Judge Rejects Major’s Claim in Fort Hood Killings

BALTIMORE (CN) — A federal judge threw out an Army officer’s lawsuit claiming the Department of Defense removed him from a leadership position to scuttle an investigation into the 2014 Fort Hood shooting that killed three soldiers.

Maj. Toby Mackall, the second-ranking officer of the 49th Movement Control Battalion, was leading a staff meeting at Fort Hood in Texas on April 2, 2014 when Ivan Lopez-Lopez opened fire in the building.

Mackall left the building when he heard gunshots, which he says was consistent with his training. Sgt. First Class Daniel Ferguson died while trying to barricade the door to the meeting room. Two other soldiers and Lopez also died.

Two weeks after the shooting, Lt. Col. Myron Bell held a meeting with the members of Mackall’s unit who were in the meeting the day of the shooting.

He “observed a shared feeling of abandonment” among the staff and found they had lost “trust and confidence” in Mackall, according to a Department of Defense court filing.

But Mackall said his removal came not from his response to the shooting, but because he had filed an inspector general complaint before the shooting, alleging insubordination and indiscipline in the unit.

Mackall said in an interview Tuesday that the general “indiscipline” in his unit left them ill-prepared for an active shooter situation.

That led Mackall, representing himself, to file two federal lawsuits in March, one against the Department of Defense and the other against four officers in his chain of command, including Bell. Mackall claimed the reassignment and removal from his leadership position violated his rights under the Fifth and 14th Amendments and constituted whistleblower retaliation. He claimed the Army made the decision to reassign him without conducting an investigation into his actions during and after the shooting.

U.S. District Judge Richard Bennett, a President George W. Bush appointee, consolidated the cases on Nov. 16 and dismissed them on Monday in part because most of the claims are directly related to his military service.

Bennett also rejected Mackall’s constitutional claims against the officers because courts typically leave it to Congress and the executive branch to oversee military decisions.

Bennett also found that Mackall did not exhaust his administrative remedies before coming before the court.

“Although plaintiff claims that he has attempted to exhaust his remedies by submitting requests regarding the status of his application, he never filed an administrative claim with the Army’s claim service,” Bennett wrote. “Therefore, he has not exhausted his administrative remedies and this court does not have jurisdiction to hear his claim.”

As for the whistleblower claim, Bennett found the Military Whistleblower Protection Act “only provides for administrative remedies; it does not provide a private cause of action.”

Mackall said in the interview that he will appeal, and called the Army’s handling of his reassignment “totally preposterous.”

“They never suspended me; they just basically fired me,” Mackall said.

The Department of Defense generally does not comment on lawsuits and directed comment on the lawsuit to the Army, which did not immediately return a request for comment.

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