Justia Military Law Opinion Summaries

The statutory presumption of soundness states: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time ... or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service, 38 U.S.C. 1111. The VA’s prior section 1111 implementing regulation did not require clear and unmistakable evidence of lack of aggravation by service for rebuttal but required only clear and unmistakable evidence that the disorder “existed prior [to service].” In 2003, the VA invalidated the regulation for conflicting with the statutory language and amended the regulation to require evidence of both preexisting condition and no aggravation, 70 Fed. Reg. 23,027, 23,028. The Federal Circuit affirmed.Veterans, whose claims for disability benefits were denied decades ago, sought revision of the denial decisions, alleging that the VA had committed clear and unmistakable error (CUE). The Veterans Court affirmed the Board of Veterans’ Appeals’ denials of the motions, reasoning that the VA did not commit a clear and unmistakable legal error when it faithfully applied the version of the presumption of soundness regulation that existed at the time. The Federal Circuit affirmed. A legal-based CUE requires a misapplication of the law as it was understood at that time, and cannot arise from a subsequent change in interpretation in the law. View "George v. McDonough" on Justia Law

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

Santos’s affiliation with NASA started in 1997. In 2018, Santos, then a NASA mechanical engineer and a commander in the U.S. Navy Reserve, was transferred to a new division, under the supervision of Balles, chief of the Ground Systems Branch of the Commercial Division. Despite receiving multiple accolades for his service in previous years, Santos began receiving letters of instruction and reprimand under Balles, alleging deficient performance. Although Balles maintained that she had no problems with Santos’s mandatory military obligations, the timing of many letters coincided with Santos’s requests for military leave. The letters emphasized Santos’s ability to “report to work in a timely manner and maintain regular attendance at work.” After months of difficulties, Balles formally placed Santos on a performance improvement plan (PIP) and later issued a notice of proposed removal. The Merit Systems Protection Board upheld his removal, rejecting Santos’s claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4331(a).The Federal Circuit vacated. The Board’s decision to not consider Santos’s allegation that he should never have been placed on a PIP was based on a misinterpretation of 5 U.S.C. 4302(c)(6). The events leading to Santos’s PIP may be directly relevant to Santos’s ability to satisfy his initial burden under USERRA. View "Santos v. National Aeronautics and Space Administration" on Justia Law

Euzebio served in the U.S. Navy, 1966-1969, including two tours of duty in Vietnam, where he was exposed to Agent Orange. In 2009, Euzebio began experiencing problems swallowing. In 2011, medical examinations and testing by private physicians indicated that he had benign thyroid nodules. The Veterans Court affirmed the Board of Veterans’ Appeals’ denial of Euzebio’s entitlement to service connection for a thyroid condition due to exposure to Agent Orange. The Board noted that the Agent Orange Act requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for certain conditions, he must consider reports of the National Academy of Sciences (NAS), 38 U.S.C. 1116; Euzebio’s thyroid disorder was not among the conditions listed by the Secretary for presumptive service-connection.The Federal Circuit vacated. The Board is required to consider relevant documents within its constructive possession; all relevant and reasonably connected VA-generated documents are part of the record, constructively known by the VA adjudicator. The Veterans Court applied an erroneous legal standard when it concluded the Board did not have constructive possession of the NAS Update 2014. While the VA has not published that Update in the Federal Register, it appears on its website. Update 2014 includes statements that, “thyroid conditions overall showed an indication of increased risk with herbicide exposure” and that “consistent observations of exposures to herbicide agents” indicated that they were “related to perturbations of thyroid function.” View "Euzebio v. McDonough" on Justia Law

Giles served on active Army duty, 1976-1982. He first claimed a service-connected nervous condition with the VA in March 1984; he was diagnosed with a personality disorder. While his claim was pending, he reported for Reserve training in June 1984. He soon was hospitalized, was diagnosed with organic delusional syndrome, and was discharged in November 1984. The VA denied his claim. In 1985, Giles was hospitalized, with an admitting diagnosis of schizophrenia. Upon discharge, he was diagnosed with bipolar disorder. The VA denied his request to reopen. The Board of Veterans’ Appeals affirmed in 1987, finding that “[a]n acquired psychiatric disorder was neither incurred in nor aggravated by service nor may a psychosis be presumed to have been incurred in active military service.”In 1995, Giles claimed service-connected PTSD. The VA awarded him service connection for bipolar disorder, effective in 1995. In 2012, Giles filed a request to revise the 1987 Board decision for clear and unmistakable error because the Board failed to recognize Giles’s claim on a presumptive basis for his 1984 diagnosis. The Board rejected the motion, stating, that 1987 regulations provided that the presumption of service incurrence of certain diseases, such as psychosis, did not apply to a period of active duty for training; a person serving on active duty for training was not considered a “veteran” during that service. The Veterans Court and Federal Circuit affirmed; “psychoses,” under 38 C.F.R. 3.309(a), refers to a category of diseases; whether diseases falling within this category are the same is a factual question outside of the courts' jurisdiction. View "Giles v. McDonough" on Justia Law

Sharifi alleges the U.S. Army took his land when it built Combat Outpost Millet in Afghanistan in 2010. The government asserted that Sharifi’s Fifth Amendment complaint was “vague and ambiguous” because it did not specifically identify the property interest that the government allegedly took, that Sharifi had not provided a legal description of the land, a deed, or other documents that would allow the government to identify the location. The Claims Court instructed Sharifi to file an amended complaint. Sharifi alleged that government records, verified by the District Governor of Arghandab, showed that his grandfather owned the land on which the Army built COP Millet: Ownership of the land passed to Sharifi and his siblings, who subdivided the land by a 2004 inheritance agreement. The government submitted six declarations, including several witness declarations and an expert declaration on Afghan law. The Claims Court dismissed Sharifi’s amended complaint for failure to show a cognizable property interest.The Federal Circuit affirmed. The government records attached to Sharifi’s amended complaint and the 2004 inheritance agreement do not constitute proof of land ownership under the laws of Afghanistan. Even accepting as true all factual allegations in Sharifi’s amended complaint, the amended complaint does not contain sufficient facts to state a plausible takings claim. View "Sharifi v. United States" on Justia Law

White has been employed as a commercial airline pilot since 2005 and has also served in the U.S. Air Force since 2000, first on active duty and now on reserve duty. As a reservist, he is required to attend periodic military-training sessions. White has taken periods of short-term military leave, usually for a day or two at a time, during which he did not receive pay from United. Under United’s collective bargaining agreement, pilots receive pay when they take other short-term leaves of absence, such as jury duty or sick leave. United also maintains a profit-sharing plan for its pilots that is based on the wages they earn; pilots who take paid sick leave or paid leave for jury duty earn credit toward their profit-sharing plan, while pilots who take short-term military leave do not. White initiated a class action under the 1994 Uniformed Services Employee and Reemployment Rights Act (USERRA), which is intended to prevent civilian employers from discriminating against employees because of their military service, 38 U.S.C. 4301(a). The district court dismissed White’s complaint.The Seventh Circuit reversed. USERRA’s mandate that military leave be given the same “rights and benefits” as comparable, nonmilitary leave requires an employer to provide paid military leave to the same extent that it provides paid leave for other absences. Paid leave falls within the “rights and benefits” defined by the statute. View "White v. United Airlines, Inc." on Justia Law

Petitioner, a defense attorney with no client, petitioned to reverse a procedural ruling excluding the public from a classified hearing in an appeal filed by other attorneys who, like plaintiff, have no client. Because most proceedings for Guantanamo Bay detainees are open to the public, the attorney's desire to watch the hearing would not normally have been a problem. However, because this particular hearing concerned classified information, the military judge closed it.The DC Circuit noted that the attorney may or may not have prudential standing, but the court need not address the issue because the court can dismiss the case based on lack of subject matter jurisdiction. In this case, the attorney ultimately appeals the military judge's decision to close the hearing. The court explained that the attorney does not appeal a conviction, an actual final judgment, but rather a decision. Finally, the court rejected the attorney's argument under the collateral order doctrine. View "Sundel v. United States" 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

The Eighth Circuit affirmed the district court's dismissal of a habeas corpus petition under 28 U.S.C. 2241 where petitioner was convicted in 2012, after trial by general court-martial, of rape committed in 1998. At the time of petitioner's conviction and direct appeals, there was no statute of limitations for prosecution of rape under the Uniform Code of Military Justice (UCMJ). In 2018, the Court of Appeals for the Armed Forces held for the first time that a five-year statute of limitations applied to rape in United States v. Mangahas, 77 M.J. 220, 222-24 (C.A.A.F. 2018). However, in United States v. Briggs, 2020 WL 7250099, at 2 (U.S. Dec. 10, 2020), the Supreme Court held that there is not a statute of limitations under the UCMJ for rapes committed between 1986 and 2006. Therefore, the court held that petitioner's conviction was not untimely. View "Hill v. Rivera" on Justia Law