Hart v. U.S., 89-3193

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation894 F.2d 1539
Docket NumberNo. 89-3193,89-3193
PartiesAnne M. HART, individually and as natural guardian for Gillian Elaine Hart, Vera Lee Hart, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
Decision Date01 March 1990

Michael P. Finney, Asst. U.S. Atty., Pensacola, Fla., Robert S. Greenspan, U.S. Dept. of Justice, Civil Div., Appellate Staff, Thomas M. Bondy, Major James M. Kinsella, U.S. Air Force, General Litigation Div., Office of the Judge Advocate Gen., Lt. Col. Wm. C. Kirk and Major James N. Hatten, Judge Advocate Gen., Dept. of the Army, Washington, D.C., for defendant-appellant.

Robert L. Crongeyer, Fran L. Frick, Pensacola, Fla., for plaintiffs-appellees.

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

Before JOHNSON, HATCHETT and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

The United States appeals the district court's grant of summary judgment in favor of appellee Anne Hart, 681 F.Supp. 1518, and the court's decision after a bench trial in favor of Vera Hart and Gillian Hart under the Federal Tort Claims Act, 28 U.S.C.A. Secs. 1346(b), 2671-2680.

A. Facts

On December 21, 1972, during the Vietnam War, a United States Air Force AC-1304 Spectre was hit by anti-aircraft fire and crashed near Pakse, Laos. Sixteen crewmen were aboard, including Lt. Col. Thomas Trammell Hart, III, a 32-year-old Table Navigator. Of the sixteen crew members, two parachuted to safety and were rescued. Friendly Laotian forces found the arm and hand of one crew member at the crash site; these remains were identified as belonging to Capt. Joel Birch. A captured Pathet Lao soldier claimed also to have found a pile of bloody bandages, five deployed parachutes, and the remains of five to six individuals which were subsequently buried in a common grave. Capt. Birch was declared killed in action ("KIA") and the thirteen missing crewmen were listed as missing in action ("MIA").

About five months after the Pakse crash, an American reconnaissance aircraft flying over an area of Northern Laos approximately three hundred miles from the Pakse site photographed what appeared to be a large area of tall grass that had been stomped down to read "1573 TH" or "1973 TH." Military intelligence indicated that the military believed the symbol referred to Lt. Col. Hart. This photograph, along with the testimony about the bloody bandages and deployed parachutes, was classified.

In 1978, President Carter lifted the injunction against status reviews of military personnel missing in Southeast Asia. The Air Force convened a status review board to review the status of the thirteen crewmen. The crewmen's families were informed that no classified material would be made available to them or considered in determining whether to change the crewmen's status. Thus, the existence of the photograph and the bandages and parachutes was not revealed. 1 The review board conducted a hearing and concluded that Lt. Col. Hart was dead. Mrs. Hart testified before the board that she concurred with this finding. Lt. Col. Hart's status, along with that of the twelve other missing crewmen, was thus changed from MIA to KIA.

In September 1982 members of the National League of Families, including Anne Hart, visited the crash site. The group recovered several bits of airplane skin, a metal flight boot insert, and two bone fragments, which Mrs. Hart turned over to the Government. The fragments were transmitted to the U.S. Army Central Indentification Laboratory in Hawaii ("CILHI"). In February 1985, a CILHI team excavated the Pakse crash site and recovered thousands of bone and tooth fragments, personal effects, and I.D. tags. 2 This material was transmitted to the CILHI laboratory. After approximately four months of study, CILHI recommended to the Armed Services Graves Registration Office ("ASGRO") that the thirteen crewmen be listed as identified. CILHI stated that it had found very small numbers of bone fragments corresponding to each crewman; these pieces, along with their location at the crash site and various personal effects, led to CILHI's conclusion. ASGRO accepted CILHI's recommendation, and Mrs. Hart was notified on July 1, 1985 that her husband had been identified. Mrs. Hart was told at this time that the identification was the result of a process of elimination.

Mrs. Hart immediately requested that she be allowed to have an expert examine the remains at her expense and provide a second opinion. 3 This request was denied. Mrs. Hart subsequently contacted Dr. Michael Charney, a forensic anthropologist at Colorado State University, to determine whether he would be willing to provide the second opinion. After determining that Dr. Charney would be so willing, Mrs. Hart filed suit in the Northern District of California. She sought injunctive relief prohibiting the Government from forwarding the remains to the families before Dr. Charney examined them. The district court granted a temporary injunction. Dr. Charney examined the bones purported to belong to Lt. Col. Hart and concluded that it was impossible to tell whether those fragments came from Lt. Col. Hart or even from an individual at the crash site.

Based on Dr. Charney's disagreement with the CILHI conclusion, the case was dismissed with prejudice. Left unresolved was the question of what to do with the disputed remains; Mrs. Hart refused to accept them, making her the first family member to refuse to accept remains. Government counsel told the district judge that the remains would be held in mortuary storage. Based on his confidence in the Government identification, however, Secretary of the Air Force Verne Orr sent a letter to Mrs. Hart on October 9, 1985 stating that if she did not wish to accept the remains, they would be buried at Arlington National Cemetery with full military honors. December 2, 1985 was set as the interment date.

Meanwhile, the Army decided to commission an independent civilian inquiry into the CILHI identification. Drs. Ellis R. Kerley, William R. Maples, and Lowell Levine, forensic anthropologists and fellows of the American Academy of Forensic Scientists, were enlisted as the investigating team. Mrs. Hart heard of the investigation and requested that the burial of the remains be delayed. Secretary Orr complied with this request. From December 9 through December 12, 1985, the team conducted an on-site inspection of the CILHI laboratory. The team found that the administration of CILHI was excellent and that CILHI's personnel were dedicated, well-trained, and experienced.

The panel concluded, however, that it could confidently confirm only two of the Pakse identifications. The other identifications did not appear to be justified according to standard forensic methods and could not withstand scientific scrutiny. The team's report recommended some changes in CILHI procedure and personnel. Drs. Kerley and Maples saw the actual Pakse remains after the issuance of their report. After viewing the remains themselves, the two doctors affirmed their earlier findings that the remains did not provide sufficient information to make the kinds of identifications CILHI had made.

The Air Force contacted the families of the thirteen crew members and explained that, if they wished, the identifications of their loved ones would be reconsidered. Mrs. Hart and the family of Capt. George McDonald requested such reconsideration. On June 10, 1986, ASGRO rescinded the identifications of Lt. Col. Hart and Capt. George McDonald. The Government did not, however, return Lt. Col. Hart to unaccounted-for status.

B. Proceedings Below

On October 30, 1986, after exhausting their administrative remedies, Anne Hart, along with Lt. Col. Hart's mother, Vera Lee Hart, and Lt. Col. Hart's daughter, Gillian Elaine Hart, filed suit in the Northern District of Florida. The Harts sued under the Federal Tort Claims Act ("FTCA") for the intentional infliction of emotional distress as defined by Florida law. The complaint alleged that the Army and Air Force knowingly made a false positive identification of Lt. Col. Hart's remains, that they persisted in this identification in spite of overwhelming evidence to the contrary, that they improperly issued an "ultimatum" about burial, and that they refused to return Lt. Col. Hart to unaccounted-for status after rescinding his identification. The Harts also produced evidence which they claim proves Lt. Col. Hart may still be alive.

The Government filed a motion to dismiss on December 29, 1986. The Government argued, among other things, that the court had no jurisdiction under the FTCA's "discretionary function" exception, 28 U.S.C.A. Sec. 2680(a). The district court denied the motion on March 17, 1987. The Government filed a motion for reconsideration, which was denied on May 13, 1987. The Government also requested certification of the "discretionary function" question to this Court under 28 U.S.C.A. Sec. 1292(b); the district court denied this motion.

On May 26, 1987, the Government filed its answer. On October 21, 1987, the district court ruled pursuant to the Harts' motion that the Government had admitted all of the matters with respect to which the Harts had sought admission. 4 The Harts moved for partial summary judgment on September 21, 1987. On January 12, 1988, the court granted the motion, finding the Government liable to Anne Hart under Florida law for intentional infliction of emotional distress. After a bench trial on October 6, 1988, the district court found the Government liable to Vera and Gillian Hart as well. 5 On October 20, 1988, the court awarded the plaintiffs a total of $632,814.62: $382,814.62 for Anne Hart and $125,000.00 each for Vera and Gillian Hart.


The Government appeals to this Court, claiming that the district court erred in denying the Government's motion to dismiss based on the FTCA's "discretionary...

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