Here’s a link to the opposition to the TRO request that the United States filed today in Hall v. McHugh.  As we note below, the U.S. district court declined to grant a TRO today on abstention grounds, while also suggesting that the court would have denied the request on the merits had it reached them.

2 Responses to “United States’ opposition to Hall TRO request”

  1. John O'Connor says:

    Check out page 15 of this brief. The U.S. uses the exact same military justice quote that I invoked in my post on Hall’s TRO motion (“Judges are not given the task of running the Army.”). Weird coincidence.

    This is a good bief. I assume much of it is “off the shelf,” as this would be a lot of work to do on really short notice.

  2. Dwight Sullivan says:

    I fully agree with the brief’s (and U.S. district court’s) outcome, but the brief does suffer from some glitches, in addition to misspelling the name of the Army litigation division who is “of counsel.”

    It’s curious that the brief relies on the Tenth Circuit’s scope of review from Lips v. Commandant rather than citing a rather prominent case that provides the Eleventh Circuit’s scope of review: Calley v. Callaway, 519 F.2d 184 (5th Cir.1975).

    The brief also makes an historical mistake when it states that the UCMJ’s “appellate review provisions” were applied during the review of the court-martial convictions at issue in Burns v. Wilson. Those appeals were actually made under the Elston Act’s procedures. The UCMJ didn’t take effect until 31 May 1951, after an Air Force Board of Review and Judicial Council had already reviewed the cases.

    The brief also gilds the lilly in its description of the Feres doctrine. According to the brief, the Feres Doctrine “stands for the rule that Congress has not waived the sovereign immunity of the United States for suits brought by members.” Actually, the Feres Doctrine applies only to suits FOR MONETARY RELIEF. Several federal courts have held that suits for injunctive relief aren’t barred by Feres. See, e.g., Jorden v. Nat’l Guard Bureau, 799 F.2d 99, 110-11 (3d Cir. 1986); Wilkins v. United States, 279 F.3d 782, 784 (9th Cir. 2002) (“the Feres bar does not extend to the claims for non-monetary relief”).