WHEN A VETERAN
"WANTS" UNCLE SAM:
THEORIES OF RECOVERY
FOR SERVICEMEMBERS EXPOSED
TO HAZARDOUS SUBSTANCES
INTRODUCTION
Members of the U.S. armed forces have been exposed to hazardous
substances when their own military departments tested or deployed
forms of chemical, biological, and radiological warfare. A significant
number of these former servicemembers suffer from leukemia or cancer
of the liver, lymph glands, or bone marrow, as well as from chromosomal damage, nervous system disorders, or mental illness; their wives
frequently miscarry or give birth to children with severe defects, including missing or deformed limbs and mental retardation.' Importantly,
the consequences of such exposure usually are not manifest until well
after the "initiating" event, 2 and the exact cause-and-effect relationship
1. Se Broudy v. United States, 661 F.2d 125, 126 & n.2 (9th Cir. 1981) (radiation-related
cancer, genetic damage); Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1229, 1248 (3d Cir.
1981) (en bane) (radiation-related cancer), cert. denid, 102 S. Ct. 2234 (1982) (No. 81-1346); Hinkie
v. United States, 524 F. Supp. 277, 279 (E.D. Pa. 1981) (radiation-related chromosomal damage,
birth defects); Coffey v. Department of Defense, 518 F. Supp. 726, 727 (D.D.C. 1981) (herbiciderelated multiple myeloma (bone marrow cancer)); In re "Agent Orange" Prod. Liab. Litig., 506 F.
Supp. 762, 769 (E.D.N.Y.) (herbicide-related diseases, genetic damage, miscarriages), rev'd, 635 F.2d
987 (2d Cir. 1980), cert. denied, 102 S. Ct. 980 (1981); Thornwell v. United States, 471 F. Supp. 344,
346 (D.D.C. 1979) (drug-related mental illness). Set also R. KLEIN, WOUNDED MEN, BROKEN
PROMISES: How THE VETERANS ADMINISTRATION BETRAYS YESTERDAY'S HEROES 158-59 (1981)
(symptoms of Vietnam veterans alleging exposure to Agent Orange, "a veritable compendium of
medical horrors"). See generallv C. LINEDECKER WITH M. & M. RYAN, KERRY: AGENT ORANGE
AND AN AMERICAN FAMILY (1982) (describing exposure of Army helicopter crewman to Agent
Orange while in Vietnam; detailing subsequent problems of his daughter, born with several serious
birth defects, including missing rectum, improperly formed ureter, tear in the septum between the
chambers of the heart, and missing radius bone in the arm); T. SAFFER & 0. KELLY, COUNTDOWN
ZERO (1982) (describing exposure of authors to radiation during atmospheric nuclear tests, their
subsequent development of neuromuscular disease (Saffer) and fatal lymphoma (Kelly), and establishment of National Association for Atomic Veterans (NAAV)).
2.
e Note, Tort Actionsfor Cancer Deterrence, Compensation, and EnvironmentalCarcinogenes, 90
YALE L.J. 840, 840 (1981) (cancer symptoms usually latent for many years after exposure to carcinogens); Radford, CancerRisksfrom Ionizing Radiation, TECH. REV., Nov./Dec. 1981, at 66, 69 (characteristic cancer latency period results from need for growth restraints on transformed cells to be
relaxed sufficiently for cancer "initiation").
One veteran who alleged suffering a delayed reaction to radiation exposure was Major Charles
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between hazardous substances and servicemembers' diseases is frequently a matter of controversy among scientists. 3 Moreover, many veterans are unaware that their health problems may have resulted from
their military duty; the government often has failed to disclose the inci4
dent of exposure or to warn veterans of potential adverse effects.
Some veterans, asserting a causal connection between an injury and
their in-service exposure to a hazardous substance, have attempted to
5
recover from the government by bringing claims for statutory benefits
or damages. 6 Courts consistently have dismissed most of these claims
under a theory of intramilitary immunity first pronounced by the U.S.
Supreme Court in Feres v. UnitedStates. 7 Moreover, veterans seeking redress from the Veterans' Administration (VA) or the Congress generally
have been unsuccessful. Thus, hazard-exposed veterans usually have no
recourse; they are neither allowed to litigate the merits of their claims
nor provided relief from any other source. 8
Recently, these veterans have asserted a new theory of accountability:
failure to warn. Former servicemembers are claiming that subsequent to
their discharge from the armed forces the government negligently failed
to advise them of the potential for adverse effects from exposure to a
hazardous substance.9 The veterans claim that this post-discharge negligence-a tortious act separate from any breach of a duty arising during
military service-is outside the incident-to-service immunity afforded
the government under the Feres doctrine.' 0
Broudy. See Broudy v. United States, 661 F.2d 125 (9th Cir. 1981). "[The bomb] went off with a
flash of light and a hellish roar. Through closed eyelids, Broudy could see the bones in his arm."
THE PROGRESSIVE, Aug. 1981, at 36 (describing experience of Major Broudy just prior to his being
transported to a location 400 yards from ground zero, the bull's-eye of a nuclear blast). In 1977,
Broudy died of lymphoma, a cancer associated with irradiation. Neither he nor his widow ever
received VA benefits, because the agency determined his disease was not causally connected to his
radiation exposure. Id at 37-38. See infra note 54.
3. See Comment, OccupationalCarcinogenesisand Statutes of Limitation." Resolving Relevant Poligy
Goals, 10 ENVTL. L. 113, 119-21 & nn.22-30 (1979); hi note 57 and accompanying text. See also,
e.g., James W. O'Connor, No. 78-10 101 Bd. of Veterans' Appeals (Aug. 4, 1982) (epidemiological
studies do not support causal connection between Army veteran's exposure to radiation and his
development of scleroderma and dermatomyositis).
4. See infra notes 202-04 and accompanying text.
5. See infia notes 44, 47-63 and accompanying text.
6. See infra notes 138-41 and accompanying text.
7. 340 U.S. 135 (1950) (government is not liable under the FTCA to servicemembers for
injuries that are incident to service). See infra notes 91-93 and accompanying text.
8. The use of hazardous substances by the military or other governmental agencies raises
concern about the government's responsibility to its citizenry in general and its servicemembers in
particular. That veterans frequently are left without any legal or administrative remedy is an especial dilemma, presenting difficult policy issues that cannot be resolved without initially assessing a
reasonable degree of the government's culpability. See, e.g., Everett v. United States, 492 F. Supp.
318, 320 (S.D. Ohio 1980) (issues presented by widow of irradiated veteran are "matters of the
utmost national concern"); infra note 76.
9. See infra notes 202-04 and accompanying text.
10. Sovereign immunity creates inequitable results for members of the armed forces who were
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THEORIES OF RECOVERY FOR VETERANS
1097
This Comment contends that rigid application of a sovereign immunity doctrine creates unfair and unacceptable results for members of the
armed forces who were exposed to experimental and dangerous substances, even if those materials were deemed necessary to a military operation or objective. More important, the rationale for sovereign
immunity is especially inappropriate when the consequences of such exposure are latent and the government failed to apprise those involved of
the potential harm, either before or after such persons were discharged
from the military.
The Comment first discusses the classes of potential plaintiffs, those
veterans of unusually hazardous military programs: testing of atomic devices, experimentation with drugs, and use of chemical defoliants. The
Comment next examines three issues: the obstacles to obtaining compensation from the VA; the reluctance of Congress to revise the process
for obtaining existing remedies or to create new remedies; and the government's consent to be sued under the Federal Tort Claims Act, including the judicially created exception, the Feres doctrine. The final section
of the Comment describes and evaluates the veteran's possible causes of
action, given the constraints of the Feres doctrine. The Comment proposes that Feres does not bar recognition of a claim that alleges a breach
of the government's post-discharge duty to warn about the potential adverse effects of exposure to a hazardous substance. Such a cause of action, although beset with problems of proof, presently offers the veteran
the best opportunity of recovery through the judicial process.
I.
THE VETERANS AND THE EVENTS OF EXPOSURE
A.
IrradiationDuringAtmospheric Nuclear Tests
The irradiation of American military personnel occurred during noncombat duty associated with the development, testing, and use of atomic
devices. t The Department of Defense (DOD) was eager to test the efexposed to dangerous substances, even if those materials were deemed necessary to a military objective. See infia notes 77-89 and accompanying text.
11. See, e.g., Lombard v. United States, 530 F. Supp. 918 (D.D.C. 1981), (veteran claimed
exposure to radioactive materials during development of atom bomb at Los Alamos) appealdcketed,
No. 81-2261 (D.C. Cir. Dec. 2, 1981); Gott v. Cleland, No. 80-0906, slip op. at 2 (D.D.C. Sept. 30,
1981) (veterans claimed exposure to radiation during atmospheric nuclear tests, challenged VA
procedures deciding radiation-related injury claims), appealdocketed,No. 82-1159 (D.C. Cir. Feb. 16,
1982).
Within two months of the August 1945 bombings of Japan, American servicemembers were sent
to carry out clean-up operations. See H. ROSENBERG, ATOMIC SOLDIERS 23 (1980) (describing
initial arrival of servicemembers in Hiroshima and Nagasaki). The clean-up crews worked in the
radiation-contaminated rubble and ash that covered several square miles of both Hiroshima and
Nagasaki. Seegenera4ly COMMITTEE FOR THE COMPILATION OF MATERIALS ON DAMAGE CAUSED
BY THE ATOMIC BOMBS IN HIROSHIMA AND NAGASAKI, HIROSHIMA AND NAGASAKI, THE PHYSICAL, MEDICAL, AND SOCIAL EFFECTS OF THE ATOMIC BOMBINGS (E. Ishikawa & D. Swain trans.
198 1) (a detailed 706-page account of immediate and long-term effects of detonations).
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 31:1095
fects of an atomic explosion on its military equipment and personnel
after World War J1.12 Consequently, more than 200,000 members of the
armed forces participated in the above-ground, "atmospheric" tests of
nuclear weapons conducted by the DOD and the Atomic Energy Commission (AEC) from 1945 to 1962.13
The atomic experimentation program had several broad goals.14
Measuring the long-term health hazards of the blasts, however, was not
12. The Atomic Energy Committee, then the Atomic Energy Commission, (AEC) was responsible for the U.S. nuclear weapons development program. The military departments also were
deeply involved from the beginning. The scientists, the AEC, and the military planners all agreed
on the need for atmospheric testing. In July 1951, the three military services formally requested the
AEC for troop participation in the above-ground detonations planned at the Nevada desert test
site. Within 18 months, the military was in de facto control of the testing program. See H. ROSENBERG, supra note 11, at 24-25, 38, 40, 56.
13. See Gott v. Cleland, No. 80-0906, slip op. at 2 (D.D.C. Sept. 30, 1981) (class action by
irradiated veterans), appeal docketed, No. 82-1159 (D.C. Cir. Feb. 16, 1982); Procedures for Adjudication of Ionizing Radiation Claims, 45 Fed. Reg. 86,605, 86,606 (1980) (revision of radiation program guide invalidated by Gt ruling); D. ADDLESTONE, J. KosLosKE, L. MILFORD, K. SNYDER,
B. STICHMAN & NATIONAL VETERANS LAW CENTER, MILITARY DISCHARGE UPGRADING § 27.6.4
& nn.176-78 (1982) [hereinafter cited as ADDLESTONE & STICHMAN]. See also Lombard v. United
States, 530 F. Supp. 918, 920 & n.1 (D.D.C. 1981) (veteran alleged injuries from exposure to radioactive material during work on atomic bomb project at Los Alamos, N.M.), appealdocketed, No. 812261 (D.C. Cir. Dec. 2, 1981). For accounts of nuclear testing and case histories of servicemen
exposed to radiation during the atmospheric testing programs, see L. FREEMAN, NUCLEAR WITNESSES: INSIDERS SPEAK OUT (1982); H. ROSENBERG, supra note 11; T. SAFFER & 0. KELLY, supra
note 1; M. UHL & T. ENSIGN, GI GUINEA PIGS (1980); H. WASSERMAN & N. SOLOMON, KILLING
OUR OWN: THE DISASTER OF AMERICA'S EXPERIENCE WITH ATOMIC RADIATION (1982). See also
Comment, RadiationInjury and the Atomic Veteran: Shiting the Burden of Proofon Factual Causation, 32
HASTINGS L.J. 933 (1981) (describing atmospheric tests in Nevada and inadequacies of DOD's
program to measure exposure).
Civilians, including representatives of the media and nonmilitary governmental personnel, also
witnessed the on-site nuclear detonations, or experienced the after-effects. According to one estimate, a total of between 200,000 and 500,000 civilians and members of the armed services may
have been exposed to radiation during atmospheric tests. See H. ROSENBERG, supra note 11, at 167.
See also Low Level RadiationEffects on Health: HearingsBefore the Subcomm. on Oversight andInvestigations of
the House Comm. on Interstateand Foreign Commerce, 96th Cong., 1st Sess. (1979) (focusing on effects of
fallout on Nevada residents and their property); Health Effcts of Low-Level Radiation.nJointHearing
Before the Subcomm. on Oversightand Investigationsof the House Comm. on InterstateandForeign Commerce, the
Health and Scientfc Research Subcomm. of the Senate Comm. on Labor and Human Resources, and the Senate
Comm on theJudiciar, 96th Cong., 1st Sess. (1979) (testimony of Utah residents regarding effects of
radiation).
14.
See H. ROSENBERG, supra note 11, at 38-74; M. UHL &T. ENSIGN, supra note 13, at 30-88;
Comment, supra note 13, at 934-36 & n.6. The first goal was to determine how equipment would
withstand the shock and heat of an atomic blast and how troops in promixity to the blast would
respond psychologically to the awesome spectacle. See Effect of Radiation on Human Health-Health
Effects of loniringRadiation: HearingsBefore the Subcomm. on Interstate and Foreign Commerce, 95th Cong.,
2d Sess. 244-48 (1978) (statement of Major Alan Skerker describing studies of psychological reactions of test participants) [hereinafter cited as 1978 Hearings]. See also Gott v. Cleland, No. 80-0906,
slip op. at 2 (D.D.C. Sept. 30, 1981) (servicemen witnessed effects of 200 above-ground nuclear
blasts as part of military duties), appeal docketed, No. 82-1159 (D.C. Cir. Feb. 16, 1982): Hinkie v.
United States, 524 F. Supp. 277, 278 (E.D. Pa. 1981) (delineates particular duties of a serviceman
exposed to nuclear explosion, including retrieval of communications wires and observation of bomb
site ("ground zero")). The second goal was to deter adverse psychological reactions by servicemembers and to determine whether witnessing an atomic blast would result in the deterioration
of the servicemen's performance. See H. ROSENBERG, supra note 11, at 51. The third goal was to
improve the nuclear arsenal by creating and testing even larger and potentially deadlier weapons.
See ide at 25-27. A public relations component was implicit within the third goal; the government
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THEORIES OF RECOVERY FOR VETERANS
1099
one of them. Despite knowledge and concern regarding the effects of
radiation exposure,' 5 on-site monitoring systems were, in several respects, unsophisticated as well as deficient. Participants wore film badges that merely recorded total exposure;' 6 "[n]o precautions were taken to
limit radiation exposure .... 17 The government also failed to keep
accurate records of the identity and activities of servicemembers assigned to test sites.' 8 Without such data, the government was unable to
monitor those exposed for subsequent effects of the initial exposure.
More significantly, no attempt was made.' 9
Only when veterans began to allege that their diseases were caused by
radiation exposure20 did the DOD finally take steps to reconstruct the
levels of exposure that had occurred during atmospheric tests. 2' The
reconstruction process, however, has been highly selective,2 2 and only as
a result of a court order has the government finally warned some veterans about the potential hazards resulting from exposure to radiation
during atmospheric testing.23 Nevertheless, the government has not acknowledged that irradiated servicemembers should be evaluated on the
basis of their exposure, nor has the government availed itself of the opportunity to acquire a better understanding of the effects of ionizing
24
radiation through such a study.
did not want to generate, outside the military, anything other than a healthy respect for the developing U.S. nuclear capability. See M. UHL & T. ENSIGN, supra note 13, at 36, 48, 53.
15. The potential health hazards of exposure to radiation had been known since the discovery
and development of the X ray. Seegeneral4y J. GoFMAN, RADIATION AND HUMAN HEALTH (1981)
(comprehensive review of effects of radiation, arguing that minimal level of exposure is hazardous
because ofcumulative effect). The AEC selected above-ground test sites with an acute awareness of
the dangers of fallout. See H. ROSENBERG, supra note 11, at 26-30. The selection of sites and the
implementation of procedures to monitor radiation were based on the government's determination
that certain levels of exposure were unquestionably dangerous. See Hinkie v. United States, 524 F.
Supp. 277, 278-79 (E.D. Pa. 1981); M. UHL & T. ENSIGN, supra note 13, at 60-61; H. ROSENBERG,
Comment, supra note 13, at 949-51 (asserting inadequacies in DOD
supra note 11, at 29-30. See also
dosimetry program).
16. M. UHL & T. ENSIGN, supra note 13, at 61.
17. Gott v. Cleland, No. 80-0906, slip op. at 2 (D.D.C. Sept. 30, 1981) (emphasis added),
appealdoeketle, No. 82-1159 (D.C. Cir. Feb. 16, 1982). New badges were not issued for every test,
and some badges were never collected. See Hinkie v. United States, 524 F. Supp. 277, 278-79 (E.D.
Pa. 1981).
18. See eerans'ClamsforDisabilitiesfromNrulear Weapons Testing:HearingBeMre the Senate Comm.
on Veterans'AXfirs, 96th Cong., IstSess. 3, 16-18 (1979).
19. Gott v. Cleland, No. 80-0906, slip op. at 2 (D.D.C. Sept. 30, 1981), appealdocketed, No. 821159 (D.C. Cir. Feb. 16, 1982).
20. See id, slip op. at 3-4.
21. See id., slip op. at 4 & n.2.
22. See id, slip op. at 5-6 ("requests for dosage reconstruction [limited] to cases with 'selected
types of cancers.' ").
23. See Jaffee v. United States (Jaffee 1), 592 F.2d 712, 720 (3d Cir.), cert. deniedon othergrounds,
441 U.S. 961 (1979) (mem.); in/fa notes 196-99 and accompanying text.
24. Unlike U.S. servicemembers, the Japanese survivors of Hiroshima and Nagasaki have
been the subjects of continuing study. Indeed, most of the predictions concerning the latent effects
of exposure to ionizing radiation are based on the Japanese victims. See COMMITTEE FOR THE
COMPILATION OF MATERIALS ON DAMAGE CAUSED BY THE ATOMIC BOMBS IN HIROSHIMA AND
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B.
Covert Drug Experimentation
The military departments have also used servicemembers in drug research, most notably to evaluate psychochemicals such as lysergic acid
diethylamide (LSD).25 The goal of the domestic experiments, like that
of the atomic testing program, was to gather data on the somatic and
psychological effects of an untested substance under controlled circumstances. The acquisition of such knowledge through human experimentation was rationalized as an "aid [to] the Army in developing and
testing methods of defense against chemical warfare. 2 6 The central element of these tests was that the participants were unaware of the exact
nature of the substances administered 2 7 -they were not informed at the
outset that they would be taking a psychochemical.2 8
The government's drug experiments differed from its atmospheric
tests of atomic devices in two significant ways. The drug testing process
involved controlled circumstances and close monitoring of the test subjects, 29 and the government eventually gave warnings to the participants
in the drug experiments. 30 Notwithstanding these distinctions, the proNAGASAKI, supra note 11;Japanese A-Bomb Data Will Be Revised, 214 SCIENCE 31 (1981); Schull,
Otake & Neel, Genetic Efects of the Atomic Bombs: A Reappraisal,213 SCIENCE 1220 (1981).
25. In 1956, the Director of Research and Development for the Army, acting in accord with
DOD policy regarding the use of volunteers, authorized such use in research programs designed to
test reactions to psychochemicals. See Stanley v. CIA, 639 F.2d 1146, 1148 n.2 (5th Cir. 1981)
(Army program to test LSD, develop defense against its use in chemical warfare). Se also Nagy v.
United States, 471 F. Supp. 383, 384 (D.D.C. 1979) (Army program of LSD experiments);
Thornwell v. United States, 471 F. Supp. 344, 346 (D.D.C. 1979) (Army program of interrogation
and drug experiments). From 1955 to 1967, approximately 600 soldiers were involved in drug
experiments. See N.Y. Times, Dec. 29, 1981, at A21, col. 1 (city ed.) (quoting 1975 statement by
civilian head of Army drug research program that LSD testing ended in 1967 but experiments with
other hallucinogens continued).
26. Stanley v. CIA, 639 F.2d 1146, 1148 (5th Cir. 1981).
27. See Thornwell v. United States, 471 F. Supp. 344,346 (D.D.C. 1979). Subjects were given
LSD, then "questioned under conditions of extreme physical and mental stress" to determine how
the administration of LSD might improve the process of interrogation. One such experiment
"demonstrated the 'usefulness of employing as a duress factor the device of inviting the subjects'
attention to his [LSD]-influenced state and threatening to extend this state indefinitely, even to a
permanent condition of insanity." Id (quoting plaintiff's complaint) (brackets in original).
Similarly, servicemembers were used to test clothing for its level of protection against exposure to
sulphur mustard gas. Based on an expectation that the enemy would use toxic gases, the military
departments initiated experiments to find materials that would "neutralize the caustic effects."
Why human subjects were thought necessary was not explained. The participants did wear gas
masks during the periods of exposure, but at least one servicemember's mask malfunctioned while
mustard gas vapor was present in the test chamber. See Schnurman v. United States, 490 F. Supp.
429, 430-31 (E.D. Va. 1980).
28. See general'y Stanley v. CIA, 639 F.2d 1146, 1148-49 (5th Cir. 1981) (serviceman volunteered for testing chemical warfare defenses, but was given LSD without his knowledge); Nagy v.
United States, 471 F. Supp. 383, 384 (D.D.C. 1979) (serviceman volunteered for medical experiment, but alleged being given LSD without informed consent). Cf. Thornwell v. United States, 471
F. Supp. 344, 346 (D.D.C. 1979) (incarcerated serviceman involuntarily used in interrogation techniques research, also given LSD without his knowledge).
29. See Stanley v. CIA, 639 F.2d 1146 (5th Cir. 1981).
30. See Thornwell v. United States, 471 F. Supp. 344, 356 (D.D.C. 1979) ("Department of
Defense had assured Congress that the facts of LSD testing would be disclosed to all subjects of the
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THEORIES OF RECOVERY FOR VETERANS
1101
grams share basic elements: the government exposed members of the
armed forces to hazardous substances without informed consent and
without providing any warning before or immediately after the initial
exposure.
C
Contaminationby Agent Orange
Unlike the drug and nuclear testing programs, the military's use of
herbicides in Vietnam was not a case of planned human-subject experimentation. Between 1962 and 1971, the U.S. armed forces routinely
sprayed the Vietnamese countryside with a variety of herbicides. 3 1 The
topography of Vietnam and the nature of the guerrilla tactics that were
central to the conflict induced this "herbicidal warfare" to eliminate or
control jungle growth, dense vegetation, and food crops wherever feasible.32 The herbicide used most widely in Vietnam is known as Agent
Orange,33 a compound that contains dioxin, 3 4 allegedly " 'one of the
experiments"). See alro
Stanley v. CIA, 639 F.2d 1146, 1149 (5th Cir. 1981) (LSD experiment conducted in 1958, disclosure in 1975); Nagy v. United States, 471 F. Supp. 383, 385 (D.D.C. 1979)
(LSD experiment conducted in 1966; date of disclosure not specified, but no earlier than 1975).
Once a servicemember has been warned about the potential adverse consequences of drug experimentation, or of exposure to any hazardous substance, a cause of action in tort is possible for the
government's failure to provide a warning during the period when the government knew-or
should have known-of the potential consequences and withheld this information. See infra notes
202-03 and accompanying text.
31.
ee U.S. COMPTROLLER GENERAL, GENERAL ACCOUNTING OFFICE, REPORT, U.S.
GROUND TROOPS IN SOUTH VIETNAM WERE IN AREAS SPRAYED WITH HERBICIDE ORANGE 1-2
(1979) (undiluted herbicide orange was sprayed in Vietnam at the rate of about three gallons per
acre) [hereinafter cited as GAO REPORT, TROOPS]. See also U.S. COMPTROLLER GENERAL, GENERAL ACCOUNTING OFFICE, HEALTH EFFECTS OF EXPOSURE To HERBICIDE ORANGE IN SOUTH
VIETNAM SHOULD BE RESOLVED (1979) (describing VA claims for herbicide exposure through
1978 and effects on health from exposure) [hereinafter cited as GAO REPORT, HEALTH]. The
history of herbicide spraying in Vietnam-the facts, figures, and policy decisions at the highest
levels of government-is finally being revealed more completely. In July 1981, as a result of litigation under the Freedom of Information Act, the Air Force agreed to release more than 500 pages of
its unpublished report, Operation Ranch Hand, the Air Force and Herbicides in Southeast Asia
1961-71 (available at National Veterans Law Center). See Russell v. Department of the Air Force,
No. 80-2426 (D.D.C. July 16, 1981), appealdenied, (D.C. Cir. July 23, 1982) (No. 81-2005) (upholding court's decision that Air Force could withhold 20 pages of report). See also Severo, Air Force
R port on Vietnam War Sayr Laos Was Secretly Sprayed, N.Y. Times, Jan. 25, 1982, at Al, col. 3 (city
ed.) (describing contents of those portions of report released by Air Force).
32. See GAO REPORT, TROOPS, supra note 31, at 1; M. UHL & T. ENSIGN, supra note 13, at
117, 138. One commentator has suggested that defoliation also had a political purpose: "creating a
flow of refugees from villages controlled by the Communists into areas controlled by the South
Vietnamese government." T. WHITESIDE, THE PENDULUM AND THE TOXIC CLOUD 1 (1979)
(describing dioxin contamination).
33. Agent Orange was named after the color-coding of the barrels in which it was shipped to
Vietnam. Other herbicides used in Vietnam include Agents White, Blue, Purple, Pink, and Green.
Agent Purple was an earlier version of Agent Orange; Agent Blue contained arsenic, as much as
54%; Agent White contained an herbicide described as analogous to DDT. Set In re "Agent Orange" Prod. Liab. Litig., 506 F. Supp. 762, 768 n.1 (E.D.N.Y.), rev'd, 635 F.2d 987 (2d Cir. 1980),
cert. denied, 102 S.Ct. 980 (1981); M. UHL & T. ENSIGN, supra note 13, at 139-40. Agent Orange
contains the phenoxy herbicides 2,4-D and 2,4,5-T. See GAO REPORT, TROOPS, supra note 31, at 2.
The phenoxyacetic acids, which alter the metabolism of plants, are used in many common weedkillers. If given a concentrated application, a plant "will grow itself to death, literally exploding
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[Vol. 31:1095
most toxic substances ever developed by man.' ,,35
Servicemembers came into contact with the herbicides in two basic
ways: during activities associated with the preparation or implementation of spraying missions and during duty assignments in areas contaminated by the chemicals. 36 Recently, the government acknowledged that
crews of airplanes on defoliation missions jettisoned their herbicide cargoes over or near U.S. bases and other installations in Vietnam. 37 By its
own admission, the government cannot "estimate how many [serv'38
ice]men were involved."
When the defoliation program began, the government considered the
herbicides to be chemical compounds theoretically of no harm to
humans. 39 Initially, criticism of herbicides focused on immediate and
long-term ecological effects. 4° Eventually, scientists and others began to
research and document the danger to humans. 4 1 In response to the accumulating evidence, the DOD suspended the use of Agent Orange in
1970.42
The exact harm of exposure to Agent Orange is not known. The exact
duration of the hazard is also unclear. 4 3 Amidst all that is uncertain
from the inside out." M. UHL & T. ENSIGN, supra note 13, at 138-39. Agent Orange was used
undiluted in Vietnam, at concentrations ranging from 4 to 12 times higher per acre than were
normal in civilian use. See GAO REPORT, TROOPS, supra note 31, at 2.
34. Dioxin is 2,3,7,8-tetrachlorodibenzopara-dioxin, also known as TCDD. See GAO REPORT, TROOPS, supra note 31, at 1.
35. In re "Agent Orange" Prod. Liab. Litig., 635 F.2d 987, 989 (2d Cir. 1980) (quoting Plaintiffs' Brief on Appeal at 2).
36. See GAO REPORT, TROOPS, supra note 31, at 5-9 (describing proximity of ground troops
to areas known to have been sprayed with Agent Orange).
37. US. Warplanes Dzmped Agent Orange 'On Our Own People,' SeAweiker Soys, Wash. Post, Sept.
24, 1981, at A4, col. 4 (reporting news conference of Health and Human Services Secretary Richard
A. Schweiker, head of the interdepartmental Agent Orange Work Group).
38. Id Servicemen in Vietnam had alleged for some time that unauthorized or accidental
spraying was taking place. See M. UHL & T. ENSIGN, supra note 13, at 202-04.
39. See GAO REPORT, TROOPS, supra note 31, at 3; M. UHL & T. ENSIGN, supra note 13, at
136-37.
40. See M. UHL & T. ENSIGN, supra note 13, at 137.
41. See id at 140-52; T. WHITESIDE, supra note 32, at 1-2, 18-19.
42. See GAO REPORT, HEALTH, at 29 app.
43. Once dioxin is present in an ecosystem and in the human food chain, scientists do not
know in what ways or for how long it may pose a danger to human health. See T. WHITESIDE, ruMpra
note 32, at 11, 24-28, 135-43. See also Weinraub, ietnam Invites 4 US Veterans To Visit Hanoi, N.Y.
Times, Dec. 13, 1981, at Al, col. 5 (city ed.) (veterans visited Vietnam to gather data that will
establish a cause-and-effect relationship between exposure to Agent Orange and certain diseases).
The government is conducting its own investigations to determine the effects of exposure to
Agent Orange. The Air Force is studying the "Ranch Hand" crew members who were directly
involved in handling the herbicide and in carrying out the spray missions. See GAO REPORT,
TROOPS, supra note 31, at 6 app. III. The VA is in the first stages of conducting an epidemiological
study of Agent Orange, see 38 U.S.C. § 219 (Supp. IV 1980), although various aspects of the proposed study have been criticized. See National Veterans Task Force on Agent Orange v. Cleland,
No. 80-1162 (D.D.C. filed May 7, 1980) (claim withdrawn June 16, 1981) (challenging method of
choosing contractor for study; alleging bias, lack of expertise, inadequacy of VA's Request for Proposal); Hilts, Agent OrangePa)mentrExpectedto Cost Millions, Wash. Post, Nov. 19, 1981, at A19, col. 1
(reports on hearings concerning VA study, unresolved questions, VA's general competency to con-
1982]
THEORIES OF RECOVERY FOR VETERANS
1103
about the use and effect of Agent Orange, as well as other phenoxy herbicides, one element is startlingly clear: the government, having suspended use of the chemical because the potential hazards presented an
excessive risk, has never attempted to advise those affected of the potential adverse consequences. Further, as the next section of the Comment
explains, these injured veterans are prevented from obtaining compensation or the opportunity to make their case for recovery as a result of the
nature of administrative decisionmaking, legislative inaction, and legal
precedent.
II.
POTENTIAL SOURCES OF RELIEF FOR THE INJURIES
OF EXPOSURE
4.
The Agen9.: Limited Assistance from the Veterans"Administration
A veteran who believes that an illness or other personal injury is related to military service typically seeks compensation first under the provisions of the Veterans' Benefits Act. 44 The Supreme Court has
described the VA system of benefits as "simple, certain, and uniform"
and as "normally requir[ing] no litigation. '45 The Court has referred to
injured servicemen as being "assured of compensation regardless of
fault" and to the scheme of compensation as a "swift, efficient remedy."' 46 Nevertheless, the award of certain benefits is far from assured;
the VA's definition of what injuries are incident to service is not the
Court's definition, and a challenge to the VA's denial of benefits is virtually precluded.
The Veterans' Administration is an enormous bureaucracy 47 organized to distribute a variety of benefits-including health care and disability pensions-to veterans and their dependents. Nevertheless, VA
compensation of a former servicemember is far from certain. The VA
awards benefits only after the applicant has satisfied complex, dual requirements of eligibility and entitlement. Entry into the benefits system, which the VA operates through a process of adjudication, 48 is
duct such a study). See also The Federal Triangle, Wash. Post, Aug. 13, 1982, at A17, cols. 1-2 (VA
approved additional ;2 million for 10 new projects to research effects of Agent Orange); Agent OrangeStudy Stillon Launch Pad, Wash. Post, July 5, 1982, at A13, col. 4 (describing delays in beginning
investigation of herbicide's effects on veterans; listing status of four studies related to Agent
Orange).
44. 38 U.S.C. §§ 101-5228 (1976 & Supp. III 1979).
45. Feres v. United States, 340 U.S. 135, 144-45 (1950). When Feres was decided, Congress
had recently extended the program of veterans' benefits. Id at 144 & n.12.
46. Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 672-73 (1977).
47. The VA is second only to the DOD "in number of government employees and third
among federal agencies in expenditures." R. KLEIN, Srupra note 1, at 21.
48. See 38 C.F.R. §§ 3.1-.1691 (1981) (regulations governing adjudication of claims for pensions, bonuses, and other relief).
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possible only by meeting specific eligibility requirements. 49 Eligibility is
based on two essential criteria. First, the applicant must be definitionally a veteran, a servicemember who has been discharged from active
military service "under conditions other than dishonorable. ' 50 Second,
51
the reason for discharge must be acceptable.
Notwithstanding a showing of the requisite eligibility, a claimaint still
may not receive any or every kind of VA benefit, 52 because of separate
statutory and regulatory "entitlement" provisions. 53 Establishing entitlement to benefits presents many difficulties, particularly in cases in
which scientific opinion differs regarding a cause-and-effect relationship.
The VA will award compensation, including disability payments and
hospital care, only for a personal injury or disease that is connected to
service. 54 Although the VA will presume service connection for a limited
number of diseases or in select cases, 55 the veteran usually has the bur49. See ADDLESTONE & STICHMAN, supra note 13, § 27.3 (eligibility for VA benefits); infra
notes 50-51 and accompanying text.
50. 38 U.S.C. § 101(2) (1976). A dishonorable condition as the basis for separation from military service and a dishonorable discharge are not synonymous. The former is a category that includes the latter, as well as a bad conduct discharge resulting from a general court martial and
some discharges under other than honorable conditions, formerly classified as undesirable discharges. See ADDLESTONE & STICHMAN, supra note 13, §§ 26.1-.2 & n.7, 27.3.1. For a discussion of
the administrative discharge system and a comprehensive analysis of arguments raised by an Air
Force enlistee challenging his less-than-honorable discharge, see Comment, Judicial Limitations on
M'lil y CharacterizationsofDischarges: Roelofs v. Secretary of the Air Force, 10 MIL. L. REP. (PUB. L.
EDUC. INsT.) 6001 (Mar.-Apr. 1982).
51. A veteran must have received a discharge that is not included in special categories of
conduct that define bases for separation from service that automatically operate as statutory and
regulatory bars to benefits. See 38 U.S.C. § 3103 (1976) (statutory bar to eligibility for benefits); 38
C.F.R. § 3.12 (1981) (regulatory bar to eligibility for benefits, based on reason for discharge, essentially incorporating and amplifying 38 U.S.C. § 3103). The character of discharge is distinct from
the reason for discharge. See ADDLESTONE & STICHMAN, supra note 13, § 4.2. Not every basis for
separation, however, is a statutory bar to eligibility within the meaning of 38 U.S.C. § 3103 or a
regulatory bar within the meaning of 38 C.F.R. § 3.12. For a comparison of bases for separation
with bases for authorized discharges, see ADDLESTONE & STICHMAN, supra note 13, ch. 4, app. 4A.
See alsoid § 26.2-.3 (discussing interrelationship of entitlement to benefits and statutory, regulatory
bars); id §§ 26.3.1-.4.6 (detailing circumstances and describing adjudication within each category
of statutory and regulatory bars). When a veteran applies for benefits, the VA evaluates the character of and reason for discharge, and determines if a statutory or regulatory bar exists. Id §§ 26.1-.3.
52. An eligible veteran may qualify for a housing loan, 38 U.S.C. § 1802 (1976), or the educational assistance and vocational counseling benefits, id §§ 1661-1663, but not be entitled to health
care benefits, id §§ 601-654. See ADDLESTONE & STICHMAN, supra note 13, §§ 26.1-.6.3, app. 26A.
53. See ADDLESTONE & STICHMAN, supra note 13, § 27.4.
54. 38 U.S.C. §§ 310, 331 (1976) (entitlement provisions for disability resulting from activities
during war, peacetime); 38 C.F.R. §§ 3.301-.350 (1981) (basic entitlement provisions; principles
relating to service connection). The veteran alleges service connection by claiming that the condition complained of was incurred in military service, preexisted but was aggravated by military
service, or resulted from a separate service-connected condition. See 38 U.S.C. §§ 310, 331, 351
(1976); ADDLESTONE & STICHMAN, supra note 13, § 27.4.2 & nn.79-81.
55. See 38 U.S.C. §§ 312, 333, 337 (1976); 38 C.F.R. §§ 3.307-.309 (1981) (listing chronic,
tropical, and prisoner-of-war-related diseases, and diseases that manifest themselves within one year
from date of separation from service as presumed to have occurred during military service). See
generalty Occupational Diseases and their Compensation-Byssinosis, Radiation, and Hearing Lass: Hearings
Before the Subconm on Labor Standardsof the House Comtm. on Education and Labor, 96th Cong., 1st Sess.
19821
THEORIES OF RECOVERY FOR VETERANS
1105
den of establishing the causal connection between the injury or disease
complained of and a specific event in service. 56 Moreover, for certain
kinds of claims, the VA actually presumes no cause-and-effect relationship between an activity of military service and a disease.5 7 Establishing
533-55 (1979) (statement of Thomas F. Mancuso, M.D., regarding procedures for and difficulties of
making radiation-related claims before VA).
56. To establish service connection, the VA requires that the veteran meet a high level of
proof, notwithstanding the provisions of a "reasonable doubt" doctrine. A reasonable doubt is
defined as "one within the range of probability as distinguished from pure speculation or remote
possibility." 38 C.F.R. § 3.102 (1981). The veteran's burden is to present "evidence sufficient to
justify a belief in a fair and impartial mind that [the] claim is well grounded"; evidence that neither
satisfactorily proves nor disproves the contention raises a reasonable doubt in the veteran's favor.
Id In conjunction with the presumption of a servicemember's soundness on entry into the military,
38 U.S.C. §§ 311, 332 (1976); 38 C.F.R. §§ 3.304-.305 (1981), the reasonable doubt doctrine should
work to favor the veteran, especially in cases in which medical opinions are in conflict or evidence is
difficult to obtain because of the hiatus between the injury-producing event and manifestation of
adverse effects. See generallv Comment, supra note 13 (arguing that should irradiated veterans reach
stage of litigating merits of a claim against the government, burden of proof should be shifted to
defendant). In fact, this doctrine has not been applied to the veteran's advantage, as evidenced by
the denial of 1000 radiation-related claims, see Gott v. Cleland, No. 80-0906 (D.D.C. Sept. 30,
1981), appealdocketed No. 82-1159 (D.C. Cir. Feb. 16, 1982), and 4000 herbicide exposure claims, see
White v. Cleland, No. 79-1426 (D.D.C. filed May 31, 1979). f James W. O'Connor, No. 78-10 101
Bd. of Veterans' Appeals 10-11 (Aug. 4, 1982) (VA recognized causal connection between veteran's
exposure to radiation during 1950's atmospheric tests and development of basal cell carcinomas
(skin cancer) approximately 20 years later).
That a veteran went into the service healthy and came out, or soon became unhealthy, is not
necessarily enough. Logically, however, the source of such a condition probably is traceable to
military service. As one commentator has suggested, arguing that the burden of proof for herbicide-exposed veterans should, indeed, be low:
If.. .Agent Orange is not the culprit, then what & causing the same symptoms in hundreds of thousands of men with shared backgrounds and experiences? Something happened to these veterans . . .in Vietnam-something is making them sick and die-and
whether it was Agent Orange is almost irrelevant. The symptoms-the deaths, the [birth]
defects, the distress--are all obviously service-connected.
R. KLEIN, supra note 1, at 173 (emphases in original). Seealso ADDLESTONE & STICHMAN,supra note
13, § 27.4.4 (discussing proof of service connection).
57. For example, recent revisions to VA guidelines list cancers showing "strong," "meaningful," or "suggestive but unconfirmed" association to exposure to radiation. See 45 Fed. Reg. 86,605,
86,606-07 (1980). The VA has concluded that most servicemembers involved in the atmospheric
nuclear testing program received insignificant exposure to radiation, that exposure to radiation is
not related to any major disease except cancer, and that exposure has not produced adverse genetic
effects in humans. Gott v. Cleland, No. 80-0906, slip op. at 5 (D.D.C. Sept. 30, 1981), appeal docktied, No. 82-1159 (D.C. Cir. Feb. 16, 1982). In fact, the "significant" levels of irradiation and its
potential as a carcinogen and mutagen are matters of continuing controversy. See, e.g., J. GOFMAN,
supra note 15.
Although the VA promulgates such no-cause-and-effect presumptions as guidelines, the agency
frequently treats these determinations as having a binding effect and applies them as rules within
the meaning of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1976). Irradiated veterans
have successfully argued that three documents used by the VA to decide radiation-related claims
are rules as defined by the APA. These rules, therefore, are invalid because not promulgated
through public rulemaking procedures as required by the APA. See Gott v. Cleland, No. 80-0906,
slip op. at 1, 8 (D.D.C. Sept. 30, 1981), appealdocketed, No. 82-1159 (D.C. Cir. Feb. 16, 1982). The
VA and the Defense Nuclear Agency (DNA) have been ordered to conduct APA-mandated
rulemaking for the documents that will be relied on to decide future claims of irradiated veterans.
See Gott v. Nimmo, No. 80-0906, slip op. at 6 (D.D.C. Feb. 17, 1982) (supplemental opinion to Gott
v. Cleland), appeal docketed, No. 82-1159 (D.C. Cir. Apr. 16, 1982). If plaintiffs prevail on appeal,
concerned veterans will have an opportunity to present their objections to the VA's methods of
establishing radiation exposure and to the VA's conclusions about what level of exposure results in
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causal connection is particularly difficult for veterans exposed to hazardous substances. Because scientific knowledge about exposure to such
substances often is not sufficiently advanced to be dispositive, 58 the
claimant must present expert medical testimony to contradict that on
which the VA relies. 59
The difficulties encountered by veterans do not end with eligibility
and entitlement determinations. If the VA denies an individual's claim
for benefits, the veteran's only appeal is through the agency; 6° under
section 211 (a) of the statutory provisions for veterans' benefits, the decision is not subject to judicial review. 61 The extent of this bar to review,
developed in a series of cases and based on interpretations of congressional intent, 62 is unparalleled. VA decisionmaking thus is insulated as
what disease. Cf. White v. Cleland, Civ. No. 79-1426 (D.D.C. filed May 31, 1979) (contesting the
validity of the VA Agent Orange Program Guide because it was not subject to APA notice and
comment rulemaking).
The VA recently solicited public comments on guidelines relating to the treatment of irradiated
or herbicide-exposed veterans. 46 Fed. Reg. 58,636 (1981). The guidelines are designed to assist
VA physicians in determining eligibility for care under the Veterans' Health Care, Training, and
Small Business Loan Act of 1981, Pub. L. No. 97-72, 95 Stat. 1047, on a case-by-case basis. See hnfta
notes 71-75 and accompanying text. The VA has been careful to point out that the guidelines "are
not being published as regulations under the authority of section 553" of the APA. 46 Fed. Reg. at
58,636 (1981) (emphasis added). Nevertheless, plaintiffs in White v. Cleland have asserted that the
VA "has acknowledged that Federal Register publication of internal agency 'guidelines' for certain
Agent Orange benefits" is required by statute and "has taken virtually the same actions that plaintiffs seek in this lawsuit." Notice of Filing Additional Information in Support of Plaintiffs' Motions
for Summary Judgment and Class Certification at 1 (filed Dec. 7, 1981), White v. Cleland, Civ. No.
79-1426.
58. For example, although cancer is the disease most associated with exposure to radiation,
the VA has recognized that "eventually all tissue may be shown to be subject to radio-carcinogenesis." 45 Fed. Reg. 86,605, 86,606 (1981) (revisions to procedures for adjudicating radiation-related
claims before the VA). See supra note 57 and accompanying text.
59. On appeal of a claim denied by the VA regional office, the Board of Veterans' Appeals
(BVA) may request a medical opinion from either its own medical staff, from the VA's chief medical
director, or from an independent medical expert. See 38 C.F.R. § 19.144 (1981).
60. See C.F.R. §§ 3.103-.105, 19.1-.5, 19.101-.156 (1981).
61. See 38 U.S.C. § 211(a) (1976).
62. The primary purposes of the no-review clause have been defined as ensuring that veterans' benefits claims will burden neither the courts nor the VA with litigation and that the "technical and complex determinations and applications of (VA) policy connected with veterans' benefits
decisions will be adequately and uniformly made." Johnson v. Robison, 415 U.S. 361, 369-70
(1974) (relying on explanation by VA Administrator to the Subcomm. of the House Comm. on
Veterans' Affairs; noting that legislative history of earlier VA benefits statutes' no- review clauses
was "almost non-existent"). The Supreme Court concluded that the no-review clause applied to
VA decisions in individual cases, and was not designed to bar "constitutional challenges to veterans'
benefits legislation." Id. at 373. Moreover, the VA's statutory authority to issue regulations is open
to challenge. See, e.g., Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir. 1980); Wayne
State Univ. v. Cleland, 590 F.2d 627 (6th Cir. 1978).
See also Gott v. Cleland, No. 80-0906 (D.D.C. Sept. 30, 1981) (plaintiffs challenge promulgation
of decisional documents rather than any denial of benefits to individual claimants in more than
1000 claims for compensation of alleged radiation-related injuries), appeal docketed, No. 82-1159
(D.C. Cir. Feb. 16, 1982); White v. Cleland, Civ. No. 79-1426 (D.D.C. filed May 31, 1979) (plaintiffs contest validity of VA Agent Orange decisional document rather than challenge denial of any
one of more than 4000 herbicide exposure-related claims rejected by VA). Seegeneral4y Comment,
Agengy Duties To Conduct Rulerkzkng: Conflcting Approaches After Carter v. Cleland, 31 AM. U.L. REV.
1982]
THEORIES OF RECOVERY FOR VETERANS
1107
is that of no other agency; the VA has a kind of autonomy unique in the
63
administrative and regulatory sector.
B.
The Congress."Limited Assistancefrom the Legislators
The hazard-exposed veteran who is unable to overcome obstacles at
the agency level may look to Congress for a remedy. Three basic categories of relief could be provided: amendment of the Federal Tort Claims
Act (FTCA) to abrogate absolute intramilitary immunity,64 revision of
the administrative adjudicatory process both for claims and appeals, or
creation of a special program of benefits. Within the first category,
neither the Senate nor the House of Representatives has acted; within
the second, only the Senate has authorized such revisions. Only within
the third category has Congress acted affirmatively. Nevertheless, Congress has just begun to address the issues involved in providing comprehensive compensation to hazard-exposed veterans whose claims are not
65
recognized, either by the VA or by the courts.
In 1979, the Senate attempted to subject VA benefits decisions to judicial review by approving an amendment that would allow a veteran to
challenge the VA's final disposition of a claim. 66 The House, however,
did not consider the measure. 67 In addition to modifying the judicial
review provision, the Senate bill incorporated three other sections that
would have assisted veterans in pursuing claims. First, the Senate
sought to codify VA adjudication procedures. 68 Second, the bill re301 (1981) (widows denied VA benefits unsuccessfully challenged decisional guidelines because not
promulgated under APA).
63.
See ADDLESTONE & STICHMAN, supra note 13, §§ 27.6.1-.2 & nn. 154-65d (history of bar to
judicial review of VA benefits decisions). Seegenerall STRANGERS AT HOME 325-41 (C. Figley & S.
Leventman eds. 1980) (overview of development, application of "no review" clause).
64. See hnfta notes 77-78, 90-93 and accompanying text.
65. The courts frequently point to Congress as the source of relief: "Perhaps if Congress is
made aware of the seriousness of claims such as [this] it will be moved to grant relief to the individuals or to change the FTCA to allow such recoveries in the federal courts. We sincerely hope
Congress will do at least the former." Monaco v. United States, 661 F.2d 129, 134 n.3 (9th Cir.
1981) (describing birth defects in daughter of irradiated veteran, including arterio- venous anomaly
in the brain that induces hemorrhages, aphasia), cert. denied, 102 S. Ct. 2269 (1982) (No. 81-1658).
66. S. 330, 96th Cong., Ist Sess., 125 CONG. REG. 12,698-721 (1979). The bill, the Veterans'
Administration Adjudication Procedure and Judicial Review Act, represented an attempt "to reconcile a wide variety of viewpoints on the issue of judicial review of VA decisions and the related
issues." S. REP. No. 178, 96th Cong., Ist Sess. 23 (1979). The Senate is still attempting to achieve
that goal. In mid-1981, the Senate Veterans' Affairs Committee conducted hearings on S. 349,
Veterans' Adminstration ProcedureandjudicalReview Act: Hearingson S. 349 and Related Issues Before the
Senate Com= on Veterans'Airs
, 97th Cong., 1st Sess. (1981), the equivalent to S. 330. The Senate
has perceived correctly that veterans' benefits are more than "mere gratuities" and that denial to
veterans of "the protection afforded by access to court review . . . seems highly questionable,"
especially in comparison to the safeguards available to recipients of other federal benefits programs.
Id at 3.
67. Two versions of the judicial review and VA procedures act are pending in the House.
H.R. 748, H.R. 1331, 97th Cong., 1st Sess. (1981).
68. S. REP. No. 178, 96th Cong., 1st Sess. 25 (1979). See supra note 56 and accompanying text.
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quired the VA to comply with notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA).69 Finally, the bill
removed the ten-dollar limit on fees paid to an attorney representing a
70
veteran before the VA.
With regard to special benefits programs, in late 1981 Congress
passed, and the President signed into law, a bill that allows for an expanded study of the effects of Agent Orange and establishes priority
health care for veterans exposed to radiation or Agent Orange. 71 The
latter provision is based on a presumption that health problems may
result from such exposures. Eligibility for such care, however, is not a
72
basis for establishing service connection for purposes of other claims.
Moreover, VA physicians, who must determine that a condition results
from exposure to radiation or Agent Orange, 73 are advised that some
diseases or health conditions "are not ordinarily considered" to result
from the kind of exposure in question. 74 Thus, the process for approving
health care claims parallels that for adjudicating disability claims: the
VA decides if the condition complained of is somehow causally con75
nected to the in-service exposure to a hazardous substance.
Although Congress has provided that veterans exposed to radiation or
Agent Orange may receive some cost-free health care, the new law does
not provide either for restitution of the costs veterans may have incurred
for past medical treatment or for damages of any kind. Veterans exposed to hazardous substances, therefore, have affirmed their intention
to litigate claims not satisfied by the special benefits program. As with
any other civilians who attempt to recover damages for a perceived injury or loss, "the issue is. . .the amount of money the plaintiffs may
recover. "76
69. S. REP. No. 178, 96th Cong., 1st Sess. 34 (1979). For a discussion of how the VA avoids
subjecting its rules, guidelines, and other decisional documents, which have a binding effect on
claims for benefits, to public scrutiny and review, see supra note 57 and accompanying text.
70. S. REP. No. 178, 96th Cong., 1st Sess. 52 (1979). As the Senate recognized, the $10 limit
on attorney's fees "effectively precludes any meaningful attorney representation." Id at 24.
71. Veterans' Health Care, Training and Small Business Loan Act of 1981, Pub. L. No. 97-72,
§ 102, 95 Stat. 1047 (to be codified in scattered sections of 38 U.S.C.).
72. See 46 Fed. Reg. 58,636, 58,636 (1981) (publication of VA's proposed guidelines for implementing new health care provisions to provide treatment for veterans exposed to Agent Orange or
ionizing radiation); supra note 57.
73. 46 Fed. Reg. 58,636, 58,636-637 (1981).
74. Id
75. Id For purposes of providing the mandated health care, the guidelines establish presumptions about the incidents of exposure. Veterans making Agent Orange claims have only to
establish service in Vietnam during the period from August 5, 1964 to May 7, 1975. Similarly,
verification of service in Hiroshima and Nagasaki will "satisfy the requirements of exposure, not
because all such troops were exposed to bomb-related doses of ionizing radiation, but because dose
exposure information for these individuals is not available." For veterans who participated in the
atmospheric nuclear testing program, exposure claims will be verified by the DOD. Id at 58,636.
76. Jaffee v. United States (Jaffee I), 663 F.2d 1226, 1240 (3d Cir. 1981) (en bane) (footnote
omitted) (finding no cause of action by irradiated veteran against individual DOD, AEC, and
1982]
THEORIES OF RECOVERY FOR VETERANS
1109
Army officials for unconstitutional, in-service torts), cerL denied, 102 S. Ct. 2234 (1982) (No. 811346).
Creation of a special statutory program of compensation would appropriately redress the government's responsibility for having subjected servicemembers to unusual hazards and for having failed
to apprise them of the potential adverse consequences. See infra notes 202-04 and accompanying
text. The difficulty in developing such a program is defining eligibility requirements. Government
officials may readily acknowledge that exposure, either deliberately or by mischance, is regrettable.
Yet legislators and administrators have resisted implementing any program that concludes a connection between a kind of exposure and particular effects or diseases. See Notice of Additional
Information in Support of Plaintiffs' Motion for Summary Judgment, Gott v. Cleland, No. 80-0906
(D.D.C. Sept. 30, 1981) (informing the court of recent statements by the DOD; quoting from Sept.
4, 1981 letter from William H. Taft, DOD General Counsel, to Rep. G.V. Montgomery, Chairman, House Comm. on Veterans' Affairs), appeal docketed, No. 82-1159 (D.C. Cir. Feb. 16, 1982).
The DOD opposed approval of the bill providing VA health care benefits for irradiated veterans, see
supra note 71 and accompanying text, because the legislation created "the unmistakeable impression that exposure to low-level ionizing radiation is a significant health hazard." Notice, 5upra, at
letter 2. The DOD's objections were based on policy considerations and its belief that such an
impression potentially could be "seriously damaging to every aspect of the. . . nuclear weapons
and nuclear propulsion programs" and that passage of the bill "could adversely affect our relations
with our European allies, impact upon the civilian nuclear power industry, and raise questions
regarding the use of radioactive substances in medical diagnosis and treatment." Id at letter 2-3.
One commentator has indicated that similar policy considerations may underlie resistance to recognizing a link between adverse health effects and exposure to Agent Orange, because of the widespread use of dioxin-contaminated herbicides and because of disposal problems associated with
toxic wastes. Se T. WH1TESIDE, supra note 32, at 1-5, 136-43.
Two recent approaches for dealing with latent injuries may provide a method of determining
eligibility for compensation, a method with which legislators are comfortable and that is fair to
veteran-claimants. The first approach involves a new definition of injury from exposure to a hazardous substance; the second is establishing the attributable risk from such exposure.
In a case involving the liability of insurance carriers to a manufacturer of asbestos products,
Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034 (D.C. Cir. 1981), a'rt. denied, 102 S. Ct. 1644
(1982), the Court of Appeals for the District of Columbia Circuit defined injury from exposure to
asbestos as a process that begins at exposure and continues through manifestation of an asbestosrelated disease. Id at 1047. The court rejected a "characterization of exposure as a dicrete injury,"
and found that any stage during the injurious process would "trigger coverage" under an insurance
policy. Id at 1045-47 (emphasis in original). When coverage is triggered, the court held that the
insurer would be liable in full to the manufacturer. Id at 1047-50 (treating as a separate issue the
allocation of liability when more than one insurance policy was triggered for same injury). In a
statutory compensation scheme for veterans exposed to hazardous substances, the United States
properly could be placed in the role of insurer. Any veteran suffering from a disease related to a
particular exposure would make, in effect, an indemnity claim. The Keene definition of bodily
injury as the process from exposure to manifestation recognizes that each individual has a unique
response to an event of exposure. See id at 1042-47. In a concurrence, Judge Wald amplified the
court's new definition of injury by describing the process as including the stages during "which the
victim's body resists, adapts, and tries to accommodate itself to a foreign matter." She viewed the
"process-oriented definition" as "a useful precedent for other product exposure injuries, as of yet
unknown in origin." Id at 1057-58 (Wald, J., concurring). Application of the Keene definition
arguably would eliminate any requirement that the veteran establish a certain level of exposure as
an element in the predicate for liability.
To establish what disease or other physical condition is related to exposure, the statutory scheme
could incorporate a concept of "attributable risk," which is the critical feature of a proposal to
establish a federal tort claims procedure for cancer that is related to nuclear fallout. See S. 1483,
97th Cong., 2d Sess. (1982). The "Atomic Bomb Fallout Compensation Act of 1982" would allow
claims against the United States by any individual who was a U.S. resident when atomic bombs
were detonated above ground at the Nevada Test Site. The bill does not distinguish between civilians and members of the armed forces, but servicemembers irradiated in Japan or the South Pacific
are excluded. See id § 2691. The bill provides that the irradiated claimant's attributable risk, or
probability, of developing a radiation-related cancer will be determined by a formula based on
radioepidemiology and individual factors, such as gender, age at exposure, and duration of the
hiatus between exposure and onset of a particular kind of cancer. See id § 2793(c). The Secretary
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The Judiciay: The United States as the "Wanted" Defendant
Consent to be sued-Federal Tort Claims Act
The 1946 enactment of the Federal Tort Claims Act 77 (FTCA) vested
jurisdiction in federal courts for most claims alleging negligence of government employees acting within the scope of their employment and
seeking money damages. 78 Prior to this statutory consent to be sued, the
doctrine of sovereign immunity had protected the government from
negligence actions. 79 In abrogating the doctrine, Congress restricted the
of Health and Human Services will develop a list of cancers that have been "scientifically demonstrated to be positively correlated" to exposure to radiation. Id § 2691(2). The concept of attributable risk would allow for case-by-case determinations of the probability that the veteran-claimant
developed the condition complained of as a result of exposure to a particular substance. Because
relevant epidemiology would be employed to formulate such a probability, the claimant's burden
of producing scientific evidence could be lessened. In conjunction with established presumptions
about military service and exposure, see supra note 75 and accompanying text, which could be
incorporated in the compensation scheme, attributable risk formulations could provide an equitable method for determining governmental liability to veteran-claimants, their dependents, or their
survivors.
The successful legal recourse for a hazard-exposed veteran is a separate consideration from what
the government should do to provide relief. When implementation of a military program places
soldiers at risk of harm through exposure to hazardous substances, the responsible agency or military department should initiate a program of systematically identifying and warning all affected
servicemembers. The veteran should not have to litigate in order to be apprised of the hazard. See
:nfra notes 194-99 and accompanying text. Moreover, the large number of veterans involved in the
atmospheric testing program and affected by the use of Agent Orange dictates formulation of a
federal policy to deal with the scope of the problem. Congressional action is necessary to allow
judicial review of VA decisions on individual claims for benefits, to dispense with absolute intramilitary tort immunity, and to create a special program of compensation for veterans who were exposed
to hazardous substances during their military service. See supra notes 60-63 and accompanying text,
infira notes 90-93, 121-127 and accompanying text.
77. See Legislative Reorganization (Federal Tort Claims) Act, ch. 753, 60 Stat. 842 (1946)
(current version in scattered sections of 28 U.S.C.). For relevant provisions of the FTCA, see 28
U.S.C. §§ 1291, 1346, 1402(b), 1504, 2110, 2401(b), 2402, 2411(b), 2412, 2671-2680 (1976 & Supp.
III 1979). Prior to 1946, Congress had provided only limited tort relief by permitting suits to be
brought against the United States in certain isolated instances or through administrative procedures. See 1L. JAYSON, HANDLING FEDERAL TORT CLAIMS: ADMINISTRATIVE AND JUDICIAL REMEDIES § 55.01, at 2-18 (1982) (footnote omitted). Before the enactment of the FTCA, a claim of
tortious conduct by government agents or officials generally had to be made to Congress as a private bill for relief. Id § 1, at 1-8.
In contrast to negligence, the accountability of the United States for intentional torts is limited to
assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution by a
federal investigative or law enforcement officer. See 28 U.S.C. § 2680(h) (1976); Boger, Gitenstein
& Verkuil, The Federal Tort Claims Act Intentional Torts Amendment: An Interpretative Anasi, 54 N.C.L.
REv. 497, 517 (1976); incfa notes 186-193 and accompanying text.
An alternative claim against the United States, for nonmonetary relief only and alleging injury
from acts or omissions of federal government officials, may be made under the Administrative Procedure Act (APA), 5 U.S.C. § 702 (1976). See Jaffee v. United States (Jaffee I), 592 F.2d 712, 718-20
(3d Cir. 1979) (claim for injunctive relief, in the nature of a warning about hazards of radiation
exposure, under the APA), cert deniedon othergrounds. 441 U.S. 961 (1979) (mem.); in)fia notes 196-97
and accompanying text.
78. See 28 U.S.C. § 1346(b) (1976).
79. For discussions of the theoretical bases of sovereign immunity, including the distinctions
between the English concept that the King could do no wrong and the American belief that the
state could be sued only with its consent, see Feres v. United States, 340 U.S. 135, 139 (1950); 1 L.
JAYSON, supra note 77, § 51; Jaffe, Suits Against Governments And Oft9ers: Sovereign Immunity, 77 HARV.
L. REV. 1, 1-5, 19-21 (1963) (pt. 1); Comment, Sovereign Immunty---An Anathema To The "Constitutional
1982]
THEORIES OF RECOVERY FOR VETERANS
1111
liability of the United States to those circumstances in which a private
person would be liable according to state law. 80 Congress further delimited liability by excluding punitive damages8 l and by carving out spe82
cific exceptions to the government's general consent to be sued.
Among the exceptions are those that apply to military personnel. Significantly, servicemembers may not bring against the government
83
claims that arise either during wartime combat or in a foreign country.
The FTCA does not exclude, however, all claims involving occurrences
incident to military activities. 84 To the contrary, specific provisions of
the FTCA anticipate claims against the government for intramilitary
torts.8 5 The wording of the wartime combat exception implies that
claims by members of the armed forces for negligence of fellow soldiers
may arise during peacetime, noncombat duty.8 6 Similarly, the foreign
country exception applies to claims by civilians as well as by military
personnel. The implication is that claims by the latter may arise within
the United States as a result of actions by government officials, includ87
ing those in the military.
In construing the FTCA and its exceptions, however, the courts have
created further exceptions and limitations that have frustrated cognizable claims by members of the armed forces. For example, although the
FTCA is worded broadly to allow claims for a "negligent or wrongful act
or omission," '8 8 the Supreme Court has interpreted the statute narrowly
Tort," 12 SANTA CLARA L. REV. 543, 548-50 & nn.28-42 (1972). "[D]oubts have been expressed as
to the source of the immunity of a sovereign power from suit without its own permission. . . . A
sovereign is exempt from suit [because] there can be no legal right as against the authority that
makes the law on which the right depends." Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907)
(Holmes, J.) (citation omitted).
80. &e 28 U.S.C. § 1346(b) (1976). Compare id ("under circumstances where the United
States, if a private person, would be liable to the claimant") with id § 2674 ("United States shall be
liable. . . in the same manner and to the same extent as a private individual under like circumstances"). For a discussion of how the private liability test has been applied, see Defig the Government's Duty Under theFeeral Tort Clazms Act, 33 VAND. L. REV. 795 (1980).
81. See 28 U.S.C. § 2674 (1976).
82. Thirteen kinds of claims are expressly excluded. See id § 2680 (1976 & Supp. III 1979).
83. Id § 26800), (k).
84. Earlier tort claims bills, which were never enacted, did contain provisions denying recovery to members of the armed forces for military activities. See Feres v. United States, 340 U.S. 135,
139 (1950) (judicial creation of military service exception to FTCA). That Congress could have
written such an explicit exception, but apparently chose not to, was not persuasive to the Court in
deciding Frm. Id
85. Definitionally under the FTCA, military personnel may be tortious actors. Government
officials and employees, whose negligence within the scope of their employment may be the source
of claims against the United States, include "members of the military or naval forces of the United
States," who have acted in the "line of duty." See 28 U.S.C. § 2671 (1976). The FTCA does not
explicitly except claims by military personnel. See id § 2680. Thus, the FTCA creates the possibility of a case with a soldier as the injured party-claimant and a soldier or superior officer as the
negligent actor-government employee.
86. See 28 U.S.C. § 26806) (1976).
87. See i §§ 1346(b), 2671, 2680(k).
88. Id § 1346(b) (emphasis added).
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"to require some brand of misfeasance or nonfeasance," and relied on
legislative history to determine that the government could not be held
absolutely liable, even for ultrahazardous activity. 9 Of critical significance to military personnel was the Court's creation of intramilitary immunity, even for claims of negligence under the FTCA.
2. Judiially-createdintramilitary immunity. the Feres doctrine
In deciding two early FTCA cases regarding intramilitary claims,
Brooks v.United States9° and Feres v. United States,91 the Supreme Court
acknowledged that the Act did not expressly exclude all negligence
claims by one member of the armed forces against another member of
the armed forces.9 2 Nevertheless, the Court created its own exception to
the FTCA: "the Government is not liable under the Federal Tort
Claims Act for injuries to servicemen where the injuries arise out of or
are in the course of activity incident to service."'93 The incident-to-service exception effectively extends the wartime combat exception. Whenever the negligence occurs, whether during war or peacetime, combat or
routine duty, the judicially created exception bars a servicemember's
suit against the United States. The Court based its exclusion of military
personnel from the FTCA on four factors unrelated to any of the statutory exceptions: a concept of analogous liability, the distinctive relationship between the government and its military personnel, the
89. Dalehite v. United States, 346 U.S. 15, 45 (1953) (U.S.-controlled shipment of ammonium
nitrate fertilizer exploded, causing fire that leveled much of Texas City, Tex.). See also W. PROSSER,
HANDBOOK OF THE LAW OF TORTS § 131, at 974-75 & nn.43-47 (4th ed. 1971) (preclusion of strict
liability "vigorously denounced," but accepted as conclusive by most federal courts).
90. 337 U.S. 49 (1949).
91. 340 U.S. 135 (1950).
92. Id at 138-39; Brooks v. United States, 337 U.S. 49, 51 (1949). In Brooks, one off-duty
serviceman was killed and one was injured when their car was hit on a public highway by a U.S.
Army truck. The Supreme Court, reversing the lower court, found the United States liable under
the FTCA because the accident was not incident to the claimants' military service. The Court
emphasized that Congress had adopted the FTCA without excluding all claims brought by servicemen. 337 U.S. at 50-52.
93. Feres v. United States, 340 U.S. 135, 146 (1950). The Court had two choices in ertes:
either read the FTCA and its exceptions narrowly, recognize claims that are not clearly within a
specific exception, and allow Congress either to create more exceptions or clarify existing exceptions; or interpret the language of the FTCA as creating new exceptions, disallow claims under the
judicial exception, and wait for Congress expressly to affirm or deny the special exception. The
Court chose the latter alternative, although the former would have been in keeping with the
Court's typical deference to Congress in military and national defense matters. This deference
began prior to Fetes and has continued with little variation until the present. See, e.g., Weinberger v.
Catholic Action of Hawaii/Peace Educ. Project, 102 S.Ct. 197, 202 (1981) (Navy not required to
publish environmental impact statement on hazards of nuclear weapons storage because Congress
exempts national security matters from public disclosure); Rostker v. Goldberg, 101 S. Ct. 2646,
2651 (1981) (equal protection challenge to exclusion of women from military draft registration
failed because Congress broadly empowered to decide how armed services will be regulated);
Lichter v. United States, 334 U.S. 742, 754-64 (1948) (subcontractors for war goods not allowed to
retain excess profits because Congress properly decided forfeitures for wartime defense).
1982]
THEORIES OF RECOVERY FOR VETERANS
1113
servicemember's inability to select the location of his assignment, and an
alternative system of compensation.
First, the Court interpreted the language of the FTCA establishing
government liability "under circumstances where a private person
would be liable" 94 as a requirement of analogous liability, not as the
creation of a new cause of action. 95 The Court in Feres found, therefore,
that because no American law ever allowed a member of the armed
forces to recover for the negligence of either a superior officer or the
government, there was no analogous liability in an individual. 96 In addition, no analogous liability existed "under like circumstances," because a private individual cannot "conscript or mobilize a private
army. '97 The Court asserted that it could find analogous liability only
by ignoring "the status of both the wronged and the wrongdoer," and
emphasized that liability must be predicated on all of the circumstances
of the alleged negligence, including the military character of both the
injured party and the tortfeasor.98
In Feres, the gravamen of the complaint was negligence in maintenance of Army barracks; 99 in the two cases decided with Feres, the alleged negligence was medical malpractice by Army doctors. 100 To make
an analogy to a private individual in like circumstances, the obvious
parallel relationships are landlord-tenant and doctor-patient. 10 ' The
94. See 28 U.S.C. §§ 1346(b), 2674 (1976); supra note 80 and accompanying text.
95. Se Feres v. United States, 340 U.S. 135, 141 (1950).
96. See id The Court strictly construed analogous liability under statutory rather than common law. The liability of the United States is possible only under statute; therefore, the private
individual's liability would have to be under a similar law. The Court's analysis, however, is not
explicated thoroughly. Id
97. Id at 141-42. In nonmilitary contexts, the Court has had no trouble finding analogous
liability, including circumstances involving a wholly governmental activity. See Rayonier, Inc. v.
United States, 352 U.S. 315, 319-20 (1957) (government liable for negligence of federal Forest Service firefighters); Indian Towing Co. v. United States, 350 U.S. 61, 64, 69 (1955) (government liable
for negligence of Coast Guard lighthouse keepers). Cf. Dalehite v. United States, 346 U.S. 15, 23,
43-44 (1953) (government not liable when Coast Guard employees negligently failed to perform a
discretionary duty, in this case fighting a fire caused by explosion of U.S.- controlled chemical
fertilizer shipment). CompareFees, 340 U.S. at 142 (FTCA not designed "to visit the Government
with novel and unprecedented liabilities") with Rayonier, 352 U.S. at 319 ("very purpose" of FTCA
"to establish novel and unprecedented governmental liability.").
98. Feres v. United States, 340 U.S. 135, 142 (1950).
99. The widow of a serviceman who died in a barracks fire sought damages from the government. She asserted that the Army was negligent in quartering soldiers in a building with a defective heating plant and in failing to provide adequate fire detection and alarm procedures. Feres v.
United States, 177 F.2d 535, 536 (2d Cir. 1949), aJ'd,340 U.S. 135 (1950).
100. In the first case, an 18-by-30-inch towel marked "Medical Department U.S. Army" was
found inside a veteran undergoing post-discharge surgery. Accordingly, he alleged that Army doctors had been negligent during an in-service abdominal operation. See Feres v. United States, 340
U.S. 135, 137 (1950), a.fg Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949). In the second
case, a serviceman died during surgery at an Army hospital. His widow alleged in-service negligence by the medical personnel involved. See id, reov' Griggs v. United States, 178 F.2d 1 (10th Cir.
1949).
101. See I L. JAYSON, supra note 77, § 155.05; Note, From Feres to Stencel: ShouldMiltagiPersonnelHaw Aetrss to F=ea Recovery?, 77 MIcH. L. REv. 1099, 1102-03 (1979).
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Court acknowledged as much, 10 2 but was unwilling to evaluate the circumstances outside the military context and to consider the injured servicemember as simply an injured person.103
Implicit in the analysis of analogous liability is the second factor that
contributed to the Court's prohibiting intramilitary claims under the
FTCA. The "distinctively federal" character of the relationship between the government and military personnel 0 4 was traditionally "governed exclusively by federal law."' 1 5 The Court reasoned, therefore,
that the provision of the FTCA applying "the law of the place where the
act or omission" occurs-that is, state law-was not applicable to servicemembers.10 6 The third factor is closely related to the second. The
Court expressed concern that recovery for servicemembers would de10 7
pend on the geographical fortuity of a particular duty assignment.
The Court implied that because servicemembers have no control over
their assignments, such potential claimants needed protection from the
vagaries of state tort law.' 08
Finally, the Court relied on the existence of an alternative system of
compensation' 0 9 as justification for disallowing federal tort claims resulting from activities incident to service.ti 0 The failure by Congress to
provide for a method of adjusting statutorily mandated veterans' benefits and recovery in a tort suit convinced the Court that Congress did
not intend service-connected injuries to be litigated under the FTCA. I"'
Here, in contrast to the third factor, the Court implied that injured servicemembers needed protection from an excess of choices, because "[a]
1
soldier is at peculiar disadvantage in litigation."' 2
102.
Feres v. United States, 340 U.S. 135, 142 (1950).
103. The Court did not fully explain the reasons for its unwillingness to strip away the military
context. Justice Jackson's opinion, however, met with no dissent. See id at 135-36; id. at 146 (Douglas, J., concurring) (no separate opinion). The opinion is short--only 10 pages-and does not provide an adequate basis for the Court's conclusions. Particularly unclear is the Court's emphasis on
considering all the circumstances. See supra note 98 and accompanying text. The Court's tacit
assumption in developing the Ferer doctrine was the need to keep the risks of noncombat and peacetime military duty outside the FTCA. See Note, subra note 101, at 1105. The Court in Feres, however, neither alluded to this factor nor referred to the potential adverse effect on military discipline
if command decisions could be challenged in civil litigation. For a discussion of the "military discipline" factor, see zi.fra notes 117-18 and accompanying text. See also Stencel Aero Eng'g Corp. v.
United States, 431 U.S. 666, 673 (1977) (concern for situations in which servicemembers, including
officers, would testify against each other's decisions).
104. Feres v. United States, 340 U.S. 135, 143 (1950).
105. Id at 146.
106. See 28 U.S.C. § 2674 (1976).
107. Feres v. United States, 340 U.S. 135, 143 (1950).
108. See id at 142-43. Cf. Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 672 (1977)
(Feres focus on protecting claimant transmuted into protecting government from exposure to
liability).
109. See supra notes 44, 48-49, 54-56 and accompanying text.
110. Feres v. United States, 340 U.S. 135, 144 (1950).
111. Id at 144.
112. Id at 145.
1982]
THEORIES OF RECOVERY FOR VETERANS
1115
The Court in Feres was assured that it had construed the FTCA
within the boundaries of the Act's purpose: to provide a remedy not
previously available to those wronged by the acts of government offidials.113 The legislative intent concerning such acts within the military
was unclear, but the Court was confident that its interpretation, if misguided, could easily be corrected by Congress. 14 In the thirty-two years
since the Feres decision, Congress has neither rejected nor accepted the
judicially created bar to litigation by military personnel under the
6
FTCA." t5 Thus, the Feres doctrine remains in effect today." 1
Subsequent to Feres, the Court incorporated "effect on military discipline" as a factor to be considered in disallowing tort claims for injuries
resulting from military commands.'1 7 In United States v. Brown, 118 the
Court explained that the Feres exception to the FTCA was based on
"[t]he peculiar and special relationship of the soldier to his superiors, the
effects of the maintenance of such suits on discipline, and the extreme
results that might obtain if suits . . . were allowed for negligent orders
given or negligent acts committed" by military personnel.1 9 Military
discipline was not considered in the particular claimant's case, however,
because he incurred his injury as a civilian no longer subject to such
20
discipline.'
The Brooks-Feres-Brown triad still controls the determination of
whether an injury is incident to service. Thus, the key to the successful
litigation of a tort claim is the servicemember's duty status at the time of
injury. The actual tort almost becomes irrelevant. If a servicemember
cannot get past the incident-to-service barrier, the only recourse remaining is through the VA and the benefits it awards. 12 1 To the detriment of
113. Id at 140. See I L. JAYSON, supra note 77, § 65.01, at 3-3; Rhodes, The Feres Doctrine After
Tweny-Fie Years, 18 A.F.L. REv. 24, 27-30 (1976).
114. See Feres v. United States, 340 U.S. 135, 138 (1950) ("[I]f we misinterpret the Act, at least
Congress possesses a ready remedy.").
115. Se 1 L. JAYSON, supra note 77, § 155.05. Congress's failure to abrogate the Ferer doctrine
has been read as "sub silentio" agreement with the holding offeres. See In re "Agent Orange" Prod.
Liab. Litig., 506 F. Supp. 762, 771, 773 & nn.16 & 17 (E.D.N.Y. 1980). 4ccord Jaffee v. United
States (Jaffee II), 663 F.2d 1226, 1237 (3d Cir. 1981) (en banc), cert. denied, 102 S.Ct. 2234 (1982)
(No. 81-1346).
116. See, e.g., Collins v. United States, 642 F.2d 217, 221-22 (7th Cir. 1981) (medical malpractice claim barred by Feres because Air Force cadet is member of military service); Woodside v.
United States, 606 F.2d 134, 140-42 (6th Cir. 1979) (wrongful death claim barred by Feres because
Air Force captain's on-leave, private flight instruction held incident to service). See also In re "Agent
Orange" Prod. Liab. Litig., 506 F. Supp. 762, 774 (E.D.N.Y. 1980) ("Right or wrong, the Supreme
Court's conclusion [in Feres] . .. remains the law of the land.').
117. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673 (1977); United States v.
Brown, 348 U.S. 110, 112 (1954).
118. 348 U.S. 110 (1954).
119. Id at 112.
120. Id For a discussion of differentiating in-service and post-discharge tortious acts, see infra
notes 209-12 and accompanying text.
121.
See supra notes 44-49 and accompanying text.
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injured servicemembers, in the thirty-two years since feres was decided,
courts have interpreted "incident to service" to encompass a wide range
of circumstances. 22 Application of the Feres doctrine often has produced results considered unfair in servicemembers' FTCA actions' 2 3which typically involve an injury-producing act unique to the claimant, 24 such as an automobile or other accident 25 or medical treatment' 26-but the courts in such cases have determined that they were
27
constrained by Feres nevertheless.
The Supreme Court recently reaffirmed Feres in Stencel Aero Engineering
122. See 1 L. JAYSON, supra note 77, § 155.02. See also Stencel Aero Eng'g Corp. v. United
States, 431 U.S. 666 (1977) (defendant manufacturing company's cross-claim against government
dismissed because plaintiff servicemember's claim against United States barred by Feres); In re
"Agent Orange" Prod. Liab. Litig., 506 F. Supp. 762 (E.D.N.Y. 1980) (defendant chemical companies' third-party actions against government dismissed because plaintiff servicemembers' claims
against United States would be barred by Feres). Compare Monaco v. United States, 661 F.2d 129,
133-34 (9th Cir. 1981) (Fetres bars daughter's recovery for birth defects allegedly resulting from
father's in-service radiation exposure), cert denied, 102 S. Ct. 2269 (1982) (No. 81-1658) and In re
"Agent Orange" Prod. Liab. Litig., 506 F. Supp. at 781 (Firesbars recovery for genetic damage and
birth defects of children born to herbicide- exposed veterans) with Hinkie v. United States, 524 F.
Supp. 277, 283-85 (E.D. Pa. 1981) (Fiers does not bar litigation by family members for injuries
allegedly derived from veteran's irradiation).
123. See, e.g., Monaco v. United States, 661 F.2d 129, 134 (9th Cir. 1981) (Feres bar particularly
disturbing when applied to claims of irradiated veteran's daughter), cert. denied, 102 S. Ct. 2269
(1982) (No. 81-1658); Everett v. United States, 492 F. Supp. 318, 322 (S.D. Ohio 1980) (Fiers and its
progeny "insulate [much) military activity from judicial review . . . despite inequities");
Schnurman v. United States, 490 F. Supp. 429, 438 (E.D. Va. 1980) (Feres bar unavoidable, despite
sympathy for plaintiff's "debilitating physical condition" from exposure to mustard gas); Schmid v.
Rumsfeld, 481 F. Supp. 19, 21-22 (N.D. Cal. 1979) (Feres applied, despite deplorable conduct of
commanding officers and deeply regrettable injuries incurred by Marine drug informant).
124. An event unique to the individual, or involving just a few individuals, with at least some
of the adverse or injurious consequences immediately apparent, is separate and distinct from an act
or program that involves a large number of potential claimants who do not experience any adverse
effect until sometime in the future, if at all. Arguably, the Fieres doctrine was never intended to
dispose fairly of claims in the latter group.
125. See, e.g., Parker v. United States, 611 F.2d 1007 (5th Cir. 1980) (off-duty serviceman killed
when civilian-owned, borrowed car he was driving was struck by military-owned, operated vehicle
on military reservation); Uptegrove v. United States, 600 F.2d 1248 (9th Cir. 1979) (on-leave serviceman, riding as military, space-available passenger, killed when Air Force jet crashed), cert. denied, 444 U.S. 1044 (1980).
126. See, e.g., Veillette v. United States, 615 F.2d 505 (9th Cir. 1980) (death of off-duty serviceman allegedly resulted from malpractice at Naval hospital, where he was taken after nonmilitary
accident and where civilians routinely were treated after accidents). For a comprehensive analysis
of cases illustrating both the Fertes and Brooks definitions of incident to service, see 1 L. JAYSON,
supra note 77, § 155.06-.08.
127. See, e.g., Kohn v. United States, 680 F.2d 922, 924-25 (2d Cir. 1982) ("Feres plainly bars"
claims for pain, suffering of serviceman intentionally shot to death by fellow soldier and claims by
parents for loss of deceased son's society, support); Broudy v. United States, 661 F.2d 125, 127-28
(9th Cir. 1981) (Feres doctrine "well-established," applied despite "compelling argument" to the
contrary); Hunt v. United States, 636 F.2d 580, 588-89 (D.C. Cir. 1980) (Fres clearly applies, although its theoretical bases remain subject to serious doubt); Peluso v. United States, 474 F.2d 605,
606 (3d Cir.) (Fertes controls, but reversal by Supreme Court would be welcome), cert. denied, 414
U.S. 879 (1973); In re "Agent Orange" Prod. Liab. Litig., 506 F. Supp. 762, 771 (E.D.N.Y. 1980)
(Fertes wisdom questionable, but "continued vitality is beyond dispute"). See also Note, The Federal
Tort ClaimsAct.- A Cause of Actionfor Servicemen, 14 VAL. U.L. REV. 527, 529 & n. 15 (1980) (labeling
Fertes doctrine enigmatic and confusing).
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THEORIES OF RECOVERY FOR VETERANS
1117
Corp. v. United States.128 The Court applied the doctrine to deny the
government's liability in the cross-claim of a manufacturing company
sued by a serviceman.1 29 While mentioning the theory of analogous liability, the Court focused on the other Feres factors as amplified by
Brown. first, the uniquely federal character of the relationship between
the government and military personnel, including the government's control over duty assignments; second, the substitute compensation program; and third, the special relationship between a soldier and superior
officers.130 If any one of these factors is "largely applicable," the Court
3
held that a claim should be barred.' '
Despite this apparent preclusion of "a bare 'incident of service'
test," 3 2 the lower courts rarely have employed the rigorous analysis developed in Stencel 133 Moreover, the courts have not examined whether
the primary purpose of the FTCA-to provide an opportunity to seek a
remedy where none exists-would be served by allowing a claim to go
forward.' 3 4 Thus, even when an injured servicemember may have no
alternative compensation, a court is likely to apply Feres and disallow
the claim.13 5 Although the Court in Stencel called for consideration of all
factors, the lower courts have viewed either the servicemember's status
36
at the time of injury or the effect on military discipline as dispositive. 1
The gap between the Court's determination of incidence to service
and the VA's application of service-connection principles 3 7 often leaves
128. 431 U.S. 666 (1977).
129. Id at 673-74. In Stence, an Air Force jet-fighter pilot was permanently disabled when his
aircraft's emergency ejection mechanism malfunctioned. He claimed negligence against the manufacturer and the United States, which had contracted and supplied specifications for the system.
Both claims were dismissed as barred by Feres. The manufacturer unsuccessfully appealed to both
the Eighth Circuit and the Supreme Court. Id at 668. "[T]he right of a third party to recover in an
indemnity action against the United States . . .must be held limited by the rationale of Feres
where the injured party is a serviceman." Id at 674. The Supreme Court has not again heard a
case in which incidence to service bars a direct claim by a member of the armed forces injured
while on active duty. See Rhodes, supra note 113, at 28.
130. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 672-73 (1977).
131. Id at 674.
132. See Hinkie v. United States, 524 F. Supp. 277, 282 (E.D. Pa. 1981).
133. Compare id (each Feres-Stencel factor evaluated for particular significance to claimants)
with Monaco v. United States, 661 F.2d 129 (9th Cir. 1981) (in-service, active-duty status ofveteran
claimant at time of original injury focused on even for disposition of derivative claims), cert. denied,
102 S. Ct. 2269 (1982) (No. 81-1658).
134. See supra notes 79-80 and accompanying text.
135. See Joseph v. United States, 505 F.2d 525, 526 (7th Cir. 1974). Plaintiff's flat-feet condition was undiagnosed during the Army induction physical and was allegedly aggravated by military duty to an extent that required discharge and eventually surgery. The VA denied benefits,
finding lack of service connection. The court denied recovery, finding the condition incident to
service and therefore barred by Feres. Id
136. See, e.g., Monaco v. United States, 661 F.2d 129, 132-33 (9th Cir. 1981), cert. denied, 102 S.
Ct. 2269 (1982) (No. 81-1658); Stanley v. CIA, 639 F.2d 1146, 1152 (5th Cir. 1981); Hunt v. United
States, 636 F.2d 580, 599 & n.51 (D.C. Cir. 1980); Crumpler v. United States, 495 F. Supp. 266, 270
(S.D.N.Y. 1980).
137. See supra notes 54-59 and accompanying text. For example, a veteran injured during
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the veteran without a remedy. If the veteran alleges that the injury is
related to military service, a court will accept the allegation at face
value, invoke the Fres doctrine, and bar the claim. A court's determination that an injury occurred incident to service, however, is not binding
on the VA, which conducts its own inquiry into whether an event that
occurred during military service triggered the condition complained of
by the veteran.
III.
ATTEMPTS TO FIND A JUDICIAL REMEDY: THEORIES
OF LITIGATION
In litigating claims for injuries allegedly resulting from exposure to
hazardous substances, servicemembers have asserted various theories of
government liability, each of which involves compound elements: first,
the type of tortious conduct, negligence versus an intentional tort; second, the act giving rise to the injury, the episode of exposure versus a
subsequent omission; third, the kind of relief requested, equitable relief
versus monetary damages; and fourth, the party to be held accountable,
an individual versus the United States.
Servicemembers have combined these elements into several typical
actions, including a claim asserted against an individual for negligence, 138 a constitutional claim asserted against the United States or
against individual government officials for the act of exposure, 139 a
claim seeking equitable relief from the United States, 14° and a claim
against the government for negligent failure to warn or to provide specific treatment. 4 1 Under various applications of the Fees doctrine,
courts have dismissed most of these claims. 142 After briefly discussing
treatment, care, or vocational rehabilitation at a VA or military hospital may allege service connection. See 38 U.S.C. § 351 (1976). Such an injury, if found to be causally connected to the treatment
or care, is thus service-connected for the VA but not incident to service under the judicially created
Feares doctrine of intramilitary immunity.
138. E.g., Lombard v. United States, 530 F. Supp. 918, 920 (D.D.C. 1981) (serviceman's claim
against federal government officials for negligently exposing him to radioactive materials), appeal
docketed, No. 81-2261 (D.C. Cir. Dec. 2, 1981).
139. E.g., Jaffee v. United States (Jaffee I), 592 F.2d 712, 714 (3d Cir.) (irradiated veteran's
claims against federal government for intentional conduct violating rights guaranteed under five
constitutional amendments), cert. denied, 441 U.S. 961 (1979); Coffey v. Department of Defense, 518
F. Supp. 726, 727 (D.D.C. 1981) (herbicide-exposed veteran's claims against former DOD and
Army Secretaries for intentional torts violating due process rights under fifth amendment).
140. See Jaffee v. United States (Jaffee 1), 592 F.2d 712, 719-20 (3d Cir.) (irradiated veterans'
class action claim against federal government for warning about hazards of radiation), cert. denedon
othergromun, 441 U.S. 961 (1979). Accord Kelly v. United States, 512 F. Supp. 356, 362 (E.D. Pa.
1981).
141. E.g., Broudy v. United States, 661 F.2d 125, 128 (9th Cir. 1981) (widow alleged negligent
failure of federal government to warn veteran about potential adverse effects of irradiation).
142. See, e.g., Jaffee v. United States (Jaffee I), 592 F.2d 712, 717 (3d Cir.) (Fresbars liability of
United States for unconstitutional tortious act of in-service exposure to radiation), cert, denied, 441
U.S. 961 (1979); Bailey v. DeQuevedo, 375 F.2d 72, 74 (3d Cir.) (Fresbars liability of individual
federal employees for common law negligence during service), cert. denied, 389 U.S. 923 (1967);
1982]
THEORIES OF RECOVERY FOR VETERANS
1119
the first three kinds of claims, this section of the Comment focuses on the
claim of a breach of the government's duty to warn about the potential
adverse effects of exposure.
A.
Negligence: Clains Against Individual Government Oftcials
A servicemember has never successfully held an individual military
officer or other government official-rather than the United States 4 3 accountable for negligence in an injury-producing event. Courts uniformly have barred such claims under the Feres doctrine. 1' In a case
stemming from an Army enlistee's allegations of medical malpractice,
the Court of Appeals for the Third Circuit discerned no difference between an action based on common law negligence and a claim under
the FTCA. 145 The court found the status of the parties to be dispositive:
an active-duty servicemember under military authority injured by other
servicemembers acting in the course of their official duties could not
maintain a cause of action.14 6 Referring to fact patterns and policy considerations similar to those present in the Feres triad, 14 7 the court held
that the individual tortfeasor was immune from liability. 148
In later cases, courts extended immunity under Fees to individuals
who were not servicemembers, such as FBI and CIA agents. 49 If the
negligence complained of by a servicemember occurred in a military
context, the government official allegedly responsible for the injury enjoyed absolute immunity. 150 Given the impregnability of the Feres doctrine in a military-related case under the FTCA in which the United
States is the named defendant, plaintiffs continue to face Feres as an
obstacle in any action asserting negligence of individual government officials. If a negligence claim involves activity of military service, plainThornwell v. United States, 471 F. Supp. 344, 348 (D.D.C. 1979) (Fires bars liability of individual
government officials for intentional, unconstitutional torts during service). C id at 353-54 (neither
federal government nor federal officials enjoy Fets immunity for intentional, unconstitutional tortious conduct continuing after serviceman's discharge).
143. The federal government enjoys absolute immunity, through application of the Ftes doctrine, from liability for negligence in claims made under the FTCA. See supra notes 116, 121-27 and
accompanying text.
144. Ste supra notes 123, 127 and accompanying text.
145. Se Bailey v. DeQuevedo, 375 F.2d 72, 73-74 (3d Cir. 1967). An Army enlisted man filed
separate claims against two Army doctors, alleging negligence in abdominal surgery and in failure
to take corrective action. He asserted that the latter omission necessitated removal of his kidney.
Id at 72-73.
146. Id at 74.
147. &e supra notes 120-21 and accompanying text.
148. Bailey v. DeQuevedo, 375 F.2d 72, 73-74 (3d Cir. 1967) (disposing of claims against physician charged with both negligent acts).
149. See Sigler v. LeVan, 485 F. Supp. 185, 191 (D. Md. 1980) (Fetres bars survivors' claim
against individual Army officers as well as FBI and CIA agents for injuries to former counterintelligence officer). Accord Hass v. United States, 518 F.2d 1138, 1143 (4th Cir. 1975) (Fetres bars liability of civilian employees of Marine Corps to injured serviceman).
150. See Sigler v. LeVan, 485 F. Supp. 185, 191 (D. Md. 1980).
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tiffs who are servicemembers or veterans should expect a court to hold
the individuals allegedly at fault absolutely immune from liability.
B.
ConstitutionalTorts
Logically, claims for intentional violations of constitutional rights in
intramilitary suits should fall outside the Fees bar, because the Court
originally developed the Feres doctrine in negligence actions against government officials. 5 1 The United States can be sued under the FTCA for
53
acts of common law negligence 5 2 that are not incident to service.
Arguably, negligent conduct is less offensive than intentional acts that
violate constitutional rights. Therefore, for courts not to recognize a
cause of action against either the individual or the United States for
constitutional torts seems inequitable. Logic and equity, however, have
not prevented courts from applying the Fees doctrine to constitutional
54
torts related to military service.
151. See supra notes 90-137 and accompanying text. The most recent Supreme Court case involving application of the Fees doctrine also concerned only negligence claims. Stencel Aero Eng'g
Corp. v. United States, 431 U.S. 666 (1977).
152. See supra notes 77-89 and accompanying text.
153. See supra text accompanying note 93.
154. See Sigler v. LeVan, 485 F. Supp. 185, 191 (D. Md. 1980) (incidence to service, rather
than legal theory or whether injuries occurred in combat, "triggers" application ofFerer). Cf. Misko
v. United States, 453 F. Supp. 513, 516 (D.D.C. 1978) (Feres considerations apply to fifth amendment claims), afdmem., 593 F.2d 1371 (D.C. Cir. 1979).
The courts have distinguished between conduct "recognized" as a constitutional violation and
conduct not yet accepted as a deprivation of a constitutional right. Thus, the Ninth Circuit concluded that in a case of alleged racial discrimination, Feres was not a bar to recovery. See Wallace v.
Chappell, 661 F.2d 729 (9th Cir. 1981). In Wallace, black enlisted men claimed that undesirable
duty assignments, exclusion from training programs, and abnormally severe punishment for minor
transgressions evidenced unlawful racial discrimination by their superior officers. The Ninth Circuit agreed that if the allegations were true, the conduct would be a violation of a constitutional
right to equal protection based on fifth amendment due process. Id. at 730 & n. 1, 737. The court
proceeded to hold that the constitutional claim was reviewable, notwithstanding circumstances incident to military service, and that the individual Naval officers would enjoy only qualified immunity for acts performed in good faith. Id at 734, 736. The court pointedly observed that "society's
interest in deterring unconstitutional conduct is furthered. . . by the possibility of personal liability for money damages." Id at 735. Specifically rejecting the Feres rationales as inapplicable to the
claim at issue, the court further suggestodd that absolute immunity for a " 'recognized' constitutional claim" would be appropriate only in special situations, such as combat or when a military
officer's act is analogous to that of a judge or prosecutor. Id. at 736 & nn.9-10. The Ninth Circuit
stressed, however, that its holding would apply only to a "recognized" constitutional violation and
not to a "traditional state law claim couched in constitutional rhetoric." Id at 737. In distinguishing constitutional claims from traditional tort claims, especially when all claims arise out of the
same injurious actions, the court followed the distinction set out in Calhoun v. United States, 475 F.
Supp. 1 (S.D. Cal. 1977), afd, 604 F.2d 647 (9th Cir. 1979), cert. denied, 444 U.S. 1078 (1980). In
Calhoun, a Marine Corps recruit lapsed into unconsciousness during an involuntary pugil stick
training competition. Three months later he died, and his survivors sued the United States and
individual officers, alleging wrongful death under the FTCA and deprivations of several constitutional rights. Id at 3. The district court was especially concerned that litigants not be allowed "to
superimpose" constitutional rights claims over the law of the FTCA. Id at 5. The court held that
all of the claims presented issues that would be resolved properly under the FTCA, despite the
court already having conferred Feres immunity on the United States as well as on the individual
defendants who were joined because of their rank in the chain of command. Id The court ex-
1982]
THEORIES OF RECOVERY FOR VETERANS
1121
1. Clains against individualgovernment oftials
A recent decision by the Court of Appeals for the Third Circuit,Jqfae
v.UnitedStates CJafee 11), 155 indicates that servicemember plaintiffs will
face the Feres obstacle if they assert claims of unconstitutional tortious
activity against individual government officials. 156 Responding to
claims by a veteran who was exposed to radiation in a nuclear testing
program, the court ruled that there was no cause of action for either
intentional, unconstitutional tortious conduct in an episode of irradiation or for the latent injuries resulting therefrom. 157
pressed assurance about limiting "recovery for alleged constitutional deprivations when the claim is
customarily recognized under existing bodies of state tort law or the Federal Tort Claims Act,
which incorporates state tort law." Id (footnote omitted). In Jaffee v. United States (Jaffee II), 663
F.2d 1226 (3d Cir.) (en banc), cert. denied, 102 S.Ct. 2234 (1982), the Third Circuit purported not to
reach the immunity issue, see infra note 177, finding no constitutional cause of action, see infia notes
157, 163-77 and accompanying text.
155. 663 F.2d 1226 (3d Cir. 1981) (en banc) (8-2), cert. denied, 102 S.Ct. 2234 (1982) (No. 811346). The protractedJafee litigation comprises several claims and dispositions. Nearly a year
after reargument, the Third Circuit finally issued its decision, id, reversing the prior ruling by a
three-judge panel. See Jaffee v. United States, 8 MIL. L. REP. (PUB. L. EDUC. INST.) 2235 (3d Cir.
Feb. 20, 1980); infra
note 156 and accompanying text. See a/so Jaffee v. United States (affee I), 592
F.2d 712, 719 (3d Cir.) (Count IV; claim for equitable relief against government not foreclosed by
Administrative Procedure Act's sovereign immunity provision, but claim for money damages for
unconstitutional torts of government officials during nuclear test does not come within sovereign
immunity waiver), cert. deniedon otherground, 441 U.S. 961 (on appeal of denial of followup medical
care), on remand, 468 F. Supp. 632 (D.N.J. 1979) (Counts I, II, and III; individual government
officials not liable for their alleged unconstitutional torts during nuclear test), afd,Ja¢ II, 663
F.2d at 1228 (no constitutional cause of action against individual military or civilian government
officials for intentional torts), cert. denied, 102 S.Ct. 2234 (1982) (No. 81-1346).
The twoJafeIIl decisions, 663 F.2d 1226 (3d Cir. 1981),rev'g on rehearing 8 MIL. L. REP. (PUB.L.
EDUC. INST.) 2235 (3d Cir. Feb. 20, 1980), are deserving of an exhaustive comparative analysis
because the earlier decision by the three-judge panel was on immunity grounds and the 1981 en
bane decision was based on a finding of no constitutional cause of action. Judge Higginbotham
joined in the opinion of the three-judge panel that held that Feres immunity would not extend to
constitutional rights violations by individual government officials, but subsequently wrote the en
bane opinion. For discussion of the originalJa € II, see Note, Goerment Immunity and iahit; 11
SETON HALL L. REv. 275 (1980); Note, Jaffee v. United States: Feres Doctrineat the Clif's Edge?, 42
U. Prrr. L. REv. 115 (1980). See also Stanley v. CIA, 639 F.2d 1146, 1159 (5th Cir. 1981) (citing
originalJa.fee II decision in finding that a covertly drugged serviceman had "at least a colorable
constitutional claim based on Biens').
156. The decision injafee II, although not binding on federal courts outside the Third Circuit,
shifts the balance against the veteran's favor. The Supreme Court has not decided-and has foregone the recent opportunity to decide- whether individual government officials can be held liable
for intentional, unconstitutional tortious conduct, that is incident to military service. Jaffee v.
United States (Jaffee II), 663 F.2d 1226, 1228 (3d Cir. 1981) (en bane), cert. denied, 102 S. Ct. 2234
(1982) (No. 81-1346). Judge Higginbotham based his en banc opinion on what he perceived to be
an "obligation to forecast or predict how the [Supreme] Court will decide troubling cases involving
new factual situations." He determined that the "hard policy choices already made by the Supreme
Court" in cases involving executive or military service immunity indicated "that a majority of the
justices would hold that plaintiffs have no cause of action [for unconstitutional torts of individual
government officials]." Id Two judges disagreed with the "Supreme Court forecast" approach. Id
at 1240 (Hunter, Aldisert, JJ., concurring). See Kelly v. United States, 512 F. Supp. 356, 362 (E.D.
Pa. 1981) (district court deferred decision of whether irradiated serviceman's constitutional tort
claims against individual government officers were valid pending rehearing ofJafee I).
157. Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1228 (3d Cir. 1981) (en banc),cert denied,
102 S. Ct. 2234 (1982) (No. 81-1346).
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Stanley Jaffee claimed that he was among a group of soldiers ordered
"to stand in a field without benefit of any protection against radiation"
during a 1953 atmospheric nuclear test in Nevada. 58 He alleged that
this order by government officials represented a knowing, deliberate,
and reckless disregard of the "grave risk of injury and death" to the test
participants. 159 Thus, Jaffee asserted that the government, as well as the
named and unnamed individual defendants- 6 0 -all officials of the
United States--deliberately violated rights guaranteed by five amendments to the Constitution. 16 Significantly, Jaffee's claims, styled as allegations of intentional, unconstitutional tortious conduct, had to be
62
raised directly under the Constitution rather than under the FTCA.1
The Third Circuit defined the claims as a putative "new cause of action under the Constitution."'16 3 Accordingly, the court analyzed the
three cases' 64 in which the Supreme Court had recognized a private
right of action for violations of constitutional rights by an individual
federal official, notwithstanding the absence of any statute conferring
such a right. Under these decisions, however, a constitutional cause of
action was not implied when one of two countervailing factors was present: existence of either an "alternative remedy. . . explicitly declared to
be a substitute for recovery under the Constitution and viewed as equally
effective"' 65 or "special factors counseling hesitation in the absence of
158. Id at 1229.
159. Id
160. When Jaffee first brought his claim, he could not name specifically any of the individuals
dened, 441
allegedly at fault. See Jaffee v. United States (Jaffee I), 592 F.2d 712, 714 (3d Cir.), cert.
U.S. 961 (1979). By the timejafee II finally was decided by the Third Circuit, Jaffee was able to
name 11 such individuals, but others remain unidentified. See Jaffee v. United States (Jaffee II),
663 F.2d 1226, 1226 (3d Cir. 1981) (en bane), ce. denied, 102 S.Ct. 2234 (1982) (No. 81-1346).
161. Jaffee claimed violations of rights guaranteed by the first, fourth, fifth, eighth, and ninth
amendments to the Constitution. He alleged that his exposure to radiation caused inoperable lymphatic cancer, diagnosed in 1977, and breast cancer, for which he had undergone surgery. See Jaffee
v. United States (Jaffee II), 663 F.2d 1226, 1229, 1248 (3d Cir. 1981), cert. denied, 102 S. Ct. 2234
(1982) (No. 81-1346); id, 468 F. Supp. 632, 633 (D.N.J. 1979).
162. Only certain kinds of intentional tort claims, none of them constitutional claims, may be
brought under the FTCA. See Jaffee v. United States (Jaffee 1), 592 F.2d 712, 716 n.6 (3d Cir.), cer.
denied, 441 U.S. 961 (1979); 28 U.S.C. § 2680(h) (1976); supra note 77. Moreover, Jaffee sought $13
million in compensatory and punitive damages. Jaffee v. United States (Jaffee II), 663 F.2d 1226,
denied, 102 S.Ct. 2234 (1982) (No. 81-1346). Punitive damages
1229 (3d Cir. 1981) (en banc), cert.
are not recoverable under the FTCA. See 28 U.S.C. § 2674 (1976).
163. Jaffee v. United States (Jaffee II), , 663 F.2d 1226, 1240 (3d Cir. 1981) (en banc), ce.
denied, 102 S.Ct. 2234 (1982) (No. 81-1346).
164. Carlson v. Green, 446 U.S. 14 (1980) (federal prison officials; eighth amendment); Davis
v. Passman, 442 U.S. 228 (1979) (U.S. Congressman; fifth amendment); Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (federal law enforcement officials; fourth amendment).
165. Carlson v. Green, 446 U.S. 14, 18-19 (1980) (emphasis added). The alternative remedy
comprises both an alternative compensation program, seeJaffee v. United States (Jaffee II), 663
F.2d 1226, 1236-37 (3d Cir. 1981) (en banc), cert. denied, 102 S.Ct. 2234 (1982) (No. 81-1346) and
alternative access to the federal courts. Nevertheless, "a cornerstone of Bihens is the strong federal
interest in providing a remedy in the federal courts for violations of the . . . Constitution."
Thornwell v. United States, 471 F. Supp. 344, 354 (D.D.C. 1979) (recognizing private right of
1982]
THEORIES OF RECOVERY FOR VETERANS
1123
affirmative action by Congress."1 66
First, the court injaqfee H placed "suits based on service injuries"
within the category involving special factors.1 6 7 The Feres principles
were cited by the court to demonstrate the unique relationship between
a servicemember and the government,1 68 notwithstanding the nonbattlefield, peacetime circumstances of Jaffee's injuries.1 69 Second, the
Third Circuit reinforced its decision not to find a cause of action by
relying on the alternative form of relief provided by the Veterans' Benefits Act.170 The court acknowledged that the FTCA did not contain a
congressional declaration that the VA benefits scheme was "a substitute
for a private right of action under the Constitution."' 17' Nevertheless,
Supreme Court interpretations of this administrative remedy and congressional reluctance to amend the FTCA were sufficient predicates for
the court to refuse to imply Jaffee's cause of action under the
Constitution. ,72
In order to conclude that no constitutional cause of action existed, the
Third Circuit addressed the question of Feres immunity as a "special
factor counseling hesitation" to finding such a cause of action. 173 The
court relied on the Feres-Stencd doctrine' 74 and the Supreme Court's recent reaffirmation of the deference due Congress and the executive in
military matters.' 75 These decisions, the court averred, counseled circumspection and restraint when the judiciary intervened in military affairs, especially those matters involving disciplinary concerns. 176 Thus,
action under fifth amendment for post-discharge claims of covertly drugged serviceman, because
FTCA never intended to be "exclusive remedy for tortious conduct of federal officials.").
166. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396
(1971).
167. Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1235 (3d Cir. 1981) (en banc), cert. denied,
102 S. Ct. 2234 (1982) (No. 81-1346).
168. Id at 1235.
169. Id at 1236.
170. Id See 38 U.S.C. §§ 101-5228 (1976 & Supp. III 1979).
171. Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1237 (3d Cir. 1981) (en banc), cert. denid,
102 S.Ct. 2234 (1982) (No. 81-1346).
172. Id at 1236-37.
173. Id at 1235-36. The court recognized that established official immunity doctrines alone,
including Frere, might not preclude implying a constitutional cause of action, id at 1236-38, see
supra notes 165-69 and accompanying text, and undertook an analysis of such doctrines to consider
their implications for a cause of action directly under the Constitution. Jaffee v. United States
(Jaffee I), 663 F.2d 1226, 1231-38 (3d Cir. 1981) (en banc), cert. denied, 102 S. Ct. 2234 (1982) (No.
81-1346). See also
Butz v. Economou, 438 U.S. 478, 506-508 (1978) (federal executive officials enjoy
only qualified immunity for unconstitutional acts, subject to exceptional circumstances); Scheuer v.
Rhodes, 416 U.S. 232, 247-48 (1974) (state executive officials and National Guard officers enjoy
only qualified immunity for constitutional violations, subject to reasonable good faith belief). Cf.
Nixon v. Fitzgerald, 102 S.Ct. 2690 (1982) (President accorded absolute immunity for official acts).
174. See supra notes 128-31 and accompanying text.
175. See Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1237 (3d Cir. 1981) (en banc), cert.
deni, 102 S.Ct. 2234 (1982) (No. 81-1346); supra note 93.
176. Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1237-38 (3d Cir. 1981) (en banc), cert.
dnied, 102 S.Ct. 2234 (1982) (No. 81-1346).
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the Third Circuit inJafee I- concluded that subjecting military officers
and civilian officials who oversee military operations to civil liability for
their decisions would be precisely the kind of excessive interference cau77
tioned against by the Supreme Court.1
In a lengthy, strongly worded dissent, two judges castigated the members of the majority and denounced their result as "radical totalitarianism." ' 178 The dissent contended that Jaffee's allegations, if proved,
would violate several human rights declarations, and it decried the military necessity rationale for immunity because it encouraged "unquestioned obedience" by soldiers.179 The dissent charged that "[t]he real
177. Id It is important to understand the court's approach inJa e IL In its original opinion,
see supra notes 155-56, the Third Circuit rendered its decision on grounds of immunity for government officials. Sitting en banc, however, the court's second and controlling opinion purportedly
did not reach the immunity issue, but turned instead on the negative finding of an implied constitutional right of action; thus, absent a recognized cause of action, see supra note 154, the immunity
question was moot. Nevertheless, the court discussed at length the decisions and rationales of Butz
v. Economou, 438 U.S. 478 (1978), and Scheuer v. Rhodes, 416 U.S. 232 (1974). Id In response to
a charge in the dissent that "this is an immunity decision masked as something else,"ja e II, 663
F.2d 1226, 1250 (Gibbons, Sloviter, JJ., dissenting) (footnote omitted), the court contended that its
failure to imply a constitutional cause of action did not implicitly establish absolute personal immunity for intramilitary, unconstitutional torts. Id at 1238. The Third Circuit reasoned that
henceforth Congress could create an effective statutory cause of action for such conduct. Id The
court implied that if it had decided the case on immunity grounds, Feres would have controlled,
and absolute immunity would have prevented recovery from the responsible government officials.
The court apparently reasoned that if it had extended this judicially created immunity, Congress
would deem it irrelevant to create causes of action for unconstitutional, intramilitary torts. Nevertheless, the Third Circuit could have recognized a cause of action and applied the qualified immunity doctrine, thereby allowing liability to flow to the government officials who acted without good
faith. If Congress created a cause of action against federal officials for conduct violative of constitutional rights, then the responsible individuals, even military officers, would arguably enjoy only
qualified immunity under Butz v. Economou, 438 U.S. 478 (1978). See Note, Intramih'taqy Immunity
and ConstitutionalTort, 80 MicH. L. REv. 312, 331-33 (1981) (military defendants sued for unconstitutional tortious acts should enjoy only qualified immunity). In fact, the Ninth Circuit has found
only qualified immunity-explicitly rejecting Feres absolute immunity-for a "recognized" constitutional violation by military officers. See supra note 154. Compare Wallace v. Chappell, 661 F.2d
729, 736 (9th Cir. 1981) (individual Naval officers have only qualified immunity for alleged acts of
racial discrimination violative of equal protection constitutional guarantees) and Thornwell v.
United States, 471 F. Supp. 344, 353 & n.12 (D.D.C. 1979) (individual federal officials and military
officers do not have absolute immunity for conduct violating constitutional rights of discharged
serviceman) with Jones v. Reagan, No. 79 C 2558 (N.D. Il1.Nov. 5, 1981) (available Feb. 5, 1982, on
LEXIS, Genfed library, Dist file) (individual federal officials and Army Reserve officers have immunity under Feres for alleged racially motivated acts violative of constitutional rights) and Misko
v. United States, 453 F. Supp. 513, 516 (D.D.C. 1978) (individual army medical officers entitled to
absolute immunity under Feres for alleged fifth amendment violations).
178. Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1250 (3d Cir. 1981) (Gibbons, Sloviter,
JJ., dissenting), cert. denied, 102 S. Ct. 2234 (1982) (No. 81-1346).
179. Id In an eloquent passage, Judge Gibbons evinced his distaste for the majority's result:
The Twentieth Century has witnessed time and again, in this country and elsewhere, the
fragility of those protections which the legal order affords against human rights violations.
One of those fragile protections is the admonitory law of intentional torts, designed to
require public accountability for individual conduct, official or private, going beyond the
bounds of social acceptability. Certainly the conduct charged in the complaint, if proved,
transgressed those bounds. Indeed the complaint alleges conduct which would violate the
Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Geneva Convention, the Declaration on the Protection of all Persons from
1982]
THEORIES OF RECOVERY FOR VETERANS
1125
but unarticulated reason for the result is that the availability of a private remedy for intentional torts will encourage public accountability of
the military, while foreclosing such a remedy will encourage concealment (the coverup principle). 1 8 0
The court inJaqfee I effectively created absolute intramilitary immunity for incident-to-service conduct that violates constitutional guarantees, despite its protestations to the contrary. 18 ' Therefore, there is now
virtually no effective deterrent either to the implementation of an egreBeing Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Nuremberg Code. The international consensus against involuntary
human experimentation is clear. A fortior the conduct charged, if it occurred, was in
violation of the Constitution and laws of the United States and of the state where it occurred or where its effects were felt. That any judicial tribunal in the world, in the last
fifth of this dismal century, would choose to place a class of persons outside the protection
against human rights violations provided by the admonitory law of intentional torts is
surprising. That it should be an American court will dismay persons the world over concerned with human rights and will embarrass our Government.
Id at 1249-50 (footnotes omitted).
180. Id at 1250. Serious allegations of concealment and coverup by the military continue to
be made, frequently long after the events have occurred. See Severo, Air Force Report on Vietnam War
Sa.ys Laos Was Sretl'y Sprayed, N.Y. Times, Jan. 25, 1982, at A1, col. 3 (late city ed.); Kaiser, Faliatd
Reports on Vieicong Strength Laid to US Commander, Wash. Post, Jan. 21, 1982, at A15, col. 1.
181. Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1238 (3d Cir. 1981) (en banc), cet dmied,
102 S. Ct. 2234 (1982) (No. 81-1346). The majority's description of its decision as merely not finding a new cause of action was labeled "disingenuous" by the dissent, and its use of prior immunity
cases was offered as evidence exposing "the plain fact" that the ruling was "an immunity decision
masked as something else." Id at 1250 (Gibbons, Sloviter, JJ., dissenting) (footnote omitted).
The court has made possible the use of a "Nuremberg defense," a kind of immunity defense, by
alleged intentional tortfeasors. This defense, named after the International Tribunal at Nirnberg
(Nuremberg), Germany that tried Nazis accused of war crimes at the end of the Second World
War, asserts that the individual raising the defense should be held immune from responsibility for
actions carried out under orders of a commanding officer. The International Tribunal's Charter
specifically provided that such a defense could be considered only to mitigate punishment, not to
absolve responsibility. See The Niirnberg Trial 1946, 6 F.R.D. 69, 110 (1946).
Much has been made of the fact that Justice Jackson had recently returned from representing the
United States at the Tribunal when he wrote the opinion of the Court in Feres v. United States, 340
U.S. 135 (1950). The dissent inJaee II stated that Justice Jackson never intended Feres to bar
individual responsibility for intentional, unconstitutional tortious conduct. Jaffee v. United States
(Jaffee II), 663 F.2d 1226, 1257-58 (3d Cir. 1981) (Gibbons, Sloviter, JJ., dissenting), cert. denied, 102
S. Ct. 2234 (1982) (No. 81-1346). Indeed, it would have been quite surprising forJustice Jackson to
have found absolute immunity for unconstitutional tortious conduct after prosecuting war
criminals raising the same defense. See Brief for Plaintiff-Appellant at 18-20, Broudy v. United
States, 661 F.2d 125 (9th Cir. 1981) (arguing that Fers was never intended to bar the kind of claims
presented by irradiated servicemembers, because of human-subject experimentation element analogous to heinous Nazi experiments).
In Feres, Justice Jackson singled out a military officer's liability for negligence, but, by omission,
left open the possibility of liability for intentional torts. 340 U.S. at 141. He cited Dinsman v.
Wilkes, 53 U.S. (12 How.) 390 (1852), in which a Navy captain punished a marine who refused to
carry out an order because his enlistment had expired. The Court stated that the officer could be
liable if a jury found that the intent in inflicting punishment was based on vindictiveness or malice.
Id at 404.
For a discussion of immunity in various claims against individual military defendants, see
Zillman, Intramilitaqy Tort Law: Incidence to Swrice Meets Constitutional Tort, 60 N.C.L. REv. 489
(1982). The commentator, a major in the Judge Advocate General's Corps, U.S. Army Reserve,
argues that individual servicemembers, including officers, should be immune from suit except when
the claim results from "acts wholly unrelated to duty." Id. at 536.
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 31:1095
gious policy or program or to a singular, pernicious act by an individual
officer or government agent.1 82 The result injajie II bars accountability of military personnel for their acts, no matter how reprehensible.
2. Clains against the United States
Regardless of the propriety of the court's holding inJafe II, individual liability is impractical for those plaintiffs under discussion in this
Comment. When the effects of tortious conduct are not manifest until
long after an initiating event, the responsible individuals may be unavailable.183 Moreover, the limited resources of the individual will restrict the amount of monetary damages. Public policy dictates a
different course of action. The monetary loss from satisfying a claim
should be distributed among all who benefited by the activity that gave
rise to the injury. 18 4 The United States, therefore, should be accountable for the acts of its officers in implementing national defense programs. 185 Thus, an injured servicemember should be able to seek
restitution from the federal government.
Nevertheless, inJafee 1186 the Third Circuit decided that the United
States was immune from liability for intentional, constitutional torts
182. The district court, in deciding that Jaffee's constitutional tort claims were barred by Feres
immunity, astutely observed how the application of Feres may produce unjust results. At oral argument, the following colloquy occurred: "The Court: [A]s I read the law, it doesn't matter if they
stood up there and said, 'one, two, three, left, right, left,' and marched them over a cliff ....
You'd be protected under Ferts. . . ? Mr. Landman: Yes, your Honor." Jaffee v. United States,
468 F. Supp. 632, 635 (D.N.J. 1979) (quoting oral argument) (brackets and ellipses in original),
aft'd, 663 F.2d 1226 (3d Cir. 1981) (en banc), cert. denied, 102 S. Ct. 2234 (1982) (No. 81-1346).
As a result of the decision inJaFee .I,servicemembers have again been asked to accept, without
complaint, the injurious consequences of arbitrary or outrageous conduct. Moreover, the decision
has additional, disturbing implications.
[The] logic of the majority's decision will bar actions by civilians for intentional torts
committed by the military. That result is a prospect which should send chills up the spine
of anyone interested in personal liberties, for there is no way to distinguish between the
intentional tort of involuntary human experimentation and intentional torts directed at
areas of privacy or expression.
Jaffee v. United States (Jaffee II), 663 F.2d 1226, 1250 (3d Cir. 1981) (Gibbons, Sloviter, JJ., dissenting), cert. denied, 102 S. Ct. 2234 (1982) (No. 81-1346).
183. See supra note 160 and accompanying text.
184. In Owen v. City of Independence, 445 U.S. 622, 638 (1980), the Supreme Court set the
standard for local government liability by distinguishing tortious conduct that occurs when individuals implement or execute a public policy or program. In such a case, the reasonable course is to
distribute the loss to the public, "which enjoys the benefits of the government's activities, and...
which is ultimately responsible for its administration." Id at 655 & n.39. Noting that concepts of
governmental responsibility should reflect the past century's evolution in doctrines of tort law, the
Court observed, "No longer is individual 'blameworthiness' the acid test of liability; the principle of
equitable loss-spreading has joined fault as a factor in distributing the costs of official misconduct."
Id at 657.
185. Arguably, the wartime combat, foreign country, and discretionary function exceptions to
the FTCA, 28 U.S.C. § 2680(a), (j)-(k) (1976), would limit federal liability for military activities.
See Note, supra note 101, at 1121-26 (arguing that discretionary function exception adequately
protects United States for intramilitary torts).
186. Jaffee v. United States (Jaffee 1), 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961 (1979).
1982]
THEORIES OF RECOVERY FOR VETERANS
1127
committed by government agents.' 87 Relying on the Feres doctrine, 88
the court chose not to reconsider the doctrine of sovereign immunity,
even if the alleged conduct was a deliberate military order. 8 9 Thus, the
holding is significant for its application of Feres outside the FTCA. In
addition, the court refused to find a deliberate violation of a constitutional right'90 because the models for such a cause of action, Bivens v.Six
Unknown Named Agents of FederalBureau of Narcotics191 and Butz v. Economou, 192 named individual federal officers, rather than the United States,
as defendants.
19 3
C
Equity." Claims Against the United States
The court injaeeI acknowledged that at least equitable relief should
be available to servicemembers exposed to hazardous substances during
military duty. 94 Because the Administrative Procedure Act is a statutory waiver of sovereign immunity when nonmonetary relief is requested, 19 5 the court recognized the United States as the appropriate
defendant in an action in equity.196 Further, the court determined that
a warning about the inherent risk of exposure to radiation was both
equitable and within the APA category of relief.' 9 7 Moreover, the court
imputed to the Army an awareness that witnesses of atomic blasts "were
likely to suffer physically from the exposure."' 98 The Army, therefore,
187. Jaffee's claims were based on tortious violations of constitutional rights. He sought equitable relief and monetary damages for three claims. Id at 714, 717. See supra notes 155-57, 162;
in%#anotes 196-97 and accompanying text.
188. Jaffee v. United States (Jaffee 1), 592 F.2d 712, 716 (3d Cir.), ert. denied, 441 U.S. 961
(1979).
189. Id at 717. The Third Circuit found further support for its ruling in United States v.
Testan, 424 U.S. 392 (1976). In Testan, the Supreme Court reiterated that when the United States is
the defendant, "a right to money damages requires a waiver of sovereign immunity"; a violation of
substantive rights does not necessarily waive sovereign immunity so that money damages become
available as a remedy. Id at 400-01. The FTCA is a waiver of sovereign immunity, but the Feres
doctrine is an exception to that waiver. See supra notes 77-80, 93 and accompanying text.
190. Jaffee v. United States (Jaffee I), 592 F.2d 712, 717 (3d Cir.), cert. aenied, 441 U.S. 961
(1979).
191.
192.
193.
403 U.S. 388 (1971).
438 U.S. 478 (1978).
Jaffee v. United States (Jaffee 1),592 F.2d 712, 717 (3d Cir.), cert.
den'ed, 441 U.S. 961
(1979). Eventually, the Third Circuit ruled on the accountability of individuals for intentional
constitutional torts committed during military-related activities. See supra notes 155-57 and accompanying text.
194. Jaffee v. United States (Jaffee 1), 592 F.2d 712, 719 (3d Cir.), cerl. denied, 441 U.S. 961
(1979).
195. See 5 U.S.C. § 702 (1976).
196.
See supra note 155 and accompanying text. See also 25 N.Y.L. SCH. L. REv. 377, 391-95 &
nn.106-25 (1979) (discussing mandated equitable relie).
197. Jaffee v. United States (Jaffee 1), 592 F.2d 712, 720 (3d Cir.), cert. denied on othergrounde, 441
U.S. 961 (1979).
198. Id Eventually, Jaffee and the irradiated veterans he represented were advised to contact
the Defense Nuclear Agency (DNA) and, if concerned about adverse health effects, to consult a
physician or contact a VA hospital. They were told that levels of exposure during atmospheric
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 3 1:1095
was held responsible for issuing a warning to the class of irradiated servicemembers on whose behalf Jaffee had brought the claim. 199
Although such a warning was certainly valuable, it was inordinately
delayed.200 Indeed, the Third Circuit's decision provided to those who
were exposed no satisfaction for the warning withheld during the years
intervening between the episode of irradiation and notice of the potential danger .2 0° Therefore, for a servicemember injured by the lack of a
warning, the only redress is to seek damages for the tortious failure to
warn.
D.
Negligence.: Claims Against the United Statesfor Failure to Warn
The cases in which a hazard-exposed veteran has asserted injury from
the government's failure to warn of possible adverse effects are distinguished by whether the court has recognized a cause of action.2 0 2 Courts
that have found a cause of action have acknowledged the possibility that
2 03
the tort was not incident to service because it occurred post-discharge.
Therefore, the Feres bar does not apply; the government is accountable
under the FTCA, and the plaintiff may proceed with the claim. The
former servicemember need only show the elements of the tort in order
to prevail.2 0 4 Thus, the approach of the courts has been to question
nuclear tests were believed to be low, that scientists generally assumed even low levels of exposure
presented some risk to health, and that the magnitude of the risk was a matter of disagreement. See
Jaffee v. United States, No. 78-1014 (D.N.J. Sept. 14, 1979) (order dismissing action for equitable
relief, subsequent to agreement by parties regarding the warning to be issued).
199. Jaffee v. United States (Jaffee I), 592 F.2d 712, 720 (3d Cir.), cert. deniedon othergrounds, 441
U.S. 961 (1979).
21'0. For soldiers exposed to nuclear radiation, "each day of delay can reasonably be assumed
to bring irreversible and perhaps fatal consequences." Id at 720. Unfortunately, there is no guarantee for servicemembers that at least equitable relief in the nature of a warning will be granted.
See Punnett v. Carter, 621 F.2d 578, 580 n.3, 587 (3d Cir. 1980) (United States not required to issue
preliminary injunctive warning regarding mutagenic effects of radiation because no evidence that
risk of such effect was greater to irradiated veteran-plaintiffs than to population in general).
201. One commentator has suggested that congressional action is required to create a remedy,
preferable to that of a warning about potential adverse consequences, for irradiated veterans. See
25 N.Y.L. SCH. L. REV. 377, 394-95 & n.126 (1979). This is certainly true for the act and effects of
the initial exposure. Yet, as the commentator recognized, finally receiving a warning will hardly
make Jaffee or his fellow soldiers whole. Id at 393. A legislative remedy, however, should contemplate the injury resulting from the withholding of the warning during the intervening years. See
supra note 76.
202. See, e.g., Broudy v. United States, 661 F.2d 125 (9th Cir. 1981) (recognizing possibility of a
claim not barred by Feres); Kelly v. United States, 512 F. Supp. 356 (E.D. Pa. 1981) (foreclosing
any post-discharge claim because barred by Feres).
203. See infla notes 245-46 and accompanying text.
204. The veteran who successfully persuades a court to recognize post-discharge failure to
warn as a cause of action still confronts difficult issues of proof. In addition to proving the government's duty to warn, the veteran must establish the other elements of a negligence cause of action:
breach of the duty, injury, and causation. See W. PROSSER, supra note 89, § 30. To establish the
government's breach of its duty to warn, a plaintiff must define precisely-even in the complaintthe warning that should have been given. If scientific research has not demonstrated a causal
relationship between the alleged injury and exposure to a hazardous substance, a court may be
unwilling to find the government liable for the failure to provide a warning about potential harm
1982]
THEORIES OF RECOVERY FOR VETERANS
1129
when, not if, the tortious act occurred. The threshold difficulty to be
or injury. Compare Punnett v. Carter, 621 F.2d 578, 588 (3d Cir. 1980) (United States not obligated
to provide preliminary injunctive relief by warning irradiated veterans of potential mutagenic defects) with Johnsrud v. Carter, 620 F.2d 29, 30 (3d Cir. 1980) (United States must warn residents of
Three Mile Island of increased health risks resulting from exposure to radiation released from nuclear-powered electrical generating plant) and Jaffee v. United States (Jaffee i), 592 F.2d 712, 720
(3d Cir.) (government must warn irradiated veterans of potential, general somatic effects of exposure to nuclear blasts), cert. deniedon other ground, 441 U.S. 961 (1979). The plaintiff's allegation of
injury, therefore, should be worded broadly to encompass information regarding the general rather
than the specific effects of exposure to a hazardous substance. Even if it cannot be proven that a
specific disease or condition is causally connected to an incident of exposure, the government still
may have had a duty to warn veterans that exposure placed them at risk of potential, albeit imprecisely known, harm.
Proving the third and fourth elements of the tort-that an injury occurred and that the government's failure to warn was the direct cause of the injury-is more difficult than establishing the
legal duty and the failure to act. The relevant injury in cases involving hazard-exposed veterans
alleging a post-discharge failure to warn is not the initial harm of exposure, but is, rather, the
aggravation or continuation of a condition that has resulted from the initial exposure. See In re
"Agent Orange" Prod: Liab. Litig., 506 F. Supp. 762, 777 (E.D.N.Y. 1980) (herbicide-exposed veterans alleged injury in being deprived of information that would have allowed them to seek more
frequent medical examination). Thus, the veteran with a disease allegedly related to exposure must
substantiate three points to prove the elements of negligent failure to warn: first, that he was exposed; second, that the exposure caused the injury; and third, that had an adequate warning been
given, he would have obtained ameliorative medical treatment.
Each of these points involves difficult problems of proof. For example, accurate records of which
servicemembers were exposed to radiation or herbicides are virtually nonexistent. See supra notes
18-19, 38 and accompanying text. Even if exposed military personnel are identifiable, an accurate
determination of the level of exposure is usually not possible. See supra notes 16-17 and accompanying text. Presumptions concerning certain duty assignments and exposure, developed in conjunction with recently enacted health care provisions for irradiated and herbicide-exposed
servicemembers, could be helpful if applied to establishing incidents and extent of exposure. See
supra notes 71-75 and accompanying text. Nevertheless, the science of epidemiology is not advanced
with regard to long-term health effects of exposure to hazardous substances. Medical opinions are,
therefore, speculative as to what conditions could have been prevented by timely treatment. See
supra note 3. The veteran thus faces complicated problems of discovery as well as disputes and
uncertainty regarding scientific and medical evidence. See Henderson, Coping with the Time Dimension in Ptodurts Lability, 69 CAL. L. REv. 919 (1981); Comment, supra note 3; Comment, supra note
13; Note, supra note 2. The problems of proof highlight the fundamental difficulty confronting
veterans attempting to use the legal system to find a remedy for their allegedly service-connected
diseases: tort law has failed to evolve as rapidly as the technologies that produce new and insidious
sources of military-related injury.
The viability of a negligence claim under the FTCA is also dependent on a two-year statute of
limitations. See 28 U.S.C. § 2401(b) (1976). A claim accrues under the FTCA when a person becomes aware of the existence and cause of his injury, not at the time when he discovers that the
circumstances of the injury may constitute negligence. See Kubrick v. United States, 444 U.S. 111,
122-23 (1979) (veteran's claim for malpractice by VA doctors time-barred). Therefore, the individual who finally is warned about adverse consequences must question why he was not informed at an
earlier date and then must act on his legal claim within two years. A prospective plaintiff who has
facts about his injury should protect himself by seeking medical and legal advice; neither lack of
advice nor erroneous advice is a basis for delaying accrual of a claim. Id at 123-24. The ruling in
Kubnck apparently would apply to two categories of servicemembers who were exposed to a hazardous substance: those informed only of the exposure and those informed that they are at risk of
adverse consequences from some incident of exposure. Se Schnurman v. United States, 490 F.
Supp. 429,435 (E.D. Va. 1980) (because physician advised plaintiff of relationship between diseases
and exposure to toxic gas, accrual of cause of action not dependent on government's confirming
kind of substance used in experiment). The ruling in Kubrick apparently also would apply to each of
three kinds of claims: negligence or intent in the initial exposure and negligence in the failure to
warn of adverse consequences. The first two, if not time-barred, would be barred by application of
the Feres doctrine. SeeSweet v. United States, 528 F. Supp. 1068, 1070 (D.S.D. 1981) (FTCA
statute of limitations and judicially created exception to FTCA both bar recovery for injuries result-
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 31:1095
overcome by the injured servicemember is that created by the Feres doctrine: the veteran must demonstrate that a separate omission occurred
after the servicemember regained civilian status.
1. Thornwell: a modelfor a separate,post-discharge tort
The key decision for the failure to warn a former servicemember is
Thomwell v. UnitedStates.205 In Thomwell, an Army enlistee and nonconsenting subject in covert drug experiments complained that his participation resulted in a seventeen-year history of "serious mental illness and
physical pain. ' 20 6 Among his allegations, Thornwell claimed that the
government was negligent, subsequent to his release from military service, in failing to examine and treat him for the consequences of the drug
20 7
experimentation.
The District Court for the District of Columbia recognized
Thornwell's claim of a post-discharge negligent omission. The claim
was not barred by Feres because the conduct complained of was distinct
from the intentional drugging of the plaintiff while he was on active
military duty.20 8 In reaching this conclusion, the court distinguished the
three kinds of cases involving post-discharge negligence.2 0 9 In the first
kind of case, government officials commit two acts of negligence involving the same individual; both acts are related to the same in-service
event, but one occurs during and the other occurs after military service.2 10 In the second kind of case, government officials commit one neging from drug experimentation); Schnurman v. United States, 490 F. Supp. 429, 435 (E.D. Va.
1980) (Kubrick and Fres both bar recovery for initial exposure to mustard gas). For a discussion of
the statute of limitations in a case involving a hazardous substance, see Johns-Manville Sales Corp.,
No. 79-01337, slip op. at 2-3 (D.C. Cir. July 30, 1982) (manifestation of one disease related to
exposure to asbestos triggers running of statute of limitations for that disease only, not for "separate, distinct, and later-manifested diseases").
205. 471 F. Supp. 344 (D.D.C. 1979).
206. Id at 346. Thornwell was imprisoned pending an Army investigation of the theft of classified documents. The conditions of his incarceration included confinement in a small, windowless
room for a period of months, deprivation of sleep and toilet facilities, interrogation for up to 70
hours without rest, physical abuse, threats on his life, and verbal abuse, including" 'racial slurs and
accusations of sexual impropriety.'" Id
207. Id at 347. Thornwell also alleged violations of his due process rights, including the right
to privacy; cruel and unusual punishment; assault and battery; intentional infliction of emotional
distress; and statutory violations of his civil rights. Three of the eight counts in his complaint
involved post-discharge conduct by the government. Id at 349.
208. Id at 345, 349, 352.
209. Id at 352.
210. A typical example, cited by the court in Thornwtl, id, is Hungerford v. United States, 192
F. Supp. 581 (N.D. Cal. 1961), rev'don otherground, 307 F.2d 99 (9th Cir. 1962). The plaintiff was
injured in combat and thereafter suffered blackouts. He was treated in military hospitals and, after
discharge, at a VA hospital. In both cases, doctors told him he had psychiatric problems rather
than organic injuries. Eventually, doctors at a state hospital discovered that Hungerford's condition resulted from an organic brain injury of traumatic origin. In his complaint, Hungerford alleged that the Army and VA doctors were negligent in their examination, diagnosis, and treatment.
The court defined the conduct of the VA physicians as a separate tort, although the alleged negligence caused "an unnecessary continuation" of Hungerford's in-service injury. Thus, neither the
1982]
THEORIES OF RECOVERY FOR VETERANS
1131
ligent act while the individual is in military service, but the effect
continues after the servicemember is discharged. 2 1' In the third situation, government officials commit two different acts, one during and one
after military service, both involving the same individual; the first may
be intentional, but the second is a negligent failure to advise a servicemember about the "dire consequences" that will result from the ini2 2
tial wrong. 1
The plaintiff in Thomwell alleged the kind and sequence of torts of the
third situation: an intentional tort in the in-service drug experimentation program and negligence in the post-discharge failure to provide follow-up care. 2t 3 As such, Thornwell's allegation of negligence was valid,
combat or the foreign country exceptions of the FTCA nor the Feres doctrine applied. Id at 583-84.
A slightly different example is presented in United States v. Brown, 348 U.S. 110 (1954), also
involving allegations of negligence in post-service treatment at a VA hospital. Brown had injured
his knee while he was on active military duty. He claimed that a defective tourniquet used during
an operation on his left knee caused permanent nerve damage to his leg. Although the surgery
would not have been required but for the in-service injury, the Court found that the negligence
alleged in the operation was distinct and unrelated to military service. Thus, the claim was not
Feres-barred. Id at 111-12. See also Kohn v. United States, 680 F.2d 922, 926 (2d Cir. 1982) (Feres
no bar to parents' claim for injuries stemming directly from but occurring after son's in-service
death).
211. The typical example is Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949) (negligence
during in-service surgery caused injuries not discovered until after serviceman was discharged), afd
sub nora. Feres v. United States, 340 U.S. 135 (1950). Seesupra note 100 and accompanying text. See
also Henning v. United States, 446 F.2d 774, 776-78 (3d Cir. 1971) (negligent in-service misreading
of X ray was basis for failure to advise veteran of tubercular condition), cert. denied, 404 U.S. 1016
(1972); Wisniewski v. United States, 416 F. Supp. 599, 600-01 (E.D. Wis. 1976) (pre-discharge physical exams were basis for tort of medical malpractice, were incident to service, and thus recovery
was precluded for claim of failure to advise veteran of test results).
212. The typical example, relied on by the court in Thornwell v. United States, 471 F. Supp.
344, 350-52 (D.D.C. 1979), is Schwartz v. United States, 230 F. Supp. 536 (E.D. Pa. 1964). While
Schwartz was on active duty, he was treated for sinusitis by naval hospital personnel who inserted a
radioactive contrast dye into his sinus cavity prior to taking X rays. After he received a medical
discharge, Schwartz sought followup care from a VA hospital. He experienced pain and displayed
increasingly severe symptoms, but VA physicians failed to review his records thoroughly or to diagnose correctly the source of his difficulties. In one year alone, he saw the same doctor 36 times.
Finally, 11 years after the dye was inserted, it began to drain from the cavity of a tooth extracted
during a routine dental check-up. The dye was a dangerous drug, and determined to be the cause
of cancer requiring radical surgery to remove much of the tissue, including the eye, on the left side
of Schwartz's face. The court found that the original use of the drug was distinct from the postservice negligent treatment. Moreover, the failure to warn Schwartz constituted separate postdischarge tortious conduct. Thus, the United States was accountable under the FTCA. Because
the carcinogenic properties of the drug were confirmed in the 1940's, the court noted that government doctors should have been cognizant of the drug's dangers. Id at 540. The court observed:
The Government should have reviewed the records of all patients to whom [the drug] had
been given and warned them of the danger of its retention in their bodies. Accordingly,
even if the plaintiff had never returned to a Government physician after his discharge
from military service, there was a duty resting on the Government to follow up those cases
-The negligence here ir not in its installation,
in which [the drug] had been installed ....
but rather tn not having ajinmativeOy sought out those who had been endangered aler there was
knowledge ofthe danger in order to warn them that i the supposedl' innocent treatment there had now
een found to lurk the risk ofdevastatinrg nju7.
Id at 540 (emphases added).
213. Thornwell v. United States 471 F. Supp. 344, 351 (D.D.C. 1979).
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 31:1095
even though the tort was an "aggravation of a previous, albeit immunized, wrong.
'21 4
The court discerned that in the third kind of case, although the two
acts were related, the post-discharge negligence could be considered an
act wholly separate from the intentional, in-service tort. 21 5 The court's
emphasis on the distinction between an intentional act occurring during
service and a negligent one occurring after discharge 2 16 implies that the
theory of separate torts is applicable only when the conduct at issue can
be clearly dissociated into those two distinct kinds of acts, carried out in
that particular sequence.2 17 The court suggested that if the defendant,
the United States, could establish that the initial wrong was not an intentional tort, then the later act of negligence would be within Feres
immunity.2 18 A showing that the first, in-service act was negligent would
indicate that the tortious conduct had continued from the period of military service through discharge to the time when the plaintiff, as a civilian, discovered and complained of the injury. 219 This is the second kind
of situation noted by the court in Thomwel. 220 Under Feres, the United
States would not then be liable.
Significantly, the court developed its analysis of what constitutes a
separate, post-discharge tort in the context of a claim for failure to examine and treat a former servicemember for the adverse consequences of
an in-service tort.22 1 This claim, however, falls within the broader
Thomwell category of "dire consequences" flowing from an initial
wrong.2 22 Therefore, courts have had no difficulty using the Thomwell
model to reach decisions in cases in which plaintiffs have asserted a failure to warn or have made such a claim in conjunction with claims of
other post-discharge negligence. 223 Such applications were appropriate.
By relying on a literal interpretation of the third situation in the
Thomwell model, however, the courts have allowed recovery only if the
in-service tort was intentional and the post-discharge tort was
2 24
negligent.
214. Id
215. Id at 352.
216. Id
217.
218.
See infra notes 226-61 and accompanying text.
Thornwell v. United States, 471 F. Supp. 344, 352 (D.D.C. 1979).
219.
Id
220.
221.
222.
See supra note 211 and accompanying text.
Thomwell v. United States, 471 F. Supp, 344, 349 (D.D.C. 1979).
Id at 352.
223. See Broudy v. United States, 661 F.2d 125, 127 (9th Cir. 1981) (failure to warn, monitor,
and treat after exposure to radiation); Stanley v. CIA, 639 F.2d 1146, 1149 (5th Cir. 1981) (failure
to debrief and monitor after LSD tests); Schnurman v. United States, 490 F. Supp. 429, 430 (E.D.
Va. 1980) (failure to warn of potential risk and to provide followup care after exposure to mustard
gas).
224.
See infra notes 226-61 and accompanying text.
1982]
THEORIES OF RECOVERY FOR VETERANS
1133
By focusing on a requirement of intentional and negligent patterns of
conduct-in that particular sequence-the Thomwell test has shifted attention away from analysis of the precise conduct at issue. The administration of untested drugs, whether intentional or negligent, is simply not
the same act as subsequently failing to provide treatment, even if the
omission is also intentional or negligent. 225 Although the first act may
necessitate the second, the tortfeasor's liability for the one is independent of his liability for the other. If both acts involved a civilian, the
homwe/l scheme would, of course, be irrelevant. The liability of the
United States would be based on an independent evaluation of each act,
not on the particular kind and sequence of the two tortious acts at issue;
the government could be liable for one but not the other, depending on
the elements of a specific tort being satisfied.
2. Interpretationsof "separate" versus "continuing" tort
In determining whether a separate tort occurred after a servicemember's discharge, several courts have relied on the Thornwell
226
a
model concerning the kind and sequence of torts. In Stanley v. CIA,
veteran claimed that the government was negligent for failing to debrief
and monitor him after he was administered LSD in the service as part of
a covert military experiment. 22 7 The Fifth Circuit found that the plaintiff "failed to allege an intentional tort committed while he was in the
service. '228 Thus, the Thomwell theory of separate torts was inapplicable, and under Feres the government agency was immune from liability
229
for its omissions.
In Lombardv. UnitedStates,230 the District Court for the District of Columbia dismissed a veteran's claim against the government for failure to
warn him, after his discharge, of the "possibility and extent" of injuries
225.
If the later tortious act were intentional, the injured veteran would be confronted with a
different set of problems in trying to hold the United States to account. See supra notes 183-193 and
accompanying text. See also Kohn v. United States, 680 F.2d 922, 924, 926 (2d Cir. 1982) (Fees
does not preclude recovery for post-service negligence, including tortious failure to act, and intentional torts when conduct is related to but "completely independent of the purported negligent and
intentional misconduct" during in-service episode of injury).
226. 639 F.2d 1146 (5th Cir. 1981).
227. Id at 1149. Stanley's complaint alleged that, in conducting the drug experiments, the
defendants were negligent in that they (1) knew or should have known of the drug's harmful and
unpredictable effects; (2) should have warned Stanley about the drug's effects; (3) failed to take
adequate precautions in administering the drug; (4) failed to advise Stanley concerning the potential after-effects of the drug; (5) failed to monitor the drug's effects on Stanley after the experiment;
and (6) failed to obtain Stanley's informed consent. Id at n.3.
228. Id at 1154. The court in Stan/q acknowledged that a case clearly falls within the
Thornwll model if the plaintiff alleges an intentional or willful in-service tort. Id The court further noted that negligent conduct may suffice as the original, in-service tort under Thornwel only if
that tort is separate and distinct from the alleged post-discharge tortious conduct. Id
229. Id
230.
530 F. Supp. 918 (D.D.C.1981), appealdocketed, No. 81-2261 (D.C. Cir. Dec. 2, 1981).
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caused by exposure to radiation. 231 Lombard alleged that his in-service
exposure to radioactive substances resulted from the government's negligent, rather than intentional, act.23 2 The court determined that because
the requirements of the hornwell sequence were not met, a separate tort
beyond the reach of the Feres doctrine did not exist.23 3 Similarly, in In re
"Agent Orange" Product Liability Litigation,23 4 the District Court for the
Eastern District of New York relied on a literal reading of the Thomwel
model and dismissed a third party complaint against the government.
In claiming injuries from the lack of a warning about the effects of exposure to the herbicide, the plaintiffs failed to allege an initial intentional
act followed by a negligent omission. 23 5 The court refused, therefore, to
236
find a tort outside the Feres bar.
Applying the same method of analysis, the District Court for the
Southern District of Ohio reached the opposite result in Everett v. United
States.237 The court determined that the plaintiffs allegations fit within
the requisite sequence of claims: the willful, in-service tort preceding the
negligent, post-service act. 238 The court thus recognized a distinct postservice omission and granted relief to the widow of an irradiated veteran.2 39 In Schnurman v. United States,240 the District Court for the Eastern District of Virginia acknowledged plaintiff's argument that "Feres
may be avoided in cases where the military commits an intentional or
unconstitutional act and then negligently fails to protect the serviceman
from the consequences that will flow from that original wrongful
act. '24 1 Nevertheless, by defining the plaintiffs in-service exposure to
231. Id at 920. Lombard claimed that he was exposed to radioactive materials while he was
assigned to the atom bomb project at Los Alamos, New Mexico. Lombard's in-service duties included the transporting and handling of radioactive substances, tasks that he performed barehanded and unmasked. Id at 919 n.l.
232. Id
233. Id at 921.
234. 506 F. Supp. 762 (E.D.N.Y. 1980).
235. Id at 779.
236. Id Judge Pratt characterized the in-service and post-service failure-to-warn claims-and
the models of Thamowde-as a "difficult area of analysis" pervaded by "inconsistencies." Id Herbicide-exposed veterans are now pursuing failure-to-warn claims directly against the United States.
See, e.g., Anderson v. United States, No. JH 81-331 (D. Md. filed Dec. 30, 1981) (failure to warn of,
monitor, and treat effects of exposure to Agent Orange).
237. 492 F. Supp. 318 (S.D. Ohio 1980).
238. Id at 325. In Everett, plaintiff claimed that her decedent husband's cancer resulted from
his being ordered to march through a nuclear blast area shortly after the detonation of a nuclear
weapon. Id at 319. The court determined that the act of ordering decedent into a nuclear testing
area was willful. Id at 326. The government's negligent failure to warn the decedent of the potential health hazards due to radiation exposure, therefore, constituted a separate and distinct tort. Id.
239. Id at 325-26.
240. 490 F. Supp. 429 (E.D. Va. 1980). Schnurman, while in the service, volunteered for an
experiment. He was informed that it was designed to test uniforms for use in tropical climates. In
fact, the Navy used Schnurman and the other volunteers to test the level of protection afforded by
certain articles of clothing against sulphur mustard gas, a toxic substance. Id at 430.
241. Id at 437.
1982]
THEORIES OF RECOVERY FOR VETERANS
1135
mustard gas as a negligent rather than an intentional act, the court ensured that the Thomwell sequence could not be met.24 2 The negligent
failure to provide the plaintiff with post-discharge treatment, therefore,
constituted a continuing failure to correct the effects of the initial negli243
gent act of exposure; as such, Schnurman's claim was barred by Feres.
In each of these cases, as well as in Thomwell, the court could have
analyzed the allegation of a post-discharge wrong separately from the
conduct that preceded it. In some cases, courts have done so.244 These
courts evaluated the later conduct separately, regardless of the relationship between the injury-producing event during military service and the
post-discharge lack of either treatment or warning. For veterans alleging post-discharge tortious conduct, however, this second model of what
constitutes a separate versus a continuing-tort presents difficulties that
are equal to those of the Thomwell model. The difficulties are that the
courts have not recognized that the government's post-exposure responsibility is neither limited to a single warning nor circumscribed by the
initial events necessitating its affirmative post-discharge conduct.
At least two circuit courts of appeals and two federal district courts
have analyzed allegations of a negligent failure to warn as tortious conduct separate from either the negligent or intentional conduct that created the need for a warning. Only two of the courts, however, have
adopted such a theory of separate conduct and have permitted the
plaintiff to go forward with a claim.
The Ninth Circuit, in Broudy v. UnitedStates, 2 and the District Court
for the Southern District of Ohio, in Everett v. UnitedStates, 246 both indicated that the United States may be liable to the widow of an irradiated
veteran. In each case, the plaintiff was given an opportunity to establish
that a negligent omission occurred after her decedent's discharge from
military service. If the plaintiffs successfully prove such post-discharge
negligence, the United States will not be immune under the Feres doctrine. Liability would attach unless another FTCA exception provided
immunity 24 7 or unless the plaintiff failed to establish the requisite ele248
ments of the tort.
Although the court in Everett found the third case in the Thomwell
242. Id The court stated that because the government had taken adequate precautions in
preventing human contact with the sulphur mustard gas, the government did not commit an intentional or willful act. Id
243. Id at 437-38.
244. See cases cited infla notes 245-46, 256-57.
245. 661 F.2d 125 (9th Cir. 1981).
246. 492 F. Supp. 318 (S.D. Ohio 1980).
247. See supra notes 82-83 and accompanying text.
248. See supra note 204.
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model to be persuasive, 249 it emphasized that the determination of when
the tortious omission occurred would be dispositive for a cognizable
cause of action. 2 50 Similarly, the court in Broudy focused on when the
government acquired information that it should have imparted to the
irradiated veterans.2
51
The court noted that if the government became
aware of "the danger" only after the servicemember was discharged,
then the subsequent failure to warn would constitute an "independent"
act of post-discharge negligence that the plaintiff could try to
establish.
252
The court's choice of words--4he danger rather than any danger-apparently was deliberate. Arguably, the latter usage would allow a claim
of tortious failure to warn based on the government's acquiring any new
knowledge about the potential effects of exposure to a hazardous substance.2 53 The court in Broudy clearly rejected such a formulation. The
court noted that the allegations presented in the claim did not indicate
specifically a post-discharge tort.2
54
Nevertheless, the court was willing
to recognize at least the possibility of Mrs. Broudy demonstrating an act
2 55
of post-service negligence.
is preferable to that
The result in either Everett or25Broudy
257 reached by
6
the courts in Kell v. UnitedStates
and in Stanley v. CIA.
In Kell, the
court concluded that the failure to warn was a continuing tort. At the
time the plaintiff witnessed a nuclear detonation, the government knew
of the risks of injury from exposure to radiation; the government's duty
to warn the plaintiff of the dangers of his exposure thus arose when he
was exposed initially. The government failed in that duty, and the subsequent failure by the government to warn Kelly "was but a continuation of the original wrong. '258 The United States was absolutely
immune under Feres for the original, incident-to-service wrong and,
249. Everett v. United States, 492 F. Supp. 318, 325-26 (S.D. Ohio 1980). Seesupra notes 21214 and accompanying text.
250. Everett v. United States, 492 F. Supp. 318, 325 (S.D. Ohio 1980). Although the complaint was unclear with respect to when the omission occurred, the court noted that the government's failure to warn at any time subsequent to decedent's discharge constituted a separate tort.
Id at 325-26.
251. Broudy v. United States, 661 F.2d 125, 128-29 (9th Cir. 1981).
252.
Id
at 129.
253. See infra notes 263-67 and accompanying text.
254. Broudy v. United States, 661 F.2d 125, 128-29 (9th Cir. 1981). Mrs. Broudy's allegations
as to when the government knew of the danger of exposure to Major Broudy were unclear. Id The
court indicated that if the government knew of the hazardous effects of exposure prior to Major
Broudy's discharge, then its duty to warn would have arisen incident to rather than after service.
No independent tortious act, therefore, would have occurred. Id See subra notes 226-36 and accompanying text.
255. Broudy v. United States, 661 F.2d 125, 128-29 (9th Cir. 1981).
256. 512 F. Supp. 356 (E.D. Pa. 1981).
257.
639 F.2d 1146 (5th Cir. 1981).
258.
Kelly v. United States, 512 F. Supp. 356, 360-61 (E.D. Pa. 1981).
1982]
THEORIES OF RECOVERY FOR VETERANS
1137
thus, for the post-discharge tortious omission. 259 The court in Staney
also applied Feres to bar recovery for the negligent failure to monitor or
to warn the subject of an LSD experiment both while he was still in the
Army and after his discharge. 26 Although the effects of the omissions
may have "lingered" after the plaintiffs discharge, both tortious failures
to act were continuing torts because neither one was wholly a post-dis26 1
charge occurrence.
3.
An alternative approach to establishingpost-dichargenegigence
The key to successful litigation of post-discharge negligent omission
cases is establishing recurrence of the duty to warn and the government's failure to discharge that obligation. The approach taken in
Broudy and Everett is preferable to a literal application of the third case
in the Thornwell model,2 62 because the negligent omission after exposure
is not subsumed into the negligent conduct that occurred during the
episode of exposure. Nevertheless, the analysis adopted in these cases is
still too limited: it does not incorporate the government's acquisition of
new knowledge as a development that imposes a new duty to warn.
Establishing a new duty can be accomplished in two ways. First, the
veteran-plaintiff may assert that new information about adverse consequences triggered a new duty to warn. 263 This new information-new
duty theory is particularly appropriate in the context of exposure to hazardous substances. Such an obligation is a basic tenet of products liability law, especially in the area of experimental products. 264 The case law
concerned with products manufacturers 265 has established that at the
time of sale, the manufacturer's obligation encompasses providing warnings for dangers attending product use. 266 Subsequent to the sale, the
manufacturer who learns or should learn of such dangers acquires a renewed obligation to provide an adequate warning.26 7 Ever-increasing
scientific knowledge about the effects of radiation and toxic chemicals
259.
Id at 361.
260. Stanley v. CIA, 639 F.2d 1146 (5th Cir. 1981). See supra notes 226-29 and accompanying
text.
261.
Stanley v. CIA, 639 F.2d 1146, 1154 (5th Cir. 1981).
262. See supra notes 212-13 and accompanying text.
263. The word "new" is misleading. Technically, the obligation based on acquisition of additional knowledge is a "new," specific version of a more generalized, preexisting duty. The inability
or unwillingness of a court to perceive this distinction is undoubtedly the basis for decisions disallowing claims in which the negligent omission is characterized as a continuation of the initial tort.
See id; supra notes 256-61 and accompanying text.
264. Se W. PROSSER, supra note 89, § 96, at 647; P. SHERMAN, PRODUCTS LIABILITY FOR THE
GENERAL PRACTITIONER, § 1.13 (1981).
265.
See P. SHERMAN, supra note 264, §§ 803-804.
266. See W. PROSSER, supra note 89, § 96, at 646-47.
267.
See id, § 96, at 647; P. SHERMAN, supra note 264, § 1.13.
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[Vol. 31:1095
should result in the imposition of an analogous duty to warn on the
government.
Second, a post-discharge obligation to warn also may arise from the
servicemember's return to civilian status. At that time, the United
States is no longer protected by Feres immunity because the bases for the
doctrine no longer apply. Separation from military service severs the
"peculiar and special relationship of the soldier to his superiors," a relationship that had given the government both unconditional authority
over the servicemember and protection against liability for adverse consequences resulting from exercise of that authority. 268 Thus, the tactical
considerations related to military command that once may have justified withholding information from servicemembers are no longer applicable.269 After a servicemember's discharge, therefore, the United States
must justify its failure to disclose on grounds other than an alleged adverse effect on military discipline.
Either the new knowledge or the change-in-status argument can be
used to establish post-discharge tortious conduct by the government.
Theoretically, every hazard-exposed veteran could attempt to prove the
government's liability for failure to warn after military service. Several
courts, viewing this implication with concern, have suggested that postdischarge claims are exercises in "artful pleading" designed to "abrogate
the Feres doctrine."2 70 These suggestions, however, misperceive the issue: the Feres doctrine cannot be abrogated outside the context of military activity because it does not apply in the first instance. Other policy
considerations may affect the government's liability to discharged servicemembers, but the rationale of Feres is inapposite. When servicemembers regain civilian status and the government breaches a duty
owed to them, the United States should be held accountable under the
FTCA. That the government's omission is associated with a prior military activity or that the omission presently involves a military-related
program or policy should not preclude injured veterans from litigating
the merits of a failure-to-warn claim.
CONCLUSION
Servicemembers exposed to hazardous substances confront many obstacles to eventual recovery for injuries resulting from the actual episode
268. United States v. Brown, 348 U.S. 110, 112 (1954).
269. One court has suggested that if there is a reason initially to withhold information about
exposure to a hazardous substance, there is always a reason. See Kelly v. United States, 512 F.
Supp. 356, 361 (E.D. Pa. 1981).
270. Broudy v. United States, 661 F.2d 125, 128 n.6 (9th Cir. 1981); Stanley v. CIA, 639 F.2d
1146, 1150-51 (5th Cir. 1981); In re "Agent Orange" Prod. Liab. Litig., 506 F. Supp. 762, 779
(E.D.N.Y. 1980).
1982]
THEORIES OF RECOVERY FOR VETERANS
1139
of exposure. First, present VA policy results in almost uniform denial of
claims for radiation- or herbicide-related conditions. Moreover, VA decisions regarding an individual's claim for benefits are not subject to
judicial review. A change in either policy is unlikely. Second, no comprehensive program exists to compensate veterans for latent injury from
exposure to a hazardous substance. Legislative enactment of such a program is not imminent. Finally, broad application of the Fees doctrinethe judicially created exception to the Federal Tort Claims Act--effectively immunizes both the United States and the responsible individuals
from liability for negligent or intentional acts of exposure as well as for
latent diseases or other medical problems resulting from the exposure,
whether experienced by the veteran or his dependents. That Congress
will abrogate or that the Supreme Court will overturn the Feres doctrine
is extremely unlikely.
Irradiated and herbicide-exposed veterans also face Feres as the primary obstacle when making claims against the government for tortious
conduct after discharge. The veteran must premise liability on a postdischarge duty to warn of the potential adverse consequences of exposure, a duty that is separate from any duty to warn that occurred during
service. Inability to persuade a court that this distinct, post-service duty
to warn exists will result in application of the Fees doctrine to hold the
government immune froim liability. Even if the veteran does prevail,
however, going forward with the claim will entail substantial problems
of proof. Notwithstanding the difficulties involved in litigating a claim
of post-discharge tortious conduct, such litigation is presently the veteran's most realistic possibility of recovery for any of the injuries associated with in-service exposure to hazardous substances.
LORA TREDWAY