The family of a soldier wounded during the 2009 Fort Hood attack has asked the Supreme Court to rein in the deferential legal standard that led lower courts to approve the Army’s decision to withhold his Purple Heart.
The appeal to the Supreme Court — which has garnered support from two prominent former Trump administration officials — follows years of efforts by the late Staff Sgt. Joshua Berry’s family to honor the shoulder injury the soldier received while leaping over a desk to take cover from gunshots.
“This is simply an opportunity to honor Josh’s life — his sacrifice — and for his daughter to have something to hold on to, and [the Army] fought it tooth and nail,” said Meredith DiLiberto, who is part of the legal team at the conservative organization Judicial Watch, which is litigating on behalf of Berry’s family.
“The U.S. Army remains committed to ensuring soldiers, civilians, and contractors are properly recognized for their service to the nation,” said Lt. Col. Joseph Payton, a spokesperson for the Army, in a statement to Army Times. He declined to comment on this specific case, citing the pending litigation.
Purple Hearts are unusual among decorations in that eligible service members are automatically entitled to them once they meet the criteria. The medals are regularly awarded to service members who die or sustain wounds in combat, but those killed or wounded in international terrorist attacks are also eligible for the medal.
Congress in 2014 expanded the definition of international terrorism to include terror attacks in which the assailant is not directed by a foreign organization but is still in communication with them.
Congress’ action greenlit dozens of Purple Hearts for troops wounded in the 2009 mass shooting at Fort Hood in Texas, which killed 13 and wounded more than 30. The assailant, former Maj. Nidal Hasan, had been radicalized in part by an al-Qaida propagandist.
The Army has argued that the injury Berry sustained during the attack does not qualify him for a Purple Heart because he was not in direct contact with the shooter.
When Hasan opened fire outside of the room Berry was in, the staff sergeant told others in the room to take cover and then leaped over a desk, dislocating his shoulder, according to the district judge’s summary of the facts of the case.
An Army medical board later deemed Berry unfit for service because of his shoulder injury and post-traumatic stress disorder, as well as his arthritis. He died by suicide in 2013.
After Berry was initially denied a posthumous Purple Heart in 2015, an Army appeals board recommended awarding him the medal. But a few months later, the then–deputy assistant secretary of the Army for review boards, Francine Blackmon, stepped in to override that recommendation.
Berry’s father sued in D.C. federal court for the Army to award the medal. District Judge Christopher R. Cooper sided with the Army, noting that courts should be “unusually deferential” in reviewing decisions made by the military. An appeals court agreed with Cooper’s assessment.
This summer, Berry’s aunt — who has continued fighting for the Purple Heart after Berry’s father died in 2020 — asked the Supreme Court to review the case.
Conservative legal organizations First Liberty Institute and America First Policy Institute filed a friend-of-the-court brief challenging the heightened deference that courts often afford the military’s procedural decisions, like the one to deny Berry’s medal. The brief counted two notable names among its signatories: former Veterans Affairs Secretary Robert Wilkie and former acting National Security Advisor Keith Kellogg, both of whom are employed by AFPI.
Wilkie speculated that the Army denied Berry the medal because the Obama administration was reluctant to draw more attention to the Islamic terrorist aspect of the attack. In 2015, 47 people were awarded Purple Hearts or civilian Defense of Freedom Medals in connection with the 2009 attack.
“I did not hesitate to put my name on this amicus brief, because I think it’s very important that we can’t just turn aside the heroism of people for some temporary political gain,” said Wilkie, who serves as a colonel in the Air Force Reserve. He added that he feels particularly strongly about this case because his father received three Purple Hearts for service in the Vietnam War.
First Liberty lawyer Mike Berry, who is a member of the Marine Corps Reserve and has no relation to Joshua Berry, argued that courts should defer to many of the military’s decisions, but not those that threaten constitutional and statutory rights.
“We think this presents a good opportunity for the Supreme Court to step in and say, ‘No, there’s not a different standard for the Department of Defense than for everyone else’ — that when you raise your right hand and you swear the oath to uphold and defend the Constitution and you join your military as a volunteer, you don’t forfeit the constitutional protections that are afforded your civilian counterparts,” he said.
Mike Berry pointed to service members seeking religious exemptions to vaccine mandates as one issue implicated by courts’ unusual deference.
It is by no means guaranteed that the Supreme Court will hear the case. In a typical term, the court receives more than 7,000 petitions and takes on roughly 80 of them.
A spokesperson for the solicitor general, who is representing the Army and Department of Defense leadership, declined to comment.
Irene Loewenson is an editorial fellow at Military Times and Defense News. A native New Yorker, she is a recent graduate of Williams College, where she was the editor-in-chief of the student newspaper.
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