Justia Military Law Opinion Summaries

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Rhone served in the military 1950-1953 and 1959-1988. In 1986, Rhone and JoAnne, divorced; the Florida Divorce Decree stated that JoAnne would receive 40% of Rhone’s military retirement benefits. In 1988, Rhone left military service due to disability. To receive disability compensation, Rhone waived part of his military retirement pay (38 U.S.C. 5305). The state court denied Rhone’s motion to modify the Divorce Decree, stating that the payment of retirement benefits constituted alimony, not a property division. The state court issued a Continuing Writ of Garnishment directing the VA to withhold that payment from Rhone’s retirement pay. The VA determined that the order obliged the VA to make payments from Rhone’s disability compensation. After Rhone attempted to avoid garnishment by renouncing benefits, in 2002 the VA determined that Rhone's compensation benefits were not subject to garnishment and had been erroneously withheld. Rhone was reimbursed for $27,664. In 2005, the VA determined that it must comply with the alimony award and resumed garnishing Rhone’s disability compensation.The Board of Veterans’ Appeals issued a 2020 decision, finding the 1991 order “valid on its face” and providing for “permanent periodic alimony” so that the VA legally garnished Rhone’s disability compensation under 42 U.S.C. 659(a); (h)(1)(A)(ii)(V). The Veterans Court and Federal Circuit affirmed, finding no due process violation. The statutes authorize the VA to withhold a portion of a veteran’s VA disability payment for alimony or child support pursuant to legal process when a veteran has waived a portion of military retirement pay to receive VA benefits. The VA lacks jurisdiction to decide questions associated with a state garnishment order. View "Rhone v. McDonough" on Justia Law

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The Department of Veterans Affairs rating schedule standardizes the evaluation of how severely diseases and injuries resulting from military service impair veterans’ earning capacity, 38 C.F.R. 4.1. The rating schedule is divided into diagnostic codes that provide disability ratings for various symptoms or conditions. The Federal Circuit, pursuant to 38 U.S.C. 502, reviewed the VA’s interpretation of two diagnostic codes: DCs 5055 and 5257: the “Knee Replacement Manual Provision” and the “Knee Joint Stability Manual Provision.” The court concluded that DC 5055 is ambiguous as to whether it includes partial knee replacements and, that under controlling Supreme Court precedent, the Secretary’s interpretation is not entitled to deference. A “Guidance” promulgated to clarify that the Provision applied only to total joint replacement did not go through the notice-and-comment procedure followed when the original Diagnostic Code was enacted. The court, therefore, applied the “pro-veteran” canon of construction. The court dismissed the challenge to the Knee Joint Stability Manual Provision as moot because the Secretary rescinded the Manual provision. View "Nova v. Secretary of Veterans Affairs" on Justia Law

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Secretary of Defense Austin directed that all members of the armed forces be vaccinated against COVID-19. Air Force guidelines allow affected service members to seek exemptions on medical, administrative, and religious grounds. As of May 2022, the Department had denied 8,869 requests for religious exemptions, while granting only 85–all to service members who were separately eligible for an administrative exemption (apparently near the end of their service term). Plaintiffs claimed that the Department’s “systematic” denial of requests for religious exemptions violated the Religious Freedom and Restoration Act and the First Amendment and sought certification of a class of some 10,000 affected service members. Air Force chaplains confirmed that the vaccination mandate substantially burdened sincerely-held religious beliefs. Typically the objections concerned the use of aborted fetal cells in the development of the vaccines. The commanding officers for two plaintiffs recommended that their requests for exemptions be granted, on the ground that less-restrictive means (like masking or social distancing) could satisfy the Air Force’s operational interests. The Department denied those requests.The court entered an injunction, barring the Department from “taking any disciplinary or separation measures” against the named plaintiffs during the pendency of their lawsuit and certified a class. The Sixth Circuit denied the Department’s motion for an emergency stay but expedited the appeal. The Department has not made a strong showing that it “is likely to succeed on the merits” of its appeal of the class-wide injunction. View "Doster v. Kendall" on Justia Law

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Air Force veteran Skaar was exposed to ionizing radiation while participating in a cleanup operation in Palomares, Spain following a 1966 midair collision involving a plane carrying nuclear weapons. In 1998, he was diagnosed with leukopenia. His doctor opined that exposure to ionizing radiation “appear[s] to be the positive agent” that historically causes leukopenia. Skaar filed an unsuccessful claim with the VA for service-connected benefits. Before the Veterans Court, he challenged the radiation dose estimates provided by the Air Force. The Veterans Court certified a class of similarly situated veterans who had participated in the Palomares cleanup operation, including veterans who had not received a Board decision but excluding veterans whose claims had been denied but not timely appealed.The Federal Circuit vacated. The Veterans Court lacked authority to certify a class that includes veterans who had not received a Board decision, a statutory prerequisite for the court’s jurisdiction, 38 U.S.C. 7252(a). Jurisdiction over Skaar’s individual claim did not create further jurisdiction over similarly situated veterans whose individual claims were beyond the court’s jurisdiction. The court rejected Skaar’s argument that the Veterans Court should have equitably tolled the appeal period for veterans whose claims had been denied but not timely appealed and should have included such veterans as members of the certified class. None of the claimants alleged the requisite due diligence in pursuing their rights. View "Skaar v. McDonough" on Justia Law

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Carter served on active duty in the U.S. Marine Corps from 1979-1980; he was identified as having damaged a government vehicle. According to the military police (MP), Carter became combative during his apprehension and struck an MP. Another MP then struck Carter in the head with his nightstick, resulting in an in-service head injury. Carter has residuals of a traumatic brain injury due to the incident. In 1981, Carter filed a VA claim seeking benefits for his head injury. The regional office denied his claim, Under 38 C.F.R. 3.301(a), service connection may be granted only when a disability was incurred or aggravated in the line of duty “and not the result of the veteran’s own willful misconduct.” The office concluded Carter’s own action “was the proximate cause of his injuries.”The Board of Veterans’ Appeals reopened the matter in 2014. After the regional office completed additional fact-finding on remand, the Board concluded that Carter’s combative behavior during his arrest “represent[ed] deliberate or intentional wrongdoing on the part of [Carter] and reckless disregard of its probable consequences,” and that the MP’s use of force in response “reasonably f[ell] within the realm of ‘probable consequences.'” The Veterans Court and Federal Circuit affirmed. The Board applied the correct legal standard in determining that Carter’s injury was the result of his willful misconduct. View "Carter v. McDonough" on Justia Law

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In 2006, LaBonte went absent without leave (AWOL) from the Army for six months. He voluntarily returned to his base, pleaded guilty to desertion in a court-martial proceeding, and received a Bad Conduct Discharge. In 2012, LaBonte was diagnosed with post-traumatic stress disorder (PTSD), stemming from his combat service in Iraq. In 2014, he was found eligible for VA benefits for service-connected PTSD, traumatic brain injury, depression, headaches, back pain, tinnitus, a painful scar, and ulcers. In 2016, LaBonte received a 100% service-connected disability rating.In 2015, LaBonte applied to the Army Board for Correction of Military Records (ABCMR), seeking retroactive medical retirement. He alleged that, while in the Army, he had permanent disabilities incurred during service that rendered him unfit for service before his absence without leave. In 2020, on remand, ABCMR again denied LaBonte’s claim. The Claims Court dismissed an appeal, finding that, in order for ABCMR to grant LaBonte disability retirement, it would have to correct LaBonte’s DD-214 Form to show that he was separated due to physical disability rather than due to a court-martial conviction and that 10 U.S.C. 1552(f), prohibited such a correction. The Federal Circuit reversed. ABCMR was not required to change LaBonte’s DD-214 in order to grant him disability retirement. The 214 is a record of events, not intended to have any legal effect on the termination of a soldier’s service. View "LaBonte v. United States" on Justia Law

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Appellee, a member of the Fleet Marine Corps Reserve, pleaded guilty at a court-martial to the sexual assault of a civilian. In this collateral challenge to his sentence, Appellee argued that the statutory grant of military jurisdiction over Fleet Marine Reservists exceeds Congress’ authority under the “Make Rules Clause.” The district court held for Appellee and the DC Circuit reversed.   The court explained that whether a person may be subjected to court-martial jurisdiction turns “on one factor: the military status of the accused.” Solorio v. United States, 483 U.S. 435 (1987). Here, based on the Supreme Court’s precedents interpreting the Make Rules Clause as well as the original meaning of that Clause, the court held that a person has “military status” if he has a formal relationship with the military that includes a duty to obey military orders. As a Fleet Marine Reservist, Appellee was “actually a member or part of the armed forces,” and therefore amenable to military jurisdiction under the Make Rules Clause. The court further held that the Fifth Amendment’s Grand Jury Clause did not separately bar Appellee’s court-martial. View "Steven Larrabee v. Carlos Del Toro" on Justia Law

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Scott Hockenberry filed a complaint against Michelle Kalas in Oklahoma state court alleging state-law claims of defamation, tortious interference, invasion of privacy, intentional infliction of emotional distress, and abuse of process. Hockenberry was a Captain in the United States Army and Kalas was an Army Reserve Captain. In 2016, Hockenberry and Kalas were employed as attorneys at Fort Sill near Lawton, Oklahoma. Beginning in May 2016, Hockenberry and Kalas became involved in a consensual sexual relationship. In August 2016, Kalas made statements accusing Hockenberry of sexual assault and other misconduct to work colleagues, an officer with the Lawton Police Department, and a Sexual Assault Response Coordinator at Fort Sill. The Army brought formal charges of sexual and physical assault against Hockenberry under the Uniform Code of Military Justice. The charges were referred to a general court-martial.The United States certified under 28 U.S.C. § 2679 that Kalas was acting within the scope of her federal employment when she made such statements. It then removed the action to federal court and substituted the United States as the defendant, deeming Hockenberry’s claims to be brought under the Federal Torts Claims Act (“FTCA”). Once in federal court, Hockenberry challenged the United States’ scope-of-employment (“SOE”) certification. The district court rejected that challenge, ruling that Hockenberry failed to demonstrate that Kalas had engaged in conduct beyond the scope of her federal employment. The court then granted the United States’ motion to dismiss Hockenberry’s action for lack of subject-matter jurisdiction based upon the United States’ sovereign immunity. Hockenberry appealed, arguing the the district court erred in its denial of his motion challenging the United States’ SOE certification. After review, the Tenth Circuit found the district court erred in concluding that an evidentiary hearing on Hockenberry’s motion was not necessary. The district court’s judgment was reversed and the matter remanded for further proceedings. View "Hockenberry v. United States" on Justia Law

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Morris served in the Army, 1965-1968. In 1970, he unsuccessfully sought disability benefits (38 U.S.C. 1110), alleging a disability based on a nervous condition connected to his service. The VA instead granted his claim for a pension based on a non-service-connected condition. In 2005, Morris sought compensation based on service-connected PTSD; he was eventually assigned a 100% disability rating.Morris has for many years been seeking an earlier effective date for service-connected disability compensation. The VA regional office and the Board of Veterans’ Appeals found no clear and unmistakable error. The Court of Appeals for Veterans Claims rejected a claim that a September 1970 notice from the VA—giving notice of the August 1970 rating decision—was constitutionally inadequate under the Due Process Clause; Morris had not presented this argument to the Board but contended that the Veterans Court was obligated to consider this constitutional question in the first instance under 38 U.S.C. 7261(a)(1). The Veterans Court exercised its discretion, under issue-exhaustion precedents, to decline to entertain the argument presented for the first time on appeal. The Federal Circuit affirmed the dismissal of the appeal. The Veterans Court had the discretion to apply an issue-exhaustion analysis and correctly applied that analysis. View "Morris v. McDonough" on Justia Law

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Enacted pursuant to Article I of the Constitution, the Uniformed Services Employment and Reemployment Rights Act (USERRA), gives returning service members the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities, 38 U.S.C. 4301. Torres, a state trooper, was called to active duty in the Army Reserves and deployed to Iraq, where he was exposed to toxic burn pits. Torres, honorably discharged, returned home with constrictive bronchitis. Torres asked his former employer to accommodate his condition by re-employing him in a different role. Texas refused. A state court held that his USERRA claims should be dismissed based on sovereign immunity.The Supreme Court reversed. By ratifying the Constitution, the states agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Congress may exercise this power to authorize private damages suits against nonconsenting states, as in USERRA.The test for whether the structure of the original Constitution itself reflects a waiver of states’ immunity is whether the federal power is “complete in itself, and the states consented to the exercise of that power—in its entirety—in the plan of the Convention.” Congress’ power to build and maintain the Armed Forces fits that test. Congress has long legislated regarding military forces at the expense of state sovereignty. USERRA expressly “supersedes any State law . . . that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.” View "Torres v. Texas Department of Public Safety" on Justia Law