Justia Military Law Opinion Summaries

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Petitioner appealed the district court's decision to abstain, on the basis of Schlesinger v. Councilman, and dismiss without prejudice his petition for writ of habeas corpus challenging the U.S. Army's exercise of court-martial jurisdiction over him. The court held that the district court was well within its discretion in applying Councilman abstention and dismissing without prejudice petitioner's petition for a writ of habeas corpus. The court remanded, however, for correction of an error in the judgment because, although the district court applied Councilman abstention and dismissed the petition without prejudice, the judgment erroneously indicated that the district court granted the Army's summary judgment motion on the merits. View "Hennis v. Hemlick, et al." on Justia Law

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In the mid-1990's, the Navy began providing employees with bottled water after an EPA report indicated that water fountains in some Navy buildings in Newport contained components manufactured with lead. Beginning in 2005, the Navy replaced the problematic water fountains, tested the tap water, and determined it safe to drink. The Navy then stopped providing bottled water; it did not negotiate with employee unions before removing the bottled water. The unions objected to the removal of the bottled water. Funds appropriated for agency operations could be used for "necessary expenses" but not for employees' "personal expenses." As the Comptroller General has long determined, when safe and drinkable tap water was available in the workplace, bottled water constituted a personal expense for which appropriated funds could not be expended. Under federal collective bargaining law, moreover, an agency had not duty or authority to bargain over or grant benefits that were "inconsistent with any Federal law." Therefore, if safe and drinkable tap water was available at the Newport facilities, the Navy had no authority or duty to bargain before removing the bottled water. View "US Dept. of the Navy v. FLRA" on Justia Law

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Plaintiff is a veteran with a service-connected disability rated at 80 percent, which makes him a "preference eligible" veteran, 5 U.S.C. 2108(3)(C). He applied for attorney positions at the Social Security Administration and at the U.S. Attorney's Office, informing both that he was a preference eligible veteran. Both agencies selected other applicants, at least one of whom was not preference eligible. He filed complaints with the Department of Labor. The agencies concluded that 5 U.S.C. 3320 did not apply to require that agencies "file written reasons" and receive permission from the Office of Personnel Management if they pass over a preference eligible who is among the highest three eligibles available for appointment on a certificate furnished by OPM. The Board agreed that attorneys are exempt from any examination or rating requirements. The Federal Circuit affirmed. The Board properly concluding that the agencies were exempt from the procedures and were not required to file written reasons with OPM and seek permission before selecting other candidates. View "Jarrard v. Dep't of Justice" on Justia Law

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This interlocutory appeal arose out of the deaths of two civilian drivers in a United States military supply-truck convoy in Iraq when insurgents attacked in April 2004. State tort claims were brought by or on behalf of spouses and family members of the decedents against KBR. KBR contended that the district court erred in denying its motion to dismiss and motion for summary judgment in which it argued that the Defense Base Act (DBA), 42 U.S.C. 1651-54, provided plaintiffs exclusive remedy and preempted all state tort claims that have been asserted. The court concluded that the DBR preempted plaintiffs' state law claims and therefore did not consider whether it had jurisdiction to entertain the alternative grounds on which KBR sought dismissal. View "Fisher, et al. v. Halliburton, et al." on Justia Law

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Plaintiff, an African American, began working for defendant in 1987 and was a member of the Army Reserve. In 2004, after rehabilitation for an injury sustained in Iraq, he returned to his job as a supervisor. When he presented orders for training, a manager told plaintiff that he needed to choose between the company and the Army. Plaintiff claimed that managers assigned him more work than others, otherwise treated him differently, and terminated his employment for falsifying a safety form, which, he claimed, was a widespread practice. Plaintiff also claims that he was told to disqualify an African American female trainee, no matter how well she performed, and refused to do so. The district court ruled in favor of the employer on discrimination and retaliation claims under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4311(c)(1), and race discrimination and retaliation claims under 42 U.S.C. 1981, Title VII, and the Tennessee Human Rights Act. The Sixth Circuit affirmed with respect to retaliation claims under Title VII, but otherwise reversed. The district court improperly denied discovery with respect to treatment of other supervisors. There were material issues of fact as to whether military service was a factor in the company's actions.View "Bobo v. United Parcel Serv., Inc." on Justia Law

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The veteran, discharged in 1966, suffered service-related loss of use of an arm and both legs and injuries to buttocks, thighs, hips, and torso. In 1967 a regional office awarded compensation at the total disability rate (38 U.S.C. 314(j) (now 1114)), additional special compensation at the rate between subsections (l) and (m), and under subsection (k); it did not award aid and attendance because then-law required a special compensation rating of (o). In 1970, the office awarded special compensation under subsections (m) and (k), retroactive to 1966. With changes in the law, his rating increased to (n). A 1979 amendment provided that a veteran is eligible for a&a if rated under subsection (o) or between (n) and (o) and under (k). In 1992, the office granted service connection for a seizure disorder. This qualified for a full-step increase to (o) (38 C.F.R. 3.350(f)(4)), and the veteran was awarded a&a effective 1991, the date of the diagnosis. The Board refused to assign an effective date before 1991. On second remand the Veterans Court affirmed the Board's rejection of a claim concerning a&a for the injuries assessed in 1966. The Federal Circuit affirmed, characterizing the claim as disagreement with the regional office's factual findings. View "Pimentel v. Shinseki" on Justia Law

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This case arose out of a contract entered into by Iraq's Ministry of Defense (IMOD) and Wye Oak for the refurbishment and disposal of Iraqi military equipment. At issue was whether, for purposes of analyzing subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602-11, a foreign state and its armed forces were separate legal persons. The court concluded that, for jurisdictional purposes, they were not. Therefore, the court held that Wye Oak's claim against Iraq alleging breach of contract entered into by IMOD fell within the FSIA's commercial activities exception. Accordingly, the court affirmed the district court's denial of Iraq's motion to dismiss Wye Oak's claim for lack of subject matter jurisdiction. View "Wye Oak Technology, Inc. v. Republic of Iraq" on Justia Law

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Plaintiff sued the DoD for declaratory and injunctive relief, alleging that the DoD violated various in-sourcing procedures adopted pursuant to federal law. The district court dismissed, concluding exclusive jurisdiction lay in the Court of Federal Claims. Plaintiff appealed the district court's dismissal of its complaint for lack of subject matter jurisdiction. The court concluded that plaintiff's complaint constituted an action by an interested party alleging a violation of a statute or regulation in connection with a procurement. Accordingly, the Tucker Act, 28 U.S.C. 1491(b), conferred exclusive jurisdiction over this action with the Court of Federal Claims and the Administrative Procedures Act, 5 U.S.C. 500 et seq., did not waive sovereign immunity as to plaintiff's claims. Therefore, the district court correctly dismissed the complaint and the judgment was affirmed. View "Rothe Development, Inc. v. U.S. Dept. of Defense, et al." on Justia Law

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Claimant appealed from a judgment of the district court ordering the forfeiture to plaintiff United States, pursuant to 22 U.S.C. 401(a), of certain communication-jamming devices, to wit, the defendant-in-rem Jammers, owned by claimant and a company of which he was the majority shareholder and CEO. On appeal, claimant contended that the district court erred in dismissing his claim, arguing principally that the stipulation he signed was void on the grounds that it was signed under duress and without consideration. The court held that, as a matter of New York law, no consideration for claimant's agreement to the release was needed; and thus, if consideration was absent, its absence did not make the stipulation invalid. The court also held that claimant's assertions did not meet any part of the test of duress. The court further held that the district court correctly granted the government's motion to strike or for summary judgment on the ground of claimant's lack of Article III standing. Accordingly, the judgment was affirmed. View "United States v. Twenty MilJam-350 IED Jammers" on Justia Law

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Plaintiff's husband served in the U.S. Army, 1958-1959, and was discharged due to rheumatic heart disease. The Board of Veterans' Appeals denied a claim for service-related benefits in 1959 and denied subsequent claims. In 1985, husband died of an acute myocardial infarction. The Board denied plaintiff dependency and indemnity compensation, 38 U.S.C. 1310. In 1992, plaintiff sought to reopen the 1986 decision. The request was denied in 1999; the Veterans Court affirmed in 2002. The Federal Circuit remanded, holding that the government failed to rebut the presumption of soundness, 38 U.S.C. 1111 with evidence that husband's heart disease was not aggravated by his military service. On remand, the Veterans Court affirmed the denial on alternate grounds; the Federal Circuit again remanded. Plaintiff's claim was then granted and she sought attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. 2412. The Veterans Court denied the claim, finding that the VA's position was supported by then-existing precedent. The Federal Circuit reversed. The Veterans Court failed to consider all of the factors surrounding the erroneous denial, particularly that the government had adopted an interpretation of section 1111 that was unsupported by the plain language of the statute or legislative history. View "Patrick v. Shinseki" on Justia Law