Justia Military Law Opinion Summaries

Federal employees who are members of the National Guard are entitled to up to 15 days of annual military leave “without loss in pay, time, or performance or efficiency rating,” 5 U.S.C. 6323(a)(1). Before a 2000 amendment, the Office of Personnel Management interpreted the section as providing 15 calendar days of leave, rather than 15 workdays; federal employees who attended reserve training on non-work days were charged military leave. The Federal Circuit held that even before 2000, federal agencies were not entitled to charge employees military leave on non-workdays. Tierney worked at the DEA, 1974-2001, and was a member of the Air National Guard. He filed a Merit Systems Protection Board claim that the DEA charged him military leave for reserve duty on 44 non-workdays, so that he took annual leave or unpaid leave for military duty. An AJ ordered DEA to compensate Tierney for 17 days. The full Board reversed, finding that the Military Leave Summary and Tierney’s testimony were based solely on his military records and on speculation that DEA improperly charged military leave on intervening non-workdays and that the evidence was insufficient to prove that DEA charged him military leave on non-workdays or that he used annual leave for reserve duties. The Federal Circuit reversed and remanded, concluding that the decision was not supported by substantial evidence. View "Tierney v. Dep't of Justice" on Justia Law

Pirkl served in the Navy, 1947-1949. Effective in 1949, the VA awarded him disability benefits for paranoid schizophrenic reaction, evaluated as 10% disabling. A regional office increased his disability rating to 100%, effective in 1952. In 1953, the office reduced the rating to 70%. Pirkl did not appeal. In 1956, the office reduced Pirkl’s rating to 50%, based on a newly acquired medical examination and changes in Pirkl’s employment status. Pirkl did not appeal. In 1966, the office reduced the rating to 30%. The Board of Appeals affirmed. In 1991, Pirkl was awarded a 100% disability rating, effective 1988. In 2001, Pirkl unsuccessfully sought to revise the 1953, 1956, and 1966 rating decisions based on clear and unmistakable error (CUE). In 2005, Pirkl filed Notice of Disagreement with respect to the 1953 rating. The Board found CUE. The regional office awarded a 100% rating for 1952 to 1957, when the 1956, decision made effective a 50% rating. The Board dismissed Pirkl’s claim for 100% disability for the entire period between 1952 and August 30, 1988. The Veterans Court affirmed. The Federal Circuit vacated and remanded, concluding that the Board did not consider the effect of certain regulations governing a reduction of a total disability rating. View "Pirkl v. Shinseki" on Justia Law

James Mallard and Tonya Mallard (now Tonya Mallard Burkart) were divorced on in 2001. Incorporated into the Final Judgment of Divorce was the Child Custody and Support and Property Settlement Agreement executed by the parties. A significant portion of the financial settlement that Burkart received in the property settlement agreement consisted of forty percent of Mallard's "disposable military retirement pay" for ten years. Following the divorce, Mallard elected to adopt a sixty-percent disability rating as part of his retirement pay. Mallard did not provide any of these disability benefits to Burkart. When Mallard filed a Petition for Modification of Judgment of Divorce in chancery court pursuant to child-support and custody matters, Burkart filed a counterpetition for contempt, asserting that Mallard had structured his retirement in such a way as to defeat her forty-percent interest in the total retirement pay. The chancellor determined that Burkart was entitled to forty percent of the disability benefits, but he declined to find Mallard in contempt. Mallard appealed. Upon review, the Supreme Court found that since federal law preempts state law, state courts are precluded from allocating military disability benefits to a nonmilitary spouse; therefore, the Court reversed and remanded the case for further proceedings. View "Mallard v. Burkart" on Justia Law

Robert Hardick, a Navy sailor, filed suit under general maritime law against John Crane, Inc. (JCI) seeking compensatory and punitive damages, alleging that he was exposed to asbestos contained in products manufactured by JCI and that he contracted mesothelioma as a result. Robert died prior to trial, and his action was revived as a wrongful death action by his wife, Margaret. The jury returned a verdict for Margaret, and the trial court required JCI to pay a sum of $2,988,741 to Margaret. The Supreme Court reversed in part, holding that the trial court erred by permitting the jury to award Margaret nonpecuniary damages for the wrongful death of Robert, as Robert was a seaman and thus precluded from recovering nonpecuniary damages. Remanded.View "John Crane, Inc. v. Hardick" on Justia Law

In 2009, the Secretary of Veterans Affairs sued Frank S. Smith, Jr. in the Jefferson Circuit Court, stating a claim of ejectment and sought possession of Mr. Smith's house in Bessemer. The mortgage to Mr. Smith's home was assigned to the Secretary, and the Secretary had sold the house at a foreclosure sale in 2007. The auctioneer who sold the house executed an auctioneer's deed conveying the house to the Secretary. The Secretary demanded that Mr. Smith vacate the house, but Mr. Smith failed to leave. The trial court granted summary judgment, asserting as a matter of law he was entitled to possession of the house. Mr. Smith opposed the summary-judgment motion by filing a pleading titled 'Defendant's Response to Plaintiff's Motion for Summary Judgment.' In his response, Mr. Smith argued, among other things, that the Secretary had failed to establish that he was entitled to possession of the house because, Frank said, the affidavit filed with the Secretary's motion did not comply with Rule 56(e), Ala. R. Civ. P. Mr. Smith appealed to the Court of Civil Appeals which reversed the summary judgment and remanded the action for further proceedings. Upon review, the Supreme Court found that Mr. Smith should have moved to strike the offending affidavit in the Secretary's summary judgment motion in his response: "an objection to the inadmissible evidence alone is not sufficient." The Court vacated the appellate court's decision and affirmed the trial court's decision. View "Smith, Jr. v. Secretary of Veterans Affairs" on Justia Law

Vandenberg Air Force Base is a designated a “closed base.” Civilians may not enter without express permission. The Air Force has granted an easement over areas of the Base, so that two public highways traverse the Base. One highway has an adjacent area designated for peaceful protests. The Base commander enacted rules to control the protest area and issued an advisory that anyone who fails to adhere to those policies may be barred from entering the Base. Apel was barred from the Base for trespass and vandalism, but continued to enter the protest area and was convicted of violating 18 U.S.C. 1382, prohibiting reentry of a “military... installation” after having been ordered not to do so “by any officer or person in command.” The district court rejected his defense that the section does not apply to the protest area. The Ninth Circuit reversed. The Supreme Court vacated and remanded. A “military ... installation” encompasses the commanding officer’s area of responsibility, including Vandenberg’s highways and protest area. Section1382 does not require exclusive possession and control. Although the highways and protest area are outside fenced areas on the Base, the entire Vandenberg property is under the administration of the Air Force. Although the Base commander has occasionally closed the highways to the public for security purposes or when conducting a military launch, section 1382 does not require base commanders to make continuous, uninterrupted use of a place within their jurisdiction, lest they lose authority to exclude certain individuals. View "United States v. Apel" on Justia Law

Kebodeaux was convicted by special court-martial of a federal sex offense. After serving his sentence and receiving a bad-conduct discharge from the Air Force, he moved to Texas where he registered with state authorities as a sex offender. Congress later enacted the Sex Offender Registration and Notification Act (SORNA), which requires federal sex offenders to register in the states where they live, study, and work, 42 U.S.C. 16913(a). SORNA applies to offenders who, when SORNA became law, had completed their sentences. When Kebodeaux moved within Texas and failed to update his registration, the federal government prosecuted him and the district court convicted him under SORNA. The Fifth Circuit reversed. The Supreme Court reversed, holding that SORNA’s registration requirements, as applied to Kebodeaux, fall within the scope of congressional authority under the Necessary and Proper Clause. Congress did not apply SORNA to an individual who was, before its enactment, “unconditionally released,” but to an individual already subject to federal registration requirements. SORNA somewhat modified registration requirements to which Kebodeaux was already subject, to make more uniform "a patchwork of federal and 50 individual state registration requirements." At the time of his offense and conviction, Kebodeaux was subject to the Wetterling Act, which imposed similar registration requirements and was promulgated under the Military Regulation Clause (Art. I, s. 8, cl. 14), and the Necessary and Proper Clause. The same power that authorized Congress to promulgate the Uniform Code of Military Justice and punish Kebodeaux’s crime also authorized Congress to make the civil registration requirement at issue a consequence of conviction. Imposing a civil registration requirement that would apply upon the release of an offender like Kebodeaux is “eminently reasonable,” as is assignment of a special role to the federal government in ensuring compliance with federal sex offender registration requirements. View "United States v. Kebodeaux" on Justia Law

The Federal Tort Claims Act waives sovereign immunity from tort suits, 28 U. S. C. 1346(b)(1), except for certain intentional torts, including battery; it originally afforded tort victims a remedy against the government, but did not preclude suit against the alleged tort-feasor. Agency-specific statutes postdating the FTCA immunized certain federal employees from personal liability for torts committed in the course of official duties. The Gonzalez Act makes the FTCA remedy against the U.S. preclusive of suit against armed forces medical personnel, 10 U. S. C. 1089(a), and provides that, “[f]or purposes of this section,” the FTCA intentional tort exception “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical ... functions.” Congress subsequently enacted the Federal Employees Liability Reform and Tort Compensation Act, which makes the FTCA remedy against the government exclusive for torts committed by federal employees acting within the scope of their employment, 28 U. S. C. 2679(b)(1); federal employees are shielded without regard to agency or line of work. Levin, injured as a result of surgery performed at a U. S. Naval Hospital, sued the government and the surgeon, asserting battery, based on his alleged withdrawal of consent shortly before the surgery. Finding that the surgeon had acted within the scope of his employment, the district court released him and dismissed the battery claim. Affirming, the Ninth Circuit concluded that the Gonzalez Act served only to buttress the personal immunity granted military medical personnel and did not negate the FTCA intentional tort exception. The Supreme Court reversed and remanded. The Gonzalez Act section 1089(e) abrogates the FTCA intentional tort exception, allowing Levin’s suit against the U.S. alleging medical battery by a Navy doctor acting within the scope of employment. The operative clause states, “in no uncertain terms,” that the FTCA intentional tort exception “shall not apply,” and confines the abrogation to medical personnel employed by listed agencies. View "Levin v. United States" on Justia Law

The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved, 18 U. S. C. 704 (b),(c). After pleading guilty to falsely claiming that he had received the Medal of Honor, Alvarez challenged the Act as unconstitutional. The Ninth Circuit held that the Act is invalid under the First Amendment. The Supreme Court affirmed. Characterizing the law as a content-based restriction on protected speech, the Court applied the “most exacting scrutiny.” Falsity alone does not take speech outside the First Amendment. While the government’s interest in protecting the integrity of the Medal of Honor is beyond question, the First Amendment requires a direct causal link between the restriction imposed and the injury to be prevented; that link was not established. The government had no evidence that the public’s general perception of military awards is diluted by false claims or that counter-speech, such as the ridicule Alvarez received online and in the press, would not suffice to achieve its interest. The law does not represent the “least restrictive means among available, effective alternatives.” The government could likely protect the integrity of the military awards system by creating a database of Medal winners accessible and searchable. Dissenting Justices Alito, Scalia, and Thomas viewed the Act as significantly limited and necessary to the important governmental objective. View "United States v. Alvarez" on Justia Law

Respondent filed an action under the False Claims Act ("FCA"), 31 U.S.C. 3730(e)(4)(A), alleging that his former employer had submitted hundreds of false claims for payment under its federal contracts. At issue was whether a federal agency's written response to a request for records under the Freedom of Information Act ("FOIA"), 5 U.S.C. 552, constituted a "report" within the meaning of the public disclosure bar. The Court held that a federal agency's written response to a FOIA request for records constituted a "report" within the meaning of the FCA's public disclosure bar where a "report," in this context, carried its ordinary meaning; where the Labor Department's three written responses in this case, along with the accompanying records produced to respondent's wife, were "reports" within the public disclosure bar's ordinary meaning; where the Court was not persuaded by assertions that it would be anomalous to read the public disclosure bar to encompass written FOIA responses; and whether respondent's suit was "based upon... allegations or transactions" disclosed in the reports at issue was a question to be resolved on remand. View "Schindler Elevator Corp. v. United States ex rel. Kirk" on Justia Law