Justia Military Law Opinion Summaries

Sean Ravin, an attorney, sought fees for representing Curtis D. Skogsbergh, a veteran claiming disability benefits. The Department of Veterans Affairs (VA) initially granted Skogsbergh a 10% disability rating, later increased to 20%. Skogsbergh, acting pro se, appealed for a higher rating and submitted a claim for total disability based on individual unemployability (TDIU). The VA denied TDIU, and the Board of Veterans’ Appeals (Board) did not address it in their decision. Skogsbergh retained Ravin, who represented him in an appeal to the Court of Appeals for Veterans Claims (Veterans Court), which vacated the Board’s decision for not addressing TDIU.The Board later remanded the TDIU claim, and the VA granted TDIU with past-due benefits. However, the VA denied Ravin’s attorney fees, leading him to appeal to the Board, which found the fee agreement valid but denied fees, stating the Board’s decision was not final. Ravin appealed to the Veterans Court, which vacated the Board’s decision, finding the Board’s interpretation of finality incorrect but remanding for clarification on whether all fee award requirements were met.The United States Court of Appeals for the Federal Circuit reviewed the case and determined that the Veterans Court’s decision was non-final, as it remanded the case for further proceedings. The Federal Circuit dismissed the appeal, holding that the remand did not meet the criteria for a final decision and that the Veterans Court was within its authority to remand for clarification. View "RAVIN v. MCDONOUGH " on Justia Law

Dr. Thomas C. Franchini, the former Chief of Podiatry at the Department of Veterans' Affairs Maine Healthcare System at Togus, sued several publishers and reporters for defamation. Franchini alleged that articles written by the defendants, which described malpractice allegations related to his treatment of veterans at VA Togus, were libelous and defamatory. He also claimed negligent infliction of emotional distress and fraudulent or negligent misrepresentation against some defendants.The United States District Court for the District of Maine granted summary judgment in favor of the defendants, finding that Franchini was a voluntary public figure and had failed to plead actual malice in his Second Amended Complaint (SAC). The court determined that the issues surrounding the quality of care at VA Togus were matters of public concern and that Franchini had voluntarily injected himself into the controversy through his actions, including creating a blog and giving an interview to a reporter. The court also found that Franchini's claims of negligent infliction of emotional distress and fraudulent or negligent misrepresentation were not supported by sufficient evidence.The United States Court of Appeals for the First Circuit affirmed the district court's decision. The appellate court agreed that a public controversy existed regarding the quality of care at VA Togus and that Franchini had voluntarily become a limited-purpose public figure by engaging in public discussions about the controversy. The court also held that Franchini failed to show that the defendants acted with actual malice, as required for a public figure to succeed in a defamation claim. The court noted that the defendants had conducted due diligence in their reporting and included Franchini's statements in their articles. Consequently, the appellate court affirmed the district court's grant of summary judgment in favor of the defendants. View "Franchini v. Bangor Publishing Co., Inc." on Justia Law

Charles J. Love, Jr. appealed a decision regarding the reduction of his disability rating for service-connected prostate cancer. Initially rated at 100% due to active cancer, his rating was reduced to 20% after his cancer went into remission. Love argued that the procedural protections of 38 C.F.R. § 3.344, which require certain steps before reducing long-standing disability ratings, should apply to his case.The Veterans Benefits Administration Regional Office (RO) proposed the reduction in February 2019, which was finalized in September 2019. Love appealed to the Board of Veterans’ Appeals, which upheld the RO’s decision. He then appealed to the Court of Appeals for Veterans Claims, arguing that the reduction was improper without following § 3.344. The Veterans Court, referencing its decision in Foster v. McDonough, ruled that the procedural protections of § 3.344 did not apply to disabilities rated under diagnostic code 7528 for prostate cancer, as the diagnostic code itself provided specific procedures for rating changes.The United States Court of Appeals for the Federal Circuit reviewed the case. The court agreed with the Veterans Court, holding that the specific procedures outlined in diagnostic code 7528 for prostate cancer, which include a mandatory VA examination six months after treatment cessation, supersede the general procedural protections of § 3.344. The court found that applying § 3.344 would create conflicting standards and redundancy. Therefore, the reduction of Love’s rating was affirmed as proper under the specific guidelines of diagnostic code 7528. The court affirmed the decision of the Veterans Court, concluding that the procedural protections of § 3.344 do not apply to diagnostic code 7528. View "Love v. McDonough" on Justia Law

The case revolves around the murder of Sallie Copeland Evans by her grandson, Isaiah Evans Ceasar, a lance corporal in the United States Marine Corps. Sallie's son, Mitchell Garnet Evans, acting as the executor of her estate, filed a wrongful death claim against the United States under the Federal Tort Claims Act, alleging that the Marine Corps was negligent in its handling of Ceasar, who had previously expressed suicidal intentions and violent tendencies. The district court dismissed the claim for lack of subject-matter jurisdiction.The United States Court of Appeals for the Fourth Circuit found that the district court had erred in dismissing the claim under Federal Rule of Civil Procedure 12(b)(1) because the jurisdictional question and the merits of the case were inextricably intertwined. However, the court also found that Evans failed to state a wrongful death claim under North Carolina law. The court concluded that even if the Marine Corps had a duty to Sallie, her murder was not foreseeable under the circumstances. Therefore, while the district court's decision was procedurally incorrect, it was substantively proper. The court affirmed the district court's decision on alternative grounds and dismissed the case under Rule 12(b)(6). View "Evans v. US" on Justia Law

Louis Frantzis, a U.S. Army veteran, appealed a decision by the Board of Veterans’ Appeals (Board) that denied his claim for an increased disability rating for his service-connected headaches. The Board's decision was made by a member who did not conduct the hearing, which Frantzis argued was a violation of 38 U.S.C. § 7102. He contended that the same Board member who conducts a hearing should also issue the resulting decision. The United States Court of Appeals for Veterans Claims (Veterans Court) affirmed the Board's decision, concluding that the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) does not require the Board member conducting the hearing to also decide the appeal.The Veterans Court's decision was based on the removal of pre-AMA language in 38 U.S.C. § 7107(c) that required the same judge conducting the hearing to issue a final determination. The court also rejected the argument that 38 U.S.C. § 7102 supports the same judge requirement because its language did not change with the enactment of the AMA. The court declined to consider the fair process doctrine because Mr. Frantzis did not raise the argument himself.The United States Court of Appeals for the Federal Circuit affirmed the Veterans Court's decision. The court agreed with the Secretary of Veterans Affairs that the AMA eliminated the same judge requirement because it removed the language expressly requiring the same judge for the hearing and final determination. The court also disagreed with Mr. Frantzis' argument that 38 U.S.C. § 7102 supplies a same Board member requirement, stating that the unchanged language of § 7102 cannot be the basis for the same member requirement in the AMA system. The court concluded that the statutory scheme and its history are clear—the same judge is not required to both conduct the hearing and author the final determination under the AMA. View "FRANTZIS v. MCDONOUGH " on Justia Law

The case revolves around the tragic death of Tyler Gergler, a recruit in the Marine Corps' Delayed Entry Program. Gergler died in a car accident while driving to a Marine Corps event, despite being ill. His parents, Raynu Clark and Jason R. Gergler, alleged that Sergeant Mitchell Castner, Gergler's recruiter, negligently pressured their son to drive to the event despite his illness, which led to the fatal accident. They argued that since Castner's actions were within the scope of his Marine Corps employment, the Government was liable for their son's death.The case was initially heard in the United States District Court for the District of New Jersey. The Government moved to dismiss the case, arguing that the United States has sovereign immunity for discretionary acts of government agents. They contended that when Castner pressured Gergler to drive, he was acting as Gergler's recruiter, a discretionary function, and thus, sovereign immunity barred the lawsuit. The District Court agreed with the Government's argument and dismissed the case on the grounds that Castner had discretion and was exercising that discretion.The case was then appealed to the United States Court of Appeals for the Third Circuit. The court affirmed the District Court's decision, ruling that the United States and its agents enjoy sovereign immunity from suit. The court found that Castner had discretion to urge Gergler to attend the event and that his function of preparing Marine recruits for training was discretionary. The court also rejected the parents' arguments that Castner's conduct was so egregious that it goes beyond policy consideration and that a narrow carve-out for easy precautions should apply. The court concluded that the United States is immune from suit when its agents commit alleged torts within the discretion accorded by their job function, and Sergeant Castner's actions were within his discretionary function of preparing Marine recruits for training. View "Clark v. Secretary United States Navy" on Justia Law

The case involves two American Airlines pilots, James P. Scanlan and Carla Riner, who sued their employer for failing to pay them and provide certain benefits while they were on short-term military leave. They claimed that the airline violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which provides employees on military leave the right to receive the same employment benefits as other similarly situated employees. They also claimed that the airline breached their profit-sharing plan by failing to account for imputed earnings during periods of military leave.The District Court granted summary judgment for the airline on all claims. It held that the pilots could not prevail on their USERRA claims because short-term military leave is not comparable to jury-duty or bereavement leave when comparing duration, frequency, control, and purpose. It also concluded that, under Texas law, the profit-sharing plan unambiguously excludes imputed income from periods of military leave.The United States Court of Appeals for the Third Circuit affirmed the judgment for the airline on the breach of contract claim. However, it reversed the judgment for the airline on the USERRA claims, stating that a reasonable jury could find that short-term military leave is comparable to jury-duty leave or bereavement leave based on the three factors mentioned in the implementing regulation, and any other factors it may consider. The case was remanded for further proceedings on the USERRA claims. View "Scanlan v. American Airlines Group Inc." on Justia Law

The case involves Mark W. Smith, a U.S. Navy veteran, who appealed a decision by the United States Court of Appeals for Veterans Claims. Smith had initially filed a claim for service connection for deep vein thrombosis (DVT) after his discharge from the Navy in 1991. However, his request was denied by the Regional Office of the Department of Veterans Affairs (VA) in 1992, and this denial was affirmed by the Board of Veterans Appeals in 1996. Smith did not appeal this decision, and it became final.In 2012, Smith filed a new claim for service connection for DVT, which was granted by the VA in 2013. In 2016, Smith filed a motion to revise the 1996 Board Decision, alleging that it was tainted by clear and unmistakable error (CUE). He argued that there was sufficient evidence in 1996 to show he had DVT, and thus his claim should have been allowed to proceed with the VA's duty to assist. However, the Board denied his motion, and this denial was affirmed by the Veterans Court.The case was then brought before the United States Court of Appeals for the Federal Circuit. Smith argued that the Veterans Court had erred in its interpretation of the CUE standard in 38 C.F.R. § 20.1403, claiming that the court had incorrectly limited CUE-eligible errors to those that would have led to a grant of service connection. However, the Federal Circuit Court disagreed with Smith's interpretation and affirmed the decision of the Veterans Court. The court held that a revision or reversal based on CUE requires an error that, once corrected, alters the merits outcome of a veteran’s claim with absolute clarity. View "SMITH v. MCDONOUGH " on Justia Law

The case involves Daniel D. Barry, a veteran who appealed a decision by the United States Court of Appeals for Veterans Claims. Barry had argued that the Board of Veterans’ Appeals should have considered his entitlement to multiple special monthly compensation (SMC) increases, rather than just one, under 38 C.F.R. § 3.350(f)(3). The Veterans Court disagreed, interpreting § 3.350(f)(3) to permit only one SMC increase, regardless of how many qualifying disabilities Barry could demonstrate.The Veterans Court had previously remanded the case for further explanation and consideration of potential additional SMC entitlement. The Board then concluded that Barry could not show entitlement to an additional SMC increase under 38 C.F.R. § 3.350(f)(4). Barry appealed this decision to the Veterans Court, arguing that the Board erred by not considering whether he would be entitled to an additional SMC increase under 38 C.F.R. § 3.350(f)(3).The United States Court of Appeals for the Federal Circuit reversed the decision of the Veterans Court. The court held that § 3.350(f)(3) does not limit how many SMC increases can be provided; instead, it is a mandatory entitlement that can apply multiple times, subject to a statutory cap. The court remanded the case for further proceedings, including the calculation of the number of intermediate-rate SMC increases Barry should receive. View "BARRY v. MCDONOUGH " on Justia Law

In 2006, veteran Robert Fleming began applying for disability benefits for service-connected injuries. In 2016, he entered into a contingent-fee agreement with James Perciavalle for representation before the Department of Veterans Affairs (VA). The VA awarded Fleming past-due benefits in 2017, but ruled that Perciavalle was statutorily barred from receiving fees on the non-SMC portion of the award. The VA found the pre-Act version of 38 U.S.C. § 5904(c)(1) applicable based on the date on which Fleming had filed a particular notice of disagreement with the regional office regarding his PTSD benefits.The Board of Veterans’ Appeals affirmed the fee denial, agreeing with the regional office that the pre-Act version of the fee provision, not the post-Act version, applies here. The United States Court of Appeals for Veterans Claims (Veterans Court) affirmed the Board’s decision.The United States Court of Appeals for the Federal Circuit reversed and remanded the decision of the Veterans Court. The Federal Circuit concluded that the Veterans Court relied on an incorrect legal standard in determining which version of § 5904(c)(1) applies. The Federal Circuit also concluded that the post-Act version is the applicable one, based on the material facts that are not in dispute. The Federal Circuit found that as long as a notice of disagreement was filed on or after June 20, 2007, in the same “case” in which counsel is seeking fees, the post-Act version of 38 U.S.C. § 5904(c)(1) applies. View "PERCIAVALLE v. MCDONOUGH " on Justia Law