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June 8, 1978

ALLAN M. FISCHER, Plaintiff,

Nickerson, District Judge.

The opinion of the court was delivered by: NICKERSON


NICKERSON, District Judge.

 Plaintiff brings this suit to recover damages for injuries allegedly sustained while he was a cadet at the United States Air Force Academy in Colorado. He says that he was a member of the varsity football team at the Academy in 1969 and 1970, and that in those years the team physicians prescribed Butazolodin, an anti-inflamatory drug, so that he could play with a hurt knee. He graduated in June 1971 and became a commissioned officer in the Air Force.

 He claims that the drug caused damage to his bone marrow and that he developed chronic mononucleosis, chronic anemia, dangerous alteration of heartbeat, and other ills. These started to manifest themselves after his graduation but it was not until after he had been retired for disability in 1975 that his personal physician discovered that the drug was the cause of the disability. He alleges that as a result of the negligence of the Air Force doctors he has been reduced from a two hundred and twenty pound tackle to a chronically ill one hundred and forty pound weakling. The complaint asserts claims under the Federal Tort Claims Act against the United States for negligence and for failure to obtain plaintiff's informed consent prior to the administration of the drug.

 Jurisdiction is asserted under the Tort Claims Act, 28 U.S.C. § 1346(b), which provides in pertinent part that this court has jurisdiction of actions on claims against the United States for damages for personal injury caused by the negligent or wrongful acts of employees of the government "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place" where the acts occurred.

 Defendant has moved for summary judgment, arguing that because plaintiff's injuries were incurred while he was a cadet at the Air Force Academy the alleged negligent acts of the doctors did not take place "under circumstances where the United States, if a private person, would be liable to the claimant" within the meaning of the Tort Claims Act, citing Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950).

 As the Supreme Court stated in the Feres case the Tort Claims Act marked the culmination of a long effort to mitigate the unjust consequences of the ancient doctrine of sovereign immunity from suit. As the Federal government expanded its activities its agents caused an increasing number of wrongs, which would have been actionable if inflicted by an individual or a corporation, but were remediless only because their perpetrators were government employees. Rather than continue to try to deal with claims for such wrongs by way of private bills Congress by passing the Tort Claims Act waived immunity and placed the burden on the courts, the primary purpose being "to extend a remedy to those who had been without." 340 U.S. at 139-140.

 The Feres opinion noted, however, that Congress had not been plagued with private bills on behalf of military and naval personnel because the law already provided a comprehensive system of compensation for them and their dependents. 340 U.S. at 140. The Court then analyzed the Tort Claims Act and held that the three plaintiffs on active duty in the Army could not recover damages allegedly sustained as a result of negligence by the Army. Feres was killed when the barracks in which he was quartered caught fire, and his executrix claimed the Army should have known of the unsafe condition of the barracks. The other two cases involved claims for medical malpractice by Army surgeons.

 In holding that none of the plaintiffs had a claim the court stated:

"We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command." 340 U.S. at 146.

 The Court cited various reasons why it concluded that Congress had not intended to grant a cause of action to soldiers on active duty. Such soldiers are, of course, subject to the orders of the military and may be sent to serve wherever their officers choose. Yet the Tort Claims Act makes "the law of the place where the act or omission occurred" govern liability. To make the rules of law of the several states applicable is, the Court said, "fair enough when the claimant is not on duty or is free to choose his own habitat and thereby limit the jurisdiction in which it will be possible for federal activities to cause him injury", but it "makes no sense" where a soldier is "on active duty" and "has no choice and must serve any place or, under modern conditions, any number of places in quick succession." 340 U.S. at 142-143.

 The Supreme Court found other evidence of an intent not to allow actions by those on active duty from "enactments by Congress which provide systems of simple, certain, and uniform compensation for injuries or death of those in armed services." 340 U.S. at 144. The Court noted that "the compensation system, which normally requires no litigation, is not negligible or niggardly," and that the "recoveries compare extremely favorably with those provided by most workman's compensation statutes." 340 U.S. at 145.*

 None of the considerations which underlay the Supreme Court's decision in the Feres case appears to apply to the case of a cadet like plaintiff injured by the medical malpractice of a military academy's team physician. The government admits that plaintiff while at the Academy was not subject to military discipline. Thus, to permit suit in this case would not encourage the flouting of military orders or discourage their issuance. Plaintiff was not required to attend the Academy; he had chosen to do so. He could have been dismissed but not court martialed had he violated the Academy regulations, although before dismissal he could have demanded a court martial. 10 U.S.C. § 9352. He could not have been subjected to any military punishment if he had left the Academy.

 In contrast to soldiers such as the plaintiffs in the Feres case who were on active duty and thus covered by a uniform compensation system for injuries, cadets at the Academy do not have the benefit of any such system. While plaintiff, since after graduation he became a commissioned Air Force officer, is receiving disability retirement benefits, that is a result of the circumstance that the deleterious effects of the drug did not manifest themselves until he was on active duty. Had he been incapacitated ...

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