663 F.2d 1226 (3rd Cir. 1981), 79-1543, Jaffee v. United States

Docket Nº:79-1543.
Citation:663 F.2d 1226
Party Name:Stanley JAFFEE and Sharon Blynn Jaffee, Individually, Appellants, and Stanley Jaffee, on behalf of all others similarly situated, v. UNITED STATES of America, Robert T. Stevens, J. Lawton Collins, Joseph M. Swing, William C. Bullock, Robert A. Lovett, Henry D. Smyth, T. Keith Glennan, Eugene M. Zuckert, Marion W. Boyer, Kenneth D. Nichols, Kenneth
Case Date:November 02, 1981
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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663 F.2d 1226 (3rd Cir. 1981)

Stanley JAFFEE and Sharon Blynn Jaffee, Individually, Appellants,

and

Stanley Jaffee, on behalf of all others similarly situated,

v.

UNITED STATES of America, Robert T. Stevens, J. Lawton

Collins, Joseph M. Swing, William C. Bullock, Robert A.

Lovett, Henry D. Smyth, T. Keith Glennan, Eugene M. Zuckert,

Marion W. Boyer, Kenneth D. Nichols, Kenneth E. Fields, and

Certain Additional 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, Appellees.

No. 79-1543.

United States Court of Appeals, Third Circuit

November 2, 1981

Argued Nov. 15, 1979.

Reargued En Banc Nov. 17, 1980.

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Kreindler & Kreindler, New York City, Lanigan, O'Connell, Hirsh & Jacobs, Basking Ridge, N. J., for appellants; Stanley J. Levy, Steven J. Phillips (argued), Andrew R. Jacobs, Basking Ridge, N. J., of counsel.

Alice Daniel, Asst. Atty. Gen., Washington, D. C., Robert J. Del Tufo, U. S. Atty., Newark, N. J., Robert E. Kopp, John F. Cordes (argued), Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D. C., for appellees.

Argued Nov. 15, 1979.

Before GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges.

Reargued Nov. 17, 1980.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

When a soldier is injured as a result of his military service, the Veterans' Benefits Act, 38 U.S.C. 301 et seq., provides compensation for medical care and a limited income, regardless of whether the government is at fault. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and most recently in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), the Supreme Court has held that soldiers "injured in the course of activity incident to service" may not sue for additional

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compensation from the government under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (Tort Claims Act). These decisions were based primarily on the availability of assured compensation under the Veterans' Benefits Act and of the effect of law suits on military effectiveness. Our court and other courts have subsequently applied the doctrine of service immunity enunciated in Feres to protect the government from suits brought directly under the Constitution, even when the suits alleged intentional violations by governmental officials. 1 We have also interpreted the doctrine to immunize government officials sued in their individual capacity from liability to military personnel for negligent torts. 2

In this case we are asked to consider whether the principles which led to the development of military immunity counsel against the finding of a new cause of action directly under the Constitution against individual government defendants for intentional and unconstitutional torts occurring incident to military service. Because the prior decisions of the Supreme Court and this court have held that plaintiffs' remedy of veterans' compensation is exclusive and that a cause of action for additional compensation would undermine military effectiveness, we hold that plaintiffs do not have a cause of action directly under the Constitution against the defendants in these circumstances. We recognize that the prior Supreme Court cases on which we rely can be factually and doctrinally distinguished. But those cases are barometers which suggest how the Court would decide this case. Just as no barometer is a precise predictor of tomorrow's weather, no prior case, which can be factually or doctrinally distinguished, is a perfect predictor of how the Court will decide a related but different case. Nevertheless, we cannot avoid our obligation to forecast or predict how the Court will decide troubling cases involving new factual situations. In view of the hard policy choices already made by the Supreme Court in a series of related but different cases, it seems clear that a majority of the justices would hold that the plaintiffs have no cause of action.

We are also aware of what some might call a harsh result in our holding. We are not suggesting that individuals in plaintiffs' position should never receive any additional compensation from either the federal government or from private defendants which would supplement their present rights under the Veterans' Benefits Act. Any decision on whether claims of the plaintiffs should be converted to a cause of action, however, should be reserved for Congress to make in these special circumstances. It is that body which must weigh the competing priorities and policy judgments to determine whether a cause of action should be created. Therefore, we will affirm the district court's dismissal of those of plaintiffs' claims brought directly under the Constitution. 3 For similar reasons, we will also affirm the dismissal of plaintiffs' pendent claims founded directly on state law.

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I.

FACTS

According to the appellants' complaint, whose allegations we must accept as true for purposes of the appeal, Stanley Jaffee was serving on active duty in the United States Army in 1953. In the spring or summer of that year, he and other active soldiers at Camp Desert Rock in the State of Nevada were ordered by their commanding officers to stand in a field without benefit of any protection against radiation while a nuclear device was exploded a short distance away. Even though the defendants allegedly knew they were exposing Jaffee and the other soldiers to grave risk of injury and death, they "knowingly, deliberately and recklessly disregarded this knowledge by compelling Jaffee and the other soldiers to participate in the test." Complaint of Appellants at 5, reprinted in App. at 5a. As a result of this exposure to radiation, Jaffee developed inoperable cancer in November of 1977.

Jaffee and his wife brought suit against the United States government and various named and unnamed army and civilian Defense Department employees for violation of his constitutional rights as guaranteed by the first, fourth, fifth, eighth and ninth amendments, and of unspecified state tort laws. In Counts One, Two and Three Jaffee asked for compensatory and punitive damages of 13 million dollars from the United States government and the individual defendants. In Count IV, a class action brought in favor of all those soldiers present at the site, Jaffee prayed that the United States be directed to warn all members of the class about the medical risks facing them. He also prayed that the United States be required to provide or subsidize medical care for the members of the class who had been injured or would sustain injuries as a result of that exposure. The district court initially dismissed Count IV on the grounds that the United States was immune from liability under the doctrine of sovereign immunity, and that the United States, pursuant to Feres v. United States, had not waived that immunity under the Federal Tort Claims Act.

In an interlocutory appeal from the dismissal of Count IV, this court affirmed the district court's decision as to damages, but reversed the dismissal as to injunctive relief. Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979) (Jaffee I ). The federal government was held to be absolutely immune from damages because of the doctrine of sovereign immunity. Although we recognized that "the current climate of academic and judicial thought finds governmental immunity from suit in disfavor," we observed, on the basis of Feres, that the rationale for service immunity was different:

If claims for injuries sustained by members of the armed forces in the execution of military orders were subjected to the scrutiny of courts of justice, then the civil courts would be required to examine and pass upon the propriety of military decisions. The security and common defense of the country would quickly disintegrate under such meddling. "(A)ctions and essential military discipline would be impaired by subjecting the command to the public criticism and rebuke of any member of the armed forces who chose to bring a suit against the United States." Jefferson v. United States, 178 F.2d 518, 519, 520 (4th Cir. 1949), aff'd sub nom. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

Id. at 717. As to the claim for injunctive relief, however, the court held that there had been a waiver of sovereign immunity under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., because review was sought of an agency's inaction. Accordingly, the government was directed to warn the members of the class about any potential health hazards.

The district court subsequently dismissed the claims brought under Counts One, Two and Three on the ground that the rationale behind the doctrine of governmental immunity announced in Feres v. United States also applied to claims brought against individual defendants for intentional torts. Noting that every court which had reached

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this issue had held the defendants immune, it concluded, "To the extent that Feres is predicated upon the need for maintaining military discipline and avoiding judicial review of military orders, that consideration apparently applies with equal force to the negligence, intentional torts and unconstitutional actions of military officers." Jaffee v. United States, 468 F.Supp. 632, 634-35 (D.N.J.1979).

The plaintiffs have appealed the dismissal on the ground that the immunity announced in Feres does not apply to...

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