Jaffee v. United States

OPINION OF THE COURT

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 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.

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. “[Ajctions 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 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 actions brought against individuals who cannot claim sovereign immunity. They argue that this is especially true when the defendants are alleged to have committed intentional torts and the cause of action is implied directly under the Constitution. The government, on the other hand, contends that Jaffee possesses no cause of action under the Constitution. In the alternative, it argues that federal officials are immune from liability in the circumstances of this case. A prior panel of this court filed an opinion on February 20, 1980, but that decision was later vacated and the case heard before the court in banc.

II.

A DIRECT CAUSE OF ACTION UNDER THE CONSTITUTION

The Supreme Court has not directly considered the question of whether a cause of action exists against government officials for willful unconstitutional torts occurring incident to military service. In this case, we will first examine the standard developed by the Court for finding a cause of action under the Constitution. In light of this standard, we will investigate the various decisions reached by the Supreme Court and this court regarding liability of the government against suits for service injuries under the Tort Claims Act. Then, we will attempt to predict how the Court would apply the reasoning behind that military immunity doctrine to the question of whether a cause of action can be implied under the Constitution for Jaffee’s claims against individual government officials. Finally, we will consider whether the state law claims may continue in the face of the federal statutory program. Because of our disposition of these issues, we need not address the grounds adopted by the district court that the defendants are immune from suit.

The Supreme Court’s decision in 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 victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1472, 64 L.Ed.2d 15 (1980). The Court warned in Bivens, however, that a private right of action for constitutional violations might not be implied when there was an “explicit congressional declaration” that plaintiffs should be “remitted to another remedy, equally effective in the view of Congress”; or when there were “special factors counseling hesitation in the absence of affirmative action by Congress.” 403 U.S. at 396, 397, 91 S.Ct. at 2004, 2005. In these latter two circumstances, the Court would defer to á congressional judgment on whether or not to grant a cause of action.

Delineation of the type of factors which would lead the Court to refrain from implying a cause of action under the Constitution was provided in two recent cases: Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), which found a direct cause of action against a congressman for sex discrimination; and Carlson v. Green, which held federal prison officials amenable to suit directly under the eighth amendment.

The first factor, as the Court had suggested in Bivens, is when “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.” Carlson, 446 U.S. at 18-19, 100 S.Ct. at 1472 (emphasis in original). It is not necessary to show that Congress “recited any specific ‘magic words,’ ” but only that Congress has “indicated that it intends the statutory remedy to replace, rather than to complement, the Bivens remedy.” Carlson, 446 U.S. at 19, n.5, 100 S.Ct. at 1472, n.5 (Majority Opinion), quoting Dissenting Opinion of Burger, C.J., id. at 31 n.2, 100 S.Ct. at 1478 n.2. In each case, the Court looked to the language and legislative history of the Federal Tort Claims Act to discern whether Congress “meant to pre-empt a Bivens remedy or to create an equally effective remedy for constitutional violations.” Id. at 19, 100 S.Ct. at 1472 (footnote omitted). In Carlson the Court found an explicit declaration that the Tort Claims Act was not meant to preclude the cause of action raised in that case. In Davis the Court found that legislative silence on the question did not constitute the requisite “explicit declaration.” It also noted that there were no “other alternative forms of judicial relief. For Davis, as for Bivens, ‘it is damages or nothing.’ ” Davis, 442 U.S. at 245, 99 S.Ct. at 2277, quoting Bivens, 403 U.S. at 410, 91 S.Ct. at 2012 (Harlan, J., concurring). “[WJere Congress to create equally effective alternative remedies,” it allowed, “the need for damages relief might be obviated.” 442 U.S. at 248, 99 S.Ct. at 2278.

The second consideration which would lead the Court to refrain from finding a new cause of action under the Constitution are “special factors counseling hesitation in the absence of affirmative action by Congress.” Bivens, 403 U.S. at 396, 91 S.Ct. at 2004. Although neither decision examined what type of consideration would satisfy this standard, the Court in Davis recognized that “a suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct does raise special concerns counseling hesitation.”⁴ This reference suggests that the type of policy analysis that led to the establishment of an immunity might be examined in identifying “special factors.” Of course, these factors could not be limited to constitutional or common law immunities. Because the immunity independently precludes the suit even if the cause of action is implied, such a limitation would make the second prong redundant. The reference by the Court to immunity merely suggests that it might look to such considerations when deciding whether to imply a cause of action.

III.

GOVERNMENT IMMUNITY FOR INJURIES ARISING DURING MILITARY SERVICE

The Supreme Court has examined the general question of immunity for service-related torts in a series of cases interpreting the liability of the federal government under the Tort Claims Act. While these decisions only considered whether Congress had waived sovereign immunity for the federal government under the Act, the rationale adopted by the Court strongly bears on whether a cause of action would be implied under the standard outlined in Bivens and its progeny.

The Tort Claims Act waives sovereign immunity in broad language. Under its terms the “United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances ____” 28 U.S.C. § 2674.⁵ Nevertheless, in Feres v. United States, the Supreme 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. In reaching this conclusion, the Court conceded that there were “few guiding materials for our task of statutory construction,” id. at 138, 71 S.Ct. at 155, but found that Congress could not have intended that the government be liable for service injuries because of various policy reasons.

The primary rationale was not advanced in Feres itself but in two subsequent decisions, United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954) and United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). According to these decisions, the immunity of the federal government from suit was “best explained” by

[t]he peculiar and special relationship of the soldier to his superiors, the effects 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 acts committed in the course of military duty....

Brown, 348 U.S. at 112, 75 S.Ct. at 143. Accord, Stencel Aero Engineering v. United States, 431 U.S. at 671-72, 97 S.Ct. at 2057-58. Under this reasoning, suits for service injuries appear to have two consequences. The first is their effect on the willingness of military personnel to follow directions of their superiors. The Court in Stencel, a subsequent case based on Feres, observed that “the relationship between a sovereign and the members of its Armed Forces is unlike any relationship between private individuals.” 431 U.S. at 670, 97 S.Ct. at 2057. Scrutinizing military decisions in civilian courts would “involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other’s decisions and actions.” Id. at 673, 97 S.Ct. at 2059. As we noted in Jaffee I:

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. “[Ajctions 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.”

592 F.2d at 717, quoting 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).

Suits for service injuries would also appear to have a related effect on the decisionmaking of military authorities who give orders. Military decisionmakers might not be willing to act as quickly and forcefully as is necessary, especially during battlefield conditions, if they know they will subsequently be called into a civilian court to answer for their actions. While the Tort Claims Act would not make them personally liable in these circumstances, the prospect of adversarial civilian scrutiny might inhibit the exercise of military discretion.

The second rationale advanced for the service immunity originally established in Feres is the existence of a no fault compensation scheme pursuant to the Veterans’ Benefits Act. See Feres v. United States, 340 U.S. at 144-45, 71 S.Ct. at 158; Stencel Aero Engineering Corp., 431 U.S. at 671, 97 S.Ct. at 2057. Under this program, a soldier is assured of a swift, “simple, certain, and uniform compensation” for injuries occurring during his service, regardless of fault. Feres, 340 U.S. at 144, 71 S.Ct. at 158. This scheme currently provides for all of his medical care, limited income for him if he is disabled after discharge, and limited income for his family if he should die as a result of his injury.⁶ According to Feres and its progeny, Congress could not have intended a dual system of liability under the Veterans’ Benefits Act and the Tort Claims Act.⁷

In construing the scope of military immunity, the Supreme Court has adhered to “the line drawn in the Feres ease between injuries that did and injuries that did not arise out of or in the course of military duty,” United States v. Brown, 348 U.S. at 113, 75 S.Ct. at 143. This is the line where military authority and, for the most part, the existence of a compensation system for military personnel is invoked. Thus, in Feres the Court held that the United States government was not liable under the Tort Claims Act for the death of an officer in a fire which resulted from a defective heating system in his barracks. Because the officer was serving on active duty when the fire occurred, the government was not liable for its negligent decision to quarter him in the barracks. In two companion cases, Jefferson v. United States and United States v. Griggs, the Court found the government immune from liability to army soldiers injured during active duty as a result of negligent medical operations performed by army doctors. Similarly, in Stencei Aero Engineering Corp., it found the government immune from liability to a third party defendant and a military pilot permanently injured as a result of an allegedly defective fighter plane ejection system built by the third party defendant. The Court explained that outcome in a subsequent decision as follows:

Recognizing that the Veterans’ Benefits Act provided compensation to injured servicemen, which we understood Congress intended to be the sole remedy for service connected injuries, we declined [in Stencei] to construe the Tort Claims Act to permit third-party indemnity suits that in effect would expose the Government to greater liability than that contemplated under the statutory compensation scheme. In Stencei, Congress had provided a remedy which we thought to be exclusive.

Hatzlachh Supply Co. Inc. v. United States, 444 U.S. 460, 100 S.Ct. 647, 650, 62 L.Ed.2d 614 (1980).

In United States v. Brown, on the other hand, it was held that the immunity did not apply to injuries sustained by a former serviceman in a Veteran’s hospital as a result of medical malpractice committed by an army surgeon. Feres was distinguishable because “[t]he injury for which suit was brought [in Brown] was not incurred while [the plaintiff] was on active duty or subject to military discipline.” 348 U.S. at 112, 75 S.Ct. at 143. Therefore, the situation in Brown fell on the other side of the “line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty.” Id. at 113, 75 S.Ct. at 144. See also Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) (soldier who suffered injury not incident to service by military personnel could sue for damages under the Act).

IV.

THE FERES DOCTRINE AND SUITS AGAINST INDIVIDUAL GOVERNMENT OFFICIALS FOR INTENTIONAL TORTS

While Feres and its progeny only considered government liability under the Tort Claims Act for negligent torts, the policy concerns expressed by the Court seem equally applicable to a case such as this where government officials are sued in their individual capacity for intentional torts.

The first distinction between this case and Feres — the fact that here suit was brought against government officials rather than against the government — provides a stronger argument for not allowing suit than in Feres. Suits against individuals have a far greater potential for chilling responsible decision-making than those against the government. In suits against individuals, the person who makes the decision is held accountable in damages. This fact provides one of the principal justifications for some form of immunity for individual government officials. As the Court stated in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), immunity for government officials is based on two mutually dependent rationales:

(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.

Id. at 497, 98 S.Ct. at 2906, quoting Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). On the other hand, in suits against the government, the public fisc rather than the individual decision-maker must bear the cost of the liability. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 1417, 63 L.Ed.2d 673 (1980).⁸ In this respect, this case provides a more persuasive argument for not finding the defendants liable than Jaffee I, where we found the government absolutely immune.

Indeed, this court in Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967), found that the justifications for the immunity announced in Feres applied to suits brought against government officials in their individual capacity. In Bailey, a serviceman sued an army surgeon for injuries occurring from allegedly negligent medical care performed in an army hospital while the serviceman was on active duty. In denying plaintiff relief, we held that suits brought for injuries occurring during military service had the potential for undermining the maintenance of army discipline, whether the suit was brought against the government or an individual. 375 F.2d at 74. See also Calhoun v. United States, 475 F.Supp. at 4 (circuit court opinion). In both cases the propriety of government actions would be reviewed by a civilian court and the injured parties had an alternative compensation scheme. Other courts have found individuals immune from tort liability for injuries occurring incident to military service. See, e. g., Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979); Hass v. United States, 518 F.2d 1138 (4th Cir. 1975); Tirrill v. McNamara, 451 F.2d 579 (9th Cir. 1971); United States v. Lee, 400 F.2d 558 (9th Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969).

The second distinction between this case and Feres is that the instant suit is for intentional torts allegedly committed in violation of the Constitution, rather than for negligent torts. Numerous courts which have considered this distinction, however, including this court in Jaffee I, have found the rationale of Feres applicable to intentional torts as well. The Feres decision discussed immunity for injuries arising “incident to service,” and no compelling distinction can be made under that rationale for the type of injuries that occur during that service. Litigation over intentional torts would appear to disrupt military discipline and undermine military decision-making as much as tort suits for negligence. See Citizens Nat’l Bank of Waukegan v. United States, 594 F.2d 1154 at 1156. Indeed, the type of military exercise that gives rise to a claim of intentional torts, as in this case, is often more dependent on the exercise of discretionary military judgments than the adequacy of housing or medical care that was involved in Feres.

The question of whether a negligent act is taken intentionally, moreover, frequently turns on subtle issues of fact and intent that are difficult to fathom in the context of military exercises. If the dividing line for immunity becomes contingent on whether the act was negligent or intentional, virtually every case for negligence could now be brought successfully through “scholastic exercises in pleading” with the mere insertion of the words “intentional negligence.” Schmid v. Rumsfeld, 481 F.Supp. at 21. Since the “fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial,” Imbler v. Pachtman, 424 U.S. 409 at 419 n.13, 96 S.Ct. 984 at 989 n.13, 47 L.Ed.2d 128, these suits would not be dismissed. An absolute immunity defeats such “a suit at the outset, so long as the official’s actions were within the scope of the immunity.” Id. It thereby prevents the “second-guessing [of] military orders” and testimony by members of the armed forces “in court as to each other’s decisions and actions” that Feres was intended to avoid. Stencel, 431 U.S. at 673, 97 S.Ct. at 2059. Thus, “[a]bsent the deprivation of a recognized constitutional right, it would subvert the application of the Federal Tort Claims Act and its defined exceptions to allow a litigant to superimpose over that body of law extensions of constitutional rights which were never intended to apply in this context.” Calhoun v. United States, 475 F.Supp. at 5 (emphasis in original). Numerous courts have found the government immune from liability for intentional unconstitutional torts committed by its officials. See, e. g., Calhoun v. United States, 475 F.Supp. 1; Jaffee v. United States, 592 F.2d 712; Misko v. United States, 453 F.Supp. 513.

In summary, although the Supreme Court and this court have not explicitly considered this issue, the reasoning of our prior decisions reveals various policy reasons for hesitating to hold individual government officials liable for damage for intentional and unconstitutional torts in these circumstances.⁹

V.

THE ABSENCE OF A DIRECT CAUSE OF ACTION UNDER THE CONSTITUTION

It remains to be examined whether these concerns suggest that a new cause of action should not be implied directly under the Constitution. As we stated above, the Supreme Court has identified two considerations — the presence of an alternative remedy and “special factors” present even in the absence of that alternative remedy.

From our reading of the above cases, it seems clear that the Court would find that suits based on service injuries involve, as a general matter, “special factors counseling hesitation.” The Court has repeatedly identified the deleterious effects of service related suits on military performance. As recently as three years ago, it noted that the relationship between the government and “members of its Armed Forces is unlike any relationship of any private individuals.” Stencel, 431 U.S. at 670, 97 S.Ct. at 2057. In United States v. Muniz, 374 U.S. at 162, 83 S.Ct. at 1857, it distinguished the effect of service related suits on military performance from the effect of suits brought by prisoners on the functioning of prisons. Muniz allowed prisoners to sue the government under the Tort Claims Act for injuries, even though comparable injuries to soldiers were not actionable under Feres. The relevance of Feres to the finding of a new cause of action is especially clear, moreover, where suit is brought for intentional torts committed on the battlefield during wartime. In these circumstances there appears to be no serious disagreement that the principles announced in Feres would preclude suit from being brought under the Constitution.

The application of these general principles to the case of intentional torts not committed on the battlefield presents a more troubling and closer question. Nevertheless, we dp not find this fact determinative for two reasons.

First, as we have suggested, no compelling distinction can be made on these grounds under the rationale adopted in Feres. If the distinction between battlefield and non-battlefield decisions prevailed, soldiers could easily bring suits against their commanders for injuries occurring during basic training or maneuvers during wartime on the ground that their superiors’ recklessness placed them in danger. See, e. g., Calhoun v. United States. Such suits against the individuals who made the challenged decision, as in this case, would, under the reasoning of Feres, undermine the commanders’ decision-making as much as, if not more than, suits against the United States, which this court dismissed in Jaffee I. Permitting suits for intentional torts in these circumstances would likely undermine military discipline at least as much as the allegedly negligent medical decisions and building decisions held immune in Feres, and the airplane construction decision protected in Stencel. Not only were these latter actions not taken on the battlefield, but unlike the present case, they were not taken pursuant to any military exercise or maneuvers. Nevertheless, they were protected in part because of the effect of suits on military discipline.¹⁰ In short, the underlying rationale of Feres would appear to establish a bright line rule that would not admit of an exception in this case.

Secondly, even if we were to find that these considerations should not alone preclude a cause of action for non-battlefield injuries, examination of the other prong of Bivens — the existence of alternative remedies — reinforces our decision to act with restraint. Soldiers injured incident to military service are assured free medical care and limited compensation regardless of fault. This is not an instance, as in Davis, where there are “no other alternative forms of judicial relief.” The choice for Jaffee is not “damages or nothing.” While we do not hold that the existence of this limited alternative remedy under the Veterans’ Benefits Act would in itself preclude a cause of action,¹¹ this factor, in conjunction with the effect of suits on the military, counsels us to refrain from finding a new cause of action in these circumstances.

Of course, Congress did not declare in the Tort Claims Act that this compensation scheme is a substitute for a private right of action under the Constitution. No such cause of action existed at that time. Yet the Supreme Court has interpreted the administrative remedy, albeit in a different context, as “exclusive.” Hatzlachh, 100 S.Ct. at 650. It has invited Congress to amend the Act if it differed with the Court’s restrictive interpretation in Feres, 340 U.S. at 138, 71 S.Ct. at 155. The failure of Congress to pass any amendments in the more than three decades since the decision in Feres “leaves little doubt as to congressional intent in this area.” Calhoun v. United States, 475 F.Supp. at 3 n.2 (opinion of district court adopted by Court of Appeals).¹²

VI.

Appellants raise various further arguments against our decision not to find a cause of action.

First, appellants suggest that the concerns expressed in Feres are no longer significant because the Supreme Court has been willing to restrict immunities in other areas. In particular, they point out that the Court has created a good faith immunity for federal officials in Butz v. Economou, 438 U.S. at 504, 508, 98 S.Ct. at 2909, 2911, and for state officials in Scheuer v. Rhodes, 416 U.S. at 238-49, 94 S.Ct. at 1687-92, and abolished absolute immunity from constitutional claims for municipalities in Owen v. City of Independence, 100 S.Ct. at 1409. Even if we were willing to reassess the Feres doctrine in light of these cases, however, we are constrained, as a lower federal court, from doing so after the Supreme Court’s recent reaffirmation of that doctrine in Stencel Aero Engineering.

Moreover, the rationale underlying the immunities that the Supreme Court has been willing to reexamine in other contexts differs from the questions presented in the instant case. In most of these cases, there was no alternative reimbursement available that was comparable to veterans’ compensation. In addition, the “peculiar and special relationship of the soldier to his superiors” was not at issue. The Supreme Court has recently reemphasized, albeit in a different factual context, “the lack of competence on the part of the courts” in regulating military affairs. In Rostker v. Goldberg, - U.S. -, ——, 101 S.Ct. 2646, 2652, 69 L.Ed.2d 478 (1981), which upheld all male draft registration, the Court stated:

It is difficult to conceive of an area of government activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force are essentially professional judgments, subject always to civilian control of the legislative and Executive' branches.

Id., quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973). It went on to describe the need for a “healthy deference [of the Court] to legislative and executive judgments in the area of military affairs ...” Id. at -, 101 S.Ct. at 2652. Finally, it noted that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to interfere in judicial matters.” Id. at-, 101 S.Ct. at 2655, quoting Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 539 — 40, 97 L.Ed. 842 (1953). While the Rostker opinion certainly does not suggest the courts should abdicate their responsibility to assure military authorities comply with constitutional mandates, it does indicate judicial intervention in this context should only be undertaken with care and circumspection.¹³

Our decision not to recognize a constitutional cause of action is not, as the dissent suggests, an implicit creation of an intraservice immunity, and it is perhaps important to stress one of the reasons that our decision rests on the ground that it does. We have no doubt that Congress will be free after this decision to create civil remedies that would compensate the plaintiffs in this case, and others who have suffered similar tragedies in similar circumstances. We have serious reservations, however, as to whether Congress would be similarly free to create meaningful and effective causes of action for future cases where various judicially-created immunity defenses are already in place. For that reason, we believe that a Bivens “special factors” analysis is the sounder approach. Cf. Bush v. Lucas, 647 F.2d 573 (5th Cir. 1981).

Appellants’ other contention is that the civilian defendants should not benefit from principles announced in Feres, even if their military counterparts should. Their argument apparently is that the primary rationale for Feres — the special relationship between a government and its soldiers — does not apply when intentional torts are committed by civilian authorities. The present suit should therefore state a cause of action against the civilian members of the Defense Department and the Atomic Energy Commission who took part in the challenged decision.

The difficulty with appellants’ argument is that the Court in Stencel, 431 U.S. at 669, 97 S.Ct. at 2056, described the service immunity as applying to service injuries occurring at the hands of “Government officials,” not simply military officials. Decisions by civilian officials in the Defense Department or Atomic Energy Commission who oversee the military operation and the chain of command implicate many of the same policy considerations as those by their subordinate commanders. In both cases the propriety of military orders would be reviewed in a civilian court of law and the plaintiff soldier would have the full panoply of Veterans’ Benefits available to him. Lower federal courts have applied the Feres doctrine to suits against the government when the injury occurred at the hands of civilians and was incident to the soldier’s service. See Uptegrove v. United States, 600 F.2d at 1250-51; Hass v. United States, 518 F.2d 1138, 1139-42 (4th Cir. 1975); Layne v. United States, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U.S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962); Sigler v. LeVan, 485 F.Supp. at 191; Frazier v. United States, 372 F.Supp. 208, 210 (M.D.Fla. 1973). They have also interpreted the doctrine to immunize civilians sued in their individual capacity from liability for negligent torts injuring military personnel during service. See Hass v. United States, 518 F.2d at 1143; Sigler v. LeVan, 485 F.Supp. at 191. While this issue is not free from doubt, we hold the civilian defendants immune under the facts as alleged in this case.

VII.

THE STATE LAW CLAIMS

It remains for us to examine whether Jaffee’s state law claims are viable.¹⁴ For the same reasons that lead us to hold that the plaintiffs have not stated a federal cause of action, we believe that there is no state cause of action.

The Federal Tort Claims Act makes the federal government “liable ... in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674. Because “the law of the place where the act or omission occurred” determines the government’s liability, 28 U.S.C. § 1346(b), suits against the federal government are based on the rules of decisions of the various states. According to Feres and its progeny, however, Congress did not intend the Tort Claims Act to allow military personnel to bring tort claims suits for military injuries. The reason for this conclusion, as we have discussed above, was the effect of such suits on military operations and the availability of alternative reimbursement through Veterans’ Benefits. Yet, the rationale for precluding Federal Tort Claims Act suits applies equally to suits brought directly under state law. Suits founded on state law have the same potential for undermining military discipline as federal tort claims. In addition, Veterans’ Benefits are available for those bringing suits founded on state law, just as they are for those bringing federal tort claims suits.

Allowing divergent and separate state claims would also directly contravene the third rationale for the decisions in Feres and its progeny — the need for uniform legal standards for military personnel, who must frequently travel between the various states. As the Court stated in Stencel Aero Engineering Corp., which was based on Feres, “it would make little sense to have the Government’s liability to members of the armed services depend on the fortuity of where the soldier happened to be stationed at the time of the injury.” 431 U.S. at 671, 97 S.Ct. at 2058. If military personnel engaged in military exercises in the various states are subjected to the vagaries of 50 different tort law standards, and review by state courts of 50 different jurisdictions, the policies underlying Feres would be contravened.

This court reached a similar conclusion in Bailey v. DeQuevedo, 375 F.2d at 74. There we held that federal law preempts a suit founded on state law against an army doctor for medical malpractice because the policies upon which the holding in Feres was based precluded the bringing of such a claim. See also Martinez v. Schrock, 537 F.2d 765 (3d Cir. 1976) (en banc) (state suit by retired enlisted man precluded), cert. denied, 430 U.S. 920, 97 S.Ct. 1339, 51 L.Ed.2d 600 (1971); Feres, 340 U.S. at 143-4, 71 S.Ct. at 157-8; United States v. Standard Oil Company of California, 332 U.S. 301, 307, 67 S.Ct. 1604, 1607, 91 L.Ed. 2067 (1946). Although Bailey involved a state suit for negligence, it recognized the application of Feres to state causes of action. In this case, we have interpreted the principled of Feres to apply to intentional torts as well. Just as the underlying rationale of Feres would preclude a state suit for negligence, therefore, so should it preclude a state suit for intentional tort. Jaffee’s state law claims must be dismissed.

VIII.

CONCLUSION

This is a difficult and troubling decision. The Supreme Court has stated, however, that the interests of the society as a whole are advanced by holding certain individuals acting in special capacities free from legal action.¹⁵ Military service appears to be a situation where the Court would not independently grant a new cause of action under the Constitution.

Our distinguished colleague, Judge Gibbons, has written a forceful and eloquent dissent; however, his references to “the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Geneva Convention, the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Nuremburg Code” ' (Dissent, at 1249) somewhat distort the holding of the majority in this case. The majority neither endorses nor sanctions a concentration camp mentality. It is important to remember that what we are called upon to decide is simply whether the plaintiffs are entitled to money damages, in addition to the compensation provided by Veterans’ Benefits, assuming of course that they can establish wrongdoing on the part of the defendants. Thus, the issue is not civilian control over the military, as the dissent implies, but the amount of money the plaintiffs may recover.¹⁶

Our decision today would not preclude Congress from passing a statute establishing a federal cause of action. It holds only that these are special circumstances where a court should not act against or independently of congressional direction. In deference to the hard policy judgments made by the Supreme Court on this issue, we will affirm the dismissal by the district court.¹⁷

1 . See Calhoun v. United States, 475 F.Supp. 1 (S.D.Ca.1977), aff’d and D.C. Opinion adopted, 604 F.2d 647 (9th Cir. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980); Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979) (prior appeal of this case); Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980); Schnurman v. United States, 490 F.Supp. 429 (E.D.Va.1980); Nagy v. United States, 471 F.Supp. 383 (D.D.C. 1979); Misko v. United States, 453 F.Supp. 513 (D.D.C.1978); Rotko v. Abrams, 338 F.Supp. 46 (D.Conn.1971), aff’d, 455 F.2d 992 (2d Cir. 1972) (per curiam).

2 . See Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967). See also Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 732, 62 L.Ed.2d 730 (1980); Hass v. United States, 518 F.2d 1138 (4th Cir. 1975); Tirrill v. McNamara, 451 F.2d 579 (9th Cir. 1971).

3 . Numerous courts have dismissed similar claims. See Calhoun v. United States, 475 F.Supp. 1; Sigler v. LeVan, 485 F.Supp. 185 (D.Md.1980); Schmid v. Rumsfeld, 481 F.Supp. 19 (N.D.Cal.1979); Nagy v. United States, 471 F.Supp. 383; Thornwell v. United States, 471 F.Supp. 344 (D.D.C. 1979); Misko v. United States, 453 F.Supp. 513.

4 . However, the Court found “these concerns ... coextensive with the protections afforded by the Speech or Debate Clause.” 442 U.S. at 246, 99 S.Ct. at 2277 (footnote omitted). Thus, when this clause does not apply, “ ‘legislators ought ... generally to be bound by [the law] as are ordinary persons.’ ” Id., citing Gravel v. United States, 408 U.S. 606, 615, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 583 (1972).

5 . Congress qualified this general waiver of immunity in circumstances not pertinent to the present case, such as transmission of postal material, assessment of taxes, imposition of guarantor, or operation of the Panama Canal.

6 . According to figures received from the Veteran’s Administration, a veteran with a 100% disability rating for an injury resulting from his service currently receives a minimum of $1,130 per month tax free. If he is married his monthly payment increases, as it does with each additional child. In addition to this basic payment, there are special supplementary payments for loss of use of a limb, an eye, or other serious military injuries. The pertinent Veterans’ Benefits provision may be found as follows:

38 U.S.C. §§ 301-362: compensation for service connected disability or death.

38 U.S.C. §§ 401 — 423: dependency and indemnity compensation for service connected deaths.

38 U.S.C. §§ 501-562: pensions for non-service connected disability or death.

38 U.S.C. §§ 601-654: hospital, domiciliary, and medical care.

38 U.S.C. §§ 701-788: life insurance.

7 . In Feres, the Supreme Court recognized a third rationale for the immunity. The “distinctly federal” relationship between the government and members of its armed forces counseled against intervention under divergent state law causes of action. 340 U.S. at 143, 71 S.Ct. at 158. According to the Court’s subsequent decision in Stencei Aero Engineering Corp., which was based on Feres, “it would make little sense to have the Government’s liability to members of the armed services depend on the fortuity of where the soldier happened to be stationed at the time of injury.” 431 U.S. at 671, 97 S.Ct. at 2058. It is doubtful that this rationale serves to do anything but reinforce the other two, for as Justice Marshall pointed out, a similar argument could be made with regard to the “Bureau of the Census, the Immigration and Naturalization Service, and many other agencies of the Federal Government.” Id. at 675, 97 S.Ct. at 2059 (Marshall, J„ dissenting).

8 . In Owen, the Supreme Court relied in part on the difference in justification for governmental and individual immunity when it abolished immunity of municipalities from constitutional claims. It reasoned that “[t]he concerns that justified [qualified immunity for individual government officials] are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.” 100 S.Ct. at 1416 (footnote omitted). In the first case, liability “could have an undue chilling effect on the exercise of [officials’] decisionmaking responsibilities”, while in the second, “no such pernicious consequences were likely to flow from the possibility [of liability] from public funds.” Id. at 1417 n.37.

9 . See cases cited at note 3.

10 . In Peluso v. United States, 474 F.2d 605, 606 (3d Cir.), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973) (per curiam), this court rejected the argument that Feres could be “restricted to injuries occurring directly in the course of service.” According to the court, Feres “concluded that [the] Federal Tort Claims Act should not be construed to apply to armed services personnel for injuries not only in the course of but also arising out of activity incident to service.” Id. Thus, plaintiffs’ malpractice claim against army doctors was banned by Feres. Id. See also Henning v. United States, 446 F.2d 774, 777 (3d Cir. 1971) (malpractice committed by army doctor on active soldier covered by Feres because "Feres does not limit its holding to injuries occurring in the course of activity incident to service.”) For a good summary of the broad application of the Feres doctrine to injuries “incident to service”, see Woodside v. United States, 606 F.2d 134, 141 (6th Cir. 1979) (recognizing that “ ‘incident to service’ is not a narrow term restricted to military training, field maneuvers, or combat situations” but has been held to cover swimming in an on-base swimming pool, riding a horse from a military stable, and playing in a donkey softball game.)

11 . Clearly, Veterans’ Benefits would not fully compensate Jaffee for his losses, and any deterrence of future actions would occur only if the government punished wrongdoers through administrative or criminal sanctions.

12 . The Court observed in Citizens Nat’l Bank of Waukegan, that, although the Supreme Court had invited Congress to amend the statute to cover intentional torts against the government, “[a]fter twenty-seven years, the only Congressional response has been silence.” 594 F.2d at 1158 n.9.

13 . The analysis set forth by the dissent appears not to permit a logical limit to judicial intervention. If there is no circumstance under which there exists an absolute intra-military immunity (Dissent, Typescript at 22) then the dissent must recognize the susceptibility of commanders’ battlefield decisions to suit. If, on the other hand, a limit to judicial intervention must be recognized by the courts, our disagreements with the dissent are only as to where the line is to be drawn and on the basis of which doctrine — questions we think have been implicitly answered by Supreme Court precedent.

14 . The district court dismissed the case on immunity grounds, and it did not reach the question of preemption or whether the court should, in its discretion, exercise pendant jurisdiction over the state law claims in the absence of a federal cause of action. Though normally we might have this issue briefed and argued, under the circumstances of this case, we do not think that further briefing or remand would be advantageous.

15 . The Court has recognized that in certain circumstances an absolute immunity exists for members of the federal government. One such instance — the immunity granted to members of both Houses of Congress with regard to any speech, debate, vote, report, or actions done in session — emanates from the Constitution itself, Article 1, § 6. See Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Two of the other principal exceptions for judges and prosecutors found their origins in the common law and have been recognized by the Supreme Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); and Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Absolute immunity was granted to officials acting in these capacities “not because of their particular location within the Government but because of the special nature of their responsibilities.” Butz v. Economou, 438 U.S. at 511, 98 S.Ct. at 2913. Judges and prosecutors are likely to incur numerous and frivolous legal assaults because

controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus.... Absolute immunity is thus necessary to assure that judges, advocates and witnesses can perform their respective functions without harassment or intimidation.

Id. at 512, 98 S.Ct. at 2913. Another important consideration in these decisions was the professional limitations on judicial and prosecutorial excesses provided by appellate judicial review and binding precedent, and the prospect of adversarial scrutiny by adverse parties. Id.

16 . Left unexplained by the dissent’s analysis is why servicemen severely wounded in battle should receive less than those with similar injuries incurred in peacetime. The resolution of that troubling issue is properly one for Congress, which it has answered by adopting a schedule of benefits based on the extent of disability, rather than on its cause.

17 . Because of our disposition of this case, we do not reach appellees’ alternative arguments that the defendants are, as the district court held, immune from suit, or that the district court lacked personal jurisdiction and proper venue over the defendants. ,