Seveney v. US Government, Dept. of Navy, Civ. A. No. 80-0396.

• Decision Date: 16 November 1982
• Docket Number: Civ. A. No. 80-0396.
• Parties: Benedict SEVENEY, Wanda Seveney, Patricia Seveney Bissett, and Michael Bissett (Minor) v. UNITED STATES GOVERNMENT, DEPARTMENT OF the NAVY, and John Doe and Others to be Identified Later During the Course of Discovery.
• Court: U.S. District Court — District of Rhode Island

550 F. Supp. 653

Benedict SEVENEY, Wanda Seveney, Patricia Seveney Bissett, and Michael Bissett (Minor) v. UNITED STATES GOVERNMENT, DEPARTMENT OF the NAVY, and John Doe and Others to be Identified Later During the Course of Discovery.

Civ. A. No. 80-0396.

United States District Court, D. Rhode Island.

November 16, 1982.

COPYRIGHT MATERIAL OMITTED

Leo Paul Attilli, North Providence, R.I., for plaintiff, Benedict Seveney, Wanda Seveney, Patricia Seveney Bissett, and Michael Bissett (Minor).

Robert L. Gammell, Asst. U.S. Atty., for defendant, U.S. Government, Dept. of the Navy, and John Doe and others to be Identified Later During the Course of Discovery.

OPINION AND ORDER

SELYA, District Judge.

According to the amended complaint herein, plaintiffs, Wanda Seveney, Patricia Seveney Bissett and Michael Bissett, are the widow, daughter and grandson, respectively, of Benedict Seveney, who died on August 26, 1978. Plaintiffs allege that his demise occurred as a result of his exposure to large amounts of radiation while he was on active duty with the United States Navy. They predicate their action on various bases, to wit, the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. ("FTCA"), 42 U.S.C. §§ 1981, 1982 and 1983, the Rhode Island Wrongful Death Act and Survivors' Statute, R.I.G.L. (1956) § 10-7-1 et seq., as amended, and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. They seek one million dollars in damages.

The United States¹ has moved to dismiss the action pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, on the grounds that the Court lacks subject matter jurisdiction and that the amended complaint fails to state a claim upon which relief can be granted. The amended complaint contains seven separate statements of claim (Counts), each of which must be addressed independently. For the reasons hereinafter discussed, the government's motion to dismiss plaintiffs' amended complaint is granted, but with leave given plaintiffs to file an amended complaint in accordance with this opinion.

Facts

Taking the allegations in the amended complaint as true, as I must for purposes of this motion to dismiss, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), the relevant facts appear to be the following. Benedict Seveney was a career enlisted man serving in the United States Navy from 1945 until his retirement in 1965. In 1946, he served on board the U.S.S. DIXIE during its participation in the government's atomic bomb testing near the atoll of Bikini in the Pacific Ocean. On July 1, 1946, and again on July 25, 1946, Seveney witnessed atomic bomb blasts from his shipboard duty post. On each occasion, the U.S.S. DIXIE was stationed approximately six miles from the detonation site. The vessel remained in the area where the atomic testing had occurred for over two weeks following each of the blasts.

Subsequent to his tour of duty on board the U.S.S. DIXIE, and until his death in 1978, Seveney suffered from medical complications, ostensibly caused by his exposure to radiation in 1946. His death, which occurred after a long sickness, is stated to have been the direct result of this exposure.

Seveney's daughter, Patricia, was born in 1952. Because of her father's exposure to radiation, she claims to have suffered genetic deficiencies and extensive medical complications. Patricia's son, Michael, also allegedly bears the harrowing physical effects of his grandfather's exposure to radiation.

Although the government has long been aware of the grave health hazards caused by radiation unleashed consequent to the purposeful detonation of atomic bombs, it never informed Seveney or plaintiffs of the radiation dosages to which Seveney had been exposed. Plaintiffs further allege that the government did not inform plaintiffs of the medical complications and genetic deficiencies likely to beset Seveney and his offspring as a proximate result of such exposure. Had plaintiffs received an early warning of the dangers caused by radiation, they assert that prophylactic measures would have been taken to prevent or to ameliorate some of the ill effects, medical and genetic, which they, and Seveney himself, later suffered.

Count I of the amended complaint seeks damages for the wrongful death of Seveney, resulting from his negligent exposure to large amounts of radiation. Counts II and III seek damages for the medical complications and genetic deficiencies sustained by plaintiffs Patricia Seveney Bissett and Michael Bissett, caused by Seveney's negligent exposure to radiation. Counts IV through VII seek damages for the genetic, physical and psychological harm suffered by Patricia and Michael, resulting from the government's putative failure to notify them that Seveney had been exposed to large dosages of radiation, thereby preventing these plaintiffs from taking necessary health-care precautions. Count IV, when liberally construed so as to do substantial justice, Fed.R.Civ.P. 8(f), may also be read as averring that Seveney's injuries were exacerbated by the government's failure to inform him of the dosages of radiation to which he had been exposed.² On a Rule 12(b)(6) motion, the Court must draw all reasonable inferences in favor of the plaintiff. See Rodriquez v. Board of Education of Eastchester Union Free School District, 620 F.2d 362, 365 (2d Cir.1980).

Jurisdictional Basis

The government, invoking the historic immunity of the sovereign, argues first that the Court lacks subject matter jurisdiction over this action. Suits for money damages against the United States are barred by the doctrine of sovereign immunity unless the United States consents to be sued. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The FTCA provides one such waiver of sovereign immunity. The Public Vessels Act, 46 U.S.C. § 781 et seq. ("PVA"), also waives immunity as to suits within its express purview, i.e., with respect to claims for damages caused by public vessels. The government contends that the action should have been brought under the PVA, rather than under the FTCA as alleged by plaintiffs, because the amended complaint alleges actions which, if proven, would constitute tortious maritime conduct. Plaintiffs' remedy with respect to these allegations, the government asserts, therefore lies under the PVA rather than under the FTCA. Because plaintiffs failed to allege the proper jurisdictional basis under the PVA, the government argues, plaintiffs' amended complaint should be dismissed for lack of subject matter jurisdiction.³

Plaintiffs' claims do not appear to bear "a significant relationship to traditional maritime activity" in the typical sense. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 261, 93 S.Ct. 493, 501, 34 L.Ed.2d 454 (1972). Without such a nexus, no claim exists under the PVA. Id. It would appear, therefore, that plaintiffs' claims, if validly bottomed at all, are properly based on the FTCA. The Court need not decide this issue in the present action, however. As appears below, the doctrine set forth in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and in succeeding cases, governs the disposition of plaintiffs' claims as now framed in and by the amended complaint, regardless of whether jurisdiction is appropriately based on the FTCA or on the PVA.

Feres and its Progeny

In Feres, the Supreme Court held that the United States cannot be found liable under the FTCA for injuries to servicemen due to the negligence of United States officials where the injuries arise out of or are in the course of activity incident to service. Id. at 146, 71 S.Ct. at 159.⁴ Three factors explain this broad limitation upon the waiver of sovereign immunity. First, because the relationship between the United States and its Armed Forces is federal in nature, it makes little sense for the government's liability to members of the Armed Forces to depend on the fortuity of where the soldier or sailor happens to be stationed at the time of the injury. Id. at 142-44, 71 S.Ct. at 157-158. Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory compensation scheme which provides pensions in lieu of money damages to injured servicemen. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1977). Third, "the peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty" preclude suits by a serviceman against the government arising out of activity incident to service. Id., citing United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 145, 99 L.Ed. 139 (1954).

The Feres doctrine has been extended to bar suits brought by third parties as a result of injuries suffered by persons in the service. In Stencel Aero Engineering Corp. v. United States, supra, the Supreme Court, albeit over a vigorous dissent, held that a suit to indemnify a third party for damages paid by it to a member of the Armed Forces injured in the course of military service is barred under Feres for essentially the same reasons that a direct action is itself barred. Id. 431 U.S. at 673, 97 S.Ct. at 2058.

Lower courts have extended the prohibitions of this doctrine to actions brought by third persons seeking relief for personal injuries sustained by them, rather than indemnity for losses due to injuries to the serviceman himself. Thus, in Monaco v. United States, 661 F.2d 129, 134 (9th Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982), the court dismissed a complaint brought by the daughter of a serviceman, seeking to recover for birth defects she suffered as a result of her father...