Justia Military Law Opinion Summaries

The Veterans Benefits, Health Care, and Information Technology Act requires the Secretary of Veterans Affairs to set annual goals for contracting with service-disabled and other veteran-owned small businesses, 38 U.S.C. 8127(a). The “Rule of Two” provides that a contracting officer “shall award contracts” by restricting competition to veteran-owned small businesses if the officer reasonably expects that at least two such businesses will submit offers and that “the award can be made at a fair and reasonable price.” A contracting officer “may” use noncompetitive and sole-source contracts for contracts below specific dollar amounts. In 2012, the Department used the Federal Supply Schedule (FSS), a streamlined method for acquisition of goods and services under prenegotiated terms, to procure medical center Emergency Notification Services from a non-veteran-owned business. The agreement ended in 2013. A service-disabled-veteran-owned small business filed a Government Accountability Office (GAO) bid protest, alleging that the Department procured multiple contracts through the FSS without employing the Rule of Two. The GAO determined that the Department’s actions were unlawful. The Department declined to follow the GAO’s nonbinding recommendation. The Federal Circuit held that the Department was only required to apply the Rule when necessary to satisfy its annual goals. The Supreme Court reversed, first holding that it had jurisdiction because the controversy is “capable of repetition, yet evading review.” Section 8127(d)’s contracting procedures are mandatory and apply to all of the Department’s contracting determinations. An FSS order is a “contract” within the ordinary meaning of that term and does not fall outside Section 8127(d). The Court rejected an argument that the Rule of Two will hamper mundane Government purchases as misapprehending current FSS practices, which have expanded beyond simple procurement to contracts concerning complex services over a multiyear period. View "Kingdomware Techs., Inc. v. United States" on Justia Law

Gourzong, a native of Jamaica, was admitted to the U.S. as a lawful permanent resident in 1983. In 1993, having joined the U.S. military, he was convicted by a special court-martial at Camp Pendelton of willfully disobeying a lawful order, 10 U.S.C. 890(2), and “commit[ing] an act of sexual intercourse with a female not his wife who has not attained the age of sixteen years,” 10 U.S.C. 920. Gourzong was represented by counsel and pleaded guilty. He received a sentence of six months confinement, loss of pay, and bad-conduct discharge. The convening authority suspended part of the confinement and withheld executing the bad-conduct discharge until after appellate review procedures, 10 U.S.C. 871(c). An IJ found Gourzong removable, 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of an aggravated felony. The BIA affirmed, rejecting his argument that convictions by special courts-martial categorically fall outside the definition in 8 U.S.C. 1101(a)(48)(A): “‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court.” Although it is possible that a special court-martial can convene without a legally trained judge presiding, their convictions generally qualify as convictions under the Act. The Third Circuit agreed and, therefore, concluded that it lacked jurisdiction to consider Gourzong’s appeal. View "Gourzong v. Att'y Gen. of the United States" on Justia Law

Petitioner moved for one of the three judges of the U.S. Court of Military Commission Review, Judge William B. Pollard III, to disqualify himself. Judge Pollard is a civilian who serves as a part-time judge on the court. He also maintains a private law practice. Petitioner contends that this arrangement is unlawful and requires Judge Pollard’s disqualification. Petitioner seeks a writ of mandamus ordering Judge Pollard's disqualification. Petitioner argued that Judge Pollard’s disqualification is compelled by the Rules of Practice of the U.S. Court of Military Commission Review; petitioner raises another related argument under the appearance of impartiality standard incorporated into the Rules of Practice; Judge Pollard must disqualify himself because the Judge’s part-time private practice of law violates 18 U.S.C. 203(a), a criminal statute; and Judge Pollard has violated 28 U.S.C. 454, which states that any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor. Although the court concluded that petitioner's arguments carry some force, he has not shown a "clear and indisputable" right to relief at this time. Therefore, the court denied the petition. The court noted that if the U.S. Court of Military Commission Review decides against petitioner in his pending appeal, he may renew his arguments about Judge Pollard on direct appeal to this court. View "In re: Omar Khadr" on Justia Law

Hudgens injured his right knee while serving on active duty in the U.S. Army. In 2003, Hudgens had partial knee replacement surgery; in 2006, he sought VA benefits. The Board of Veterans’ Appeals denied him a disability rating of greater than 10 percent for degenerative joint disease in the right knee and denied him entitlement to a compensable disability rating for instability in the right knee for a prior time period. The Veterans Court vacated those decisions; held that Hudgens was not entitled to compensation for his prosthetic knee replacement under 38 C.F.R. 4.71a, Diagnostic Code 5055; and remanded for determination of whether his knee replacement could be rated by analogy to that code. The Federal Circuit reversed, holding that Hudgens may be compensated under DC 5055 based on his partial knee replacement. Hudgens’s interpretation of DC 5055 is consistent with the beneficence inherent in the veterans’ benefits scheme and with the majority of Board decisions that have interpreted the regulation. View "Hudgens v. McDonald" on Justia Law

The Navy's Diego Garcia facility, a 10.5-square-acre Indian Ocean atoll, 1,800 miles east of Africa and 1,200 miles south of India, had no commercial or civilian infrastructure. In 2005, the Navy sought bids on a firm fixed-price contract for Diego Garcia support services, ranging from information technology to refuse collection. For contractor vehicles and equipment, “contractor-furnished fuel,” was to be provided by the Navy at the prevailing Department of Defense rate. DG21 submitted a bid and, for contractor-furnished fuel, arrived at “a significantly lower number of gallons than” reflected in the solicitation. DG21 indicated that if fuel rates varied from historical rates by 10% or more, it would request an equitable adjustment. The Navy clarified that the solicitation was fixed-price, “DG21 assumes the full risk of consumption and/or rate changes. Please price ... accordingly.” The Navy questioned the lack of an escalation clause. DG21 did not change its estimate or pricing, but removed the equitable adjustment reference. DG21’s $455,292,490 proposal was accepted. During the contract term, fuel prices rose dramatically, reaching a maximum of more than double the historical rate indicated in the solicitation. In 2011, DG21 requested an equitable adjustment, characterizing the fuel cost as a $1,171,475.90 contract “change” under FAR 52.243-4. The contracting officer and the Board of Contract Appeals rejected the request. The Federal Circuit affirmed. The cost increase was not a change to the contract triggering FAR 52.243-4; the contract allocated that risk to DG21. View "DG21, LLC v. Mabus" on Justia Law

Davis and his wife purchased a Philadelphia rental property in 1997 1997. A longtime member of the U.S. Army Reserve, Davis was called to active duty in 2004. A few months later, the Davises transferred the property to Global LLC, owned and managed by Davis, to “insulate themselves from liability” because “his wife was unable to manage the property.” In 2009, Davis and Global asked the Philadelphia Department of Revenue to reduce Global’s property tax debt, citing the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. 3901, which limits interest imposed on a servicemember’s delinquent property taxes during active duty to a rate of six percent and forbids additional penalties. The Department denied this request, stating that the SCRA does not apply to a business owned by a servicemember and that Davis should file an abatement petition with the Philadelphia Tax Review Board. The Review Board denied that petition. Two years later the city initiated foreclosure proceedings; the state court entered judgment in the city’s favor. Davis and Global filed suit under 42 U.S.C. 1983. The Third Circuit affirmed dismissal. SCRA extends only to servicemembers; a corporation is not a “servicemember” under the statute. View "Davis v. City of Philadelphia" on Justia Law

Sneed, who served on active duty 1964-1968, suffered service-connected disabilities. In 2001, Sneed suffered a spinal cord contusion from a fall, leaving him quadriplegic. In 2003, he died of smoke inhalation while living in a home for paralyzed veterans. His widow sought dependency and indemnity compensation, 38 U.S.C. 1310, alleging that Sneed’s service-connected spondylosis and spinal stenosis contributed to quadriplegia and that his service-connected PTSD and hearing loss prevented him from exiting during the fire. The Board of Veterans’ Appeals affirmed denial,mailing notice on April 5. Sneed’s notice of appeal was due 120 days after that mailing. On April 13, Sneed contacted attorney Eagle, requesting representation. According to Sneed, at the request of Eagle’s secretary, she transmitted case materials to and had oral communications with that office. On August 2, Sneed received a letter from Eagle, stating that the claim “does not meet the criteria,” declining representation, and stating that notice of appeal was due "no later than August 5.” The correct deadline was August 3. Several lawyers declined her case. Sneed filed notice on September 1, explaining her circumstances. The Veterans Court dismissed the appeal as untimely. On remand, Sneed argued attorney abandonment, warranting equitable tolling. The Veterans Court held, and the Federal Circuit affirmed, that equitable tolling was not warranted absent an agreement between Eagle and Sneed and that Sneed did not act diligently. View "Sneed v. McDonald" on Justia Law

Phillip Ramirez, a member of the New Mexico Army National Guard, was employed by the New Mexico Children, Youth and Families Department (CYFD). In July 2005, Ramirez was ordered to federal active duty and deployed to Iraq. After Ramirez returned to work in New Mexico, CYFD terminated his employment. Ramirez sued CYFD, asserting a Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) claim. A jury found in his favor and awarded Ramirez monetary damages. The Court of Appeals reversed the damages award, concluding that CYFD as an arm of the State was immune to Ramirez’s USERRA claim. After review of that decision, the New Mexico Supreme Court disagreed: by enacting NMSA 1978, Section 20-4-7.1(B) (2004), the Legislature specifically extended “[t]he rights, benefits and protections” of USERRA to members of the New Mexico National Guard who were ordered to federal or state active duty for a period of thirty or more consecutive days. In so doing, the Legislature consented to suits brought against state employers who violate the protections guaranteed by USERRA. View "Ramirez v. CYFD" on Justia Law

Miller served on active duty, 2003-2007, and has a VA disability rating of 60 percent. Since 2008, Miller has been employed as an FDIC Economic Analyst. He was hired at the GS-9 level and has risen to the GS-12 level. In 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position: one open to all citizens and another for status candidates. Miller applied under both procedures and was one of three finalists. Three FDIC employees participated in the interviews, rating each candidate’s answers to questions on bank failure prediction models as Outstanding, Good, or Inadequate. All of the candidates received some "inadequate" ratings. No candidate was selected; the vacancy was cancelled. Miller filed a Department of Labor complaint, stating that the cancellation was in bad faith to avoid hiring a veteran or having to request a “pass over” from the Office of Personnel Management. The Merit Systems Protection Board denied his petition under the Veterans Employment Opportunities Act, finding that the allegation of non-selection in violation of veterans’ rights was sufficient to confer jurisdiction, but that Miller had not established a violation because the FDIC “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” The Federal Circuit affirmed; substantial evidence indicated that cancellation was predicated on a lack of appropriately qualified candidates. View "Miller v. Fed. Deposit Ins. Corp." on Justia Law

Veterans’ Groups challenged regulations issued in 2014 by the Department of Veterans Affairs pursuant to its notice-and-comment rulemaking authority. The Final Rule amended the VA’s adjudication and appellate regulations to require that all claims for compensation “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty . . . during a period of war” and related appeals originate on standard VA forms. The VA’s prior regulation provided that “[a]ny communication or action, indicating an intent to apply for . . . benefits[,] . . . may be considered an informal claim,” 38 C.F.R. 3.155(a). The Federal Circuit denied the petitions and found the Final Rule valid because it accords with applicable rulemaking procedures and is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The Rule does not contravene Congress’s mandate that the VA has a duty to develop veterans’ claims. View "Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs" on Justia Law