TUTTLE, Circuit Judge:
Appellant James B. Stanley appeals from the district court's granting of summary judgment in favor of defendant. Appellant brought suit against the United States
Three issues are raised on this appeal. The first is whether the district court correctly found that Stanley's claims were for injuries incurred while engaging in activity incident to service and thus within the ambit of the Feres doctrine. The second issue is whether Stanley alleged a cause of action based on injuries sustained subsequent to his discharge. Finally, we must decide whether the district court properly ordered the entry of summary judgment rather than dismissing the case for lack of subject matter jurisdiction. We find that the trial court correctly applied Feres and held the United States immune to all of Stanley's claims under the Federal Tort Claims Act, since all of his injuries arose while he was engaged in activity incident to his military service. However, we reverse the granting of summary judgment, as we find that, once having found the Feres doctrine applicable, the district court should have dismissed the case for lack of subject matter jurisdiction.
In February, 1958, appellant was a Master Sergeant in the United States Army, stationed with his wife and children at Fort Knox, Kentucky. Responding to a posted notice, appellant volunteered to participate in an Army program allegedly intended to aid the Army in developing and testing methods of defense against chemical warfare.
Appellant claims that the defendants were negligent in several respects in their administration of the program.
After completing the testing, appellant returned to his regular duties and continued his career in the Army for eleven years. He retired honorably as a Sergeant First Class in 1969. In 1975, when he received a letter from the Department of the Army, Walter Reed Medical Center, soliciting his participation in a follow-up study of volunteers who participated in the 1958 experiments at Edgewood Arsenal, appellant learned for the first time that he had been given LSD during the course of the 1958 experimentation.
Appellant filed claims with the United States Army and the Central Intelligence Agency
II. APPLICABILITY OF FERES
In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court considered the claims of three servicemen for recovery under the Federal Tort Claims Act for injuries sustained while they were on active duty. The Court was persuaded to dismiss the suits by consideration of factors such as the "peculiar and special relationship of the soldier to his superior, the effect of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty." United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954).
Although the Feres doctrine has been questioned at times,
Appellant argues that his participation in the chemical warfare testing program should not be considered "activity incident to service" because he was a volunteer and had been given a release from his regular duties in order to participate in the program. Additionally, appellant contends that the Government's activity here was illegal and thus should not be covered by the Feres doctrine.
Appellant has no sound authority for his assertion that the voluntary status of his participation in the program necessitates the conclusion that Feres should not control. Feres has been applied in cases involving a wide range of voluntary activity. See, e. g., Charland v. United States, 615 F.2d 508 (5th Cir. 1980) (serviceman killed while voluntarily participating in a Navy Seal Training exercise); Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979) (serviceman killed while voluntarily travelling as a military space available passenger); Mason v. United States, 568 F.2d 1135 (5th Cir. 1978) (per curiam) (motor vehicle accident on base while serviceman tending to personal business); Hass v. United States, 518 F.2d 1138 (4th Cir. 1975) (serviceman injured while riding horse rented from stable owned and operated by Marine Corps); Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (serviceman injured in swimming pool at an Air Force base); Schnurman v. United States, 490 F.Supp. 429 (E.D.Va.1980) (serviceman injured while participating voluntarily in Naval experiment designed to test the effectiveness of certain protective clothing when exposed to sulphur mustard gas); Schmid v. Rumsfield, 481 F.Supp. 19, 21 (N.D.Cal.1979) (serviceman assaulted as result of his voluntary activities as informant assisting in the recovery of stolen government property and prosecution of drug offenses); Loeh v. United States, No. 77-2065-B and 77-2023-B (S.D.Ill. April 23, 1979) (serviceman injured when administered LSD while participating voluntarily in Army drug experimentation program).
Additionally, courts have consistently applied Feres in suits to recover for the alleged medical malpractice of Army physicians and surgeons where the claimant's activity when injured was essentially voluntary in nature. See, e. g., Veillette v. United States, 615 F.2d 505 (9th Cir. 1980); Vallance v. United States, 574 F.2d 1282 (5th Cir.) (per curiam), cert. denied, 439 U.S. 965, 99 S.Ct. 453, 58 L.Ed.2d 423 (1978); Peluso v. United States, 474 F.2d 605 (3d Cir.) (per curiam), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973); Hall v. United States, 451 F.2d 353 (1st Cir. 1971); Howell v. United States, et al., 489 F.Supp. 147 (W.D.Tenn.1980). Feres has even been applied in cases involving elective surgery. Harten v. Coons, 502 F.2d 1363 (10th Cir.), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1974); Lowe v. United States, 440 F.2d 452 (5th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L.Ed.2d 64 (1971). Moreover, the servicemen in the three cases before the Supreme Court in Feres itself were all engaged in essentially voluntary activity at the time they were injured. Therefore, appellant's contention that the voluntary nature of his participation in the
Likewise, the fact that appellant had been given a release from his regular duties does not preclude the possibility that appellant was injured while engaging in "activity incident to service." In a factual setting virtually identical to the one at hand, the Second Circuit found that the serviceman was on active duty at the time the experimentation took place despite the fact that the plaintiff was on a "Temporary Duty Assignment" when he was administered LSD. See Lerner v. United States, et al., No. 76 Civ. 4349 (S.D.N.Y. Jan. 16, 1978), aff'd mem, 578 F.2d 1368 (2d Cir., 1978). Similarly, in Mason v. United States, supra, this Court was not persuaded by the argument that Feres should not apply when a serviceman was injured during the time in which he had been given a release from his routine duties. The court reasoned that the serviceman was still subject to all military regulations and was available for emergency service or temporary duties and held the government immune to suit. 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. Those cases, however, all involved situations which are distinguishable from the situations at hand. For example, in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), the Supreme Court allowed a veteran to pursue his claim under the FTCA since he had actually been discharged at the time he was injured. See also Bankston v. United States, 480 F.2d 495 (5th Cir. 1973). In contrast, Stanley does not claim to have been discharged at the time he participated in the experiments. Stanley also fails to allege that he was on furlough or on a pass as were the plaintiffs in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) and Knecht v. United States, 144 F.Supp. 786 (E.D.Pa. 1956), aff'd 242 F.2d 929 (3d Cir. 1957). Finally, Stanley was not tending to his personal affairs as he saw fit at the time of the accident as were the plaintiffs in Parker v. United States, 611 F.2d 1007 (5th Cir. 1980) and Hand v. United States, 260 F.Supp. 38 (M.D.Ga. 1966). See also Downes v. United States, 249 F.Supp. 626 (E.D.N.C. 1965).
The fact that the injury occurred on a military base is strong evidence that the plaintiff was engaged in activity incident to service at the time, although this fact alone is not dispositive. See Hand v. United States, supra; Downes v. United States, supra. The Court must consider the totality of the circumstances surrounding the injury and distinguish between "those cases involving activities arising from life on the military reservation and those in which the presence on the base has little to do with the soldier's military service." Parker v. United States, 611 F.2d 1007 (5th Cir. 1980).
In the Parker case, this Court held that a serviceman's claim under the Federal Tort Claims Act was not foreclosed even though the injury occurred on a military base where the function the plaintiff was performing at the time of his death was not related to his military status and did not arise from his life on the base. The court allowed Parker to maintain his suit under the Act since he was on a four day pass and merely driving through the base while tending to the purely personal business of moving
In contrast, Stanley was not on a pass and was not tending to purely personal business at the time this alleged injury arose. At the time Stanley was given LSD, he was a Master Sergeant in the Army who had volunteered to participate in an experimental program in lieu of his regular duties. The experiment was conducted on an Army base by and for the benefit of the Army. Thus, the relationship between Stanley and the allegedly negligent individuals stemmed from their official military relationship. See Lee v. United States, 261 F.Supp. 252, 256 (C.D.Cal. 1966), rev'd 400 F.2d 558 (9th Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969). See also, Camassar v. United States, 400 F.Supp. 894 (D.Conn. 1978), aff'd per curiam, 531 F.2d 1149 (2d Cir. 1976). Stanley had been informed that he was free to leave the testing program at any time; however, this freedom appears to have been restricted to his returning to his original post at Fort Knox. He did return to his original duties there after he was released from Edgewood and remained in the service for eleven years. At least, therefore, he was subject to ultimate military control throughout the duration of his participation in the program. See Mills v. Tucker, 499 F.2d 866 (9th Cir. 1974) (per curiam); cf. Hall v. United States, 451 F.2d 353 (1st Cir. 1971) (rejecting contention that Feres applies only where military discipline is involved.) Stanley was receiving military pay and was promised a letter of commendation for his participation in the program. Clearly his participation in the program was activity incident to his military service despite the fact that he had been given a release from his regular duties. See Garrett v. United States, 625 F.2d 712 (5th Cir. 1980); Shults v. United States, 421 F.2d 170 (5th Cir. 1969) (per curiam).
The trial court also correctly disposed of appellant's contention that the testing program was so "patently illegal" that it could not be considered activity incident to service. The cases cited by appellant in support of this contention are inapposite as they do not involve tort claims by servicemen or address the applicability of the Feres doctrine. See Birnbaum v. United States, 436 F.Supp. 967 (E.D.N.Y. 1977); Avery v. United States, 434 F.Supp. 937 (D.Conn. 1977); Cruikshank v. United States, 431 F.Supp. 1355 (D.Hawaii 1977). Moreover, the argument that a drug testing program such as the one involved in this case should be considered outside the scope of the Feres doctrine since the program was not the kind of activity which might reasonably be anticipated as ancillary to military service has been rejected in two other cases involving facts virtually identical to those before this Court. Lerner v. United States, supra; Loeh v. United States, supra; Nagy v. United States, 471 F.Supp. 383 (D.D.C. 1979). See also Southard v. United States, 397 F.Supp. 409 (E.D.Pa. 1975) (Feres applied despite allegation of illegal conduct by the Army).
The Feres doctrine has been applied broadly over the years. Although the action before the Court in Feres was against the United States, the doctrine has been extended to apply to suits against individual defendants. See, e. g., Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir. 1967); Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965), cert. denied, 383 U.S. 948, 86 S.Ct. 1205, 16 L.Ed.2d 210 (1966). Likewise, although the Feres case involved allegations of negligence, the doctrine has been extended to hold the United States immune to suits based on intentional or reckless as well as constitutional torts. See, e. g., Jaffe v. United States, 468 F.Supp. 632, 635 (D.N.J. 1979), aff'd, 592 F.2d 712 (3d Cir. 1979), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066; Citizen National Bank of Waukegan v. United States, 594 F.2d 1154 (7th Cir. 1978); Calhoun v. United States, 475 F.Supp. 1 (S.D.Cal. 1977), aff'd, 604 F.2d 647
III. SEPARATE TORT THEORY
As an additional point on appeal, appellant contends that even if Feres precludes his recovery of damages based on the original experiments, he has properly alleged a separate cause of action for damages due to the negligent failure of the Army officers involved to monitor his condition after his discharge which would not be barred by Feres. For this contention, he relies principally on a case involving similar facts, Thornwell v. United States, supra, where the court allowed recovery for damages resulting from the government's failure to provide a veteran with follow-up treatment after his discharge. 471 F.Supp. at 349-53.
Appellees argue that appellant's reliance upon the Thornwell case constitutes a new theory which appellant should not be entitled to raise for the first time in a reply brief to this appellate court. See Higginbotham v. Ford Motor Co., 540 F.2d 762 (5th Cir. 1976); Capps v. Humble Oil and Refining Co., 536 F.2d 80 (5th Cir. 1976); Stanley Educational Methods, Inc. v. Becker C.P.A. Review Course, Inc., 539 F.2d 393 (5th Cir. 1976). We need not decide the correctness of appellee's argument on this point because we find that, in any case, Stanley has failed to allege facts which bring his case within the separate tort theory of the Thornwell case.
In Thornwell, the district court considered claims of a serviceman who had been surreptitiously drugged with LSD and then subjected to intense interrogation after he had been imprisoned as part of an Army investigation into the theft of a large number of classified documents. During his imprisonment, Thornwell had been subjected to several different, harsh interrogation techniques; the use of LSD was part of the investigation as well as part of an Army program to test the utility of LSD as an aid to interrogation. The court applied the Feres doctrine and dismissed those of Thornwell's claims which were based on injuries sustained due to the administration of LSD to him while he was in the service; however, the court found that Feres did not preclude Thornwell from pursuing claims based on injuries due to conduct occurring after his discharge. The court concluded that Feres should not apply to the post-discharge claims because Thornwell had been injured by two entirely separate torts — an intentional act while he was on active duty and a subsequent negligent act which "occurred, in its entirety, after he attained civilian status." 471 F.Supp. at 351 (emphasis
Initially, we find that Stanley has failed to allege an intentional tort committed while he was in the service. Although there is some language in the Thornwell case which would indicate that a negligent act will in some circumstances suffice as the original tort,
Even if Stanley's allegations of negligence suffice as the original tort, however, he has failed to allege a separate negligent act occurring "entirely after discharge." The plaintiff in Schwartz v. United States, supra, unlike the plaintiff here, based no claim on negligence occurring during the time he was in the service. His sole contention was that he had been injured by a series of negligently performed medical tests during the twelve year period after his discharge, which resulted in his injuries. There was no such active negligence alleged to have occurred after Stanley's discharge. Stanley has alleged merely an act of negligence which occurred while he was on active duty, the effects of which remained uncorrected after discharge. See Nagy, supra.
Moreover, even if the Thornwell court is correct in its conclusion that a mere failure to provide information is a separate actionable tort, we are not persuaded that the negligent failure to warn in Stanley's case occurred "entirely after his discharge." Thornwell received a general discharge just four months after he was given LSD. Thus, the government's failure to monitor his condition took place entirely after his discharge. Stanley, on the other hand, remained in the service for eleven years after the administration of the drug. Even if the government was negligent in failing to monitor his condition and provide him with any treatment, this negligent failure to monitor him cannot be seen as having taken place "entirely after his discharge." Stanley has at best alleged two negligent acts, the administration of the LSD and the negligent failure to monitor his condition, both of which occurred at least in part during his time as a serviceman even if they or their effects lingered after his discharge. Allegations of such "continuing torts" do not escape the application of the Feres doctrine.
In the Feres case, one of the claimants alleged that a towel had been left in his stomach during an operation while he was in the service. The towel was discovered during an operation taking place after his discharge yet the court dismissed the complaint since the original injury had occurred while he was in the service. In several other analogous cases, the courts characterized the situations as simple acts of negligence which remained uncorrected after
471 F.Supp. at 351. We find that Stanley likewise has failed to allege a negligent act occurring entirely after his discharge necessary to fall within the separate tort theory of Thornwell.
In reaching this conclusion we are persuaded by the reasoning of the court in Schnurman v. United States, supra. In that case a serviceman who had volunteered in 1944 to participate in an experiment designed to test the effectiveness of protective clothing against exposure to sulphur mustard gas was injured when his gas mask malfunctioned. Two years later he was discharged from the service. For thirteen years after his discharge he sought medical help for chest pains, respiratory problems and other ailments but never mentioned the possibility that those injuries were the result of mustard gas exposure. In 1976 the claimant notified a doctor that he had once been exposed to sulphur mustard gas and the doctor concluded that the plaintiff's medical problems resulted from this exposure. The plaintiff then filed suit, alleging that he had been injured by the government's negligent failure to provide him after his discharge with follow-up examinations, treatment, supervision or to warn him of the risk of physical injury presented by his exposure to mustard gas. The court found that: "The Department of the Navy could well have been more attentive to plaintiff's immediate reactions to the mustard exposure and perhaps should have ensured that the subjects were fully informed of the true nature of the experiment once the need for secrecy had passed." 490 F.Supp. at 437. Nevertheless, the court rejected plaintiff's argument based on Thornwell. In so doing the court stated:
Id. Similarly, we conclude that the facts and rationale of the Feres doctrine demand its application in this case.
IV. GRANTING OF SUMMARY JUDGMENT
Appellant contends that even if the trial court was correct in finding that Feres applied to the facts of this case, the court erred in disposing of the case by way of summary judgment rather than dismissal for lack of subject matter jurisdiction. This contention is based on the notion that if Feres applies, a district court lacks subject matter jurisdiction because the Feres doctrine is a judicially created exception to the waiver of sovereign immunity contained in the Federal Tort Claims Act and when the government has not consented to suit, the court has no subject matter jurisdiction to hear the claim. Appellant argues that once a court has determined that Feres applies, the court lacks subject matter jurisdiction, and, therefore, has no power to render a judgment on the merits of the case. Thus, he contends that the trial court in this case had no power to grant summary judgment, which acts as a final adjudication on the merits, but should have dismissed the case without prejudice. See Dassinger v. South Central Bell Telephone Co., 505 F.2d 672 (5th Cir. 1974); State of Oregon v. United States, 195 F.Supp. 276 (D.Ore. 1961), aff'd 308 F.2d 568 (9th Cir. 1962), cert. denied, 372 U.S. 941, 83 S.Ct. 934, 9 L.Ed.2d 967 (1963); People v. United States, 307 F.2d 941 (9th Cir. 1962). See generally, 6 Moore's Federal Practice, ¶ 56.03, ¶ 56.26.
Appellant points also to cases holding that summary judgment is an extreme remedy which is proper only if the claimant is not entitled to recovery under any circumstance. See, e. g., Weber v. Towner County, 565 F.2d 1001 (8th Cir. 1977); Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405 (D.C.N.Y.1973). He contends that he has a separate theory of recovery based on the Constitution and 28 U.S.C. § 1331. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); 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 United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1352, 63 L.Ed.2d 607 (1980), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Accord, Enfinger v. Enfinger, 452 F.Supp. 553 (M.D.Ga.1978). Where no such consent exists, a district court has no jurisdiction to entertain a suit against the United States. Mitchell, supra, 445 U.S. at 538, 100 S.Ct. 1352. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940); Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1, 3 (5th Cir. 1973).
The Federal Tort Claims Act is a waiver of the federal government's immunity for the torts of its employees under
A federal district court is under a mandatory duty to dismiss a suit over which it has no jurisdiction. Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668, 671-72 (5th Cir. 1978); Rodriquez v. Ritchey, 556 F.2d 1185, 1192 n.30 (5th Cir. 1977) (en banc); Scott v. Abilene Independent School District, 438 F.Supp. 594, 598 (N.D.Ga.1977). When a court must dismiss a case for lack of jurisdiction, the court should not adjudicate the merits of the claim. Durham v. Mason and Dixon Lines, Inc., 404 F.2d 864 (6th Cir. 1968); Guthrie v. Dow Chemical Co., 445 F.Supp. 311, 315 (S.D.Tex.1978). Since the granting of summary judgment is a disposition on the merits of the case, a motion for summary judgment is not the appropriate procedure for raising the defense of lack of subject matter jurisdiction. Studio Electrical Technicians, Local 728 v. International Photographers of the Motion Picture Industries, Local 659, 598 F.2d 551, 552, n.2 (9th Cir. 1979); O'Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1144-45 n.3 & 4 (9th Cir. 1977); Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975); Kowalezwk v. Walsh, 482 F.Supp. 959, 962 (D.Mass.1979); Titsch Printing, Inc. v. Hastings, 456 F.Supp. 445 (D.Colo.1978); Parker Drilling Company v. Metlakatla Indian Community, 451 F.Supp. 1127, 1130 n.1 (D.Alaska 1978). See also, Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 512 (5th Cir. 1980). See generally, 10 Wright & Miller, Federal Practice and Procedure, § 2713, p. 402 et seq. Therefore, since a defense based on the Feres doctrine is premised on the notion that there is no jurisdiction to hear the claim as the United States has not waived sovereign immunity for that kind of suit, such defenses should be raised by a motion to dismiss for lack of subject matter jurisdiction rather than by a motion for summary judgment. See Donham v. United States, 395 F.Supp. 52, 53 (E.D.Mo.E.D.1975), aff'd, 536 F.2d 765 (8th Cir. 1976), aff'd sub nom., Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1976); 6 Moore's Federal Practice, ¶ 56.17 at 56-1091, ¶ 56.26 at 1513-14. See also, Mitchell v. Riddell, 402 F.2d 842 (9th Cir. 1968), cert. denied, 394 U.S. 456, 89 S.Ct. 1223, 22 L.Ed.2d 415 (1969); Jorrie v. Imperial Investment Company, 355 F.Supp. 1088 (W.D.Tex.1973). Accordingly, we conclude that the court below erred in granting summary judgment in favor of the United States and should have dismissed the case for lack of subject matter jurisdiction.
The government's arguments to the contrary are not persuasive. Appellees correctly
The government also relies on several cases where the court affirmed the granting of summary judgment since subject matter jurisdiction was found lacking. See, e. g., Sherwood Medical Industries v. Deknotel, 512 F.2d 724 (8th Cir. 1975); McDaniel v. Travelers Insurance Co., 494 F.2d 1189 (5th Cir. 1974) (per curiam). These cases, however, are not binding authority for the government's assertion that we should affirm the granting of summary judgment in this case. In the Sherwood case, the Eighth Circuit affirmed the granting of summary judgment because the court found there was no "actual controversy" as is required for a suit under the Declaratory Judgment Act. Summary judgment there was appropriate as the Declaratory Judgment Act does not of itself create jurisdiction so the court must have had another basis of jurisdiction in order to have reached the question of whether relief was available under the Declaratory Judgment Act. Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980); Wells v. United States, 280 F.2d 275 (9th Cir. 1970). The McDaniel case was a suit brought within the admiralty jurisdiction of this Court. There, we affirmed per curiam the granting of summary judgment because the plaintiff had failed in his attempt to allege that a maritime contract existed or that defendants had breached it. The question of whether the trial court should have dismissed the case for lack of jurisdiction rather than granting summary judgment was not raised.
There are cases where courts have disposed of the Feres issue by way of summary judgment. See, e. g., Mason v. United States, 568 F.2d 1135 (5th Cir. 1978) (per curiam); Avila v. United States, No. EP-80-LA-22 (W.D.Tex., July 24, 1980); Butterline v. United States, No. 77-3034 (E.D.Pa. January 8, 1980). However, we have found no case which addresses the precise issue before this Court, or provides any reasoned explanation for why summary judgment can be an appropriate disposition
The Supreme Court appears to consider the Feres doctrine to be an exception to the waiver of sovereign immunity contained in the FTCA. See, id, at 674, 97 S.Ct. at 2079 (Marshall, J., dissenting); Dalehite v. United States, supra, 396 U.S. at 31 n.25, 73 S.Ct. at 965 n.25. We conclude, therefore, that the only correct disposition of a case based on Feres is dismissal for lack of subject matter jurisdiction since the United States has not consented to the kinds of suits in which Feres applies.
Finally, appellees argue that it would be improper for this court to remand this case with leave to amend since any amendment would be futile. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). They contend that Feres would bar even a constitutional claim which might be raised by appellants in this case. While we do not express any opinion on the merits of appellant's possible amended claims, we find that Stanley has at least a colorable constitutional claim based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 69 (1971). See Jaffee v. United States, No. 79-1543 (February 20, 1980) (petition for rehearing en banc granted, April 11, 1980); James v. United States, 358 F.Supp. 1381 (D.R.I.1973).
A court must dismiss a case over which it has no jurisdiction whenever the fatal defect appears. Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 391 (5th Cir. 1977); Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668, 671-72 (5th Cir. 1978).
While we approve the determination of the trial court that the plaintiff could not prevail on his complaint, we reverse the order granting summary judgment and remand for the consideration of the trial
VACATED and REMANDED.
340 F.2d 141. The Supreme Court then dismissed the cases for failure to state a claim. However, subsequent cases have shown that the Supreme Court appears to consider the Feres doctrine as an exception to the FTCA's limited waiver of immunity. Perhaps the difficulty stems from the fact that before the Supreme Court handed down its decision in Feres, no exception to the Tort Claims Act for activities incident to service existed, and the court correctly had jurisdiction under the Act in the Feres case itself to decide the cases before them on a motion to dismiss for failure to state a claim. We do not find that this language in Feres requires us to affirm the granting of summary judgment in this case.