On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams, and Garth, Circuit Judges, and Brotman, District Judge.*fn* Adams, Circuit Judge, concurring.
Sandra Heilman and Andrew Lind, as Executors ("the Executors"), and Sandra Heilman in her own right,*fn1 brought this action against the United States and the Department of the Navy for the wrongful death of F. William Heilman (Heilman). The complaint alleges that Heilman was exposed to radiation resulting from atomic tests in which he participated (1) while he was enlisted in the Navy from 1944 to 1947, and (2) while he was employed as a civilian consultant to the Navy from 1947 to 1955. Heilman subsequently contracted multiple myeloma, a cancer of the bone marrow, and died in 1981 from complications arising out of that disease. The Executors contend that the myeloma resulted from the previous exposures to radiation, and that the United States should have warned Heilman of the dangers of radiation in order that he might seek prompt medical treatment.
The United States moved to dismiss the case under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), contending that: (1) recovery for injuries suffered while Heilman was enlisted in the Navy is barred by the Feres doctrine, and (2) compensation for injuries received while a civilian federal employee is available exclusively through the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8116(c). The district court agreed, and dismissed the action. We affirm.
The complaint alleges that F. William Heilman served on active duty with the Navy at the Pearl Harbor Naval Shipyard from 1944 to 1947. During that time, he participated in numerous atomic tests, including "Operation Crossroads," the "washdowns" following "Shot Baker" in the Pacific, and the "scientific investigation of TBM-3" which had been "deep-sixed" from the U.S.S. Independence.
Heilman was also retained as a civilian employee of the Navy following his discharge in 1947, serving as a radiological safety monitor and engineer. In the course of his employment, he participated in the monitoring and decontamination of radioactive ships and aircraft, and the dumping of radioactive materials at sea.*fn2
The complaint contends, inter alia, that subsequent to Heilman's discharge from the Navy, the United States was negligent in failing to:
1. obtain, compile, and review complete records on Heilman's participation in the testing of atomic weapons;
2. affirmatively seek out Heilman and warn him of the dangers and risks associated with radiation exposure ;
3. provide Heilman with necessary examinations, diagnostic care, and medical treatment in light of his exposure.
See Complaint para. 15(a)-(h), App. at 6a-7a. The Executors contend that this "failure to warn" delayed the detection and treatment of Heilman's cancerous condition, thereby exacerbating its severity and ultimately leading to his death. The Government having moved under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss the Complaint, we are obliged to credit as true all allegations of the Executors' pleadings. E.g., McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229 (3d Cir. 1978).
We address first whether damages arising out of Heilman's military service are actionable in the courts. The liability of the United States for injuries received by members of the armed forces has been the subject of numerous judicial opinions, all of which stem from the seminal case of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). In Feres, the Supreme Court held that the Federal Tort Claims Act did not waive the sovereign immunity of the United States for injuries suffered incident to military service, and therefore the courts had no jurisdiction to entertain the suit. See also Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983). Our threshold inquiry must therefore be whether Feres bars recovery for Heilman's death.
In determining whether the Feres doctrine is applicable to a given set of facts, this Court has held that the proper focus is "not upon when the injury occurred or when the claim became actionable, but rather the time of, and circumstances surrounding the negligent act." Henning v. United States, 446 F.2d 774, 777 (3d Cir. 1971), cert. denied, 404 U.S. 1016, 30 L. Ed. 2d 664, 92 S. Ct. 676 (1972). We therefore look to the time when the allegedly tortious Government conduct occurred; if that conduct arose while the claimant was still a member of the military, then his action is barred.
Under this analysis, it is clear at the outset that no recovery is possible for the injuries suffered by Heilman due to the original exposure to radiation which occurred while he was stationed in the Pacific. The decision to expose him to that radiation was made while he was an enlisted man in the Navy, and therefore the United States is immune from liability for that decision under Feres and Henning. As we understand the ...