February 20, 1980; As Amended February 25, 1980 and March 6, 1980.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before: GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges
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.
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.
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. ...