The Fifth Circuit affirmed the district court's dismissal of plaintiff's retaliation claim for lack of subject matter jurisdiction and grant of summary judgment for the VA on plaintiff's discrimination claim. Plaintiff filed his retaliation claim after he was subjected to a peer review process to look into his medical care of a patient who suffered renal failure. Plaintiff amended his complaint to add the discrimination claim after the VA issued a memorandum addressing an incident where plaintiff left a patient alone and outlining future expectations. In regard to the retaliation claim, the court held that plaintiff failed to exhaust his administrative remedies because he filed in federal court prematurely, and failed to make a waiver or estoppel argument to excuse his failure to exhaust. The court also held that plaintiff failed to raise a genuine issue of material fact as to the third element of the prima facie case of racial discrimination where he failed to show an adverse employment action. In this case, the VA's peer review process was not an adverse employment action under Title VII. View "Stroy v. Gibson" on Justia Law
KPCC filed suit against KBR, a general contractor supporting the Government's military operations in Iraq, alleging claims for breach of contract, fraud, and promissory estoppel. At issue was a 2010 contract for, inter alia, KBR's leasing, with an option to purchase, a dining facility constructed by KPCC in Iraq. The district court dismissed the complaint, concluding that the political-question doctrine rendered nonjusticiable the contract dispute at issue. Applying de novo review, under the discriminating inquiry required by Baker v. Carr, the court concluded that the claims presented required resolution of contractual disputes for which there existed judicially manageable standards. Therefore, there was no justiciable political question. The court disposed of KBR's remaining claims regarding the act-of-state doctrine and regarding a contractor's defense from its strict execution of a constitutionally authorized government order. Accordingly, the court vacated the district court's judgment and remanded. View "Kuwait Pearls Catering Co. WLL v. Kellogg Brown & Root Services, Inc." on Justia Law
Air Force Captain Meredith Morris and her husband filed suit against Air Force Captain Michael Thompson for injuries Captain Morris sustained on Randolph Air Force Base. The district court granted Thompson's motion to dismiss for lack of subject matter jurisdiction based on the Feres doctrine. The court concluded that plaintiffs' claims were incident to service and thus the Feres doctrine applied regardless of the rank of the parties or the bringing of state-law claims; the court rejected plaintiffs' claims that the application of the Feres doctrine would interfere with their constitutional rights; the husband's loss of consortium claim was consequently barred; and the failure to seek certification under the Westfall Act, 28 U.S.C. 2679(b)(1), did not divest the court of the jurisdiction to resolve what was brought to it on this appeal. Accordingly, the court affirmed the judgment. View "Morris v. Thompson" on Justia Law
Plaintiff filed suit against his former employer, the Jefferson County Sheriff's Department, alleging that after fulfilling his two-week training obligation with the Army Reserve, he was terminated in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-4335, and Texas Government Code 613.001-613.023. The court concluded that the district court did not err in refusing to apply collateral estoppel to the ALJ's finding in a state administrative proceeding where a finding that plaintiff was discharged due to a disagreement about military service was not the equivalent of a finding that the County was motivated by his military status to discharge him; the court did not analyze the possible collateral estoppel effects of the ALJ's decision on a section 4312 claim because no one has briefed it; and the technical failure to plead all the currently presented defenses did not prevent consideration of them. The court also concluded that section 613.021 established venue in state court and had no effect on the exercise of supplemental jurisdiction in federal court. Accordingly, the court affirmed the district court's denial of plaintiff's partial motion for summary judgment. View "Bradberry v. Jefferson County, Texas" on Justia Law
Posted in: Constitutional Law, Labor & Employment Law, Military Law, U.S. 5th Circuit Court of Appeals
Plaintiffs filed suit against the Secretary of the Department of the Army, alleging age discrimination and retaliation claims. As a threshold matter, the court concluded that the Age Discrimination in Employment Act's (ADEA), 29 U.S.C. 621 et seq., federal sector provision applied here, and the court need not decide whether a federal plaintiff must prove but-for-causation or some lesser standard under 29 U.S.C. 633a because plaintiffs' complaint stated a claim for relief under the heightened, but-for standard in Gross v. FBL Financial Services, Inc. On the merits, the court concluded that the district court plaintiffs have stated a claim for which relief could be granted under section 633a where plaintiffs were within the protected class under the ADEA, plaintiffs were qualified for the two newly-created positions at issue; plaintiffs were not selected for the positions; a "substantially younger" employee was selected for one of the positions instead; and one of the officials with decision-making authority over the younger employee's selection said that the department needed "new blood." Accordingly, the court reversed the district court's dismissal of plaintiffs' age discrimination claims and remanded for further proceedings. The court affirmed in all other respects. View "Leal, et al. v. McHugh" on Justia Law
Posted in: Civil Rights, Constitutional Law, Labor & Employment Law, Military Law, U.S. 5th Circuit Court of Appeals
Plaintiff filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), 2671-80, seeking compensatory damages for loss of property and personal injuries allegedly caused by the negligence and malice of the VA. The court affirmed the district court's grant of the VA's motion to dismiss where the Veterans Judicial Review Act (VJRA), 38 U.S.C. 511, and in the alternative, the United States' sovereign immunity, barred the district court from exercising jurisdiction over plaintiff's claims. View "King v. US Dept. of Veterans Affairs, et al." on Justia Law
Posted in: Constitutional Law, Government & Administrative Law, Injury Law, Military Law, U.S. 5th Circuit Court of Appeals
Plaintiff was a dual-status air reserve technician (ART) in the 301st maintenance group (301st MG). ARTs are full-time civilian employees who are also required to serve in the Air Force Reserve in the units for which they work as civilians. Plaintiff was the chief of training management of the 301st MG in his civilian capacity and a technical sergeant and chief of training of the 301st MG in his military capacity. Plaintiff alleged that he was subjected to a racially hostile work environment at the 301st MG, which caused him to leave his civilian job with the unit and lose his reserve position. The district court granted summary judgment to the Secretary of the Air Force. The Fifth Circuit vacated the grant of summary judgment, holding that the district court lacked jurisdiction over all allegations with the exception of one incident for Defendant's failure to exhaust his Title VII administrative remedies and over the remaining claim by virtue of the Feres doctrine. Remanded with instructions to dismiss. View "Filer v. Donley" on Justia Law
Defendant was convicted of knowingly making a false statement to the Department of Defense security personnel when he entered Brooke Army Medical Center demanding to see a patient in the hospital accused in the Fort Hood shooting, Major Nidal Hasan, an army psychologist. The false statement at issue was defendant's statement to an army captain that he was Major Hasan's lawyer. Defendant appealed his conviction on the ground that the evidence was insufficient to establish that his false statement was material. The court concluded that a statement to a decision maker in a military hospital that the speaker was a lawyer for a restricted military prisoner was the type of statement capable of influencing the decision maker to allow the speaker to visit the patient and that the protocols in place did not affect the statement's materiality. The court also concluded that defendant's delivery of the statement in a manner not likely to persuade did not affect the materiality of the statement. Accordingly, the court affirmed defendant's conviction. View "United States v. Abrahem" on Justia Law
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.
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.