487 F.

3d 150

Major Frank MATREALE, Appellant

v.
State of NEW JERSEY DEPARTMENT OF MILITARY &
VETERANS AFFAIRS; National Guard of the United States.
No. 06-2051.

United States Court of Appeals, Third Circuit.

Argued February 13, 2007.
Filed May 22, 2007.
1

William A. Riback (Argued), Camden, NJ, for Appellant.

Michele A. Daitz, Office of Attorney General of New Jersey, Dorothy J.

Donnelly (Argued), Office of United States Attorney, Trenton, NJ, for
Appellees.

Before SMITH and FISHER, Circuit Judges, and DIAMOND, District Judge.*

OPINION
4

DIAMOND, District Judge.

Major Frank Matreale, a commissioned officer in the New Jersey Army

National Guard (NJANG) serving under orders issued pursuant to 32 U.S.C.
502(f)(1),1 brought suit in the Superior Court of New Jersey against the New
Jersey Department of Military and Veterans Affairs (NJDMVA), the overseer
of the NJANG, to recover damages for retaliation under the New Jersey Law
Against Discrimination (NJLAD). The National Guard of the United States
intervened and the case was removed from state court to the United States
District Court for the District of New Jersey. Applying the doctrine of intramilitary immunity first enunciated in Feres v. United States, 340 U.S. 135, 71
S.Ct. 153, 95 L.Ed. 152 (1950), the District Court granted summary judgment
in favor of the NJDMVA.

The issue before us is whether the Feres doctrine of intra-military immunity

bars a suit raising state law claims for damages for injuries arising from, or in

the course of activity incident to, military service brought against a state
national guard by a guardsman serving under Title 32. We hold that it does and
will affirm the District Court's grant of summary judgment.
I.
7

The District Court had jurisdiction pursuant to 28 U.S.C. 1346(b) and 1331.
We have appellate jurisdiction pursuant to 28 U.S.C. 1291. We exercise
plenary review over the District Court's grant of summary judgment and
employ the same analysis required of the District Court to determine whether
there are any issues of material fact that would enable the nonmoving party to
prevail. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 203 (3d Cir.2005).
Summary judgment is appropriate when "there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c). At the summary judgment stage, we view all
evidence and consider all reasonable inferences in a light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

II.
8

In July of 1999, pursuant to an ongoing official investigation, Matreale

provided to Lt. Col. Kent Milliken, his direct supervisor in the NJANG, a
statement supporting a female guardsman's accusation that she had been
sexually harassed by an NJANG Sergeant Major. An inquiry ultimately
concluded that the accuser in fact was sexually harassed.

Matreale, contending that based on his role in the sexual harassment

investigation, Milliken and other NJANG officers subsequently engaged in a
course of retaliation against him, including, inter alia, negative performance
evaluations and other disciplinary measures based on accusations that he had
engaged in an improper superior-subordinate relationship with the female
sexual harassment victim, sought redress in the suit referred to above.

10

The District Court, in granting summary judgment in favor of the NJDMVA,

found that Matreale, serving under Title 32, was a federal employee for
immunity purposes and concluded that his state law claims for damages were
barred under the Feres doctrine of intra-military immunity because the injuries
for which he sought recovery arose out of, or were incurred in the course of
activity incident to, his military service. The District Court further held that
Matreale's requests for reinstatement, promotion and other injunctive or
declaratory relief were non-justiciable.

III.
11

The doctrine of intra-military immunity upon which the District Court relied in
dismissing Matreale's damages claims had its genesis in Feres, supra, a
consolidation of three cases in each of which the claimant while on active duty
in the United States Armed Forces sustained an injury due to the negligence of
others in the armed forces. The Supreme Court held that the federal government
was not liable under the Federal Tort Claims Act for injuries to servicemen
arising out of, or in the course of activity incident to, military service. 340 U.S.
at 146, 71 S.Ct. at 159. The Court noted that "without exception, the
relationship of military personnel to the Government has been governed by
federal law," id., and that no federal law "has permitted a soldier to recover for
negligence, against either his superior officers or the Government he is
serving." 340 U.S. at 141, 71 S.Ct. at 157.

12

Although only alluded to in Feres, the Supreme Court subsequently expounded

upon the underlying rationale for the intra-military immunity doctrine and
described it as being predicated upon:

13

[t]he peculiar and special relationship of the soldier to his superiors, the effects
of the maintenance of such suits on discipline, and the extreme results that
might obtain if suits . . . were allowed for . . . negligent orders given or
negligent acts committed in the course of military duty . . . .

14

United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139
(1954).

15

In Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983),
the Supreme Court expanded the reach of the Feres doctrine to bar a Bivens2
claim for damages brought by federal servicemen against their federal superior
officers alleging constitutional violations resulting from alleged racial
discrimination in assignments, evaluations and punishment. As in Feres, the
Court relied primarily upon "the peculiar and special relationship" between a
soldier and his superiors, and the potential effects of permitting such lawsuits
on military discipline, in holding that the doctrine of intra-military immunity
barred Bivens damages claims. Chappell, 462 U.S. at 304, 103 S.Ct. at 2367.

16

Without exception, in other post-Feres cases, the Court has adhered to the
compelling necessity of maintaining military discipline as the basis for
expanding the intra-military immunity doctrine to encompass a variety of
claims, against an assortment of defendants, brought by a range of servicemen,

for injuries arising out of, or in the course of activity incident to, military
service. See United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d
550 (1987) (Feres "incident to service" test equally applicable in Bivens cases
brought by serviceman against military officers and civilians); United States v.
Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (barring FTCA
claim against civilian defendant by widow of serviceman killed in rescue
mission); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38
(1985) (barring FTCA claim against United States arising from murder of offduty serviceman by another serviceman); Stencel Aero Eng'g Corp. v. United
States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (barring claim for
indemnification against United States brought by a government contractor in a
negligence suit filed by a National Guardsman on a training mission).
17

Following the Supreme Court's rationale in those cases, in defining the scope of
the Feres doctrine we too have recognized the adverse impact on military
discipline inherent in the judicial review of military orders and have sought to
avoid it. In Jaffee v. United States, 663 F.2d 1226, 1239 (3d Cir.1981), we held
that the Feres doctrine extends to bar a federal serviceman's state law
intentional tort claim against his Army supervisors. We recognized two
potential consequences of permitting suits for service injuries: their effect on
the willingness of military personnel to follow the directions of their superiors
and the concomitant chilling effect that the concern of being called into civilian
court may have on the discharge of the decision-making duties of military
authorities. Id. at 1232. Of particular significance to the matter presently before
us, we noted in Jaffee that "[s]uits founded on state law have the same potential
for undermining military discipline as federal tort claims." Id. at 1239.

18

Later, in Jorden v. National Guard Bureau, 799 F.2d 99, 104-05 (3d Cir.1986),
we determined that the reasoning in Chappell, supra, barring Bivens damages
claims against federal military officers, was equally applicable to a 1983
action brought by a full-time civilian technician in a state national guard against
state military officers in light of the Supreme Court's decision in Butz v.
Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), which
unequivocally held that Bivens claims and 1983 claims are to be treated as
identical for immunity purposes. We observed that in Chappell the Supreme
Court "was laying down a general rule barring damages actions by military
personnel against superior officers for constitutional violations, rather than
authorizing a fact-specific inquiry." Jorden, 799 F.2d at 108.

IV.
19

In this case, there is no dispute that the alleged harm suffered by Matreale arose

from, or in the course of activity incident to, his military service in the NJANG,
since his damages allegedly resulted from the conduct of his superior officers
in evaluating and disciplining him. A straightforward application of the Feres
doctrine as it has evolved in the Supreme Court and this Circuit, therefore,
would appear to dictate the conclusion reached by the District Court that
Matreale's damages claims are barred by intra-military immunity.
20

Pressed by the overwhelming weight of the foregoing federal precedent,

however, Matreale seeks to avoid such a straightforward application of the
"federally created" Feres doctrine by attempting to convert this case into an
exclusive state law matter. In that vein, Matreale argues that, as a state
guardsman, serving under Title 32, he is a state employee suing other state
employees, also serving under Title 32, under state law. Accordingly, his
argument goes, the issue of immunity is one which should be addressed and
resolved solely under state law; specifically, the question should be whether the
NJDMVA is entitled to immunity under the NJLAD, rather than one addressed
to federal law in the form of the Feres doctrine.

21

Matreale's entire position rests on his attempt to differentiate between state

guardsmen serving pursuant to Title 10, on the one hand, and those serving
pursuant to Title 32, on the other. Matreale contends that the Feres doctrine
applies only to state guardsmen who have been mobilized to active duty under
Title 10, but does not apply to guardsmen serving under Title 32, except to the
extent those guardsman are engaged in drills or field training under 32 U.S.C.
502(a)3 at the time of the alleged conduct, because guardsmen serving under
Title 32 are state, as opposed to federal, employees.

22

Neither party in this case questions the fact that Matreale was serving under
orders issued pursuant to 32 U.S.C. 502(f)(1), and had not been mobilized
under Title 10, at the time of the conduct in question.4 Likewise, there is no
dispute that all of the superior officers implicated in the alleged retaliatory
behavior against Matreale also were serving under orders issued pursuant to 32
U.S.C. 502(f). Finally, there is no dispute that at the time of the conduct in
question, neither Matreale nor his superiors were engaged in drills or field
training under 32 U.S.C. 502(a). Under these circumstances, Matreale
contends that at all material times all relevant parties in this case were serving
in a state, not a federal, capacity and, therefore, were state employees subject
only to state law on the question of immunity.

23

Matreale's argument is without merit for several reasons. First, the essential
premise of his entire case, i.e., that, for immunity purposes, he was solely a
state employee, is invalid. Rather, the District Court clearly was correct in

holding that Matreale's Title 32 status at the time of the alleged incidents
rendered him a federal employee for Feres purposes.
24

First, at the time of the conduct in question, Matreale was serving under orders
issued pursuant to federal law, specifically, 32 U.S.C. 502(f). His
appointment as an officer was pursuant to the sixteenth clause of section 8,
article I of the Constitution, and he began full time service with the national
guard in December of 1992 on orders issued pursuant to 32 U.S.C. 502(f). As
the District Court correctly noted, these orders rendered Matreale, at all
relevant times, a full time guardsman in the National Guard of the United States
serving in accordance with the Active Guard Reserve Program.

25

In addition, this Court previously has applied the Feres doctrine to a guardsman
serving under Title 32. In Loughney v. United States, 839 F.2d 186 (3d
Cir.1988), we held that a national guardsman on active guard reserve duty
status, as Matreale was in this case, was barred by the Feres doctrine from
suing the government under the Federal Tort Claims Act. We emphasized there
that "[i]t is simply the status of the claimant that is dispositive." Id. at 188.
Because Loughney was a "serviceman" and his injury arose out of or in the
course of activity incident to his military service, we concluded that his FTCA
claim was barred by the doctrine of intra-military immunity. Id.

26

Like Loughney, Matreale was a Title 32 serviceman in active guard reserve

duty status and his alleged damages arose out of, or in the course of activity
incident to, his military service. The fact that Loughney sued under the FTCA
whereas Matreale is suing only under state law is of no consequence. As we
recognized in Jaffee, supra, the Feres doctrine applies to suits founded on state
law as well as to those founded on federal law because state law based suits
have the same potential for undermining military discipline as do federal
claims. Jaffee, 663 F.2d at 1239; see also Coffman v. State of Michigan, 120
F.3d 57 (6th Cir.1997) (statutory remedies under Michigan Handicapper's Civil
Rights Act are not available to uniformed members of the armed forces
including National Guard members).

27

Matreale's arguments in support of his position that his status as a Title 32

guardsman rendered him a state rather than a federal employee likewise are
unpersuasive. First, his reliance on Perpich v. Department of Defense, 496 U.S.
334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990) is misplaced. There, the Supreme
Court held that Congress may authorize that members of the National Guard be
assigned to active federal duty for training outside the United States without
either the consent of the state governor or the existence of a national
emergency. The Court, in addressing the unique "dual enlistment" status of state

National Guard members, observed that "[s]ince 1933 all persons who have
enlisted in a State National Guard unit have simultaneously enlisted in the
National Guard of the United States." 496 U.S. at 345, 110 S.Ct. 2418. The
Court held that under this dual enlistment system, "a member of the Guard who
is ordered to active duty in the federal service is thereby relieved of his or her
status in the State Guard for the entire period of federal service." Id. at 346, 110
S.Ct. 2418.
28

Matreale misconstrues the Perpich holding as implying that unless a state

guardsman has been called to active duty under Title 10 and thereby loses his
status in the state guard, he at all other times remains solely in state, not federal,
status. But the plain holding of the Court is to the contrary. Under the holding
in Perpich, Matreale attained dual status as a member of both the National
Guard of the United States and the NJANG when he accepted his commission
as an officer. 32 U.S.C. 305 and 307; N.J.S.A. 38A:7-4. And while under
Perpich a state guardsman loses his state status when he is called to active duty
under Title 10, there is nothing in Perpich from which one reasonably may
infer, as Matreale argues, that a Title 32 guardsman "loses", or does not have,
federal status unless he is mobilized under Title 10 or engaged in drills or field
training under 32 U.S.C. 502(a). On the contrary, the Supreme Court in
Perpich stressed that its holding that a state guardsman is stripped of his state
status when he is called to active duty under Title 10 "merely recognizes the
supremacy of federal power in the area of military affairs." Perpich, 496 U.S. at
351, 110 S.Ct. at 2428. Our conclusion that a state guardsman serving under
orders issued pursuant to Title 32, whether serving under 502(a) or 502(f),
has and retains his federal status, along with his state status, even when he has
not been called to active duty under Title 10, likewise recognizes federal
supremacy over military affairs.

29

Matreale also cites to Phillips v. State Department of Defense, 98 N.J. 235, 486
A.2d 318 (N.J.1985). This case too is of little value to his position. In Phillips,
the New Jersey Supreme Court held that a national guardsman injured while
training remained an employee of the state and was not an employee of the
federal government, which would have precluded application of the New Jersey
state military compensation law. While mentioning the Feres doctrine in
passing, the court did not rely on the Feres rationale because "the statutory
interplay between the New Jersey military compensation law and the New
Jersey Tort Claims Act was not present in Feres." 98 N.J. at 321, 486 A.2d at
241. In short, Phillips did not authorize a tort suit against the State of New
Jersey or any other person or entity by an injured guard member, whether in
federal or state status, but merely provided a remedy under the state military
compensation law for personal injuries suffered by a guard member in state

status.
30

For the foregoing reasons, we agree with the District Court's determination that
Matreale and his supervisors, all of whom were serving under orders issued
pursuant to 32 U.S.C. 502(f) at the time of the conduct in question, were
serving in a federal capacity and therefore were federal "employees" for
purposes of the intramilitary immunity doctrine.

31

Our conclusion that Matreale and his supervisors were federal (or at best dual
federal-state) employees, at the time of the conduct in question is dispositive of
his remaining argument that state law, rather than the Feres doctrine, should
determine the question of immunity.5 We need look no further than Feres for
an unequivocal refutation of this argument. There, the Supreme Court stressed
the point that the "relationship between the Government and members of its
armed forces is `distinctly federal in character'" and that "without exception, the
relationship of military personnel to the Government has been governed by
federal law." Feres, 340 U.S. at 143-44, 146, 71 S.Ct. at 158, 159 (citation
omitted). The court explained:

32

To whatever extent state law may apply to govern the relations between
soldiers or others in the armed forces and persons outside them or nonfederal
government agencies, the scope, nature, legal incidents and consequence of the
relation between persons in service and the Government are fundamentally
derived from federal sources and governed by federal authority.

33

340 U.S. at 143-44, 71 S.Ct. at 158 (quoting United States v. Standard Oil Co.,
332 U.S. 301, 305-06, 67 S.Ct. 1604, 1607, 91 L.Ed. 2067 (1947)).

34

As stated above, at the time of the conduct giving rise to his suit, Matreale and
his supervisors were members of the military serving in a federal capacity
under orders issued pursuant to Title 32. As a result, federal authority as set
forth in Feres and its progeny, rather than state law, governs the issue of
immunity. And because the alleged harm suffered by Matreale arose from, or in
the course of activity incident to, his military service in the NJANG, his claims
for damages are barred under the intra-military immunity doctrine.

35

Our holding in this case is consistent with, and a logical corollary to, our prior
precedent in the area of intra-military immunity. We previously have applied
the Feres doctrine in Loughney to a Title 32 guardsman suing under federal law.
We also have applied the doctrine in Jaffee to a federal active duty serviceman
suing under state law. It is both reasonable and appropriate to apply the doctrine

to Title 32 guardsman suing under state law and thereby to make immunity coextensive for all dual-status national guardsmen. A concern for the disruption
of the unique relationship of military personnel to their superiors and to other
military personnel that likely would result if one could hale another into court
as a result of activity incident to military service is equally as compelling in the
context of lawsuits brought by Title 32 guardsmen, whether serving under
502(a) or 502(f), as it is in the context of lawsuits brought by Title 10
guardsmen.
36

Accordingly, for the foregoing reasons, the District Court's finding that
Matreale's damage claims founded on state law are barred by the Feres doctrine
of intra-military immunity doctrine will be affirmed.

V.
37

The District Court also held that Matreale's requests for promotion and other
injunctive relief arising from his negative officer evaluations are nonjusticiable. Matreale did not challenge this aspect of the District Court's
decision in his brief on appeal and, therefore, he has waived it. Laborers' Int'l
Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994).
Accordingly, the District Court's grant of summary judgment in favor of the
NJDMVA as to Matreale's request for injunctive relief also is affirmed.

VI.
38

For the foregoing reasons, we agree with the District Court that there are no
genuine issues of material fact in the above matter and that the NJDMVA is
entitled to judgment as a matter of law. Accordingly, we will affirm the
decision of the District Court granting summary judgment in favor of the
NJDMVA.

Notes:
*

The Honorable Gustave Diamond, Senior District Judge for the Western
District of Pennsylvania, sitting by designation

That section provides in pertinent part:

Under regulations to be prescribed by the Secretary of the Army or Secretary of
the Air Force . . . a member of the National Guard may

(A) without his consent, but with the pay and allowances provided by law; or
(B) with his consent, either with or without pay and allowances;
be ordered to perform training or other duty in addition to that prescribed under
subsection (a) [required drills and field training.]
2

InBivens 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 Supreme Court
authorized suits against federal officials whose actions violate an individual's
constitutional rights.

Title 32 U.S.C. 502(a) provides in pertinent part:

Under regulations to be prescribed by the Secretary of the Army or the
Secretary of the Air Force . . . each company, battery, squadron, and
detachment of the National Guard, unless excused by the Secretary, shall
(1) assemble for drill and instruction, including target practice, at least 48 times
each year; and,
(2) participate in training at encampments, maneuvers, outdoor target practice,
or other exercises, at least 15 days each year.

Matreale's unit subsequently was mobilized to active duty in Iraq pursuant to

Title 10 on August 19, 2004. However, at the time of the conduct at issue in
this case, Matreale was serving under Title 32

Matreale argues that the NJLAD would not provide immunity for guardsman
but suggests in any event that it is for the New Jersey Supreme Court, not this
Court, to determine the immunity question under state law. Matreale therefore
alternatively seeks certification of this question to the New Jersey Supreme
Court. In light of our holding that Matreale is a federal employee for immunity
purposes and that this case is governed by federal law, the issue of certification
of the question to state court is moot

39

SMITH, Circuit Judge, concurring.

40

I join in its entirety the excellent opinion of my esteemed colleague, Judge

Diamond. In light of the purposes of the doctrine as well as its application by
the Supreme Court and several courts of appealsincluding this Courtthe

majority has aptly shown why we will apply intra-military immunity to bar the
damages claims presented here. I write separately only to note that this Court,
again and again, has dutifully applied the Feres doctrine in spite of perceived
injustice and possibly in opposition to the actual text of the FTCA, but noting
that we are bound to do so unless and until the Supreme Court or Congress tells
us otherwise.6
41

The tension between the decision in Feres and the FTCA is obvious. As Justice
Scalia stated in his oft-cited United States v. Johnson dissent, the exception in
2680(j) illustrates that "Congress specifically considered, and provided what it
thought needful for, the special requirements of the military. There was no
proper basis for [the Supreme Court] to supplementi.e., to revisethat
congressional disposition." 481 U.S. 681, 693, 107 S.Ct. 2063, 95 L.Ed.2d 648
(1987) (Scalia, J., dissenting); see 28 U.S.C. 2680(j) (excluding, under the
FTCA, "[a]ny claim arising out of the combatant activities of the military or
naval forces, or the Coast Guard, during time of war") (emphasis added). In the
five-plus decades since the Feres decision, the Supreme Court has expanded
the doctrine of intra-military immunity in a variety of circumstances. See, e.g.,
Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983)
(Feres doctrine used to bar claims that were not even against the United States
or based on the FTCA); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039,
87 L.Ed.2d 38 (1985) (barring an FTCA claim of a soldier kidnapped and
murdered when off-base and off-duty by another soldier).

42

The doctrine of intra-military immunity remains ripe for reconsideration by the

Supreme Court in light of the questionable foundation upon which it stands.
Prior panels of this Court, of other courts of appeals, and numerous
commentators have questioned the soundness of the Feres doctrine. A long line
of Supreme Court cases, beginning with Feres v. United States, have been
decided in seeming opposition to Congress' clearly expressed intent in the
FTCA as to the scope of intra-military immunity. Feres and its progeny ought
to be reexamined.

Notes:
6

See Richards v. United States, 176 F.3d 652, 657 (3d Cir.1999) ("It is because
Feres too often produces such curious results that members of this court
repeatedly have expressed misgivings about it."); Richards v. United States,
180 F.3d 564, 565 (3d Cir.1999) (Rendell, J., dissenting from a denial of a
petition for rehearing en banc) ("I urge the Supreme Court to grant certiorari
and revisit what we have wrought during the nearly fifty years since the Court's

pronouncement in Feres. . . ."); O'Neill v. United States, 140 F.3d 564, 566 (3d
Cir.1998) (Becker, C.J., statement sur denial of the petition for rehearing) ("I
urge the Supreme Court to grant certiorari and reconsider Feres."); Loughney v.
United States, 839 F.2d 186, 188 (3d Cir.1988) ("We, like the district court, are
constrained by the decisions of the Supreme Court and must adhere to the view
that Court has expressed."); Estate of Martinelli v. United States, Dep't of Army,
812 F.2d 872, 874 (3d Cir.1987) (stating that "any relaxation in the Feres
doctrine must come from Congress"); Heilman v. United States, 731 F.2d 1104,
1112 (3d Cir.1984) ("The existence of a system by which soldiers, veterans, and
their families could receive some compensation for harm they suffered in the
service of their country clearly influenced the original decision to preclude suits
of the sort before us on review. There is reason to believe that this system has
broken down." (citation omitted)); Hinkie v. United States, 715 F.2d 96, 97 (3d
Cir.1983) (conceding that "we have no legal authority, as an intermediate
appellate court, to decide the case differently"); Mondelli v. United States, 711
F.2d 567, 568 (3d Cir.1983) (stating that "we acknowledge the result to be a
harsh one," but nonetheless barring suit under the doctrine of intra-military
immunity); Jaffee v. United States, 663 F.2d 1226, 1239 (3d Cir.1981) (en
banc) ("This is a difficult and troubling decision."); Thomason v. Sanchez, 539
F.2d 955, 957 (3d Cir.1976) ("We previously expressed reservations about the
continuing validity of the broad Feres doctrine. Upon reconsideration we
reiterate that concern; as we noted there, however, we are powerless to jettison
Feres or to dislodge it sufficiently to create an exception for vehicular collisions
involving servicemen." (citation omitted)); Peluso v. United States, 474 F.2d
605, 606 (3d Cir.1973) (per curiam) (questioning the logic of the Feres
decision but applying it to the facts of the case). It is no wonder that Justice
Scalia in his Johnson dissent bluntly stated that "Feres was wrongly decided
and heartily deserves the `widespread, almost universal criticism' it has
received." United States v. Johnson, 481 U.S. 681, 700-01, 107 S.Ct. 2063, 95
L.Ed.2d 648 (1987) (Scalia, J., dissenting) (quoting In re "Agent Orange"
Product Liability Litigation, 580 F.Supp. 1242, 1246 (E.D.N.Y.1984)); see also
Costo v. United States, 248 F.3d 863, 869 (9th Cir.2001) (reluctantly
concluding that "until Congress, the Supreme Court, or an en banc panel of this
Court reorients the [Feres] doctrine, we are bound to follow this well-worn
path"); id. at 869 (9th Cir.2001) (Ferguson, J., dissenting) (challenging the
constitutionality of the Feres doctrine on equal protection and separation of
powers grounds).