APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
Hunter, Higginbotham, Circuit Judges, and Gerry,*fn* District Judge.
1. James Valn filed the instant action in the United States District Court for the District of Delaware under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. §§ 2671-2680 (1976 & Supp. V 1981). He sought monetary damages against the United States for a series of alleged negligent and wrongful acts that resulted in his involuntary activation into the military and his imprisonment for refusing to submit to military authority. Relying on Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), the district court held that the United States had not waived its sovereign immunity with respect to Valn's claims and granted the government's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). We will reverse.
2. According to Valn's complaint,*fn1 in February of 1974 Valn enlisted for a period of six years in the Delaware Army National Guard. Approximately four months later Valn enlisted for a period of two years in the United States Army and was assigned to the Army base at Fort Dix, New Jersey. At the time of his enlistment in the regular Army, Valn was informed by Army personnel that he was relieved of his National Guard commitment. During a physical examination at Fort Dix, Army doctors determined that Valn had a traumatic cataract. Because of his eye problem, on July 22, 1974, Valn received an honorable discharge from the Army for medical reasons. That discharge terminated any and all obligations he then had to the United States Army or to the Delaware Army National Guard.
3. Despite his discharge Valn received orders on September 10, 1974, to report to Fort Jackson, South Carolina, for nineteen weeks of training. Valn protested that his military obligation had terminated but, upon threat of punishment, he reported to Fort Jackson where he involuntarily underwent active duty training. After his release from Fort Jackson, he was ordered to report to the Delaware Army National Guard to complete his National Guard duty. He continued to assert that he had no legal responsibility to the military and refused to attend National Guard meetings.
4. Because of his unwillingness to perform National Guard duties, on July 10, 1978, Valn received orders involuntarily activating him into the United States Army. Valn protested to Army officials but was unsuccessful in convincing them that he had no obligation to the military.On July 21, 1978, he reported as ordered to Fort Carson, Colorado and, after being assigned to a company, spoke with his Commanding Officer, showed him his 1974 discharge, and asked to be relieved of active duty. The Commanding Officer agreed to investigate but did nothing to effectuate Valn's immediate release from duty. Sometime thereafter Valn refused to perform certain duties as ordered and, as a result, was confined and subjected to court martial proceedings. On March 8, 1979, with the assistance of defense counsel, Valn requested a discharge from active duty. On March 23, 1979, the Army placed Valn on excess leave pending a jurisdictional determination of his military status. After an investigation by the Judge Advocate General's Office, it was determined that in fact Valn's discharge on July 22, 1974, had terminated all his military commitments. As a result of that finding, on August 7, 1979, the Army relieved Valn from active duty with an honorable discharge.
5. On June 10, 1980, Valn filed an administrative claim with the Department of Defense asserting that the United States Army had been negligent in placing him on active duty in July of 1978 and in later incarcerating him at Fort Carson, Colorado. He sought damages of $30,000 for lost income and $200,000 for pain and suffering. The United States Army Claim Service denied his claim on January 7, 1981.
6. The instant suit was filed on February 20, 1981. Valn asserted that the United States, through its agents, had acted negligently and wrongfully by ordering him to return to active duty status in July of 1978 and by refusing to relieve him of that duty until August 7, 1980. The United States filed an answer on February 27, 1981. At the same time it also filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(1), (b)(6). In its motion to dismiss, the government argued, inter alia, that Valn's claim was barred under the doctrine of Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950).
7. On September 3, 1982, the district court relying on the Feres doctrine, granted the government's motion to dismiss. Valn v. United States, 548 F. Supp. 921 (D. Del. 1982).*fn2 Valn appeals from that order.
8. It is axiomatic that the United States as a sovereign is immune from suit except to the extent that it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980). Through legislation Congress has waived the government's immunity from suit in certain circumstances. One example is the FTCA's broad waiver of sovereign immunity for individuals suing the government in tort. The FTCA provides that the "United States shall be liable . . . in the same manner and to the same extent as a private individual under like ...