Justia Military Law Opinion Summaries

Sharpe has been a DEA employee since 1995. Until 2008, he was also a Navy reservist. While at the DEA, Sharpe was deployed three times, twice for six months. As of 2015, Sharpe had applied for 14 GS-14 positions since 2012. Since 2009, Sharpe has been supervised by Sherman, who is responsible for recommending agents for promotion. Because he scored 91 out of 100 on his examination, Sharpe was on the Best Qualified List for every GS-14 position for which he applied, but he was only selected by Sherman three times and never as Sherman’s first-ranked agent. The Career Board often selects Sherman’s first-ranked agent, absent an agent requiring a lateral transfer from abroad or for hardship. In 2015, Sharpe requested corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311(a), asserting his non-selection was motivated by his military status and that Sherman was hostile towards reservist. Six other current and former reservists working as agents in San Diego, including Sorrells, also filed USERRA claims. Before the Merit Systems Protection Board Sharpe unsuccessfully sought to introduce an email sent to Sorrells by Tomaski, who reported directly to Sherman. At the hearing, Sharpe was not allowed to question Sherman about the email. The Federal Circuit vacated the MSPB’s denial of corrective action. Evidence of the Tomaski email and of Sherman’s response to it is relevant to Sherman’s potential hostility towards others’ military or USERRA activity. View "Sharpe v. Department of Justice" on Justia Law

Kelley Kohler (Father) and Carolynn Chambers (Mother) were the biological parents of R.L.K., born April 17, 2012. Father received orders directing him to report for basic training and advanced individual training with the United States Army National Guard. Prior to leaving, Father filed a motion seeking an order authorizing the temporary transfer of his custody and visitation rights with R.L.K. to his spouse. Father maintained he was a "deploying parent" under the Oklahoma Deployed Parents Custody and Visitation Act. The trial court found the ODPCVA was controlling and vested Father's wife with the right to exercise visitation with R.L.K. during his absence. Mother appealed the judgment arguing the trial court erred as a matter of law by finding Father was a "deploying parent" as defined by the ODPCVA. In a case of first impression for the Oklahoma Supreme Court, it reversed the trial court, finding Father was not a "deploying parent" because his temporary transfer was not "in support of combat, contingency operation, or natural disaster" as mandated by 43 O.S.2011 section 150.1. View "Kohler v. Chambers" on Justia Law

Procopio served aboard the U.S.S. Intrepid in 1964-1967. In July 1966, the Intrepid was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea. Procopio sought entitlement to service connection for diabetes mellitus in 2006 and for prostate cancer in 2007 but was denied service connection for both in 2009. The Federal Circuit reversed, holding that the unambiguous language of the Agent Orange Act, 38 U.S.C. 1116, entitles Procopio to a presumption of service connection for his prostate cancer and diabetes mellitus. The term “in the Republic of Vietnam,” unambiguously includes the territorial sea under all available international law. Congress indicated those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to section 1116’s presumption if they meet the section’s other requirements. View "Procopio v. Wilkie" on Justia Law

Bolton petitioned the Board for Correction of Naval Records to expunge the summary-court martial from his military record based on his guilty plea to military charges related to his 2010 arrest for driving while drunk on the Marine Corps Base Camp Lejeune. Bolton completed his active duty service and was honorably discharged; he was eligible to reenlist. The Board held that it lacked the statutory authority to set aside the findings of a summary court-martial. The Sixth Circuit affirmed the dismissal of Bolton’s complaint. The Uniform Code of Military Justice, 10 U.S.C. 815-820, provides that summary court-martial occupies a position between informal nonjudicial disposition and the courtroom-type procedure of the general and special courts-martial “for relatively minor offenses.” Bolton did not state a claim for double jeopardy because neither the summary court-martial nor the base court conviction constituted a “criminal punishment” to which jeopardy attached. The Board lacked authority to grant Bolton’s requested relief. Congress clearly indicated "that the appellate procedures under the UCMJ provide the sole forum ... for a legal review of the legality of courts-martial” and limited the role of the Board, which “primarily involves a determination as to whether the sentences should be reduced as a matter of command prerogative (e.g., as a matter of clemency) rather than a formal appellate review.” View "Bolton v. Department of the Navy Board for Correction of Naval Records" on Justia Law

Federal Rule of Evidence 601 requires federal courts to apply state rules of witness qualification when determining the competency of expert witnesses to testify regarding medical malpractice claims that turn on questions of state substantive law. Plaintiff filed suit challenging the district court's grant of summary judgment on some of her claims and the dismissal of her other claims brought against the Department of Veterans Affairs (VA).The Fifth Circuit held that the district court was correct in its determination that Rule 601 requires that plaintiff's proffered expert witness must satisfy the state law standards for expert witness competency in addition to the Federal Rule of Evidence 702 standards for the admissibility of expert witness testimony. However, the district court erred in its assertion that it was "undisputed" that the expert was not "practicing medicine" as the term is used in Tex. Civ. Prac. & Rem. Code Ann. 74.401. Therefore, the court vacated the district court's judgment deeming it to be undisputed that the expert was not competent to testify as a medical expert and remanded for the dispute to be adjudicated in the first instance. The court also held that the district court erred in analyzing plaintiff's privacy-related allegations as federal Privacy Act claims brought under the Federal Tort Claims Act, but the district court nonetheless did not err by dismissing the claims. The district court did not err by granting summary judgment for the government on the three privacy-related claims that it construed as Privacy Act claims and considered on the merits. Although the district court erred by holding plaintiff's claim of assault and battery was jurisdictionally-barred, summary judgment was nevertheless appropriate. View "Coleman v. United States" on Justia Law

In 2009, U.S. Army Specialist Schaefer was killed by a roadside bomb while serving a tour of duty in Iraq. Those directly responsible for such attacks are often unidentifiable or beyond the reach of a court’s personal jurisdiction. Secondary actors, such as the organizations that fund the terrorists, are often amorphous. Despite Congress’s effort to make state sponsors of terrorism accountable in U.S. courts (28 U.S.C. 1605A) any resulting judgment may be uncollectible. Spc. Schaefer’s mother claimed that the bomb that killed her son was a signature Iranian weapon that traveled from the Iranian Revolutionary Guard Corps to Hezbollah to Iraqi militias, who then placed it in the ground and that Deutsche Bank, a German entity with U.S. affiliates, is responsible for her son’s death under the Anti-Terrorism Act (ATA), 18 U.S.C. 2333. She argued that the Bank joined an Iranian conspiracy to commit acts of terror when it instituted procedures to evade U.S. sanctions and facilitate Iranian banking transactions. The Seventh Circuit affirmed dismissal of her suit, which “failed to plead facts that plausibly indicated that Deutsche Bank’s actions caused her son’s death.” The Bank’s conduct was not “violent” or “dangerous to human life” as the ATA requires, nor did it display the terroristic intent. To the extent Deutsche Bank joined any conspiracy, it joined only a conspiracy to avoid sanctions, distinct from any of Iran’s terrorism-related goals. View "Kemper v. Deutsche Bank AG" on Justia Law

Hansen served in the Army National Guard for six years, which included, at the start of his service in 1959, 182 days of active duty for training. Hansen died from amyotrophic lateral sclerosis (ALS) in 1998. In 2009, his widow applied to the VA for benefits under 38 U.S.C. 1310(a), which provides that “[w]hen any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran’s surviving spouse, children, and parents.” A 2008 regulation declares that “the development of [ALS] manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.” 38 C.F.R. 3.318(a) (ALS Rule). The Board of Veterans’ Appeals and the Veterans Court held that Hansen’s “active duty for training” service does not qualify as active duty, and denied the benefits claim. The Federal Circuit affirmed. The 38 U.S.C.101(24) definition of “active military, naval, or air service” has been interpreted as excluding training in these circumstances. View "Hansen-Sorensen v. Wilkie" on Justia Law

Cook served on active duty in the Navy, 1972-1973. Cook’s service records indicate that he experienced back pain. In 2000, Cook sought service connection for back problems and later filed a claim for total disability based on individual unemployability (TDIU), also back-related. The regional office (RO) denied both claims. Cook appealed and testified at a Board hearing in 2012. The Board remanded; the RO again denied both claims. Cook again appealed and requested an additional hearing to present further evidence. The Board denied Cook that additional hearing and denied both of his claims. The Veterans Court, upon joint motion, vacated and remanded because the Board did not adequately explain its decision. On remand, Cook again requested another Board hearing. The Board denied a hearing and denied Cook’s claims for service connection and TDIU. The Veterans Court vacated and ordered a hearing. The Federal Circuit affirmed. The Veterans’ Judicial Review Act codified a veteran’s longstanding right to a Board of Veterans’ Appeals hearing, 38 U.S.C. 7107(b). The courts concluded that the statute entitles an appellant to an opportunity for a hearing whenever the Board decides an appeal, including on remand. View "Cook v. Wilkie" on Justia Law

Garcia served in the Army from 1952-1954. The military’s records of his medical treatment during service were among those destroyed in a fire in 1973 at the National Personnel Records Center in St. Louis. The record of his medical examination upon leaving the service was not destroyed and reveals a normal psychiatric state and no severe illnesses or injuries. Garcia saw Dr. Smoker, in 1965 for a burn from a welding accident. In 1969, Dr. Smoker diagnosed Garcia with, and prescribed medication for, paranoid schizophrenia. In 2002, Garcia sought disability benefit, alleging service connection of disability-causing paranoid schizophrenia. The regional office denied the claim. The Board of Veterans’ Appeals remanded for a VA psychiatric examination. Although García claimed to have been seen twice for his condition while in service, a VA examiner found it “impossible to say, without resorting to mere speculation, as to whether this veteran’s schizophrenia, paranoid type actually started in Service, without more documentation and records.” The previous denial was “confirmed.” Garcia collaterally challenged the 2006 Board decision, alleging clear and unmistakable error (CUE). The Board and Veterans Court rejected Garcia’s CUE arguments. The Federal Circuit affirmed, upholding the Veterans Court’s application of 38 C.F.R. 20.1409(c) to bar a due process allegation of CUE. View "García v. WIlkie" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of an action brought by E.V., a civilian on a military base in Japan, seeking to enjoin the release of her mental health records. Applying the framework in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the panel held that sovereign immunity barred E.V.'s non-constitutional claims for injunctive relief because they were considered to be against the government and the government had not waived its immunity. Although E.V.'s constitutional claims were considered to be against Judge Robinson as an individual and were not barred by sovereign immunity, the panel held that E.V.'s constitutional claims must be dismissed on other grounds. View "E. V. v. Robinson" on Justia Law