Theodore L. Lombard v. United States of America

690 F.2d 215, 69 A.L.R. Fed. 921, 223 U.S. App. D.C. 102, 1982 U.S. App. LEXIS 25704
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 14, 1982
Docket81-2261
StatusPublished
Cited by75 cases

This text of 690 F.2d 215 (Theodore L. Lombard v. United States of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Theodore L. Lombard v. United States of America, 690 F.2d 215, 69 A.L.R. Fed. 921, 223 U.S. App. D.C. 102, 1982 U.S. App. LEXIS 25704 (D.C. Cir. 1982).

Opinions

MacKINNON, Circuit Judge.

Theodore Lombard, his wife Ruth and their four children appeal from a District Court decision dismissing for lack of subject matter jurisdiction a claim for damages to themselves and to their children which allegedly resulted from Lombard’s exposure to radiation during military service. For the reasons set forth below, we affirm, 530 F.Supp. 918, the decision of the District Court.

I. Background

Between 1944 and 1946, Lombard served in the United States Army at Los Alamos, New Mexico, where he worked on the “Manhattan Project.” During this period, Lombard, without benefit of protection, allegedly handled plutonium, uranium, and other radioactive substances. Lombard charges that the Army knew such handling might lead to serious health problems, as well as to genetic damage that could debilitate future offspring through inheritance, but that the Army nonetheless permitted him to be exposed to the radiation without warning him of the risks involved. The Army is alleged to have compounded their error by continuing for years after the War to hide information from Lombard on the deleterious effects of radiation contamination.

The Army’s actions allegedly caused Lombard to suffer both physical and genetic damage. His children, all born since the War, have in turn allegedly developed ge[217]*217netic defects of varying severity. Ruth Lombard, meanwhile, has allegedly suffered mental anguish and emotional distress through caring for her ailing husband and children.

All members of the Lombard family have sued the United States Government, numerous federal agencies, and numerous federal officials both in their official and individual capacities,1 seeking damages under the Federal Tort Claims Act (“Tort Claims Act”), 28 U.S.C. § 1346(b),2 the First, Fifth, Ninth, and Tenth Amendments, 42 U.S.C. § 1985 (3),3 42 U.S.C. § 1986,4 and a number of state law provisions. The District Court dismissed appellants’ complaint in toto on the grounds that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precluded recovery by any of the named plaintiffs on any of the theories presented. The District Court also granted the motion to strike those defendants named individually from the complaint on the grounds that the complaint did not allege any specific acts on their part for which relief could be granted. This appeal followed.

[218]*218II. Feres and its Progeny

It is well established that the United States, as sovereign, “is immune from suit save as it consents to be sued, ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1975). Any waiver of this traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1968); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957).

The Tort Claims Act is one such explicit waiver. It provides that in most instances of tortious conduct, the “United States shall be liable, respecting . . . tort claims, in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The application of the Act has been construed in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Laird v. Nelms, 406 U.S. 797, 799, 92 S.Ct. 1899, 1900, 32 L.Ed.2d 499 (1971); and Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 947 (D.C.Cir.1975). Notwithstanding the language of the statute, however the Supreme Court has determined that the Act does not waive sovereign immunity for suits brought by servicemen for “service connected injuries.” Feres v. United States, supra; Hatzlachh Supply Co., Inc. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62 L.Ed.2d 614 (1980); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1976). In Feres v. United States, supra, the Court held without dissent that “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.” 340 U.S. at 146, 71 S.Ct. at 159. The Court noted that though the legislative history of the Tort Claims Act did not specifically refer to the exclusion of suits by servicemen injured on active duty, it was nevertheless discernible from the scheme of the Act itself that Congress did not intend to waive immunity for such suits. On this point the Court remarked, “[i]f Congress had contemplated that this Tort Act would be held to apply in cases [involving injuries incident to military service] . . ., it is difficult to see why it should have omitted any provision to adjust . .. [compensation and pension remedies to tort remedies].” Id. at 144, 71 S.Ct. at 158.

This so-called “Feres Doctrine” has been followed by subsequent decisions of the Supreme Court and other federal courts.5 Three factors typically underlie the doctrine’s application. First, there is the interpretation of the statute which flows from the “distinctively federal nature” of the relationship between the federal Government and members of its Armed Forces. This supports an interpretation that Congress did not intend the Tort Claims Act to be applicable to service-related injuries because the Act provides that “the law of the jslace-where the act or omissioji-eomplained of-oeeurrgJ~rrrM_§Káll blTlipplied and “it jwouldjnake liiMe-fteaisl-at4ve:l^nsé~to~have -the ftwerQjgen-fe-^^ of ..-_the Armed Services dependent on the fortuity of~rt'he~Dr&visions--efH[aw~~ap^icable in _the locality] wEe?g~the- soldiers happened to [219]*219be stationed at the time of the injury.”6 Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1976). See Feres v. United States, supra, 340 U.S. at 143, 71 S.Ct. at 157.

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690 F.2d 215, 69 A.L.R. Fed. 921, 223 U.S. App. D.C. 102, 1982 U.S. App. LEXIS 25704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theodore-l-lombard-v-united-states-of-america-cadc-1982.