which by this court is precluded by 28 U.S.C. § 2680(k). Therefore, I must conclude that I am without jurisdiction to hear this aspect of the complaint.
4. Admitting Private Weidenhammer Or Failing To Remove Him Or Guard Against His Behavior
Finally, plaintiff contends the Government was negligent in accepting and retaining Weidenhammer as a member of the army. To the extent that this allegation attacks, as negligently formulated, the admissions standards promulgated for the program under which Private Weidenhammer was admitted into the army, this court is without jurisdiction to consider it. The promulgation of such standards is a discretionary act within the meaning of 28 U.S.C. § 2680(a) with respect to which the United States has not waived its sovereign immunity. However, to the extent that plaintiff alleges that the specific decision to admit Private Weidenhammer and/or the subsequent failure to remove him constituted negligent conduct by the United States, this court has jurisdiction to consider her complaint. This alleged act of negligence occurred within the United States and involved only decisions on the "operational level." Such decisions are not discretionary judgments within the meaning of 28 U.S.C. § 2680(a). See Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953); Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). In Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972), the Court of Appeals for the Third Circuit explained clearly that " "application of . . . policy To the individual case is administrative decision at the operational level which if negligently done will make the Government liable . . . (Emphasis supplied).' " Id. at 1397, quoting White v. United States, 317 F.2d 13, 17 (4th Cir. 1963).
The Government suggests that this court lacks jurisdiction to consider this allegation because "the substance of the claim is in actuality an assault or battery" exempted from the FTCA's general waiver of sovereign immunity by 28 U.S.C. § 2680(h), and that plaintiff "beclouds the issue by alleging that his (sic) cause of action is predicated on negligence." Government Supplemental Memorandum at 2. In support of this proposition, the Government cites Lambertson v. United States, 528 F.2d 441 (2d Cir.), cert. denied 426 U.S. 921, 96 S. Ct. 2627, 49 L. Ed. 2d 374 (1976), and Coffey v. United States, 387 F. Supp. 539 (D.Conn.1975). The plaintiffs in both of these cases sought to characterize offensive conduct as negligence to avoid section 2680(h). In each case, the court looked to the facts, found the only tortious conduct to be battery, and refused to consider the complaint.
When injuries directly resulting from assaults and batteries may be reasonably alleged to have their roots in negligence, however, the courts have refused to dismiss them under section 2680(h). See, e. g., Gibson v. United States, supra; Rogers v. United States, 397 F.2d 12 (5th Cir. 1968). In Gibson, the Third Circuit allowed a plaintiff job corps instructor to maintain an action alleging governmental negligence in accepting into the job corps a juvenile delinquent and narcotics addict who assaulted him, 457 F.2d at 1392-93. The court recognized "ample allegations in the complaint of a breach of duty by the United States because of a failure to exercise due care", Id., at 1394, and held that the offensive conduct "had its roots in the Government's negligence." Id. at 1395. The instant complaint also amply alleges negligence by the United States and, taking the facts as stated by plaintiff to be true, as I must for purposes of this motion, I find that the decedent's death may reasonably be alleged to have its roots in Government negligence. The instant action is therefore not barred by 28 U.S.C. § 2680(h).
Finally, the Government argues that I should grant its motion for summary judgment under the doctrine of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). In Feres, the United States Supreme Court held that the government is "not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 159. The Court distinguished this principle from its holding in Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949), that an FTCA action may be maintained by a serviceman, finding significant that the injured person in Brooks "was on furlough," was "under compulsion of no orders or duty and on no military mission," and was "on leave" and not "injured while performing duties under orders." 340 U.S. at 146, 71 S. Ct. 159.
The application of the Feres doctrine to specific factual situations has troubled the district and circuit courts and led some, including the Court of Appeals for this circuit, to express doubts about its continuing validity. Nevertheless, the Third Circuit continues to find the doctrine controlling in cases with facts analogous to those in Feres. See, e. g., Thomason v. Sanchez, 539 F.2d 955, 957 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S. Ct. 809, 50 L. Ed. 2d 790 (1977); Peluso v. United States, 474 F.2d 605, 606 (3d Cir. 1973), cert. denied, 414 U.S. 879, 94 S. Ct. 50, 38 L. Ed. 2d 124 (1973).
In judging whether the Feres doctrine bars recovery by a plaintiff, the courts have looked to whether the injury alleged is "incident to service." Thus, in discussing the distinction between the Supreme Court's holdings in Brooks and Feres, the Third Circuit focused on the fact that "(t)he injury to Brooks did not arise out of or in the course of military duty." Thomason, supra, at 957, quoting Feres, 340 U.S. at 146, 71 S. Ct. at 159, 95 L. Ed. at 161. Most courts have found the injured serviceman's duty status to be of principal significance to this determination. Thus, in Thomason, supra, the court found controlling the fact that plaintiff was "in a "present for duty' status and not on any type of leave or pass." Id. at 957. In Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963, 95 S. Ct. 1354, 43 L. Ed. 2d 441 (1974), the Court of Appeals for the Tenth Circuit explained this distinction well.
If a claimant is on leave or on inactive status at the time of the injury, or if the injury is not the product of a military relationship, suit under the Act may be allowed. On the other hand, when a serviceman on active duty sustains an injury stemming from the military relationship, courts have consistently denied recovery under the Act.