SIGLER V. LEVAN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300410005-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 5
• Publication Date: January 1, 1980
• Content Type: REPORT

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SIG.._,R v. LeVAN
Cite as 485 F.Supp. 185 (1980)
use M. SIGLER, as Personal Representa-
tive of the Estate of Ralph J. Sigler,
Deceased and use M. Sigler, Individually
and Karin (Sigler) Mears. Individually
C. J. LeVAN, Individually and as Major
General, United States Army; Donald B.
C. imes, Individually and as Colonel,
United States Army; H. R. Aarons, Indi-
vidually and as Major General, United
States Army; Noel Jones, Individually
and as Chief, Special Operations Divi-
sion, U. S. Army; Carlos Zapata, Indi-
vidually and as Chief Warrant Officer,
United States Army; Francis (Joe) Pra-
sek, Individually and as Special Agent,
Federal Bureau of Investigation; Lewis
Martel, Individually and as Chief War-
rant Officer, United States Army; John
Schaffstall, Individually and as Chief
Warrant Officer, United States Army;
Donnall J. Drake, Individually and as
Chief Warrant Officer, United States
Army; Odell L King, Individually and
as Chief Warrant Officer, United States
Army; Peter Conway, Individually and
as Project Officer. U. S. Army Intelli-
gence; Clifford Alexander, Secretary of
the Army; Party or Parties Unknown
who are or were Members of the Central
Intelligence Agency in 1976; Party or
Parties Unknown who are or were Mem-
bers of the Federal Bureau of Investiga-
tion in 1976; and Party or Parties Un-
known who are or were Members of the
United States Army in 1976.
Ilse M. SIGLER, as Personal Representa-
tive of the Estate of Ralph J. Sigler,
Deceased and Ilse M. Sigler, Individually
and Karin (Sigler) Mears, Individually
H. R. AARONS, Individually and as Major
General, United States Army Deputy Di-
rector, Defense Intelligence Agency and
Donald B. Grimes, Individually and as
Colonel, United States Army and Noel
Jones, Individually and as Chief, Special
Operations Division, U. S. Army Intelli-
gence Agency and Lewis Martel, Indi-
vidually and as Chief Warrant Officer,
United States Army and John Schaff-
stall, Individually and as Chief Warrant ?v
Officer, United States Army and Odell -1g
1
L. King, Individually and as Chief War-
rant Officer, United States Army and
Donnall J. Drake, Individually and as
Chief Warrant Officer, United States
Army and Peter Conway, Individually4C1Cf r-5
and as Project Officer, U. S. Army Intel-
ligence and Carlos Zapata, Individually- 5
-
and as Chief Warrant Officer, United
States Army and Party or Parties un-
who are or were Members of the
known
Central Intelligence Agency in 1976 and
Party or Parties Unknown who are or --
were Members of the Federal Bureau of D~'I44-
Investigation in 1976 and Party or Par-
ties Unknown who are or who were~~
Members of the United States Army i,'3St s `f
1976.
Civ. A. Nos. N-78-1237,' N-79-918.'
United States District Court,
D. Maryland.
.Jan. 7, 1980.
Supplemental Opinion March 12, 1980.
Widow and daughter of army counter-
intelligence agent, who died after intensive
questioning by army concerning his plans to
write his memoirs after his retirement after
nearly 30 years of service and following
seizure of the memoirs material from his
home and motel, brought action against
military and nonmilitary intelligence offi-
cers seeking damages and injunctive relief.
Upon defendants' motions to dismiss, the
District Court, Northrop, Chief .Judge, held
that: (1) Feres doctrine barred suit against
1. This suit was originally filed in the
United
2. This
suit was originally filed in the Circuit
States District Court lot the Western
District
Court
for Anne Arundel County, Maryland on
of texas, F.l Paso Division on February 18, 1977
April
12, 1979 and was removed to this Court
and was transferred to this Court on June 29,
on Ma
y 14, 1979.
1971;.
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Government, present and former army offi-
cers, FBI and CIA agents for death of army
counterintelligence agent, and (2) although
memoirs material seized from home and
motel of army counterintelligence agent as
result of alleged unlawful search and sei-
zure would be protected from disclosure
under state secrets privilege, agent's widow
and daughter could proceed with claims for
conversion, replevin and constitutional inju-
ries against military and nonmilitary intelli-
gence officers until such time as court de-
termined that the litigation would inevita-
bly lead to disclosure of contents of secret
materials or until such time as government
asserted formal claim of privilege over de-
ceased agent's relationship and contacts
with defendants and established such claim
to court's satisfaction.
Orders in accordance with opinion.
1. Armed Services X33
United States X50, 78(16)
Feres doctrine barred suit against
government, present and former army offi-
cers, FBI and CIA agents for intentional,
negligent and constitutional injuries al-
legedly resulting in death of army counter-
intelligence agent, who died after extensive
questioning by army concerning his plans to
write his memoirs after his retirement from
army after nearly 30 years of service and
following seizure of the memoirs material
from his home and motel.
2. United States (50, 78(16)
Feres doctrine, which immunizes
government or any governmental employee
from suit, applies whenever a member of
military is injured incident to service by
military or governmental personnel; it is
that factual situation that triggers the doc-
trine rather than legal theory underlying
plaintiff's claim or whether his injuries oc-
curred in combat.
3. Federal Civil Procedure X1600.3
A "state secret" is a governmental se-
cret relating to national defense or interna-
tional relations of United States and, once
established, government has it privilege to
refuse to disclose the secret in civil litiga-
tion and to prevent any litigant from dis-
closing the secret.
See publication Words and Phrases
for other judicial constructions and
definitions.
4. Searches and Seizures 4-5
In a case in which government's privi-
lege against disclosure of its secrets of state
is asserted, protective orders cannot prevent
inadvertent disclosure nor reduce damage
to security of the nation which may result.
5. Searches and Seizures *--5
Government, which presented affidavit
of Secretary of Army for in camera review,
met its burden of proving that material
sought by widow of army counterintelli-
gence agent, which consisted of memoirs
material which was seized from agent's
home, was protected from disclosure by
state secrets privilege; thus, widow was not
entitled to return of such papers and ef-
fects.
6. United States (3-125(1)
Doctrine of sovereign immunity bars
actions against United States for monetary
damages except for cases where it consents
to be sued.
7. United States *-78(1)
Cases sounding in tort may generally
be brought against the United States only
under provisions of Federal Tort Claims
Act. 28 U.S.C.A. ?? 1346, 2671 et seq.
8. United States X78(16)
Sovereign immunity barred claims
against United States arising out of al-
legedly unlawful search and seizure con-
ducted by army intelligence officer.
9. United States 140
Complaint seeking money damages
against unnamed members of Army, CIA
and FBI, which did not contain descriptions
of such unknown defendants nor any alle-
gations of wrongdoing in which such parties
engaged, would be dismissed for reason
that no legitimate purpose would be served
by allowing such action to proceed.
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c ..ER v. LeVAN
Cite as 485 F.Supp. 185 (1980)
10. Federal Civil Procedure x671
A complaint must give defendant fair
notice of what plaintiff's claim is and
grounds upon which it rests.
11. Conspiracy Q-18
A complaint alleging a conspiracy must
do more than state mere legal conclusions
regarding existence of the conspiracy; spe-
cific factual allegations connecting defend-
ant to injury are essential to state a cause
of action; otherwise complaint is subject to
dismissal.
12. Conspiracy 41-18
Complaint of widow and daughter
charging that FBI agent was part of con-
spiracy against deceased army counterintel-
ligence agent to deprive him of his constitu-
tional and state law rights lacked specific
factual allegations and was subject to dis-
missal.
13. United States X78(16)
Feres doctrine, which immunizes Unit-
ed States from suit when military personnel
are injured incident to service by govern-
mental or other military personnel, does not
apply when a civilian relative of a service-
man has been injured by actions of military
personnel.
14. Searches and Seizures (3=5
Although court ruled that memoirs ma-
terial seized from home and motel of army
counterintelligence agent as result of al-
legedly unlawful search and seizure would
be protected from disclosure under state
secrets privilege, agent's widow and daugh-
ter could proceed with claims for conver-
sion, replevin and constitutional injuries
against military and nonmilitary intelli-
gence officers until such time as court de-
termined that the litigation would inevita-
bly lead to disclosure of contents of secret
materials or until such time as government
asserted formal claim of privilege over de-
ceased agent's relationship and contacts
with defendant intelligence officers and es-
tablished such claim to court's satisfaction.
15. Searches and Seizures 5
State secrets privilege must be invoked
by head of department or agency responsi-
187
ble for defendant intelligence officers after
actual personal consideration of the matter
by that individual.
Supplemental Opinion
16. Federal Civil Procedure Q-1750
Inasmuch as certain defendant (lid not
become Secretary of Army until nearly ten
months after the events occurred which
formed basis for complaint against him by
widow and surviving daughter of army
counterintelligence agent, claims which
were brought against him in his individual
capacity would be dismissed.
17. Federal Civil Procedure 1750
Claims brought by widow and daughter
of army intelligence agent, who died after
intensive questioning by army concerning
his plans to write his memoirs after his
retirement after nearly 30 years of service
and following seizure of the memoirs mate-
rial from his home and motel, would be
dismissed as to those defendants against
whom no allegations of wrongdoing were
made for failure to state a claim.
18. Searches and Seizures ca=-8
Government established that decedent,
army counterintelligence agent who died
after intensive questioning by army con-
cerning his plans to write his memoirs after
his retirement after nearly 30 years of ser-
vice and following seizure of memoirs mate-
rial from home and motel, had no right to
possess the classified material seized and
that his retention of them at his residence
was unauthorized; thus, his survivors
lacked standing to sue in their own right
for conversion, replevin, and Fourth and
Fifth Amendment violations. U.S.C.A.
Const. Amends. 4, 5.
19. Replevin X8(5)
Trover and Conversion X24
Survivors of decedent, an army intelli-
gence agent who died after intensive ques-
tioning by Army concerning his plans to
write his memoirs after his retirement and
following seizure of the memoirs material
from home and motel, did not have right to
maintain an action in their own right for
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188
conversion of the non-classified materials
and replevin for reason that their own in-
terest in such materials was merely their
expectancy of inheriting such materials un-
der terms of decedent's will.
James E. Kenkel and William C. Bren-
nan, Jr., College Park, Md., for plaintiffs.
James M. Kramon, Baltimore, Md., Au-
brey M. Daniel, III, and Douglas R. Marvin,
Washington, D. C., for defendant LeVan.
Joseph A. Schwartz, III, Baltimore, Md.,
and James F. Neal and Aubrey B. Harwell,
Jr., Nashville, Tenn., and David R. Boyd,
Washington, D. C., for defendants Grimes,
Aaron, Jones, Martel, Schaffstall, Conway,
Drake and King.
Richard R. Beauchemin, Baltimore, Md.,
and Robert I). Earp, El Paso, Tex., for
defendant Zapata.
Alan I. Baron and Ellen Scalettar, Balti-
more, Md., for defendant Prasek.
Alice Daniel, Acting Asst. Atty. Gen.,
Barbara B. O'Malley, R. John Seibert and
Raymond M. Larizza, Attys., U. S. Dept.
Justice, Washington, D. C., Russell T. Bak-
er, Jr., U. S. Atty. for the District of Mary-
land and Lynne A. Battaglia, Asst. U. S.
Atty., Baltimore, Md., for defendant Alex-
ander.
NORTHROP, Chief Judge.
This litigation involves two actions for
damages and injunctive relief arising out of
the death of Ralph J. Sigler, an Army coun-
terintelligence agent. Mr. Sigler died by
electrocution on April 13, 1976, in a motel
room located near Fort Meade, Maryland.
The plaintiffs are his wife and daughter.
The defendants are the Secretary of the
Army, ten present or former officers of the
United States Army, a Special Agent of the
Federal Bureau of Investigation (FBI), and
parties unknown who are or were members
of the Central Intelligence Agency (CIA),
the FBI, and the United States Army in
1976.3
3. The defendants in both cases are the same
except for Secretary Alexander, General Le-
These two actions were consolidated h~
this Court on September 20, 1979 for the
purposes of pleadings, motions, and di .-
covery; the Court reserved until a later
time the decision of whether to consolidate
these actions for all other purposes. The
matter is presently before the Court on the
defendants' motions to dismiss pursuant to
Rule 12(b) of the Federal Rules of Civil
Procedure. The Court conducted a hearing;
on these motions on October 11, 1979. At
that time, the Court requested supplemen-
tal briefs on certain issues; having received
those briefs, the Court is prepared to render
a decision.
1. BACKGROUND
For the purposes of a Rule 12(b) motion,
this Court must accept. as true the facts
alleged in the plaintiffs' complaint, as well
as all reasonable inferences that may he
deduced from those allegations favorable tc
the plaintiff. Scheuer v. Rhodes, 416 U S.
232, 246, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
Conley v. Gibson, 355 U.S. 41, 45-46, 7~'
S.Ct. 99, 2 L.Ed.2d 80 (1957).
From the late 1960's until his death on
April 13, 1976, Mr. Sigler was a counterin-
telligence agent for the United States
Army. His duties included the selling of
information concerning United States Army
radar and missile systems to intelligence
agents of various foreign powers. Mr. Si-
gler's mission was twofold in nature. First,
a portion of the information sold to these
foreign powers was deliberately designed to
mislead them as to the capability of the
Army's radar and missile systems. Second-
ly, Mr. Sigler was to identify as many for-
eign intelligence operatives as possible to
his superiors.
In 1974, Mr. Sigler was approaching thir-
ty years of active duty with the Army
(having enlisted in 1947) and was contem-
plating retirement. He began to assemble
his papers, effects, and memorabilia with
the apparent intention of writing a book,
after he retired, on his intelligence career.
The Army evidently learned of his inten-
Van, and Special Agent Prasek, who are de-
fendants only in Civil Action No. N 78- 1237.
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tions and in March 1976 ordered Mr. Sigler
to San Francisco, California for a debrief-
ing session where he was given a polygraph
test. Subsequently, the Army ordered Mr.
Sigler to report to Fort Meade, Maryland,
the headquarters of the United States
Army Intelligence Agency. Mr. Sigler ar-
rived
1976,
in the Fort Meade area on April 4,
For the next nine days, Army intelligence
officers confined-Mr. Sigler to two motel
rooms in the Fort Meade area and "subject-
ed Sigler to severe emotional distress by the
use of extensive questioning, threats and
intimidations." Plaintiffs' First Amended
Complaint, Civil Action No. N-78-1237 at
17. Apparently this interrogation focused
on Mr. Sigler's intention to write his mem-
oirs and the nature and location of the
materials he had collected to assist him in
writing his book.
During this time, defendant Army Intelli-
gence Officer Louis Martel pressured Mr.
Sigler into acknowledging the existence and
location of the memoirs material at the
Sigler residence in El Paso, Texas. Defend-
ant Martel then coerced Mr. Sigler into
calling his wife, Ilse M. Sigler, at their
home and instructing her to make certain of
the memoirs material available to defend-
ant Army Intelligence Officer John Schaff-
stall. On April 8, 1976, defendant Schaff-
stall appeared at the Sigler residence, was
granted entrance by Mrs. Sigler, and pro-
cured the material in question. Defendant
Schaffstall returned to Fort Meade the fol-
lowing day with the material. The interro-
gation of Mr. Sigler by the defendant coun-
terintelligence agents continued and was of
an "extreme and outrageous" nature.
Amended Complaint, supra at 21. Certain
papers and effects belonging to Mr. Sigler
were allegedly taken from him during the
interrogation.
the cord into a wall socket, and flipping on
the wall switch, which resulted in his death
by electrocution. The plaintiffs contend
that the defendants were responsible for
Mr. Sigler's death by "either 1) causing a
current of electricity to pass through his
body or 2) placing him in an extreme posi-
tion of danger by virtue of the continuous
emotional strain to which he had been sub-
jected and then failing to protect him" from
electrocuting himself. Amended Com-
plaint, supra at 17-18.
The plaintiffs have asserted two catego-
ries of claims in this matter. The first
category represents claims on behalf of Mr.
Sigler's estate for alleged injuries to Mr.
Sigler and includes claims for (1) intention-
al infliction of emotional distress; (2) false
imprisonment; (3) conversion; (4) gross
negligence; (5) wrongful death; (6) viola-
tions of the First, Fourth, and Fifth
Amendments to the United States Constitu-
tion; (7) assault and battery; and (8) re-
plevin. The second category of claims rep-
resents alleged injuries to Mrs. Sigler and
her daughter individually, and includes
claims for (1) conversion; (2) replevin; and
(3) violations of the Fourth and Fifth
Amendments to the United States Constitu-
tion. The two cases consolidated here seek
combined damages of over $100 million
against the defendants, in addition to in-
junctive relief against the Secretary of the
Army in the form of an order requiring him
to return to the plaintiffs the materials
taken from the Sigler residence and from
the Fort Meade motel room.
The Court will consider separately the
motions to dismiss as they apply to the two
categories of claims.
II. THE INJURIES TO RALPH
J. SIGLER
On April 13, 1976, Mr. Sigler was found A. The Feres Doctrine
dead in a motel room in the Fort Meade (1] All of the defendants, except Special
area. Official investigations by the Army Agent Francis (Joe) Prasek of the FBI and
and the Maryland State Police concluded the unknown parties in the FBI and CIA,
that Mr. Sigler had committed suicide by were members of the Army at the time of
wrapping the ends of a stripped electrical their alleged involvement in this case.
lamp cord around his upper arms, plugging These Army defendants contend that the
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claims against them for injuries to Ralph J.
Sigler are barred by the Feres immunity
doctrine.' This Court agrees.
In Feres v. United States, 340 U.S. 135,
146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950),
the Supreme Court held that the United
States "is not liable under the Federal Tort
Claims Act [FTCAJ for injuries to service-
men where the injuries arise out of or are
in the course of activity incident to service."
In referring to the three cases under consid-
eration, the Court stated that "[the com-
mon fact underlying the three cases is that
each claimant, while on active duty and not
on furlough, sustained injury due to negli-
gence of others in the armed forces." Id. at
138, 71 S.Ct. at 155. Aside from its statuto-
ry analysis of the FTCA, the Supreme
Court has given several policy justifications
for this common law exception to the
FTCA's waiver of sovereign immunity.
First, the Court in Feres characterized the
relationship between the Government and
members of the Armed Forces as "distinc-
tively federal in character." Id. at 143, 71
S.Ct. 153. The Court reasoned that it
would therefore be irrational to have the
Government's liability to a serviceman de-
pend fortuitously on the state in which the
serviceman happened to be stationed.
Second, the Court noted that Congress had
established other compensation systems
that adequately compensated injured ser-
vicemen. Id. at 144, 71 S.Ct. 153. A third
policy reason was developed in United
States v. Brown, 348 U.S. 110, 112, 75 S.Ct.
141, 99 L.Ed. 139 (1954), where the Court
found that military discipline would be ad-
versely affected if a soldier were permitted
to sue his superiors and second-guess deci-
sions made in the military chain of com-
mand. The Feres doctrine was recently
reaffirmed by the Supreme Court in Stencel
Aero Engineering Corp. v. United States,
431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665
4. Defendant Alexander, Secretary of the Army,
has not raised this defense in his motion to
dismiss, choosing instead to rely on other de-
fenses. It is evident to this Court, however,
that the Feres doctrine also applies to defend-
ant Alexander. Cf. Birdwell v. Schlesinger, 403
F.Supp. 710, 718 (D.Colo.1975) (Feres shields
(1977), a case involving a third party indem-
nity claim against the United States. See
generally Note, From Feres to Stencel:
Should Military Personnel Have Access to
FTCA Recovery? 77 Mich.L.Rev. 1099
(1979).
Although these Supreme Court cases
dealt with suits against the United States
under the FTCA, lower federal courts, uti-
lizing the same underlying policy reasons,
have extended the Feres doctrine to immu-
nize military defendants in their individual
capacities. E. g., Hass v. United States, 518
F.2d 1138 (4th Cir. 1975); Bailey v. De-
Quevedo, 375 F.2d 72 (3d Cir. 1967); Levin
v. United States, 403 F.Supp. 99 (D.Mass.
1975). The courts have further held that
Feres bars wrongful death suits by a ser-
viceman's family or estate against the Unit-
ed States where the death occurred incident
to military service. E. g., DeFont v. United
States, 453 F.2d 1239 (1st Cir. 1972); Van
Sickel v. United States, 285 F.2d 87 (9th Cir.
1960). This holds true even when local law
gives the heirs of the deceased or his per-
sonal representative an original and direct
cause of action for the decedent's death.
The rationale is that the in-service injury
automatically triggers Feres. To permit
such derivative or original action suits
would emasculate the doctrine. Indeed, the
Feres case dealt with two wrongful death
suits by the heirs of the decedent service-
There is no question that, as members of
the military, the Army defendants may
raise the Feres doctrine as a defense to this
action. Defendant Prasek and the un-
known defendants in the FBI and the CIA
did not raise the Feres doctrine in their
original motions to dismiss.5 It has become
apparent to this Court, however, that Feres
may also apply to defendant Prasek and the
unknown defendants as nonmilitary, gov-
ernmental employees.
Secretary of Defense and Secretary of the Air
Force).
5. On December 4, 1979, this Court received
defendant Prasek's supplemental motion to dis-
miss the complaint in Civil Action No. N-78-
1237 on the grounds of the Feres doctrine.
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SIGLER v. LeVAN
Cite as 485 F.Supp. 183 (1980)
The courts that have considered the ques-
tion are apparently unanimous in their con-
clusion that Feres applies even when the
tort-feasor is not a member of the military
but is a nonmilitary, governmental employ-
ee. Uptegrove v. United States, 600 F.2d
1248, 1250-51 (9th Cir. 1979); Layne v.
United States, 295 F.2d 433 (7th Cir. 1961),
cert. denied, 368 U.S. 990, 82 S.Ct. 605, 7
L.Ed.2d 527 (1962); Jaffee v. United States,
468 F.Supp. 632, 634 (D.N.J.1979); Watkins
v. United States, 462 F.Supp. 980, 985 (S.D.
Ga. 1977), aff'd per curiam, 587 F.2d 279 (5th
Cir. 1979); Frazier v. United States, 372
F.Supp. 208 (M.D.Fla.1973); Sheppard v.
United States, 294 F.Supp. 7 (E.D.Pa.1969).
The common theme in these decisions is
that the reference to the military status of
the alleged tort-feasors in Feres was merely
a statement of fact rather than a require-
ment of law. These courts interpret Feres
to hold that where a member of the mili-
tary has been injured incident to military
service, he cannot recover damages against
the United States or any governmental em-
ployee, civilian or military.
While the Supreme Court has not directly
faced this issue, the Court in Stencel Aero
Engineering Corp. v. United States, 431
U.S. 666, 669-70, 97 S.Ct. 2054, 52 L.Ed.2d
665 (1977) indicated that Feres is not limit-
ed to situations where the tort-feasor is a
member of the military; the Court used the
term "Government officials" when refer-
ring to the alleged tort-feasors in Feres and
Stencel. The Fourth Circuit Court of Ap-
peals held that Feres can immunize civilian
employees of the military. Hass v. United
States, 518 F.2d 1138, 1141 (4th Cir. 1975).
The court cited with seeming approval
United States v. Lee, 400 F.2d 558 (9th Cir.
1968), cert. denied, 393 U.S. 1053, 89 S.Ct.
691, 21 L.Ed.2d 695 (1969). Lee held that
Feres shields nonmilitary, governmental
employees as well as civilian employees of
the military. Under these circumstances
and considering the weight of authority,
this Court is compelled to hold that defend-
ant Prasek and the unknown defendants in
the FBI and the CIA are entitled to invoke
the Feres doctrine.
191
It is beyond dispute that Ralph J. Sigler
was a member of the military at the time of
his alleged injuries; that his alleged inju-
ries were incurred incident to service; and
that the individual defendants were mem-
bers of the military or the Government at
the time of their alleged involvement in this
case. Plaintiffs' negligence claims against
the defendants are barred by the Feres
doctrine. Yolken v. United States, 590 F.2d
1303 (4th Cir. 1979) (per curiam). The
plaintiffs argue, however, that Feres does
not apply to intentional constitutional viola-
tions in a noncombat setting. The plain-
tiffs fail to recognize the broad scope of
Feres. While Feres dealt with negligence
actions, "courts have also uniformly recog-
nized that the Feres bar extends to both
constitutional and intentional torts" in non-
combat situations. Thorn well v. United
States, 471 F.Supp. 344, 348 (D.D.C.1979)
(Richey, J.).
Thorn well involved a factual situation
similar to the instant case. Plaintiff, an
Army private, was allegedly imprisoned and
brutally interrogated by Army officers in-
vestigating the theft of classified docu-
ments. Part of this interrogation allegedly
involved the secret drugging of Mr. Thorn-
well with lysergic acid diethylamide (LSD),
a psychedelic chemical, as part of "Opera-
tion Third Chance," a covert Army program
in human drug experimentation. While
recognizing the "unconscionable results"
that application of the Feres doctrine will
sometimes cause, the Thorn well court cor-
rectly recognized that "neither the lan-
guage nor the rationale of the [Feres ] deci-
sion indicates that the legal theory of a
soldier's claim ought to be a salient factor
in determining the scope of intra-military
immunity." 471 F.Supp. at 348 & n. 1.
[2] Feres applies whenever a member of
the military is injured incident to service by
military or governmental personnel. It is
this factual situation that triggers the
Feres doctrine, rather than the legal theory
underlying the plaintiff's claim or whether
his injuries occurred in combat. See, e. g.,
Citizens National Bank of Waukegan v.
United States, 594 F.2d 1154 (7th Cir. 1979)
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 192 485 FEDERAL SUPPLEMENT
(Feres controls where Marine allegedly sub-
jected to physical attacks by Marine correc-
tional officers resulting in subsequent sui-
cide); Nagy v. United States, 471 F.Supp.
383 (D.D.C.1979) (Smith, J.) (Feres bars suit
against the United States on constitutional
grounds for damages to serviceman arising
out of his participation in LSI) experi-
ments); Jaffee v. United States, 468
F.Supp. 632, 635 (D.N.J.1979) (Feres fore-
closes liability for alleged intentional viola-
tions of constitutional rights of soldiers who
assertedly were compelled to march into a
nuclear explosion; Feres not limited to or-
ders given in the heat of battle); accord,
Woodside v. United States, 606 F.2d 134,
141 (6th Cir. 1979) ("incident to service"
test); cf. Rotko v. Abrams, 338 F.Supp. 46
(D.Conn.1971), aff'd per curiam, 455 F.2d
992 (2d Cir. 1972) (Feres applied when death
arose out of combat in Vietnam).
As Judge Sirica observed in Misko v.
United States, 453 F.Supp. 513, 515 (D.D.C.
1978), state tort claims are easily suscepti-
ble to restatement as constitutional claims.
Accord, Calhoun v. United States, 475
F.Supp. 1, 4 -5 (S.D.Cal.1977), aff'd, 604
F.2d 647 (9th Cir. 1979). Judge Sirica held
that the Feres immunity doctrine and its
rationale apply equally to constitutional
claims. Otherwise, Feres could be easily
abrogated by artful pleading.
The plaintiffs here cite three cases to
support their position; none is convincing.
The court in Alvarez v. Wilson, 431 F.Supp.
136 (N.D.I11.1977) cites several cases that
follow the Feres doctrine, but curiously,
that court neither cites the Feres decision,
nor does it discuss the doctrine. The deci-
sion therefore cannot he regarded as au-
thoritative, particularly since it rejects a
Fourth Circuit case, Hass v. United States,
518 F.2d 1138 (4th Cir. 1975), which this
Court is obligated to follow. In Leighton v.
Peters, 356 F.Supp. 900 (D.Haw.1973), the
court did not refer to the Feres doctrine; it
6. The monetary relief sought under count ten
on behalf of Ralph J. Sigler against defendant
Alexander and the other defendants is barred
by the Feres doctrine as discussed supra in the
text of this opinion.
instead relied on an official immunity theo-
ry to find the defendant immune. This
Court fails to see the applicability of Leigh-
ton to this case. The court in Henderson v.
Bluemink, 167 U.S.App.D.C. 161, 511 F.2d
399 (D.C.Cir.1974), likewise proceeded on an
official immunity basis and did not allude to
Feres. Furthermore, there is no indication
in the Henderson opinion whether the in-
jured party was a civilian or a member of
the military. These three cases fail to re-
fute the application of Feres to intentional
and constitutional claims.
The alleged incidents of brutality by the
Army towards Mr. Sigler fall squarely with-
in the scope of the aforementioned cases
following Feres. Consequently, all of the
plaintiffs' claims against the individual (tc,-
fendants, in their official and individual
capacities, seeking damages for intentional,
negligent, and constitutional injuries to
Ralph J. Sigler are barred by the Feres
doctrine and must be dismissed.
B. The State Secrets Privilege
The remaining claim asserted on behalf
of Ralph J. Sigler is one for injunctive relief
against defendant Alexander under the re-
plevin claim in count ten of the plaintiffs'
first amended complaint in Civil Action No.
N-78-1237.6 Plaintiffs allege that the pa-
pers and effects taken from the Sigler resi-
dence and from Mr. Sigler at the Fort
Meade motel room are now in the posses-
sion of the Secretary of the Army, Clifford
Alexander. The plaintiffs seek an order
directing defendant Alexander to return
these papers and effects to them.
Defendant Alexander has responded to
this claim by filing a motion to dismiss
based upon a claim of the state secrets
privilege.? In support of this motion, the
Secretary has executed an open record affi-
davit asserting a formal claim of the privi-
lege. In his affidavit, the Secretary ex-
plains why disclosure of these items would
7. This privilege is sometimes referred to as the
military and state secrets privilege. For the
sake of simplicity, this Court will refer to it as
the state secrets privilege.
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SIGLER v. LeVAN
n ormation he provided them, the sing the secret. See generally McCor-
ways in which he communicated with mick, Evidence ?? 107 & 110 (Cleary ed.
them, and, in general, nearly everything 1972); 2 Weinstein & Burger, Weinstein's
he knew or could glean about the foreign Evidence 509[1)-509[4] (1979); 8 Wigmore,
intelligence services. Evidence ? 2378, at 794-96 (McNaughton
rev-1961); 8 Wright & Miller, Federal Prac-
'
yes w( tiga-
that Mr. Sigler undertook for them and tion and to prevent any litigant from dis-
the i f clo
seriously----- '~" - .o?pp. I 3 (1980)
jeopardize the national security of ing withheld by the Secretary and the harm
the United States: to our nation's security that would result
The documents and effects listed in the should this information become public. At
attached inventory explain in great de- the end of the hearing on the defendants'
tail, day-by-day, many of the intelligence motions to dismiss, this court examined the
activities that Mr. Sigler undertook on in camera affidavit in chambers.
behalf of the Army. The rec-
ord also relates the dealings that Mr. [31 A state secret is a governmental se-
Sigler had with the intelligence services cret relating to the national defense or the
of foreign governments: the names of international relations of the United States.
the people he met, the dates, locations, Once it is established that a state secret
and purposes of the meetings, the sub- ruse the Goose the s has privilege
stance of their dealings the activ't' reeffuse to disclose the secret i n
.
wealth of information about U.S.~coun- The privilege against disclosure of state
terintelligence activities. The informa- secrets in civil litigation was upheld by the
lion would be of great value to hostile Supreme Court in United States v. Reyn-
intelligence services since it would facili- olds, 345 U.S. 1, 73 S.Ct. 528, 97 Lilian 727
tale their efforts in identifying and frus- (1953). In that case, several civobserv-
trating U.S. intelligence operations. It era were killed in the crash of an Air Force
would show them how the Army identi- aircraft that was being used to test secret
fist, recruits, communicates with, meetsbroughtelectronic suit u equipment. Their widows
with, and uses its intelligence sources. It nder the FTCA and sought to
would reveal much about the or aniza- discover the Air Force's accident investiga-
g tion report and the statements of the sur-
tion and activities of the U.S. intelligence viving crew members taken during the offi-
agencies and provide an excellent case cial investigation. The Air Force filed a
study of the U.S. intelligence community claim of privilege, asserting that these mat-
in question. All of this info-
mati would o soon. better enall hostle inter- ters involved state secrets. The Supreme
Court held that where a court is satisfied
gence services to identify our current in- "from all the circumstances of the case,
telligence operations and to adopt coun- that there is a reasonable danger that com-
termeasures that would seriously degrade pulsion of the evidence will expose national intelligence program. pose military matrs which, in the interest Affidavit and Claim of Privilege of the security, should not be divulged," "then the
Secretary of the Army at ?? 4-6. The Sec- material would be absolutely privileged.
retary requests that none of these items Id. at 10, 73 S.Ct. at 533.
become the subject of litigation in these The United States Court of Appeals made a of the public record ppeals for
part the District of Columbia recently reaf-
herein, or otherwise be disclosed. firmed this narrw d of review in
Along with the open record affidavit, the Halkin v. Helms, 194 standarU.S.App.D.C. 82, 598
Secretary has submitted a classified affida- F.2d 1 (D.C.Cir.1978). The plaintiffs in that
vit for in camera examination by the Court. case alleged that the National Security
This in camera affidavit describes in great- Agency (NSA) conducted warrantless inter-
er detail the substance of the material be- ceptions of their international wire, cable,
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ice and Procedure ? 2019, at 158-60 (1970)
193
 and telephone communications. The gov-
ernmental defendants filed a motion to dis-
miss the complaint on the basis that the
mere disclosure of whether the plaintiffs'
international communications were ac-
quired by the NSA would violate the state
secrets privilege. The court of appeals
agreed and held that the entire case had to
be dismissed "because the ultimate issue [in
the case], the fact of acquisition, could nei-
ther be admitted nor denied." 194 U.S.
App.D.C. at 86, 598 F.2d at 5. Cf. Jabara v.
Kelley, 75 F.R.D. 475 (E.D.Mich.1977); Ki-
noy V. Mitchell, 67 F.R.D. 1 (S.D.N.Y.1975)
(discovery motions); Republic of China v.
National Union Fire Insurance Co.,
142
F.Supp. 551 (D.Md.1956) (Thomsen,
(motion to dismiss).
C.J.)
The Halkin court emphasized that the
"[c]ourts should accord the `utmost defer-
ence' to executive assertions of privilege
upon grounds of military or diplomatic se-
crets." 194 U.S.App.D.C. at 90, 598 F.2d at
9. Despite the devastating effect that the
state secrets privilege had on the plaintiffs'
case, i.e., dismissal, the court of appeals
recognized that our national security takes
priority over a litigant's interest in redress-
ing alleged injuries. Once established, the
state secrets privilege is absolute.
Plaintiffs' counsel have requested that
they be permitted to participate in the in
camera review of the Secretary's affidavit.
They argue that a protective order barring
disclosure of the materials would adequate-
ly preserve confidentiality. The Court
must deny their request.
[4] "Protective orders cannot prevent
inadvertent disclosure nor reduce the dam-
age to the security of the nation which may
result." Halkin, supra 194 U.S.App.D.C. at
88, 598 F.2d at 7. As the court in Jabara v.
Kelley, 75 F.R.D. 475, 486 -87 (E.D.Mich.
1977) pointed out, the determination of
whether the state secrets privilege applies
is a question for the courts to determine
without revealing the contents of the al-
legedly privileged material. In denying
8. The injunctive relief sought by plaintiffs un-
der count ten (replevin) in their first amended
complaint in Civil Action No. N 79 1237 is
similar requests, both the Haikin and Ja-
bara courts relied on the following passage
from Heine v. Raus, 399 F.2d 785, 791 (4th
Cir. 1968):
Disclosures in camera are inconsistent
with the normal rights of a plaintiff of
inquiry and cross-examination, of course,
but if the two interests cannot be recon-
ciled, the interest of the individual liti-
gant must give way to the government's
privilege against disclosure of its secrets
of state.
This Court believes that the potential risks
of inadvertent disclosure and ensuing dam-
age to our national security outweigh the
benefits to be gained if plaintiffs' counsel
are permitted to examine the secret materi-
als and contest the applicability of the state
secrets privilege.
[5] After carefully examining the Secre-
tary's in camera affidavit, this Court is
absolutely convinced that disclosure of the
items plaintiffs wish returned would reveal
sensitive governmental secrets related to
the national defense and the international
relations of the United States. Disclosure
of these materials would unquestionably
damage our national security. This Court
therefore finds that the Government has
met its burden in proving that the materials
in question are protected from disclosure by
the state secrets privilege. Accordingly,
the injunctive relief claim asserted in count
ten of the first amended complaint in Civil
Action No. N-78-1237 in behalf of Ralph J.
Sigler and in behalf of the plaintiffs, indi-
vidually, must be dismissed.
II. THE INJURIES TO ILSE M.
SIGLER AND KARIN
(SIGLER) MEARS
Mrs. Sigler and her daughter have assert-
ed on their own behalf claims of conversion,
replevin,8 and violations of their fourth and
fifth amendment rights. These claims arise
out of what they characterize as the unlaw-
ful search of their home by defendant
barred by the state secrets privilege as dis-
cussed supra in the text of the opinion.
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SIGLER v. LeVAN
Schaffstall and seizure by him of the papers monetary damages in an action brought
and effects belonging to Mr. Sigler. Their nominally against its officers. Cases sound-
claims are also premised on the materials ing in tort may generally be brought
allegedly taken from Mr. Sigler at one of against the United States only under the
the motel rooms. Mrs. Sigler and her provisions of the FTCA; the plaintiffs have
daughter have asserted a possessory inter- not brought such a suit. The plaintiffs
est in the seized materials, contending they essentially conceded the above at oral argu-
are entitled to the materials under Mr. Si- ment. Therefore, insofar as the plaintiffs'
gler's will. They allege that Mrs. Sigler's claims seek to establish the liability of the
consent for defendant Schaffstall to enter United States for damages, their claims are
the Sigler residence and take the materials barred by the doctrine of sovereign immuni-
was involuntarily and fraudulently obtained ty.
through the d f d '
e
en ants coercion of Mr. Si-
gler into calling Mrs. Sigler and convincing
her to allow defendant Schaffstall to enter
the Sigler residence and remove Mr. Sigler's
papers and effects.
A. Sovereign Immunity
Although the United States is not a de-
fendant in this matter, the complaints in
both actions seek damages against the de-
fendants in both their official and individu-
al capacities. The Government, through de-
fendant Alexander, has moved to dismiss
the plaintiffs' claims insofar as they seek to
establish the liability of the United States
for damages. The Government bases its
motion on the doctrine of sovereign immu-
nity.
[6-8] The Supreme Court has held that
an action against an officer of the United
States is, in fact, a suit against the sover-
eign if "the judgment sought would expend
itself on the public treasury or domain."
Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct.
999, 1006, 10 L.Ed.2d 15 (1963); Land v.
Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91
L.Ed. 1209 (1947). The doctrine of sover-
eign immunity bars actions against the
United States for monetary damages except
for cases where it consents to be sued.
United States v. Sherwood, 312 U.S. 584,
586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The
plaintiffs have cited no statute authorizing
a judgment against the United States for
9. This case is distinguishable from Bivens v.
Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971). In Bivens, the plaintiffs
complaint explicitly set out the alleged wrong-
doing by federal agents. This enabled the dis-
B. The Unknown Defendants
[9] The Government has moved to dis-
miss the claims against the unknown de-
fendants who are or were members of the
Army, the CIA, and the FBI in 1976. These
unknown defendants are mentioned only in
the captions of the complaints. Nowhere in
the body of the complaints are there any
descriptions of these unknown defendants
or any allegations of the wrongdoing in
which these parties engaged.' Under these
circumstances, the Court fails to see what
legitimate purpose is served by allowing an
action for monetary damages against un-
known parties to proceed. Craig v. United
States, 413 F.2d 854, 856-57 (9th Cir.), cert.
denied, 396 U.S. 987, 90 S.Ct. 483, 24
L.Ed.2d 451 (1969); Reaves v. Sieloff, 382
F.Supp. 472, 475-76 (D.Pa.1974). Cf. Boyd
v. Gullett, 64 F.R.D. 169, 173 (D.Md.1974)
(injunctive relief sought against John Doe
defendants).
The plaintiffs have cited no authority to
the contrary; they merely urged at oral
argument that an appropriate remedy for
this deficiency could be fashioned at the end
of the case after the liability of all the
defendants is determined. The Court sees
no reason for delaying the inevitable. The
complaints must be dismissed as to the un-
named members of the Army, the CIA, and
the FBI.
trict court to order service to be made upon
those federal agents shown by the records of
the U.S. Attorney to have participated in the
allegedly illegal raid. Id. at 389-90 n.2, 91 S.Ct.
1999. Such particularity in the complaint is
obviously lacking here.
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 196 485 FEDERAL SUPPLEMENT
C. Special Agent Prasek
Special Agent Prasek of the FBI has filed
a motion to dismiss the complaint against
him in Civil Action No. N- 78-1237 for fail-
ure to state a claim.10 Defendant Prasek
contends that the plaintiffs have failed to
allege sufficient facts against him to consti-
tute a claim. This Court agrees.
[10] The Court is aware of the Supreme
Court's admonition in Conley v. Gibson, 355
U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 60
(1957) "that a complaint should not be dis-
missed for failure to state a claim unless it
appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim
which would entitle him to relief." Never-
theless, a complaint must "give the defend-
ant fair notice of what the plaintiff's claim
is and the grounds upon which it rests." Id.
at 48, 78 S.Ct. at 103 (emphasis added).
The plaintiffs' complaint fails to comply
with this mandate.
[11, 12] The plaintiffs have alleged that
defendant Prasek was part of a conspiracy
against the decedent to deprive him of his
constitutional and state law rights. A com-
plaint alleging a conspiracy must do more
than state mere legal conclusions regarding
the existence of the conspiracy. Specific
factual allegations connecting the defend-
ant to the injury are essential to state a
cause of action; otherwise, the complaint is
subject to dismissal. Sparks v. Duval Coun-
try Ranch Co., 604 F.2d 976, 978 (5th Cir.
1979) (dictum); Ostrer v. Aronwald, 567
F.2d 551 (2d Cir. 1977); Kadar Corp. v.
Milbury, 549 F.2d 230 (1st Cir. 1977); Roto-
lo v. Borough of Charleroi, 532 F.2d 920 (3d
Cir. 1976); Greene v. Johns Hopkins Uni-
versity, 469 F.Supp. 187, 198 (D.Md.1979);
Wetherington v. Phillips, 380 F.Supp. 426
(E.D.N.C.1974), aff'd mem., 526 F.2d 591
10. The plaintiffs did not respond in writing to
defendant Prasek's motion to dismiss. At oral
argument, they did not cite authority to the
contrary; they merely relied on the allegations
as set forth in the complaint described infra in
the text of this opinion.
11. Plaintiffs, in their amended complaint in
Civil Action No. N 78 1237 at paragraph thir-
teen, allege that in this letter Mr. Sigler "de-
scribed the mental and physical danger in
(4th Cir. 1975). Judge (now Justice) Ste-
vens perhaps summed it up best in Cohen v.
Illinois Institute of Technology, 524 F.2d
818, 827 (7th Cir. 1975), cert. denied, 425
U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187
(1976):
We agree that plaintiff is entitled to
the fullest opportunity to adduce evi-
dence in support of her claim. But she is
not entitled to a trial, or even to dis-
covery, merely to find out whether or not
there may be a factual basis for a claim
which she has not made.
In regard to defendant Prasek, the plain-
tiffs have alleged a theory without facts.
In the plaintiffs' twenty-eight page
amended complaint, there are three factual
references to defendant Prasek's so-called
involvement in this affair. The first refer-
ence is on page five of the complaint, in the
list of parties, where it is stated that he
had responsibility for coordinating Ralph
J. Sigler's intelligence activities at all
times relevant herein. Defendant Pra-
sek, along with defendants Schaffstall
and Zapata, was a case officer of Ralph J.
Sigler at the time of his death. The
actions of Defendant Prasek described
herein were taken in both his individual
and official capacities. The actions re-
garding matters described herein were
reviewed by his superiors.
The second reference is in paragraph thir-
teen of the amended complaint. The plain-
tiffs refer to a letter written by Mr. Sigler
to his wife on April 10, 1976. In that letter,
Mr. Sigler told his wife, "Should anything
happen to me, suicide, death or accident sue
the U.S. Army for being the cause." The
letter specifically directed Mrs. Sigler to sue
defendants LeVan, Aarons, Grimes, Jones,
Schaffstall, Zapata, and Prasek.tt The
which he was placed." A review of the letter,
part of the record in this case, shows this
characterization to be an exaggeration of the
letter's contents. The letter reads in full as
follows:
Dear Ilse:
Should anything happen to me, suicide,
death, or accident sue the U S Army for
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SIGLER v. LeVAN
----....' --aupp. 153 (t 9")
third reference surfaces at paragraph twen- absent in the claims against defendant Pra-
ty of the amended complaint, where the sek. Plaintiffs are not entitled to discovery
plaintiffs state, "On April 17, 1976 [four merely to find out whether there may be a
days after Mr. Sigler's demise] Defendant factual basis for a claim that they have not
Schaffstall travelled to El Paso and commu- made. Cohen, supra at 827.
nicated with Defendants Zapata and Pra-
sek." Although this Court will grant defendant
Prasek's motion to dismiss, it believes that
The first reference obviously does not the plaintiffs should be given one more
state a claim against defendant Prasek; it opportunity 12 to amend their complaint to
merely describes his professional relation- cure the lack of specific factual allegations
ship with the decedent. The third refer- against defendant Prasek, if indeed this
ence also does not allege any wrongful act defect can be corrected. Accordingly, de-
by defendant Prasek. It simply refers to a fendant Prasek's motion to dismiss for fail-
communication, the nature of which is com- ure to state a claim is
pletely unspecified. As Mr. Sigler's case granted wt and
officer, one might expect defendant Prasek prejudice to the plaintiffs to file a second
amended complaint, in compliance with- the
to be engaged in communications with oth-
ers associated with Mr. Sigler after Mr. aforementioned rules of pleading, within
Sigler's demise. thirty days of the filing of this opinion."
The only factual allegation in the entire D. The Feres Doctrine
complaint that comes close to stating a The Army defendants seek to extend the
claim against defendant Prasek is the plain- Fetes doctrine to bar the individual claims
tiffs' reference to the letter Mr. Sigler of Mrs. Sigler and her daughter for conver-
wrote to his wife three days before he died. sion, replevin, and constitutional injuries.
In essence, Mr. Sigler said that should any- The defendants' position is that the alleged
thing happen to him Mrs. Sigler should sue injuries to Mr. Sigler and the alleged inju-
defendant Prasek and other named individ-
ries to his wife and (lter are so closely
uals. The letter gives no reasons for this interrelated that theydshould be considered
direction to Mrs. Sigler, nor does it give any identical and hence barred by Feces. Spe-
facts upon which a claim could be based. cifically, the defendants argue that the
To accept this letter as stating a claim question of Mr. Sigler's voluntary consent
would compel this Court to engage in sheer vel non (upon which Mrs. Sigler's consent
speculation. Putting aside any possible turns) for defendant Schaffstall to "search"
hearsay problems, the letter sim~ily provides the Sigler residence and take Mr. Sigler's
too flimsy a thread to link defendant Pra-
sek to the allegedly unlawful search of the toneof w hate
transpiredgbetweennMr. Sigler
Sigler residence and seizure of Mr. Sigler's and various of the Army defendants. The
memoirs material. Facts are conspicuously defendants contend that examining these
being the cause, naming specificaly the fol-
lowing as defendant. P.S. get a reputable lawyer. Your boss
should be able to recommend a good one.
Maj. Gen. C.J. Le Van
Mai Gen Aarons R.
PPS If nothing happens and I return give this
Col. Grimes
h-4 r., .-..~
CW 4 Carlos Zapata- 12. The Court notes that it has already permit-
Special
Special Agent Francis Pracek (FBI) ted the plaintiffs to file a first amended corn-
addition request all papers picked up by Plaint on April 1, 1979.
John Schaffstall on 9 April 76 be returned to
you immediately. 13. Because of the Court's disposition of defend-
Love, ant Prasek's motion to dismiss, it need not
Ralph address his other grounds for the motion. De
OVER fendant Prasek is, of course, free to raise these
grounds at a later time, it deemed appropriate.
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matters and questioning decisions made in-( E. The State Secrets Privilege
the military chain of command is what the The defendants strenuously argue that
Feres case was designed to prevent. This the claims of Mrs. Sigler and her daughter
(',hurt. disa
rees
g
[13, 141 As this Court stated earlier,
Feres applies only when military personnel
are injured incident to service by govern-
mental or other military personnel. Mrs.
Sigler and her daughter are civilians. The
Feres doctrine simply does not apply when
a civilian relative of a serviceman has been
injured by actions of military personnel.
Hall v. United States, 314 F.Supp. 1135,
1136 n. 2 (N.D.Cal.1970); Grigalauskas v.
United States, 103 F.Supp. 543, 548-50
(D.Mass.1951), aff'd 195 F.2d 494 (1st Cir.
1952); Herring v. United States, 98 F.Supp.
69 (D.Colo.1951) (medical malpractice cases).
It would be manifestly unjust to allow the
military to use the Feres doctrine to shield
itself from liability when it injures a civil-
ian. Civilian relatives of military personnel
are not stripped of their constitutional and
state law rights merely because of their
relationships with servicemen.
Moreover, the fact that discharged mili-
tary personnel are not barred by Feres
from recovering damages against the mili-
tary for post-discharge injuries, United
States v. Brown, 348 U.S. 110, 75 S.Ct. 141,
99 L.Ed. 139 (1954); Thorn well v. United
States, 471 F.Supp. 344, 349--53 (D.D.C.
1979), demonstrates that Feres is limited to
actions for injuries to active duty service-
men sustained incident to service. Even
though such post-discharge suits inevitably
involve the examination of military matters
and the questioning of decisions made in
the chain of command, this does not invoke
the Peres doctrine. See also Dilley v. Alex-
ander, 195 U.S.App.D.C. 332, 337-38, 603
F.2d 914, 919-20 (D.C.Cir. 1979); Note,
From Feres to Stencel: Should Military
Personnel Have Access to FTCA Recov-
ery?, 77 Mich.L.Rev. 1099, 1109-18 (1979).
While the . alleged injuries to Mrs. Sigler
and her daughter arose out of the same
factual scenario as the alleged injuries to
Mr. Sigler, their injuries are distinct. Peres
does not apply to their claims.
are precluded from consideration "because
their litigation cannot proceed without in-
quiry into areas sheltered by the Govern-
ment's assertion of the state secrets privi-
lege." Supplemental Memorandum In Sup-
port Of Motions To Dismis Of Defendants
Aaron, Grimes, Jones, Martel, Schaffstall,
Drake, Conway, And King at 8. Grounds
for this argument are essentially twofold.
First, defendants submit that the question
of Mr. Sigler's consent to allow the defend-
ants to retrieve his memoirs material can-
not be resolved without revealing the con-
tents of the classified material. Secondly,
defendants assert that the question of Mr.
Sigler's consent would inevitably expose de-
tails of Mr. Sigler's relationship with the
defendant intelligence officers. This rela-
tionship defendants contend, involves classi-
fied information and is protected by the
state secrets privilege.
In Totten v. United States, 92 U.S. 105,
23 L.Ed. 605 (1875), the Supreme Court
affirmed the dismissal of an action on the
ground that the suit could not be litigated
without revealing governmental secrets.
Totten involved a suit for breach of a con-
tract between the plaintiff and President
Abraham Lincoln under which the plaintiff
contracted to engage in intelligence gather-
ing operations against the Confederacy dur-
ing the Civil War. The Court held that
public policy forbade the maintenance of
plaintiff's suit:
The secrecy which such contracts impose
precludes any action for their enforce-
ment. The publicity produced by an ac-
tion would itself be a breach of a contract
of that kind, and thus defeat a recovery.
It may be stated, as a general principle,
that public policy forbids the mainte-
nance of any suit in a court of justice, the
trial of which would inevitably lead to
the disclosure of matters which the law
regards as confidential, and respecting
which it will not allow the confidence to
be violated. On this principle, suits can-
not be maintained which would require a
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SIGLER V. LCVAN .,,,,
disclosure of the confidences of the con- ruling, this Court does not foreclose the
fessional, or those between husband and possibility that at some subsequent point in
wife, or of communication by a client to these proceedings it might become obvious
his counsel for professional advice, or of a that further litigation of the plaintiffs'
patient to his physician for a similar pur- claims would inevitably lead to disclosure of
pose. Much greater reason exists for the the contents of the secret materials. If
application of the principle to cases of such an event occurs, the Court will enter-
contract for secret services with the tain an appropriate motion from counsel for
Government, as the existence of a con- the defendants.
tract of that kind is itself a fact not to be
disclosed. Defendants' second ground, that the
Id. at 107 (emphasis added). Accord, Hal- question of Mr. Sigler's consent would inev-
kin v. Helms, 194 U.S.App.D.C. 82, 598 F.2d itably expose Mr. Sigler's relationship and
1 (D.C.Cir. 1978); Tucker v. U. S., 118 communications with the defendant intelli-
F.Supp. 371, 127 Ct.Cl. 477 (1954) (per cu- gence officers, presents a much closer ques-
riam); Farnsworth Cannon, Inc. v. Grimes, tion. The defendants claim that Mr. Si-
No. 79--16-A (E.D.Va. March 2, 1979), ap- gler's relationship with the defendant intel-
peal docketed, No. 79-1260 (4th Cir. May 1, ligence officers involves classified informa-
1979). Commenting on the Totten case in tion and is protected by the state secrets
United States v. Reynolds, 345 U.S. 1, 11 n. privilege. This Court believes that the
26, 73 S.Ct. 528, 533-534 n. 26, 97 L.Ed. 727 question of Mr. Sigler's consent will likely
(1953), the Supreme Court noted that "[tjhe mandate the exposure of his relationship
action was dismissed on the pleadings with- and contacts with the defendant intelli-
out ever reaching the question of evidence, gence officers, in particular the ones who
since it was so obvious that the action allegedly interrogated him and procured his
should never prevail over the privilege." "consent." These matters might well be
At this stage of the proceedings, the protected by the state secrets privilege as it
Court is not convinced that litigation of the is probable that intelligence activities are
claims of Mrs. Sigler and her daughter involved.
would "inevitably" lead to disclosure of the
contents of the secret materials. Cf. Ja- [15) The Government, however, has not
bara v. Kelley, 476 F.Supp. 561, 578 (E.D. made a formal claim of the state secrets
Mich.1979) ("[R]esort need not be made to privilege insofar as Mr. Sigler's contracts
privileged material to establish a violation with the defendant intelligence officers are
of the plaintiff's constitutional rights."). concerned. The formal claim of the state
The Government and the defendants have secrets privilege by Secretary Alexander re-
merely given conclusions on this point rath- lates only to the classified materials seized
er than explanations. It seems to this by the defendants; it does not extend to
Court that if the parties stipulate that the Mr. Sigler's professional contacts. The
classified materials are top secret and state secrets privilege must be invoked by
should not be divulged, then their contents the head of the department or agency re-
need not be revealed prior to, or at trial." sponsible for the defendant intelligence of-
The Court fails to see how any of the de- ficers after actual personal consideration of
fendants' possible good faith defenses the matter by that individual. United
would be eliminated. To rely on these de- States v. Reyno/ds, 345 U.S. 1, 7-8, 73 S.Ct.
fenses, the defendants would only have to 528, 97 L. Ed. 727 (1953); Kinoy v. Mitchell,
establish the classified nature of the materi- 67 F.R.D. 1, 8-10 (S.D.N.Y.1975). Should
als (which could be stipulated); there would the Government assert a formal claim of
be no need to reveal their contents. In so privilege over Mr. Sigler's relationship and
14. At the hearing on the motions to dismiss, plaintiffs' counsel indicated their willingness to
so stipulate.
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contacts with the defendant intelligence of-
ficers during the period in which he alleged-
ly consented to the search of his residence,
this Court requests that the Government
ensure "that the Court possesses the requi-
site supporting material to enable it to
make an informed judgment upon the mer-
its of the claim of privilege." Kinoy, supra
at 10. The Government has thirty days to
submit a formal claim of the state secrets
privilege over this matter to this Court,
along with the requisite supporting materi-
al.
F. Other Defenses
The defendants have raised myraid other
defenses to the claims asserted by Mrs. Si-
gler and her daughter. The plaintiffs'
claims depend on the validity vel non of Mr.
Sigler's consent. If the state secrets privi-
lege forecloses investigation into the volun-
tariness of Mr. Sigler's consent, then the
plaintiffs' state law and constitutional
claims are barred.15 This Court will there-
fore defer ruling on these other defenses
until the Government has had an opportuni-
ty to assert a further claim of the state
secrets privilege.
SUPPLEMENTAL OPINION
On January 7, 1980, this Court filed an
opinion (hereinafter Court's Opinion) in
which it dismissed plaintiffs' claims for
damages for injuries to Ralph J. Sigler and
plaintiffs' claims for injunctive relief. This
Court also dismissed the plaintiffs' personal
claims of conversion, replevin, and viola-
tions of their fourth and fifth amendment
rights against defendant Prasek, the un-
known defendants, and against the United
States. In that opinion, however, the Court
rejected defendants' motions to dismiss
plaintiffs' personal claims on the basis of
the Feres doctrine.
The litigation of plaintiffs' personal
claims hinges on the question of whether
15. The alleged acts of coercion took place at
one of the Fort Meade motel rooms by certain
of the defendant Army intelligence officers. If
inquiry into this coercion is foreclosed, the
claims against the other defendants who were
Mr. Sigler consented to turning over his
memoirs material to the defendant. In its
opinion, the Court noted that "the question
of Mr. Sigler's consent will likely mandate
the exposure of his relationship and con-
tacts with the defendant intelligence offi-
cers, in particular the ones who allegedly
interrogated him and procured his 'con-
sent.'" Court's Opinion at 29. Since this
involves matters that might be protected by
the state secrets privilege, this Court gave
the Government thirty days in which to
prepare a formal claim of the state secrets
privilege over the matter of Mr. Sigler's
relationship and contacts with these defend-
ants. On February 8, 1980, the Govern-
ment filed a motion for extension of time to
February 15, 1980 to respond to the Court's
directive, which this Court granted. On
February 25, 1980, the Government filed a
memorandum in which it stated that it de-
clined to raise the state secrets privilege at
this time. This Court will, therefore, now
address the other defenses raised by the
defendants in their motions to dismiss.
[16] Plaintiffs' remaining claims against
Secretary Alexander, in his individual ca-
pacity, must be dismissed for failure to
state a claim. It is undisputed that defend-
ant Alexander did not become Secretary of
the Army until February 14, 1977, almost
ten months after the events that form the
basis for the complaint against him in Civil
Action No. N-78-1237. There are no alle-
gations of any wrongdoing on his part.
This remaining portion of the case against
Secretary Alexander will therefore be dis-
missed. As with the dismissal of the claims
against defendant Prasek, see Court's Opin-
ion at 24, this dismissal is without prejudice
to the plaintiffs to file a second amended
complaint in Civil Action No. N-78-1237
within thirty days of the filing of this opin-
ion.
[17] Plaintiffs' remaining claims against
defendant LeVan in Civil Action No. N-78-
1237 must also be dismissed for failure to
state a claim. References to defendant Le-
not present at the time of the alleged coercion
must be dismissed since the events that tran-
spired in the motel room are crucial to the
plaintiffs' claims.
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SIGLER v. LeVAN 201
Cite as 485 F.Supp. 185 (1980)
Van's alleged involvement in this case ap-
pear only twice in the amended complaint.
On page four of the amended complaint,
plaintiffs state the following:
MAJOR GENERAL C. J. LE VAN,
United States Army, was the command-
ing general of Fort Bliss, Texas between
June, 1973 and June, 1976, with adminis-
trative control and responsibility for
Ralph J. Sigler. Defendant LE VAN was
informed of Ralph J. Sigler's work for
USAINTA, and was notified of certain of
Sigler's specific intelligence activities.
The actions of Defendant Le Van describ-
ed herein were taken in both his individu-
al and official capacities.
This statement contains no allegations of
wrongdoing by defendant LeVan and is
plainly insufficient to support the claims
against him. See the cases cited in Court's
Opinion at 21-22.
The only other reference to defendant
LeVan's alleged involvement is contained in
paragraph thirteen of the amended com-
plaint where the plaintiffs refer to a letter
written by Mr. Sigler to his wife on April
10, 1976. The Court found this letter insuf-
ficient to state a claim against defendant
Prasek, see Court's Opinion at 22 24, and
the Court likewise finds the letter insuffi-
cient to state a claim against defendant
Levan. As with the dismissal of the claims
against defendant Prasek, see Court's Opin-
ion at 24, this dismissal is without prejudice
to the plaintiffs to file a second amended
complaint in Civil Action No. N 78 1237
within thirty days of the filing of this opin-
ion.
Plaintiffs' remaining claims against de-
fendant Aaron in these consolidated cases
claim. The first reference to him in Civil
Action No. N--78-1237 is in the identifica-
tion of parties section, which does not state
a claim against him. The second reference
to defendant Aaron is in paragraph thirteen
of the amended complaint, which refers to
the aforementioned April 10, 1976 letter
from Mr. Sigler to his wife. For the same
reasons, this Court finds the letter insuffi-
cient to state a claim against defendant
Aaron. Similar references to defendant
Aaron in Civil Action No.. N--79 918 are
likewise insufficient to state a claim against
him. This Court will therefore dismiss
plaintiffs' remaining claims against defend-
ant Aaron in these consolidated cases, with-
out prejudice to the plaintiffs to file amend-
ed complaints in Civil Actions Nos. N -78-
1237 & N -79 918 within thirty days of the
filing of this opinion.
Plaintiffs' remaining claims against de-
fendant Zapata in these consolidated cases
must also be dismissed for failure to state a
claim. There are three references to his
alleged involvement in this case in the
amended complaint in Civil Action No. N-
78--1237. The first references are on pages
eight and ten, where it is alleged that de-
fendant Zapata made telephone arrange-
ments for Mr. Sigler's release from Fort
Bliss, Texas. This statement contains no
allegation of wrongdoing. The second ref-
erence is to the aforementioned April 10,
1976 letter, which this Court has already
found insufficient to state a claim against
the other defendants. The third reference
is on page fifteen of the amended complaint
where the following is alleged:
Pursuant to communications between
themselves, Defendants Martel, Jones,
Grimes and Drake met at Sigler's room at
the Holiday Inn and collectively conduct-
ed an illegal and unreasonable search in
violation of the fourth amendment. Af-
ter completion of this illegal and unrea-
sonable search of the motel room and
seizure of papers and effects, Defendant
Jones communicated with Defendants
Schaffstall and Zapata. On April 17,
1976 Defendant Schaffstall travelled to
El Paso and communicated with Defend-
ants Zapata and Prasek.
The nature of these communications is com-
pletely unspecified, and this reference does
not allege any wrongful act by the defend-
ant. Similar references to defendant Zapa-
ta in Civil Action No. N 79 918 are like-
wise insufficient to state a claim against
him. This Court will therefore dismiss
plaintiffs' remaining claims against defend-
ant Zapata in these consolidated cases,
without prejudice to the plaintiffs to file
amended complaints in Civil Actions Nos.
N--78 1237 & N 79918 within thirty (lays
of the filing of this opinion.
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 [18] The Court finds that the plaintiffs'
actions against the remaining defendants
for conversion, replevin, and fourth and
fifth amendment violations, in regard to the
alleged seizure or taking of the classified
materials, must also be dismissed.' It is
beyond dispute that the plaintiffs have no
greater right to maintain an action for the
taking of Mr. Sigler's "possessions" than
would Mr. Sigler, were he alive today. The
Court believes that the Government has
shown that Mr. Sigler had no right to pos-
sess the classified materials in question and
that his retention of them at his residence
was unauthorized. See Defendant Clifford
Alexander's Points And Authorities In Re-
sponse To Questions By The Court at 4-16;
32 C.F.R. ? 159.501(b) (1976). See also
Snepp v. United States, - U.S. - --,100
S.Ct. 763, 62 L.Ed.2d 704 (1980) (per cu-
riam). Mr. Sigler could not, therefore, as-
sert an action for the deprivation of the
classified materials were he alive today.
See 18 U.S.C. ?? 792 et seq.; W. Prosser,
Torts ? 13, at 94 (4th ed. 1971). A fortiori,
the plaintiffs may not maintain such an
action. Moreover, since Mr. Sigler had no
right to transfer classified materials to his
heirs, the plaintiffs could not have any ex-
pectation of inheriting, or property interest
in, the classified materials, and thus cannot
have standing to sue in their own right.
[19] Consequently, the plaintiffs are
now left only with their personal claims in
regard to the non-classified materials.
There is no question that Mr. Sigler owned
these materials. The Court believes that
plaintiffs' mere expectancy interests, as
heirs of Mr. Sigler, in the non-classified
materials are not sufficiently concrete to
give them the right to maintain these ac-
2. In Plaintiffs' Supplemental Memorandum Of
Law In Opposition To Defendants' Motion To
Dismiss at 7, plaintiffs allege that they were in
actual possession of the materials at the time
of their alleged seizure. Plaintiffs have not
pointed to any such allegations in either of
their complaints.
3. The Court notes that the non-classified mate-
rials taken from the Sigler residence were re-
tions for the seizure or taking of the mate-
rials. See Board of Regents v. Roth, 408
U.S. 574, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d
548 (1972); T. Cooley, Constitutional Limi-
tations at 750 (8th ed. 1927); 18 Am.Jur.2d
Conversion ? 54, at 192 (1965). Plaintiffs
have cited no authority to the contrary.2
Although the plaintiffs possessed expect-
ancy interests in the non-classified materi-
als at the time of their seizure, no right to a
cause of action had vested in them. That
right was vested in Mr. Sigler, who could
have cut off their expectancy interests by
grant or devise. Plaintiffs cannot now
maintain an action for a wrongful seizure
that took place when title to the non-classi-
fied materials was vested in Mr. Sigler.
This finding does not end the Court's
inquiry, however. In several portions of
the complaints, plaintiffs have alleged a
continuing deprivation of the non-classified
materials. Assuming, as this Court must
for the purposes of a motion to dismiss, that
title to the non-classified materials vested
in the plaintiffs after Mr. Sigler's will was
probated, then plaintiffs presumably have a
cause of action for any continued "depriva-
tion" of the non-classified materials after
title vested in them.3
The plaintiffs' remaining claim is under
the fourth amendment for the allegedly
unreasonable search of the Sigler resi-
dence! While this claim may be barred by
the state secrets privilege or blocked by a
good faith immunity defense, these ques-
tions cannot be resolved in the present pos-
ture of the case.
In his motion to dismiss, filed July 6,
1979, defendant Drake made the bare asser-
tion that he had not yet been served with
process in Civil Action No. N-78-1237.
Court Paper No. 121 is the "U.S. Marshals
turned to plaintiffs' counsel, after a formal de-
mand. This action renders the question of
damages a highly speculative issue, particularly
if the non-classified materials were mistakenly
confused with the classified materials.
4. The Court recognizes that the plaintiffs have
a cause of action for the alleged search of the
Sigler residence for the classified and non-clas-
sified materials.
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Service
indicat
Bessi I
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CHEESEMAN v. CAREY
Cite as 485 p Supp. 203 (1980) 203
Service Process Receipt and Return" which enjoin the state from deducting from their
indicates that a Deputy U.S. Marshal served
Bessi Drake, the defendant's mother, at Mr. h ages penalty for illegal strikes provided
Drake's resirjp.,... __
y the T
l
issue was not raised at the he aring9on the
motions to dismiss, so the Court believes the
issue to be moot. Defendant Drake's mo-
tion to dismiss for lack of personal jurisdic-
tion is therefore denied.
In the Matter of the Application of Ronnie
CHEESEMAN; Lewis Pollack; Rocco
C. LaBelle, Jr.; James Mann; Peter
Scannell; Richard Watson; Robert Vos.
per; Brian Gummoe; Thomas Ryan;
Richard F. O'Connell; Ambrose Burger;
Stephen Kurpil; Ted Kott; Bruce
Smith; James Mullen; David Gundrum;
Individually and on behalf of all others
similarly situated, Plaintiffs,
V.
Hugh CAREY, as the duly elected Gover.
nor and Chief Executive Officer of the
State of New York; the Governor's Of-
fice of Employee Relations; Meyer S.
Frucher, as Director of the New York
State Office of Employee Relations; Ed-
ward Regan, as The Comptroller of the
State of New York; Thomas Coughlin,
as The Acting Director of the New York
State Department of Correctional Serv.
ices; James A. Prevost, as The Commis.
sioner of the Office of Mental Hygiene;
Clifton R. Wharton, as The Chancellor
of the State University of New York;
James C. O'Shea, as The Commissioner
of the Office of General Services of the
State of N
ew York, Defendants.
No. 79 Civ. 4265.
United States District Court,
S. D. New York.
Jan. 10, 1980.
As Amended March 11, 1980.
Employee members of the Security
Services Unit of New York State sought to
ay
or Law
and def
d
,
en
ants moved
that suit be dismissed or transferred due to
improper or inconvenient venue. The Dis-
trict Court, Sofaer, J., held that: (1) venue
was proper in the Southern District of New
York on ground that proper parties having
official residence in such district had been
joined as defendants and on ground that
claim arose in such district; (2) transfer
was not required in the interests of justice;
but (3) Pullman abstention doctrine was
applicable where it appeared that state
courts might well, by construing the Taylor
Law, place restraints on state's power to
enforce the act that would sufficiently
ameliorate the plight of employees in plain-
tiffs' position to eliminate what otherwise
seemed a substantial constituti
onal issue;
and (4) complaint would be dismissed, rath-
er than district court retaining jurisdiction,
where nothing remained for federal courts
to correct in the controversy, except per-
haps on appeal from the instant ruling.
Complaint dismissed.
1. Federal Courts X74
"Residence" of a public officer under
statute dealing with venue generally means
his official and not his actual residence, but
in suits against state officials, courts should
be willing to consider whether any defend-
ant has more than one official residence for
purposes of the particular litigation. 28
U.S.C.A. ?? 1391, 1391(b).
See publication Words and Phrases
for other judicial constructions and
definitions.
2. Federal Courts 74
Whether a state defendant has a
second official residence for venue purposes
turns on: defendant's presence in the dis-
trict in which plaintiff has sued; the extent
of defendant's official activities in the dis-
trict; and the relationship of defendant's
activities within the district to the cause of
action asserted. 28 U.S.C.A. ? 1391(b).
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