The U.S. Supreme Court's Glossing of the Federal Tort Claims Act: Statutory Construction and Veterans' Tort Actions

• Date: 01 September 1988
• DOI: 10.1177/106591298804100308
• Published date: 01 September 1988
• Author: Howard Ball
• Subject Matter: Articles

THE

U.S.

SUPREME

COURT’S

GLOSSING

OF

THE

FEDERAL

TORT

CLAIMS

ACT:

STATUTORY

CONSTRUCTION

AND

VETERANS’

TORT

ACTIONS

HOWARD

BALL

University

of

Utah

HE

policy

formulation

behavior

of

Congress

and

that

of

groups

as-

t

sociated

with

legislative

policy

making

(the

White

House,

Execu-

JL

tive

Branch

bureaucrats,

pressure

groups,

and

federal

courts

[used

by

parties

involved

in

public

policy

disputes])

varies

from

one

policy

is-

sue

to

another;

different

public

policies

have

their

distinctive

politics

and

political

participants

(Cleaveland

1969:

3,

6

fn

3).

In

this

policy

formu-

lation

activity,

Congress

&dquo;is

organized

in

a

way

that

makes

it

...

incap-

able

of

developing

comprehensive,

long-term

programs&dquo;

(Whalen

1986:

ix).

Policy

formulators

(or,

in

the

absence

of

action

by

that

political

ac-

tor,

the

policy

implementors)

must

create

in

the

legislation

a

&dquo;structure

of

generally

accepted

values ...

that

help

to

resolve

troublesome

ques-

tions

of

definition

and

scope&dquo;

(Cleaveland

1969:

4).

Due

to

the

many

different

legislative

interests

&dquo;striving

to

be

heard&dquo;

and

the

ensuing

con-

gressional

&dquo;cacophony&dquo;

(Whalen

1986:

8),

public

policy

formulated

by

Congress

generally

lacks

a

well-defined

statement.

Consequently,

a

read-

ing

of

the

statute

does

not

provide

the

implementor

with

clear

answers

to

questions

of

policy

definition

and

scope

that

inevitably

arise.

When

Congress

is

silent

and

when

legitimate

claims

are

made

by

per-

sons

that

require

clarity

of

policy

definition

and

scope,

how

is

the

dilemma

resolved?

Sooner

or

later,

such

important

public

policy

ques-

tions

will

be

answered

by

the

federal

judiciary.

As

Chief

Justice

John

Mar-

shall

said,

in

Marbury

v.

Madison

(1803): &dquo;It

is

emphatically

the

province

and

duty

of

the

judicial

department

to

say

what

the

law

is.&dquo;

One

such

public

policy

that

illustrates

this

reality

of

congressional

policy

making

is

the

issue

of

military

veterans’

legal

actions

for

correc-

tive

justice

under

the

terms

of

a

1946

public

policy

enacted

by

Congress.

Since

1945,

when

atomic

power

was

initially

used

for

strategic

military

purposes,

military

personnel

have

been

exposed,

accidentally

and

inten-

tionally,

to

atomic

fallout

and

to

some

of

the

adverse

medical

impacts

of

this

new

risky

technology

(Perrow

1986;

Morone

and

Woodhouse

1986).

Between

1945

and

1963,

almost

250,000

military

personnel -

stationed

in

Japan

as

occupation

forces,

or

as

participants

in

above-ground

Received:

October

31,

1986

First

Revision

Received:

May

12,

1987

Second

Revision Received:

June

2,

1987

Third

Revision

Received:

October

9,

1987

Accepted

for

Publication:

October

13,

1987

530

atomic

tests

in

the

south

Pacific

and

at

the

Nevada

Test

Site

-

have

had

some

exposure

to

the

radioactive

fallout

from

atomic

blasts.

In

the

late

1970s,

many

veterans

(or

their

surviving

spouses)

discov-

ered,

through

examination

of

declassified

government

documents,

that

their

medical

problems,

especially

cancer

and

leukemia,

may

have

been

caused

by

their

exposure

to

radioactive

fallout

while

serving

in

the

mili-

tary.

Demands

for

compensation

for

injuries

received

due

to

alleged

negli-

gent

exposure

to

radiation

from

the

fallout

were

made

by

military

veterans

(and

others)

to

the

Executive

Branch

and

to

the

Congress

after

1979.

The

Executive

Branch,

however,

from

the

Veterans

Administration

to

the

Department

of Justice’s

Civil

Division

to

the

Office

of

Management

and

Budget,

since

President

Jimmy

Carter’s

tenure,

has

been

singularly

unwilling

to

appropriate

compensation

funds

to

assist

veterans.

All

ex-

ecutive

branch

officials

worry

about

the

long-term

costs

of

such

assistance.

They

fear

a

new

series

of

entitlement

programs,

for

veterans,

civilian

&dquo;downwinders,&dquo;

and

others,

similar

to

the

costly

social

security

disabil-

ity

and

black

lung

compensation

plans.

Consequently,

they

refuse

even

to

begin

to

open

up

the

&dquo;deep

pockets&dquo;

of

the

federal

treasury

for

the

military

veterans

and

their

families

(Wines

1983:

2020).

Congress

has

also

been

unwilling

to

act

in

recent

years

for

two

rea-

sons :

(1)

the

extraordinarily

high

potential

costs

of

the

veterans

compen-

sation

plan

and

(2)

the

as-yet-unsettled

scientific

controversy

over

associations

between

low-levels

of

radioactive

fallout

and

the

develop-

ment

of

cancer

and

leukemia.

With

no

available

administrative

remedy

and

with

no

remedial

legis-

lation

introduced

in

Congress,

the

only

remaining

remedy

available

to

the

veterans

and

their

families

is

the

legal

one:

the

tort

suit

under

the

Federal

Tort

Claims

Act

(FTCA).

However,

when

veterans

enter

federal

district

courts,

they

must

confront

the

1950

Feres

doctrine

barrier.

Although

Congress

began

discussions

about

limiting

the

concept

of

Sovereign

Immunity

prior

to

World

War

II,

it

finally

passed

a

statute,

in

1946,

that

purported

to

limit

the

concept &dquo;that

holds

that

the

sovereign

cannot

be

taken

before

a

court

without

its

permission&dquo;

(Cooper

1984:

271).

The

Federal

Tort

Claims

Act

(FTCA),

however,

contained

twelve

major

exceptions

to

this

waiver

of

governmental

immunity,

including

the

important

&dquo;discretionary

function&dquo;

exception

(See

Ball

1985,

1986).

In-

deed,

in

a

recent

federal

tort

liability

opinion,

a

Tenth

Circuit

judge

noted,

starkly:

&dquo;It

will

undoubtedly

come

as

a

surprise

to

many

that

200

years

after

we

threw

out

King

George

III,

the

rule

that

’the

King

can

do

no

wrong’

still

prevails

at

the

federal

level&dquo;

(Allen,

McKay

concurring,

1987:

16).

The

U.S.

Supreme

Court,

however,

by

interpretation

of

legislative

in-

tent,

amended

the

FTCA

in

1950

when,

in

Feres

v.

U. S.,

the

justices

pro-

hibited

servicemen

and

women

(and,

indirectly,

their

spouses

and

offspring)

from

bringing

a

claim

against

the

government

for

injuries

that

arose

during

active

military

service.

The

Feres

doctrine

has

been

applied

in

a

fairly &dquo;mechanical

fashion&dquo;

(Berenstein

1985:

744)

by

federal

courts

ever

since.

Congress,

as

will

be

shown,

has

not

been

inclined

to

modify