APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 78-1014
Before Rosenn, Garth, and Higginbotham, Circuit Judges.
This appeal presents a perplexing problem spawned by modern nuclear warfare which requires us to examine again the doctrine of sovereign immunity of the United States. The genesis of the litigation is the serious injury allegedly incurred by the male plaintiff from atomic radiation while on active duty in the military service.
In 1953, when Stanley Jaffee ("Jaffee") was serving in the United States Army, the Government tested a nuclear device at Camp Desert Rock, Nevada. Jaffee avers that he and other soldiers were ordered to stand in an open field near the site of an explosion of a nuclear bomb without benefit of any protection against radiation; that the explosion caused Jaffee and other soldiers similarly situated to be exposed to massive doses of highly dangerous radiation; that the Government, knowing of the grave risks of injury from such exposure, nonetheless, deliberately compelled Jaffee and other soldiers similarly assigned to participate in the nuclear testing and in the radiation exposure without their knowledge or consent. Jaffee further alleges that because of his exposure to such radiation, he has developed inoperable cancer.
Asserting that the Government deliberately violated rights guaranteed by the first, fourth, fifth, eighth, and ninth amendments, Jaffee and his wife filed a complaint consisting of four counts in the United States District Court for the District of New Jersey. In Counts I, II, and III, the Jaffees joined the United States and unnamed individuals as defendants and made claims for money damages. Count IV was a class action, in which Stanley Jaffee sought to represent all of the soldiers who were ordered to be present at the explosion. In this count, naming only the United States as a defendant, Jaffee prayed that the United States be directed to warn all members of the class about the medical risks facing them and that the United States be required to provide or subsidize medical care for the members of the class.
The district court dismissed Count IV, concluding that the doctrine of sovereign immunity barred that action against the United States. Under Rule 54(b), Fed.R.Civ.P., the court certified the dismissal for appeal, but retained jurisdiction over Counts I, II, and III. The United States moved this court to dismiss the appeal for lack of jurisdiction or to affirm summarily the order of the district court. Although we have denied the motion for summary affirmance,*fn1 the motion to dismiss for lack of appellate jurisdiction is still pending before us, as is Jaffee's appeal from the district court's dismissal of Count IV.
Two possible grounds for jurisdiction have been proposed in this case. First, if the district court properly certified its order under Rule 54(b), Fed.R.Civ.P., we have jurisdiction over a final judgment. 28 U.S.C. § 1291 (1976). Second, if the district court entered an interlocutory order denying an injunction, there is appellate jurisdiction under 28 U.S.C. § 1292(a)(1) (1976). We begin with section 1292(a)(1).
Under 28 U.S.C. § 1292(a)(1), federal appellate courts have jurisdiction over appeals from "interlocutory orders of the district courts of the United States . . . refusing . . . injunctions . . . ." In Count IV of his complaint, Jaffee moved for an injunction ordering the Government to warn members of the class and to provide medical care for them.*fn2 The Government contends that this prayer for injunctive relief is a disguised claim for damages.
We agree with the Government that the request for prompt medical examinations and all medical care and necessary treatment, in fact, is a claim for money damages. A plaintiff cannot transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money. See International Engineering Co. Div. of A-T-O, Inc. v. Richardson, 167 U.S.App.D.C. 396, 512 F.2d 573 (1975), Cert. denied, 423 U.S. 1048, 96 S. Ct. 774, 46 L. Ed. 2d 636 (1976); Warner v. Cox, 487 F.2d 1301, 1304 (5th Cir. 1974). Jaffee requests a traditional form of damages in tort compensation for medical expenses to be incurred in the future. See, e. g., Coll v. Sherry, 29 N.J. 166, 148 A.2d 481, 485 (1959); 25 C.J.S. Damages § 91(3) (1966). Indeed, his complaint seeks an injunction ordering either the provision of medical services by the Government or payment for the medical services. The payment of money would fully satisfy Jaffee's "equitable" claim for medical care.
We reach a different result, however, in regard to the petition that the Government warn members of the class about medical risks. The payment of money cannot satisfy this claim. Although providing the warning will impose an expense on the Government, the creation of expense does not necessarily remove a form of relief from the category of equitable remedies. See, e. g., White v. Mathews, 559 F.2d 852, 855-56, 859-60 (2d Cir. 1977) (writ of mandamus proper remedy by which court orders expedited action by Social Security Administration). Cf. Edelman v. Jordan, 415 U.S. 651, 668, 94 S. Ct. 1347, 1358, 39 L. Ed. 2d 662 (1974) (eleventh amendment bars nominally "equitable" action that "requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation"). The dismissal of the claim for warning is appealable under 28 U.S.C. § 1292(a)(1).
Because that part of the district court's interlocutory order dealing with warning to the class was the denial of an injunction, we have jurisdiction over the whole order, including dismissal of the related claim for medical care. Kohn v. American Metal Climax, Inc., 458 F.2d 255, 262 (3d Cir.), Cert. denied, 409 U.S. 874, 93 S. Ct. 120, 34 L. Ed. 2d 126, 93 S. Ct. 132 (1972). ...