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

Following the 1941 attack on Pearl Harbor, each of the Oil Companies entered into contracts with the government to provide high-octane aviation gas (avgas) to fuel military aircraft. The production of avgas resulted in waste products such as spent alkylation acid and “acid sludge.” The Oil Companies contracted to have McColl, a former Shell engineer, dump the waste at property in Fullerton, California. More than 50 years later, California and the federal government obtained compensation from the Oil Companies under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601, for the cost of cleaning up the McColl site. The Oil Companies sued, arguing the avgas contracts require the government to indemnify them for the CERCLA costs. The Court of Federal Claims granted summary judgment in favor of the government. The Federal Circuit reversed with respect to breach of contract liability and remanded. As a concession to the Oil Companies, the avgas contracts required the government to reimburse the Oil Companies for their “charges.” The court particularly noted the immense regulatory power the government had over natural resources during the war and the low profit margin on the avgas contracts. View "Shell Oil Co. v. United States" on Justia Law

Gilbert served in the Navy. His reported medical history upon entry into service revealed no psychiatric defects. After leaving service, Gilbert was diagnosed with major depression and required treatment for psychiatric illness and alcohol dependence. Gilbert acknowledged that he experienced depressive episodes and suicidal ideation throughout his life, that he has been abusing drugs and alcohol since he was a teenager, and that he continued to abuse alcohol while in the Navy. Gilbert sought compensation for psychiatric disability and other conditions with the VA. Multiple psychiatric examinations produced conflicting opinions. The VA denied service connection; the Board affirmed. The statutory “[p]resumption of sound condition” was applicable because no psychiatric condition was noted upon entry into service, 38 U.S.C. 1111; to rebut the presumption, the government had to provide clear and unmistakable evidence demonstrating that the disease existed before enrollment and was not aggravated by service. Based on Gilbert’s acknowledged history, the Board concluded that the government proved that his psychiatric illness pre-existed enrollment, but that the government failed to establish that Gilbert’s “pre-existing depression was not aggravated by active service,” and did not rebut the presumption of soundness. The Board nevertheless denied service connection, concluding that Gilbert failed to prove that his post-service psychiatric conditions “were correlated to [his] military experiences.” The Veterans Court and Federal Circuit affirmed. View "Gilbert v. Shinseki" on Justia Law

Checo sought an increased disability rating for lumbosacral spinal stenosis, including disk bulges, which was rated at a 20% disability. On July 6, 2011, the Board of Veterans’ Appeals denied her request. Checo was homeless, residing in shelters and temporary housing without the ability to receive mail. On September 27, 2011, she contacted the VA to provide a new address, and received a copy of the adverse decision on October 6, 2011; 91 days of the 120-day filing period under 38 U.S.C. 7266 had passed. On December 7, 2011, Checo filed a Notice of Appeal, 33 days late. She wrote: “Due to economic hardship, I’ve been homeless for extensive periods of time since July 2009 … and did not learn about the hearing and subsequent decision until” October 2011. The Clerk of the Veterans Court ordered the Secretary to file a response discussing whether the circumstances warranted equitable tolling of the judicial appeal period. In its response, the Secretary noted that “it appears that [Ms. Checo’s] homelessness was due to circumstances beyond her control” and that homelessness “would have delayed her filing of her NOA.” After the Veterans Court accepted the Secretary’s concession that Checo’s homelessness qualified as an extraordinary circumstance, it dismissed, finding that Checo failed to prove two other necessary elements, due diligence and direct causation,—to warrant equitable tolling. The Federal Circuit vacated. The Veterans Court used an inappropriate due diligence standard and erred in determining that homelessness did not cause the delay.View "Checo v. Shinseki" on Justia Law

Bowers served in the Army National Guard 1972-1978, with a continuous period of active duty for training from August 1972 to February 1973. His records do not reflect that he incurred any injury or disease during service. In 2009, shortly after his diagnosis with Lou Gehrig’s disease (ALS), Bowers sought benefits for ALS and secondary conditions. A VA Regional Office denied the claim, finding that his ALS was not incurred or aggravated in service. The Board of Veterans’ Appeals rejected his argument that he was entitled to presumptive service connection for ALS under 38 C.F.R. 3.318, noting that reserve duty and active duty for training of the type Bowers performed does not generally entitle an individual to evidentiary presumptions. While his appeal to the Veterans Court was pending, Bowers died and his wife was substituted as the appellant. The Veterans Court affirmed, finding that Bowers did not achieve “veteran status,” and was not entitled to presumptive service connection. The Federal Circuit affirmed. View "Bowers v. Shinseki" on Justia Law

Biggers had been employed by the Navy for 29 years and in 2007 was Security Manager for the Naval Facilities Engineering Service Center. The position required him to maintain a top secret security clearance. In 2008, a duty officer found that an outer vault door of the Secret Internet Protocol Router Network room was left open. Biggers notified the Commanding Officer of the potential violation. After an investigation, the Command Evaluator recommended that all security personnel (including Biggers) have their access to classified material suspended because “the investigation revealed numerous systemic problems, violations and deficiencies.” Biggers’ security clearance was suspended pending a final determination by the Department of Navy Central Adjudication Facility (DONCAF) pursuant to 5 U.S.C. 7513. Ultimately, DONCAF concluded that the information provided by Biggers and the Center “sufficiently explained, mitigated, or provided extenuating circumstances,” and Biggers was found eligible for a Top Secret clearance and assignment to a sensitive position and returned to duty status.. His suspension had lasted nine months. The Navy did not provide back pay or treat him as employed for calculation of retirement benefits. Biggers alleged that the suspension was motivated by retaliatory animus arising from his participation in an EEOC proceeding. An AJ determined that the Merit Systems Protection Board may not review the merits of a security clearance revocation or suspension. The Federal Circuit affirmed, holding that Biggers was not entitled to back pay. View "Biggers v. Dep't of the Navy" on Justia Law

Larson, a Vietnam War veteran, suffered a gunshot wound in service. In 1969, he was granted a 40 percent combined disability rating. He did not appeal. In 2007, he claimed clear and unmistakable error (CUE), arguing misapplication of diagnostic codes in effect in 1969. The Regional Office denied his claim. The Board affirmed, stating: “the Veteran has not demonstrated that the law in effect during that time was incorrectly applied or that the correct facts, as they were known at the time, were not before the adjudicators.” The Veterans Court rejected his challenges on the merits and a motion to modify the decision by deleting the phrase “or that the correct facts, as they were known at the time, were not before the adjudicators.” Larson was concerned that the language could be interpreted as a ruling on a “correct facts” CUE claim, precluding him from raising such a claim in the future. The Federal Circuit reversed. The Veterans Court erred in holding that there is only one opportunity to raise any allegation of CUE for each claim decided by the Board. Under 38 C.F.R. 3.105(a) a veteran may raise a new argument that a RO committed CUE at any time. Larson only challenged the legal basis for the 1969 determination, and did not assert that the adjudicators did not have the correct facts before them; he remains free to raise a “correct facts” CUE claim, so his request for clarification of the Board’s decision was not moot. View "Larson v. Shinseki" on Justia Law

When an attorney successfully represents a veteran, the Veterans Administration may directly pay reasonable legal fees to the attorney from any past-due benefits awarded to the veteran, 38 U.S.C. 5904(d). For most types of claims, an attorney has one year to challenge denial of direct pay, 38 U.S.C. 7105, but for “simultaneously contested claims,” the period is 60 days, 38 U.S.C. 7105A. A regional office applied the 60-day period to reject a challenge filed by an attorney 90 days after written denial of his direct-fee request, based on its award to the veteran on a claim other than the claim for which the attorney represented the veteran. Because the statute does not define the term, the VA relied on 38 C.F.R. 20.3(p), which explains that simultaneously contested claim refers to the "situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the allowance of one claim results in the payment of a lesser benefit to another claimant” and its Claim Adjudication Manual’s guidance that a denial of an attorney fee request should be treated as a simultaneously contested claim. The Board of Veterans Appeals, the Veterans Court, and the Federal Circuit affirmed. View "Mason v. Shinseki" on Justia Law

Roberts asserts that he is owed living quarters allowance (LQA) for his current civilian position as Deputy Camp Commander for a Marine Corps base in Okinawa, Japan. LQA is authorized for particular classes of employees by the Overseas Differentials and Allowance Act, 5 U.S.C. 5921, and regulations issued by the Department of State, the Department of Defense, and Marine Corps Bases Japan Order P12000.2A. In deciding whether to offer LQA for Roberts’s position, the deputy commanding general considered prior experience that there were qualified, locally-available candidates for DCC positions for whom LQA was not needed as a recruitment incentive. Many active-duty Marines like Roberts wished to remain in Okinawa in civilian positions after retirement. The deputy commanding general also determined that there were insufficient funds to support LQA for DCC positions in Okinawa without reallocating funds from other programs. Response to the 2008 job announcement, which noted that LQA was not offered, confirmed the lack of recruitment need; 14 qualified, locally-available candidates applied. When he was offered the position, Roberts was informed that his salary would be include no LQA.” The Claims Court rejected Roberts’s subsequent appeal of denial of his request for LQA. The Federal Circuit affirmed. View "Roberts v. United States" on Justia Law

Stallworth served in the U.S. Army, 1974-1975, during which time he experienced a psychotic episode that was attributed to his illicit use of the drug LSD. He recovered with hospitalization, but relapsed following return to active duty and was diagnosed with acute paranoid schizophrenia. A treating physician noted that it was not clear whether Stallworth’s illness was caused by his drug use or by independent psychosis. An Army medical board found him unfit for further military duty. Weeks later, a VA Regional Office awarded Stallworth service connection for schizophrenia at a 50% disability rating. Thereafter, Stallworth was often admitted to inpatient psychiatric facilities where medical professionals repeatedly opined that he had “no mental disorder” and that Stallworth’s service connection diagnosis was in error. The VA severed Stallworth’s service connection on the basis of clear and unmistakable error (CUE) and declined to reopen his claim because of a lack of new evidence. In 1981, the Appeals Board affirmed. The Veterans Court and Federal Circuit affirmed. View "Stallworth v. Shinseki" on Justia Law

Dixon served in the Army, 1979-1992, including as a chemical operations specialist in the Persian Gulf, where he was exposed to pyridostigmine and “encountered smoke from oil fires, diesel, and burning trash,” and had “cutaneous exposure [to] diesel and petrochemical fuel.” In 2003, Dixon was diagnosed with sarcoid lungs and transverse myelitis, which left him temporarily paralyzed from the waist down. He sought service-connected disability benefits. In 2004 a VA regional office denied Dixon’s claim. The Board of Veterans’ Appeals affirmed, Dixon filed a pro se notice of appeal, 60 days after the 120-day filing deadline, 38 U.S.C. 7266(a). The Veterans Court dismissed, concluding that it was “without jurisdiction.” In 2011 the Supreme Court held that the filing deadline is not jurisdictional. The Veterans Court issued an order allowing Dixon and others to move to recall the dismissals. Still acting pro se, Dixon sought equitable tolling, explaining that he suffered from physical and psychiatric disabilities that prevented him from filing in a timely manner, accompanied by a statement from his psychiatrist. The Veterans Court denied Dixon’s motion. Attorneys subsequently agreed to represent Dixon. The Veterans Court allowed until October 4, 2012 to move for reconsideration. The VA refused to provide a copy of the file and the earliest available appointment for reviewing the file was October 1. On that dated, VA staff monitored the review and declined requests for copies of documents. The Federal Circuit reversed the denial of an extension, stating that the disability compensation system is not meant as a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim.View "Dixon v. Shinseki" on Justia Law