713 F.2d 1097
Ellis GASPARD and Opal Gaspard, Plaintiffs-Appellants,
UNITED STATES of America, et al., Defendants-Appellees.
Dennis Ronald SHEEHAN and Nellie Katherine Sheehan, Husband
and Wife, Plaintiffs-Appellants,
UNITED STATES of America, Defendant-Appellee.
Nos. 82-3428, 82-4204.
United States Court of Appeals,
Sept. 6, 1983.
Silvestri & Massicot, Frank A. Silvestri, Luke Fontana, New Orleans, La., for plaintiffs-appellants.
E. Cooper Brown, Steven J. Phillips, New York City, for amicus-National Assoc. of Atomic Vets.
Robert S. Greenspan, Atty., Dept. of Justice, Civ. Div., Carlene V. McIntyre, Appellate Staff, Washington, D.C., Frank J. Violanti, Asst. U.S. Atty., Biloxi, Miss., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Appeal from the United States District Court for the Southern District of Mississippi.
Before THORNBERRY, GEE and WILLIAMS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge.
Donald Sheehan and Ellis Gaspard were servicemen who, under military orders, took part in atmospheric atomic weapons tests during the early 1950's at Desert Rock Flat, Nevada. Both have developed serious personal disabilities that they allege are a result of hazardous radiation exposure from these tests. Sheehan filed this suit in Federal District Court for the Southern District of Mississippi and Gaspard in the Eastern District of Louisiana. 28 U.S.C. § 1346(b). Both veterans sought relief under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. Gaspard also filed charges under the U.S. Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The wives of both Sheehan and Gaspard made separate claims in the suits, alleging loss of consortium and emotional distress under federal and state law. Both district courts dismissed the claims with prejudice under the Feres doctrine, which bars FTCA awards to members of the armed forces. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
We have consolidated the two cases on appeal to consider whether money damages may be assessed against the military or its officials in favor of veterans who suffered a latent injury while in active service. We conclude that the cases before us were properly dismissed in the district courts. In reviewing the orders of summary dismissal, we accept the plaintiffs' recitations of the facts as entirely true. Fed.R.Civ.P. 12(b); Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980).
The cases before us stem from a program of above-ground atomic weapons tests conducted during the 1950's at Camp Desert Rock, Nevada. Neither the events at Desert Rock nor the types of tort claims before us today are new to the federal courts. Lombard v. United States, 690 F.2d 215 (D.C.Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3086, 77 L.Ed.2d ---- (1983); Laswell v. Brown, 683 F.2d 261 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). The pertinent facts can be set forth quickly.
On December 18, 1950, President Truman approved the testing of nuclear weapons within the continental United States at Camp Desert Rock, Nevada. From January, 1951, through October, 1958, 121 atmospheric atomic weapons tests took place in Nevada.
Armed forces personnel and scientific researchers attended most of the Desert Rock tests. The troops at Desert Rock typically were ordered into open trenches shortly before each atomic blast. After the initial shock waves passed, they were ordered to march within 1,000 yards of "ground zero." The troops then were bused back to camp, where their uniforms were brushed off with ordinary household brooms. Little, if any, special follow-up care was provided. They were assured there was no danger whatsoever from residual post-blast radiation. According to the pleadings, the Army has made little, if any, attempt to follow-up its testing with warnings to the participants of any dangers from radiation exposure. Indeed, the official position of the armed forces continues to be that the personnel at Desert Rock suffered no unhealthy exposure.
Ellis Gaspard enlisted in the U.S. Army in 1946, and served until 1959. In 1955, he took part in at least four atomic bomb tests in the Desert Rock VI series. Dennis Sheehan served in the Army from 1951 through 1953, and from 1955 through 1958. In 1953, he participated in at least three atomic weapons tests in the Desert Rock V series. Both servicemen acknowledge that they were on active duty status at the time of these tests, in uniform, and subject to military orders and discipline.
Years after their Army discharges, Gaspard and Sheehan fell seriously ill. Taking, once again, their recitation of the facts, both men have suffered violently painful afflictions sustained as a direct result of their in-service radiation exposures. These include the breakdown of their immune systems, leukemia and other cancers, and many other afflictions. Gaspard died of these diseases in July, 1982.
Mrs. Gaspard and Mrs. Sheehan also are alleged to have suffered greatly from the ordeals of the illnesses. Mrs. Gaspard claims to have suffered two miscarriages as a result of chromosomal damage to her husband. Both Mrs. Sheehan and Mrs. Gaspard have been subjected to the emotional trauma of coping with their husbands' illnesses, and have suffered loss of consortium.
Both Gaspard and Sheehan filed claims for benefits through the Veterans Administration (VA) for service-connected disabilities. Sheehan's claim was denied. Gaspard's, filed in 1979, is still pending in the VA appellate process. Both Gaspard and Sheehan also filed administrative claims against the United States under the Federal Tort Claims Act. The FTCA claims did not result in an offer of settlement within six months, see 28 U.S.C. § 2675, and the servicemen filed these timely FTCA suits in federal district court, 28 U.S.C. § 1346(b), pursuant to statutory requirements. See 28 U.S.C. §§ 2401, 2675.
Ellis and Opal Gaspard's pleadings also include claims under the Bivens doctrine for an intentional violation of constitutional rights.
In both suits, the FTCA claims were dismissed for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). The Bivens claims in the Gaspard case were dismissed for failure to state a claim on which relief can be granted, Fed.R.Civ.P. 12(b)(6). We review these dismissals by addressing the FTCA and the Bivens theories in turn.
II. FTCA Claims
At common law, the sovereign was absolutely immune from suit. Congress has passed certain statutory waivers of this sovereign immunity, among them the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. The FTCA is a sweeping waiver of immunity for torts committed through the negligence of the government or its employees. Yet this broad waiver does not apply to the tort claims of members of the armed forces who were subject to military discipline at the time of their injury. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The factors that might support allowing such claims are outweighed by the special need to preserve discipline and decisive military command in the armed forces, and by the availability of an alternative, comprehensive compensation scheme within the military system.
The Feres doctrine bars a service person's FTCA claims for in-service injuries whether filed before or after discharge. See Monaco v. United States, 661 F.2d 129 (9th Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir.1981). Post-service torts, though, are not subject to the Feres bar. Such cases actually involve torts committed against a veteran who is a civilian, rather than against a soldier. Thus, damages from the negligence of VA Hospital physicians in treating a former serviceman are recoverable under the FTCA, even when the injury under treatment had its roots in active military service. United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Bankston v. United States, 480 F.2d 495 (5th Cir.1973); Schwartz v. United States, 230 F.Supp. 536 (E.D.Pa.1964), aff'd, 381 F.2d 627 (3d Cir.1967).
The two former servicemen attempt to fall within the Brown exception to the Feres doctrine by alleging a separate, post-service tort. They charge on appeal that the government had a new and independent duty to warn them of the dangers from radiation as scientific knowledge increased. See Broudy v. United States, 661 F.2d 125, 128-29 (9th Cir.1981) (Desert Rock veteran may pursue post-discharge tort theory under FTCA); Thornwell v. United States, 471 F.Supp. 344, 349-55 (D.D.C.1979) (LSD experimentation victim; post-discharge tort theory allowed); Schwartz v. United States, supra (veteran's malpractice claim must be based on post-discharge claims). This duty, they charge, arose after discharge and is an independent and proximate cause of their injuries. The district courts below, however, characterized the alleged breach of duty as a continuing tort and not separate torts. We concur with these rulings.
Gaspard and Sheehan's fundamental charge is that the government knew at the time of testing that radiation exposure was harmful, even deadly. If this is true, then the duty to warn arose while appellants were in the service, and not after discharge. There is no allegation before us that knowledge increased to the point where a new duty to treat or warn was created. The pleadings allege that the government failed to warn while the two were in the Army, and continued not to warn after they became civilians. The pleadings in this case clearly point to one continuing tort rather than separate pre- and post-discharge failures to warn. This puts the claims squarely within the Feres doctrine and leaves us without jurisdiction to entertain the claims. See Stanley, supra, 639 F.2d at 1153-56.
The wives of the two servicemen also bring FTCA charges in this case. The wives are careful to frame their FTCA charges as independent torts rather than to attach pendent claims of pain and suffering to their husbands' charges. They allege that the radiation exposure to their husbands caused them severe emotional distress. Mrs. Gaspard claims that two miscarriages befell her due to her husband's radiation exposure. Both wives claim that their injuries are severable from their husbands' claims and were reasonably foreseeable when the government exposed their husbands to radiation.
The Feres doctrine also bars the wives' FTCA claims. Although it might be argued that the need for military discipline is not a controlling factor when examining claims of non-military personnel, the Supreme Court has spoken authoritatively that no claims may be brought under the FTCA for any acts of the armed forces against its military personnel. In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), a national guard officer was injured by a malfunctioning ejection seat in his airplane. His estate brought suit against the United States and the manufacturer. The manufacturer cross-claimed against the United States for indemnity. The Supreme Court disallowed both the direct FTCA claim and the indemnity cross-claim and dismissed the claim against the United States. It held that the Feres doctrine does not allow recovery under the FTCA for torts against a serviceman on duty, whether that suit is brought by the soldier himself or a third party. The "distinctly federal" character of the armed forces, the existence of a "generous" compensation scheme under the Veterans Benefits Act, 38 U.S.C. § 321 et seq., and the "effects of the maintenance of such suits on military discipline" led to the conclusion that FTCA suits may not be maintained whenever the acts complained of involved the armed forces' treatment of their personnel.
Courts, therefore, 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. Monaco v. United States, 661 F.2d 129 (9th Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982) (children's claims); In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980) (children's claims); Harrison v. United States, 479 F.Supp. 529 (D.Conn.1979), aff'd without opinion, 622 F.2d 573 (2d Cir.), cert. denied, 449 U.S. 828, 101 S.Ct. 93, 66 L.Ed.2d 32 (1980) (wife's claims). This is true even when the claims of the family members are independent of the serviceman's cause of action under applicable state law. De Font v. United States, 453 F.2d 1239 (1st Cir.), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972); Van Sickel v. United States, 285 F.2d 87 (9th Cir.1960); Harrison v. United States, supra.
This Court has barred claims even where the family member has no alternative remedy under the Veterans Benefits Act. Scales v. United States, 685 F.2d 970 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1772, 76 L.Ed.2d 344 (1983). Since a crucial element of the claims of Mrs. Gaspard and Mrs. Sheehan is the in-service injury inflicted on their husbands, we must bar their claims. We see no distinction between pendent and independent claims in this regard--we need look only to the factual elements underlying the claim to find them barred under the Feres doctrine.
The remedies of the Veterans Benefits Act are meant to be exclusive, and the need for a strong and capable military overwhelms the factors supporting recovery. We therefore dismiss, for lack of subject matter jurisdiction, the FTCA claims of these Desert Rock veterans. Accord, Lombard v. United States, 690 F.2d 215 (D.C.Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3086, 77 L.Ed.2d ---- (1983); Laswell v. Brown, 683 F.2d 261 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). See also Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir.1981).
III. Bivens Claims
Gaspard's appeal also alleges intentional interference with well-established constitutional rights, raised under the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). It is "crystal clear" that Bivens claims are distinct from FTCA actions, Carlson v. Green, 446 U.S. 14, 19-20, 100 S.Ct. 1468, 1471-72, 64 L.Ed.2d 15 (1980), and the Feres bar therefore does not automatically preclude the Bivens claim.
We find, however, that the rationale behind the Feres doctrine bars the Bivens claims before us today. The recent case of Chappell v. Wallace, --- U.S. ----, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) examined Bivens claims of active Naval personnel against their commanding officers, involving allegations of intentional racial discrimination. The Supreme Court looked at the "special factors counseling hesitation" in creating a Bivens remedy for members of the Armed Forces. It concluded that the judiciary's interest in protecting the constitutional rights of service personnel was fully considered and adequately safeguarded through the congressionally-imposed system of military administrative procedures. The military remedies available in Wallace were considered a proper balance of the need to remedy wrongs taking place within the military and the need for Congress and military officers to have a free hand in operating our armed forces. The Supreme Court therefore ruled that money damages are unavailable to active servicemen for constitutional wrongs that Congress meant to cover through the comprehensive system of military justice and compensation.
The rationale behind Wallace is much the same as the Court earlier applied in Feres. The need for plenary discretion in military affairs and the existence of an adequate, congressionally-imposed compensation scheme instruct us to avoid either imposing or inquiring into monetary damages when a service person is injured. See Jaffee v. United States, 663 F.2d 1226, 1234-37 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). Injuries of armed forces personnel, whether resulting in personal injury claims or constitutional claims, are meant to be covered by the compensation scheme of the Veterans Benefits Act. We see no distinction between claims against military officials filed in-service and those filed post-discharge, as long as the claims are based on official military conduct. We therefore dismiss the Bivens charges against the military officials.
Gaspard also levels Bivens charges against the civilian officials of the Atomic Energy Commission (AEC), the former government agency which played a major role in the Desert Rock tests. Gaspard claims that even if the Bivens claims for damages are barred as to military officials, they are not barred as to non-military officials. Even if this contention is correct in general terms, it does not apply to this case. The former officials of the AEC are named only for the role they allegedly played in the Desert Rock tests. These tests were planned and conducted by both military and civilian personnel. Clearly then, any involvement of civilian officials must have been in conjunction with military planning and orders. This is not a case involving a purely civilian governmental interference with the established constitutional rights of servicemen. Since an inquiry into the AEC's role at Desert Rock would necessitate an investigation of military affairs, we hold that Wallace also bars the claims against the civilian officials in this case.
Mrs. Gaspard has filed her own Bivens charges against the same officials, both military and civilian. Her claims, whether pendent to or independent of her husband's charges, would require an inquiry into military affairs and therefore are also barred as we conclude in Part II of this opinion.
Finally, Gaspard charges on appeal that some of the violations of his constitutional rights stem not from the 1955 Desert Rock tests alone, but also from the refusal of the VA to certify his disability as service-related and grant him a service-related pension. We recognize that the availability of VA pensions and other administrative remedies is, in part, the justification for precluding servicemen from bringing Bivens claims against the government. Gaspard claims, however, that his inability to secure a VA pension either qualifies him to file suit under other legal theories based on his Desert Rock experiences, or constitutes a separate tort that should itself be subject to Bivens scrutiny.
We must reject these assertions. Gaspard's inability to secure a VA pension does not open the door to Bivens standing to challenge the 1955 Desert Rock tests. It is the existence of the VA compensation scheme, and not payment in fact, that lessens the justification for a Bivens remedy. We consider the congressionally-authorized military compensation system to be comprehensive and conclusive even when individual claimants may fall between the cracks of the implementing regulations. See Scales v. United States, 685 F.2d 970 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1772, 76 L.Ed.2d 344 (1983) (Feres doctrine bars FTCA claims of service person's daughter even when Veterans Benefits Act allows no administrative remedy).
We are perhaps more sympathetic to a charge that remedies are inadequate when the underlying tort is of constitutional dimension. Yet Congress has taken into account the constitutional rights of service personnel in fashioning the available administrative remedies as exclusive. Therefore, denial of a VA pension cannot serve as a ground for an alternative cause of action.
Finally, regarding Gaspard's suggestion that the denial of his VA pension is a separate tort, we note that Gaspard has not named any party to this suit who might be responsible for the denial.
In sum, we find no compelling reason in this case to expand the reach of the Bivens action to the inner workings of the military. We therefore affirm the dismissal of the Bivens claims for failure to state a claim on which relief can be granted, Fed.R.Civ.P. 12(b)(6).
Finding no jurisdiction against the United States under the FTCA allegations and no valid theory for relief against the government officials under the Bivens claims, we AFFIRM the dismissals in the two cases before us.