592 F.2d 712 (3rd Cir. 1979), 78-2041, Jaffee v. United States

Docket Nº:78-2041.
Citation:592 F.2d 712
Party Name:Stanley JAFFEE and Sharon Blinn Jaffee, Individually and Stanley Jaffee, on behalf of all others similarly situated, Appellants, v. UNITED STATES of America, and Certain Past and Present Officers and Officials of the United States Department of Defense, the Department of the Army and the Atomic Energy Commission and the United States Army whose nam
Case Date:February 09, 1979
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 712

592 F.2d 712 (3rd Cir. 1979)

Stanley JAFFEE and Sharon Blinn Jaffee, Individually and

Stanley Jaffee, on behalf of all others similarly

situated, Appellants,

v.

UNITED STATES of America, and Certain Past and Present

Officers and Officials of the United States Department of

Defense, the Department of the Army and the Atomic Energy

Commission and the United States Army whose names will be

inserted when ascertained, each individually and in his

official capacity.

No. 78-2041.

United States Court of Appeals, Third Circuit

February 9, 1979

Argued Nov. 14, 1978.

Page 713

Kreindler & Kreindler, New York City, Lanigan, O'Connell & Hirsh, Basking Ridge, N. J., for appellants; Stanley J. Levy, Melvin I. Friedman, Steven J. Phillips, New York City, of counsel.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Robert L. Del Tufo, U. S. Atty., Newark, N. J., David J. Anderson, Rebecca L. Ross, Elizabeth Gere Whitaker, Attys., Civ. Div., Dept. of Justice, Washington, D. C., for appellee.

Before ROSENN, GARTH, and HIGGINBOTHAM, Circuit Judges.

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OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents a perplexing problem spawned by modern nuclear warfare which requires us to examine again the doctrine of sovereign immunity of the United States. The genesis of the litigation is the serious injury allegedly incurred by the male plaintiff from atomic radiation while on active duty in the military service.

In 1953, when Stanley Jaffee ("Jaffee") was serving in the United States Army, the Government tested a nuclear device at Camp Desert Rock, Nevada. Jaffee avers that he and other soldiers were ordered to stand in an open field near the site of an explosion of a nuclear bomb without benefit of any protection against radiation; that the explosion caused Jaffee and other soldiers similarly situated to be exposed to massive doses of highly dangerous radiation; that the Government, knowing of the grave risks of injury from such exposure, nonetheless, deliberately compelled Jaffee and other soldiers similarly assigned to participate in the nuclear testing and in the radiation exposure without their knowledge or consent. Jaffee further alleges that because of his exposure to such radiation, he has developed inoperable cancer.

Asserting that the Government deliberately violated rights guaranteed by the first, fourth, fifth, eighth, and ninth amendments, Jaffee and his wife filed a complaint consisting of four counts in the United States District Court for the District of New Jersey. In Counts I, II, and III, the Jaffees joined the United States and unnamed individuals as defendants and made claims for money damages. Count IV was a class action, in which Stanley Jaffee sought to represent all of the soldiers who were ordered to be present at the explosion. In this count, naming only the United States as a defendant, Jaffee prayed that the United States be directed to warn all members of the class about the medical risks facing them and that the United States be required to provide or subsidize medical care for the members of the class.

The district court dismissed Count IV, concluding that the doctrine of sovereign immunity barred that action against the United States. Under Rule 54(b), Fed.R.Civ.P., the court certified the dismissal for appeal, but retained jurisdiction over Counts I, II, and III. The United States moved this court to dismiss the appeal for lack of jurisdiction or to affirm summarily the order of the district court. Although we have denied the motion for summary affirmance, 1 the motion to dismiss for lack of appellate jurisdiction is still pending before us, as is Jaffee's appeal from the district court's dismissal of Count IV.

I.

Two possible grounds for jurisdiction have been proposed in this case. First, if the district court properly certified its order under Rule 54(b), Fed.R.Civ.P., we have jurisdiction over a final judgment. 28 U.S.C. § 1291 (1976). Second, if the district court entered an interlocutory order denying an injunction, there is appellate jurisdiction under 28 U.S.C. § 1292(a)(1) (1976). We begin with section 1292(a)(1).

Under 28 U.S.C. § 1292(a)(1), federal appellate courts have jurisdiction over appeals from "(i)nterlocutory orders of the district courts of the United States . . . refusing . . . injunctions . . . ." In Count IV of his complaint, Jaffee moved for an injunction ordering the Government to warn members of the class and to provide medical care for them. 2 The Government

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contends that this prayer for injunctive relief is a disguised claim for damages.

We agree with the Government that the request for prompt medical examinations and all medical care and necessary treatment, in fact, is a claim for money damages. A plaintiff cannot transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money. See International Engineering Co. Div. of A-T-O, Inc. v. Richardson, 167 U.S.App.D.C. 396, 512 F.2d 573 (1975), Cert. denied, 423 U.S. 1048, 96 S.Ct. 774, 46 L.Ed.2d 636 (1976); Warner v. Cox, 487 F.2d 1301, 1304 (5th Cir. 1974). Jaffee requests a traditional form of damages in tort compensation for medical expenses to be incurred in the future. See, e. g., Coll v. Sherry, 29 N.J. 166, 148 A.2d 481, 485 (1959); 25 C.J.S. Damages § 91(3) (1966). Indeed, his complaint seeks an injunction ordering either the provision of medical services by the Government or payment for the medical services. The payment of money would fully satisfy Jaffee's "equitable" claim for medical care.

We reach a different result, however, in regard to the petition that the Government warn members of the class about medical risks. The payment of money cannot satisfy this claim. Although providing the warning will impose an expense on the Government, the creation of expense does not necessarily remove a form of relief from the category of equitable remedies. See, e. g., White v. Mathews, 559 F.2d 852, 855-56, 859-60 (2d Cir. 1977) (writ of mandamus proper remedy by which court orders expedited action by Social Security Administration). Cf. Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (eleventh amendment bars nominally "equitable" action that "requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation"). The dismissal of the claim for warning is appealable under 28 U.S.C. § 1292(a)(1).

Because that part of the district court's interlocutory order dealing with warning to the class was the denial of an injunction, we have jurisdiction over the whole order, including dismissal of the related claim for medical care. Kohn v. American Metal Climax, Inc., 458 F.2d 255, 262 (3d Cir.), Cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972). We therefore need not reach the propriety of the district court's certification under Rule 54(b).

II.

The district court ruled that the doctrine of sovereign immunity bars relief under Count IV. We affirm in part and reverse in part.

Jaffee proposes several theories under any one of which he contends his suit against the United States is not foreclosed by the doctrine of sovereign immunity. First, he vigorously argues that courts have the power to abolish the doctrine or create exceptions to it. Second, even if such action is beyond judicial competence he contends that by enacting and later amending the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 Et seq., Congress has waived sovereign immunity as a defense to his suit.

Jaffee strenuously urges that sovereign immunity is no more than a common law doctrine created by the courts, and as such courts have the power to abolish or modify it. He further asserts that in spite of its longevity, the doctrine is illogical, unjust, outdated, and that it should be stricken in its entirety when it impedes the vindication of what he characterizes as fundamental constitutional rights.

As the plaintiffs observe, the doctrine indeed has a long historical basis which, although not always regarded with respect, has been traditionally observed in this country,

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especially as to suits founded in tort. 3 Some have attributed the doctrine in this country to a vestigial anachronism of the English monarchy when the king could do no wrong. One scholar attributes the prime cause for the early adoption of the doctrine by our new republic to "the powerful resistance of the states to being sued on their debts." 4 Although he offered neither authority nor any reasoned analysis, Chief Justice Marshall concluded in Cohens v. Virginia, 6 Wheat. 264, 411-12, 5 L.Ed. 257 (1821), that "(t)he universally accepted opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits." About a quarter of a century later, the Supreme Court had before it a matter in which the United States itself was party defendant. The court held that the suit should be dismissed, reiterating the principle enunciated in Cohens v. Virginia. 5

With the expansion of governmental activities and the multiplication of remediless wrongs caused by its agents, Congress saw fit and just to enact legislation permitting suits against the sovereign on deserving claims growing out of contract, tax collections, and tort. The Federal Tort Claims Act of 1946, 28 U.S.C. §§ 1346, 2671-2680 (1976), is the general tort claims statute providing compensation by the United States for deserving claimants. It is the culmination of a determined effort to mitigate the unreasonable consequences of sovereign immunity from suit and to relieve Congress from a plague of private bills seeking relief for tortious injuries. The Act confers district court jurisdiction generally over claims for money...

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