discharged in September 1968 and Binnebose was discharged in August 1970. The complaint is silent regarding additional testing of either plaintiff while on active duty.
Sometime during the 1980's, the United States government became aware of the effects of low level dosages of ionizing radiation on human health. It knew that hundreds of military personnel had been exposed to such radiation at the time of Project Crested Ice. By 1989, the complaint alleges, the United States government was aware that Project Crested Ice participants were more likely to develop certain cancers as a result of their exposure, but failed to warn them of their increased risks. The plaintiffs argue that the government assumed a duty of care in 1968 when it began to test for radiation exposure and it breached that duty by failing to inform plaintiffs of the new findings.
In late 1991, Maas was diagnosed with colon cancer. Binnebose was diagnosed with T-Cell Lymphoma in 1994. Both men allege that as a result of their exposure to excessive radiation they developed cancer. They further allege that as a result of the government's failure to warn, they sustained delay in the diagnosis and treatment of their diseases.
Plaintiffs Felinski and Sciaraffa also participated in Project Crested Ice and allege that as a result of their exposure to excessive amounts of radiation they became sterile, have been otherwise injured and have endured pain and suffering as well as loss of enjoyment of life.
On March 7, 1994, Maas and Sciaraffa filed administrative claims with the United States Air Force and the Department of Defense. Felinski followed on March 28, 1994, while Binnebose filed on July 12, 1994. In each case, no final disposition had been reached within six months of filing the claim. The plaintiffs therefore exercised their option to deem their claims finally denied and to bring an action in federal court. 28 U.S.C. § 2675(b). Plaintiffs Maas and Binnebose seek $ 4.5 million each in damages, while plaintiffs Sciaraffa and Felinski seek $ 2 million apiece.
The FTCA acts as a broad waiver of sovereign immunity. It permits individuals to sue the federal government for personal injuries or death under circumstances where the government would be liable if it were a private citizen, and in accordance with the law of the state where the wrongful conduct occurred. 28 U.S.C. § 1346(b). Stephenson, 21 F.3d at 162. The United States retains immunity from suit for claims arising under certain circumstances, including claims arising out of combatant activity of the armed forces during times of war, 28 U.S.C. § 2680(j); claims arising in a foreign country, 28 U.S.C. § 2680(k); or claims arising from discretionary acts or omissions of government employees, 28 U.S.C. § 2680(a).
None of the statutory exceptions to the FTCA expressly cover negligent acts by military personnel during peacetime. Nonetheless, the Supreme Court has repeatedly held that the FTCA does not waive immunity for claims brought by military personnel who suffer injuries "which arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146; United States v. Brown, 348 U.S. 110, 112, 99 L. Ed. 139, 75 S. Ct. 141 (1954); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977); United States v. Johnson, 481 U.S. 681, 686, 95 L. Ed. 2d 648, 107 S. Ct. 2063 (1987). An injury is incident to military service "whenever the injury is incurred while the individual is on active duty or subject to military discipline." Stephenson, 21 F.3d at 162. Thus, a service member alleging negligence on the part of military personnel may only bring an action under the FTCA when it is predicated upon negligence which occurred following discharge. M.M.H. v. United States, 966 F.2d 285, 287 (7th Cir. 1992).
Plaintiffs claim that their exposure to dangerous radiation levels during Project Crested Ice proximately caused their illnesses. The alleged negligence occurred while plaintiffs were on active duty, and their claims are therefore barred under the Feres doctrine, even though their illnesses appeared long after discharge. Rogers v. United States, 902 F.2d 1268, 1273 (7th Cir. 1990).
While the Rogers court did not address the question of radiation-induced cancer, it found the issue analogous to the facts before it, which involved negligence leading to a false arrest for desertion. "In the present case, the Navy's initial error appears to have been in failing to properly classify Rogers on his purported exit from the Navy. Like an incipient cancer cell, that mistake would release its harm years later." (citing with approval Monaco v. United States, 661 F.2d 129, 133 (9th Cir. 1981), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1284, 102 S. Ct. 2269 (1982) (no subject matter jurisdiction for claims alleging exposure to nuclear testing led to cancer). See also Laswell v. Brown, 683 F.2d 261, 265 (8th Cir. 1982), cert. denied, 459 U.S. 1210, 103 S. Ct. 1205, 75 L. Ed. 2d 446 (1983) (same); Lombard v. United States, 223 U.S. App. D.C. 102, 690 F.2d 215, 221 (D.C. Cir. 1982), cert. denied, 462 U.S. 1118, 77 L. Ed. 2d 1347, 103 S. Ct. 3086 (1983) (same); Gaspard v. United States, 713 F.2d 1097, 1100-01 (5th Cir. 1983), cert. denied, 466 U.S. 975, 104 S. Ct. 2354, 80 L. Ed. 2d 826 (1984) (same). 38 Although this would appear to end the matter, plaintiffs argue that the Feres doctrine is a judicially created exception which only applies in circumstances where Congress has provided "systems of simple, certain and uniform compensation for injuries or death of those in the armed forces." Feres, 340 U.S. at 144. They note that unlike military personnel exposed to radiation as the result of the explosions over Hiroshima and Nagasaki or onsite participation in atmospheric nuclear testing, Congress has never addressed their situation. See 38 U.S.C. § 1112. As they note in their complaint, if the Feres doctrine is applied, they will have no recourse for exposure which is arguably just as deadly as that experienced by earlier veterans.
In its present form, the Feres doctrine rests on three precepts:
(1) the doctrine protects the distinctive federal relationship between the government and the armed forces, which may be undermined by idiosyncrasies between the individual states' distinctive tort laws; (2) the doctrine promotes the existence of other statutory systems of compensation for service members; and (3) the doctrine promotes military discipline and effectiveness.