The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
Plaintiffs brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (the Act). They seek damages for tort allegedly committed against them by the United States Army following the fatal shooting of their son and brother, Marc A. Kohn, during his service in the Army. Plaintiffs Samuel and Goldie Kohn were his parents and plaintiff Denise Kohn was his sister.
This court dismissed the original complaint on the authority of Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), which held that the Act does not impose liability for injuries to servicemen arising out of activity incident to service. The Court of Appeals reversed in part, holding that the Feres case was not a bar to claims raised by family members in their own right. 680 F.2d 922, 926 (2d Cir. 1982). The court remanded to permit plaintiffs to litigate their third claim, which sought damages for emotional distress allegedly caused them by the Army's actions after the death.
Plaintiffs filed an amended tort claim with the Department of the Army, pursuant to 28 U.S.S. § 2674(a). The claim was denied. Plaintiffs then filed an amended complaint here. The case was tried to the court.
The pertinent facts are as follows. Marc Kohn was on active Army duty, serving as a military policeman with the drug suppression team at Fort Campbell, Kentucky, when he was shot in the head by a fellow soldier, George Marshall Hale, on January 29, 1980. Kohn died some two and a half hours later.
On the next day, after a preliminary investigation suggested that Hale had accidentally discharged his weapon, he was charged with negligent homicide. Hale was interviewed further ten days later, February 9, 1980, and the Army then charged him with murder. He was convicted by a general court-martial of involuntary manslaughter.
The morning after Kohn's death, the acting commanding officer, without informing Kohn's next of kin or obtaining their consent, ordered an autopsy, and it was performed. Some of the internal organs removed from the body were then cremated. Some sections have been preserved and are still held by the Army hospital.
Following the autopsy, a private funeral director in Kentucky embalmed Kohn's body and performed restoration of the eye area. The body was flown to New York on January 31 pursuant to the family's wishes, as communicated to the Army by one of the family's rabbis. The body was accompanied by a soldier from Fort Campbell. A telegram requesting detailed disposition instructions from the family, as required by Army regulation 638-40, was never sent.
Major (then Captain) Coates went to plaintiffs' home the day after the shooting, and informed Mrs. Kohn that her son had died of a gunshot wound and that the incident was under investigation. Major Coats assisted Mrs. Kohn in making telephone calls and was still at the home when Rabbi Emert, an associate of Rabbi Eliott Spar, who testified at trial, arrived at the home and began arranging for the prompt transportation to New York and burial of Marc Kohn's body.
Sergeant Edward L. Priddy, the "survivor assistance officer," arrived at the Kohns' home on the evening of the same day.He assured the family that the investigation was proceeding. However, plaintiffs did not learn until after the funeral that Marc Kohn died from a gunshot wound to his head.
The funeral was held on February 3, 1980. Defendant concedes that the ceremonial platoon that had been promised for the funeral did not appear. Three representatives of the Army were present; one of them, Sergeant Priddy, spoke A flag was presented to the family. Two days later, a graveside ceremony was performed by an Army burial detail; plaintiffs did not attend.
Plaintiffs ask damages for the emotional distress allegedly caused by the following acts of the Army: performing an unauthorized autopsy, failing to return organs to the body for burial, embalming the body, and cremating missing organs, all in violation of plaintiffs' deep religious beliefs as members of the Jewish faith; communicating inaccurate and misleading information about the circumstances of the death; failing to provide an honor guard at the burial; losing or destroying certain of Marc Kohn's personal effects; mailing Army recruitment literature to the Kohn family home; and mailing pictures of the autopsy to plaintiffs instead of to their attorney, as they requested.
Section 2674 of the Act provides, in pertinent part:
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
The United States tries to revive the defense of the so-called Feres doctrine, at least with respect to the claims of wrongful autopsy, embalmment, and retention and cremation of Marc Kohn's organs, urging that these actions by the Army were "incident" to Kohn's service. But this contention has been rejected by the Court of Appeals.The claims are by the family members "in their own right." See 680 F.2d at 926. They do not seek to vindicate Kohn's own right to a proper burial.
The United States cannot be held liable under the Act for the performance of or failure to perform "discretionary" functions. 28 U.S.C. § 2680(a). The United States does not argue that liability is precluded here on this ground. Nor does the recent Supreme Court decision in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 52 U.S.L.W. 4833, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (U.S. June 19, 1984), suggest that this concession was improvident. See also Caban v. United States, 671 F.2d 1230, 1233 (2d Cir. 1982).
The Army's actions in the handling of the body and the treatment of the family did not involve the government's regulation of private conduct or policy judgments to advance important governmental purposes.There is ...