DISCLAIMER The following is a staff memorandum or other working document prepared for the members of the Advisory Committee on Human Radiation Experiments. It should not be construed as representing the final conclusions of fact or interpretation of the issues. All staff memoranda are subject to revision based on further information and analysis. For conclusions and recommendations of the Advisory Committee, readers are advised to consult the Final Report to be published in 1995. TAB J þþþDRAFT þ FOR DISCUSSION PURPOSES ONLYþþþ MEMORANDUM TO: Members of the Advisory Committee on Human Radiation Experiments FROM: Advisory Committee Staff DATE: October 4, 1994 RE: Overview of Radiation Exposure Compensation Programs This memo summarizes the statutes, agreements, and related regulations that have been established to provide relief to certain groups of persons exposed to ionizing radiation by the United States Government. (Because staff has not had time to evaluate each of these programs, there is no discussion of concerns with implementation or limitation of the programs, or the reasons that claims have been denied; staff intends to prepare such an analysis for a future Committee meeting.) This memo also discusses several key legal cases concerning the types of claims made by these groups. Since the mid 1970s, the government has established three major programs to provide compensation for persons who may have been harmed from exposure to radiation released by the U.S. Government. The first is a Department of Veterans Affairs (VA) program designed for veterans who were exposed to radiation, with special provisions for those exposed at Hiroshima and Nagasaki and at atomic weapons tests, under the Veterans Dioxin and Radiation Compensation Standards Act of 1984 and the Radiation-Exposed Veterans Compensation Act of 1988 to help facilitate the claims. The second is the Nuclear Claims Trust Fund pursuant to a 1986 international agreement between the governments of the United States and the Marshall Islands to compensate inhabitants of those islands who were exposed to radiation from U.S. weapons testing. The third is the Radiation Exposure Compensation Act, enacted in 1990 to provide compensation to uranium miners, persons living downwind from the Nevada Test Site, and veterans and civilians at the site of atmospheric weapons tests in Nevada and the Pacific who were exposed to radiation. These three statutes provide varying degrees of compensation to persons who meet the requirements of each Act. 1 Groups composed of uranium miners, downwinders, and test-site personnel have each also filed claims in federal court seeking compensation.[Litigation brought by Marshallese was withdrawn in 1986 when the United States paid $150 million into the Nuclear Claims Trust Fund.] All of these claims have been rejected by the courts on the grounds that there was no legal authority to hold the government liable, even if its action harmed the individuals. But in the two cases involving the uranium miners and downwinders, the courts recognized that the claimants had been harmed and specifically called on Congress to provide a legislative remedy in the absence of a judicial remedy. In contrast to these persons exposed to radiation, there is no general statutory remedy available to research subjects who have been harmed in the course of research. Currently available remedies for such injuries will be discussed in later briefings and memos. I. The VA Compensation System The VA provides a general system of health care and benefits to veterans for service-connected deaths and disabilities that resulted from or were aggravated by military service. [See Title 38 of the United States Code, especially chapters 11 and 13 (death/disability) and 17 (health care).] Cash benefits for service-connected injury are intended as a partial remedy for impairment or loss of earning capacity. The VA health care program is designed to treat veterans who were injured during service or those veterans who are otherwise unable to receive health care. By the VA's count, there are 2.2 million veterans that qualify for disability compensation, in addition to the survivors of 300,000 veterans who also may qualify for benefits. Veterans with death or disability claims that arise from exposure to ionizing radiation can assert their claims under the Veterans Dioxin and Radiation Compensation Standards Act of 1984 and the Radiation-Exposed Veterans Compensation Act of 1988. [P.L. 98-542, 98 Stat. 2725 (Mar. 2, 1984); P.L. 100-322, 102 Stat. 534 (May 20, 1988).] The 1984 statute required the VA to establish criteria and standards for veterans with claims arising from exposure to ionizing radiation under the normal case-by-case process for administering service- connected claims. According to VA, the process set up pursuant to this statute applies to any radiation exposure of any veteran in the course of military service, including medical procedures, accidents, nuclear clean-up and decontamination activities, etc. The 1988 statute, on the other hand, applies only to "radiation-exposed veterans" -- defined in the statute as persons exposed to ionizing radiation during the atmospheric weapons tests (including underwater nuclear detonations), the occupation of Hiroshima and Nagasaki, or internment in Japan during World War II. 2 Under the VA system in general, health care is provided and compensation is paid for disabilities or death resulting from injuries or diseases incurred or aggravated during active military service. Tax-free disability benefit payments range from $85 to $4,943 per month depending on the degree of disability of the veteran. Surviving spouses and children are eligible for death benefits from $9,228 to $19,632 per year depending on service rank. Veterans who seek such payment and health-care must file a claim with the VA alleging that they have an ailment and that it is service-connected; VA will then assess the claim by examining the individual and his or her medical and military records. In addition, a Veterans Advisory Committee on Environmental Hazards was created in 1984 to advise the VA. In 1991, its primary focus became radiation. The Advisory Committee reviews the scientific literature to determine whether additional diseases appear to be radiogenic and may recommend epidemiological studies. A. Case-by-Case Assessment of Claims Veterans who do not qualify as "radiation-exposed veterans" under the 1988 Act and those who do but who do not have one of the 15 listed cancers that give rise to a statutory presumption of "service- connection" (see below) require a case-by-case analysis of their claim by the VA under the general process for service-connected ailments. These veterans must show: (1) that they have a radiogenic disease that arose within a prescribed period for that disease, [A recent Federal Circuit Court decision held that, because Congress did not intend to cut off any remedies for veterans by enacting the Veterans Dioxin and Radiation Exposure Compensation Standards Act, the VA's list of radiogenic diseases in 38 C.F.R. section 3.311 (b)(2) cannot prevent a veteran from bring a death or disability claim for a disease that is not specifically listed as radiogenic. The court held that the VA's regulations cannot contain an exclusive list of radiogenic diseases for which veterans may bring claims. Crombee v. United States, Docket No. 93-7107 (Fed. Cir., decided Sept.1, 1994).] and (2) that they experienced radiation exposure during their service activities in sufficient amounts to be "more likely than not"to cause the disease. In these cases, the VA receives a dose estimate from the military (or form service records or published literature sources if dose from a medical treatment is involved), which can be rebutted by the claimant. [If the veteran provides a dose assessment from a credible source, such as a certified health physicist, nuclear medicine or radiation specialist, that differs by at least a factor of two with the government's assessment, an independent consultant will then provide the dose assessment. This procedure of consulting an outside expert is apparently not common, because claimants rarely have access to the required dose assessment expertise in order to provide their own dose estimate.] The individual radiation exposure estimates for the on-site atmospheric test participants are provided by the Nuclear Test Personnel Review Program, which is overseen by the Defense Nuclear Agency. Other branches of the military provide dose estimates to the VA when relevant. The VA does not currently conduct its own (or an independent) dose reconstruction for the veterans. 3 By its own regulation, the VA benefits office is required to approve or deny a claim as having a service connection based on the following factors: * dose; * radiosensitivity of the tissue involved; * gender and family history; * age at exposure; * lapse of time between exposure and onset of disease; and * exposures to other carcinogens. The VA issues a medical opinion regarding whether the disease is "more likely than not" to have been related to the veteran's radiation exposure based on: (1) the military's dose estimate; (2) medical records demonstrating the diagnosis of the disease; (3) the claimants' smoking history (in the case of lung cancer); (4) probability of causation tables (based on the NIH's radio-epidemiological tables required by the 1984 statute) published by the Committee on Interagency Radiation Research and Policy Coordination specifically for the VA's use in these cases; and (5) other standard radiation references like BIER V and textbooks. The benefits office makes its decision to grant or deny a claim based on the medical opinion. Throughout the process, the VA apparently does not modify or make any offset to the dose estimate provided by the military in any way. B. Claims Involving Cancers with Service-Connected Presumption The Radiation-Exposed Veterans Compensation Act of 1988 established special procedures for "radiation-exposed veterans" to make disability claims for service-connected deaths or disabilities. The VA estimates that there are some 401,000 such exposed veterans. Under this statute, VA provides them a presumption of service connection for 15 cancers related to radiation exposure (increased from 13, see below). In addition, such persons are entitled to free medical care through the VA medical system for any condition, even if there is insufficient evidence of its connection to service, unless the VA specifically finds the condition was created by some other cause (e.g., if the person was hit by a bus). A veteran must establish medical evidence of a statutorily-presumed, service-connected cancer and that he or she is a person covered by the Radiation-Exposed Veterans Compensation Act of 1988. In order to gain the benefit of the "statutory presumption" in this Act (by which the claimant does not need to prove a direct causal connection between the disease and the exposure), a veteran must be a radiation-exposed veteran, which is defined in the VA regulations as an on-site participant [The term on-site participant means: (A) During the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test; (B) During the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test; (C) Service as a member of the garrison or maintenance forces on Enewetak during the periods June 21, 1951, through July 1, 1952, August 7, 1956, through August 7, 1957, or November 1, 1958, through April 30, 1959; (D) Assignment to official military duties at Naval Shipyards involving the decontamination of ships that participated in Operation Crossroads. 38 C.F.R. section 3.309 (d)(3)(iv) (1993).] in a test involving atmospheric detonation of a nuclear device; a member of the occupation force in Nagasaki and Hiroshima; or an individual who was interned in Japan and as such experienced an opportunity for radiation exposure. No dose assessment is required for claims by these atomic veterans. [In addition, the veteran does not have to produce evidence substantiating the exposure unless the service records of other DOD records are not inconsistent with the claim that the veteran was present where and when the claimed exposure occurred.] 4 The following fifteen cancers carry a statutory presumption of service connection: * Leukemia (other than chronic lymphocytic leukemia); * Cancer of the thyroid; * Cancer of the breast; * Cancer of the pharynx; * Cancer of the esophagus; * Cancer of the stomach; * Cancer of the small intestine; * Cancer of the pancreas; * Multiple myeloma; * Lymphomas (except Hodgkin's disease); * Cancer of the bile ducts; * Cancer of the gall bladder; * Primary liver cancer (except if cirrhosis or hepatitis B is indicated); * Cancer of the salivary gland; and * Cancer of the urinary tract. As of July 1,1994, 16,228 total claims have been submitted to VA by veterans who allege they were exposed to ionizing radiation during their service to the United States. This group includes both those veterans who qualify for the presumption of service-connection and those who do not, the latter of whose claims therefore undergo case-by-case assessment. Of these radiation exposure claims, 14,696 claims have been denied. 1,510 of the claims have been allowed (1154 in whole and 356 in part) by VA. [It is possible that these claims may have been granted based on other provisions of the law not related to radiation exposure.] Veterans who receive compensation under the Radiation Exposure Compensation Act (RECA) (described below) must waive all other claims against the government, such as disability and death benefits, to which they might have been entitled; however, they do apparently maintain their VA health benefits. 5 II. The Marshall Islands Nuclear Claims Trust Fund In 1986, the governments of the United States and the Republic of the Marshall Islands (RMI) entered into a Compact of Free Association, which recognized the RMI as an independent nation. [P.L. 99-239,  177, 99 Stat. 1812 (Jan. 14, 1986).] As part of the compact, the United States agreed to pay $150 million to establish a Nuclear Claims Trust Fund to compensate the Marshallese for medical and property damages caused by the nuclear weapons tests, to be paid out over a 15 year period; the Marshallese were required to drop all litigation against the United States for such damages. From this fund, $33 million is to be paid to the RMI to conduct health care, undertake radiological surveillance, and provide technical assistance for food and agricultural programs; $183.75 million, through quarterly payments, is to be paid to the peoples of Bikini, Enewetak, Rongelap, and Utrik, who received the highest levels of fallout; and $45.75 million is to be paid to a Nuclear Claims Tribunal to pay individual claims for personal injury and property damage. The compact provides that excesses in the trust fund at the end of 15 years are to be deposited into the Claims Tribunal for additional processing of claims. The Nuclear Claims Tribunal is administered under RMI jurisdiction and in accordance with its laws. Claims can be filed by residents of any of the Marshall Islands, and by the survivors of deceased persons. Claimants do not have to prove direct causation of their disease from the exposure. Rather, medical claimants must establish only that they have contracted a presumed medical condition and that they resided in the Marshall Islands during the test period to receive compensation. (The Tribunal has relied on the 15 cancer listed in the Radiation Exposed Veterans Compensation Act, plus an additional 12 disease for a total of 27.) The Tribunal assigns monetary figures for each condition, ranging from $12,500 to $125,000. The Tribunal began processing claims in 1991. As of March 1992, a total of 7217 claims were filed; 2266 were medical claims, for which 437 were granted and 1771 rejected (58 were still pending), with an average payout of $33,400 and a total payout of $14.6 million; at the end of 1993, 676 claims were granted totalling $22.8 million. III. Radiation Exposure Compensation Act The Radiation Exposure Compensation Act (RECA) was originally enacted in 1990 in the wake of unsuccessful litigation by downwinders and uranium miners. [The RECA is codified at 42 U.S.C. 2210 note (1993).] In both cases, the courts ruled that the government could not be held liable, but acknowledged that the plaintiffs had suffered and called on Congress to legislate a remedy (see discussion of cases below). The RECA has been amended twice, in 1990 and 1992. The 1990 amendment clarified various procedural aspects of the law and expanded the pool of claimants to include veterans and civilians exposed to atmospheric weapons tests. The 1992 amendment added a new subsection to allow for judicial review for persons whose claims are denied. The statute begins with a section on "Findings, purpose, and apology." In it, the Congress found that the radiation from atmospheric nuclear tests and uranium mines were presumed to have generated an increased incidence of cancer and other diseases; Congress also found that the persons exposed were put at risk "to serve the national security interests of the United States." Congress then states that the purpose of the RECA is "to establish a procedure to make partial restitution to the individuals described [above] for the burdens they have borne for the Nation as a whole." Finally, the Congress offered a formal apology "on behalf of the Nation to the individuals described [above] and their families for the hardships they have endured." 6 The RECA then created a "Radiation Exposure Compensation Trust Fund," which would be used to pay out claims for 22 years after enactment (through 2012) to persons, or their survivors, who could establish that they were exposed to radiation at a recognized time and place and that they had contracted a designated cancer or disease. The size of the claim varied depending on the type of exposure: downwinders are eligible to receive $50,000; on-site test participants, $75,000; and uranium miners, $100,000. The statute requires that any payment be offset by amounts awarded through a lawsuit or "any payment by the Federal Government" for such exposure. Such payments include disability and death benefits, such as under the Veterans Dioxin and Radiation Compensation Standards Act, but do not include health care. [Payments are offset against other payments made for the same disease; in addition, some successful claimants elect not to receive payments if the amount is less than the payments they are entitled to from other agencies -- e.g., VA disability.] Thus, veterans who receive an award under the RECA forego all disability and death related benefits for themselves and their families. $200 million has been appropriated so far for the trust fund; additional funds may be appropriated as Congress decides. From its inception on April 1, 1992 through June 30, 1994, 3826 claims have been filed, 1848 claims were approved (286 were still pending), and $130 million has been paid; the Justice Department anticipates approximately 15,000 claims totalling $1.11 billion over the 22 year life of the program. As with the Nuclear Claims Tribunal, the RECA contains no causation requirement. Claimants do not have to establish the dose to which they were exposed or that such exposure caused their illness. [In this way the law intended to eliminate the need for attorneys and litigation (and therefore limited attorney's fees to a maximum of 10 per cent).] Rather, the law requires only that the individual must have been "physically present" at the specified location during a specific period of time, and must submit "written medical documentation" that he or she contracted a specified disease. The regulations specify the locations and types of cancers (or respiratory disease in the case of uranium miners) that are covered, and the burden of proof that must be met to receive a claim. (The RECA now recognizes 15 presumptive conditions, as established under the VA program.) The regulations provide detailed explanations for each of these requirements. Age, smoking, and drinking are each offsetting factors for claiming certain diseases -- for example, uranium miners who were heavy smokers must prove a longer period of exposure than non-smokers, and longer still if they were over 45 years old when they contracted their illness. 7 IV. Radiation Exposure Case Law Several cases involving radiation exposure have been litigated against the U.S. government in the last ten years. The government has successfully argued that it was immune from liability because its conduct fell within one of the exceptions to the Federal Tort Claims Act (FTCA). The FTCA permits individuals who are injured by negligent acts of the federal government to sue under limited circumstances; it is an exception to the general rule that the government is immune from suit under the doctrine of "sovereign immunity." However, under the FTCA, the government cannot be sued for negligent actions that are considered part of its "discretionary function." The FTCA excludes any 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 an employee of the Government, whether or not the discretion involved be abused." [28 U.S.C. 2680(a).] The statute does not define this term, and the courts have been rying to do so for over 40 years. In essence, if the negligent acts were the result of specific choices or judgments made by government officials in the course of implementing federal policy, then the government cannot be held liable. The following four mass exposure cases represent a sampling of this type of litigation. A. Begay v. United States of America, 768 F.2d 1059 (9th Cir. 1985). This case was brought by Navajo Indian uranium miners, or their survivors, who were involved in uranium mining in Utah, Colorado, New Mexico, and Arizona, both on and off Indian reservation land. The miners claimed that they contracted lung cancer and other diseases from radiation exposure in the mines. They also claimed that several government agencies, including the Atomic Energy Commission (AEC), the Bureau of Mines (BOM), and the Department of Health, Education, and Welfare (HEW) were negligent in failing to enforce rigid radiation safety levels, in leaving uranium mine safety conducted off reservation land up to the state, and in failing to inform miners of possible radiation damage. The District Court (the lowest level federal court) held that the government could not be held liable because its activities fell within the "discretionary function" exception to the FTCA. The ruling was upheld on appeal. In order to determine the applicability of the discretionary function exception, the District Court reviewed extensively the history of uranium mining and safety concerns. [For complete findings of fact, see Begay v. United States, 591 F. Supp. 991, 993-1007 (1984).] The court found that in 1949, realizing that little was known of the potential health hazards from radiation in the uranium producing injury, the State of Colorado's Department of Health and Bureau of Mines requested that the Public Health Service (PHS) conduct a study to determine whether hazards existed in the mines and to assist the states and mining companies in developing control procedures. In designing and executing the study, PHS was assisted by AEC's Division of Biology and Medicine, the Department of Interior, BOM, the Los Alamos Scientific Laboratory, and the Atomic Energy Project of the University of Rochester. In order to gain consent of the mine owners for access to the mines, PHS agreed that the miners would not be told of possible risks, for fear that they would quit and interrupt uranium production. According to the court, however, miners and their physicians were told of any adverse health findings. After conducting the study, PHS found (among other things) that miners were being exposed to radon gas and published a report containing recommendations to the mining companies and state regulators about how to reduce such exposure. PHS conducted additional surveys, held conferences with state officials, and issued further reports on mining safety. 8 The District Court also found that in 1959 an interdepartmental conference was held between AEC and HEW to consider what federal action should be taken to ensure mine safety. They decided to inform the states of the seriousness of the dangers and of the need for action, but not to recommend federal legislation that would override the states' powers to oversee mining safety. Thus, while federal agencies continued to inspect the mines and to conduct studies of exposure levels, the agencies had little enforcement power over the mines not located on reservation land. Finally, in 1967, the President approved a proposal for a uniform federal radiation standard for underground uranium mines. The District and Appellate Courts both held that all of the decisions made by the agencies involved were within the discretionary function exception of the FTCA. Regarding decisions not to implement regulations in the mines, the courts held that these decisions were an exercise of discretionary regulatory authority. Regarding PHS' agreement not to disclose possible health hazards to the miners, the District Court stated that the "decision to not do something is just as much a policy decision as one to do something." In essence, the courts held that the government was faced with a policy choice requiring the balancing of the need for a reliable source of uranium and the need to protect miners in the face of incomplete knowledge of risks. In light of this policy choice, the courts stated that judicial "second-guessing" was inappropriate. At the same time, the courts called on Congress to take remedial action, with the District Court stating: "This tragedy of the nuclear age, however, cries for redress. Such relief should be addressed by the Congress. . . ." B. Allen v. United States, 816 F.2d 1417 (9th Cir. 1987), cert. denied, 484 U.S. 1004 (1988). This case was brought by approximately 1200 "downwinders," who claimed that radioactive fallout from open-air atomic bomb tests conducted in Nevada in the 1950s and 1960s had caused 500 deaths and injuries. After trial of 24 of the cases, the District Court ruled that the government was liable on several counts because the test site personnel failed to fully monitor off-site fallout exposure or to provide sufficient public information concerning the fallout. The Court of Appeals, however, overturned the District Court's decision. The Appellate Court relied on a recently decided Supreme Court decision (United States v. Varig Airlines, 467 U.S. 797 (1984)) and set out a very broad interpretation of the "discretionary function" exception to the Federal Tort Claims Act. In applying the discretionary function exception, the District Court had distinguished between high-level and low-level decision-making and concluded that while the initial Presidential or Congressional decision to establish an atomic energy program was a discretionary policy-making act, the actual implementation of that policy by the AEC, which included setting up safety and information programs, did not involve the kind of policy-making function protected by the discretionary function exception. In other words, Congress made the "big picture" policy decision using its discretion and directed the AEC to consider public health and safety, but the AEC did not use any discretion in carrying out the policy. 9 The Appellate Court rejected this distinction and instead held that the AEC's duty to promote safety was "very broad and discretionary." Because the duty given to the AEC was discretionary, the government could not be sued for the AEC's exercise of that duty, even if it could be demonstrated that the AEC was at fault. The Appellate Court stated this principle strongly: "[E]ven the negligent failure to a discretionary government policymaker to consider all relevant aspects of a subject matter under consideration [in this case public safety] does not vitiate the discretionary character of the decision that is made." However, in response to the argument that the test site officers did not carry out the AEC's policies properly, the Appellate Court found no evidence of such failure in the evidence presented. Judge McKay wrote a separate opinion agreeing with the Appellate Court's conclusion. This opinion is noteworthy, because it explicitly states that any remedy for the injuries suffered from exposure to fallout is beyond the court's constitutional authority and must come from Congress. Judge McKay stated: While we have great sympathy for the individual cancer victims who have borne the costs of the AEC's choices, their plight is a matter for Congress. Only Congress has the constitutional power to decide whether all costs of government activity will be borne by all the beneficiaries or will continue to be unfairly apportioned, as in this case. Until Congress amends the discretionary function exception to the FTCA or passes a specific relief bill for individual victims, we have no choice but to leave them uncompensated. [Emphasis supplied.] C. In re Consolidated United States Atmospheric Testing Litigation, 616 F. Supp. 759 (N.D. Cal. 1985), aff'd, 820 F.2d 982 (9th Cir. 1987). This case involved 43 actions brought on behalf of both military servicemen and civilians who were injured as a result of exposure to nuclear weapons tests conducted by the United States between 1945 and 1963. The injured persons or their representatives claimed exposure to one or more detonations, including the Hiroshima and Nagasaki bombings in Japan, Operation Crossroads at Bikini Atoll in the Pacific, and Operations Ranger, Buster/Jangle, and Upshot Knothole in Nevada. They further claimed that: (1) the government and its private contractors negligently failed to take adequate safety precautions at the test sites, and (2) the government breached its duty to warn the servicemen and civilians of the dangers to which they had been exposed and to monitor test participants for health problems resulting from exposure to radiation. The District Court found in favor of the government, and the court of Appeals affirmed the lower court's decision. This case contains several significant conclusions. 10 The test participants initially sued both the government and the private contractors who participated in the nuclear weapons testing program. [The private contractors sued included the University of California, American Telephone and Telegraph Company, and Reynolds Electrical and Engineering Co., Inc.] Unlike the Government, private contractors are not subject to the FTCA and therefore not protected by its exceptions. The government was able to substitute itself as the defendant in place of the private contractors under a 1984 statute that provides that a legal action against the United States shall be the exclusive remedy for injuries "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," and requires that any legal action against these contractors to be maintained solely against the United States pursuant to the FTCA. [Section 1631 of the Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1985, codified at 42 U.S.C. 2212.] The underlying rationale of this Act was articulated in the report of the Senate Committee on Armed Services, which stated that since the contractors had merely assisted the Government in carrying out its policy, but had not made the ultimate decision to carry out the tests, it would not be fair to hold them responsible for test-related injuries: The committee recognizes, as has the Congress, that the military applications of atomic energy could not proceed either technically or economically without the participation of organizations that possess both scientific management skills and a high degree of scientific and technical expertise. Several such organizations were placed under contract almost at the inception of the nuclear weapons program in 1942 and have performed in an outstanding manner in the national interest for more than three decades. These organizations have provided scientific, engineering and technical support for nuclear tests carried out by the government and for the government in the exercise of a governmental function, i.e., providing for the national defense. These organizations did not order the tests to be performed; they did not set the times or places for the tests; nor did they direct military or civilian personnel to participate in them. After the court permitted substitution by the Government, it held that the test participants could not bring their claims against the Government because their claims fell within exceptions to the FTCA, including the "discretionary function" exception and the "incident to service" exception. The test participants were thus placed in a "Catch-22" situation -- required by one statute to sue only the Government, and prevented by another statute from bringing those claims. Perhaps most striking, the court explicitly stated that the Government knew of the dangers associated with radiation exposure at the time the exposures took place. Nevertheless, because of the FTCA's exclusions the test participants could not seek recovery for their claimed injuries. 11 The court also rejected the test participants argument that the government had a duty to warn them of the dangers to which they had been exposed and to monitor them for health problems. It accepted the government's argument that its failure to warn involved the failure to perform a discretionary function: "[A]ny decision whether to issue warnings to thousands of test participants of possibly life-threatening dangers and to provide them with appropriate examinations and counseling calls for the exercise of judgment and discretion at high levels of government." Finally, the court rejected the claims of the military participants in light of the Supreme Court ruling in Feres v. United States, 340 U.S. 135 (1950), which held that the FTCA does not permit servicemen to sue for injuries occurring in the course of activity incident to service. However, Feres does not bar claims against the Government for an action it takes or fails to take subsequent to a serviceman's discharge. The military test participants therefore sought to recover against the government for failing to warn them after they were discharged, in light of the increased knowledge of the dangers of exposure gained after the tests took place. But the District Court ruled that because the Government knew fully of the dangers at the time the test participants were servicemen, any negligence in failing to warn occurred "incident to service," and not after discharge: "The undisputed facts before the court show that test officials knew and understood throughout the periods in question that exposure to nuclear radiation created a health hazard." Thus, precisely because the Government knew of the dangers it was inflicting on the servicemen at the time it conducted these tests, the servicemen could not recover following discharge from the military. D. Prescott v. United States of America, and all consolidated actions, 1994 U.S. Dist. LEXIS 11003 (D. Nev. July 19, 1994) In these consolidated cases, 216 former workers, or their surviving representatives, who had been involved in atmospheric and underground nuclear testing at the Nevada Test Site (NTS) between January 1951 and February 1981, sued the federal government. The District Court held a trial of six representative cases. Each of the workers in the six cases died as a result of some form of cancer,[These cancers included astrocytoma (brain tumor), transitional cell carcinoma of the bladder, lung cancer, adenocarcinoma of the bladder, multiple myeloma, and pancreatic cancer.] and their representatives claimed these illnesses were caused by on-the-job exposure to ionizing radiation. The workers also claimed that the government was negligent in failing to, among other things: * Establish adequate procedures to monitor and determine the amount of radiation in a given geographic area or to which a worker had been exposed; * Instruct and advise workmen at NTS of the possible health effects of radiation exposure; * Take reasonable and necessary precautions in conducting tests; and * Advise workers of the need for medical follow-up to diagnose any cancers as quickly as possible. 12 After the trial of these six workers' cases, the District Court ruled in favor of the government, for two reasons. First, as with the other cases, the court ruled that the FTCA protects the government from liability in this case under the "discretionary function" exception. The court reviewed in detail the history of the United States' nuclear testing program. The court was persuaded by the fact that President Roosevelt ordered the U.S. Army to develop an atomic weapon and that Congress established the AEC specifically to develop atomic energy, in order to ensure national security. The AEC was authorized to develop any standards and instructions that it felt were necessary to promote national security and to protect health. The court decided that the AEC's decision to expose workers to radiation was within the mandate given to the agency by Congress and therefore was a "discretionary function" of the agency. In other words, because the agency was simply carrying out the policy choices of the President and Congress, it could not be sued for injuries resulting from the implementation of that policy. The court's second reason for deciding in favor of the federal government was that the workers had not established a sufficient connection between their exposures to radiation and their subsequent diseases. Also, the court held that the government had taken reasonable care to protect the workers from the harmful effects of radiation. Although the court stated that in making the reasonable care judgment it was using current standards, it warned against judging past practices by current standards: "It is generally inappropriate to judge the radiological safety precautions taken thirty to forty years ago, by scientific and medical standards known and adhered to today." 13