Justia Military Law Opinion Summaries

Ollis, a veteran, sought disability benefits under 38 U.S.C. 1151, which provides benefits for certain injuries incurred as a result of VA medical care. Ollis suffers from atrial fibrillation and claims a disability resulting from complications of a heart procedure to treat that condition. The procedure (miniMAZE) was allegedly recommended by a VA doctor but was performed by a private doctor. The VA denied Ollis’s application for benefits. The Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims affirmed. The Federal Circuit vacated in part, remanding the question of whether Ollis’s VA doctors were negligent by recommending the mini-MAZE procedure to him. The Veterans Court focused on whether VA medical treatment caused Ollis to utilize Dr. Hall and Methodist Medical Center, rather than on whether VA medical treatment caused him to have the mini-MAZE procedure itself. On remand, the Veterans Court must also address the “not reasonably foreseeable” and “proximate cause of the disability” requirements. The court affirmed rejection of an argument that VA’s failure to provide him notice that a referral to a private facility for his miniMAZE procedure could extinguish his eligibility for benefits constituted a violation of his right to due process. View "Ollis v. Shulkin" on Justia Law

A state court may not order a veteran to indemnify a divorced spouse for the loss in the spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits.The Uniformed Services Former Spouses’ Protection Act authorizes states to treat veterans’ “disposable retired pay” as community property divisible upon divorce, 10 U.S.C. 1408, excluding amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits. In their divorce, Sandra was awarded 50% of John’s future Air Force retirement pay, which she began to receive when John retired. Years later, the Department of Veterans Affairs found that John was partially disabled due to an earlier service-related injury. To receive disability pay, John gave up an equivalent amount of retirement pay, 38 U.S.C. 5305. The Arizona Supreme Court affirmed a family court order that Sandra receive her full 50% regardless of the waiver. The U.S. Supreme Court reversed. John’s military pay was subject to a future contingency. State courts cannot “vest” that which they lack the authority to give. Family courts remain free to consider the contingency that some military retirement pay might be waived or consider reductions in value when calculating or recalculating the need for spousal support. View "Howell v. Howell" on Justia Law

Member of Naval Reserve, terminated by private employer, established a prima facie case under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage worked as an aviation mechanic for FedEx, 2001-2012, simultaneously serving as a lieutenant in the Naval Reserve. He was terminated by FedEx for violating its reduced-rate shipping policy and acceptable conduct policy. He had never been disciplined before his termination; he claims he was unaware of a change in policy that prohibited use of an employee discount for shipping items sold on eBay. FedEx had accommodated his military duties and employs other members of the military. Savage had complained, to a third-party administrator, about a miscalculation in his pension benefits. Savage claimed discrimination, retaliation, and improper benefit calculations under USERRA, 38 U.S.C. 431. The district court granted FedEx summary judgment. The Sixth Circuit reversed in part, finding that Savage provided evidence of a genuine dispute of material fact as to whether FedEx correctly calculated his pension contributions under section 4318. Savage also provided evidence of disparate treatment, motivated by his protected status, with respect to misuse of the shipping discount, sufficient to survive summary judgment. The court concluded that Savage had not been targeted for investigation. View "Savage v. Federal Express Corp." on Justia Law

Monk served in the Marine Corps during the Vietnam War. In 2012, Monk sought VA disability benefits, alleging service-connected PTSD, diabetes, hypertension, and strokes. The VA denied the claim, finding that his discharge was “other than honorable.” Monk filed a Notice of Disagreement (NOD) and separately applied to the Board of Correction of Naval Records (BCNR) to upgrade his discharge status. In 2015, the VA informed Monk that it could not process his appeal until it received BCNR records. Monk sought a writ of mandamus with Veterans Court and requested that the court certify a class of all veterans who had applied for VA benefits, had timely filed an NOD, had not received a decision within 12 months, and had demonstrated medical or financial hardship (38 U.S.C. 7107(a)(2)(B)–(C)). The Veterans Court denied the request for class certification, denied another veteran’s request to join the action, and ordered the VA to respond to Monk’s petition regarding the denial of disability benefits. BCNR then granted Monk an upgraded discharge status. The Federal Circuit reversed the denial of class certification, finding that the Veterans Court has authority to certify a class for a class action and to maintain similar aggregate resolution procedures with respect to benefit denials. View "Monk v. Shulkin" on Justia Law

This appeal and cross-appeal relate to the district court's orders releasing video recordings made at Guantanamo Bay, depicting military personnel removing a detainee, Abu Wa'el (Jihad) Dhiab, from his cell, transporting him to a medical unit, and force-feeding him to keep him alive while he was on a hunger strike. The government classified these recordings as "SECRET" because disclosing them could damage the national security, but the district court determined that the public had a constitutional right to view the recordings because the detainee's attorney filed some of them under seal, at which point the recordings became part of the court's record. The government appealed, arguing that the public has no such constitutional right. The Intervenors cross-appealed, arguing that several categories of redactions the court approved prior to public release were too extensive. The court concluded that Press-Enterprise Co. v. Superior Court did not apply to this case and neither the intervenors nor the public at large have a right under the First Amendment to receive properly classified national security information filed in court during the pendency of Dhiab's petition for a writ of habeas corpus. The court further explained that, even if the intervenors had a qualified First Amendment right of access to the Dhiab recordings, the court would still reverse the district court's decision, because the government identified multiple ways in which unsealing these recordings would likely impair national security. Because the recordings will remain sealed, the intervenors' cross-appeal about the extent of the redactions was dismissed as moot View "Dhiab v. Trump" on Justia Law

KPCC filed suit against KBR, a general contractor supporting the Government's military operations in Iraq, alleging claims for breach of contract, fraud, and promissory estoppel. At issue was a 2010 contract for, inter alia, KBR's leasing, with an option to purchase, a dining facility constructed by KPCC in Iraq. The district court dismissed the complaint, concluding that the political-question doctrine rendered nonjusticiable the contract dispute at issue. Applying de novo review, under the discriminating inquiry required by Baker v. Carr, the court concluded that the claims presented required resolution of contractual disputes for which there existed judicially manageable standards. Therefore, there was no justiciable political question. The court disposed of KBR's remaining claims regarding the act-of-state doctrine and regarding a contractor's defense from its strict execution of a constitutionally authorized government order. Accordingly, the court vacated the district court's judgment and remanded. View "Kuwait Pearls Catering Co. WLL v. Kellogg Brown & Root Services, Inc." on Justia Law

Air Force Captain Meredith Morris and her husband filed suit against Air Force Captain Michael Thompson for injuries Captain Morris sustained on Randolph Air Force Base. The district court granted Thompson's motion to dismiss for lack of subject matter jurisdiction based on the Feres doctrine. The court concluded that plaintiffs' claims were incident to service and thus the Feres doctrine applied regardless of the rank of the parties or the bringing of state-law claims; the court rejected plaintiffs' claims that the application of the Feres doctrine would interfere with their constitutional rights; the husband's loss of consortium claim was consequently barred; and the failure to seek certification under the Westfall Act, 28 U.S.C. 2679(b)(1), did not divest the court of the jurisdiction to resolve what was brought to it on this appeal. Accordingly, the court affirmed the judgment. View "Morris v. Thompson" on Justia Law

In 2014, the Board of Veterans Appeals denied Parrott’s claims for benefits on account of her veteran husband’s esophageal adenocarcinoma, with liver and peritoneal metastasis, and his ensuing death. The Veterans Court vacated and remanded. Parrott then timely sought attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412. The Veterans Court awarded her $4,050. The Federal Circuit affirmed, rejecting arguments that, in arriving at its award of attorney fees, the Veterans Court misinterpreted EAJA and adopted an incorrect approach for determining the cost of living adjustment to be used in calculating her attorney’s hourly rate and that the court then abused its discretion by not allowing her to resubmit her application using the approach the court had adopted. EAJA states that “attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living . . . justifies a higher fee.” The court properly rejected Parrott’s request for a cost of living increase, based on Washington D.C., based on the location of the Veterans Court and applied rates based on the locations of her attorney’s offices in San Francisco, Dallas, and Little Rock. View "Parrott v. Shulkin" on Justia Law

Chavez-Alvarez, a citizen of Mexico, became a lawful permanent resident in 1989, then served in the U.S. Army. In 2000, Chavez-Alvarez penetrated the vagina of an intoxicated platoon member with his fingers and performed oral sex without consent. He initially denied the allegations, but later admitted the assault and was convicted under the Code of Military Justice: 10 U.S.C. 907, 925, and 934 for making false official statements; sodomy; and adultery and indecent assault. He was discharged and confined for 18 months. Chavez-Alvarez was charged as removable under 8 U.S.C. 1227, having been convicted of an aggravated felony with a term of imprisonment of at least one year and of two or more crimes involving moral turpitude not arising out of a single scheme. An IJ determined he was ineligible for a waiver of inadmissibility. Following a remand, the BIA concluded that Chavez-Alvarez was removable under the moral-turpitude provision, rejecting his argument that he was only convicted of sodomy, a constitutionally protected activity under Supreme Court precedent. The BIA disagreed, reasoning that Chavez-Alvarez’s crime was subject to a sentence enhancement, having been committed forcibly, which was the “functional equivalent” of a conviction for forcible sodomy, a crime involving moral turpitude, and that his two false-statements convictions were separate crimes of moral turpitude. The Third Circuit reversed, rejecting the BIA’s reasoning that “for immigration purposes a sentence enhancement can serve as the functional equivalent of an ‘element’ of an offense.” View "Chavez-Alvarez v. Attorney General , United States" on Justia Law

Plaintiff, who had endured many hardships in 2003 while trying to leave Baghdad, alleged, in a purported class action, that former officials of the President George W. Bush administration engaged in the war against Iraq in violation of the Alien Tort Statute, 28 U.S.C. 1350. The district court held that plaintiff had not exhausted her administrative remedies as required by the Federal Tort Claims Act. The Ninth Circuit affirmed the dismissal, holding that the individual defendants were entitled to official immunity under the Westfall Act, 28 U.S.C. 2679(d)(1), which accords federal employees immunity from common-law tort claims for acts undertaken in the course of their official duties. The court upheld the Attorney General’s scope certification (determining that the employees were acting within the scope of their employment so that the action was one against the United States). The court rejected an argument that defendants could not be immune under the Westfall Act because plaintiff alleged violations of a jus cogens norm of international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law. Congress can provide immunity for federal officers for jus cogens violations. View "Saleh v. Bush" on Justia Law