Justia Military Law Opinion Summaries

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The Eighth Circuit affirmed the district court's grant of summary judgment for Anixter on plaintiff's claim that the company violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), by discriminating and retaliating against him on the basis of his prior service in the military and exercise of rights protected under the statute. The court held that plaintiff failed to show a genuine dispute of material fact that his military status was a motivating factor in Anixter's decision to fire him. The court noted that most of Anixter's actions that plaintiff claimed violated USERRA were not independently actionable under the statute. The court held that the order for plaintiff to perform some manual labor did not exceed his disability restriction and was therefore not materially adverse; Anixter's denial of plaintiff's request for a service dog was not sufficiently adverse; and defendant's discharge from Anixter four days after requesting PTSD accommodation did not create sufficient evidence of a genuine dispute of material fact regarding Anixter's unlawful motivation to fire plaintiff. Rather, the undisputed evidence indicated that plaintiff's temperament played a part in Anixter's decision to fire him, which was consistent with the company's explanation that it fired him due to this disagreement. View "McConnell v. Anixter, Inc." on Justia Law

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Following a 2019 Federal Circuit decision and enactment of the Blue Water Navy Vietnam Veterans Act of 2019 133 Stat. 966, the petitioners, who served on open sea ships off the Vietnamese shore during the Vietnam War believed that they may be entitled to a presumption of service connection for diseases covered by 38 U.S.C. 1116. The Secretary of Veterans Affairs stayed pending disability compensation claims until January 1, 2020. Petitioners assert that many Blue Water Veterans are dying and filed a petition for expedited review under 38 U.S.C. 502 challenging the Secretary’s authority to stay pending disability compensation claims. The Federal Circuit denied the petition. The court concluded that it had jurisdiction 5 U.S.C. 552(a)(1)(D) because the Secretary’s memorandum amounts to an “interpretation[] of general applicability formulated and adopted by the agency.” The Act unambiguously authorizes the Secretary to stay disability compensation claims described in section 2(c)(3)(B) of the Act “until the date on which the Secretary commences the implementation of [] section 1116A,” 133 Stat. at 968. View "Procopio v. Secretary of Veterans Affairs" on Justia Law

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Sergeant Mueller took a leave of absence from the Joliet Police Department to report for active duty in the Illinois National Guard Counterdrug Task Force. The Department placed him on unpaid leave, Mueller resigned from his National Guard position and sued the city and his supervisors for employment discrimination, citing the Uniformed Service Members Employment and Reemployment Rights Act (USERRA), which prohibits discrimination against those in “service in a uniformed service.” The district court dismissed, finding that National Guard counterdrug duty was authorized under Illinois law and not covered by USERRA. The Seventh Circuit reversed, finding that “service in the uniformed services” explicitly covers full-time National Guard duty, including counterdrug activities, 38 U.S.C. 4303(13). USERRA does not limit protection to those in “Federal service” like the Army or Navy but to those in “service in a uniformed service,” which explicitly includes Title 32 full-time National Guard duty. The Posse Comitatus Act likewise only bars the Army and Air Force from domestic law enforcement, but does not apply to Title 32 National Guard duty, 18 U.S.C. 1385. View "Mueller v. City of Joliet" on Justia Law

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McCord injured his back while serving in the Army and was discharged with a 20% disability rating. Because his rating was below 30% and he served for less than 20 years, McCord received severance pay instead of ongoing military retirement pay and received monthly VA benefits. The Army Board for Correction of Military Records later corrected his record to reflect a 30% disability rating and entitlement to medical retirement pay, rather than severance pay. McCord later challenged the government’s calculation of his entitlement to military retirement back pay and its claimed right to recover the severance pay and requested damages for medical expenses that he incurred because he was not afforded TRICARE coverage before the correction. The Claims Court rejected McCord’s approach to back pay calculation as “double-dipping,” denied relief regarding the recoupment of severance pay “as not ripe,” and held that McCord failed to exhaust administrative procedures for securing TRICARE benefits. The Federal Circuit affirmed except as to the out-of-pocket medical expenses. The court cited 10 U.S.C. 1201, 1203, 1212(d)(a), and 2774, as defining entitlement to retirement pay or severance pay, VA benefits, and the circumstances for recoupment of severance pay. A veteran receiving VA benefits may face a disadvantage if he also secures an award of military retirement pay because he would not be entitled to severance pay but military retirement pay includes TRICARE coverage. View "McCord v. United States" on Justia Law

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Louise and Frank married in 2000. Frank had served in the Air Force from 1974-1980 and, in 1989, began working for the Illinois State Police. While married, the parties paid $9626.40 to the State Retirement System, purchasing 48 months of permissive military service credit, 40 ILCS 5/14-103(j). Frank retired in 2011. In 2014, Louise filed a dissolution petition. The parties could not agree on the division of Frank’s pension. As of 2015, Frank’s monthly annuity payment was $9088.86. The purchased permissive service credit increased the monthly payment by $1363.33. The parties agreed that Louise should receive 50% of the marital portion of the pension but disagreed on whether the marital portion included the amount attributable to the permissive service credit. The trial court held that the permissive service credit was nonmarital because “what was purchased to enhance the pension ... was military time earned prior to the marriage” and ordered Frank to reimburse Louise $4813.20. The appellate court reversed, reasoning that Frank did not acquire the credit at the time of his military service. The Illinois Supreme Court affirmed, in favor of Louise. The permissive service credit was not “acquired” under that term’s ordinary and popularly understood meaning when Frank completed four years of active duty military service. Frank did not obtain or come into possession or control of the credit when he completed his active duty military service; his prior military service, by itself, does not have any value relative to his Illinois pension under the Pension Code. View "In re Marriage of Zamudio" on Justia Law

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McGuffin began his employment with SSA as a preference-eligible veteran, entitled to receive CSRA (Civil Service Reform Act, 92. Stat. 1111) protections after one year. During his first months, McGuffin had a low case completion rate and had cases that were past the seven-day benchmark. He requested training; SSA sent him to a training course. SSA was apparently otherwise satisfied with his work. About eight months after his hiring, SSA began to consider terminating McGuffin. It was noted that, as a preference-eligible veteran in the excepted service, McGuffin would acquire procedural and appellate rights after completing one year of service, so that “McGuffin must be terminated prior to the end of his first year” while another employee could be terminated "within her 2-year trial work period.” Although his work improved, four days before attaining full employee status, SSA terminated McGuffin for failure to “satisfactorily perform the duties” of the attorney advisor position. In a case under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301–35, which prohibits discrimination based on military service, the Federal Circuit reversed the Merit Systems Protection Board. SSA closed the door on McGuffin before the end of his first year to avoid the inconvenience of defending itself should McGuffin assert his procedural CRSA safeguards. McGuffin’s preference-eligible veteran status was a substantial factor in SSA’s termination decision. McGuffin was not performing so poorly as to justify the rush to remove him. View "McGuffin v. Social Security Administration" on Justia Law

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Montelongo was a West Point student cadet, 1973-1977, then served in the Army 1977-1996, from which he retired. From June 21, 2001, to March 28, 2005, Montelongo served as a civilian presidential appointee in the Air Force. An Air Force human resources officer advised Montelongo that his time as a cadet could be “bought back” and credited toward an eventual civil service annuity under the Federal Employees Retirement System (FERS), 5 U.S.C. 8401–8479. Montelongo made the small payment to “buy back” his four years at West Point and, in 2017, applied for a FERS annuity. The Office of Personnel Management and the Merit Systems Protection Board concluded, and the Federal Circuit affirmed, that only his time as a presidential appointee (just under four years) counted as creditable civilian service. Montelongo did not satisfy the five-year threshold requirement for a FERS annuity. Montelongo’s cadet time was “military service” that was creditable service under 5 U.S.C. 8411(c)(1) but was not “civilian service” for which section 8410 sets a five-year minimum for annuity qualification. View "Montelongo v. Office of Personnel Management" on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of the Association's complaint, seeking injunctive and declaratory relief under Section 504 of the Rehabilitation Act regarding the Association's provision of diabetes-related care in the U.S. Army's Child, Youth, and School Services (CYSS) programs. When this action began in 2016, the Army had in place United States Army Regulation 608-10 and a 2008 Family and Morale, Welfare and Recreation Command Memorandum (collectively, "Old Policy"), which together prohibited CYSS staff from providing essential medical care for diabetic children. In 2017, defendants revoked the Old Policy and replaced it with a New Policy that provides for possible diabetes-related accommodations. The panel held that the Association's challenge to the Old Policy was moot. In this case, defendants have satisfied their burden of clearly showing that they cannot reasonably be expected to reinstitute the Old Policy's blanket ban. Therefore, because the Association seeks only prospective relief, its challenge to the policy, and the injuries incurred thereunder, were moot. The panel also held that the Association lacked standing to challenge the New Policy, because the Association lacked organizational standing by failing to show an injury in fact, and representational standing where none of its members had standing to sue in their own right. View "American Diabetes Assoc. v. United States Department of the Army" on Justia Law

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Sharpe checked in aboard the USS Carl Vinson in 2006. The aircraft carrier was undergoing an overhaul and was uninhabitable. Sharpe was instructed to report to the Media Department in the Newport News complex. Sharpe regularly reported to this onshore location throughout his assignment. He never performed regular duties onboard the Carl Vinson nor did he “eat, work, live, stand watch or serve any punishment aboard" any ship. In 2007, a reporter contacted the Fleet Forces Public Affairs Office about Sharpe’s alleged involvement in “hate group activity.” Sharpe was ordered to report to his home while NCIS investigated. Sharpe was informed that the Commanding Officer intended to impose a non-judicial punishment; the CO issued a punitive letter of reprimand. Sharpe inquired about demanding a trial by court-martial. The CO cited the “vessel exception,” which denies the right of a service member “attached to or embarked in a vessel” to refuse a non-judicial punishment and demand a trial by court-martial, 10 U.S.C. 815(a). The Assistant Secretary of the Navy approved a recommendation to discharge Sharpe. Sharpe formally separated from the Navy in 2009. In 2012, Sharpe submitted a successful application for Correction of Naval Record, requesting reinstatement and that his naval record be corrected by removing documentation pertaining to his non-judicial punishment. The Federal Circuit affirmed the Claims Court’s determinations with respect to back payment of regular and special pay, allowances, allotments, compensation, emoluments, and other pecuniary benefits. View "Sharpe v. United States" on Justia Law

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Cameo Williams, Sr. was a veteran of the United States Army, who spent his entire service stateside - never overseas or in combat. But for years, based on false statements about combat service, he obtained VA benefits for combat-related PTSD. The issue presented for the Tenth Circuit Court of Appeals in this case was whether it mattered about Williams’ lies about overseas service to obtain his PTSD benefits. The Court rejected Williams’s argument that his lie was not material under 18 U.S.C. 1001(a)(2), as well as his two challenges to evidentiary rulings. View "United States v. Williams" on Justia Law