Plaintiffs Samuel and Goldie Kohn appeal from a judgment in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, J., dismissing appellants' suit for damages under the Federal Tort Claims Act for want of subject matter jurisdiction. Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
Before Feinberg, Chief Judge, and Kaufman and Mansfield, Circuit Judges.
Plaintiffs Samuel and Goldie Kohn appeal from a judgment entered in September 1981 by Eugene H. Nickerson, J., of the United States District Court for the Eastern District of New York, dismissing their complaint for lack of subject matter jurisdiction pursuant to defendants' motion to dismiss under Fed.R.Civ.P. 12. Appellants sought $25 million in damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, from the United States, the Department of the Army, and two commanding officers, Phillip Tackett and Cathy Marie Southard. Appellants concede that the district court lacked personal jurisdiction over Tackett and Southard and that the Department of the Army cannot be sued in its own name. They challenge here only the district court's dismissal of their complaint against the United States on the ground that Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), bars their claims.
This lawsuit was precipitated by events surrounding the death of appellants' son, Marc A. Kohn. According to the complaint, at the time of his death, Marc Kohn was on active duty as a private first class in the United States Army. He was assigned to the drug suppression team at Fort Campbell, Kentucky. While at Fort Campbell, Marc Kohn worked with George Marshall Hale, a Soldier Specialist Fourth Class also assigned to the drug suppression team. After Marc Kohn and Hale had argued about the use of informants several days before, Hale shot Marc Kohn to death on January 29, 1980. Hale was subsequently convicted by a general court-martial of involuntary manslaughter in violation of Article 119 of the Uniform Code of Military Justice, 10 U.S.C. § 919, and was confined at Fort Leavenworth, Kansas.
Appellants brought this action both as administrators of their deceased son's estate and in their own right. The complaint alleges three causes of action. The first two seek to hold the United States liable for $21 million in damages for their son's conscious pain and suffering and for the parents' loss of his society, support and services. In these causes of action, appellants allege that Tackett and Southard knew or should have known of the disagreements between their son and Hale and were negligent in failing to take steps to prevent the shooting. They also claim that the Army had failed "to properly train George Marshall Hale in when and how a gun was to be used." Finally, appellants allege that Hale intentionally injured their son.
In their third cause of action, appellants seek recovery of $4 million for emotional distress allegedly inflicted on them by the Army's treatment of them subsequent to their son's death. In this cause of action, appellants allege that "(f)or a period exceeding three months subsequent to the death of their son, the Army either suppressed information from, or released fraudulent information to" them, thus "intentionally, maliciously and needlessly inflicting severe emotional distress upon the bereaved parents." On appeal, appellants make additional allegations regarding the Army's mistreatment of them. In this court, they contend that the Army coerced them into agreeing to an autopsy, although an autopsy violated their religious beliefs, negligently advised them that their son died in an accidental shooting, negligently lost or destroyed their son's personal effects, negligently failed to provide an honor guard for their son's burial, wrongfully sent a copy of their son's autopsy report complete with photographs to their home, wrongfully continued to send recruitment literature to their home, and wrongfully prevented servicemen from discussing their son's death with them. Appellants state that they would include these allegations in their complaint if granted leave to replead.
Judge Nickerson found that all of appellants' claims were barred by Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), which in his view held that a member of the armed forces can not recover under the FTCA for injuries incident to military service. Judge Nickerson further held that a 1974 amendment to 28 U.S.C. § 2680(h), which waived sovereign immunity for certain intentional misconduct by law enforcement officers, did not alter in any way the principles set forth in Feres.*fn1
We affirm Judge Nickerson's disposition of appellants' claims in the first two causes of action. We reverse and remand, however, with respect to the dismissal of appellants' claims in the third cause of action.
In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Supreme Court examined three companion cases involving the negligent infliction of injuries upon military servicemen. In determining 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, the Court looked not only at whether a parallel liability against private individuals existed but also at various policy considerations. These policy considerations included the following: (1) application of local tort law under the FTCA would disrupt the uniform conduct of military activities by imposing standards of care that varied from state to state; (2) Congress had provided alternative statutory compensation schemes for military personnel; and (3) permitting suits under the FTCA by military personnel for service-related injuries would unduly interfere with military discipline. Although the Court has largely abandoned the parallel private liability test, Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S. Ct. 374, 376, 1 L. Ed. 2d 354 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S. Ct. 122, 124, 100 L. Ed. 48 (1955); see generally Note, From Feres to Stencel : Should Military Personnel Have Access to FTCA Recovery?, 77 Mich.L.Rev. 1099, 1102-04 (1979) (Michigan Note), it has continued to adhere to the policy arguments set forth in Feres. In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977), the Court reiterated these policy considerations at some length in rejecting a third party's claim for indemnity from the United States for money paid to military personnel who could not recover directly from the government. Id. at 671-74, 97 S. Ct. at 2057-2059. Thus, although Feres remains a controversial decision, we are bound by the Supreme Court's continuing adherence to it. E.g., LaBash v. United States Department of the Army, 668 F.2d 1153, 1156 (10th Cir. 1982); see generally Michigan Note, supra (critical discussion of Feres doctrine).
Here, Feres plainly bars the claims raised in the first two causes of action in the complaint. First, the injuries suffered by the decedent were certainly incidental to military service. The courts have enumerated numerous tests for determining whether injuries are service-related. Note, The Federal Tort Claims Act: A Cause of Action for Servicemen, 14 Val.U.L.Rev. 527, 557-64 (1980). Relying on Feres, this court stated in Camassar v. United States, 531 F.2d 1149 (2d Cir. 1976) (per curiam), that:
As a general rule an injury to a member of the armed forces, on active duty, which occurs at a military base or installation, or which occurs away from such base or installation but while the serviceman is engaged in the performance of an assigned military duty, is an injury "aris(ing) out of or (is) in the course of activity incident to (military) service', ... for purposes of barring suit under the Federal Tort Claims Act.
Id. at 1151 (cite and footnote omitted) (bracketed material in original). We also noted that military personnel "continued in active duty status even when they are on liberty or on leave." Id. n.2. Under this test, Marc Kohn's injuries (and derivatively, those alleged in the second cause of action) were service-related because they occurred while he was on active duty at a military base.
Second, contrary to appellants' assertions, the Feres doctrine applies to both negligent and intentional torts, absent specific statutory exceptions. Although Feres involved only negligent torts, the policy considerations set forth there are equally germane when intentional tortious misconduct is alleged. Hence, this court has held that Feres bars servicemen's claims for injuries due to intentional torts, Rotko v. Abrams, 338 F. Supp. 46, 47 (D.Conn.1971), aff'd, 455 F.2d 992 (2d Cir. 1972) (per curiam), and other circuits have adopted this view, Lewis v. United States, 663 F.2d 889 (9th Cir. 1981); Jaffee v. United States, 663 F.2d 1226, 1235 (3d Cir. 1981) (en banc); Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1152 (5th Cir. 1981); ...