Articles Posted in Military Law

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Saunders served on active duty in the Army, 1987-1994. Saunders did not previously experience knee problems but, during her service, sought treatment for knee pain and was diagnosed with patellofemoral pain syndrome (PFPS). Saunders’s exit examination reflected normal lower extremities but noted Saunders’s history of knee swelling. The VA denied Saunders’s 1994 claim for disability compensation because she failed to report for a medical examination. In 2008, Saunders filed a new claim, which was denied. In 2011, a VA examiner noted that Saunders reported bilateral knee pain while running, squatting, bending, and climbing but had no anatomic abnormality, weakness, or reduced range of motion. Saunders had functional limitations on walking, was unable to stand for more than a few minutes, and sometimes required a cane or brace. The examiner concluded that Saunders’s knee condition was at least as likely as not caused by, or a result of, Saunders’s military service but stated there was no pathology to render a diagnosis. The Board of Veterans’ Appeals and Veterans Court rejected her claim under 38 U.S.C. 1110. The Federal Circuit reversed; “disability” in section 1110 refers to the functional impairment of earning capacity, not the underlying cause, which need not be diagnosed. Pain alone can serve as a functional impairment and qualify as a disability, no matter the underlying cause. View "Saunders v. Wilkie" on Justia Law

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From 1968-1991, Lledo was employed at the Subic Bay, Philippines U.S. Navy Public Works Center, initially as an Apprentice (electrician) “excepted service – indefinite appointment.” Lledo resigned with the designated severance pay in 1991, having worked in various positions, finally as a Telephone Installation and Repair Foreman. In 2014, Lledo applied for deferred retirement benefits under the Civil Service Retirement System (CSRS) and requested to make a post-employment deposit into the Civil Service Retirement and Disability Fund (CSRDF). The Office of Personnel Management denied the requests. The Merit Systems Protection Board affirmed, stating that all of Lledo’s appointments, including his final position, were either not-to-exceed appointments or indefinite appointments in the excepted service; “[w]hile [Lledo] has shown that he had sufficient creditable federal service, he has failed to show that any of that service was performed in a position covered under the [Act].” The Federal Circuit affirmed. Under 5 U.S.C. 8333(a)–(b), to qualify for a CSRS retirement annuity, an employee must have performed at least five years of creditable civilian service, and must have served at least one of his last two years of federal service in a covered position, subject to the Act. Temporary, intermittent, term, and excepted indefinite appointments are not covered positions; substantial evidence supports the conclusion that Lledo’s service was excluded from CSRDF coverage. View "Lledo v. Office of Personnel Management" on Justia Law

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Holton supervised a Portsmouth Naval Shipyard crane team that was moving submarine covers. Each unit weighed roughly 60,000 pounds. Holton briefed the crew and gave control over the crane to the authorized rigger, then left the crane to supervise preparation of the landing area. From this position, Holton could not see the crane’s boom. Holton’s crew had previously performed the operation, which involved a tight curve, without incident. The crane traveled too far on the inside of the curve; its boom struck Building 343, causing $30,000 in damage. Shipyard Instructions allow drug testing of employees after an accident causing damage in excess of $10,000, when “their actions are reasonably suspected of having caused or contributed to an accident.” The executive director authorized drug testing of the entire team. Holton took the test, certifying that the drug-testing contractor took the proper steps. Holton’s sample tested positive for marijuana twice. The Executive Director removed him. The Merit Systems Protection Board affirmed, finding that the Navy’s failure to provide Holton with advance written notice of why he was being tested, as required by regulation, was harmless because it did not change the outcome. The Federal Circuit affirmed. There was reasonable suspicion that Holton, who briefed the crew, caused or contributed to the accident; the drug test was properly administered and did not violate Holton’s constitutional rights or the regulation's standard. View "Holton v. Department of the Navy" on Justia Law

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Holton supervised a Portsmouth Naval Shipyard crane team that was moving submarine covers. Each unit weighed roughly 60,000 pounds. Holton briefed the crew and gave control over the crane to the authorized rigger, then left the crane to supervise preparation of the landing area. From this position, Holton could not see the crane’s boom. Holton’s crew had previously performed the operation, which involved a tight curve, without incident. The crane traveled too far on the inside of the curve; its boom struck Building 343, causing $30,000 in damage. Shipyard Instructions allow drug testing of employees after an accident causing damage in excess of $10,000, when “their actions are reasonably suspected of having caused or contributed to an accident.” The executive director authorized drug testing of the entire team. Holton took the test, certifying that the drug-testing contractor took the proper steps. Holton’s sample tested positive for marijuana twice. The Executive Director removed him. The Merit Systems Protection Board affirmed, finding that the Navy’s failure to provide Holton with advance written notice of why he was being tested, as required by regulation, was harmless because it did not change the outcome. The Federal Circuit affirmed. There was reasonable suspicion that Holton, who briefed the crew, caused or contributed to the accident; the drug test was properly administered and did not violate Holton’s constitutional rights or the regulation's standard. View "Holton v. Department of the Navy" on Justia Law

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In November 2014, the Board of Veterans’ Appeals denied Bly’s request for service connection for bilateral hearing loss. Bly appealed to the Veterans Court. After his opening brief was filed, Bly and the government filed a joint motion for partial remand. The Veterans Court granted the motion, citing to Rule 41(b) of the Veterans Court’s Rules of Practice and Procedure, and noting that “this order is the mandate of the Court.” Bly applied for attorneys’ fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412, 31 days later. Remand orders from the Veterans Court may entitle veterans to EAJA fees and expenses. Under 28 U.S.C. 2412(d)(1)(B), such EAJA applications must be made “within thirty days of final judgment in the action.” The Veterans Court reasoned that its judgment became final immediately because the order remanded the case on consent and stated that it was the mandate of the court. The Federal Circuit vacated the denial of his application, reasoning that the consent judgment at issue became “not appealable” 60 days after the entry of the remand order under 38 U.S.C. 7292(a). View "Bly v. Shulkin" on Justia Law

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On September 11, 2012, President Obama published notice “continuing for [one] year the national emergency . . . with respect to the terrorist attacks.” In April 2013, O’Farrell, an Army Reservist, received an order directing him to replace another Reservist, an attorney, who had been deployed. After reaching his maximum total years of active commissioned service (28 years), O’Farrell was transferred to the Army Reserve Retired List in October 2013. O’Farrell served his active duty as legal counsel until September 30, 2013. By August 26, 2013, O’Farrell had used his 15 days of military leave, most of his accrued annual leave, and advance annual leave. To avoid being placed on Military Leave Without Pay for the remainder of his active duty service, O’Farrell (unsuccessfully) requested an additional 22 days leave under 5 U.S.C. 6323(a)(1). O’Farrell did not cite any statutory provision that would qualify him as "called to full-time military service as a result of a call or order to active duty in support of a contingency operation." He argued that he was “serving . . . during a national emergency." O’Farrell sued under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301– 4333. The Federal Circuit reversed. Section 6323(b) does not require that “a specific contingency operation" be identified in military orders when an employee is activated; “in support of” includes indirect assistance to a contingency operation, 5 U.S.C. 6323(b)(2)(B), which includes a military operation that results in service members being called to active duty under any law during a national emergency, 10 U.S.C. 101(a)(13). A service member’s leave request need not use particular language. View "O'Farrell v. Department of Defense" on Justia Law

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Petitioners, employed by the Office of Air and Marine (OAM), within the Department of Homeland Security, alleged that the agency’s actions and policies violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335. They were members of the Air Force and Navy Reserves. They subsequently resigned, claiming that they were “forced to quit.” An administrative judge (AJ) rejected Petitioners’ contention that the OAM violated USERRA by failing to grant them waivers from participating in training courses that conflicted with their military service dates, creating a hostile work environment, forcing them to surrender their badges and weapons during military leaves of 30 or more days, delaying within-grade pay increases, and requiring them to use annual, sick, or other leave in lieu of military leave. The AJ found “a legitimate basis for the [Agency’s] security policy,” and an “absence of any evidence that its [weapons] policy was adopted with discriminatory intent.” Allegedly hostile incidents were either “‘unavoidable’ workplace friction” or did not rise to the level of “humiliating,” “physically threatening,” or “so frequent and pervasive” to render their work environment hostile. They later filed a second complaint, alleging constructive discharge. The AJ, the Merit Systems Protection Board, and the Federal Circuit agreed that the constructive discharge claims were barred by collateral estoppel as “inextricably linked” to their previous hostile work environment claims. The standard for establishing constructive discharge is higher than that for hostile work environment, View "Bryant v. Merit Systems Protection Board" on Justia Law

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Crediford served with the Coast Guard in 1983-1985 and in 1990-1991. In 1985, he visited the VFW Club after work and drank alcohol, then was in a single-vehicle accident. A breath test registered a blood alcohol level of 0.12 percent, more than three hours later. The police charged him with DUI. Crediford's commanding officer’s report stated that fatigue and alcohol were responsible for the accident and that Crediford’s “injuries were not a result of his own misconduct and were incurred in the line of duty.” The conclusion was approved in an “ACTION OF THE CONVENING AUTHORITY.” In December 1985, the Commander of the Thirteenth Coast Guard District issued a Memorandum, that “approved a finding that injuries … were ‘not incurred in the line of duty and were due to his own misconduct.’” In 2004, Crediford sought compensation for chronic pain due to spinal and soft tissue injury resulting from the accident. The VA Regional Office denied compensation, characterizing the injuries as the result of willful misconduct, not occurring in the line of duty. Crediford argued that the Memorandum was issued “post-discharge, without notice that an investigation was ongoing. The Federal Circuit vacated. The Board erred in making its own findings when there were service department findings before it. VA regulations assign “binding” determination of “willful misconduct” and “line of duty” to the Service Department. The Coast Guard’s determinations, made in 1985, must be addressed. View "Crediford v. Shulkin" on Justia Law

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Ebanks sought veterans benefits for service-connected posttraumatic stress disorder, hearing loss, and arthritis. His claim for an increased disability rating was denied by the VA Regional Office (RO) in October 2014; in December he sought Board of Veterans Appeals review, with a video-conference hearing (38 U.S.C. 7107). Two years later, the Board had not scheduled a hearing. Ebanks sought a writ of mandamus. The Veterans Court denied relief. While his appeal was pending, the Board held his hearing in October 2017. The Federal Circuit vacated, finding the matter moot so that it lacked jurisdiction. The delay is typical and any Board hearings on remand are subject to expedited treatment under 38 U.S.C. 7112. Congress has recently overhauled the review process for RO decisions, so that veterans may now choose one of three tracks for further review of an RO decision, Given these many contingencies, Ebanks has not shown a sufficiently reasonable expectation that he will again be subjected to the same delays. Even if this case were not moot, the court questioned “the appropriateness of granting individual relief to veterans who claim unreasonable delays in VA’s first-come-first-served queue.” The “issue seems best addressed in the class-action context,.” View "Ebanks v. Shulkin" on Justia Law

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To receive disability compensation based on service, a veteran must demonstrate that the disability was incurred or aggravated in the line of duty, 38 U.S.C. 101(16). Congress has enacted presumptive service connection laws to protect certain veterans who faced exposure to chemical toxins but would find it difficult to prove a “nexus” between their exposure and their disease. Under the Agent Orange Act, 38 U.S.C. 1116, any veteran who served in Vietnam during the Vietnam era and who suffers from any designated disease “shall be presumed to have been exposed during such service” to herbicides. The VA determines which diseases qualify for presumptive service connection and defines service in Vietnam. Absent on-land service, the VA concluded that the statute did not authorize presumptive service connection for veterans serving in the open waters surrounding Vietnam. The Federal Circuit upheld that position in 2007. In 2016, the VA amended its M21-1 procedures manual to also exclude veterans who served in bays, harbors, and ports of Vietnam. The VA did not implement this additional restriction by way of notice and comment regulation as it did its open waters restriction and has not published its view on this issue in the Federal Register. The Federal Circuit rejected a challenge for lack of jurisdiction. The VA’s revisions are not agency actions reviewable under 38 U.S.C. 502. The M21-1 Manual provisions are only binding on Veterans Benefits Administration employees. View "Gray v. Secretary of Veterans Affairs" on Justia Law