430 U.S. 920 (1977)

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U.S. Supreme Court

MARTINEZ v. SCHROCK , 430 U.S. 920 (1977)

430 U.S. 920

Raphaela MARTINEZ, etc.
Lawrence SCHROCK et al
No. 76-530

Supreme Court of the United States

March 7, 1977

On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

Petitioner's decedent, a retired Army sergeant, died shortly after undergoing a gall bladder operation performed by respondents, two Army surgeons. Petitioner instituted survival and wrongful-death claims under New Jersey law in the Superior Court of New Jersey. Respondents removed the action to the United States District Court. The District Court dismissed the complaint on the ground that respondents were absolutely immune from personal liability for acts done within the scope of their official duties under Barr v. Mateo, 360 U.S. 564d 1434 (1959). The Court of Appeals for the Third Circuit, sitting en banc, affirmed.

The Court of Appeals placed principal reliance on its decision in Bailey v. DeQuevedo, 375 F.2d 72 (CA3), cert. denied, 389 U.S. 923, 88 S. Ct. 247 (1967), which in turn relied heavily upon Feres v. United States, 340 U.S. 135 (1950). In Feres the Court held that the United States was not subject to suit under the Federal Tort Claims Act, 28 U.S.C. 1346 and 2671 et seq., for injuries resulting from the negligence of an Army surgeon in the performance of his duties. In Bailey the Third Circuit applied this rule to bar a diversity suit arising under state law against an Army surgeon personally.

Page 430 U.S. 920 , 921

The Court of Appeals' reliance on Feres and Bailey deserves further scrutiny. First, in both Feres and Bailey the persons injured were active- duty military personnel, a fact critical to the reasoning in both decisions, while petitioner's decedent was in a retired status at the time that the injury occurred. This Court has held that Feres does not apply where, as here, the person injured is a discharged veteran of the Armed Services. United States v. Brown, 348 U.S. 110 ( 1954). Second, the question presented in Bailey whether the decision in Feres, which involved a statutory interpretation of the Tort Claims Act, creates an unqualified personal immunity for military physicians from suits arising under state law has never been decided by this Court.

In the past, when Congress has seen fit to immunize certain categories of federal officials, including physicians, from suit, it has done so by statute. See 38 U.S.C. 4116; 42 U.S.C. 233. No such statute was applicable in this case.* Apart from these statutes this Court has recognized a very narrow category of judicially created absolute immunity for some federal officials. See Barr v. Mateo, supra. However, such absolute immunity heretofore has only been applied to policymaking officials, and nowhere has it been suggested that there is a judicially created unqualified immunity for government functionaries operating at respondents' level. Indeed, when faced with precisely the [430 U.S. 920 , 922]

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