Justia Government & Administrative Law Opinion Summaries

To receive disability compensation based on service, a veteran must demonstrate that the disability was incurred or aggravated in the line of duty, 38 U.S.C. 101(16). Congress has enacted presumptive service connection laws to protect certain veterans who faced exposure to chemical toxins but would find it difficult to prove a “nexus” between their exposure and their disease. Under the Agent Orange Act, 38 U.S.C. 1116, any veteran who served in Vietnam during the Vietnam era and who suffers from any designated disease “shall be presumed to have been exposed during such service” to herbicides. The VA determines which diseases qualify for presumptive service connection and defines service in Vietnam. Absent on-land service, the VA concluded that the statute did not authorize presumptive service connection for veterans serving in the open waters surrounding Vietnam. The Federal Circuit upheld that position in 2007. In 2016, the VA amended its M21-1 procedures manual to also exclude veterans who served in bays, harbors, and ports of Vietnam. The VA did not implement this additional restriction by way of notice and comment regulation as it did its open waters restriction and has not published its view on this issue in the Federal Register. The Federal Circuit rejected a challenge for lack of jurisdiction. The VA’s revisions are not agency actions reviewable under 38 U.S.C. 502. The M21-1 Manual provisions are only binding on Veterans Benefits Administration employees. View "Gray v. Secretary of Veterans Affairs" on Justia Law

TRICARE provides current and former members of the military and their dependents' medical and dental care. Hospitals that provide TRICARE services are reimbursed under Department of Defense (DoD) guidelines. TRICARE previously did not require, DoD to use Medicare reimbursement rules. A 2001 amendment, 10 U.S.C. 1079(j)(2), required TRICARE to use those rules to the extent practicable. DoD regulations noted the complexities of the transition process and the lack of comparable cost report data and stated “it is not practicable” to “adopt Medicare OPPS for hospital outpatient services at this time.” A study, conducted after hospitals complained, determined that DoD underpaid for outpatient radiology but correctly reimbursed other outpatient services. TRICARE created a process for review of radiology payments. Each plaintiff-hospital requested a discretionary payment, which required them to release “all claims . . . known or unknown” related to TRICARE payments. Several refused to sign the release and did not receive any payments. Although it discovered calculation errors with respect to hospitals represented by counsel, TRICARE did not recalculate payments for any hospitals that did not contest their discretionary payment offer. The Claims Court dismissed the hospitals’ suit. The Federal Circuit reversed in part, finding that they may bring a claim for breach of contract but may not bring money-mandating claims under 10 U.S.C. 1079(j)(2) and 32 C.F.R. 199.7(h)(2) because the government’s interpretation of the statute was reasonable. View "Ingham Regional Medical Center v. United States" on Justia Law

Gazelle served in the U.S. Army, 1962-1965, and incurred service-connected disabilities. He receives compensation for: degenerative disc disease and joint disease of the cervical spine rated at 20 percent; degenerative disc disease and spondylosis of the thoracolumbar spine rated at 20 percent; left upper extremity radiculopathy rated at 10 percent; left lower extremity radiculopathy rated at percent; and post-traumatic stress disorder. In 2009, the VA increased Gazelle’s disability rating for his service-connected PTSD to 100 percent. Gazelle filed a Notice of Disagreement, alleging the VA failed to award him additional special monthly compensation under 38 U.S.C. 1114(s)(1). In 2011, Gazelle was denied entitlement to special monthly compensation because he did not have additional service-connected “disabilities . . . independently ratable as [60 percent] or more disabling.” Instead of adding together Gazelle’s additional service-connected disabilities at their respective amounts, the VA calculated the independent additional rating via the combined ratings table pursuant to 38 C.F.R. 4.25 (2010), which resulted in a combined rating of 50 percent. In 2014, the Board affirmed. The Veterans Court and Federal Circuit affirmed, holding that consistent with the plain meaning of subsection 1114(s), the Board appropriately applied the combined ratings table to determine eligibility for special monthly compensation benefits. View "Gazelle v. Shulkin" on Justia Law

Ground Zero filed suit challenging the Navy's expansion of a TRIDENT nuclear submarine operating center pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. The Ninth Circuit held that the Navy violated NEPA's public disclosure requirement by not revealing that the Safety Board withheld approval of its plan for the construction of a second Explosives Handling Wharf (EHW-2), and by withholding the now-disclosed portions of the appendices to the environmental impact statement (EIS). However, such errors were harmless. In all other respects, the Navy satisfied NEPA's requirements. Therefore, the panel affirmed summary judgment for the Navy. The panel narrowly construed the district court's order restricting Ground Zero's use of portions of the record. Even with this reading, it was not clear that the district court's order comports with the First Amendment. Therefore, the court remanded for further proceedings. View "Ground Zero Center for Nonviolent Action v. US Department of the Navy" on Justia Law

Presumptive service connection exists for veterans who served in the Persian Gulf War and have chronic: undiagnosed illness; medically unexplained chronic multisymptom illness (MUCMI); or any diagnosed illness as determined by the Secretary, 38 U.S.C. 1117(a)(2). VA regulations define MUCMI as “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.”. Both the statute and regulation identify sleep disturbances and signs or symptoms involving the respiratory system as possible MUCMI manifestations. The VA revised its M21-1 Manual, changing the definition of MUCMI to require “both an inconclusive pathology, and an inconclusive etiology.” Under the subsection “Signs and Symptoms of Undiagnosed Illnesses or MUCMIs,” the VA added, “Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 C.F.R. 3.317 since it is a diagnosable condition.” The Federal Circuit dismissed a veterans’ group’s petition for review for lack of jurisdiction, reasoning that the revisions are not binding and not reviewable under 38 U.S.C. 502. View "Disabled American Veterans v. Secretary of Veterans Affairs" on Justia Law

Kitlinski, employed by the DEA and a Coast Guard reservist, was recalled to active duty. For an extended period, he served full-time at Coast Guard headquarters in Washington, D.C. He filed complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-35, and an equal employment opportunity complaint against DEA, based on DEA’s responses to his requests to be transferred from DEA’s San Diego office to Arlington, Virginia, where Kitlinski’s wife worked. After a deposition, Kitlinski returned to his car, in a secure DEA parking lot, and discovered a Blackberry device bearing a DEA sticker under his car's hood. He suspected that it was intended to track his location and record his conversations. Kitlinski reported his discovery to the FBI. Kitlinski’s wife was interrogated and was threatened with discipline if she did not turn over the Blackberry. Kitlinski filed an action with the Merit Systems Protection Board, alleging that the placement of the Blackberry and his wife's interview violated USERRA as discrimination and by creating a hostile work environment. He also alleged retaliation and a hostile work environment in retaliation for his exercise of his USERRA rights. The Federal Circuit affirmed the Board’s dismissal of various claims but remanded in part because the Board did not make a finding on Kitlinski’s claim that DEA had created a hostile work environment in retaliation for his USERRA activities. View "Kitlinski v. Merit Systems Protection Board" on Justia Law

This appeal and cross-appeal relate to the district court's orders releasing video recordings made at Guantanamo Bay, depicting military personnel removing a detainee, Abu Wa'el (Jihad) Dhiab, from his cell, transporting him to a medical unit, and force-feeding him to keep him alive while he was on a hunger strike. The government classified these recordings as "SECRET" because disclosing them could damage the national security, but the district court determined that the public had a constitutional right to view the recordings because the detainee's attorney filed some of them under seal, at which point the recordings became part of the court's record. The government appealed, arguing that the public has no such constitutional right. The Intervenors cross-appealed, arguing that several categories of redactions the court approved prior to public release were too extensive. The court concluded that Press-Enterprise Co. v. Superior Court did not apply to this case and neither the intervenors nor the public at large have a right under the First Amendment to receive properly classified national security information filed in court during the pendency of Dhiab's petition for a writ of habeas corpus. The court further explained that, even if the intervenors had a qualified First Amendment right of access to the Dhiab recordings, the court would still reverse the district court's decision, because the government identified multiple ways in which unsealing these recordings would likely impair national security. Because the recordings will remain sealed, the intervenors' cross-appeal about the extent of the redactions was dismissed as moot View "Dhiab v. Trump" on Justia Law

Kennedy enrolled at George Washington University (GWU) in 2003. He obtained a Navy Reserve Officer Training Corps (NROTC) scholarship in 2005, agreeing to complete Officer Candidate School (OCS), a requirement which is not waivable. The scholarship provided that if Kennedy failed to complete the requirements, he could become liable to reimburse the program. Kennedy subsequently suffered trauma and began to act abnormally. During his OCS course, his platoon commander recommended that Kennedy be disenrolled as emotionally unstable. In June 2006, a Commanding Officer’s Board disenrolled Kennedy from OCS without opportunity to return. NROTC stopped funding Kennedy’s education. In February 2007, the Assistant Secretary approved disenrollment with recoupment of $50,675. After graduation from GWU in 2007, Kennedy graduated from law school, was admitted to the bar, and filed suit. The Claims Court directed the case to the Board for Correction of Naval Records (BCNR), a civilian body that exists to correct Naval Records. The BCNR upheld Kennedy’s disenrollment, but held that Kennedy should be relieved from reimbursement because he had been dissuaded from appearing at a hearing. The Claims Court held that Kennedy’s disenrollment was lawful and that his breach-of-contract claims for monetary relief lacked merit. The Federal Circuit reversed. Given the government’s concession that Kennedy’s due process rights were violated when he was dissuaded from attending his hearing, the Claims Court erred in concluding that Kennedy’s disenrollment was inevitable. The court directed the case be returned to the BCNR. View "Kennedy v. United States" on Justia Law

The Budget Control Act of 2011 established spending limits for federal agencies and required automatic spending cuts (sequestration) if certain deficit reduction legislation was not enacted. The American Taxpayer Relief Act of 2012 required the President to issue a sequestration order near the middle of fiscal year 2013. Under President Obama’s sequestration the Department of Defense (DOD) 2013 budget was cut by approximately 37 billion dollars, to be absorbed over six months. The DOD reprogrammed funds, reduced facility maintenance, eliminated some military training exercises, and furloughed civilian workers. Calhoun is a non-excepted civilian Doctrine Defense Specialist for the Army Cyber Command (ACC). ACC Commander Lt. Gen. Hernandez, the deciding official, delegated that authority to his Chief of Staff, Col. Sanborn. Calhoun received a Notice of Proposed Furlough. Calhoun replied, including budget proposals she asserted would prevent furloughs. In responses to Calhoun, Col. Sanborn stated that he had read her submissions and that “[t]he furlough guidance … is clear.” Calhoun was furloughed for six nonconsecutive days. An administrative judge found that delegation to Col. Sanborn did not violate DOD policy; that Col. Sanborn appropriately considered Calhoun’s reply; and that evaluation of the merits of her proposals was beyond the scope of his review. The Merit Systems Protection Board and the Federal Circuit affirmed, finding no due process violation because Col. Sanborn considered Calhoun’s written reply and because a summary of her oral reply would not have altered the furlough decision. View "Calhoun v. Department of the Army" on Justia Law

After the FLRA ordered the Air Force to bargain collectively with its civilian employees over access to an on-base shopette, the Air Force challenged the decision arguing that the issue is not a proper subject of bargaining. The court agreed with the Air Force that Congress has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges, though for reasons that are slightly different from those offered by the Air Force. Given the relevant legislative directives, the court cannot imagine that Congress intended to empower a civilian agency like the Federal Labor Relations Authority to second-guess the military’s judgment about non-military access to commissaries and exchanges. In this case, by requiring negotiation over the Shoppette proposal, the Authority has similarly second-guessed the Secretary’s judgment in deciding how best to use a military benefit to achieve military purposes. Therefore, the court held that civilian access to commissaries and exchanges is not a proper subject of collective bargaining because Congress has vested the military with “unfettered discretion” over the matter. Accordingly, the court granted the petition for review and vacated the Authority's order. View "USAF v. FLRA" on Justia Law