Justia Government & Administrative Law Opinion Summaries

Articles Posted in Military Law
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In 2011, the Navy published a job announcement for an Event Forum Project Chief, a full-time, permanent, GS-13/14-grade position. Two candidates—Beck and Wible—were certified as qualified for the position. Captain Payton selected Wible. Beck, had been in active Navy service from 1984 until his retirement in 2005 and had been promoted through a series of jobs relevant to the posted position. In 2001, Beck earned a bachelor’s degree in business with a GPA of 3.91; he earned a master’s degree in Human Resource Management and Development in 2002. In 2006, Beck rejoined the Navy workforce as a civilian Special-Events Planning Officer (SEPO), a GS-13-1 grade position. Beck had trained Wible. Payton had apparently first shown animosity toward Beck during a meeting in 2010.Beck filed a formal EEO action alleging discrimination based on race, gender, age, and disability, which engendered a retaliatory and hostile work environment. Beck resigned and unsuccessfully eventually sought corrective action from the Merit Systems Protection Board under the Uniformed Services Employment and Reemployment Rights Act of 1994.The Federal Circuit reversed in part. Preselection of the successful candidate can buttress an agency’s personnel decision to hire a less qualified candidate only when the preselection is not tainted by an unlawful discriminatory intent. The Board erred in finding that Beck’s non-selection would have occurred regardless of his prior military service as required under 38 U.S.C. 4311(c)(1). View "Beck v. Department of the Navy" on Justia Law

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Morse served in the Navy, 1970-1972; including six months in Da Nang, Vietnam. In 1999, Morse filed a claim for compensation, listing several disabilities, including PTSD. A VA regional office granted him a nonservice-connected pension in 2001, based on joint disease. He later obtained Social Security disability benefits. In 2002, the regional office denied Morse’s claim of service connection for PTSD, finding "no credible evidence of verification of the claimed stressors.” In 2004, Morse sought to reopen his PTSD claim. The regional office received service department records in 2005, showing that in 1972 a psychiatrist reported that Morse appeared “moderately depressed” about personal problems. An examiner concluded that Morse was unable to provide convincingly relate symptoms to his reported military exposure. The Board of Veterans’ Appeals affirmed.In 2009, Morse sought to reopen his claim. A VA examiner diagnosed Morse as suffering from PTSD. The Joint Services Records Research Center (JSRRC) coordinator's memo noted that the events “reported by the veteran" are "consistent" with the conditions of service "even though we were unable to locate official records of the specific occurrence.” Morse was granted service connection for PTSD, effective in 2009. The Board in 2016 affirmed; because no additional service records had been obtained since the Board’s 2008 decision, the VA was not required to conduct another reconsideration. In 2018, the Board found that the 2010 JSRRC memorandum did not constitute an “official service department record”; Morse was “essentially attacking the merits of" the 2008 Board decision, "which is final.”The Veterans Court and Federal Circuit affirmed; the “VA’s obligation to reconsider the PTSD claim upon receipt of new service department records was exhausted in 2008.” The 2010 JSRRC memorandum did not constitute a service department record that triggered a renewed obligation to reconsider Morse’s claim. View "Morse v. McDonough" on Justia Law

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In 2015, a solder stationed at Fort Hood fatally shot his neighbors, his wife, and himself. The victims' families filed suit under the Federal Tort Claims Act (FTCA) and the district court entered final judgment in favor of the United States, dismissing the case with prejudice.The Fifth Circuit affirmed the district court's dismissal, concluding that the district court did not commit clear error in finding that the harm to the victims was not foreseeable to the Army. The court explained that, under Texas law, a plaintiff must show both forseeability and cause in fact to establish proximate causation. In this case, there were no red flags regarding the soldier's behavior preceding the shootings; the evidence at trial showed that the Army was getting mixed messages about who was the victim of the altercation between the solider and his wife twelve days earlier; and the murders and shootings committed by the solider could not have been reasonably anticipated by the Army. The district court also found that the soldier's killings were "a superseding, unforeseeable event that could not have been anticipated by the Army based on the information they had during that 12-day period" between the February 9 altercation and the February 22 killings. The court also concluded that substantial evidence supported the district court's forseeability finding, and the district court did not commit clear error in making its finding. View "Kristensen v. United States" on Justia Law

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Various statutory provisions and regulations require the DOD to maintain a publicly accessible website containing all decisions rendered by its Discharge Review Boards and Boards for Correction of Military/Naval Records. When the DOD was alerted in 2019 that some posted decisions contained personally identifiable information, it temporarily removed all decisions from the website. Since then, the DOD has slowly been redacting and restoring the decisions to the site.NVLSP filed suit against the DOD and the Secretaries of the military departments to require them to fulfill the statutory mandate of publishing all decisions and to do so promptly. The district court granted defendants' motion to dismiss, ruling that NVLSP lacked Article III standing to bring the action and that the DoD's conduct was not judicially reviewable under the Administrative Procedure Act.The Fourth Circuit affirmed, concluding that although NVLSP has standing to bring this action, the district court lacked subject matter jurisdiction. In this case, NVLSP challenges defendants' ongoing actions in maintaining and managing the website, not any final agency action understood as a discrete agency determination of rights and obligations, as necessary to give a court subject matter jurisdiction under the APA. View "National Veterans Legal Services Program v. Department of Defense" on Justia Law

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The National Organization of Veterans’ Advocates (NOVA), sought review under 38 U.S.C. 502. The Knee Joint Stability Rule, promulgated in 2018 and set forth in the Veterans Affairs Adjudication Procedures Manual, assigns a joint instability rating under Diagnostic Code (DC) 5257, 38 C.F.R. 4.71a, based on the amount of movement that occurs within the joint. The Knee Replacement Rule provides that evaluation under DC 5055, 38 C.F.R. 4.71a, is not available for partial knee replacement claims. The Replacement Rule was published in the Federal Register in 2015, stating that section 4.71a was amended to explain that “‘prosthetic replacement’ means a total, not a partial, joint replacement.” It was published in a 2016 Manual provision, which informs regional office staff that evaluation under DC 5055 is not available for partial knee replacement claims filed on or after July 16, 2015.The Federal Circuit referred the case for adjudication on the merits. NOVA has standing because it has veteran members who are adversely affected by the Rules. The Manual provision is an interpretive rule reviewable under 38 U.S.C. 502 and constitutes final agency action. The Knee Replacement Rule is a final agency action. The merits panel will determine whether the Manual provision or the Federal Register publication constitutes the reviewable agency action. The challenge is timely under the six-year statute of limitations, 28 U.S.C. 2401(a); Federal Circuit Rule 15(f), establishing a 60-day time limit for bringing section 502 petitions, is invalid. View "National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans' Affairs" on Justia Law

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Veterans sought certification for the class of veterans whose disability claims had not been resolved by the Board of Veterans Appeals within one year of the filing of a Notice of Disagreement (NOD), requesting judicial action to compel the Secretary of Veterans Affairs to decide all pending appeals within one year of receipt of a timely NOD. The Veterans Court requested that they separate or limit the requested class action into issues that meet the Federal Rule of Civil Procedure 23(b)(2) “commonality” standard. The veterans declined, stating that “systemic delay” exists in the VA claims system, and broad judicial remedy is required.The Veterans Court denied the requested class certification. While the case was pending, the Veterans Appeals Improvement and Modernization Act of 2017, 131 Stat. 1105 purportedly improved processing times by allowing claimants to choose: higher-level review, a supplemental claim, board review with a hearing and opportunity to submit additional evidence, board review without a hearing, but with an opportunity to submit additional evidence, or board review without a hearing or additional evidence, based on their priorities on appeal.The Federal Circuit affirmed the denial of class certification, citing the lack of proof of commonality. When Congress has crafted a comprehensive remedial structure, that structure warrants evaluation in practice before judicial intervention is contemplated. View "Monk v. Wilkie" on Justia Law

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Mote served in the Air Force, 1961-1965, participating in missions to Vietnam, where Agent Orange was deployed. Mote later developed coronary artery disease and lung cancer. In 2010, Mote filed a disability claim based. In 2013, Mote filed his Notice of Disagreement with the denial of that claim. He died months later. Mrs. Mote substituted for his claim and filed a dependency-and-indemnity compensation claim. The VA denied Mrs. Mote’s claim in 2015; she filed her Notice of Disagreement and requested a Board of Veterans’ Appeals “Travel Board hearing.”Mote sought mandamus relief, 28 U.S.C. 1651, alleging unreasonable delay. The Veterans Court denied the petition, applying the “Costanza” standard. The government claimed, due to limited resources, it “could not predict how long” Mote might have to wait for a hearing. The Federal Circuit consolidated her appeal with others and held that the Veterans Court should use the Telecommunications Research & Action Center v. FCC (TRAC) standard to evaluate unreasonable-delay mandamus petitions rather than the Costanza standard. On remand, Mote requested a “reasoned decision” from the Board (within 45 days) and periodic progress reports. In March 2019. the Board scheduled her Travel Board hearing for May 2019. The Veterans Court dismissed Mrs. Mote’s mandamus petition without applying the TRAC standard. The Board subsequently remanded for further factual findings.The Federal Circuit again remanded, for a TRAC analysis, noting that Mote sought progress reports, in addition to a decision, and that the Veterans Court was not powerless to fashion other relief, such as a more lenient, specific, deadline. Whether a delay is so egregious as to justify the extraordinary writ depends on issues that are likely to arise frequently among veterans. The Veterans Court is uniquely well-positioned to address these issues first. View "Mote v. Wilkie" on Justia Law

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The Navy began a program to design and build littoral combat ships (LCS) and issued a request for proposals. During the initial phase of the LCS procurement, FastShip met with and discussed a potential hull design with government contractors subject to non-disclosure and confidentiality agreements. FastShip was not awarded a contract. FastShip filed an unsuccessful administrative claim, alleging patent infringement. The Claims Court found that the FastShip patents were valid and directly infringed by the government. The Federal Circuit affirmed.The Claims Court awarded FastShip attorney’s fees and expenses ($6,178,288.29); 28 U.S.C. 1498(a), which provides for a fee award to smaller entities that have prevailed on infringement claims, unless the government can show that its position was “substantially justified.” The court concluded that the government’s pre-litigation conduct and litigation positions were not “as a whole” substantially justified. It unreasonable for a government contractor to gather information from FastShip but not to include it as part of the team that was awarded the contract and the Navy took an exceedingly long time to act on FastShip’s administrative claim and did not provide sufficient analysis in denying the claim. The court found the government’s litigation positions unreasonable, including its arguments with respect to one document and its reliance on the testimony of its expert to prove obviousness despite his “extraordinary skill.” The Federal Circuit vacated. Reliance on this pre-litigation conduct in the fee analysis was an error. View "FastShip, LLC v. United States" on Justia Law

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Attorney Ravin represented veteran Cook on a claim for past-due disability benefits. Their agreement provided for a contingent fee and contemplated that VA would withhold the fee from any past-due benefits awarded and pay that amount directly to Ravin under 38 U.S.C. 5904(d)(3). Within days of executing that agreement, Ravin sent a copy to the Board of Veterans’ Appeals, where it was date-stamped on December 11, 2009. No copy of the agreement was submitted to the Regional Office (RO) “within 30 days of the date of execution,” as required by 38 C.F.R. 14.636(h)(4). The RO awarded Cook past-due benefits in April 2010. On April 13, 2010, the RO’s Attorney Fee Coordinator searched for any attorney fee agreement and determined that “no attorney fee decision is required” and “[a]ll retroactive benefits may be paid directly to the veteran.” The RO paid the past-due benefits to Cook. On April 27, 2010, Ravin mailed a copy of Cook’s direct-pay fee agreement to the RO. The RO informed Ravin that it had not withheld his attorney’s fees because the agreement was “not timely filed.”The Veterans Court and Federal Circuit affirmed the Board’s denial of Ravin’s claim. Section 5904(d)(3) does not mandate withholding and direct payment; 38 C.F.R. 14.636(h)(4)'s submission requirement is valid. Ravin’s fees have not been forfeited; he may use all available remedies to obtain them from Cook, per their agreement. View "Ravin v. Wilkie" on Justia Law

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Air Force officers who hold the grade of major must appear before a promotion board, 10 U.S.C. 611(a), 628(k); an officer who is twice passed over for promotion is typically discharged. An officer who would otherwise be discharged may remain in active service upon selection by a continuation board. Department of Defense Instruction (DoDI) 1320.08 provides that an officer “shall normally be selected for continuation if the officer will qualify for retirement . . . within 6 years… [except] in unusual circumstances.”In 2011, then-Major Engle, who had served in active duty for over 14 years, was passed over for promotion for the second time. A Selective Continuation Board met. Engle would have been within DoDI 1320.08’s protective window and had no disqualifying information in his record. The Secretary of the Air Force had, however, instructed Boards to decrease the protective threshold and reversed the presumption in favor of continuation.Engle was discharged. Months later, Engle was involuntarily called up from the reserves, deployed to Kyrgyzstan, and promoted to Lieutenant Colonel. Engle continues to serve, without the retirement benefits and additional active duty pay for which he would have qualified if he had been continued.The Federal Circuit reversed with respect to Engle’s claim, citing the Administrative Procedures Act. The Secretary does not have the discretion to rewrite the DoDI. While the military has wide decision-making discretion, it is not wide enough to justify the process employed here. The regulation is meant to protect individuals who have spent most of their lives in service to this country View "Baude v. United States" on Justia Law