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

Robertson voluntarily enlisted in the Army in 1963.After serving confinement for being absent without leave on two occasions for a total of about 340 days, Robertson was discharged in 1967 under conditions other than honorable, a character of discharge that can foreclose the receipt of veterans’ benefits. He later participated in President Ford’s clemency program, completed alternative service, and received a presidential pardon and a new clemency discharge. Despite his pardon and clemency discharge, the Department of Veterans Affairs has continued to deny Robertson’s claim for veterans’ benefits. The Federal Circuit affirmed, holding that the Department of Veterans Affairs properly considered the misconduct underlying his pardoned offense to deny his application for benefits. Entitlement to veterans’ benefits under the clemency program was meant to be the exception, not the rule. View "Robertson v. Gibson" on Justia Law

Erickson was a U.S. Postal Service employee from 1988 to 2000, and also a member of the Army National Guard Reserve. He was absent from the Postal Service for lengthy periods while on active duty with the National Guard. Between 1991 and 1995 he was absent for more than 22 months, and between 1996 and 2000, he worked at the Postal Service for only four days. The Postal Service inquired whether he intended to return. Erickson replied that he would not return until he completed his tour of duty in September 2001. The Postal Service removed him for excessive use of military leave. Erickson re-enlisted with the Guard and remained on active duty through 2005. In 2006, he appealed to the Merit Systems Protection Board alleging violation of his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Board rejected his claim under 38 U.S.C. 4312, holding that he had not made a timely request for reemployment and that military service was not a motivating factor in the termination. The Federal Circuit affirmed with respect to his reemployment claim, but reversed with respect to his discrimination claim. On remand, the Board found that Erickson had waived his USERRA rights by abandoning his civilian career, but on a second remand, ruled in favor of Erickson and granted him reinstatement with back wages and benefits. The Federal Circuit denied his application for recovery of attorney fees and expenses for the two appeals.View "Erickson v. U.S. Postal Serv." on Justia Law

Matthews enlisted in the U.S. Navy in 1990. In 2006, while on active duty, he pled guilty to computer pornography and solicitation of a child. He was sentenced to 21 years plus 10 months in prison. In 2007, an administrative separation board imposed an “other than honorable” discharge on Matthews. In 2010, Matthews sought back pay from the date of his arrest and “retainer” pay, based on a total of 20 years of active duty, reached while incarcerated. He claimed he was not properly discharged, citing the Government in the Sunshine Act, 5 U.S.C. 552b; the Freedom of Information Act, 5 U.S.C. 552; the Military Whistleblower Protection Act, 10 U.S.C. 1034; and the Administrative Procedure Act, 5 U.S.C. 706. The Claims Court of held that it lacked jurisdiction over claims founded on the four statutes because they are not money-mandating and held that Matthews failed to state claims for back pay under 37 U.S.C. 204(a) and retainer pay under 10 U.S.C. 6330(b). The statute prohibits service members from receiving pay for absences without leave that are not unavoidable; an absence due to civilian incarceration is not unavoidable. When he was arrested Matthews had not reached the 20 years of active duty service required to receive retainer pay. The Federal Circuit affirmed. View "Matthews v. United States" on Justia Law

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