The Cancer Spreads: Atomic Veterans Powerless in the Aftermath of Feres v. United States
![handle is hein.journals/cdozo6 and id is 401 raw text is: THE CANCER SPREADS: ATOMIC VETERANS
POWERLESS IN THE AFTERMATH OF
FERES V UNITED STATES
Under the doctrine of sovereign immunity, a private citizen may
not sue the government without its consent.' Despite a perception, in
the early days of the American republic, that this doctrine was incom-
patible with popular sovereignty, it was adopted in the United States
in the early nineteenth century.' Relief in tort could only be obtained
by petitioning Congress to permit a lawsuit or to allocate public funds
to compensate innocent victims wronged by government action.3
However, the number of claims against the United States grew as its
activities increased.4 In 1946, Congress enacted the Federal Tort
Claims Act (FTCA),5 under which the federal government waived
its immunity from suits in tort for negligence.6
The FTCA, however, is not a complete waiver of sovereign im-
munity from tort claims; it contains express exceptions to waiver.7
One such exception bars [a]ny claim arising out of the combatant
activities of the military or naval forces, or the Coast Guard, during
time of war.8 In the landmark decision of Feres v. United States,9 the
Supreme Court construed this exception to mean that the FTCA did
not waive sovereign immunity with respect to injuries incurred by ser-
vicemen aris[ing] out of or. .. in the course of activity incident to
service.' The Court reasoned that veterans are meant to be com-
pensated for their injuries by the Veterans' Administration (VA)
benefits program,I a comprehensive claim system through which a
veteran may collect benefits.2
The Feres decision and its progeny13 have had a devastating im-
1 See infra notes 63-69 and accompanying text.
2 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821); see infra note 67.
3 H.R. Rep. No. 1287, 79th Cong., 1st Sess. 2 (1945).
4 1 L. Jayson, Handling Federal Tort Claims § 52, at 2-6 (1984); see infra notes 70-79
and accompanying text.
5 Ch. 753, 60 Stat. 842 (1946) (codified as amended in scattered sections of 28 U.S.C); see
infra notes 75-76 and accompanying text.
6 Earlier, Congress had waived its immunity with respect to actions in contract, see infra
note 70, and certain limited torts, see infra note 75.
7 28 U.S.C. § 2680 (1982); see infra note 77 for the full text of the exceptions.
8 28 U.S.C. § 2680j) (1982).
9 340 U.S. 135 (1950).
10 Id. at 146.
11 See infra notes 41-46 and accompanying text.
12 38 C.F.R. §§ 3.150-.160 (1984).
13 See infra notes 18-20.](ViewImageLocal?handle=hein.journals/cdozo6&div=23&collection=journals&method=preview&ext=.png&size=3)
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The Cancer Spreads: Atomic Veterans Powerless in the Aftermath of Feres v. United States
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