Justia Military Law Opinion Summaries

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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

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Petitioner, a legal permanent resident, sought review of an agency order of removal based on a finding that he committed an "aggravated felony" within the meaning of 8 U.S.C. 1101(a)(43)(G). Under section 1101(a)(43)(G), to establish an aggravated felony, the government must show by clear and convincing evidence that a noncitizen committed a "theft offense" that resulted in a term of imprisonment of "at least one year." Petitioner was a member of the U.S. Army when he pleaded guilty to four violations of the Uniform Code of Military Justice (UCMJ), one of which was larceny of military property. Under the military's customary practice of unitary sentencing at the time, the military judge issued a general sentence that imposed a punishment for all four of petitioner's convictions for 30 months' confinement. The Second Circuit held that, under the military's traditional unitary sentencing scheme, a military judgment in which a single sentence of confinement is imposed in connection with multiple counts of conviction may not be presumed to be equivalent to equal, full‐term, concurrent sentences as to each count of conviction. Because the government has not carried its burden, the court granted the petition for review and remanded for further proceedings. View "Persad v. Barr" on Justia Law

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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

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Plaintiff, a civilian employee of the Army Corps of Engineers, filed suit challenging the Army's decision to suspend him from his employment pending review of his security clearance. The district court awarded summary judgment to the Army on claims under Title VII of the Civil Rights Act and Age Discrimination in Employment Act. The Fourth Circuit vacated the district court's judgment and dismissed the action in light of the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988). The court held that review of any of plaintiff's claims requires review of the suspension of his security clearance — a review that necessarily goes to the very heart of the protection of classified information — and thus Egan deprived the district court of subject matter jurisdiction to review each of the claims. Therefore, the district court erred by failing to dismiss these claims outright for lack of subject matter jurisdiction. View "Campbell v. McCarthy" on Justia Law

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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

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Strand served in the Navy for roughly 19-1/2 years until he was discharged under other than honorable conditions for firing a gun at his estranged wife. Strand was convicted in state court of three felonies. After his release from prison, Strand sought “corrections” to his service records, including a six-month credit so that he would have 20 years of service and be eligible for military retirement benefits. The Board for Correction of Naval Records recommended granting Strand’s request, citing his “overall record … of satisfactory service [including receiving numerous medals,].” The Secretary of the Navy rejected the Board’s recommendation, citing the seriousness of Strand’s convictions, the Navy’s core values, its practice in similar cases, and Strand’s supposed “long-standing history" of domestic violence issues. On remand, the Secretary also noted two early “counseling/warning” entries on Strand’s record and that Strand had already received “appropriate relief” in upgrading his service characterization to “General Under Honorable Conditions.” The Claims Court found the denial arbitrary. The Federal Circuit reinstated the denial. The Secretary reviewed the same record as the Board and drew a different, but supported, conclusion. Where a military officer has not unduly influenced the decision, a service secretary may reject the recommendation of a records correction board, even if supported by the record, if the rejection is not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to the law. View "Strand v. United States" on Justia Law

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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

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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

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In 1999, while working at the San Juan VA Medical Center, Dr. Sanchez, a urologist, reported to his superiors what he believed to be improper practices. In 2000, Sánchez received a proficiency report prepared by his supervisor, indicating that his performance “ha[d] shown a significant [negative] change since his last evaluation.” Sánchez was reassigned to the Ambulatory Care Service Line, where he believed that he would not perform surgery, care for patients, or supervise other staff members. He concluded that these actions were retaliation for his whistleblowing activities. Sánchez and the VA entered into a settlement agreement under which Sanchez was to be reassigned to the Ponce Outpatient Clinic with a compressed work schedule of 10 hours per day for four days per week, to include three hours of travel per day. The parties adhered to the Agreement for 16 years. In 2017, Sánchez received a letter, informing him that he was required to be at the Ponce clinic from “7:30 a.m. until 4:00 p.m. from Monday through Friday.” An AJ rejected his petition for enforcement with the Merit Systems Protection Board. The Federal Circuit affirmed. The background of the Agreement supports the conclusion that 16 years was a reasonable duration. As the party claiming a breach, Sánchez had the burden of proof but did not offer evidence that the claimed animosity persisted after that 16-year time period. View "Sanchez v. Department of Veterans Affairs" on Justia Law

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O’Brien is a Vietnam veteran whose service-connected disabilities make him eligible to receive compensation for himself and for certain “dependents,” 38 U.S.C. 1115. Section 1115 does not define “dependents,” but lists specific allotments for veterans with “a spouse but no child,” “a spouse and one or more children,” “no spouse but one or more children,” and “a parent dependent upon such veteran for support.” Under title 38, a “child” is an unmarried person who meets certain age restrictions “and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran’s household or was a member at the time of the veteran’s death, or an illegitimate child [in certain circumstances].” O’Brien took legal guardianship of D.B., his stepdaughter’s minor son, then requested dependency compensation. He and his late wife were D.B.’s caretakers since D.B.’s mother was in a nursing home and his father was absent. The VA denied compensation for D.B., indicating that O’Brien could reopen his claim with proof of D.B.’s adoption. The Board of Veterans’ Appeals, Veterans Court, and Federal Circuit upheld the denial as a matter of first impression. Despite not expressly defining “dependents,” Congress unambiguously limited that term to “spouses, children, and dependent parents” by specifying the amount payable for each. View "O'Brien v. Wilkie" on Justia Law