Stanley v. U.S., 84-5273

• Decision Date: 21 April 1986
• Docket Number: No. 84-5273,84-5273
• Citation: 786 F.2d 1490
• Parties: James B. STANLEY, Plaintiff-Appellee, v. UNITED STATES of America, and Joseph R. Bertino, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1490

786 F.2d 1490

54 USLW 2573

James B. STANLEY, Plaintiff-Appellee, v. UNITED STATES of America, and Joseph R. Bertino, et al Defendants-Appellants.

No. 84-5273.

United States Court of Appeals Eleventh Circuit.

April 21, 1986.

Mark W. Pennak, Dept. of Justice, Civ. Div., Barbara L. Herwig, Washington, D.C., for Federal appellants.

James Mingle, Asst. Atty. Gen., Baltimore, Md., for State appellants.

Richard A. Kupfer, Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, Fla., for plaintiff-appellee.

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

Before HATCHETT, Circuit Judge, HENDERSON ^*, Senior Circuit Judge, and ALLGOOD ^**, Senior District Judge:

HATCHETT, Circuit Judge:

We are again faced with the task of defining the limits of the doctrine first announced in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), to determine whether a former serviceman may maintain this lawsuit against federal officials, both civilian and military, for injuries suffered before or after his discharge from military service. In affirming, we permit the lawsuit.

Appellants, several military personnel and civilians, appeal the district court's finding that the complaint in this case states a cause of action under 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 that the action is not barred by Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). ¹

FACTS

In February, 1958, appellee, James B. Stanley was a master sergeant in the United States Army. Stanley volunteered to participate in a program purportedly designed to develop and test military equipment and protective clothing for use during chemical warfare. On four occasions during the program, unknown to him, Army officials and others gave Stanley lysergic acid diethylamide (LSD). After the 1958 LSD experiments, Stanley served in the Army for eleven years. The Army discharged him in 1969. The Army never informed Stanley that he had been administered LSD during the 1958 program. Stanley did not become aware of the LSD experiments until December, 1975, when the Department of the Army sent him a letter soliciting his participation in a follow-up study of persons who had been subjects of the 1958 experiments.

PROCEDURAL HISTORY

The original complaint in this case was filed on May 8, 1978, and consisted of claims against the United States under the Federal Tort Claims Act, 28 U.S.C.A. Secs. 1346(b), 2671-2680 (West 1984), (FTCA), for negligent administration of the LSD experiments. ² The district court granted the government's motion for summary judgment relying on the doctrine enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Under the Feres doctrine, "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." Feres, 340 U.S. at 146, 71 S.Ct. at 159.

On appeal, the former Fifth Circuit held that the district court's application of the Feres doctrine was correct insofar as it precluded Stanley's claim for injuries sustained while he was in military service, but that the district court had improperly granted the government's motion for summary judgment. According to the former Fifth Circuit, the proper disposition of the case was dismissal of the complaint for lack of subject matter jurisdiction. Stanley v. CIA, 639 F.2d 1146 (5th Cir. Unit B 1981) (Stanley I ). The case was remanded to the district court for consideration of any amendment that Stanley might offer to cure the jurisdictional defect by alleging damages for injuries which occurred after his discharge from the Army. ³

On July 21, 1981, Stanley amended his complaint to allege both a post-discharge claim for negligence under the FTCA and a constitutional tort claim under Bivens. On October 15, 1982, the district court dismissed Stanley's post-discharge FTCA and Upon motion by the government, on November 9, 1982, the district court entered final judgment in favor of the government and vacated and withdrew that portion of its October, 1982, order which addressed Stanley's Bivens claim against the individual defendants. The district court held that if Stanley did not identify and serve at least one individual defendant within ninety days of its order, it would dismiss Stanley's Bivens claim against the "unknown" individual defendants.

                Bivens claims against the United States Government.  The district court held, however, that Stanley had stated a Bivens action against the individual federal agents and officers who participated in the LSD experiments, for violation of his constitutional "rights of privacy and bodily integrity, and of the right of an individual to control his mind, his private thoughts and his intellectual process."    Stanley v. United States, 549 F.Supp. 327, 331 (S.D.Fla.1982) (Stanley II )
                

On February 3, 1983, Stanley filed a second amended complaint naming the appellants as individual defendants. The district court apparently considered Stanley's second amended complaint sufficient to automatically reinstate that portion of its October, 1982, order which it had vacated.

In rejecting the argument that any Bivens claim which Stanley might have had against the individual defendants was precluded by Feres, the district court cited Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981). The United States Supreme Court subsequently granted certiorari in Chappell and reversed the judgment of the court of appeals. Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In light of the Supreme Court's opinion in Chappell, on October 28, 1983, the district court rendered an opinion clarifying its disposition of Stanley's Bivens claim against the appellants and explaining that Chappell did not affect that disposition. Stanley v. United States, 574 F.Supp. 474 (S.D.Fla.1983), modified, 587 F.Supp. 1071 (S.D.Fla.1984).

The district court analyzed Chappell and concluded that Chappell did not establish a per se rule prohibiting military personnel from maintaining suits against their superiors to recover damages for alleged constitutional violations. Since it found the facts of this case distinguishable from those in Chappell, the district court considered whether either of the two exceptions to a Bivens action would preclude this action. Finding that neither the "special factors" exception, nor the adequate alternative remedy exception were applicable in this case, the district court concluded that Stanley stated a cause of action against the individual agents and officers of the United States who participated in the LSD experiments.

Pursuant to 28 U.S.C.A. Sec. 1292(b) (West Supp.1985), on January 31, 1984, the district court certified its October 28, 1983, order for interlocutory appeal. By order dated April 13, 1984, we granted the appellants' motion for interlocutory appeal.

CONTENTIONS OF THE PARTIES

The appellants contend that the district court erred in holding that Stanley's Bivens action is not barred by Chappell. They argue that Chappell enunciated an absolute, per se rule that military servicemen may not bring Bivens actions against their superiors because such suits would necessitate inquiry into the internal structure of the military and thereby undermine discipline.

Stanley contends that Chappell does not state an absolute rule and that the "special factors" present in Chappell are not present in this case so as to negate his Bivens action.

The appellants also urge us to address Stanley's statutory civil rights claims on the merits, even though the district court failed to address those claims. The appellants argue that the resolution of those issues now will promote both judicial economy and fairness because the same rationale which precludes Stanley's Bivens claim also precludes his statutory claims.

Stanley contends that we should not consider his statutory claims because those claims have yet to be addressed by the

district court. Stanley also points out that the statutory claims are beyond the scope of this court's order allowing this interlocutory appeal.

ISSUES

We must decide whether Stanley's Bivens action is precluded by the Supreme Court's recent pronouncements in Chappell and whether to dispose of Stanley's statutory civil rights claims on the merits.

DISCUSSION

I. Bivens Claim

Appellants contend that Stanley's action is barred by the absolute rule enunciated in Chappell that military personnel cannot sue their superiors for constitutional torts.

A. The Feres Doctrine

The Supreme Court has articulated several different formulations of the considerations which it deems controlling in Feres doctrine analysis. In Feres itself the Supreme Court identified four factors from which it concluded that Congress had not intended to subject the government to liability for the serviceman's injuries: (1) the lack of parallel private liability; (2) the fact that because state law governs an action under the FTCA, the serviceman's right to recover would depend upon the geographical location of the serviceman's duty station, a fortuitous circumstance over which the serviceman has no control; (3) the "distinctively federal character" of the relationship between the government and its military personnel; and (4) the absence of any provision under the FTCA for adjustment of a serviceman's recovery under the Act with any recovery which he might receive under military statutory compensation schemes. Feres, 340 U.S. at 141-46, 71 S.Ct. at 156-59.

Underlying these considerations was the belief that the relationship between a soldier and his superior officer is so unique and the intramilitary system of justice and administrative regulatory and remedial procedures so extensive that civilian courts should "hesitate long" before intervening to...