Maas v. U.S., 95-3475

• Decision Date: 23 August 1996
• Docket Number: No. 95-3475,95-3475
• Citation: 94 F.3d 291
• Parties: Gregory MAAS, Frank Felinski, Richard Sciaraffa, and Gregory Binnebose, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 291

94 F.3d 291

Gregory MAAS, Frank Felinski, Richard Sciaraffa, and Gregory Binnebose, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 95-3475.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1996.

Decided Aug. 23, 1996.

Lawrence W. Leck (argued), Leck & Associates, Chicago, IL, for plaintiffs-appellants.

Thomas P. Walsh, Office of U.S. Atty., Civil Div., Chicago, IL, James G. Touhey, Jr., Lowell Sturgill (argued), U.S. Dept. of Justice, Civil Div., Washington, DC, for U.S.

Before CUMMINGS, CUDAHY, and MANION, Circuit Judges.

MANION, Circuit Judge.

Nearly thirty years ago a United States Air Force airplane carrying nuclear weapons crashed in Greenland. The four plaintiffs in this case were among the servicemen assigned to clean up the wreckage. Two plaintiffs allege they suffer from cancer and two contend they are sterile as a result of radiation exposure during the cleanup effort. The district court dismissed their claims against the United States on the ground that the Federal Tort Claims Act ("FTCA") as interpreted does not permit military personnel to bring negligence actions which arise from activities incident to service. It also ruled that the "discretionary function" exception to the FTCA barred the claims of two of the plaintiffs that the government did not inform them of an increased risk of cancer. Plaintiffs appeal these decisions. We affirm the district court's rulings.

I.

A. Facts

In January 1968 a United States Air Force Strategic Air Command B-52 bomber armed with four thermonuclear hydrogen bombs crashed into an ice-covered bay in Greenland. The plane was destroyed and the simultaneous explosion of 200,000 tons of jet fuel and the high explosives within the hydrogen bombs blew the warheads into highly radioactive plutonium and tritium fragments which scattered over the ice flows.

Alerted by the nearby Thule Air Base, the U.S. Air Force Command Post at the Pentagon activated its "Broken Arrow" Control Group which handles lost or damaged nuclear weapons. It put into action a clean-up operation known as Project "Crested Ice." The four plaintiffs in this case were among 300 servicemen and Danish civilian workers who worked on this project.

The clean-up operation worked under extreme and urgent conditions of bitter cold and wind, perpetual darkness, and the impending spring thaw which would break up the radioactive ice. The men worked long hours every day to pick up radioactive debris which consisted of pieces of the airplane and weapon fragments. On occasion their breath froze on the face-masks they wore and they discarded them. This increased the risk of inhaling radioactive particles, including plutonium oxide. Aware of the possibility of radiation exposure, the government tested the workers, but the extreme weather conditions may have compromised the results. The government also tested some of the plaintiffs for up to three years after Project Crested Ice ended, but did not test them after they left the service.

In its "Bier V" report, issued in the 1980's, the National Academy of Sciences noted an increased risk of cancer connected with low-level doses of ionizing radiation. The plaintiffs allege the government became aware of these effects and thus learned that Project Crested Ice participants were more likely to develop certain cancers as a result of their 1968 Greenland tour of duty. The government did not notify the Crested Ice veterans of this new information.

In 1991 Gregory Maas was diagnosed with colon cancer. He claims the cancer resulted from exposure to ionizing radiation, including plutonium, during the clean-up project. Gregory Binnebose was diagnosed with T-cell lymphoma in 1994. He also asserts his cancer developed as a result of his participation in Project Crested Ice. Frank Felinski and Richard Sciaraffa allege they were rendered sterile from radiation because of their participation in the clean-up.

Project Crested Ice participants may apply for and receive service-connected disability benefits on the same basis as other veterans. Each of the plaintiffs filed claims with the government for damages resulting from radiation exposure. Because the plaintiffs did not receive notices of final disposition of their claims within six months of filing, each exercised his option to consider his claim as finally denied pursuant to 28 U.S.C. § 2675(b) and sued the United States.

B. District Court Proceedings

Each of the four plaintiffs claim they sustained radiation-induced injuries from participating in Project Crested Ice. Plaintiffs Maas and Binnebose also charge the government with post-discharge negligence for failing to inform, warn, and test them when it learned during the 1980's that they had been exposed to dangerous doses of radiation. They seek damages for their injuries, and contrast their circumstances with the benefits received by veterans who sustained radiation-induced injuries from exposure at atomic bomb and test sites.

The United States moved to dismiss plaintiffs' claims for lack of subject matter jurisdiction. It argued that the FTCA does not permit military personnel to bring negligence actions which arise from activities incident to service. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The district court agreed that none of the plaintiffs had actionable claims. Maas v. United States, 897 F.Supp. 1098 (N.D.Ill.1995). It ruled that the Feres doctrine barred claims based on plaintiffs' exposure to radiation during Project Crested Ice because the alleged negligence occurred while the plaintiffs were on active duty. Id. at 1103. The court also ruled, however, that because the alleged negligence of failing to inform plaintiffs Maas and Binnebose of an increased risk of cancer occurred after they were discharged, Feres did not bar their claims. Id. at 1104. The district court denied these "post-discharge" claims on the ground they were barred by the FTCA's "discretionary function" exception because a decision to notify servicemen exposed to radiation would involve policy considerations for which the FTCA did not waive sovereign immunity. The district court therefore dismissed the plaintiffs' amended complaint pursuant to Fed.R.Civ.P. 12. Id. at 1106.

Plaintiffs sued the United States under the FTCA, 28 U.S.C. § 2671 et seq., and therefore the district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1346. Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo a Rule 12(b)(1) dismissal for lack of subject matter jurisdiction. Anthony v. Security Pacific Financial Services, Inc., 75 F.3d 311, 315 (7th Cir.1996) (citing Health Cost Controls v. Skinner, 44 F.3d 535, 537 (7th Cir.1995)). The district court's resolution of jurisdictional factual issues in the context of a Rule 12(b)(1) motion is reviewed only for abuse of discretion. Id. (citing Pratt Central Park Ltd. Partnership v. Dames & Moore, Inc., 60 F.3d 350, 354 (7th Cir.1995)).

II.

A. The Feres Doctrine and Plaintiffs' Claims

The Supreme Court has held that claims for injuries which arise out of or in the course of military service are outside the FTCA's waiver of sovereign immunity. Under Feres, sovereign immunity is restored when injuries to servicemen "arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159. Thus, a serviceman alleging negligence on the part of military personnel may only bring an action under the FTCA when it is predicated upon negligence that occurred following discharge. M.M.H. v. United States, 966 F.2d 285, 289 (7th Cir.1992).

All four veterans here allege they sustained injuries as a result of their participation in ultra-hazardous activity during their tour in Greenland. Project Crested Ice was a military mission to which plaintiffs were assigned on active duty status and during which they acted under orders to gather dangerous radioactive debris. Plaintiffs' claims are therefore barred under Feres, even though their illnesses appeared after discharge. Rogers v. United States, 902 F.2d 1268, 1273 (7th Cir.1990) (alleged government negligence occurring during active duty but manifested after service ended precluded under Feres; "Like an incipient cancer cell, ... mistake [which] would release its harm years later" still barred by doctrine).

Other courts have also concluded that the Feres doctrine bars claims for radiation-induced injuries by members of the armed forces exposed to radiation during military service. See, e.g., Gaspard v. United States, 713 F.2d 1097 (5th Cir.1983) (sovereign immunity bars claim of former servicemen who under military orders took part in atmospheric weapons tests during early 1950's); Monaco v. United States, 661 F.2d 129 (9th Cir.1981) (sovereign immunity bars action by former serviceman to recover for colon cancer resulting from radiation exposure); Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980) (sovereign immunity bars action brought by surviving spouse against United States to recover for wrongful death of husband who participated in military maneuvers in conjunction with nuclear weapons tests).

Plaintiffs retort that the Feres doctrine should not preclude their claims because it is a judicially-created exception which applies only "when Congress has otherwise provided compensation systems for injuries or death of those in the armed forces." Although the United States government has taken the special step of providing a system of compensation for veterans exposed to atmospheric nuclear testing or assigned to the American occupation of Hiroshima or Nagasaki, Japan, 38 U.S.C. § 1154(5)(a)(1) ("Veterans' Dioxin and Radiation Exposure Compensation Standards Act"), that system does not include veterans of Project Crested Ice. Further, pursuant to the "NATO SOFA" agreement, the United States must provide 75% of the payment made on claims by Danish civilians (or their surviving families)...