Shinzo Abe’s Biggest Failure Is His Greatest Legacy: Preservation of Japan’s Anti-Military Constitutional Provision

MICHAEL C. DORF

In response to the news that Japan’s Prime Minister Shinzo Abe resigned due to health reasons, Cornell law professor Michael C. Dorf comments on Abe’s efforts to amend Article 9 of Japan’s Constitution, which was imposed on the country by Supreme Allied Commander Douglas MacArthur after World War II. Dorf describes one bad reason and two good reasons that have been offered for a change in Article 9, but he argues that the case for retaining Article 9 is stronger.

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Kellogg Brown and Root Services, Inc. v. Secretary of the Army

Docket: 19-1683

Opinion Date: September 1, 2020

Judge: Timothy B. Dyk

Areas of Law: Government Contracts

KBR contracted with the government to provide trailers to house coalition personnel at military camps in Iraq. KBR claimed that the government breached the contract by failing to provide “force protection” to the trucks delivering the trailers to the military camps. KBR sought to recover payments made to its subcontractor, Kuwaiti, for costs caused by the government’s alleged breach. The administrative contracting officer in large part denied the claim. The Armed Services Board of Contract Appeals found that KBR was not entitled to any additional recovery. The Federal Circuit affirmed. The Board properly determined that KBR’s costs had not been shown to be reasonable. The court did not reach the question of whether the government breached the “force protection” provision of the contract. The burden is on the contractor to establish the reasonableness of its costs; there is no presumption of reasonableness nor any presumption that a contractor is entitled to reimbursement “simply because it incurred . . . costs.”

Gumpenberger v. Wilkie

Docket: 19-1904

Opinion Date: September 1, 2020

Judge: Raymond T. Chen

Areas of Law: Legal Ethics, Military Law, Public Benefits

Graham served in the Marine Corps from 1967-1970 and has been receiving disability compensation benefits since 2001. The VA regional office (RO) informed Graham in 2009 that authorities had identified him as a fugitive felon and the subject of an outstanding warrant issued in 1992. That warrant was withdrawn in February 2009. In May 2009, the RO issued a rating decision that retroactively discontinued Graham’s compensation from December 2001 through February 2009, due to his then-fugitive felon status, and informed Graham that he had been improperly paid $199,158.70 and that his monthly compensation would be partially withheld to pay back the debt. Graham appointed Gumpenberger as his representative on appeal and signed a direct-pay agreement stating that Gumpenberger’s fee would be “20 percent of all past-due benefits awarded … as a result of winning … as provided in 38 C.F.R. 14.636.” In 2013, the Board reversed the RO’s debt ruling, finding that Graham was not a fugitive felon for VA purposes because he had never been aware of the outstanding warrant. The VA had recouped $65,464 from Graham’s monthly benefits. The Veterans Court and Federal Circuit affirmed the RO’s determination that Gumpenberger was entitled to a fee of $13,092.80. Although the total debt invalidated was $199,158.70, the past-due benefit, per 38 U.S.C. 5904(d)(1), being awarded was $65,464.