Justia Military Law Opinion Summaries

Before enactment of the 2008 Veterans’ Benefits Improvement Act, if a veteran seeking DVA benefits died while his claim was pending, the veteran’s survivor could not take the place of the veteran and continue prosecuting the claim. The survivor had to file a claim for accrued benefits, 38 U.S.C. 5121, proceeding from the beginning of the process, regardless of how far the veteran’s claim had progressed. The Act, 38 U.S.C. 5121A, authorizes eligible survivors to be “substituted as the claimant for the purposes of processing the claim to completion.” The Federal Circuit rejected a challenge to regulations intended to implement the Act, which require that a request to substitute be filed with the agency of original jurisdiction (DVA regional office) within one year of the claimant’s death; the prospective substitute is required to submit evidence of his eligibility to substitute; and, if the claimant died while his appeal was pending before the Board of Veterans’ Appeals, the Board must dismiss the appeal without prejudice so that the agency of original jurisdiction can address the substitution request. If the agency of original jurisdiction grants the request to substitute, then the case returns to the same place on the Board’s docket that it held at the time of the veteran’s death. View "Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs" on Justia Law

Cogburn served in the Army, 1968-1971, including 12 months in Vietnam. In 1974, Cogburn sought VA disability compensation and pension benefits based on a severe nervous condition. A 1975 denial of his pension claim did not address the disability claim. He did not appeal. In 1983, Cogburn again sought disability compensation and pension benefits. He was diagnosed with Post-PTSD after a VA examination that failed to connect Cogburn’s PTSD to stressors from military service; the VA granted a non-service connection pension but denied service connection. In 1985, the Board of Veterans’ Appeal concluded that the record did not identify any in-service traumatic events, noting that Cogburn repeatedly failed to attend VA examinations to determine if service-connected stressors caused his PTSD. The Board determined that “the preponderance of the medical evidence suggests that the veteran’s post service emotional and adjustment difficulties are manifestations of schizophrenia.” There was no opportunity for further review. In 2002, Cogburn claimed that his 1974 disability compensation claim was never adjudicated. The RO determined that the claim was adjudicated as a claim for PTSD and had been implicitly denied in the 1985 decision. In 2012, on remand, the Board affirmed the finding of implicit denial. The Veterans Court and Federal Circuit affirmed; the implicit denial rule applies to both formal and informal claims. Its use does not violate the VA due process regulation's notice provision.. View "Cogburn v. McDonald" on Justia Law

Petty Officer Walter Jackson filed suit claiming that the Board's denial of his request to correct his navy record violated the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq.; the Due Process Clause; and equitable principles. A recommendation against re-enlistment stemmed from Jackson’s unauthorized absence from his naval base, a subsequent disciplinary infraction, and two adverse performance evaluations. The court applied a deferential standard of review and concluded that, given Jackson’s infractions in the Navy, the Board reasonably denied Jackson’s requests for record correction. The court rejected Jackson's remaining contentions and affirmed the judgment. View "Jackson, Jr. v. Mabus, Jr." on Justia Law

Dean, a preference-eligible veteran, applied for a position as a “Recent Graduate” Wage and Hour Specialist within the Department of Labor. The announcement stated that the position “is a part of the Pathways Employment Program,” open only to “[e]ligible recent graduates from qualifying educational institutions” and separately identified job qualifications (which did not include a minimum educational requirement) and program eligibility, which required a “degree or certificate from a qualifying educational institution within the previous two years,” or previous six years for certain veterans; 34 veterans met the requirements. Dean was not considered because he had not graduated within the timeframe. Dean filed an unsuccessful Veterans Employment Opportunities Act (VEOA) appeal. The Board cited 5 U.S.C. 3302(1), authorizing the President to except positions from the competitive service, and 5 U.S.C. 3308, limiting OPM’s ability to include minimum educational requirements for positions in the competitive service that are subject to examination. The Federal Circuit affirmed, finding that that the Board had jurisdiction under section 3330a of the VEOA because sections 3302(1) and 3308 are statutes relating to veterans’ preference, and that Dean’s veterans’ preference rights under those sections were not violated. View "Dean v. Dep't of Labor" on Justia Law

Mulder served in the Army for three separate periods between 1982 and 1994, accumulating about two years of honorable service. In 1998, the VA assigned Mulder a 50% disability rating for two service-connected conditions. Mulder was arrested and charged with felonies. Because Mulder was unable to post bail on July 11, 2005, he remained in custody pending trial. On May 19, 2006, Mulder pleaded no contest and a conviction was entered. On June 16, 2006, the court ordered that Mulder serve an initial term of confinement of eight years, six months, followed by six years of supervised release, with credit for the 384 days he had been in custody, specifying May 19, 2006, as the “Date(s) Convicted.” The VA must reduce benefits payments if the recipient is incarcerated for a period in excess of 60 days for conviction of a felony, 38 U.S.C. 5313(a)(1), beginning on the sixty-first day of such incarceration. In July 2007, the VA notified Mulder that his felony conviction and resulting incarceration required it to reduce his disability compensation, effective July 19, 2006. The Board, the Veterans Court, and the Federal Circuit agreed with the VA’s use of the date of the plea and conviction in calculating the reduction. View "Mulder v. McDonald" on Justia Law

Slusher, an orthopedic surgeon and military reservist, worked at Heritage, a small hospital in Shelbyville, Tennessee, through a staffing service, on 30-day assignments beginning on July 20, 2010. Slusher was offered, but did not accept, a permanent position. He agreed to a one-year contract in January 2011, which could be terminated by either party for any reason upon 90 days’ notice or by Heritage, effective immediately, with 90 days’ pay instead of notice. It did not provide for renewal or extension. Heritage knew that he could be called up for deployment. On May 4, 2011, Slusher received orders. Before Slusher’s deployment, Heritage informed him that it had interviewed another physician for the orthopedic surgeon position. Heritage granted Slusher military leave. He reported for active duty on June 10. While he was in Iraq, Heritage informed Slusher that it was nearing a contract with Mosley. Slusher later signed a termination agreement, specifying that his employment would end on October 26. Slusher returned to Heritage, where Mosley had begun working, on October 3, and worked there until October 26, 2011. Slusher filed a complaint with the Veterans’ Employment and Training Service. After the Department of Labor closed its investigation, Slusher filed suit, claiming discrimination under and violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301-35 and breach of contract. The Sixth Circuit affirmed summary judgment in favor of the defendants on each claim. View "Slusher v. Shelbyville Hosp. Corp." on Justia Law

The National Federation of Federal Employees Local 1442 filed a group grievance on behalf of 138 NFFE bargaining unit employees at Letterkenny Army Depot (LEAD); Local 2109 filed two grievances on behalf of all of bargaining unit employees at Watervliet Arsenal (WVA). In both grievances, the Union challenged the furloughing of bargaining unit employees for six discontinuous days between July and September in Fiscal Year 2013. The furloughs were the result of an automatic process of federal agency spending reductions called “sequestration.” Arbitrator Kaplan ruled that the furloughs of the employees at LEAD were in accordance with law. Months later, Arbitrator Gross ruled that the furloughs of WVA security employees were not in accordance with law, but that the furloughs of non-security bargaining unit employees at WVA were in accordance with law. The Federal Circuit upheld both decisions. Arbitrators Kaplan and Gross had substantial evidence before them demonstrating that the furlough decisions were reasonable management solutions to the financial restrictions placed on DOD by the sequester, thus promoting the efficiency of the service. View "Nat'l Fed'n of Fed. Employees v. Dep't of the Army" on Justia Law

Arroyo worked as a Volvo material handler, 2005-2011. Arroyo was a member of the U.S. Army Reserve. She deployed twice to Iraq and Kuwait: 2006-2007 and 2009-2010 and took leave for training and other military activities. She received more than 900 days of military leave from Volvo. There is evidence, including internal emails, suggesting that her supervisors were frustrated from the beginning about her absences. After her 2009-2010 deployment Arroyo declined a voluntary severance package and returned to work. Arroyo was diagnosed with PTSD. Arroyo took three months FMLA and disability leave. Volvo granted accommodations, including: a quiet place to meditate; a mentor; time off for counseling; and breaks and support during anxiety attacks. Other requested accommodations—a more flexible schedule, use of earplugs or headphones in both ears, day-to-day guidance, putting all communications in writing, and disability awareness training—were under review when she was terminated for violation of Volvo’s attendance policy. The district court rejected her claims for discrimination, retaliation, and failure to provide reasonable accommodations in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301, the Americans with Disabilities Act, 42 U.S.C. 12101, the Rehabilitation Act, 29 U.S.C. 791 , and Title VII of the Civil Rights Act, 42 U.S.C. 2000e. The Seventh Circuit reversed with respect to discrimination claims under USERRA and the ADA, stating that Arroyo raised genuine, material factual issues. View "Arroyo v. Volvo Grp. N. Am., LLC" on Justia Law

The Department of the Navy furloughed Einboden, a civilian employee for six days in 2013 as part of budget cuts made pursuant to sequestration legislation, 2 U.S.C. 901a. Einboden argued that his position was not subject to the cuts because money saved by the furlough could have been transferred from the Navy working capital fund to other activities with appropriate notice to the congressional defense committees. An AJ and the Merit Systems Protection Board upheld the decision, finding that the furlough was a “reasonable management solution to the financial issues facing the agency,” that notice of proposed furlough was not procedurally deficient, and that “although [Einboden’s work group] may have had adequate funding to avoid a furlough . . . , it was reasonable for DOD to consider its budget holistically, rather than isolating the situation of each individual Navy.” The Federal Circuit affirmed, rejecting Einboden’s contention that the Navy should be required to show actual re-programming of the funds saved by his furlough. View "Einboden v. Dep't of the Navy" on Justia Law

Mother Mari M. appealed a juvenile court order that her son M.M., born June 2013, was a child described by Welfare and Institutions Code section 300, subdivision (a). The San Diego County Health and Human Services Agency received a report of severe domestic violence between mother and Rogers M., minor's father, which had taken place on December 2, 2014 and which had been witnessed by minor. The domestic violence included father choking mother while holding minor; father throwing mother into a piano, a table and onto the floor while minor was "at their feet"; father pinning mother on the floor at least two times; father breaking mother's phone; and mother hitting and kicking father and shredding his shirt among other allegations. The December 2 domestic violence incident came to light two days later when Mother contacted father's naval command and sought a military protective order (MPO). Mother contended the juvenile court erred when it: (1) assumed permanent jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act after officials and a supreme court judge from minor's "home state" of Japan unambiguously and repeatedly stated it was inappropriate under their legal system for a Japanese court to communicate with the juvenile court regarding this case; (2) failed to advise her that she could commence a separate custody action in Japan; and (3) found minor a dependent under subdivision (a) of Welfare and Institutions Code section 300, rather than under subdivision (b) of that statute. Finding no reversible error, the Court of Appeal affirmed. View "In re M.M." on Justia Law