Justia Military Law Opinion Summaries

Cavaciuti served in the Army, 1965-1967. In 2020, the Board of Veterans’ Appeals granted him entitlement to a total disability rating due to individual unemployability (TDIU) and directed the VA to assign him an effective date. The VA nonetheless denied Cavaciuti’s claim, finding that he was capable of gainful employment. Cavaciuti sought a writ of mandamus. After negotiations, the VA informed the Veterans Court that it had granted Cavaciuti entitlement to TDIU with a 2008 effective date. Cavaciuti argued that the case was not moot because the RO had not invalidated its erroneous rating decision and that the VA misused confidential settlement information to render the case moot.The court dismissed Cavaciuti’s petition as moot because the VA had provided him with the relief that he sought. Cavaciuti sought attorney fees and expenses under the Equal Access to Justice Act. The Veterans Court denied the application, finding that Cavaciuti did not satisfy the criterion for prevailing party status because the dismissal order did not award benefits, change the parties’ legal relationship, or otherwise address the merits of Cavaciuti’s writ petition. The Federal Circuit affirmed. There was no judicial change in the parties' legal relationship. The VA implemented the Board’s decision, as Cavaciuti requested, following a settlement rather than based on any court order. The fact that the government’s representations would prevent future changes does not render the dismissal a judicial imprimatur sufficient to make Cavaciuti the prevailing party. View "Cavaciuti v. McDonough" on Justia Law

Johnson first enlisted in 1999; in 2006 he extended his enlistment for 23 months to affiliate with the Marine Corps. Active Reserve (AR) Program. He subsequently reenlisted for terms of three and four years; his scheduled end of active service was November 2015. In March 2013, the Corps issued permanent change of station (PCS) orders for Johnson to relocate from Virginia Beach to Phoenix. Johnson unsuccessfully tried to have his orders changed, citing personal hardship. Johnson stayed in Virginia despite being counseled. He signed a “page 11,” acknowledging that he was assigned code RE-3O for failing to comply with PCS orders, and was not eligible for promotion, reenlistment, commissioning or warrant officer programs, special education programs, or involuntary separation pay unless specially authorized. Johnson was transferred into the Individual Ready Reserve (IRR) program and received a DD Form 214 reflecting the RE-3O code. Months later, the Reserve mobilized Johnson back to the AR Program, stationed in Quantico, and preliminarily approved him for appointment to warrant officer. His appointment was delayed due to the RE-3O code.Johnson reenlisted for two years and unsuccessfully petitioned the Board of Naval Corrections to remove the RE-3O code and grant his appointment. The Federal Circuit held that Johnson was properly released from the AR Program and transferred to the IRR under the procedures described in the AR Program Policy Manual. Johnson was not entitled to additional notice and a separation board before his transfer. View "Johnson v. United States" on Justia Law

A collective-bargaining agreement between the International Longshoremen’s Association (ILA) and the United States Maritime Alliance (USMX), an association of carriers and other employers, earmarks all container loading and unloading work on the East and Gulf Coasts for the union’s members. So when USMX-affiliated ships docked at a new South Carolina terminal that used non-union lift operators, the union sued USMX and its carrier members for damages. Soon enough, USMX’s carrier members stopped calling at that terminal. At issue is whether the ILA’s lawsuit—and a separate provision of its contract with USMX—violate the National Labor Relations Act. The National Labor Relations Board held that they don’t, and the South Carolina State Ports Authority petitioned for review.   The Fourth Circuit agreed with the Board and denied the petition. The court agreed that USMX and the ILA haven’t made an agreement that violates Section 8(e). Moreover, the court explained that the Board rationally held that the ILA’s lawsuit against USMX sought to preserve its coastwide jurisdiction over loading and unloading work, so it didn’t violate the Act. And the Board and ALJ correctly concluded that Section 7(b) of the Master Contract didn’t constitute an illegal hot-cargo provision, whether by its text or by tacit agreement. View "South Carolina State Ports Authority v. NLRB" on Justia Law

After serving in the United States Navy, Plaintiff became eligible to receive education benefits under the G.I. Bill, which he used to pursue a bachelor’s degree. Plaintiff also sought tuition assistance from his employer, Omaha Public Power District (OPPD), under the company’s Employee Education Program, but OPPD denied Plaintiff’s request because his G.I. Bill benefits fully covered his tuition expenses. Plaintiff sued, claiming that OPPD’s denial of company-provided tuition assistance based on his receipt of G.I. Bill benefits amounted to unlawful discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The district court granted summary judgment in OPPD’s favor, and Plaintiff appealed.   The Eighth Circuit affirmed. The court explained that Plaintiff y has “failed to present sufficient evidence to make” the requisite “threshold showing” that his status as a military veteran was “a motivating factor” in OPPD’s decision to deny him EEP benefits. His discrimination claim under USERRA thus fails, and the district court properly granted summary judgment in OPPD’s favor. View "Andrew Kelly v. Omaha Public Power District" on Justia Law

Appellant brought an action against the Army in district court, challenging the Secretary’s assignment of a 20% disability rating. According to Appellant the Secretary should have given him a 30% rating, consistent with the rating he had received from the Department of Veterans Affairs in a separate assessment conducted by the VA to determine his eligibility for veterans’ disability benefits. The district court granted summary judgment in favor of the Army.   The DC Circuit vacated the grant of summary judgment to the Army and remanded. The court concluded that the Secretary’s approach when determining Appellant’s disability rating was inconsistent with the applicable statute and regulations. The court explained that to the extent the Physical Disability Board of Review (PDBR) concluded that Appellant’s leg condition rendered him collectively unfit when considered together with his back condition, it was obligated to assign a rating to the leg condition. By extension, the Secretary, in accepting the PDBR’s recommendation to give no rating to Appellant’s leg condition, acted contrary to law insofar as the PDBR concluded that his leg condition was collectively unfitting together with his back condition. The court further explained that the fact that a condition contributes to a soldier’s unfitness is enough, and the Secretary’s apparent addition of a “significantly” criterion naturally raises questions about what degree and manner of contribution is thought to suffice, questions that the terms of the statute and regulations do not make salient. Any assumption that a medical condition, to receive a rating, must contribute “significantly” to unfitness thus is contrary to law. View "Jason Sissel v. Christine Wormuth" on Justia Law

Plaintiff, an Air Force veteran, appeals from a decision of the Physical Disability Board of Review (“Board”) declining to increase his disability rating, which would entitle him to greater benefits. The district court rejected Plaintiff’s arguments that the Board was required to conduct a physical examination before making its decision and that its decision was arbitrary and capricious.   The Fourth Circuit affirmed. The court wrote that by arguing that he could not be taken off the List or have his temporary 50% rating lowered until the Air Force conducted a physical examination—an examination that necessarily could not occur until years after his retroactive placement on the List—Plaintiff pushes for an interpretation that would effectively grant a retroactive 50% rating for years to all individuals whose disabilities are reviewed by the Board and fall under Section 4.129. But that defies the purpose of the Board: to ensure accurate disability determinations at the time of a member’s discharge, “based on the records of the armed force concerned and such other evidence as may be presented to the” Board. The court, therefore, rejected Plaintiff’s argument that the Board was required to order a new physical examination before making its determination. Ultimately, the court concluded that its decision was supported by substantial evidence, with a “rational connection between the facts found and the choice made.” View "Blair Coleman v. Frank Kendall" on Justia Law

Petitioner served as the personal assistant and public-relations secretary to Usama bin Laden, the leader of al Qaeda and mastermind of the 9/11 terrorist attack against the United States. Members of a military commission convicted Petitioner of conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes. The members sentenced Petitioner to imprisonment for life, and the U.S. Court of Military Commission Review (“CMCR”) affirmed. On Petitioner’s first appeal to the DC Circuit, the court upheld the conspiracy charge but vacated the other convictions as unconstitutional under the Ex Post Facto Clause. The CMCR subsequently reaffirmed Petitioner’s remaining conspiracy conviction and life sentence twice. Petitioner asked the court to vacate his conspiracy conviction or, alternatively, to remand his case for resentencing by military commission members.   The DC Circuit denied the petition. The court explained that Petitioner could have raised the change in law, or other similar objections, in his initial appeal to the CMCR or during the extensive proceedings since then. He did not. On the most recent remand to the CMCR, he questioned the admissibility of the statements in his opening brief but did not argue that Section 948r barred their admission until his reply. Accordingly, the court wrote that it declined to revisit its prior ruling that the convening authority is an inferior officer because the intervening Supreme Court case cited by Petitioner does not clearly dictate a departure from the circuit’s precedent. The court also upheld his sentence of life imprisonment. View "Ali Hamza Ahmad al Bahlul v. USA" on Justia Law

Perciavalle, serving in the Army from 1962-1964, injured his knee, which required surgery. The VA awarded Perciavalle a 10 percent disability for medial menisectomy under Diagnostic Code (DC) 5259 for “[c]artilage, semilunar, removal of, symptomatic.” In 1971, Perciavalle underwent another orthopedic examination. The VA did not increase Perciavalle’s disability rating. Perciavalle did not appeal. In 2015, Perciavalle requested a reopening of the 1971 rating decision for clear and unmistakable error (CUE), claiming that he was entitled to two separate disability ratings, one for slight instability of the knee under DC 52571 and another based on the 1971 examination for limitation of motion of flexion and discomfort secondary to arthritis under DC 5003-5260. Perciavalle argued that the 1971 x-ray “clearly show[ed] degenerative changes” as compared to the 1966 examination. The regulations allowed for the combination of two or more disability ratings, but stated that the evaluation of the same disability under various diagnoses is to be avoided.The Veterans Court affirmed the Board of Veterans’ Appeal’s denial of Perciavalle’s claim. The Federal Circuit vacated in part. The Board incorrectly interpreted Perciavalle’s CUE claim. Perciavalle’s CUE claim set forth the relevant facts and regulations. Under a sympathetic reading of that claim, the VA was required to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” View "Perciavalle v. McDonough" on Justia Law

Grounds served in the Army from 1969-1972. He was charged with being AWOL during three periods in 1972 (less than 180 days). To avoid a court-martial. Grounds requested to be discharged “for the good of the service,” citing marital and financial problems and stating, if he were to remain in the Army, he would continue going AWOL. Grounds was discharged “[f]or the good of the [s]ervice” and “[u]nder conditions other than [h]onorable.”In 2013, Grounds applied for veterans' benefits. The VA found his multiple periods of AWOL constituted “willful and persistent misconduct,” rendering him ineligible for benefits under 38 C.F.R. 3.12(d)(4). The Board of Veterans Appeals agreed, concluding his discharge was considered “dishonorable” for VA benefits purposes. The Federal Circuit affirmed the Veterans Court's rejection of an argument that 38 U.S.C. 5303(a) controls and cannot be superseded by 38 C.F.R. 3.12(d)(4). Section 5303(a) provides that a veteran is not eligible for benefits if he was discharged by reason of court-martial on the basis of being AWOL for a continuous period of at least 180 days. Under Federal Circuit precedent, section 5303(a) is not the exclusive test for benefits eligibility; 38 C.F.R. 3.12(d)(4) is consistent with and authorized by statute. While Grounds’ misconduct did not constitute a statutory bar to VA benefits under section 5303. the Board did not clearly err in finding that his multiple periods of AWOL constituted a regulatory bar to benefits. View "Grounds v. McDonough" on Justia Law

Secretary of Defense Lloyd Austin ordered all members of the Armed Forces to be vaccinated against COVID-19. Secretary of the Navy Carlos Del Toro followed suit soon after, mandating vaccination for all Navy servicemembers. Plaintiffs are thirty-five members of Naval Special Warfare Command units. Each sought an exemption due to a sincere religious objection to the Navy’s authorized vaccines. Plaintiffs sued Secretary Austin, Secretary Del Toro, and the Department of Defense (collectively, “the Navy”), alleging that the mandate violated the First Amendment and RFRA. They also sought a preliminary injunction to block enforcement of the policies described above. Specifically, they asked the court to enjoin “any adverse action” based on their vaccination status, such as job loss, ineligibility to deploy, and restrictions on promotion and training opportunities. The district court granted a preliminary injunction. The district court twice enjoined the Navy’s policies as likely illegal under RFRA. After the entry of those injunctions, however, Congress ordered the military branches to rescind their mandates. The Navy complied with that directive and then rescinded all the challenged policies and formally announced that COVID-19 vaccines would not be imposed on any servicemember.   The Fifth Circuit dismissed the appeal and remanded. The court explained that the interlocutory appeal is moot because the Navy’s vaccine policies challenged here have been rescinded and because no exception to mootness applies. That does not end the litigation, however, and Plaintiffs’ case remains before the district court, which will decide in the first instance whether any of Plaintiffs’ claims are justiciable. View "U.S. Navy SEALs 1-26 v. Joseph Biden, Jr." on Justia Law