[66] ADAMS, Circuit Judge, concurring in part and dissenting in part.

I agree with the majority that the plaintiffs in this case may not assert a cause of action implied directly from the Constitution, although I disagree with the majority's disposition of the state law claims. The reasoning that leads me to agree on the federal question, however, varies from that of the majority in that it focuses on a different element of the test for inference of a constitutional damages remedy. It is for this reason that I write separately to explain my views.

I.

When the Supreme Court, 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), first recognized the entitlement, in the absence of statute, to recover damages for violations of constitutional rights committed by federal officials, it acknowledged that not all constitutional infractions could be redressed in this manner. Specifically, the Court suggested that a damage action would fail if either of two conditions obtained. First, there might exist "special factors counselling hesitation in the absence of affirmative action by Congress." Id. at 396, 91 S.Ct. at 2005. Second, Congress might have declared that victims who suffer a particular type of constitutional injury at the hands of federal officials have no right to recover money damages, "but must instead be remitted to another remedy, equally effective in the view of Congress." Id. at 397, 91 S.Ct. at 2005. Subsequent cases have reaffirmed these limitations on the Bivens-type remedy. See Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 2276, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471-1472, 64 L.Ed.2d 15 (1980); Purtill v. Harris, 658 F.2d 134 at 136-139 (3d Cir. 1981).

The majority today concludes that this case presents "special factors counselling hesitation" in the implication of a cause of action under the Constitution. It does not decide that defendants in this case are immune from suit by analogy to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (general waiver of sovereign immunity inherent in Federal Tort Claims Act not applicable to negligence action brought by soldier for service connected injury). Rather, it suggests that the considerations underlying Feres immunity help inform a decision on whether "special factors" foreclose Jaffee's lawsuit. The majority concludes that the policies that favored sovereign immunity from negligence liability in Feres apply as well in reaching a conclusion that a soldier may not proceed with a suit against individual defendants for redress of intentional wrongs.

My uneasiness with this analysis stems from Davis v. Passman. There the Supreme Court, in deciding that a Congressional staff member intentionally discharged on the basis of her sex could bring against her former employer a suit premised on the Due Process Clause of the Fifth Amendment, considered whether a suit against a Congressman raises "special factors counselling hesitation." The Court acknowledged that such concerns exist, but held that they are coextensive with the protections which the Speech or Debate Clause affords. 442 U.S. at 246, 99 S.Ct. at 2277. If that Clause does not shield a Congressman's actions, the Court proclaimed, the legislator ought to be bound by the law as are other citizens. Id. (citing Gravel v. United States, 408 U.S. 606, 615, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 583 (1972)). In effect, the Court's analysis appeared to render disposition of the "special factors" issue inseparable from resolution of the immunity question. Analytically, the Court might have remanded for a determination of immunity under the Speech or Debate Clause, and postponed decision on the existence of a constitutional cause of action until a lower court had ascertained whether immunity, and thus a "special factor," shielded the defendant from suit. Instead, the Court in essence eliminated consideration of "special factors," held that a cause of action under the Fifth Amendment was available, and remanded for consideration of whether a constitutional immunity blocked prosecution of the cause of action.

For purposes of the "special factors" inquiry, it is difficult to distinguish the case at bar from Davis v. Passman. The conventional defense of military officials who are sued (and the defense on which defendants in this case have relied) is immunity — not a constitutional immunity like that asserted in Davis v. Passman, but a common law military immunity ultimately derived from Feres. Moreover, it would appear equally true of military officials as of legislators that, absent immunity, they should be held accountable for violations of legal norms. In light of Davis v. Passman, I cannot avoid regarding the "special factors counselling hesitation" as congruent with the scope of military immunity. If the "special factors" question constituted the sole inquiry in a case placing in issue the inference of a direct, constitutional cause of action, I would think that the Supreme Court's disposition of Davis might well control the present case. We initially would hold that Jaffee could assert a cause of action under the Constitution, and then would face the question whether the immunity established in Feres — immunity of the Government from negligence suits arising out of service-connected injuries — should be extended to shield individual military and civilian defendants from suits based on intentional malfeasance.

II.

Absent the element of "special factors," the Supreme Court has declared, the implication of a constitutional cause of action may be precluded when Congress has provided an adequate alternate remedy. Recently, the Supreme Court addressed this component of the Bivens standard in Carlson v. Green. In upholding a cause of action based on the Eighth Amendment, the Court stated that a defendant can defeat implication of a cause of action if he "show[s] that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Id. 446 U.S. at 18-19, 100 S.Ct. at 1471-1472. Defendants in Carlson had identified the Federal Tort Claims Act as an adequate alternative to a damages remedy. The Court, however, found no indication that Congress intended the FTCA to preempt a Bivens-type remedy; to the contrary, it asserted that recent amendments to the FTCA made it "crystal clear," id. at 20, 100 S.Ct. at 1472, that Congress regarded the FTCA and Bivens remedies as parallel and complementary. More generally, the Court cautioned that no "magic words," id. at 19 n.5, 100 S.Ct. at 1472 n.5, need be discovered in the legislative history; instead, "our inquiry . . . is whether Congress has indicated that it intends the statutory remedy to replace, rather than to complement, the Bivens remedy. When Congress decides to enact a statutory remedy which it views as fully adequate only in combination with the Bivens remedy, . . . that congressional decision should be given effect by the courts." Id.

In the case at hand, I believe that Congress viewed the compensation system available to injured veterans under the Veterans' Benefits Act, 38 U.S.C. § 301 et seq., as an adequate remedy within the reasoning of Carlson v. Green. Before applying the Carlson standard, two distinctions between that case and the present controversy should be noted. First, Congress adopted the current Veterans' Benefits Act in 1958, thirteen years before the Supreme Court's decision in Bivens. Because the Veterans' Benefits Act predated the Court's anticipated approval of a damage action based directly on the Constitution, it comes as no surprise that its legislative history fails to disclose a Congressional declaration that benefits under the Act are to substitute for the constitutional damages action. While the same is true of the FTCA, the Supreme Court in Carlson had the benefit of a post- Bivens amendment to the Federal Tort Claims Act which explicitly addressed the coexistence of statutory and constitutional causes of action. The post- Bivens amendments to the Veterans' Benefits Act do not manifest a similar Congressional intent — again not surprisingly, since at the time of the amendments to the Veterans' Benefits Act no court had recognized a cause of action based directly on the Constitution and intended to redress service related injuries. Under the circumstances, I do not understand Carlson to require an explicit Congressional declaration of the exclusivity of veterans' compensation. In a case like the present one, where the relevant legislative history antedates Bivens, I would look for a Congressional declaration concerning the adequacy, rather than the exclusivity, of the statutory remedy. When scrutinizing the activities of a pre- Bivens Congress, I would hold that discovery of a Congressional intention to establish a comprehensive compensation scheme for injuries sustained in the military service will foreclose a private cause of action premised on the Constitution.

A second difference between Carlson and the case at issue here derives from the nature of the alternative remedy. In Carlson, which involved a claim by a mother on behalf of her deceased son against federal prison officials who were alleged to have intentionally deprived him of necessary medical care, plaintiff's choice was between two lawsuits, one based on the Constitution and one on the FTCA. As between these two, the Supreme Court found the Bivens action more effective, adducing four reasons for this conclusion: constitutional actions have greater deterrent force, allow for the recovery of punitive damages, may be tried to a jury, and are governed by a uniform body of federal, rather than a divergent body of state, law. The Court concluded that the possibility of suit under the FTCA did not indicate a Congressional resolve to preclude a more effective suit directly under the Constitution.

In contrast to Carlson, where a comparison of two damages actions could illumine Congressional intent, the alternative to a lawsuit based on the Constitution is, in the present case, a statutory benefits scheme rather than a judicial action for damages. Because of the different character of the two possible routes to recovery, I doubt whether an analysis which tracks the four factors that distinguished the Bivens action from the FTCA action in Carlson would support an inference concerning Congressional views on the adequacy of its compensation plan. To be sure, several of the reasons set forth in Carlson for preferring the Bivens remedy likewise distinguish that alternative in the situation before us: trial of a cause of action based on the Constitution may result in an award of punitive damages and might have greater deterrent value than an award under the veterans' benefits program. Moreover, a plaintiff remitted to the statutory benefits scheme concededly might receive an award significantly less than his possible damages in a successful lawsuit. On the other hand, the barriers to recovery are likewise lower under the Veterans Benefits Act, and the benefits, if modest, are reasonably assured. See, e.g., 38 U.S.C. §§ 313, 333 (presumptions in favor of service-relatedness of disabilities). In light of the inherent differences between civil suits for damages and claims for statutory benefits, I believe that the superiority in some respects of the Bivens remedy has a limited bearing on the determination whether Congress intended its veterans' benefits system to provide adequate compensation.

The Eighth Circuit, acting in the wake of Carlson v. Green, also has interdicted a cause of action based directly on the Constitution when an adequate administrative remedy exists, notwithstanding the failure of Congress to denominate the alternative as an exclusive remedy. In Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980), plaintiff sought damages under the Fifth Amendment for his allegedly wrongful discharge from federal employment. The court of appeals, however, noted that a federal employee is entitled to an administrative challenge to his dismissal on the ground that there was no sufficient cause for the discharge. See 5 U.S.C. § 7701. If successful, the employee is entitled to reinstatement and back pay. This administrative process, the Eighth Circuit held, would adequately redress any violations of plaintiff's substantive rights under the Due Process Clause, thereby obviating the need for a Bivens remedy. 622 F.2d at 356-57.

The Fifth Circuit has followed the rationale of Bishop v. Tice in Bush v. Lucas, 647 F.2d 573 (1981). Lucas involved a law suit directly under the Constitution by a Government employee seeking damages from his supervisor for an alleged retaliatory demotion. In denying the employee a right of action under the Constitution, the court disavowed reliance on the "alternative remedy" prong of the Carlson test. Its analysis of the "special factors" prong, however, turned largely on the availability of a comprehensive remedial scheme reflecting an effort by Congress to "achieve a proper balance between promoting governmental efficiency and protecting the rights of employees aggrieved by improper personnel action." The court concluded, "The very comprehensiveness of the legislative and administrative scheme evinces Congress' awareness of the special relationship and of the government's responsibilities toward its civil service employees." Id. at 576-77. Although the court ultimately incorporated this analysis under a "special factors" heading, it appears that Lucas would have been governed by Davis v. Passman but for the presence of an alternative remedial scheme. Thus, the Fifth Circuit's emphasis on the Congressionally-created alternative supports the analysis presented here and in Bishop v. Tice as to the sufficiency of a comprehensive alternative remedy to indicate a Congressional intent to preclude Bivens actions.

As I read Bivens, Passman, Carlson, Tice, and Lucas, the dispositive question here is whether Congress has created a comprehensive benefits scheme which it regards as fully adequate for the compensation of injured servicemen. If this question is answered in the affirmative, a private cause of action for damages, based directly on the Constitution, is precluded, even though such a remedy might, if allowed, result in a larger recovery for the injured veteran.

Although I recognize that there is room for disagreement, two considerations persuade me that the required legislative indications exist. First, the Senate Report to the 1976 amendments to the Veterans' Benefits Act states: "The [Congress] periodically reviews the service-connected disability compensation program to ensure that authorized benefits provide reasonable and adequate compensation for disabled veterans." S.Rep. No. 94-1226, 94th Cong., 2d Sess., at 10 (1976) (emphasis added), reprinted at U.S. Code Cong. Ad. News 2537, 2541. See also H.R.Rep. No. 463, 78th Cong., 1st Sess. 1 (1943), reprinted at U.S. Code Cong.Serv. 2-159 (purpose of 1943 veterans' benefits legislation was "to provide more adequate . . . veterans' laws pertaining to compensation, pension, and retirement pay"). I interpret this statement to indicate that Congress has assumed responsibility for ensuring adequate compensation for service-connected injuries. And under Carlson v. Green, it would appear that no greater showing of legislative purpose is required.

Statements in a recent Supreme Court case buttress this inference. In Hatzlachh Supply Co. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62 L.Ed.2d 614 (1980) (per curiam), an importer sued to recover the value of goods lost by the customs service after they had been seized for an alleged customs violation. In deciding in favor of the claimant, the Court distinguished Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), which denied Government liability to indemnify a third party for damages paid to a member of the armed forces injured in military training. The Court in Hatzlachh interpreted its earlier decision in Stencel to be based on the "recogni[tion] that the Veterans' Benefits Act provided compensation to injured servicemen, which we understood Congress intended to be the sole remedy for service connected injuries." 444 U.S. at 464, 100 S.Ct. at 650 (emphasis added). The Court continued: "In Stencel, Congress had provided a remedy, which we thought to be exclusive." Id.

The Supreme Court's statements in Hatzlachh concerning the exclusivity of veterans' benefits are admittedly dictum. Nonetheless, in my view they reflect an understanding on the part of the Court that Congress has shouldered the weighty responsibility of assuring an effective and reparative compensation arrangement for injured military personnel. Standing alone, the Court's remarks might not be persuasive of Congressional intent. But when those remarks are joined with the statement in the Senate Report, I believe it is reasonable for us to infer that Congress has undertaken to guarantee adequate compensation for service-connected injuries, thereby satisfying the Carlson v. Green standard for preclusion of a cause of action implied directly under the Constitution.

III.

Several additional observations are in order. First, I wish to emphasize the limited applicability of my view of Mr. Jaffee's case. I would hold only that a suit for damages asserted directly under the Constitution is barred when Congress has devised a compensation scheme intended to provide adequate benefits for injured parties. This rule would not preclude a party from receiving benefits and simultaneously pursuing a judicial remedy created, for example, by a non-constitutional provision of federal law. Nor would it compel the conclusion that a federal compensation scheme automatically forecloses any remedy under state law. Thus I do not challenge the continued vitality of Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 122, 12 L.Ed. 618 (1849); Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 401, 13 L.Ed. 1036 (1851), where the Supreme Court allowed a marine to prosecute an action for trespass against his commanding officer, based on the latter's infliction of imprisonment and corporal punishment after the marine's term of enlistment had allegedly expired. There is, so far as I know, no Supreme Court precedent for extinguishing a traditional common law cause of action whenever Congress has provided an alternative compensation system. But in my view Bivens and its progeny establish that Congressional creation of an adequate alternative will defeat what, at least until recently, has been regarded as an extraordinary remedy — the implication of a cause of action for damages directly under the Constitution.

The district court dismissed the Jaffees' state law claims as barred by the Feres doctrine of absolute immunity. Although the majority does not decide the issue of absolute immunity, it disposes of the state claims by concluding that they are preempted by federal law. In resting its holding on preemption grounds, the majority is reaching out and deciding an issue that was not considered by the district court and was not briefed or argued by the litigants before this Court. Such an approach does not offer the parties a fair chance to be heard, and thus would not appear to be prudent. Because I believe, as the dissent has argued, that absolute immunity does not govern this case, proper resolution of the state claims requires careful consideration of several issues. For that reason, I would return this case to the district court. A remand for this limited purpose would leave a number of questions for the district court to consider: whether to exercise its pendent jurisdiction so as to permit these claims to proceed in federal court; whether the qualified immunity doctrine of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), protects the defendants; whether plaintiffs assert a valid cause of action under state law; and whether such a cause of action is nevertheless preempted by federal law.

Allegations in Jaffee's complaint — which we must accept as pleaded — maintain that the defendants, through their wilful actions, exposed him and other servicemen to lethal dosages of radiation. If it should be established that the Camp Desert Rock exercise was in fact conducted despite knowledge by the defendants of the gross dangers it presented, then the harm that ensued might well merit special Congressional attention. Indeed, even in the absence of such a showing Congress may wish to take some action. We note that Congress has recently enacted a bill to expand the availability of medical coverage under the Veterans' Benefits Act both for Vietnam War veterans exposed to the herbicide Agent Orange and for veterans suffering from injuries that appear to have resulted from nuclear weapons tests. H.R. 3499, 97th Cong., 1st Sess., 127 Cong. Rec. 11572 (Oct. 16, 1981). Although presidential action on the bill is still pending, this legislative attention to those in Jaffee's situation, and Congress's use of the Veterans' Benefits Act as the appropriate vehicle for redress, provide dramatic illustration of the extent to which Congress has taken on the responsibility for dealing with grievances arising out of military service, such as those advanced by Jaffee here.

IV.

It is perhaps understandable that cases like the present one can evoke strong emotional tugs regarding the alleged plight of the plaintiff or the problems besetting the defendants. But the role of the court is not to take sides: rather, it is expected to analyze, carefully and quietly, the precedents as well as the legislative efforts in order to arrive at a fair and just result. It is important, too, for the judge to realize that there are other bodies in our society that deal with these problems — the Executive, the Congress and the public itself. The use of epithets and slogans does not solve thorny legal problems. Instead, it tends to obfuscate the issues, issues that are difficult enough even under the best of circumstances. As Justice Holmes taught us, we must use care lest we interject the judiciary into heated controversies that are best settled by the operation of political forces.

For all these reasons, I believe that the appropriate course — considering the prior decisions of the Supreme Court and paying heed to the words as well as to the deeds of the Congress — is to remand this matter for the limited purpose of having the district court address the questions relating to the claim of a state law cause of action. Aside from that, at least as I see it, any action accruing under the Constitution has been foreclosed, under the tests in Bivens and Carlson and by the actions of Congress.

ROSENN, Circuit Judge, joins in this opinion.

[88] GIBBONS, Circuit Judge, with whom SLOVITER, Circuit Judge, joins, dissenting:

I

This case is before us on an appeal from an order dated March 20, 1979, entered as a partial final judgment pursuant to Fed.R.Civ.P. 54(b), dismissing plaintiffs' claims for money damages from the individual defendants on the ground that those defendants all enjoy absolute immunity from such suits. The plaintiffs are Stanley Jaffee, who was drafted into the United States Army in 1952 and served as an enlisted soldier until April of 1954, and Sharon Blynn Jaffee, his wife. Both are now civilians, Mrs. Jaffee never having been a military person. The district court dismissed on the pleadings, and thus for our review we must take as true the allegations of the complaint.

The Jaffees charge that in the spring of 1953, while Mr. Jaffee was serving on active duty at Camp Desert Rock, Nevada, he and other soldiers were ordered to stand in an open field near the site of an explosion of a nuclear device without any protection against radiation; that the explosion exposed Jaffee and others to massive doses of radiation; that the defendants, civilians and military, responsible for ordering the attendance of the soldiers at the explosion site knew they were exposing the soldiers to grave risk of injury and death from the resultant exposure to radiation, but in disregard of this knowledge compelled Jaffee and others to be so exposed; that the defendants acted in excess of their authority; that there did not exist any sufficient legitimate purpose, military or otherwise, to justify exposing the soldiers to the dangers of radiation; and that the defendants knowingly, deliberately and recklessly conducted dangerous experiments on the bodies of the soldiers without their knowledge, permission and consent. Jaffee alleges that as a result of the exposure: he developed cancer which has required surgery, he has inoperable lymphatic cancer, he has been permanently injured, his life has been materially shortened, and he continues to suffer substantial pain, disability, emotional and mental anguish, and loss of enjoyment of life's pleasures. He alleges as well that he has incurred, and will incur in the future, medical and other expenses. Reading the complaint, as we must, in the manner most favorable to Jaffee, we must assume that he could at trial prove medical and other expenses beyond those, if any, provided by the United States. Mrs. Jaffee alleges that she has been and will continue to be deprived of Jaffee's services, society, consortium and companionship, and has been and will continue to be liable for his medical expenses. As with Jaffee's claim, we must assume at this stage that she could prove that she incurred liability for medical expenses beyond any provided by the United States. The complaint charges that the acts of the defendants violated the rights of plaintiff, Stanley Jaffee, and other similarly situated soldiers under the First, Fourth, Fifth, Eighth and Ninth Amendments to the United States Constitution and were tortious under the laws of the various states.

These allegations charge a violation of human rights on a massive scale. The plaintiffs seek to prove, and we must at this stage assume that they can, that civilian and military officials of the government, acting without legal authority and with no sufficient legitimate military or other purpose, conducted a human experiment upon soldiers subject to their control, without their knowledge, permission or consent, by exposing them to radiation which those officials knew to be dangerous.

In Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 1961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), we considered a separate count which named only the United States as a defendant. That count sought notification to and medical treatment for all soldiers who were exposed to radiation at the Camp Desert Rock exercise. In our prior opinion we noted that in the class action plaintiffs did not rely upon the Federal Tort Claims Act of 1946, 28 U.S.C. §§ 1346(b), 2671-80 (1976). Although the government vigorously resisted any relief, we held that the 1976 amendments to section 702 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976), waived sovereign immunity with respect to the claim for a mandatory injunction to compel notice to a class of potential victims. 592 F.2d at 718-20. We also held that absent a waiver of sovereign immunity by Congress no court could order compensatory relief from the Treasury of the United States. 592 F.2d at 718. See U.S.Const. art I, § 9, cl. 7. The claims which are before us on this appeal do not seek monetary relief from the Treasury of the United States, and were not before the court on the prior appeal.

The sole ground relied on by the district court in dismissing the claims now before us was that the defendants, both military and civilian, enjoyed absolute immunity from suit, even when charged with intentional, unauthorized tortious conduct. On appeal a panel of this court unanimously reversed the district court's March 20, 1979 order holding that there is no such absolute immunity. Thereafter the Department of Justice, which has from the outset appeared in the action on behalf of the individual defendants, filed a petition for rehearing en banc which was granted on April 11, 1980. The petition for rehearing addressed the question "whether the Feres doctrine provides an absolute intra-military immunity for tort suits." Since the district court's immunity holding would apply equally to claims based on federal or state law, there was no occasion for the appellants to address the applicability of state law either before the panel or before the court en banc. Defendants' only contention before the district court with respect to plaintiffs' state law claims was that they should not be considered because there is no independent basis for federal jurisdiction. That contention is meritless in light of the holding in our prior appeal, and the defendants did not brief the state law issues except for the claim of absolute immunity.

The present opinion of the court, authored by a judge who joined in the panel judgment reversing the dismissal of the claims against individual defendants, purports not to decide the appeal on immunity grounds. Instead, without briefing from either party in the district court or here, the court irresponsibly affirms the dismissal on what it claims is a different theory: that under federal or under state law a charge by a serviceman that he was subjected to the intentional tort of involuntary human experimentation, without legal authority and without military justification, fails to state a claim upon which relief can be granted in any court.

The Twentieth Century has witnessed time and again, in this country and elsewhere, the fragility of those protections which the legal order affords against human rights violations. One of those fragile protections is the admonitory law of intentional torts, designed to require public accountability for individual conduct, official or private, going beyond the bounds of social acceptability. Certainly the conduct charged in the complaint, if proved, transgressed those bounds. Indeed the complaint alleges conduct which would violate the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Geneva Convention, the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Nuremberg Code. The international consensus against involuntary human experimentation is clear. A fortiori the conduct charged, if it occurred, was in violation of the Constitution and laws of the United States and of the state where it occurred or where its effects were felt. That any judicial tribunal in the world, in the last fifth of this dismal century, would choose to place a class of persons outside the protection against human rights violations provided by the admonitory law of intentional torts is surprising. That it should be an American court will dismay persons the world over concerned with human rights and will embarrass our Government. That this court, which once had a deserved reputation for sensitivity to human rights issues, should undertake to do so is a saddening demonstration of the extent to which it has lost the spirit which once animated our deliberations.

The opinion of the court is couched in terms of unwillingness to create a "new" cause of action. This cloak of deference to the legislative branch is disingenuous, for what the majority has done, by radical judicial legislation with totalitarian effects, is to wipe out causes of action designed to require official accountability. These causes of action have been a part of the common law for centuries and were recently reapproved by the Supreme Court. Moreover, while the opinion of the court purports not to reach the issue of defendants' immunity, the very cases it relies upon expose the plain fact that this is an immunity decision masked as something else. But whether the majority's result is couched in terms of the absence of a claim on which relief can be granted or in immunity terms, its radical totalitarianism cannot be denied, for it removes a large class of heretofore protected citizens from the law's shield against willful torts.

One justification advanced for removing that protection is that military necessity demands it. The military necessity justification, according to the majority, has two aspects: the need for encouraging unquestioned obedience by inferiors (the serviceman as automaton principle), and the need for aggressiveness in decision making by military superiors (the macho principle). Of these justifications, only the macho principle applies to Mrs. Jaffee, who never was a member of the armed forces, since the presumed need for unfettered discretion is no less applicable to suits by civilian victims of intentional military conduct. Her claim has been dismissed without discussion. Thus the logic of the majority's decision will bar actions by civilians for intentional torts committed by the military. That result is a prospect which should send chills up the spine of anyone interested in personal liberties, for there is no way to distinguish between the intentional tort of involuntary human experimentation and intentional torts directed at areas of privacy or expression. The other justification advanced by the majority is that Congress, in enacting veterans benefit legislation, intended the result. The rationale of the opinion of the court is not limited, however, to cases in which veterans benefits are available. It applies to all intentional torts, even those which do not produce permanent physical disability. Moreover, the majority's assumption that Congress intended veterans benefits as a substitute for common law remedies for intentional torts is supported by no evidence in the veterans benefit statutes or their legislative history. Thus none of the grounds advanced as support for the majority's result will withstand scrutiny. The real but unarticulated reason for the result is that the availability of a private remedy for intentional torts will encourage public accountability of the military, while foreclosing such a remedy will encourage concealment (the coverup principle).

II

In concluding that there is no federal common law cause of action for alleged conduct which all would concede would violate the standards for official conduct specified in the Constitution, the opinion of the court attempts to identify "special factors counselling hesitation." But as Judge Adams demonstrates in Part I of his opinion, the "special factors counselling hesitation" on which the opinion of the court relies are the very same factors which have been advanced in support of absolute federal common law military immunity derived from Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Indeed the chief source for the "special factors counselling hesitation" is the Feres opinion. If in fact that opinion lends no support to the defendants' absolute immunity contention, then the main premise for the court's rejection of a Bivens remedy disappears. Thus in any real sense the opinion of the court is a federal common law immunity holding. The starting point for analysis of the justification for dismissing the complaint should therefore be the federal common law cases on official immunity. For sound analysis these cases must be distinguished for two reasons from cases involving the construction of statutes waiving sovereign immunity for suits to recover money from the United States Treasury. First, federal sovereign immunity has constitutional underpinnings. U.S.Const. art. I, § 9, cl. 7. Unlike official immunity it is not a creature of judge-made law. Second, in construing a statute waiving federal sovereign immunity, the intention of Congress, expressed not only in the waiver statute but in other statutes bearing on the question, should be controlling because only Congress can waive the Treasury Department's immunity. By contrast, official immunity involves not the extent to which a constitutionally based sovereign immunity has been waived, but rather the extent to which a judgemade federal common law grant of special privilege should be enlarged. In suits for money from the Treasury, immunity is the rule and waiver the exception. In suits against individuals, accountability is the rule, and an immunity which prevents accountability is the exception. With these distinctions in mind, it is appropriate to examine the lines of authority on which the defendants and the opinion of the court rely. Those lines of authority, which foreshadowed the legal problem presented in this appeal, stem from two cases which were before the Court of Appeals for the Second Circuit in October 1949. One was Feres v. United States, 177 F.2d 535 (2d Cir. 1949), aff'd, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The other was Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).

In the Feres case, the executrix of a deceased soldier sought recovery under the Federal Tort Claims Act against the United States for the death of her husband, who had died by fire in military barracks. Negligence was alleged in quartering him in barracks known to be unsafe. Judge A. Hand refused to construe the three-year-old Federal Tort Claims Act to cover injuries suffered while on military duty and distinguished the recently decided Brooks v. United States, on the ground that Brooks involved an injury to an off-duty soldier. As to injuries suffered while on duty, Judge A. Hand found the military pension system to be an exclusive remedy. In the same month, Judge Murrah, writing for the Tenth Circuit in Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), rev'd, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), reached the opposite conclusion. The Supreme Court resolved the conflict in favor of the Second Circuit view. However, what Justice Jackson's opinion in Feres stands for is a matter of some dispute and confusion — confusion which the opinion of the court in this case compounds.

In Gregoire, a Frenchman filed a complaint charging that two successive Attorneys-General, two successive directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island had conspired to arrest him on the pretense that he was a German enemy alien and had kept him in custody from January 5, 1942 until September 18, 1946, when he was released on a writ of habeas corpus. Gregoire sought money damages from the alleged conspirators. Judge L. Hand, for the court, affirmed a Rule 12(b)(6) dismissal of the complaint on the ground that each defendant, as a high executive branch official, enjoyed absolute immunity even if he acted out of evil motives. Judge L. Hand relied on Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), which recognized official immunity of the Postmaster General, a cabinet officer, from a suit arising out of an official communication. Gregoire was not reviewed by the Supreme Court.

In Feres, Judge A. Hand construed a recently enacted statute authorizing the imposition of tort liability for personal injury against the United States, and attempted to reconcile it with another statutory scheme for the payment of federal benefits. In Gregoire, Judge L. Hand did something quite different. He considerably extended a judicially created personal immunity doctrine to civil actions against high executive officials. As noted above, the two tasks are not coextensive, and the reasons that might favor narrow constructions of the federal government's consent to suit are not the same as those which may favor the broadening of judge-made rules conferring individual personal immunity. Moreover, as will be seen hereafter, the doctrinal development of the two issues since 1949 has diverged completely. The post-1949 statutory interpretation of the Federal Tort Claims Act is found in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). These cases essentially preserve the reading of the Act made in Brooks and Feres. The law of individual personal immunity of federal officers has undergone an entirely separate development in a series of cases beginning in 1959 with Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959), and culminating with the Court's most recent discussion in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). We should look for the solution to the present problem in the personal immunity holdings and not in the interpretations of the Federal Tort Claims Act.

In 1949, when Judge L. Hand wrote the Gregoire opinion, the notion of absolute official immunity for federal officers probably seemed a politically attractive idea. We had recently fought a war in which many things had been done which were thought necessary for victory, but which with the benefit of hindsight, probably would seem quite inconsistent with our concept of democracy and its traditions of personal integrity and individual freedoms. It was perhaps a fortunate fortuity that the Gregoire issue did not reach the Supreme Court for some time. When it did, in Barr v. Matteo and Howard v. Lyons, only four Justices — Harlan, Frankfurter, Clark and Whittaker — were ready to embrace absolute immunity. Justice Harlan's plurality opinion in Barr quoted extensively from Judge L. Hand's Gregoire opinion. Chief Justice Warren, and Justices Douglas, Brennan and Stewart dissented. The critical fifth vote in Barr v. Matteo was that of Justice Black, who on the authority of Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), was willing to recognize an immunity from liability for libel with regard to communications related to matters committed by law to the defendants' control, and which were neither unauthorized nor plainly beyond the scope of his official business. Thus Barr v. Matteo neither accepted nor definitively rejected Judge L. Hand's position that federal officials were absolutely immune from liability even for intentional torts. There is a majority opinion in Howard v. Lyons, because Justice Stewart, who dissented in Barr v. Matteo, joined a majority in sustaining a plea of absolute privilege as a defense to a defamation action brought against the Commander of the Boston Naval Shipyard for a report he sent to the Massachusetts Congressional delegation, at the direction of the Secretary of the Navy. Obviously, since Justice Stewart joined in the decision, Howard v. Lyons cannot be read as recognizing an immunity as absolute as that proposed in Gregoire. With respect to the instant appeal, however, the significant point is that the defendant in Howard v. Lyons was a military officer, and he was treated for purposes of immunity the same as the civilian defendants in Barr v. Matteo. The plaintiffs in Howard v. Lyons were civilian employees of the Boston Naval Shipyard, and thus the case does not necessarily dispose of immunity from liability to members of the armed forces. But it does suggest that the military status of the defendant, at least, is not determinative.

With other wars and other times intervening, the Gregoire rule, which seemed so attractive to four Justices in 1959, began to lose its luster. The war against narcotics traffickers provided the Supreme Court with the next opportunity to speak on the rule. 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 Court held that a complaint seeking only damages from federal officers for injuries resulting from a violation of the fourth amendment stated a cause of action within the subject matter jurisdiction of the district court. Although the district court had held the defendants were absolutely immune, the majority declined to consider the defense of immunity because the Court of Appeals for the Second Circuit had declined to pass upon that question. 403 U.S. at 397-98, 91 S.Ct. at 2005. Justice Harlan, who twelve years earlier had written for a plurality in Barr v. Matteo, now saw the wisdom of recognizing uniform federal standards of liability of federal officers for certain types of official wrongdoing. Citing his opinion in Barr v. Matteo, he observed:

But, while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy would be available for the most flagrant and patently unjustified sorts of police misconduct. Although litigants may not often choose to seek relief, it is important, in a civilized society, that the judicial branch of the Nation's government stand ready to afford a remedy in these circumstances.

403 U.S. at 411, 91 S.Ct. at 2012. On remand, it was obvious to the Second Circuit that the Supreme Court's tentative flirtation with its Gregoire rule of absolute immunity was at an end: charges of intentional misconduct could not be dismissed at the pleading stage on the basis of absolute immunity.

Personal immunity from liability for governmental officials engaging in intentional misconduct next came under pressure with respect to state officials in the context of public resistance to the Vietnam War. By the time Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), was decided it had become apparent to the Court that a Gregoire type absolute immunity could become a powerful instrument in the suppression of dissent, and was inconsistent with the prevailing consensus about the limits of executive action. Thus a unanimous Court held that even the highest military officer of a state, the governor himself, as commander of the State National Guard, was not absolutely immune from a suit for damages under 42 U.S.C. § 1983 for military steps taken in the alleged suppression of student dissent over the Vietnam War. Neither were subordinate officers nor enlisted soldiers found immune. Qualified rather than absolute immunity became the general rule with respect to state non-judicial officials in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). Once it was recognized that a Gregoire rule simply was too dangerous for general application to state military officials, it became evident that this concern was equally valid with respect to federal officials.

By the time Scheuer v. Rhodes and Wood v. Strickland had been decided, a major obstacle to holding federal officials accountable for damages caused by their intentional wrongdoing had been eliminated. That obstacle arose from the misplaced belief in the years following Erie R. Co. v. Tompkins, that state law was the only source for common law tort remedies. If that belief were so, federal officials, responsible to a national rather than a local constituency, might nevertheless be subjected to various standards of liability for their conduct from state to state. Therefore, it was urged, their conduct should be immune. The Court 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), perhaps influenced by Judge Friendly, effectively disposed of that red herring by recognizing that federal judges were as capable of developing uniform federal common law standards as were their state court counterparts. With the myth of non-uniformity removed from the discussion, it was probably inevitable that the Court would, first in Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), with respect to lower level federal officials, and then in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), with respect to cabinet officers, finally and unequivocally reject the Gregoire rule of absolute immunity for intentional torts. And, as Justice White noted in Butz, although the Bivens opinion put aside the immunity question, the Court, "could not have contemplated that immunity would be absolute." 438 U.S. at 505, 98 S.Ct. at 2910. Thus Gregoire was implicitly rejected. Justice White went on to announce political truths which should have been truisms, even in 1949, in a democratic society based on principles of individual integrity and freedom:

The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees. The broad authority possessed by these officials enables them to direct their subordinates to undertake a wide range of projects — including some which may infringe such important personal interests as liberty, property, and free speech. It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen's house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees.

Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law:

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee, 106 U.S. [196], at 220 [1 S.Ct. 240 at 261, 27 L.Ed. 171].

See also Marbury v. Madison, 5 U.S. (1 Cranch) 137 [2 L.Ed. 60] (1803); Scheuer v. Rhodes, 416 U.S., at 239-240 [94 S.Ct., at 1687-1688]. In light of this principle, federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.

438 U.S. at 505-06, 98 S.Ct. at 2910.

If the charges in the complaint are true, the defendant officials responsible for the activity complained of clearly fit within the description of officials who have directed their subordinates to undertake infringements of liberty. These officials are charged with having directed, without legal authority, a massive experiment in subjecting soldiers to radiation. Certainly the generally applicable federal law of official immunity announced in Butz v. Economou would not provide absolute immunity for these defendants.

The revolution in official immunity doctrine from Barr v. Matteo through Butz v. Economou was a return to first principles of the common law tradition of accountability. There was never a time, except during the fortunately short influence of Gregoire v. Biddle, in which government officials were exempt from the obligation to account for their conduct in a court of law. The military was never an exception. As early as 1804 in Little v. Barreme, 6 U.S. (2 Cranch) 170, 2 L.Ed. 243 (1804), the Court held the Commander of a United States warship liable for damages for an unlawful seizure of a neutral vessel even though he acted upon instructions of the President of the United States. Chief Justice Marshall's words in that case suggest the proper relationship between the rule of law and the necessity for a military establishment in a democracy:

I confess, the first bias of my mind was very strong in favor of the opinion, that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think, that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle, that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which, in general, requires that he should obey them. I was strongly inclined to think, that where, in consequence of orders from the legitimate authority, a vessel is seized, with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass.

6 U.S. at 179. Thus from the beginning our law refused to recognize the macho principle of which the opinion of the court makes so much. The question was presented again in Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877), in which the Supreme Court held an army captain liable in damages for confiscating plaintiffs' liquor, despite a plea of official immunity for action taken in enforcing the ban on alcohol in Indian Territory. Justice Miller wrote:

It is a sufficient answer to the plea, that the defendants were subordinate officers acting under orders of a superior, to say that whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians in time of peace by orders emanating from a source which is itself without authority. The authority of the commandant of the post in the case was precisely the same as the Indian agent or sub-agent, or superintendent; and it will hardly be maintained that if either of them, wholly mistaking their powers, had seized the goods, he would have incurred no liability.

So the plea that they had good reason to believe that this was Indian country, and that they acted in good faith, while it might excuse these officers from punitory damages, is no defense to the action. If it had been Indian country, and it had turned out that the plaintiffs had a license, or did not intend to sell or introduce the goods, the fact that defendants acted on reasonable ground would have exempted them from liability.

But the objection fatal to all this class of defenses is that in that locality they were utterly without any authority in the premises; and their honest belief that they had is no defense in their case more than in any other, where a party mistaking his rights commits a trespass by forcibly seizing and taking away another man's property.

95 U.S. at 209. Little v. Barreme, Bates v. Clark and Howard v. Lyons establish unequivocally that the military status of the defendants or the military nature of their duties confers on them no immunity different in kind from that of other government officials. The macho principle has never been a feature of our law. Thus to the extent that the majority opinion relies on the necessity for aggressive exercise of military decisionmaking as a reason for its holding, it has strayed far outside the limits of traditional American thinking about the appropriate role of the military in our government. If the weak infant republic could in the interest of accountability reject the macho principle when faced with the perils of the Napoleonic wars, the reason for adopting it in a mature and powerful republic escapes me.

It remains to explore whether the fact that the alleged victims were members of the armed forces would significantly alter the federal law on immunity otherwise applicable. That question involves reliance, in the majority opinion, on the serviceman as automaton principle. For our exploration we may return once again to our November 1949 starting place in the Second Circuit. In Feres, Judge A. Hand treated the Federal Tort Claims Act issue as a matter of statutory interpretation, and grounded his interpretation primarily on the fact that other federal statutes provided compensation to some extent without regard to fault. Since Mrs. Feres had not sued the allegedly negligent officers individually, Judge A. Hand had no occasion to and did not discuss whether they could be sued. Feres should be contrasted with Gregoire, where the complaint charged an intentional tort of false arrest to which by definition the Federal Tort Claims Act in 1949 did not apply. Judge L. Hand was dealing with the entirely separate and nonstatutory issue of whether federal officials, sued individually, were absolutely immune from civil liability under either state or federal law as a consequence of a judicially created rule of federal common law. When Feres arrived in the Supreme Court, however, Justice Jackson's opinion included language which has since tended to becloud the distinction between the Feres and Gregoire issues. He noted that the Federal Tort Claims Act imposed liability on the "United States . . . in the same manner and to the same extent as a private individual under like circumstances. . . ." 340 U.S. at 141, 71 S.Ct. at 157 (quoting 28 U.S.C. § 2674). This was, of course, a reference to the application of state tort laws, and it precluded the approach, later adopted by the Court in Bivens, of a uniform federal rule applicable to plaintiffs and defendants regardless of the situs of the accident. Justice Jackson assumed that Congress would not desire the imposition of such potentially diverse legal standards in the distinctly federal relationship of the government and members of its armed forces. 340 U.S. at 143, 71 S.Ct. at 158. That reason for construing the Federal Torts Claims Act as inapplicable to soldiers, whatever its weight, still applies, since the statute by its terms adopts state law standards of liability. But since the decision in Bivens, that reason is wholly inapplicable to suits against individual federal officers since the federal courts are free to fashion a uniform federal common law. Thus the problem of nonuniformity to which the opinion refers is not present in the case before us, at least insofar as the majority discussion of a federal common law remedy is involved.

Justice Jackson, however, advanced another reason for placing the military outside the coverage of the Act. Noting the reference to state law, he observed:

One obvious shortcoming in these claims is that plaintiffs can point to no liability of a "private individual" even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving.[10] Nor is there any liability "under like circumstances," for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command.

[10] Cf. Dinsman v. Wilkes, 12 How. 390 [13 L.Ed. 1036], and Weaver v. Ward, Hobart 135, 80 Eng.Rep. 284 (1616), as to intentional torts.

340 U.S. at 141-42, 71 S.Ct. at 157 (emphasis added). The quoted passage is the source for the later confusion as to the existence of a separate doctrine of absolute immunity of military officers from suits by members of the armed forces. It is quite clear, however, that there never was such absolute immunity, and that Justice Jackson never intended to suggest that there was. Indeed, such a suggestion coming from a Justice recently returned from acting as prosecutor in the Nuremberg Trials, where he had seen ample evidence of the need to make the military responsive to basic principles of personal integrity, would have been quite surprising. Jackson stated only that he knew of no intra-military state law of negligence. Moreover, in the same sentence, he makes a footnote reference to cases recognizing the liability of military officers for intentional torts. Dinsman v. Wilkes, 53 U.S. (12 How.) 389, 13 L.Ed. 1036 (1851), to which Justice Jackson refers in Feres, is important in two respects. First, it is closely analogous, factually, to the dispute before us. Second, it was relied upon by Justice White in the opinion of the Court in Butz v. Economou, 438 U.S. at 492, 98 S.Ct. at 2903.

In 1836 Congress directed the Navy to undertake what was for that age an enormous and important scientific enterprise: a surveying and exploring expedition of the Pacific Ocean and the South Seas. At the time of the expedition involved in Dinsman, the law provided that if the term of enlistment of a navy seaman expired while the vessel on which he served was in foreign service, the commanding officer was obliged to send him to the United States in some public or other vessel unless his detention was essential to the public interest. Dinsman, a marine serving in the exploring expedition on board the vessel Vincennes, contended in 1840 that his enlistment was over and that he should be put on board a returning vessel. Captain Wilkes, the commanding officer, declined. He contended that the enlistment had been lawfully extended, and when Dinsman refused to render service, Wilkes ordered him flogged. Dinsman continued to demand that he be returned, and was flogged and locked in the brig on more than one occasion. When the vessel called at Oahu, Hawaii, for repairs, he was lodged in a local and allegedly dismal lock-up. Upon his return to the United States, Dinsman sued Wilkes in trespass vi et armis for assault and battery and false imprisonment, alleging, among other things, that he had been subjected to cruel and unusual punishment in violation of the eighth amendment and that his detention and punishment on Wilkes' orders were without legal justification. A jury in the circuit court in the District of Columbia returned a verdict in Dinsman's favor. The Supreme Court reversed on a writ of error because the trial court's charge was too favorable to the plaintiff. Wilkes v. Dinsman, 48 U.S. (7 How.) 88, 12 L.Ed. 618 (1849). Justice Woodbury noted, however, that while there was a presumption of regularity with respect to the imposition of military discipline, there was no absolute immunity from liability for intentional torts. He observed:

It is not to be lost sight of . . . that, while the chief agent of the government, in so important a trust, when conducting with skill, fidelity and energy, is to be protected under mere errors of judgment in the discharge of his duties, yet he is not to be shielded from responsibility if he acts out of his authority or jurisdiction, or inflicts private injury either from malice, cruelty, or any species of oppression, founded on considerations independent of public ends.

The humblest seaman or marine is to be sheltered under the aegis of the law from any real wrong, as well as the highest in office.

48 U.S. at 122. A new trial followed. This time the jury verdict favored Wilkes, but on writ of error the Supreme Court again reversed and ordered a third trial because of errors in the admission and exclusion of evidence. Dinsman v. Wilkes, 53 U.S. (12 How.) 389, 13 L.Ed. 1036 (1851). The reasons for reversal in each case are not particularly relevant for our purposes. What is relevant is that both cases make it abundantly clear that a member of the armed service is not absolutely immune from suit by another member for a willful tort, although he may be entitled to a charge suggesting some degree of qualified immunity, which must be determined at trial.

Justice Jackson very carefully distinguished in Feres between the action on the case for negligence and an intentional tort. His Feres opinion simply cannot be read, as the district court and others read it, to suggest absolute intra-military immunity from liability for intentional torts. Moreover, no post- Feres opinion of the Supreme Court suggests the existence of any separate category of absolute intra-military immunity. And in Butz v. Economou, Justice White states explicitly and unequivocally that Wilkes v. Dinsman was not overruled by Spalding v. Vilas. The immunity of military superiors is the same as, but no more than, the qualified immunity afforded to other members of the executive branch. That conclusion has been clear from Little v. Barreme in 1804 through Wilkes v. Dinsman in 1849 and Bates v. Clark in 1877 and Howard v. Lyons in 1959 to Butz v. Economou in 1978. In that line of authorities, Wilkes v. Dinsman also negates use of the serviceman as automaton principle relied on in the opinion of the court.

There is, moreover, statutory authority plainly undercutting the majority's serviceman as automaton rationale for its decision. The policy of American military law is not to encourage blind obedience by discouraging complaints of official misconduct. It is just the opposite. It is embodied, moreover, not in the statutes dealing with veterans benefits, which by no stretch of the most fevered imagination can be construed to have anything to do with military discipline, but in the statute in which Congress dealt directly with that subject. The Uniform Code of Military Justice and its predecessors — the Articles of War and the Articles for the Government of the Navy — far from discouraging complaints of wrongs committed by military superiors, affirmatively encourage them. 10 U.S.C. §§ 938, 939. That policy has been part of our military law since at least 1806. Moreover, lest it be thought that such complaints are a matter for intra-military concern only, it is settled that results of such complaints are judicially reviewable. E.g., Colson v. Bradley, 477 F.2d 639 (8th Cir. 1973); Cortright v. Resor, 447 F.2d 245 (2d Cir.), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972). Since throughout our military history a policy of encouraging complaints of wrongs by military superiors has been codified in those statutes enacted by Congress pursuant to its constitutional authority to "make Rules for the Government and Regulation of the land and naval forces," it requires a considerable judicial impudence to announce that permitting complaints in a court of law would be injurious to the discipline of the armed forces. Our armed services have served the republic reasonably well under a policy which encourages complaints and requires redress of wrongs.

Scheuer v. Rhodes is the complete answer to the majority's reliance on the macho principle as a justification for absolute immunity, for that principle is equally applicable to suits by civilians, which that case permits. The ancient complaint procedures embodied in the Uniform Code of Military Justice afford a complete answer to the majority's reliance on the serviceman as automaton principle, since our statutory military policy encourages complaints about and redress of intra-military wrongs. The two policy reasons advanced in support of a military necessity rationale have been rejected by the policymakers whose policy judgments should be accepted by this court.

Thus when the majority announces an intra-military immunity so broad as to deprive every court in the land of jurisdiction to hear a claim for relief for the commission of a willful tort, it explores new territory and invents new doctrines unwarranted by our historical experience. Nonetheless the defendants urge, and the majority judges apparently believe, that sound policy compels such invention. It is contended by defendants that if military superiors could be sued for the intentional infliction of harm, the result would be that federal judges would exercise judicial review over their decisions. This is urged as an unthinkable proposition. It was not unthinkable to the Supreme Court in the Dinsman case. The opinions in that case disclose that Captain Wilkes was tried by a navy court martial for his conduct during the Exploring Expedition and found not guilty. He urged throughout that the favorable outcome of the court martial precluded the imposition of personal liability. The Court held to the contrary; the outcome was not even admissible into evidence. Dinsman v. Wilkes, 53 U.S. at 405. Even the existence of a separate system of military justice did not preclude accountability in a civil action in a court of law.

Faced with the decision in Wilkes v. Dinsman, Congress has had over one hundred thirty years to react to it legislatively in the exercise of its power "[t]o make Rules for the Government and Regulation of the land and naval Forces." U.S. Const. art. I, § 8, cl. 14. It has never chosen to confer absolute immunity. Instead, in keeping with a long historical tradition, it has done no more than provide for removal of such suits to a federal forum. The presently applicable statute is 28 U.S.C. § 1442a (1976), which is derived from Section 9 of the Uniform Code of Military Justice. Section 9 in turn was based on the Articles of War. Certainly, Congress is in a better position than we are to judge whether protection other than removal to a federal forum is necessary for the government of the armed forces.

It is now settled, I had hoped beyond dispute, that even the very decisions of that separate system of military justice are subject to some form of judicial review in the Article III courts. The issue is not availability of judicial review over actions by the military departments of the executive branch, but the appropriate limits of such review. Those limits are found in the holdings in Butz v. Economou, Scheuer v. Rhodes, and Wood v. Strickland, which requires that a charge be given which recognizes a qualified rather than an absolute immunity.

The only viable policy ground supporting the opinion of the court is the cover up principle. Denying servicemen access to the courts of law for wrongs committed by their superiors will have the inevitable effect, in a closed society like the military, of encouraging concealment, while the availability of such access even when infrequently used will tend to encourage disclosure and accountability. It is unfortunately the case that even democratic governments must have military establishments in order to maintain effective sovereignty. There are, however, numerous examples of governments democratic in form but totalitarian in fact, because, unlike the United States, their military establishments have become the embodiment of the national sovereignty rather than the controlled means whereby democratically chosen civilians may rule. We have been spared that unhappy state in large part because we have always insisted that the military cannot conceal its activities from review by civil authority. The courts have played a significant role in maintaining civil control. A decision which eliminates an important means of access to the courts — a means which in some cases may be the last resort in face of efforts at concealment — is a major assault upon an important citadel of American democracy: military accountability to civil government. The decision embodies a public policy that is affirmatively evil. Rather than a "special factor counselling hesitation", the military status of the victims and the perpetrators is a special factor calling for vigilance.

III

In Part I of his opinion Judge Adams disassociates himself from the holding in the opinion of the court that the Supreme Court's immunity decisions supply "special factors counselling hesitation" in recognizing a federal common law cause of action for involuntary human experimentation on servicemen. For the reasons set forth in Part II of this opinion, his disassociation is sound. Nevertheless he, too, joins the majority's foregone conclusion that government officials, military and civilian, charged with conducting that experimentation will not be held accountable in a federal court of law. His route to that result, unfortunately, is no more candid in its treatment of the materials relied upon than the opinion of the court. He acknowledges that the governing standard for recognizing a cause of action against federal officials under the federal common law for constitutional violations, in the absence of a statute conferring it, is that announced in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). That case holds that such a federal common law cause of action is presumptively available except in two situations:

The first is when defendants demonstrate "special factors counselling hesitation in the absence of affirmative action by Congress." 403 U.S. at 396 [91 S.Ct. at 2004] [ Bivens]; Davis v. Passman, 442 U.S. 228, 245 [99 S.Ct. 2264, 2276, 60 L.Ed.2d 846] (1979). The second is when defendants show that Congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, supra, at 397 [91 S.Ct. at 2005]; Davis v. Passman, 442 U.S. at 245-47, [99 S.Ct. at 2276-77].

446 U.S. at 18-19, 100 S.Ct. at 1471-1472. Judge Adams concedes that the case does not fall within the first exception despite the labored effort of the opinion of the court. He then undertakes a search for a statute in which Congress has provided an alternative remedy as a substitute for recovery for intra-military intentional torts. He cannot find one in Title 10 of the United States Code, in which Congress has exercised its power to make rules for the governance of the military, and turns in desperation to the veterans benefit legislation — 38 U.S.C. Nowhere in the latter can he find a place in which Congress "explicitly declared" that the benefits provided be viewed as equally effective as an action for money damages. Thus he is compelled, in order to reach the agreed upon foregone conclusion, to rewrite both Carlson v. Green and Title 38 of the United States Code.

To remove from the Carlson v. Green standard the requirement of an explicit declaration preempting suits for money damages he reasons that Congress could not have made such an explicit declaration because the last Veterans Benefit Act was passed in 1958, thirteen years before the Supreme Court decided Bivens. This reasoning is disingenuous. In the first place, money damages could be recovered under state tort law for intentional and negligent torts in 1958. Thus despite the confusion about federal common law which reigned between 1938 when Erie v. Tompkins, was announced and 1971, when Bivens restored a semblance of rationality, Congress had to be well aware in 1958 of the possibility of actions for money damages in the state courts. An intention by Congress to foreclose a federal common law remedy for money damages while leaving open the possibility of suits in state courts would be irrational. If it wanted to cut off state remedies, it could in 1958 have made the explicit declaration which Carlson v. Green requires. Thus the time of enactment of the veterans benefit legislation can be no basis for this intermediate court to find that requirement satisfied. Moreover, Judge Adams' reasoning ignores the patent reality that in every Congress since 1971 the level of veterans benefit legislation has been considered, either in the appropriation process or otherwise. Indeed the speciousness of his reasoning is demonstrated internally in the concurring opinion, which relies, in finding a Congressional intention to eliminate third party money damage claims, upon a snippet of the legislative history of the Veterans and Survivors Pension Adjustment of 1976. That legislation, surely, presented Congress with a post- Bivens opportunity to make the explicit declaration which Carlson v. Green requires.

Judge Adams cannot find in Title 38 any indication whatever that Congress dealt with the subject matter of tort actions against third parties by veterans or their families. He turns to the extensive legislative history of that title. The first veterans benefit statute was enacted on September 29, 1789, and at no time since have we been without such legislation. Searching 182 years of legislative history for the slightest hint of an expression which can be tortured into a Congressional intention arguably satisfying Carlson v. Green, the opinion relies on a 1976 statement, and lifts it completely out of context. Plainly, the statement relied upon — "[t]he [Congress] periodically reviews the service-connected disability compensation program to ensure that authorized benefits provided reasonable and adequate compensation for disabled veterans" — Concurring Opinion, at 1245, deals with the problem of inflation, not the problem of third party actions. A brief writer would be criticized for taking similar liberties with legislative materials.

Further evidence of the illogic of the separate opinion is the effort to bolster the unfair use of legislative history with a citation to Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). Relying on a reference to Stencel Aero in Hatzlachh Supply Co., Inc. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62 L.Ed.2d 614 (1980), the opinion, again out of context, uses the quotation: "In Stencel, Congress had provided a remedy, which we thought to be exclusive." 444 U.S. at 464, 100 S.Ct. at 650. The quoted language cannot refer to any "exclusive remedy" except that against the United States. Stencel Aero was a case in which an injured serviceman was pursuing a tort action against a third party, whose claim for indemnity by the United States was rejected. The opinion in that case clearly assumes that third party actions are available to servicemen despite service and veteran benefit programs. The question was not specifically addressed because there was no need to. Both in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), and in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), in service and veterans benefits were available to the plaintiffs, but the Court held that plaintiffs could recover under the Federal Tort Claims Act because third party actions would lie despite that availability. Rather than supporting Judge Adams' attribution of Congressional intention to limit recovery from third parties then, Stencel Aero points in a 180 degree different direction. In light of the Brooks and Brown holdings, the construction of Hatzlachh and of the holding in Stencel Aero set out in the concurring opinion are utterly unsupportable.

Moreover, speaking of employee benefit programs generally, inclusion of an express prohibition on third party actions would be a legal anomaly. Workers' compensation legislation is the civilian analogue to veterans benefits. The federal employee compensation statute limits the liability of the United States. 5 U.S.C. § 8116 (1976). But like compensation statutes generally, the federal law permits third party actions, even against fellow employees. Indeed the United States has provided itself by law with a subrogation lien on claims against third parties for injury to servicemen for those expenses it has incurred. The statute expressly preserves third party actions, making no exception for fellow servicemen defendants. In many cases the claims of the United States and of the serviceman have gone forward in the same action. Some of those cases have been against members of the armed forces. Here Congress has spoken explicitly to the question whether its benefit programs should determine the level of recovery, and has said otherwise.

The result which Judge Adams would reach by the legerdemain of rewriting Carlson v. Green and Title 38 would produce an even more peculiar set of anomalies. He would apparently permit a Bivens type of action in cases where the tort did not produce the kind of permanent injury which qualifies for veterans benefits, but deny it when the tortfeasor caused such injury. Thus if a serviceman received a painful beating — the rubber hose treatment, for example — but recovered, he could sue in federal court, but if the rubber hose knocked out his eye, he could not. Similarly, since dishonorably discharged servicemen are generally barred from receiving benefits, 38 U.S.C. § 3103(e)(2), Judge Adams would presumably allow recovery by one discharged after a court martial, but deny recovery to one who had been honorably discharged. No rational Congressman would make such distinctions. Moreover, Judge Adams would, in the event of a permanent injury, permit suit in a state court despite the availability of veterans benefits. This would treat veterans benefits as adequate to foreclose recovery under federal law but inadequate to foreclose such recovery in a suit in a state court. As noted earlier, no rational Congressman would design such a system. This is especially true when the standard of conduct relied upon by the plaintiff is a federal constitutional provision to be applied by the state court because of the Supremacy Clause. The plain fact is that Congress has never, directly or indirectly, expressed an intention to make veterans benefits preemptive of federal or state tort actions. A fortiori the availability of such benefits lends no support to the holding of the court that intra-military actions for money damages for intentional torts of any kind are not permitted.

IV

While Judge Adams would remand for further consideration of the state law claims, the opinion of the court holds that those claims are preempted. It is worth noting, however, that aside from their absolute immunity contention, defendants did not urge state law preemption. To the contrary, they told us:

Plaintiffs' allegations in this case, if true, would undoubtedly show egregious government misconduct, but for all appearances, their claim arises under traditional tort law, not the Constitution.

Appellees' Brief at 26. The same concession was made in the district court. There was no occasion for the plaintiffs to argue that if a federal common law cause of action were rejected, the state law claim ought to be considered. In these circumstances the opinion of the court in sua sponte holding state law of intentional torts to be preempted in the military setting is a violation of fundamental principles of appellate due process.

I must concede, however, that since the opinion of the court is in a realistic sense an immunity decision, the result of the preemption discussion is at least logical. If there were absolute intra-military immunity it would apply regardless of the source — federal or state — of the cause of action. But there is no such immunity, and the rationale for rejecting a Bivens-type claim is no more satisfactory when applied to the pendent state law claim. Preemption analysis is appropriate only when two regulatory schemes, state and federal, are in such actual conflict that both cannot stand in the same field, or where Congress has unmistakably preempted the field. Florida Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). If the majority were correct that there is no federal common law cause of action, then there is no possibility of a conflict between state and federal regulatory schemes. Moreover, it cannot point to any statute by which Congress has unmistakably preempted the state law of intentional torts. The majority's opinion is thus inconsistent with settled preemption rules. The result is sustainable only on immunity grounds, but as noted in Part II, absolute immunity is foreclosed by any fair reading of the governing caselaw.

I would hold that the cause of action is, absent absolute immunity, one arising under federal law. If, as defendants urge, servicemen's claims for constitutional violations causing harm arise under traditional state tort law, most such suits would start in state courts in the absence of complete diversity. Federal military official defendants would undoubtedly exercise the right to remove to a federal tribunal. 28 U.S.C. § 1442(a) (1976). But even in a removed case, since the underlying cause of action arose under state law, the federal tribunal would be obliged to apply the law of the state, including its choice of law. That result would, from the point of view of the federal military establishment, be thoroughly undesirable, for it would prevent the recognition of uniform standards of liability and uniform defenses.

On the other hand, the recognition that the claim arises under the Constitution and laws of the United States means that even if the suit is not removed from a state court the applicable law will be uniform. In the military context, in which residents of many states are brought together, and few have any choice as to location, the need for such uniformity is compelling. A stronger case for federal common law can hardly be imagined.

The opinion of the court certainly achieves uniformity by providing that all courthouse doors are shut for all intentional torts. No civil court may redress unlawful searches and seizures, false imprisonments, or beatings. If a military command tolerates the presence of a Ku Klux Klan Klavern on a post and its members assault blacks or steal their property, the victims are deprived of access to a civil tribunal, which might expose a military cover-up. If female service personnel are raped while on duty, they are deprived of the right to insist that the aggressors respond in damages. If a commanding officer places a sadist in charge of the brig, his victims will be dependent for redress solely upon the chain of command which placed the sadist in charge. That kind of uniformity is purchased at too high a price in any society which treasures human rights. "In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees." Butz v. Economou, 438 U.S. at 506, 98 S.Ct. at 2910.

V

The majority concludes that the complaint fails to state a claim for relief under either federal or state law, and does not reach other grounds advanced by the defendants. Since I would reverse the district court's dismissal those grounds should be addressed.

A

The defendants urge that the order appealed from should be dismissed because no defendant is subject to service of process by a New Jersey forum. Service was made pursuant to Fed.R.Civ.P. 4(e) and New Jersey Civil Practice Rule 4:4-4(e), which authorize out of state service on nonresident defendants subject to due process limitations. Thus defendants can succeed in their personal jurisdiction argument only if we were to conclude that the exercise of adjudicatory authority by a New Jersey court over this lawsuit would violate due process.

The defendants rely on World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), Kulko v. Superior Court of California, 436 U.S. 84, 96 S.Ct. 1690, 56 L.Ed.2d 132 (1978), Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) and International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). That reliance is misplaced. Jaffee allegedly resided in New Jersey, he was drafted and transported involuntarily to Nevada, he was there subjected to radiation which eventually produced harm in New Jersey. It is in New Jersey that he is being treated for cancer, in New Jersey that he suffers pain, in New Jersey that his wife is being deprived of his services and companionship. It is an extreme reading of the due process clause to require Jaffee to follow the defendants to the several states in which they now reside. The military circumstances of the case highlight the potential burdens for such plaintiffs and the need for uniform standards.

The district court did not fully develop its jurisdictional analysis and did not have the benefit of the recent Supreme Court decision in World-Wide Volkswagen Corp. v. Woodson, supra, which deals with due process limitations on state long-arm in personam jurisdiction. The federalism concerns which appear to have motivated the World-Wide Volkswagen Corp. majority, 444 U.S. at 293-94, 100 S.Ct. at 595, probably do not apply here since it is unlikely that any state's law could have controlled defendants' conduct or that any state would be interested in protecting defendants from liability for constitutional torts. But since the district court did not consider the matter in detail, I would affirm its judgment without prejudice to a reconsideration of the personal jurisdiction issue upon a proper motion. If the district court concludes that there is no personal jurisdiction, that fact alone would not preclude its authority to transfer the case for venue reasons under 28 U.S.C. § 1406(a) (1976). See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); Schwilm v. Holbrook, 661 F.2d 12 (3d Cir. 1981).

B

Finally, defendants urge that the dismissal of the complaint should be affirmed because under 28 U.S.C. § 1391(b) (1976) venue did not lie in New Jersey. They contend that for venue purposes the cause of action arose, if at all, only in Nevada. The district court held, I think properly, that the action arose in New Jersey, where the effects of the radiation were first manifested. If plaintiff had not developed cancer he would not be seeking damages. While he was exposed to radiation in Nevada, his cause of action for radiation-induced cancer, which eventually developed when he resided in New Jersey, arose in Nevada only in some metaphysical sense. Clearly there was venue in New Jersey under 28 U.S.C. § 1391(e) for Count IV which we considered in Jaffee I and to which the claims now before us are intimately related. In any event, the defendants' venue argument is not a reason for affirming the dismissal of the complaint. At most we would have to remand so that the district court could consider a transfer. 28 U.S.C. § 1406(a) (1976). See Brimer v. Levi, 555 F.2d 656 (8th Cir. 1977).

VI

It is appropriate to note my complete agreement with Judge Hunter's strong objection to the Courts of Appeals basing their decisions upon prophecies of how the Supreme Court would decide the same case. To his objection I add this observation: what in the opinion of the court apparently is intended as an anticipatory genuflection to our superiors may instead be perceived, on the evidence of Scheuer v. Rhodes, as a gratuitous libel. I remind my brethren that in the Sixth Circuit Court of Appeals the majority accepted the same military necessity arguments which they now predict the Supreme Court will accept. Judge Celebrezze, the member of the Sixth Circuit Court of Appeals with actual experience as the Commander-in-Chief of the Ohio National Guard, recognized those arguments as the nonsense they are. Krause v. Rhodes, 471 F.2d 430, 447-68 (6th Cir. 1972). It is his view which was adopted by a unanimous Supreme Court. The Court recognized, what Judge Celebrezze knew from his experience in government, that in a democracy we have far more to fear from the lack of military accountability than from the lack of military discipline or aggressiveness. There is no evidence that the Supreme Court has changed its mind.

VII

Years ago, Chief Justice Cockburn, rejecting the contention that military discipline required absolute intra-military immunity from suit, cogently and eloquently observed:

In substance [the argument] comes to this. It is essential to the efficiency of an army that discipline should be upheld; that obedience to orders however desperate and peremptory should be enforced; that the energy of commanding officers in giving such orders, in cases of trying emergency, and enforcing obedience of orders and observance of discipline . . . should not be crippled by the apprehension of vexatious actions; more especially as juries by whom such actions would have to be decided are incompetent to form a judgment on matters of a military or naval character. . . .

. . . I must say that this reasoning fails to bring conviction to my mind. I cannot bring myself to believe that officers in command would hesitate to give orders which a sense of duty required, or to enforce obedience and discipline in the due exercise of authority, from any idle apprehension of being harassed by vexatious actions. Men worthy to command would do their duty, as Eyre, B., expresses it, "fearless of consequences," and would trust to the firmness of judges, and the honesty and good sense of juries to protect them in respect of acts honestly, though possibly erroneously, done under a sense of duty. On the other hand, while no man would more strenuously uphold military authority when legitimately exercised, or would more earnestly urge upon juries the propriety of presuming everything in favor of its legitimate exercise, and of requiring the most cogent and conclusive evidence in favor of its abuse to entitle an inferior officer to recover in an action against a superior, I cannot bring myself to think that it is essential to the well-being of our military or naval force, that where authority is intentionally abused for the purpose of injustice or oppression . . . the party injured . . . is to be told that the Queen's Courts, in a country whose boast it is that there is no wrong without redress, are shut to his just complaint. . . . Neither can I believe that a jury, under the guidance of a judge, may not safely be intrusted with the decision of such questions.

Dawkins v. Lord Paulet, 5 QB 94, 107-09. I think as highly of the devotion to duty of American military men in 1981 as Lord Cockburn did of British military men in 1869, and I am as confident in our legal system as he was in the British.

I would reverse the order dismissing the complaint.