Minns v. U.S., 97-2234

• Decision Date: 02 September 1998
• Docket Number: No. 97-2234,97-2234
• Citation: 155 F.3d 445
• Parties: Marilyn MINNS, individually and as parent and guardian of Casey R. Minns (infant); Casey R. Minns; Kimberly Walsh, individually and as parent and guardian of Jena Walsh (infant); Jena Walsh; Denise Blake, individually and as parent and guardian of Katelyn Blake (infant); Katelyn Blake, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 445

155 F.3d 445

Marilyn MINNS, individually and as parent and guardian of Casey R. Minns (infant); Casey R. Minns; Kimberly Walsh individually and as parent and guardian of Jena Walsh (infant); Jena Walsh; Denise Blake, individually and as parent and guardian of Katelyn Blake (infant); Katelyn Blake, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 97-2234.

United States Court of Appeals, Fourth Circuit.

Argued May 5, 1998.

Decided Sept. 2, 1998.

ARGUED: Kenneth David Pack, Law Offices of Peter G. Angelos, P.C., Baltimore, Maryland, for Appellants. Henry Thomas Byron, III, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: H. Russell Smouse, Law Offices of Peter G. Angelos, P.C., Baltimore, Maryland, for Appellants. Frank W. Hunger, Assistant Attorney General, Lynne A. Battaglia, United States Attorney, Robert S. Greenspan, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellee.

Before NIEMEYER and WILLIAMS, Circuit Judges, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILLIAMS and Judge HOWARD joined.

OPINION

NIEMEYER, Circuit Judge:

In preparation for Operation Desert Storm and the Persian Gulf War, the United States military inoculated its servicemen and exposed them to toxins and pesticides in anticipation of possible biological and chemical attacks by Iraq. The wives and children of three servicemen claim in this case that the military negligently administered and used "investigational" and defective drugs on the three servicemen, causing their children, who were born after the War, serious birth defects.

After the Judge Advocate General of the Air Force through delegated authority, see 32 C.F.R. § 842.42, disallowed their claims made under the Military Claims Act, 10 U.S.C. § 2731 et seq., the wives and children filed these three actions against the United States both to review the Judge Advocate General's decisions and to assert independent negligence claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The district court ruled that it did not have jurisdiction to review the decisions of the Judge Advocate General and that exceptions to the Federal Tort Claims Act, as well as the doctrine stated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), applied to exclude their claims under that Act.

Because the Constitution grants to Congress and not to the judiciary "plenary control over rights, duties, and responsibilities in the framework of the Military Establishment," Chappell v. Wallace, 462 U.S. 296, 301, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and Congress has not relinquished this control to the judiciary, we affirm the district court's order dismissing these cases. But our decision nonetheless invites Congress to review these claims in the context of ongoing scientific studies to assure that justice is accomplished for our returning veterans and their families.

I

Sergeant Brad Minns of the U.S. Army, Chief Petty Officer Brian Walsh of the U.S. Navy, and Private Paul F. Blake of the U.S. Army are veterans of the Persian Gulf War which was fought in 1991. In preparation for the War, they were inoculated with drugs and exposed to pesticides by the military in anticipation of possible biological and chemical attacks by Iraq.

Following the war, each serviceman returned to his wife and fathered a child who was born with serious birth defects. All three children suffer from Goldenhar's Syndrome, a rare birth defect producing deformity, including asymmetry of the face and body, a partially developed or lopsided ear, internal fistulas, and, in some cases including these children, esophageal malformations and the absence of an anal opening. The families of these children recognize that scientific studies about the effects of the administered drugs and pesticides are in process and will not be concluded until later in 1998 or in 1999. Based on preliminary results from some studies, however, they believe that the toxins to which the servicemen were exposed were possibly stored in the servicemen's semen and passed on to their wives, where the toxins were stored in fatty tissue and ultimately were released during pregnancy to the fetus. The deformed children were born from one to two-and-one-half years after the servicemen were exposed to the toxins and pesticides.

The wives and children presented claims for damages to the Office of the Judge Advocate General under the Military Claims Act, 10 U.S.C. § 2731 et seq. After the Judge Advocate General disallowed their claims, they filed these actions to review the Judge Advocate General's decisions and to assert claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

In substantially similar complaints, the wives and children of these three returning servicemen allege that the United States "negligently administered [to the servicemen] a course of immunizations" and "negligently exposed [the servicemen] to a variety of unreasonably dangerous, toxic pesticides." The complaints state that the military "failed to supervise, direct and implement the use and exposure of their products," which were "hazardous, unreasonably dangerous, [and] defective." They further allege that the products were used "without proper testing, approval, warnings and directions." Each mother and child demands $20 million in damages as a result of the United States' negligence.

The United States filed a motion to dismiss these complaints under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and the district court granted the motion, ruling that the Feres doctrine, as stated in Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and the "discretionary function" exception to the Federal Tort Claims Act barred plaintiffs' negligence claims under that Act and that the courts have no authority to review administrative decisions under the Military Claims Act. These appeals followed.

II

Through enactment in 1948 of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., Congress waived the sovereign immunity of the United States for certain torts that otherwise could be proved against it. The FTCA did not create new causes of action but merely accepted liability against the United States for circumstances that otherwise "would bring private liability into existence." Feres, 340 U.S. at 141, 71 S.Ct. 153. Indeed, the FTCA expressly states that the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.

Relying on this operation of the FTCA, the Supreme Court concluded in Feres that even after enactment of that Act, servicemen could not sue the government because "[w]e know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving." 340 U.S. at 141, 71 S.Ct. 153 (footnote omitted). The Court summarized, "[The Act's] effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities." Id. at 142, 71 S.Ct. 153. On this basis, the Feres doctrine, thus established, holds precisely that under preexisting law servicemen could not sue fellow servicemen or the government "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to [military] service," id. at 146, 71 S.Ct. 153, and that the FTCA did not create or imply such liability.

The wives and children of the three servicemen involved in this case do not attempt to take issue with the conclusion that under the Feres doctrine the three servicemen do not have claims against the government for damages under the FTCA. But they argue that, as wives and children of servicemen, they are not barred from prosecuting a claim under the FTCA based on the United States' negligent acts directed at them. They observe that if they are not allowed to prosecute their tort claims under the FTCA, they have no remedy at all for their damages. To address their argument, we must first examine the scope of the Feres doctrine.

While justifications for the Feres doctrine include the fact that compensation is provided to servicemen through a no fault comprehensive benefit scheme and the fact that a serviceman's relationship to the government is a "distinctively federal" one, Stencel Aero Engineering Corp. v. U.S., 431 U.S. 666, 671, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), its principal justification focuses on the unique relationship between the government and its military personnel:

Although the Court in Feres based its decision on several grounds, in the last analysis, Feres seems best explained by the peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.

United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (internal quotation marks and citations omitted). The military has a unique need to operate under special regulations and rules of order to ensure "unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel." Chappell, 462 U.S. at 304, 103 S.Ct. 2362. This discipline "would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command." Id. Accordingly, consistent with the structure created by the Constitution, which leaves control of the...