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Air Force General Loses Appeal for Retroactive Promotion

Eight days after the New Year and we finally have the Federal Circuit's first precedential opinion of 2015. Patents? Trademarks? Tariffs? You wish!

Instead, Schwalier v. Hagel is about a promotion that never came to pass. Air Force Brigadier General Terryl Schwalier was nominated by the president and confirmed by the Senate to the rank of major general. He was supposed to be appointed in 1997, but the appointment got delayed and President Clinton decided not to appoint him after all.

Schwalier tried to use the defense of "no backsies" to claim that he had been appointed, but the Federal Circuit didn't think so.

In 2011, the Navy was faced with a situation of "overmanning" and need to "optimize the quality of the navy," so it did the military's version of a layoff and created an Enlisted Retention Board, which resulted in the honorable discharge of many sailors. The Navy notified sailors about positions that were overmanned, quotas, and gave them the ability to convert to an undermanned position. After this process, 2,946 sailors were chosen for separation, and sailors were honorably discharged.

Three hundred sailors sued in the Court of Federal Claims for back pay, and challenged the Navy's decision to create the ERB, the decision to discharge, and also alleged the discharges violated due process, as well as statutory and regulatory requirements.

Drama in the Fed: Tension Over Procedural Rule, Vet. Disability

Circuit Court procedures often are so complex that they seem arbitrary. A senior judge can hear a case, but he can't vote on en banc rehearing. He can dissent from a panel rehearing denial, but not an en banc rehearing denial. He can sit on the en banc panel but can't vote or dissent on granting the rehearing.

If that sounds confusing, welcome to the party. Senior Judge Plager was equally confused, and irritated, and expressed as much in a footnote to his dissent, calling the original decision and judge-created rule for determining disability levels for veterans a "miscarriage of justice."

The controversial rule, by the way, clarifies which disability rating applies to veterans, arguably conflicts with applicable regulations, and should lead to more unfavorable rulings for veterans seeking disability benefits.

Two women, Mrs. Burden and Mrs. Coleman, appealed the decision of the United States Court of Appeals for Veterans Claims, denying their claims of indemnity and dependency compensation. Though the fact patterns in each case were different, they had one similarity: at the time of the veterans’ deaths, they were not married.

Army, KBR Contract Dispute Creates Uncertainty, Warns DOJ

According to the Justice Department, the outcome of an Army and KBR lawsuit over the final stages of LOGCAP III , the largest government services contract in U.S. History, may affect many thousands of federal contracts while creating “enormous uncertainty” for vendors and the government, reports the Federal Times.

A reminder to practitioners and law students: pay attention to footnotes.

Vet Can Seek Disability Benefits for Faulty Bathroom Fixture

Can a veteran claim "additional disability" benefits for an injury that was not directly caused by government hospital care?

The Federal Circuit Court of Appeals ruled this week that he can.

Pro Se Veterans' Filings Must Be 'Read Liberally'

A veteran proceeding pro se gets extra leeway in making his benefits case.

And if the Board of Veterans' Appeals and the Court of Appeals for Veterans Claims don't give him that leeway? Well, they'll probably be reviewing the claim again on remand.

Vets Aren't Guaranteed Effective Counsel for Benefits Appeals

Ernest Pitts, Jr., a veteran, claimed that he was entitled to disability benefits from the Department of Veterans Affairs (VA) based on post-traumatic stress syndrome (PTSD), a psychiatric disorder other than PTSD, a sinus disorder, and a skin disorder, all of which he contends are service-connected conditions.

The Board of Veterans' Appeals found that (1) Pitt's lower back condition resulted not from service but from a post-service work-related injury; (2) there was no evidence that his psychiatric disorder other than PTSD was linked to his service; and (3) his PTSD claim was not shown to be service-connected because there was no evidence of an in-service stressor.

The Court of Appeals for Veterans Claims (CAVC) affirmed the Board's ruling.

Veterans Can Only Challenge an 'Issue' Once

The Veterans Administration limits a veteran’s challenges to the disposition of a disability claim “issue.” But how is “issue” defined?

The Federal Circuit Court of Appeals considered a single legal question in this case: What does the term “issue” mean for the purpose of VA regulations related to appealability? Is it a disability claim, or is it a theory supporting a disability claim?

Fed Cir. Throws Out Butterbaugh Claim for Lack of Evidence

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).