Latest 2 Cases This Week: National Veterans Legal Services Program v. Department of Defense (4th Cir.), Santos v. National Aeronautics and Space ...

The Oprah Interview as a Truth Commission

LESLEY WEXLER

Illinois Law professor Lesley Wexler explains how Oprah’s interview with Prince Harry and Meghan Markle might illuminate how a formal truth commission to deal with legacies of racism and colonialism might function in the British empire. Professor Wexler describes the purpose and function of state-operated truth commissions and notes the similarities and differences between those and the interview.

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National Veterans Legal Services Program v. Department of Defense

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-1435

Opinion Date: March 11, 2021

Judge: Niemeyer

Areas of Law: Civil Procedure, Government & Administrative Law, Military Law

Various statutory provisions and regulations require the DOD to maintain a publicly accessible website containing all decisions rendered by its Discharge Review Boards and Boards for Correction of Military/Naval Records. When the DOD was alerted in 2019 that some posted decisions contained personally identifiable information, it temporarily removed all decisions from the website. Since then, the DOD has slowly been redacting and restoring the decisions to the site. NVLSP filed suit against the DOD and the Secretaries of the military departments to require them to fulfill the statutory mandate of publishing all decisions and to do so promptly. The district court granted defendants' motion to dismiss, ruling that NVLSP lacked Article III standing to bring the action and that the DoD's conduct was not judicially reviewable under the Administrative Procedure Act. The Fourth Circuit affirmed, concluding that although NVLSP has standing to bring this action, the district court lacked subject matter jurisdiction. In this case, NVLSP challenges defendants' ongoing actions in maintaining and managing the website, not any final agency action understood as a discrete agency determination of rights and obligations, as necessary to give a court subject matter jurisdiction under the APA.

Santos v. National Aeronautics and Space Administration

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2345

Opinion Date: March 11, 2021

Judge: O'Malley

Areas of Law: Labor & Employment Law, Military Law

Santos’s affiliation with NASA started in 1997. In 2018, Santos, then a NASA mechanical engineer and a commander in the U.S. Navy Reserve, was transferred to a new division, under the supervision of Balles, chief of the Ground Systems Branch of the Commercial Division. Despite receiving multiple accolades for his service in previous years, Santos began receiving letters of instruction and reprimand under Balles, alleging deficient performance. Although Balles maintained that she had no problems with Santos’s mandatory military obligations, the timing of many letters coincided with Santos’s requests for military leave. The letters emphasized Santos’s ability to “report to work in a timely manner and maintain regular attendance at work.” After months of difficulties, Balles formally placed Santos on a performance improvement plan (PIP) and later issued a notice of proposed removal. The Merit Systems Protection Board upheld his removal, rejecting Santos’s claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4331(a). The Federal Circuit vacated. The Board’s decision to not consider Santos’s allegation that he should never have been placed on a PIP was based on a misinterpretation of 5 U.S.C. 4302(c)(6). The events leading to Santos’s PIP may be directly relevant to Santos’s ability to satisfy his initial burden under USERRA.