Justia Military Law Opinion Summaries

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In 2011, the Navy published a job announcement for an Event Forum Project Chief, a full-time, permanent, GS-13/14-grade position. Two candidates—Beck and Wible—were certified as qualified for the position. Captain Payton selected Wible. Beck, had been in active Navy service from 1984 until his retirement in 2005 and had been promoted through a series of jobs relevant to the posted position. In 2001, Beck earned a bachelor’s degree in business with a GPA of 3.91; he earned a master’s degree in Human Resource Management and Development in 2002. In 2006, Beck rejoined the Navy workforce as a civilian Special-Events Planning Officer (SEPO), a GS-13-1 grade position. Beck had trained Wible. Payton had apparently first shown animosity toward Beck during a meeting in 2010.Beck filed a formal EEO action alleging discrimination based on race, gender, age, and disability, which engendered a retaliatory and hostile work environment. Beck resigned and unsuccessfully eventually sought corrective action from the Merit Systems Protection Board under the Uniformed Services Employment and Reemployment Rights Act of 1994.The Federal Circuit reversed in part. Preselection of the successful candidate can buttress an agency’s personnel decision to hire a less qualified candidate only when the preselection is not tainted by an unlawful discriminatory intent. The Board erred in finding that Beck’s non-selection would have occurred regardless of his prior military service as required under 38 U.S.C. 4311(c)(1). View "Beck v. Department of the Navy" on Justia Law

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Flores-Vazquez served on active duty in the Navy, 1984-1988. In 1998, he sought service connection for depression for which he received treatment while onboard the U.S.S. Kitty Hawk. Flores-Vazquez claimed that he had witnessed several accidental deaths during service, including “a man being sucked inside the nose of an airplane.” Flores-Vazquez did not then submit service department records verifying the incidents. Flores-Vazquez did not appeal the denial of his claim. In 2005, Flores-Vazquez sought to reopen his claim. A medical examiner diagnosed bipolar disorder with depression and determined that the condition was “due to or the result of in[-]service illness.” The regional office denied service connection, reasoning that the medical opinion was “appeared to be based on the veteran’s unsupported report.”In 2008-2009, while Flores-Vazquez’s appeal to the Board of Veterans’ Appeals was pending, the VA received the 1986-1987 command histories of the Kitty Hawk. In 2010, the Board decided that, while the evidence was not compelling, service connection was warranted. The Board relied primarily on the 2005 medical report, not the command histories, and granted an effective date of January 2005. On remand from the Veterans Court, the Board found that 38 C.F.R. 3.156(c) did not apply because the Board’s 2010 award of benefits “was not based on” the new service department records. The Federal Circuit affirmed. The command histories submitted in 2008 played no role in the grant of service connection; the favorable resolution turned on a 2005 VA opinion that was based on service medical records that were always part of the claims file. View "Flores-Vazquez v. McDonough" on Justia Law

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The Equal Access to Justice Act (EAJA), 28 U.S.C. 2412, requires that if statutory requirements are met, the federal government must reimburse attorneys’ fees of a party who prevails in a lawsuit against the government. Smith, dissatisfied with the VA’s decision regarding his claims for veterans’ benefits, took an appeal to the Veterans Court. He was successful on the merits in part of his case and requested an EAJA award for his appellate counsel. The Veterans Court agreed to an award which included fees for 18 hours the attorney spent on an initial review of the 9,389-page agency record. The court imposed a reduction in that part of the award because Smith prevailed on some but not all of the issues that were litigated. The Veterans Court reasoned that this reduction was required as a matter of law by the EAJA.The Federal Circuit reversed in part. The Veterans Court undervalued the importance of the initial review of the case, a review that is necessary before appellate counsel could determine what bases existed for an appeal. That decision was contrary to the purpose and law of the EAJA. The court noted that if Smith had brought only the successful claim, the hours would have been fully compensated. View "Smith v. McDonough" on Justia Law

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Morse served in the Navy, 1970-1972; including six months in Da Nang, Vietnam. In 1999, Morse filed a claim for compensation, listing several disabilities, including PTSD. A VA regional office granted him a nonservice-connected pension in 2001, based on joint disease. He later obtained Social Security disability benefits. In 2002, the regional office denied Morse’s claim of service connection for PTSD, finding "no credible evidence of verification of the claimed stressors.” In 2004, Morse sought to reopen his PTSD claim. The regional office received service department records in 2005, showing that in 1972 a psychiatrist reported that Morse appeared “moderately depressed” about personal problems. An examiner concluded that Morse was unable to provide convincingly relate symptoms to his reported military exposure. The Board of Veterans’ Appeals affirmed.In 2009, Morse sought to reopen his claim. A VA examiner diagnosed Morse as suffering from PTSD. The Joint Services Records Research Center (JSRRC) coordinator's memo noted that the events “reported by the veteran" are "consistent" with the conditions of service "even though we were unable to locate official records of the specific occurrence.” Morse was granted service connection for PTSD, effective in 2009. The Board in 2016 affirmed; because no additional service records had been obtained since the Board’s 2008 decision, the VA was not required to conduct another reconsideration. In 2018, the Board found that the 2010 JSRRC memorandum did not constitute an “official service department record”; Morse was “essentially attacking the merits of" the 2008 Board decision, "which is final.”The Veterans Court and Federal Circuit affirmed; the “VA’s obligation to reconsider the PTSD claim upon receipt of new service department records was exhausted in 2008.” The 2010 JSRRC memorandum did not constitute a service department record that triggered a renewed obligation to reconsider Morse’s claim. View "Morse v. McDonough" on Justia Law

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A military commission was convened to try al-Tamir, apprehended in Turkey in 2006 and held at Guantanamo Bay for seven years without charges, for war crimes. Captain Waits presided over al-Tamir’s commission for two and a half years. A DOJ prosecutor was the first attorney to speak on the record. Weeks later, Waits applied to be a DOJ immigration judge. In his applications, he identified the al-Tamir commission. He received no interviews. In 2017, Waits was hired by the Department of Defense's Navy Office of the Judge Advocate General Criminal Law Division, after again mentioning his role in the commission.In 2019, the D.C. Circuit held that a military judge’s application for an immigration judge position created an appearance of bias requiring recusal, Waits disclosed his employment applications to al-Tamir and the commission. Rubin and Libretto later served on al-Tamir’s commission, Blackwood was a civilian advisor for all three judges and applied for outside employment while assisting Rubin. Libretto denied al-Tamir's motions to dismiss based on Waits’s and Blackwood’s job applications and to disqualify Libretto based on Blackwood’s continued assistance. Libretto declared that he would reconsider any of Waits’s decisions that al-Tamir identifies. The Court of Military Commission Review upheld that decision. The D.C. Circuit denied mandamus relief. The government’s offer affords al-Tamir an “adequate means” to attain the relief he seeks; Blackwood’s job search did not “clear[ly] and indisputabl[y]” disqualify the judges he served. View "In re: al-Tamir" on Justia Law

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After the DEA terminated Darek and Lisa Kitlinski's employment based on their refusal to participate in an internal investigation into their own allegations of misconduct by the DEA, the Kitlinskis alleged that the DEA terminated Darek in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), and that the DEA terminated Lisa in retaliation for her support of Darek’s USERRA claims against the DEA. The Kitlinskis also claim that the DEA retaliated against them for their prior protected activity in violation of Title VII of the Civil Rights Act of 1964.The Fourth Circuit affirmed the district court's grant of summary judgment in favor of the DEA, concluding that the Kitlinskis offer no evidence that Darek's military service or his prior USERRA-protected activity was a motivating factor in his termination. Furthermore, even assuming that Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981), applies here, the court has little difficulty concluding that the DEA's interest in ensuring its employees' full participation in internal investigations outweighs any interest Lisa had in promoting USERRA's nondiscriminatory purpose. The court also concluded that no reasonable factfinder could conclude that the DEA terminated the Kitlinskis' employment in retaliation for engaging in protected activity. The court explained that the Kitlinskis offer no evidence showing that the DEA terminated their employment for any reason other than their conduct during the OPR investigation. The court rejected the Kitlinskis' remaining claims. View "Kitlinski v. Department of Justice" on Justia Law

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In 2015, a solder stationed at Fort Hood fatally shot his neighbors, his wife, and himself. The victims' families filed suit under the Federal Tort Claims Act (FTCA) and the district court entered final judgment in favor of the United States, dismissing the case with prejudice.The Fifth Circuit affirmed the district court's dismissal, concluding that the district court did not commit clear error in finding that the harm to the victims was not foreseeable to the Army. The court explained that, under Texas law, a plaintiff must show both forseeability and cause in fact to establish proximate causation. In this case, there were no red flags regarding the soldier's behavior preceding the shootings; the evidence at trial showed that the Army was getting mixed messages about who was the victim of the altercation between the solider and his wife twelve days earlier; and the murders and shootings committed by the solider could not have been reasonably anticipated by the Army. The district court also found that the soldier's killings were "a superseding, unforeseeable event that could not have been anticipated by the Army based on the information they had during that 12-day period" between the February 9 altercation and the February 22 killings. The court also concluded that substantial evidence supported the district court's forseeability finding, and the district court did not commit clear error in making its finding. View "Kristensen v. United States" on Justia Law

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Vollono served on active duty in the Navy, 1996-1997 and 2001-2005. Vollono’s second stint was compulsory as a condition of his Naval Academy education. Vollono used chapter 30 Montgomery G.I. Bill educational benefits to pursue post-graduate education, 38 U.S.C. 3001, 3011. In 2009, the VA notified Vollono that he might be eligible for chapter 33 Post-9/11 G.I. Bill educational assistance. Vollono was mistakenly found eligible and elected to receive Post-9/11 benefits in lieu of Montgomery benefits to complete post-graduate education. In 2011, the VA regional office (RO) notified Vollono that he had erroneously received $60,507.08 in benefits, because his post-9/11 service was obligatory, precluding his eligibility for such benefits. The VA did not recoup the benefits. The Board of Veterans’ Appeals and Veterans Court affirmed the decision.The Board found that Vollono did not waive entitlement to Montgomery benefits; the RO found Vollono eligible for $29,107 in Montgomery benefits for completing his studies but found that it could not release payment of these funds that would be duplicative of his previous receipt of Post-9/11 benefits. The Board agreed, reasoning that 38 C.F.R. 21.7143(a) and 38 U.S.C. 3033 preclude the payment of duplicative educational benefits regardless of current eligibility. The Veterans Court and Federal Circuit affirmed. Awarding Montgomery benefits to Vollono would “lead to an absurd result of placing the appellant in a better position than that of those worthy veterans who were actually eligible for Post-9/11 GI Bill benefits.” View "Vollono v. McDonough" on Justia Law

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The statutory presumption of soundness states: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time ... or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service, 38 U.S.C. 1111. The VA’s prior section 1111 implementing regulation did not require clear and unmistakable evidence of lack of aggravation by service for rebuttal but required only clear and unmistakable evidence that the disorder “existed prior [to service].” In 2003, the VA invalidated the regulation for conflicting with the statutory language and amended the regulation to require evidence of both preexisting condition and no aggravation, 70 Fed. Reg. 23,027, 23,028. The Federal Circuit affirmed.Veterans, whose claims for disability benefits were denied decades ago, sought revision of the denial decisions, alleging that the VA had committed clear and unmistakable error (CUE). The Veterans Court affirmed the Board of Veterans’ Appeals’ denials of the motions, reasoning that the VA did not commit a clear and unmistakable legal error when it faithfully applied the version of the presumption of soundness regulation that existed at the time. The Federal Circuit affirmed. A legal-based CUE requires a misapplication of the law as it was understood at that time, and cannot arise from a subsequent change in interpretation in the law. View "George v. McDonough" on Justia Law

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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. View "National Veterans Legal Services Program v. Department of Defense" on Justia Law