Armed Services--standing--military deployment
The trial court did not err by dismissing plaintiffs' claim for an injunction to rescind
orders of deployment for United States military forces, withdrawal of current deployed troops,
and estoppel of future deployments based on lack of standing, because such relief is not within
the power of the North Carolina state courts to grant since deployment of federal troops is
entirely within the control of the federal government.
Jeffrey S. Sullivan and Donald Sullivan, plaintiff-appellants,
pro se.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General W. Dale Talbert, for defendant-appellees.
HUNTER, Judge.
Lt. Col. Donald Sullivan and Specialist Jeffery S. Sullivan
(collectively “plaintiffs”) appeal from a dismissal of their claim
for injunctive relief entered 1 March 2004. As we find plaintiffs
lacked standing to bring this claim, we affirm the trial court's
dismissal.
Plaintiffs are former members of the United States Armed
Services. Specialist Sullivan is a current member of the North
Carolina National Guard and was deployed in August 2003 to the
current United States military operation ongoing in Afghanistan. On 3 October 2003, plaintiffs sought a temporary restraining
order and preliminary injunction against the State of North
Carolina, Governor Michael F. Easley, and Major General William E.
Ingram, Adjutant General of the North Carolina National Guard
(collectively “defendants”), to: (1) rescind orders of deployment
for members of the military forces of North Carolina engaged in
actions in Iraq and Afghanistan, (2) recall those troops already
deployed, and (3) estop defendants from further deployment.
Plaintiffs contend such actions violate the state and federal
Constitutions.
Defendants moved to dismiss the action, contending that the
claim was not justiciable and failed to state a claim on which
relief could be granted. The trial court granted defendants'
motion to dismiss on 1 March 2004, finding plaintiffs lacked
standing, that defendants were protected by sovereign immunity, and
that the complaint presented political questions not justiciable by
the court. Plaintiffs contend the trial court erred in dismissing
their claims on these grounds. We disagree.
Standing is among the “justiciability
doctrines” developed by federal courts to give
meaning to the United States Constitution's
“case or controversy” requirement. U.S.
Const. Art. 3, § 2. The term refers to
whether a party has a sufficient stake in an
otherwise justiciable controversy so as to
properly seek adjudication of the matter.
Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App.
110, 114, 574 S.E.2d 48, 51 (2002) (citation omitted). “Standing
is a necessary prerequisite to a court's proper exercise of subjectmatter jurisdiction.” Aubin v. Susi, 149 N.C. App. 320, 324, 560
S.E.2d 875, 878 (2002).
In order to establish standing to bring a justiciable claim
before the court, a plaintiff must show an:
“'(1) “injury in fact” -- an invasion of a
legally protected interest that is (a)
concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the
challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative,
that the injury will be redressed by a
favorable decision.'”
Estate of Apple v. Commercial Courier Exp., 168 N.C. App. 175, 177,
607 S.E.2d 14, 16 (2005) (citations omitted).
Plaintiffs' requested relief in this action is an injunction
to rescind orders of deployment for United States military forces,
withdrawal of currently deployed troops, and estoppel of future
deployments. Such relief is not within the power of the North
Carolina state courts to grant.
(See footnote 1)
A member of a state national
guard is simultaneously a member of the Army National Guard of the
United States. See 10 U.S.C. § 101(c) (1998). Further, a guard
member ordered to active duty is relieved from duty in the National
Guard of his State. See 32 U.S.C. § 325(a) (1959). Plaintiffs'
remedy of withdrawal of federal troops and estoppel of further
deployment is not within the power of the State of North Carolinato provide, as such deployments of federal troops are entirely
within the control of the federal government. See U.S. Const. art
1, § 8, cl. 16 (stating Congress shall govern the militia when
employed in the service of the United States), U.S. Const. art 2,
§ 2, cl. 1 (stating President is commander in chief of the militia
of the several states), U.S. Const. art. 6, § 2 (stating the
Constitution is the supreme law of the land and binding on the
judges of every state). Therefore the trial court properly found
plaintiffs lacked standing to proceed with their claim.
As both plaintiffs have failed to establish standing, the
trial court properly dismissed the action for lack of jurisdiction.
We therefore decline to address plaintiffs' additional assignments
of error.
Affirmed.
Judges CALABRIA and JACKSON concur.
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