Justia Military Law Opinion Summaries

Articles Posted in Civil Procedure
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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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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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Plaintiff Deborah Foster sought to hold defendant Ray Foster, in contempt of court for failing to abide by a provision in their consent judgment of divorce. The judgment stated that defendant would pay plaintiff 50% of his military disposable retired pay accrued during the marriage or, if defendant waived a portion of his military retirement benefits in order to receive military disability benefits, that he would continue to pay plaintiff an amount equal to what she would have received had defendant not elected to receive such disability benefits. Defendant subsequently elected to receive increased disability benefits, including Combat-Related Special Compensation (CRSC) under 10 USC 1413a. That election reduced the amount of retirement pay defendant received, which, in turn, reduced plaintiff’s share of the retirement benefits from approximately $800 a month to approximately $200 a month. Defendant did not comply with the offset provision by paying plaintiff the difference. The trial court denied plaintiff’s request to hold defendant in contempt, but ordered him to comply with the consent judgment. Defendant failed to do so, and plaintiff again petitioned for defendant to be held in contempt. Defendant did not appear at the hearing, but argued in a written response that the federal courts had jurisdiction over the issue. The court found defendant in contempt, granted a money judgment in favor of plaintiff, and issued a bench warrant for defendant’s arrest because of his failure to appear at the hearing. At a show-cause hearing in June 2014, defendant argued that 10 USC 1408 and 38 USC 5301 prohibited him from assigning his disability benefits and that the trial court had erred by not complying with federal law. The court found defendant in contempt and ordered him to pay the arrearage and attorney fees. The Michigan Supreme Court held that the type of federal preemption at issue in this case did not deprive state courts of subject-matter jurisdiction. As a result, the Supreme Court concluded defendant’s challenge to enforcement of the provision at issue was an improper collateral attack on a final judgment. View "Foster v. Foster" on Justia Law

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Scholz was honorably discharged following her 2006-2008 Army tour of duty in Iraq but the mental and physical toll of her service continued. Scholz required a range of medical treatments. Scholz sought two courses of inpatient mental health treatment at the Tomah VA Medical Center in 2011. Later, while receiving outpatient mental health treatment through the Tomah VAMC, she consulted surgeons at the Zablocki VA Medical Center about elective breast reduction surgery. An unrelated psychological assessment performed at Zablocki VAMC raised concerns about Scholz’s mental health. Zablocki VAMC surgeons performed elective breast reduction surgery in 2012, igniting multiple complications. Scholz continued to receive outpatient mental health treatment, including prescription medications, from various VA providers through late 2018.Scholz has two lawsuits pending against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671–2680. The government argued that the second suit on the same, or essentially the same, operative facts, was precluded on claim-splitting grounds. The Seventh Circuit affirmed the dismissal of the suit. Scholz’s theory amounts to “arbitrarily splitting the treatment timeline.” In both suits, she mentions her treatment for mental health issues, her breast reduction surgery, the unsafe prescribing of medications, and improper record handling. Both suits arise out of Scholz’s treatment at various VA locations in 2011-2018 and mention the same alleged incidents. View "Scholz v. United States" on Justia Law

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Larson served on active duty for training in the Navy Reserves in 1988 and on active duty in the Navy, 1989-1993. He gained a substantial amount of weight before, during, and after his active service. In 2009, Larson filed a claim for service connection for multiple conditions, including obesity and dysmetabolic syndrome (DMS). The VA denied the claims in 2010. The Board affirmed that denial in 2016, holding that neither DMS nor obesity was a disability because neither condition is ratable under the VA Schedule of Rating Disabilities. The Veterans Court affirmed the denial of service connection for DMS and obesity, holding that it lacked jurisdiction to review a Board determination of what constitutes a disability under 38 U.S.C. 1110 because such inquiry amounted to a review of the rating schedule, prohibited by 38 U.S.C. 7252(b).The Federal Circuit reversed, noting that it has previously held that the Veterans Court has jurisdiction to review a Board determination that a claimed condition did not constitute a disability for purposes of section 1110. Larson seeks only to establish a service connection for his conditions and is not asking the Veterans Court to invalidate or revise any portion of the rating schedule. View "Larson v. McDonough" on Justia Law

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In 1982, while serving in the Air Force in Germany, Jones was struck in the eye by the door of an armored personnel carrier. He developed intense headaches; it became increasingly difficult for Jones to perform his duties. A 1988 Clinical Resume reflects that Jones had developed “intermittent right cranial nerve 4th palsy associated with chronic right retro-orbital stabbing pain, usually occurring during the late afternoon or night.” Jones described "a nearly constant headache which was relieved only with repetitive doses of intramuscular Demoral.” A Physical Evaluation Board recommended that Jones be discharged with severance pay based on a 10% disability rating for “Post-traumatic pain syndrome manifest[ing] as headaches.”Jones was honorably discharged with severance pay. In 1989, his discharge was amended to reflect that his injury was combat-related. Effective in 2017, the VA awarded Jones a 100% disability rating. Jones petitioned the Air Force Board for Correction of Military Records for changes to his record that would entitle him to a disability retirement dating back to 1988, when he was discharged, 10 U.S.C. 1201. The Board denied Jones’s petition. The Federal Circuit affirmed the Claims Court: the claim for disability retirement pay and benefits was a claim under a money-mandating statute, as required by the Tucker Act, 28 U.S.C. 1491(a)(1), but jurisdiction was lacking because the claim was barred by the six-year statute of limitations, 28 U.S.C. 2501. View "Jones v. United States" on Justia Law

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Tadlock served in the Army, 1982-2003, including service in the Persian Gulf. In 2010, he suffered a pulmonary embolism (PE) that resulted in a heart attack. Tadlock sought presumptive service connection under 38 U.S.C. 1117, which refers to a “qualifying chronic disability” for veterans who served in the Persian Gulf War. The regulations limit the definition of “qualifying chronic disability” to one that, “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” Tadlock underwent a final medical examination by a VA physician, who explained that Tadlock’s PE “is not an undiagnosed illness.” The Board of Veterans Appeals based its denial of service connection on that opinion.Neither the Board nor the examiner made any finding that Tadlock’s condition was not a “medically unexplained chronic multisymptom illness” (MUCMI). Tadlock contended that the statute expressly includes both “an undiagnosed illness” and a MUCMI. The Veterans Court found that Tadlock's PE was "not characterized by overlapping signs and symptoms and unique features ... and disproportional disability when compared with physical findings.” It held that "any error in the Board decision regarding whether his diagnosed illness could count as a MUCMI is harmless.”The Federal Circuit vacated. The Veterans Court exceeded its authority in making a fact-finding in the first instance that Tadlock’s illness did not qualify as a MUCMI because of a lack of overlapping symptoms. The Veterans Court’s jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate. View "Tadlock v. McDonough" on Justia Law

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The “effective date of an award” of disability compensation to a veteran “shall not be earlier than the date” the veteran’s application for such compensation is received by the VA. 38 U.S.C. 5110(a)(1). Section 5110(b)(1) provides an exception that permits an earlier effective date if the VA receives the application within one year of the veteran’s discharge from military service: under such circumstances, the effective date of the award shall date back to “the day following the date of the veteran’s discharge or release.”Arellano filed his application more than 30 years after he was discharged from the Navy, he argued that section 5110(b)(1)’s one-year period should be equitably tolled to afford his award an earlier effective date reaching back to the day after his discharge. The Veterans Court denied Arellano an effective date earlier than the date his disability benefits application was received by the VA. The Federal Circuit previously held that 5110(b)(1) is not a statute of limitations amenable to equitable tolling but merely establishes an effective date for the payment of benefits, thereby categorically foreclosing equitable tolling. The Federal Circuit affirmed as to Arellano, declining to overrule that precedent, stating that the statutory text evinces clear intent to foreclose equitable tolling of section 5110(b)(1)’s one-year period. View "Arellano 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