Fort Hood Shooting Victims’ Lawsuit Is Dismissed

View this article online at https://www.fedsmith.com/2019/01/24/fort-hood-shooting-victims-lawsuit-dismissed/ and visit FedSmith.com to sign up for free news updates
By on January 24, 2019 in Court Cases with 0 Comments

Entrance sign at Ft. Hood military base in Killeen, TX

The decision is Manning, et al. v Esper, Secretary of the Army (CA No. 12-1802 (CKK), 1/22/19. The court summarized “the sad and horrific facts” as set out in the complaint and as relevant to its decision. (p. 3)

On November 5, 2009 Major Nidal Hasan opened fire at Fort Hood, Texas, killing fourteen and wounding 32. His motivation was “radical Islamist ideology.” (p. 3) He yelled “Allah Akbar” and carried out his planned attack. He had been in communication with a notorious al-Qaeda insurgent responsible for recruiting Americans to carry out attacks on U.S. soil, Anwar al-Aulaqi. (pp. 3-4)

Three years to the day following Hasan’s actions, plaintiffs in this case, representing victims as well as survivors, filed this suit, outlining numerous tort and related claims against both Hasan and the personal representative of the estate of the al-Aulaqi (who was killed by an American drone attack in 2011). (p. 4)

In addition to tort claims, plaintiffs alleged various constitutional and Administrative Procedure Act claims against federal defendants named both in their official and in some claims in their individual capacities. Meanwhile Major Hasan was subjected to court martial leading the district court to grant the government defendants’ motion to stay this case until that court martial was ultimately resolved. It was resolved in August 23, 2013 when Hasan was convicted of 32 counts of attempted murder and 13 counts of premeditated murder. The federal court continued to stay its proceedings at the government’s request for another several years while post-conviction court martial procedures dragged on. Apparently the basis for the prolonged stay was “to avoid any risk of unlawful command influence and to spare the inefficiencies of piecemeal proceedings.” (pp. 5-6)

It was not until March 2017 that the government indicated it was now okay to lift the stay of this district court lawsuit. Not surprisingly, the government defendants then filed motions to dismiss all of plaintiffs claims in this case, based on varying grounds. Prominent among these grounds are assertions that the plaintiffs had failed to exhaust their required administrative remedies under the Federal Tort Claims Act (FTCA), or had failed to sue the United States rather than various government officials, also as required under the FTCA.

The district court has now granted defendants’ motions to dismiss. Where plaintiffs failed to name the United States as a defendant, the court dismissed this without prejudice, so they may re-file and remedy this shortcoming in their complaint. Some of the claims dismissed for failure to exhaust under the FTCA, as well as some barred because the Federal Employees’ Compensation Act (FECA), which is the exclusive remedy for those claims, were also dismissed without prejudice. As for claims filed on behalf of members of the military, the court ruled that those are dismissed with prejudice in accordance established law barring such suits by or on behalf of uniformed military personnel (the so-called Feres doctrine.) (p. 3)

This decision is a procedural legal soup, but the result should not come as a surprise. When an individual believes the government has committed a tort that caused him injury, the FTCA governs such a claim. That law requires that an administrative claim must be filed with the agency believed to have wronged the individual to give that agency an opportunity to investigate and decide the claim administratively. If the decision is to deny the tort claim, then the individual has exhausted his administrative remedy and now has the right to file a law suit. But failure to exhaust the administrative remedy means the court does not have jurisdiction over the plaintiff’s claim, as is apparently the case here.

Additionally, if a federal employee is injured at work, FECA is the exclusive remedy available to redress this claim. In other words, worker’s compensation takes care of the damages if it is determined that the injury is job-related. FECA provides for an administrative procedure for filing such claims similar to workman’s compensation laws in the private and other government sectors. (Many readers will recall that not long after the Fort Hood massacre the government called it “work place violence” and denied any sort of terrorist attack had occurred.)

Similarly uniformed military members injured or killed while on active duty receive medical care and have administrative procedures available through their military branch.

It is likely that plaintiffs in this lawsuit may give it another go by remedying the various deficiencies in their case to the extent they can be remedied. Stay tuned.

Manning v Esper Civil Action No. 12-1802

© 2019 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

Tags:

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

Top