Lombard v. U.S., 81-2261

• Citation: 690 F.2d 215,223 U.S.App.D.C. 102
• Decision Date: 14 September 1982
• Docket Number: No. 81-2261,81-2261
• Parties: , 223 U.S.App.D.C. 102 Theodore L. LOMBARD, et al., Appellants, v. UNITED STATES of America, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 215

690 F.2d 215

69 A.L.R.Fed. 921, 223 U.S.App.D.C. 102

Theodore L. LOMBARD, et al., Appellants, v. UNITED STATES of America, et al.

No. 81-2261.

United States Court of Appeals, District of Columbia Circuit.

Argued May 19, 1982.

Decided Sept. 14, 1982.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-00425).

Herbert B. Newberg, Philadelphia, Pa., with whom Peter R. Kolker, Washington, D. C., and John S. Anderson, Georgetown, Mass., were on the brief for appellants, Judith K. Munger, Washington, D. C., entered an appearance for appellants.

Deborah Ratner, Dept. of Justice, Washington, D. C., of the bar of the Supreme Court of California, pro hac vice by special leave of Court, with whom Jeffrey Axelrad and J. Paul McGrath, Dept. of Justice, Washington, D. C., were on the brief for appellees.

Before MacKINNON, GINSBURG and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

Opinion concurring in part and dissenting in part filed by Circuit Judge GINSBURG.

MacKINNON, Circuit Judge.

Theodore Lombard, his wife Ruth and their four children appeal from a District Court decision dismissing for lack of subject matter jurisdiction a claim for damages to themselves and to their children which allegedly resulted from Lombard's exposure to radiation during military service. For the reasons set forth below, we affirm, 530 F.Supp. 918, the decision of the District Court.

I. Background

Between 1944 and 1946, Lombard served in the United States Army at Los Alamos, New Mexico, where he worked on the "Manhattan Project." During this period, Lombard, without benefit of protection, allegedly handled plutonium, uranium, and other radioactive substances. Lombard charges that the Army knew such handling might lead to serious health problems, as well as to genetic damage that could debilitate future offspring through inheritance, but that the Army nonetheless permitted him to be exposed to the radiation without warning him of the risks involved. The Army is alleged to have compounded their error by continuing for years after the War to hide information from Lombard on the deleterious effects of radiation contamination.

The Army's actions allegedly caused Lombard to suffer both physical and genetic damage. His children, all born since the War, have in turn allegedly developed genetic defects of varying severity. Ruth Lombard, meanwhile, has allegedly suffered mental anguish and emotional distress through caring for her ailing husband and children.

All members of the Lombard family have sued the United States Government, numerous federal agencies, and numerous federal officials both in their official and individual capacities, ¹ seeking damages under the Federal Tort Claims Act ("Tort Claims Act"), 28 U.S.C. § 1346(b), ² the First, Fifth, Ninth, and Tenth Amendments, 42 U.S.C. § 1985(3), ³ 42 U.S.C. § 1986, ⁴ and a number of state law provisions. The District Court dismissed appellants' complaint in toto on the grounds that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precluded recovery by any of the named plaintiffs on any of the theories presented. The District Court also granted the motion to strike those defendants named individually from the complaint on the grounds that the complaint did not allege any specific acts on their part for which relief could be granted. This appeal followed.

II. Feres and its Progeny

It is well established that the United States, as sovereign, "is immune from suit save as it consents to be sued, ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1975). Any waiver of this traditional sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1968); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957).

The Tort Claims Act is one such explicit waiver. It provides that in most instances of tortious conduct, the "United States shall be liable, respecting ... tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The application of the Act has been construed in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Laird v. Nelms, 406 U.S. 797, 799, 92 S.Ct. 1899, 1900, 32 L.Ed.2d 499 (1971); and Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 947 (D.C.Cir.1975). Notwithstanding the language of the statute, however the Supreme Court has determined that the Act does not waive sovereign immunity for suits brought by servicemen for "service connected injuries." Feres v. United States, supra; Hatzlachh Supply Co., Inc. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62 L.Ed.2d 614 (1980); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1976). In Feres v. United States, supra, the Court held without dissent 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." 340 U.S. at 146, 71 S.Ct. at 159. The Court noted that though the legislative history of the Tort Claims Act did not specifically refer to the exclusion of suits by servicemen injured on active duty, it was nevertheless discernible from the scheme of the Act itself that Congress did not intend to waive immunity for such suits. On this point the Court remarked, "(i)f Congress had contemplated that this Tort Act would be held to apply in cases (involving injuries incident to military service) ..., it is difficult to see why it should have omitted any provision to adjust ... (compensation and pension remedies to tort remedies)." Id. at 144, 71 S.Ct. at 158.

This so-called "Feres Doctrine" has been followed by subsequent decisions of the Supreme Court and other federal courts. ⁵ Three factors typically underlie the doctrine's application. First, there is the interpretation of the statute which flows from the "distinctively federal nature" of the relationship between the federal Government and members of its Armed Forces. This supports an interpretation that Congress did not intend the Tort Claims Act to be applicable to service-related injuries because the Act provides that "the law of the place where the act or omission complained of occurred ..." shall be applied and "it would make little (legislative) sense to have the Government's liability to members of the Armed Services dependent on the fortuity of (the provisions of law applicable in the locality) where the soldiers happened to be stationed at the time of the injury." ⁶ Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1976). See Feres v. United States, supra, 340 U.S. at 143, 71 S.Ct. at 157.

The second factor supporting the Feres interpretation is the existence of the Veterans' Benefits Act, 38 U.S.C. §§ 301-1008, a form of no fault compensation scheme for servicemen, akin to workmen's compensation laws, that substitutes for tort liability. Pursuant to this Act, a serviceman is eligible for "simple, certain, and uniform compensation" for injuries occurring during his service, regardless of fault. Hatzlachh Supply Co., Inc. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62 L.Ed.2d 614 (1980); Jaffee v. United States, 663 F.2d 1226, 1232 (3rd Cir. 1981) (en banc).

The final factor underlying Feres interpretation of the statute, as articulated most clearly by the Supreme Court in the subsequent case of United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 145, 99 L.Ed. 139 (1954), is 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.

See also Stencel Aero Engineering Corp. v. United States, supra, 431 U.S. at 671-72, 97 S.Ct. at 2057-58; United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 1857, 10 L.Ed.2d 805 (1963). ⁷ That some rare cases might be long delayed in filing does not diminish this factor-in most cases lawsuits involving military personnel would occur if at all shortly after the event. Cf. 28 U.S.C. § 2401(b). ⁸ In any event, liability should not depend on delay in prosecuting a claim.

In addition to its application to cases brought by servicemen concerning injuries suffered while on active duty in the armed services, Feres has also been held to bar cases brought by third parties (usually family members) where the claim originates with or derives from an injury to a serviceman incident to military service. ⁹ In such cases, relief is "unavailable for essentially the same reasons that the direct action (was) ... barred in Feres." Stencel Aero Engineering Corp. v. United States, supra, 431 U.S. at 673, 97 S.Ct. at 2058.

(W)here the case concerns an injury sustained by a soldier while on duty, the effect of action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party. The litigation would take virtually the identical form in either case, and at issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety.

Id. (emphasis added).

Of central importance in scrutinizing cases against the Government in light of Feres is an adherence to "the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty." United States v. Brown, supra, 348 U.S. at 113, 75...