Arnold v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50779
Summary Calendar
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LISA ARNOLD, Individually and a/n/f
Lea Ashley Arnold, a minor and RICHARD
ARNOLD, Individually and a/n/f of
Lea Ashley Arnold, a minor,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court for
the Western District of Texas
(W-96-CV-198)
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March 18, 1998
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Lisa and Richard Arnold appeal the dismissal of their case,
brought on their own behalf and as next friend of their minor
daughter, against the United States. The district court
dismissed the claims, holding that it lacked subject matter
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
jurisdiction under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346(b), 2671 et seq. We affirm.
Background
Richard Arnold worked for Lockheed in Saudi Arabia during
the Persian Gulf War. Arnold was given shots and medication by
the government, along with potentially being exposed to other
unspecified chemicals. He was not informed at any time that this
could cause birth defects in children. Following his return,
Richard and Lisa Arnold conceived Lea Ashley Arnold, who was born
with severe birth defects. The Arnolds filed an administrative
complaint on the government under the FTCA and the Military
Claims Act, and the government refused relief.
Discussion
The FTCA provides that:
Subject to the provisions of chapter 171 of
this title, the district courts. . . shall
have exclusive jurisdiction of civil actions
on claims against the United States. for
money damages . . . for injury or loss of
property, or personal injury or death caused
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by the negligent or wrongful act or omission
of any employee of the Government while
acting within the scope of his office or
employment, under circumstances where the
United States, if a private person, would be
liable to the claimant in accordance with the
law of the place where the act or omission
occurred.
28 U.S.C. § 1346(b). Chapter 171 includes a listing of
situations where the district courts do not have jurisdiction,
including: (1) any claim based on a discretionary function,
whether or not the discretion involved was abused; (2) any claim
arising out of the combatant activities of the military forces
during wartime; and (3) any claim arising in a foreign country.
28 U.S.C. § 2680(a), (j), & (k).
Under § 2680(a), the complaint 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 policy. United States
v. Gaubert, 499 U.S. 315, 324-25 (1991). The focus of the
inquiry is on the nature of the actions taken and whether they
are susceptible to policy analysis. Id. at 325. In this case,
the Arnolds challenge actions which are clearly grounded in
policy. The decision to protect civilians in the Gulf War using
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various medication necessarily involved weighing policy issues.
The courts have repeatedly refused to allow review of policy-
based military decisions in the context of private tort
litigation. See, e.g., Boyle v. United Technologies Corp., 487
U.S. 500, 511 (1988); Industria Panificadora, S.A. v. United
States, 957 F.2d 846, 887 (D.C. Cir. 1992). In Gordon v. Lykes
Bros. S.S. Co., this Court held that the Government’s decision to
use asbestos in construction of ships during World War II fell
within the discretionary function exception. 835 F.2d 96, 99-100
(5th Cir. 1988). “[O]fficials chose from among important
alternative courses of action.” Id. at 100.
The discretionary function exception also immunizes the
Government for failing to issue warnings of an increased risk of
birth defects as a result of chemical exposure. Assuming the
Government did know of the risks, the decision on whether to warn
would necessarily involve an exercise of policy judgment on
whether the risk was of sufficient magnitude to warrant
establishing a nationwide program to issue warnings to the
thousands of military and civilian personnel potentially at risk,
with the associated costs, both monetary and from such problems
as creating public anxiety. In re Consolidated U.S. Atmospheric
Testing Litigation, 820 F.2d 982, 997 (9th Cir. 1987).
Under § 2680(j), the case is also barred because the claims
arose out of combatant activities of the military forces during
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time of war. The terms “combatant activities” includes “not only
physical violence, but activities both necessary to and in direct
connection with actual hostilities.” Johnson v. United States,
170 F.2d 767, 770 (9th Cir. 948). This exception is applicable
to claims even in the absence of a formal declaration of war.
Koohi v. United States, 976 F.2d 1328, 1333-34 (9th Cir. 1992).
The Persian Gulf conflict constituted a “time of war” within this
section, when the United States armed forces marched into Kuwait
and then Iraq. Id.Lastly, this suit is barred by § 2680(k) because the
allegedly negligent acts of the Government occurred in a foreign
country. The Arnolds contend that the Government’s alleged
negligence had its operative effect in the United States, and
thus does not fall within this section. Congress provided that
the Government’s liability under the FTCA was to be determined
“in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b). The Supreme Court has
specifically rejected the arguments that the words “act or
omission” refer to the place where the Government’s alleged
negligence had its operative effect. Richards v. United States,
369 U.S. 1, 9-10 (1962).
The plaintiff’s brief argues that the district court’s
decision expands the Feres doctrine. The Feres doctrine focuses
on the final portion of 28 U.S.C. § 1346(b), which states that
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the court has jurisdiction “under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.” In another case arising out of use of chemicals in
the Persian Gulf War, the district court based its decision on
the Feres doctrine in addition to the three grounds discussed in
this case. Clark v. United States, 974 F. Supp. 895 (E.D. Tex.
1996). We do not find it necessary to reach this issue, as the
stated exceptions to the FTCA are sufficient to affirm the
dismissal in this case.
AFFIRMED.
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