The recently released / relaunched Ultimate Comics: X-Men is set in a world in which humans and mutants are basically at open war with each other. This alternate universe raises some interesting legal questions about government tort liability, civil rights, and the limits of government power. We’ll be talking about each of these in a series of posts. Spoilers ahead!
Before we get into the details, we’ll note that it’s pretty apparent that there is no hope for a legal challenge to the government’s actions in Ultimate Comics: X-Men. The relationship between humans and mutants is too far gone for that at this point. Nonetheless, since there’s no mention of a constitutional amendment, it’s interesting to consider whether the government’s actions are legitimate or just accepted.
One of the major revelations in the book is a different origin for mutants. Rather than being the next step in evolution, mutants were the result of U.S. government research in a lab in Canada. The result was Wolverine, and after his escape the mutation spread “not unlike a virus,” suggesting that the mutation is not a simple hereditary gene. In any case, this raises a question: could anyone affected by the mutation sue the government?
As a general rule, an injured party can’t sue the U.S. government unless it waives sovereign immunity. The Federal Tort Claims Act is the primary mechanism for this, and it has been invoked in a prior human experimentation case. After the Tuskegee syphilis experiment came to light, injured parties sued the U.S. government and several states alleging, among other things, that the U.S. government was liable under the FTCA. Pollard v. U.S., 384 F.Supp. 304 (M.D.Ala. 1974). After the plaintiff’s case survived summary judgment, the government settled.
Although not legally binding, the 1996 Final Report of the Advisory Committee on Human Radiation Experiments also recommended financial compensation for human research subjects going back fifty years (or their surviving immediate family members) for whom the experiments provided no prospect of direct medical benefit. However, as of yet the U.S. government has not compensated the victims of the recently disclosed Guatemala syphilis experiment, so the current status of the policy is open to question.
Note that the timing of the mutant experimentation is likely not a problem. “[A]n action under the FTCA accrues when the injured party knew or, in the exercise of reasonable diligence, should have known the factual basis for the cause of action.” Rakes v. U.S., 442 F.3d 7, 19 (1st Cir. 2006). While it’s probably too late for Wolverine himself (notwithstanding that he’s already dead in this continuity), since he presumably knew who was experimenting on him, most mutants had no idea that their condition was the result of government wrongdoing. In fact, the government had apparently contributed to the belief that the mutations were natural, and until recently the truth was classified. Since reasonable diligence wouldn’t have turned up the classified information, the injured parties couldn’t have known the factual basis for their causes of action. As a result, the two year statute of limitations on federal tort claims started when the truth came out. 28 U.S.C. § 2401(b).
The bottom line here is that if human/mutant relations weren’t in complete tatters, mutants would have a pretty good case against the U.S. government.