Stanley v. United States, 78-8141-CIV-JAG.

• Decision Date: 09 November 1982
• Docket Number: No. 78-8141-CIV-JAG.,78-8141-CIV-JAG.
• Citation: 549 F. Supp. 327
• Parties: James B. STANLEY, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

549 F. Supp. 327

James B. STANLEY, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. 78-8141-CIV-JAG.

United States District Court, S.D. Florida, N.D.

October 15, 1982.

Opinion Vacated November 9, 1982.

John F. Romano, Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, Fla., for plaintiff.

Alan I. Mishael, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

Opinion Vacated November 9, 1982. See 552 F.Supp. 619.

ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon the Defendants' Motion to Dismiss or in the alternative Motion for Summary Judgment. The Court has considered the motion, and has heard extensive oral argument by counsel.

The case involves the secret administration of LSD to members of the U.S. Army as part of an Army experiment.

In 1958 plaintiff was a Master Sergeant in the United States Army stationed at Fort Knox, Kentucky. Plaintiff volunteered to participate in a program at the Chemical Warfare Laboratories at the Army Chemical Center, Aberdeen Proving Grounds, Edgewood Arsenal, Maryland. The purpose of the program allegedly was the development and testing of methods of defense against chemical warfare attack, including the testing of various gas masks and protective clothing.

During interviews with military and civilian personnel at Edgewood Arsenal, plaintiff was asked to drink a clear liquid which, unknown to him, contained lysergic acid diethylamide (LSD). Plaintiff unknowingly ingested this drug on four separate occasions. Plaintiff alleges that as a result he experienced severe reactions including hallucination. When he returned to active duty at Fort Knox a month later he maintains he was in an altered behavioral and emotional state.

Plaintiff was discharged from the Army in 1969 still unaware that he had ingested LSD years earlier. In December, 1975, he received a letter from the Department of the Army, Walter Reed Army Medical Center, soliciting his participation in a follow-up study of the subjects of the 1958 LSD experiments. It was then that he first became aware that he had secretly been given LSD in 1958 by Army personnel.

In his Amended Complaint, plaintiff alleges that the defendants deliberately gave him false information regarding the true nature of the program he volunteered to participate in. He further alleges that the Defendants were grossly negligent in failing to debrief and inform him of the 1958 episode upon his discharge, and in failing to continue to monitor his condition subsequent to his discharge. Plaintiff seeks damages for this allegedly negligent conduct.

The original complaint in this case was based on the same set of facts and consisted of claims brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq. The question of this court's jurisdiction over those claims was first raised on a motion for summary judgment. This court granted said motions on the basis of the doctrine announced in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine provides 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." 340 U.S. at 146, 71 S.Ct. at 159.

Upon review of that ruling, the Fifth Circuit concluded that this court's application of the Feres doctrine to preclude the claims brought in the original complaint was correct, but that this court improperly granted the motion for summary judgment. Stanley v. CIA, 639 F.2d 1146 (1981). Rather, the Fifth Circuit held that the proper disposition of the case was dismissal of the complaint for lack of subject matter jurisdiction. The Fifth Circuit then remanded the case for the trial court's consideration of any amendment that the plaintiff might offer to cure the jurisdictional defect. Id. at 1159-60.

The first question now presented upon the Defendant's Motion to Dismiss the Amended Complaint is whether Plaintiff's Amended Complaint states a cause of action under the Federal Tort Claims Act (FTCA) not barred by the Feres doctrine.

The defendant argues that the Fifth Circuit, in Stanley, precluded any question of whether Stanley could allege a cause of action under the FTCA.

Although the court finds that the Fifth Circuit left the door open to Stanley to amend his complaint to allege facts sufficient to support a post-discharge tort theory, (so his claims could fall outside the Feres doctrine pursuant to Thornwell v. United States) the Court finds that the plaintiff has failed to allege a distinct tort arising entirely post-discharge. See Thornwell v. United States, 471 F.Supp. 344 (D.D. C.1979). (Feres doctrine does not bar claims arising from conduct occurring entirely post-discharge).

The court reaches this conclusion by examining the reasoning of the Fifth Circuit and its reliance on Schnurman v. United States, 490 F.Supp. 429 (E.D.Va.1980). Stanley, 639 F.2d at 1155.

In Schnurman, the plaintiff suffered injuries as a result of his exposure to toxic mustard gases during a United States Navy experiment in which he participated while an apprentice seaman. The Schnurman court granted the defendant's renewed motion to dismiss at the end of the trial finding (a) that the plaintiff's injuries were not shown to be caused in any way by the Government's failure to treat plaintiff subsequent to discharge; or (b) by the Government's failure to warn him of the true nature of the gas to which he had been exposed. There was no testimony that his injuries were in any way aggravated or multiplied by the Government's alleged post-discharge negligence, or that follow-up treatment could have avoided any long-term effects of the exposure. Schnurman, 490 F.Supp. at 437. The Schnurman court found no evidence of any causal connection between the plaintiff's injury and the Government's alleged post-discharge negligence, and held that to allow recovery for the defendants' failure to monitor and treat injuries which resulted from an in-service tort (for which there is no recovery) would leave very little of Feres immunity. Id.

Plaintiff Stanley's Amended Complaint alleges that "Upon and subsequent to Plaintiff's discharge from the army in 1969 Defendants were grossly negligent in failing to debrief and inform Plaintiff of the LSD experiment and in failing to continue to monitor his condition..." and that he suffers continuing and permanent psychological injuries as a result of Defendant's negligent failure to debrief him and to continue to monitor his condition. The Plaintiff does not causally connect the injuries resulting from the experiment with any conduct occurring in its entirety after Plaintiff's discharge. Although Plaintiff omits allegations of predischarge negligence in his Amended Complaint the court is not persuaded that the acts constituting the alleged negligence were 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.

The court, therefore, concludes that plaintiff's claims under the FTCA must be dismissed for lack of subject matter jurisdiction based upon the Fifth Circuit's opinion in Stanley, including its reliance on Schnurman v. United States.

The Amended Complaint also alleges constitutional claims based on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). While the court recognizes that a Bivens cause of action is available against individual officers and agents of the Government, the doctrine of sovereign immunity bars an action against the United States itself.

The question of whether a Bivens cause of action can be brought against the Government was addressed by the United States Court of Appeals for the Third Circuit in Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). In Jaffee, plaintiff claimed damages for injuries suffered as a result of radiation exposure while serving in the United States Army when assigned to participate in nuclear testing. The court, after concluding that Jaffee's claim could not be brought under the FTCA because of the Feres doctrine, proceeded to consider whether a cause of action could be brought against the Government pursuant to Bivens.

Alternatively, Jaffee urges that this court can create an exception to the doctrine of sovereign immunity in order to grant relief for deliberate violation of constitutional rights. For authority supporting this argument, he turns to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and to Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In Bivens the Court recognized an implied cause of action for damages against federal officers who had violated the fourth amendment. Butz held that certain federal executive officials did not enjoy an absolute immunity for the damage suits permitted by Bivens. From these cases Jaffee tries to extract the principle that "the applicable common law doctrine of governmental immunity must yield to the paramount necessity of vindicating constitutional guarantees." But the suits in Bivens and Butz were against individual federal officers and not against the United States. Because Jaffee has sued the Government itself, Bivens and Butz do not afford him a traversable bridge across the moat of sovereign immunity.

Jaffee, 592 F.2d 712, 717 (footnotes omitted). This court finds, therefore, that the plaintiff's Bivens claims herein cannot be maintained against the Government itself.

The Defendants' Motion to Dismiss also attacks the Bivens-type claims brought against the Unknown Individual Federal Agents and Officers. Defendants first argue that fictitious individual defendants are not proper parties. This argument is without merit....