Military and Veteran Highlights of 2021
| Publication year | 2021 |
| Author | Written by Justice Eileen C. Moore |
Written by Justice Eileen C. Moore*
Today, persons from many disciplines are advocating for those who do serve or have served in the military. Consequently, a lot happened in 2021. This article will provide a brief discussion of some of the 2021 highlights.
Benefits for those discharged due to their sexual orientation & veteran preferences in hiring—Governor refused to sign pro-veteran legislation after opposition claimed veterans tend to be male, white and don't need advantages.........p. 122
Class actions against the Department of Veterans Affairs—The Court of Appeals for Veterans Claims issued new rules for class actions; two California lawyers obtained an injunction against the VA..........................................p. 122
Class actions against the military branches—as a result of class actions, military branches are required to reconsider discharge upgrade requests p. 123
Defense Advisory Committee on Women in the Services, DACOWITS—Pentagon dissolved the committee after it issued a pro-women report.........p. 124
Deporting veterans—symposium held on immigration hurdles faced by veterans...................................................................p. 125
New regulations for medical malpractice cases against the military—while it's only slight, there is a crack in the Feres Doctrine......................p. 126
Penal Code § 1170.91—many incarcerated veterans are now able to return to court to request a lower sentence .p. 127
Promotion photos—photographs have been removed from promotion packets so they cannot be viewed by panels deciding who gets promoted in the military in order to increase diversity .p. 127
Women may soon have to register for the draft—men claim lack of equal protection since they have to register p. 128
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At the California Assembly Labor and Employment Committee public hearing on June 22, 2021, SB 665 was discussed The bill concerned preference for veterans by private employers, which preference is available in 40 other states. It's analogous to what the federal government does, as well as what public sector employers do in all 50 states. It also provided that those who were discharged from the military due to their sexual orientation be considered as veterans for all purposes. It was introduced by Senator Tom Umberg [Dem., Orange], a veteran. There was almost overwhelming support for the bill. But two persons spoke in opposition. Kevin Baker, director of governmental relations for the ACLU, said "it does not honor veterans to practice discrimination in their name, nor is it necessary to do so." He also said, veterans don't need such protections "any more than Senator Umberg does." The second person who spoke in opposition was Jennifer Pizer of Lamda Legal. She said women, transgender people and people living with a disability would be burdened by this bill. She added that those who served in the military tend to be male, white and not transgender and they don't need advantages. https://www.assembly.ca.gov/media/assembly-labor-employment-committee-20210622/video [discussion begins at hour 4:05]
And the opposition prevailed. Governor Newsom returned SB 665 without his signature, explaining: "I am concerned that the veterans' preference policies that would be permitted by this legislation could negatively impact employment opportunities for women and other protected groups underrepresented among veterans, such as people with disabilities."
Two significant things have happened recently with regard to class actions against the Department of Veterans Affairs. But first, a little history.
Until a few years ago, the ability to file a class action against the VA wasn't recognized. In 2017, the U.S. Court of Appeals for the Federal Circuit held that the Court of Appeals for Veterans Claims, the CAVC, has jurisdiction to certify and adjudicate class actions; it also held that the CAVC could create its own class action rules. (Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017). The next year, the CAVC acknowledged its authority to certify class actions. (Monk v. Wilkie, 30 Vet. App. 167 (2018), aff'd, 978 F.3d 1273 (Fed. Cir. 2020)).
The first thing that happened recently is that the CAVC issued its first ever class action rules. They are found on the CAVC's website: www.uscourts.cavc.gov/rules_of_practice.php?fullsite=yes
Rule 22 sets forth the timing for a class action request and that the filing fee is $400. It begins by stating that class action relief may be sought by "represented parties," apparently negating the possibility of self-represented litigants bringing class actions. The rule requires would-be class representatives to "explain the reasons why a decision granting relief on a class action basis would serve the interests of justice to a greater degree than would a precedential decision granting relief on a non-class action basis."
Rule 23 is based on Federal Rules of Civil Procedure, Rule 23. CAVC Rule 23 says the proposed class must be so numerous that consolidating individual actions is impracticable. There must be common questions of law or fact to the class. The legal issues of the representative parties must be typical of those raised by the class. A request must provide that the representative parties will fairly and adequately protect the interests of the class. Another requirement is that the VA has acted or
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failed to act on grounds that apply generally to the class so that final injunctive or other relief is appropriate respecting the class as a whole. Rule 23 requires the VA to either concede to the issue of numerosity or state its reasons for opposition as well as a statement of the actual or estimated number of putative class members, if feasible. If it's not feasible to state a number, the VA must explain why.
Rule 15(e) provides that a potential intervenor in a class action shall submit a motion for permission to intervene The motion shall contain a concise statement of the interest of the moving person or organization and the grounds upon which intervention is sought.
The second thing that happened recently was that two California lawyers achieved injunctive relief in a caregiver class action case against the VA.
In 2010, Congress recognized the vital assistance family members provide badly injured vets by enacting a Caregiver Program in 38 U.S.C. § 1720G. The Caregiver Program was intended to provide essential benefits, including a monthly stipend and physical and mental health services, for caregivers. But when the VA adopted regulations to implement the Caregiver Program, it did not provide the caregivers a right to appeal. Thereafter, it denied benefits to many caregivers of seriously injured veterans, and those caregivers had no recourse.
Two California lawyers represented Maya...
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