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Jaffee v. United States

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


February 20, 1980; As Amended February 25, 1980 and March 6, 1980.

STANLEY JAFFEE AND SHARON BLYNN JAFFEE, INDIVIDUALLY, APPELLANTS AND STANLEY JAFFEE, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
v.
UNITED STATES OF AMERICA, ROBERT T. STEVENS, J. LAWTON COLLINS, JOSEPH M. SWING, WILLIAM C. BULLOCK, ROBERT A. LOVETT, HENRY D. SMYTH, T. KEITH GLENNAN, EUGENE M. ZUCKERT, MARION W. BOYER, KENNETH D. NICHOLS, KENNETH E. FIELDS, AND CERTAIN ADDITIONAL PAST AND PRESENT OFFICERS AND OFFICIALS OF THE UNITED STATES DEPARTMENT OF DEFENSE, THE DEPARTMENT OF THE ARMY AND THE ATOMIC ENERGY COMMISSION AND THE UNITED STATES ARMY AND THE ATOMIC ENERGY COMMISSION AND THE UNITED STATES ARMY WHOSE NAMES WILL BE INSERTED WHEN ASCERTAINED, EACH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, APPELLEES (D.C. CIV. NO. 78-1014)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Author: Gibbons

Before: GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges

Opinion OF THE COURT

GIBBONS, Circuit Judge.

This appeal, which involves another aspect of the lawsuit which was before us in Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 99 S. Ct. 2406 (1979) (Jaffee I ), seeks reversal of an order dismissing a complaint against the individual defendants named therein. The former appeal considered an interlocutory order denying injunctive relief and was reviewable, although it did not dispose of all claims, pursuant to 28 U.S.C. § 1292(a) (1976). The order appealed from, in this instance, does not finally dispose of all claims against all parties. In entering the order dismissing the complaint as to individual defendants on the ground of lack of subject matter jurisdiction, the district court determined that there was no just reason for delay in the entry of a final judgment. See Fed. R. Civ. P. 54(b). Thus the judgment in favor of the individual defendants is final and reviewable under 28 U.S.C. § 1291 (1976). We conclude that the district court erred in entering judgment in favor of the individual defendants at the pleading stage, and we reverse.

I

The amended complaint on which the district court acted was filed by Stanley Jaffee and Sharon Blynn Jaffee, his wife. Jaffee seeks damages for personal injury which resulted from a malignancy allegedly caused by his exposure to radiation. His wife seeks damages for the losses of Jaffee's services, society, consortium and companionship. Both also seek punitive damages.

The Jaffees charge that in the spring of 1953, while Jaffee was serving on active duty with the United States Army at Camp Desert Rock, Nevada, he and other soldiers were ordered to stand in an open field near the site of an explosion of a nuclear bomb without any protection against radiation; that the explosion of that bomb exposed Jaffee and others to massive doeses of radiation; that the government officials responsible for ordering the explosion and the attendance of the soldiers at the site knew that they were exposing those soldiers to grave risk of injury and death from the resultant exposure to radiation; that these officials deliberately and recklessly disregarded this knowledge; that conducting this dangerous involuntary experiment upon the bodies of the servicemen served no legitimate purpose, military or otherwise, and was in excess of the authority of those responsible for it; that the conduct in question caused Jaffee's cancer; and that these actions violated his rights, and those of others so exposed, guaranteed by the First, Fourth, Fifth, Eighth and Ninth Amendments to the Constitution. The defendants named in the complaint are the United States, eleven named individual defendants, who at the time of Jaffee's service were officers or employees of the United States Army, the Department of Defense, or the Atomic Energy Commission, and certain unnamed additional officers alleged to be responsible for his exposure.

In Jaffee I we considered a separate count, Count IV of the complaint, which named only the United States as a defendant. See Jaffee v. United States, 592 F.2d 712, 714 (3d Cir. 1979). In Count IV, plaintiffs sought notification to and medical treatment for all soldiers who were exposed to radiation in the Camp Desert Rock exercise. We noted that the class action plaintiffs did not rely upon the Federal Tort Claims Act of 1946, 28 U.S.C. §§ 1346, 2671-80 (1976). Insofar as Count IV sought an order directing the government to provide medical services to class members, we held that it was properly dismissed because there was no waiver of federal sovereign immunity for such compensatory relief. 592 F.2d at 715. We held, however, that the 1976 amendments to section 702 of the Administrative Procedure Act,*fn1 waived federal sovereign immunity with respect to the claim for a mandatory injunction to compel notice to a class of potential cancer victims. 592 F.2d at 718-20. The counts to which we now turn were not before this court in Jaffee I, and also do not seek relief under the Federal Tort Claims Act.

The district court, in an opinion expressing grave reluctance to dismiss the complaint against the individual defendants, concluded that Feres v. United States, 340 U.S. 135 (1950), compelled that result.*fn2 The Court observed:

[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 ....

468 F. Supp. at 635. The immunity of military superiors to suit by members of the armed forces, in the view of the district court, was absolute. We conclude that there is no such absolute immunity.

At the outset, we note that the incidents giving rise to this case did not occur under battle conditions. Thus we have no occasion to consider whether military commanders may be absolutely immune from civil responsibility for acts ordered or performed in such a situation.*fn3 We emphasize, as we did in Jaffee I, that the Jaffees do not rely, either on their own behalf or as a class representative, upon the Federal Tort Claims Act. Thus we have no occasion to consider whether an allegation that governmental officials knew of the risk of ongoing damage from ingested radioactive particles and deliberately or negligently failed to warn Jaffee of the ongoing hazard after Jaffee left military service would state a claim under that statute.*fn4 There is an allegation that a pre-discharge condition due to exposure may have been aggravated by the post-discharge negligent failure to warn, although Count IV did not plead this theory of recovery under the Federal Tort Claims Act against the United States. See Jaffee v. United States, 592 F.2d at 719. Nor is any relief sought under the Federal Tort Claims Act against the United States for the alleged wrongdoing of Jaffee's superiors while he was in service. Thus the holding in Feres that the Federal Tort Claims Act will not permit recovery by a soldier against the United States for negligence of a fellow soldier occurring in the course of military service is not controlling. Indeed the complaint does not charge negligence. It charges an intentional tort of human experimentation conducted without authority or military justification, in willful violation of fundamental constitutional rights, and it seeks damages from the individual perpetrators of these wrongs. The district court found support for absolute immunity, even for willful tortious violations of constitutional rights, in Feres v. United States. We find no such support, and we conclude that at best the immunity of the individual defendants is qualified.

II

In October 1949 two interesting cases, which foreshadowed the legal problem presented by this appeal, were before the Court of Appeals for the Second Circuit. One was Feres v. United States, 177 F.2d 535, aff'd 340 U.S. 135 (1950). The other was Gregoire v. Biddle, 177 F.2d 579 (1949), cert. denied, 339 U.S. 949 (1950).

In the Feres case, the executrix of a deceased soldier sought recovery under the Federal Tort Claims Act against the United States for the death of her husband who had died by fire in military barracks. Negligence was alleged in quartering him in barracks known to be unsafe. Judge A. Hand refused to construe the three-year-old Federal Tort Claims Act to cover injuries suffered while on duty and distinguished the recently decided Brooks v. United States,*fn5 on the ground that Brooks involved an injury to an off-duty soldier. As to injuries suffered while on duty, Judge A. Hand found the military pension system to be an exclusive remedy. In the same month, Judge Murrah, writing for the Tenth Circuit in Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), rev'd 340 U.S. 1135 (1950), reached the opposite conclusion. The Supreme Court resolved the conflict in favor of the Second Circuit view.*fn6 However, what Justice Jackson's opinion in Feres stands for is a matter of some dispute and confusion.

In Gregoire, a Frenchman filed a complaint charging that two successive Attorneys-General, two successive Directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island had conspired to arrest him on the pretense that he was a German enemy alien and had kept him in custody from January 5, 1942 until September 18, 1946, when he was released on a writ of habeas corpus. Gregoire sought from the alleged conspirators money damages. Judge L. Hand, for the court, affirmed a Rule 12(b)(6) dismissal of the complaint on the ground that each defendant, as a high executive branch official, enjoyed absolute immunity even if he acted out of evil motives.*fn7 Judge L. Hand relied on Spalding v. Vilas, 161 U.S. 483 (1896), which recognized official immunity of the Postmaster General, a cabinet officer, against a suit arising out of an official communication. Gregoire was not reviewed by the Supreme Court.

In Feres, Judge A. Hand was construing a recently enacted statute authorizing the imposition of liability against the United States, and attempting to reconcile it with another statutory scheme for the payment of federal benefits. In Gregoire, Judge L. Hand was doing something quite different. He was considerably extending a judicially created immunity doctrine to civil actions against high executive officials. The two tasks are not coextensive, and the reasons that might favor narrow constructions of the federal government's consent to suit are not the same as those which may favor the broadening of judge-made rules conferring individual personal immunity. Moreover, as will be seen hereafter, the doctrinal development of the two issues since 1949 has diverged completely. The post-1949 statutory interpretation of the Federal Tort Claims Act is found in United States v. Brown, 348 U.S. 110 (1954), and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977). These cases essentially preserve the reading of the Act made in Brooks and Feres. The law of individual personal immunity of federal officers has undergone an entirely separate development in a series of cases beginning in 1959 with Barr v. Matteo, 360 U.S. 564, and Howard v. Lyons, 360 U.S. 593, and culminating with the Court's most recent discussion in Butz v. Economou, 438 U.S. 478 (1978). It is to the personal immunity holdings and not to the interpretations of the Federal Tort Claims Act that we must look for the solution to the present quandary.

In 1949, when Judge L. Hand wrote the Gregoire opinion, the notion of absolute official immunity for federal officers probably seemed a politically attractive idea. We had recently fought a war in which many things had been done which were thought necessary for victory, but with the benefit of hindsight probably would seem quite inconsistent with our concept of democracy and its traditions of personal integrity and individual freedoms.*fn8 It was perhaps a fortunate fortuity that the Gregoire issue did not reach the Supreme Court for some time. When it did, in Barr v. Matteo, 360 U.S. 564 (1959), and Howard v. Lyons, 360 U.S. 593 (1959), only four Justices, Harlan, Frankfurter, Clark and Whittaker, were ready to embrace absolute immunity. Justice Harlan's plurality opinion quoted extensively from Judge L. Hand's Gregoire opinion.*fn9 Chief Justice Warren, and Justices Douglas, Brennan and Stewart dissented. The critical fifth vote in Barr v. Matteo was that of Justice Black, who on the authority of Spalding v. Vilas, 161 U.S. 483 (1896), was willing to recognize an immunity from liability for libel with regard to communications related to matters committed by law to the defendants' control, and which were neither unauthorized nor plainly beyond the scope of his official business.*fn10 Thus Barr v. Matteo neither accepted nor definitively rejected Judge L. Hand's position that federal officials were immune from liability even for intentional torts. There is a majority opinion in Howard v. Lyons, because Justice Stewart, who dissented in Barr v. Matteo, joined a majority in sustaining a plea of absolute privilege as a defense to a defamation action brought against the Commander of the Boston Naval Shipyard for a report he sent to the Massachusetts Congressional delegation, at the direction of the Secretary of the Navy. Obviously, since Justice Stewart joined in it, Howard v. Lyons cannot be read as recognizing an immunity as absolute as that proposed in Gregoire. For purposes of the instant appeal, however, the significant point is that the defendant in Howard v. Lyons was a military officer, and he was treated for purposes of immunity the same as the civilian defendants in Barr v. Matteo. The plaintiffs in Howard v. Lyons were civilian employees of the Boston Naval Shipyard, and thus the case does not necessarily dispose of immunity from liability to members of the armed forces. But it does suggest that the military status of the defendant, at least, is not determinative.

With other wars and other times intervening, the Gregoire rule, which seemed so attractive to four Justices in 1959, began to lose its luster. The war against narcotics traffickers provided the Supreme Court with the next opportunity to speak on the rule. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Court held that a complaint seeking money damages from federal officers for injuries resulting from a violation of the fourth amendment stated a cause of action within the subject matter jurisdiction of the district court. The majority declined to consider the defense of immunity because although the district court had held the defendants were absolutely immune, the Court of Appeals for the Second Circuit had declined to pass upon that question. 403 U.S. at 397-98. Justice Harlan, who had written for a plurality in Barr v. Matteo twelve years earlier, now saw the wisdom of recognizing uniform federal standards of liability of federal officers for certain types of official wrongdoing. Citing his opinion in Barr v. Matteo, he observed:

But, while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy would be available for the most flagrant and patently unjustified sorts of police misconduct. Although litigants may not often choose to seek relief, it is important, in a civilized society, that the judicial branch of the Nation's government stand ready to afford a remedy in these circumstances.

403 U.S. at 411. On remand, it was obvious to the Second Circuit that the Supreme Court's tentative flirtation with its Gregoire rule of absolute immunity was at an end; charges of intentional misconduct could not be dismissed at the pleading stage on the basis of absolute immunity. *fn11

Personal immunity from liability for governmental officials engaging in intentional misconduct next came under pressure with respect to state officials in the context of public resistance to the Vietnam War. By the time Scheuer v. Rhodes, 416 U.S. 232 (1974), was decided it had become apparent to the Court that a Gregoire type absolute immunity could become a powerful instrument in the suppression of dissent, and was inconsistent with the prevailing consensus about the limits of executive action. Thus a unanimous Court held that even the highest military officer of a state, the governor himself, as Commander of the State National Guard, was not absolutely immune from a suit for damages under 42 U.S.C. § 1983 for military steps taken in the alleged suppression of student dissent about the Vietnam War. Qualified rather than absolute immunity became the general rule with respect to state non-judicial officials in Wood v. Strickland, 420 U.S. 308 (1975).*fn12 Once it was recognized that a Gregoire rule simply was too dangerous for general application to state officials, it became evident that this concern was equally valid with respect to federal officials. By the time Scheuer v. Rhodes and Wood v. Strickland had been decided, a major obstacle to holding federal officials accountable for damages caused by their intentional wrongdoing had been eliminated. That obstacle arose from the misplaced belief, in the years following Erie R.R. Co. v. Tompkins,*fn13 that state law was the only source for common law tort remedies. If that were so, there was the prospect that federal officials, responsible to a national rather than a local constituency, might nevertheless be subjected to various standards of liability for their conduct from state to state. Therefore, it was urged, their conduct should be immune. The Court in Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narc., 403 U.S. 388 (1971), perhaps influenced by Judge Friendly,*fn14 effectively disposed of that red herring by recognizing that federal judges were as capable of developing uniform federal common law standards as were their state court brothers. With the myth of non-uniformity removed from the discussion it was probably inevitable that the Court would, first in Doe v. McMillan, 412 U.S. 306 (1973), with respect to lower level federal officials, and then in Butz v. Economou, 438 U.S. 478 (1978), with respect to cabinet officers, finally and unequivocally reject the Gregoire rule of absolute immunity for intentional torts. And, as Justice White noted in Butz, although the Bivens opinion put aside the immunity question, the court, "could not have contemplated that immunity would be absolute." 438 U.S. at 505. Thus Gregoire was implicitly rejected. Justice White went on to announce political truths which should have been truisms, Even in 1949, in a democratic society based on principles of individual integrity and freedom:

The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees. The broad authority possessed by these officials enables them to direct their subordinates to undertake a wide range of projects -- including some which may infringe such important personal interests as liberty, property, and free speech. It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen's house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees.

Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law:

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee, 106 U.S. at 220.

See also Marburys v. Madison, 1 Cranch 137 (1803); Scheuer v. Rhodes, 416 U.S., at 239-240. In light of this principle, federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.

438 U.S. at 505-06.

If the charges in the complaint are true, the defendant officials responsible for the activity complained of clearly fit within the description of officials who have directed their subordinates to undertake infringements of liberty. These officials are charged with having directed a massive experiment in subjecting soldiers to radiation without legal authority. Certainly the generally applicable federal law of official immunity announced in Butz v. Economou would not provide absolute immunity for these defendants.

It remains to explore whether the fact that the alleged victims were members of the armed forces would significantly alter the federal law on immunity otherwise applicable. for that purpose, we return once again to our November 1949 starting place in the Second Circuit. In Feres, Judge A. Hand treated the Federal Tort Claims Act issue as a matter of statutory interpretation, and grounded his interpretation primarily on the fact that other federal statutes provided compensation to some extent without regard to fault.*fn15 Since Mrs. Feres had not sued the allegedly negligent officers individually, Judge A. Hand had no occasion to and did not discuss whether they could be sued.*fn16 This should be contrasted with Gregoire, where the complaint charged an intentional tort of false arrest to which by definition the Federal Tort Claims Act in 1949 did not apply.*fn17 Judge L. Hand was dealing with the entirely separate and nonstatutory issue of whether federal officials, sued individually, were absolutely immune from civil liability under either state or federal law as a consequence of a judicially created rule of federal common law. When Feres arrived in the Supreme Court, however, Justice Jackson's opinion included language which has since tended to becloud the distinction between the Feres and Gregoire issues. He noted that the Federal Tort Claims Act imposed liability on the "United States... in the same manner and to the same extent as a private individual under like circumstances...." Feres v. United States, 340 U.S. at 141 (quoting 28 U.S.C. § 2674). This was, of course, a reference to the application of state tort laws, and it precluded the approach, later adopted by the Court in Bivens, of a uniform federal rule applicable to plaintiffs and defendants regardless of the situs of the accident. Justice Jackson assumed that Congress would not desire the imposition of such potentially diverse legal standards in the distinctly federal relationship of the government and members of its armed forces. 340 U.S. at 143. That reason for construing the Federal Torts Claims Act as inapplicable to soldiers, whatever its weight, still applies, since the statute by its terms adopts state law standards of liability. But since the decision in Bivens, that reason is wholly inapplicable to suits against individual federal officers since the federal courts are free to fashion a uniform federal common law. Thus the problem of nonuniformity to which the opinion refers is not present in the case before us.

Justice Jackson, however, advanced another reason for placing the military outside the coverage of the Act. Noting the reference to state law, he observed:

One obvious shortcoming in these claims is that plaintiffs can point to no liability of a "private individual" even remotely analoagous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving.*fn10a Nor is there any liability "under like circumstances," for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command.

340 U.S. at 141 (emphasis added). The quoted passage is the source for the later confusion as to the existence of a separate doctrine of absolute immunity of military officers from suits by members of the armed forces. It is quite clear, however, that there never was such absolute immunity, and that Justice Jackson never intended to suggest that there was. Indeed, such a suggestion coming from a Justice recently returned from acting as prosecutor in the Nuremberg Trials, where he had seen ample evidence of the need to make the military responsive to basic principles of personal integrity, would have been quite surprising. Jackson stated only that there was no intra-servicemen state law of negligence. Moreover, in the same sentence, he makes a footnote reference to cases recognizing the liability of military officers for intentional torts. Dinsman v. Wilkes, 53 U.S. (12 How.) 414 (1851), to which Justice Jackson refers in Feres, is important in two respects. First, it is closely analogous, factually, to the dispute before us. Second, it was relied upon by Justice White in the opinion of the Court in Butz v. Economou, 438 U.S. at 492.*fn18

In 1836 Congress directed the Navy to undertake what was for that age an enormous and important scientific enterprise: a surveying and exploring expedition of the Pacific Ocean and the South Seas.*fn19 At the time of the expedition involved in Dinsman , the law provided that if the term of enlistment of a navy seaman expired while the vessel on which he served was in foreign service, the commanding officer was obliged to send him to the United States in some public or other vessel unless his detention was essential to the public interests.*fn20 Dinsman, a marine serving in the exploring expedition on board the vessel Vincinnes, contended in 1840 that his enlistment was over and that he should be put on board a returning vessel. Captain Wilkes, the commanding officer, declined; he contended that the enlistment had been lawfully extended, and when Dinsman refused to render service, Wilkes ordered him flogged. Dinsman continued to demand that he be returned, and was flogged and locked in the brig on more than one occassion. When the vessel called at Oahu, Hawaii for repairs, he was lodged in a local and allegedly dismal lock-up. Upon his return to the United States, Dinsman sued Wilkes in trespass vi et armis for assault and battery and false imprisonment, alleging, among other things, that he had been subjected to cruel and unusual punishment in violation of the eighth amendment, and that his detention and punishment on Wilkes' orders were without legal justification.*fn21 A jury in the Circuit Court in the District of Columbia returned a verdict in Dinsman's favor. The Supreme Court reversed on a writ of error because the trial court's charge was too favorable to the plaintiff. Wilkes v. Dinsman , 48 U.S. (7 How.) 93 (1849). Justice Woodbury noted, however, that while there was a presumption of regularity with respect to the imposition of military discipline, there was no absolute immunity from liability for intentional torts. He observed:

It is not to be lost sight of... that, while the chief agent of the government, in so important a trust, when conducting with skill, fidelity and energy, is to be protected under mere errors of judgment in the discharge of his duties, yet he is not to be shielded from responsibility if he acts out of his authority or jurisdiction, or inflicts private injury either from malice, cruelty, or any species of oppression, founded on considerations independent of public ends.

The humblest seaman or marine is to be sheltered under the aegis of the law from any real wrong, as well as the highest in office.

48 U.S. at 122. A new trial followed. This time the jury verdict favored Wilkes, but on writ of error, the Supreme Court again reversed and ordered a third trial because of errors in the admission and exclusion of evidence. Dinsman v. Wilkes , 53 U.S. (12 How.) 414 (1851). The reasons for reversal in each case are not particularly relevant for our purposes. What is relevant is that both cases make it abundantly clear that a member of the armed service is not absolutely immune from suit by another member for a willful tort,*fn22 although he may be entitled to a charge suggesting some degree of qualified immunity, which must be determined at trial.

Justice Jackson very carefully distinguished in Feres between the action on the case for negligence,*fn23 and an intentional tort.*fn24 His Feres opinion simply cannot be read, as the district court read it, to suggest absolute intra-military immunity from liability for intentional torts.*fn25 Moreover, no post-Feres opinion of the Supreme Court has been called to our attention suggesting the existence of any separate category of absolute intra-military immunity. And in Butz v. Economou , Justice White states explicitly and unequivocally that Wilkes v. Dinsman was not overruled by Spalding v. Vilas .*fn26 The immunity of military superiors is the same as, but no more than, the qualified immunity afforded to other members of the executive branch.

Thus if we were to recognize an intra-military immunity so broad as to deprive the district court of jurisdiction to hear a claim for relief for the commission of a willful tort we would be exploring new territory and inventing new doctrines. The United States Attorney, who appears for the defendants, urges that sound policy compels such invention.*fn27 It is contended that if military superiors could be sued for the intentional infliction of harm, the result would be that federal judges would exercise judicial review over their decisions. This is urged as an unthinkable proposition. It was not unthinkable to the Supreme Court in the Dinsman case. The opinions in that case disclose that Captain Wilkes was tried by a navy court martial for his conduct during the Exploring Expedition and found not guilty. He urged throughout that the favorable outcome of the court martial precluded the imposition of personal liability. The Court held to the contrary; the outcome was not even admissible into evidence. Dinsman v. Wilkes , 53 U.S. at 431. Even the existence of a separate system of military justice did not preclude accountability in a civil action in a court of law.

Faced with the decision in Wilkes v. Dinsman , Congress has had over one hundred thirty years to react to it legislatively in the exercise of its power "[to] make Rules for the Government and Regulation of the land and naval Forces." U.S. Const. art. I § 8, cl. 14. It has never chosen to confer absolute immunity. Instead, in keeping with a long historical tradition,*fn28 it has done no more than provide for removal of such suits to a federal forum. The presently applicable statute is 28 U.S.C. § 1442a (1976), which is derived from Section 9 of the Uniform Code of Military Justice.*fn29 Section 9 in turn was based on the Articles of War.*fn30 Certainly, Congress is in a better position than we are to judge whether protection other than removal to a federal forum is necessary for the government of the armed forces.*fn31

It is now settled, hopefully beyond dispute, that even the very decisions of that separate system of military justice are subject to some form of judicial review in the Article III Courts.*fn32 The issue is not availability of judicial review over actions by the military departments of the excutive branch, but the appropriate limits of such review. Those limits are found in the holdings in Butz v. Economou, Scheuer v. Rhodes, and Wood v. Strikland , which require that a charge be given which recognizes a qualified rather than an absolute immunity.

The district court erred, therefore, in holding that there is a federal rule of absolute intra-military immunity from suit which precludes the exercise of subject matter jurisdiction over Counts I, II and III of the amended complaint.

III

The defendants urge that even if we decline to read Feres as authority for an absolute intra-military immunity from liability for intentional torts we should nevertheless affirm the dismissal because the complaint fails to state a claim upon which relief can be granted.Conceding that "[plaintiffs] allegations in this case, if true, would undoubtedly show egregious government misconduct", they urge that at best, "their claim arises under traditional tort law, not the Constitution." Appellees' Brief at 26. We are unpersuaded.

In the first place, the defendants' suggestion that the claim arises under "traditional tort law" would refer them to state law. In the absence of complete diversity, that would move the arena of the controversy from the district court to the New Jersey Superior Court, but only temporarily. Federal military official defendants would undoubtedly exercise the right to remove to a federal tribunal. 28 U.S.C. §§ 1442, 1442a (1976). But even in a removed case, if the underlying cause of action arose under state law the federal tribunal would be obliged to apply the law of the forum, including its choice of law. That result would, from the point of view of the federal military establishment, be thoroughly undesirable, for it would prevent the recognition of uniform standards of liability and uniform defenses, regardless of where the events complained of occurred or where the suit was started.

On the other hand, the recognition that the claim arises under the Constitution and laws of the United States means that even if the suit is not removed from a state court the applicable law will be uniform. In the military context, in which residents of many states are brought together, and few have any choice as to location, the need for such uniformity is compelling. A stronger case for federal common law can hardly be imagined. We do not have to decide whether the actions alleged constitute a federal common law intentional tort*fn33 because the complaint does state a cause of action arising under the Constitution of the United States. See 28 U.S.C. § 1331(a) (1976).

The plaintiffs allege violations of their First, Fourth, Fifth, Eighth and Ninth Amendment rights. Last term, the Court held that the Fifth Amendment's Due Process Clause could give rise to a cause of action for damages, just as the Fourth Amendment was held to do in Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971). See Davis v. Passman , 47 U.S.L.W. 4643 (U.S. June 5, 1979).*fn34 This term the Court has been presented with the question of whether a Bivens -type remedy may be implied under the Eighth Amendment's prohibition of cruel and unusual punishment. See Carlson v. Green, 581 F.2d 669 (7th Cir. 1978), cert. granted , 99 S. Ct. 2880 (1979). The Seventh Circuit held that a Bivens -type action could be brought by the administratrix of the estate of a deceased federal prisoner because federal common law would allow the survival of such an action. The court also noted that the Federal Tort Claims Act covered negligence and was therefore inapplicable to an intentional tort, which was alleged in that case.

We hold that plaintiffs have stated a cause of action under the Fifth Amendment within the meaning of Davis v. Passman . This holding does not preclude the district court on remand from finding a cause of action for other constitutional violations.

We are unpersuaded by the defendants' contention that federal veterans' benefit legislation, 38 U.S.C. §§ 301-362 (1976), is preemptive. This contention is also somewhat inconsistent with the defendants' argument that the cause of action arises under traditional tort law. They urge that this court in Jaffe I , and the Supreme Court in Stencil Aero Engineering Corp. v. United States , 431 U.S. 666, 671, 673 (1977), held that military benefit programs are a fully adequate substitute for tort suits. Appellees' Brief at 28. Neither court so held. The cases in question dealt only with what Congress intended in the Federal Tort Claims Act, and the existence of a federal benefit program was thought to bear upon that question.*fn35 Nothing in the veterans benefit legislation suggests that it was intended by Congress to preempt private remedies against individual defendants, or to overrule Wilkes v. Dinsman , or to eliminate from federal law the deterrence which potential personal liability for intentional wrongdoing provides.*fn36

IV

The defendants also urge that the order appealed from should be dismissed because no defendant is subject to service of process by a New Jersey forum. Service was made pursuant to Fed. R. Civ. P. 4(e) and New Jersey Civil Practice Rule 4:4-4(e), which authorizes out of state service on nonresident defendants subject to due process of law.Thus defendants can succeed in their personal jurisdiction argument only if we conclude that the exercise of adjudicatory authority by a New Jersey court over this lawsuit would violate due process.*fn37

The defendants rely on Kulko v. California Superior Court , 436 U.S. 84 (1978), Shaffer v. Heitner , 433 U.S. 186 (1977) and International Shoe Co. v. Washington , 326 U.S. 310 (1945). That reliance appears to be misplaced. The complaint alleges that Jaffee resided in New Jersey, that he was drafted and transported involuntarily to Nevada, that there he was subjected to radiation which eventually produced harm in New Jersey. It is in New Jersey that he is being treated for cancer, in New Jersey that he suffers pain, in New Jersey that his wife is being deprived of his services and companionship. It would appear to be an extreme reading of the due process clause to require Jaffee to follow the defendants to the several states in which they now reside. The military circumstances of the case highlight the potential burdens for such plaintiffs and the need for uniform standards.

However, the district court did not fully develop its jurisdictional analysis and did not have the benefit of the recent Supreme Court decision in World-Wide Volkswagen Corp. v. Woodson , 48 U.S.L.W. 4079 (Jan. 22, 1980), which deals with due process limitations on state long-arm in personam jurisdiction. The federalism concerns which appear to have motivated the World-Wide Volkswagen Corp . majority, see 48 U.S.L.W. at 4082, probably do not apply to this case since it is unlikely that any state's law could have controlled the conduct complained of, or that any state would be interested in protecting defendants from liability for constitutional torts. But since the district court did not consider the matter in detail, we affirm its judgment without prejudice to reconsideration of the personal jurisdiction issue upon a proper motion filed by one or more of the individual defendants. If the district court concludes that there is no personal jurisdiction, that fact alone would not preclude its authority to transfer the case for venue reasons under 28 U.S.C. § 1406(a)(1976). See Goldlawr, Inc. v. Heiman , 369 U.S. 463 (1962).

V

Finally, the defendants urge that the dismissal of the complaint should be affirmed because under 28 U.S.C. § 1391(b) (1976) venue did not lie in New Jersey. They contend that for venue purposes the cause of action arose, if at all, only in Nevada. The district court held, we think properly, that the action arose in New Jersey, where the effects of the radiation first manifested themselves. It seems clear that if Jaffee had not developed cancer he would not now be seeking damages. While he was exposed to radiation in Nevada, his cause of action for radiation-induced cancer, which eventually developed while he resided in New Jersey, arose in Nevada only in some metaphysical sense. Clearly there was venue in New Jersey under 28 U.S.C. § 1391(e) for Count IV which we considered in Jaffe I , and arguably section 1391(e) provides for New Jersey venue for the other counts as well.*fn38 But in any event the defendants' venue argument is not a reason for affirming the dismissal of the complaint. At most we would have to remand so that the district court could consider a transfer to another district. 28 U.S.C. § 1406(a) (1976). See Brimer v. Levi , 555 F.2d 656 (8th Cir. 1977).

VI

Since we find no authority supporting the district court's holding that there is absolute immunity from intra-military suits for intentional torts, and we reject the defendants' alternative grounds for affirmance, the order dismissing Counts I, II and III of the complaint will be reversed.

HIGGINBOTHAM, Circuit Judge , Concurring.

I concur in the result. Judge Gibbons has written a scholarly and thoughtful opinion. We are disadvantaged, however, because the Supreme Court has not, since 1851 in Dinsman v. Wilkes , 53 U.S. (12 How.) 389 (1851), focused on the type of intentional tort in a military context that is involved in this case. The few casual references to Dinsman during the last century do not involve any assessment or analysis of the doctrine which this court today announces. Indeed, the citation of Dinsman in Feres v. United States , 240 U.S. 135, 141, n. 10 (1950), is ambiguous and at best dictum.*fn1a But for the Dinsman decision I would not join the majority and I would adopt the views stated quite persuasively by Judge Charles R. Richey in Thornwell v. United States , 471 F.Supp. 344, 347-349 (D.D.C. 1979).

A True Copy:

Teste:

Clerk of the United States Court of Appeals for the Third Circuit


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