Punnett v. United States

602 F. Supp. 530, 1984 U.S. Dist. LEXIS 22483
CourtDistrict Court, E.D. Pennsylvania
DecidedOctober 25, 1984
DocketCiv. A. No. 79-29
StatusPublished
Cited by1 cases

This text of 602 F. Supp. 530 (Punnett v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Punnett v. United States, 602 F. Supp. 530, 1984 U.S. Dist. LEXIS 22483 (E.D. Pa. 1984).

Opinion

MEMORANDUM AND ORDER

DITTER, District Judge.

In this action plaintiffs seek an order compelling defendants to inform United States servicemen who participated in nuclear testing (“atomic vets”) of the resultant health risks. Specifically, plaintiffs seek a warning addressing an alleged increased risk of genetic defects, both in the vets and in their offspring. Presently before me is defendants’ motion to dismiss or stay the action. Undergirding the motion is plaintiffs’ failure to exhaust administrative remedies. For the reasons that follow, defendants’ motion will be granted and this action dismissed.

Soldiers “injured in the course of activity incident to service” cannot sue the United States government for damages. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Such suits are barred by the doctrine of sovereign immunity, and unlike many claims against the government, this immunity was not waived by the Federal Tort Claims Act. Id. In Feres, the Supreme Court recognized the need to grant military personnel broad discretion in their decision making process.

While the Feres doctrine, and its underlying reasoning, reflect a practical awareness of the exigencies of military command, its sometimes harsh results have been criticized. See, e.g., Heilman v. United States, 731 F.2d 1104, 1111-13 (3d Cir.1984) (Adams, J., concurring); Jaffee v. United States, 468 F.Supp. 632 (D.N.J.1979), aff'd 663 F.2d 1226 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). This criticism is especially acute where Feres bars recovery by those unable to receive compensation from the Veterans Administration. See Note, Pushing the Feres Doctrine a Generation Too Far: Recovery for Genetic Damage to the Children of Servicemembers, 32 Amer. U.L.Rev. 1039 (1983). Reflecting dissatisfaction with the harsh results obtained in these cases, and perhaps even a broader dissatisfaction with the Feres doctrine itself, courts have fashioned a “patchwork of exceptions.” Heilman v. United States, 731 F.2d at 1112 (Adams, J. concurring). All in all, this state of affairs has resulted in judicial precedent which does “not always appear logical or consistent.” Shearer v. United States, 723 F.2d 1102, 1108 n. 1 (3d Cir.1984) (Garth, J., dissenting).

One of the exceptions to the Feres doctrine is discussed in Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). In Jaffee, the plaintiffs sought to avoid the insurmountable hurdle of the 1950 Feres doctrine, by arguing that sovereign immunity had been waived when Congress enacted the 1976 amendments to the Administrative Procedure Act. In essence, they styled their complaint as one seeking review of agency action. Furthermore, as explained by Judge Rosenn, it was not one but two agency actions which were being challenged. The first agency action was the Army’s order mandating Jaffee’s presence at the atomic explosion. The second agency action was the Army’s failure in the years since the explosion to give a medical warning and provide medical care to Jaffee. Because Jaffee sought only medical care and not declaratory relief as to the first agency action, the Third Circuit found the claim barred by the Feres doctrine. However, insofar as Jaffee sought review of the Army’s failure to warn, the court [532]*532found a cause of action available under the provisions of the Administrative Procedure Act.1

After finding that the Army’s “failure to warn” stated a cognizable claim, the court discussed whether plaintiffs’ failure to present their claim initially to the appropriate agency foreclosed judicial review. Citing the “irreversible and perhaps fatal consequences” that could result from each day of delay, and the Army’s failure to warn despite both its knowledge of the hazards of radiation, and its awareness of Jaffee’s request for a warning, the court concluded judicial review was not barred “under the circumstances of this case.” Id. at 720. While these reasons appear to be established justifications for failure to exhaust administrative remedies, see Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 293 (3d Cir.1982), the Jaffee court expressly stated that “the doctrine of administrative exhaustion has no application to this case.” Jaffee v. United States, 592 F.2d at 719 n. 16. Therefore, I will first address whether that doctrine applies to the case sub judice and secondly, I will discuss whether plaintiffs have satisfied one of its exceptions.

“The basic premises underlying the exhaustion requirement are that (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors.” Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir.1973) rev’d on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). The first of these factors presents salient reasons for requiring exhaustion in this case. As defendants’ unopposed affidavit indicates, the Defense Nuclear Agency (DNA) has undertaken an extensive program developed to research the effects of radiation, both in general and as it applies to the specific Army operations in which soldiers were exposed. This information is being voluntarily disseminated to atomic vets. In fact, the DNA is making a concerted effort to contact atomic vets, supply them with relevant information, and encourage follow-up medical exams in Veterans Administration hospitals. The government has submitted to me volumes of information it has distributed, evidencing a level of expertise far surpassing anything this court could develop. See, e.g., Quigley v. Exxon Co., 376 F.Supp. 342 (M.D.Pa.1974). Additionally, the DNA is developing a record as to what should be contained in the warning plaintiffs seek. While doing so, the DNA is distributing the results of its studies; that is the DNA is distributing facts, although it may not be distributing conclusions from these facts as plaintiffs want. As I stated in my opinion denying preliminary injunctive relief, the harm which could result from an improvidently issued, conclusory warning, could be as devastating as no warning at all. See Pun-nett v. Carter, 621 F.2d 578, 587-88 (3d Cir.1980).

Turning to the second factor, I conclude judicial resources will be conserved by requiring exhaustion. Not only will exhaustion facilitate development of a factual record as discussed above, but it may very well moot the controversy if plaintiffs prevail in convincing the DNA of the soundness of their conclusions.

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Related

Punnett v. United States
770 F.2d 1074 (Third Circuit, 1985)

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Bluebook (online)
602 F. Supp. 530, 1984 U.S. Dist. LEXIS 22483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/punnett-v-united-states-paed-1984.