Matreale v. NJ Dept Military

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

5-22-2007

Matreale v. NJ Dept Military
Precedential or Non-Precedential: Precedential

Docket No. 06-2051

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 06-2051

MAJOR FRANK MATREALE,
Appellant

v.

STATE OF NEW JERSEY
DEPARTMENT OF MILITARY &
VETERANS AFFAIRS;
NATIONAL GUARD OF THE
UNITED STATES

On Appeal from the United States District Court
for the District of New Jersey
Civil No. 05-2032
District Judge: The Honorable Joseph E. Irenas

Argued February 13, 2007

1
 Before: SMITH and FISHER, Circuit Judges,
and DIAMOND, District Judge*

(Filed: May 22, 2007)

William A. Riback, Esq. (Argued)
527 Cooper Street, Second Floor
Camden, NJ 08102

Counsel for Appellant

Michele A. Daitz
Office of Attorney General
of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

Dorothy J. Donnelly (Argued)
Office of United States Attorney
402 East State Street
Trenton, NJ 08608
Counsel for Appellees

*
The Honorable Gustave Diamond, Senior District Judge
for the Western District of Pennsylvania, sitting by designation.

2
 OPINION

DIAMOND, District Judge.

Major Frank Matreale, a commissioned officer in the New
Jersey Army National Guard (NJANG) serving under orders
issued pursuant to 32 U.S.C. § 502(f)(1)1, brought suit in the
Superior Court of New Jersey against the New Jersey
Department of Military and Veterans Affairs (NJDMVA), the
overseer of the NJANG, to recover damages for retaliation under
the New Jersey Law Against Discrimination (NJLAD). The

1
That section provides in pertinent part:

Under regulations to be prescribed by the
Secretary of the Army or Secretary of the Air
Force . . . a member of the National Guard may-

(A) without his consent, but with the pay and
allowances provided by law; or

(B) with his consent, either with or without pay
and allowances;

be ordered to perform training or other duty in
addition to that prescribed under subsection (a)
[required drills and field training.]

3
National Guard of the United States intervened and the case was
removed from state court to the United States District Court for
the District of New Jersey. Applying the doctrine of intra-
military immunity first enunciated in Feres v. United States, 340
U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the District Court
granted summary judgment in favor of the NJDMVA.

The issue before us is whether the Feres doctrine of intra-
military immunity bars a suit raising state law claims for
damages for injuries arising from, or in the course of activity
incident to, military service brought against a state national guard
by a guardsman serving under Title 32. We hold that it does and
will affirm the District Court’s grant of summary judgment.

I.

The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1346(b) and 1331. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291. We exercise plenary review over the District
Court's grant of summary judgment and employ the same
analysis required of the District Court to determine whether there
are any issues of material fact that would enable the nonmoving
party to prevail. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d
199, 203 (3d Cir. 2005). Summary judgment is appropriate when
“there is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). At the summary judgment stage, we view all
evidence and consider all reasonable inferences in a light most

4
favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202
(1986).

II.

In July of 1999, pursuant to an ongoing official
investigation, Matreale provided to Lt. Col. Kent Milliken, his
direct supervisor in the NJANG, a statement supporting a female
guardsman’s accusation that she had been sexually harassed by
an NJANG Sergeant Major. An inquiry ultimately concluded
that the accuser in fact was sexually harassed.

Matreale, contending that based on his role in the sexual
harassment investigation, Milliken and other NJANG officers
subsequently engaged in a course of retaliation against him,
including, inter alia, negative performance evaluations and other
disciplinary measures based on accusations that he had engaged
in an improper superior-subordinate relationship with the female
sexual harassment victim, sought redress in the suit referred to
above.

The District Court, in granting summary judgment in favor
of the NJDMVA, found that Matreale, serving under Title 32,
was a federal employee for immunity purposes and concluded
that his state law claims for damages were barred under the Feres
doctrine of intra-military immunity because the injuries for which
he sought recovery arose out of, or were incurred in the course of

5
activity incident to, his military service. The District Court
further held that Matreale’s requests for reinstatement, promotion
and other injunctive or declaratory relief were non-justiciable.

III.

The doctrine of intra-military immunity upon which the
District Court relied in dismissing Matreale’s damages claims
had its genesis in Feres, supra, a consolidation of three cases in
each of which the claimant while on active duty in the United
States Armed Forces sustained an injury due to the negligence of
others in the armed forces. The Supreme Court held that the
federal government was not liable under the Federal Tort Claims
Act for injuries to servicemen arising out of, or in the course of
activity incident to, military service. 340 U.S. at 146, 71 S.Ct. at
159. The Court noted that “without exception, the relationship
of military personnel to the Government has been governed by
federal law,” id., and that no federal law “has permitted a soldier
to recover for negligence, against either his superior officers or
the Government he is serving.” 340 U.S. at 141, 71 S.Ct. at 157.

Although only alluded to in Feres, the Supreme Court
subsequently expounded upon the underlying rationale for the
intra-military immunity doctrine and described it as being
predicated upon:

[t]he peculiar and special relationship of the
soldier to his superiors, the effects of the

6
 maintenance of such suits on discipline, and the
extreme results that might obtain if suits . . . were
allowed for . . . negligent orders given or negligent
acts committed in the course of military duty . . . .

United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99
L.Ed. 139 (1954).

In Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76
L.Ed.2d 586 (1983), the Supreme Court expanded the reach of
the Feres doctrine to bar a Bivens2 claim for damages brought by
federal servicemen against their federal superior officers alleging
constitutional violations resulting from alleged racial
discrimination in assignments, evaluations and punishment. As
in Feres, the Court relied primarily upon “the peculiar and
special relationship” between a soldier and his superiors, and the
potential effects of permitting such lawsuits on military
discipline, in holding that the doctrine of intra-military immunity
barred Bivens damages claims. Chappell, 462 U.S. at 304, 103
S.Ct. at 2367.

Without exception, in other post-Feres cases, the Court

2
In Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971), the Supreme Court authorized suits against federal
officials whose actions violate an individual’s constitutional
rights.

7
has adhered to the compelling necessity of maintaining military
discipline as the basis for expanding the intra-military immunity
doctrine to encompass a variety of claims, against an assortment
of defendants, brought by a range of servicemen, for injuries
arising out of, or in the course of activity incident to, military
service. See United States v. Stanley, 483 U.S. 669, 107 S.Ct.
3054, 97 L.Ed.2d 550 (1987) (Feres “incident to service” test
equally applicable in Bivens cases brought by serviceman against
military officers and civilians); United States v. Johnson, 481
U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (barring FTCA
claim against civilian defendant by widow of serviceman killed
in rescue mission); United States v. Shearer, 473 U.S. 52, 105
S.Ct. 3039, 87 L.Ed.2d 38 (1985) (barring FTCA claim against
United States arising from murder of off-duty serviceman by
another serviceman); Stencel Aero Eng’g Corp. v. United States,
431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (barring
claim for indemnification against United States brought by a
government contractor in a negligence suit filed by a National
Guardsman on a training mission).

Following the Supreme Court’s rationale in those cases,
in defining the scope of the Feres doctrine we too have
recognized the adverse impact on military discipline inherent in
the judicial review of military orders and have sought to avoid it.
In Jaffee v. United States, 663 F.2d 1226, 1239 (3d Cir. 1981),
we held that the Feres doctrine extends to bar a federal
serviceman’s state law intentional tort claim against his Army
supervisors. We recognized two potential consequences of

8
permitting suits for service injuries: their effect on the
willingness of military personnel to follow the directions of their
superiors and the concomitant chilling effect that the concern of
being called into civilian court may have on the discharge of the
decision-making duties of military authorities. Id. at 1232. Of
particular significance to the matter presently before us, we noted
in Jaffee that “[s]uits founded on state law have the same
potential for undermining military discipline as federal tort
claims.” Id. at 1239.

Later, in Jorden v. National Guard Bureau, 799 F.2d 99,
104-05 (3d Cir. 1986), we determined that the reasoning in
Chappell, supra, barring Bivens damages claims against federal
military officers, was equally applicable to a § 1983 action
brought by a full-time civilian technician in a state national guard
against state military officers in light of the Supreme Court’s
decision in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57
L.Ed.2d 895 (1978), which unequivocally held that Bivens claims
and § 1983 claims are to be treated as identical for immunity
purposes. We observed that in Chappell the Supreme Court
“was laying down a general rule barring damages actions by
military personnel against superior officers for constitutional
violations, rather than authorizing a fact-specific inquiry.”
Jorden, 799 F.2d at 108.

IV.

In this case, there is no dispute that the alleged harm

9
suffered by Matreale arose from, or in the course of activity
incident to, his military service in the NJANG, since his damages
allegedly resulted from the conduct of his superior officers in
evaluating and disciplining him. A straightforward application
of the Feres doctrine as it has evolved in the Supreme Court and
this Circuit, therefore, would appear to dictate the conclusion
reached by the District Court that Matreale’s damages claims are
barred by intra-military immunity.

Pressed by the overwhelming weight of the foregoing
federal precedent, however, Matreale seeks to avoid such a
straightforward application of the “federally created” Feres
doctrine by attempting to convert this case into an exclusive state
law matter. In that vein, Matreale argues that, as a state
guardsman, serving under Title 32, he is a state employee suing
other state employees, also serving under Title 32, under state
law. Accordingly, his argument goes, the issue of immunity is
one which should be addressed and resolved solely under state
law; specifically, the question should be whether the NJDMVA
is entitled to immunity under the NJLAD, rather than one
addressed to federal law in the form of the Feres doctrine.

Matreale’s entire position rests on his attempt to
differentiate between state guardsmen serving pursuant to Title
10, on the one hand, and those serving pursuant to Title 32, on
the other. Matreale contends that the Feres doctrine applies only
to state guardsmen who have been mobilized to active duty under
Title 10, but does not apply to guardsmen serving under Title 32,

10
except to the extent those guardsman are engaged in drills or
field training under 32 U.S.C. § 502(a)3 at the time of the alleged
conduct, because guardsmen serving under Title 32 are state, as
opposed to federal, employees.

Neither party in this case questions the fact that Matreale
was serving under orders issued pursuant to 32 U.S.C. §
502(f)(1), and had not been mobilized under Title 10, at the time
of the conduct in question4. Likewise, there is no dispute that all

3
Title 32 U.S.C. § 502(a) provides in pertinent part:

Under regulations to be prescribed by the
Secretary of the Army or the Secretary of the Air
Force . . . each company, battery, squadron, and
detachment of the National Guard, unless excused
by the Secretary, shall

(1) assemble for drill and
instruction, including target
practice, at least 48 times each
year; and,

(2) participate in training at
encampments, maneuvers, outdoor
target practice, or other exercises,
at least 15 days each year.
4
Matreale’s unit subsequently was mobilized to active
duty in Iraq pursuant to Title 10 on August 19, 2004. However,

11
of the superior officers implicated in the alleged retaliatory
behavior against Matreale also were serving under orders issued
pursuant to 32 U.S.C. § 502(f). Finally, there is no dispute that
at the time of the conduct in question, neither Matreale nor his
superiors were engaged in drills or field training under 32 U.S.C.
§ 502(a). Under these circumstances, Matreale contends that at
all material times all relevant parties in this case were serving in
a state, not a federal, capacity and, therefore, were state
employees subject only to state law on the question of immunity.

Matreale’s argument is without merit for several reasons.
First, the essential premise of his entire case, i.e., that, for
immunity purposes, he was solely a state employee, is invalid.
Rather, the District Court clearly was correct in holding that
Matreale’s Title 32 status at the time of the alleged incidents
rendered him a federal employee for Feres purposes.

First, at the time of the conduct in question, Matreale was
serving under orders issued pursuant to federal law, specifically,
32 U.S.C. § 502(f). His appointment as an officer was pursuant
to the sixteenth clause of section 8, article I of the Constitution,
and he began full time service with the national guard in
December of 1992 on orders issued pursuant to 32 U.S.C. §
502(f). As the District Court correctly noted, these orders
rendered Matreale, at all relevant times, a full time guardsman in

at the time of the conduct at issue in this case, Matreale was
serving under Title 32.

12
the National Guard of the United States serving in accordance
with the Active Guard Reserve Program.

In addition, this Court previously has applied the Feres
doctrine to a guardsman serving under Title 32. In Loughney v.
United States, 839 F.2d 186 (3d Cir. 1988), we held that a
national guardsman on active guard reserve duty status, as
Matreale was in this case, was barred by the Feres doctrine from
suing the government under the Federal Tort Claims Act. We
emphasized there that “[i]t is simply the status of the claimant
that is dispositive.” Id. at 188. Because Loughney was a
“serviceman” and his injury arose out of or in the course of
activity incident to his military service, we concluded that his
FTCA claim was barred by the doctrine of intra-military
immunity. Id.

Like Loughney, Matreale was a Title 32 serviceman in
active guard reserve duty status and his alleged damages arose
out of, or in the course of activity incident to, his military service.
The fact that Loughney sued under the FTCA whereas Matreale
is suing only under state law is of no consequence. As we
recognized in Jaffee, supra, the Feres doctrine applies to suits
founded on state law as well as to those founded on federal law
because state law based suits have the same potential for
undermining military discipline as do federal claims. Jaffee, 663
F.2d at 1239; see also Coffman v. State of Michigan, 120 F.3d 57
(6th Cir. 1997) (statutory remedies under Michigan
Handicapper’s Civil Rights Act are not available to uniformed

13
members of the armed forces including National Guard
members).

Matreale’s arguments in support of his position that his
status as a Title 32 guardsman rendered him a state rather than a
federal employee likewise are unpersuasive. First, his reliance
on Perpich v. Department of Defense, 496 U.S. 334, 110 S.Ct.
2418, 110 L.Ed.2d 312 (1990) is misplaced. There, the Supreme
Court held that Congress may authorize that members of the
National Guard be assigned to active federal duty for training
outside the United States without either the consent of the state
governor or the existence of a national emergency. The Court,
in addressing the unique “dual enlistment” status of state
National Guard members, observed that “[s]ince 1933 all persons
who have enlisted in a State National Guard unit have
simultaneously enlisted in the National Guard of the United
States.” 496 U.S. at 345. The Court held that under this dual
enlistment system, “a member of the Guard who is ordered to
active duty in the federal service is thereby relieved of his or her
status in the State Guard for the entire period of federal service.”
Id. at 346.

Matreale misconstrues the Perpich holding as implying
that unless a state guardsman has been called to active duty under
Title 10 and thereby loses his status in the state guard, he at all
other times remains solely in state, not federal, status. But the
plain holding of the Court is to the contrary. Under the holding
in Perpich, Matreale attained dual status as a member of both the

14
National Guard of the United States and the NJANG when he
accepted his commission as an officer. 32 U.S.C. §§ 305 and
307; N.J.S.A. 38A:7-4. And while under Perpich a state
guardsman loses his state status when he is called to active duty
under Title 10, there is nothing in Perpich from which one
reasonably may infer, as Matreale argues, that a Title 32
guardsman “loses”, or does not have, federal status unless he is
mobilized under Title 10 or engaged in drills or field training
under 32 U.S.C. § 502(a). On the contrary, the Supreme Court
in Perpich stressed that its holding that a state guardsman is
stripped of his state status when he is called to active duty under
Title 10 “merely recognizes the supremacy of federal power in
the area of military affairs.” Perpich, 496 U.S. at 351, 110 S.Ct.
at 2428. Our conclusion that a state guardsman serving under
orders issued pursuant to Title 32, whether serving under §
502(a) or § 502(f), has and retains his federal status, along with
his state status, even when he has not been called to active duty
under Title 10, likewise recognizes federal supremacy over
military affairs.

Matreale also cites to Phillips v. State Department of
Defense, 98 N.J. 235, 486 A.2d 318 (N.J. 1985). This case too
is of little value to his position. In Phillips, the New Jersey
Supreme Court held that a national guardsman injured while
training remained an employee of the state and was not an
employee of the federal government, which would have
precluded application of the New Jersey state military
compensation law. While mentioning the Feres doctrine in

15
passing, the court did not rely on the Feres rationale because “the
statutory interplay between the New Jersey military
compensation law and the New Jersey Tort Claims Act was not
present in Feres.” 98 N.J. at 321, 486 at 241. In short, Phillips
did not authorize a tort suit against the State of New Jersey or
any other person or entity by an injured guard member, whether
in federal or state status, but merely provided a remedy under the
state military compensation law for personal injuries suffered by
a guard member in state status.

For the foregoing reasons, we agree with the District
Court’s determination that Matreale and his supervisors, all of
whom were serving under orders issued pursuant to 32 U.S.C. §
502(f) at the time of the conduct in question, were serving in a
federal capacity and therefore were federal “employees” for
purposes of the intra-military immunity doctrine.

Our conclusion that Matreale and his supervisors were
federal (or at best dual federal-state) employees, at the time of the
conduct in question is dispositive of his remaining argument that
state law, rather than the Feres doctrine, should determine the
question of immunity.5 We need look no further than Feres for

5
Matreale argues that the NJLAD would not provide
immunity for guardsman but suggests in any event that it is for
the New Jersey Supreme Court, not this Court, to determine the
immunity question under state law. Matreale therefore
alternatively seeks certification of this question to the New

16
an unequivocal refutation of this argument. There, the Supreme
Court stressed the point that the “relationship between the
Government and members of its armed forces is ‘distinctly
federal in character’” and that “without exception, the
relationship of military personnel to the Government has been
governed by federal law.” Feres, 340 U.S. at 143-44, 146; 71
S.Ct. 158, 159 (citation omitted). The court explained:

To whatever extent state law may apply to govern
the relations between soldiers or others in the
armed forces and persons outside them or
nonfederal government agencies, the scope, nature,
legal incidents and consequence of the relation
between persons in service and the Government
are fundamentally derived from federal sources
and governed by federal authority.

340 U.S. at 143-44, 71 S.Ct. at 158 (quoting United States v.
Standard Oil Co., 332 U.S. 301, 305-06, 67 S.Ct. 1604, 1607, 91
L.Ed. 2067 (1947)).

As stated above, at the time of the conduct giving rise to
his suit, Matreale and his supervisors were members of the

Jersey Supreme Court. In light of our holding that Matreale is
a federal employee for immunity purposes and that this case is
governed by federal law, the issue of certification of the
question to state court is moot.

17
military serving in a federal capacity under orders issued
pursuant to Title 32. As a result, federal authority as set forth in
Feres and its progeny, rather than state law, governs the issue of
immunity. And because the alleged harm suffered by Matreale
arose from, or in the course of activity incident to, his military
service in the NJANG, his claims for damages are barred under
the intra-military immunity doctrine.

Our holding in this case is consistent with, and a logical
corollary to, our prior precedent in the area of intra-military
immunity. We previously have applied the Feres doctrine in
Loughney to a Title 32 guardsman suing under federal law. We
also have applied the doctrine in Jaffee to a federal active duty
serviceman suing under state law. It is both reasonable and
appropriate to apply the doctrine to Title 32 guardsman suing
under state law and thereby to make immunity co-extensive for
all dual-status national guardsmen. A concern for the disruption
of the unique relationship of military personnel to their superiors
and to other military personnel that likely would result if one
could hale another into court as a result of activity incident to
military service is equally as compelling in the context of
lawsuits brought by Title 32 guardsmen, whether serving under
§ 502(a) or § 502(f), as it is in the context of lawsuits brought by
Title 10 guardsmen.

Accordingly, for the foregoing reasons, the District
Court’s finding that Matreale’s damage claims founded on state
law are barred by the Feres doctrine of intra-military immunity

18
doctrine will be affirmed.

V.

The District Court also held that Matreale’s requests for
promotion and other injunctive relief arising from his negative
officer evaluations are non-justiciable. Matreale did not
challenge this aspect of the District Court’s decision in his brief
on appeal and, therefore, he has waived it. Laborers’ Int’l Union
of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994). Accordingly, the District Court’s grant of summary
judgment in favor of the NJDMVA as to Matreale’s request for
injunctive relief also is affirmed.

VI.

For the foregoing reasons, we agree with the District
Court that there are no genuine issues of material fact in the
above matter and that the NJDMVA is entitled to judgment as a
matter of law. Accordingly, we will affirm the decision of the
District Court granting summary judgment in favor of the
NJDMVA.

SMITH, Circuit Judge, concurring.

I join in its entirety the excellent opinion of my esteemed
colleague, Judge Diamond. In light of the purposes of the
doctrine as well as its application by the Supreme Court and

19
several courts of appeals–including this Court–the majority has
aptly shown why we will apply intra-military immunity to bar the
damages claims presented here. I write separately only to note
that this Court, again and again, has dutifully applied the Feres
doctrine in spite of perceived injustice and possibly in opposition
to the actual text of the FTCA, but noting that we are bound to do
so unless and until the Supreme Court or Congress tells us
otherwise.6

6
See Richards v. United States, 176 F.3d 652, 657 (3d
Cir. 1999) (“It is because Feres too often produces such curious
results that members of this court repeatedly have expressed
misgivings about it.”); Richards v. United States, 180 F.3d 564,
565 (3d Cir. 1999) (Rendell, J., dissenting from a denial of a
petition for rehearing en banc) (“I urge the Supreme Court to
grant certiorari and revisit what we have wrought during the
nearly fifty years since the Court’s pronouncement in Feres....”);
O’Neill v. United States, 140 F.3d 564, 566 (3d Cir. 1998)
(Becker, C.J., statement sur denial of the petition for rehearing)
(“I urge the Supreme Court to grant certiorari and reconsider
Feres.”); Loughney v. United States, 839 F.2d 186, 188 (3d Cir.
1988) (“We, like the district court, are constrained by the
decisions of the Supreme Court and must adhere to the view that
Court has expressed.”); Estate of Martinelli v. United States,
Dep’t of Army, 812 F.2d 872, 874 (3d Cir. 1987) (stating that
“any relaxation in the Feres doctrine must come from
Congress”); Heilman v. United States, 731 F.2d 1104, 1112 (3d
Cir. 1984) (“The existence of a system by which soldiers,
veterans, and their families could receive some compensation
for harm they suffered in the service of their country clearly

20
influenced the original decision to preclude suits of the sort
before us on review. There is reason to believe that this system
has broken down.” (citation omitted)); Hinkie v. United States,
715 F.2d 96, 97 (3d Cir. 1983) (conceding that “we have no
legal authority, as an intermediate appellate court, to decide the
case differently”); Mondelli v. United States, 711 F.2d 567, 568
(3d Cir. 1983) (stating that “we acknowledge the result to be a
harsh one,” but nonetheless barring suit under the doctrine of
intra-military immunity); Jaffee v. United States, 663 F.2d 1226,
1239 (3d Cir. 1981) (en banc) (“This is a difficult and troubling
decision.”); Thomason v. Sanchez, 539 F.2d 955, 957 (3d Cir.
1976) (“We previously expressed reservations about the
continuing validity of the broad Feres doctrine. Upon
reconsideration we reiterate that concern; as we noted there,
however, we are powerless to jettison Feres or to dislodge it
sufficiently to create an exception for vehicular collisions
involving servicemen.” (citation omitted)); Peluso v. United
States, 474 F.2d 605, 606 (3d Cir. 1973) (per curiam)
(questioning the logic of the Feres decision but applying it to the
facts of the case). It is no wonder that Justice Scalia in his
Johnson dissent bluntly stated that “Feres was wrongly decided
and heartily deserves the ‘widespread, almost universal
criticism’ it has received.” Johnson v. United States, 481 U.S.
681, 700-01 (1987) (Scalia, J., dissenting) (quoting In re “Agent
Orange” Product Liability Litigation, 580 F.Supp. 1242, 1246
(E.D.N.Y. 1984)); see also Costo v. United States, 248 F.3d 863,
869 (9th Cir. 2001) (reluctantly concluding that “until Congress,
the Supreme Court, or an en banc panel of this Court reorients
the [Feres] doctrine, we are bound to follow this well-worn
path”); id. at 869 (9th Cir. 2001) (Ferguson, J., dissenting)

21
 The tension between the decision in Feres and the FTCA
is obvious. As Justice Scalia stated in his oft-cited Johnson v.
United States dissent, the exception in § 2680(j) illustrates that
“Congress specifically considered, and provided what it thought
needful for, the special requirements of the military. There was
no proper basis for [the Supreme Court] to supplement—i.e., to
revise—that congressional disposition.” 481 U.S. 681, 693
(1987) (Scalia, J., dissenting); see 28 U.S.C. § 2680(j)
(excluding, under the FTCA, “[a]ny claim arising out of the
combatant activities of the military or naval forces, or the Coast
Guard, during time of war”) (emphasis added). In the five-plus
decades since the Feres decision, the Supreme Court has
expanded the doctrine of intra-military immunity in a variety of
circumstances. See, e.g., Chappell v. Wallace, 462 U.S. 296
(1983) (Feres doctrine used to bar claims that were not even
against the United States or based on the FTCA); United States
v. Shearer, 473 U.S. 52 (1985) (barring an FTCA claim of a
soldier kidnapped and murdered when off-base and off-duty by
another soldier).

The doctrine of intra-military immunity remains ripe for
reconsideration by the Supreme Court in light of the questionable
foundation upon which it stands. Prior panels of this Court, of

(challenging the constitutionality of the Feres doctrine on equal
protection and separation of powers grounds).

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other courts of appeals, and numerous commentators have
questioned the soundness of the Feres doctrine. A long line of
Supreme Court cases, beginning with Feres v. United States,
have been decided in seeming opposition to Congress’ clearly
expressed intent in the FTCA as to the scope of intra-military
immunity. Feres and its progeny ought to be reexamined.

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