Justia Military Law Opinion Summaries

The VA denied the plaintiff's claim for benefits for post-traumatic stress disorder resulting from a sexual assault that she claimed occurred in 1984, while she was stationed in Japan. The Veterans Court and Federal Circuit affirmed. The Veterans Court committed harmless error in stating that a medical opinion based on a post-service exam cannot be used to establish the occurrence; the Veterans Board of Appeals detailed its consideration of all of the plaintiff's evidence and determined that the preponderance of the evidence was against a finding of verification of the occurrence.

In 1978 the VA published an Agent Orange Program Guide that was the basis for denial of many claims of service-related injury. While a suit, challenging the Guide as issued in violation of the Administrative Procedures Act (APA), was pending, Congress enacted the 1984 Veteransâ Dioxin and Radiation Exposure Compensation Standards Act, which rendered the Guide irrelevant to new claims. Plaintiffs continued to pursue their suit and, in 2005, new named plaintiffs were added. In 2008, the district court granted the government's 1979 motion for judgment. The D.C. Circuit first remanded the case for transfer under the 1988 Veterans Judicial Review Act, 38 U.S.C. 502, but, on rehearing, ordered dismissal. The veterans refiled in the Federal Circuit, which dismissed for failure to file within the Act's six-year limitations period. When the claim was filed, no court had jurisdiction to hear APA challenges to VA regulations and the 1988 Act did not retroactively create a cause of action.

The district court rejected a challenge to 5 U.S.C. 3328, which bars males who have knowingly and willfully failed to register for the draft by age 26 from employment by the executive branch. The First Circuit vacated and remanded for entry of a judgment denying relief for lack of subject matter jurisdiction. The exclusive remedy for the plaintiffs, who were dismissed or resigned from federal employment after discovery of their failure to register, is under the Civil Service Reform Act. Although the claims implicate constitutional violations, Congress intended to consolidate employee removal actions in a single forum. The Merit System Protection Board cannot grant relief by invalidating the statute, but a court could do so on review of board action. The court characterized the constitutional challenges as "unpromising."