Theodore L. Lombard v. United States of America

GINSBURG, Circuit Judge,

concurring in part and dissenting in part:

My dissent is directed to the court’s expansive interpretation of the doctrine of *228 Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed.2d 152 (1950), to preclude the assertion of claims under the Federal Tort Claims Act (FTCA) by Theodore and Ruth Lombard and the Lombard children. I agree that sovereign immunity shields the United States and its agencies from the Lombards’ constitutional tort claims, and that no member of the Lombard family has stated a tenable claim, directly under the Constitution, against federal officials appointed long after Theodore Lombard’s exposure to radioactive materials, his discharge from military service, and the birth of his children. 1

In my view, the Feres doctrine does-Bet— blanket the FTCA claims_jta.ted. by.. Theo-— dore Lombard,_Tiis""wife and children. I therefore believe the district court erred in dismissing those claims at the threshold for lack of subject matter jurisdiction on the basis of Feres . I express no opinion on other impediments to the maintenance or proof of the Lombards’ suit, nor do I intimate any views on the ultimate merit of their claims. ■

I. The FTCA Claims

Construed most favorably to the Lombards, their FTCA claims are as follows. Theodore Lombard regularly handled substantial quantities of radioactive materials during his two-year Army service at the Los Alamos National Laboratory in connection with the Manhattan Project. The government deliberately exposed him to these dangerous materials but failed to provide him with any form of physical protection and did not effectively monitor his exposure to radiation. Further, the United States negligently failed to warn him at any time of the health hazards associated with radiation exposure. 2 Theodore Lombard incurred permanent damage to his germ plasm as a direct result of his exposure to radiation at Los Alamos. Not knowing this fact, he fathered four children, all of whom suffer moderate to severe congenital defects as a direct consequence of his chromosomal injuries. 3

Theodore Lombard does not press recovery for his in-service radiation exposure. He maintains, however, that the government’s failure to warn him of radiation-related health risks deprived him of notice ■ that would have alerted him to seek timely -medical treatment and genetic counseling. Such treatment and counseling, he appears to assert, would have enabled him to plan and pursue his life ever mindful of the risks to which he had been exposed; properly warned, he would have been vigilant with respect to his own health, and would have exercised care to avoid fathering children who might be born with congenital defects. This failure to warn, Lombard argues, constitutes a distinct tort that occurred after he left the armed forces.

Ruth Lombard asserts that she has experienced serious mental and emotional distress .because of the medical problems of her offspring. The children demand compensation for their own injuries, presumably measured by the difference in value between the lives they have and the better lives they assert they would have had absent the government’s wrongful acts and omissions. It bears emphasis that these claims do not encompass any alleged loss of *229 the services or companionship of Theodore Lombard. 4

II. The Feres Doctrine

The FTCA effected a limited waiver of the government’s traditional immunity from suit by authorizing federal district courts to exercise exclusive original jurisdiction over certain tort actions against the United States. The law of the place where the alleged act or omission occurred provides the rule of decision in such controversies. See 28 U.S.C. § 1346 (b). 5 The Supreme Court in Feres held that the FTCA does not render the government liable to members of the armed forces for injuries that “arise out of or are in the course of activity incident to service.” 340 U.S. at 146 , 71 S.Ct. at 159 . 6 Reaffirming this holding in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72 , 97 S.Ct. 2054, 2057-58 , 52 L.Ed.2d 665 (1977), 7 the Court restated three considerations upon which the Feres doctrine rests: (1) the “distinctively federal” character of the relationship between military personnel and the national government; (2) the availability of a generous alternative compensation scheme under the Veterans’ Benefits Act; and (3) the need to maintain military discipline and the command structure of the armed forces.

A. Feres in relation to Theodore Lombard’s FTCA claims

The Feres doctrine does not inexorably bar a veteran’s FTCA claim merely because the claim is linked with an in-service injury. Thus in United States v. Brown, 348 U.S. 110 , 75 S.Ct. 141 , 99 L.Ed. 139 (1954), the Supreme Court held that a veteran could maintain an action for negligent post-discharge treatment of an injury incurred in service seven years earlier. The Court recognized that the veteran’s claim stemmed *230 from his service in the armed forces but observed that he was suing only for post-service malpractice. The alleged wrongful conduct occurred while he was a civilian, not while he was on active duty or subject to military discipline. Therefore Feres did not apply and the veteran was entitled to proceed with his case. Id. at 112-13, 75 S.Ct. at 143-44 .

Building upon the reasoning of Brown , three federal courts have recognized a claim for negligent post-discharge failure to warn a veteran of the consequences of an intentional in-service act. The first of these decisions was Thornwell v. United States, 471 F.Supp. 344 (D.D.C.1979), a suit by a veteran who was administered LSD without his knowledge or consent while in custody during his military service. The court held that although Feres barred recovery for the improper in-service administration of LSD, the doctrine did not reach the “separate wrong” alleged — the post-discharge failure to warn. Id. at 352. 8 Subsequently, two other courts reached similar conclusions in suits brought by survivors of veterans who died from radiation-related cancer allegedly caused by the veterans’ exposure to atmospheric nuclear tests while on active military duty. See Broudy v. United States, 661 F.2d 125 (9th Cir. 1981); Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980).

The government types Theodore Lombard’s claim as one involving a “continuing tort” that began with his in-service exposure to radiation. The failure to warn theory will not do to displace Feres , the government argues, because any alleged obligation to give notice is inseparable from the source of that obligation — the in-service exposure. The district court in this case, citing other decisions, viewed the matter that way. See 530 F.Supp. 918, 921 (D.D.C.1981); accord, Laswell v. Brown, supra note 4. However, the court in Broudy suggested that the failure to warn a veteran of radiation’s potential effects might constitute an independent, post-service negligent act if the government learned of the danger after the veteran left the armed forces. 661 F.2d at 128-29 . 9

As in Broudy , the allegations in this case concerning the government’s knowledge of radiation-related health hazards are “somewhat confused” and temporally imprecise.9 10 See 661 F.2d at 129 & n.7. The Lombards apparently concede the government’s awareness of serious radiation-related hazards while Theodore Lombard served in the Army. However, they are not now sufficiently informed to state with any degree of precision whether, or the extent to which, the government’s knowledge of such risks increased following Theodore Lombard’s discharge from service. (While the government characterizes the alleged tortious conduct as “continuing,” it has not asserted cognizance of all significant risks prior to Theodore Lombard’s discharge.) I would therefore follow a course close to the one *231 marked in Broudy and accord Theodore Lombard an opportunity, with the aid of discovery, to further develop and restate his claim. Accordingly, I dissent from the majority’s holding that Feres mandates instant dismissal of Theodore Lombard’s FTCA complaint.

B. Feres in relation to the family members’ FTCA claims

Since Feres , two lines of authority have evolved with regard to FTCA recovery by military family members. See Hinkie v. United States, 524 F.Supp. 277, 280-81 (E.D.Pa.1981) (collecting cases), reconsideration denied and certified for interlocutory appeal, Civil Action No. 79-2340 (E.D.Pa. Aug. 5, 1982). Members of a soldier’s family have recovered under the FTCA for personal injuries they have sustained directly, independent of any harm to the soldier, where the injuries arose from non-combatant activities. At the same time, recovery by family members has been disallowed on the basis of Feres where the soldier sustains a service-connected injury and the family member experiences a derivative loss solely by reason of the soldier’s disability or death.

The government rests its argument for application of Feres to the FTCA claims of Lombard family members on two propositions. First, it types the claims of Ruth Lombard and the Lombard children as derivative of, or ancillary to, those of Theodore Lombard; like wrongful death or loss of consortium claims, the government contends, the family members’ claims in this case should be excluded from FTCA coverage by Feres to the same extent that the veteran’s claim is barred by that doctrine. Second, the government urges that Feres bars the family claims, without specific consideration of the factors detailed in Stencel, because the injuries to the family members had their genesis in Theodore Lombard’s in-service exposure to radiation. The first leg of the government’s argument inaccurately classifies the family claims; the second truncates, without warrant, the appropriate legal inquiry.

As the Hinkie court noted in a similar context, 11 this controversy does not fall neatly into either line of post-Feres decisions relating to FTCA claims by military family members. It resembles the cases which have permitted recovery for direct injuries to family members in that the Lombards assert no claim for lost services or companionship of Theodore Lombard. On the other hand, it also resembles the eases which have rejected recovery by family members for derivative harms in that the Lombards’ injuries would not have occurred “but for” the injury to Theodore Lombard. See 524 F.Supp. at 281 . Since this situation does not fit precisely within either category, I would not bar the claims of Lombard family members automatically, simply by labeling them “derivative” or “ancillary.” 12

*232 Reflexive application of the “genesis incident to service” test advocated by the government would stray from the Supreme Court’s instructions in Stencel. See Note, The Effect of the Feres Doctrine on Tort Actions Against the United States by Family Members of Servicemen, 50 Fordham L.Rev. 1241, 1250-53 (1982). After describing the considerations underlying the Feres doctrine, the Court in Stencel appraised the force of each factor in context before concluding that Feres barred the claim at issue. See 431 U.S. at 672-73 , 97 S.Ct. at 2058-59 . Thereafter, most lower courts considering the applicability of Feres to novel claims brought by persons other than service members have undertaken a similar analysis. See Hinkie, 524 F.Supp. at 282 (collecting cases). Indeed, the principal decision which the government invokes on this issue looked to the factors detailed in Stencel, see Monaco v. United States, supra note 9, 661 F.2d at 133-34 , and the district court focused on the Stencel factors in this very case. See 530 F.Supp. at 921-22 .

It follows, therefore, even if one accepts the government’s position concerning the “continuing” nature of the alleged wrong to Theodore Lombard, that the family members’ claims require a more searching analysis than the government proposed in order

to determine whether, or how deeply, those claims implicate the concerns that gave rise to the Feres doctrine. A cogent discussion of these issues appears in Hinkie, 524 F.Supp. at 282-84 . I believe that the Hinkie court analyzed the situation properly, although its appraisal differs from that of several other courts, including the district court in this case. I would adopt the Hinkie decision’s reasoning and apply it to this similar case. 13

Hinkie assigns scant weight, in resolving the question here at issue, to the first two Feres underpinnings, the “distinctively federal” relationship of soldier to government, and the compensation afforded under the Veterans’ Benefits Act. A civilian whose spouse or parent is a veteran hardly bears the relationship to government that a soldier on active duty does. 14 The Veterans’ Benefits Act provides compensation to “any veteran” injured in the line of duty, 38 U.S.C. § 331 , but it does not compensate a veteran’s spouse or child for his or her own injuries. 15

The third Feres underpinning identified in Stencel is the potentially deleterious effect upon military discipline of judicial scrutiny of the operations of the armed services. This consideration, the Hinkie court ac *233 knowledged, presents a hard issue. A trial in that case, or in this one, might “involve testimony of Armed Services members regarding each other’s decisions and, perhaps, the ‘second-guessing’ of military orders.” 524 F.Supp. at 284 . But the orders involved in this case were given more than thirty-five years ago, and the injuries to the Lombard children did not become manifest until several years after Theodore Lombard’s discharge from service. The extended interval between the issuance of the orders and the appearance of the injuries dilutes the argument that an airing in court of the Lombard family members’ claims would occasion genuine harm to the command structure of the armed forces. Further, the argument that judicial scrutiny of military orders would adversely affect discipline' proves too much, for it would preclude any civilian FTCA claim for damages resulting from military exercises. Yet it is plain that the Act does not generically bar such claims unless they arise “during time of war.” 28 U.S.C. § 2680 (j).

While the question is not free from-doubt, I do not believe the risk to military discipline posed by the FTCA claims of Ruth Lombard and the Lombard children is sufficiently grave to bring those claims within the reach of a reasonably delineated Feres doctrine. Accordingly, I dissent from the majority’s holding, which follows no legislative direction but instead enlarges a problematic court precedent. See supra notes 6 and 7. While lower courts are bound by the Supreme Court’s decision in Feres , they are hardly obliged to extend the limitation Feres placed upon remedial legislation ordered by Congress.

III. Other Obstacles to Recovery

It does not follow that a finding of subject matter jurisdiction will lead to a recovery, or even to a trial, for Theodore Lombard or his family. I note in this regard that Ruth Lombard’s claim rests upon a theory akin to “wrongful birth,” while the children’s claims, based upon conduct that occurred before their conception, present a variant of “wrongful life.” 16 State law provides the rule of decision for FTCA claims. 17 While state forums recently have accorded varying degrees of receptivity to “wrongful birth” claims, few decisions to date sanction claims on behalf of children for preconception torts. 18 See generally Rogers, Wrongful Life and Wrongful Birth: Medical Malpractice in Genetic Counseling and Prenatal Testing, 33 S.C.L.Rev. 713 (1982).

Even if Theodore Lombard can develop and shape his claim so as to avoid pretrial dismissal, and if the applicable state law recognizes claims of the kind asserted by Ruth Lombard and the Lombard children, it is far from clear that the Lombards could prove all of the elements of the claims they have attempted to assert. Proving causation, in particular, would pose formidable difficulties. In addition, there may be other exceptions to the FTCA that would bar *234 the Lombards’ claims. See Hinkie, 524 F.Supp. at 284 -85 & n.6. But the question at this juncture is not whether there is any substantial likelihood that the Lombards will prevail on their FTCA claims. The only issue before the panel is whether the district court has subject matter jurisdiction over those claims. 19 I would hold that it does.

. In contrast, the veteran and his wife who sought recovery directly under the Constitution for the veteran’s in-service exposure to radiation in Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981) (en banc), cert. denied, - U.S. -, 102 S.Ct. 2234 , 72 L.Ed.2d 845 (1982), sued civilian and military officials alleged to be “responsible for ordering the attendance of the soldiers at the [nuclear testing] site.” 663 F.2d at 1248 (Gibbons, J., dissenting).

. The complaint alternatively alleges that the government’s failure to warn was intentional. The only intentional torts for which the FTCA permits recovery are enumerated types of misconduct by federal investigative or law enforcement officers. See 28 U.S.C. § 2680 (h). Since the complaint does not assert the commission of any of the enumerated intentional torts or claim that intentional acts or omissions were committed by federal investigative or law enforcement officers, the alternative allegations cannot constitute a predicate for FTCA liability.

. For example, one of the Lombard children is a paraplegic and another is severely retarded.

. In contrast, loss of the services and companionship of a husband and father, first through his disability, then by his death, was the central focus of the complaint in Laswell v. Brown, 683 F.2d 261 (8th Cir. 1982), cited repeatedly in the court’s opinion. In Laswell , the widow and children of a veteran alleged that his in-service exposure to atmospheric nuclear tests caused his illness (Hodgkin’s Disease) and eventual death. In addition to their prayer for damages for the loss of their father, the Laswell children sought damages for the increased risk that they or their offspring would suffer from radiation-related genetic defects. The Laswell children did not assert that they had incurred such genetic injuries, only that they and their offspring faced a higher than normal risk of harm. The Eighth Circuit agreed with the district court “that a lawsuit for personal injuries cannot be based only upon the mere possibility of some future harm.” Id. at 264, 269 . The Eighth Circuit did refer, in addition, to the Feres doctrine in relation to the children’s claims, suggesting that Feres would bar the children’s claims, just as, in that court’s view, Feres would bar a claim by their father. However, in the context of the children’s claims, the Eighth Circuit’s Feres reference was swift and conclusory.

. Section 1346(b) provides, in relevant part, that

the district courts . .. shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while 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.

. No explicit provision in the Act required the Feres holding. The FTCA contains several specific exceptions, including one for “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680 (j). The incidents at issue in Feres occurred in peacetime and did not involve “combatant activities.” See 340 U.S. at 136-37 , 71 S.Ct. at 154-55 .

. Between 1950, when Feres was decided, and 1977, when it was reaffirmed in Steneel, the Court occasionally seemed to retreat from certain aspects of the reasoning underlying the doctrine. See generally Hunt v. United States, 636 F.2d 580, 585-89 (D.C.Cir.1980) (collecting cases). While Steneel makes clear that Feres has not lost vitality, id., the soundness of the Feres Court’s interpretation of the FTCA continues to be questioned. See, e.g., Monaco v. United States, 661 F.2d 129, 131-32 , 134 & n.3 (9th Cir. 1981) (applying Feres to bar a claim resembling those of the Lombard children but characterizing the doctrine as “on shaky ground” and its rationale as “not fully convincing”), ce rt. denied, - U.S. -, 102 S.Ct. 2269 , 73 L.Ed.2d 1284 (1982).

. Thornwell ultimately obtained an award of $625,000 from Congress in full satisfaction of his claims. Act for the Relief of James R. Thornwell, Priv.L.No.96-77, 94 Stat. 3618 (1980) (sum awarded to a trustee to act on Thomwell’s behalf).

. Broudy was decided the same day as Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 2269 , 73 L.Ed.2d 1284 (1982), which held that Feres barred claims of a veteran and his child for radiation-related injuries. The decisions in both Broudy and Monaco were written by the same judge; the opinions appear in tandem in the Federal Reporter. No post-service duty to warn figured in Monaco. Broudy was different, the court indicated, because of the apparent allegation of a duty to warn based on knowledge the government acquired after the soldier returned to civilian life. See 661 F.2d at 128.

. Compare Complaint ¶ 35 (government fraudulently concealed information concerning radiation-related health hazards “[a]t all relevant times from [the beginning of Theodore Lombard’s service at Los Alamos] to the present”) with id. ¶ 34(i) (defendants, continually since Theodore Lombard’s discharge from military service, have “failfed] to warn [him] of the ongoing nature of [radiation-related health risks] so that whatever mitigating steps might be taken and whatever diagnostic and therapeutic courses can be followed are made objects of consideration and explored in their multiplicity and chosen or not chosen as the case may be”).

. Hinkie involved claims against the United States by the family of a veteran who allegedly had been deliberately exposed to radiation in approximately 18 atmospheric nuclear tests. This exposure, the complaint stated, caused chromosomal damage to the veteran which in turn caused his wife to miscarry, and occasioned serious birth defects in his children and the death of one of them. The Hinkie court stressed that the case involved only the injuries suffered by the veteran’s wife and children, and not any deleterious effects of the exposure upon the quality of the veteran’s relationship with his family. The veteran himself asserted no claim of any kind against the United States for his own physical injuries.

In contrast, the Jaffee case, supra note 1, featured the veteran’s personal injury claims and presented no claim relating to children born with birth defects. The plaintiff-veteran in Jaffee sought damages for injuries to himself and related medical expenses; his wife asserted wholly derivative claims for deprivation of his services, society, consortium, and companionship, and her liability for his medical expenses. See 663 F.2d at 1248 (Gibbons, J., dissenting).

. To the extent that the claims of the Lombard family members are in fact “derivative” or “ancillary,” they may be viewed as incident not to any claim by Theodore Lombard for in-service exposure to radiation (which all agree Feres bars) but to his claim for post-discharge failure to warn. If, as 1 believe, the Feres doctrine does not automatically preclude Theodore Lombard’s assertion of this latter claim, it necessarily cannot bar at the threshold the family’s FTCA claims.

. The court characterizes Hinkie’s reasoning as “fatally flawed,” and its result as inconsistent with the Third Circuit’s decision in Jaffee, supra note 1 . Op. at 19-20, 22. The government, however, did not advance any Jaffee based argument in its motion for reconsideration or in its six-page supporting memorandum in Hinkie . It seems unlikely that this omission was pure oversight, since Jaffee was decided on November 2, 1981, and the motion for reconsideration in Hinkie was filed on February 22, 1982. We need not speculate over the matter, however, because the district judge in Hinkie has certified the following question for interlocutory appeal to the Third Circuit:

Does the Feres doctrine bar suit against the United States for a mother’s miscarriages and birth defects and death of children if the injuries were caused by the Army’s negligent exposure of their husband and father to harmful levels of radiation in the course of his former military service?

Hinkie v. United States, Civil Action No. 79-2340 (E.D.Pa. Aug. 5, 1982). In addition, the district judge who heard the Jaffee case has recently certified for interlocutory appeal to the Third Circuit the question whether Feres bars a suit on behalf of a congenitally injured child of a veteran who had been exposed to radiation while in service. Mondelli v. United States, Civil Action No. 81-3658 (D.N.J. July 19, 1982). These certifications strongly suggest that the issue presented in Hinkie and Mondelii remains one “as to which there is substantial ground for difference of opinion.” See 28 U.S.C. § 1292 (b).

. The Lombard children were not conceived until after Theodore Lombard left Los Alamos. The record does not indicate whether he had married, or even met, Ruth Lombard at the time of his military service.

. The Act does provide that veterans with disabilities rated at 50% or greater may recover additional compensation for dependents. See 38 U.S.C. § 335 . Such additional benefits relate to the family responsibilities of disabled veterans; they are not furnished by reason of disabilities the dependents themselves may suffer.

. Under a “wrongful birth” theory, a parent seeks damages from a party who negligently fáiled to inform her of the increased risk of bearing a child suffering from birth defects. Under a “wrongful life” theory, a deformed child seeks compensation from a party whose negligence caused his birth with the result that the child experiences a life afflicted with the deformity. In both cases, the defendant typically is a physician. See generally Rogers, Wrongful Life and Wrongful Birth: Medical Malpractice in Genetic Counseling and Prenatal Testing, 33 S.C.L.Rev. 713 (1982).

. The complaint alleges violations of the laws of Maine, Massachusetts, and New Mexico. The record at this stage of the proceedings does not permit an informed choice of law decision.

. “Wrongful life” claims have stimulated considerable debate in commentary. See, e.g., Capron, Informed Decisionmaking in Genetic Counseling: A Dissent to the “Wrongful Life” Debate, 48 Ind.L.J. 581, 594-604 (1973) (advocating recognition of “wrongful life” theory); Kelley, Wrongful Life, Wrongful Birth, and Justice in Tort Law, 1979 Wash.U.L.Q. 919, 934-42 (opposing recognition of claim for “wrongful life”); Waltz & Thigpen, Genetic Screening and Counseling: The Legal and Ethical Issues, 68 Nw.U.L.Rev. 696, 759-67 (1973) (criticizing the reasoning of judicial decisions that rejected “wrongful life” claims but urging legislative resolution of underlying policy issues).

There are no reported decisions on either theory in any of the states whose law arguably governs in this case. See supra note 17.

. Neither a determination that the law of the state which provides the rule of decision does not recognize any right to recover for the injuries the Lombards allege, nor a determination that the claimants failed to assert or prove all the elements of a recognized cause of action, would justify dismissal for want of subject matter jurisdiction. Rather, both would call for disposition of the claims on the merits. See Bell v. Hood, 327 U.S. 678, 682 , 66 S.Ct. 773, 776 , 90 L.Ed. 939 (1946); Harper v. McDonald, 679 F.2d 955, 960 (D.C.Cir.1982).