ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Adams and Higginbotham, Circuit Judges, and Stapleton, District Judge.*fn*
Rosemarie Mondelli brought this action for damages under both the Federal Tort Claims Act*fn1 and the Constitution for genetic injuries caused by her father's exposure to radiation while he was on active duty in the United States Army. The district court denied the motion of the United States to dismiss the FTCA claim for lack of subject-matter jurisdiction, holding that the Act waived the sovereign immunity of the United States to this claim. The district court then determined, pursuant to 28 U.S.C. § 1292(b) (1976), that the question of the applicability of the FTCA claim presented "a controlling question of law as to which there is substantial ground for difference of opinion," and that an interlocutory appeal on that issue would "materially advance the ultimate termination of the litigation." Id. This Court then granted the request for interlocutory review.
Although we acknowledge the result to be a harsh one, we conclude that this portion of Mondelli's suit is barred by the doctrine of Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950). Accordingly, we will reverse the order of the district court and remand for proceeding consistent with this opinion, including disposition of Mondelli's constitutional claims.
Rosemarie Mondelli is a 22 year-old civilian born with retinal blastoma, a genetically transmitted cancer of the retina. In 1953 Rosemarie's father, Daniel Mondelli, participated in the test of a nuclear device while on active military duty. The complaint, whose allegations we accept as true for the purposes of this appeal, recites that Daniel Mondelli was ordered by his commanding officers to stand near the site of a nuclear explosion, and to march toward the blast area, without the benefit of protective clothing. Daniel Mondelli is alleged to have been exposed at that time to massive doses of radiation. Rosemarie's injuries are said to derive from this exposure. In August of 1962, Rosemarie lost the use of her left eye.
Although the FTCA waives the immunity of the United States for the torts of its agents,*fn2 the Supreme Court has held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146, 95 L. Ed. 152, 71 S. Ct. 153 (1950). The injury to Daniel Mondelli was concededly incurred incident to military service. Consequently, the doctrine of Feres would bar any tort claim against the United States by Daniel. See Jaffee v. United States, 663 F.2d 1226, 1231 (3d Cir.), cert. denied, 456 U.S. 972, 72 L. Ed. 2d 845, 102 S. Ct. 2234 (1979). Although the Feres doctrine has been the subject of searching examination in the academic community*fn3 and by the judiciary,*fn4 the Supreme Court has only recently reaffirmed its vitality. See Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d 586, 51 U.S.L.W. 4733, 4734-35 (1983); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-73, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977). The question presented, therefore, is whether Rosemarie Mondelli can maintain an action under the FTCA against the United States for injuries that derive from her father's exposure to radiation, when her father himself would be barred by Feres from raising a claim for his own injuries.
The Supreme Court in Feres articulated a number of rationales for insulating the United States from liability for the decision of its military officers. See Feres, supra, 340 U.S. at 141-45. The soundest of these grounds, and the only ground that is of relevance to this action, is the "peculiar and special relationship of the soldier to his superiors" in military service. United States v. Brown, 348 U.S. 110, 112, 99 L. Ed. 139, 75 S. Ct. 141 (1954).*fn5 As the Court reaffirmed only recently:
The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection . . . . Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the military establishment.
Chappell v. Wallace, supra, 462 U.S. at 300, 51 U.S.L.W. at 4734-35.
In many circumstances an action by a relative or dependent would raise the same issues, and require the same scrutiny of military decisions, as would an action by a soldier or sailor against the United States. The Supreme Court addressed a similar situation in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977). There it held ...