The district court has detailed these various actions — now consolidated — and their procedural nuances. 398 F. Supp. 500, 501 (D.N.J. 1975). In the interest of simplicity, the following recitation suffices for our purposes.
The authorities illustrating this principle are legion. See, e.g., Mason v. United States, 568 F.2d 1135 (5th Cir. 1978) (per curiam) (seaman on active duty; relieved from routine naval duties and tending to personal business on his way home, action held barred); Zoula v. United States, 217 F.2d 81 (5th Cir. 1954) (servicemen on active duty; automobile accident on base; servicemen dressed in civilian clothes and tending to personal business in preparation for a week-end pass; action barred); Mariano v. United States, 444 F. Supp. 316 (E.D.Va. 1977) (serviceman injured while working as a part-time employee, with permission of his commanding officer, of a club located on base; club maintained by nonappropriated federal funds; plaintiff was in a civilian status when the injury was sustained, on liberty, but not on leave; allegation that the United States negligently failed to provide him with a safe place in which to work; action barred); Thomason v. Sanchez, 398 F. Supp. 500 (D.N.J. 1975), aff'd, 539 F.2d 955 (3d Cir. 1976) (serviceman operating a motorcycle on base during off-duty hours; action barred); Coffey v. United States, 324 F. Supp. 1087 (S.D.Cal. 1971) (plaintiff, an active-duty serviceman, had a liberty card and was riding towards the camp exit on his way to off-post liberty; action barred); Gursley v. United States, 232 F. Supp. 614 (D.Colo. 1964) (serviceman on three-day pass; injured on base when his quarters were demolished; action barred); Richardson v. United States, 226 F. Supp. 49 (E.D.Va. 1964) (off-duty serviceman drinking in a non-commissioned officers' club located on base during off-duty hours; plaintiff was on week-end liberty; action barred) (alternative holding); Ritzman v. Trent, 125 F. Supp. 664 (E.D.N.C. 1954) (plaintiff on active duty, not on leave or furlough; engaged not in the performance of any military duty but in repairing a private automobile; activity in no way related to his duties as a soldier; action barred). 200023.02.
The parties have cited numerous cases involving similar factual situations. The Government begins with Thomason v. Sanchez, 398 F. Supp. 500 (D.N.J. 1975), aff'd, 539 F.2d 955 (3d Cir. 1976), a case bearing an uncanny factual resemblance to the present case. The plaintiff, on active duty with the United States Army at Fort Dix, New Jersey, was riding a motorcycle on base outside of his "duty hours" when he was struck by an automobile driven by a member of the Army performing his assigned tasks.
We do not agree. Congress has chosen to limit the extent of the United States' waiver of sovereign immunity by restricting a serviceman to the specific remedies specified in the Veterans' Benefit Act. See Henninger v. United States, 473 F.2d 814 (9th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973); Thomason v. Sanchez, 398 F. Supp. 500 (D.N.J. 1975), aff'd, 539 F.2d 955 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977); Towry v. United States, 459 F. Supp. 101 (E.D.La. 1978), aff'd, 620 F.2d 568 (5th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). Inasmuch as the Secretary followed the prescribed statutory procedure, plaintiffs' constitutional claim must fail. Plaintiffs have not complained that the Secretary failed to comply with statutory process, and indeed, his compliance is clear from the record.
568 F.2d at 1136. See also Stansberry v. Middendorf, 567 F.2d 617 (4th Cir. 1978) (per curiam); Thomason v. Sanchez, 398 F. Supp. 500 (D.N.J. 1975), aff'd, 539 F.2d 955 (3d Cir. 1976) ( Feres applied where serviceman injured while riding motorcycle on base during "off-duty" hours); Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977) (serviceman injured on base during "off duty" hours). Appellant relies upon several cases in which military plaintiffs were allowed to recover despite the government's argument that Feres should apply.
Instead, the plaintiffs "exclusive remedy" is an action against the United States under the FTCA.Martinez, 875 F. Supp. at 1073 (quoting Nadler v. Mann, 731 F. Supp. 493, 495 (S.D.Fla. 1990), aff'd in part, rev'd in part on other grounds, 951 F.2d 301 (11th Cir. 1992)); see Schrob v. Catterson, 967 F.2d 929, 934 (3d Cir. 1992); Melo, 912 F.2d at 639; Leddy v. United States Postal Serv., 525 F. Supp. 1053, 1054 (E.D.Pa. 1981); Thomason v. Sanchez, 398 F. Supp. 500, 504 (D.N.J. 1975), aff'd, 539 F.2d 955 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977). As mentioned, the Federal Complaint alleges that, at the time of the Accident, Roethel was operating the Postal Service Vehicle "as agent, servant and/or employee" of the Postal Inspection Service. See Federal Complaint, Count 2, ¶ 3.
Instead, the plaintiff's "exclusive remedy" is an action against the United States under the FTCA.Nadler v. Mann, 731 F. Supp. 493, 495 (S.D.Fla. 1990), aff'd in part, rev'd in part on other grounds, 951 F.2d 301 (11th Cir. 1992); see Schrob v. Catterson, 967 F.2d 929, 934 (3d Cir. 1992); Melo v. Hafer, 912 F.2d 628 at 639 (3d Cir. 1990); Leddy v. United States Postal Service, 525 F. Supp. 1053, 1054 (E.D.Pa. 1981); Thomason v. Sanchez, 398 F. Supp. 500, 504 (D.N.J. 1975), aff'd, 539 F.2d 955 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977). As indicated, the Plaintiffs contend the instant motion to dismiss the Complaint against Chandler is premature because it has not yet been determined whether Chandler was acting within the scope of his employment with the Postal Service. Opp.Brief at 3.
Instead, the plaintiff's "exclusive remedy" is an action against the United States under the FTCA.Nadler v. Mann, 731 F. Supp. 493, 495 (S.D.Fla. 1990), aff'd in part, rev'd in part on other grounds, 951 F.2d 301 (11th Cir. 1992); see Schrob v. Catterson, 967 F.2d 929, 934 (3d Cir. 1992); Melo, 912 F.2d at 639; Leddy v. United States Postal Service, 525 F. Supp. 1053, 1054 (E.D.Pa. 1981); Thomason v. Sanchez, 398 F. Supp. 500, 504 (D.N.J. 1975), aff'd, 539 F.2d 755 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977). As indicated by the statute, a suit will fall under the restrictions of the FTCA if the Attorney General certifies that the defendant employee "was acting within the scope of his [or her] office or employment at the time of the incident out of which the claim arose. . . ."
This last fact does not automatically decide the case: in Thomason v. Sanchez, 539 F.2d 955, 957 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977), the Third Circuit held that vehicular accidents on a military base cannot be the basis for a suit by a soldier against the Government. The plaintiff in that case, although on the base, was not on duty. Thomason v. Sanchez, 398 F. Supp. 500, 501 (D.N.J. 1975), aff'd, 539 F.2d 955 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977). Thomason thus suggests that the absence of any evidence that plaintiff was acting under orders is a factor to be considered, but is not decisive.
Moreover, Congress's failure for 30 years to amend the FTCA and legislatively "correct" the Feres holding is a sub silentio "acquiesc[ence] in the holding of Feres", United States v. Lee, 400 F.2d 558, 561 (CA9 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969), that strongly suggests that the Supreme Court correctly interpreted congressional intent.See, e.g., Peluso v. United States, 474 F.2d 605, 606 (CA3), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973) ("If the matter were open to us we would be receptive to appellants' argument that Feres should be reconsidered, and perhaps restricted"); Thomason v. Sanchez, 398 F. Supp. 500, 503 (D.N.J. 1975) ("we previously expressed reservations about the continued validity of the broad Feres doctrine. Upon reconsideration we reiterate that concern.")