Category: Spotlight

Pending Legal Action: USPHS and NOAA Retirees Left Without Pay During Government Shutdown

Posted on by Becky Haugen

Pending Legal Action: USPHS and NOAA Retirees Left Without Pay During Government Shutdown

Washington, D.C. — October 15, 2025

The Law Offices of David P. Sheldon, PLLC, is examining the legal basis for a class action lawsuit on behalf of retired officers and annuitants of the U.S. Public Health Service (USPHS) and the National Oceanic and Atmospheric Administration (NOAA) who may not receive their retirement pay during the ongoing federal government shutdown.

While most uniformed service retirees—including those from the Department of Defense (“DoD”) and the Coast Guard—will continue to receive their earned retirement benefits through the Military Retirement Fund (“MRF”), USPHS and NOAA retirees are excluded from that system. Their payments are instead drawn from agency-specific discretionary appropriations, which halt when Congress fails to pass a continuing resolution or budget.

This funding disparity leaves USPHS and NOAA retirees vulnerable to the political process, despite their equal standing as uniformed service members under federal law (10 U.S.C. § 101(a)(4)). The claims would potentially be subject to review in the U.S. Court of Federal Claims and would challenge this inequity and seek both immediate restoration of withheld pay. and a declaratory judgment establishing that these retirees’ benefits are mandatory entitlements protected from budgetary suspension.

“No retiree should lose pay simply because their service fell under a different department seal,” said David P. Sheldon, founding attorney. “These men and women served under the flag of the United States just like their DoD and Coast Guard counterparts—and the government’s inaction has real human consequences.”

Who Is Affected

  • Included: Retirees and annuitants of the USPHS and NOAA Commissioned Corps who did not receive their scheduled retirement or survivor payments during the shutdown period.
  • Not Included: Retirees of the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard, whose payments are statutorily protected through the MRF.
  • Potential Expansion: Federal civilian retirees may be affected indirectly but are not part of this pending action.

Legal Recourse for Affected Retirees

Eligible retirees may pursue the following avenues of relief:

  1. Class Participation:
    Retirees who have experienced nonpayment of retirement benefits may seek inclusion in the pending class action once filed. The case will argue that USPHS and NOAA retirement pay statutes (42 U.S.C. § 212, § 213a; 33 U.S.C. § 853) are money-mandating under the Tucker Act (28 U.S.C. § 1491), giving the U.S. Court of Federal Claims jurisdiction to order payment and interest.
  2. Administrative Inquiry:
    Retirees should retain all correspondence and payment statements from the Coast Guard Pay & Personnel Center (PPC), which processes payments for USPHS and NOAA retirees. Written confirmation of nonpayment or delayed disbursement strengthens future claims.
  3. Individual Filing (Optional):
    Some retirees may choose to file an individual claim or mandamus petition if they experience unique financial hardship or are excluded from the class definition. Such cases may also assert violations of the Anti-Deficiency Act and Equal Protection principles under the Fifth Amendment’s Due Process Clause.
  4. Legislative Advocacy:
    In parallel, affected retirees may contact congressional representatives to urge the adoption of a statutory parity amendment—similar to the FY 2021 NDAA inclusion of the Coast Guard in the MRF—that would permanently protect retirement pay for USPHS and NOAA retirees.

Legal Background

The Anti-Deficiency Act (31 U.S.C. § 1341) prohibits the government from obligating funds not yet appropriated. However, mandatory entitlements such as Social Security and MRF-based military pensions continue during shutdowns because Congress has permanently appropriated those funds.
USPHS and NOAA retirees fall into a legal gap: their authorizing statutes require that pay “shall be paid,” but Congress never created a corresponding permanent appropriation. As a result, the agencies’ payment authority vanishes when appropriations lapse—despite statutory entitlement.

The forthcoming lawsuit will argue that “shall be paid” imposes a nondiscretionary duty, making retirement pay an obligation of the United States independent of annual funding. The government’s failure to pay, therefore, constitutes an unlawful withholding of compensation earned through federal service.

Statement from Counsel

“Congress has recognized eight uniformed services, not five branches and three exceptions,” said Annie Morgan, senior military defense counsel. “Parity must mean protection. If one uniformed retiree is paid during a shutdown, all should be.”

How to Get Involved

Retirees or survivors of the USPHS or NOAA Commissioned Corps who have missed or delayed payments due to the shutdown are encouraged to contact The Law Offices of David P. Sheldon, PLLC at militarydefense.com for updates on the case and guidance on preserving their claims.

Disclaimer

This post is for informational purposes only. It does not constitute legal advice, nor does it create an attorney-client relationship. The lawsuit described herein has not yet been filed. Individuals should seek personalized legal guidance regarding their eligibility and options.

 

When the System Reboots But Justice Doesn’t

Posted on by Becky Haugen

MSPB

The Merit Systems Protection Board is back—at least on paper.

Last week, the Senate confirmed James Woodruff, President Trump’s nominee, to the federal board that hears grievances from government employees. His appointment restores a quorum to an agency that has sat largely paralyzed for months after the administration dismissed its last Democratic-appointed member.

To the casual observer, this looks like progress: the board can now issue decisions again. But as Politico’s Hassan Ali Kanu reported, the change could actually make it harder for federal employees  and by extension, uniformed service members in comparable administrative processes to get meaningful relief.

For nearly a year, federal workers who were fired or disciplined successfully argued in court that any complaint filed with the MSPB would be “futile.” Judges agreed, allowing employees to bypass a broken system and seek justice directly in federal court. Now, with a quorum technically restored, that legal opening is closing—even though the board remains buried under a fast-growing backlog of tens of thousands of appeals.

The symbolism is powerful: the White House can claim the machinery of due process has been repaired. But substance tells another story. A board stacked with political appointees and crippled by delay is not an engine of fairness, it’s a holding pen for accountability.

Federal workers, and the service members who rely on parallel review systems such as the Boards for Correction of Military Records, deserve a process that is independent, timely, and transparent. Restoring seats without restoring trust merely replaces paralysis with pretense.

Until Congress imposes statutory deadlines for decisions, guarantees the right to court review when agencies stall, and ensures balanced representation on these boards, justice for the federal workforce will remain bureaucratized, not delivered.

Denial of Benefits and Delayed Justice for Federal Personnel and Military Service Members

Posted on by Becky Haugen

Rainbow pride flag

Federal and Military Employees Face Challenges to Retirement Benefits and Constitutional Rights Amid Policy Shifts

In August 2025, the U.S. Air Force rescinded previously approved Temporary Early Retirement Authority (TERA) benefits for service members with 15 to 18 years of service. While this action has largely affected transgender personnel, it signals broader administrative discretion that could impact retirement and benefits decisions for a wider group of federal and military employees.

Executive Order 14183, signed in January 2025, reinstated restrictions on transgender military service, citing unit cohesion and readiness concerns. The Supreme Court allowed enforcement of this order in May 2025, and the Department of Defense has since issued guidance to proceed with separations. These shifts, coupled with administrative backlogs caused by the government shutdown, have created uncertainty for many service members who rely on timely processing of retirement and benefits applications.

Constitutional and Legal Implications

The rescission of benefits raises serious constitutional concerns. Under the Equal Protection Clause, policies that discriminate based on characteristics such as gender identity or sexual orientation must meet strict scrutiny. Additionally, abrupt denial of earned benefits implicates the Due Process Clause, as service members and federal employees may be deprived of property without meaningful opportunity for review.

Legal challenges are ongoing, including lawsuits such as Talbott v. USA, where advocacy organizations are contesting the constitutionality of the transgender service restrictions. These cases may set important precedents affecting the broader federal workforce.

Impact on the Broader LGBTQ+ Workforce

While policy changes have specifically targeted transgender service members, gay, bisexual, and other LGBTQ+ military and federal employees are also affected. Administrative delays, reduced government operations, and shifting policy interpretations create uncertainty for all personnel relying on earned benefits and retirement eligibility. Even those not directly targeted may face obstacles in planning their careers, navigating appeals, or securing timely access to benefits. This environment underscores the importance of strong legal protections and oversight to ensure that all LGBTQ+ service members and federal employees receive fair treatment and due process.

Government Shutdown Complications

The ongoing government shutdown further complicates the situation. Limited operations in military and federal offices slow the processing of appeals, retirement applications, and administrative remedies. Federal courts, operating with reduced staffing, are also experiencing delays, slowing the adjudication of constitutional and administrative claims. This combination of policy reversals and shutdown-related delays increases the risk that personnel may be separated or denied benefits before their claims can be fully reviewed.

Legal Remedies and Next Steps

Affected service members and federal employees may pursue several avenues:

  1. Administrative Appeals: Filing appeals within the Department of Defense or relevant federal agency.
  2. Judicial Review: Seeking federal court adjudication on constitutional and administrative law grounds.
  3. Class Action Litigation: Addressing systemic effects when multiple personnel are impacted.

Engaging experienced counsel specializing in military and federal employment law is essential to protect rights and benefits.

Recent News Articles and Resources

Disclaimer:
This update is for informational purposes and does not constitute legal advice. Service members and federal employees should consult an attorney specializing in military or federal employment law for guidance.

About the Law Offices of David P. Sheldon, PLLC:
The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., provides expert legal representation to military service members and federal employees facing legal challenges. Specializing in military justice, veterans’ rights, and federal employment law, the firm is committed to protecting the rights, benefits, and careers of those who serve our nation.

 

 

FOIA Under Fire: Why Military Law and Justice Depend on Open Records

Posted on by Becky Haugen

DOJ Bond FOIA

For service members facing courts-martial, medical retirement disputes, or appeals before military boards, one tool often makes the difference between fairness and frustration: the Freedom of Information Act (FOIA). FOIA allows attorneys to uncover critical records, everything from investigation files to medical reports, that service members need to defend their honor, protect their benefits, and ensure justice.

But a recent move by the Department of Justice (DOJ) to demand a $50,000 bond in a FOIA case has sent shockwaves through the legal community. If upheld, it could create dangerous barriers for military members and veterans who rely on FOIA for access to the truth.

Why FOIA Matters in Military Justice

  • Uncovering Evidence – FOIA requests often reveal investigative files, disciplinary records, and administrative correspondence that can prove whether a service member was treated fairly.
  • Medical and Retirement Benefits – In MEB/PEB cases, FOIA ensures access to medical evaluations and disability determinations that directly impact a service member’s career and retirement benefits.
  • Accountability – FOIA is one of the few tools that allows service members and their advocates to challenge unlawful orders, expose command misconduct, or review board proceedings.

Without FOIA, attorneys and their clients would be fighting blindly against the weight of the military bureaucracy.

The DOJ’s Bond Request: A Dangerous Precedent

The DOJ recently asked a Washington, D.C., federal judge to require a nonprofit transparency group and journalist Brian Karem to post a $50,000 bond simply to expedite a FOIA lawsuit over Trump’s Mar-a-Lago documents. If the group lost on appeal, that money would be forfeited.

For military clients, this precedent would be devastating:

  • Financial Barriers – Most service members cannot afford such sums.
  • Chilling Effect – Attorneys may be forced to advise against pursuing critical FOIA litigation due to risk.
  • Erosion of Rights – The executive branch would effectively gatekeep access to records, undermining both FOIA and judicial independence.

Why This Undermines Judicial Independence

Federal courts, not the executive branch, are entrusted to decide whether cases move forward. Forcing litigants to post large bonds because of a political directive threatens:

  • Separation of Powers – Courts must remain independent arbiters, not enforcers of executive preferences.
  • Equal Access – Justice should not depend on a litigant’s financial means.
  • Transparency – A democracy cannot function if government records are shielded from scrutiny by artificial financial barriers.

Why This Matters for Military Members and Veterans

If this approach spreads, service members could find themselves unable to access their own service records when fighting unjust actions by the military. From challenging unlawful orders to securing disability ratings, FOIA is the backbone of transparency in military law.

Blocking FOIA through financial gatekeeping would not only harm individuals, it would weaken trust in the justice system itself.

Resources and References

Polygraphs in the War Department: A Dangerous Step for Federal and Military Employees

Posted on by Becky Haugen

Polygraphing Federal Workers and Service Member

When news breaks that senior leadership wants to clamp down on “leaks” by ordering random polygraph tests for Department of Defense employees and service members, it may sound like a tough approach to discipline. But beneath the surface, it reveals something far more troubling.

Imagine being a civilian analyst who has worked for years in the Pentagon, or a young service member stationed overseas. You’ve given your career, your loyalty, and your reputation to your job. Then one day, you’re summoned to take a lie detector test, not because you’re accused of wrongdoing, but simply because the leadership wants to make an example out of “someone.” Suddenly, your job, your career, and even your honor are tied to a machine that courts themselves hesitate to trust.

Polygraphs are not foolproof. They measure stress, not truth. And stress runs high when your livelihood is on the line. A nervous breath, a racing pulse, or even the memory of a past mistake can trigger results that look suspicious. For federal employees, this creates the risk of being disciplined, demoted, or fired without real evidence. For military service members, the consequences can be even harsher, career-ending investigations, loss of retirement, or even court-martial referrals.

What’s more concerning is the power dynamic at play. In the military and defense world, careers depend heavily on trust from the chain of command. By inserting random polygraphs into that environment, leadership turns trust into fear. It chills communication, discourages whistleblowers, and silences those who might otherwise raise legitimate concerns. The War Department becomes less about defending the nation and more about policing its own employees under a cloud of suspicion.

This is not just a matter of workplace policy, it’s a legal landmine. Federal workers are protected by the Constitution and statutes like the Civil Service Reform Act and Privacy Act. Military members are entitled to due process under the Uniform Code of Military Justice. Random polygraph sweeps brush aside those safeguards. They flip the burden of proof, turning ordinary employees into suspects. They stretch constitutional limits on privacy and due process. And they invite abuse, where the results of a questionable test could be used to target individuals for reasons that have nothing to do with leaks.

At its core, this push for polygraphs is less about national security and more about power. It suggests that the War Department’s leadership can bypass established protections whenever it feels threatened by criticism or exposure. But history shows that when leaders demand tools of intimidation instead of lawful process, the rights of ordinary employees and service members erode first, and restoring them is never easy.

For those who serve, whether in uniform or in civilian roles, the warning is clear: unchecked demands for polygraph testing are not a show of strength, but a sign of weakness in leadership. They risk transforming the workplace into a climate of fear, where truth becomes secondary to control. And that is a dangerous path for a department tasked with defending a free nation.

 

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Federal employees and service members facing adverse action should seek representation from a qualified attorney.

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., defends service members, federal employees, and civilian contractors in cases involving adverse actions, investigations, and injustices in the military and federal workplace. With decades of experience, our firm is dedicated to protecting the rights of those who serve. Learn more at www.militarydefense.com.

When the Military Orders Silence: The Hegseth Directive, Navy Reporting Guidance, and the First Amendment Risks

Posted on by Becky Haugen

Social Media Naval Branch

 

New Navy Guidance: Reporting Improper Social Media Use

On September 15, the Chief of Naval Operations released a memo instructing how to receive, refer, and track reports of “unprofessional personal social media use.” Navy Times The memo directs that reports be forwarded through the chain of command, with periodic status updates up to the CNO level, but states that the Chief of Naval Personnel is not to perform investigations unless the matter warrants accountability tied to unprofessional use. Navy Times

This formal process institutionalizes oversight and surveillance of Sailors’ online behavior. It underscores that social media posts are no longer purely personal acts: they are subject to command visibility and may trigger review or discipline.

The Navy Social Media Handbook also confirms that Sailors remain subject to the UCMJ at all times, including off-duty, and that “improper or inappropriate online behavior … may result in administrative or disciplinary action.” CSP Navy /navy.mil

Thus, the Navy is actively building procedural infrastructure to catch and escalate online speech potentially deemed unprofessional.

The “Hegseth Order” & Posts about Charlie Kirk

In parallel, top Defense leadership has signaled strong intent to punish service members for celebratory or mocking posts about the death of Charlie Kirk, a private citizen not holding public office. Reports suggest that commanders have suspended or removed personnel whose posts are under review. Navy Times

Because the target was not in government, service members’ comments about Kirk do not implicate contempt under UCMJ Article 88, which applies to certain high officials. And unless there is a whistleblower scenario or clear misconduct, these posts do not fall cleanly within protected communications.

What is left is a commander invoking good order and discipline as justification to suppress speech.

Constitutional & UCMJ Constraints

  1. Parker v. Levy and Military Speech Limits

The Supreme Court in Parker v. Levy, 417 U.S. 733 (1974), upheld that military speech can be restricted when necessary to prevent interference with duty, morale, or discipline. But that case also implies that restrictions must be tied to actual harm or disruption, not imagined ones.

  1. Lawfulness of Orders & Narrow Tailoring

Under military law (e.g. the Manual for Courts-Martial), a service member must obey a lawful order. If an order is overbroad, arbitrary, or lacks a proper military purpose, it may itself be invalid.

An order to silence commentary about a private citizen, without showing that it actually harms unit cohesion, is at risk of being invalidated.

  1. Risk of Political Suppression

When the content suppressed is political or ideological rather than directly linked to military function, the risk is that discipline becomes a form of political censorship. Courts have been wary of allowing the UCMJ to be used as a blunt instrument for silencing dissenting views that do not threaten mission performance (Brown v. Glines, 444 U.S. 348 (1980)).

  1. Interaction with Navy Reporting Memo

The Navy’s new memo strengthens the command’s ability to monitor, log, and escalate social media concerns up the chain, potentially amplifying the reach of broad speech restrictions like the Hegseth directive.

Because reporting is formalized, a sailor’s post might be flagged even without direct local command knowledge, increasing the chance of review or discipline for commentary that might otherwise have remained unremarked.

That procedural structure amplifies the stakes: if the order is invalid, the entire reporting and investigative chain may be operating under unjustified authority.

  1. What Service Members Should Know
  • Not all speech is punishable, but suppression must be tied to real discipline or mission harm, not mere political disagreement.
  • Orders must be lawful. A directive to punish posts about a private citizen must bow to constitutional limits or risk being struck down.
  • Procedural rights matter. If accused, a service member is entitled to notice, to respond, and to challenge whether the order was lawful.
  • Representation is essential. Where broad or vague commands are used to silence dissent, legal counsel must push back, not merely accept “command authority” as absolute.

The interplay between the Hegseth directive, new Navy reporting protocols, and constitutional protection presents a serious danger: that normal political speech by service members could be censored under the guise of discipline.

At the Law Offices of David P. Sheldon, PLLC, we stand ready to defend service members whose voices are suppressed. If you are under threat of investigation or discipline for your online speech, we can challenge overreach and help protect both your career and your rights.

References & Resources

  • Parker v. Levy, 417 U.S. 733 (1974) – Full Text
  • Brown v. Glines, 444 U.S. 348 (1980) – Full Text
  • Uniform Code of Military Justice (10 U.S.C. §§ 888, 892, 933, 934) – UCMJ Articles
  • Manual for Courts-Martial, Part IV, ¶14 – 2024
  • Military Whistleblower Protection Act, 10 U.S.C. § 1034 – Cornell Law School

Protecting Your Future: Legal Guidance for Army Aviators Facing Forced Resignation

Posted on by Becky Haugen

Uh-60 black hawk, Helicopter, Flight image. https://pixabay.com/users/military_material-5427301/

A Major Transformation in Army Aviation

The U.S. Army recently announced that it will cut approximately 6,500 active-duty aviation positions over the next two years as part of a sweeping shift away from manned aircraft toward unmanned systems (Army Times; The Defense Post). These changes will not only reshape aviation units but also leave many skilled aviators facing career-altering decisions, including resigning their commissions.

For those who may soon be selected, the process will be swift and administrative in nature. Yet what happens now—how you prepare your records and position yourself—will directly affect your future rights, benefits, and career options.

Why Record Accuracy Matters

When separation boards, “talent panels,” or reassignment authorities review an aviator’s case, their decisions often hinge on the accuracy and completeness of personnel and medical records. Errors, omissions, or inconsistencies can undermine your position, limit your appeal options, and even cost you valuable benefits.

Personnel Records

  • Ensure your Officer Evaluation Reports (OERs), awards, flight qualifications, and training histories are accurate and complete.
  • Resolve discrepancies between official Army systems and your personal records.

Medical Records

  • Verify that all conditions, diagnoses, waivers, and flight physicals are up to date.
  • Seek correction or clarification of any entries that misstate your health history or flight status.

Supporting Documentation

  • Retain copies of correspondence, memoranda, and emails related to your aviation career, reassignment, or performance.
  • Document any waivers or declined opportunities in writing for future clarity.

Protecting Your Rights in Transition

If notified to resign or reclassify, you may have options to appeal or seek reconsideration. These processes often come with strict deadlines. Consulting legal counsel—whether through Judge Advocate General (JAG) services or qualified civilian representation—can be essential in ensuring your case is handled fairly.

Additionally, ensure that your pay, time-in-service, and leave balances are accurately recorded, as these figures will directly affect your separation pay, retirement credit, and post-service benefits.

Steps Aviators Should Take Now

  1. Review and Correct Records – Submit corrections promptly through the appropriate personnel channels.
  2. Update Medical Files – Confirm that all medical conditions and treatments are documented.
  3. Organize Your Documentation – Keep both digital and physical copies of all service-related records.
  4. Seek Counsel Early – Do not wait until you receive notice; understanding your rights now is key.
  5. Plan Your Next Chapter – Secure certifications, validate flight hours, and prepare for transition to civilian or Reserve opportunities.

A Final Word to Army Aviators

You have dedicated your careers to the cockpit and to the Army mission. While the transition away from manned aviation may not have been your choice, how you respond now can safeguard your honor, your benefits, and your family’s future.

Be proactive. Be precise. Protect your record, because it protects you.

 

About the Law Offices of David P. Sheldon, PLLC

The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., represents military service members, federal employees, and uniformed officers nationwide. Our attorneys have decades of experience in military justice, administrative law, and defending the rights of those who serve. From courts-martial defense to correction of military records and retirement benefits appeals, we fight to ensure fairness and justice for every client.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney–client relationship. Service members facing separation or forced resignation should consult with qualified legal counsel about their specific situation.

 

OPINION: Silencing Women in Service Weakens America’s Strength

Posted on by Becky Haugen

Image adapted from the Defense Advisory Committee on Women in the Services (DACOWITS), U.S. Department of Defense, 2013 DACOWITS Report (public domain).

OPINION: Silencing Women in Service Weakens America’s Strength

By the Law Offices of David P. Sheldon, PLLC

A Step Backward

Defense Secretary Pete Hegseth’s decision to shut down the Defense Advisory Committee on Women in the Services (DACOWITS) is not just about ending an advisory group. It is part of a broader push to reshape the image of the military under a narrow “warrior ethos.” In doing so, it risks violating the rights of service members and weakening national security.

For nearly 75 years, DACOWITS gave women in uniform a voice inside the Pentagon, flagging problems with equipment, training, health care, and readiness. Its closure silences that voice. Even more troubling, it signals a willingness to roll back decades of progress where women have earned the right, through law and sacrifice, to serve in every capacity, including combat.

And this was not theoretical progress. DACOWITS directly shaped the military’s ability to function effectively. As of 2025, approximately 94% of DACOWITS recommendations have been either fully or partially adopted by the Department of Defense since its creation in 1951. Those changes, from equipment design to personnel policies, had real, measurable impacts on readiness and national security. Closing the committee risks losing a proven engine of reform.

The Legal Reality

Hegseth does not have the legal power to remove women from combat or other positions simply because of their sex. Congress repealed combat-exclusion laws years ago, and the Supreme Court has made clear that discrimination based on gender requires an “exceedingly persuasive justification.” Any attempt to bar women would trigger immediate lawsuits and constitutional challenges under the Fifth Amendment’s equal-protection guarantee.

Uniformed service members—whether Army, Navy, Space Force, NOAA, or the U.S. Public Health Service—fall under Title 10. That means their rights are protected by federal law, and any blanket policy to exclude them based on sex would be unlawful.

Security Consequences

This is more than a legal fight. Removing women from full participation in service threatens national security. Research consistently shows that diverse teams perform better, especially in complex missions overseas and at home. By closing down advisory committees and silencing voices, the Pentagon narrows its talent pool at a time when recruiting and retention are already at crisis levels.

For non-armed services like the USPHS and NOAA, which often deploy alongside the military in disaster zones or global health missions, the chilling effect is real. Labeling inclusion efforts as “woke” undermines critical coordination and risks sidelining officers who are already vital to national response efforts.

A Dangerous Precedent

Beyond the issue of gender, the new directive restricting service members’ ability to speak at outside events and panels further shortens the lines of communication between the Pentagon and the public. When commanders control not just operations but also outside speech, transparency suffers. Service members—military, federal, or Tribal—are left with fewer avenues to raise concerns, seek reforms, or expose wrongdoing.

The Path Forward

Commanders and service members who find themselves targeted by discriminatory policies are not without recourse. They can:

  • File Equal Opportunity complaints
  • Pursue Inspector General investigations
  • Petition their respective Boards for Correction of Military or Naval Records (ABCMR, BCNR, etc.)
  • Seek judicial review where appropriate

Our firm stands ready to defend these rights. Title 10 protections apply across the spectrum of uniformed service, and no secretary can erase them by memo.

Conclusion

Rolling back opportunities for women under the guise of “readiness” is both unlawful and unwise. America is strongest when all who are willing and able to serve are judged on merit, not gender. Shuttering transparency and silencing voices threatens readiness, justice, and the very values the military and federal service are sworn to uphold.

References, Resources & Citations

  • Politico, Hegseth shutters Pentagon women’s advisory group, clamps down on outside appearances (Sept. 2025) Politico
  • Hegseth dissolves women’s military committee over ‘divisive feminist agenda’ (The Guardian, Sept 23 2025) The Guardian
  • Hegseth ‘proudly’ terminates Women, Peace, and Security program supported by Trump (Washington Post, Apr 2025) Center for Strategic and International Studies, Women, Peace, and Security Act of 2017 and DoD Implementation (2017–2024 reports) Washington Post
  • Georgetown Institute for Women, Peace and Security (GIWPS), commentary on WPS strategy rollbacks (2025) GIWPS
  • Department of Homeland Security Report on the Implementation of the Women, Peace, and Security (WPS) Act (2022) DHS
  • Department of State Implementation Plan for the U.S. Strategy on Women, Peace, and Security Department of State
  • Women, Peace and Security: Strategic Framework and Implementation Plan (DoD, 2020) Policy Brief
  • Women, Peace, and Security Act of 2017 (Public Law 115-68) Congress
  • DACOWITS Annual Reports to the Secretary of Defense (archival, 1951–2024) DACOWITS
  • Title 10, U.S. Code, governing armed and uniformed services Cornell
  • Department of Defense Inspector General and GAO reports on military recruiting and readiness (2023–2025) GAO Readiness Reports

 

Privacy and Power: National Guard Protections Under the Privacy Act Remain Vital in Today’s Environment

Posted on by Becky Haugen
Federalizing the Reserves
Photo By Tech. Sgt. Andrew Enriquez –
This image was released by the United States National Guard with the ID 250815-Z-EZ983-1008

In 2009, the D.C. Circuit Court of Appeals confronted a seemingly technical, but critically important question: Does the Privacy Act protect members of federally recognized National Guard units when they are not on active federal duty?

The case, In re Sealed Case, No. 07-5251 (D.C. Cir. 2009), involved a Vermont Army National Guard member whose sensitive personal information was improperly disclosed. Represented by David P. Sheldon, the appellant challenged the government’s attempt to carve out the National Guard from the Privacy Act’s protections whenever guardsmen were not on federal activation orders.

The government argued that state Guard units, when not federalized, were “state entities” beyond the Privacy Act. The district court agreed and dismissed the case. On appeal, however, the D.C. Circuit reversed, holding that the statutory structure of Title 10 and the Privacy Act compelled the opposite conclusion: a National Guard unit is always part of the Army National Guard of the United States (ARNGUS), which in turn is a reserve component of the Department of the Army, a “military department” expressly covered by the Privacy Act.

Judge Kavanaugh’s Concurrence

The panel opinion was authored by Judge David Tatel, with a separate concurring opinion by Judge Brett Kavanaugh. Judge Kavanaugh agreed with the outcome but emphasized a streamlined statutory approach. He underscored that the Department of the Army is plainly an “agency” under the Privacy Act and that federally recognized Guard units, by definition, fall under the Army’s umbrella. His concurrence dismissed attempts to overcomplicate the statutory analysis, warning that Congress had already spoken clearly: Guard units federally recognized under Title 10 remain tied to the Army’s command structure and thus remain subject to federal obligations under the Privacy Act.

David P. Sheldon’s Argument

In oral and written arguments, David P. Sheldon advanced the principle that privacy protections must travel with the soldier, regardless of whether a Guard unit is under state or federal command. “The dignity of service members requires no less than full protection of their private information, whether they are standing guard at home or serving abroad,” Sheldon argued in the case.

That position carried the day, shaping precedent for thousands of Guard members across the nation.

Why It Matters Today

The reasoning in In re Sealed Case resonates even more strongly in the present environment:

  1. Expanded Federal Utilization of the Guard.  Guard units are increasingly activated for missions that blur federal and state roles—border enforcement, pandemic response, natural disaster relief, and civil unrest. Their entwinement with federal operations makes the distinction between “state” and “federal” duty even less meaningful. Kavanaugh’s statutory reading—that federally recognized units are always part of ARNGUS—fits today’s operational realities.
  2. Growing Data Vulnerabilities.  With AI systems, electronic health records, and broad interagency data sharing, the risk of wrongful disclosure or algorithmic error in Guard members’ personal information has grown exponentially. The Privacy Act, designed to check exactly these risks, must remain robust.
  3. Current Administration’s Military Policies.  Recent administrations, including the current one, have leaned heavily on Guard forces for politically sensitive missions. Attempts to sidestep federal accountability by pointing to “state status” would threaten Guard members’ rights at precisely the moment they need federal protection most.

Conclusion

The D.C. Circuit’s 2009 decision, argued by David P. Sheldon and joined in judgment by Judge Brett Kavanaugh remains good law. Its logic has only gained strength. The Privacy Act applies to the National Guard not as a matter of policy preference, but because Congress has mandated it. In an age of unprecedented reliance on the Guard and unprecedented risks to personal data, this precedent serves as a vital safeguard for those who serve.

References & Resources

  • In re Sealed Case, No. 07-5251, 551 F.3d 1047 (D.C. Cir. 2009). govinfo.gov 
  • Perpich v. Department of Defense, 496 U.S. 334 (1990).  Justia USSC
  • Privacy Act of 1974, 5 U.S.C. § 552a. Justice.gov
  • Title 10, U.S. Code §§ 101(a)(6), 10101, 10105, 10106, 10107. govinfo.gov
  • Army Regulation 340-21, The Army Privacy Program. Download
  • Defense Privacy Board, Applicability of the Privacy Act to National Guard Records (1992). PCLT

Disclaimer

This publication is for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Service members and federal employees facing Privacy Act or related issues should consult with qualified legal counsel regarding their specific circumstances.

About the Law Offices of David P. Sheldon, PLLC

Based in Washington, D.C., the Law Offices of David P. Sheldon, PLLC is a nationally recognized firm dedicated to defending the rights of service members, federal employees, and veterans. From courts-martial to federal employment disputes, medical retirement cases, and Privacy Act litigation, our attorneys combine deep knowledge of military and federal law with an unwavering commitment to justice.