Justia Military Law Opinion Summaries

The Department of Defense has detained Petitioner at Guantanamo Bay, Cuba, for over two decades. In 2008, a military commission convicted Petitioner of conspiracy to commit various war crimes. He now seeks judicial review of his ensuing life sentence. Petitioner moved to disqualify Judge Katsas based on my involvement in other Guantanamo Bay detainee litigation while serving in the Department of Justice between 2001 and 2009.   Judge Katsas denied the motion to disqualify. The court explained that Section 455 of Title 28 establishes disqualification standards for federal judges. Section 455(b) lists five specific circumstances requiring disqualification. Petitioner cites these provisions and a handful of cases applying them for the general proposition that a judge “may not hear a case in which he previously played any role.” The court wrote that Section 455(a) is a more general “catch-all” provision, and the court should not lightly use it to shift the lines specifically drawn in section 455(b). At most, that should occur only in “rare and extraordinary circumstances,” which are not present here. Judge Katsas wrote that in short, his work at DOJ does not disqualify him under the specific rules set forth in section 455(b), and no other consideration tips the balance in favor of disqualification under section 455(a). View "Ali Hamza Ahmad al Bahlul v. USA" on Justia Law

May is a disabled child of a deceased veteran. The VA found that May was disabled from birth, with permanent incapacity for self-support, and granted him entitlement to dependency and indemnity compensation (DIC) benefits in October 2018, with an effective date of May 18, 2016, concluding that May’s entitlement to DIC benefits ended on February 1, 2017, when he married. May sought reinstatement of DIC benefits based on his divorce. May filed a notice of appeal to the Veterans Court in February 2021, listing the date of the Board’s decision as February 19, 2019. The Board had not rendered a decision on February 19, 2019; rather, May had received correspondence that day from a VA regional office certifying an appeal to the Board.The Veterans Court ordered May to show cause why his appeal should not be dismissed. In letters, May asked that his appeal not be dismissed and that his benefits be reinstated. May did not identify a Board decision from which he was appealing, nor did he argue that the Board had unreasonably delayed its decision. The Federal Circuit affirmed the dismissal of the appeal for lack of jurisdiction. The court’s jurisdiction is limited to appeals from Board decisions; absent such a decision, it could not consider May’s appeal, 38 U.S.C. 7252(a), 7266(a)). View "May v. McDonough" on Justia Law

This case arises from major flooding events in the Houston area in 2016 and 2017. Local political subdivisions sued the United States Army Corps of Engineers, seeking compliance with alleged regulatory obligations. The district court dismissed with prejudice for lack of subject matter jurisdiction and for failure to state a claim. The fundamental issue in the case is whether the Corps has violated any enforceable, legal obligation in the management of the relevant dams and reservoirs. A potential source for obligations imposed on the Corps is the 2012 Water Control Manual (“WCM”) adopted by the Corps for flood control in the relevant watershed.   The Fifth Circuit reversed and remanded. The court held that Section 702 of the APA has been satisfied in that the complaint alleges Plaintiffs have been aggrieved by agency action, that the suit is not one for money damages, and that the injury arises from an officer or employee who has acted or failed to act in an official capacity or under color of law. Further, the court held that the Tucker Act does not provide an “adequate remedy” to the County’s claims within the meaning of Section 704. Further, the court wrote that since the regulation does not specify when such conditions require the Corps to update a WCM, the Corps must exercise discretion in deciding when updating a WCM is necessary. Such discretion is antithetical to a mandatory duty. Thus the court concluded there is no discrete, mandatory duty to revise. View "Ft Bend Cty v. US Army Corps" on Justia Law

Approximately 30 years after Arellano’s honorable discharge from the Navy, a VA regional office granted Arellano service-connected disability benefits for his psychiatric disorders. Applying the default rule in 38 U.S.C. 5110(a)(1), the VA assigned an effective date of June 3, 2011—the day that it received Arellano's claim—to the award. Arellano argued that the effective date should be governed by an exception in section 5110(b)(1), which makes the effective date the day following the date of the veteran’s discharge or release if the application “is received within one year from such date of discharge or release.” Alleging that he had been too ill to know that he could apply for benefits, Arellano maintained that this exception’s one-year grace period should be equitably tolled to make his award effective the day after his 1981 discharge.The Board of Veterans’ Appeals, Veterans Court, Federal Circuit, and Supreme Court disagreed. Section 5110(b)(1) is not subject to equitable tolling. Equitably tolling one of the limited exceptions would depart from the terms that Congress “specifically provided.” The exceptions do not operate simply as time constraints, but also as substantive limitations on the amount of recovery due. Congress has already considered equitable concerns and limited the relief available, aware of the possibility that disability could delay an application for benefits. View "Arellano v. McDonough" on Justia Law

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

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

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

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

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

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