Stanley v. US

• Citation: 574 F. Supp. 474
• Decision Date: 28 October 1983
• Docket Number: No. 78-8141-CIV-JAG.,78-8141-CIV-JAG.
• Parties: James B. STANLEY, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

574 F. Supp. 474

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 28, 1983.

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

Alan Mishael, John L. Euler, John Farley, III, J. Paul McGrath, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., James Mingle, Asst. Atty. Gen., Stephen H. Sachs, Atty. Gen., Frederick Savage, Asst. Atty. Gen., Baltimore, Md., for defendants.

ORDER

GONZALEZ, District Judge.

I

THIS CAUSE has come before the court for review sua sponte upon the issuance of the Supreme Court's opinion in Chappell v. Wallace, ___ U.S. ___, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and upon counsel for the plaintiff's letter to the court and the plaintiff's response to the previously filed motions to dismiss. In light of all of the foregoing, the court finds it necessary to clarify its prior opinion denying in part the defendants' motion to dismiss, Stanley v. United States, et al. (Stanley II), 549 F.Supp. 327 (S.D.Fla.1982), and the application of the Supreme Court's opinion in Chappell to that decision.

This case involves the secret administration of LSD to the plaintiff, a member of the United States Army, as part of an Army experiment.

In 1958, the plaintiff James Stanley was a Master Sergeant in the United States Army stationed in Fort Knox, Kentucky. Stanley 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, Stanley was asked to drink a clear liquid which, unknown to him, contained lysergic acid diethylamide (LSD).¹ Stanley alleges that he suffered severe reactions, including hallucinations, as a result of ingesting the LSD. When he returned to active duty at Fort Knox a month later, he maintains that he was in an altered behavioral and emotional state.²

Stanley continued to serve his country in the Army for eleven years, all the while completely unaware of the wrong knowingly perpetrated against him. In 1969, the Army discharged Mr. Stanley without informing him that he had ingested LSD years earlier. In December 1975, Stanley received a letter from the Department of the Army, Walter Reed Army Medical Center, soliciting his participation in a followup study of the subjects of the 1958 LSD experiments. Only then did Mr. Stanley learn that the Army had secretly administered LSD to him in 1958.

The original complaint in this case consisted of claims brought against the United States under the Federal Tort Claims Act (FTCA or the "Act"), Pub.L. No. 601, 60 Stat. 842 (1946) (codified as amended in scattered sections of 28 U.S.C.).³ The question of this court's jurisdiction over those claims was first raised on the defendants' motion for summary judgment. This court granted the motion for summary judgment 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." Id. at 146, 71 S.Ct. at 159.

Upon review of that ruling, the United States Court of Appeals for 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 (Stanley I), 639 F.2d 1146 (1981). Rather, the Fifth Circuit held, the proper disposition of the case was dismissal of the complaint for lack of subject matter jurisdiction. The court of appeals then remanded the case for the trial court's consideration of any amendment that the plaintiff might offer to cure the jurisdictional defect.

The plaintiff then amended his complaint⁴ and, in addition to the original allegations that the defendants gave him false information regarding the program in which he participated, he also alleged 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. The plaintiff seeks damages for this allegedly negligent conduct.

The defendant filed a motion to dismiss the Amended Complaint, arguing, inter alia, that the Fifth Circuit's opinion precluded the plaintiff from alleging any claim under the FTCA and that the plaintiff could not maintain any cause of action pursuant 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), because any such claim would also be barred by the FTCA, did not rise to constitutional magnitude, or would be precluded by the applicable statute of limitations.

Heeding the opinion of the Fifth Circuit in Stanley I, this court decided that the plaintiff could not plead a statutory (i.e. FTCA) or Bivens-type claim against the Government itself. But this court did hold that Mr. Stanley had a viable Bivens action against individual agents and officers of the United States who participated in the LSD experiment. Stanley II, 549 F.Supp. at 329-32.⁵ It is this last conclusion that the court finds necessary to reaffirm at this time.

In concluding that the plaintiff has a viable cause of action based on Bivens against the individual defendants, the court rejected the defendants' argument that any Bivens claim also was barred by the Feres doctrine. Id. at 330. The court cited the opinion of the United States Court of Appeals for the Ninth Circuit in Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981), in support of its theory that although a claim against the government under the FTCA may be barred by the Feres doctrine, a Bivens cause of action arising from the same set of facts, against individuals, is not necessarily barred by Feres. The Supreme Court now having reversed the Ninth Circuit in Chappell v. Wallace, ___ U.S. ___, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), it has been suggested that the plaintiff no longer has a viable cause of action based on Bivens. The task before this court is to decide if Chappell is controlling in the instant case, and whether the exceptions to a Bivens action preclude the plaintiff's claims against federal officers.

II

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), established that the victim of a constitutional violation by a federal officer has the right to recover damages against the official in federal court despite the absence of any statute conferring such a right; the doctrine of sovereign immunity bars a similar action against the United States itself. Stanley II, 549 F.Supp. at 330 (relying on 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)).⁶ The Bivens cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate "special factors counselling hesitation in the absence of affirmative action by Congress." Bivens, 403 U.S. at 396, 91 S.Ct. at 2004; see Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980); Garcia v. United States, 666 F.2d 960, 965 (5th Cir.1982). The second is when defendants prove that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, 403 U.S. at 397, 91 S.Ct. at 2005; see Carlson, 446 U.S. at 18, 100 S.Ct. at 1471; Garcia, 666 F.2d at 965.

The Bivens action arose out of the need to deter federal officers from violating a citizen's constitutional rights. The Supreme Court recognized that absent a constitutional remedy, complainants would have no other form of judicial relief from federal abuses. Creation of the Bivens action was consistent with the traditional view that "damages ... be recognized as the ordinary remedy for an invasion of personal interests in liberty." Bivens, 403 U.S. at 395, 91 S.Ct. at 2004.

In Chappell v. Wallace, the Supreme Court reviewed the propriety of a Bivens action arising out of an intramilitary dispute. The Court held that "the unique disciplinary structure of the military establishment and Congress' activity in the military field constitute `special factors' which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers." ___ U.S. ___, 103 S.Ct. at 2367.

This court strongly believes that the Chappell decision has no effect whatsoever on the plaintiff's ability to maintain a cause of action arising from the facts of the instant case. Although the court relied on Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981), to support the reasoning in its prior ruling that Mr. Stanley has a valid Bivens claim, the plaintiff's cause of action is in no way dependent upon that opinion, nor is his claim precluded by the Supreme Court's reversal of that decision. The court finds that the facts of this case are distinguishable from Chappell, and although the Supreme Court has now substantially limited the availability of a Bivens action in cases to which the Feres doctrine may be applicable, the Court has not totally barred Bivens actions by servicemen for torts committed against them during their term of service.

III

In Chappell v. Wallace, ___ U.S. ___, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), five enlisted men serving aboard a combat naval vessel brought...