Latest 3 Cases This Week: Newton v. Commissioner Social Security (3d Cir.), Hill v. Rivera (8th Cir.), Murphy v. Wilkie (Fed. Cir.)

The Twenty-Sixth Amendment and the Real Rigging of Georgia’s Election

VIKRAM DAVID AMAR

Illinois law dean Vikram David Amar explains why Georgia’s law allowing persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, while requiring younger voters to request absentee ballots separately for each election, is a clear violation of the Twenty-Sixth Amendment. Dean Amar acknowledges that timing may prevent this age discrimination from being redressed in 2020, but he calls upon legislatures and courts to understand the meaning of this amendment and prevent such invidious disparate treatment of voters in future years.

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COVID Comes to Federal Death Row—It Is Time to Stop the Madness

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains the enhanced risk of COVID-19 infection in the federal death row in Terre Haute, not only among inmates but among those necessary to carry out executions. Professor Sarat calls upon the Trump administration and other officials to focus on saving, rather than taking, lives inside and outside prison.

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Newton v. Commissioner Social Security

Court: US Court of Appeals for the Third Circuit

Docket: 19-1961

Opinion Date: December 22, 2020

Judge: Roth

Areas of Law: Military Law, Public Benefits

Dual-status military technicians are “Federal civilian employees” but must maintain National Guard membership and wear the appropriate military uniform while performing civilian technician duties. They must meet certain military requirements. Newton worked as a National Guard dual-status technician, 1980-2013, also serving as a New Jersey Army National Guard member, receiving separate military pay. In 2013, Newton retired from both. He received a pension from the Defense Finance and Accounting Service for his National Guard service and an annuity paid by the Office of Personnel Management for his dual-status technician service. The Social Security Administration (SSA) notified Newton that he qualified for retirement benefits, subject to a reduction under the Windfall Elimination Provision (WEP), 42 U.S.C. 415(a)(7)(A), because he received a separate pension payment “based in whole or in part upon" earnings not subject to Social Security tax, his civil service annuity. Newton argued that his civil service pension triggered an exception to the WEP for uniformed service. The Third Circuit held that Newton’s benefits are subject to a WEP reduction. Newton has always received two separate salaries and now receives two separate pensions. At most, Newton’s OPM civil service pension is based on service he provided while also serving in the National Guard, but not for “service as a member of a uniformed service.”

Hill v. Rivera

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3756

Opinion Date: December 23, 2020

Judge: William Duane Benton

Areas of Law: Criminal Law, Military Law

The Eighth Circuit affirmed the district court's dismissal of a habeas corpus petition under 28 U.S.C. 2241 where petitioner was convicted in 2012, after trial by general court-martial, of rape committed in 1998. At the time of petitioner's conviction and direct appeals, there was no statute of limitations for prosecution of rape under the Uniform Code of Military Justice (UCMJ). In 2018, the Court of Appeals for the Armed Forces held for the first time that a five-year statute of limitations applied to rape in United States v. Mangahas, 77 M.J. 220, 222-24 (C.A.A.F. 2018). However, in United States v. Briggs, 2020 WL 7250099, at 2 (U.S. Dec. 10, 2020), the Supreme Court held that there is not a statute of limitations under the UCMJ for rapes committed between 1986 and 2006. Therefore, the court held that petitioner's conviction was not untimely.

Murphy v. Wilkie

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2064

Opinion Date: December 21, 2020

Judge: Raymond T. Chen

Areas of Law: Military Law, Public Benefits

Murphy served in the Army, 1971-1974. In 2003, he sought disability benefits for PTSD; the VA regional office (RO) denied this claim because Murphy lacked a PTSD diagnosis. A private doctor had diagnosed Murphy with schizophrenia in 1982. In 2006, Murphy submitted another claim for disabilities, including schizophrenia. He requested that the RO reopen his PTSD claim. The RO denied the claim for schizophrenia for failure to show service connection and declined to reopen the PTSD claim for lack of material evidence. In 2007-2012, the RO denied multiple requests to reopen both claims. A 2012 request to reopen listed only PTSD. The VA physician found no PTSD but noted the schizophrenia diagnosis. The RO denied Murphy’s request to reopen his PTSD claim. Murphy filed a Notice of Disagreement. The cover page referred to PTSD; a handwritten attachment mentions “schizophrenia” and “PTSD” multiple times. His Form 9 included numerous mentions of both “PTSD” and “schizophrenia.” The RO determined that Murphy was also seeking to reopen his schizophrenia claim but denied that request for lack of new and material evidence. Murphy did not appeal. The Board remanded the PTSD claim; the RO maintained its denial. The Veterans Court determined that the Board correctly found it lacked jurisdiction over the schizophrenia claim, which was a request to reopen, not an initial claim. The Federal Circuit affirmed. Murphy’s request to reopen cannot be construed as seeking to reopen his schizophrenia claim. Although the lenient-claim-scope rule applies to requests to reopen, Murphy demonstrated an understanding that the conditions would be addressed separately.