The opinion of the court was delivered by: STERN
This case presents the question whether the doctrine of intra-military immunity as pronounced by the Supreme Court in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950) protects military officers who intentionally violate the constitutional rights of thousands of soldiers. With the gravest reluctance, recognizing that we are bound by the law as it now stands, the Court concludes that Feres exempts these defendants from liability.
The United States together with the named defendants, past and present officers of the Department of Army, Department of Defense and the Atomic Energy Commission, are sued directly under the Constitution.
It is alleged
that these defendants, intentionally and with full knowledge of the consequences of their actions, compelled thousands of soldiers to march into a nuclear explosion at Camp Desert Rock, Nevada, in 1953. As a result of his exposure to massive levels of radiation, the named plaintiff has developed cancer of the breast; the class members, it is predicted, face a similar fate. Monetary relief is sought on behalf of Mr. Jaffee and his wife; on behalf of the class, plaintiff seeks to compel the United States to warn the class members to seek immediate medical help.
The individual defendants move to dismiss the complaint on the strength of Feres. Because we believe we are bound by that decision, the motion must be granted.
In Feres v. United States, supra, the Supreme Court held that the United States is not liable under the Federal Tort Claims Act (FTCA) for injuries incurred by claimants while on active duty in the armed forces.
Several reasons were advanced in support of that result. First, since the FTCA makes the United States liable "in the same manner and to the same extent as a private individual under like circumstances", Congress could not have intended to impose liability for acts which have no counterpart in the private sector. Second, the uniquely "federal" nature of the relationship of soldier to the militia, into which the divergent tort laws of the states should not be injected. Third, the enactment by Congress of various uniform death and disability benefits for members of the armed forces and their families, evidencing a Congressional intent that the FTCA was inapplicable to injuries incident to military service.
The Feres doctrine was recently reaffirmed in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977), in which the Supreme Court held that a third party may not seek indemnification against the United States where the victim's injuries are incident to military service.
Plaintiffs ask this Court to distinguish Feres on two grounds. First, they argue that Feres applies only to claims against the United States made pursuant to the Federal Tort Claims Act, and not to claims made against individual officers of the United States. Second, they argue that Feres applies only to negligence and not to intentional acts which deprive others of their constitutional rights. We find that the present state of the law does not permit us to uphold this claim.
The Court of Appeals for the Third Circuit has held that Feres cannot be avoided by bringing suit against individuals rather than against the United States. In Bailey v. DeQuevedo, 375 F.2d 72 (3rd Cir.), Cert. denied, 389 U.S. 923, 88 S. Ct. 247, 19 L. Ed. 2d 274 (1967), plaintiff alleged that while on active duty and confined in an Army hospital, he was the victim of an Army surgeon's malpractice. The court held that Feres precluded the suit:
Although Feres . . . involved the construction of the Tort Claims Act, the Court's decision did not turn on the language of the Act itself but on "(t)he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results which might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty * * * " United States v. Brown, 348 U.S. 110, 112 (75 S. Ct. 141, 143, 99 L. Ed. 139) . . . (1954).
375 F.2d at 74. Other circuits have similarly held under Feres that a plaintiff injured while on active duty may not bring suit against individual employees of the United States. See, e.g., Hass v. United States, 518 F.2d 1138 (4th Cir. 1975); Tirrill v. McNamara, 451 F.2d 579 (9th Cir. 1971); United States v. Lee, 400 F.2d 558 (9th Cir. 1968), Cert. denied, 393 U.S. 1053, 89 S. Ct. 691, 21 L. Ed. 2d 695 (1969); Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965), Cert. denied, 383 U.S. 948, 86 S. Ct. 1205, 16 L. Ed. 2d 210 (1966); Misko v. United States, 453 F. Supp. 513 (D.D.C.1978), aff'd, 193 U.S.App.D.C. 217, 593 F.2d 1371; Pisciotta v. Ferrando, 428 F. Supp. 685 (S.D.N.Y.1977).
Every court that has considered plaintiff's second contention that Feres does not apply to intentional acts has rejected it. Recently, in Misko v. United States, supra, suit was brought under the Fifth Amendment against individual Army officers who allegedly confined the plaintiff, then on active duty in the National Guard, in Walter Reed Hospital, where they administered drugs against his will. The court held that Feres applied despite "the characterization of the malpractice claim in constitutional terms . . ." It noted that "any other result would mean that the Feres -based immunity of armed forces medical officers could be abrogated through an exercise in artful pleading." 453 F. Supp. at 515. See also, Lange v. Black, Civ. No. 78-518-E (S.D.Calif.1979); Citizens National Bank of Waukegan v. United States, No. 77 C 1974 (E.D.Ill.1978), Appeal pending, 594 F.2d 1154, No. 78-1550 (7th Cir.) (noting that "litigation over intentional torts would disrupt discipline just as much as negligence actions"); Dolliver v. United States, Civ. No. 77-Z-659 (D.Col.1977). Cf., Rotko v. Abrams, 338 F. Supp. 46 (D.Conn.1971), Aff'd per curiam, 455 F.2d 992 (2nd Cir. 1972) (Feres bars suit to recover for wanton injuries incurred in Viet Nam).
This unjust application of the Feres rule is perhaps best summed up in a colloquy between this Court and the government at oral argument:
The Court: As I read the law, it doesn't matter if they stood up there and said, "one, two, three, left, right, left," and marched them over a cliff . . . You'd be protected under Feres . . .?
Mr. Landman: Yes, your ...