Pauling v. McElroy, Civ. A. No. 866-58

• Decision Date: 31 July 1958
• Docket Number: 1566-58.,Civ. A. No. 866-58
• Citation: 164 F. Supp. 390
• Parties: Linus C. PAULING et al., Plaintiffs, v. Neil H. McELROY et al., Defendants. Dwight HEINE et al., Plaintiffs, v. Neil H. McELROY et al., Defendants.
• Court: U.S. District Court — District of Columbia

164 F. Supp. 390

Linus C. PAULING et al., Plaintiffs, v. Neil H. McELROY et al., Defendants.

Dwight HEINE et al., Plaintiffs, v. Neil H. McELROY et al., Defendants.

Civ. A. Nos. 866-58, 1566-58.

United States District Court District of Columbia.

July 31, 1958.

Francis Heisler, Charles A. Stewart, Carmel, Cal., A. L. Wirin, Fred Okrand, Los Angeles, Cal., James T. Wright, Washington, D. C., for plaintiffs.

George Cochran Doub, Asst. Atty. Gen., Oliver Gasch, U. S. Atty., Donald B. MacGuineas, Atty., Department of Justice, E. Riley Casey, Asst. U. S. Atty., Washington, D. C., for defendants.

KEECH, District Judge.

These causes having been heard upon the plaintiffs' motions for preliminary injunction, and it appearing to the court, in conformity with the findings of fact and conclusions of law filed herein on this date, that the plaintiffs have not made a showing of imminent irreparable injury which outweighs the public interest in the continuation of the tests of nuclear weapons sought to be enjoined by the plaintiffs, or that there is a probability of the ultimate success of their suits, now, therefore, it is, by the court, this 31st day of July, 1958,

Ordered That the plaintiffs' motions for preliminary injunction be and they are hereby denied.

On Motions to Dismiss Complaints

These consolidated causes having been heard upon the motions of the defendants to dismiss the complaints and full argument having been had thereon on July 24, 1958, and additional authorities furnished to the court by respective counsel after said argument, and it appearing to the court from the face of the complaints as amended on July 29, 1958, that, although the amendments include a prayer for damages along with the prayers for declaratory judgment and injunction, inasmuch as the complaints as amended fail to allege damages specifically to the plaintiffs and allege that the past and future injuries complained of "are not monetarily compensable", the complaints have not been changed to tort actions for damages but remain suits for declaratory judgment and injunction, seeking to have declared illegal and to have enjoined official acts by the defendants which this court, in denying the motions for preliminary injunction, has held to be authorized by a valid Act of Congress, and the court concluding that, taking as true for the purposes of the motions to dismiss all the facts alleged in the complaints as amended, (1) each of the complaints fails to state a justiciable controversy within this Court's jurisdiction, and (2) none of the plaintiffs has standing to sue, now, therefore, it is, this 31st day of July, 1958,

Ordered that the complaints be and they are hereby dismissed.

Findings of Fact and Conclusions of Law

These causes having been heard upon the motions of plaintiffs for preliminary injunctions against defendants, the Court makes the following findings of fact and conclusions of law:

Findings of Fact

1. These actions are brought by American citizens and nonresident aliens to enjoin the Commissioners of the Atomic Energy Commission and the Secretary of Defense from detonating any nuclear weapons that produce radiation or radioactive atomic nuclei, on the grounds that such radiation will inflict serious genetic and somatic injury upon plaintiffs and the population of the world in general, including unborn generations. The Marshallese alien plaintiffs allege in addition that they are threatened with imminent danger, including destruction and contamination of their food supply, by the detonating of nuclear weapons in the Marshall Islands. The plaintiffs allege that such detonations of nuclear weapons, which defendants assert are authorized by the Atomic Energy Act of 1954 (42 U.S.C.A. § 2011 et seq.), are illegal because they are not authorized by said Act; and that if said Act does authorize such nuclear explosions it is unconstitutional.

2. At the present time, defendants are conducting a series of nuclear weapons tests at the Eniwetok Proving Ground in the Pacific Ocean. An important objective of such tests is the further development of nuclear weapons with greatly reduced radioactive fallout so that radiation hazard may be restricted to the military target. This current test series was specifically authorized by the President in January 1958. The intention of the defendants to conduct these tests at Eniwetok has been a matter of public knowledge since September 1957 and has also been made known to Congress through the Joint Committee for Atomic Energy provided by the Atomic Energy Act of 1954. The Congress has not taken any action to restrict the conduct of such tests.

3. On December 2, 1947, the United States notified the Security Council of the United Nations that Eniwetok Atoll in the trust territory of the Pacific Islands was, pursuant to the provisions...