Justia Military Law Opinion Summaries

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

Plaintiffs worked in the State Department as Diplomatic Security Special Agents and volunteered to serve one-year in Iraq. They arrived in Iraq in February 2004. Initially, their permanent duty station was in Washington, D.C., so they received “locality pay” in addition to base salary intended to equalize federal employees’ compensation with that of non-federal workers in the same geographic area, 5 U.S.C. 5301, 5304. Months later, their permanent duty station changed to the U.S. Embassy in Baghdad and they no longer received locality pay. Plaintiffs also received compensation for a significant number of overtime hours. In 2005, they returned to the U.S. After the Office of Personnel Management’s new regulations took effect, the plaintiffs received notices of a review of premium pay earnings involving Iraq, that “the rate of the annual premium pay cap that applies to you is $128,200,” that earnings to date “have already or will shortly put you above the cap for the current pay year,” and that the Department would seek collection of any overpayments. Each later received a letter requiring repayment of from $435.94 to $10,514.98. The D.C. Circuit held that the Department permissibly construed the statute and did not act arbitrarily in denying a discretionary waiver of the obligation to repay. View "Lubow v. Dep't of State" on Justia Law

Alvarez, a two-year-old citizen of Mexico, entered the U.S. without admission or parole. In 1989 he became a lawful permanent resident. Alvarez served in the U.S. Army, 1991-2004. Alvarez has only departed the United States as a member of the Army. In 2000 Alvarez had sexual contact with a female platoon member who was so intoxicated that she was unable to consent. He provided a signed denial to the Army Criminal Investigation Division. He eventually pleaded guilty to violations of the Uniform Code of Military Justice: 10 U.S.C. 907, for making false official statements; 10 U.S.C. 925, sodomy; and, 10 U.S.C. 934, for two specifications of violating the general article. The judge sentenced Alvarez to a bad conduct discharge, to be reduced to the grade of E-1, and to be confined for 18 months. The sentence did not allocate the confinement to the convictions. In 2012, DHS agents arrested Alvarez. An IJ found him removable under 8 U.S.C. 1227(a)(2)(A)(iii) and 1101(a)(43)(F), as an alien who has been convicted of an aggravated felony. The BIA affirmed. The Third Circuit remanded. The BIA committed legal error in concluding that Alvarez’s sodomy conviction was a crime “for which the term of imprisonment [was] at least one year,” 8 U.S.C. 1101(a)(43)(F). View "Chavez-Alvarez v. Att'y Gen., United States" on Justia Law

Lanquist and Temple served as midshipmen at the Academy for four years before they became commissioned naval officers. Both men later became employees of Ventura County. They are members of VCERA, which permits employees to purchase retirement service credit for time spent in military service. It excludes time spent as a midshipman at the United States Naval Academy. VCERA denied their requests to purchase retirement service credit for midshipmen service at the Academy. At a hearing before the VCERA retirement board, they presented evidence that as midshipmen at the Academy they were compensated as active duty servicemen and experienced hardships and dangers on surface cruises with active naval vessels similar to those experienced by commissioned officers. The trial court upheld the denial, holding that VCERA's policy of denying retirement service credit for service at the Academy is "appropriate" in view of state and federal authorities interpreting the terms "public service," and "active duty." The court of appeal reversed. "Military service" includes service as a midshipman, Gov. Code, 31450. View "Lanquist v. Ventura Cnty. Emps.' Ret. Ass'n" on Justia Law

Wingard, a 20-year veteran, died in 2005, from causes unrelated to his military service. His daughter sought a burial-plot or interment allowance (38 U.S.C. 2303) and burial benefits (38 U.S.C. 2302(a)(1)), which provides for burial benefits only in the case of a deceased veteran “who at the time of death was in receipt of compensation . . . or was in receipt of pension.”. The Board of Veterans Appeals granted an interment allowance, but denied burial benefits. In 1989, the Department had assigned Wingard a 0% disability rating for a service-connected hernia that had been treated and showed no sign of recurrence. Wingard’s disability rating remained at 0%l. He never received disability compensation, had no claims pending, and never received a Veterans-related pension. The Veterans Court held that 8 U.S.C. 7252(b) did not preclude review and that sections 1110 and 1155 allowed the Department to find some disabilities noncompensable and assign a 0% rating. The court did not address whether “in receipt of compensation,” included “entitled to receive compensation.” The Federal Circuit vacated, holding that Congress has barred the Veterans Court and Federal Circuit from conducting such review, which must be conducted through a direct review of rulemaking determinations under 38 U.S.C. 502. View "Wingard v. McDonald" on Justia Law

Mrs. Dixon was the spouse of a veteran. A 1996 an Order of Support issued by the Juvenile and Domestic Relations District Court of Virginia ordered Mr. Dixon to pay Mrs. Dixon child support of $443.00 per month and spousal support of $1000.00 per month. Mrs. Dixon states that the Order required the Department of Veterans Affairs to garnish these sums from Mr. Dixon’s disability payments. Mr. Dixon did not make these payments. On Mr. Dixon’s death in 2004, Mrs. Dixon filed a claim with the VA Regional Office requesting the payments that she claims should have been paid to her from Mr. Dixon’s VA disability benefits, 1996-2004. The Veterans Court rejected the claim, finding that the VA was never served with legal process instructing garnishment, as required by 42 U.S.C. 659(i)(5); that Mrs. Dixon incorrectly asserted that the VA previously made partial payments pursuant to the Order; and that the $500 monthly payments she received were, instead made pursuant to 38 C.F.R. 3.452 (apportionment of veteran’s benefits if the veteran is not residing with his spouse or children). The Federal Circuit affirmed. View "Dixon v. McDonald" on Justia Law

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), 52 U.S.C. 20302(a)(8)(A), includes a variety of measures that states are required to adopt in order to accommodate military voters when they administer federal elections. At issue is section 20302(a)(8)(A)'s requirement that, when a qualifying military or overseas voter requests an absentee ballot for a federal election, a state must transmit a ballot to that voter forty-five days before the federal election. The United States filed suit against Alabama seeking to enjoin the State from holding federal runoff elections forty-two days after federal primary elections. When the court looked at the text of section 20302(a)(9), the court found that it directs states only to "establish a written plan" in preparation for runoff elections, and makes no claim that it abrogates the mandatory forty-five day transmission timeline. In light of the plain language of this substantive command - and Congress's clear intent to prioritize the empowerment of military voters through clear and accessible absentee voting procedures - the court concluded that section 20302(a)(9) does not alter the court's interpretation. Therefore, the court held that the State must transmit validly requested absentee ballots to eligible UOCAVA voters forty-five days before each federal election, whether that election is primary, general, special, or runoff. Accordingly, the court affirmed the district court's grant of summary judgment to the United States. View "United States v. Alabama" on Justia Law

Moffitt served in the Army, 1944-1946, and was discharged due to injuries sustained during service. The VA awarded him a combined disability rating of 100%, which was later reduced to a combined 60% rating, effective 1953. Moffitt died in 1982. If a veteran’s death is not service-connected, the surviving spouse may qualify for dependency and indemnity compensation (DIC) if the veteran received, or was “entitled to receive,” benefits for a service-connected disability that was rated totally disabling for the 10-year period prior to the veteran’s death, 38 U.S.C. 1318. Mrs. Moffitt sought DIC benefits under 38 U.S.C. 1151, which provides that, when a veteran suffers an additional disability or death as the result of VA hospitalization, treatment, or examination, benefits shall be awarded as if such disability or death were service-connected. The Board concluded that Moffitt’s death was the result of injury incurred during hospitalization at a VA facility and posthumously granted Moffitt’s pending claim for total disability based on individual unemployability with a 1979 effective date. After several related decisions, the Board of Appeals denied Mrs. Moffitt enhanced DIC benefits, finding that regulations, amended while the claim was pending, precluded her hypothetical entitlement theory (38 C.F.R. 20.1106). The Veterans Court and Federal Circuit affirmed, applying the amendment retroactively. View "Moffitt v. McDonald" on Justia Law