Laswell v. Brown

• Decision Date: 21 July 1982
• Docket Number: No. 81-1768,81-1768
• Parties: Betty LASWELL; Robert Laswell; Patricia Laswell; Norita Laswell, Plaintiffs-Appellants, v. Harold BROWN, U. S. Secretary of Defense; R. R. Monroe, Director, Defense Nuclear Agency; Department of Defense; Defense Nuclear Agency and United States, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 261

683 F.2d 261

Betty LASWELL; Robert Laswell; Patricia Laswell; Norita

Laswell, Plaintiffs-Appellants, v. Harold BROWN, U. S. Secretary of Defense; R. R. Monroe,

Director, Defense Nuclear Agency; Department of

Defense; Defense Nuclear Agency and

United States, Defendants-Appellees.

No. 81-1768.

United States Court of Appeals,

Eighth Circuit.

Submitted April 12, 1982.

Decided July 21, 1982.

J. Paul McGrath, Asst. Atty. Gen., Washington, D. C., Thomas E. Dittmeier, U. S. Atty., St. Louis, Mo., Robert S. Greenspan, Paul F. Figley, Dept. of Justice, Civ. Div., Appellate Staff, Washington, D. C., for defendants-appellees.

Richard Huber, Washington, D. C., for plaintiffs-appellants Betty Laswell, et al.

Before ARNOLD, Circuit Judge, STEPHENSON, Senior Circuit Judge, and HANSON, ^* Senior District Judge.

STEPHENSON, Senior Circuit Judge.

This case presents a recurring problem of intramilitary immunity. Plaintiffs-appellants seek damages, among other claims, for the disability and eventual death of their husband and father, Charles Laswell. The plaintiffs claim that Laswell was exposed to low-level ionizing radiation as part of this country's atmospheric nuclear weapons testing program while he was on active duty in the South Pacific after World War II.

The district court ¹ sustained the defendants' motion to dismiss concluding that it did not have subject matter jurisdiction and that the plaintiffs had failed to state a claim upon which relief could be granted. Laswell v. Brown, 524 F.Supp. 847, 850 (W.D.Mo.1981). The district court relied primarily on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

We affirm the district court's dismissal.

I. BACKGROUND

Charles Laswell was a member of the United States Army stationed in the South Pacific in 1947-48. The United States Department of Defense conducted nuclear bomb tests in the Eniwetok Atolls in the Marshall Islands during this time. The plaintiffs allege that Charles Laswell was ordered by his commanding officers to attend and participate in three test explosions.

The basic facts, as stated by the district court, are as follows:

Between December 15, 1947 and June 11, 1948, decedent was exposed to three atomic tests on Eniwetok Atoll, Marshall Islands. Each test bomb was exploded in the air while the decedent observed it from on deck aboard ship. He would return to Eniwetok Island after each blast. After the third blast, which was on Runnet Island, the decedent returned to that island to help build a pierced planking landing strip for light planes. The strip was built almost one mile from the blast site.

Plaintiffs claim that this exposure to low-level external ionizing radiation is responsible for decedent's illness, Hodgkins Disease, which is cancer of the lymph glands. Decedent's illness was diagnosed in January, 1975. Plaintiffs allege that decedent's illness and its treatment caused a general weakening of his condition which caused or contributed to cause a massive coronary infarction on September 1, 1979, which resulted in his death on that day.

Laswell v. Brown, supra, 524 F.Supp. at 848. ²

The plaintiffs assert that this test was conducted to determine how well combat troops could physically and psychologically withstand atomic blasts and the subsequent radioactivity. They maintain that Laswell, as well as his fellow soldiers, was never told that the participation in these experiments involved any possible health danger.

Plaintiffs also allege that:

Statistical analysis of available data relative to exposure to large doses of low-level ionizing radiation, made by professionals who have demonstrated competence and expertise in this field, has shown that there is demonstrably a very strong correlation between such exposure and extensive latent cellular or chromosome damage in humans. Those so exposed run an abnormally high risk of later contracting a variety of cancers, including the type called Hodgkin's disease, and also of passing on latent genetic defects in their progeny. This risk is so abnormally high that medical professionals generally believe that a direct causal relationship between such exposure and Hodgkin's disease exists, if and when said disease is contracted.

In sum, the plaintiffs argue that the United States Army conducted experiments on humans without their knowledge or consent. Further, it is claimed that these experiments could have debilitating or fatal results on the soldiers themselves and their offspring.

Plaintiffs in the case at bar are Betty Laswell, Charles' widow, and their three children-Robert, Patricia and Norita. Betty seeks recovery for the loss of her husband. The children likewise pray for recovery for the loss of their father; further, they seek damages for their own exposure to "an unusually high risk of latent cellular or other genetic defects either in themselves or their offspring." All three children were born after Laswell's discharge from the service.

This lawsuit was filed in October 1980. The plaintiffs named as defendants Harold Brown, Secretary of the Department of Defense; the Department of Defense; R. R. Monroe, Director of the Defense Nuclear Agency; the Defense Nuclear Agency, an administrative agency within the Department of Defense; and the United States. Both individuals are sued in their official capacity.

The complaint avers four causes of action. The first claims that the defendants violated the Fifth Amendment by making Laswell an "involuntary guinea pig in nuclear radiation exposure tests" without his knowledge. The second cause of action claims that the defendants violated the Fifth Amendment by intentionally "failing to warn" Laswell and his progeny of the dangers inherent in the exposure to such large doses of radiation and failing to offer preventive treatment. The third cause of action claims that the defendants were negligent in exposing Laswell to radiation. In the fourth cause of action, also based on negligence, the defendants are allegedly liable for the failure to warn and treat both Laswell and his children. The complaint sought a total of $3.5 million in damages.

The defendants moved to dismiss asserting that the United States had not waived sovereign immunity for an action of this type and that the plaintiffs had failed to exhaust their administrative remedies. The district court agreed that the plaintiffs had filed this suit prematurely but did not premise its ruling on this basis. Laswell v. Brown, supra, 524 F.Supp. at 848.

The district court leaned heavily upon the Feres doctrine in granting the defendants' motion. The Feres doctrine holds that, despite the waiver of sovereign immunity for negligence actions contained in the Federal Tort Claims Act (FTCA), ³ claims by military personnel against the United States which arise out of or are in the course of activities "incident to service" are not permitted under the FTCA. See Feres v. United States, supra, 340 U.S. at 146, 71 S.Ct. at 159. Without discussing the individual defendants, the district court concluded that Feres barred the negligence and constitutional claims against the United States and its agencies. Laswell v. Brown, supra, 524 F.Supp. at 849. See 28 U.S.C. § 2679. The court also stated that Feres precluded an action based on the defendants' alleged failure to warn and treat the plaintiffs. The court refused to follow the district courts which had ruled contra and decided that the "failure to warn and the failure to provide preventive treatment and medical services to combat the effects of the exposure are continuations of the same tort" and, as such, are "incident to service" and thus barred by Feres. Laswell v. Brown, supra, 524 F.Supp. at 850.

A somewhat different conclusion was reached with regard to the Laswell children's claims. The district court stated that Feres does not prevent suit by civilians but that in this case the complaint is void of any allegations that the children have sustained any damage. It is only claimed that the children have a higher risk of disease. This, the court observed, was insufficient to support a lawsuit for personal injuries. The children's suit was thus dismissed for failure to state a claim upon which relief could be granted. Laswell v. Brown, supra, 524 F.Supp. at 850.

II. DISCUSSION

A. FTCA Claims

Our analysis of this case must begin with the principle of sovereign immunity. Its source is the laws of England.

While the political theory that the King could do no wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown.

Feres v. United States, supra, 340 U.S. at 139, 71 S.Ct. at 156 (footnotes omitted); see Cohens v. Virginia, 19 (6 Wheat.) U.S. 264, 411-12, 5 L.Ed. 257 (1821) (one of the first United States Supreme Court cases to adopt the principle of sovereign immunity). ⁴

Congress has gradually created exceptions to the rule of sovereign immunity and given consent to be sued in certain circumstances. The FTCA is one of the major waivers of sovereign immunity passed by Congress. It confers district court jurisdiction generally over claims for money damages against the United States predicated on negligence. ⁵ See Miller v. United States, 643 F.2d 481, 482-84 (8th Cir. 1980), rev'd on other grounds, 643 F.2d 490 (8th Cir. 1981) (en banc).

The FTCA contains several exceptions to its waiver of sovereign immunity which could prevent liability in cases where servicemen made claims against the federal government. For example, the statute exempts claims arising from combat activities during time of war and claims arising in foreign countries. 28 U.S.C. § 2680(j), (k). ⁶ Despite these exceptions to the general waiver, the Feres Court grafted onto the Act another, broader exception. The Feres doctrine, the only judicially created...