Justia Military Law Opinion Summaries

Articles Posted in US Court of Appeals for the Sixth Circuit
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The Air Force ordered over 500,000 service members to get COVID-19 vaccinations. About 10,000 members requested religious exemptions; about 135 of these requests were granted, only to those planning to leave the service. It has granted thousands of exemptions for medical or administrative reasons. The Plaintiffs allege that the vaccine mandate substantially burdens their religious exercise in violation of the First Amendment and the Religious Freedom Restoration Act (RFRA). The district court granted a preliminary injunction that barred the Air Force from disciplining the Plaintiffs for failing to take a vaccine, then certified a class of thousands of similar service members and extended this injunction to the class.The Sixth Circuit affirmed. In opposing class-action certification, the Air Force argued that RFRA adopts an individual-by-individual approach: it must show that it has a compelling interest in requiring a “specific” individual to get vaccinated based on that person’s specific duties. In challenging the injunction, however, the Air Force failed to identify the specific duties or working conditions of any Plaintiff, citing the “general interests” underlying the mandate. The court reasoned that it could uphold the injunction based on RFRA alone but also noted common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of individual circumstances? Does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? View "Doster v. Kendall" on Justia Law

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Secretary of Defense Austin directed that all members of the armed forces be vaccinated against COVID-19. Air Force guidelines allow affected service members to seek exemptions on medical, administrative, and religious grounds. As of May 2022, the Department had denied 8,869 requests for religious exemptions, while granting only 85–all to service members who were separately eligible for an administrative exemption (apparently near the end of their service term). Plaintiffs claimed that the Department’s “systematic” denial of requests for religious exemptions violated the Religious Freedom and Restoration Act and the First Amendment and sought certification of a class of some 10,000 affected service members. Air Force chaplains confirmed that the vaccination mandate substantially burdened sincerely-held religious beliefs. Typically the objections concerned the use of aborted fetal cells in the development of the vaccines. The commanding officers for two plaintiffs recommended that their requests for exemptions be granted, on the ground that less-restrictive means (like masking or social distancing) could satisfy the Air Force’s operational interests. The Department denied those requests.The court entered an injunction, barring the Department from “taking any disciplinary or separation measures” against the named plaintiffs during the pendency of their lawsuit and certified a class. The Sixth Circuit denied the Department’s motion for an emergency stay but expedited the appeal. The Department has not made a strong showing that it “is likely to succeed on the merits” of its appeal of the class-wide injunction. View "Doster v. Kendall" on Justia Law

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Babcock joined the Michigan National Guard in 1970 and became a dual-status technician “a Federal civilian employee” who “is assigned to a civilian position as a technician” while maintaining membership in the National Guard, 10 U.S.C. 10216(a)(1); 32 U.S.C. 709(e). Babcock served as a National Guard pilot, held the appropriate military grade, wore a uniform that displayed his rank while working, and attended weekend drills. In 2004-2005, Babcock was deployed to Iraq on active duty. Babcock received military pay for his active-duty service and his inactive-duty training, including weekend drills. Otherwise, he received civil pay and participated in the Civil Service Retirement System (CSRS), 5 U.S.C. 5301. Babcock paid Social Security taxes on the wages for his active-duty service and his inactive-duty training from 1988 onwards, 42 U.S.C. 410(l)(1). He did not pay Social Security taxes on his wages for inactive-duty training before 1988 or on his civil-service wages.In 2009, Babcock retired and began receiving monthly CSRS payments and separate military retirement pay. For several years after his retirement, Babcock flew medical-evacuation helicopters for hospitals. This private-sector income was subject to Social Security taxes. Babcock fully retired in 2014. The government reduced his Social Security benefits under the Windfall Elimination Provision (WEP) because of his CSRS pension. Babcock cited a WEP exception for payments “based wholly on service as a member of a uniformed service.” While Babcock's case was pending, the Eleventh Circuit rejected the Eighth Circuit’s contrary analysis and held that the uniformed-services exception does not apply to dual-status technicians. The Sixth Circuit subsequently agreed that a federal civil-service pension based on work as a National Guard dual-status technician does not qualify as “a payment based wholly on service as a member of a uniformed service.” View "Babcock v. Commissioner of Social Security" on Justia Law

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Hickle began working for AMC in 2004, while in high school. In 2006, he was promoted to Operations Coordinator. In 2008, he joined the Ohio Army National Guard. Before leaving for training, Hickle interviewed for a management position with Kalman, stating that he was going to have to leave for military training for approximately six months; Kalman ended the interview immediately. The person who got the promotion later told Hickle: “Thanks for joining the military. I just got promoted.” AMC promoted Hickle to management when he returned from training; in 2013 Hickle was again promoted. In the interim, Hickle continued his military service, including serving for over a year in Afghanistan. AMC never prevented Hickle from fulfilling his military obligations or denied him time off, but Senior Manager Adler repeatedly expressed disapproval. During meeting with Kalman and Adler, Hickle provided Kalman with a pamphlet on the Uniformed Services Employment and Reemployment Rights Act (USERRA). Adler continued to insinuate that Hickle could or should be fired for taking time off for military duty. After an incident involving allegations of stealing food from the AMC kitchen, there was an investigation, performed by a Compliance Manager. Hickle was suspended and was ultimately fired for “unprofessional behavior.” The district court rejected Hickle’s USERRA suit. The Sixth Circuit reversed. Hickle gathered evidence during discovery that would allow a reasonable jury to find that military service was a motivating factor in AMC’s termination decision. View "Hickle v. American Multi-Cinema, Inc." on Justia Law

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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

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The VA determined that West, a Viet Nam veteran, was eligible for a disability pension. Two days later West died. Four days later—without knowing that West had died—the government sent West a check for $8,660--his pension benefit retroactive to June 2013. In March 2014, a Kentucky probate court appointed West’s ex-wife, Brenda, as the Estate's executor. Brenda endorsed the VA check, the estate’s only cash asset, and deposited it into an escrow account. After three months, the VA determined that West’s estate was not entitled to the money, 38 U.S.C. 5121(a), and directed the bank to wire the $8,660 back to the U.S. Treasury. The bank complied. The Estate did not learn until later that its account had been drained of funds. More than 18 months later, the Estate obtained a Kentucky probate court order requiring the government to return the funds. The government removed the matter to the district court, which remanded the matter back because the $8,660 was already subject to the probate court’s jurisdiction. The Estate unsuccessfully sought attorneys’ fees. The Sixth Circuit reversed the remand order; the dispute can be litigated only under the procedure set forth in the Veterans’ Judicial Review Act, 102 Stat 4105. The court noted “concerns about the government’s expropriation of the Estate’s funds without any advance notice or process.” View "Estate of West v. United States Department of Veterans Affairs" on Justia Law

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The Guard Recruiting Assistance Program (G-RAP), designed to increase recruiting to the Air National Guard during the “War on Terror” was run by Docupak, a private corporation. Docupak selected and trained Recruiting Assistants (RAs) to find and direct potential airmen to full-time recruiters. The program paid a $1,000 pre-loaded gift card upon actual enlistment of a potential airman and another $1,000 upon the airman’s completion of training. The RAs were to identify individuals that were not already working with a full-time recruiter and were prohibited from splitting the payment with full-time recruiters. Osborne, a full-time recruiter, was accused of referring names of pre-existing recruits to RA Andolsek so that they could claim the incentive, with kickbacks to Osborne. Osborne was charged with aiding Andolsek in embezzling from the Department of Defense, 18 U.S.C. 641; 18 U.S.C. 2, which “caused” the Department to reimburse Docupak for $9,000. Andolsek pleaded guilty and testified against Osborne. Osborne argued that the funds were stolen from a private contractor, so they only violated Docupak’s internal policy, not a federal regulation. The Sixth Circuit reversed Osborne’s conviction. No reasonable jury could have found that the funds were something of value to the government beyond a reasonable doubt, given the evidence of control. The government did not retain a reversionary interest in the funds and imposed few restrictions. Docupak gave the government access to information, but the government did not retain the right to conduct audits. View "United States v. Osborne" on Justia Law