decided: August 18, 1983.
HINKIE, HOWARD E., SR., HINKIE, IRENE, HINKIE, PAUL A MINOR BY HIS PARENTS AND NATURAL GUARDIANS HOWARD E. AND IRENE HINKIE, HINKIE, HOWARD E., SR., ADMINISTRATOR OF THE ESTATE OF TIMOTHY HINKIE, DECEASED, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
UNITED STATES OF AMERICA, U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, VETERANS ADMINISTRATION, JIMMY CARTER, PRESIDENT, JAMES R. SCHLESINGER, SECRETARY OF ENERGY, MAX CLELAND, ADMINISTRATOR OF THE VETERANS ADMINISTRATION, DR. JAMES LIVERMORE, DEPUTY ASSISTANT SECRETARY OF ENERGY, DR. CLARENCE LUSHBAUGH, ADMINISTRATOR, MEDICAL DIVISION, OAK RIDGE ASSOCIATED UNIVERSITIES, GLENN T. SEABORG, FORMER HEAD, ATOMIC ENERGY COMMISSION, ROBERT A. LOVETT, FORMER SECRETARY OF DEFENSE, BRIGADIER GENERAL WILLIAM C. BULLOCK, U.S. ARMY, COMMANDER OF CAMP DESERT ROCK, AND CERTAIN OTHER PAST AND PRESENT OFFICERS OF THE U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, THE FORMER ATOMIC ENERGY COMMISSION, AND THE VETERANS ADMINISTRATION WHO WILL BE NAMED AS DEFENDANTS WHEN ASCERTAINED, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES. REYNOLDS ELECTRICAL AND ENGINEERING CO., INC., 2501 WYANDOTTE STREET, LAS VEGAS, NEVADA 89114, E G & G INC., 45 WILLIAM STREET, WELLESLEY, MASSACHUSETTS 02181, HOLMES & NARVER INC., 400 E. ORANGETHORPE AVENUE, ANAHEIM, CALIFORNIA 92801, UNITED STATES FILTER CORP., 522 FIFTH AVENUE, NEW YORK, NEW YORK 10036, ROCKWELL INTERNATIONAL CORP., 600 GRANT STREET, PITTSBURGH, PENNSYLVANIA 15219, VICTOREEN INSTRUMENT CO., INC., 10101 WOODLAND AVENUE, CLEVELAND, OHIO 44104, SHELLER-GLOBE CORP., 1505 JEFFERSON AVENUE, TOLEDO, OHIO 43624, BECKMAN INSTRUMENTS INC., 2500 HARBOR BOULEVARD, FULLERTON, CALIFORNIA 92632, UNITED STATES OF AMERICA, APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Hunter and A. Leon Higginbotham, Jr. Circuit Judges and Donald E. Ziegler, District Judge.*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
We are forced once again to decide a case where "we sense the injustice . . . of [the] result"*fn1 but where nevertheless we have no legal authority, as an intermediate appellate court, to decide the case differently.
Plaintiffs-appellees, Irene Hinkie, wife of Howard Hinkie, her son Paul, and the estate of her deceased son Timothy, brought this action against the United States and Reynolds Electrical and Engineering Company. The gravamen of plaintiffs-appellees' complaint is that Irene's miscarriages, Paul's birth defects, and Timothy's birth defects and death were caused by the exposure of Howard Hinkie to radiation during active duty in the United States Army almost thirty years ago. The complaint avers that any injuries suffered by plaintiffs were incident to Howard Hinkie's military service, and that his alleged exposure to radioactive materials occurred while he was on active duty in the Army. Plaintiffs-appellees have alleged that the Federal Tort Claims Act, 28 U.S.C. § 2671-80, et seq, and 28 U.S.C. § 1346(b) and 28 U.S.C. § 1331(a) provide the jurisdictional basis for their claims against the defendant-appellant United States of America.
Before the district court, the defendant-appellant United States moved for the dismissal of the action on the grounds that the court lacked jurisdiction over the subject matter of the action and that pursuant to the doctrine announced in Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), the complaint fails to state a claim upon which relief can be granted.
In a most thoughtful opinion, Judge Norma L. Shapiro, denied the government's motion to dismiss. Hinkie v. United States, 524 F. Supp. 277 (E.D. Pa. 1981). The United States moved for reconsideration and vacation of that denial, or, alternatively, for certification of the issue for interlocutory appeal. Thereafter, the District Court, certified its order of denial for interlocutory appeal under 28 U.S.C. § 1292(b).*fn2 Defendant-Appellant petitioned this Court for permission to take an interlocutory appeal and by Order dated August 31, 1982, that petition was granted.
It is undisputed that Howard Hinkie's recovery, for injuries due to exposure to radioactive material while he was on active duty in the United States Army some thirty years ago, is barred under Feres v. United States. See Jaffee v. United States, 663 F.2d 1226, 1232 (3d Cir. 1981) (en banc); cert. denied, 456 U.S. 972, 72 L. Ed. 2d 845, 102 S. Ct. 2234 (1982). Irene, Paul and the estate of Timothy sue for injuries incident to chromosonal damage suffered by Howard Hinkie while he was in military service. Irene alleges injuries in the form of miscarriages, Paul in the form of birth defects and the estate of Timothy in the form of birth defects that led to his death. We find that these claims are also barred under the Feres doctrine and our most recent decision in Mondelli v. United States, 711 F.2d 567 (3rd Cir. 1983).
The Feres doctrine, in addition to barring injuries suffered by military personnel incident to active duty military service, extends to service-related suits when the injury to a civilian has its genesis in the actionable injury suffered by the military personnel incident to military service. Mondelli barred recovery under the FTCA to a daughter who suffered genetic injuries due to her father's participation in the test of a nuclear device while on active military duty.
Although the result is admittedly harsh,*fn3 we conclude that the facts of Hinkie are not legally distinguishable from Mondelli, and we therefore must reverse the decision of the district court.
As was noted in Mondelli :
Rarely does the law visit upon a child the consequences of actions attributed to the parents. Cf. Trimble v. Gordon, 430 U.S. 762, 769, 52 L. Ed. 2d 31, 97 S. Ct. 1459 (1977); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 31 L. Ed. 2d 768, 92 S. Ct. 1400 (1972). Nevertheless, the Supreme Court has construed the FTCA to subordinate the interests of children of service personnel to the exigencies of military discipline. Although these are delicate policy judgments, they are in the ...
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