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litigation over DU
Thought you all might get a real charge out of this. If you don't want
to click through to read the case and news item, I have attached them
both as ASCII text files.
Bob Scott, Esq., CHP
Roger Williams Medical Center
Providence, RI
bobscottchp@juno.com
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Friendly Fire
Iraqis And Former GIs To Sue In US Over Depleted Uranium
London Independent
Iraqi victims of cancer and former American soldiers suffering from Gulf
war syndrome are joining forces to sue the US government over use of
depleted uranium (DU) missiles. Meetings have been held between
US-based families of the Iraqis, former American service personnel and
lawyers over legal action in America. Former British personnel who say
they have been affected by DU will be invited to join the
multi-million-dollar claims.
[Copy and paste link into browser]
http://www.independent.co.uk/news/World/Middle_East/2000-11/iraqi141100.s
html
Gulf War litigation closer to home:
http://laws.findlaw.com/4th/972234p.html
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Iraqis and former GIs to sue in US over depleted uranium
By Kim Sengupta in Baghdad
14 November 2000
Iraqi victims of cancer and former American soldiers suffering from Gulf war
syndrome are joining forces to sue the US government over use of depleted uranium (DU)
missiles.
Meetings have been held between US-based families of the Iraqis, former
American service personnel and lawyers over legal action in America. Former British (UK)
personnel who say they have been affected by DU will be invited to join the multi-million-dollar
claims.
A decade after Operation Desert Storm, lawyers believe there is enough
evidence to link the massive rise in cancer in Iraq and the effect on British and American
soldiers to almost 950,000 DU missiles and shells fired. A conference will be held in Spain this
month, to be attended by international medical experts, Gulf war veterans and lawyers, including
Ramsay Clark, a former American attorney general. The impending legal action is likely to
dominate the agenda.
Among the veterans to address the conference, in Gijon, will be two Gulf war
syndrome sufferers, Ray Bristol, a Briton, and the former US sergeant Carol Picou, who gave
evidence to a congressional commission on DU munitions.
Their lawyers are expected to say the American government "recklessly" used
DU, a bi-product of nuclear energy, knowing its devastating effect. DU-hardened missiles have a
high penetration rate. When a projectile hits a target, 70 per cent of the DU coating burns and
oxidises, bursting into toxic radioactive particles. One of the main arguments expected to be put
forward is that American soldiers were not given protective clothing when sent to inspect damage
caused by shells coated with DU.
In Iraq, campaigners say, almost 250,000 civilians have been affected by DU and
there has been a sevenfold leap in cancer, especially among children, and deformities in birth.
Unicef, the UN children's organization, says 4,000 children under five die every month.
Professor Ashraf Elbayoumi, a former professor of chemistry at Michigan State
University, said yesterday: "There is ample evidence to link the pattern of cancer to DU."
At the Saddam Children's Hospital in Baghdad there is a continuous stream of
children diagnosed with cancer. And the international ban on trade is biting. Mohammed Firas,
the 29-year-old chief resident doctor, shrugged hopelessly at the end of a 19-hour shift.
"The number of children we are getting with cancer has gone up 400 per cent,"
he said. "But we lack the most basic medication. You see these children bleed and die in front of
you. I just wish there was more we could do ..."
http://laws.findlaw.com/4th/972234p.html
U.S. 4th Circuit Court of Appeals
MINNS v US
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARILYN MINNS, individually and as parent and
guardian of Casey R. Minns (infant); CASEY R.
MINNS; KIMBERLY WALSH, individually and as parent
and guardian of Jena Walsh (infant); JENA WALSH;
DENISE BLAKE, individually and as parent No.
97-2234 and guardian of Katelyn Blake (infant);
KATELYN BLAKE, Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, Defendant-Appellee.
Appeal from the United States District Court for
the District of Maryland, at Baltimore. Joseph H.
Young, Senior District Judge. (CA-96-2504-Y,
CA-96-2505-Y, CA-96-2506-Y)
Argued: May 5, 1998
Decided: September 2, 1998
Before NIEMEYER and WILLIAMS, Circuit Judges, and HOWARD, United States
District Judge for the Eastern District of North Carolina, sitting by
designation.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which
Judge Williams and Judge Howard joined.
_________________________________________________________________
COUNSEL
ARGUED: Kenneth David Pack, LAW OFFICES OF PETER G. ANGELOS, P.C.,
Baltimore, Maryland, for Appellants. Henry Thomas Byron, III, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: H. Russell Smouse, LAW OFFICES OF PETER G.
ANGELOS, P.C., Baltimore, Maryland, for Appellants. Frank W. Hunger,
Assistant Attorney General, Lynne A. Battaglia, United States Attorney,
Robert S. Greenspan, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
In preparation for Operation Desert Storm and the Persian Gulf War, the
United States military inoculated its servicemen and exposed them to
toxins and pesticides in anticipation of possible biological and chemical
attacks by Iraq. The wives and children of three servicemen claim in this
case that the military negligently administered and used "investigational"
and defective drugs on the three servicemen, causing their children, who
were born after the War, serious birth defects.
After the Judge Advocate General of the Air Force through delegated
authority, see 32 C.F.R. § 842.42, disallowed their claims made under the
Military Claims Act, 10 U.S.C. § 2731 et seq ., the wives and children
filed these three actions against the United States both to review the
Judge Advocate General's decisions and to assert independent negligence
claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et
seq . The district court ruled that it did not have jurisdiction to review
the decisions of the Judge Advocate General and that exceptions to the
Federal Tort Claims Act, as well as the doctrine stated in Feres v. United
States, 340 U.S. 135 (1950), applied to exclude their claims under that
Act.
Because the Constitution grants to Congress and not to the judiciary
"plenary control over rights, duties, and responsibilities in the
framework of the Military Establishment," Chappell v. Wallace , 462 U.S.
296, 301 (1983), and Congress has not relinquished this control to the
judiciary, we affirm the district court's order dismissing these cases.
But our decision nonetheless invites Congress to review these claims in
the context of ongoing scientific studies to assure that justice is
accomplished for our returning veterans and their families.
I
Sergeant Brad Minns of the U.S. Army, Chief Petty Officer Brian Walsh of
the U.S. Navy, and Private Paul F. Blake of the U.S. Army are veterans of
the Persian Gulf War which was fought in 1991. In preparation for the War,
they were inoculated with drugs and exposed to pesticides by the military
in anticipation of possible biological and chemical attacks by Iraq.
Following the war, each serviceman returned to his wife and fathered a
child who was born with serious birth defects. All three children suffer
from Goldenhar's Syndrome, a rare birth defect producing deformity,
including asymmetry of the face and body, a partially developed or
lopsided ear, internal fistulas, and, in some cases including these
children, esophageal malformations and the absence of an anal opening. The
families of these children recognize that scientific studies about the
effects of the administered drugs and pesticides are in process and will
not be concluded until later in 1998 or in 1999. Based on preliminary
results from some studies, however, they believe that the toxins to which
the servicemen were exposed were possibly stored in the servicemen's semen
and passed on to their wives, where the toxins were stored in fatty tissue
and ultimately were released during pregnancy to the fetus. The deformed
children were born from one to two-and-one-half years after the servicemen
were exposed to the toxins and pesticides.
The wives and children presented claims for damages to the Office of the
Judge Advocate General under the Military Claims Act, 10 U.S.C. § 2731 et
seq . After the Judge Advocate General disallowed their claims, they filed
these actions to review the Judge Advocate General's decisions and to
assert claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671 et seq . In substantially similar complaints, the wives and children
of these three returning servicemen allege that the United States
"negligently administered [to the servicemen] a course of immunizations"
and "negligently exposed [the servicemen] to a variety of unreasonably
dangerous, toxic pesticides." The complaints state that the military
"failed to supervise, direct and implement the use and exposure of their
products," which were "hazardous, unreasonably dangerous, [and]
defective." They further allege that the products were used "without
proper testing, approval, warnings and directions." Each mother and child
demands $20 million in damages as a result of the United States'
negligence.
The United States filed a motion to dismiss these complaints under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction,
and the district court granted the motion, ruling that the Feres doctrine,
as stated in Feres v. United States , 340 U.S. 135, 146 (1950), and the
"discretionary function" exception to the Federal Tort Claims Act barred
plaintiffs' negligence claims under that Act and that the courts have no
authority to review administrative decisions under the Military Claims
Act. These appeals followed.
II
Through enactment in 1948 of the Federal Tort Claims Act ("FTCA"), 28
U.S.C. §§ 1346(b), 2671 et seq ., Congress waived the sovereign immunity
of the United States for certain torts that other- wise could be proved
against it. The FTCA did not create new causes of action but merely
accepted liability against the United States for circumstances that
otherwise "would bring private liability into existence." Feres , 340
U.S. at 141 . Indeed, the FTCA expressly states that the United States is
liable for tort claims "in the same manner and to the same extent as a
private individual under like circumstances." 28 U.S.C. § 2674.
Relying on this operation of the FTCA, the Supreme Court concluded in
Feres that even after enactment of that Act, servicemen could not sue the
government because "[w]e know of no American law which ever has permitted
a soldier to recover for negligence, against either his superior officers
or the Government he is serving." 340 U.S. at 141 (footnote omitted). The
Court summarized, "[The Act's] effect is to waive immunity from recognized
causes of action and was not to visit the Government with novel and
unprecedented liabilities." Id. at 142. On this basis, the Feres doctrine,
thus established, holds precisely that under preexisting law servicemen
could not sue fellow servicemen or the government "for injuries to
service- men where the injuries arise out of or are in the course of
activity incident to [military] service," id. at 146, and that the FTCA
did not create or imply such liability.
The wives and children of the three servicemen involved in this case do
not attempt to take issue with the conclusion that under the Feres
doctrine the three servicemen do not have claims against the government
for damages under the FTCA. But they argue that, as wives and children of
servicemen, they are not barred from prosecuting a claim under the FTCA
based on the United States' negligent acts directed at them . They observe
that if they are not allowed to prosecute their tort claims under the
FTCA, they have no remedy at all for their damages. To address their
argument, we must first examine the scope of the Feres doctrine.
While justifications for the Feres doctrine include the fact that
compensation is provided to servicemen through a no fault comprehensive
benefit scheme and the fact that a serviceman's relationship to the
government is a "distinctively federal" one, Stencil v. Aero Eng'g Corp. ,
431 U.S. 666, 671 (1977), its principal justification focuses on the
unique relationship between the government and its military personnel:
Although the Court in Feres based its decision on several grounds, in the
last analysis, Feres seems best explained by the 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. Shearer , 473 U.S. 52, 57 (1985) (internal quotation
marks and citations omitted). The military has a unique need to operate
under special regulations and rules of order to ensure "unhesitating and
decisive action by military officers and equally disciplined responses by
enlisted personnel." Chappell , 462 U.S. at 304 . This discipline "would
be undermined by a judicially created remedy exposing officers to
personal liability at the hands of those they are charged to command." Id.
Accordingly, consistent with the structure created by the Constitution,
which leaves control of the military to the Legislative and Executive
Branches, see U.S. Const. art. I, § 8; art. II, § 2, "Congress has
created, and [the Supreme] Court has long recognized two systems of
justice, to some extent parallel: one for civilians and one for military
personnel." Chappell , 462 U.S. at 303 -04. "It would be difficult to
think of a clearer example of the type of governmental action that was
intended by the Constitution to be left to the political branches directly
responsible -- as the judicial branch is not -- to the electoral process.
Moreover, it is difficult to conceive of an area of governmental activity
in which the courts have less competence." Id. at 302 (quoting Gilligan v.
Morgan , 413 U.S. 1, 10 (1973)). Thus, even where a judicial action does
not "contest the wisdom of broad military policy," the Feres doctrine
requires courts to reject actions which are "the type of claims that, if
generally permitted, would involve the judiciary in sensitive military
affairs at the expense of military discipline and effectiveness." Shearer
, 473 U.S. at 59 . If a suit requires deep inquiry into military decisions
or would strongly impact military discipline, the Feres doctrine will bar
it.
These considerations that prohibit servicemen's suits against the
government also prompt the extension of the Feres doctrine to prohibit
non-servicemen's suits against the government which are derivative of or
ancillary to servicemen's injuries. See Kendrick v. United States , 877
F.2d 1201, 1206-07 (4th Cir. 1989) (holding that Feres doctrine is
"equally applicable" to family member claims "derivative" of a service
member's injuries); Gosport v. United States , 713 F.2d 1097, 1102 (5th
Cir. 1983) ("Courts . . . have widely ruled that FTCA relief is not
available to family members for claims based on the injuries to their
relatives in the armed forces. . . . This is true even when the claims of
the family members are independent of the serviceman's cause of action"
(citing cases)). The reason for this extension is clear. Because such
non-servicemen's suits would require courts to engage in exactly the same
intrusion into military decisions as would service- men's suits, such as
by requiring military personnel to testify against their commanding
officers, they would pose almost as many problems -- judicially and
militarily -- as would a serviceman's suit over the same issue. See id. at
1102.
For this reason, most courts have adopted a "genesis" test for evaluating whether the Feres
doctrine applies to derivative genetic injury
claims of servicemen's children based on governmental negligence in
exposing the servicemen to dangerous substances. See , e.g. , Hinkie v.
United States , 715 F.2d 96, 98-99 (3d Cir. 1983); Lombard v. United
States , 690 F.2d 215, 223-24 (D.C. Cir. 1982); Monaco v. United States ,
661 F.2d 129, 133 (9th Cir. 1981). Under this test, if a non- serviceman's
injury finds its "genesis" in the injury suffered by a serviceman
incident to service, then the Feres doctrine bars the non- serviceman's
suit. See , e.g. , Hinkie , 715 F.2d at 98-99. Stated other- wise, if the
non-serviceman's suit is based on essentially the same facts as the
potential serviceman's suit or the non-serviceman's suit could not have
happened "but for" the serviceman's cause of action, then under the
genesis principle the Feres doctrine precludes the suit. See , e.g. ,
Gosport , 713 F.2d at 1102; Lombard , 690 F.2d at 223-24.
Until now, we have not had occasion to address the merits of this test. In
Romero v. United States , 954 F.2d 223 (4th Cir. 1992), we did permit a
suit to proceed against the United States based on an infant's injury
caused by a military doctor's failure to undertake specified pre- natal
procedures. We observed, however, that because the purpose of the failed
treatment "was to insure the health of a civilian ," id. at 225 (emphasis
added), and the government owed an affirmative duty of care "directly" to
the civilian, id. at 226, the genesis test did not apply. We recognized,
however, that the test might nevertheless bar a derivative injury claim
where a "civilian injury . . . derives from a service- related injury to a
service person," such as occurs when service members are exposed to
radiation or Agent Orange resulting in later injury to a fetus or infant.
Id. (emphasis added).
Because the genesis test well accords with the primary purpose of the
Feres doctrine and is applicable to factual circumstances similar to those
presented in this case, we now join the other circuits which have adopted
it as their test for evaluating tort claims of non-military personnel that
derive from servicemen's relationships with the government. Turning to
the circumstances before us, the military decided to inoculate its
servicemen, including the three servicemen involved in this case, and to
expose them to drugs and pesticides in anticipation of possible biological
and chemical attacks by Iraq. Even if the military had been negligent in
carrying out this program, the families of the servicemen agree that the
Feres doctrine prevents the servicemen themselves from suing the United
States under the FTCA. They maintain, however, that because they are
wives and children of service- men, not servicemen themselves, their
claims are not barred by Feres . But they overlook the fact that, in
advancing their own negligence suits, they rely upon the same negligent
acts that allegedly impacted the servicemen.
Under the chain of causation that these wives and children assert, the
military's negligence in implementing and administering the inoculation
program to the servicemen resulted in making them carriers of the toxins
to their wives and ultimately to their newborn children. This negligence
in implementing and administrating the program to the servicemen thus was
the "genesis" and the"but for" cause of the injuries to the wives and
children. To establish the liability of the United States, the wives and
children would have to challenge the decisions and acts of military
personnel in preparing for war, and their suits would thus entail
second-guessing decisions and acts that were indisputably "incident to
military service." If allowed to proceed, their suits would place the
courts in exactly the position that the Feres doc- trine was designed to
avoid.
The wives and children have attempted to bypass this straightforward
application of the Feres doctrine in several ways. First, they point out
that they have not alleged that the servicemen were injured, arguing that
the only injury alleged occurred to themselves . But the omission of this
allegation is not critical to the Feres analysis. "[T]he focus of Feres is
not upon when the injury occurs or when the claim becomes actionable,
rather it is concerned with when and under what circumstances the
negligent act occurs." Kendrick , 877 F.2d at 1203 (emphasis added).
"Whether [the plaintiffs'] injury `occurred' when [they were] born with a
birth defect or when [their] father[s] suffered chromosomal change, the
allegedly negligent act drawn into question was performed while [the
servicemen were] in the service." Monaco , 661 F.2d at 133. Thus, the
inquiry must focus on whether the negligent act is the basis for the "
type of claim[ ] that, if generally permit- ted, would involve the
judiciary in sensitive military affairs at the expense of military
discipline and effectiveness." Shearer , 473 U.S. at 59 . We conclude that
the plaintiffs cannot escape the fact that the negligent acts alleged in
their complaint find their basis in the military's decision to inoculate
its soldiers with drugs and to expose them to pesticides, and the issue of
whether they can allege or demonstrate injury is irrelevant to the
analysis. See , e.g. , Monaco , 661 F.2d at 134 (holding that the fact
that a plaintiff may seek relief from injury not based on the injury of
the serviceman "does not change the substantive analysis [because] the
court must still examine the Government's activity in relation to military
personnel on active duty").
The plaintiffs also argue that the operative relationship is the con- tact
they had with the dangerous products and that because they were not in the
service, their injuries were not incident to military service. But this
allegation still does not alter the outcome derived from applying the
genesis test. The plaintiffs' exposure to the chemicals occurred because
the servicemen first and necessarily were exposed. Because the
servicemen's exposure to the chemicals is the genesis of the plaintiffs'
alleged contact with the chemicals, Feres bars the claims.
The plaintiffs make a separate argument that the government's failure to
warn was an independent act of negligence which was not derivative of
servicemen's claims but which directly affected the plaintiffs. Similarly,
however, this allegation arises out of the general failure to warn about
the risks associated with a military decision made to protect soldiers
during an impending war. Questioning the military's decision not to warn
either the soldiers or their families about the possible risks of
inoculation or exposure to pesticides would again create the
court-intrusion problem that the Feres doctrine aims to avoid. Courts
would be questioning strategies, defense preparations, and the
military's control of information, contrary to their authority. See , e.g.
, Persons v. United States , 925 F.2d 292, 296-97 (9th Cir. 1991); Heilman
v. United States , 731 F.2d 1104, 1107-09 (3d Cir. 1984).
Finally, the plaintiffs argue that some of the underlying rationales for
the Feres doctrine do not apply to them. They note, for example, that as
wives and children they do not have a distinctively federal relationship
to the government nor do they have an effective remedy for their claims
under present law, and thus that two justifications for the Feres doctrine
are not relevant in their case. Even so, the plaintiffs cannot avoid the
fatal consequence that their suits would require the judiciary to enmesh
itself deeply into military decisions, a consequence that implicates the
primary justification for the Feres doctrine.
Because the wives' and children's claims against the United States are
derivative of the military's alleged negligent acts directed at its
servicemen, the Feres doctrine, applied through the genesis test, bars
them.
III
Even were the Feres doctrine not determinative of the United States'
liability to the wives and children in this case, the wives and children
would still have to demonstrate that they did not fall within any of the
several exceptions to recovery under the Federal Tort Claims Act. The
first of these exceptions states that sovereign immunity is not waived
for "[a]ny claim based upon an act or omission of an employee of the
Government . . . 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 an employee of the Government, whether or not the
discretion involved be abused." 28 U.S.C. § 2680(a) (emphasis added).
Plaintiffs argue that the discretionary function exception does not apply
because they are alleging the negligent administration of a decision and
a negligent failure to warn. They are adamant in pointing out that they
are not alleging negligent policy choices.
Although Congress did not expressly define what it meant by the term
"discretionary function," the Supreme Court has explained that with the
discretionary function exception, "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." United States v. Varig Airlines , 467 U.S. 797, 814 (1984).
Thus, when governmental conduct (1) is the product of choice or is a
judgment and (2) is "based on considerations of public policy," it
becomes a discretionary act shielded from tort liability. See Berkovitz v.
United States , 486 U.S. 531, 536-37 (1988); Williams v. United States ,
50 F.3d 299, 309 (4th Cir. 1995); see also United States v. Gaubert , 499
U.S. 315, 324-25 (1991). On the other hand, if governmental conduct is
prescribed by federal statute, regulation, or policy, the discretionary
function exception does not apply because "the employee has no rightful
option but to adhere to the directive." Berkovitz , 486 U.S. at 536 .
We should note that when discretionary decisions are ones of professional military discretion,
they are due the courts' highest deference. See Tiffany v. United States , 931 F.2d 271, 277 (4th
Cir. 1991) ("Of the legion of governmental endeavors, perhaps the most clearly marked
for judicial deference are provisions for national security and defense").
And the "complex, subtle, and professional decisions" of how to protect
American soldiers in time of war and how to administer such protection
are decisions that are "essentially professional military judgments,"
overseen by the Legislative and Executive Branches. Id. at 278 (quoting
Gilligan , 413 U.S. at 10 ).
In applying these principles to the facts of the complaint, we must
address three discrete aspects of the plaintiffs' negligence allegations.
First, the plaintiffs allege that the United States was negligent in
administering the inoculations and pesticides, principally by using
"investigational" drugs, long-stored drugs, defective drugs, or hazardous combinations of drugs.
They are careful to note that they are not challenging the underlying policy decision to use the
drugs, maintaining
that the "operational" decisions of administering drugs are not protected
in the same way that "planning" decisions are. Second, the plaintiffs
allege that the United States was negligent in providing inadequate
warning about the drugs. And finally, they allege that the military lacked
governmental authority to make its exposure decisions.
On the first aspect of the negligence alleged, we conclude that the
plaintiffs' attempts to distinguish, through semantic refinement, between
decision-making and administrative conduct, as well as between
"operational" and "planning" decisions, do not withstand scrutiny in the
circumstances of this case. Even if the military used investigational,
worn out, or defective drugs that had been stored too long, someone in the
military nevertheless made the decision to use them, and that decision,
with all its alleged flaws, amounted to a judgment that the risk of
using these drugs was less than the risk of exposing unprotected
soldiers to potential biological and chemical attack. Not only did that
decision lead to the use of drugs and pesticides but it also included the
decision to use the particular drugs available and in the combinations
that were thought necessary to accomplish the intended objective. However
this aspect of the negligence claim is characterized, it aims directly at
the military's decisions to use these particular drugs in the context of
given knowledge and risks. Nothing could be closer to the core of
discretion as defined in Berkovitz and Varig .
The plaintiffs' efforts to distinguish between "operational" decisions
and "planning" decisions are also not useful to them because the Supreme
Court has rejected making a distinction on this basis. In Gaubert , the
Court explained that "[a] discretionary act is one that involves choice or
judgment; there is nothing in that description that refers exclusively to
policy-making or planning functions." Gaubert , 499 U.S. at 325 . Rather,
decisions that take place in the administration of a policy decision are
also protected -- even if an abuse of discretion -- so long as they are
judgments based on policy considerations. Id. at 326.
On the second aspect of the plaintiffs' negligence claims, involving a
failure to warn, the decision whether to warn soldiers and their fam-
ilies of the potential effects of inoculations and pesticides also
amounted to a judgment call. The decision whether to warn about the
effects of inoculations and pesticides implicates other military decisions such as whether to risk
alerting the enemy about war preparations
and whether to give a warning that might be harmful to cohesion,
particularly when the decision had already been made to use the drugs.
This decision falls equally at the core of the discretionary function
exception. As the Seventh Circuit has noted, the decision to warn is
"replete with choices" and requires"ascertaining the need for a warning
and its cost," "determining the group to be alerted, as well as the
content and procedure of such notice," and ultimately, "balanc[ing]
safety with economic concerns." Maas v. United States , 94 F.3d 291, 297
(7th Cir. 1996); see also Williams , 50 F.3d at 310; In re Agent Orange ,
818 F.2d 194, 200-01 (2d Cir. 1987) (holding that a failure to warn is a
discretionary function and that "[t]he very paucity of proof concerning
the possible deleterious effects of Agent Orange made the decision whether
to issue a nationwide health warn- ing even more clearly an exercise of
discretion"). But see Dube v. Pittsburgh Corning , 870 F.2d 790, 798-800
(1st Cir. 1989) (holding that a failure to warn was not a policy
judgment).
Finally, on the third aspect, which alleged a lack of authority to
administer the inoculation program, the plaintiffs have pointed to no
statute or regulation that limits the military's authority to make these
policy decisions. Without such a limitation, the military's decisions are
necessarily discretionary.
Because we find that the discretionary function exception in the Federal
Tort Claims Act bars the plaintiffs' suits, we need not consider the
other exceptions of the Federal Tort Claims Act raised by the United
States, namely, that the decisions involved "combatant activities" and
that the negligence occurred in a"foreign country." See 28 U.S.C. §
2680(j), (k).
IV
Finally, the plaintiffs seek judicial review of the Judge Advocate
General's decision disallowing their claims under the Military Claims Act,
10 U.S.C. § 2731 et seq . They urge that we remand these cases to the
Office of the Judge Advocate General to await completion of the pending
studies on the effects of the Gulf War inoculations and pesticides.
Unfortunately for the plaintiffs, however, the Military Claims Act does
not provide for judicial review of the Judge Advocate General's
decisions. Rather, it provides, "Notwithstanding any other provision of
law, the settlement of a claim under section 2733 . . . is final and
conclusive ." 10 U.S.C.§ 2735 (emphasis added). The Act defines "settle"
to mean "consider, ascertain, adjust, determine, and dispose of a claim,
whether by full or partial allowance or by dis- allowance." 10 U.S.C. §
2731.
We believe that when Congress provided that the decisions of the Judge
Advocate General are "final and conclusive," it placed final dis- cretion
over military claims with the military and not with the courts. All of the
circuits which have interpreted these provisions agree, con- cluding that
the "final and conclusive" language of § 2735 bars judi- cial review in
all but cases of constitutional error. See Collins v. United States , 67
F.3d 284, 286-88 (Fed. Cir. 1995); Schneider v. United States , 27 F.3d
1327, 1331-32 (8th Cir. 1994); Hata v. United States , 23 F.3d 230, 232-33
(9th Cir. 1994); Rodrigue v. United States , 968 F.2d 1430, 1432-34 (1st
Cir. 1992); Poindexter v. United States , 777 F.2d 231, 233-37 (5th Cir.
1985); Broadnax v. United States Army , 710 F.2d 865, 867 (D.C. Cir. 1983)
(barring judicial review except in limited circumstances); Labash v.
United States Dep't of Army , 668 F.2d 1153, 1155-56 (10th Cir. 1982).
Because the plaintiffs assert no question of constitutional magnitude, we
must affirm the court's dismissal of the plaintiffs' claims under the
Military Claims Act.
V
Our rulings in these cases leave the wives and children of the three
returning servicemen without a judicial remedy, even if their claims have
merit. As the plaintiffs readily acknowledge, scientific studies have not
yet demonstrated the necessary causal link between the servicemen's
inoculations and pesticide exposure and their children's birth defects. If
scientists are able to demonstrate that this link exists, the matter might
become an appropriate one for the serious consider- ation of Congress.
Congress has a long history of providing warranted relief for the impact
of military service on veterans and their families, and to remedy the
service-related injuries of our veterans and their families is a proper
and noble function of the Legislative Branch. See Chappell , 462 U.S. at
302 .
AFFIRMED