Stanley v. Central Intelligence Agency

• Citation: 639 F.2d 1146
• Decision Date: 16 March 1981
• Docket Number: No. 79-2571,79-2571
• Parties: James B. STANLEY, Plaintiff-Appellant, v. CENTRAL INTELLIGENCE AGENCY; United States Department of Defense; U.S. Army, Defendants-Appellees. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1146

639 F.2d 1146

James B. STANLEY, Plaintiff-Appellant, v. CENTRAL INTELLIGENCE AGENCY; United States Department of

Defense; U.S. Army, Defendants-Appellees.

No. 79-2571.

United States Court of Appeals, Fifth Circuit.

Unit B

March 16, 1981.

Richard A. Kupfer, John F. Romano, West Palm Beach, Fla., for plaintiff-appellant.

John L. Euler, Trial Atty., Torts Branch, Civ. Div., U. S. Dept. of Justice, Washington, D. C., John J. Farley, III, Jacob V. Eskenazi, U. S. Atty., Alice Daniel, Asst. Atty. Gen., Miami, Fla., Leonard Schaitman, Atty., U. S. Dept. of Justice, Robert L. Brittigan, Major, Arnold I. Melnick, Colonel, Litigation Div., Dept. of Army, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, and TUTTLE and HILL, Circuit Judges.

TUTTLE, Circuit Judge:

Appellant James B. Stanley appeals from the district court's granting of summary judgment in favor of defendant. Appellant brought suit against the United States ¹ under the Federal Torts Claims Act, 28 U.S.C. § 1346(b), § 2671 et seq. to recover for injuries sustained allegedly as a result of defendant's negligent administration of a chemical warfare experimentation program in which Stanley was a participant. The district court found that Stanley's injuries arose out of activity incident to military service and held, therefore, that the claim was barred by the Feres doctrine.

Three issues are raised on this appeal. The first is whether the district court correctly found that Stanley's claims were for injuries incurred while engaging in activity incident to service and thus within the ambit of the Feres doctrine. The second issue is whether Stanley alleged a cause of action based on injuries sustained subsequent to his discharge. Finally, we must decide whether the district court properly ordered the entry of summary judgment rather than dismissing the case for lack of subject matter jurisdiction. We find that the trial court correctly applied Feres and held the United States immune to all of Stanley's claims under the Federal Tort Claims Act, since all of his injuries arose while he was engaged in activity incident to his military service. However, we reverse the granting of summary judgment, as we find that, once having found the Feres doctrine applicable, the district court should have dismissed the case for lack of subject matter jurisdiction.

I. FACTS

In February, 1958, appellant was a Master Sergeant in the United States Army, stationed with his wife and children at Fort Knox, Kentucky. Responding to a posted notice, appellant volunteered to participate in an Army program allegedly intended to aid the Army in developing and testing methods of defense against chemical warfare. ² He was assigned to the Army base at Edgewood Arsenal, Aberdeen, Maryland. There, during the course of clinical testing, he was given Lysergic Acid Diethylamide (commonly known as LSD) without his knowledge.

Appellant claims that the defendants were negligent in several respects in their administration of the program. ³ Primarily, appellant points to their alleged negligence in their administration of LSD to human subjects, their failure to obtain his informed consent to participate in the experiment, and their failure to debrief and monitor him after the test. Appellant claims that he suffered, as a result of this negligence, severe physical and mental injuries which caused him continual problems in the performance of his military duties and ultimately disrupted his marriage.

After completing the testing, appellant returned to his regular duties and continued his career in the Army for eleven years. He retired honorably as a Sergeant First Class in 1969. In 1975, when he received a letter from the Department of the Army, Walter Reed Medical Center, soliciting his participation in a follow-up study of volunteers who participated in the 1958 experiments at Edgewood Arsenal, appellant learned for the first time that he had been given LSD during the course of the 1958 experimentation.

Appellant filed claims with the United States Army and the Central Intelligence Agency ⁴ which were denied. ⁵ Thereafter, Stanley filed this suit in the district court for the Southern District of Florida.

II. APPLICABILITY OF FERES

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court considered the claims of three servicemen for recovery under the Federal Tort Claims Act for injuries sustained while they were on active duty. The Court was persuaded to dismiss the suits by consideration of factors such as the "peculiar and special relationship of the soldier to his superior, the effect of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty." United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954). ⁶ The Court 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." 340 U.S. at 146, 71 S.Ct. at 159.

Although the Feres doctrine has been questioned at times, ⁷ its viability was recently reaffirmed by the Supreme Court. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1976). Therefore, if Stanley was engaged in activities incident to his military service at the time his injuries arose, the district court was correct in holding the United States immune to Stanley's suit under the Federal Tort Claims Act.

Appellant argues that his participation in the chemical warfare testing program should not be considered "activity incident to service" because he was a volunteer and had been given a release from his regular duties in order to participate in the program. Additionally, appellant contends that the Government's activity here was illegal and thus should not be covered by the Feres doctrine.

Appellant has no sound authority for his assertion that the voluntary status of his participation in the program necessitates the conclusion that Feres should not control. Feres has been applied in cases involving a wide range of voluntary activity. See, e. g., Charland v. United States, 615 F.2d 508 (5th Cir. 1980) (serviceman killed while voluntarily participating in a Navy Seal Training exercise); Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979) (serviceman killed while voluntarily travelling as a military space available passenger); Mason v. United States, 568 F.2d 1135 (5th Cir. 1978) (per curiam) (motor vehicle accident on base while serviceman tending to personal business); Hass v. United States, 518 F.2d 1138 (4th Cir. 1975) (serviceman injured while riding horse rented from stable owned and operated by Marine Corps); Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (serviceman injured in swimming pool at an Air Force base); Schnurman v. United States, 490 F.Supp. 429 (E.D.Va.1980) (serviceman injured while participating voluntarily in Naval experiment designed to test the effectiveness of certain protective clothing when exposed to sulphur mustard gas); Schmid v. Rumsfield, 481 F.Supp. 19, 21 (N.D.Cal.1979) (serviceman assaulted as result of his voluntary activities as informant assisting in the recovery of stolen government property and prosecution of drug offenses); Loeh v. United States, No. 77-2065-B and 77-2023-B (S.D.Ill. April 23, 1979) (serviceman injured when administered LSD while participating voluntarily in Army drug experimentation program).

Additionally, courts have consistently applied Feres in suits to recover for the alleged medical malpractice of Army physicians and surgeons where the claimant's activity when injured was essentially voluntary in nature. See, e. g., Veillette v. United States, 615 F.2d 505 (9th Cir. 1980); Vallance v. United States, 574 F.2d 1282 (5th Cir.) (per curiam), cert. denied, 439 U.S. 965, 99 S.Ct. 453, 58 L.Ed.2d 423 (1978); Peluso v. United States, 474 F.2d 605 (3d Cir.) (per curiam), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973); Hall v. United States, 451 F.2d 353 (1st Cir. 1971); Howell v. United States, et al., 489 F.Supp. 147 (W.D.Tenn.1980). Feres has even been applied in cases involving elective surgery. Harten v. Coons, 502 F.2d 1363 (10th Cir.), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1974); Lowe v. United States, 440 F.2d 452 (5th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L.Ed.2d 64 (1971). Moreover, the servicemen in the three cases before the Supreme Court in Feres itself were all engaged in essentially voluntary activity at the time they were injured. Therefore, appellant's contention that the voluntary nature of his participation in the program should take him outside the bounds of Feres is without merit.

Likewise, the fact that appellant had been given a release from his regular duties does not preclude the possibility that appellant was injured while engaging in "activity incident to service." In a factual setting virtually identical to the one at hand, the Second Circuit found that the serviceman was on active duty at the time the experimentation took place despite the fact that the plaintiff was on a "Temporary Duty Assignment" when he was administered LSD. See Lerner v. United States, et al., No. 76 Civ. 4349 (S.D.N.Y. Jan. 16, 1978), aff'd mem, 578 F.2d 1368 (2d Cir., 1978). Similarly, in Mason v. United States, supra, this Court was not persuaded by the argument that Feres should not apply when a serviceman was injured during the time in which he had been given a release from his routine duties. The court reasoned that the serviceman was still subject to all military regulations and was available for emergency service or temporary duties and held...