Recent developments in veterans’ law

FEDERAL

Class Actions Against the VA

From the time of the Revolutionary War until 1988, there was no judicial review when the Department of Veterans Affairs, formerly known as the Veterans Administration, denied a veteran's claim. The United States Court of Appeals for Veterans Claims was created by the Veterans' Judicial Review Act of 1988 (Pub.L. 100-687). Finally, there was some judicial oversight of the VA. But the extent of the USCAVC's authority has been somewhat unchartered in that it assumed it did not have the power to certify class actions against the VA.

In Monk v. Shulkin, 855 F.3d 1312 (Fed.Cir. 2017), the United States Court of Appeals for the Federal Circuit held that the USCAVC has the authority to certify and adjudicate class actions. The USCAVC acknowledged its authority to certify class actions against the VA in appropriate cases in Monk v. Wilkie, 30 Vet.App. 167 (2018). In Godsey v. Wilkie, 31 Vet.App. 207 (2019), a group of veterans has sued the VA to speed up its process. The USCAVC certified a class as follows: "All VA benefits claimants who filed a Substantive Appeal at least 18 months or more prior to the date of this order and who are waiting for VA to initiate pre-certification review of their cases."

In Skaar v. Wilkie, Vet.App. (2019), the USCAVC certified a class as follows: "All U.S. veterans who were present at the 1966 cleanup of plutonium dust at Palomares, Spain, and whose application for service-connected disability compensation based on exposure to ionizing radiation VA has denied or will deny."

Deference to VA's Interpretation of Its Own Regulations

There is a long history of deference given to administrative agencies, such as the VA, when it comes to interpreting its own ambiguous regulations. In a case involving a Vietnam veteran who was denied disability benefits in 1982, the veteran found additional evidence to support his claim and finally prevailed in 2006. The VA interpreted its own regulations that the veteran should receive benefits, but only from 2006 forward. In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the U.S. Supreme Court reversed lower court holdings affirming the VA and remanded Kisor's matter for further proceedings. But the high court's decision is not clear with regard to when there will or won't be deference.

The Feres Doctrine

For its first 150 years, the United States government enjoyed sovereign immunity. But the public was enraged when it realized there was no recourse after a military plane, lost in Manhattan fog in 1945, crashed into the 73rd floor of the Empire State Building, causing many deaths and significant property damage. The next year, Congress enacted the Federal Tort Claims Act (28 U.S.C. Section 1346). But when a member of the military sued the government under the FTCA, he was met with what has become known as the "Feres doctrine." In Feres v. United States, 340 U.S. 135 (1950), the U.S. Supreme Court held that despite the FTCA, the government still enjoys immunity from tort claims involving injuries to service members that were "incident to military service." Many have tried to overturn or even dilute Feres, but none have been successful. In United States v. Stanley, 483 U.S. 669 (1987), involving former service men who sued military officers and civilian personnel for the secret administration of LSD to them, the Supreme Court held that no relief was available to them because their injuries arose from activity incident to military service.

Last year, a case looked as if it might be the beginning of the end of Feres, at least when it came to medical malpractice actions. Daniel v. United States, 889 F.3d 978 (9th Cir. 2018). In the case, a service woman gave birth to a baby in a naval hospital. She experienced postpartum hemorrhaging and died approximately four hours after delivery. The woman's husband brought an action for medical negligence. A federal trial court dismissed the case under the Feres doctrine. In affirming, the 9th U.S. Circuit Court of Appeal stated: "If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so." The widower filed a petition for certiorari in the U.S. Supreme Court. The U.S. solicitor general waived the right to respond. But the high court ordered the federal government to provide a formal response. Week after week, month after month, the matter came up on the Supreme Court's calendar. It looked as if change to the Feres doctrine was eminent. Finally, however, certiorari was denied last May.

With regard to sexual assaults in the military, the Feres doctrine has barred suits against both the government and the perpetrators. And matters are getting worse. The Pentagon's 2018 Report on Sexual Assaults in the Military states that assaults against female troops have increased by 44% since 2016. The increase involved primarily female service members 24 years old and younger. In 2016, 4.3% of active duty women reported being sexually assaulted; by 2018, it rose to 6.2%. In 2018, 13,000 military women were sexually assaulted. Actually, those 13,000 were the ones brave enough to make a report; it is likely there were many more. The Department of Defense estimates only one in three women make reports.

Last year's National Defense Authorization Act was poised to make powerful changes in the military's handling of sexual assaults. What was actually signed by President Donald Trump last year, however, is silent regarding sexual assaults, although it does now authorize claims for alleged medical malpractice by service members. Such claims will be adjudicated internally by the Department of Defense according to procedures yet to be adopted. The Feres doctrine remains intact.

Servicemembers Civil Relief Act

The Servicemembers' Civil Relief Act (SCRA, 50 U.S.C. app. Section 501 et seq.) was called the "Soldiers' and Sailors' Civil Relief Act" when first passed in 1940. The SCRA provides many protections for members of the military, National Guard and Reservists. The idea behind the SCRA is to ensure that servicemembers can focus on accomplishing their mission. It is hoped they will do their best when they know their families are not being evicted from their homes, their property isn't being repossessed, their stored goods aren't being sold, and court judgments won't be entered against them while they are serving their country. Justice William O. Douglas explained the original statute's purpose in Le Maistre v. Leffers, 333 U.S. 1 (1948): "The Act must be read with an eye friendly to those who dropped their affairs to answer their country's call."

The question for the 9th Circuit in McGreevey v. PHH Mortgage Corporation, 897 F.3d 1037 (9th Cir. 2018), was "what is the applicable statute of limitations for private suits alleging violations of § 303(c) of the SCRA." Four months after a U.S. Marine refinanced his home, the Marines deployed him to Iraq. Upon his release from service in 2010, the Marine promptly advised the defendant refinance company of his military service and requested an opportunity to refinance his mortgage. Defendants ignored his request and sold the Marine's home in a foreclosure sale. Almost six years later, the Marine filed an action in federal court, alleging violation of the SCRA. The appeals court held the action was time-barred because the four-year statute of limitations found in 28 U.S.C. Section 1658 (a) applied. The judgment of dismissal was affirmed.

CALIFORNIA

Civil Law

As of Jan. 1, 2020, Government Code Section 12920 states "the practice of discrimination because of ... veteran or military status ... in housing accommodations is declared to be against public policy." The Legislative Digest declares that "veterans are a priority and that we must ensure that they have all housing options available." Government Code Section 12921 now states "the opportunity to seek, obtain, and hold housing without discrimination because of ... veteran or military status ... is hereby declared to be a civil right."

Criminal Law

Passed in 1998, California Vehicle Code Section 23640, states the courts are prohibited from diverting drunk drivers away from criminal prosecutions. Thus, when Penal Code Section 1001.80 became effective in 2015, matters got a bit confusing. The newer statute states that when a person is or was in the military and suffers from certain maladies as a result, and is accused of any misdemeanor, the court may divert the person. Penal Code Section 1001.80 applies to defendants suffering from such conditions as traumatic brain injury, post-traumatic stress disorder, sexual trauma and substance abuse as a result of military service, and states the court may place that person accused of a misdemeanor in a pretrial diversion program.

Appellate courts interpreted the statute differently. In People v. VanVleck, 2 Cal. App. 5th 355 (2016), the appeals court concluded that military diversion is not available for defendants charged with driving under the influence. In Hopkins v. Superior Court, 2 Cal. App. 5th 1275 (2016), the appeals court reached the opposite conclusion. The California Supreme Court granted review in Hopkins.

The language in Hopkins included: "We urge the Legislature to act by amending section 1001.80 to express its intent with regard to military diversion in DUI cases." Apparently noticing that language, the Legislature amended the statute before Hopkins could be heard in the Supreme Court. Effective Aug. 7, 2017, the present iteration of the statute clearly states that veterans and active duty personnel may be placed on diversion "notwithstanding any other law."

But the amended statute did not end matters. In Wade v. Superior Court, 33 Cal. App. 5th 694 (2019), the prosecution prevailed upon the trial court to deny diversion even though the charged crime was a misdemeanor and the defendant was a veteran suffering from one of Penal Code Section 1001.80's listed maladies. The court, citing public safety as its reason, denied the man's request for military diversion. The appellate court applied the abuse of discretion standard of review and reversed, stating: "Simply put, the trial court in this case did not have discretion to deny Wade's request based on the inherently dangerous nature of driving while intoxicated, because the Legislature implicitly considered the commonly occurring features of DUI offenses but nevertheless elected to include them in the statutory program without restriction."

Another criminal statute was amended in 2019. Penal Code Section 1170.91 became effective on Jan. 1, 2015. It states that when a court sentences a defendant who is or was in the military, and the defendant suffers from certain listed conditions, "the court shall consider the circumstance as a factor in mitigation."

However, that left many veterans who were sentenced prior to Jan. 1, 2015 still in prison. They did not have the opportunity to have their sentencing judges consider traumatic brain injury, post-traumatic stress disorder, sexual trauma and substance abuse as a result of their military service as a mitigating factor. Thus, Penal Code Section 1170.91 was amended, effective Jan. 1, 2019. If they meet certain requirements, those defendants sentenced before Jan. 1, 2015 may return to court and seek a lower sentence.

Family Law

Family Code Section 3047 provides that when military service has a material effect on a person's ability to exercise custody or visitation rights, any necessary modification of an existing custody order shall be deemed temporary, without prejudice and subject to review when the person returns from deployment.

In In re Marriage of Vargas & Ross, 17 Cal. App. 5th 1235 (2017), both parents were in the military. The children lived with the father while the mother was deployed to Korea. Then, the father was deployed and returned from his deployment. Citing to Family Code Section 3047, but noting it was in the best interests of the children to live with the mother, the family court ordered physical custody to the father because prior to his most recent deployment, custody was with him. The Court of Appeal vacated the custody order and remanded the matter, stating: "[W]hen the trial court found it would be in the children's best interest to remain in mother's custody because she was the parent most likely to facilitate contact, the section 3047 presumption was overcome."

Legal Services

Business and Professions Code Section 6074 states that the State Bar shall engage with local bar associations and others to encourage them to provide civil legal assistance for veterans, service members and their families who cannot afford legal services. The State Bar is mandated to compile a list of groups and individual attorneys willing to provide pro bono legal services to veterans and service members, conduct a survey of programs that already provide such services and publish a report on its website.

Licenses and Fees

Under Business and Professions Code Section 16001.8, an honorably discharged veteran shall not be required to pay any local business license fees for a business selling or providing services if the veteran is the sole proprietor of the business.

Food and Agriculture Code Section 30505 states that an animal shelter shall not charge an adoption fee for a dog if the person adopting the dog presents to the public animal shelter a current and valid driver's license or identification card with the word "VETERAN" printed on its face

Sexual Assaults

In Senate Bill 481, California Sen. Tom Umberg tried to provide a means for victims of sexual assaults to sue when the perpetrator is a member of the California National Guard. The National Guard fought against its passage. When the bill was signed, the language about sexual assaults had been deleted. 