Justia Military Law Opinion Summaries

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The 2017 Veterans Appeals Improvement and Modernization Act (AMA) reforms the VA's administrative appeals system, 131 Stat. 1105, replacing the existing system, which had shepherded all denials of veteran disability claims through a one-size-fits-all appeals process. Under the AMA, claimants may choose between three procedural options: filing a supplemental claim based on additional evidence, requesting higher-level review within the VA based on the same evidentiary record, and filing a notice of disagreement to directly appeal to the Board of Veterans Appeals. The VA promulgated regulations to implement the AMA. Veterans’ service organizations, a law firm, and an individual (Petitioners) filed separate petitions raising 13 rulemaking challenges to these regulations under 38 U.S.C. 502.1The Federal Circuit concluded that two veterans’ service organizations had associational standing based on claimed injuries to their members to collectively bring three of their challenges. No Petitioner demonstrated standing to raise any of the remaining challenges. The regulations the organizations have standing to challenge are invalid for contravening the unambiguous meaning of their governing statutory provisions: 38 C.F.R. 14.636(c)(1)(i), limiting when a veteran’s representative may charge fees for work on supplemental claims; 38 C.F.R. 3.2500(b) barring the filing of a supplemental claim when adjudication of that claim is pending before a federal court; and 38 C.F.R. 3.155 excluding supplemental claims from the intent-to-file framework. View "Military-Veterans Advocacy v. Secretary of Veterans Affairs" on Justia Law

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Plaintiff filed suit under the Federal Tort Claims Act (FTCA), alleging that various medical professionals working for the VA breached their legal duty to exercise ordinary medical care and negligently failed to diagnose his throat cancer and immediately treat it. The district court dismissed plaintiff's complaint for lack of subject matter jurisdiction, concluding that judicial review of his claims was precluded by the Veterans' Judicial Review Act (VJRA).The Eleventh Circuit affirmed in part and reversed in pat, concluding that the district court did lack jurisdiction over some of plaintiff's claims but that it had jurisdiction over his tort claims alleging medical negligence or malpractice. To the extent that plaintiff alleges that any delay in his receipt of needed medical care was a result of the VA's failure to timely approve and/or authorize his care or payments therefore, the district court could not review those allegations without second-guessing a decision by the VA necessary to a benefits determination—when to grant the requested benefit. As for plaintiff's allegations related to the VA's failure to follow its own policies, procedures, and protocols, if the district court lacks jurisdiction to review the VA's approval, authorization, and scheduling decisions, it must also lack jurisdiction to determine whether the VA followed its own internal procedures in making those decisions. However, plaintiff's medical negligence and malpractice claims do not require the district court to decide whether plaintiff was entitled to benefits nor do they require the court to revisit any decision made by the Secretary in the course of making benefits determinations. The court remanded for further proceedings. View "Smith v. United States" on Justia Law

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Ortiz served during the Vietnam era, a “period of war,” under 38 U.S.C. 1110, which provides for compensation for service-connected disabilities. The VA denied Ortiz’s 1997 claim for disability benefits based on PTSD, finding Ortiz did not provide corroborating evidence, as required by the PTSD regulation. The VA reopened and granted the claim in 2012, pursuant to the 2010 addition of 38 C.F.R. 3.304(f)(3), an exception to the corroborating evidence requirement. The VA rated Ortiz 100 percent disabled and made the benefits effective as of May 2012, when it received the request to reopen. Ortiz contended that the effective date should have been one year earlier; 38 C.F.R. 3.114(a), provides that when compensation “is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary” and the “claim [for compensation] is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue,” the effective date is “1 year prior to the date of receipt of such request.”The Board of Veterans’ Appeals and the Veterans Court rejected his request for an earlier effective date. The Federal Circuit reversed. The regulatory change that enabled Ortiz to obtain the benefits was a “liberalizing” one, entitling Ortiz to the earlier effective date, and a larger award. View "Ortiz v. McDonough" on Justia Law

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Sergeant First Class McKinney served honorably in the Army for more than 20 years before retiring in 2007. Months later, he suffered a stroke at age 46. A VA doctor opined that of McKinney’s reported exposures during service, only an October 2005 blast from a roadside bomb in Iraq was consistent with causing a TBI. The VA affirmed that McKinney had a total disability that was service-connected and permanent, which entitled him to lifetime benefits. Several years after his retirement, he applied to the Army for a Purple Heart on the ground that he suffered a TBI in the 2005 explosion. McKinney was not hit with debris during the blast and did not receive medical treatment afterward. The Army denied him a Purple Heart because it found the evidence insufficient to establish that this particular attack caused McKinney to suffer injuries that would qualify for the award.The D.C. Circuit affirmed the denial while acknowledging McKinney’s years of service and the injuries he sustained during that service. With respect to the award of a Purple Heart, however, the Army’s decision is reviewed under a deferential standard. The Army did not act arbitrarily or capriciously when it denied McKinney the Purple Heart. View "McKinney v. Wormuth" on Justia Law

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Plaintiff appealed the district court's grant of the government's motion to dismiss and, in the alternative, for summary judgment, on plaintiff's claims that the cadet separation procedures of the United States Military Academy at West Point fail to provide due process and that plaintiff's separation proceedings violated West Point's own regulations in a manner that substantially prejudiced him.The Second Circuit affirmed, concluding that West Point's cadet separation procedures satisfy due process and that the intra military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders plaintiff's regulatory claims nonjusticiable. The court explained that plaintiff was not substantially prejudiced by any purported regulatory deviation and the court may not circumvent the doctrine to engage in a fact-specific inquiry as to whether military personnel properly applied the military's own evidentiary standard. View "Doolen v. Wormuth" on Justia Law

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Tadlock served in the Army, 1982-2003, including service in the Persian Gulf. In 2010, he suffered a pulmonary embolism (PE) that resulted in a heart attack. Tadlock sought presumptive service connection under 38 U.S.C. 1117, which refers to a “qualifying chronic disability” for veterans who served in the Persian Gulf War. The regulations limit the definition of “qualifying chronic disability” to one that, “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” Tadlock underwent a final medical examination by a VA physician, who explained that Tadlock’s PE “is not an undiagnosed illness.” The Board of Veterans Appeals based its denial of service connection on that opinion.Neither the Board nor the examiner made any finding that Tadlock’s condition was not a “medically unexplained chronic multisymptom illness” (MUCMI). Tadlock contended that the statute expressly includes both “an undiagnosed illness” and a MUCMI. The Veterans Court found that Tadlock's PE was "not characterized by overlapping signs and symptoms and unique features ... and disproportional disability when compared with physical findings.” It held that "any error in the Board decision regarding whether his diagnosed illness could count as a MUCMI is harmless.”The Federal Circuit vacated. The Veterans Court exceeded its authority in making a fact-finding in the first instance that Tadlock’s illness did not qualify as a MUCMI because of a lack of overlapping symptoms. The Veterans Court’s jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate. View "Tadlock v. McDonough" on Justia Law

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Rudisill served three periods of active duty military service: 2000-2002 in the Army (30 months); 2004-2005 in the Army National Guard (18 months); and 2007-2011 as a commissioned Army officer (45 months). He received 25 months and 14 days of education benefits under the Montgomery GI Bill (MGIB), 38 U.S.C. 3011(a), for completion of his college degree. After his third period of Army service, he applied for education benefits under the Post-9/11 GI Bill, 38 U.S.C. 3311, for a graduate program. The VA determined that he was entitled to the Post-9/11 benefits, but only for the remaining 10 months and 16 days of the 36 months authorized for Montgomery benefits. The Board of Veterans’ Appeals agreed.The Veterans Court reversed. A veteran is entitled to education benefits for each of his periods of separately qualifying service and is entitled to the aggregate cap of 48 months of benefits. The Federal Circuit affirmed. The legislation explicitly provides additional benefits to veterans with multiple periods of qualifying service, whereby each period of service qualifies for education benefits: “The aggregate period for which any person may receive assistance under two or more of the provisions of law listed below may not exceed 48 months,” 38 U.S.C. 3695(a). This provision has been in each GI Bill since at least 1968. View "Rudisill v. McDonough" on Justia Law

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The Eighth Circuit reversed the district court's orders involving plaintiff and Union Pacific's motions for judgment as a matter of law (JMOL) and plaintiff's motion for attorney fees in this suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA).As a preliminary matter, the court concluded that the lack of damages or equitable relief at the district court level did not strip this court of subject matter jurisdiction. On the merits, the court concluded that the district court improperly granted plaintiff's motion for judgment as a matter of law where a reasonable jury could find Union Pacific attempted to fit plaintiff into an appropriate job within the corporation's reorganized structure upon his return from deployment, thereby leading to the conclusion Union Pacific reemployed him in accordance with the escalator position principle. The court reversed the district court's JMOL decision on the reemployment claim.In addressing the denial of its own JMOL motion, Union Pacific raised affirmative defenses for the first time on appeal. The court will not consider Union Pacific's new arguments on appeal. Nonetheless, on the record before the court and on de novo review, the court concluded that the district court should have granted Union Pacific's motion for JMOL because no reasonable jury could find in favor of plaintiff on his reemployment claim. In this case, the record does not support the conclusion that Union Pacific failed to place plaintiff in the position that he would have otherwise been in had he not been deployed. Finally, because plaintiff was not entitled to judgment as a matter of law on his reemployment claim, he does not qualify as a prevailing party for the purpose of recovering attorney fees. View "Quiles v. Union Pacific Railroad Co., Inc." on Justia Law

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Adams, a member of the Arizona Air National Guard, worked in human resources for Customs and Border Patrol (the agency). In 2018, Adams performed three periods of National Guard military service. Between April 11 and July 13, Adams was activated under 10 U.S.C. 12301(d) to support a military personnel appropriation (MPA) tour in support of Twelfth Air Force; July 18-July 30, he was ordered to attend annual training under 32 U.S.C. 502(a). Between July 28 and September 30, Adams was again activated under section 12301(d) to support an MPA tour. Both 12301(d) orders stated that they were “non-contingency” activation orders.Under 5 U.S.C. 5538(a), federal employees who are absent from civilian positions due to certain military responsibilities may qualify to receive the difference between their military pay and what they would have been paid in their civilian employment during the time of their absence (differential pay). Adams requested differential pay for each of his periods of service. Adams appealed the agency's denials. The Merit Systems Protection Board held that the denials did not violate the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 4301–4335). The Federal Circuit affirmed. Entitlement to differential pay requires service under a call to active duty that meets the statutory definition of a contingency operation. None of Adams’s service meets the statutory requirements for differential pay, View "Adams v. Department of Homeland Security" on Justia Law

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The Eighth Circuit reversed the district court's dismissal of Plaintiffs Mullen and King's complaint against the United States based on lack of subject matter jurisdiction. Plaintiffs' causes of action stemmed from the death of Rosemarie Ismail, a 69-year-old veteran who died from a hematoma after a liver biopsy performed at a VA hospital. The district court concluded that King failed to properly present her Federal Tort Claims Act (FTCA) claim because Mullen, who filed an administrative wrongful death claim with the VA as the personal representative of Ismail's estate, did not have the authority under Missouri law to act on King's behalf.The court held that the DOJ regulations specifically contemplate that Mullen, as the personal representative of Ismail's estate, may present an administrative wrongful death claim even if she is not authorized to bring an FTCA action in that same capacity. Given the court's plain reading of the FTCA and the corresponding regulations, the court concluded that Mullen had the requisite authority to present a wrongful death claim to the VA and consequently that King's FTCA claim was administratively exhausted. The court explained that an FTCA notice of claim need not be filed by a party with the legal authority or capacity under state law to represent the beneficiaries' interests in state court. Therefore, the district court had subject matter jurisdiction over King's FTCA claim. The court remanded for further proceedings. View "King v. United States" on Justia Law