NCJ Number
148991
Journal
ABA Journal Volume: 80 Dated: (May 1994) Pages: 56-60
Date Published
1994
Length
5 pages
Annotation
Despite admissions that it used unwitting citizens in nuclear tests, a maze of laws may shelter the Federal Government from ever answering their claims in court.
Abstract
For the more than 220,000 military personnel ordered into bomb test areas during the 1950's, there are only two options for obtaining compensation. They can choose a Veterans Affairs disability proceeding that awards the same compensation for lung cancer from being bathed in nuclear fallout that is awarded for reduced lung capacity from breathing the smoke of battle. The second alternative is to choose an administrative proceeding under the Radiation Exposure Compensation Act of 1990, which allows payments of up to $75,000 to military persons who were younger than specified ages when they were exposed and who developed specified terminal conditions within specified time periods. Receiving compensation under this act precludes all other litigation against the Federal Government and private parties. The most significant obstacle to a successful civil action against the Federal Government for exposure to radioactive fallout is the Federal Torts Claim Act. It retains the Federal Government's protection of sovereign immunity for actions that involve discretion. Federal courts have consistently held that it is within the government's discretion whether to tell citizens about the hazards of radiation exposure. The author discusses the possibility and rationale for new Federal legislation that would provide fairer compensation for radiation victims.