Matreale v. NJ Dept Military ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-22-2007
    Matreale v. NJ Dept Military
    Precedential or Non-Precedential: Precedential
    Docket No. 06-2051
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 06-2051
    MAJOR FRANK MATREALE,
    Appellant
    v.
    STATE OF NEW JERSEY
    DEPARTMENT OF MILITARY &
    VETERANS AFFAIRS;
    NATIONAL GUARD OF THE
    UNITED STATES
    On Appeal from the United States District Court
    for the District of New Jersey
    Civil No. 05-2032
    District Judge: The Honorable Joseph E. Irenas
    Argued February 13, 2007
    1
    Before: SMITH and FISHER, Circuit Judges,
    and DIAMOND, District Judge*
    (Filed: May 22, 2007)
    William A. Riback, Esq. (Argued)
    527 Cooper Street, Second Floor
    Camden, NJ 08102
    Counsel for Appellant
    Michele A. Daitz
    Office of Attorney General
    of New Jersey
    25 Market Street
    Richard J. Hughes Justice Complex
    Trenton, NJ 08625
    Dorothy J. Donnelly (Argued)
    Office of United States Attorney
    402 East State Street
    Trenton, NJ 08608
    Counsel for Appellees
    *
    The Honorable Gustave Diamond, Senior District Judge
    for the Western District of Pennsylvania, sitting by designation.
    2
    OPINION
    DIAMOND, District Judge.
    Major Frank Matreale, a commissioned officer in the New
    Jersey Army National Guard (NJANG) serving under orders
    issued pursuant to 
    32 U.S.C. § 502
    (f)(1)1, brought suit in the
    Superior Court of New Jersey against the New Jersey
    Department of Military and Veterans Affairs (NJDMVA), the
    overseer of the NJANG, to recover damages for retaliation under
    the New Jersey Law Against Discrimination (NJLAD). The
    1
    That section provides in pertinent part:
    Under regulations to be prescribed by the
    Secretary of the Army or Secretary of the Air
    Force . . . a member of the National Guard may-
    (A) without his consent, but with the pay and
    allowances provided by law; or
    (B) with his consent, either with or without pay
    and allowances;
    be ordered to perform training or other duty in
    addition to that prescribed under subsection (a)
    [required drills and field training.]
    3
    National Guard of the United States intervened and the case was
    removed from state court to the United States District Court for
    the District of New Jersey. Applying the doctrine of intra-
    military immunity first enunciated in Feres v. United States, 
    340 U.S. 135
    , 
    71 S.Ct. 153
    , 
    95 L.Ed. 152
     (1950), the District Court
    granted summary judgment in favor of the NJDMVA.
    The issue before us is whether the Feres doctrine of intra-
    military immunity bars a suit raising state law claims for
    damages for injuries arising from, or in the course of activity
    incident to, military service brought against a state national guard
    by a guardsman serving under Title 32. We hold that it does and
    will affirm the District Court’s grant of summary judgment.
    I.
    The District Court had jurisdiction pursuant to 
    28 U.S.C. §§ 1346
    (b) and 1331. We have appellate jurisdiction pursuant to
    
    28 U.S.C. § 1291
    . We exercise plenary review over the District
    Court's grant of summary judgment and employ the same
    analysis required of the District Court to determine whether there
    are any issues of material fact that would enable the nonmoving
    party to prevail. Kay Berry, Inc. v. Taylor Gifts, Inc., 
    421 F.3d 199
    , 203 (3d Cir. 2005). Summary judgment is appropriate when
    “there is no genuine issue as to any material fact and ... the
    moving party is entitled to a judgment as a matter of law.”
    Fed.R.Civ.P. 56(c). At the summary judgment stage, we view all
    evidence and consider all reasonable inferences in a light most
    4
    favorable to the non-moving party. Anderson v. Liberty Lobby,
    Inc., 
    477 U.S. 242
    , 255, 
    106 S.Ct. 2505
    , 2513, 
    91 L.Ed.2d 202
    (1986).
    II.
    In July of 1999, pursuant to an ongoing official
    investigation, Matreale provided to Lt. Col. Kent Milliken, his
    direct supervisor in the NJANG, a statement supporting a female
    guardsman’s accusation that she had been sexually harassed by
    an NJANG Sergeant Major. An inquiry ultimately concluded
    that the accuser in fact was sexually harassed.
    Matreale, contending that based on his role in the sexual
    harassment investigation, Milliken and other NJANG officers
    subsequently engaged in a course of retaliation against him,
    including, inter alia, negative performance evaluations and other
    disciplinary measures based on accusations that he had engaged
    in an improper superior-subordinate relationship with the female
    sexual harassment victim, sought redress in the suit referred to
    above.
    The District Court, in granting summary judgment in favor
    of the NJDMVA, found that Matreale, serving under Title 32,
    was a federal employee for immunity purposes and concluded
    that his state law claims for damages were barred under the Feres
    doctrine of intra-military immunity because the injuries for which
    he sought recovery arose out of, or were incurred in the course of
    5
    activity incident to, his military service. The District Court
    further held that Matreale’s requests for reinstatement, promotion
    and other injunctive or declaratory relief were non-justiciable.
    III.
    The doctrine of intra-military immunity upon which the
    District Court relied in dismissing Matreale’s damages claims
    had its genesis in Feres, 
    supra,
     a consolidation of three cases in
    each of which the claimant while on active duty in the United
    States Armed Forces sustained an injury due to the negligence of
    others in the armed forces. The Supreme Court held that the
    federal government was not liable under the Federal Tort Claims
    Act for injuries to servicemen arising out of, or in the course of
    activity incident to, military service. 
    340 U.S. at 146
    , 
    71 S.Ct. at 159
    . The Court noted that “without exception, the relationship
    of military personnel to the Government has been governed by
    federal law,” 
    id.,
     and that no federal law “has permitted a soldier
    to recover for negligence, against either his superior officers or
    the Government he is serving.” 
    340 U.S. at 141
    , 
    71 S.Ct. at 157
    .
    Although only alluded to in Feres, the Supreme Court
    subsequently expounded upon the underlying rationale for the
    intra-military immunity doctrine and described it as being
    predicated upon:
    [t]he peculiar and special relationship of the
    soldier to his superiors, the effects of the
    6
    maintenance of such suits on discipline, and the
    extreme results that might obtain if suits . . . 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).
    In Chappell v. Wallace, 
    462 U.S. 296
    , 
    103 S.Ct. 2362
    , 
    76 L.Ed.2d 586
     (1983), the Supreme Court expanded the reach of
    the Feres doctrine to bar a Bivens2 claim for damages brought by
    federal servicemen against their federal superior officers alleging
    constitutional violations resulting from alleged racial
    discrimination in assignments, evaluations and punishment. As
    in Feres, the Court relied primarily upon “the peculiar and
    special relationship” between a soldier and his superiors, and the
    potential effects of permitting such lawsuits on military
    discipline, in holding that the doctrine of intra-military immunity
    barred Bivens damages claims. Chappell, 
    462 U.S. at 304
    , 
    103 S.Ct. at 2367
    .
    Without exception, in other post-Feres cases, the Court
    2
    In 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), the Supreme Court authorized suits against federal
    officials whose actions violate an individual’s constitutional
    rights.
    7
    has adhered to the compelling necessity of maintaining military
    discipline as the basis for expanding the intra-military immunity
    doctrine to encompass a variety of claims, against an assortment
    of defendants, brought by a range of servicemen, for injuries
    arising out of, or in the course of activity incident to, military
    service. See United States v. Stanley, 
    483 U.S. 669
    , 
    107 S.Ct. 3054
    , 
    97 L.Ed.2d 550
     (1987) (Feres “incident to service” test
    equally applicable in Bivens cases brought by serviceman against
    military officers and civilians); United States v. Johnson, 
    481 U.S. 681
    , 
    107 S.Ct. 2063
    , 
    95 L.Ed.2d 648
     (1987) (barring FTCA
    claim against civilian defendant by widow of serviceman killed
    in rescue mission); United States v. Shearer, 
    473 U.S. 52
    , 
    105 S.Ct. 3039
    , 
    87 L.Ed.2d 38
     (1985) (barring FTCA claim against
    United States arising from murder of off-duty serviceman by
    another serviceman); Stencel Aero Eng’g Corp. v. United States,
    
    431 U.S. 666
    , 
    97 S.Ct. 2054
    , 
    52 L.Ed.2d 665
     (1977) (barring
    claim for indemnification against United States brought by a
    government contractor in a negligence suit filed by a National
    Guardsman on a training mission).
    Following the Supreme Court’s rationale in those cases,
    in defining the scope of the Feres doctrine we too have
    recognized the adverse impact on military discipline inherent in
    the judicial review of military orders and have sought to avoid it.
    In Jaffee v. United States, 
    663 F.2d 1226
    , 1239 (3d Cir. 1981),
    we held that the Feres doctrine extends to bar a federal
    serviceman’s state law intentional tort claim against his Army
    supervisors. We recognized two potential consequences of
    8
    permitting suits for service injuries: their effect on the
    willingness of military personnel to follow the directions of their
    superiors and the concomitant chilling effect that the concern of
    being called into civilian court may have on the discharge of the
    decision-making duties of military authorities. 
    Id. at 1232
    . Of
    particular significance to the matter presently before us, we noted
    in Jaffee that “[s]uits founded on state law have the same
    potential for undermining military discipline as federal tort
    claims.” 
    Id. at 1239
    .
    Later, in Jorden v. National Guard Bureau, 
    799 F.2d 99
    ,
    104-05 (3d Cir. 1986), we determined that the reasoning in
    Chappell, 
    supra,
     barring Bivens damages claims against federal
    military officers, was equally applicable to a § 1983 action
    brought by a full-time civilian technician in a state national guard
    against state military officers in light of the Supreme Court’s
    decision in Butz v. Economou, 
    438 U.S. 478
    , 
    98 S.Ct. 2894
    , 
    57 L.Ed.2d 895
     (1978), which unequivocally held that Bivens claims
    and § 1983 claims are to be treated as identical for immunity
    purposes. We observed that in Chappell the Supreme Court
    “was laying down a general rule barring damages actions by
    military personnel against superior officers for constitutional
    violations, rather than authorizing a fact-specific inquiry.”
    Jorden, 
    799 F.2d at 108
    .
    IV.
    In this case, there is no dispute that the alleged harm
    9
    suffered by Matreale arose from, or in the course of activity
    incident to, his military service in the NJANG, since his damages
    allegedly resulted from the conduct of his superior officers in
    evaluating and disciplining him. A straightforward application
    of the Feres doctrine as it has evolved in the Supreme Court and
    this Circuit, therefore, would appear to dictate the conclusion
    reached by the District Court that Matreale’s damages claims are
    barred by intra-military immunity.
    Pressed by the overwhelming weight of the foregoing
    federal precedent, however, Matreale seeks to avoid such a
    straightforward application of the “federally created” Feres
    doctrine by attempting to convert this case into an exclusive state
    law matter.      In that vein, Matreale argues that, as a state
    guardsman, serving under Title 32, he is a state employee suing
    other state employees, also serving under Title 32, under state
    law. Accordingly, his argument goes, the issue of immunity is
    one which should be addressed and resolved solely under state
    law; specifically, the question should be whether the NJDMVA
    is entitled to immunity under the NJLAD, rather than one
    addressed to federal law in the form of the Feres doctrine.
    Matreale’s entire position rests on his attempt to
    differentiate between state guardsmen serving pursuant to Title
    10, on the one hand, and those serving pursuant to Title 32, on
    the other. Matreale contends that the Feres doctrine applies only
    to state guardsmen who have been mobilized to active duty under
    Title 10, but does not apply to guardsmen serving under Title 32,
    10
    except to the extent those guardsman are engaged in drills or
    field training under 
    32 U.S.C. § 502
    (a)3 at the time of the alleged
    conduct, because guardsmen serving under Title 32 are state, as
    opposed to federal, employees.
    Neither party in this case questions the fact that Matreale
    was serving under orders issued pursuant to 
    32 U.S.C. § 502
    (f)(1), and had not been mobilized under Title 10, at the time
    of the conduct in question4. Likewise, there is no dispute that all
    3
    Title 
    32 U.S.C. § 502
    (a) provides in pertinent part:
    Under regulations to be prescribed by the
    Secretary of the Army or the Secretary of the Air
    Force . . . each company, battery, squadron, and
    detachment of the National Guard, unless excused
    by the Secretary, shall
    (1) assemble for drill and
    instruction, including target
    practice, at least 48 times each
    year; and,
    (2) participate in training at
    encampments, maneuvers, outdoor
    target practice, or other exercises,
    at least 15 days each year.
    4
    Matreale’s unit subsequently was mobilized to active
    duty in Iraq pursuant to Title 10 on August 19, 2004. However,
    11
    of the superior officers implicated in the alleged retaliatory
    behavior against Matreale also were serving under orders issued
    pursuant to 
    32 U.S.C. § 502
    (f). Finally, there is no dispute that
    at the time of the conduct in question, neither Matreale nor his
    superiors were engaged in drills or field training under 
    32 U.S.C. § 502
    (a). Under these circumstances, Matreale contends that at
    all material times all relevant parties in this case were serving in
    a state, not a federal, capacity and, therefore, were state
    employees subject only to state law on the question of immunity.
    Matreale’s argument is without merit for several reasons.
    First, the essential premise of his entire case, i.e., that, for
    immunity purposes, he was solely a state employee, is invalid.
    Rather, the District Court clearly was correct in holding that
    Matreale’s Title 32 status at the time of the alleged incidents
    rendered him a federal employee for Feres purposes.
    First, at the time of the conduct in question, Matreale was
    serving under orders issued pursuant to federal law, specifically,
    
    32 U.S.C. § 502
    (f). His appointment as an officer was pursuant
    to the sixteenth clause of section 8, article I of the Constitution,
    and he began full time service with the national guard in
    December of 1992 on orders issued pursuant to 
    32 U.S.C. § 502
    (f). As the District Court correctly noted, these orders
    rendered Matreale, at all relevant times, a full time guardsman in
    at the time of the conduct at issue in this case, Matreale was
    serving under Title 32.
    12
    the National Guard of the United States serving in accordance
    with the Active Guard Reserve Program.
    In addition, this Court previously has applied the Feres
    doctrine to a guardsman serving under Title 32. In Loughney v.
    United States, 
    839 F.2d 186
     (3d Cir. 1988), we held that a
    national guardsman on active guard reserve duty status, as
    Matreale was in this case, was barred by the Feres doctrine from
    suing the government under the Federal Tort Claims Act. We
    emphasized there that “[i]t is simply the status of the claimant
    that is dispositive.” 
    Id. at 188
    . Because Loughney was a
    “serviceman” and his injury arose out of or in the course of
    activity incident to his military service, we concluded that his
    FTCA claim was barred by the doctrine of intra-military
    immunity. 
    Id.
    Like Loughney, Matreale was a Title 32 serviceman in
    active guard reserve duty status and his alleged damages arose
    out of, or in the course of activity incident to, his military service.
    The fact that Loughney sued under the FTCA whereas Matreale
    is suing only under state law is of no consequence. As we
    recognized in Jaffee, 
    supra,
     the Feres doctrine applies to suits
    founded on state law as well as to those founded on federal law
    because state law based suits have the same potential for
    undermining military discipline as do federal claims. Jaffee, 
    663 F.2d at 1239
    ; see also Coffman v. State of Michigan, 
    120 F.3d 57
    (6th Cir. 1997) (statutory remedies under Michigan
    Handicapper’s Civil Rights Act are not available to uniformed
    13
    members of the armed forces including National Guard
    members).
    Matreale’s arguments in support of his position that his
    status as a Title 32 guardsman rendered him a state rather than a
    federal employee likewise are unpersuasive. First, his reliance
    on Perpich v. Department of Defense, 
    496 U.S. 334
    , 
    110 S.Ct. 2418
    , 
    110 L.Ed.2d 312
     (1990) is misplaced. There, the Supreme
    Court held that Congress may authorize that members of the
    National Guard be assigned to active federal duty for training
    outside the United States without either the consent of the state
    governor or the existence of a national emergency. The Court,
    in addressing the unique “dual enlistment” status of state
    National Guard members, observed that “[s]ince 1933 all persons
    who have enlisted in a State National Guard unit have
    simultaneously enlisted in the National Guard of the United
    States.” 
    496 U.S. at 345
    . The Court held that under this dual
    enlistment system, “a member of the Guard who is ordered to
    active duty in the federal service is thereby relieved of his or her
    status in the State Guard for the entire period of federal service.”
    
    Id. at 346
    .
    Matreale misconstrues the Perpich holding as implying
    that unless a state guardsman has been called to active duty under
    Title 10 and thereby loses his status in the state guard, he at all
    other times remains solely in state, not federal, status. But the
    plain holding of the Court is to the contrary. Under the holding
    in Perpich, Matreale attained dual status as a member of both the
    14
    National Guard of the United States and the NJANG when he
    accepted his commission as an officer. 
    32 U.S.C. §§ 305
     and
    307; N.J.S.A. 38A:7-4. And while under Perpich a state
    guardsman loses his state status when he is called to active duty
    under Title 10, there is nothing in Perpich from which one
    reasonably may infer, as Matreale argues, that a Title 32
    guardsman “loses”, or does not have, federal status unless he is
    mobilized under Title 10 or engaged in drills or field training
    under 
    32 U.S.C. § 502
    (a). On the contrary, the Supreme Court
    in Perpich stressed that its holding that a state guardsman is
    stripped of his state status when he is called to active duty under
    Title 10 “merely recognizes the supremacy of federal power in
    the area of military affairs.” Perpich, 
    496 U.S. at 351
    , 
    110 S.Ct. at 2428
    . Our conclusion that a state guardsman serving under
    orders issued pursuant to Title 32, whether serving under §
    502(a) or § 502(f), has and retains his federal status, along with
    his state status, even when he has not been called to active duty
    under Title 10, likewise recognizes federal supremacy over
    military affairs.
    Matreale also cites to Phillips v. State Department of
    Defense, 
    98 N.J. 235
    , 
    486 A.2d 318
     (N.J. 1985). This case too
    is of little value to his position. In Phillips, the New Jersey
    Supreme Court held that a national guardsman injured while
    training remained an employee of the state and was not an
    employee of the federal government, which would have
    precluded application of the New Jersey state military
    compensation law. While mentioning the Feres doctrine in
    15
    passing, the court did not rely on the Feres rationale because “the
    statutory interplay between the New Jersey military
    compensation law and the New Jersey Tort Claims Act was not
    present in Feres.” 98 N.J. at 321, 486 at 241. In short, Phillips
    did not authorize a tort suit against the State of New Jersey or
    any other person or entity by an injured guard member, whether
    in federal or state status, but merely provided a remedy under the
    state military compensation law for personal injuries suffered by
    a guard member in state status.
    For the foregoing reasons, we agree with the District
    Court’s determination that Matreale and his supervisors, all of
    whom were serving under orders issued pursuant to 
    32 U.S.C. § 502
    (f) at the time of the conduct in question, were serving in a
    federal capacity and therefore were federal “employees” for
    purposes of the intra-military immunity doctrine.
    Our conclusion that Matreale and his supervisors were
    federal (or at best dual federal-state) employees, at the time of the
    conduct in question is dispositive of his remaining argument that
    state law, rather than the Feres doctrine, should determine the
    question of immunity.5 We need look no further than Feres for
    5
    Matreale argues that the NJLAD would not provide
    immunity for guardsman but suggests in any event that it is for
    the New Jersey Supreme Court, not this Court, to determine the
    immunity question under state law. Matreale therefore
    alternatively seeks certification of this question to the New
    16
    an unequivocal refutation of this argument. There, the Supreme
    Court stressed the point that the “relationship between the
    Government and members of its armed forces is ‘distinctly
    federal in character’” and that “without exception, the
    relationship of military personnel to the Government has been
    governed by federal law.” Feres, 
    340 U.S. at 143-44, 146
    ; 
    71 S.Ct. 158
    , 159 (citation omitted). The court explained:
    To whatever extent state law may apply to govern
    the relations between soldiers or others in the
    armed forces and persons outside them or
    nonfederal government agencies, the scope, nature,
    legal incidents and consequence of the relation
    between persons in service and the Government
    are fundamentally derived from federal sources
    and governed by federal authority.
    
    340 U.S. at 143-44
    , 
    71 S.Ct. at 158
     (quoting United States v.
    Standard Oil Co., 
    332 U.S. 301
    , 305-06, 
    67 S.Ct. 1604
    , 1607, 
    91 L.Ed. 2067
     (1947)).
    As stated above, at the time of the conduct giving rise to
    his suit, Matreale and his supervisors were members of the
    Jersey Supreme Court. In light of our holding that Matreale is
    a federal employee for immunity purposes and that this case is
    governed by federal law, the issue of certification of the
    question to state court is moot.
    17
    military serving in a federal capacity under orders issued
    pursuant to Title 32. As a result, federal authority as set forth in
    Feres and its progeny, rather than state law, governs the issue of
    immunity. And because the alleged harm suffered by Matreale
    arose from, or in the course of activity incident to, his military
    service in the NJANG, his claims for damages are barred under
    the intra-military immunity doctrine.
    Our holding in this case is consistent with, and a logical
    corollary to, our prior precedent in the area of intra-military
    immunity. We previously have applied the Feres doctrine in
    Loughney to a Title 32 guardsman suing under federal law. We
    also have applied the doctrine in Jaffee to a federal active duty
    serviceman suing under state law. It is both reasonable and
    appropriate to apply the doctrine to Title 32 guardsman suing
    under state law and thereby to make immunity co-extensive for
    all dual-status national guardsmen. A concern for the disruption
    of the unique relationship of military personnel to their superiors
    and to other military personnel that likely would result if one
    could hale another into court as a result of activity incident to
    military service is equally as compelling in the context of
    lawsuits brought by Title 32 guardsmen, whether serving under
    § 502(a) or § 502(f), as it is in the context of lawsuits brought by
    Title 10 guardsmen.
    Accordingly, for the foregoing reasons, the District
    Court’s finding that Matreale’s damage claims founded on state
    law are barred by the Feres doctrine of intra-military immunity
    18
    doctrine will be affirmed.
    V.
    The District Court also held that Matreale’s requests for
    promotion and other injunctive relief arising from his negative
    officer evaluations are non-justiciable. Matreale did not
    challenge this aspect of the District Court’s decision in his brief
    on appeal and, therefore, he has waived it. Laborers’ Int’l Union
    of N. Am. v. Foster Wheeler Corp., 
    26 F.3d 375
    , 398 (3d Cir.
    1994). Accordingly, the District Court’s grant of summary
    judgment in favor of the NJDMVA as to Matreale’s request for
    injunctive relief also is affirmed.
    VI.
    For the foregoing reasons, we agree with the District
    Court that there are no genuine issues of material fact in the
    above matter and that the NJDMVA is entitled to judgment as a
    matter of law. Accordingly, we will affirm the decision of the
    District Court granting summary judgment in favor of the
    NJDMVA.
    SMITH, Circuit Judge, concurring.
    I join in its entirety the excellent opinion of my esteemed
    colleague, Judge Diamond. In light of the purposes of the
    doctrine as well as its application by the Supreme Court and
    19
    several courts of appeals–including this Court–the majority has
    aptly shown why we will apply intra-military immunity to bar the
    damages claims presented here. I write separately only to note
    that this Court, again and again, has dutifully applied the Feres
    doctrine in spite of perceived injustice and possibly in opposition
    to the actual text of the FTCA, but noting that we are bound to do
    so unless and until the Supreme Court or Congress tells us
    otherwise.6
    6
    See Richards v. United States, 
    176 F.3d 652
    , 657 (3d
    Cir. 1999) (“It is because Feres too often produces such curious
    results that members of this court repeatedly have expressed
    misgivings about it.”); Richards v. United States, 
    180 F.3d 564
    ,
    565 (3d Cir. 1999) (Rendell, J., dissenting from a denial of a
    petition for rehearing en banc) (“I urge the Supreme Court to
    grant certiorari and revisit what we have wrought during the
    nearly fifty years since the Court’s pronouncement in Feres....”);
    O’Neill v. United States, 
    140 F.3d 564
    , 566 (3d Cir. 1998)
    (Becker, C.J., statement sur denial of the petition for rehearing)
    (“I urge the Supreme Court to grant certiorari and reconsider
    Feres.”); Loughney v. United States, 
    839 F.2d 186
    , 188 (3d Cir.
    1988) (“We, like the district court, are constrained by the
    decisions of the Supreme Court and must adhere to the view that
    Court has expressed.”); Estate of Martinelli v. United States,
    Dep’t of Army, 
    812 F.2d 872
    , 874 (3d Cir. 1987) (stating that
    “any relaxation in the Feres doctrine must come from
    Congress”); Heilman v. United States, 
    731 F.2d 1104
    , 1112 (3d
    Cir. 1984) (“The existence of a system by which soldiers,
    veterans, and their families could receive some compensation
    for harm they suffered in the service of their country clearly
    20
    influenced the original decision to preclude suits of the sort
    before us on review. There is reason to believe that this system
    has broken down.” (citation omitted)); Hinkie v. United States,
    
    715 F.2d 96
    , 97 (3d Cir. 1983) (conceding that “we have no
    legal authority, as an intermediate appellate court, to decide the
    case differently”); Mondelli v. United States, 
    711 F.2d 567
    , 568
    (3d Cir. 1983) (stating that “we acknowledge the result to be a
    harsh one,” but nonetheless barring suit under the doctrine of
    intra-military immunity); Jaffee v. United States, 
    663 F.2d 1226
    ,
    1239 (3d Cir. 1981) (en banc) (“This is a difficult and troubling
    decision.”); Thomason v. Sanchez, 
    539 F.2d 955
    , 957 (3d Cir.
    1976) (“We previously expressed reservations about the
    continuing validity of the broad Feres doctrine. Upon
    reconsideration we reiterate that concern; as we noted there,
    however, we are powerless to jettison Feres or to dislodge it
    sufficiently to create an exception for vehicular collisions
    involving servicemen.” (citation omitted)); Peluso v. United
    States, 
    474 F.2d 605
    , 606 (3d Cir. 1973) (per curiam)
    (questioning the logic of the Feres decision but applying it to the
    facts of the case). It is no wonder that Justice Scalia in his
    Johnson dissent bluntly stated that “Feres was wrongly decided
    and heartily deserves the ‘widespread, almost universal
    criticism’ it has received.” Johnson v. United States, 
    481 U.S. 681
    , 700-01 (1987) (Scalia, J., dissenting) (quoting In re “Agent
    Orange” Product Liability Litigation, 
    580 F.Supp. 1242
    , 1246
    (E.D.N.Y. 1984)); see also Costo v. United States, 
    248 F.3d 863
    ,
    869 (9th Cir. 2001) (reluctantly concluding that “until Congress,
    the Supreme Court, or an en banc panel of this Court reorients
    the [Feres] doctrine, we are bound to follow this well-worn
    path”); 
    id. at 869
     (9th Cir. 2001) (Ferguson, J., dissenting)
    21
    The tension between the decision in Feres and the FTCA
    is obvious. As Justice Scalia stated in his oft-cited Johnson v.
    United States dissent, the exception in § 2680(j) illustrates that
    “Congress specifically considered, and provided what it thought
    needful for, the special requirements of the military. There was
    no proper basis for [the Supreme Court] to supplement—i.e., to
    revise—that congressional disposition.” 
    481 U.S. 681
    , 693
    (1987) (Scalia, J., dissenting); see 
    28 U.S.C. § 2680
    (j)
    (excluding, under the FTCA, “[a]ny claim arising out of the
    combatant activities of the military or naval forces, or the Coast
    Guard, during time of war”) (emphasis added). In the five-plus
    decades since the Feres decision, the Supreme Court has
    expanded the doctrine of intra-military immunity in a variety of
    circumstances. See, e.g., Chappell v. Wallace, 
    462 U.S. 296
    (1983) (Feres doctrine used to bar claims that were not even
    against the United States or based on the FTCA); United States
    v. Shearer, 
    473 U.S. 52
     (1985) (barring an FTCA claim of a
    soldier kidnapped and murdered when off-base and off-duty by
    another soldier).
    The doctrine of intra-military immunity remains ripe for
    reconsideration by the Supreme Court in light of the questionable
    foundation upon which it stands. Prior panels of this Court, of
    (challenging the constitutionality of the Feres doctrine on equal
    protection and separation of powers grounds).
    22
    other courts of appeals, and numerous commentators have
    questioned the soundness of the Feres doctrine. A long line of
    Supreme Court cases, beginning with Feres v. United States,
    have been decided in seeming opposition to Congress’ clearly
    expressed intent in the FTCA as to the scope of intra-military
    immunity. Feres and its progeny ought to be reexamined.
    23
    

Document Info

Docket Number: 06-2051

Filed Date: 5/22/2007

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (25)

hinkie-howard-e-sr-hinkie-irene-hinkie-paul-a-minor-by-his-parents , 715 F.2d 96 ( 1983 )

Stencel Aero Engineering Corp. v. United States , 97 S. Ct. 2054 ( 1977 )

Chappell v. Wallace , 103 S. Ct. 2362 ( 1983 )

loughney-ann-m-in-her-capacity-as-guardian-of-the-estate-of-francis-j , 839 F.2d 186 ( 1988 )

suzanne-c-costo-as-personal-representative-for-nollie-p-costo-pedro , 248 F.3d 863 ( 2001 )

Frank E. Peluso, Administrator of the Estate of Terry ... , 474 F.2d 605 ( 1973 )

estate-of-eugene-lenny-martinelli-rose-martinelli-administratrix-and , 812 F.2d 872 ( 1987 )

stanley-jaffee-and-sharon-blynn-jaffee-individually-and-stanley-jaffee , 663 F.2d 1226 ( 1981 )

Bivens v. Six Unknown Named Agents of Federal Bureau of ... , 91 S. Ct. 1999 ( 1971 )

Rosemarie Mondelli v. United States , 711 F.2d 567 ( 1983 )

ulus-jorden-jr-v-national-guard-bureau-departments-of-the-army-and-the , 799 F.2d 99 ( 1986 )

Feres v. United States , 71 S. Ct. 153 ( 1950 )

shammara-richards-individually-and-as-personal-representative-of-the , 176 F.3d 652 ( 1999 )

United States v. Stanley , 107 S. Ct. 3054 ( 1987 )

sandra-c-heilman-and-dr-andrew-m-linz-executors-of-the-estate-of-f , 731 F.2d 1104 ( 1984 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Perpich v. Department of Defense , 110 S. Ct. 2418 ( 1990 )

United States v. Standard Oil Co. Of California , 332 U.S. 301 ( 1947 )

In Re" Agent Orange" Product Liability Litigation , 580 F. Supp. 1242 ( 1984 )

Kay Berry, Inc. v. Taylor Gifts, Inc. Bandwagon, Inc , 421 F.3d 199 ( 2005 )

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