Justia Military Law Opinion Summaries

Roane served in the Navy from 1981-1991. In 2013, he underwent vocational rehabilitation for disabilities, including sciatic nerve paralysis, degenerative spinal arthritis, and limited knee flexion. In 2017, he applied for total disability based on individual unemployability (TDIU), alleging that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. He then had a combined disability rating of 70 percent, 38 U.S.C. 1117. Between 2016-2019, several VA examinations established his inability to sit or stand for extended periods and difficulty changing positions from sitting to standing. In 2017, a peripheral nerve examiner opined that despite these limitations, he should be able to “seek and maintain a substantially gainful light physical or sedentary type of employment.” The VA regional office denied his TDIU claim. Roane submitted additional evidence, including a private vocational assessment where the expert opined that his difficulties with prolonged sitting, standing, and walking “affect his ability to perform any type of substantially gainful employment, even sedentary employment.”The Board found that Roane’s service-connected disabilities met the rating requirement of 70 percent for TDIU, noting Roane’s college education, skills, and experience. The Veterans Court and Federal Circuit affirmed. The Veterans Court properly interpreted the benefit-of-the-doubt rule under 38 U.S.C. 5107 and applied the appropriate standard of review to the Board’s application of that rule under 7261(b)(1). View "Roane v. McDonough" on Justia Law

Plaintiffs, in this case, are a group of Mississippi municipalities and associations harmed and threatened by this turn of events. They sued the Army Corps of Engineers (the “Corps”) under Administrative Procedure Act (APA) Section 706(1) for the Corps’ refusal to prepare a supplemental Environmental Impact Statement (EIS) as assertedly required by NEPA and accompanying regulations. Invoking the federal government’s sovereign immunity, the Corps moved to dismiss for lack of subject matter jurisdiction. The parties agreed on the legal question at issue—namely, whether NEPA and related regulations impose on the Corps a discrete duty to act that a federal court can compel it to honor under APA Section 706(1)—but disagreed on the answer to the question.   The Fifth Circuit affirmed the district court’s ruling granting summary judgment to the Corps. The court explained that because the Corps has no duty to prepare the supplemental EIS the plaintiffs seek, Plaintiffs have no APA claim for unlawful agency inaction, and the Corps is immune from their suit claiming otherwise. For better or worse, Congress and the Corps have authority to act on Plaintiffs’ dire environmental concerns. The federal courts do not. View "Harrison County, MS v. U.S. Army Corps" on Justia Law

Military-Veterans Advocacy (MVA) filed suit under 38 U.S.C. 502, seeking review and revision of certain instructions and practices set forth in the Veterans Affairs Adjudication Procedures Manual (M21-1 Manual), which provides guidance and instructions to the administrators of veterans’ benefits and claims, by interpreting and coordinating the application of statutes, regulations, policies, and judicial decisions. The M21-1 Manual “limits VA staff discretion, and, as a practical matter, impacts veteran benefits eligibility for an entire class of veterans.”The Federal Circuit dismissed challenges to presumptions and procedures concerning Vietnam-era exposure to the Agent Orange defoliant. MVA waived its challenge to the “Thailand Rules.” The VA’s interpretation of the “Blue Water Navy Rule” of 2019 did not unduly narrow the presumption of exposure and service connection as applied to shipboard service. MVA’s challenge to the “Airspace Rule” is barred by the six-year limit provided in section 2401(a) because the rule has been in full force and effect since 1993. Even if the time bar did not apply, Congress has consistently preserved the high-altitude exception to the presumption of exposure since its adoption in 1993. View "Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs" on Justia Law

Jeremiah Sullivan, III, appeals a stipulated judgment of dissolution of marriage. He challenged a 2018 order that was incorporated into the stipulated judgment, in which the family court found that it lacked jurisdiction to divide his ex-wife Lisa Sullivan’s military pension under the Federal Uniformed Services Former Spouse’s Protection Act (FUSFSPA). Jeremiah argued the court erred because Lisa “consent[ed] to the jurisdiction of the Court.” The Court of Appeal concluded the stipulated judgment was not appealable because it did not resolve all issues between the parties. At the parties’ joint request, however, the appellate court exercised its discretion to treat the appeal as a petition for writ of mandate. On the merits, it rejected the trial court’s ruling that a service member had to explicitly and specifically consent to the court’s authority to divide her military retirement under the FUSFSPA. Furthermore, the Court concluded Lisa did consent to the jurisdiction of the court within the meaning of the FUSFSPA by voluntarily filing her dissolution petition in California, seeking a judicial confirmation of “all” her separate property acquired before marriage, asking the court to determine “any” community property assets, and requesting the appointment of an expert under California Evidence Code section 730 to determine a proposed division of the parties’ retirement accounts. Accordingly, the Court of Appeal granted appropriate writ relief directing the family court to vacate the stipulated judgment and the relevant portion of the 2018 order. View "Marriage of Sullivan" on Justia Law

The United States Air Force required all service members to be vaccinated against COVID-19, subject to certain exemptions. In this case, thirty-six members of the Air Force, Air Force Reserve, or Air National Guard sued the Secretary of Defense and others, alleging that the government’s denial of their requests for religious exemptions violated the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. The Airmen sought a nationwide preliminary injunction prohibiting the Air Force from taking steps to discharge any of the Airmen and from denying travel, training, or other career opportunities to them. The district court denied the motion and later dismissed much of the case, although one aspect of the complaint remains pending in the district court. The Airmen appealed the order denying the request for preliminary injunctive relief.
The Eighth Circuit, in light of intervening developments that have granted the Airmen all of the relief requested, dismissed the appeal. The court explained that none of the Airmen is subject to a COVID-19 vaccination requirement, and no adverse action may be taken against the Airmen for refusing to receive the COVID-19 vaccine. A statutory change that discontinues a challenged practice usually makes an appeal moot. View "Tanner Roth v. Lloyd Austin, III" on Justia Law

Crews served in the Air Force from 1954-1958. In connection with his service, he was originally granted a 100% disability rating for schizophrenia. In 1960, his disability rating was lowered to 70%. In 2006, Crews sought an increased schizophrenia rating, which was denied in 2007. In 2009, Mrs. Crews (Yvonne) submitted a letter stating that Crews was 100% disabled and requested further evaluation; she did not mention an effective date. The VA responded that it would not consider the letter a notice of disagreement (NOD) with the 2007 decision because it was filed more than one year after that decision. It construed the letter as a new “claim for an increased rating. In March 2010, the VA increased his schizophrenia rating from 70% to 100% effective from September 2009. In October 2010, Crews died. In 2011, Yvonne moved to be substituted as the appellant and filed a notice of disagreement with the 2009 effective date, alleging clear and unmistakable error (CUE) in the 1960 rating decision.The VA rejected her request for substitution because Crews had no claim or NOD pending at the time of his death. Yvonne was not eligible to seek benefits on past decisions that had been finalized; the 1960 rating decision became final once the appeal window closed. The Veterans Court and Federal Circuit affirmed. Yvonne’s CUE allegation is not part of a “pending” claim for which she could substitute under 38 U.S.C. 5121A. View "Crews v. McDonough" on Justia Law

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

Spicer served in the Air Force from 1958-1959 and was exposed to benzene in aircraft fuel. Years later, he developed chronic myeloid leukemia, a blood cancer. The VA recognized his leukemia as service-connected and granted him a 100 percent disability rating. Spicer developed arthritis in both knees, which required him to use a wheelchair. His scheduled knee replacement surgery was canceled because the leukemia medications lowered his hematocrit (red blood cell level). Spicer's hematocrit will never rise to a level that would permit surgery. He sought secondary service connection for his knee disability. The Board of Veterans’ Appeals and Veterans' Court affirmed the VA's denial of his claim. The statute, 38 U.S.C. 1110 establishes entitlement to service connection, providing compensation for veterans “[f]or disability resulting from personal injury suffered or disease contracted in line of duty.” The court reasoned that unless “the current state of his arthritis would not exist in the absence of his cancer or chemotherapy,” there is “no actual but-for causation.”The Federal Circuit vacated. Section 1110 provides that the United States will pay a veteran “[f]or disability resulting from personal injury suffered or disease contracted in line of duty”; “disability” refers to a veteran’s present-day “functional impairment.” “Resulting from" requires “but-for causation,” which is not limited to bringing something about or the onset or etiological link. That language may encompass situations where the service-connected disease or injury impedes the treatment of a disability. View "Spicer v. McDonough" 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

Kluge, an Army Reserve commissioned officer and a civilian employee of the Department of Homeland Security (DHS), was ordered under 10 U.S.C. 12301(d) to report to active duty in support of a contingency operation, Operation Enduring Freedom. He was absent from his DHS job from January 15 to July 30, 2011. For the first few weeks, Kluge was on paid military leave; from February 27 until July 30, DHS did not pay him except for the July 4 holiday. Kluge sought to recover differential pay under 5 U.S.C. 5538 for himself and similarly situated service members employed by the federal government, naming the Office of Personnel Management (OPM) as the respondent.An administrative judge denied class certification and substituted DHS for OPM. DHS and Kluge stipulated that he was eligible for differential pay. The AJ determined that DHS owed Kluge $274.37 plus interest. The Federal Circuit affirmed. The court upheld a finding that putative class members lack commonality or that identifying class members and adjudicating their claims as a class would not be fairer or more efficient. There was no legal error or abuse of discretion in the substitution of DHS for OPM. Kluge failed to show any error in calculating the differential pay. View "Kluge v. Department of Homeland Security" on Justia Law