Gaspard v. U.S.

• Decision Date: 06 September 1983
• Docket Number: 82-4204,Nos. 82-3428,s. 82-3428
• Citation: 713 F.2d 1097
• Parties: Ellis GASPARD and Opal Gaspard, Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees. Dennis Ronald SHEEHAN and Nellie Katherine Sheehan, Husband and Wife, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1097

713 F.2d 1097

Ellis GASPARD and Opal Gaspard, Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.

Dennis Ronald SHEEHAN and Nellie Katherine Sheehan, Husband and Wife, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Nos. 82-3428, 82-4204.

United States Court of Appeals Fifth Circuit.

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. ¹ 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).

I. Background

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. ²

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. ³ 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. ⁴

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. ⁵

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. ⁶

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). ⁷ 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...