Justia Military Law Opinion Summaries

Plaintiff filed suit against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), alleging that the Army was negligent and therefore liable for an Army Specialist's sexual assault against plaintiff. The court affirmed the district court's grant of summary judgment to the government, concluding that plaintiff failed to establish that the sexual assault was foreseeable under North Carolina law, and thus the Army did not breach a duty owed to plaintiff as landlord of Fort Bragg; the Army did not have a special relationship with the assailant for purposes of an FTCA claim; the government did not breach a voluntarily assumed duty to plaintiff; and, because discovery would serve no purpose, it was not error for the district court to reach the merits of plaintiff's claim at this stage of the litigation. The court also concluded that, although the government's ability to control a tortfeasor must be independent of the tortfeasor's status as a government employee, knowledge of the tortfeasor's propensity for violence or criminal history did not, per se nullify an FTCA claim. Accordingly, the district court's dismissal on this alternative basis was erroneous. View "Durden v. United States" on Justia Law

Prinkey served in the Army, 1969 to 1970, including time in Vietnam. He was diagnosed with diabetes in 1996. Diabetes mellitus type II is presumed to be service connected if the veteran was exposed to Agent Orange, 38 U.S.C. 1116(a)(2)(H) (2002). In 2003, the VA received Prinkey’s claim for benefits on account of his diabetes, asserting exposure to Agent Orange. The VA Regional Office grantedservice connection for diabetes, evaluated at 20%, and lesser rated service connection for other disabilities secondary to diabetes. Prinkey sought to reopen his claim. During reexamination, the VA concluded that his diabetes more likely than not resulted from the surgery that removed most of his pancreas following years of alcohol abuse, not from his exposure to Agent Orange. Ultimately the Board of Veterans’ Appeals sustained severance of service connection for diabetes and related disabilities and denied entitlement to a total disability rating based on individual unemployability. The Veterans Court affirmed. The Federal Circuit affirmed. Under 38 C.F.R. 3.105(d) “service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous; the VA may consider medical evidence and diagnoses that postdate the original award of service connection. View "Prinkey v. Shinseki" on Justia Law

Plaintiff filed suit against the Secretary of Defense and the Secretary of the Air Force seeking, inter alia, correction of his military records to reflect promotion to major general, along with active duty back pay and retired pay. The district court granted summary judgment in favor of defendants. The Little Tucker Act, 28 U.S.C. 1346, vests district courts with concurrent jurisdiction for civil actions or claims against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress. Because the jurisdiction of the district court was based, at least in part, on the Little Tucker Act, the court concluded that the Federal Circuit possessed exclusive jurisdiction over the appeal and transferred the appeal to that court. View "Schwalier v. Hagel, et al." on Justia Law

Since 1976, NAI has operated a flea market on 65.4 acres purchased from the Borough of Palmyra. In 2002, Palmyra began considering redevelopment, including NAI’s parcel. A site inspection uncovered the possible presence of unexploded munitions from a weapons-testing facility used by the Army during World War II. The parties entered into an access agreement, pursuant to which NAI could operate the Market on the weekends, while contractors conducted inspections and remedial work during the week. In 2008, however, an unexploded artillery shell was discovered flush with the surface of the Market’s parking lot. Because vendors often drove stakes into the ground to secure tents, this raised concerns of accidental detonation. After NAI refused to comply voluntarily, the police chief issued an emergency order, restricting access to the property. Hundreds of munitions were found on the property, both explosive and inert. NAI filed suit, claiming that the order was arbitrary under New Jersey law; violated procedural due process; and constituted a “taking” without just compensation. The Market was closed for five months before the parties entered a consent order that allowed the Market to reopen on weekends with barriers and security guards to prohibit public access to hazardous areas. The district court entered summary judgment for the borough and denied NAI attorney’s fees for its claimed victory with respect to the consent order. The Third Circuit affirmed.View "Nat'l Amusements, Inc. v. Borough of Palmyra" on Justia Law

Plaintiff appealed the district court's grant of summary judgment in favor of the City. The district court held that plaintiff's claims under the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301-35, were barred by the four-year federal "catch-all" statute of limitations. The court held that section 1658(a) applied to plaintiff's claims because the language of that section unambiguously applied to civil actions arising under laws which, like USERRA, were enacted after December 1, 1990, and USERRA's successor statute did not apply retroactively. The court also held that plaintiff did not file this action within four years of its accrual, notwithstanding his tolling arguments. Accordingly, the court affirmed the judgment.View "Baldwin v. City of Greensboro" on Justia Law

Parks served in Vietnam 1964-1966. Along with 6,000 other soldiers, Parks volunteered for “Project 112” and was intentionally exposed to chemical warfare agents. In 2000 and in 2002, Parks sought service connection for diabetes type II with peripheral neuropathy and heart disability. The Regional Office denied the claims. While appeal was pending, the government declassified details about chemicals used in Project 112. The Department of Defense reported that it did not know of any long-term effects caused by exposure to the chemicals, but the Veterans Health Administration required the VA to provide to Project 112 veterans “a thorough clinical evaluation,” enhanced access to the VA health care system, and free care for any illness possibly related to their participation” and 38 U.S.C. 1710(e)(1)(E) provides specific services for veterans who participated in Project 112. The VA sent Parks a letter identifying the chemicals to which he had been exposed and providing instructions on how to obtain additional medical examinations. Ultimately, the Veterans’ Court denied a service connection. The Federal Circuit affirmed, upholding reasoning that a nurse practitioner is able to provide a medical examination that meets the regulatory requirements of competent medical evidence and refusal to consider information found on the Internet.View "Parks v. Shinseki" on Justia Law

Kyhn served in the U.S. Army 1945-1946. In 1998, he filed a claim for service-connected hearing loss, which was denied by the regional office. Kyhn submitted a Notice of Disagreement, with medical evidence from his private audiologist and asserted that he was seeking service connection for tinnitus. The RO granted service connection for hearing loss at a 50% rating, but denied service connection for tinnitus. Kyhn did not appeal. The decision became final. In 2004, Kyhn sought to reopen his tinnitus claim and presented another letter from his private audiologist. Although the RO declined to reopen the tinnitus claim, the Board found the private audiologist’s statement constituted new and material evidence and remanded. Kyhn failed to appear and the Board denied service connection, based on the evidence of record. The Veterans Court found the VA had a regular practice to provide veterans with notice of their VA examinations and applied the presumption of regularity to presume the VA had properly notified Kyhn in accordance with this practice and affirmed the denial. The Federal Circuit vacated because of the lower court’s reliance on affidavits that were not part of the record before the Board. View "Kyhn v. Shinseki" on Justia Law

Geib, a World War II veteran, suffers from multiple disabilities connected to his combat service. He developed trenchfoot as a result of exposure to extreme cold weather conditions while stationed in Germany; an enemy artillery shell exploded close to Geib, causing hearing damage. The VA granted Geib disability benefits. He was assigned a 10% disability rating for trenchfoot when he was discharged in 1946. The VA increased the disability rating to 20% in 2003 to account for trenchfoot on his other foot. In 2005, Geib was assigned a 70% combined disability rating after he was diagnosed with service-connected bilateral hearing loss and tinnitus. In 2007, Geib applied for total disability based on individual unemployability, stating that he had worked as a self-employed carpet consultant, 1984-1989, prior to becoming too disabled to work. The regional office denied the claim. On remand, following medical examinations, Geib’s combined disability rating increased to 90%. The Board determined that Geib was not entitled to total disability. The Veterans’ Court and Federal Circuit affirmed. View "Geib v. Shinseki" on Justia Law

Plaintiff filed suit alleging that officers in the Army caused his infant son's death by ordering his pregnant wife, a servicewoman on active duty, to perform physical training in contravention of her doctors' instructions, which ultimately induced premature labor. The district court held that the suit was barred by the Feres doctrine and dismissed the action for lack of subject-matter jurisdiction. The Feres doctrine immunizes the United States from liability for tort claims arising out of activities incident to military service. The court concluded that, under its own precedent, Feres barred plaintiff's wrongful death claim. The court employed the "genesis test," by asking whether the family member's Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., claim had its genesis in injuries to members of the armed forces. In this case, the infant's injury derived from his mother's military service. The court rejected plaintiff's claim that genetic injuries differed from claims based upon injuries incurred in utero. Accordingly, the court affirmed the judgment of the district court. View "Ritchie v. United States" on Justia Law

Sprinkle served in the U.S. Army, 1973-1974. While in the service, he was diagnosed with schizophrenia and prescribed a high dose of Thorazine®. In 1990, Sprinkle was diagnosed with mitral valve prolapse and chorea, a movement disorder similar to benign familial myoclonus. He succeeded in establishing entitlement to disability compensation before the Social Security Administration, the VA Regional Office awarded. Sprinkle a non-service-connected pension on effective 1990. In 2001, he sought a service connection for mitral valve prolapse and myoclonus, claiming that he was incorrectly diagnosed with schizophrenia and that the high doses of Thorazine® worsened his mitral valve prolapse and caused his myoclonus.The Regional Office denied the application. The Board of Veterans’ Appeals agreed and the Veterans’ Court affirmed. The Federal Circuit affirmed, holding that Sprinkle was not denied fair process as it related to responding to a medical exam ordered by the Board.View "Sprinkle v. Shinseki" on Justia Law