Articles Posted in Military Law

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Plaintiff began his military career in 1983, serving in the Indiana National Guard, the Army, and the Army Reserve. He was a Captain and served in combat in Iraq. In 2007-2011 he sustained several injuries and was diagnosed with Type 2 diabetes. He was placed on reserve status while a Physical Evaluation Board evaluated his fitness for continued military service. When retired from the army on grounds of physical disability in 2014, Futrell became eligible for a monthly government pension. Had paperwork been processed, he would have also received incapacitation payments during the gap between his release from duty and his retirement; he received no government payments between December 2011 and January 2013, causing him severe financial and emotional distress. In 2013, the government paid him an amount that covered the incapacitation payments that he should have received, but did not compensate for his distress. He filed suit against under the Federal Tort Claims Act, 28 U.S.C. 2674. The Seventh Circuit affirmed dismissal of the suit as barred by a Supreme Court holding that the Act is unavailable to a member of the armed forces who “while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces.” The alleged harms all relate to military benefits and were committed by military base staff. That he was on reserve status is irrelevant. View "Futrell v. United States" on Justia Law

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Arroyo worked as a Volvo material handler, 2005-2011. Arroyo was a member of the U.S. Army Reserve. She deployed twice to Iraq and Kuwait: 2006-2007 and 2009-2010 and took leave for training and other military activities. She received more than 900 days of military leave from Volvo. There is evidence, including internal emails, suggesting that her supervisors were frustrated from the beginning about her absences. After her 2009-2010 deployment Arroyo declined a voluntary severance package and returned to work. Arroyo was diagnosed with PTSD. Arroyo took three months FMLA and disability leave. Volvo granted accommodations, including: a quiet place to meditate; a mentor; time off for counseling; and breaks and support during anxiety attacks. Other requested accommodations—a more flexible schedule, use of earplugs or headphones in both ears, day-to-day guidance, putting all communications in writing, and disability awareness training—were under review when she was terminated for violation of Volvo’s attendance policy. The district court rejected her claims for discrimination, retaliation, and failure to provide reasonable accommodations in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301, the Americans with Disabilities Act, 42 U.S.C. 12101, the Rehabilitation Act, 29 U.S.C. 791 , and Title VII of the Civil Rights Act, 42 U.S.C. 2000e. The Seventh Circuit reversed with respect to discrimination claims under USERRA and the ADA, stating that Arroyo raised genuine, material factual issues. View "Arroyo v. Volvo Grp. N. Am., LLC" on Justia Law

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Boutros worked for Avis Rent A Car as a courtesy bus driver at O’Hare Airport. He had worked for Avis before a short stint in the military. After he was honorably discharged for unsatisfactory performance, Avis did not want to rehire him, but did so. One night in May 2008, Boutros informed his supervisor that the fire extinguisher on his bus inexplicably discharged, spraying fire retardant near the driver’s seat. He reported no injury at the time, but the next morning he claimed that chemicals from the discharge had harmed him. Avis launched an investigation and eventually fired Boutros for dishonesty and insubordination in connection with his shifting accounts of the fire-extinguisher accident. Boutros sued, claiming that Avis fired him because of his race and subjected him to a hostile work environment in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e, and retaliated against him for exercising his rights under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301. A jury rejected his claims. The Seventh Circuit affirmed, agreeing that the appeal was frivolous and issuing an order to show cause why sanctions should not be imposed under Rule 38 of the Federal Rules. View "Boutros v. Avis Rent A Car Sys., LLC" on Justia Law

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Pursuant to a long-standing local ordinance, the City of Plymouth, Indiana pays its police officers “longevity pay” after each work anniversary, calculated by multiplying $225 by the number of years that the officer has been on the force. Faced with financial difficulties in 1989, Plymouth enacted a second longevity pay ordinance, which prorates longevity pay for officers who take a leave of absence during any given year, including for military service. During officer DeLee’s twelfth year on the job, he missed nearly eight months of work while serving in the Air Force Reserves. When he returned, Plymouth paid him one-third of his full longevity payment for that year. DeLee sued, arguing that longevity pay is a seniority-based benefit to which the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301–4335, entitles him in full. The district court granted summary judgment in favor of Plymouth. The Seventh Circuit reversed, reasoning that Plymouth’s longevity benefit is more appropriately characterized as a reward for lengthy service, rather than as compensation for work performed the preceding year, USERRA guarantees DeLee a full longevity payment for his twelfth year of employment. View "DeLee v. City of Plymouth" on Justia Law

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Augutis had reconstructive surgery on his foot at a VA hospital. Complications led to amputation of his leg. Augutis claims that the amputation was the result of negligent treatment and filed an administrative complaint with the Department of Veterans Affairs. The VA denied the claim. Augutis timely requested reconsideration on March 21, 2011. On October 3, the VA informed him that it had not completed reconsideration, but that suit could be filed or additional time could be permitted to allow it to reach a decision. The letter noted that Federal Tort Claims Act claims are governed by both federal and state law and that some state laws may bar a claim or suit. Days later, the VA denied reconsideration. The letter explained that a claim could be presented to a district court within six months, but again noted that state laws might bar suit. Augutis filed suit on April 3, 2012, more than five years after the surgery, but within six months of the VA’s final dismissal. The district court dismissed under Illinois’s statute of repose, 735 ILCS 5/13‐212(a), which requires that a medical malpractice claim be brought within four years of the date of the alleged malpractice. The Seventh Circuit affirmed, rejecting an argument that the state limitations period was preempted by the FTCA period. View "Augutis v. Uniited States" on Justia Law

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Ruppel sued CBS in Illinois alleging CBS’s predecessor, Westinghouse, caused the mesothelioma from which he suffers. Westinghouse had included asbestos in the turbines it supplied to the U.S. Navy, and Ruppel was allegedly exposed to it during his Naval service and later when he worked on an aircraft carrier as a civilian. CBS removed the case under the federal officer removal statute, which permits removal of certain suits where a defendant that acted under a federal officer has a colorable federal defense, 28 U.S.C. 1442(a)(1). Ruppel moved to remand and, without allowing response, the district court granted the motion. The district court concluded Ruppel only sued CBS for failing to warn about the dangers of asbestos for which there is no federal defense. The Seventh Circuit reversed. CBS’s relationship with Ruppel arises solely out of CBS’s duties to the Navy. It also has a colorable argument for the government contractor defense, which immunizes government contractors when they supply products with specifications approved by the government. View "Ruppel v. CBS Corp." on Justia Law

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American citizen-civilians, employees of a private Iraqi security services company, alleged that they were detained and tortured by U.S. military personnel while in Iraq in 2006, then released without being charged with a crime. Plaintiffs sought damages and to recover seized personal property. The district court denied motions to dismiss. In 2011, the Seventh Circuit affirmed in part, holding that plaintiffs sufficiently alleged Secretary Rumsfeld's personal responsibility and that he is not entitled to qualified immunity. On rehearing en banc, the Seventh Circuit reversed, stating that a common-law claim for damages should not be created. The Supreme Court has never created or even favorably mentioned a nonstatutory right of action for damages on account of conduct that occurred outside of the U.S. The Military Claims Act and the Foreign Claims Act indicate that Congress has decided that compensation should come from the Treasury rather than from federal employees and that plaintiffs do not need a common-law damages remedy in order to achieve some recompense. Even such a remedy existed, Rumsfeld could not be held liable. He did not arrest plaintiffs, hold them incommunicado, refuse to speak with the FBI, subject them to loud noises, or threaten them while they wore hoods. View "Vance v. Rumsfeld" on Justia Law

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Decedent, on active duty, committed suicide in his barracks. Navy and Department of Defense personnel had been called and arrived at his residence, but did not find the gun they were told he had. They permitted decedent to go to the bathroom accompanied by his friend. Upon entering, he pulled a gun from his waistband and committed suicide by shooting himself. After attempting unsuccessfully to recover from the Navy through administrative procedures, decedent's family brought a wrongful death claim under the Federal Tort Claims Act. The district court found the case barred by the Feres doctrine, which provides that "the Government is not liable ... for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." The Seventh Circuit affirmed. Decedent stood "in the type of relationship to the military at the time of his . . . injury that the occurrences causing the injury arose out of activity incident to military service."

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American citizen-civilians alleged that they were detained and illegally tortured by U.S. military personnel while in Iraq in 2006 and released from military custody without being charged with a crime. At the time they worked for a privately-owned Iraqi security services company. Plaintiffs sought damages and brought a claim to recover personal property that was seized. The district court denied motions to dismiss. The Seventh Circuit affirmed in part, holding that plaintiffs alleged sufficient facts supporting Secretary Rumsfeld's personal responsibility for the alleged torture and that he is not entitled to qualified immunity on the pleadings. The law was clearly established in 2006 that the alleged treatment was unconstitutional. No reasonable public official could have believed otherwise. A "Bivens" remedy is available for alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone. The court noted that U.S. law provides a civil remedy for aliens who are tortured by their own governments. Claims by aliens, alleging torture by U.S. officials, are distinguishable. The Administrative Procedure Act's "military authority" exception precludes judicial review of military actions affecting personal property in a war zone.

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Defendant entered an open plea of guilty, without benefit of a plea agreement, for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act, 18 U.S.C. 2250. The district court judge sentenced him to 18 months in prison, 20 years of supervised released, and a $100 special assessment fee. The Seventh Circuit affirmed. Defendant's plea of guilty to forcible sodomy (Uniform Code of Military Justice, 10 U.S.C. 925), while serving in the Navy, triggered SORNA. The judge's application of a modified categorical approach to examine a limited amount of additional material (the charging instrument) and classify the conviction as a tier one offense was proper.