Lead Opinion
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 Felin-ski and Richard Sciaraffa allege they were rendered sterile from radiation because of their participation in the clean-up.
Project Crested lee 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 partic
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,
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.,
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.”
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,
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,
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)(l) (“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) who worked on Project Crested Ice. In light of this, the plaintiffs argue the Feres doctrine should not bar their claims for damages under the FTCA, especially because the United States is compensating foreign nationals for their participation in the same clean-up effort. Plaintiffs note that in holding that Congress did not intend to allow those who were injured on active duty to sue the government for negligence, the Supreme Court in Feres reasoned that Congress provided other methods of compensation, which is not the case here.
Application of the Feres doctrine does not depend on the extent to which its rationales are present in a particular ease. United States v. Johnson,
The district court correctly held that the Feres doctrine bars plaintiffs’ FTCA claims alleging that the military negligently exposed them to radiation during Project Crested Ice.
B. Plaintiffs’ Post-Discharge Negligence Claims
Plaintiffs Maas and Binnebose also have brought claims of post-discharge negligence in which they allege the government
This court in M.M.H. recognized a tort for failure to inform, warn, or test in light of information known after a serviceman’s discharge.
Maas and Binnebose allege a new and independent tort. The negligence of which they complain occurred following their discharge from the Air Force. Accordingly, the district court correctly rejected the government’s “continuing tort” theory and found that the Feres doctrine did not bar the claims of these plaintiffs.
C. Plaintiffs’ Post-Discharge Negligence Claims And The Discretionary Function Exception to the FTCA
Instead, the district court concluded that 28 U.S.C. § 2680(a) barred the post-discharge negligence claims of Maas and Binne-bose. This FTCA section excepts from its waiver of sovereign immunity claims based upon the exercise or performance of discretionary functions regardless of “whether or not the discretion involved be abused.” This “discretionary function” exception covers acts requiring an element of judgment or choice and is intended to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” United States v. Varig Airlines,
The district court relied on In re Consolidated U.S. Atmospheric Testing Lit.,
Plaintiffs attempt to distinguish this case from Atmospheric Testing by pointing out that rather than the thousands of individuals involved in that ease, only a few hundred of the 2-3,000 participants in Project Crested Ice were involved in the recovery of aircraft and weapons debris. Further, the daily decontamination records were maintained at the base camp when the servicemen returned from the crash site, making it (they allege) easy to determine who was exposed to radiation. Plaintiffs also stress the purported ease of notification. They assert that, as in
The government responds that the decision to inform, warn, or test veterans who participated in Project Crested lee based on new studies is purely discretionary because it involves judgment and execution. It submits that a warning of the type plaintiffs seek— which would include resource allocation decisions and involve the weighing of evidence, a matter of agency discretion — places it within the discretionary function exception.
This court recently considered the contours of the discretionary function exception in Rothrock v. United States,
The circumstances of this case easily satisfy the first of the two elements in Roth-rock. No statute or regulation gives the Air Force a precise and optionless directive in handling studies showing a greater incidence of cancer in servicemen involved in past military activities. Cf. Berkovitz v. United States,
Moreover, these exercises of discretion involve policy considerations. Those things plaintiffs wish were done — warning, further testing, etc. — are susceptible to policy analysis. In ascertaining the need for a warning and its cost, and in determining the group to be alerted, as well as the content and procedure of such notice, the government would balance safety with economic concerns. Deciding whether health risks justify the cost of a notification program, and balancing the cost and the effectiveness of a type of warning, are discretionary decisions covered by § 2680(a). See, e.g., Bailor,
The district court correctly distinguished M.M.H., in which we held that the Feres doctrine did not preclude a former soldier from suing the army in tort for failing to inform her that she was not infected with the HIV virus as she had been previously mistakenly told. First, in M.M.H. the army knew the former soldier was not infected. In this case it is only speculative as to whether the injuries of Maas and Binnebose are service-related. Moreover, the ruling in M.M.H. required little effort by the allegedly negligent government. Informing M.M.H. that she had been misdiagnosed required one simple telephone call or letter within days of her discharge. Here, significant expenditures of time and money would need to be undertaken. Notification of hundreds of veterans nearly 30 years after the event in question about potentially serious effects of radiation exposure invokes discretion in poli-cymaking areas, rather than a mere “operation level” decision. Thus, this case is more similar to Atmospheric Testing, with its safety and notice decisions, than M.M.H., with its duty to contact a single person.
A sufficient record is before us to reach this conclusion. To survive a motion to dismiss, plaintiffs needed to plead facts which supported a finding that the challenged actions are not conduct grounded in the policy of a regulatory regime. United States v. Gaubert,
III.
The Feres doctrine bars plaintiffs’ claims that the military negligently exposed them to radiation during Operation Crested Ice. Although not precluded by the Feres doctrine, the FTCA’s discretionary function exception mandates dismissal of the claims of plaintiffs Maas and Binnebose alleging the government negligently failed to warn them of the potential risk of cancer from their exposure to radiation during Operation Crested Ice. The district court’s decision is consequently
Affirmed.
Notes
. To their principal brief plaintiffs have attached a copy of a letter from the Department of Veterans Affairs denying Gregory Maas his claims for service-connected disability benefits as a result of exposure to radiation in Project Crested Ice. [Appendix p. 35] The letter states that the VA found insufficient evidence that Maas's injuries are service related. This letter was not part of the record before the district court and is not properly before this court for consideration. See Fed. R.App. P. 10(e); Circuit Rule 10(b).
Even if we were to consider the letter, the implication plaintiffs presumably wish to leave-that they are necessarily ineligible for any compensation — does not follow. At first blush the result of the letter smacks of inequity. The gov-emment relies on Feres for immunity from suit for "service-related injuries”; Project Crested Ice participants may apply for and receive service-connected death or disability benefits on the same basis as any other veteran; but when plaintiff Maas applied, he was denied with a finding that his injuries were not “service-connected.”
But this is only a perceived dilemma. If Maas’s disabilities are "service-connected,” while Feres bans this suit, the VA would have to pay death or disability benefits on the same basis as any other veteran. But because the VA determined Maas's injuries are not "service-connected,” as his cancer cannot be causally connected with Project Crested Ice, he is not entitled to benefits.
. See, e.g., Pifer v. United States,
Concurrence Opinion
concurring:
I write separately to raise an important issue, not argued by the parties or addressed by the majority, which could be crucial in cases of this sort. That question is whether the discretionary function exception applies only to suits challenging affirmative “acts that involve an element of judgment or choice,” United States v. Gaubert,
The question I describe has arisen infrequently, since most reported cases involve affirmative discretionary actions or allegations of negligence in the administration of existing regulatory programs. As the majority notes, there is a two-part test for determining whether the discretionary function exception applies. The exception covers “acts that are discretionary in nature, acts that ‘involve an element of judgment or choice.’ ” Id., quoting Berkovitz v. United States,
The Ninth Circuit, in a ease relied upon by the majority, addressed a claim of failure to warn against dangers resulting from radiological exposure, which was similar to the claims presented here. In re Consolidated United States Atmospheric Testing Litigation,
The First Circuit, however, rejected the view that the discretionary function exception applies to anything that is hypothetically “susceptible of discretion.” Dube v. Pittsburgh Corning,
Since these two eases were decided, the Supreme Court in Gaubert has returned to the issue of the scope of the discretionary function exception. The specific situation addressed by Gaubert was whether there was a distinction between “policy decisions” and “operational actions,” a question which is of no relevance to the current discussion. However, in analyzing that question the Court engaged in a discussion of the purpose of the discretionary function exception. That discussion may provide some insight into whether the discretionary function exception should be applied in cases where the government agency failed to make any decision or exercise any judgment.
According to the Supreme Court in Gau-bert:
*300 Because the purpose of the exception is to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort, when properly construed, the exception protects only governmental actions and decisions based on considerations of public policy.
For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.
Gaubert,
The Gaubert discussion suggests that the Federal Tort Claims Act might be viewed as providing two alternative regimes for monitoring governmental actions. The common law provides a basic standard drawn from what a “reasonable person” would do. However, when Congress has delegated the responsibility of weighing costs and benefits to some presumably expert administrative body — when there is, in the phrase of Gau-bert, a “regulatory regime” — the application of common law standards would constitute “judicial second-guessing” of policy decisions made by the regulators. If this view of Gaubert is correct, it lends support to the Dube conclusion that “where there is no policy judgment, courts would be ‘second-guessing’ by implying one.” Dube,
This perspective on the discretionary function exception is also consistent with the cases cited by the majority.
In the case before us, there might well have been a question whether there existed a regulatory regime governing the question of veterans who had been exposed to radiation and who should be notified of later scientific studies indicating more severe effects than originally supposed. The record in this case does not disclose whether there was a conscious decision not to alert the Project Crested Ice veterans of the results of the National Academy of Sciences report or whether the question was simply never considered. Plaintiffs have not argued that the lack of a conscious decision takes the failure to warn out of the discretionary function exception. The appellants not having raised the question, the majority predictably provides no answer. However, the question is fundamental and, if not raised here, is likely to appear again.
. Bailor v. Salvation Army,
. Though the discretionary function exception was not the subject of explicit discussion in that case, it is jurisdictional. Thus, if it was not discussed, it must be taken not to have applied.