Day v. Massachusetts Nat'L

• Court: Court of Appeals for the First Circuit
• Decided: January 31, 1999
• Docket: 98-1727
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1727



                           ANDREW DAY,



                      Plaintiff, Appellant,



                                v.



                MASSACHUSETTS AIR NATIONAL GUARD,

            UNITED STATES DEPARTMENT OF THE AIR FORCE,

           JAMES DUCLOS, RICHARD DUQUETTE, JAMES TOWLE,

          DUANE CATON, JAMES BALISLE, AND JOHN DOES 1-8,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Michael A. Ponsor, U.S. District Judge]


Before



            Boudin, Lynch, and Lipez, Circuit Judges.


Daniel E. Bruso with whom Mark D. Mason and Cooley, Shrair

P.C. were on brief for appellant.

     Karen L. Goodwin, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for

appellees.


January 29, 1999


BOUDIN, Circuit Judge.  This case presents uncommonly

difficult questions as to whether a serviceman, subject to assault

and battery in an on-base hazing incident properly described by the

district court as "despicable," may recover damages from the

government or from military personnel variously connected to the

attack.  The district court ruled that the claims were barred by

the doctrine of Feres v. United States, 340 U.S. 135 (1950),

limiting suits for injuries arising "incident to military service." 

Id. at 146.  Day v. Massachusetts Air Nat'l Guard, 994 F. Supp. 72

(D. Mass. 1998).  We affirm in part and reverse in part.

  Because the complaint was resolved on motions to dismiss,

the facts are set forth as alleged in the complaint and inferences

are taken in the light most favorable to the non-moving party.  SeeDartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.

1989).  That party is the plaintiff in the district court, Andrew

Day, who at the time of the alleged incident was an enlisted airman

of the Massachusetts Air National Guard, holding the rank of senior

airman/E-4.  In July 1994, Day was serving with the 104th Fighter

Group and was assigned to participate in a training exercise at

Volk Field in Wisconsin.

  During this exercise, Day says that he saw other members

of the 104th subjected to repeated instances of severe hazing; for

example, Day claims that in one case other airmen ripped off the

clothes of a member of the 104th, duct taped the naked victim to

his bed, and left him outside subject to public ridicule.  Day also

alleges that the officers and non-commissioned officers did nothing

to halt the attacks.  Day also says that he was warned by several

men, including several of the later defendants, that he would be

the victim of similar attacks.

  The incident that gives rise to the lawsuit occurred on

July 22, 1994.  According to the complaint later filed by Day,

after his release from duty on July 21, he went to a party at the

Base Club at Volk Field together with other members of the 104th. 

Day left the party at 1 a.m. on July 22, 1994, returned to his

barracks on the base, and went to sleep.  Day says that he asked

Richard Duquette, apparently the senior enlisted man on the scene,

whether Day would be attacked and was assured he would not be

attacked that night.

  Nevertheless, during the night Day was awakened by

several individuals; these including serviceman (and later

defendant) James Towle and others whom Day was unable to identify

(but are listed in the complaint as John Does 1 through 8).  These

men stripped Day, carried him outside, forced him to kneel on the

ground with his stomach across a bed set up outside the barracks

and--pouring an unknown liquid between Day's buttocks--forcibly

inserted a traffic cone between them.  Another defendant,

serviceman Duane Caton, allegedly took photographs.

  The complaint alleges without detail that Duquette aided

and abetted the attack.  Duquette's own version, which the military

apparently accepted, was that he was the one who broke up the

attack.  James Balisle and James Duclos, the remaining individuals

eventually named in the subsequent complaint, were not alleged to

have directly participated in the attack; it was Day's theory that

Balisle and Duclos were implicated because they had negligently

supervised others.

  On July 19, 1996, Day filed his present damage claim in

the district court, naming as defendants the Massachusetts Air

National Guard, the U.S. Department of the Air Force, five named

individuals (Duquette, Towle, Caton, Balisle and Duclos), and John

Does 1 through 8.  The complaint asserted against the defendants a

federal civil rights claim under 42 U.S.C.   1983 and/or a host of

state claims for civil rights violations under state law, M.G.L.

ch. 12,  11I, and for assault, battery, intentional and negligent

infliction of emotional distress, and negligent enlistment and

supervision.

  Acting under the Westfall Act, the United States Attorney

certified that Duquette, Duclos and Balisle had been acting within

the scope of their office or employment "at the time of the

incident out of which the claim arose."  28 U.S.C.  2679(d)(1). 

The effect of certification is to substitute the United States as

defendant on certified claims and protect the individual from

liability as to such claims.  Id.  2679(b)(1), (d)(1).  The U.S.

Attorney declined to certify the claims against Towle or Caton

under the Westfall Act.

     Thereafter, the district court in a thoughtful decision

dated February 12, 1998, dismissed all claims against all

defendants under the Feres doctrine.  The court concluded that even

as to deliberate injuries, the injuries alleged by Day were

"incident to military service" based primarily on Day's duty

status, the on-base location of the injuries, and the liability of

the wrongdoers to military discipline.  See Day, 994 F. Supp. at

77-80.  The court upheld the certifications by the U.S. Attorney

and rejected Towle's claim that he also should have been certified

(Caton defaulted and did not challenge the denial).  Id. at 76.

     On this appeal by Day, the central questions are whether

the Feres doctrine applies; if so, whether it bars his claims

against the individual servicemen named as defendants; and to the

extent it does not whether claims against individual defendants

were properly certified under the Westfall Act.  These are

primarily questions of law, which we decide de novo, the facts

alleged in the complaint being taken as true.  See United States v.

Omar, 104 F.3d 519, 522 (1st Cir. 1997).  We conclude that Feres 

bars federal claims against all defendants and state claims against

the United States and its components but does not bar state claims

against individual servicemen for conduct outside the scope of

their duties.  We also uphold the district court's decisions as to

the Westfall Act to the extent that they are challenged.

     Starting with Feres, the clearest way to approach this

issue is to consider whether Feres's incident to service test bars

Day's claims against the federal government and its components, as

the district court held.  Although Day's asserted aim on appeal is

to secure relief only against certain of the individual defendants

and not the government, his argument rests in part on his

interpretation of the Feres rationale and the factors ordinarily

considered under Feres.  In any case, Feres and its proper

application is the building block on which the balance of the

analysis must rest.

     As sovereign, the United States may not be sued for

damages without its consent.  See Murphy v. United States, 45 F.3d

520, 522 (1st Cir. 1995).  The United States has consented, in the

Federal Tort Claims Act, 28 U.S.C.  2671 et seq., to be sued for

damages for personal injury caused by "the negligent or wrongful

act or omission" of a federal employee "while acting within the

scope of his employment," provided that in the same circumstances

a private employer would be liable for the acts of his employee

under the local law.  28 U.S.C.  1346(b), 2674, 2675(a).  No

explicit exception bars claims by or against military personnel.

     Nevertheless, in 1950 the Supreme Court determined in

Feres that the Federal Tort Claims Act did not extend to a suit by

a deceased soldier's estate for negligent medical treatment by army

surgeons resulting in the soldier's death.  See 340 U.S. at 145-46. 

Using the like-circumstances language of section 2674(a)  as a

point of departure, Justice Jackson said that no precedent  allowed

a soldier to recover for negligence against his superiors or his

government, and his opinion offered policy reasons against such

recovery.  See id. at 141-42.  He concluded that the statute did

not extend to suits for "injuries to servicemen where the injuries

arise out of or are in the course of activity incident to service." 

Id. at 146.

     Writing in the aftermath of the Second World War, Justice

Jackson likely thought that Congress (which had only recently

enacted the Federal Tort Claims Act) did not mean to subject itself

to negligence claims by every soldier injured in the line of duty

or to open military decisions to second-guessing by civilians.  SeeFeres, 340 U.S. at 141-142.  In an age of modest tort judgments,

the loss of a tort claim was balanced by the assurance of free

medical care and veteran's benefits for an injured soldier.  Seeid. at 144-45.  The prospect of disparate state law governing tort

liability for the military looked ominous.  See id. at 143.  In all

events, the Court was unanimous.

     In the ensuing half-century, the Court has reaffirmed and

expanded the Feres doctrine, while somewhat adjusting the reasons

given for it.  The most significant expansion, from a conceptual

standpoint, came in Chappell v. Wallace, 462 U.S. 299 (1983).

There, the Court used the incident to service test to bar a suit by

seamen, not against the government under the Federal Tort Claims

Act but against individual navy superiors, for deliberate racial

discrimination in making assignments and other personnel decisions. 

See Chappell, 462 U.S. at 304-05.

     The Chappell suit was brought under the Bivens doctrine,

which gives individuals federal tort claims against government

officials for constitutional violations, here, racial

discrimination.  Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971).  Although the Federal Tort

Claims Act's like-circumstances requirement was irrelevant to such

a suit (brought directly under the Constitution), the Court simply

invoked Feres's policies to bar recovery, pointing to Bivens's

express caution that remedies may not be available when "special

factors counselling hesitation" are present.  Chappell, 462 U.S. at

298 (quoting Bivens, 403 U.S. at 396). 

     Although Chappell relied directly on Feres, it focused

primarily on only one of the reasons given in Feres, namely, the

concern that tort suits would interfere unduly in military affairs

and specifically on the need for exclusivity in military discipline

and grievance matters.  Chappell, 462 U.S. at 301-02.  This aim to

protect an exclusive military sphere of authority was emphasized

again in United States v. Shearer, 473 U.S. 52, 57 (1985) (an FTCA

case), and in United States v. Stanley, 483 U.S. 669, 682-83 (1987)

(a Bivens case), and United States v. Johnson, 481 U.S. 681, 690-91

(1987) (an FTCA case), both decided two years after Shearer.  The

circuit courts, with a few exceptions, have followed the Supreme

Court's lead in generously applying and even extending Feres to

different fact patterns and different claims.

     The incident to service test itself has become a

talisman, although perhaps not so intended  (Justice Jackson spoke

also of "service connected" injuries, Feres, 340 U.S. at 142).

Courts have sought to determine whether an injury was incident to

service by asking whether it occurred on a military facility,

whether it arose out of military activities or at least military

life, whether the alleged perpetrators were superiors or at least

acting in cooperation with the military, and--often stressed as

particularly important, see Johnson, 481 U.S. at 686 & n.7--whether

the injured party was himself in some fashion on military service

at the time of the incident.  No single element in the equation,

the Supreme Court has said, is decisive.  See Shearer, 473 U.S. at

57.

     Judged mechanically  by such criteria, see, e.g., Kellyv. Panama Canal Comm'n, 26 F.3d 597, 600 (5th Cir. 1994) (three

factor test), Day's claims against the United States are barred. 

Day, a serviceman, was threatened and assaulted while on military

service and on a military base.  The threats and assault were

perpetrated by other service personnel in the course of hazing

activities which, however outrageous, are no strangers to military

life and were apparently inflicted on other personnel as well as

Day.  The perpetrators were subject to military discipline; Day was

entitled to medical treatment if required.  True, Day was asleep

just before the assault began, rather than on duty; but this is a

small point and practically the only one in his favor under Feres.

     That the torts in this case were intentional, on the part

of some of the defendants, does not itself defeat Feres.  Chappellitself involved claims of intentional racial discrimination, see462 U.S. at 297, and Stanley involved the deliberate but

undisclosed subjection of a serviceman to an LSD experiment, see 

483 U.S. at 671-72.  We conclude that Day's claims against the

United States or its components are thus barred by Feres.

     Possibly Feres itself deserves reexamination by the

Supreme Court.  A few of Feres's original reasons no longer seem so

persuasive, cf. Johnson, 481 U.S. at 694-700 (Scalia, J.,

dissenting), and intrusions by courts to grant equitable relief in

military matters have become more familiar in recent years.  Seeid. at 700.  But some core concerns about interference in military

discipline remain highly plausible, cf. Chappell, 462 U.S. at 300,

even if they might be assuaged by a narrower rule.  And the Supreme

Court has increasingly reminded the lower federal courts that

departures from prior Supreme Court precedent should not normally 

be pioneered by circuit or district judges.  Khan v. State Oil Co.,

93 F.3d 1358, 1363 (7th Cir. 1996), rev'd on other grounds, 118 S.

Ct. 275 (1997).

     This brings us to the second set of claims presented by

Day's complaint, namely, his claims not against the United States

or its components but against individual guardsmen, both under

section 1983 and for various state-law torts.  As to Towle and

Caton, none of these claims was certified under the Westfall Act. 

Duquette was not certified as to the federal claim under section

1983, and Day challenges the certification of the state law claims

for Duquette (an issue addressed below).

     The question whether the Feres doctrine protects the

individual defendants in this case is easier as to some claims than

as to others.  At the easier end of the spectrum are federal

claims.  The only one set forth in the complaint is the claim,

under section 1983, directed against Duquette, Towle, Caton and

Does 1 through 8.  We will assume arguendo that the physical attack

on Day itself might colorably raise a claim of unlawful seizure or

even a substantive due process violation, subject to redress under

Bivens if done under color of federal law or under section 1983 if

done under color of state law.  Nevertheless, in our view the case

law bars such federal-law claims wherever the United States itself

is protected by the Feres doctrine as to the same injury.

     Feres itself was concerned solely with the vicarious

liability of the United States under the Federal Tort Claims Act. 

But in Chappell, as already noted, a unanimous Supreme Court held

that Bivens actions against individual defendants raised the same

policy concerns (primarily, the need for military autonomy); and

the Court felt free to read an implied Feres limitation into a

federal claim whose contours were the Supreme Court's

responsibility.  Elsewhere, the Supreme Court has indicated that

immunity-related limitations on Bivens are presumptively to be

applied to claims under section 1983.  Butz v. Economou, 438 U.S.

478, 500 (1978).

     This court has already held that Feres applies to section

1983 claims against individuals, as have several other courts, and

suggested that the same implied limitation must be read into

"kindred" claims based on like federal statutes.  Wright, 5 F.3d at

591.  It is true that Bivens claims were virtually invented by the

Supreme Court, while section 1983 is a federal statute shaped by

Congress.  But much of the ancillary law under section 1983,

especially that related to immunities, was also created by the

Supreme Court.  See Butz, 438 U.S. at 500-502.  It is therefore not

easy to see why the Supreme Court would impose an implied

limitation on Bivens claims based on what it deemed compelling

federal policy interests reflected in Feres and refuse to apply

that limitation to federal claims brought under section 1983 or

similar federal statutes.

     While Feres thus disposes of any section 1983 claims in

this case against individual defendants, the question remains

whether Feres also bars claims under state law against individual

defendants; and in addressing this issue, we reserve for the moment

the possibility that such individuals may be protected under the

Westfall Act.  In fact, the central issue is whether  individualscan be sued under state law in situations where Feres applies

because the injury is incident to service (thus barring suits

against the government) but where the defendant's conduct is

outside the scope of employment (thus eliminating a defense for the

individual under the Westfall Act). 

     One might suppose that federal policies to protect

military autonomy, strong enough to create an implied exception to

Bivens for injuries incident to service (and, we have held in

Wright, to other federal claims like section 1983), would also be

offended by allowing state claims against individuals for such

injuries--perhaps even more so since they are even more likely to

be brought in state court.  Several courts have so held without

much hesitation.  See Stauber v. Cline, 837 F.2d 395, 399-400 (9th

Cir. 1988); Hefley v. Textron, Inc., 713 F.2d 1487, 1490-92 (10th

Cir. 1983) (collecting cases).  True, the Supreme Court has no

authority, as it does with federal claims, simply to interpolate

exceptions; but it can recognize federal immunities to state

claims, so far as needed to protect the federal functions, and has

done so in the past.  Howard v. Lyons, 360 U.S. 593 (1959);  Barrv. Matteo, 360 U.S. 564 (1959).

     Nevertheless, the Supreme Court has not yet taken this

step of converting Feres into an immunity for individuals against

state law claims.  To do so would mean that military service

personnel who were the victims of serious intentional torts

inflicted by other service personnel on base would effectively be

denied any civil remedy against a wrongdoer who was not acting

within the scope of his military employment--a result that has

caused more than one court to blanch.  See, e.g., Lutz v. Secretary

of the Air Force, 944 F.2d 1477 (9th Cir. 1991).  Instances would

be one serviceman deliberately shooting another in the course of an

on-base card game, or the on-base rape of one enlistee by another.

     In such cases, the Feres doctrine already protects the

federal treasury.  Further, the core concerns of Feres about

military discipline are largely--although not entirely--assuaged by

the ability of the United States to certify under the Westfall Act

those state-law claims against military personnel which it believes

are sufficiently related to the defendant's duties to fall within

the scope of defendant's employment.  Thus, the use of force by a

superior to compel obedience to an order would be within the scope

of employment, and therefore certifiable, no matter how mistaken

the superior's judgment.

     Nor is there a clear consensus in the circuits in favor

of extending Feres to state law claims against individuals for

conduct outside the scope of their employment.  As already noted,

some cases have assumed that Feres barred such state claims even

against the individual serviceman, but a respected Seventh Circuit

panel held squarely that Feres should not be read in this fashion. 

Cross v. Fiscus, 830 F.2d 755, 757 (7th Cir. 1987).  This court in

Wright v. Park went no further than to say that Feres governs

claims under section 1983 and "kindred statutes," referring in

context to the federal whistleblower statute, 5 U.S.C.  2301-02,

so the issue we now face is an open one in this circuit.

     The memories of an Army at war world-wide have faded

since Justice Jackson's day, and Feres has now been questioned in

whole or in part by three current members of the Supreme Court. SeeJohnson, 481 U.S. at 702 (Scalia, dissenting, joined by Brennan,

Marshall and Stevens); Stanley, 483 U.S. at 709 (O'Connor,

concurring in part and dissenting in part).  This is of no

consequence as to claims against the government, or brought under

Bivens (or section 1983), since Feres remains the binding

precedent.  But it does warrant some caution in a too swift

extension of Feres by the lower federal courts to eliminate a set

of claims (those based upon state law) made only against an

individual soldier for conduct that the government itself has

declined to certify under the Westfall Act.

     The issue is very close and the Supreme Court may yet

take the step of converting Feres into a formal immunity barring

state law claims against individuals for conduct, however

unauthorized and deliberate, that causes injury to the plaintiff

incident to military service.  But the risk of some injustice is

manifest, the policy arguments for the extension are at the margin,

and the Supreme Court has been increasingly loath to override state

law in areas of traditional state responsibility without a clear

Congressional mandate.  See Wisconsin Pub. Intervenor v. Mortier,

501 U.S. 597, 605 (1991).  If the step is to be taken, it should be

taken by the Supreme Court or upon more evidence that without it

military autonomy will be seriously threatened.

     It is worth stressing that the claims thus preserved

involve only a narrow class of cases, namely, ones where the

plaintiff's injury is "incident to military service" but

defendant's misconduct is so patently unconnected to his or her

official duties as to fall outside the scope of employment.  If the

government represents in a Westfall Act certificate that the

conduct is within the scope of employment--itself a quite broad

concept--we would expect that the deference ordinarily shown to

the executive in military matters would normally carry the day. 

See Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953).  Cf. Gilliganv. Morgan, 413 U.S. 1, 10 (1973).  Indeed, if the government here

had shown that Day's hazing was part of a military toughening-up

policy, all claims against the individuals would be barred under

the Westfall Act, no matter how unattractive the policy might be. 

Cf. Stanley, supra.

     This resolution leaves standing (so far as Feres is

concerned) Day's state tort claims against individual defendants,

and it brings us to issues of certification under the Westfall Act. 

If the United States was properly substituted in this case for an

individual defendant under the Westfall Act, then the state claims

against that defendant are barred under the Westfall Act itself. 

28 U.S.C.  2679(d).  Nor in that instance does the claim proceed

against the United States, since it is protected by Feres. 

Therefore, we must now review the district court's decision

upholding the Westfall Act certification of Duquette, a decision

appealed here by Day.

     A plaintiff who challenges a defendant's certification

under the Westfall Act bears the burden of proving the defendant

acted outside the scope of his employment.  See Rogers v.

Management Technology, Inc., 123 F.3d 34, 36 (1st Cir. 1997).  Day

now argues that the district court should have held an evidentiary

hearing to determine whether Duquette was acting within the scope

of his employment under the Westfall Act; he does not challenge the

certification of Balisle and Duclos who were not present during the

attack.  However, Day apparently did not request an evidentiary

hearing in the district court and, in any event, we do not believe

that one was necessary in this case given the state of the

pleadings and evidence in the district court.

     Day's verified complaint alleged that "Duquette . . .

threatened Day that he would be the victim of similar attacks [to

those he had witnessed]" and that "Duquette was present during the

Attack and aided and abetted the Attack."  Duquette's affidavit,

filed in opposition to the Day's motion for relief from the order

substituting the United States for Duquette, stated that Duquette

had discussed hazing incidents with Day, but that Duquette had

"told him that I thought it was unlikely that such an incident

would happen to him."  Duquette also admitted to being present at

the attack on Day for a few moments, but said that "[a]s soon as I

realized what was taking place, I . . . told them to stop."  Day

filed no other affidavits or other evidence of his own.

     Before a court is called upon to convene an evidentiary

hearing, it is entitled to something more than conclusory

abstractions from the party demanding the hearing.  In this case,

it had nothing but quasi-legal generalities in Day's complaint

("threatened," "aided and abetted"), juxtaposed with a  factual and

exculpatory account from Duquette.  Day was free to counter

Duquette's affidavit with details of his own to create a conflict

on the facts, but he chose not to do so.  In this case, whether or

not Day asked for a hearing, he did not justify one under ordinary

summary judgment standards, Medina-Munoz v. R.J. Reynolds Tobacco

Co., 896 F.2d 5, 8 (1st Cir. 1990), which are a good analogy in

this instance.

     Neither party has addressed the First Circuit precedent

of Wood v. United States, 995 F.2d 1122 (1st Cir. 1993).  We

mention it here because of its holding that the government cannot

base its certification of the defendant on a determination that the

"harm-causing incident" alleged by plaintiff did not occur at all. 

Id. at 1129.  Reading some language in Wood very broadly, one might

conclude that the district court has to accept the plaintiff's

entire version of facts, including his characterization of events. 

However, Wood makes clear that it is only the existence of a harm-

causing incident that must be assumed to be true and not the

plaintiff's characterization of events.  See id.

     In this case, there is no dispute that Day was assaulted. 

Indeed, both Duquette and Day agree that they had conversations

about hazing incidents, that Day was ultimately attacked, and that

Duquette was present for at least part of the attack.  As stated in

Day's brief, "[t]he difference between Day's recollection of events

and Duquette's recollection lies in the characterization of

Duquette's actions."  Therefore, it was permissible under Wood for

the district court to uphold the certification of Duquette.  See

id. at 1129.

     Where, after all this, does Day's case stand?  As to the

federal government defendants, all claims--whether against the

United States (substituted for Duquette and two other defendants)

or the Department of the Air Force (named in the complaint) are

barred by the Feres doctrine.  It does not matter whether the

Massachusetts National Guard is viewed as a federal or state

entity.  See generally Bowen v. Oistead, 125 F.3d 800, 804-05 (9th

Cir. 1997).  If federal, Feres applies; if not, damage claims

against it in federal court are barred by the Eleventh Amendment. 

See Alabama v. Pugh, 438 U.S. 781, 782 (1978).

     As to the individual defendants, the federal claims

against any of the defendants are also barred by Feres' incident to

service test.  State claims against Duquette, Balisle and Duclos

are barred by the Westfall Act certifications upheld by the

district court; in this regard we uphold the district court's

dismissal but based on the certifications rather than Feres.  Our

only real difference with the district court concerns the state

claims against Towle, Caton and Does 1-8; those claims were not

certified and, as we read the Supreme Court cases, are not

protected by Feres--because we do not view it as extending (at

least so far) to state claims brought against individuals for

conduct not within the scope of their employment.

     On remand, the district court is under no obligation to

retain jurisdiction over the reinstated state claims against Towle,

Caton and Does 1-8.  Indeed, we would be surprised if the district

court chooses to exercise supplemental jurisdiction in these

circumstances.  See 28 U.S.C.  1367(c)(3); United Mine Workers v.

Gibbs, 383 U.S. 715, 726 (1966).  However, if it does decline to

exercise jurisdiction, dismissal should be without prejudice to

Day's assertion of such claims in state court.

     The judgment of the district court is vacated insofar as

it dismissed on Feres grounds the state claims asserted against

Towle, Caton and Does 1-8, and in all other respects the judgment

is affirmed.  The case is remanded for further proceedings

consistent with this opinion.  Each side shall bear its own costs

on this appeal.

     It is so ordered.