Cole v. U.S.

• Decision Date: 20 March 1985
• Docket Number: No. 84-7113,84-7113
• Parties: Christy COLE, Individually and as Personal Representative of the Estate of Robert E. Cole, Deceased; and Helen Cole, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 873

755 F.2d 873

53 USLW 2481

Christy COLE, Individually and as Personal Representative of

the Estate of Robert E. Cole, Deceased; and Helen

Cole, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 84-7113.

United States Court of Appeals, Eleventh Circuit.

March 20, 1985.

Jerry Shirley, Northport, Ala., for plaintiffs-appellants.

Patrick O. Cavanaugh, Paul F. Figley, Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before RONEY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

Christy and Helen Cole appeal from an order of the United States District Court for the Northern District of Alabama denying their motions to amend and dismissing their complaint against the United States for lack of subject matter jurisdiction. We affirm in part, reverse in part, and remand.

Around 1946 and while a member of the United States Navy, Robert E. Cole was assigned maintenance duty on at least one submarine which had been used as a test vessel during the Bikini Atoll atomic bomb tests. He was subsequently discharged ¹ and on November 15, 1981, was diagnosed as having cancer. He died on May 18, 1982.

After exhausting their administrative remedies, his daughter and personal representative, Christy Cole, and his widow, Helen Cole ("the plaintiffs"), sued the United States under the Federal Tort Claims Act (FTCA or Act), 28 U.S.C. Secs. 1346, 2671-2680, for damages. ² The original complaint alleged that the government knew or should have known of the danger from exposure to radiation but failed to warn Cole during his lifetime. ³ After the government filed a motion to dismiss, the plaintiffs twice moved to amend their complaint. The first proposed amendment sought to add a count alleging that the government failed to apprise Cole of the hazards of radiation exposure after he was discharged even though at that time its knowledge of the harmful effects of such exposure had expanded to the point where there arose a new duty to warn of the danger. ⁴ The district court, relying on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and its progeny, granted the government's motion to dismiss and denied the plaintiffs' motions to amend, concluding that the petition, even as amended, would deprive the court of subject matter jurisdiction.

The FTCA is a limited waiver of the common law sovereign immunity of the United States. The Act provides that the United States is liable in tort "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. Sec. 2674, and vests in the district courts exclusive jurisdiction over civil actions against the United States predicated on the purported negligence of government employees "where the United States, if a private person, would be liable to the claimant [under] the law of the place where the act or omission occurred." Id. Sec. 1346(b). The Act excludes, however, "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. Sec. 2680(j). Although the language of the FTCA does not establish a general prohibition of actions by servicemen or veterans involving injuries incurred "incident to" their military service, the Supreme Court, beginning with the touchstone case of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), has interpreted the Act as barring such suits. ⁵

The Supreme Court has not yet had the occasion to address the situation where a veteran charges a negligent failure by the government to warn of a hazard to which he was exposed while in the service. The courts of appeals, however, have universally applied the Feres doctrine to bar such suits in which the duty to warn originated when the injured serviceman was in the armed forces and merely continued after discharge. See, e.g., Heilman v. United States, 731 F.2d 1104 (3d Cir.1984); Gaspard v. United States, 713 F.2d 1097 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2354, 80 L.Ed.2d 826 (1984); Lombard v. United States, 690 F.2d 215 (D.C.Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L.Ed.2d 1347 (1983); Laswell v. Brown, 683 F.2d 261 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983).

This "continuing tort" theory was also rejected in Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir. Unit B 1981). ⁶ In Stanley, a veteran alleged in part negligence by the government in failing to monitor and warn him of the harmful effects of LSD which had been administered to him during an Army chemical warfare study. In holding that Feres precluded the claim, the court reasoned that any negligent failure to warn "occurred at least in part during his time as a serviceman." Id. at 1154. Here, the plaintiffs' original complaint states a claim virtually identical to that in Stanley, namely that the government "failed to properly advise or inform [Cole] ... during his lifetime." Record at 5. We are bound by Stanley and therefore affirm the district court's dismissal of the original complaint. ⁷

The plaintiffs' proposed amendment, however, seeks to avoid the pitfalls of Stanley by asserting the novel claim that the government's negligent failure to warn materialized after Cole's discharge when the government's knowledge concerning the hazards of radiation increased sufficiently to give rise to a new duty. According to the plaintiffs, this purely post-discharge act is separate from, rather than a continuation of, the negligence alleged in the original complaint.

The plaintiff's position that Feres permits this new theory of recovery alleged in their proposed amendment is not without legal support. In Stanley, we specifically distinguished the situation in which the negligent failure to warn occurred entirely after the injured serviceman's discharge. Id. at 1154. In Broudy v. United States, 722 F.2d 566 (9th Cir.1983) (Broudy II), the Court of Appeals for the Ninth Circuit considered an issue markedly similar to the one here. Like this case, Broudy involved in-service exposure to radiation. The court vacated the district court's dismissal of the plaintiff's action alleging that the government's negligent failure to warn occurred after the injured serviceman was discharged, because the government only obtained knowledge of the hazards of radiation after that date. Id. at 569-70; see also Gaspard, 713 F.2d at 1101 (In barring the plaintiff's claim the court noted that "[t]here is no allegation before us that knowledge increased to a point where a new duty to treat or warn was created."); Broudy v. United States, 661 F.2d 125, 128-29 (9th Cir.1981) (Broudy I). Moreover, several district courts confronted with allegations of post-discharge failures to warn have indicated that Feres does not apply. See Seveney v. United States, 550 F.Supp. 653 (D.R.I.1982); Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980); Thornwell v. United States, 471 F.Supp. 344 (D.D.C.1979). ⁸

Our review of the law in this area suggests that in a case alleging a failure by the government to warn of in-service active-duty ⁹ exposure to hazardous substances, the crucial inquiry is whether the purported conduct of the government giving rise to the plaintiff's cause of action occurred while the injured party was still a member of the armed forces. See, e.g., Heilman, 731 F.2d at 1107; Broudy II, 722 F.2d at 570; Gaspard, 713 F.2d at 1101; Lombard, 690 F.2d at 220; Stanley, 639 F.2d at 1154. Under this standard, the claim in the plaintiffs' proposed amendment would not be barred by the Feres doctrine. The relevant "injury" here is the aggravation or perpetuation of Cole's radiation-induced condition due to the government's failure to discharge its new duty to warn. ¹⁰ It is urged that the conduct by the United States causing this injury occurred entirely after he left the service.

Given the novelty of this case, we believe it necessary and instructive to examine the resulting decision in light of the considerations underlying the Feres doctrine. ¹¹ The Supreme Court has identified four factors favoring the military exclusion rule: 1) the lack of parallel private liability, 2) the potentially adverse effects on military discipline, 3) the belief that because state law governs under the FTCA it would be irrational to base an injured serviceman's right to recover on the fortuitous geographical circumstance of where he happened to be stationed, and 4) the existence of the comprehensive Veteran's Benefits Act. See generally Chappell v. Wallace, 462 U.S. 296, 300-04, 103 S.Ct. 2362, 2365-67, 76 L.Ed.2d 586, 590-93 (1983); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-73, 97 S.Ct. 2054, 2058-59, 52 L.Ed.2d 665, 670-72 (1977); Feres, 340 U.S. at 141-45, 71 S.Ct. at 157, 95 L.Ed. at 158-60.

The first factor is premised on the notion that the FTCA does not create new causes of action. See Chappell, 462 U.S. at 299, 103 S.Ct. at 2364, 76 L.Ed.2d at 590; United States v. Brown, 348 U.S. 110, 112-13, 75 S.Ct. 141, 143, 99 L.Ed. 139, 144 (1954); Feres, 340 U.S. at 141-42, 71 S.Ct. at 157, 95 L.Ed. at 158-59. A plaintiff cannot prevail in the event state law precluded his right to recover if the United States was a private party. See id. It is apparent that the existence of parallel state liability is not a "factor" to be considered in determining whether an injury is "incident to service," but rather a separate prerequisite to the applicability of the FTCA.

This consideration does not control the outcome of this appeal. We treat this case in the context of a dismissal on the pleadings for lack of subject matter jurisdiction. ¹² Consequently, it is only necessary that the complaint allege the basis in state law supporting the court's jurisdiction. See Fed.R.Civ.P. 8(a);...