Justia Military Law Opinion Summaries

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 That warrant was withdrawn in February 2009.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

The Commission alleged that the Army violated the Randolph-Sheppard Act by failing to give priority to blind vendors in the bidding process for a vending facility services contract at an Army base cafeteria. After the arbitration panel found in favor of the Army, the Commission appealed the panel's decision.The Fifth Circuit affirmed the district court's grant of summary judgment in favor of the Commission. The court held that the statutory language is ambiguous; applied the presumption against ineffectiveness; supported a broader interpretation of "operate" in the context in which it is used within the Act; and held that the district court did not err in holding that the Act may apply to Dining Facility Attendant (DFA) contracts generally. In this case, the DFA contract at issue is subject to the Act and the Army violated the Act by not giving the Commission priority in the bidding process. View "Texas Workforce Commission v. United States Department of Education" on Justia Law

Garvey served in the Army, 1966-1970. While posted in Germany, Garvey was punished for “disorderly conduct.” Garvey was posted to Vietnam, where he was convicted by special courts-martial of possessing four pounds of cannabis with intent to sell and of being absent without leave three times. Garvey was discharged as unfit for service with an “Undesirable Discharge.” He waived consideration of his case before a board of officers and acknowledged that he “may be ineligible for many or all benefits as a veteran.” In 1977, under the Special Discharge Review Program for Vietnam-era service members, Garvey’s discharge status was upgraded to “Under Honorable Conditions (General).” In 1978, a Discharge Review Board found that Garvey would not have been entitled to an upgrade under generally applicable standards. Garvey died in 2010.His widow applied for dependency and indemnity compensation and death pension benefits. The Veterans Court and Federal Circuit affirmed the denial of her claim; 38 C.F.R. 3.12(d)(4) is not contrary to 38 U.S.C. 5303, which is not the exclusive test for benefits eligibility. A former service member is ineligible for benefits unless he is a “veteran.” Under 38 U.S.C. 101(2), to be a veteran, a former service member must have been discharged “under conditions other than dishonorable.”The VA was authorized to define a discharge for willful and persistent misconduct as a discharge under “dishonorable conditions.” View "Garvey v. Wilkie" on Justia Law

Burkhart is the widow of U.S. Army veteran David, who served honorably in the Korean War. He had no service-connected disabilities. In the late 1990s, he was admitted to a VA nursing facility, where he died. Burkhart filed a claim for dependency and indemnity compensation (DIC) benefits under 38 U.S.C. 1151, which provides for compensation related to the death or injury of a veteran in certain circumstances while the veteran was under VA care “as if such additional disability or death were service-connected.” Having determined that David’s death was due to an event “not reasonably foreseeable,” the VA granted DIC benefits.In 2007, Burkhart obtained a certificate of eligibility (COE) for home loan guaranty benefits available under chapter 37 but never finalized a loan. In 2013, she requested a new COE for a guaranty. The VA determined that she was ineligible. The Board of Veterans’ Appeals found that home loan guaranty benefits are available only to “the surviving spouse of any veteran . . . who died from a service-connected disability,” 38 U.S.C. 3701(b)(2). The Veterans Court affirmed, requesting requests for equitable relief. The Veterans Court reasoned that an “incontestability provision” (section 3721) gives only lenders receive the privilege of estoppel with respect to COEs. The Federal Circuit affirmed. Burkhart is not eligible for home loan guaranty benefits under any of the cited statutes and the Veterans Court lacked the power to grant her equitable relief. View "Burkhart v. Wilkie" on Justia Law

Lang served in the Marine Corps in 1966-1968 and was badly injured in Vietnam. Lang sought psychiatric treatment at the Pittsburgh VA Medical Center. In 1995, an examiner explained: [T]he Veteran from a physical standpoint is permanently and totally disabled from any type of gainful employment [and] is also socially handicapped to a severe degree . . . . He has a very severe form of PTSD that he has treated himself with alcohol abuse... not to mention the horrendous physical deformities. Lang was granted a 10% disability rating in 1996. Lang did not appeal but continued to receive treatment.In 2014, Lang moved to revise the 1996 rating, citing clear and unmistakable error (CUE). The Veterans Court affirmed the denial of Lang’s request for an adjustment, stating that Lang failed to prove that the “VA had sufficient knowledge of the VA treatment records . . . to trigger the Board’s duty to make the requested findings.” The Federal Circuit vacated. Lang’s post-decision medical records were constructively received by the VA adjudicator before the expiration of the one-year appeal period. A claim remains open until the VA determines whether post-decision evidence received within the one-year appeal period is “new and material.” The Board made no such determination as to Lang’s post-decision medical records, so the 1996 rating decision was not final and a CUE analysis was not required. View "Lang v. Wilkie" on Justia Law

Plaintiffs filed suit against the Government, alleging that the male-only military draft unlawfully discriminates based on sex. The Military Selective Service Act requires essentially all male citizens and immigrants between the ages of eighteen and twenty-six to register with the Selective Service System. The district court granted plaintiffs declaratory judgment and held that requiring only men to register for the draft violated their Fifth Amendment rights.The Fifth Circuit reversed, holding that the district court's judgment directly contradicts the Supreme Court's holding in Rostker v. Goldberg, 453 U.S. 57, 78–79 (1981). In Rostker, the Supreme Court held that the male-only Selective Service registration requirement did not offend due process where women at the time were barred from combat. The court explained that here, as in State Oil Co. v. Khan, 522 U.S. 3, 22 (1997), the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent. Accordingly, the court dismissed the case. View "National Coalition for Men v. Selective Service System" on Justia Law

After the U.S. invasion of Iraq, Agility was awarded a contract for support of staging area operations (PCO Contract). Under the Contract, the Coalition Provisional Authority (CPA) could issue individual task orders to Agility. Funds obligated under the contract were sourced from the Development Fund for Iraq (DFI). The CPA controlled the DFI, which consisted of Iraqi money. The Contract provided that “[n]o funds, appropriated or other, of any Coalition country are or will be obligated under this contract” and recognize[d] that a transfer of authority from the CPA to the interim Iraqi Governing Council (IIG) would occur in June 2004. The contracting parties were the CPA and Agility. The Contract expressly preserved the right of the United States to assert claims against Agility. A Contract amendment provided that any claim Agility had after the transfer to IIG could not be brought before the Armed Services Board of Contract Appeals but could only be brought in an Iraqi court. The U.S. Army was designated as the administrator of the PCO contract.In 2010, following an audit of the PCO Contract, the Army contracting officer sent demand letters for overpayments allegedly made under 12 task orders. The Claims Court upheld the offsets, holding that the United States (rather than Iraq) was owed the alleged overpayment and the United States was authorized to offset the alleged overpayment. The Federal Circuit in part and vacated in part. The Claims Court did not evaluate the merits of the offset determination nor the procedures required by law. View "Agility Public Warehousing Co. v. United States" on Justia Law

Kisor served in the Marine Corps, 1962-1966. In 1982, he sought disability compensation benefits for PTSD. A 1983 psychiatric examination noted Kisor's combat experiences in Vietnam. The examiner expressed his “distinct impression” that Kisor suffered from “a personality disorder as opposed to PTSD,” which cannot be a basis for service connection. Kisor did not pursue an appeal. In 2006, Kisor submitted a request to reopen and presented a 2007 report of a psychiatric evaluation diagnosing PTSD. He was granted a 50% rating. The Veterans Court and Federal Circuit affirmed that Kisor was not entitled to an effective date earlier than 2006.On remand from the Supreme Court, the Federal Circuit again affirmed. In the setting of 38 C.F.R. 3.156(c)(1), for purposes of reconsideration of the 1983 denial, the term “relevant” is not “genuinely ambiguous” and “Auer deference” is not appropriate. In the context of section 3.156(c)(1), “relevant” has only “one reasonable meaning.” As the Board determined, under the regulation, to be “relevant,” a record must speak to a matter in dispute. Service department records received in 2006 and 2007 were not “relevant” under the regulation because they did not pertain to the basis of the 1983 denial of Kisor’s claim, which was the lack of a diagnosis of PTSD. View "Kisor v. Wilkie" on Justia Law

Al Bahlul, a Yemeni national, was Osama bin Laden’s head of propaganda at the time of the September 11 attacks. After he was captured in Pakistan, Al Bahlul was convicted by a military commission in Guantanamo Bay of conspiracy to commit war crimes, providing material support for terrorism, and soliciting others to commit war crimes. The D.C. Circuit vacated two of his three convictions on ex post facto grounds. On remand, the Court of Military Commission Review, without remanding to the military commission, reaffirmed Al Bahlul's life sentence for the conspiracy conviction.The D.C. Circuit reversed and remanded. The CMCR failed to apply the correct harmless error standard, In reevaluating Al Bahlul’s sentence, the CMCR should have asked whether it was beyond a reasonable doubt that the military commission would have imposed the same sentence for conspiracy alone. The court rejected Al Bahlul’s remaining arguments. The appointment of the Convening Authority was lawful; there is no reason to unsettle Al Bahlul I’s ex post facto ruling, and the court lacked jurisdiction in an appeal from the CMCR to entertain challenges to the conditions of Al Bahlul’s ongoing confinement. View "Al Bahlul v. United States" on Justia Law

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