483 U.S. 669 (1987), 86-393, United States v. Stanley

Docket Nº:No. 86-393
Citation:483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550, 55 U.S.L.W. 5101
Party Name:United States v. Stanley
Case Date:June 25, 1987
Court:United States Supreme Court

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483 U.S. 669 (1987)

107 S.Ct. 3054, 97 L.Ed.2d 550, 55 U.S.L.W. 5101

United States



No. 86-393

United States Supreme Court

June 25, 1987

Argued April 21, 1987




Respondent, a serviceman, volunteered for what was ostensibly a chemical warfare testing program, but in which he was secretly administered lysergic acid diethylamide (LSD) pursuant to an Army plan to test the effects of the drug on human subjects, whereby he suffered severe personality changes that led to his discharge and the dissolution of his marriage. Upon being informed by the Army that he had been given LSD, respondent filed a Federal Tort Claims Act (FTCA) suit. The District Court granted the Government summary judgment on the ground that the suit was [107 S.Ct. 3056] barred by the doctrine of Feres v. United States, 340 U.S. 135, which precludes governmental FTCA liability for injuries to servicemen resulting from activity "incident to service." Although agreeing with this holding, the Court of Appeals remanded the case upon concluding that respondent had at least a colorable constitutional claim under the doctrine of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, whereby a violation of constitutional rights can give rise to a damages action against the offending federal officials even in the absence of a statute authorizing such relief, unless there are "special factors counseling hesitation" or an "explicit congressional declaration" of another, exclusive remedy. Respondent then amended his complaint to add Bivens claims and attempted to resurrect his FTCA claim. Although dismissing the latter claim, the District Court refused to dismiss the Bivens claims, rejecting, inter alia, the Government's argument that the same considerations giving rise to the Feres doctrine should constitute "special factors" barring a Bivens action. Although it then vacated the portion of its order ruling on the Bivens claims, the court subsequently reaffirmed its Bivens decision as to the individual federal employee defendants, ruling that Chappell v. Wallace, 462 U.S. 296, despite its broadly stated holding that servicemen may not maintain damages actions against superior officers for alleged constitutional violations, only bars Bivens actions when the claimed wrongs involve direct orders in the performance of military duty and the discipline and order necessary thereto, factors that were not involved here. The court certified its order for interlocutory appeal under 28 U.S.C. § 1292(b), and the Court of Appeals affirmed the ruling on respondent's Bivens claims. Although the issue had not been addressed in the District Court's order,

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the Court of Appeals also ruled that recent precedent indicated that respondent might now have a viable FTCA claim, and therefore remanded.


1. The Court of Appeals' reinstatement of respondent's FTCA claim was in error, since § 1292(b) authorizes an appeal only from the order certified by the District Court, and not from any other orders that may have been entered in the case. The Court of Appeals' jurisdiction was therefore limited to the order refusing to dismiss respondent's Bivens claim. The court's action was particularly erroneous, since the United States was not even a party to the appeal, the District Court having previously dismissed respondent's Bivens claim against the Government. Pp. 676-678.

2. The Court of Appeals erred in ruling that respondent can proceed with his Bivens claims notwithstanding Chappell. Respondent's argument that there is no evidence that his injury was "incident to service" is unavailable to him, since the issue of service incidence was decided adversely to him by the Court of Appeals' original Feres ruling. The argument that the chain-of-command concerns allegedly at the heart of Chappell are not implicated here, since the defendants were not respondent's superior officers, is also unavailing, because the argument ignores Chappell's plain statement that its Bivens analysis was guided by Feres. Thus, a Bivens action should be disallowed whenever the serviceman's injury arises out of activity "incident to service." As in Chappell, the "special factors" that counsel against a Bivens action in these circumstances are the constitutional authorization for Congress, rather than the judiciary, to make rules governing the military, the unique disciplinary structure of the Military Establishment, Congress' establishment of a comprehensive internal system of military justice, and the greater degree of disruption respondent's chain-of-command rule would have on the military than does the "incident to service" test. It is irrelevant to a "special factors" analysis whether current laws afford [107 S.Ct. 3057] servicemen an "adequate" federal remedy for their injuries. Similarly irrelevant is Chappell's statement that the Court was not there holding that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service, since that statement referred to traditional forms of relief designed to halt or prevent constitutional violations, rather than to the award of money damages, a new kind of cause of action. Pp. 678-684.

786 F.2d 1490, reversed in part, vacated in part, and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined, and in Part I of which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JJ., joined.

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BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, and in Part III of which STEVENS, J., joined, post p. 686. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, post p. 708.

SCALIA, J., lead opinion

JUSTICE SCALIA delivered the opinion of the Court. *

In February, 1958, James B. Stanley, a master sergeant in the Army stationed at Fort Knox, Kentucky, volunteered to participate in a program ostensibly designed to test the effectiveness of protective clothing and equipment as defenses against chemical warfare. He was released from his then-current duties and went to the Army's Chemical Warfare Laboratories at the Aberdeen Proving Grounds in Maryland. Four times that month, Stanley was secretly administered doses of lysergic acid diethylamide (LSD), pursuant to an Army plan to study the effects of the drug on human subjects. According to his Second Amended Complaint (the allegations of which we accept for purposes of this decision), as a result of the LSD exposure, Stanley has suffered from hallucinations and periods of incoherence and memory loss, was impaired in his military performance, and would on occasion "awake from sleep at night and, without reason, violently beat his wife and children, later being unable to recall the entire incident." App. 5. He was discharged from the Army in 1969. One year later, his marriage dissolved because of the personality changes wrought by the LSD.

On December 10, 1975, the Army sent Stanley a letter soliciting his cooperation in a study of the long-term effects of LSD on "volunteers who participated" in the 1958 tests.

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This was the Government's first notification to Stanley that he had been given LSD during his time in Maryland. After an administrative claim for compensation was denied by the Army, Stanley filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging negligence in the administration, supervision, and subsequent monitoring of the drug testing program.

The District Court granted the Government's motion for summary judgment, finding that Stanley "was at all times on active duty and participating in a bona fide Army program during the time the alleged negligence occurred," No. 788141-Civ-CF, p. 2 (SD Fla., May 14, 1979), and that his FTCA suit was therefore barred by the doctrine of Feres v. United States, 340 U.S. 135 (1950), which determined 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." Id. at 146. The Court of Appeals for the Fifth Circuit agreed that the Feres doctrine barred Stanley's FTCA suit against the United States, but held that the District Court should have dismissed for lack of [107 S.Ct. 3058] subject matter jurisdiction, rather than disposing of the case on the merits. Stanley v. CIA, 639 F.2d 1146 (1981). The Government contended that a remand would be futile, because Feres would bar any claims that Stanley could raise either under the FTCA or directly under the Constitution against individual officers under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The court concluded, however, that Stanley "has at least a colorable constitutional claim based on Bivens," 639 F.2d at 1159, and remanded "for the consideration of the trial court of any amendment which the appellant may offer, seeking to cure the jurisdictional defect." Id. at 1159-1160.

Stanley then amended his complaint to add claims against unknown individual federal officers for violation of his constitutional rights. He also specifically alleged that the United States' failure to warn, monitor, or treat him after he

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was discharged constituted a separate tort which, because occurring subsequent to his discharge, was not "incident to service" within the Feres exception to the FTCA. See United States v. Brown, 348 U.S. 110 (1954). The District Court dismissed the FTCA claim because the alleged negligence was not "separate and distinct from any acts occurring before discharge, so as to give rise to a separate actionable tort not barred by the Feres doctrine." 549 F.Supp. 327, 329 (SD Fla.1982). It refused, however, to dismiss the Bivens claims. The court rejected, inter alia, the...

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