Petition — Jaffee v. United States
Supreme Court brief1979
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D
MAR 26 1979
L Mien aonaK se, CLERK
In THE f
Supreme Court of the United States
October Term, 1978
No. €8-1478
STANLEY JAFFEE and SHARON BLINN JAFFEE,
Individually,
ovpreme .
FILED |]
and
STANLEY JAFFER, on behalf of all others similarly
situated,
Petitioners,
against
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Third Circuit.
STanutey J. Levy
Steven J. PHILuips
Counsel for Petitioners
99 Park Avenue
New York, N. Y. 10016
KREINDLER & KREINDLER
New York, N. Y.
ANDREW R. JAcozBs
Lanican, O’Connett & HirsH
Basking Ridge, N. J.
Of Counsel
Table of Contents.
ERG TE SES A eS OE CC
Jurisdiction 5
EEE DS AOI A
Constitutional Provisions Involved .......................--.----
EIN I a ES
SS EE
Introduction - wk pntenrsnndénacninentecen
Petitioner’s factual contentions ........................-.------
Cae a cecncnensencsvnnnes
Original Basis of Federal Jurisdiction ........................
Reasons for Granting the Writ -...........02220222..02.........
I. The extraordinary circumstances of this case, and
particularly the fact that the health and lives
of vast numbers of former American service-
men are at jeopardy, makes it of paramount
public importance that this Court promptly de-
termine whether the Federal Courts have the
power to compel the United States Government
to provide appropriate medical attention to in-
dividuals it seriously and permanently injured
when it deliberately violated their fundamental
constitutional rights
10
Page
II. This Court should resolve whether the common
law doctrine of sovereign immunity prevents
the vindication of constitutional guarantees .... 13
III. This Court should determine whether sovereign
immunity should be abolished outright ............ 14
Conclusion FO PS Sto ROR LR AN ao Fo aE 18
ps Re itis op Te Se be te PODS? He eae 19
Order of the Honorable Herbert J. Stern Granting
in Part Defendant’s Motion to Dismiss ............ 19
Opinion of the Court of Appeals -............2.20...---.-eeceoee 21
eater ee cea OE ON a AO 37
TABLE OF AUTHORITIES.
Cases CITED:
Bell v. Hood, 327 U. S. 678 (1945) ...............-cecseseee 11, 14
Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U. S. 388 (1971) ........ 11, 14
Board of Commissioners of the Port of New Orleans
v. Splendour Shipping & Enterprises Co. Inc.,
273 So. 2d 19 (1973) 15
Brown v. City of Omaha, 183 Neb. 430, 160 N. W. 2d
805 (1968) 15
Butz v. Economou, ........ | HS SEEN , 57 L. Ed. 2d 895
(1978) 14
Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21 (1969) .. 15
City of Fairbanks v. Schaible, 375 P. 2d 201 (1962)... 15
iil.
é
Dugan v. Rank, 372 U. S. 609 (1963)
Ex Parte Milligan, 71 U. S. (4 Wall.) 2 (1866) ........
Haney v. City of Lexington, 386 S. W. 2d 783 (1964)
Hargrove v. Town of Cocoa Beach, 96 So. 2d 130
(RSENS curios NE
Hawaii v. Gordon, 373 U. S. 57 (1963) ......................----
Holytz v. City of Milwaukee, 17 Wisc. 2d 26, 115 N. W.
2d 618 (1962)
Jones v. State Highway Comm., 557 S. W. 2d 225
(1977) .. sich iaicbasrdeuninhudbiblctickebinstoncain
Kawananakoa v. Polybank, 205 U. S. 349 (1907) ......
Kelso v. City of Tacoma, 63 Wash. 2d 913, 390 P. 2d
IL AL OC Oe
Lake County Estates Inc. v. Tahoe Regional Planning
Agency, ........ RS. ERR (No. 77-1327, March 5,
1979) a
Malone v. Bowdoin, 369 U. S. 643 (1962) —.......000......
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ..
Molitor v. Kareland Community Dist. No. 302, 18 Il.
2d 11, 163 N. E. 2d 89 (1959) ;
Monell v. Department of Social Services of the City
of New York, ........ Ty is ocgice , 56 L. Ed. 2d
611 (1978)
Muskopf v. Corning Hosp. District, 55 Cal. 2d 211,
oh he ky ia cE SRL
15
16
16
14
15
17
15
iv.
Page
Nevada v. Hall, ........ Wats heed (No. 77-1337, March 5,
|, nee ee SRD eat aes, ne SMF aA SA 16
Oroz v. Board of County Commissioners of Carbon
Co., iS P. SE TH Care eee 15
Quern v. Jordan, ........ ves dae (No. 77-841, March 5,
RT) <icccniis-<ciishisistinisaipiesindgdacapiiaiamaiamiimalaien lai) 16
Rice v. Clark Co., 79 Nev. 253, 382 P. 2d 605 (1963) ..... 15
Scheuer v. Rhodes, 416 U. S. 232 (1974) 200.00... 14
Smith v. State, 93 Idaho 795, 473 P. 2d 937 (1970) ...... 15
Spanel v. Mounds View School Dist. No. 621, 118
i. We. Se Beer ee woe kete eee 15
Stone v. Arizona Highway Commission, 43 Ariz. 384,
381 P. 2d 107 (1963) 15
Swann v. Charolotte-Mecklenburg Bd. of Ed., 402
U. S. 1 (1971) 12
Terrell v. Allison, 88 U. S. (21 Wall.) 289 (1874) ...... 12
United States v. Lee, 106 U. S. 196 (1882) 0000... 14, 16
United States v. Sherwood, 312 U. S. 584 (1941) ...... 14
United States v. Testan, 424 U. S. 392 (1976) .......... 13
Whitney v. City of Worcester, 366 N. E. 2d 1210
(1977) ... 15
Williams v. City of Detroit, 364 Mich. 231, 11 N. W.
2d 1 (1961) 15
Willis v. Department of Conservation and Economic
Development, 55 N. J. 534, 264 A. 2d 34 (1970) 15
Vv.
UNITED STATES CONSTITUTION.
Page
pg EEE Te CO eee ete een Se 3
SN 2 . cnleaipenhchonicineappuiamioamiecen 3
sa eeensnettinnapperodanengenan 3
Highth Amendment .............-.-........-..c.ccc-cecrenesessssnenenenenseee 3
nn 2 acntectninsinponnnnstinne 4
STATUTES CITED. .
5 U.S.C.:
I a es 2 a idceeeeapeioepeneyiesneninpeanalain 4
I ee iashd shigath cbatentelpenselipenidpeetinceemipalpcentiicies
28 U.S.C.:
i: Re 0 aca secsncraeicicenasecivincssoiinennoscmmnntnneaitnmnae 2
i NE iii cinceteisicnesteneantconinegnenrenbenniboces
Pee. EBD CG) sciences ccesevestscdicnscemacncrsencensnncsoccsnentetvatanenee 5, 9
RULES CITED.
Federai Rules of Civil Procedure:
BI ONE ices ccecit nce cacemsenevennnnvepiicanebencbonrnosmneneniorenees 7
TS I acces tceeescisccpincee cans senicgniansacninevctiancossocnen 10
vi.
OTHER AUTHORITIES CITED.
Administrative Procedure Act, Pub. L. No. 94-574,
I Tr I ac ila ins ies cctsiesilsdl cadres
HOUSE JUDICIARY COMM., JUDICIAL REVIEW
—ADMINISTRATIVE AGENCY AGIIONS,
H. R. REP. NO. 1656, 94th Cong., 2d Sess.,
reprinted in [1976] U. S. CODE CONG. & AD.
ta RACE Tec hg i ae aie Ne A ake ailipulas
Borchard, Government Responsibility In Tort, 36
Fe Rts OI REID telson schetciciia askboecs ceaglas
Borchard, Governmental Responsibility in Tort V,
oy ARID Bde Ee TUE, HOPED einstein a eect
Jaffe, Suits Against Governments and Officers: Sov-
ereign Immunity, 77 HARV. L. R. 1 (1968) ....
Laski, Responsibility of The State in England, 32
HARV. L. R. 447 (1919)
Page
16
15
17
“15
IN THE
Supreme Court of the United States
OcroseR Term 1978.
—_
No.
Sranuey Jarree and SHaron Bunn Jarre, Individually,
and
Sranuey Jarreg, on behalf of all others similarly situated,
Petitioners,
against
Unrtep States or AMERICA,
Respondent.
i .
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Third Circuit.
Petitioners Stanley Jaffee and Sharon Blinn Jaffee pray
for a writ of certiorari to review that part of a judg-
ment of the United States Court of Appeals for the Third
Circuit entered in these proceedings on February 9, 1979,
which affirmed the dismissal of petitioner’s claim for med-
ical examination, and, if necessary medical care for all
servicemen exposed to nuclear radiation as a result of
having been compelled to attend nuclear bomb testing
conducted by the Government.
2
Opinions Below.
The opinion of the Court of Appeals appears at pages
21-36 of the attached appendix and is reported at
F. 2d . The order of the District Court for the Dis-
trict of New Jersey, Hon. Herbert J. Stern, U.S.D.J., from
which appeal was taken to the Circuit Court appears at
pages 19-20 of the attached appendix and is not offi-
cially reported.
Jurisdiction.
The judgment of the Court of Appeals was entered on
February 9, 1979. The jursdiction of this Court is in-
voked under 28 U. S. C. §1254(1).
Questions Presented.
1. Are the federal courts powerless to compel the
United States Government to provide potentially life-
saving medical attention to individuals who were seriously
and permanently injured when the United States Govern-
ment deliberately violated their fundamental constitu-
tional rights?
2. Should an exception be created from the common-
law doctrine of sovereign immunity to insure the vindi-
cation of constitutional guarantees?
3. Should the doctrine of sovereign immunity be abol-
ished?
3
Constitutional Provisions Involved.
U. S. Const. Amend. I:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of the people peaceably to assemble,
and to petition the Government for a redress of grievances.
U. S. Const. Amend. IV:
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches
and seizures shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or af-
firmation and particularly describing the place to be
searched, and the persons or things to be seized.
U. S. Const. Amend. V:
No person shall be held to answer for a capital or other-
wise infamous crime, unless upon presentment or indict-
ment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put
in jeopardy of life and limb; nor shall be compelled in
any criminal case to be a witness against himself, nor
be deprived of life, liberty or property without due
process of law; nor shall private property be taken for
public use, without just compensation.
U. S. Const. Amend. VIII:
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
4 5
U. S. Const. Amend. IX: 5 U. S. C. §703 reads as follows:
The enumeration in the Constitution of certain rights, The form of proceeding for judicial review is
shall not be construed to deny or disparage others re- the special statutory review proceeding relevant to
tained by the people. the subject matter in a court specified by statute
Statutes Involved.
5 U. S. C. §702 reads as follows:
A person suffering legal wrong because of
agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. An
action in a court of the United States seeking re-
lief other than money damages and stating a claim
that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under
color of legal authority shall not be dismissed nor
relief therein be denied on the ground that it is
against the United States or that the United States
is an indispensable party. The United States may
be named as a defendant in any such action, and a
judgment or decree may be entered against the
United States: Provided, that any mandatory or
injunctive decree shall specify the Federal officer
or officers (by name or by title), and their succes-
sors in office, ani cage | responsible for compli-
ance. Nothing herein (1) affects other limitations
on judicial review or the power or duty of the
court to dismiss ny action or deny relief on any
other appropriate legal or equitable ground; or
(2) confers authority to grant relief if any other
statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.
or, in the absence or inadequacy thereof, any ap-
licable form of legal action, including actions for
eclaratory judgments or writs of prohibitory or
mandatory injunction or habeas corpus, in a court
of competent jurisdiction. If no special statutory
review proceeding is —" the action for judi-
cial review may be ets against the United
States, the agency by its official title, or the appro-
priate officer. Except to the extent that prior, ade-
quate, and exclusive opportunity for judicial review
is provided by law, agency action is subject to judi-
cial review in civil or criminal proceedings for judi-
cial enforcement.
28 U. S. C. §1331(a) reads as follows:
The district courts shall have original jurisdiec-
tion of all civil actions wherein the matter in con-
troversy exceeds the sum or value of $10,000, exclu-
sive of interest and costs, and arises_ under the
Constitution, laws, or treaties of the United States,
except that n~ such sum-or value shall be r uired
in any such action oc against the United
States, any agency thereof, or any officer or em-
ployee thereof in his official capacity.
Statement of the Case.
Introduction.
The claim that is the subject of this petition was
brought on a class basis, on, behalf of thousands of former
servicemen who were injured when they were compelled,
in direct and flagrant violation of their constitutional
rights, to attend and participate in the explosion of a
nuclear bomb at Camp Desert Rock, Nevada in the Spring
or Summer of 1953.
The relief sought is equitable in nature. Specifically,
the District Court was asked to issue an injunction direct-
ing the Government: 1) to warn these former servicemen
that they stand in great danger of developing cancer,
leukemia and other radiation induced illnesses, and to
advise them to seek prompt diagnostic medical attention;
and 2) to provide diagnostic examinations, and where
necessary therapeutic care, or, at the Government’s op-
tion, to subsidize such care. ‘
In short, the purpose of this claim is to compel the
Government to take steps to try to save the lives and
safeguard the health of those very people whose lives
have been placed in jeopardy by the Government’s consti-
tutional violations.
Petitioner’s factual contentions.
At some time during the spring or summer of 1953, a
substantial number of American servicemen were ordered
by their military superiors to attend and participate in
the test explosion of a nuclear device at Camp Desert
Rock in Nevada (2a, fff 6, 7).* These servicemen were
subject to military discipline, and the Army has con-
ceded that they were compelled to attend the atomic blast
and were not volunteers (32a). They were never advised
that participation in the test involved any possible health
danger to them nor were they given any opportunity to
decline or refuse to participate (14a).
*Parenthetical references are to the Appendix for petition-
er’s appeal to the Third Circuit, a copy of which has been cer-
tified and transmitted to this Court by the Clerk of the United
States Court of Appeals for the Third Circuit.
7
At the test site itself, the soldiers were exposed to mas-
sive doses of dangerous radiation when the atomic bomb
was exploded only two or three thousand yards away
from where they were ordered to stand (l4a). They
were provided with no protective devices or clothing to
shield them from the bomb’s harmful radiation. There-
after they were exposed to additional radiation when
they were immediately ordered to leave their trenches
and march toward the very site of the atomic explosion
itself (15a).
At the time of this test the United States Government
was well aware of the great dangers inherent in expos-
ing human beings to the radiation from a nuclear explo-
sion (3a, 11). However, the Government consciously
ignored this knowledge, and instead, deliberately used
these servicemen as unwilling and uninformed human
subjects of highly dangerous experiments (3a, {[12).
As a consequence of this test, many of the exposed
servicemen have begun to develop certain radiation in-
duced cancers in unsually high numbers (7a, {| 29, 30).
It is probable that a substantial number of new cases
will manifest themselves in the near future. Some of
these diseases are of a kind that can be arrested or cured
if detected at an early state of their development. How-
ever, the prospects for successful treatment decrease
markedly when diagnosis and therapy is delayed (7a,
730).*
*It should als» be noted, that as a consequence of the Dis-
trict Court’s disposition on the motion to dismiss the class claim,
plaintiffs’ motion pursuant to Rule 23(¢c) of the Federal Rules
of Civil Procedure, to certify the proposed class, while fully
briefed was neither argued nor decided, and is, of course, not
now before this Court.
The United States Government has never taken any
steps to warn or advise these servicemen of the dangers
to which they were exposed by being forced to partici-
pate in this nuclear testing (8a, 31). Accordingly, a
substantial number of the exposed individuals are totally
unaware of their need for medical care. Consequently
they have not sought appropriate medical attention. It
is probable that many of these servicemen will suffer
serious and even fatal injury which can be avoided if
such warnings are issued and prompt medical attention
obtained (8a, 732).
Stanley Jaffee, the individual plaintiff and class repre-
sentative herein, was one of the United States Army
enlisted men who was compelled to attend the blast (2a,
17, 14a). He is forty-seven years old, married with
three minor children, and has lived and worked his en-
tire life in the State of New Jersey. He was drafted in
1952, served a two year tour of active duty, and was
honorably discharged from service (14a).
In November 1977, Jaffee discovered that he had de-
veloped breast cancer as a result of his exposure to the
nuclear radiation from the explosion (16a). Although a
radical mastectomy was performed, subsequent medical
tests have revealed that his cancer has spread and is
inoperable (16a). He is presently undergoing a course
of chemotherapy (16a).
Proceedings Below.
The Government moved pursuant to Rule 12(b) of the
Federal Rules of Civil Procedure to dismiss this class
action claim, as well as the individual personal injury
claims for money damages brought by Mr. and Mrs. Jaffee.
The Honorable Herbert J. Stern, U.S.D.J. granted this
motion to the extent only of dismissing the class action
claim, reserving decision on the three individual claims
against the Government* (see pp. 19-20, infra).
The District Court then certified an appeal pursuant
to Rule 54(b) Federal Rules of Civil Procedure. The
Cireuit Court, accepting jurisdiction pursuant to 28
U. S. C. 1292(a)(1), reversed the order of the District
Court only with respect to that part of petitioners’ claim
seeking notice and warning. It affirmed the dismissal of
petitioners’ claim for medical care (see pp. 21-36, infra).**
Original Basis of Federal Jurisdiction.
Federal jurisdiction over the instant claim exists pur-
suant to 28 U. S. C. §1331(a) in that this claim against
the United States arises under the First, Fourth, Fifth,
Eighth and Ninth Amendments to the Constitution of the
United States.
*Although the Government has not answered in this action,
and has certainly not admitted that its conduct is responsible
for causing these injuries, in a highly revealing colloquy before
the District Court, counsel for the Government did admit that
they were in no position to deny these allegations, and that they
are, in fact, now being studied by a special interagency task
force (30a).
**On March 7, 1979 the District Court, on the authority
of the Court of Appeals opinion dismissed the three personal in-
jury claims of the Jaffees against the United States. In addi-
tion, the claims against the now named and served individual
defendants were dismissed. An immediate appeal of the latter
dismissals was certified pursuant to Rule 54(b) F.R.C.P.
10
Reasons for Granting the Writ.
I.
The extraordinary circumstances of this case, and par-
ticularly the fact that the health and lives of vast num-
bers of former American servicemen are at jeopardy,
makes it of paramont public importance that this Court
promptly determine whether the Federal Courts have
the power to compel the United States Government to
provide appropriate medical attention to individuals it
seriously and permanently injured when it deliberately
violated their fundamental constitutional rights.
The extreme importance and urgency of this case was
recognized by both the cireuit and the district courts.
In certifying the appeal pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure, the District Court con-
cluded,
that it is of unusual importance that there be
prompt a een review of this issue since, if
plaintiffs’ allegations are true, the health and even
the lives of a substantial number of former Ameri-
can servicemen may be jeopardized by any delay
in affording the relief requested (see p. 20, infra).
In a similar and even more forceful vein, the Court of
Appeals stated that,
Under the extraordinary facts of this case, in
which it is alleged that many soldiers have been
exposed to nuclear radiation, each day of delay
can reasonably be assumed to bring irreversible
and perhaps fatal consequences to them. To post-
pone judicial review until Jaffee now formally noti-
fies the Army would serve little purpose. We can
take judicial notice that the dangers of radiation
from nuclear detonation are a matter of public
knowledge (see p. 36, infra).
ll
With so many thousands of lives potentially at risk,
it is. imperative that this Court review the Circuit
Court’s determination that it lacked the power to compel
the Government to provide medical care to these service-
men,
It is respectfully submitted that the Circuit Court’s
conclusion that it lacked authority to permit this medical
attention is in conflict with this Court’s decision in Bell
v. Hood, 327 U. S. 678 (1945), where it was held that
violations of constitutionally protected personal rights
give rise to causes of action for equitable relief, money
damages, or indeed, for “any available remedy to make
good the wrong done.” 327 U. S. at 684. See also Bivens
v. Six Unknown Named Agents of Federal Bureaw of
Narcotics, 403 U. S. 388, 398 (1971) (Harlan, J., concur-
ring).
The notice and warnings to these servicemen, now re-
quired by the Court of Appeals’ holding, while important,
do not by themselves constitute a complete or an ade-
quate equitable remedy. This is true because many of
the radiation induced diseases about which warnings must
be issued have long latency periods. They are often not
detectable in their early stages (when treatment is most
likely to yield results) without sophisticated diagnostic
equipment and specially trained personnel. It is probable
that a substantial number of these former servicemen will
not have the means or the ability to locate or obtain such
sophisticated help unless Government medical facilities
are made available. In addition, without Government medi-
cal involvement it is virtually certain that many of these
servicemen, even if forewarned, will be unable to obtain
prompt experienced diagnosis and proper treatment. Ac-
cordingly, it is petitioners’ position that the equitable
relief afforded by the Court of Appeals under the aegis
12
of the 1976 Amendments to the Judicial Review Chapter
of the Administrative Procedure Act, Pub. L. No. 94-574,
90 Stat. 2721 (1976) was incomplete. The potential con-
sequences of this failure to provide a complete and ade-
quate remedy are frightening to contemplate.
This Court has long held that a court of equity should
do complete justice, Terrell v. Allison, 88 U. 8. (21 Wall.)
289 (1874), and recently stated in Swann v. Charlotte-—
Mecklenburg Bd. of Ed., 402 U. S. 1 (1971) that,
Once a right and a violation have been shown,
the scope of a district court’s equitable powers to
remedy past wrongs is broad, for breath and flexi-
oy are inherent in equitable remedies. 402 U. S.
at 15.
It is respectfully submitted that the lower courts’ limita-
tion of petitioner’s remedies is violative of these equitable
principles. This is particularly true in light of this
Court’s statement in Swann, supra, that it is “the nature
of the violation [which] determines the scope of the
remedy.” 402 U. S. at 16.
The enormity of the wrong alleged herein is beyond
dispute. The urgency and importance of the relief with-
held by the Court of Appeals decision cannot be denied.
Unless this Court reviews and reverses the decision of
the Court of Appeals limiting the relief available to these
veterans, they will be left without an adequate remedy
and faced with irreparable harm.
13
Il.
This Court should resolve whether the common law
doctrine of sovereign immunity prevents the vindication
of constitutional guarantees.
It has been the Government’s position, baldly stated
throughout this litigation that, notwithstanding the egre-
gious nature of its conduct, and notwithstanding the ter-
rible nature of the injuries it inflicted on these former
servicemen, the courts lack the power to grant any relief
whatsoever. The basis of this extraordinary assertion of
freedom from responsibility has been the Government’s
reliance upon the common law doctrine of sovereign im-
munity.
In sharp contrast, it has been petitioner’s strenuously
argued position, paraphrased by the Court of Appeals,
that sovereign immunity .is no more than a com-
mon law doctrine created by courts, and as such
courts have the power to abolish or modify it. Peti-
tioner also asserts that in spite of its longevity,
the doctrine is illogical, unjust, outdated and that
it should be stricken in its entirety when it im-
edes the vindication of what he characterizes as
undamental constitutional rights (see p. 26, infra).
The Court of Appeals apparently concluded that only
this Court has the power to abolish or carve an exception
to the doctrine of sovereign immunity. (See p. 30, infra).
However, this Court has never addressed itself squarely
to the question of whether sovereign immunity will bar
relief in the face of deliberate governmental violations
of constitutional guarantees. Neither Testan v. United
14
States, 424 U. S. 392 (1976), nor United States v. Sher-
wood, 312 U. S. 584 (1941), the cases principally relied
upon by the Court of Appeals concerned deliberate viola-
tions of fundamental rights, let alone anything approach-
ing the magnitude of the wrongful conduct alleged herein.
This Court has consistently and unequivocally espoused
from the earliest days of our Republic the proposition
that the Constitution, and especially those personal rights
protected by the Bili of Rights constitute a supreme
law whose dictates must be vindicated. Marbury v. Madi-
son, 5 U. S. (1 Cranch) 137 (1803); Ea Parte Milligan,
71 *‘U. S. (4 Wall.) 2 (1866); United States v. Lee, 106
U. S. 196 (1882); Bell v. Hood, supra; Bwens v. Six
Unknown Named Agents of the Federal Bureau of Nar-
cotics, supra; Butz v. Economou, ........ Ba We eas , 57 L. Ed.
2d 895 (1978).
In recent days this Court has struck down the common
law doctrines of absolute official immunity for high state
and local officials in Scheuer v. Rhodes, 416 U. S. 232
(1974), and did the same for high federal officials in Butz,
supra. In each instance these doctrines were eliminated
to assure the vindication of constitutional guarantees.
It is respectfully submitted that the time has come for
this Court to consider and resolve whether the same re-
sult should be obtained in the case of sovereign immunity.
Ii.
This Court should determine whether sovereign im-
munity should be abolished outright.
The Court of Appeals recognized that “the current
climate of academic and judicial thought finds govern-
mental immunity from suit in disfavor” (see p. 29, infra).
15
‘A heavy majority of state supreme courts have rejected
sovereign immunity as an antiquated and pernicious doc-
trine that cannot be justified in a modern society, see e. g.,
Alaska, City of Fairbanks v. Schaible, 375 P. 2d 201 (1974);
Arizona, Stone v. Arizona Highway Commission, 93 Ariz.
384, 381 P. 2d 107 (1963); California, Muskopf v. Corning
Hosp. District, 55 Cal. 2d 211, 359 P. 2d 457 (1961) ; Florida,
Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (1957) ;
Idaho, Smith v. State, 93 Idaho 795, 473 P. 2d 937 (1970) ;
Illinois, Molitor v. Kareland Community Dist. No. 302, 18
Ill. 2d 11, 163 N. E. 2d 89 (1959); Kansas, Carroll v.
Kittle, 203 Kan. 841, 457 P. 2d 21 (1969); Kentucky,
Haney v. City of Lexington, 386 S. W. 2d 783 (1964) ;
Louisiana, Board of Commissioners of The Port of New
Orleans v. Splendour Shipping & Enterprises Co. Inc.,
273 So. 2d 19 (1973); Missouri, Jones v. State Highway
Comm., 557 S. W. 2d 225 (1977); Massachusetts, Whitney
v. City of Worcester, 366 N. E. 2d 1210 (1977); Michigan,
Williams v. City of Detroit, 364 Mich. 231, 11 N. W. 2d 1
(1961); Minnesota, Spanel v. Mounds View School Dist.
No. 621, 118 N. W. 2d 795 (1962); Nebraska, Brown v.
City of Omaha, 183 Neb. 430, 160 N. W. 2d 805 (1968) ;
Nevada, Rice v. Clark Co., 79 Nev. 253, 382 P. 2d 605
(1963); New Jersey, Willis v. Department of Conserva-
tion and Economic Development, 55 N. J. 534, 264 A. 2d
34 (1970); Washington, Kelso v. City of Tacoma, 63 Wash.
2d 913, 390 P. 2d 2 (1964); Wisconsin, Holytz v. City of
Milwaukee, 17 Wise. 2d 26, 115 N. W. 2d 618 (1962) ;
and Wyoming, Oroz v. Board of County Commissioners
of Carbon Co., 575 P. 2d 1155 (1978). Similarly, aca-
demie opinion has long been hostile to this doctrine. See
e. g., Borchard, Government Responsibility In Tort, 36
YALE L. J. 1 (1926); Jaffe, Suits Against Governments
And Officers: Sovereign Immunity, 77 HARV. L. R. 1
(1963).
16
In addition, it may be added that both the executive and
the legislative branches of the Federal Government have
expressed a substantial hostility toward the doctrine of
sovereign immunity. Thus, the House Judiciary Commit-
tee Report, H. R. Rep. No. 1656, 94th Cong., 2nd Sess.,
reprinted in (1976) U. S. CODE CONG. AD. NEWS 6121,
recommending the enactment of what became the 1976
Amendments to the Judicial Review Chapter of the Ad-
ministrative Procedure Act, favorably cited the following
language of Assistant Attorney General Antonin Scalia,
No one ean read the significant Supreme Court
cases on sovereign immunity, from United States
v. Lee, 106 U. S. 196 (1882) to Malone v. Bowdoin,
396 U. S. 643 (1962), Dugan v. Rank, 372 U. S.
609 (1963) and Hawai v. Gordon, 373 U. S. 57
(1963) (per curiam), without concluding that the
field is a mass of confusion; and if he ventures be-
yond that to attempt some reconciliation of the
court of appeals decisions, he will find confusion
compounded. Accepting the elimination of the doc-
trine of sovereign immunity is not, then, a case of
exchanging the certain for the uneertain, of the
known for the unknown. /d., at 6.
While Congress, in enacting these amendments clearly
sought to eliminate or minimize some of the confusion
that adheres to the doctrine of sovereign immunity, the
Court of Appeals decision herein, arbitrarily limiting the
type of remedies available to these former servicemen is
clear evidence that this confusion still remains.
While petitioners recognize that this Court has just
recently addressed the issue of sovereign immunity in
a state context in Nevada v. Hall, ........ Wid Be tons (No.
77-1337, March 5, 1979); Lake County Estates Inc. v.
Tahoe Regional Planning Agency, ........ | ee Raeners (No.
77-1327, March 5, 1979); Quern v. Jordan, ........ Wu Se cache
eo
17
(No. 77-841, March 5, 1979), it is respectfully submitted
that both the role, and the rationale of sovereign immunity
in our federal jurisprudence is as yet largely unsettled.
In Nevada v. Hall, supra, this Court repeated Justice
Holmes’ formulation in Kawananakoa v. Polybank, 205
U. S. 349 (1907), that sovereign immunity is based “on
the logical and practical ground that there can be’ no
legal right as against the authority that makes the law
on which the right depends.” 209 U. S. at 353. This
formulation has been roundly criticized virtually since
its enunciation, and indeed, even its internal logic has
long been subject to attack. See, e. g., Borchard, Govern-
mental Responsibility in Tort, V, 36 YALE L. J. 757 et
seq. (1927) ; Laski, Responsibility of the State in England,
32 HARV. L. R. 447, 464, et seq. (1919). It is re-
spectfully submitted that this Court should reconsider
whether either logic or practice require the continued
existence of sovereign immunity, particularly in a world
where experience teaches that the federal government is
quite capable of actively defending or participating in
lawsuits on virtually every subject known to man, with-
out being hindered in its ability to govern effectively.
It is petitioners’ position that sovereign immunity has
no place in our jurisprudence, and that it should be re-
placed by new and rational doctrines which afford govern-
ment limited immunities. In recent years this Court has
seen fit to sweep away the old doctrines of absolute im-
munity for state officials, Scheuer v. Rhodes, swpra; mu-
nicipalities, Monell v. Department of Social Services,
Sree U. S. ........, 56 L. Ed. 2d 611 (1978); and high federal
officials, Butz v. Economou, supra. The time has come
to consider the doctrine of federal sovereign immunity in
the same light.
18
Conclusion.
It is no understatement to declare that this is both an
extraordinary and a tragic case. The wrongs committed
by the Government were on a scale and of a nature that
defies description. The injuries suffered could not be
more severe.
Now, a class of former American servicemen, American
citizens, come into an American court seeking justice.
They seek to have the Government, the same Government
that wronged them, try to save them from the conse-
quences of that wrong. It is the Government, and the
Government alone, that has the ability to provide this re-
lief. In the light of the Cireuit Court’s decision herein
this Court, and only this Court, can now provide these
servicemen with the relief they so desperately require.
It is unthinkable that this Court would deny to these
servicemen the opportunity to argue their case.
For the reasons stated, this petition for a writ of
certiorari should be granted.
Respectfully submitted,
STANLEY J. LEVY,
STEVEN J. PHILLIPS,
99 Park Avenue,
New York, N. Y. 10016
Counsel for Petitioners.
KrernDLer & KREINDLER,
New York, New York.
AnprEw R. Jacoss,
Lanican O’ConneELL & Hirsx,
Basking Ridge, New Jersey,
Of Counsel.
2 eer
19
APPENDIX.
Order of the Honorable Herbert J. Stern Granting in
Part Defendant’s Motion to Dismiss.
UNITED STATES DISTRICT COURT,
Distgict or New JERSEY.
—<—_
Srantey Jarree and SHaron Bunn Jarres, individually,
Plaintiffs,
and
Staniey Jarrer, on behalf of all others similarly situated,
Plaintiff s,
against
Unirep States or America, and Certain Past and Pres-
ent Officers and Officials of the United States Depart-
ment of Defense, the Department of the Army and the
Atomie Energy Commission and the United States
Army whose names will be inserted when ascertained,
each individually and in his official capacity,
‘Defendants.
Civ. 78-1014
Judge Herbert J. Stern
—>—
Order.
This matter having come before the Court on the de-
fendant United States of America’s Motion to Dismiss
pursuant to Rule 12(b) of the Federal Rules of Civil
Procedure, and the Court having considered the Motion,
defendant’s Memorandum of Points and Authorities in
20
Support Thereof, the Affidavit of Stanley Jaffee, dated
June 30, 1978, plaintiffs’ Memorandum of Points and Au-
thorities in Opposition, and defendant’s Reply Thereto,
and after oral argument, the Court concludes: 1) that
the doctrine of sovereign immunity deprives this Court of
jurisdiction to grant the relief sought in the Fourth, or
Class Action Claim; 2) that it is of unusual importance
that there be a prompt appellate review of this issue since
if plaintiffs’ allegations are true, the health and even
the lives of a substantial number of former American
servicemen may be jeoparized by any delay in affording
the relief requested; 3) that there presently exists no
claim or counterclaim that would serve as a set off against
the relief sought in this claim; and 4) that no future de-
velopments on maiters presently pending before this
Court moot the need for appellate review and 5) that the
judgment involves multiple claims and multiple parties.
Accordingly, it is this 27 day of July, 1978, hereby
OrpereD, that defendant’s Motion to Dismiss on the
grounds that this action is barred by the doctrine of
sovereign immunity is hereby granted with respect to plain-
tiffs’ Fourth, or Class Action Claim, only.
Anp rr 1s FurtHerR Orperep, there being no just cause
for delay, that final judgment be, and the same is hereby
entered pursuant to Rule 54(b) Federal Rules of Civil
Procedure against the plaintiffs, on their Fourth, or Class
Action Claim only.
HERBERT J. STERN
United States District Judge
Ce eee Oe ee ee
21
Opinion of the Court of Appeals.
UNITED STATES COURT OF APPEALS
For THE Tuirp Circuit
—~——
No. 78-2041
Stantey JaFFEE and SHaron Buinn JaAFFEE, Individually
and STaniey Jarrer, on behalf of all others similarly
situated,
Appellants,
v.
Unitep States or America, and Certain Past and Present
Officers and Qfficials of the United States Department of
Defense, the Department of the Army and the Atomic
Energy Commission and the United States Army whose
names will be inserted when ascertained, each indi-
vidually and in his official capacity.
AppgEAL From THE Untrep States District Court FOR THE
District or New JERSEY
D.C. Civil No. 78-1014
~
Argued November 14, 1978
Before Rosenn, Gartu, and Hicernsornam, Circuit Judges
(Opinion filed February 9, 1979)
KREINDLER & KREINDLER
99 Park Avenue
New York, New York 10016
Lanican, O’ConnELL & HinsH
150 North Finley Avenue
Basking Ridge, New Jersey 07920
Of Counsel:
Stanley J. Levy, Esquire
Melvin I. Friedman, Esquire
Steven J. Phillips, Esquire
Attorneys for Appellants
Barsara ALLEN Bascock
Assistant Attorney General
Rosert L. Det Turo
United States Attorney
Davi J. ANDERSON
Resecca L. Ross
EvizaBETH GERE WHITACKER
Attorneys
Civil Division
Department of Justice
Washington, D.C. 20530
Attorneys for Appellee
Opinion of the Court
Rosenn, Cireuit Judge
This appeal presents a perplexing problem spawned by
modern nuclear warfare which requires us to examine again
the doctrine of sovereign immunity of the United States.
The genesis of the litigation is the serious injury allegedly
incurred by the male plaintiff from atomic radiation while
on active duty in the military service.
a
23
In 1953, when Stanley Jaffee (“Jaffee”) was serving
in the United States Army, the Government tested a nuclear
device at Camp Desert Rock, Nevada. Jaffee avers that
he and other soldiers were ordered to stand in an open field
near the site of an explosion of a nuclear bomb without
benefit of any pretection against radiation; that the explo-
sion caused Jaffee and other soldiers similarly situated to
be exposed to massive doses of highly dangerous radiation;
that the Government, knowing of the grave risks of injury
from such exposure, nonetheless, deliberately eompelled
Jaffee and other soldiers similarly assigned to participate
in the nuclear testing and in the radiation exposure without
their knowledge or consent. Jaffee further alleges that
because of his exposure to such radiation, he has developed
inoperable cancer.
Asserting that the Government deliberately violated
rights guaranteed by the first, fourth, fifth, eighth, and
ninth amendments, Jaffee and his wife filed a complaint
consisting of four counts in the United States District
Court for the District of New Jersey. In Counts I, II, and
ITI, the Jaffees joined the United States and unnamed
individuals as defendants and made claims for money
damages. Count IV was a class action, in which Stanley
Jaffee sought to represent all of the soldiers who were
ordered to be present at the explosion. In this count,
naming only the United States as a defendant, Jaffee
prayed that the United States be directed to warn all mem-
bers of the class about the medical risks facing them and
that the United States be required to provide or subsidize
medical care for the members of the class.
The district court dismissed Count IV, concluding that
the doctrine of sovereign immunity barred that action
against the United States. Under Rule 54(b), Fed. R. Civ.
P., the court certified the dismissal for appeal, but retained
jurisdiction over Counts I, II, and III. The United States
moved this court to dismiss the appeal for lack of jurisdic-
tion or to affirm summarily the order of the district court.
24
Although we have denied the motion for summary affirm-
ance,’ the motion to dismiss for lack of appellate jurisdic-
tion is still pending before us, as is Jaffee’s appeal from
the district court’s dismissal of Count IV.
I,
Two possible grounds for jurisdiction have been pro-
posed in this case. First, if the district court properly
certified its order under Rule 54(b), Fed. R. Civ. P., we
have jurisdiction over a final judgment. 28 U.S.C. $1291
(1976). Second, if the district court entered an interlocu-
tory order denying an injunction, there is appellate juris-
diction under 28 U.S.C. §1292(a)(1) (1976). We begin
with section 1292(a)(1).
Under 28 U.S.C. §1292(a)(1), federal appellate courts
have jurisdiction over appeals from “[i]nterlocutory orders
of the district courts of the United States . . . refusing
... injunetions....” In Count IV of his complaint, Jaffee
moved for an injunction ordering the Government to warn
members of the class and to provide medical care for
them.2 The Government contends that this prayer for
1On September 15, 1978, Chief Judge Seitz, acting for the
court en banc, entered an order denying the motion for sum-
mary affirmance and referring the motion to dismiss the appeal
to the merits panel.
*Although Jaffee petitioned for a permanent injunction, this
court has held that even granting a permanent injunction is
‘‘interlocutory’’ if other claims are pending before the district
court, so that the injunction is not ‘‘dispositive of the entire con-
troversy between the parties.’’ Hook v. Hook & Ackerman, Inc.,
213 F. 2d 122, 128-29 (3d Cir. 1954). Hook concerned the
grant of a permanent injunction rather than a denial, but the
order denying an injunction in this case comes within the ra-
tionale of the case. Because other claims are pending before
the district court, the denial of the injunction does not dispose
of the entire controversy between the parties. If the denial did
end the controversy, we might have jurisdiction under 28 U. 8. C.
§1291 (1976).
injunctive relief is a disguised claim for damages.
We agree with the Government that the request for
prompt medical examinations and all medical care and
necessary treatment, in fact, is a claim for money damages.
A plaintiff cannot transform a claim for damages into an
equitable action by asking for an injunction that orders
the payment of money. See International Engineering Co.
Div. of A-T-O, Inc. v. Richardson, 512 F. 2d 573 (D.C. Cir.
1975), cert. denied, 423 U. S. 1048 (1976); Warner v. Coz,
487 F'. 2d 1301, 1304 (5th Cir. 1974). Jaffee requests a tra-
ditional form of damages in tort—compensation for medi-
cal expenses to be incurred in the future. See, e. g., Coll v.
Sherry, 29 N. J. 166, 148 A. 2d 481, 485 (1959); 25 O.J.S.
Damages §91(3) (1966). Indeed, his complaint seeks an -
injunction ordering either the provision of medical services
by the Government or payment for the medical services.
The payment of money would fully satisfy Jaffee’s “equita-
ble” claim for medical care.
We reach a different result, however, in regard to the
petition that the Government warn members of the class
about medical risks. The payment of money cannot satisfy
this claim. Although providing the warning will impose
an expense on the Government, the creation of expense
does not necessarily remove a form of relief from the cate-
gory of equitable remedies. See, e. g., White v. Mathews,
559 F. 2d 852, 855-56, 859-60 (2nd Cir. 1977) (writ of man-
damus proper remedy by which court orders expedited
action by Social Security Administration). Cf. Edelman
v. Jordan, 415 U. S. 651, 668 (1974) (eleventh amendment
bars nominally “equitable” action that “requires payment
of state funds, not as a necessary consequence of compli-
ance in the future with a substantive federal-question de-
termination, but as a form of compensation”). The dis-
missal of the claim for warning is appealable under 28
U.S.C. §1292(a)(1). :
Because that part of the district court’s interlocutory
order dealing with warning to the class was the denial of
an injunction, we have jurisdiction over the whole order,
including dismissal of the related claim for medical care.
Kohn v. American Metal Climaz, Inc., 458 F. 2d 255, 262
(3rd Cir.), cert denied, 409 U. S. 874 (1972). We therefore
need not reach the propriety of the district court’s certifica-
tion under Rule 54(b).
Il.
The district court ruled that the doctrine of sovereign
immunity bars relief under Count IV. We affirm in part
and reverse in part.
Jaffee proposes several theories under any one of
which he contends his suit against the United States is not
foreclosed by the doctrine of sovereign immunity. First,
he vigorously argues that courts have the power to abolish
the doctrine or create exceptions to it. Second, even if
such action is beyond judicial competence, he contends that
by enacting and later amending the Administrative Proce-
dure Act (“APA”), 5 U.S.C. §§ 701 et seg., Congress has
waived sovereign immunity as a defense to his suit.
Jaffee strenuously urges that sovereign immunity is
no more than a common law doctrine created by the courts,
and as such courts have the power to abolish or modify it.
He further asserts that in spite of its longevity, the doc-
trine is illogical, unjust, outdated, and that it should be
stricken in its entirety when it impedes the vindication of
what he characterizes as fundamental constitutional rights.
As the plaintiffs observe, the doctrine indeed has a
long historical basis, which, although not always regarded
with respect, has been traditionally observed in this coun-
try, especially as to suits founded in tort.* Some have at-
’In England where, after centuries of litigation, English sub-
jects had developed, even. prior to the American revolution, cer-
tain rights to relief against government illegality, they were un-
able to assert liability against the Crown for the torts of its serv-
ants. ‘‘The one serious deficiency was the nonliability of govern-
ment for torts of its servants.’’ L. L. Jaffe, Suits Against Gov-
. ernments and Officers: Sovereign Immunity (‘‘Sovereign Immu-
nity’’), 77 Harv. L. Rev. 1, 19 (1963).
27
tributed the doctrine in this country to a vestigial anachro-
nism of the English monarchy when the king could do no
wrong. One scholar attributes the prime cause for the
early adoption of the doctrine by our new republic to “the
powerful resistance of the states to being sued on their
debts.”* Although he offered neither authority nor any
reasoned analysis, Chief Justice Marshall concluded in
Cohens v. Virginia, 6 Wheaton 264, 411-12 (1821), that
“(t]he universally accepted opinion is, that no suit can be
commenced or prosecuted against the United States; that
the judiciary act does not authorize such suits.” About a
quarter of a century later, the Supreme Court had before
it a matter in which the United States itself was party
defendant. The court held that the suit should be dis-
missed, reiterating the principle enunciated in Cohens v.
Virginia.®
With the expansion of governmental activities and the
multiplication of remediless wrongs caused by its agents,
‘Congress saw fit and just to enact legislation permitting
suits against the sovereign on deserving claims growing
out of contract, tax collections, and tort. The Federal Tort
Claims Act of 1946, 28 U.S.C. §§ 1346, 2671-2680 (1976), is
the general tort claims statute providing compensation by
the United States for deserving claimants. It is the cul-
*See L. L. Jaffee, Sovereign Immunity, supra 19.
‘Again without analysis the Court applied the doctrine,
merely stating: No maxim is thought to be better established, or
even more universally assented to, than that which ordains that
a sovereign .. . cannot ex delicto be amenable to its own creatures
or agents employed under its own authority for the fulfillment
merely of its own legitimate ends. A departure from this maxim
ean be sustained only on the ground of permission on the part
of the sovereign or the government expressly declared. . . . Hill
v. United States, 50 U. S. 386, 389 (1850).
28
mination of a determined effort to mitigate the unreason-
able consequences of sovereign immunity from suit and to
relieve Congress from a plague of private bills seeking
relief for tortious injuries. The Act confers district court
jurisdiction generally over claims for money damages
against the United States predicated on negligence. A\l-
though the Act has broad coverage, it does contain a num-
ber of exceptions. The Supreme Court has carefully con-
sidered the specific question of whether that legislation
permitted suits against the United States for injuries to a
soldier caused by the negligence of his superior officers or
the Government. It held that “the Government is not liable
under the Federal Tort Claims Act for injuries to service-
men where the injuries arise out of or are in the course of
activity incident to service.” Feres v. United States, 340
U. S. 135, 146 (1950).°
This is not to say that the Government regards lightly
its obligation to those who serve in its armed forces. Con-
gress has enacted a rather comprehensive system of benefits
for military personnel and definite and uniform compensa-
tion for injuries or death of those in armed services, in
addition to medical and hospital treatment. Included are
°The Jaffees have not brought any action under the Federal
Tort Claims Act. Although the coverage of that Act was ex-
tended in 1974, even the expanded law would not aid the Jaffees.
The Act now permits suits arising from assault or battery, but
only ‘‘with regard to acts or omissions of investigative or law
enforcement officers of the United States Government. . . .”’ 28
U.S. C. §2680(h) (1976).
the Military Personnel and Civilian Employees’ Claims
Act and legislation providing veterans’ benefits.’
Although the current climate of academic and judicial
thought finds government immunity from suit in disfavor,
a plausible explanation appears for its continued applica-
tion to members of the armed forces injured while in the
course of active duty, regardless of whether that injury is
caused by the negligence of a superior officer or by a direct
command. If claims for injuries sustained by inembers of
the armed forces in the execution of military orders were
subjected to the scrutiny of courts of justice, then the civil
courts would be required to examine and pass upon the
propriety of military decisions. The security and common
defense of the country would quickly disintegrate under
such meddling. “[A]ctions and essential military dis-
"Military Personnel and Civilian Empl ; i
ployees’ Claims Act, 10
U. S. C. §§ 2733, 2735, 2736 (1976), basically permits that claims
against the United States for loss of property, personal injury
or death may be settled and paid if the loss or injury was caused
by an employee or member of the armed services or was other-
wise incident to noncombat activities of the military, but these
sections do not grant compensation for personal injury or death
of an employee or member of the armed services if the injury or
death is incident to his service.
31 U. S. C. §§ 241-43 (1976) permits claims against the
United States for damage to the personal property: of members
of the uniformed services to be settled and paid if the damage
was incident to service.
Veterans’ Benefits legislation may be found at:
38 U. S. ©. §§ 301-62 (1976)—compensation for service-
connected liability or death
38 U.S. C. S$ 401-23 (1976)—dependency and indemnity
compensation for service-connected deaths
38 U. 8S. C. §§ 501-62 (1976)—pensions for non-service-
connected disability or death or for service
38 U. S. C. §§ 601-54 (1976)—hospital, domiciliary, and
medical care
38 U.S. C. §§ 701-88 (1976)—life insurance
30
cipline would be impaired by subjecting the command to
the public criticism and rebuke of any member of the armed
forces who chose to bring a suit against the United States.”
Jefferson v. United States, 178 F. 2d 519, 520 (4th Cir.
1949), aff'd sub nom. Feres v. United States, 340 U.S. 135
(1950). Even if we were inclined to reconsider the doctrine
in connection with an injury sustained as a result of a
deliberate military command, we are foreclosed from so
doing by the Supreme Court’s recent reiteration of the
doctrine, although in a different context, in United States
v. Testan, 424 U.S. 392 (1976).°
Alternatively, Jaffee urges that this court can create an
exception to the doctrine in order to grant relief for de-
liberate violation of constitutional rights. For authority
supporting this argument, he turns to Bivens v. Six Un-
known Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), and to Butz v. Economou, 46 U.S.L.W.
4953 (June 29, 1978). In Bivens the Court recognized an
implied cause of action for damages against federal officers
who had violated the fourth amendment. Butz held that
certain federal executive officials did not enjoy an absolute
immunity for the damage suits permitted by Bivens.°
From these cases Jaffee tries to extract the principle that
“the applicable common law doctrine of governmental im-
munity must yield to the paramount necessity of vindicat-
ing constitutional guarantees.” But the suits in Bivens
and Butz were against individual federal officers and not
against the United States. Because Jaffee has sued the
®Even Jaffee’s brief concedes that abolition of sovereign im-
munity is ‘‘perhaps beyond the power of this Court.’’
Other executive officials, exercising adjudicative or prosecu-
torial functions, were held to be absolutely immune. 46 U.S.L.W.
at 4960-63.
31
Government itself, Bivens and Butz do not afford him a
traversable bridge across the moat of sovereign immunity.”
Jaffee would have us make an exception to sovereign
immunity because he alleges deliberate violation of his
constitutional rights. The repeated statements of the Su-
preme Court from its inception, however, are plain and
unequivocal: the United States is subject to suit only by
its consent. As the Court wrote in United States v. Sher-
wood, 312 U. S. 584, 586 (1941), “[t]he United States, as _
sovereign, is immune from suit save as it consents to be
sued, and the terms of consent to be sued in any court de-
fine that court’s jurisdiction to entertain the suit.” (Cita-
tions omitted.) As previously indicated, the Court con-
firmed this principle in United States v. Testan, 424 U. S.
392, 399 (1976): “. . . except as Congress has consented
to a cause of action against the United States, ‘there is no
jurisdiction . . . to entertain suits against the United
States.’” (Quoting United States v. Sherwood, 312 U. S.
584, 587-88 [1941].) Jaffee correctly points out that
neither Sherwood nor Testan concerned a deliberate con-
stitutional violation. The Court’s statements, however, are
clear; they leave no basis for the judiciary to carve out the
exception which Jaffee seeks. We believe that power lies
only with the Congress.
IIT.
Because of sovereign immunity, Jaffee can sue the
United States only if Congress has waived the immunity
by statute. United States v. Testan, 424 U. S. 392, 399
Jaffee also argues that the principle of sovereign immunity
does not preclude a court from fashioning equitable remedies.
But unless sovereign immunity has been waived, it bars equitable
as well as legal remedies against the United States. Malone v.
Bowdoin, 369 U. S. 643, 648 (1962) (specific performance barred
when sought in ‘‘an action which is in sum and substance one
against the United States without its consent’’).
32
(1976). Jaffee contends that in amending the APA at 5
U. S. C. §702 (1976), the Government has waived immunity
to this suit.
After amendment in 1976, 5 U. S. C. $702 now reads,
in part:
A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof. An action in a
court of the United States seeking relief other than
money damages and stating a claim that an agency
or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein
be denied on the ground that it is against the United
States or that the United States is an indispensable
party ... Nothing herein (1) affects other limita-
tions on judicial review or the power or duty of
the court to dismiss any action or deny relief on any
other appropriate legal or equitable ground... .
(Emphasis supplied. )
Congress intended that this provision, under some cir-
cumstances, would waive sovereign immunity. See H. R.
Rep. No. 94-1656, 94th Cong., 2d Sess. 1, reprinted in
[1976] U. S. Code Cong. & Ad. News 6121, 6121.
It may be disputed, however, what those circumstances
are. In a recent decision, the Second Circuit has ruled
that the amendments to section 702 “did not remove the
defense of sovereign immunity in actions under [28 U. S.
C.] §1331.” Watson v. Blumenthal, No. 78-6045 (2d Cir.
Oct. 30, 1978) at 115. Jaffee seeks review under section
1331." We are constrained to disagree with the Second
Circuit and to hold that section 702, when it applies, waives
sovereign immunity in “nonstatutory” review of agency
Jaffee alternatively asserted jurisdiction under 28 U. S. C.
§1346(a) (2) (1976). On appeal he evidently has abandoned this
jurisdictional theory.
33
action under section 1331. As the House Report shows,
Congress amended section 702 with a specific purpose of
waiving sovereign immunity in equitable actions brought
under section 1331. The Report notes that acts of the
older executive departments, such as the Department of
Defense, are subject to judicial review only through “non-
statutory” suits under section 1331.% H.R. Rep. No. 94
1656, 94th Cong., 2d Sess. 5, reprinted in [1976] U. S. Code
Cong. & Ad. News 6121, 6125. Having reviewed the injus-
tices of sovereign immunity in these nonstatutory actions,
the Report concludes “that the partial elimination of sov-
ereign immunity, as a barrier to nonstatutory review of
Federal administrative action” would not unduly interfere
with federal agencies. Id., H. R. Rep. at 9, U. S. Code
Cong. & Ad. News at 6129 (emphasis supplied). By waiv-
ing sovereign immunity in suits for “relief other than
money damages,” the Congress sought to “facilitate non-
statutory review of Federal administrative action... .” Id.
H. R. Rep. at 19, U. S. Code Cong. & Ad. News at 6140. It
was therefore precisely for equitable actions under section
aa that Congress enacted the amendments to section
13
“These suits are called ‘‘nonstatutory’’ because they are not
brought under the statutes that specially provide for review of
agency action. See H. R. Rep. No. 94-1656, 94th Cong., 2d Sess.
5, reprinted im [1976] U. S. Code Cong. & Ad. News 6121, 6125.
“In these instances, judicial review is available, if at all, through
actions involving matters which arise ‘under the Constitution,
Laws, or treaties of the United States’ as provided in section
1331(a) of title 28.’’ Id.
**Because the Second Circuit held alternatively in Watson
that the Tucker Act precluded jurisdiction under section 1331, its
observations on 5 U. S. C. §702 were not essential to its decision.
34
As we concluded in our discussion of appellate juris-
diction, the claim for medical care is an action for money
damages. Such an action does not come within the waiver
of 5 U.S.C. §702, which covers only suits “seeking relief
other than money damages.” The claim for medical at-
tention is thus barred by sovereign immunity. The claim
for warning, on the other hand, is equitable and is not fore-
closed by the limitation of 5 U.S.C. §702 to non-monetary
relief.
It might be argued that if a part of Count IV is equita-
ble, the whole count is an action seeking at least some
“relief other than money damages.” But this reading of
the statute would imply a waiver of sovereign immunity in
damage suits whenever a plaintiff could append equitable
relief to his monetary claims. That result would conflict
with the Congressional intent revealed by the House Re-
port on the amendment of 5 U. S. C. §702: “The partial
elimination of sovereign immunity will facilitate nonstatu-
tory judicial review . . . without exposing the Government
to new liability for money damages... .” H. R. Rep. No.
94-1656, 94th Cong., 2d Sess. 19-20, reprinted in [1976]
U. S. Code Cong. & Ad. News 6121, 6140. The claim for
medical care cannot be merged with the waiver in 5 U.S. C.
§702.
The statutory waiver of 5 U. S. C. §702 covers “agency
action.” There are two “agency actions” that Jaffee asks
this court to review: first, the alleged order of his com-
manding officer that Jaffee be present at the atomic explo-
sion; second, the Government’s failure, in the years since
the explosion, to give medical warning and to provide or
subsidize medical care.* We are not asked to set aside
the order for Jaftee to be present near the blast, nor are
%4At oral argument, counsel for Jaffee spoke of a ‘‘hybrid’’
composed of the initial order to Jaffee and the Government’s sub-
sequent failures to act.
35
we asked for declaratory relief.° As we have already indi-
cated, sovereign immunity precludes the claim for medical
care. The only requested relief remaining for our con-
sideration is warning to the class. Therefore, only the
second of these “agency actions” is properly before us.’®
For purposes of this claim, the United States Army is
an “agency” within the meaning of the APA. Under 5
U.S. C. §701(b) (1). (1976), “agency” includes “each au-
thority of the Government whether or not it is within or
subject to review by another agency... .” After setting
forth this broad definition, the statute creates several
specific exceptions, one of which is for “military authority
exercised in the field in time of war or in occupied terri-
tory.” 5 U.S. C. §701(b)(1)(G) (1976). This exception,
however, does not apply in this case. Even if the atomic
explosion took place before July 27, 1953, the end of the
Korean War, and even if the phrase “in the field in time
of war” could be interpreted to cover operations in Nevada,
Jaffee’s claims concern the Army’s failure to act in the
years since the explosion and not the order to witness the
detonation. This failure to act by the Army was neither
in the field nor in time of war. Because the broad defini-
tion of “agency” covers “each authority of the Govern-
ment,” and the specific military exception is not applica-
ble, we conclude that the Army acted as an “agency” of
the Government for the purposes of this case.
We express no view whether a petition for declaratory
relief would be moot.
**We need not decide whether military orders given to soldiers
by superior officers are committed to agency discretion or other-
wise beyond judicial review. See 5 U. 8. C. §701(a)(2) (1976).
Furthermore, the doctrine of administrative exhaustion has
no application to this case. The question of whether Jaffee must
present his claim to the appropriate agency is relevant only to
determine whether there has been an agency ‘‘failure to act”’’
which constitutes ‘‘agenecy action’’ reviewable under the APA.
36
When he instituted this suit, Jaffee had not yet re-
quested any agency to warn members of the class about the
insidious dangers of exposure to radiation. Even in the
absence of any such request or notice to the agency, we
do not believe that judicial review is barred under the
circumsta; ves of this case. Under the extraordina ts
of this case, in which it is alleged that many soldie
been exposed to nuclear radiation, each day of delay can
reasonably be assumed to bring irreversible and perhaps
fatal consequences to them. To postpone judicial review
until Jaffee now formally notifies the Army would serve
little purpose. We can take judicial notice that the dangers
of radiation from nuclear detonation are a matter of public
knowledge. Thus, the Army and other relevant agencies
have been aware for some time that those servicemen who
were obliged to witness the 1953 nuclear detonation were
likely to suffer physically from the exposure. Further-
more, even though the Army and other agencies may not
have been aware of the hazards of radiation, certainly they
have had such knowledge since these proceedings have
been initiated, and they also know of the warning relief
Jaffee requests. The Army and other defendants, however,
have failed to act.
Accordingly, we will reverse the district court’s ‘dis-
missal of Jaffee’s claim seeking warning. Insofar as the
district court dismissed the claim for medical care, the
order of that court will be affirmed. Insofar as the district
court dismissed the claim for warning, the order will be
reversed and the case remanded for proceedings not incon-
sistent with this opinion. Costs taxed in favor of appel-
lants.
A True Copy:
Teste:
Clerk of the United States Court of
Appeals for the Third Cireuit
37
Certificate of Service.
iiips, an attorney for Petitioner ge
b p a
i t certifies that on
the Bar of this Cour i :
oe we three copies of the foregoing eo
Writ of Certiorari and attached Appendix me he a.
mail upon all parties required to be served a
Mark po cig oe
Department of Justice
Washington, D. C. 20530
Sreven J. PHI
ld J. Volkert ee
err States Attorney for the District of
New Jersey
Federal Building
970 Broad Stree
Newark, New Jersey 07120
The Solicitor General of the United States
Department of Justice
\
Washington, D. C. 20530
Dated: March 23, 1979.
STEVEN J. PHILLIPS.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.