OPINION AND ORDER
JOSEPH S. LORD, III, District Judge.
This is an action in which our jurisdiction is invoked under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), § 2671 et seq. The Government has moved to dismiss on the ground of res judicata.
In 1966, these same plaintiffs filed a complaint in this court (Civil Action No. 40541) seeking to recover the same damages arising out of the same accident here involved. That complaint alleged negligence of "members of the United States Air Force and others." The defendant moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim on which relief could be granted. On July 27, 1966 Judge John Morgan Davis granted the motion. The Court of Appeals affirmed, per curiam, Sheppard et al. v. United States, 369 F.2d 272 (C.A. 3, 1966), holding that the action was properly dismissed "for lack of jurisdiction over the subject matter." We are required, then, to determine initially whether we have subject-matter jurisdiction over this action, and this before we reach any question of res judicata. F.R.Civ.P. 12(h)(3).
The only difference between Civil Action No. 40541 and this one is that here the complaint alleges negligence of "defendant's civilian, non-military agents * * *, to wit, members of the United States Federal Aviation Agency * * *." Thus, the narrow question posed is: where the allegedly culpable government agents are not members of the military, are plaintiffs within the coverage of the Act, or do we look solely to plaintiffs' status as members of the military on active duty and the injury as one incident to and arising out of the course of military duty?
In Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949), members of the armed forces, whose vehicle was struck by an army truck, were held covered by the Act, but only because they were on furlough at the time. However, the Court said, at page 52, 69 S. Ct. at page 920: "* * * Were the accident incident to the Brooks' service, a wholly different case would be presented. * * *"
In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Court had before it three cases all involving the death of or injury to servicemen on active duty as a result of the alleged negligence of other members of the military. After stating this fact as common to all three cases, the Court put the legal question this way (ibid., p. 138, 71 S. Ct. p. 155):
"* * * The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining 'incident to the service' what under other circumstances would be an actionable wrong. * * *"