Justia Military Law Opinion Summaries

Plaintiff appealed the district court's grant of the government's motion to dismiss and, in the alternative, for summary judgment, on plaintiff's claims that the cadet separation procedures of the United States Military Academy at West Point fail to provide due process and that plaintiff's separation proceedings violated West Point's own regulations in a manner that substantially prejudiced him.The Second Circuit affirmed, concluding that West Point's cadet separation procedures satisfy due process and that the intra military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders plaintiff's regulatory claims nonjusticiable. The court explained that plaintiff was not substantially prejudiced by any purported regulatory deviation and the court may not circumvent the doctrine to engage in a fact-specific inquiry as to whether military personnel properly applied the military's own evidentiary standard. View "Doolen v. Wormuth" on Justia Law

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

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

The Ninth Circuit affirmed the district court's denial of habeas relief to petitioner, who is challenging his 2012 court-martial conviction for one count of aggravated sexual assault and two counts of wrongful sexual conduct. In United States v. Hills, 75 M.J. 350 (C.A.A.F.2016), which was decided after petitioner's conviction became final, the Court of Appeals for the Armed Forces held unconstitutional a pattern jury instruction on Military Rule of Evidence (M.R.E.) 413 under which jurors may consider evidence of any one charged sexual offense as showing the defendant's propensity to have committed any of the other charged sexual offenses.Although Hills announced a new rule which held that the use of charged sexual offenses to show propensity to commit other charged sexual offenses violated the presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, as guaranteed by the Fifth Amendment, the panel held that the rule does not fall under either exception for nonretroactivity because it is neither a substantive rule nor a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Therefore, Hills does not apply retroactively in petitioner's case. View "Lewis v. United States" on Justia Law

Plaintiffs filed suit against the Government, alleging that the male-only military draft unlawfully discriminates based on sex. The Military Selective Service Act requires essentially all male citizens and immigrants between the ages of eighteen and twenty-six to register with the Selective Service System. The district court granted plaintiffs declaratory judgment and held that requiring only men to register for the draft violated their Fifth Amendment rights.The Fifth Circuit reversed, holding that the district court's judgment directly contradicts the Supreme Court's holding in Rostker v. Goldberg, 453 U.S. 57, 78–79 (1981). In Rostker, the Supreme Court held that the male-only Selective Service registration requirement did not offend due process where women at the time were barred from combat. The court explained that here, as in State Oil Co. v. Khan, 522 U.S. 3, 22 (1997), the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent. Accordingly, the court dismissed the case. View "National Coalition for Men v. Selective Service System" on Justia Law

Jackson served in the Marine Corps, 1977-1991. Almost 30 years after his honorable discharge, Jackson filed a pro se complaint alleging that toward the end of his military career, his supervising officers discriminated against him because he is a black male, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. The district court inferred additional claims under the Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A), and the Military Pay Act, 37 U.S.C. 204 but ultimately dismissed all of Jackson’s claims. The D.C. Circuit affirmed. The court noted the unanimous rulings of other sister circuits, concluding that Title VII does not apply to uniformed members of the armed forces. Jackson’s APA claim was untimely and, although the limitations period is no longer considered jurisdictional, the facts alleged were insufficient to apply equitable tolling. Jackson was able to manage his affairs and comprehend his rights; he alleged that at the time of the alleged discrimination, he knew that he “had been subjected to wrongdoing and strongly desired justice.” The court concluded that it lacked jurisdiction to review the dismissal of Jackson’s Military Pay Act claim; the Court of Appeals for the Federal Circuit has exclusive jurisdiction of such claims. View "Jackson v. Modly" on Justia Law

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

Transgender individuals who serve in the military or seek to do so, joined by the State of Washington, filed suit alleging that the August 2017 Memorandum, implementing President Trump's Twitter announcement that transgender individuals would not be allowed to serve in the military, unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum and defendants appealed.In the meantime, the then-Secretary of Defense studied the issue and produced a report recommending that the President revoke the 2017 Memorandum in order to adopt the report's recommendation. The President revoked the 2017 Memorandum and authorized the Secretary to implement the policies in the report (the 2018 Policy). Defendants then requested that the district court resolve the preliminary injunction on the basis of the new 2018 Policy.The Ninth Circuit vacated the district court's order striking defendants' motion to dissolve the preliminary injunction and remanded to the district court for reconsideration. In light of the Supreme Court's January 22, 2019 stay of the district court's preliminary injunction, the panel stayed the preliminary injunction through the district court's further consideration of defendants' motion to dissolve the injunction. Furthermore, the panel issued a writ of mandamus vacating the district court's discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984). View "Karnoski v. Trump" on Justia Law

The Fifth Circuit affirmed the district court's dismissal of plaintiff's retaliation claim for lack of subject matter jurisdiction and grant of summary judgment for the VA on plaintiff's discrimination claim. Plaintiff filed his retaliation claim after he was subjected to a peer review process to look into his medical care of a patient who suffered renal failure. Plaintiff amended his complaint to add the discrimination claim after the VA issued a memorandum addressing an incident where plaintiff left a patient alone and outlining future expectations.In regard to the retaliation claim, the court held that plaintiff failed to exhaust his administrative remedies because he filed in federal court prematurely, and failed to make a waiver or estoppel argument to excuse his failure to exhaust. The court also held that plaintiff failed to raise a genuine issue of material fact as to the third element of the prima facie case of racial discrimination where he failed to show an adverse employment action. In this case, the VA's peer review process was not an adverse employment action under Title VII. View "Stroy v. Gibson" on Justia Law

Lt. Harris has been an officer in the Navy since 2005. He was arrested by civilian authorities in 2013 for sexual offenses involving minors and was held in confinement until his 2015 conviction and sentencing. Between his arrest and conviction, the Navy withheld Harris’s pay pending the outcome of his criminal proceedings. Based on his conviction, the Navy determined that, under the Military Pay Act, 37 U.S.C. 204, and Department of Defense regulations, Harris’s absence was unexcused and he was not entitled to any pay for his absence during confinement. The Federal Circuit affirmed the Claims Court’s dismissal of his suit, in which he sought back pay, challenged the civilian court’s jurisdiction to convict him, and claimed due process violations. Harris failed to state a claim under the Military Pay Act because he was convicted of his crimes, and was not entitled to pay during his unexcused absence. Harris failed to state a due process claim because he was not statutorily eligible to receive pay during his detention; the Fifth and Fourteenth Amendments were not implicated. The Claims Court lacked jurisdiction to review the jurisdiction of civilian authorities to prosecute and convict him as a military service member. View "Harris v. United States" on Justia Law