holding that dismissal was appropriate because the complaint alleged *562 that the decedent died because he was exposed to radiation while working as a federal employee, so his claims were clearly covered by FECA
How later courts described this case
- holding that dismissal was appropriate because the complaint alleged *562 that the decedent died because he was exposed to radiation while working as a federal employee, so his claims were clearly covered by FECA
- holding that dismissal was appropriate because the complaint alleged that the decedent died because he was exposed to radiation while working as a federal employee, so his claims were clearly covered by FECA
- stating that “where there is a ‘substantial question’ regarding FECA coverage, the federal courts will not entertain a claim”
- "The existence of a system by which soldiers, veterans, and their families could receive some compensation for harm they suffered in the service of their country clearly influenced the original decision to preclude suits of the sort before us on review. There is reason to believe that this system has broken down." (citation omitted)
Written by the judges who cited it.
The opinion
ADAMS, Circuit Judge,
concurring.
Between 1945 and 1962, the United States detonated close to two hundred nuclear devices at test sites in the United States and the Pacific Ocean. It is estimated that approximately 400,000 military personnel and civilian employees were exposed to radiation during these test programs. 1 As indicated by the appeal we decide today, veterans, former government employees, and their families have increasingly turned to the courts for redress of the harm suffered as a result of radiation exposure. Although I concur in the judgment of the panel and accept the reasoning undergird-ing its decision, I do so with some reluctance. My hesitation does not arise out of a disagreement with my colleagues, but instead reflects my concern about the limited relief provided to those who have been injured while serving their country.
At common law, the United States as sovereign was immune from civil tort liability for damages. Apparently sensing the injustice of allowing the government to escape responsibility for the tortious acts of its agents, Congress, through the Federal Tort Claims Act (FTCA), allowed the government to be sued for injuries caused by its agents whenever a private person would be liable under similar circumstances. 28 U.S.C. § 2674 (1976). For sensible reasons, the Supreme Court carved out an exception to the general liability established by the FTCA, when it held in Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950), that members of the military may not sue the government *1112 for negligent torts incident to their military-service.
Various courts have applied the Feres doctrine in recent years to deny a cause of action to plaintiffs whose need for a remedy is particularly acute. Thus, Feres has been invoked to bar suit against the United States by victims of military experimentation with psychedelic drugs, by victims of the herbicide Agent Orange, and, as our decision today confirms, by victims of negligent and perhaps even deliberate exposure to atomic radiation. See, e.g., Mondel-li v. United States, 711 F.2d 567 (3rd Cir. 1983) (radiation); In re Agent Orange Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980); Thornwell v. United States, 471 F.Supp. 344 (D.D.C.1979) (drug experimentation).
Despite the often harsh results, some courts have expanded Feres to bar virtually every kind of negligence claim that veterans or their families can bring against the government. Courts have construed Feres to preclude claims of negligent conduct by individual government officials, intentional or constitutional torts by individuals and by the United States, third-party indemnity against the government, and post-discharge failure to warn. 2 Chappell v. Wallace, — U.S. -, 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983) (constitutional torts); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666 , 97 S.Ct. 2054 , 52 L.Ed.2d 665 (1977) (indemnity); Lombard v. United States, 690 F.2d 215 (D.C.Cir.1982) (failure to warn); Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981) (in banc) (intentional torts).
To avoid the Feres rule, plaintiffs have urged, with varying success, several exceptions to the doctrine: 1) a “continuing tort” theory, which permits recovery if a negligent act occurred while an individual was in the service and the effects of the initial act linger after the discharge; 2) multiple negligence theories, which, like the one urged upon us today, apply when official negligence toward an individual in the service is compounded by negligence after the individual has become a civilian; and 3) a failure to warn theory, which, again as asserted in the argument on this appeal, allows recovery if the military has committed an intentional act and negligently fails to protect the soldier turned civilian from the consequences of the original wrong. See generally Thornwell, supra, 471 F.Supp. at 352 . Troubled by the inequities of a patchwork of exceptions to a generally salutary rule, several courts have objected to the use of “artful pleading” that transforms conduct covered by Feres into separate and ill-defined categories of cognizable harm. See Shearer v. United States, 723 F.2d 1102, 1108 (3d Cir.1983) (Garth, J., dissenting); Thornwell, supra, 471 F.Supp. at 352 .
The existence of a system by which soldiers, veterans, and their families could receive some compensation for harm they suffered in the service of their country clearly influenced the original decision to preclude suits of the sort before us on review. Feres, supra, 340 U.S. at 145 , 71 S.Ct. at 158 . There is reason to believe that this system has broken down. The problems that former servicemen confront in seeking aid for themselves and their families are well-known. The Veterans’ Administration, for instance, does not have statutory authority to compensate genetically damaged children of veterans exposed to radiation or herbicides. 3 As a result, aggrieved parties have turned more *1113 and more frequently to the courts for relief and have developed more and more creative theories to circumvent the Feres bar. This had done little good for these claimants or for a system of jurisprudence based on stare decisis.
There may be compelling reasons for distinguishing the claims of servicemen from the typical tort action. Nonetheless, if we are to fulfill the duty described by Lincoln and inscribed on the Veterans’ Administration building of “car[ing] for those who have borne the battle,” a system must be developed by which those who have suffered for their country can be compensated. However, this responsibility under our form of government belongs not to the judiciary, but to the legislature. Given the courts’ already overcrowded dockets and their inability to provide relief to these claimants under the Feres doctrine, it would appear most appropriate for Congress to consider legislation that shifts the cost of defending our country to society as a whole and away from veterans and their families.
. Grim Legacy of Nuclear Testing, N.Y. Times, Apr. 22, 1979 § 6 (magazine), at 70.
. Feres has also been employed to bar suit against the United States when the negligence of its civilian employees allegedly led to the loss of life in contexts only tangentially related to military service. Woodside v. United States, 606 F.2d 134 (6th Cir.1979), cert. denied, 445 U.S. 904 , 100 S.Ct. 1080 , 63 L.Ed.2d 320 (1980); Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979), cert. denied, 444 U.S. 1044 , 100 S.Ct. 732 , 62 L.Ed.2d 730 (1980).
. See 38 U.S.C. § 310 (1976) (compensation limited to veterans). For a general account of the inadequacy of federal compensation programs, see Jungreis, Pushing the Feres Doctrine A Generation Too Far: Recovery For Genetic Damage To The Children Of Servicemembers, 32 Amer. U.L.Rev. 1039 (1983).