Justia Military Law Opinion Summaries

Boutros worked for Avis Rent A Car as a courtesy bus driver at O’Hare Airport. He had worked for Avis before a short stint in the military. After he was honorably discharged for unsatisfactory performance, Avis did not want to rehire him, but did so. One night in May 2008, Boutros informed his supervisor that the fire extinguisher on his bus inexplicably discharged, spraying fire retardant near the driver’s seat. He reported no injury at the time, but the next morning he claimed that chemicals from the discharge had harmed him. Avis launched an investigation and eventually fired Boutros for dishonesty and insubordination in connection with his shifting accounts of the fire-extinguisher accident. Boutros sued, claiming that Avis fired him because of his race and subjected him to a hostile work environment in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e, and retaliated against him for exercising his rights under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301. A jury rejected his claims. The Seventh Circuit affirmed, agreeing that the appeal was frivolous and issuing an order to show cause why sanctions should not be imposed under Rule 38 of the Federal Rules. View "Boutros v. Avis Rent A Car Sys., LLC" on Justia Law

During the Vietnam War, herbicides were applied near the Korean DMZ in 1968-1969. The 2003 Veterans Benefits Act authorized benefits for children with spina bifida born to certain veterans, 38 U.S.C. 1821. In 2004, the VA amended its Manual to provide benefits for “individuals born with spina bifida who are the children of veterans who served with specific units … between September 1, 1967 and August 31, 1971” conceding that certain veterans who served in April 1968 to July 1969 were exposed to herbicides. The final rule, effective February, 2011, was applicable “to all applications for benefits that are received by VA on or after February 24, 2011 and to all applications … pending before VA,” the Veterans Court, or the Federal Circuit on February 24, 2011. McKinney filed a claim in 2010 for service connection based on exposure to Agent Orange during his DMZ service, which began in August 1969. The VA denied his claim. The period of presumed exposure expired one month before McKinney’s service. The VA finalized the 2011 regulation, which extended the presumed exposure period, and granted McKinney’s claim under that regulation, but denied him an effective date earlier than February 2011, so that he received benefits for the post-2011 portion of his claim. The Federal Circuit upheld the VA’s decision to assign the 2011 regulation a prospective effective date. View "McKinney v. McDonald" on Justia Law

In 2000, Herbert, a Navy veteran, sought disability benefits for PTSD, which he alleged was connected to a typhoon that his ship encountered travelling to Japan in 1956. Ship logs and letters confirm that the USS Mount McKinley weathered a bad storm around that time. A 2002 VA medical examination revealed no PTSD; the Regional Office denied the claim. Herbert filed notice of disagreement, but his hearing did not occur until 2008. Herbert underwent a 2004 examination at the VA’s Veterans Center and a 2006 examination by a private psychologist that both produced diagnoses of PTSD. A 2006 VA examination and a 2007 examination conducted at the VA’s behest did not. The Board of Appeal denied service connection finding Herbert not credible in testifying to witnessing others go overboard. The Veterans Court remanded. A VA examiner concluded that experiencing the typhoon itself was an adequate stressor to support a PTSD diagnosis, but that Herbert’s symptoms did not meet diagnostic criteria for PTSD” In 2011, Herbert had another private medical examination, which diagnosed PTSD based on the storm alone. In 2012, the Board rejected Herbert’s claim, finding him “not credible in reporting his psychiatric symptoms or the stressors.” The Veterans Court and Federal Circuit affirmed. View "Herbert v. McDonald" on Justia Law

Plaintiffs, veterans' organizations and individuals subject to U.S. military chemical and biological weapons experiments, filed an individual and class action complaint seeking declaratory and injunctive relief against the DOD, the Army, the CIA, and the VA. Two of plaintiffs’ claims, brought under section 706(1) of the Administrative Procedure Act (APA), 5 U.S.C. 706(1), are at issue in this appeal: first, the Army has unlawfully failed to notify test subjects of new medical and scientific information relating to their health as it becomes available; and second, the Army has unlawfully withheld medical care for diseases or conditions proximately caused by their exposures to chemicals during the experiments. The court held that Chapter 3–2(h) of AR 70-25 imposes a duty on the Army to provide all former test subjects with newly acquired information that may affect their well-being, and that this duty is judicially enforceable under section 706(1); the district court did not abuse its discretion in entering its injunction to enforce that duty; the district court was right to find that Chapter 3–1(k) imposes a duty to provide medical care; but, the district court did not, however, have the power to decline to compel care on the ground that another agency was providing similar care to some former test subjects. Accordingly, the court vacated the district court’s summary judgment for the government on this claim and remanded to the district court. View "Vietnam Veterans of America v. CIA" on Justia Law

Petitioner, a Guantanamo Bay detainee, raised two challenges to the constitutionality of the United States Court of Military Commission Review (CMCR). The court held that petitioner is not entitled to mandamus relief because this Court can consider his Appointments Clause and Commander-in-Chief Clause challenges on direct appeal, after the military commission renders a final judgment and the convening authority and the CMCR review it. Further, petitioner failed to demonstrate a “clear and indisputable” right to the writ. Therefore, the court denied petitioner's petition for writ of mandamus and prohibition. View "In re: Abd Al-Rahim Hussein Al-Nashir" on Justia Law

Plaintiffs, eight male, "out-of-status" aliens who were arrested on immigration charges and detained following the September 11th attacks, filed a putative class action asserting various claims arising out of the discriminatory and punitive treatment they suffered while confined at the Metropolitan Detention Center (MDC) or the Passaic County Jail (Passaic). The district court granted in part and denied in part defendants' motion to dismiss. The court concluded that: (1) the MDC plaintiffs have plausibly alleged a substantive due process claim against the DOJ defendants, against Hasty with regard to both official and unofficial conditions, and against Sherman with regard to official conditions only, and these defendants are not entitled to qualified immunity on this claim; (2) the MDC plaintiffs have plausibly alleged an equal protection claim against the DOJ defendants, Hasty, and Sherman, and these defendants are not entitled to qualified immunity on this claim; (3) the free exercise claim is dismissed as to all defendants; (4) the MDC plaintiffs have plausibly alleged their Fourth Amendment strip search claim against Hasty and Sherman, and these defendants are not entitled to qualified immunity on this claim; (5) the MDC plaintiffs have plausibly alleged the Section 1985(3) conspiracy claim against the DOJ defendants, Hasty, and Sherman, and these defendants are not entitled to qualified immunity on this claim; and (6) the MDC plaintiffs have not plausibly alleged any claims against Zenk.  The court affirmed the dismissal of the claims brought by the Passaic plaintiffs. View "Turkmen v. Hasty, et al." on Justia Law

After Abu Wa’el (Jihad) Dhiab, a detainee at Guantanamo Bay, went on a hunger strike, he was forcibly extracted from his cell and force-fed. The district court examined 32 classified videotapes of Dhiab's forcible cell extractions and force-feedings in order to grant Dhiab's motion to enjoin the government from forcibly extracting him from his cell and force-feeding him. At issue is the district court's grant of media organizations' motion to unseal and release the videotapes. The court concluded that, the district court’s decision did not terminate the action, and it does not qualify as an immediately appealable collateral order. Therefore, the court lacked jurisdiction. Further, this case does not present the extraordinary circumstances required for mandamus relief. Accordingly, the court dismissed the appeal for lack of jurisdiction and denied the request for a writ of mandamus View "Dhiab v. Obama" on Justia Law

Captain Heather Ortiz was an active-duty service member in the United States Air Force. In March 2009, Captain Ortiz was admitted to Evans Army Community Hospital for a scheduled Caesarean section. Complications caused by the medical staff’s administering of drugs in preparation for the surgery caused a precipitous drop in Captain Ortiz’s blood pressure, leading to hypotension. As a result of Captain Ortiz’s hypotension, her baby, “I.O.,” was deprived of oxygen in utero, leading to severe injuries. The issue this case presented for the Tenth Circuit's review centered on whether the federal government was immune from damages for injuries its agents caused to the baby during childbirth. Resolution of the issues in this case was controlled by the Supreme Court’s decision in "Feres v. United States," which found that military service members were barred from bringing claims against the government under the Federal Tort Claims Act (FTCA) for injuries incident to their military service. Under the Feres doctrine, federal courts lose their subject matter jurisdiction over claims like this because the Tenth Circuit concluded the injured child’s in utero injuries were unmistakably derivative of an injury to her mother, an active service-member who gave birth at an Army Base hospital. "Feres is not ours to overrule. Applying controlling law, the government is not liable under the FTCA for the claims of negligence in this case." View "Ortiz v. United States" on Justia Law

Mr. and Ms. Haynes divorced in 1995. Mr. Haynes died in 2000. Ms. Haynes sought Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. 1310, as a “surviving spouse.” Because Ms. Haynes was not married to Mr. Haynes at the time of his death, the VA Regional Office denied the claim. Ms. Haynes later requested that the Regional Office reopen her claim on the presentation of new documentation showing a decision by the Army Board of Correction of Military Records to award Ms. Haynes an annuity as a “former spouse” under the Uniformed Services Former Spouse Protection Act , 10 U.S.C. 1447(10), which permits former spouses to receive annuities. The Regional Office denied the request. The Board of Veterans’ Appeals agreed, while acknowledging Ms. Haynes’ argument that because the basis for her divorce was physical abuse, she should not be required to demonstrate marriage at the time of Mr. Haynes’ death in order to receive DIC benefits. The Veterans Court and Federal Circuit affirmed. Although Mr. Haynes’ abusive actions were documented, the statute requires validly married spouses at the time of the veteran’s death. View "Haynes v. McDonald" on Justia Law

Toomer served in the Army, 1971 to 1974. He sought benefits for degenerative disc disease, claiming connection to a 1972 in-service back strain from lifting heavy objects. In 2004, a VA Regional Office denied the claim. In 2009, the Board of Veterans’ Appeals affirmed, relying on a 2007 VA examination. Although Toomer was treated for a back strain in 1972, there was no evidence from subsequent clinical visits that his current pain was connected to that injury: a 1972 x-ray was normal; after January 1973, there were no complaints of back pain during service; and there were potential post-service injuries, considering his occupation as a construction worker. The Decision was mailed on June 2, 2009. On July 27, Toomer informed the VA that he had not received it. On August 4, the VA mailed another copy, noting that the veteran has “120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal,” On October 28, more than 120 days from the decision date, but within 120 days of the August letter, Toomer appealed to the Veterans Court, which dismissed. The Federal Circuit affirmed, stating that even if it disagreed with that court’s finding that dates on the correspondence were not misleading, and did not constitute “extraordinary circumstances,” revisiting this finding was beyond its jurisdiction. View "Toomer v. McDonald" on Justia Law