MILITARY

Babcock v. Kijakazi

Issues

Under the Social Security Act’s Windfall Elimination Provision, does the uniform-services exemption apply to Civil Service Retirement System payments derived from service as a dual-status technician?

This case asks the Supreme Court to determine whether the uniformed services exemption under the Social Security Act applies to the Civil Service Retirement System pensions of dual-status technicians. Petitioner David Babcock argues that the entirety of his service as a dual-status technician was as a uniformed member of the National Guard and he thus should entirely fall under the exemption. The Social Security Administration, under Acting Commissioner Kilolo Kijakazi, argues that the portion of Babcock’s service as a dual-status technician that was compensated by the Civil Service Retirement System pension was performed in his capacity as a civilian employee and therefore it should not fall under the exemption. The outcome of this case will impact the benefits available to dual-status technicians and clarify the distinction between dual-status technicians and other military personnel.

Questions as Framed for the Court by the Parties

Whether a civil service pension received for federal civilian employment as a “militarytechnician (dual status)” is “a payment based wholly on service as a member of a uniformed service” for the purposes of the Social Security Act’s windfall elimination provision.

From 1975 to 2014, Petitioner David Babcock (“Babcock”) was employed as a National Guard dual-status technician. Babcock v. Comm’r of Soc. Sec. at 1–2. A dual-status technician, under 10 U.S.C. § 10216(a)(1) and 32 U.S.C.

Acknowledgments

The authors would like to thank Professor Jed Stiglitz for his guidance and insights

into this case.

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Feliciano v. Department of Transportation

Issues

Is a federal civilian employee who is called or ordered to active duty during a national emergency entitled to differential pay under 5 U.S.C. § 5538(a) regardless of whether their duty is directly connected to the national emergency?

This case asks the Supreme Court to determine if any civilian employee who is called to active military duty during a national emergency is entitled to differential pay—compensation for the difference between their civilian pay and military pay—under 5 U.S.C. § 5538(a). Feliciano contends that all civilian employees called to duty during a national emergency should receive differential pay. The Department of Transportation (“DOT”) counters that 5 U.S.C. § 5538(a) requires the civilian employee’s work to be related to a contingency operation rather than merely coinciding temporally with the national emergency to qualify for differential pay. The outcome of this case has profound implications for the United States military’s effectiveness and financial security of military reservists.

Questions as Framed for the Court by the Parties

Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.

Nick Feliciano served as a civilian air traffic controller for the Federal Aviation Administration and a member of the Coast Guard Reserve. Feliciano v. Dep’t of Transp. (“Federal Circuit”) at 2. From July to September 2012, Feliciano performed active-duty service. Id. His service was pursuant to 10 U.S.C.

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George v. McDonough

Issues

Did the Department of Veterans’ Affairs commit a clear and unmistakable error when it denied veteran disability benefits based on the agency’s interpretation of the law at the time, which was found to be erroneous by the agency’s later interpretation?

This case asks the Supreme Court to decide whether an agency commits “clear and unmistakable error” when it denies benefits to a veteran by relying on a binding regulation that is later invalidated. Petitioner Kevin George enlisted in the military when he was seventeen years old and was later medically discharged when he was diagnosed with schizophrenia. George sought benefits for the aggravation of his symptoms but was denied because the Board of Veterans’ Appeals relied on a later-invalidated regulation that incorrectly interpreted the statutory requirements for proving aggravation. After the regulation was invalidated in the early 2000s, George brought a claim for revision of the Board’s decision. The Federal Circuit Court, however, denied George’s claim, concluding that the agency had correctly relied on the law as interpreted at the time of its decision. George claims that an agency commits clear and unmistakable error when relying on later invalidated regulations. Respondent Denis McDonough, the Secretary of Veterans Affairs, counters that agencies do not commit clear and unmistakable error when relying on binding regulations in existence at the time of decision making. This case has important implications for military veterans’ benefits claims and the efficiency of Veterans’ courts.

Questions as Framed for the Court by the Parties

Whether, when the Department of Veterans’ Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.

The Department of Veterans’ Affairs (“VA”) administers a federal program that provides disability benefits to United States military veterans. See George v. McDonough at 1229. The VA does not give benefits to veterans for disabilities which existed before the veteran’s time in the military except for those noted at the time of the veteran’s examination.

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Rudisill v. McDonough

Issues

Does the post-9/11 GI Bill limit education benefits for a veteran who qualifies for both the Montgomery and Post-9/11 GI Bills, by requiring that the veteran first exhaust their Montgomery benefits or make a 38 U.S.C. § 3327(a) election between educational benefits, or is a veteran entitled to both benefits due to two distinct service periods?

This case asks the Supreme Court to decide whether the Federal Circuit erred in holding that a veteran who switched from using Montgomery GI Bill educational benefits to Post–9/11 GI Bill benefits is limited to only accessing his remaining Montgomery benefits. Petitioner James Rudisill asserts that the Federal Circuit improperly reads § 3327(a) as mandatory and wrongly applies it to certain classes of veterans in a manner not intended by Congress, and in conflict with the pro-veteran canon. The respondent, the Secretary of Veterans Affairs Denis McDonough, counters that § 3327(a) remains elective and is applicable to all veterans, and that Rudisill’s invocation of the pro-veteran canon is improper. This case could impact the educational benefits of millions of veterans, as well as the application of the veterans’ canon, an interpretive tool by which courts assume Congress intends interpretations of ambiguous statutory text that favor veterans.

Questions as Framed for the Court by the Parties

Whether a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill and the Post–9/11 GI Bill is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post–9/11 benefit.

Appellee James Rudisill (“Rudisill”) is a veteran who served in active–duty three separate times, amounting to almost 8 years of active service between 2000 and 2011. Rudisill v.

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Soto v. United States

Issues

Does 10 U.S.C. § 1413a, a statute that authorizes combat-related special compensation for veterans, provide a settlement mechanism to be used instead of the default mechanism in the Barring Act?

This case asks the Supreme Court to clarify the procedures used when granting combat-related special compensation (“CRSC”)—specifically, whether the statute enacting CRSC also provides a settlement mechanism. Generally, military-related claims are governed by the Barring Act, which has a six-year statute of limitations. Soto argues that the Barring Act does not apply here because the CRSC-enacting statute provides its own mechanism for settling claims, thereby displacing the Barring Act. The United States instead asserts that the Barring Act is only displaced when a statute explicitly grants settlement authority, which is not granted in the CRSC statute, and that applying a different rule would be contrary to prior decisions. This case raises important questions regarding combat-wounded veterans’ access to compensation and the administrative and legal burden on the government. 

Questions as Framed for the Court by the Parties

Given the U.S. Court of Appeals for the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. § 1413a is a claim “involving … retired pay” under 31 U.S.C. § 3702(a)(1)(A), does 10 U.S.C. § 1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act? 

Typically, retired veterans must waive a portion of their retirement pay in order to receive disability pay. Soto v. United States at 2. However, under 10 U.S.C.

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The Ohio Adjutant General’s Department v. Federal Labor Relations Authority

Issues

Can the Federal Labor Relations Authority regulate the labor practices of state militias?

The Supreme Court in this case will determine whether the Federal Labor Relations Authority (“FLRA”) has jurisdiction to regulate state militia labor practices. The Ohio Adjutant General, Ohio Adjutant General’s Department, and the Ohio National Guard contend that the Ohio National Guard is under state control and that Congress has not expressly included state militias in the Federal Service Labor-Management Relations Statute, and thus the state militias are not subject to the FLRA’s jurisdiction. In contrast, the FLRA maintains that the Guard is subject to the FLRA’s jurisdiction because the statute memorialized various federal regulations providing collective bargaining rights to dual status technicians, and the FLRA’s jurisdiction is necessary to such rights. This case has significant implications for federal military power, labor relations for state militias, and the balance of power between state and federal governments.

Questions as Framed for the Court by the Parties

Whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.

In 2011, the Ohio National Guard (“the Guard”) signed a Collective Bargaining Agreement (“CBA”) with the American Federation of Government Employees (“the Union”), the union that represents the Guard’s technicians. The Ohio Adjutant General’s Dept., et al v.

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