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MAAS v. UNITED STATES

August 23, 1995

GREGORY MAAS, FRANK FELINSKI, RICHARD SCIARAFFA, and GREGORY BINNEBOSE, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: HART

 Plaintiffs Gregory Maas, Gregory Binnebose, Frank Felinski, and Richard Sciaraffa are former members of the United States Air Force who were assigned to clean up debris from an airplane crash involving nuclear weapons in early 1968. Maas and Binnebose have developed cancers which they allege were caused by their exposure to low level dosages of ionizing radiation during the clean-up project; Felinski and Sciaraffa suffer from sterility allegedly as a result of their exposure. Plaintiffs bring their action pursuant to the Federal Tort Claims Act, ("FTCA"), 28 U.S.C. § 2671 et seq. Jurisdiction is proper under 28 U.S.C. § 1346.

 Counts I and II of the first amended complaint charge the United States with post-discharge negligence for its failure to inform, warn, and test Maas and Binnebose when it learned that they had been exposed to dangerous doses of radiation. Counts III through VI allege that all four veterans sustained injury as a result of participation in an ultra-hazardous activity. The United States has moved to dismiss for lack of subject matter jurisdiction, arguing 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, 95 L. Ed. 152, 71 S. Ct. 153 (1950). In the alternative, the United States argues that plaintiffs' claims are barred by the foreign country and discretionary function exceptions to the FTCA. For the reasons given below, defendant's motion will be granted.

 BACKGROUND

 On a motion to dismiss, a plaintiff's well-pleaded allegations of fact are taken as true and all reasonable inferences therefrom are drawn in plaintiff's favor. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993), Stephenson v. Stone, 21 F.3d 159, 161 (7th Cir. 1994). "Dismissal of the complaint is proper only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Roots Partnership v. Lands' End, Inc., 965 F.2d 1411, 1416 (7th Cir. 1992).

 On January 21, 1968, a B-52 U.S. Air Force aircraft carrying four thermo-nuclear hydrogen bombs crashed near Thule, Greenland. Plaintiffs were assigned to "Project Crested Ice" in late January 1968 to clean up the debris, which consisted of thousands of fragments of aircraft and weapons scattered across the countryside. The two-month clean-up was conducted under onerous conditions in almost total darkness, with temperatures reaching -50 degrees Fahrenheit, winds in excess of seventy miles per hour, and wind-chills of -100 degrees Fahrenheit.

 At the time of the clean-up, the government knew of the risk of radiation exposure, particularly regarding plutonium and tritium. Although the government conducted tests for exposure, it was also aware, according to the complaint, that its tests were compromised by the extreme climactic conditions in Thule. For at least three years after the conclusion of Project Crested Ice, the United States continued to periodically test participants who remained on active duty. Maas was 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.

 FERES DOCTRINE

 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 ...


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