# Petition — Jaffee v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2671%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 441 U.S. 961 ## Text 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) — 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2671%3A1. Public record. Not legal advice.