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withdrawing the conclusion that the military discipline rationale "has come to be considered the primary rationale of the Feres doctrine"
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No. 566, Docket 86-6198.
Motion for Recall of Mandate Submitted October 26, 1987.
Decided February 5, 1988.
Edward Cherney, New York City (Breadbar Garfield, New York City, of counsel), for plaintiff-appellant.
Charles E. Knapp, Asst. U.S. Atty., Brooklyn (Andrew J. Maloney, U.S. Atty., for the Eastern District of New York, Robert L. Begleiter, Asst. U.S. Atty., Brooklyn, of counsel), for defendant-appellee.
Appeal from the United States District Court for the Eastern District of New York.
Before MANSFIELD, PIERCE and MAHONEY, Circuit Judges.
Judge Mansfield participated in the oral argument in this case and voted before his death on January 7, 1987, in favor of the prior disposition reached by this panel and reported at 813 F.2d 593 (2d Cir. 1987).
On March 12, 1987, we reversed a judgment of the United States District Court for the Eastern District of New York, Eugene Nickerson, Judge, entered pursuant to a decision granting the government's motion to dismiss Sanchez's complaint on the ground that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), barred the suit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1982). See Sanchez v. United States, 813 F.2d 593 (2d Cir. 1987). This Court found that, of the three rationales traditionally thought to explain the Feres doctrine, see generally Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977), one had become recognized as Feres's primary rationale — that of avoiding judicial "second-guessing" of military decision-making and preserving military discipline. See, e.g., United States v. Shearer, 473 U.S. 52, 57, 58 n. 4, 105 S.Ct. 3039, 3043, n. 4, 87 L.Ed.2d 38 (1985) (stating that the key questions are "whether the suit requires the civilian court to second-guess military decisions . . . and whether the suit might impair essential military discipline" and that Feres's other two rationales are "no longer controlling"); Bozeman v. United States, 780 F.2d 198, 201 (2d Cir. 1985) ("military discipline" is the chief rationale for the Feres doctrine); see also Chappell v. Wallace, 462 U.S. 296, 299-300, 103 S.Ct. 2362, 2365, 76 L.Ed.2d 586 (1983) ( Feres best explained by the "military discipline" rationale). This conclusion was consistent with the views of other Circuits. See, e.g., Johnson v. United States, 749 F.2d 1530, 1538-39 (11th Cir. 1985), aff'd on rehearing en banc, 779 F.2d 1492 (11th Cir. 1986), rev'd, ___ U.S. ___, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987); Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir. 1983); Monaco v. United States, 661 F.2d 129, 132 (9th Cir. 1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). In our earlier decision, we concluded that it was not inevitable that military decision-making would be questioned as a result of this litigation and that it was too early in the proceedings to determine whether Sanchez's injuries "arise out of or are in the course of activity incident to service." Consequently, we remanded for further proceedings, cautioning that Feres may yet be applicable to the case if it became clear as the litigation progressed that military decision-making would be questioned. 813 F.2d at 596. Appellee petitioned for and was denied a rehearing in May 1987.
Appellee subsequently moved in October 1987 to recall this Court's mandate in light of two recent Supreme Court decisions, United States v. Johnson, ___ U.S. ___, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), and United States v. Stanley, ___ U.S. ___, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). In a 5-4 decision, the Supreme Court in Johnson held that a suit involving injuries that were "incident to service" was barred by Feres even if the complaint alleged negligence by civilian rather than military employees of the Federal government. In the decision, the Supreme Court reaffirmed the vitality of "the three broad rationales underlying Feres," 107 S.Ct. at 2068-69, and rejected the Eleventh Circuit's in banc decision that Feres did not bar the suit because the "military discipline" rationale constituted Feres's primary justification, id. at 2065-66. Subsequently, in Stanley, the Supreme Court held that no Bivens remedy is available, even against civilian government personnel, when the alleged injuries were incident to military service. Using the Feres doctrine as its guide in the Bivens context, the Court rejected a standard for determining the availability of a Bivens remedy based solely on the degree of "judicial intrusion upon military discipline" in favor of Feres's "incident to service" test. 107 S.Ct. at 3062-63.
In light of Johnson and Stanley, we find that a clarification of our prior opinion is in order. We withdraw the conclusion in our prior opinion that the military discipline rationale "has come to be considered the primary rationale of the Feres doctrine." Nonetheless, we adhere to our view that, at this preliminary stage in the proceedings, it remains to be seen whether Sanchez's injuries "arise out of or are in the course of activity incident to service." Accordingly, we grant the motion to recall our prior mandate, reverse the decision of the district court, and remand this action for further proceedings in light of the "three broad rationales" underlying Feres, and to determine whether the appellant's injuries "arise out of or are in the course of activity incident to service."
The mandate shall issue forthwith.