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

The petitioner joined the Air Force in 1979 and, after being denied promotion twice, was discharged from active duty in 1989. The Deputy for Air Force Review Boards eventually agreed to void a substandard officer effectiveness report in her record. After the petitioner's separation from active service, the Special Selection Board reconsidered the record and did not recommend promotion. After several requests, the Air Force reinstated the petitioner to active duty in 1995 and promoted her to major, with a date of rank of 1988. After again being denied promotion twice, she applied for direct promotion in 2002, arguing that one of her evaluations was prepared by an officer she had reported for misconduct and that the break in service deprived her of an opportunity to develop a record to support promotion. Relief was denied. The petitioner was involuntarily retired in 2003. The Court of Claims rejected her suit. The Federal Circuit affirmed, stating that the Corrections Board thoroughly reviewed the claims and that the decision was not arbitrary.

The Department of Veterans Affairs disability rating schedule governs entitlement to compensation based on loss of earning capacity. The Veterans Court held that the petitioner, whose 100% disability rating is based on multiple disabilities, no one of which is rated at 100%, did not qualify under 38 U.S.C. 1114(s), which provides $320 in additional monthly compensation to a veteran with âa service-connected disability rated as totalâ if the veteran either has another independently rated disability or combination of disabilities rated at 60%, or is permanently housebound by reason of service-connected disability. The Federal Circuit affirmed. The use of the singular and plural terms was purposeful and intended to limit payment of the special monthly compensation to a veteran who has at least one condition that has been rated as totally disabling. The court rejected an argument based on a rule that allows the Secretary to rate the veteran as âtotally disabled based on individual unemployabilityâ even if a veteran does not qualify for a rating of 100%.

After the Board of Veteransâ Appeals denied the veteran's claim for service-connected benefits for a thyroid disorder, the Veterans Court vacated and remanded the case for reconsideration. The veteran sought fees of $11,710.57 for attorney work under the Equal Access to Justice Act, 28 U.S.C. 2412. The district court awarded $8,601.80 and denied a request for supplemental fees for time spent defending the original fee request. The Federal Circuit reversed and remanded. A veteran is entitled to attorney fees incurred throughout the litigation, including those incurred in preparation and defense of the fee application to the extent those fees are defensible; the veteran was partially successful in defending his original fee application.

The VA denied the plaintiff's claim for benefits for post-traumatic stress disorder resulting from a sexual assault that she claimed occurred in 1984, while she was stationed in Japan. The Veterans Court and Federal Circuit affirmed. The Veterans Court committed harmless error in stating that a medical opinion based on a post-service exam cannot be used to establish the occurrence; the Veterans Board of Appeals detailed its consideration of all of the plaintiff's evidence and determined that the preponderance of the evidence was against a finding of verification of the occurrence.

In 1978 the VA published an Agent Orange Program Guide that was the basis for denial of many claims of service-related injury. While a suit, challenging the Guide as issued in violation of the Administrative Procedures Act (APA), was pending, Congress enacted the 1984 Veteransâ Dioxin and Radiation Exposure Compensation Standards Act, which rendered the Guide irrelevant to new claims. Plaintiffs continued to pursue their suit and, in 2005, new named plaintiffs were added. In 2008, the district court granted the government's 1979 motion for judgment. The D.C. Circuit first remanded the case for transfer under the 1988 Veterans Judicial Review Act, 38 U.S.C. 502, but, on rehearing, ordered dismissal. The veterans refiled in the Federal Circuit, which dismissed for failure to file within the Act's six-year limitations period. When the claim was filed, no court had jurisdiction to hear APA challenges to VA regulations and the 1988 Act did not retroactively create a cause of action.