Justia Government & Administrative Law Opinion Summaries

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

Cook served on active duty in the Navy, 1972-1973. Cook’s service records indicate that he experienced back pain. In 2000, Cook sought service connection for back problems and later filed a claim for total disability based on individual unemployability (TDIU), also back-related. The regional office (RO) denied both claims. Cook appealed and testified at a Board hearing in 2012. The Board remanded; the RO again denied both claims. Cook again appealed and requested an additional hearing to present further evidence. The Board denied Cook that additional hearing and denied both of his claims. The Veterans Court, upon joint motion, vacated and remanded because the Board did not adequately explain its decision. On remand, Cook again requested another Board hearing. The Board denied a hearing and denied Cook’s claims for service connection and TDIU. The Veterans Court vacated and ordered a hearing. The Federal Circuit affirmed. The Veterans’ Judicial Review Act codified a veteran’s longstanding right to a Board of Veterans’ Appeals hearing, 38 U.S.C. 7107(b). The courts concluded that the statute entitles an appellant to an opportunity for a hearing whenever the Board decides an appeal, including on remand. View "Cook v. Wilkie" on Justia Law

Miller served in the government's military and civilian sectors before retiring. Because he became an “employee” before October 1982, Miller’s credit for military service can count toward the calculation of his civil service retirement annuity, subject to 5 U.S.C. 8332(c)(2). An annuitant who does not satisfy the requirements of section 8332(c)(2)(A)–(B) but wishes to count military service toward civil service retirement must waive his military retired pay for that period and, in some circumstances, pay a deposit. 5 C.F.R. 831.301(c). The Merit Systems Protection Board affirmed the Office of Personnel Management determination of the periods of Miller’s government service that were “creditable” for calculating his civil service retirement annuity. The Federal Circuit concluded that the Board erred in its decision with respect to Periods One and Two, but upheld its decision with respect to Period Three. For concurrent military and civilian service in Period One, Miller is entitled to credit toward both his military and civilian retirement. Substantial evidence does not support the Board’s finding that Miller was in leave-without-pay status during Period Two; he was in a concurrent service situation and is entitled to have Period Two credited as civilian service. Miller is deemed to have had no civilian service during Period Three and has not made a deposit or waived his military retirement pay for this period. View "Miller v. Office of Personnel Management" on Justia Law

The Army took photographs of detainees at military detention facilities in Afghanistan and Iraq after September 11, 2001. The ACLU sought records related to the treatment of detainees with a Freedom of Information Act (FOIA) request submitted to the Department of Defense (DoD) and filed suit in 2004, after receiving no response. The district court ordered the government to produce or identify all responsive documents and ordered the release of the photographs with redactions, rejecting arguments that the photographs could be withheld under three FOIA exemptions. A third party released the photographs without authorization. During the pendency of an appeal, the government identified additional photographs potentially responsive to the FOIA request and attempted to withhold them under the same three exemptions. The district court again rejected these arguments. The Second Circuit reversed, in favor of DoD. The Protected National Security Documents Act of 2009 (PNSDA), 123 Stat. 2142, permits the government to withhold disclosure of any photograph “taken during the period beginning on September 11, 2001, through January 22, 2009.” Regardless of whether PNSDA is an exemption under FOIA, the Secretary of Defense’s certification, following an extensive, multi-step review process including recommendations of several senior U.S. military commanders, and the information provided by the DoD, satisfied PNSDA. View "American Civil Liberties Union v. United States Department of Defense" on Justia Law

Plaintiff filed suit under the Freedom of Information Act (FOIA), seeking records related to the suicide of Admiral J.M. Boorda. Specifically, plaintiff sought six pages of handwritten notes regarding official business found in the backseat of Adm. Boorda's official vehicle and the suicide note to Adm. Boorda's wife. The Eleventh Circuit held that the Navy improperly withheld the backseat notes because it withheld the responsive records when plaintiff asked for them. The court also held that FOIA contained nothing that would allow an agency to withhold records simply because it had previously given them to the requester, and the court rejected the Navy's argument that plaintiff's claim as to the backseat notes was precluded by the parties' prior litigation. The court also held that the suicide note was subject to protection under exemption 7(c), which covers records or information compiled for law enforcement purposes if their production could reasonably be expected to constitute an unwarranted invasion of personal privacy. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Sikes v. United States Department of the Navy" on Justia Law

The VA determined that West, a Viet Nam veteran, was eligible for a disability pension. Two days later West died. Four days later—without knowing that West had died—the government sent West a check for $8,660--his pension benefit retroactive to June 2013. In March 2014, a Kentucky probate court appointed West’s ex-wife, Brenda, as the Estate's executor. Brenda endorsed the VA check, the estate’s only cash asset, and deposited it into an escrow account. After three months, the VA determined that West’s estate was not entitled to the money, 38 U.S.C. 5121(a), and directed the bank to wire the $8,660 back to the U.S. Treasury. The bank complied. The Estate did not learn until later that its account had been drained of funds. More than 18 months later, the Estate obtained a Kentucky probate court order requiring the government to return the funds. The government removed the matter to the district court, which remanded the matter back because the $8,660 was already subject to the probate court’s jurisdiction. The Estate unsuccessfully sought attorneys’ fees. The Sixth Circuit reversed the remand order; the dispute can be litigated only under the procedure set forth in the Veterans’ Judicial Review Act, 102 Stat 4105. The court noted “concerns about the government’s expropriation of the Estate’s funds without any advance notice or process.” View "Estate of West v. United States Department of Veterans Affairs" on Justia Law

Acree served on active duty in the Navy from 1985-1989 and 2007-2008. He was deployed to Iraq and received Seabee Combat Warfare Medals. Acree was diagnosed with post-traumatic stress disorder (PTSD) while serving in Iraq. After leaving the service, Acree filed several claims for service-connected disability benefits and appealed 11 claims to the Board of Veterans’ Appeals. A representative from the Disabled American Veterans (DAV) organization was present with Acree at the board hearing. Acree said “yes” when asked to withdraw seven issues. The board listed the four issues that would be discussed and would “continue to be in appellate status” and asked the DAV representative whether it had “correctly identified the issues.” The representative responded: “Yes.” The board remanded four and dismissed seven claims. Acree appealed, arguing that a veteran’s withdrawal of a claim “is not effective unless the withdrawal ‘is explicit, unambiguous, and done with a full understanding of the consequences’” and that since he “ha[d] a long history of taking psychotropic medications,” the hearing officer should have inquired as to his capacity to appreciate the consequences of dismissing the claims. The Veterans Court affirmed, citing the hearing transcript. The Federal Circuit vacated. Precedent (DeLisio) explicitly states that a withdrawal is effective only if undertaken with “a full understanding of the consequences of such action on the part of the [veteran].” The Veterans Court was required to make that determination even though a DAV representative was present. View "Acree v. O'Rourke" on Justia Law