Monaco v. U.S.

• Citation: 661 F.2d 129
• Decision Date: 09 November 1981
• Docket Number: No. 79-4787,79-4787
• Parties: Daniel J. MONACO and Denise E. Monaco, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 129

661 F.2d 129

Daniel J. MONACO and Denise E. Monaco, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 79-4787.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1981.

Decided Nov. 9, 1981.

David M. McKim, Cotchett, Dyer & Illston, San Mateo, Cal., for plaintiffs-appellants.

John C. Hoyle, Washington, D. C., argued, for defendant-appellee; Frederic D. Cohen, Washington, D. C., on brief.

Appeal from the United States District Court for the Northern District of California.

Before NELSON and CANBY, Circuit Judges, and BATTIN, ^* District Judge.

NELSON, Circuit Judge:

The appellants, Daniel J. Monaco and Denise E. Monaco (hereinafter "Daniel" and "Denise," respectively, or "the Monacos"), appeal from an order of the district court granting the motion of the United States to dismiss claims brought against it under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680 (1976 & Supp.1979). The district court concluded that an exception to the FTCA for claims incident to military service barred the Monaco's claims and accordingly dismissed all claims for lack of subject matter jurisdiction. We affirm.

FACTS

During World War II, from May, 1943, until February, 1946, Daniel was stationed at the University of Chicago, where he participated in the Army Specialized Training Program. As part of the program, Daniel was required to perform calisthenic exercises at the University's football field. During breaks, he relaxed on the stadium seats. Daniel concedes that he was engaged in active military service at the time.

The Monacos allege that while Daniel was involved in the program, experiments in atomic reactions were being conducted in a laboratory beneath the stadium in connection with the "Manhattan Project," the research and development of the world's first atomic weapon. ¹ The Monacos were not apprised of Daniel's exposure to radiation until July of 1971 when they were informed that Daniel had contracted radiation induced cancer of the colon. They learned at the same time that the radiation induced a genetic change which caused Daniel's child Denise to be born with a birth defect known as arterio-venous anomaly in the brain. This defect has induced three brain hemorrhages, aphasia and other permanent injuries.

PROCEEDINGS BELOW

After denial of administrative claims, the Monacos filed complaints with the district court. Daniel filed the instant FTCA suit seeking $1,000,000 for the physical injury he suffered, as well as for the mental pain and suffering that was occasioned by his daughter's birth defect. The complaint alleges that the Government "knew or should have known of the danger posed" by exposing military personnel to atomic radiation, and that the Army was negligent in permitting exposure to radiation. Denise filed a separate FTCA action against the United States in which she also sought $1,000,000 in damages. Denise's complaint rests on the same allegations as her father's and alleges that the Government's negligence resulted in chromosomal and genetic changes in her father which caused her to be born with the birth defect.

The Monacos' separate actions were consolidated for purposes of argument and decision. On November 2, 1979, the district court for the Northern District of California issued an Order dismissing both actions on the authority of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and its progeny.

DISCUSSION

Traditional sovereign immunity has been waived for tort claims against the United States by the Federal Tort Claims Act, which exposes the Government to liability arising from personal injury or property damage caused by the negligence of any Government employee "acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (1976). While the FTCA "waives the Government's immunity from suit in sweeping language," United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523, 528 (1951), a number of statutory and judicial exceptions limit the waiver, and if a claim falls within any such exception the court is without jurisdiction to hear the case. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390, 398 (1976); Dalehite v. United States, 346 U.S. 15, 30-31, 73 S.Ct. 956, 965-66, 97 L.Ed. 1427, 1438 (1953).

One exception to the waiver of immunity is for injuries to military personnel. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court denied recovery for injuries or fatalities sustained by military personnel on active duty as a result of the negligence of others in the armed services. The Court concluded 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, 95 L.Ed. at 161.

The Supreme Court, in Feres and subsequent cases, has suggested several reasons for the military exception. Noting that the FTCA only extends liability to the Government "in the same manner and to the same extent as a private individual under the circumstances," 28 U.S.C. § 2674 (1976), the Court has concluded that there is no private liability parallel to one that might be found in the unique relationship between an armed service and its personnel. Feres, 340 U.S. at 141-42, 71 S.Ct. at 156-57, 95 L.Ed. 158-59; see also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665, 670 (1977). The Supreme Court has noted three specific aspects of the relationship between an armed service and its personnel that make the relationship unique and application of the FTCA unwise. First, the Court has questioned the wisdom of allowing suits in the context of "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 ... were allowed for negligent orders given or negligent acts in the course of military duty." United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139, 143 (1954) quoted in Stencel, 431 U.S. at 671-72, 97 S.Ct. at 2058, 53 L.Ed.2d at 670. Second, the Court has noted that, as the FTCA requires application of the "law of the place where the act or omission occurred," 28 U.S.C. § 1346(b) (1976), recovery by military personnel would be "dependent upon geographic considerations over which they have no control and ... laws which fluctuate in existence and value." Feres, 340 U.S. at 143, 71 S.Ct. at 158, 95 L.Ed. at 159. The Court concluded that this would "hardly be a rational plan." Id.; see also Stencel, 431 U.S. at 671, 97 S.Ct. at 2057, 52 L.Ed.2d at 670. Finally, military personnel are afforded recovery pursuant to the Veterans' Benefits Act, 38 U.S.C. § 301-1008 (1976 & Supp. 1978), which provides "no fault" compensation as a substitute for tort liability and limits the extent of governmental liabilities for service-related injuries. The Court has concluded that a tort claim under the FTCA would circumvent the limitation of the act and "judicially admit at the back door that which has been legislatively turned away at the front door." Stencel, 431 U.S. at 673, 97 S.Ct. at 2059, 52 L.Ed.2d at 671 (quoting Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499, 504 (1972)).

Despite the development of these elaborate policy reasons for the Feres doctrine the basis for the exception has recently become the subject of some confusion. In United States v. Muniz, 374 U.S. 150, 159-62, 83 S.Ct. 1850, 1856-58, 10 L.Ed.2d 805, 813-15 (1963), the Supreme Court appeared to question many of the reasons for the military exception and concluded that the decision was "best explained" by the special command relationship between soldiers and their superiors, 374 U.S. at 162, 83 S.Ct. at 1858, 10 L.Ed.2d at 815. But in Stencel, 431 U.S. at 672-73, 97 S.Ct. at 2058-59, 52 L.Ed.2d at 670-72, the Supreme Court applied each of the factors summarized above in reaffirming and extending the Feres doctrine. And several cases in this circuit have held the military exception applicable even where there was no command relationship between the claimant and the individual tort-feasor. See Troglia v. United States, 602 F.2d 1334 (9th Cir. 1979); United States v. Lee, 400 F.2d 558 (9th Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969).

This confusion has led to widespread questioning of the Feres exception. See Hunt v. United States, 636 F.2d 580, 589 (D.C.Cir.1980); Veillette v. United States, 615 F.2d 505, 506 (9th Cir. 1980) (applying Feres "reluctantly"); Parker v. United States, 611 F.2d 1007, 1010-11 (5th Cir. 1980); Note, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recovery? 77 Mich.L.Rev. 1099 (1979). Nevertheless, the exception has been applied consistently to deny recovery whenever injuries arise from actions incident to military service. See, e. g., Stanley v. CIA, 639 F.2d 1146 (5th Cir. 1981); Veillette, 615 F.2d at 507; Troglia, 602 F.2d at 1339; In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980). The most convincing explanation for the continued vitality of the Feres doctrine was given recently by the District of Columbia Circuit in Hunt v. United States, 636 F.2d at 599 (citations omitted):

(T)he protection of military discipline ... serves largely if not exclusively as the predicate for the Feres doctrine. Although the (Supreme) Court has woven a tangled web in its discussion of the "distinctly federal" notion and of the alternative compensation system, it has not wavered on the importance of maintaining...