plaintiff's injuries must be apportioned and he may recover only to the extent that defendants' post-discharge negligence aggravated or prolonged his condition. See W. Prosser, Handbook of the Law of Torts § 52 (4th ed. 1971).
In accordance with the foregoing, the Court denies defendants' motion to dismiss count VI of the plaintiff's complaint.
V. PLAINTIFF MAY RECOVER FOR VIOLATIONS OF FIFTH AMENDMENT RIGHTS WHICH OCCUR AFTER DISCHARGE
Count V of Mr. Thornwell's complaint is apparently an alternative charge to count VI's claim of negligence; it states that after his discharge, the defendants acted to conceal the LSD experiment from him and that they also failed to provide him with a follow-up examination and treatment. Complaint P 72 (filed Oct. 2, 1978). Although plaintiff's complaint is hazy, the fifth amendment due process violation evidently arises out of the defendants' disregard for their own regulations. It may, however, also arise out of the defendants' egregious conduct, which shocks the conscience. The cover-up allegation is strongly suggestive of a charge that the defendants intentionally withheld the medical care which was vital to Mr. Thornwell's well-being.
The Court finds that count V states a valid claim.
A. The Doctrine of Intra-Military Immunity Does Not Apply.
First, in reviewing count VI, the Court held that Mr. Thornwell's allegation of post-discharge negligence involved a course of conduct distinct and separate from the intentional wrongs which had occurred while he was on active duty. As a result, the Feres doctrine of intra-military immunity had no application. Mr. Thornwell's allegation of an unconstitutional cover-up also involves a new course of conduct arising after the attainment of civilian status; thus, the rationale of this Court's approval of count VI compels the conclusion that count V also states a valid claim. Indeed, the case for the validity of count V is a simple one because the concept of immunity for a "continuing tort"
can have no application when intentional or unconstitutional conduct is involved. To hold that the military may deprive a civilian of his constitutional rights merely because the deprivation originated when the civilian was an enlisted man would be tantamount to declaring all veterans second class citizens. Men and women who have served in our Armed Forces, and to whom this nation is indebted beyond measurement, are certainly entitled to the constitutional liberties afforded all citizens. In short, if the military deprives a veteran of his constitutional rights, it may not look to Feres for immunity.
B. There is a Cause of Action For Damages Under The Fifth Amendment.
Apart from Feres, the defendants also contend that there can be no implied private right of action under the fifth amendment. 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 recognized the validity of a cause of action for a violation of the fourth amendment; the defendants' however, argue that Bivens should be limited to suits under the fourth amendment. Although other courts have divided on the question of Bivens' application to fifth amendment claims,
this Court finds that violations of the fifth amendment may give rise to a valid cause of action.
In Payne v. Government of the District of Columbia, 182 U.S.App.D.C. 188, 559 F.2d 809 (1977), the Court of Appeals for this Circuit left open the question of the propriety of claims under the fifth amendment. The court, however, explained that Bivens "utilized a standard yielding guidance for similar treatment of other constitutional rights," and stated further, "(T)his court has indicated a willingness to consider a broader application" of Bivens. Id. at 198 and n. 49, 559 F.2d at 819 and n. 49. Later, in Dellums v. Powell, 184 U.S.App.D.C. 275, 300-302, 566 F.2d 167, 192-194 (1977), Cert. denied, 438 U.S. 916, 98 S. Ct. 3146, 57 L. Ed. 2d 1161, 98 S. Ct. 3147 (1978), the court held that the rationale of Bivens justified suits for violations of the first amendment. This Court believes that Dellums and Payne both indicate that the Court of Appeals for this Circuit has rejected a narrow reading of Bivens. See Founding Church of Scientology v. Director, Federal Bureau of Investigation, 459 F. Supp. 748 (D.D.C.1978). Accordingly, under the law of this Circuit, the Court should recognize a cause of action under the fifth amendment. Saffron v. Wilson, 70 F.R.D. 51 (D.D.C.1975).
Apart from the precedent of Payne and Dellums, the Court finds independently that a restrictive interpretation of Bivens is inappropriate. The defendants rely on Torres v. Taylor, 456 F. Supp. 951 (S.D.N.Y.1978) in support of the proposition that plaintiff's allegations of a violation of the fifth amendment fail to state a claim. In Torres, Judge Weinfeld ruled that when relief was available under the Federal Tort Claims Act ("the Act"), a cause of action could not be implied for a violation of the fifth amendment. Id. at 954. With all due respect, the Court is not inclined to follow the Torres holding.
First, the Court believes that, in interpreting Bivens, Torres relies too heavily on Justice Harlan's concurring opinion which asserted that the Court held a constitutional cause of action proper because it was the Only possible remedy for the alleged wrong. Id. at 953 (citing Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 409-410, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (Harlan, J., concurring)). However, the majority opinion clearly indicated that, even in the absence of a new cause of action, the wronged party would still not be without remedy:
Respondents do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents' view, however, the rights that petitioner asserts primarily rights of privacy are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts.
403 U.S. at 390, 91 S. Ct. at 2001-2002. Thus, in Bivens the Supreme Court recognized that without an implied private right of action, the petitioner would not be remediless; he would only be without a remedy in the federal courts. Moreover, the Court explained, "(I)t is well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, Federal courts may use any available remedy to make good the wrong done." Id. at 396, 91 S. Ct. at 2004 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946) (emphasis added)). This Court finds that a cornerstone of Bivens is the strong federal interest in providing a remedy in the federal courts for violations of the United States Constitution.
Although in this case, the Federal Tort Claims Act may provide the federal remedy sought by the Bivens majority, it is clear that Congress has never intended the Act as the exclusive remedy for the tortious conduct of federal officials. In 1974, Congress amended the Federal Tort Claims Act to provide a remedy against the United States for wrongs committed by federal law enforcement or investigative officers. Act of March 16, 1974, Pub.L. No. 93-253, § 2, 88 Stat. 50. Rather than displace the Bivens cause of action the proper result under both Justice Harlan's analysis and Torres Congress decided to retain suits under the fourth amendment which provide relief against federal officials in their individual capacity. The 1974 amendments to the Act show that Congress plainly intended to permit Bivens and Federal Tort Claims Act suits to exist side by side. S.Rep. No. 558, 93d Cong., 2d Sess. 3 (1974), U.S.Code Cong. & Admin.News 1974, p. 2789.
In addition, an exclusive remedy under the Act provides a less effective deterrent against constitutional violations than a direct action against federal officials. Although the Act may render more certain the injured party's recovery of some financial benefit, Bivens actions, by providing for recovery from the individuals responsible for the invasion of constitutional rights, should in the long run incrementally reduce the unconstitutional action of federal officials. Cf. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) (holding that application of remedy under the fourth amendment requires weighing the utility of the remedy against its costs). Recently, in Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 2910, 57 L. Ed. 2d 895 (1978), the Supreme Court reached a similar conclusion: "In situations of (unconstitutional) abuse, an action for damages against the responsible (federal) officials can be an important means of vindicating constitutional guarantees."
Finally, a suit under the fifth amendment may well be the only cause of action which fully encompasses the wrongs which Mr. Thornwell has alleged. The facts stated on the face of his complaint appear to go far beyond the outrageous conduct which marks the common law tort of intentional infliction of emotional distress. The injury which he suffered was not mere "emotional distress," but rather a prolonged psychiatric disorder accompanied by severe physical pain. In addition, the defendants' conduct involved not only intentional harm to Mr. Thornwell, but also willful disregard of both Army regulations and public promises made by high ranking military officials. Perhaps the only tort which is capable of describing this course of conduct is one based upon the fifth amendment's guarantee that no person shall "be deprived of life, liberty, or property, without due process of law." U.S.Const. amend. V.
In accordance with the foregoing, this Court finds that count V of plaintiff's complaint states a valid cause of action and, as a result, defendants' motion to dismiss count V must be denied.
VI. VENUE FOR THIS ACTION LIES IN THE DISTRICT OF COLUMBIA.
A. 28 U.S.C. § 1391(b).
The individual defendants have also moved to dismiss on the grounds that venue is not proper in the District of Columbia. In light of both the principles recently explicated by the Court of Appeals for this Circuit in Lamont v. Haig, 192 U.S.App.D.C. 8, 590 F.2d 1124 (1978), and the limitations placed on plaintiff's suit by other portions of this opinion, the Court must conclude that venue is proper under 28 U.S.C. § 1391(b).
In Lamont v. Haig, 192 U.S.App.D.C. 8, 16, 590 F.2d 1124, 1132 (1978), the Court of Appeals examined section 1391(b)"s language declaring venue proper in the judicial district "in which the claim arose." The Court of Appeals indicated that district courts need not pursue a literalistic search for the One judicial district in which a party's claim "arose." Instead, when "sophisticated multistate activities of relative complexity are in issue," Id. at 17, 590 F.2d at 1133, a more flexible approach would be appropriate:
(W)here "the claim arose" should in our view be ascertained by advertence to events having operative significance in the case, and a commonplace appraisal of the implications of those events for accessibility to witnesses and records.
Id. at 18, 590 F.2d at 1134. The court further indicated that, even in situations where the evidence not in the parties' possession was most readily available "in areas in which none of the principal events in the suit occurred," the district court should accept venue "if the activities that transpired in the forum district were not insubstantial in relation to the totality of events giving rise to plaintiff's grievance." Id. at 18 n. 62, 590 F.2d at 1134 n. 62. In effect, the district court is charged not only with evaluating the contacts between the forum and plaintiff's allegations, but also weighing that forum's convenience for the litigants. Under this standard, the District of Columbia is clearly a proper judicial district for Mr. Thornwell's claim.
The exhibits which Mr. Thornwell has offered in support of his claim contain relevant correspondence involving Army officials headquartered in the District of Columbia. Also, in this forum, crucial Army studies on the effects of LSD were prepared and distributed. From Washington, D.C., Cyrus Vance, then general counsel to the Secretary of the Army, requested a specific review of Thornwell's case
and General Throckmorton and Lieutenant Colonel Brandenburg both supervised the review from that same Washington office.
Defendants Harold Brown, Cyrus Vance and other Secretaries of the Army acted in Washington, in their official capacity, to assume responsibility for the safety of subjects of LSD testing.
Also, in 1976, the Internal Revenue Service notified Mr. Thornwell from Washington that he might have been a victim of LSD experiments and the Service then neglected to follow up that notification. Complaint PP 50-53 (filed Oct. 2, 1978). There are, of course, far more contacts between the District of Columbia and the instant lawsuit, but a further review would serve no purpose. It is clear that numerous events which have "operative significance in the case," id. at 18, 590 F.2d at 1134, occurred in the District of Columbia. Moreover, it is equally clear that in terms of accessibility to witnesses, documents and other evidence, the District is as convenient as any other forum; indeed, it may well be the most convenient forum. Accordingly, with respect to the individual defendants, venue is proper under 28 U.S.C. § 1391(b).
B. 28 U.S.C. §§ 1402(b) & 1391(e).
For the defendant United States, the relative venue provision is 28 U.S.C. § 1402(b), which provides:
Any civil action against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.