Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

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

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

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

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

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

Sharpe checked in aboard the USS Carl Vinson in 2006. The aircraft carrier was undergoing an overhaul and was uninhabitable. Sharpe was instructed to report to the Media Department in the Newport News complex. Sharpe regularly reported to this onshore location throughout his assignment. He never performed regular duties onboard the Carl Vinson nor did he “eat, work, live, stand watch or serve any punishment aboard" any ship. In 2007, a reporter contacted the Fleet Forces Public Affairs Office about Sharpe’s alleged involvement in “hate group activity.” Sharpe was ordered to report to his home while NCIS investigated. Sharpe was informed that the Commanding Officer intended to impose a non-judicial punishment; the CO issued a punitive letter of reprimand. Sharpe inquired about demanding a trial by court-martial. The CO cited the “vessel exception,” which denies the right of a service member “attached to or embarked in a vessel” to refuse a non-judicial punishment and demand a trial by court-martial, 10 U.S.C. 815(a). The Assistant Secretary of the Navy approved a recommendation to discharge Sharpe. Sharpe formally separated from the Navy in 2009. In 2012, Sharpe submitted a successful application for Correction of Naval Record, requesting reinstatement and that his naval record be corrected by removing documentation pertaining to his non-judicial punishment. The Federal Circuit affirmed the Claims Court’s determinations with respect to back payment of regular and special pay, allowances, allotments, compensation, emoluments, and other pecuniary benefits. View "Sharpe v. United States" on Justia Law

A 1941 Executive Order, ordered into the service of the U.S. armed forces all of the organized military forces of the Philippines, a U.S. territory. Various Filipino military organizations and more than 100,000 members of the Philippine Commonwealth Army served the U.S. during World War II. After the war, Congress passed Surplus Appropriation Rescission Acts, 38 U.S.C. 107, providing that service in these Filipino military organizations “shall not be deemed to have been active military, naval, or air service.” Filipino veterans were not eligible for the same benefits as U.S. veterans. The American Recovery and Reinvestment Act of 2009, 123 Stat. 115, 200–02, established a $198 million fund to provide one-time payments to Filipino veterans: $15,000 for U.S. citizens and $9,000 for non-citizens. The statute required Filipino veterans to apply for this payment within one year of the statute’s enactment. The VA required that the relevant service department verify the veteran’s service. The VA treats the service department’s decision as conclusive, regardless of other evidence documenting service. The VA denied Cruz’s application because the Army certified that Cruz did not have service as a member of the Philippine Commonwealth Army, including recognized guerillas, as “he was not listed in the Reconstructed Guerilla Roster” The Federal Circuit reversed in part. The VA can generally rely on the service department’s determination in deciding eligibility for payment but, in this context, must give the veteran a meaningful opportunity to challenge his service record through the Army Board for Correction of Military Records. View "Dela Cruz v. Wilkie" on Justia Law

While serving on a Navy aircraft carrier in 1969, Francway was hit by wind: “[t]he resulting fall caused him to injure his back.” He “was placed on bedrest for a week and assigned to light duty for three months.” In 2003, Francway filed a VA claim for service connection for his back disability. In 2003-2011, Francway was examined multiple times by an orthopedist and had his medical records separately reviewed by the orthopedist and an internist. They concluded that Francway’s current back disability was not likely connected to his 1969 injury. After multiple appeals and remands, Francway submitted new evidence from his longtime friend, attesting to Francway’s history of back disability. The Board again remanded, with instructions that Francway’s “claims file should be reviewed by an appropriate medical specialist” and that the examiner should reconcile any opinion with the statements from Francway's "buddy statement.” Francway was again examined by the orthopedist, who concluded that Francway’s symptoms were unlikely to be related to his injury but did not address the “buddy statement.” The internist reviewed Francway’s file and the “buddy statement,” and reached a similar conclusion. The Board concluded that there was insufficient evidence of a nexus between Francway’s 1969 injury and his current disability and that the VA had complied with the remand orders. The Veterans Court concluded that Francway had not preserved his claim that the internist who reviewed the “buddy statement” was not an “appropriate medical specialist” under the remand order. Francway had not challenged the examiner’s qualifications before the Board. The Federal Circuit affirmed, noting that the Board and Veterans Court properly apply a presumption of competency in reviewing the opinions of VA medical examiners. View "Francway v. Wilkie" on Justia Law

NOVA challenged a 2017 Veterans Administration (VA) amendment to 38 C.F.R. 3.321(b)(1), confining the preexisting regulation (as interpreted by a 2014 Federal Circuit ruling) and authorizing the VA “[t]o accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability,” by adopting “an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability.” The regulation does not permit the VA to award extra-schedular disability compensation by considering the synergistic impact of multiple disabilities together. The Federal Circuit upheld the regulation. The VA’s explanation for the change was adequate; the regulation is not on its face arbitrary and capricious. It does not limit “extraschedular rating to a single service-connected disability” but provides for combining multiple disabilities, but not in the manner opponents prefer. The VA explained that the amendment is consistent with the agency’s historical interpretation of the regulation and its predecessors. The VA reasonably concluded that determination of an extra-schedular rating with respect to a single disability is likely to result in a more logical and consistent system of extra-schedular rating than one in which the decision-maker must determine on an ad hoc basis whether extra-schedular rating is appropriate for the synergistic effect of combined disabilities. View "National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs" on Justia Law

Shea began serving in the Air Force in October 2006. Her pre-enlistment examination indicated a normal psychiatric condition. A January 2007 medical examination resulted in a diagnosis of an adjustment disorder with anxiety and depressed mood. Days later, Shea was struck by a truck while on base and sustained multiple physical injuries. Her subsequent medical records report anxiety, depression, and impaired memory. A medical evaluation board recommended that Shea be discharged. Shea was transferred to Dover Air Force Base, where her then-husband was stationed, to continue her treatment. A physical evaluation board determined in May 2007 that Shea’s pelvic fractures and transverse process fracture were unfitting conditions that were compensable and ratable but that her adjustment disorder with depression and anxiety was not separately unfitting nor compensable or ratable. In July 2007, Shea was discharged because of her physical disabilities. She sought benefits in October 2007. The VA granted benefits for her physical and psychiatric conditions, but rejected a request for a 2007 effective date for the psychiatric-disability benefits. The Veterans Court affirmed. The Federal Circuit vacated and remanded to allow the Veterans Court to articulate the correct legal standard in considering Shea’s October 2007 informal application for benefits. While a pro se claimant "must identify the benefit sought,” the identification need not be explicit and should be read in conjunction with other submissions and service treatment records. View "Shea v. Wilkie" on Justia Law