of schizophrenic episodes. His medical examination noted no mental disorders. George suffered an episode during training. The Marines medically discharged him. George applied for veterans’ disability benefits based on his schizophrenia, 38 U.S.C. 1110. The Board of Veterans’ Appeals denied his appeal from a regional office denial in 1977. In 2014, George asked the Board to revise its final decision. When the VA denies a benefits claim, that decision generally becomes “final and conclusive” after the veteran exhausts the opportunity for direct appeal. George sought collateral review under an exception allowing revision of a final benefits decision at any time on grounds of “clear and unmistakable error,” 38 U.S.C. 5109A, 7111. He claimed that the Board applied a later-invalidated regulation to deny his claim without requiring the VA to rebut the statutory presumption that he was in sound condition when he entered service.The Veterans Court, Federal Circuit, and Supreme Court affirmed the denial of relief. The invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error. Congress adopted the “clear and unmistakable error doctrine” developed under decades of prior agency practice. The invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice, not “clear and unmistakable error.” That approach is consistent with the general rule that the new interpretation of a statute can only retroactively affect decisions still open on direct review. The fact that Congress did not expressly enact the specific regulatory principle barring collateral relief for subsequent changes in interpretation does not mean that the principle did not carry over. View "George v. McDonough" on Justia Law

by
The Fifth Circuit denied defendants' motion for a partial stay of the district court's preliminary injunction enjoining the Department of Defense, United States Secretary of Defense Lloyd Austin, and United States Secretary of the Navy Carlos Del Toro from enforcing certain COVID-19 vaccination requirements against 35 Navy special warfare personnel and prohibiting any adverse actions based on their religious accommodation requests. Specifically, defendants seek a partial stay pending appeal insofar as the injunction precludes them from considering plaintiffs' vaccination statuses "in making deployment, assignment and other operational decisions."The court weighed the Mindes abstention factors and determined that this dispute is justiciable. However, the court concluded that defendants have not carried their burden to warrant the issuance of the stay. The court agreed with the district court that defendants have not shown a compelling interest to deny religious accommodations under the Religious Freedom Restoration Act of 1993 to each of the 35 plaintiffs at issue. Rather, the "marginal interest" in vaccinating each plaintiff appears to be negligible and thus defendants lack a sufficiently compelling interest to vaccinate plaintiffs. The court also concluded that the preliminary injunction does not irreparably damage the Navy and the public; partially staying the preliminary injunction pending appeal would substantially harm plaintiffs; and issuance of the requested stay would disserve the public interest. View "U.S. Navy SEALs 1-26 v. Biden" on Justia Law

by
Nicely served in active duty in the Marine Corps (USMC) for more than 10 years. Between Nicely’s 2010 DUI arrest and his 2011 discharge, the state court dismissed the DUI charge but Nicely wrote a letter to his Commanding General admitting to having driven under the influence. After the Board of Inquiry proceedings began but before they ended, Nicely filed a reprisal complaint under the Military Whistleblower Protection Act (MWPA), 10 U.S.C. 1034. Nicely’s complaint was dismissed in 2012. Nicely unsuccessfully petitioned the Board for Correction of Naval Records (BCNR) to correct his military record.Nicely filed suit in the Claims Court, alleging that some BCNR members were not statutorily authorized to serve. The BCNR rejected his claim that retired military officers are precluded from sitting on military correction boards under 10 U.S.C. 1552(a), reasoning that neither BCNR’s authorizing statute nor governing regulations expressly define "civilian" and do not expressly exclude retired military members from those civilians who may serve as Board members. The Claims Court then dismissed for lack of jurisdiction. The Federal Circuit affirmed. The Claims Court correctly concluded that Nicely’s claim arose under the MWPA and not the Military Pay Act and that it, therefore, lacked jurisdiction. The use of the term “civilian” throughout Title 10 to include former and retired members of the military is consistent with the ordinary meaning of “civilians”—that is, a person who is “not serving on active duty in the military View "Nicely v. United States" on Justia Law

by
Social Security retirement benefits are calculated using a formula based on past earnings, 42 U.S.C. 415(a)(1)(A). Under the “windfall elimination” provision, benefits are reduced when a retiree receives a separate pension payment based on employment not subject to Social Security taxes. Pension payments exempt from the windfall reduction include those "based wholly on service as a member of a uniformed service.”A “military technician (dual status),” 10 U.S.C. 10216, is a “civilian employee” assisting the National Guard. Such technicians are required to maintain National Guard membership and must wear uniforms while working. For their work as full-time civilian technicians, they receive civil-service pay. If hired before 1984, they receive Civil Service Retirement System pension payments. As part-time National Guard members, they receive military pay and pension payments from a different arm of the government.The SSA applied the windfall elimination provision to the benefits calculation for Babcock, a dual-status technician. The district court and Sixth Circuit upheld that decision, declining to apply the uniformed-services exception.The Supreme Court affirmed. Civil Service Retirement System pensions generally trigger the windfall provision. Babcock’s technician work was not service “as” a National Guard member. A condition of employment is not the same as the capacity in which one serves. The statute states: “For purposes of this section and any other provision of law,” a technician “is” a “civilian employee,” “authorized and accounted for as” a “civilian.” While working in a civilian capacity, technicians are not subject to the Uniform Code of Military Justice. They possess characteristically civilian rights concerning employment discrimination, workers’ compensation, disability benefits, and overtime work; technicians hired before 1984 are “civil service” members, entitled to pensions as civil servants. Babcock’s civil-service pension payments are not based on his National Guard service, for which he received separate military pension payments. View "Babcock v. Kijakazi" on Justia Law

by
Plaintiff challenged his discharge in federal court, but the district court held that it did not have jurisdiction to hear his claims brought pursuant to the Administrative Procedure Act (APA) and the Mandamus Act because the Veterans' Benefits Act (VBA) is a comprehensive statutory scheme governing the discipline of VA employees and was the exclusive remedy for review of plaintiff's employment discharge. The district court also held that while the VBA did not bar plaintiff's procedural due process claims, the claims were not colorable because he received all the process due to him.The Eleventh Circuit concluded that the district court did not have subject-matter jurisdiction over any claim under the APA because the VBA is a comprehensive statutory scheme that precludes APA review; the district court did not have jurisdiction to hear a constitutional claim because plaintiff did not present a colorable due process claim; and there is no basis for mandamus jurisdiction because plaintiff has not established a clear right to any relief or a clear duty of the VA. Accordingly, the court affirmed the district court's decision but remanded solely so that the district court can amend its judgment to reflect that it is a dismissal without prejudice for lack of jurisdiction. View "Hakki v. Secretary, Department of Veterans Affairs" on Justia Law

by
The 2017 Veterans Appeals Improvement and Modernization Act (AMA) reforms the VA's administrative appeals system, 131 Stat. 1105, replacing the existing system, which had shepherded all denials of veteran disability claims through a one-size-fits-all appeals process. Under the AMA, claimants may choose between three procedural options: filing a supplemental claim based on additional evidence, requesting higher-level review within the VA based on the same evidentiary record, and filing a notice of disagreement to directly appeal to the Board of Veterans Appeals. The VA promulgated regulations to implement the AMA. Veterans’ service organizations, a law firm, and an individual (Petitioners) filed separate petitions raising 13 rulemaking challenges to these regulations under 38 U.S.C. 502.1The Federal Circuit concluded that two veterans’ service organizations had associational standing based on claimed injuries to their members to collectively bring three of their challenges. No Petitioner demonstrated standing to raise any of the remaining challenges. The regulations the organizations have standing to challenge are invalid for contravening the unambiguous meaning of their governing statutory provisions: 38 C.F.R. 14.636(c)(1)(i), limiting when a veteran’s representative may charge fees for work on supplemental claims; 38 C.F.R. 3.2500(b) barring the filing of a supplemental claim when adjudication of that claim is pending before a federal court; and 38 C.F.R. 3.155 excluding supplemental claims from the intent-to-file framework. View "Military-Veterans Advocacy v. Secretary of Veterans Affairs" on Justia Law

by
Plaintiff filed suit under the Federal Tort Claims Act (FTCA), alleging that various medical professionals working for the VA breached their legal duty to exercise ordinary medical care and negligently failed to diagnose his throat cancer and immediately treat it. The district court dismissed plaintiff's complaint for lack of subject matter jurisdiction, concluding that judicial review of his claims was precluded by the Veterans' Judicial Review Act (VJRA).The Eleventh Circuit affirmed in part and reversed in pat, concluding that the district court did lack jurisdiction over some of plaintiff's claims but that it had jurisdiction over his tort claims alleging medical negligence or malpractice. To the extent that plaintiff alleges that any delay in his receipt of needed medical care was a result of the VA's failure to timely approve and/or authorize his care or payments therefore, the district court could not review those allegations without second-guessing a decision by the VA necessary to a benefits determination—when to grant the requested benefit. As for plaintiff's allegations related to the VA's failure to follow its own policies, procedures, and protocols, if the district court lacks jurisdiction to review the VA's approval, authorization, and scheduling decisions, it must also lack jurisdiction to determine whether the VA followed its own internal procedures in making those decisions. However, plaintiff's medical negligence and malpractice claims do not require the district court to decide whether plaintiff was entitled to benefits nor do they require the court to revisit any decision made by the Secretary in the course of making benefits determinations. The court remanded for further proceedings. View "Smith v. United States" on Justia Law

by
Adams, a member of the Arizona Air National Guard, worked in human resources for Customs and Border Patrol (the agency). In 2018, Adams performed three periods of National Guard military service. Between April 11 and July 13, Adams was activated under 10 U.S.C. 12301(d) to support a military personnel appropriation (MPA) tour in support of Twelfth Air Force; July 18-July 30, he was ordered to attend annual training under 32 U.S.C. 502(a). Between July 28 and September 30, Adams was again activated under section 12301(d) to support an MPA tour. Both 12301(d) orders stated that they were “non-contingency” activation orders.Under 5 U.S.C. 5538(a), federal employees who are absent from civilian positions due to certain military responsibilities may qualify to receive the difference between their military pay and what they would have been paid in their civilian employment during the time of their absence (differential pay). Adams requested differential pay for each of his periods of service. Adams appealed the agency's denials. The Merit Systems Protection Board held that the denials did not violate the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 4301–4335). The Federal Circuit affirmed. Entitlement to differential pay requires service under a call to active duty that meets the statutory definition of a contingency operation. None of Adams’s service meets the statutory requirements for differential pay, View "Adams v. Department of Homeland Security" on Justia Law