Justia Government & Administrative Law Opinion Summaries

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

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

Plaintiff Steven Kientz spent many years as a "dual status" technician with the Kansas Army National Guard, where he worked as a mechanic on electronic measurement equipment. Plaintiff’s position required him to simultaneously serve as a member of the National Guard, a second job with separate pay and separate responsibilities. In retirement, Plaintiff receives a monthly pension payment under the Civil Service Retirement System based on his service as a dual status technician. Plaintiff also receives Social Security retirement benefits based on contributions he made to the Social Security system from his separate pay as a National Guard member. The issue this case presented for the Tenth Circuit's review centered on whether a dual status service technician’s civil service pension was “based wholly on service as a member of a uniformed service” under 42 U.S.C. 415(a)(7)(A). After review, the Court concluded Plaintiff's civil service pension is not “wholly” based on service as a member of a uniformed service, and his pension payments were therefore subject to the Windfall Elimination Provision ("WEP"). Plaintiff’s dual status technician work was at least partially distinct from the performance of his military duties. And Plaintiff received separate compensation and separate pensions for his performance of those distinct roles. The Court concurred with the district court and Social Security Administration that Plaintiff's Social Security retirement benefits were subject to the WEP. View "Kientz v. Commissioner, SSA" on Justia Law

Petitioner, a Guantanamo detainee, sought a writ of mandamus asking the court to prevent the government from proceeding with destruction of a particular detention center ("Site A"). The DC Circuit denied relief, finding that the government has produced digital and photographic representations of Site A and that petitioner cannot show, as he must, that it is clear and indisputable that those representations are so insufficient as to warrant the extraordinary remedy of mandamus. After reviewing the classified record, the court held that the government took steps fully consistent with the district court's order. View "In re: Ammar Al-Baluchi" on Justia Law

Under the GI Bill, the VA provides monetary benefits to veterans enrolled in “approved” “course[s] of education,” 38 U.S.C. 3483. Approval must be provided by the state approving agency (SAA) for the state where the educational institution is located. For online courses, the educational institution must obtain approval from the SAA where the institution’s “main campus” is located. The VA may discontinue educational assistance, after following certain procedures, if this requirement is not met. Ashford is a for-profit educational institution that provides online courses to veterans and others. In November 2017, the VA sent a Cure Letter to Ashford stating that Ashford’s online courses were not approved by the correct SAA, expressing its “inten[t] to suspend payment of educational assistance and suspend approval of new enrollments and re-enrollments [for Ashford’s online programs] in 60 days unless corrective action is taken.” The Letter noted the availability of a hearing before the Committee on Educational Allowances. Ashford sought review, contending that the Cure Letter “announces” new “rules” and that 38 U.S.C. 502 provided the court with jurisdiction to review those alleged rules. The Federal Circuit dismissed the petition, finding that the Cure Letter is not rulemaking or any other reviewable action; it is also not a final agency action under the Administrative Procedure Act. View "Ashford University, LLC v. Secretary of Veterans Affairs" on Justia Law

The Small Business Act requires that many federal agencies set aside contracts to be awarded to certain categories of small businesses, including service-disabled-veteran-owned (SDVO) small businesses, 15 U.S.C. 644(g)(1)(B). For a limited liability company (LLC) to qualify as SDVO, one or more SDVs must directly and unconditionally own at least 51% of each class of member interest. For an LLC to be controlled by SDVs, one or more SDVs must control the company’s long-term decision making, conduct its day-to-day management and administration of business operations, hold the highest officer position, serve as managing members, have “control over all decisions” of the LLC and “meet all supermajority voting requirements,”XOtech LLC, previously organized with Marullo (an SDV) as its only manager, became a multiple-manager company with four “Members” as owners. The Army issued a Request for Proposals seeking an SDVO contractor to provide logistics support for Army Reserve facilities. XOtech was awarded the contract. The Director of the SBA’s Office of Government Contracting determined that XOtech did not qualify for SDVO status and sustained a protest, finding that, although Marullo owned XOtech, he lacked sufficient control over XOtech’s operations because he required the vote of at least one non-SDV to make management decisions. The Claims Court and the Federal Circuit affirmed, finding that service-disabled veterans do not control “all decisions” of XOtech as required by 13 C.F.R. 125.13(d). View "XOTech, LLC v. United States" on Justia Law

Jackson served in the Marine Corps, 1977-1991. Almost 30 years after his honorable discharge, Jackson filed a pro se complaint alleging that toward the end of his military career, his supervising officers discriminated against him because he is a black male, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. The district court inferred additional claims under the Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A), and the Military Pay Act, 37 U.S.C. 204 but ultimately dismissed all of Jackson’s claims. The D.C. Circuit affirmed. The court noted the unanimous rulings of other sister circuits, concluding that Title VII does not apply to uniformed members of the armed forces. Jackson’s APA claim was untimely and, although the limitations period is no longer considered jurisdictional, the facts alleged were insufficient to apply equitable tolling. Jackson was able to manage his affairs and comprehend his rights; he alleged that at the time of the alleged discrimination, he knew that he “had been subjected to wrongdoing and strongly desired justice.” The court concluded that it lacked jurisdiction to review the dismissal of Jackson’s Military Pay Act claim; the Court of Appeals for the Federal Circuit has exclusive jurisdiction of such claims. View "Jackson v. Modly" on Justia Law

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