Justia Military Law Opinion Summaries

Articles Posted in Military Law
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Enacted pursuant to Article I of the Constitution, the Uniformed Services Employment and Reemployment Rights Act (USERRA), gives returning service members the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities, 38 U.S.C. 4301. Torres, a state trooper, was called to active duty in the Army Reserves and deployed to Iraq, where he was exposed to toxic burn pits. Torres, honorably discharged, returned home with constrictive bronchitis. Torres asked his former employer to accommodate his condition by re-employing him in a different role. Texas refused. A state court held that his USERRA claims should be dismissed based on sovereign immunity.The Supreme Court reversed. By ratifying the Constitution, the states agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Congress may exercise this power to authorize private damages suits against nonconsenting states, as in USERRA.The test for whether the structure of the original Constitution itself reflects a waiver of states’ immunity is whether the federal power is “complete in itself, and the states consented to the exercise of that power—in its entirety—in the plan of the Convention.” Congress’ power to build and maintain the Armed Forces fits that test. Congress has long legislated regarding military forces at the expense of state sovereignty. USERRA expressly “supersedes any State law . . . that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.” View "Torres v. Texas Department of Public Safety" on Justia Law

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Long served in the Air Force, 1969-1976 and spent most of that time as an air traffic control radar repairman, working without ear protection near active runways. In 2009, Long filed a disability compensation claim for hearing loss and tinnitus. The Department of Veterans Affairs found his hearing loss and tinnitus were service-connected, assigning a 0% disability rating for his hearing loss and a 10% disability rating for his tinnitus according to the schedular rating criteria, 38 C.F.R. 4.85. The Board of Veterans’ Appeals denied his request for an extra-schedular rating. Long had argued that the schedular rating criteria did not capture the functional effects of his hearing loss, including ear pain caused by his hearing aids. The Veterans Court affirmed, finding no direct causal link between Long’s ear pain and his service-connected hearing loss.The Federal Circuit vacated. A secondary condition is considered service-connected if it is “proximately due to or the result of” a service-connected disability. Direct causation is not required. The court remanded, stating that the Veterans Court engaged in impermissible fact-finding. View "Long v. McDonough" on Justia Law

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Bowling and Appling were discharged from military service under conditions other than honorable. Each eventually sought veterans’ benefits. Their discharges would statutorily bar the benefits at issue unless they came within an exception that applies where an offense led to the discharge and the service member was “insane” at the time of the offense, 38 U.S.C. 5303(b). The Board of Veterans’ Appeals found the regulatory definition of “insane” not to be met either in either case. The Veterans Court rejected their argument of unconstitutional vagueness of the insanity-defining regulation on its face, though not as applied to them. The court declined to take judicial notice of material outside the record, such as a publication by advocates for veterans addressing VA actions across a range of cases over many years.The Federal Circuit affirmed. The court upheld the Veterans Court’s refusal to take judicial notice; there was no "futility" in developing the record on the constitutional issue before the Board even if the Board could not have held the regulation unconstitutional. The Board could have performed at least record-development functions and associated fact-finding functions. The facial-vagueness challenge fails on the merits. The court noted that the regulation does not call for a categorical approach to interpretation. View "Bowling v. McDonough" on Justia Law

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The U.S. military sprayed over 17 million gallons of herbicides over Vietnam during “Operation Ranch Hand,” primarily Agent Orange. Concerns about the health effects of veterans’ exposure to Agent Orange led to the Agent Orange Act of 1991, 105 Stat. 11. For veterans who served in the Republic of Vietnam during a specified period, the Act presumes exposure to an herbicide agent containing 2,4-D or dioxin, 38 U.S.C. 1116(f), and presumes a service connection for certain diseases associated with herbicide-agent exposure, such as non-Hodgkin’s lymphoma and soft-tissue sarcoma. The VA subsequently issued regulations extending similar presumptions to other groups of veterans. In 2017, the House of Representatives Armed Services Committee expressed concern that additional exposures to Agent Orange may have occurred in Guam.In 2018, MVA petitioned the VA to issue rules presuming herbicide-agent exposure for veterans who served on Guam or Johnston Island during specified periods. The VA denied MVA’s petition. The Federal Circuit rejected MVA’s petitions under 38 U.S.C. 502 to set aside the VA’s denial. MVA has not shown that the VA’s determination that the evidence did not warrant presuming exposure for every single veteran who served in named areas during the relevant period was contrary to law nor that the denial “lacked a rational basis.” View "Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs" on Justia Law

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George joined the Marine Corps in 1975 without disclosing his history of schizophrenic episodes. His medical examination noted no mental disorders. George suffered an episode during training. The Marines medically discharged him. George applied for veterans’ disability benefits based on his schizophrenia, 38 U.S.C. 1110. The Board of Veterans’ Appeals denied his appeal from a regional office denial in 1977. In 2014, George asked the Board to revise its final decision. When the VA denies a benefits claim, that decision generally becomes “final and conclusive” after the veteran exhausts the opportunity for direct appeal. George sought collateral review under an exception allowing revision of a final benefits decision at any time on grounds of “clear and unmistakable error,” 38 U.S.C. 5109A, 7111. He claimed that the Board applied a later-invalidated regulation to deny his claim without requiring the VA to rebut the statutory presumption that he was in sound condition when he entered service.The Veterans Court, Federal Circuit, and Supreme Court affirmed the denial of relief. The invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error. Congress adopted the “clear and unmistakable error doctrine” developed under decades of prior agency practice. The invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice, not “clear and unmistakable error.” That approach is consistent with the general rule that the new interpretation of a statute can only retroactively affect decisions still open on direct review. The fact that Congress did not expressly enact the specific regulatory principle barring collateral relief for subsequent changes in interpretation does not mean that the principle did not carry over. View "George v. McDonough" on Justia Law

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Groves served in the Army on active duty, 1970-1971, including service in Vietnam. In 1990, a VA regional office awarded Groves benefits for PTSD, shell fragment wounds, and a nerve injury. In 1998, Groves sought education benefits through the Vocational Rehabilitation and Employment (VRE) program. Groves never attended the initial VRE evaluation—due at least in part to the isolated nature of his town and his asserted inability to travel—notwithstanding the VA counseling officer’s attempts to accommodate Groves over a period of years. During the ensuing proceedings, Groves twice sent the VA letters in which he stated that he “enjoin[ed]” further action on the claims.“The Board of Appeals ultimately denied Groves entitlement to VRE benefits, finding that his letters did “not constitute[] withdrawal[s] of the appeal, such that there [was] no basis for the Board to not proceed.” The Veterans Court affirmed, finding that the Board lacked authority to adjudicate Groves’s appeal under “Hamilton,” which required an automatic stay when requested by a veteran but that any error was harmless. The Federal Circuit vacated. The Veterans Court legally erred in finding that the Board was compelled to grant an automatic indefinite stay of proceedings; it should have determined whether Groves had established good cause for a stay and, if so, the appropriate duration and conditions of the stay. View "Groves v. McDonough" on Justia Law

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In 2013, while in the Navy, Appellee A.L. had intercourse with the adult victim when her ability to consent was impaired by alcohol. He was charged with sexual assault under the Uniform Code of Military Justice. Appellee was tried by general court-martial, with a panel of service members acting as fact-finders. The panel returned a verdict of guilty. Appellee was sentenced to sixty days’ confinement, a reduction in rank, and a dishonorable discharge. He appealed to the United States Navy-Marine Corps Court of Criminal Appeals, which affirmed the conviction and sentence. After his discharge from the Navy, Appellee moved to Pennsylvania. He registered with the Pennsylvania State Police (“PSP”) as a sex offender subject to registration under Sexual Offender Registration and Notification Act (“SORNA”). The PSP determined Appellee’s crime triggered a Tier III registration obligation. Appellee appealed that designation, arguing PSP’s action was adjudicative and not merely ministerial. The Pennsylvania Supreme Court allowed appeal in this matter to determine whether sexual assault as defined under the Uniform Code of Military Justice was comparable to sexual assault as defined under the Pennsylvania Crimes Code so as to make Appellee a lifetime SORNA registrant. The Supreme Court concluded the military statute under which Appellee was convicted effectively defined two crimes, and PSP lacked a valid foundation to discern which of the two formed the basis for the military panel’s finding of guilt. Therefore, Appellee’s court-martial conviction could not be the basis for his classification as a Tier III registrant. View "A. L. v. PA State Police" on Justia Law

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On active Army duty in the 1970s, Kennedy fell from a lawnmower and injured his knee. Although no disability was noted at his discharge, Kennedy received service connection for his knee injury in 2000. He later received service connection for depression secondary to his knee injury. In 2005, Kennedy died; his death certificate listed “melanoma, metastatic” as the immediate cause of death and listed “other significant conditions contributing to death,” including diabetes, hypertension, and “depression disorder.” Mrs. Kennedy three times unsuccessfully sought Dependency and Indemnity Compensation (DIC), 38 C.F.R. 3.114. The VA found no evidence that Kennedy’s death was related to military service.In 2013, VA “Fast Letter 13-04, “Simplified Processing of Dependency and Indemnity Compensation (DIC) Claims,” instructed personnel to grant “service connection for the cause of death when the death certificate shows that the service-connected disability is [a] . . . contributory cause of death.” In 2015, the VA granted Mrs. Kennedy DIC, effective July, 2015. The Board of Appeals denied her appeal of the effective date, explaining that Fast Letter 13-04 was a “change[] to VA procedural manuals and guidance provisions,” not a liberalizing law or liberalizing VA issue. The Veterans Court affirmed, reasoning that Fast Letter 13-04 does not constitute a VA issue approved by the Secretary because it does not bind the Agency. The Federal Circuit affirmed. Kennedy forfeited her argument that the Veterans Court erred in its interpretation of “VA issue.” View "Kennedy v. McDonough" on Justia Law

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A former military prisoner violated a condition of his supervision. After being arrested and while being detained, he brought the current lawsuit claiming that the condition he violated was unconstitutional. He has been released, and his term of supervision has ended. He has been denied all veterans’ benefits due to the violation. The court addressed whether the denial of the benefits is a collateral consequence sufficient to avoid finding his claim to be moot now that he has completed his term of supervision.Plaintiff argues that his claims remain viable because of collateral consequences resulting from his alleged violation of the special condition. The Department of Veterans Affairs notified him that his benefits were terminated because he was a “fugitive felon”. The VA stated to Plaintiff that he would have to provide evidence showing that he was not a fugitive felon to resume his benefits.The court explained that there is little authority on whether the denial of VA benefits would be a collateral consequence sufficient to defeat an otherwise moot habeas petition. The loss of VA benefits due to his violation of the condition challenged in his petition may be an ongoing collateral consequence that prevents this case from being moot. However, the court stated while some of Plaintiff's claims are moot they cannot make a holding in the absence of briefing from the government. Thus, the court remanded the issue for the district court to consider. View "Foster v. Warden, et al" 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