Justia Government & Administrative Law Opinion Summaries

Plaintiff, a retired Major in the Marine Corps and a certified NJROTC instructor, filed suit after he was decertified to contest his removal from the NJROTC program. The district court granted summary judgment to the Navy. The court found no merit in plaintiff's contention that the regulation on which the Navy relied to revoke his certification is unconstitutionally vague; that the Navy denied him due process because it failed to accord him adequate notice and opportunity to be heard when determining whether he should be permitted to continue to serve as a NJROTC instructor; and that the Navy’s decertification decision was arbitrary and capricious and unsupported by substantial evidence. Accordingly, the court affirmed the judgment. View "Crooks v. Mabus, Jr." on Justia Law

In 2015, Jones, a veteran, filed 16 appeals with the Merit Systems Protection Board (MSPB), alleging that the U.S. Department of Health and Human Services (HHS) violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301–4333, when it did not select him for various job vacancies. An administrative judge consolidated the appeals and ultimately denied relief in an Initial Decision. That Decision became the Final Decision of the MSPB when Jones did not timely file a petition for review. The Federal Circuit affirmed, first holding that it had jurisdiction, rejecting an argument that there was no . final MSPB decision from which Jones could appeal. The AJ properly found that neither direct nor circumstantial evidence supported Jones’s USERRA claim and failed to demonstrate by a preponderance of the evidence that his military service was a motivating factor in HHS’s decision not to hire him for the subject job vacancies. View "Jones v. Dept. of Health & Human Servs." on Justia Law

Blue Water Navy Vietnam Veterans Association and Military-Veterans Advocacy filed suit challenging the VA's policy requiring "blue-water" veterans to prove on a case-by-base basis that they were exposed to Agent Orange during their military service in order to be considered for certain benefits. Plaintiffs argued that the policy was arbitrary and capricious and otherwise unlawful under the Administrative Procedure Act (APA), 5 U.S.C. 706(2). Plaintiffs sought injunctive and mandamus relief to prevent the VA from denying the presumption of Agent Orange exposure to blue-water veterans. The district court dismissed the suit for lack of subject matter jurisdiction, citing 38 U.S.C. 511(a), which bars review in district court of VA decisions “under a law that affects the provision of” veterans benefits. The court affirmed the district court's dismissal of the complaint based on lack of subject matter jurisdiction, concluding that Congress stripped the district court of jurisdiction over the claims at issue. View "Blue Water Navy Vietnam v. McDonald" on Justia Law

The Veterans Benefits, Health Care, and Information Technology Act requires the Secretary of Veterans Affairs to set annual goals for contracting with service-disabled and other veteran-owned small businesses, 38 U.S.C. 8127(a). The “Rule of Two” provides that a contracting officer “shall award contracts” by restricting competition to veteran-owned small businesses if the officer reasonably expects that at least two such businesses will submit offers and that “the award can be made at a fair and reasonable price.” A contracting officer “may” use noncompetitive and sole-source contracts for contracts below specific dollar amounts. In 2012, the Department used the Federal Supply Schedule (FSS), a streamlined method for acquisition of goods and services under prenegotiated terms, to procure medical center Emergency Notification Services from a non-veteran-owned business. The agreement ended in 2013. A service-disabled-veteran-owned small business filed a Government Accountability Office (GAO) bid protest, alleging that the Department procured multiple contracts through the FSS without employing the Rule of Two. The GAO determined that the Department’s actions were unlawful. The Department declined to follow the GAO’s nonbinding recommendation. The Federal Circuit held that the Department was only required to apply the Rule when necessary to satisfy its annual goals. The Supreme Court reversed, first holding that it had jurisdiction because the controversy is “capable of repetition, yet evading review.” Section 8127(d)’s contracting procedures are mandatory and apply to all of the Department’s contracting determinations. An FSS order is a “contract” within the ordinary meaning of that term and does not fall outside Section 8127(d). The Court rejected an argument that the Rule of Two will hamper mundane Government purchases as misapprehending current FSS practices, which have expanded beyond simple procurement to contracts concerning complex services over a multiyear period. View "Kingdomware Techs., Inc. v. United States" on Justia Law

Phillip Ramirez, a member of the New Mexico Army National Guard, was employed by the New Mexico Children, Youth and Families Department (CYFD). In July 2005, Ramirez was ordered to federal active duty and deployed to Iraq. After Ramirez returned to work in New Mexico, CYFD terminated his employment. Ramirez sued CYFD, asserting a Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) claim. A jury found in his favor and awarded Ramirez monetary damages. The Court of Appeals reversed the damages award, concluding that CYFD as an arm of the State was immune to Ramirez’s USERRA claim. After review of that decision, the New Mexico Supreme Court disagreed: by enacting NMSA 1978, Section 20-4-7.1(B) (2004), the Legislature specifically extended “[t]he rights, benefits and protections” of USERRA to members of the New Mexico National Guard who were ordered to federal or state active duty for a period of thirty or more consecutive days. In so doing, the Legislature consented to suits brought against state employers who violate the protections guaranteed by USERRA. View "Ramirez v. CYFD" on Justia Law

Miller served on active duty, 2003-2007, and has a VA disability rating of 60 percent. Since 2008, Miller has been employed as an FDIC Economic Analyst. He was hired at the GS-9 level and has risen to the GS-12 level. In 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position: one open to all citizens and another for status candidates. Miller applied under both procedures and was one of three finalists. Three FDIC employees participated in the interviews, rating each candidate’s answers to questions on bank failure prediction models as Outstanding, Good, or Inadequate. All of the candidates received some "inadequate" ratings. No candidate was selected; the vacancy was cancelled. Miller filed a Department of Labor complaint, stating that the cancellation was in bad faith to avoid hiring a veteran or having to request a “pass over” from the Office of Personnel Management. The Merit Systems Protection Board denied his petition under the Veterans Employment Opportunities Act, finding that the allegation of non-selection in violation of veterans’ rights was sufficient to confer jurisdiction, but that Miller had not established a violation because the FDIC “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” The Federal Circuit affirmed; substantial evidence indicated that cancellation was predicated on a lack of appropriately qualified candidates. View "Miller v. Fed. Deposit Ins. Corp." on Justia Law

Miller served on active duty, 2003-2007, and has a VA disability rating of 60 percent. Since 2008, Miller has been employed as an FDIC Economic Analyst. He was hired at the GS-9 level and has risen to the GS-12 level. In 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position: one open to all citizens and another for status candidates. Miller applied under both procedures and was one of three finalists. Three FDIC employees participated in the interviews, rating each candidate’s answers to questions on bank failure prediction models as Outstanding, Good, or Inadequate. All of the candidates received some "inadequate" ratings. No candidate was selected; the vacancy was cancelled. Miller filed a Department of Labor complaint, stating that the cancellation was in bad faith to avoid hiring a veteran or having to request a “pass over” from the Office of Personnel Management. The Merit Systems Protection Board denied his petition under the Veterans Employment Opportunities Act, finding that the allegation of non-selection in violation of veterans’ rights was sufficient to confer jurisdiction, but that Miller had not established a violation because the FDIC “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” The Federal Circuit affirmed; substantial evidence indicated that cancellation was predicated on a lack of appropriately qualified candidates. View "Miller v. Fed. Deposit Ins. Corp." on Justia Law

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