Recently in Military Law Category

As a matter of law, certain military workers are entitled to 15 days of military leave each year to attend training. These days cannot be charged against non-workdays. As a result, it’s common practice for these military workers to file claims seeking compensation for military leave charged on those non-working days. These claims are known as Butterbaugh claims, after the case Butterbaugh v. Dep’t of Justice.

It’s exactly this type of claim that Nyles Duncan attempted to assert before the Federal Circuit Court of Appeals. He argued that the Air Force — his civilian employer — had charged him military leave on non-work days in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

When dealing with the appeals process, you never know when new case law may throw a wrench, or a life preserver, into your case.

In Taylor Russell's class action complaint against the United States for interest charges on military credit accounts, a new decision turned into a life preserver.

Russell had opened a credit account with the Army and Air Force Exchange Service (the "Exchange") for the purchase of personal goods, but became delinquent on the balance in 2000. Accruing interest over the next nine years, Russell finally realized the government was charging him a higher interest rate than agreed upon in 2009 and sued.

Lack of jurisdiction in orthotist's appeal of termination of his employment with the DVA

Carrow v. Merit Sys. Prot. Bd., 10-3061, concerned a challenge to the the Merit Systems Protection Board's dismissal of the appeal, on remand, for lack of jurisdiction, in petitioner's challenge to the termination of his employment as an orthotist-prosthetist with the Department of Veterans Affairs (DVA).  In affirming, the court held that, by statute, petitioner's position with the DVA did not carry Board appeal rights, as he does not qualify as an "employee" under 5 U.S.C. section 7511(a)(1)(C)(ii).  Further, any failure on the part of the DVA to provide full information to petitioner regarding the terms of his employment with the DVA did not give the Board jurisdiction over his appeal seeking reinstatement to his position at the DVA.

McHugh v. DLT Solutions, Inc., 09-1536, concerned a challenge to a final decision of the Armed Services Board of Contract Appeals holding that the government breached a non-substitution clause of a delivery order awarded to plaintiff (an authorized software reseller and licensor under a blanket purchase agreement between Oracle Corporation and the Army's Information Technology E. Commerce and Commercial Contracting Center).  In reversing the Board of Contract Appeals' decision, the court held that, under a proper interpretation of the contract, the government did not replace the contracted-for software following the termination of its contract with plaintiff, and hence did not breach the contract.

Related Resource:

• Full text of McHugh v. DLT Solutions, Inc., 09-1536

Fujitsu Ltd. v. Netgear Inc., 10-1045, concerned a challenge to the district court's grant of defendant's motion for summary judgment of noninfringement, in a patent infringement suit related to patents that describe and claim a different aspect of wireless communication technologies.  In affirming in part, the court held that the district court correctly granted summary judgment of noninfringement of the asserted claims of the '642 and '993 patents.  Regarding the '952 patent, the court affirmed the district court's grant of summary judgment of noninfringement for all products but for the four models for which plaintiff produced appropriate evidence of direct infringement.  Lastly, with respect to these four models, district court's summary judgment of no contributory and no induced infringement is reversed because genuine issues of material fact remain.

Jones v. Shinseki, 09-7128, involved a challenge to the Court of Appeals for Veterans Claims' (Veterans Court) affirmance of the Board of Veterans' Appeals' (Board) denial of a claim,  in a veteran's petition for an earlier effective date for post-traumatic stress disorder (PTSD) based on a claim filed in 1973, which he alleges was still pending when his claim was later reopened. 

Wanless v. Shinseki, 10-7007, involved an incarcerated veteran's request for full reinstatement of his disability benefits following his transfer from a state-operated prison to a privately owned prison.  In affirming the Board of Veterans' Appeals' and the Veterans Court's denial of the request, the court held that the Veterans Court properly construed section 5313 to include penal institutions that are privately operated, yet state-contracted.

Morse v. Merit Sys. Prot. Bd., 10-3030, involved a plaintiff's action claiming that the Transportation Security Administration violated his veterans' preference rights when it declined to waive its maximum entry age requirement in connection with his application for employment as a Federal Air Marshal.  In affirming the Merit Systems Protection Board's dismissal for lack of jurisdiction, the court held that the TSA is exempt from section 3330(a) of Title 5, which provides Board appeal rights for preference eligible veterans.

Ring Plus, Inc. v. Cingular Wireless Corp., 09-1537, concerned plaintiff's suit for infringement of its patent, related to a software based algorithm and method for generating and delivering messages over a phone line during a "ringing signal" period.  In reversing the district court's judgment of unenforceability for inequitable conduct, the court held that the district court clearly erred in finding that applicants acted with specific intent to deceive the PTO.  The court affirmed the district court's entry of summary judgment of noninfringement, because it did not err in construing the disputed claim terms.  Lastly, the court affirmed the district court's denial of plaintiff's motion to disqualify counsel. 

Munro v. Shinseki, 09-7110, concerned a challenge to the judgment of the United States Court of Appeals for Veterans Claims affirming a decision of the Board of Veterans' Appeals denial of claimant's petition for an earlier effective date for an increased rating for his service-connected granuloma of the left lung and total disability based on individual unemployability.  In affirming, the court held that the implicit denial rule may be applied to terminate the pending status of both formal and informal claims.  Here, because claimant's earlier informal claims were identical to his later claim, the VA's denial of his later claim was sufficient to notify him that his earlier informal claims were also denied.

Related Resources:

• Full text of Ring Plus, Inc. v. Cingular Wireless Corp., 09-1537
• Full text of Munro v. Shinseki, 09-7110