Justia Military Law Opinion Summaries

Articles Posted in Legal Ethics
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Crawford served in the U.S. Army and Florida National Guard for two decades. He was discharged in 2011 due to his service-connected PTSD. Crawford’s PTSD began after his second tour of duty in Iraq. The Florida State Surgeons Medical Discharge Review Board (SSMDRB) found Crawford did not meet medical retention standards and that his PTSD was incurred in the line of duty. It recommended a fitness determination by a Physical Evaluation Board (PEB), a prerequisite for medical retirement, 10 U.S.C. 1201. Crawford was not referred to a PEB but was discharged as if his PTSD was not service-related, without medical retirement.Crawford sought correction of his records and retroactive benefits before the Army Board for the Correction of Military Records (ABCMR). Notwithstanding the SSMDRB’s findings and the fact that Crawford was discharged for failure to meet medical retention standards, a doctor opined Crawford met retention standards at the time of his discharge. Crawford filed suit. On the government's motion, the court remanded for a fitness determination and development of the record. On remand, the ABCMR found Crawford was entitled to medical retirement based solely on the evidence available at the time of his separation and granted him complete relief, including the correction of his records and retroactive medical retirement benefits.The Federal Circuit reversed the denial of Crawford’s subsequent motion for attorneys’ fees and expenses under the Equal Access to Justice Act. Crawford was a prevailing party. View "Crawford v. United States" on Justia Law

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Pitts, the surviving spouse of an Army veteran, filed for dependency and indemnity compensation from the VA in 2001. The Board of Veterans’ Appeals affirmed. In 2012, Pitts employed attorney Viterna. Their fee agreement was filed with the VA and provided that Viterna was owed 20% of any past-due benefits Pitts recovered, less certain expenses but applied only to claims for which a notice of disagreement was filed after June 20th, 2007; the NOD covering the 2001 claim was filed in 2005. Viterna asserts that this was an “unintentional drafting error.”In 2014, Viterna secured past-due benefits for Pitts, which related back to the 2005 NOD. The agency refused to pay Viterna 20% of those benefits. The Board affirmed. Before the Veterans Court, Viterna argued that Congress only gave the VA the power to assess whether a fee agreement was valid and if its terms were excessive or unreasonable—not whether the agreement covered the claim at issue.The Veterans Court and Federal Circuit disagreed. There was no qualifying agreement between Viterna and Pitts providing for payment of a fee for the claim in question. The court noted that between 1988-2006, attorneys could only charge fees for representing claimants after the Board’s “final decision.” In 2006, Congress amended 38 U.S.C. 5904, effective June 20th, 2007, to allow attorneys to charge for VA representation as soon as a claimant had filed a NOD seeking review of a regional office decision. View "Viterna v. McDonough" on Justia Law

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Cameron filed a Notice of Disagreement (NOD) on behalf of an Army veteran in August 2005. The VA denied Cameron attorney’s fees under 38 C.F.R. 14.636(c), which permits an attorney to charge fees for services provided before a final Board decision only where a NOD was filed on or after June 20, 2007. Before the law was amended, attorneys representing veterans in veterans’ benefits cases before the VA were prohibited from charging fees for services provided before a final Board decision.The Veterans Court and the Federal Circuit affirmed the denial, holding that section 14.636(c) is consistent with its authorizing statute, 38 U.S.C. 5904. Congress considered eliminating all fee restrictions under section 5904(c)(1) by repealing subsection (c)(1) entirely but made a legislative choice between the competing purposes of liberalizing the availability of attorney’s fees and avoiding disruption to the veterans’ benefits system, and “adopted a delayed and staggered effective date . . . [to] allow a deliberate and gradual implementation of these policies in order to minimize any disruption to the VA system.” In denying Cameron attorney’s fees, the VA has done no more than give effect to that legislative choice. View "Cameron v. McDonough" on Justia Law

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The Equal Access to Justice Act (EAJA), 28 U.S.C. 2412, requires that if statutory requirements are met, the federal government must reimburse attorneys’ fees of a party who prevails in a lawsuit against the government. Smith, dissatisfied with the VA’s decision regarding his claims for veterans’ benefits, took an appeal to the Veterans Court. He was successful on the merits in part of his case and requested an EAJA award for his appellate counsel. The Veterans Court agreed to an award which included fees for 18 hours the attorney spent on an initial review of the 9,389-page agency record. The court imposed a reduction in that part of the award because Smith prevailed on some but not all of the issues that were litigated. The Veterans Court reasoned that this reduction was required as a matter of law by the EAJA.The Federal Circuit reversed in part. The Veterans Court undervalued the importance of the initial review of the case, a review that is necessary before appellate counsel could determine what bases existed for an appeal. That decision was contrary to the purpose and law of the EAJA. The court noted that if Smith had brought only the successful claim, the hours would have been fully compensated. View "Smith v. McDonough" on Justia Law

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A military commission was convened to try al-Tamir, apprehended in Turkey in 2006 and held at Guantanamo Bay for seven years without charges, for war crimes. Captain Waits presided over al-Tamir’s commission for two and a half years. A DOJ prosecutor was the first attorney to speak on the record. Weeks later, Waits applied to be a DOJ immigration judge. In his applications, he identified the al-Tamir commission. He received no interviews. In 2017, Waits was hired by the Department of Defense's Navy Office of the Judge Advocate General Criminal Law Division, after again mentioning his role in the commission.In 2019, the D.C. Circuit held that a military judge’s application for an immigration judge position created an appearance of bias requiring recusal, Waits disclosed his employment applications to al-Tamir and the commission. Rubin and Libretto later served on al-Tamir’s commission, Blackwood was a civilian advisor for all three judges and applied for outside employment while assisting Rubin. Libretto denied al-Tamir's motions to dismiss based on Waits’s and Blackwood’s job applications and to disqualify Libretto based on Blackwood’s continued assistance. Libretto declared that he would reconsider any of Waits’s decisions that al-Tamir identifies. The Court of Military Commission Review upheld that decision. The D.C. Circuit denied mandamus relief. The government’s offer affords al-Tamir an “adequate means” to attain the relief he seeks; Blackwood’s job search did not “clear[ly] and indisputabl[y]” disqualify the judges he served. View "In re: al-Tamir" on Justia Law

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Graham served in the Marine Corps from 1967-1970 and has been receiving disability compensation benefits since 2001. The VA regional office (RO) informed Graham in 2009 that authorities had identified him as a fugitive felon and the subject of an outstanding warrant issued in 1992. That warrant was withdrawn in February 2009. In May 2009, the RO issued a rating decision that retroactively discontinued Graham’s compensation from December 2001 through February 2009, due to his then-fugitive felon status, and informed Graham that he had been improperly paid $199,158.70 and that his monthly compensation would be partially withheld to pay back the debt.Graham appointed Gumpenberger as his representative on appeal and signed a direct-pay agreement stating that Gumpenberger’s fee would be “20 percent of all past-due benefits awarded … as a result of winning … as provided in 38 C.F.R. 14.636.” In 2013, the Board reversed the RO’s debt ruling, finding that Graham was not a fugitive felon for VA purposes because he had never been aware of the outstanding warrant. The VA had recouped $65,464 from Graham’s monthly benefits. The Veterans Court and Federal Circuit affirmed the RO’s determination that Gumpenberger was entitled to a fee of $13,092.80. Although the total debt invalidated was $199,158.70, the past-due benefit, per 38 U.S.C. 5904(d)(1), being awarded was $65,464. View "Gumpenberger v. Wilkie" on Justia Law

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The Navy began a program to design and build littoral combat ships (LCS) and issued a request for proposals. During the initial phase of the LCS procurement, FastShip met with and discussed a potential hull design with government contractors subject to non-disclosure and confidentiality agreements. FastShip was not awarded a contract. FastShip filed an unsuccessful administrative claim, alleging patent infringement. The Claims Court found that the FastShip patents were valid and directly infringed by the government. The Federal Circuit affirmed.The Claims Court awarded FastShip attorney’s fees and expenses ($6,178,288.29); 28 U.S.C. 1498(a), which provides for a fee award to smaller entities that have prevailed on infringement claims, unless the government can show that its position was “substantially justified.” The court concluded that the government’s pre-litigation conduct and litigation positions were not “as a whole” substantially justified. It unreasonable for a government contractor to gather information from FastShip but not to include it as part of the team that was awarded the contract and the Navy took an exceedingly long time to act on FastShip’s administrative claim and did not provide sufficient analysis in denying the claim. The court found the government’s litigation positions unreasonable, including its arguments with respect to one document and its reliance on the testimony of its expert to prove obviousness despite his “extraordinary skill.” The Federal Circuit vacated. Reliance on this pre-litigation conduct in the fee analysis was an error. View "FastShip, LLC v. United States" on Justia Law

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Attorney Ravin represented veteran Cook on a claim for past-due disability benefits. Their agreement provided for a contingent fee and contemplated that VA would withhold the fee from any past-due benefits awarded and pay that amount directly to Ravin under 38 U.S.C. 5904(d)(3). Within days of executing that agreement, Ravin sent a copy to the Board of Veterans’ Appeals, where it was date-stamped on December 11, 2009. No copy of the agreement was submitted to the Regional Office (RO) “within 30 days of the date of execution,” as required by 38 C.F.R. 14.636(h)(4). The RO awarded Cook past-due benefits in April 2010. On April 13, 2010, the RO’s Attorney Fee Coordinator searched for any attorney fee agreement and determined that “no attorney fee decision is required” and “[a]ll retroactive benefits may be paid directly to the veteran.” The RO paid the past-due benefits to Cook. On April 27, 2010, Ravin mailed a copy of Cook’s direct-pay fee agreement to the RO. The RO informed Ravin that it had not withheld his attorney’s fees because the agreement was “not timely filed.”The Veterans Court and Federal Circuit affirmed the Board’s denial of Ravin’s claim. Section 5904(d)(3) does not mandate withholding and direct payment; 38 C.F.R. 14.636(h)(4)'s submission requirement is valid. Ravin’s fees have not been forfeited; he may use all available remedies to obtain them from Cook, per their agreement. View "Ravin v. Wilkie" on Justia Law

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Shealey served on active duty in Vietnam. He sought service connection for a cervical spine disability and major depressive disorder. The Board of Veterans’ Appeals held that Shealey was dishonorably discharged. Before Shealy filed his third motion for reconsideration, the Army Board for Correction of Military Records upgraded his discharge to “under honorable conditions.” The Board denied reconsideration. Shealey sought assistance from Veterans Legal Advocacy Group (VetLAG), a nonprofit law firm; VetLAG would not charge a fee and if the Veterans Court granted attorney’s fees, VetLAG could keep the full amount. Shealey agreed that VetLAG could apply for attorney’s fees and litigation expenses under the Equal Access to Justice Act, 28 U.S.C. 2412(d) (EAJA), and he would provide assistance. VetLAG represented Shealey before the Veterans Court for three months until a pre-briefing conference, where the government stated its intent to move for dismissal. The attorneys advised Shealey to file a new claim to reopen his case. Shealey disagreed, discharged them, and obtained new counsel. The court vacated the Board’s decision. The government did not dispute that Shealey was the “prevailing party” and did not oppose VetLAG's EAJA motion seeking $4,061.60. Shealey opposed the application. The court determined that VetLAG lacked standing. The Federal Circuit affirmed. Under EAJA’s plain text, the attorneys lack any substantive rights sufficient to confer standing. Affording standing to the attorneys over Shealey’s objections would contravene the policies on which the third-party standing doctrine is based. The fee agreement did not constitute an assignment. View "Shealey v. Wilkie" on Justia Law

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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