Justia Government & Administrative Law Opinion Summaries

In 2007, McMillan a GS-13 Criminal Investigator with the Drug Enforcement Agency (DEA) and an officer in the Army Reserves. was assigned to the Lima, Peru DEA Office. His tour at Lima was to expire in 2010, but he successfully sought a one-year extension. In 2010, two months after a controversy concerning his the use of a DEA Foreign Situation Report in a military intelligence report, and his participation in a teleconference, McMillan unsuccessfully requested an additional two years. McMillan contends that the decision not to renew his tour was based improperly on his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 430. McMillan’s complaint with the Department of Labor’s Veterans’ Employment and Training Service was found unsupported; an AJ cited McMillan’s “performance issues,” in terms of the number of arrests, seizures, informant recruitment, and disruptions of criminal organizations McMillan facilitated; McMillan’s alleged failure to follow his chain of command in soliciting assistance with his military assignment; and McMillan’s “disdain[ful],” “arroga[nt], “disrespectful and improper” emails to his supervisor. The Merit Systems Protection Board denied McMillan’s appeal. The Federal Circuit reversed. DEA failed to demonstrate that it would have made the same decision in the absence of McMillan’s military service. View "McMillan v. Dep't of Justice" on Justia Law

Hayden, a member of the Air Force Reserves, has worked as a protocol specialist at Wright-Patterson Air Force Base since 2002. The Base is geographically divided into Areas A and B: each has a protocol office. Hayden worked in B Flight, classified as GS-9, until 2010. Because he acquired new duties in transferring to Area A, the agency upgraded Hayden’s position to GS-11. In 2012, Hayden’s supervisor requested to upgrade his position to GS-12, “based on accretion of duties.” Hayden received orders to begin active service in April, 2012. In May, a human resources position classifier notified Hayden’s supervisor that she needed to interview Hayden in person. As a result, his upgrade was cancelled because he was in nonpay status. In July, protocol support duties for AFSAC were transferred to another unit, reducing the need for GS-12 level employees. Hayden’s supervisor did not resubmit the upgrade request. In May 2013, Hayden received a performance feedback memorandum which stated that he was no longer working at the GS-12 level. Hayden filed a request for corrective action alleging Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301, violations. The Federal Circuit agreed with the Merit Systems Protection Board in rejecting his reemployment and retaliation claims, but vacated its rejection of his claim of discrimination based on military service and remanded.. View "Hayden v. Dep't of the Air Force" on Justia Law

Before enactment of the 2008 Veterans’ Benefits Improvement Act, if a veteran seeking DVA benefits died while his claim was pending, the veteran’s survivor could not take the place of the veteran and continue prosecuting the claim. The survivor had to file a claim for accrued benefits, 38 U.S.C. 5121, proceeding from the beginning of the process, regardless of how far the veteran’s claim had progressed. The Act, 38 U.S.C. 5121A, authorizes eligible survivors to be “substituted as the claimant for the purposes of processing the claim to completion.” The Federal Circuit rejected a challenge to regulations intended to implement the Act, which require that a request to substitute be filed with the agency of original jurisdiction (DVA regional office) within one year of the claimant’s death; the prospective substitute is required to submit evidence of his eligibility to substitute; and, if the claimant died while his appeal was pending before the Board of Veterans’ Appeals, the Board must dismiss the appeal without prejudice so that the agency of original jurisdiction can address the substitution request. If the agency of original jurisdiction grants the request to substitute, then the case returns to the same place on the Board’s docket that it held at the time of the veteran’s death. View "Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs" on Justia Law

Cogburn served in the Army, 1968-1971, including 12 months in Vietnam. In 1974, Cogburn sought VA disability compensation and pension benefits based on a severe nervous condition. A 1975 denial of his pension claim did not address the disability claim. He did not appeal. In 1983, Cogburn again sought disability compensation and pension benefits. He was diagnosed with Post-PTSD after a VA examination that failed to connect Cogburn’s PTSD to stressors from military service; the VA granted a non-service connection pension but denied service connection. In 1985, the Board of Veterans’ Appeal concluded that the record did not identify any in-service traumatic events, noting that Cogburn repeatedly failed to attend VA examinations to determine if service-connected stressors caused his PTSD. The Board determined that “the preponderance of the medical evidence suggests that the veteran’s post service emotional and adjustment difficulties are manifestations of schizophrenia.” There was no opportunity for further review. In 2002, Cogburn claimed that his 1974 disability compensation claim was never adjudicated. The RO determined that the claim was adjudicated as a claim for PTSD and had been implicitly denied in the 1985 decision. In 2012, on remand, the Board affirmed the finding of implicit denial. The Veterans Court and Federal Circuit affirmed; the implicit denial rule applies to both formal and informal claims. Its use does not violate the VA due process regulation's notice provision.. View "Cogburn v. McDonald" on Justia Law

Petty Officer Walter Jackson filed suit claiming that the Board's denial of his request to correct his navy record violated the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq.; the Due Process Clause; and equitable principles. A recommendation against re-enlistment stemmed from Jackson’s unauthorized absence from his naval base, a subsequent disciplinary infraction, and two adverse performance evaluations. The court applied a deferential standard of review and concluded that, given Jackson’s infractions in the Navy, the Board reasonably denied Jackson’s requests for record correction. The court rejected Jackson's remaining contentions and affirmed the judgment. View "Jackson, Jr. v. Mabus, Jr." on Justia Law

The Department of the Navy furloughed Einboden, a civilian employee for six days in 2013 as part of budget cuts made pursuant to sequestration legislation, 2 U.S.C. 901a. Einboden argued that his position was not subject to the cuts because money saved by the furlough could have been transferred from the Navy working capital fund to other activities with appropriate notice to the congressional defense committees. An AJ and the Merit Systems Protection Board upheld the decision, finding that the furlough was a “reasonable management solution to the financial issues facing the agency,” that notice of proposed furlough was not procedurally deficient, and that “although [Einboden’s work group] may have had adequate funding to avoid a furlough . . . , it was reasonable for DOD to consider its budget holistically, rather than isolating the situation of each individual Navy.” The Federal Circuit affirmed, rejecting Einboden’s contention that the Navy should be required to show actual re-programming of the funds saved by his furlough. View "Einboden v. Dep't of the Navy" on Justia Law

Plaintiffs, veterans' organizations and individuals subject to U.S. military chemical and biological weapons experiments, filed an individual and class action complaint seeking declaratory and injunctive relief against the DOD, the Army, the CIA, and the VA. Two of plaintiffs’ claims, brought under section 706(1) of the Administrative Procedure Act (APA), 5 U.S.C. 706(1), are at issue in this appeal: first, the Army has unlawfully failed to notify test subjects of new medical and scientific information relating to their health as it becomes available; and second, the Army has unlawfully withheld medical care for diseases or conditions proximately caused by their exposures to chemicals during the experiments. The court held that Chapter 3–2(h) of AR 70-25 imposes a duty on the Army to provide all former test subjects with newly acquired information that may affect their well-being, and that this duty is judicially enforceable under section 706(1); the district court did not abuse its discretion in entering its injunction to enforce that duty; the district court was right to find that Chapter 3–1(k) imposes a duty to provide medical care; but, the district court did not, however, have the power to decline to compel care on the ground that another agency was providing similar care to some former test subjects. Accordingly, the court vacated the district court’s summary judgment for the government on this claim and remanded to the district court. View "Vietnam Veterans of America v. CIA" on Justia Law

Plaintiffs, eight male, "out-of-status" aliens who were arrested on immigration charges and detained following the September 11th attacks, filed a putative class action asserting various claims arising out of the discriminatory and punitive treatment they suffered while confined at the Metropolitan Detention Center (MDC) or the Passaic County Jail (Passaic). The district court granted in part and denied in part defendants' motion to dismiss. The court concluded that: (1) the MDC plaintiffs have plausibly alleged a substantive due process claim against the DOJ defendants, against Hasty with regard to both official and unofficial conditions, and against Sherman with regard to official conditions only, and these defendants are not entitled to qualified immunity on this claim; (2) the MDC plaintiffs have plausibly alleged an equal protection claim against the DOJ defendants, Hasty, and Sherman, and these defendants are not entitled to qualified immunity on this claim; (3) the free exercise claim is dismissed as to all defendants; (4) the MDC plaintiffs have plausibly alleged their Fourth Amendment strip search claim against Hasty and Sherman, and these defendants are not entitled to qualified immunity on this claim; (5) the MDC plaintiffs have plausibly alleged the Section 1985(3) conspiracy claim against the DOJ defendants, Hasty, and Sherman, and these defendants are not entitled to qualified immunity on this claim; and (6) the MDC plaintiffs have not plausibly alleged any claims against Zenk.  The court affirmed the dismissal of the claims brought by the Passaic plaintiffs. View "Turkmen v. Hasty, et al." on Justia Law

After Abu Wa’el (Jihad) Dhiab, a detainee at Guantanamo Bay, went on a hunger strike, he was forcibly extracted from his cell and force-fed. The district court examined 32 classified videotapes of Dhiab's forcible cell extractions and force-feedings in order to grant Dhiab's motion to enjoin the government from forcibly extracting him from his cell and force-feeding him. At issue is the district court's grant of media organizations' motion to unseal and release the videotapes. The court concluded that, the district court’s decision did not terminate the action, and it does not qualify as an immediately appealable collateral order. Therefore, the court lacked jurisdiction. Further, this case does not present the extraordinary circumstances required for mandamus relief. Accordingly, the court dismissed the appeal for lack of jurisdiction and denied the request for a writ of mandamus View "Dhiab v. Obama" on Justia Law

Plaintiffs worked in the State Department as Diplomatic Security Special Agents and volunteered to serve one-year in Iraq. They arrived in Iraq in February 2004. Initially, their permanent duty station was in Washington, D.C., so they received “locality pay” in addition to base salary intended to equalize federal employees’ compensation with that of non-federal workers in the same geographic area, 5 U.S.C. 5301, 5304. Months later, their permanent duty station changed to the U.S. Embassy in Baghdad and they no longer received locality pay. Plaintiffs also received compensation for a significant number of overtime hours. In 2005, they returned to the U.S. After the Office of Personnel Management’s new regulations took effect, the plaintiffs received notices of a review of premium pay earnings involving Iraq, that “the rate of the annual premium pay cap that applies to you is $128,200,” that earnings to date “have already or will shortly put you above the cap for the current pay year,” and that the Department would seek collection of any overpayments. Each later received a letter requiring repayment of from $435.94 to $10,514.98. The D.C. Circuit held that the Department permissibly construed the statute and did not act arbitrarily in denying a discretionary waiver of the obligation to repay. View "Lubow v. Dep't of State" on Justia Law