Justia Military Law Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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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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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

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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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Following a 2019 Federal Circuit decision and enactment of the Blue Water Navy Vietnam Veterans Act of 2019 133 Stat. 966, the petitioners, who served on open sea ships off the Vietnamese shore during the Vietnam War believed that they may be entitled to a presumption of service connection for diseases covered by 38 U.S.C. 1116. The Secretary of Veterans Affairs stayed pending disability compensation claims until January 1, 2020. Petitioners assert that many Blue Water Veterans are dying and filed a petition for expedited review under 38 U.S.C. 502 challenging the Secretary’s authority to stay pending disability compensation claims. The Federal Circuit denied the petition. The court concluded that it had jurisdiction 5 U.S.C. 552(a)(1)(D) because the Secretary’s memorandum amounts to an “interpretation[] of general applicability formulated and adopted by the agency.” The Act unambiguously authorizes the Secretary to stay disability compensation claims described in section 2(c)(3)(B) of the Act “until the date on which the Secretary commences the implementation of [] section 1116A,” 133 Stat. at 968. View "Procopio v. Secretary of Veterans Affairs" on Justia Law

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McCord injured his back while serving in the Army and was discharged with a 20% disability rating. Because his rating was below 30% and he served for less than 20 years, McCord received severance pay instead of ongoing military retirement pay and received monthly VA benefits. The Army Board for Correction of Military Records later corrected his record to reflect a 30% disability rating and entitlement to medical retirement pay, rather than severance pay. McCord later challenged the government’s calculation of his entitlement to military retirement back pay and its claimed right to recover the severance pay and requested damages for medical expenses that he incurred because he was not afforded TRICARE coverage before the correction. The Claims Court rejected McCord’s approach to back pay calculation as “double-dipping,” denied relief regarding the recoupment of severance pay “as not ripe,” and held that McCord failed to exhaust administrative procedures for securing TRICARE benefits. The Federal Circuit affirmed except as to the out-of-pocket medical expenses. The court cited 10 U.S.C. 1201, 1203, 1212(d)(a), and 2774, as defining entitlement to retirement pay or severance pay, VA benefits, and the circumstances for recoupment of severance pay. A veteran receiving VA benefits may face a disadvantage if he also secures an award of military retirement pay because he would not be entitled to severance pay but military retirement pay includes TRICARE coverage. View "McCord v. United States" on Justia Law

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McGuffin began his employment with SSA as a preference-eligible veteran, entitled to receive CSRA (Civil Service Reform Act, 92. Stat. 1111) protections after one year. During his first months, McGuffin had a low case completion rate and had cases that were past the seven-day benchmark. He requested training; SSA sent him to a training course. SSA was apparently otherwise satisfied with his work. About eight months after his hiring, SSA began to consider terminating McGuffin. It was noted that, as a preference-eligible veteran in the excepted service, McGuffin would acquire procedural and appellate rights after completing one year of service, so that “McGuffin must be terminated prior to the end of his first year” while another employee could be terminated "within her 2-year trial work period.” Although his work improved, four days before attaining full employee status, SSA terminated McGuffin for failure to “satisfactorily perform the duties” of the attorney advisor position. In a case under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301–35, which prohibits discrimination based on military service, the Federal Circuit reversed the Merit Systems Protection Board. SSA closed the door on McGuffin before the end of his first year to avoid the inconvenience of defending itself should McGuffin assert his procedural CRSA safeguards. McGuffin’s preference-eligible veteran status was a substantial factor in SSA’s termination decision. McGuffin was not performing so poorly as to justify the rush to remove him. View "McGuffin v. Social Security Administration" on Justia Law

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Montelongo was a West Point student cadet, 1973-1977, then served in the Army 1977-1996, from which he retired. From June 21, 2001, to March 28, 2005, Montelongo served as a civilian presidential appointee in the Air Force. An Air Force human resources officer advised Montelongo that his time as a cadet could be “bought back” and credited toward an eventual civil service annuity under the Federal Employees Retirement System (FERS), 5 U.S.C. 8401–8479. Montelongo made the small payment to “buy back” his four years at West Point and, in 2017, applied for a FERS annuity. The Office of Personnel Management and the Merit Systems Protection Board concluded, and the Federal Circuit affirmed, that only his time as a presidential appointee (just under four years) counted as creditable civilian service. Montelongo did not satisfy the five-year threshold requirement for a FERS annuity. Montelongo’s cadet time was “military service” that was creditable service under 5 U.S.C. 8411(c)(1) but was not “civilian service” for which section 8410 sets a five-year minimum for annuity qualification. View "Montelongo v. Office of Personnel Management" on Justia Law