468 F.Supp. 632 (D.N.J. 1979), Civ. A. 78-1014, Jaffee v. United States

Docket Nº:Civ. A. 78-1014
Citation:468 F.Supp. 632
Party Name:Jaffee v. United States
Case Date:March 29, 1979
Court:United States District Courts, 3th Circuit, District of New Jersey

Page 632

468 F.Supp. 632 (D.N.J. 1979)

Stanley JAFFEE and Sharon Blinn Jaffee, Individually, and Stanley Jaffee, on behalf of all others similarly situated, Plaintiffs,


UNITED STATES of America and certain 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, whose names will be inserted when ascertained, each individually and in his official capacity, Defendants.

Civ. A. No. 78-1014.

United States District Court, D. New Jersey.

March 29, 1979

Kreindler & Kreindler, by Steven J. Phillips, New York City and Lanigan, O'Connell, Hirsch & Jacobs by Andrew R. Jacobs, Basking Ridge, N. J., for plaintiffs.

Robert J. Del Tufo, U. S. Atty. by Jerome Simandle, Asst. U. S. Atty., Newark, N. J., and Barbara Allen Babcock, Asst. Atty. Gen. (D. C.) by Mark S. Landman, Bruce E.

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Titus, Asst. Director, U. S. Dept. of Justice, Washington, D. C., Robert L. Brittigan (D. C.), Major, JAGC Litigation Div., Washington, D. C., for defendants.


STERN, District Judge.

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. 1 It is alleged 2 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. 3 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. 4 The Feres doctrine was recently reaffirmed

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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...

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