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Jaffee v. United States

November 2, 1981

STANLEY JAFFEE AND SHARON BLYNN JAFFEE, INDIVIDUALLY, APPELLANTS AND STANLEY JAFFEE, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
v.
UNITED STATES OF AMERICA, ROBERT T. STEVENS, J. LAWTON COLLINS, JOSEPH M. SWING, WILLIAM C. BULLOCK, ROBERT A. LOVETT, HENRY D. SMYTH, T. KEITH GLENNAN, EUGENE M. ZUCKERT, MARION W. BOYER, KENNETH D. NICHOLS, KENNETH E. FIELDS, AND CERTAIN ADDITIONAL PAST AND PRESENT OFFICERS AND OFFICIALS OF THE UNITED STATES DEPARTMENT OF DEFENSE, THE DEPARTMENT OF THE ARMY AND THE ATOMIC ENERGY COMMISSION AND THE UNITED STATES ARMY WHOSE NAMES WILL BE INSERTED WHEN ASCERTAINED, EACH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, APPELLEES



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. CIV. NO. 78-1014)

Author: Higginbotham

Before: GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges

Before: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges

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 (1950), and most recently in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (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.*fn1 We have also interpreted the doctrine to immunize government officials sued in their individual capacity from liability to military personnel for negligent torts.*fn2

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 weight 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.*fn3 For similar reasons, we will also affirm the dismissal of plaintiffs' pendant 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 had 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 medding. "[A]ctions 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 519, 520 (4th Cir. 1949), aff'd sub nom. Feres v. United States, 340 U.S. 135 (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. §§ 501 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 (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 (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. In these latter two circumstances, the Court would defer to a 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 (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 explicity declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson, 446 U.S. at 18-19 (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 (Majority Opinion), quoting Dissenting Opinion of Burger, C.J., id at 31 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 (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, quoting Bivens, 403 U.S. at 410 (Harlan, J. concurring). "[W]ere Congress to create equally effective alternative remedies," it allowed, "the need for damages relief might be obviated." 442 U.S. at 248.

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. 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."*fn4 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 has 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.*fn5 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. In reaching this conclusion, the Court conceded that there were "few guiding materials for our task of statutory construction," id . at 138, 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 (1954) and United States v. Muniz, 374 U.S. 150 (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. Accord, Stencel Aero Engineering v. United States, 431 U.S. at 671-72. 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. 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. As we noted in Jaffee I :

If claims for injuries sustained by members of the armed forces in the execution of miliary 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. "[A]ctions 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 519, 520 (4th Cir. 1949), aff'd sub nom. Feres v. United States, 340 U.S. 135 (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; Stencel Aero Engineering Corp ., 431 U.S. at 671. 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. 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.*fn6 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.*fn7

In construing the scope of military immunity, the Supreme Court has adhered to "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." United States v. Brown, 348 U.S. at 113. 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 Stencel 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 Stencel ] 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 Stencel, Congress had provided a remedy which we thought to be exclusive.

Hatzlachh Supply Co. Inc. v. United States, 100 S. Ct. 647, 650 (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. 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. See also Brooks v. United States, 337 U.S. 49 (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 INTERTIONAL 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 from of immunity for individual government officials. As the Court stated in Butz v. Economou, 438 U.S. 478 (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, quoting Scheuer v. Rhodes, 416 U.S. 232, 240 (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, 100 S. Ct. 1398, 1417 (1980).*fn8 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 73 (3d Cir.), cert. denied, 389 U.S. 923 (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 (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 at 1154. 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 of 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. at 419 n. 13, 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. 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.*fn9

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. In United States v. Muniz, 374 U.S. at 162, 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 commited on the battlefield presents a more troubling and closer question. Nevertheless, we do 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.*fn10 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,*fn11 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. The failure of Congress to pass any amendments in the more than three decades since the decision in Feres "leaves little ...


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