By Justice Eileen C. Moore
After Vietnam, our returning soldiers were treated in a despicable manner. Since then, Americans have learned they can love their warriors even when they hate a war. Despite the pandemic and the political unrest that marked 2020, those who are serving or have served our country in the military have not been forgotten by the legal community. This article will report a few of the many current legal happenings concerning active duty military and veterans.
In Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017), the Federal Circuit held that under the All Writs Act, its own enabling statutes and by virtue of its inherent powers, the Court of Appeals for Veterans Claims, CAVC, has the ability to establish its own rules and procedures, and that includes certifying and adjudicating class actions. The CAVC acknowledged its authority to certify class actions against the Department of Veterans Affairs, VA, in appropriate cases in Monk v. Wilkie, 30 Vet. App. 167 (2018).
CAVC’s website already lists 77 class action filings. In November 2020, the CAVC set forth its first ever class action rules that provide the mechanism for class actions by veterans who were denied benefits by the VA. The list of class action filings and the new rules can be found at: http://www.uscourts.cavc.gov/rules_of_practice.php?fullsite=yes.
The Department of Defense Annual Report on Sexual Assaults in the Military was released in April 2020. Once again, the number of sexual assault reports increased, this time by three percent. (https://www.defense.gov/Newsroom/Releases/Release/Article/2170913/department-of-defense-releases-fiscal-year-2019-annual-report-on-sexual-assault/.) In California, results of a survey of women veterans attending California’s 115 community colleges was released in April 2020. Almost two-thirds had been sexually assaulted or subject to threatening sexual harassment in the military. (http://students.ivc.edu/veterans/surveys/Female%20Veteran%20Experiences%20Survey%20Report%20%28April%202020%29.pdf.)
Sexual assaults have been entrenched in military culture for a long time, and it is imperative that civilians closely monitor what is happening to service members. More and more, the military realizes that civilians are indeed watching how it handles this serious problem. Vanessa Guillen’s murder at Fort Hood may have been the tipping point. It certainly captured the nation’s attention.
Sexual assaults were even on the radar of the United States Supreme Court in United States v. Briggs, 141 S. Ct. 467 (2020). Three service members were convicted of committing rapes after being charged more than five years after the commission of the offenses. The high court ruled that the prosecutions were timely, as military offenses punish- able by death, such as rape, are not subject to a statute of limitations.
As the legal profession is well aware, there’s nothing like a lawsuit to encourage reforms and safety measures. However, due to a seventy-year-old Supreme Court opinion, victims of sexual assaults in the military may not sue the military for damages for actions “incident to military service.” (...
