Lovell v. Heng
Opinion of the Court
Appellant Thomas R. Lovell, III appeals a district court decision dismissing his 42 U.S.C. § 1983 claims against certain Nebraska Army National Guard officers, the State of Nebraska and the National Guard Bureau (collectively referred to as appel-lees) challenging his involuntary removal from his full-time position in the Active Guard Reserve (AGR) program of the Nebraska National Guard. Appellant brought this action in federal district court
On January 27, 1988, appellant testified before the Government, Military and Veterans Affairs Committee of the Nebraska Legislature opposing the legislative confirmation of the appointment of Adjutant General Heng. Appellant testified that he opposed the confirmation of Heng because, among other things, Adjutant General Heng had harassed him, had ordered him not to talk to the news media and had done nothing to prevent the sexual harassment of women in the Nebraska Guard.
On June 24, 1988, Adjutant General Heng ordered appellant's involuntary termination from AGR status effective June 29, 1988. On July 14, 1988, appellant filed the present action in the federal district court alleging, among other things, that he had been terminated in retaliation for his testimony before the legislative committee. Appellant did not avail himself of his right to appeal to the Army Board for the Correction of Military Records (ABCMR), which is responsible for awarding back pay, retirement benefits, and other compensatory measures in cases of alleged inequitable military personnel actions.
The district court dismissed the claim against the National Guard Bureau, the federal appellee, as not stating a basis for jurisdiction. The district court also dismissed appellant’s claim for damages against the state defendants as barred by the Supreme Court’s decision in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).
In Watson, an Arkansas National Guardsman filed suit against the Guard and various military personnel pursuant to 42 U.S.C. §§ 1981 and 1983 alleging wrongful discharge on the basis of his race. Relying on the Supreme Court’s decisions in Feres v. United States,
. The Honorable Warren K. Urbom, United States District Court Judge for the District of Nebraska.
. Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 2368, 76 L.Ed.2d 586 (1983), held that "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.”
. In Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950), the Supreme Court held that the United States is not liable under the Federal Tort Claims Act for injuries to military personnel which arise out of or in the course of activity incident to military service.
.In reaching its decision, the court relied in part on the Fifth Circuit’s decision in Crawford v. Texas Army National Guard, 794 F.2d 1034 (5th Cir. 1986). In Crawford, the court held that an "injunctive-relief exception to Chappell ... could swallow Chappell's rule of deference.... [Sjuits for injunctive relief, like those for monetary damages, must be carefully regulated in order to prevent intrusion of the courts into the military structure.” Id. at 1036-37.
Reference
- Full Case Name
- Thomas R. LOVELL III v. Stanley M. HENG, as Adjutant General of the Nebraska National Guard and individually Gale A. Shields, as Chief of Staff of the Nebraska Army National Guard and individually Larry K. Eckles, as Director of Military Personnel and Administration for the Nebraska Army National Guard and individually Thomas P. Kay, as a Lt. Colonel in the Nebraska Army National Guard and individually Kay A. Orr, Governor of the State of Nebraska and Commander in Chief of the Nebraska National Guard State of Nebraska and the National Guard Bureau, Appellees Thomas R. LOVELL III v. Stanley M. HENG, as Adjutant General of the Nebraska National Guard and individually Gale A. Shields, as Chief of Staff of the Nebraska Army National Guard and individually Larry K. Eckles, as Director of Military Personnel and Administration for the Nebraska Army National Guard and individually Thomas P. Kay, as a Lt. Colonel in the Nebraska Army National Guard and individually Kay A. Orr, Governor of the State of Nebraska and Commander in Chief of the Nebraska National Guard State of Nebraska and the National Guard Bureau
- Cited By
- 11 cases
- Status
- Published