United States v. Stanley

PETITIONER:United States, et al.
RESPONDENT:James B. Stanley
LOCATION:U.S. Army Medical Research Institute of Chemical Defense

DOCKET NO.: 86-393
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 483 US 669 (1987)
ARGUED: Apr 21, 1987
DECIDED: Jun 25, 1987
GRANTED: Dec 08, 1986

ADVOCATES:
Christopher J. Wright – on behalf of the petitioners
Richard A. Kupfer – on behalf of the respondents

Facts of the case

In February 1958, Master Sergeant James Stanley volunteered to participate in a military program ostensibly testing the effectiveness of protective clothing and equipment against chemical warfare. He spent a month at the Army’s Chemical Warfare Laboratories and during that time was secretly administered doses of lysergic acid diethylamide (LSD). As a result of his exposure to LSD, Stanley began experiencing hallucinations, memory loss, impaired performance of his job, and he engaged in domestic violence without remembering it later. He was discharged from the Army in 1969. In 1975, Stanley received a letter from the military asking for his cooperation in a study to determine the long-term effects of LSD and referring to his previous “voluntary” involvement in the 1958 tests. This letter was the first notification that Stanley received regarding the true purpose of the 1958 tests. He sued the government under the Federal Torts Claim Act (FTCA) and argued that there had been negligence in the administration, supervision, and subsequent monitoring of the drug testing program.

The district court granted the government’s motion for summary judgment and held that the government was not liable for negligence that occurred while Stanley was on active duty. The U.S. Court of Appeals for the Fifth Circuit affirmed but also held that the district court should have dismissed the case for lack of jurisdiction. On remand, Stanley amended his complaint to include claims that unknown officers violated his constitutional rights and argued that the constitutional claim did not fall under the service exception to the FTCA. The district court again dismissed the claim under the FTCA and rejected the government’s argument that the same exception barred Stanley’s constitutional claims. The government moved for partial final judgment because Stanley had not named individual defendants. Stanley filed a second amended complaint that named individual defendants, but before the court ruled on it, the Supreme Court decidedChappell v. Wallace, which held that enlisted military personnel may not file constitutional claims. The district court held that theChappell decision did not bar Stanley’s constitutional claims. The U.S. Court of Appeals for the Eleventh Circuit affirmed and held that recent precedent did not require Stanley’s FTCA claim to be barred.

Question

(1) Did the U.S. Court of Appeals for the Eleventh Circuit err in reinstating Stanley’s claims under the Federal Torts Claim Act?

(2) Did the U.S. Court of Appeals for the Eleventh Circuit err in determining that the Supreme Court’s decision inChappell did not bar Stanley’s constitutional claims?

William H. Rehnquist:

We will hear argument next in No. 86-393, the United States versus James B. Stanley.

Mr. Wright, you may proceed whenever you are ready.

Christopher J. Wright:

Mr. Chief Justice, and may it please the Court, in the 1950s the Army conducted tests regarding the effects of LSD, and respondent was one of the servicemen who participated in those tests.

He alleges that he was secretly administered LSD on four occasions in February, 1958, at the Army’s chemical warfare laboratories while he was supposedly testing gas masks, and that he did not know he had been given LSD until 1975, when the Army asked him to participate in a follow-up study.

He alleges that he sustained mental injuries as a result of taking the drug.

The procedural history of this case is noteworthy because it shows that respondent gave up on both of his claims during the course of this litigation.

Respondent’s original complaint, which alleged a claim under the Federal Tort Claims Act, was dismissed by the District Court on the basis that respondent had been injured incident to military service and the Fifth Circuit in 1981 held that that claim was barred by this Court’s decision in Feres.

Respondent filed an amended complaint that contained an FTCA claim and a Bivens claim as well, but the District Court dismissed the FTCA claim and granted final judgment in favor of the United States.

Respondent did not appeal the dismissal of the FTCA.

William H. Rehnquist:

Well, Mr. Weight, when you say granted final judgment, was there ever a judgment ordered in compliance with the separate document required?

What is that, Rule 58?

Christopher J. Wright:

Yes, Your Honor.

It is printed at Pages 54 to 55 of the appendix to our petition.

The judge entered… wrote an opinion which is printed at Pages 56 to 66, and then he entered this two-page order which says that

“there is no just reason for delay in expressly directing the entry of judgment in favor of the United States and that such relief is hereby granted. “

And I would like to note that “hereby granted” is printed in all capital letters.

That is about as plain a final judgment under Rule 54B as there can be.

William H. Rehnquist:

Well, but how about the separate instrument requirement of Rule 58?

Christopher J. Wright:

We contend that this order is a separate document.

William H. Rehnquist:

You say it satisfies both those rules?

Christopher J. Wright:

Yes.

The purpose of the rule is that there should not merely be some apparently dispository language in the opinion, as there is in the opinion that is printed on Pages 56 to 66, but that there should be a separate order that complies with the rule.

We asked, the government asked the District Court to enter this final order pursuant to Rule 54B dismissing the United States, and the District Court did.

Respondent didn’t appeal that dismissal as he was required to do, but instead filed a second amended complaint which is the live complaint in this case and which is printed in the–

Sandra Day O’Connor:

Before we leave that point, Mr. Wright, I guess the respondent argues that, on this same order you refer us to, in the next paragraph it says,

“Further ordered that the clerk enter final judgment in favor of the United States. “

and the clerk never did.

Christopher J. Wright:

–The clerk is required to enter a final judgment on the docket sheet, and we printed that in Page 2 of our joint appendix.

And if I may quote from it, it says

“Motion for partial final judgment by defendant USA is granted. “

Sandra Day O’Connor:

That is in the appendix also?

Christopher J. Wright:

That is in the joint appendix.

Sandra Day O’Connor:

Yes.

You didn’t read it all.

That is… the motion is granted.

Then it says,

“The clerk to enter final judgment in favor of the U.S.. “

Is that right?

Maybe I am reading the wrong thing.

Christopher J. Wright:

No, that is correct.

John Paul Stevens:

What does that mean?

Doesn’t it mean there is something more to be done?

Christopher J. Wright:

Well, we do not think that there is anything more to be done.

That is tracking the language of the order that the judge entered.

The judge said

“Final judgment is hereby granted. “

“The clerk shall enter the order. “

The clerk then said,

“Final judgment is granted, and repeated that. “

the clerk to enter final judgment.

“There was never any dispute that final judgment was entered. “

“In the letter that counsel for respondent wrote to the District Court after this Court’s decision in Chappell v. Wallace counsel said. “

You entered judgment in favor of the United States in this case a few months ago.

“The Eleventh Circuit in this case acknowledged at the beginning of its opinion that final judgment was entered in favor of the United States. “

“There has simply never been any real doubt about that. “

“And in the face of a statement in the order saying final judgment in favor of the United States is hereby granted, we just do not think there can be any real dispute on that. “

“And it is further shown that respondent understood that by the fact that he filed a second amended complaint that contained Bivens claims but no FTCA claim. “

Then this Court issued its decision in Chappell v. Wallace and respondent wrote the letter to the District Court that we reprinted in our reply brief at the petition stage that says that counsel was

“ethically compelled to cite to the Court a recent Supreme Court decision which we regret to say is apparently dispositive of this case. “

The District Court refused to accept that concession, although it did certify its order to that effect for interlocutory appeal.

Christopher J. Wright:

The Court of Appeals affirmed that decision and then, ignoring the fact that respondent had abandoned his FTCA claim, resurrected that claim as well.

We contend that the Court of Appeals should have dismissed respondent’s Bivens claims and should not have resurrected the FTCA claim because this Court’s decisions in Feres and Chappell compelled the conclusion that servicemen injured incident to military service may not pursue those sorts of claims.

We realize that under the result that we contend is mandated by this Court’s decisions respondent is barred from challenging an Army program that was poorly conducted and that may have harmed him, but respondent is not without a remedy.

As we have explained in our briefs, if he was injured as a result of this program he may obtain veterans’ benefits, and the Army is not vindicated by a decision holding that he may not pursue damage actions.

The Senate has studied the Army’s LSD testing program and issued a critical report concerning that program that included instructions to the Army as to how to conduct future chemical weapons tests.

Concerning the final judgment entered in favor of the FTCA claim I would like to note only that the whole point of Rule 54B is to resolve a case as to certain issues or as to certain parties, and that this case was resolved in favor of the United States when respondent decided not to appeal that final judgment.

In addition I would like to note that the Eleventh Circuit’s jurisdiction in this case was based on its acceptance for interlocutory appeal of the question certified, which was the Bivens question, and the FTCA question was clearly beyond the scope of that certified question.

William H. Rehnquist:

Are there decisions in the Courts of Appeals as to whether or not the jurisdiction of the Court of Appeals on a certified question extends only to the certified question or whether its jurisdiction extends to the whole case?

Christopher J. Wright:

There are such decisions.

We have cited a number of them.

It is sometimes difficult to draw precisely the line as to where the certified question ends and other matters begin, but I know of no case that would even come close to the situation here where it is an order as to another party on another claim.

We do not know of any case that would allow a court to extend its jurisdiction on a certified question under these facts.

Finally on that point I would just like to note that the Eleventh Circuit did not even appear to be aware that there was a jurisdictional problem, although we did raise that in our rehearing petition that they denied.

In any event, as to the FTCA claim, it is clear that that claim is barred by Feres because respondent was administered LSD incident to his military service.

In its 1981 decision in this case, the Fifth Circuit noted that in 1958 respondent was a master sergeant in the Army who had volunteered to participate in an official Army chemical warfare program, that the program was conducted on an Army base by and for the benefit of the Army, that respondent received military pay during the month that he participated in the program, and that he was promised a letter of commendation for his participation.

I might add as well that in the second amended complaint, Paragraph 11, respondent says that he was on active duty during that month.

No court disagreed with the conclusion that respondent was participating in this program incident to his military service, not even the Eleventh Circuit.

It instead held that an FTCA claim is not necessarily barred because the injury on which the claim is based occurred incident to military service.

We argued in Johnson, the FTCA case involving a helicopter crash that was argued in this Court in February, that this Court held in Feres shortly after the FTCA was enacted that Congress did not intend to waive sovereign immunity for torts occurring incident to military service, and that there is no reason to revisit that construction of the statute which Congress has not seen fit to alter in 37 years.

I will not repeat that argument today but do want to note that this case represents a significant extension of the Eleventh Circuit’s erroneous decision in Johnson which distinguished Feres on the basis that the tort feasor there was a civilian air traffic controller who is not in the military chain of command but was instead employed by the Department of Transportation.

There is no question that the program under which respondent was administered LSD was an Army program.

It was developed and conducted by the Army Intelligence Board and the Army’s chemical warfare laboratories where the tests were conducted.

While respondent has named some civilian doctors in his second amended complaint they were obviously working for the Army in this case.

The courts below also erred in refusing to dismiss respondent’s Bivens claim.

The letter that counsel for respondent sent to the District Court after this Court issued its decision in Chappell v. Wallace explained that this Court

“held that the same principles which underlie the Feres doctrine and which require absolute immunity from an FTCA action also require immunity from a Bivens constitutional action against Federal officers. “

That is an accurate description of this Court’s holding.

Except for the courts below, all of the other courts of Appeals that have considered the question have understood that this Court barred servicemen from bringing Bivens suits against their superiors and did not authorize any case by case inquiry of the sort mandated by the court below.

That is absolutely clear from this Court’s opinion in Chappell which reversed the Ninth Circuit opinion that did not authorize the plaintiff to bring their Bivens action but instead remanded the case for application of certain tests similar to those set out in the Fifth Circuit’s Mindes v. Seaman case to determine whether the plaintiffs there could proceed.

This Court rejected that balancing approach, holding instead that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations, a holding that the District Court here described as an overbroad statement.

Christopher J. Wright:

The courts below relied on this Court’s statement in Chappell that military personnel are not barred from all redress in civilian courts for constitutional wrongs.

The courts obviously misread that statement, which was followed by citations to three cases that did not involve claims for damages.

As at least three other Courts of Appeals have concluded, this Court in Chappell clearly held that servicemen may not pursue Bivens actions while indicating by the statement relied on by the courts below that in some cases they may grant other sorts of relief.

We do not think that courts should frequently grant other sorts of relief to military personnel, but we acknowledge that this Court has left open that possibility in extreme cases.

Proceeding to their case by case inquiry, the courts below concluded that the concerns underlying Feres and Chappell are not relevant here because respondent was not ordered to take LSD.

While we do not think that any case by case inquiry is warranted, it is nevertheless clear that the courts below erred in reaching their conclusion.

The concerns underlying Feres are not limited to cases involving direct orders, and it is not clear where the District Court got its contrary idea.

This Court’s decision in Feres nor this Court’s decision in Shearer nor most of the Feres cases in between involved any sort of direct order.

This Court’s made clear that the rule of Feres is based on the principle that the military is under the control of the political branches and that the judiciary should generally not review military decisions since such litigation would undermine military discipline and effectiveness.

This Court’s decision in Shearer is particularly instructive.

The Court there concluded that a claim against the Army based on its alleged failure to discharge or supervise a serviceman who had previously been convicted of manslaughter would require the courts to review a decision of command and would call into question basic choices about the supervision and control of servicemen.

It could not be more clear that this case involves such questions.

The heart of respondent’s claim is that the Army should not have been using servicemen to study the effects of LSD and that it made a number of mistakes in the way it conducted those tests.

Respondent is therefore challenging decisions of command and calling into question basic decisions made by the Army in the 1950s concerning the use of military personnel.

His claims are therefore barred.

If there are no further questions, I would like to reserve the remainder of my time.

William H. Rehnquist:

Thank you, Mr. Wright.

We will hear now from you, Mr. Kupfer.

Richard A. Kupfer:

Thank you, Mr. Chief Justice, and may it please the Court, if the plaintiff in this case had volunteered for LSD drug testing on behalf of the Army, the government would have a much stronger argument that this was something that was incident to his military service, but that is not what happened in this case.

The plaintiff did not volunteer for LSD drug testing nor was he under orders to arrive at Edgewood Arsenal for LSD drug testing, nor was he even on his regular duty status for that one-month period of time that he was up at Edgewood Arsenal.

With the Courts indulgence, what I would like to do if I could is spend the first few minutes just discussing some of the unique facts of this particular case which I think make this case unlike any other Feres type of case which has been before this Court previously.

William H. Rehnquist:

Did he volunteer?

Richard A. Kupfer:

He did not volunteer for LSD drug testing.

He did not.

The plaintiff volunteered in this case for a program that was ostensibly supposed to test and develop gas masks and protective clothing.

That was the purpose of the program.

That was the lure to attract Mr. Stanley up to Edgewood Arsenal.

There was no compulsion for him to go up there.

When he did go up there they went through the charade of having him test gas masks and protective clothing, but the real purpose of this program was to unwittingly subject the plaintiff to LSD which was secretly added to his drinking water while he was up at Edgewood Arsenal.

William H. Rehnquist:

Is it alleged in the complaint that he and he alone received the LSD or that others in the same program received it?

Richard A. Kupfer:

We have not alleged that others in the same program received it.

We just allege that he alone received it.

At any time that he desired he could leave the testing laboratories.

Harry A. Blackmun:

Did you say that, that he alone, or did you just say that he received it?

Richard A. Kupfer:

We just alleged… we did not make allegations that other soldiers also received it, which was Justice Rehnquist’s question.

Our allegations go entirely to this one claim.

Harry A. Blackmun:

Well, I think there is a lot of difference between saying that he alone received it or that he received it.

I just wanted to be certain what you allege.

Richard A. Kupfer:

I am not saying that he was the only person who received it.

I am just saying that we have not made any allegations in our complaint that go outside the facts of Mr. Stanley’s situation up at Edgewood Arsenal.

At any time he desired he could leave that program.

There is no evidence in the record as to what his technical duty status was while he was up at Edgewood Arsenal.

There is no evidence that there was any disciplinary relationship between the plaintiff–

Byron R. White:

xxx was he?

Richard A. Kupfer:

–There is no evidence what he was on.

There is no… I don’t believe the record indicates–

Byron R. White:

You mean he went up there for rest and recreation?

Richard A. Kupfer:

–No, he went up there to volunteer for a program that was misrepresented to him.

He went up to volunteer for a program–

Byron R. White:

Whatever the program was, it was part of the Army, though, wasn’t it?

Richard A. Kupfer:

–Well, whether or not that was an Army program is also in dispute because the complaint alleges otherwise, okay.

The complaint in this case–

Byron R. White:

How did anyone ever ask him to volunteer or give him the opportunity?

Who asked him, or who made it available to him?

Richard A. Kupfer:

–There was a notice that was posted at his Army barracks–

Antonin Scalia:

Why are you suing the Army if you are not sure it is an Army program?

I thought that everyone was in agreement on that.

Richard A. Kupfer:

–We are not.

We are not suing the Army.

We are suing the United States, and we are suing civilian officers.

Richard A. Kupfer:

We are suing doctors who are civilians.

We are suing the state university which is alleged to have been an independent contractor.

We are suing individuals who we say were employed by Federal civilian agencies such as but not limited to the CIA that we say implemented it and was part of this program.

We are not suing Army officers as part of this program, which is again one of those unique facts that I started out saying which I think distinguishes this from–

William H. Rehnquist:

He didn’t get leave, did he, from Army duty for this program?

Richard A. Kupfer:

–The complaint alleges that he was no longer… he was no longer on his active duty service for the time he was up there, that he returned back to his active duties after the month.

I don’t believe there is anything in the record as to what his duty status was when he was up here.

That is a question mark, frankly.

William H. Rehnquist:

But he was still in the Army?

Richard A. Kupfer:

He was still in the Army, yes.

Now, Mr. Wright has pointed out in his brief that while he was still receiving military pay while he was up there for that one month, but a soldier who is on furlough receives military pay for one month also.

This Court has held in the Brooks case that a soldier on furlough is allowed to sue the government under the Federal Tort Claims Act for negligence.

The plaintiff in this case was given false information as to the program.

The dosage of LSD that he received is unknown at this point.

It was apparently substantial, judging from his reactions to it.

He experienced the usual hallucinations that a person experiences, but he had no idea what was happening to him.

For that one month period of time nobody told him what was happening to him.

When he left the Army base nobody debriefed him.

He went back to his active duty services.

He continued to have flashback recurrences on his active duty services.

He went for months and years doubting his own sanity but he was afraid to say anything to anybody for fear that he would be discharged from the military service.

The complaint alleges that… and I think the damages are important in this case because of the alternative remedy that the government alleges, which is why I am getting into the damages.

The complaint alleges that on one occasion in fact he even awoke late at night in a rage without any provocation, beat up his wife, and beat up his children, and threw the TV through the wall and went back to sleep and woke up again the next morning and had no recall of that event.

The complaint also alleges that as a result of the LSD testing he was unable to officially perform his duties in the military.

He would be absent without leave for period of time and would suddenly show up, and when he was questioned as to his whereabouts he couldn’t, explain his whereabouts, and he was eventually reduced in rank in the military because of inefficiency.

I should mention that up until the drug testing he was in the Army for about seven years and had an unblemished record in the Army, and he had intended to make the military his career.

It was not until seven years after he retired from military service, which is 18 years after the drug testing, that he finally got a letter from Walter Reed Medical Center telling him for the first time that he had been an unwitting LSD subject back in the late 1950s, and the purpose of that letter was to solicit him to go back up to Walter Reed now to do follow-up studies of the long-range effects of LSD.

When he learned that he filed an administrative claims with the United States Army Claims Service.

Those administrative claims were denied by the Claims Service with the statement that there is no appropriation available to the Army to pay this kind of a claim, and the Army told him, if you are dissatisfied with this determination you have six months to file a lawsuit in Federal District Court, which is what he did.

They did not tell him go seek veterans’ benefits.

Richard A. Kupfer:

They told him to file a lawsuit in Federal Court.

Now, we have alleged, to answer the question asked earlier–

Antonin Scalia:

He made his claim with the Army?

Richard A. Kupfer:

–He made his claim with the Army Claims Service.

Antonin Scalia:

So he thought the Army had had something to do with the program at that stage.

Richard A. Kupfer:

Initially–

Antonin Scalia:

You are now telling us you are not sure that it was even the Army.

Richard A. Kupfer:

–Well, we are alleging that the program was… certainly the Army was involved in the program.

We are claiming the program was actually implemented by nonmilitary defendants.

The case is coming up to appeal just on the pleadings because there has been… this is not a summary judgment.

There is no evidence in the record.

The case got to the Eleventh Circuit on a motion to dismiss the complaint based on the allegation–

Antonin Scalia:

I assume that all you are telling us is in the record, all this stuff you are telling us is not all extra-record material.

Richard A. Kupfer:

–Everything I am telling you is either in materials that were filed with the District Court when there was an earlier summary judgment motion years ago, there were some documentary materials filed with this Court, and what I am telling you also comes out of the allegations in the complaint, so it is in the record.

I have indicated who we are suing in this case.

We are not… the complaint itself does not purport to sue superior military officers within the disciplinary context that this Court was speaking about in the Chappell versus Wallace case and on the government’s motion to dismiss the complaint as the allegations of the complaint should be deemed to be true.

The CIA’s own records about their involvement in drug testing programs in general back in the fifties were unfortunately destroyed back in 1973 pursuant to orders of the director of the CIA who is also a defendant in this lawsuit, and we have not been able to engage in discovery to any great extent in this case because the District Judge entered several orders protecting the government from discovery until we disposed of the Feres issue.

What we are asking at this point is the opportunity to go back to District Court and to prove the allegations that we are making in our complaint.

It is our position that this case falls outside of the typical Feres factual paradigm is the phrase that was used by the Eleventh Circuit in this case, and that this is not the type of claim that would require the judicial involvement into a sensitive military issues at the expense of military discipline.

The very worst fact that we have to deal with in this case is that this program, whoever implemented the program, occurred on an Army base, and there is no dispute about that.

Edgewood Arsenal is an Army base.

But this Court held in the Shearer case that the site of the incident is not nearly as important as whether the case, taking the case in a complete perspective, whether that case requires a civilian court to second guess the wisdom of military decisions, and this Court said that Feres today is best explained by the military discipline rationale, and that can’t be reduced to just a few bright lines rules as to whether an incident occurred on an Army base or off of an Army case.

Now, the lower courts in this case, both the District Court and the Circuit Court of Appeals, have held that this is clearly not just your garden variety Feres type of case.

The facts of this case read like they have been lifted out of a novel by George Orwell where even a person’s own creative thought process is tinkered with by the government, and altered, and controlled by the government, and we believe that the Constitution of the United States if it guarantees anything surely guarantees the right of all Americans to control their own mind and to control their own intellectual thought process and the content of their own bloodstream.

That is where these constitutional claims come from.

Byron R. White:

Would it have made any difference if when they were interviewing him they said, by the way, will you drink this glass of liquid, it has LSD in it, we just want to see how it affects you?

And he just, down he went?

Richard A. Kupfer:

That would have made a substantial amount of difference because then you wouldn’t have a violation of the Nuremberg Code, because you wouldn’t have an unwitting test subject.

You would have a soldier who was then volunteering for what he understands to be a program to test LSD drugs.

That would make all the difference in the world in a case like this, yes.

Richard A. Kupfer:

Again, it is undisputed, I believe it is undisputed–

Byron R. White:

I figure you probably will would have been suing for giving him LSD without telling him what it might do to him.

Richard A. Kupfer:

–Well, the Army says that back in the early or late fifties that they themselves did not know what it would do to him.

Exactly.

Richard A. Kupfer:

In fact, they say they thought that it would just be temporary, the effects of it.

Byron R. White:

So if they had said, by the way, this is LSD, he would have shaken his head and said, so what?

Nobody knew was LSD was.

Richard A. Kupfer:

Then, whether or not there would be a negligence cause of action, I am not sure there would be a constitutional cause of action.

That is the point because, you see–

Byron R. White:

Well, how about the tort claims?

Richard A. Kupfer:

–Well, on the tort claims, the tort claims come under the Federal Tort Claims Act.

We say that because this type of program was patently illegal, first of all… the Nuremberg Code prohibits involuntary human experimentation.

William H. Rehnquist:

Does the Nuremberg Code have the effect of law, civil, positive law in the United States?

Richard A. Kupfer:

Well, it has been adopted by the Chief and the Secretary of the Army and the Navy and the Air Force, and it therefore is part of the Army’s own regulations.

That goes to the question, do we have to second guess the wisdom of military decisions?

The military itself has already made its own regulations in this case, not only through the Nuremberg Code, but the Inspector General of the Army has issued a report on these drug experiments and the Inspector General himself has found that this program was completely unauthorized by any existing Army regulations.

William H. Rehnquist:

That is true of many claims that are barred by the Feres doctrine.

There may be something contrary to regulations, and the fact that it is contrary to the regulations doesn’t avoid the Feres doctrine.

Richard A. Kupfer:

We also think as one additional–

William H. Rehnquist:

Does it?

Richard A. Kupfer:

–The fact that it–

William H. Rehnquist:

Well, does the fact that our military conduct violates regulations avoid the Feres doctrine?

Richard A. Kupfer:

–It doesn’t necessarily avoid it, but it is a significant factor because the question is whether or not… do civil courts have to second guess military decisions?

Antonin Scalia:

We don’t really know that this was in violation of Army regulations anyway, because you have told us that we don’t really know that the Army was conducting this.

And if the Army wasn’t conducting it, I presume whoever was conducting it didn’t have to comply with Army regulations.

Richard A. Kupfer:

The Army was… we are saying that it was not initially implemented by the Army.

It did happen on an Army base.

There were Army officers there.

There were civilian officers there.

The Inspector General himself has found that these–

Antonin Scalia:

Army regulations apply wherever there are Army officers?

Is that how the regulations read?

I assume they only govern the activities of the Army.

Richard A. Kupfer:

–The Inspector General felt that the programs were… that this was an unauthorized program, that the Army was involved.

We don’t know–

Antonin Scalia:

You think it was an Army program, don’t you?

Richard A. Kupfer:

–We don’t know.

Antonin Scalia:

We don’t know.

Then I don’t know what you are talking about Army regulations for.

Richard A. Kupfer:

Well, the regulations of the Army should at the very least govern the Army in whatever program the Army, if it is going to have Army personnel involved in a program, even if the personnel is implemented by a separate branch of the government it would seem that the Army should follow its own regulations.

We have alleged that this does violate the Army’s own regulations.

We have also alleged one other important–

Byron R. White:

And why did it?

Why did it?

Richard A. Kupfer:

–Why did it?

Because it involved unwitting human experimentation which violates the Nuremberg Code and because there were no regulations according to the Inspector General which even authorized this type of a program for the Army.

Byron R. White:

So the regulations just bar any kind of experiments with–

Richard A. Kupfer:

Involuntary human experiments.

Thurgood Marshall:

–Is the government responsible for unauthorized programs?

Richard A. Kupfer:

The government… we think the government is responsible when government agents violate within the course of their employment for the government violate constitutional rights of servicemen or civilians, that the government is responsible if the case itself does not fall within the typical Feres factual paradigm, one military officer suing another military officer for negligence within the course of–

Thurgood Marshall:

Well, this military officer walks up to a guy and says, hey, I am going to shoot you with some LSD.

Is the government responsible for that?

Richard A. Kupfer:

–We think that the government is responsible for that.

Thurgood Marshall:

Really?

Richard A. Kupfer:

Particularly when the government… well, if the soldier–

Thurgood Marshall:

You don’t “particularly” with my questions.

You use what you have.

Without more, the government is responsible?

Richard A. Kupfer:

–If the government… if the government–

Thurgood Marshall:

Without more.

Thurgood Marshall:

Your “if” is out.

Richard A. Kupfer:

–Well, then, your hypothetical assumes that he was told that it is LSD.

Thurgood Marshall:

That he is what?

Richard A. Kupfer:

That the serviceman was told that it was LSD he was being shot with?

Thurgood Marshall:

Yes.

Richard A. Kupfer:

Okay, under those circumstances I don’t know if there is a tort claim, unless it maybe would be failure to warn–

Thurgood Marshall:

Of course.

That is my whole–

Richard A. Kupfer:

–perhaps a failure to warn of what the effects of the LSD–

Thurgood Marshall:

–My point is, up until now you have not been able to show that this was authorized.

Richard A. Kupfer:

–We allege that it was not authorized, in fact, the program.

We also allege that the government, that within the context of the Feres doctrine, there is room for equitable principles, and that there is room for an estoppel against the government when the government is engaged in this type of unconscionable conduct and when a military serviceman detrimentally relies upon the government telling him that he Is volunteering for one kind of a program all the while just intending to secretly mix LSD with his drinking water under these limited circumstances, that the government should be held to be estopped to even argue that this was incident to military service.

Now, this Court has never intimated, I don’t believe, in any Feres case, that equitable estoppel cannot apply.

William H. Rehnquist:

What was the last case in which we held the government was estopped?

Richard A. Kupfer:

The last case was a case where actually the majority left the question open as to–

William H. Rehnquist:

So that really wouldn’t be an answer to my question then, would it?

What I asked you was–

Richard A. Kupfer:

–This Court has never held… this Court has never held–

William H. Rehnquist:

–We have never held the government was estopped.

Richard A. Kupfer:

–That’s true, but in Heckler versus Community Health the majority opinion of this Court held that there may be a case some day where the public interest would warrant an estoppel against the government.

This Court–

William H. Rehnquist:

0 xxx.

Richard A. Kupfer:

–I say this is it.

I say this is it, and I think that by finding an estoppel in this case, Number One, you would not be undermining the viability of the Feres doctrine in general because this is a very limited case.

You would not be opening up a floodgate for other litigants, only those litigants that are similarly situation to Mr. Stanley, and if this program had been what it was described to be, if it had been really a program to test gas masks and protective clothing, and if Mr. Stanley had been injured inhaling fumes from a gas mask, then again the government would have a much better argument that this was incident to his military service, this is what he volunteered for, but when we say that when the government intentionally misleads its own servicemen to volunteer for one kind of a program and that is not the program that he is really volunteering for, that the government should be estopped to argue that this is something that is incident to his military service.

At any rate, we think the circumstances of this case do not involve the type of close military judgment calls that the Feres doctrine was really designed to insulate from review, and we don’t believe that the prosecution of this claim would undermine the disciplinary structure of the military to allow it to proceed.

As far as the Bivens action, even if the Feres doctrine does preclude our claim against the government it would not necessarily preclude the Constitutional claim against the individual defendants.

The government relies upon Chappell versus Wallace.

William H. Rehnquist:

0 xxx.

Richard A. Kupfer:

Yes, this is the… I am getting to the Bivens argument now, Your Honor.

Richard A. Kupfer:

This case is much different than the Chappell or Chappell case.

The Chappell case involved soldiers who were clearly superior military officers who were on board a Navy combat vessel along with the plaintiffs, and they were being sued specifically for making certain command decisions and taking certain disciplinary actions that were alleged to be racially motivated.

Now, those facts are radically different from the facts that we have involved in this case, and this Court in Chappell specifically cautioned that the opinion should not be read to mean that military personnel are barred from seeking all redress in the civil courts for all kinds of constitutional violations that they may suffer in the course of military service.

I think a fair reading of the Chappell case would lead the Court to believe that was really intended to be limited to the facts that were before this Court in that case.

Now, the government here says that this case could involve an inquiry somehow into military decisionmaking somewhere along the line, maybe there was some military decisionmaking involved here, but if you accept that, if that alone precludes a Bivens action, then what you are saying is that no matter what kind of a wrongful act is perpetrated on an active duty serviceman, the individual defendants can always remain immune simply by asserting that their act was the result of military decisionmaking.

Boom, they are immune.

And to accept the government’s–

Antonin Scalia:

xxx think that we should instead hold that they are only immune no matter what kind of wrongful act if they are superior officers?

I mean, does that strike you as less heinous?

Richard A. Kupfer:

–It strikes me as–

Antonin Scalia:

I mean, you know, it is… either line sounds pretty arbitrary, doesn’t it?

Richard A. Kupfer:

–I am just… I am taking the view that a–

Antonin Scalia:

The gravity of the act has nothing to do with where you draw the line, it seems to me.

Richard A. Kupfer:

–The act?

Antonin Scalia:

The gravity of the act has nothing to do with whether you draw the lines with superior officers or not.

Richard A. Kupfer:

I think if it involves a potential estoppel situation it should.

I think that is where you should draw the line.

There has to be… unless you draw the line no place then surely… then the situation that you are left with is that there is no, absolutely no limit to the immunity doctrine without an arbitrary line some place, and a line doesn’t have to be so arbitrary, I think, when you have facts like this.

I think when Federal officers willfully and knowingly violate the constitutional rights of active duty servicemen, to say that there is absolute immunity in that type of a situation, Number One, that is not going to promote discipline in the military.

The whole purpose of the Feres doctrine is to promote discipline.

Byron R. White:

xxx beats up a subordinate, and really beats him up.

Is there a Bivens action?

Richard A. Kupfer:

I think that there could be a potential Bivens action.

If an officer, let’s say an officer kills an active duty serviceman.

Byron R. White:

Maybe he did it deliberately, he just deliberately beats him up.

He is not negligent or anything.

He just does it on purpose.

And it is in violation of all the regulations.

Is there a Federal Tort Claims Act?

Richard A. Kupfer:

Whether there is a Federal Tort Claims Act because of certain exclusions for some intentional torts in assault and battery is hard to say.

Richard A. Kupfer:

Whether there should be–

Byron R. White:

Well, let’s forget that.

Do you think the Feres doctrine would bar that?

Richard A. Kupfer:

–I don’t think the Feres doctrine should because–

Byron R. White:

Well, does it or not?

Has it been held that or what?

Richard A. Kupfer:

–I don’t know that there has been a case of intentional beating up of an inferior officer to test that, but I do think this.

I think that when you consider the purpose of the Feres doctrine, which is to maintain discipline, okay, and you say that superior officers can do anything they want to active duty servicemen, and they need never fear of being held accountable for damages in the civil justice system, that is not going to promote discipline in the military.

That is going to create chaos.

Antonin Scalia:

What do you think the Feres doctrine says?

They can only do what, moderately bad things?

Richard A. Kupfer:

No, I think the Feres doctrine should apply in cases where the facts of the case are such that if you allow that particular type of case, if it falls outside a typical Feres situation, if you allow that kind of case to go into the civil justice system, then it will have a negative impact on discipline in the services.

Antonin Scalia:

It always has a negative impact.

You don’t think the officer is going to admit he beat him up.

He is always going to say, I didn’t beat him up.

I mean, you are talking lawsuits here, not acknowledged guilt.

Richard A. Kupfer:

If you allow–

Antonin Scalia:

And it is going to get into the civil court system whether you are suing him for beating him up or whether you are suing him for calling him a name.

In either event it is going to disrupt the military discipline, isn’t it?

Richard A. Kupfer:

–I think if you allow those kind of claims to go forward I don’t think it will disrupt discipline.

In fact, I think it will promote discipline because then inferior servicemen, enlisted men can then obey military orders without any fear that there is going to be some kind of undetected harm that is going to befall them, like swallowing LSD.

I think you have got to look at the facts of the case.

I think you have to consider discipline not only at the level of the enlisted man, but I think you need to consider discipline at the higher echelon levels of the government as well.

The government’s interpretation, strict interpretation of the Chappell doctrine would also mean that an American servicemen like Mr. Stanley, a sergeant in the Army, would be actually reduced to a position inferior, even to a convicted and incarcerated Federal prisoner who is allowed to bring an FTCA action and a Bivens action against prison officials.

Thurgood Marshall:

Why not limit Feres to medical?

Richard A. Kupfer:

Limit it to medical malpractice cases?

I think Congress is trying to open it up for medical malpractice cases, in fact, but I think that Feres should be limited to those cases where the rationale of the doctrine applies.

That is the cases that it should be limited to.

It should be limited to those cases where the rationale of the doctrine applies.

Veterans’ benefits were mentioned briefly as being an–

Byron R. White:

It certainly applies in negligence cases, doesn’t it?

Richard A. Kupfer:

–It applies in most negligence cases.

Yes.

I don’t think it applies at all in this kind of a case.

I don’t think it–

Byron R. White:

How does that ever affect discipline?

If some officer just is negligent?

Richard A. Kupfer:

–I have trouble realizing how a medical malpractice case–

Byron R. White:

So when would Feres ever apply?

It doesn’t apply to intentional things, it doesn’t apply to negligence.

Richard A. Kupfer:

–Where it should apply most often is in cases where a soldier is suing a superior officer for orders that were given, or like in the Chappell case, for giving them poor performance evaluations and for keeping them from being promoted within the Navy and for command decisions in the military services, surely it is clear in those cases that the military courts are the proper forum to hear those kind of cases, but when you have a fact situation which involves widespread egregious conduct… the government admits, they admit to at least a thousand servicemen that they did this to.

They have admitted this in their brief.

Byron R. White:

Well, a serviceman sues, claiming that he was riding in an airplane with his superior, who was piloting, and the superior was just negligent, and they crashed, and he was hurt.

Richard A. Kupfer:

There is a stronger argument for applying the Feres doctrine in that kind of a case.

Byron R. White:

What military discipline is involved in that?

Richard A. Kupfer:

Well, because then if upper level servicemen had to be afraid all the time of any negligent acts that they might take, that they might be hauled into a civil court, they would be afraid to do anything.

They would have such a chilling effect on higher level servicemen that certain negligence cases it does comport with the rationale of Feres, but an intentional violation of constitutional rights, if you are taking the Feres doctrine and you–

Byron R. White:

Or anything that could be… all you have to do to get around it is to allege in your complaint that it was intentional?

Richard A. Kupfer:

–Well, this is not just a matter of artful pleading in a case like this.

We… this obviously he was given LSD.

Nobody accidentally dropped LSD in his drinking water.

He was intentionally given LSD.

And according to the… and he was intentionally denied the knowledge that he was given LSD.

I guess artful pleading cases would have to be separated from the true intentional tort cases or intentional constitutional violation cases.

But I think that when you have a situation like this where there also is no adequate remedy by veterans’ benefits… if I could just one spend one moment on that, the government has indicated that they think that veterans’ benefits in this case would be an adequate alternative remedy, and therefore that is another reason why he shouldn’t be able to sue.

You need… it is necessary to consider the type of injury that has been done here.

Mr. Stanley alleges that he has been deprived of some of his most basic constitutional rights, including the right to control his own mind and his own behavior and the right to control his own intellectual thought process.

He suffered mental anguish for all the years that he thought he was going crazy.

He suffered the disruption of his Army career.

His family and marriage has been dissolved and broken down.

Richard A. Kupfer:

There are no veterans’ benefits that can compensate for these kinds of injuries.

Veterans’ benefits will also not serve a deterrent purpose, which is one of the most important purposes behind the Bivens action, is to discourage this type of shocking abuse of power by Federal officials.

Veterans’ benefits do not do that.

At this stage it is almost 30 years after those 1958 drug experiments.

About the only thing that veterans’ benefits could do for Mr. Stanley now maybe is pay for any future psychiatric care that he might need, but he is not having flashbacks any more.

That will be nil.

Veterans’ benefits will not do anything for him.

In the Chappell case this Court found that the administrative remedies would be adequate again.

In that case those plaintiffs were saying that they were discriminated against and this Court found that they could administratively receive pay increases and retroactive pay increase and promotions and they could receive everything administratively that they were asking for in the civil lawsuit.

You also said on the same day that Chappell was decided in Bush versus Lucas that before an alternative remedy is considered to be a special factor militating against allowing a Bivens action, it should at least provide meaningful remedies for a plaintiff, meaningful remedies.

We have no meaningful remedies provided in this case.

The VA, the Veterans Benefits Act is not… was never meant by Congress to be an exclusive remedy.

There is no exclusive remedy provision.

In fact, that Act expressly recognizes the possibility of double recovery because there is a provision in the Veterans’ Act which provides a method for offsetting cumulative recoveries, and this Court held in the Brooks case and the Brown case that a veteran who receives VA benefits is still not necessarily precluded from suing.

One important point in conclusion also is that in a Bivens action defendants are always entitled to raise a qualified immunity.

If they say they acted in good faith and if they reasonably believed their conduct to be lawful, just like in a civil rights case, then they are immune, but if this Court gives these defendants under these kind of facts an absolute immunity for the act that they have done, no matter… the message will be that no matter what a serviceman does to a lower echelon servicemen, they need never fear of being brought into the civil justice system, and I think that after all the progress that has been made since Bivens in the last 15 years with Bivens and Carlson versus Green and United States versus Muniz and so on, to recognize an absolute immunity from liability in an egregious case like this would be a step in the wrong direction, and we ask this Court to affirm the Eleventh Circuit’s decision.

Thank you.

Thank you, Mr. Kupfer.

Mr. Wright, you have 14 minutes remaining.

Christopher J. Wright:

I have just a few comments, please.

We have been faced with something of a moving target on the facts here, and I would just like to quote from the second amended complaint which is reprinted in the joint appendix that in Paragraph 11 on Page 6 says that respondent was 14 says that the defendants were acting under color of a covert Federal Army program, and that it was the official policy that is responsible for the deprivation of his rights.

We take that to mean that this was an Army program.

We do not think that there is any real question that it was an Army program, and respondent has–

Byron R. White:

xxx the regulations giving him LSD or not?

Christopher J. Wright:

–No, but–

Byron R. White:

No what?

Christopher J. Wright:

–I would like to mention that the respondent has mischaracterized that.

The Inspector general did issue a report which is not in the record in this case, it is not a public document, which admits that a number of violations were made, but nowhere suggests that testing chemical weapons was wrong.

It does suggest that the consent forms used here and the debriefing that was done here was not done the way, it should have been done, but no, there are regulations that say that chemical weapons tests can be done.

Byron R. White:

Was there any consent form involved in this?

Christopher J. Wright:

We don’t have the facts on this.

The Senate report concerning the program prints one of the sorts of consent forms that were used in this program which the Senate criticized, but in any event–

Thurgood Marshall:

xxx never had a program of experimenting with LSD or did it?

Christopher J. Wright:

–I am sorry, Your Honor?

Thurgood Marshall:

Did our government have a program of experimenting with LSD?

Christopher J. Wright:

Yes, it did.

Thurgood Marshall:

On soldiers?

Christopher J. Wright:

Yes, it did.

Thurgood Marshall:

That is admitted?

Christopher J. Wright:

Yes.

There is no question about that.

Concerning the volunteer point, I would like to mention only that we have returned to a prior stage.

The Fifth Circuit discussed respondent’s volunteer point in its 1981 opinion in the portion reprinted at Pages 72 to 74 of the appendix to the petition, and we think that makes it perfectly clear that the fact that he was or wasn’t a volunteer, I am not sure exactly what respondent’s point is, doesn’t matter in this case.

As a final point, an estoppel argument was raised in respondent’s argument.

That has never been raised in this case at any point before, including the briefs in this Court.

Byron R. White:

Are there cases that bar a Federal Tort Claims Act for intentional torts?

Christopher J. Wright:

Well, there is an intentional tort exception to the Federal Tort Claims Act.

Byron R. White:

Yes.

Christopher J. Wright:

I think it is 2680(h).

Byron R. White:

Right.

And so it would just be sovereign immunity then?

Christopher J. Wright:

The government has not waived sovereign immunity for intentional torts.

Byron R. White:

How about suits against the officers?

Christopher J. Wright:

I am not sure that an intentional tort of the sort somebody hit somebody has actually come up.

Chappell v. Wallace, I suppose race discrimination is a form of intentional tort although it is not your run of the mill form of intentional tort.

William H. Rehnquist:

Well, is there any Federal jurisdiction over an ordinary tort claim of one military personnel over another?

It is not really a 1983 action.

It is not a Federal Tort Claims action because the Federal Tort Claims Act provides that the United States is the defendant in substitution for everyone else.

Christopher J. Wright:

That is right.

In a case where one serviceman happened to hit another off base at a bar or something I suppose–

Byron R. White:

What about on base?

Christopher J. Wright:

–I am sure we would get into disputes about these matters, but one could think that that would be a normal state law cause of action that one serviceman might have against another.

If there are no further questions.

William H. Rehnquist:

Thank you, Mr. Wright.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.