Justia Government & Administrative Law Opinion Summaries

Following a 2019 Federal Circuit decision and enactment of the Blue Water Navy Vietnam Veterans Act of 2019 133 Stat. 966, the petitioners, who served on open sea ships off the Vietnamese shore during the Vietnam War believed that they may be entitled to a presumption of service connection for diseases covered by 38 U.S.C. 1116. The Secretary of Veterans Affairs stayed pending disability compensation claims until January 1, 2020. Petitioners assert that many Blue Water Veterans are dying and filed a petition for expedited review under 38 U.S.C. 502 challenging the Secretary’s authority to stay pending disability compensation claims. The Federal Circuit denied the petition. The court concluded that it had jurisdiction 5 U.S.C. 552(a)(1)(D) because the Secretary’s memorandum amounts to an “interpretation[] of general applicability formulated and adopted by the agency.” The Act unambiguously authorizes the Secretary to stay disability compensation claims described in section 2(c)(3)(B) of the Act “until the date on which the Secretary commences the implementation of [] section 1116A,” 133 Stat. at 968. View "Procopio v. Secretary of Veterans Affairs" on Justia Law

Sergeant Mueller took a leave of absence from the Joliet Police Department to report for active duty in the Illinois National Guard Counterdrug Task Force. The Department placed him on unpaid leave, Mueller resigned from his National Guard position and sued the city and his supervisors for employment discrimination, citing the Uniformed Service Members Employment and Reemployment Rights Act (USERRA), which prohibits discrimination against those in “service in a uniformed service.” The district court dismissed, finding that National Guard counterdrug duty was authorized under Illinois law and not covered by USERRA. The Seventh Circuit reversed, finding that “service in the uniformed services” explicitly covers full-time National Guard duty, including counterdrug activities, 38 U.S.C. 4303(13). USERRA does not limit protection to those in “Federal service” like the Army or Navy but to those in “service in a uniformed service,” which explicitly includes Title 32 full-time National Guard duty. The Posse Comitatus Act likewise only bars the Army and Air Force from domestic law enforcement, but does not apply to Title 32 National Guard duty, 18 U.S.C. 1385. View "Mueller v. City of Joliet" on Justia Law

McCord injured his back while serving in the Army and was discharged with a 20% disability rating. Because his rating was below 30% and he served for less than 20 years, McCord received severance pay instead of ongoing military retirement pay and received monthly VA benefits. The Army Board for Correction of Military Records later corrected his record to reflect a 30% disability rating and entitlement to medical retirement pay, rather than severance pay. McCord later challenged the government’s calculation of his entitlement to military retirement back pay and its claimed right to recover the severance pay and requested damages for medical expenses that he incurred because he was not afforded TRICARE coverage before the correction. The Claims Court rejected McCord’s approach to back pay calculation as “double-dipping,” denied relief regarding the recoupment of severance pay “as not ripe,” and held that McCord failed to exhaust administrative procedures for securing TRICARE benefits. The Federal Circuit affirmed except as to the out-of-pocket medical expenses. The court cited 10 U.S.C. 1201, 1203, 1212(d)(a), and 2774, as defining entitlement to retirement pay or severance pay, VA benefits, and the circumstances for recoupment of severance pay. A veteran receiving VA benefits may face a disadvantage if he also secures an award of military retirement pay because he would not be entitled to severance pay but military retirement pay includes TRICARE coverage. View "McCord v. United States" on Justia Law

McGuffin began his employment with SSA as a preference-eligible veteran, entitled to receive CSRA (Civil Service Reform Act, 92. Stat. 1111) protections after one year. During his first months, McGuffin had a low case completion rate and had cases that were past the seven-day benchmark. He requested training; SSA sent him to a training course. SSA was apparently otherwise satisfied with his work. About eight months after his hiring, SSA began to consider terminating McGuffin. It was noted that, as a preference-eligible veteran in the excepted service, McGuffin would acquire procedural and appellate rights after completing one year of service, so that “McGuffin must be terminated prior to the end of his first year” while another employee could be terminated "within her 2-year trial work period.” Although his work improved, four days before attaining full employee status, SSA terminated McGuffin for failure to “satisfactorily perform the duties” of the attorney advisor position. In a case under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301–35, which prohibits discrimination based on military service, the Federal Circuit reversed the Merit Systems Protection Board. SSA closed the door on McGuffin before the end of his first year to avoid the inconvenience of defending itself should McGuffin assert his procedural CRSA safeguards. McGuffin’s preference-eligible veteran status was a substantial factor in SSA’s termination decision. McGuffin was not performing so poorly as to justify the rush to remove him. View "McGuffin v. Social Security Administration" on Justia Law

Montelongo was a West Point student cadet, 1973-1977, then served in the Army 1977-1996, from which he retired. From June 21, 2001, to March 28, 2005, Montelongo served as a civilian presidential appointee in the Air Force. An Air Force human resources officer advised Montelongo that his time as a cadet could be “bought back” and credited toward an eventual civil service annuity under the Federal Employees Retirement System (FERS), 5 U.S.C. 8401–8479. Montelongo made the small payment to “buy back” his four years at West Point and, in 2017, applied for a FERS annuity. The Office of Personnel Management and the Merit Systems Protection Board concluded, and the Federal Circuit affirmed, that only his time as a presidential appointee (just under four years) counted as creditable civilian service. Montelongo did not satisfy the five-year threshold requirement for a FERS annuity. Montelongo’s cadet time was “military service” that was creditable service under 5 U.S.C. 8411(c)(1) but was not “civilian service” for which section 8410 sets a five-year minimum for annuity qualification. View "Montelongo v. Office of Personnel Management" on Justia Law

Robinson became the Associate Director of the Phoenix Veterans Administration Health Care System in 2012, having started his VA career in 1987. Robinson was aware of scheduling issues, including that it often took more than 30 days for patients to receive new-patient appointments. In 2014, the Chairman of the U.S. House Committee on Veterans’ Affairs alleged that veterans died while on “secret” waitlists at the Phoenix VA. Based on an investigation by the Office of the Inspector General and the Department of Justice, Robinson’s removal was proposed for “failure to provide oversight.” The Deciding Official did not take action. Robinson remained on administrative leave for two years, returning to duty in January 2016. The Senate Committee on Veterans’ Affairs questioned why many senior executives were placed on paid leave instead of removed from office. In March 2016, a second proposal for Robinson’s removal issued. The Deciding Official sustained all charges. Robinson was removed. The Merit Systems Protection Board affirmed the removal, finding that Robinson was negligent in the performance of his duties and failed to provide accurate information to his supervisors but did not sustain a whistleblowing retaliation charge. The Federal Circuit affirmed the decision as supported by substantial evidence, rejecting Robinson’s claim that he was treated differently than other supervisors. Robinson had notice and a pre-termination opportunity to be heard. Robinson had a duty to ensure compliance with VA policy but the record demonstrated that he did not. View "Robinson v. Department of Veterans Affairs" on Justia Law

These petitions concern the conduct of a military judge, Colonel Vance Spath, who presided over a current Guantanamo Bay detainee, Abd Al-Rahim Hussein Muhammed Al-Nashiri, who faces capital charges before a military commission. After receiving a job offer but before retiring from the military, Spath found himself locked in a dispute with Al-Nashiri's defense lawyers, three of whom sought to leave the case.The DC Circuit granted Al-Nashiri's petition for a writ of mandamus and held that Spath's job application to the Justice Department created a disqualifying appearance of partiality. In this case, the average, informed observer would consider Spath to have presided over a case in which his potential employer (the Attorney General) appeared. The court vacated all orders issued by Spath after he applied for the job, and dismissed counsels' petition as moot. View "In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri" on Justia Law

Ruel served in the Marine Corps, 1966-1969, including two tours in Vietnam; he was exposed to Agent Orange. He died in 1984. His wife, Teresa, sought benefits. In July 1984, the VA received her Form 21-534, which the VA treats as an application for Dependency and Indemnity Compensation (DIC) a benefit paid to eligible survivors of veterans whose death resulted from a service-related injury or disease, and for a Death Pension, a benefit payable to a low-income, un-remarried surviving spouse of a deceased veteran with wartime service, 38 U.S.C. 5101(b)(1). The claim for pension benefits was denied based on her income; the denial did not mention a DIC claim. In response to Teresa's “Application for Burial Benefits,” the VA authorized payment of $150.00, stating: The evidence does not show that the veteran’s death was due to a service-connected condition. Teresa did not appeal. In 2009, ischemic heart disease was added to the presumptive list of diseases related to herbicide exposure while serving in Vietnam. Teresa submitted a new Form 21-534. Her claim was granted with an effective date of October 2009. Teresa sought an effective date of July 1984 arguing that the VA never adjudicated her 1984 DIC claim, which remained “pending.” The Federal Circuit reversed the Board and Veterans Court; proper notice of an explicit denial of a claim under 38 C.F.R. 3.103 requires an actual statement or otherwise clear indication of the claim being denied. View "Ruel v. Wilkie" on Justia Law

James served on active duty during the Vietnam War. He sought service-connected disability compensation for “a lumbar spine disability and cervical spine disability, as well as an increased rating claim for pseudofolliculitis barbae.” On January 28, 2016, the Board of Veterans’ Appeals denied his claims.. On Friday, May 27, James placed his notice of appeal (NOA) in a stamped envelope addressed to the Veterans Court in the mailbox at his residence and put the flag up for collection. James left town and did not return until late on Monday, May 30. James discovered the NOA still in his mailbox and deposited it that night at the post office. The next day, the Veterans Court received and docketed James’s NOA, which bore a postmark of May 31, more than 120 days after the Board mailed its decision. The court ordered James to “show cause why his appeal should not be dismissed.” James argued that the 120-day appeal window should be equitably tolled because an errantly lowered mailbox flag constituted an extraordinary circumstance beyond his control. The Veterans Court dismissed James’s appeal as untimely. The Federal Circuit vacated. The Veterans Court erred in creating a categorical ban by holding that equitable tolling can never apply to an entire category of cases involving a fallen mailbox flag. The extraordinary circumstance element necessarily requires a case-by-case analysis and not a categorical determination. View "James v. Wilkie" on Justia Law

Sharpe has been a DEA employee since 1995. Until 2008, he was also a Navy reservist. While at the DEA, Sharpe was deployed three times, twice for six months. As of 2015, Sharpe had applied for 14 GS-14 positions since 2012. Since 2009, Sharpe has been supervised by Sherman, who is responsible for recommending agents for promotion. Because he scored 91 out of 100 on his examination, Sharpe was on the Best Qualified List for every GS-14 position for which he applied, but he was only selected by Sherman three times and never as Sherman’s first-ranked agent. The Career Board often selects Sherman’s first-ranked agent, absent an agent requiring a lateral transfer from abroad or for hardship. In 2015, Sharpe requested corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311(a), asserting his non-selection was motivated by his military status and that Sherman was hostile towards reservist. Six other current and former reservists working as agents in San Diego, including Sorrells, also filed USERRA claims. Before the Merit Systems Protection Board Sharpe unsuccessfully sought to introduce an email sent to Sorrells by Tomaski, who reported directly to Sherman. At the hearing, Sharpe was not allowed to question Sherman about the email. The Federal Circuit vacated the MSPB’s denial of corrective action. Evidence of the Tomaski email and of Sherman’s response to it is relevant to Sherman’s potential hostility towards others’ military or USERRA activity. View "Sharpe v. Department of Justice" on Justia Law