Justia Military Law Opinion Summaries

This case revolves around the dispute between Daniel Bader, a military officer who previously held the rank of Colonel but had attained the rank of Brigadier General at the time of his application for retirement in 2012, and the United States. Bader was found to have violated ethical standards set forth in 18 U.S.C. § 207(c) and 5 C.F.R. § 2635, which led to his retirement at the rank of Colonel, affecting his rate of retirement pay. Bader brought suit in the Court of Federal Claims seeking compensation for his allegedly lost pay. The court, however, ruled against him, finding no error in the decision to retire him at the lower rank of Colonel.Bader appealed to the United States Court of Appeals for the Federal Circuit, arguing that he was unfairly penalized for holding both a military and civilian employment concurrently, which was permissible. He also contended that he was acting in accordance with multiple ethics opinions that he believed permitted his actions, and that his employer's operation through an Other Transactions Authority allowed him to engage in the conduct he was penalized for.The Appeals Court, however, affirmed the lower court's decision, stating that Bader's simultaneous employment in military and civilian capacities did not exempt him from ethical obligations. His reliance on ethics opinions didn't change the fact that he used his government position to benefit his private employer. The court also clarified that the Other Transactions Authority doesn't exempt government employees from generally applicable ethics regulations. Therefore, Bader's retirement at the rank of Colonel was deemed appropriate given his violations of ethical standards. View "BADER v. US " on Justia Law

Dr. Dubnow, a board-certified physician with more than 40 years of experience, was Chief of the Emergency Department at Lovell Federal Health Care Center (FHCC). In 2017, he diverted an ambulance transporting an infant to Lake Forest Hospital, located a few minutes away from the FHCC. Lake Forest has a Level-II trauma center and is staffed with pediatric specialists. The child was pronounced dead upon arriving at Lake Forest. The FHCC, a VA hospital, investigated Dubnow’s diversion decision. This investigation eventually resulted in his removal. A review board concluded that none of the grounds for his removal were supported but the final reviewing authority reversed the review board’s decision. The district court affirmed the VA’s removal decision.The Seventh Circuit vacated the removal. The VA failed to properly apply the deferential “clearly contrary to the evidence” standard when reviewing the board’s decision to overturn Dubnow’s removal; the decision was arbitrary. The relevant question was whether the diversion was appropriate; if so, Dubnow’s removal could not be sustained. To conclude that treating the patient at the FHCC was possible, or even appropriate, is not to conclude that diverting the ambulance to a better-equipped hospital was inappropriate. A “conclusion that there was ‘no need’ to divert the patient is two steps removed from the analysis” under 38 U.S.C. 7462(d). View "Dubnow v. McDonough" on Justia Law

Sneed is the surviving spouse of Reginald, who served on active duty 1964-1968 and suffered service-connected disabilities, including post-traumatic stress syndrome, post-concussion syndrome, degeneration of the vertebrae, narrowing of the spinal column, tinnitus, a perforated tympanic membrane, and scarring of the upper extremities. In 2001, Reginald fell and suffered a spinal cord contusion, rendering him a quadriplegic. In 2003, he was living in a nursing home for paralyzed veterans. There was a fire and all of the residents died of smoke inhalation. Sneed sought dependency and indemnity compensation, 38 U.S.C. 1310, alleging that her husband’s service-connected disabilities were a cause of his death. The VA denied the claim. The Board affirmed. Sneed’s notice of appeal was due by August 3, 2011. Sneed retained attorney Eagle, communicated with Eagle’s office “for a year or longer” and stated that “Eagle knew that there was a deadline.” On August 2, 2011 Sneed received a letter stating that Eagle would not represent Sneed in her appeal. Failing to find new counsel, Sneed filed notice of appeal on September 1, 2011, with a letter explaining her late filing. The Veterans Court dismissed the appeal as untimely. The Federal Circuit vacated, holding that attorney abandonment can justify equitably tolling the deadline for filing an appeal. View "Sneed v. Shinseki" on Justia Law

Plaintiff, an attorney, filed suit against the Judge Advocate General (JAG) of the Navy and others, alleging violation of his constitutional rights in an administrative decision which suspended him from practice before naval courts. The disciplinary proceedings stemmed from plaintiff's filing of an appellate brief containing statements he knew were false and misleading. The court concluded that the district court did not err in holding that the Navy JAG had authority to discipline plaintiff; plaintiff received ample due process and his Fifth Amendment rights were not violated during the proceedings against him; and the record did not support plaintiff's Administrative Procedure Act (APA), 5 U.S.C. 551, 701, and 706, claim. Accordingly, the court affirmed the district court's dismissal of plaintiff's claims and denied his request for mandamus review. View "Partington v. Houck, et al." on Justia Law