Justia Military Law Opinion Summaries

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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

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Santos’s affiliation with NASA started in 1997. In 2018, Santos, then a NASA mechanical engineer and a commander in the U.S. Navy Reserve, was transferred to a new division, under the supervision of Balles, chief of the Ground Systems Branch of the Commercial Division. Despite receiving multiple accolades for his service in previous years, Santos began receiving letters of instruction and reprimand under Balles, alleging deficient performance. Although Balles maintained that she had no problems with Santos’s mandatory military obligations, the timing of many letters coincided with Santos’s requests for military leave. The letters emphasized Santos’s ability to “report to work in a timely manner and maintain regular attendance at work.” After months of difficulties, Balles formally placed Santos on a performance improvement plan (PIP) and later issued a notice of proposed removal. The Merit Systems Protection Board upheld his removal, rejecting Santos’s claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4331(a).The Federal Circuit vacated. The Board’s decision to not consider Santos’s allegation that he should never have been placed on a PIP was based on a misinterpretation of 5 U.S.C. 4302(c)(6). The events leading to Santos’s PIP may be directly relevant to Santos’s ability to satisfy his initial burden under USERRA. View "Santos v. National Aeronautics and Space Administration" on Justia Law

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Euzebio served in the U.S. Navy, 1966-1969, including two tours of duty in Vietnam, where he was exposed to Agent Orange. In 2009, Euzebio began experiencing problems swallowing. In 2011, medical examinations and testing by private physicians indicated that he had benign thyroid nodules. The Veterans Court affirmed the Board of Veterans’ Appeals’ denial of Euzebio’s entitlement to service connection for a thyroid condition due to exposure to Agent Orange. The Board noted that the Agent Orange Act requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for certain conditions, he must consider reports of the National Academy of Sciences (NAS), 38 U.S.C. 1116; Euzebio’s thyroid disorder was not among the conditions listed by the Secretary for presumptive service-connection.The Federal Circuit vacated. The Board is required to consider relevant documents within its constructive possession; all relevant and reasonably connected VA-generated documents are part of the record, constructively known by the VA adjudicator. The Veterans Court applied an erroneous legal standard when it concluded the Board did not have constructive possession of the NAS Update 2014. While the VA has not published that Update in the Federal Register, it appears on its website. Update 2014 includes statements that, “thyroid conditions overall showed an indication of increased risk with herbicide exposure” and that “consistent observations of exposures to herbicide agents” indicated that they were “related to perturbations of thyroid function.” View "Euzebio v. McDonough" on Justia Law

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Giles served on active Army duty, 1976-1982. He first claimed a service-connected nervous condition with the VA in March 1984; he was diagnosed with a personality disorder. While his claim was pending, he reported for Reserve training in June 1984. He soon was hospitalized, was diagnosed with organic delusional syndrome, and was discharged in November 1984. The VA denied his claim. In 1985, Giles was hospitalized, with an admitting diagnosis of schizophrenia. Upon discharge, he was diagnosed with bipolar disorder. The VA denied his request to reopen. The Board of Veterans’ Appeals affirmed in 1987, finding that “[a]n acquired psychiatric disorder was neither incurred in nor aggravated by service nor may a psychosis be presumed to have been incurred in active military service.”In 1995, Giles claimed service-connected PTSD. The VA awarded him service connection for bipolar disorder, effective in 1995. In 2012, Giles filed a request to revise the 1987 Board decision for clear and unmistakable error because the Board failed to recognize Giles’s claim on a presumptive basis for his 1984 diagnosis. The Board rejected the motion, stating, that 1987 regulations provided that the presumption of service incurrence of certain diseases, such as psychosis, did not apply to a period of active duty for training; a person serving on active duty for training was not considered a “veteran” during that service. The Veterans Court and Federal Circuit affirmed; “psychoses,” under 38 C.F.R. 3.309(a), refers to a category of diseases; whether diseases falling within this category are the same is a factual question outside of the courts' jurisdiction. View "Giles v. McDonough" on Justia Law

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Sharifi alleges the U.S. Army took his land when it built Combat Outpost Millet in Afghanistan in 2010. The government asserted that Sharifi’s Fifth Amendment complaint was “vague and ambiguous” because it did not specifically identify the property interest that the government allegedly took, that Sharifi had not provided a legal description of the land, a deed, or other documents that would allow the government to identify the location. The Claims Court instructed Sharifi to file an amended complaint. Sharifi alleged that government records, verified by the District Governor of Arghandab, showed that his grandfather owned the land on which the Army built COP Millet: Ownership of the land passed to Sharifi and his siblings, who subdivided the land by a 2004 inheritance agreement. The government submitted six declarations, including several witness declarations and an expert declaration on Afghan law. The Claims Court dismissed Sharifi’s amended complaint for failure to show a cognizable property interest.The Federal Circuit affirmed. The government records attached to Sharifi’s amended complaint and the 2004 inheritance agreement do not constitute proof of land ownership under the laws of Afghanistan. Even accepting as true all factual allegations in Sharifi’s amended complaint, the amended complaint does not contain sufficient facts to state a plausible takings claim. View "Sharifi v. United States" on Justia Law