The opinion of the court was delivered by: SIRICA
Upon consideration of the motions to dismiss defendants Bank, Kolb, Jones, Febo and the United States pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, and for the reasons stated in the accompanying Memorandum, it is by the Court this 21st day of June, 1978,
ORDERED that the defendants' motions to dismiss be, and the same are hereby, granted. The action is hereby dismissed.
This action is presently before the Court on motions by all defendants to dismiss on grounds of immunity. The Court has already summarized the factual allegations of the complaint in its January 9, 1978 Memorandum Opinion dealing with venue and service of process objections raised by various defendants. 77 F.R.D. 425.
In Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), the Court held that the United States is not liable, under the Tort Claims Act, for injuries to military personnel which "arise out of or are in the course of activity incident to service." 340 U.S. at 146. This holding was broadly reaffirmed just last term in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977). In this Court's view, plaintiff's malpractice claim stated in Count Two runs squarely into the Feres doctrine and the extensive lower court case law which has extended it to claims against servicemen sued in their individual capacities for damages.
First, there is no longer any question that Feres applies with equal force to members of the National Guard whose injuries are incident to active military duty. The Stencel case itself involved a plaintiff injured while assigned for training with the Missouri National Guard. 431 U.S. at 667 n.1. Second, all the events detailed in the complaint arose out of plaintiff's period of active duty at Camp Pickett, Virginia and were an immediate result of plaintiff's duties as Officer in Charge of a mortar firing range. Equally important is the fact that this case involves tortious acts against an active duty serviceman which are alleged to have occurred solely at the hands of military doctors working at military medical facilities and performing official duties. This in itself is a sufficient basis on which to invoke Feres immunity. See, e.g., Jefferson v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950)(companion case to Feres); United States v. Griggs, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950) (companion case to Feres); Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963, 43 L. Ed. 2d 441, 95 S. Ct. 1354 (1975); Shults v. United States, 421 F.2d 170 (5th Cir. 1969); Annot., 31 A.L.R. Fed. 146, § 22 (1977).
Plaintiff's Tort Claims Act malpractice claim is therefore barred by Feres. Lower courts have, almost without exception, applied Feres principles directly to suits against individual servicemen; plaintiff's Count Two malpractice claims against the individual doctors are therefore also barred on grounds of Feres immunity. See, e.g., Tirrill v. McNamara, 451 F.2d 579 (9th Cir. 1971); 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); Pisciotta v. Ferrando, 428 F. Supp. 685 (S. D.N.Y. 1977). As the ninth circuit noted in Tirrill: "Our Court has consistently held that an army physician is immunized from tort liability to a fellow soldier when the alleged act of malpractice occurred in a military hospital and was committed by the physician in the line of his military duty." 451 F.2d at 579.
Although the plaintiff relies heavily on the D.C. Circuit's decision in Henderson v. Bluemink, 167 U.S. App. D.C. 161, 511 F.2d 399 (1974), that case is wholly inapposite to the Feres immunity question presented here because it involved an action by a civilian against an Army medical officer. The court there considered principles of immunity for public officers and employees enunciated in cases like Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959), to conclude that absolute immunity was not warranted in the circumstances of that case. The Feres doctrine is not mentioned in the Henderson decision; the holding of that case has nothing whatever to do with the special intra-military immunity questions presented in the instant motions. See generally Martinez v. Schrock, 537 F.2d 765, 766-77 (3d Cir. 1976), cert. denied, 430 U.S. 920, 51 L. Ed. 2d 600, 97 S. Ct. 1339 (1977); id. at 773-74 (Seitz, C.J., dissenting). But see id., 430 U.S. 920 (1977) (White, J., dissenting from cert. denial).
Count One of the complaint, however, is not grounded on a common law negligence theory -- traditionally the heart of the Feres doctrine -- but on a cause of action for damages arising directly under the fifth amendment for deprivation of plaintiff's rights to liberty and due process of law. This theory must overcome a major preliminary hurdle: the question whether there is a federal cause of action for money damages directly under the fifth amendment in the first place. This is an open question in this circuit. See, e.g., Cardinale v. Washington Technical Institute, 163 U.S. App. D.C. 123, 500 F.2d 791, 796 n.5 (1974). See also Briggs v. Goodwin, 186 U.S. App. D.C. 179, 569 F.2d 10, slip op. at 12-13 n.8 (1977). And even assuming that such a cause of action exists, plaintiff concedes that he would encounter at least a qualified official immunity defense. See Henderson v. Bluemink, 167 U.S. App. D.C. 161, 511 F.2d 399, 403 (1974) (malpractice action by civilian against Army medical officer); Alvarez v. Wilson, 431 F. Supp. 136, 143-47 (N. D. Ill. 1977) (damage action under fifth amendment by military officer against military medical officer). But the Court need not address either of these issues because, in the Court's view, the claim stated in Count One of the complaint is barred by the Feres doctrine.
Many medical malpractice claims against federal officers or employees are susceptible of restatement as constitutional torts, particularly under the fifth amendment's due process clause. See generally Paul v. Davis, 424 U.S. 693, 694-701 & 702 n.3, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976) (refusal to recognize due process claim where government action gave rise to common law defamation claim under state law). In the instant case, the very same acts which in Count Two of the complaint are alleged to constitute negligent medical diagnosis and treatment become, in Count One, violations of "plaintiff's rights to liberty and to due process of law as guaranteed by the Fifth Amendment to the United States Constitution."
Even assuming that Count One does state a valid claim for which money damages can be granted, the question still remains whether the characterization of the malpractice claim in constitutional terms should make any difference in application of the Feres doctrine. The Court concludes that it should not. Any other result would mean that the Feres -based immunity of armed forces medical officers could be abrogated through an exercise in pleading.*
Wholly apart from Feres, which was originally based on sovereign immunity principles and an interpretation of the Federal Tort Claims Act, there is authority to the effect that military personnel acting within the scope of their authority are generally immune from actions brought by other members of the armed forces. In the Feres case the Court explained that there was no analogous private liability (i.e., liability ...