UNITED STATES OF AMERICA, PETITIONER V. IRMA MOLSBERGEN No. 85-209 In the Supreme Court of the United States October Term, 1985 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-17a) is reported at 757 F.2d 1016. The order of the district court (App., infra, 18a-25a) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 9, 1985. On July 1, 1985, Justice Rehnquist extended the time for filing a petition for a writ of certiorari to August 7, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 28 U.S.C. 1346(b) provides in pertinent part: Subject to the provisions of (28 U.S.C. 2671-2680), the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 2674 provides in pertinent part: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances. . . . 28 U.S.C. 2680 provides in pertinent part" The provisions of this chapter and section 1346 (b) of this title shall not apply to -- (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. QUESTIONS PRESENTED 1. Whether a suit under the Federal Tort Claims Act by the survivor of a former serviceman, alleging that the government negligently failed to warn the decedent, following his discharge, of hazards resulting from his exposure to radiation while in the service, is precluded by the doctrine of Feres v. United States, 340 U.S. 135 (1950), which bars suits by servicemen for alleged torts incident to military service. 2. Whether such a suit is precluded by the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. 2680(a). STATEMENT 1. Respondent alleges that her husband, John Molsbergen, died in 1981 as a result of exposure to radiation during his military service. In an administrative claim, respondent stated that Molsbergen was a navy pilot on active duty in September 1945 and that he was "willfully ordered to be in an area where he would be exposed to the effects of atomic radiation" as part of a mission "supporting the mine sweepers who were clearing the Nagasaki base for occupation by the Allied Forces immediately after a nucle(ar) bomb was detonated at Nagasaki, Japan" (Excerpt of Record (E.R.) 65). Respondents' claim, which sought $20,000,000 in damages, was denied in 1983. App., infra, 20a. Respondent then brought this action in the United States District Court for the Northern District of California under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., seeking damages from the United States. /1/ In Count 1 of her complaint, respondent alleged that the United States learned of the dangers of radiation exposure following Molsbergen's discharge from the Navy and that the government thereafter failed "to conduct long term medical surveilance" of Molsbergen or to "provide information regarding the hazards associated with exposure" to radiation (E.R. 3, 4). In Count 2, respondent alleged that Molsbergen's superiors did in fact know of the dangers attendant upon radiation exposure at the time that they ordered Molsbergen to carry out his mission over Nagasaki without obtaining his "informed consent" (E.R. 5). App., infra, 2a-3a. 2. The district court dismissed the complaint (App., infra 18a-25a). The court reasoned (id. at 21a-24a) that Count 1 was precluded by Feres v. United States, 340 U.S. 135 (1950), which held that a serviceman may not sue the government under the FTCA for alleged torts incident to military service. In Count 1, the court noted (App., infra, 21a-22a), respondent sought "to avoid the application of * * * the Feres doctrine by alleging an independent post-discharge negligence claim purportedly unrelated to the decedent's in-service exposure to radiation in 1945." The court rejected respondent's "artful pleading" (id. at 23a) on two grounds. First, in light of respondent's allegations in Count 2 that the government knew of the dangers of radiation exposure while Molsbergen was in the service, the court concluded (id. at 22a-23a) that Count 1 of the complaint alleged a continuing tort that began with an in-service breach of duty and hence was barred by Feres. Second, even if respondent did allege independent post-discharge negligence, there was in the district court's view no duty under state law "to warn, treat or monitor former employees where the employer obtained knowledge of potential danger following the termination of the employment relationship" (App., infra 24a). The district court reasoned (ibid). that "the potential social costs of imposing such a duty would be prohibitive" because employers "would be required to keep abreast of the state of the a(r)t concerning the health effects of all substances to which any former employee may have been exposed * * * (and) would necessarily be required to maintain current information as to the whereabouts of all former employees." /2/ 3. The court of appeals reversed the dismissal of Count 1 (App., infra, 1a-17a). /3/ Relying on its decision in Broudy v. United States (Broudy I), 661 F.2d 125 (9th Cir. 1981), the court held (App., infran, 5a-6a) that a claim premised on the government's failure to warn a former serviceman of the dangers of radiation to which he was exposed while in the military is not barred by Feres, if the government first learned of those dangers following the serviceman's discharge. The court concluded (App., infra, 5a) that respondent had adequately raised such a claim in Count 1 because her allegations in Count 2 that the government know of the hazards while Molsbergen was on active duty should not have been considered in judging the sufficiency of the first count. The court of appeals then turned (App., infra, 7a-17a) to the question it had left open in Broudy v. United States (Broudy II), 722 F.2d 566 (9th Cir. 1983), whether a duty to warn exists under California law. /4/ The court concluded that California would in these circumstances impose a duty on employers to warn former employees of risks arising out of the employment relationship that are discovered after the employment ceases. The duty arises, according to the court of appeals (App., infra, 15a-16a), where: (1) a party has information relating to a serious risk to the life, safety or health of another; (2) the conduct of the party, though perhaps innocent, gave rise to the risk; (3) the burden resulting from imposition of a duty to warn is not onerous; and (4) there is reason to believe that a warning would have some practical effect. Taking respondent's allegations as true, the government had information regarding a danger to Molsbergen that "result(ed) from conditions to which he had been exposed in the course of his" military service, and a warning would have benefited him (id. at 16a). In the court of appeals' view (ibid.), "the burden of notifying (Molsbergen), as well as other similarly situated, of the risk to which he had been exposed would not, relatively speaking, have been substantial" in light of "the available resources on which (the government) could have drawn." /5/ REASONS FOR GRANTING THE PETITION The case presents a question of great practical importance on which there is a conflict among the courts of appeals. The Ninth Circuit has fashioned a rule, enforceable through suits under the Federal Tort Claims Act, requiring the military to adopt an extensive program for monitoring the exposure of servicemen to all potentially hazardous substances and for warning them, following their discharge, of dangers as they become known. Allowing such suits would not only have a significant impact on military operations, but could also lead to extensive liability arising out of in-service exposures to radiation as well as to asbestos, Agent Orange, and other substances. At present there are approximately 25 FTCA suits pending against the United States, seeking damages in excess of $400 million, arising out of military exposure to radiation alone. /6/ More than 100,000 servicemen were stationed within 10 miles of Hiroshima or Nagasaki following World War II, and more than 200,000 servicemen took part in atmospheric nuclear tests. Given the high incidence of concer in the general population, many of these servicemen inevitably will contract the disease, and the number of suits alleging that cancer was caused by in-service exposure to radiation undoubtedly will continue to grow. The holding of the court of appeals, that the United States may be liable under the FTCA for post-discharge failure to warn of the hazards of radiation exposure if the government first learned of those hazards following the injured serviceman's discharge, cannot be squared with either the Feres doctrine or the discretionary function exception. Review by this Court is plainly warranted. 1. a. Feres established that the FTCA does not waive the government's sovereign immunity from suits by servicemen for alleged torts that are incident to military service. /7/ Just last Term, the Court described once again the principal considerations on which the Feres doctrine is based: (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 under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.'" United States v. Muniz, 374 U.S. 150, 162 (1963), quoting United States v. Brown, 348 U.S. 110, 112 (1954). United States v. Shearer, No. 84-194 (June 27, 1985), slip op. 5. The Court has also explained that the purpose of the Feres doctrine is to avoid a trial at which courts must engage in "second-guessing military orders" and at which the "issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety." Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673 (1977). While "no longer controlling" (Shearer, slip op. 6 n.4), the presence of an alternative compensation scheme for injured veterans and the anomaly of submitting the "distinctively federal" (Feres, 340 U.S. at 143) relation between a soldier and his superiors to the vagaries of state law also counsel in favor of the doctrine. b. In light of these considerations, the courts of appeals have uniformly held that claims alleging wrongful exposure to radiation during military service are precluded by Feres. See, e.g., Heilman v. United States, 731 F.2d 1104, 1107 (3d Cir. 1984); Gaspard v. United States, 713 F.2d 1097, 1101 (5th Cir. 1983), cert. denied sub nom. Sheehan v. United States, No. 83-6233 (May 14, 1984); Lombard v. United States, 690 F.2d 215, 220 (D.C. Cir. 1982), cert. denied, 462 U.S. 1118 (1983). As the court of appeals explained in Heilman (731 F.2d at 1107): (I)t is clear * * * that no recovery is possible for the injuries suffered by (the serviceman) due to the original exposure to radiation which occurred while he was stationed in the Pacific. The decision to expose him to that radiation was made while he was an enlisted man in the Navy, and therefore the United States is ummune from liability * * *. The Ninth Circuit agrees that Feres is "clear(ly) applicab(le)" (Broudy I, 661 F.2d at 127) to a negligent exposure claim. The courts of appeals also are in accord that a plaintiff cannot circumvent Feres by alleging that the military's wrongful conduct continued from the time of exposure past the serviceman's discharge: (T)he alleged failure to warn did not occur "in its entirety" after (the serviceman's) discharge. * * * (The) plaintiff) concedes that the Army knew of the potential dangers involved in exposing servicemen to radioactive substances at the time of the exposure itself. The negligent act of "failing to inform," then, began at the time of initial exposure and continued through to the present. We are not dealing with two separate torts, therefore, but one continuous tort. Lombard, 690 F.2d at 220 (emphasis in original); see also, e.g., Heilman, 731 F.2d at 1107; Gaspard, 713 F.2d at 1097. If these sorts of continuous torts were excepted from Feres, "a party could completely abrogate the Feres doctrine by alleging a post-service duty to warn, monitor or treat whenever the consequences of an allegedly negligent act continued after or manifested themselves after the injured party left the service" (Broudy I, 661 F.2d at 128 n.6). The courts of appeals have divided, however, over whether Feres applies to allegations that the government breached a duty to warn that arose for the first time following a serviceman's discharge. The Ninth Circuit has held that "the Feres doctrine would not bar an independent, post-service tort based on the government's failure to warn (a serviceman) or monitor his condition if the Government learned of the danger after he left the service" (Broudy II, 722 F.2d at 570; emphasis added). The court below relied on this rule, first established in Broudy I (661 F.2d at 128-129), in holding Feres inapplicable here. The Eleventh Circuit agrees that Feres does not preclude the "novel claim" that "the government's negligent failure to warn materialized after (the serviceman's) discharge when the government's knowledge concerning the hazards to radiation increased sufficiently to give rise to a new duty." Cole v. United States, 755 F.2d 873, 876 (1985) (emphasis in original). The Eighth Circuit has rejected this approach. In Laswell v. Brown, 683 F.2d 261 (1982), cert. denied, 459 U.S. 1210 (1983), the plaintiffs argued that the government's post-discharge failure to warn was a separate tort from the initial radiation exposure and therefore not barred by Feres. They relied (683 F.2d at 266) on three district court cases holding that Feres does not preclude actions based on post-discharge failures to warn. /8/ The court of appeals also cited (ibid.) Broudy I in support of the plaintiffs' claim. But the court of appeals rejected the plaintiffs' position, ruling that their claim could not be distinguished from the "continuing tort" (683 F.2d at 267) that is barred by Feres: "Acceptance of (plaintiffs') theory here would lead to the kind of problems the Supreme Court wanted to avoid in Feres. Unless liability for post-discharge negligent omissions by the government is carefully limited to situations in which the conduct challenged is clearly distinct from military actions immune under Feres, military planners who have knowledge of particular risks associated with an operation may well be inhibited in their planning by the consideration that at some future date they might be obligated to reveal the details of the operation and the risks involved." Ibid., quoting Kelly v. United States, 512 F. Supp. 356, 361 (E.D. Pa. 1981). The Eighth Circuit refused to accept the proposition that an "after-discharge tort * * * occur(ing) in its entirety after the plaintiff has attained civilian status" (683 F.2d at 266) could be excepted from the Feres doctrine where the harm was caused by in-service exposure and "(i)t is only the government's (subsequent) failure to remedy * * * the damage inflicted while the plaintiff was in the service that leads to a claim for relief" (683 F.2d at 267). See also Hamilton v. United States, 719 F.2d 1 (1st Cir. 1983) (per curiam) (refusing to recognize "continuous onsets of new causes of action extending beyond the period of active service"); Stanley v. CIA, 639 F.2d 1146, 1154 (5th Cir. 1981) (claim premised on negligent act continuing beyond discharge barred by Feres). /9/ c. Regardless of whether some states may recognize a post-exposure duty to warn as a separate tort from the exposure itself, /10/ it is plain that claims such as respondent's are incident to service and so precluded by the Feres doctrine. Respondent's claim implicates each of the concers on which Feres is premised. It therefore makes little sense for the government's immunity to turn on the fortuity of when it discovered the dangers of radiation exposure, a rule anomalous in its own terms because it turns the positions of the parties on their heads -- the government could (if the fact supported it) defend not on the basis of its ignorance of any risk but on the ground that the military knew of dangers to its personnel at the time that it ordered them to be exposed to atomic radiation. Respondent's "inventive presentation" is at bottom merely an attempt at "artful pleading" created for the specific purpose of "circumvent(ing)" the Feres doctrine. /11/ The court of appeals erred in accepting this contrivance. /12/ The trial of this case would involve precisely the sort of inquiry into military decisionmaking, judicial second-guessing, and impairment of discipline that Feres is designed to prevent (see pages 7-8, supra). Because the military's knowledge at the time of exposure is determinative of the Feres issue under the rule applied below, the court would of necessity have to inquire into the state of mind of military officers in 1945. The artificial nature of the duty imposed by the court of appeals, holding the government liable only if the military did not know of the hazards at the time it exposed servicemen to them, would exacerbate the intrusiveness into military affairs. The inquiry required by the court below would inevitably impair discipline and morale: whoever prevailed -- the military, by showing its knowledge of the dangers to which it exposed its troops, or the plaintiff, by showing that military leaders ordered servicemen to face dangers in ignorance of the consequences -- the result could not help but lead service personnel to question and doubt the wisdom of their superiors' orders. Moreover, as the Eleventh Circuit recognized in Cole (755 F.2d at 879), a tort recovery against the government in a case of this kind would create an incentive for the military to alter its practices with respect to servicemen on active duty. It is a principal purpose of the Feres doctrine to avoid both judicial inquiry into the military's relationship with its servicemen and a damages recovery that would chill the military from acting in the way it considers appropriate. In addition, because the degree of in-service exposure will be relevant to whether the exposure caused a particular cancer, it would be necessary to take the testimony of military personnel as to the orders given to each serviceman, whether he carried them out, and where precisely he was located on each mission and during each nuclear test. Cf. Punnett v. Carter, 621 F.2d 578, 583-586 (3d Cir. 1980) (describing uncertainties inherent in determining servicemen's exposure to radiation). /13/ Similarly, the "'distinctively federal'" relationship between military personnel and the government, which "has been governed exclusively by federal law" (Feres, 340 U.S. at 143, 146), would in important respects be displaced by differing state standards of conduct. Certainly the government should treat those veterans injured by in-service exposure to radiation on an equal basis. Yet the happenstance of where a veteran settled following his discharge would, under the court of appeals' rule, /14/ determine the government's obligations, if any, to notify him of dangers and to monitor his condition. Such a rule would "make little sense" because "the Government's liability to members of the Armed Services (would) depend() on the fortuity of" their post-discharge domicile even though they were treated identically both during and after their service. Stencel Aero Engineering Corp., 431 U.S. at 671. Finally, Congress has provided by statute "the sole remedy" for compensation for service-related injuries. Hatzlachh Supply Co. v. United States, 444 U.S. 460, 464 (1980); see Stencel Aero Engineering Corp., 431 U.S. at 673 (the statutory "military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries"). This consideration carries special force here, for in addition to the ordinary availability of benefits under the Veterans' Benefits Act, see generally Walters v. National Association of Radiation Survivors, No. 84-571 (June 28, 1985), veterans seeking compensation for injuries resulting from exposure to radiation have in recent years received unique statutory attention. /15/ In the Veterans' Dioxin and Radiation Exposure Compensation Standards Act., Pub.L. No. 98-542, 98 Stat. 2725 et seq., Congress sought to "fully vindicate()" /16/ the police of compensating veterans for exposure related injuries by establishing a "general framework for the adjudication of exposure claims." /17/ Under the Act (Section 3, 98 Stat. 2727), Congress "ensure(d) that Veterans' Administration disability compensation is provided to veterans who were exposed during service * * * to ionizing radiation * * * for all disabilities arising after that service that are connected, based on sound scientific and medical evidence, to such service." Congress recognized (Sections 2(2) and (12), 98 Stat. 2725, 2726) that the "scientific and medical uncertainty regarding * * * long-term adverse health effects" of radiation exposure results in "adjudicatory issues which are significantly different from issues generally presented in claims based upon the usual types of injuries incurred in military service." Accordingly, Congress required (Section 5(a)(1), 98 Stat. 2727) the Administrator of Veterans' Affairs to promulgate regulations that "establish guidelines and (where appropriate) standards and criteria for the resolution of" radiation exposure claims. See 50 Fed. Reg. 15848 (1985) (notice of proposed rulemaking to implement the Act). It is most unlikely that Congress intended the Act's "solution to the highly complex and emotional issue(s)" /18/ presented by exposure claims to be supplemtnted by actions under the FTCA. See In re "Agent Orange" Product Liability Litigation, 603 F. Supp. 239, 243 (E.D.N.Y. 1985). /19/ d. United States v. Brown, 348 U.S. 110 (1954), relied on by the Ninth Circuit (Broudy I, 661 F.2d at 128), does not support the court of appeals' conclusion that the Feres doctrine is inapplicable here. See Laswell, 683 F.2d at 267). In Brown, a veteran was injured when the Veterans Administration negligently performed an operation on his knee. The knee had initially been injured while the plaintiff was on active duty; the operation, however, was not performed until several years after he had been discharged (348 U.S. at 110-111). The Court rejected the argument that the claim was barred by Feres, reasoning (348 U.S. at 112) that the cause of action arose in its entirety after the plaintiff's discharge and presented, unlike Feres, a tranditional tort claim "not foreign to the broad pattern of liability which the United States undertook by the Tort Claims Act." /20/ Brown cannot be read to create a talismanic exception to the Feres doctrine whenever a tort can be construed as arising in some respect after a serviceman's discharge. The tort in Brown, while related to the plaintiff's service "in the sense that all human events depend upon what has already transpired" (Brooks v. United States, 337 U.S. 49, 52 (1949)), required no inquiry into the plaintiff's military duties nor into the orders of his superiors. All that was at stake was a garden variety claim that the plaintiff's doctor had acted negligently. That the plaintiff had been a soldier was wholly irrelevant to his cause of action. Here, by contrast, Molsbergen's military service is an essential element of respondent's claim. The court of appeals expressly identified (App., infra, 15a, 16a) the government's conduct in exposing Molsbergen to radiation as a necessary predicate to its liability. As the court recognized in Fountain v. United States, 533 F. Supp. 698, 702 (W.D. Ark. 1981) (emphasis added), in rejecting a similar argument that Brown applies to a claim that the government had breached an independent post-discharge duty to warn of radiation dangers: The act which gave rise to the government's duty to warn, instruct or disclose was subjecting (the serviceman) to the radioactive fallout while he was in the military. We hold that as the act which gave rise to the duties to warn, instruct or disclose in one for which no claim may be made against the government, the subsequent omissions of the government are within the scope of Feres. The nexus between the act of exposing (the serviceman) to radioactive fallout and the government's failure to take subsequent remedial measures is strong and direct. The connection between the act of exposing him to radioactivity and failing to warn him after he had been discharged from the military is not merely antecedent. Any harm (the serviceman) received after he was discharged * * * due to the government's failure to warn arose directly and actually from his exposure to radioactive fallout * * * and as such is incident to his military service. Inquiry into military orders and the knowledge of officers would be a central feature of the trial of respondent's claim, and the resulting judicial second-guessing and impact on military discipline would strike at the heart of what the Feres doctrine is designed to prevent. In this case, unlike in Brown, "the relationship between a sovereign and the memebrs of its Armed Forces," which is "unlike any relationship between private individuals," /21/ is at stake. Stencel Aero Engineering Corp. v. United States, 431 U.S. at 670. For these reasons, Molsbergen's injury was "incident to service" within the meaning of Feres. Respondent has not alleged a tort that is in any relevant sense independent of Molsbergen's military service. 2. Respondent's claim also is barred by the discretionary function exception, 28 U.S.C. 2680(a). /22/ Section 2680(a) excepts from the FTCA's waiver of sovereign immunity "(a)ny claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or any employee of the Government, whether or not the discretion involved be abused." This "highly important exception" /23/ embraces "determinations made by executives or administrators in establishing plans, specifications or schedules of operations." Dalehite v. United States, 346 U.S. 15, 35-36 (1953) (footnote omitted). In Dalehite, the Court emphaiszed (id. at 36) that "(w)here there is room for policy judgment and decision there is discretion" within the meaning of Section 2680(a). The Court recently reaffirmed Dalehite in United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), No. 82-1349 (June 19, 1984), slip op. 12-13. "(T)he basic inquiry," the Court stated in Varig Airlines (slip op. 15), "is whether the challenged acts of a Government employee -- whatever his or her rank -- are of the nature and quality that Congress intended to shield from tort liability." The exception must be applied "'to protect the Government from liability that would seriously handicap efficient government operations'" (id. at 16, quoting United States v. Muniz, 374 U.S. 150, 163 (1963)). The duty imposed by the court of appeals here goes to the heart of the discretionary function exception. That duty would require the government to establish a massive program to monitor the substances to which service personnel have been exposed, /24/ to stay apprised of medical developments relating to the potential hazards of those substances, to maintain records of the exposure of each individual serviceman to each substance, /25/ to keep track of each veteran's whereabouts to determine whether and when a danger was sufficiently clear to merit a warning, and to determine the form and content of that warning. /26/ Plainly, whether the government should undertake such a program implicates precisely the sort of discretionary decisions to which Section 2680(a) applies. Cf. Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963) (Burger, J.) (recognizing "the great issues of national defense and security" at stake in holding that suit to enjoin nuclear tests was nonjusticiable), cert. denied, 377 U.S. 933 (1964). The Court held in Dalehite (346 U.S. at 41-42) that the government's decision not to warn of the explosive properties of a fertilizer was within the discretionary function exception. A fortiori, the significantly more complex warning program compelled by the court of appeals here must be protected. And in Varia Airlines, the Court explained (slip op. 16) that "Congress wished to prevent judicial 'second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." By its very nature, however, the duty imposed by the court of appeals in this case would require just such second-guessing, both of the military's decisions to expose servicemen to radiaiton and of the decisions not to undertake the monitoring and warning program mandated by the court of appeals. /27/ The difficult policy judgments made by Congress in developing a statutory compensation scheme for exposure-related injuries and for determining the relationship between in-service radiation exposure and subsequent harm (see pages 14-16 and note 15, supra) underscore the scope of discretion inherent in any warning and monitoring program. In addition to conflicting with this Court's discretionary function precedents, the court of appeals' failure to apply Section 2680(a) cannot be reconciled with the reasoning of the courts of appeals in Shuman v. United States, No. 84-1884 (1st Cir. June 26, 1985), and Feyers v. United States, 749 F.2d 1222 (6th Cir. 1984), cert. denied, No. 84-1423 (May 28, 1985). /28/ In Shuman, the First Circuit held that a claim that the government failed to warn a shipyard worker of the dangers of exposure to asbestos was barred by the discretionary function exception. The court reasoned (slip op. 16) that "(t)he government's omission of a policy (under the Walsh-Healey Act) * * * to warn the endangered workers themselves of a work hazard was a discretionary act protected by the discretionary function exception to the FTCA." /29/ In Feyers, the Sixth Circuit held (749 F.2d at 1227) that the government's decision "not (to) institute a safety training program" for the employees of its contractor was "clearly the type of discretionary function() protected by 28 U.S.C. Section 2680(a)." Unlike the Ninth Circuit in this case, these courts of appeals recognized the significant role that discretion plays in decisions concerning the establishment of safety and warning programs. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General BRUCE N. KUHLIK Assistant to the Solicitor General ROBERT S. GREENSPAN MARC JOHNSTON Attorneys AUGUST 1985 /1/ Respondent also named several federal agencies and the Regents of the University of California as defendants; the district court dismissed the FTCA claims against these defendants because they are not amenable to suit under the Act (App., infra, 19a n.1). See 28 U.S.C. 2679(a). The Regents are no longer a party to this action. /2/ The district court dismissed Court 2 as barred by the combatant activities exception of the FTCA, 28 U.S.C. 2680(j), because Molsbergen's exposure occurred while he was "on active duty during World War II" (App., infra 24a). The court also dismissed a third count raising constitutional claims (id. at 25a). The court did not address the discretionary function exception of the FTCA, 28 U.S.C. 2680(a), which, as the court noted (App., infra, 19a) the government had also raised in support of its motion to dismisd (E.R. 20 n.3). /3/ Respondent did not challenge the dismissal of the other two counts (App., infra, 4a). /4/ The FTCA applies the "law of the place where the act or omission occurred." 28 U.S.C. 1346(b). The court of appeals assumed that California law applied because respondent and her husband were domiciled there following Molsbergen's discharge (App., infra, 7a). /5/ The court of appeals did not "determine what type of warning -- a general public announcement or a more specific notification -- would be required" (App., infra, 17a n.15). Nor did the court discuss the government's discretionary function argument, which was based in part on "the policy issues involved in issuing any warnings" (C.A. Br. 19 n.24). /6/ Well over half of these cases are pending in jurisdictons within the Ninth Circuit, which in Broudy II rejected the government's suggestion for rehearing en banc. When civilian radiation claims (to which the discretionary function exception is applicable) are included, over 60 cases involving 3000 plaintiffs are pending nationwide, seeking damages in excess of $4 billion. /7/ Feres applies to "claims (of family members) based on the injuries to their relatives in the armed forces" regardless of whether those claims "are independent of the serviceman's cause of action under applicable state law." Gaspard v. United States, 713 F.2d 1097, 1102 (5th Cir. 1983) (citing cases), cert. denied sub nom. Sheehan v. United States, No. 83-6233 (May 14, 1984). See United States v. Shearer, No. 84-194 (June 27, 1985), slip op. 5 n.3 ("(i)t is immaterial that this suit was brought by a representative of the serviceman"); Stencel Aero engineering Corp. v. United States, 431 U.S. 666 (1977) (Feres applies to suit by third party for idemnity from United States for damages arising out of serviceman's injury). /8/ Everett v. United States, 492 F. Supp. 318, 325-326 (S.D. Ohio 1980); Thornwell v. United States, 471 F. Supp. 344, 349-353 (D.D.C. 1979); Schwartz v. United States, 230 F. Supp. 536, 540 (E.D. Pa. 1964). /9/ The court of appeals' decision here also conflicts with the decisions in In re "Agent Orange" Product Liability Litigation 506 F. Supp. 762 777-779 (1980), later opinion, 603 F. Supp. 239, 242-245 (E.D.N.Y. 1985), and Fountain v. United States, 533 F. Supp. 698, 702 (W.D. Ark. 1981). /10/ We do not seek review of the court of appeals' determination that California would impose a duty to warn under the circumstances alleged in Count 1 of respondent's complaint. /11/ In re "Agent Orange" Product Liability Litigation, 506 F. Supp. at 779. /12/ Indeed, the Ninth Circuit's own case law demonstrates the artificial character of the exception to Feres that it has constructed. In Broudy I and Broudy II, the court of appeals required an "independent, post-service tort" (722 F.2d at 570; emphasis added). Yet in this case, the court recognized that Molsbergen's connection to the service is an indispensable element of respondent's claim (see App., infra, 15a-16a; pages 17-18, infra). Moreover, in Shipek v. United States, 752 F.2d 1352 (9th Cir. 1985), the court of appeals held that a plaintiff could sue on a theory of post-discharge failure to warn even though his administrative claim, a jurisdictional prerequisite to the FTCA's waiver of sovereign immunity (28 U.S.C. 2675(a)), was premised only on an alleged wrongful inservice exposure to radiation. /13/ The Eleventh Circuit acknowledged in Cole (755 F.2d at 878) that courts would be required to investigate "the government's knowledge of the hazards of radiation exposure before and after (the serviceman's) discharge," but incorrectly assumed (ibid.) that none "of the government's orders or practices involving (the decedent), or any other serviceman, while on active duty would be judged in hindsight." /14/ Although we are not presenting the question in the petition, we do not concede that the serviceman's domicle is necessarily the appropriate law to apply under 28 U.S.C. 1346(b) (see note 4, supra). Even if the law of the place of exposure is applied, however, the problem of differing legal standards remains, because exposures occurred in different states and overseas. /15/ In addition to the special statutory compensation provisions discussed in text for veterans who were exposed to radiation while in the service, Congress has provided hospital and nursing home care to these veterans "notwithstanding that there is insufficient medical evidence to conclude that (a) disability may be associated with (their in-service) exposure," Veterans' Health Care, Training, and Small Business Loan Act of 1981, Pub. L. No. 97-72, Section 102(a)(2), 95 Stat. 1047-1048, and has directed the Veterans Administration to conduct a special study of the potential risks to veterans of long-term adverse health effects resulting from in-service exposure to radiation and to prepare a reference guide concerning those risks for use in providing health care and in adjudicating claims for benefits. Veterans' Health Care Amendments of 1983, Pub. L. No. 98-160, Section 601, 97 Stat. 1006-1008. /16/ 130 Cong. Rec. S6159 (daily ed. May 22, 1984) (remarks of Sen. Cranston.) /17/ 130 Cong. Rec. S13592 (daily ed. Oct. 4, 1984) (remarks of Sen. Simpson). /18/ 130 Cong. Rec. S6155 (daily ed. May 22, 1984) (remarks of Sen. Simpson). /19/ In supporting a subsequently deleted provision of the radiation compensation bill authorizing judicial review of VA regulations, Senator Specter recognized that "(a) veteran, under current law, may not sue the Government for injuries incurred due to his or her service." 130 Cong. Rec. S6152 (daily ed. May 22, 1984). Congress has shown no disposition to overturn the Feres doctrine in the 35 years since Feres was decided. Se H.R. Rep.97-384, 97th Cong., 1st Sess. Pt. 1, at 5 (1981). See also The Feres Doctrine As It Relates To Private Claims: Hearings Before the Subcomm. on Agency Administration of the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. (1982). Indeed, in the very context of injuries related to in-service exposure to radiation, Congress recently affirmed its acceptance of the Feres doctrine. In Section 1631 of Pub. L. No. 98-525, 98 Stat. 2646, Congress provided that an individual injured "due to exposure to radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a contract with the United States" can bring suit against the government under the FTCA. The language that became Section 1631 was proposed by a representative of the Department of Justice, who advised the subcommittee considering the proposed legislation that it would incorporate the Feres doctrine and answered questions from subcommittee members about that aspect of the proposed legislation. Litigation Relating to Atomic Testing: Hearing on H.R. 2797 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 98th Cong., 1st Sess. 20-38 (1983) (testimony of Deputy Assistant Attorney General B. Wayne Vance). In addition, a congressional committee recommended against the adoption of another version of this legislation partly on the ground that it "may be grossly unfair to both current and potential plaintiffs" because, among other things, it would incorporate "the doctrine established in Feres v. United States, 340 U.S. 135 (1950) * * * prohibit(ing) suits by veterans for torts arising while they were on active duty." H.R. Rep. 98-124, 98th Cong., 1st Sess. 4-5 (1983). Thus, Congress was clearly aware that the Feres doctrine is a limit on the FTCA remedy, but it nonetheless chose to extend that remedy to a new category of radiation exposure cases. /20/ The Court went on to note (348 U.S. at 113) that, unlike the "'novel and unprecedented liabilities'" for military actions precluded by Feres, the claim in Brown that the hospital was liable for its negligence "is one which might be cognizable under local law, if the defendant were a private party." /21/ Indeed, respondent argued in the court of appeals (Br. 10) that "the relationship of a service person to the government is unique and in no way analogous to the employer-employee setting." /22/ It would be appropriate for the Court to reach this issue, even though the court of appeal did not, because it is in many respects intertwined with the Feres question: allocating resources and designing programs for dealing with the hazards encountered in military service are inherently among the "complex, subtle, and professional decisions" that require "judgments" (Shearer, slip op. 6; quotation marks omitted and emphasis added) to which both the Feres doctrine and the discretionary function exception apply. Moreover, the discretionary function argument was raised in both courts below and acknowledged by the district court, and there are no factual findings necessary for the decision. See Capital Cities Cable, Inc. v. Crisp, No. 82-1795 (June 18, 1984), slip op. 4-5 (reaching question not decided by the courts below where it "was plainly raised in petitioners' complaint, it was acknowledged by both the District Court and the Court of Appeals, (and) the District Court made findings on all factual issues necessary to resolve (the) question"). /23/ Hearings on H.R. 5373 and H.R. 6463 Before the House Comm. on the Judiciary, 77th Cong., 2d Sess. 28 (1942) (statement of Assistant Attorney General Francis M. Shea). /24/ Indeed, because the cause of action identified by the court of appeals depends on the absence of governmental awareness of the hazard at the time of exposure, the military would be required to keep track of exposure to every substance, no matter how apparently innocuous. Common sense suggests the inordinate commitment of resources that would be required for such an undertaking. /25/ Respondent's claim demonstrates the impracticality of such a program. Molsbergen apparently was stationed on an aircraft carrier and flew on sortie over Nagasaki. Absent unusual circumstances, his personnel records would not have revealed that mission or alerted the government that he may have been exposed to radiation. Moreover, the degree of exposure is critical to a determination of whether there is a potential for injury in any particular case. See, e.g., Johnston v. United States, 597 F. Supp. 374, 389-390 (D. Kan. 1984). Without knowing the day of Molsbergen's mission and his flight path, the extent of radiation exposure would be a matter of conjecture. See generally Punnett v. Carter, 621 F.2d at 583-586 & n. 8 (describing assumptions on which estimate of radiation exposure is based). /26/ The content and timing of any warning would involved "significant policy considerations" for a number of reasons: for example, "'(t)he effect of a warning from the United States Government that the recipient has been exposed to radiation which may cause mutagenic defects in his children could be thoroughly devastating * * * (and) the resulting anxiety would be immeasurable.'" Punnett v. Carter, 621 F.2d at 587 (quoting district court decision). /27/ As the district court noted (App., infra, 24a), "the potential social costs of imposing such a (program) would be prohibitive." /28/ The district courts have reached differing results in civilian radiation exposure cases. Compare, e.g., Begay v. United States, 591 F. Supp. 991 (D. Ariz. 1984), appeal pending, No. 84-2462 (9th Cir.) (discretionary function exception applies to claims of uranium miners), with Allen v. United States, 588 F. Supp. 247 (D. Utah 1984), appeal pending, No. 84-2126 (10th Cir.) (exception does not apply to claims of persons living downwind from nuclear test sites). /29/ See also slip op. 17 ("Plainly, whether the government should have undertaken a duty to warn a government contractor's employees about the hazards of working with asbestos during the relevant time periods is a matter that falls within the protection of the discretionary function exception."). APPENDIX