Justia Military Law Opinion Summaries

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Transgender individuals who serve in the military or seek to do so, joined by the State of Washington, filed suit alleging that the August 2017 Memorandum, implementing President Trump's Twitter announcement that transgender individuals would not be allowed to serve in the military, unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum and defendants appealed. In the meantime, the then-Secretary of Defense studied the issue and produced a report recommending that the President revoke the 2017 Memorandum in order to adopt the report's recommendation. The President revoked the 2017 Memorandum and authorized the Secretary to implement the policies in the report (the 2018 Policy). Defendants then requested that the district court resolve the preliminary injunction on the basis of the new 2018 Policy. The Ninth Circuit vacated the district court's order striking defendants' motion to dissolve the preliminary injunction and remanded to the district court for reconsideration. In light of the Supreme Court's January 22, 2019 stay of the district court's preliminary injunction, the panel stayed the preliminary injunction through the district court's further consideration of defendants' motion to dissolve the injunction. Furthermore, the panel issued a writ of mandamus vacating the district court's discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984). View "Karnoski v. Trump" on Justia Law

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Plaintiff, appearing in propria persona, appealed from the denial of his petition for a writ of mandate directing the California Army National Guard (CAARNG) to vacate an order separating him, a commissioned officer, from CAARNG. The Court of Appeal held that the Feres doctrine did not bar plaintiff's writ petition. The court also held that plaintiff failed to show that the trial court erred in concluding that CAARNG properly separated plaintiff based on federal regulations incorporated into state law, where states may incorporate federal law regarding appointment and termination of National Guard officers and plaintiff failed to show the trial court erred in concluding that the Military and Veterans Code incorporates NGR No. 635–100, subdivisions (5)(a)(8) and (5)(a)(22). Finally, plaintiff failed to show prejudice from any of the trial court's purported procedural errors. Accordingly, the court affirmed the trial court's judgment. View "DiRaffael v. California Army National Guard" on Justia Law

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Robinson became the Associate Director of the Phoenix Veterans Administration Health Care System in 2012, having started his VA career in 1987. Robinson was aware of scheduling issues, including that it often took more than 30 days for patients to receive new-patient appointments. In 2014, the Chairman of the U.S. House Committee on Veterans’ Affairs alleged that veterans died while on “secret” waitlists at the Phoenix VA. Based on an investigation by the Office of the Inspector General and the Department of Justice, Robinson’s removal was proposed for “failure to provide oversight.” The Deciding Official did not take action. Robinson remained on administrative leave for two years, returning to duty in January 2016. The Senate Committee on Veterans’ Affairs questioned why many senior executives were placed on paid leave instead of removed from office. In March 2016, a second proposal for Robinson’s removal issued. The Deciding Official sustained all charges. Robinson was removed. The Merit Systems Protection Board affirmed the removal, finding that Robinson was negligent in the performance of his duties and failed to provide accurate information to his supervisors but did not sustain a whistleblowing retaliation charge. The Federal Circuit affirmed the decision as supported by substantial evidence, rejecting Robinson’s claim that he was treated differently than other supervisors. Robinson had notice and a pre-termination opportunity to be heard. Robinson had a duty to ensure compliance with VA policy but the record demonstrated that he did not. View "Robinson v. Department of Veterans Affairs" on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of a negligence action brought by plaintiff under the Federal Tort Claims Act (FTCA), alleging that he received improper treatment at a VA facility. In this case, after plaintiff presented a claim to the VA, the VA issued a final denial. The panel held that plaintiff's appeal was time-barred, because he failed to file the action within six months after the VA mailed a notice of final denial of plaintiff's initial claim, and the statute of limitations did not restart when the VA declined to consider plaintiff's second attempt to file the same claim. View "Redlin v. United States" on Justia Law

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Sucic served on active duty 1973-1979 and 1982-1984. In 2007, he was granted service connection for post-traumatic stress disorder (PTSD), effective January 2003. In 2008, Sucic requested an effective date of June 1992. After remand by the Federal Circuit, the Veterans Court entered judgment in June 2016 and issued its mandate in August 2016. Sucic died five days after the Federal Circuit’s mandate issued but before the Veterans Court vacated the Board’s decision. Sucic’s counsel did not notify the Veterans Court of his death until after the Veterans Court issued its mandate. Sucic’s counsel filed an unopposed motion to recall the Veterans Court’s judgment and remand decision and a motion to substitute Sucic’s three adult children as claimants. The Veterans Court concluded, and the Federal Circuit affirmed, that the non-dependent adult children were not eligible accrued benefits beneficiaries under 38 U.S.C. 5121(a), qualified for substitution. View "Sucic v. Wilkie" on Justia Law

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These petitions concern the conduct of a military judge, Colonel Vance Spath, who presided over a current Guantanamo Bay detainee, Abd Al-Rahim Hussein Muhammed Al-Nashiri, who faces capital charges before a military commission. After receiving a job offer but before retiring from the military, Spath found himself locked in a dispute with Al-Nashiri's defense lawyers, three of whom sought to leave the case. The DC Circuit granted Al-Nashiri's petition for a writ of mandamus and held that Spath's job application to the Justice Department created a disqualifying appearance of partiality. In this case, the average, informed observer would consider Spath to have presided over a case in which his potential employer (the Attorney General) appeared. The court vacated all orders issued by Spath after he applied for the job, and dismissed counsels' petition as moot. View "In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri" on Justia Law

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While serving in the Navy, Scott developed a bilateral foot disability caused by prolonged standing. In 1973, the VA Regional Office (RO) awarded Scott service connection for bilateral pes planus (flatfoot) and granted him a 0% disability rating under DC (diagnostic code) 5276. In 1990, the RO added to Scott’s service connection hallux valgus deformity (angulation of the big toe toward the other toes) without altering his rating. In 2007, a VA medical examiner diagnosed Scott with plantar fibromas (masses of fibrous tissue in the arch of the foot) in addition to his prior diagnosis. The RO continued Scott’s 0% disability rating. In 2014, the RO increased Scott’s disability rating to 30%; the decision did not mention Scott’s plantar fibromas. In 2016, the Board of Veterans’ Appeals increased Scott’s disability rating to 50%, but did not address the effect of Scott’s plantar fibromas on his rating, finding that Scott was entitled to the rating “under DC 5276 . . . for [his] bilateral pes planus” under the benefit of the doubt rule, 38 U.S.C. 5107(b). The Board concluded that DC 5284, which broadly covers “Foot injuries, other,” without identifying any specific condition, was inapplicable because the service-connected condition, pes planus, is specifically listed. The Veterans Court affirmed. The Federal Circuit vacated. The Veterans Court improperly affirmed based on rationales the Board never provided; the Board erred by failing to consider DC 5284. Foot conditions not specifically listed in the rating schedule may be rated by analogy under DC 5284. View "Scott v. Wilkie" on Justia Law

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Wade, an active duty member of the Army Special Forces Group and affiliated with the Naval Postgraduate School in Monterey, was charged with misdemeanor driving under the influence (DUI) with a blood alcohol concentration above 0.15 percent. The court denied his request to enter a pretrial diversion program under the military diversion statute, Penal Code section 1001.80. The court of appeal directed the trial court to reconsider. The trial court departed from the principles behind Penal Code section 1001.80 by focusing on the nature of the offense and applying the felony sentencing guidelines without apparent consideration of the rehabilitative purpose of diversion. The court abused its discretion by denying Wade’s request using criteria which the Legislature implicitly rejected; the Legislature expressly intended to include DUI offenses within the scope of diversion. View "Wade v. Superior Court" on Justia Law

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Manufacturers produced equipment for three Navy ships. The equipment required asbestos insulation or asbestos parts to function as intended, but the manufacturers did not always incorporate the asbestos into their products, so the Navy later added the asbestos. Two Navy veterans, exposed to asbestos on the ships, developed cancer. They sued the manufacturers. The manufacturers argued that they should not be liable for harms caused by later-added third-party parts. The Supreme Court affirmed the Third Circuit in rejecting summary judgment for the manufacturers. The Court adopted a rule between the “foreseeability” approach and the “bare-metal defense,” that is "especially appropriate in the context of maritime law, which has always recognized a ‘special solicitude for the welfare’ of sailors." Requiring a warning in these circumstances will not impose a significant burden on manufacturers, who already have a duty to warn of the dangers of their own products. A manufacturer must provide a warning only when it knows or has reason to know that the integrated product is likely to be dangerous for its intended uses and has no reason to believe that the product’s users will realize that danger. The rule applies only if the manufacturer directs that the part be incorporated; the manufacturer makes the product with a part that the manufacturer knows will require replacement with a similar part; or a product would be useless without the part. View "Air & Liquid Systems Corp. v. DeVries" on Justia Law

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The Town of Belmont appealed a New Hampshire Board of Tax and Land Appeals (BTLA) decision that, pursuant to RSA 72:36-a (2012) respondent Robin M. Nordle 2013 Trust was entitled to a 100% real estate tax exemption for a homestead in Belmont. RSA 72:36-a provided that a person who met certain qualifications set forth in the statute, and “who owns a specially adapted homestead which has been acquired with the assistance of the Veterans Administration,” qualified for a property tax exemption. Louis Nordle served during the Vietnam War and was honorably discharged in 1969. In 1998, Louis and his wife, Robin Nordle, purchased a summer camp in Belmont. In 2007, the Nordles demolished the original home and built a new home. The house was later transferred to the Robin M. Nordle 2013 Trust, in which Louis had a life estate in the trust and Robin was the trustee. In 2015, the United States Department of Veterans Affairs determined that Louis was totally and permanently disabled due to his service-connected disabilities. In 2016, Louis received a “Specially Adapted Housing Grant” from the Veterans Administration (VA), and used the funds to modify his home to accommodate his disability. The town originally denied Nordle's application for tax-exempt status, determining that the “home was not ‘acquired’ or ‘purchased’ by or with the assistance of a VA loan.” In making its determination, the town relied upon advice from the New Hampshire Department of Revenue that, in order to be entitled to the property tax exemption, the VA “had to help ‘purchase’ the home not adapt it.” The BTLA reasoned that “the word ‘acquired’ in the statute had a plain meaning broader than simply ‘purchased,’” and that because Louis “obtained, and is now in possession of, a specially adapted homestead . . . only because of the financial assistance he received from the VA,” the taxpayer was entitled to the tax exemption set forth in RSA 72:36-a. The New Hampshire Supreme Court determined that once the remodeling was completed, the taxpayer owned a specially adapted homestead which was “acquired with the assistance of the Veterans Administration.” and affirmed the BTLA’s determination that the taxpayer was entitled to a 100% real estate tax exemption for the homestead in Belmont. View "Appeal of Town of Belmont" on Justia Law