DEPARTMENT OF THE NAVY. 1. U.S. Navy personnel record of Dale Robert Beaman, Sr.;

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1 DEPARTMENT OF THE NAVY OFFlCE OF THE JUDGE ADVOCATE GENERAL ZCQSTOVALLSTREET ALEXANDRIA, VA z P c ID IC IN REPLY REFER TO 0 JAG:ll:TWO:plg Ser:11/2606 m 15 July ID United States Attcrney Northern District of California 16th Floor, Federal Building P 0 Box Golden Gate Avenue San Francisco, California Attn: AUSA George C Stoll, Esq Re: USS FULTON - radiation injury - 1 July/25 July ACC Beaman v United States ND Cal - CA NO C WHO Gentlemen: We refer to your call letter of May 14, 1982, forwarding a copy of the complaint in the captioned case We are enclosing a copy of our file in this matter which includes the following: 1 US Navy personnel record of Dale Robert Beaman, Sr; 2 US Navy Nuclear Test Personnel Review file concerning Dale Robert Beaman, Sr; 3 us Navy medical records for Dale Robert Beaman, Sr; 4 Claims of Dale Robert Beaman, Sr, and his SOP, Dcuglas Beaman ; 5 Letters from the Department of Energy, Nevada Operations Office, Naval Legal Service Office, Defense Nuclear Agency, and Navy Muclear Test Personnel Review, deferring to our office in regard to the Beaman claims; 6 Navy Nuclear Test Personnel Review letter to Mrs Robinson, Veterans Administration, Central Office, concerning the possible level of radiation exposure of Dale Robert Beaman, Sr, during Operation CROSSROADS; 7 Defense Nuclear Agency response to Dale Robert Beaman, Sr, providing information concerning his participation in Operation CROSSROADS; HRE

2 8 Reynolds Electrical and Engineering Co, Inc listing of badgcd partkipants of nuclear radiation tests; and 9 Judge Advocate General letter of December 2, 1981, denying claims of Dale Kobert Beaman and Douglas Beaman The essential allegations of the complaint are that Dale Robert Beaman, Sr, suffers from numerous illnesses, and that his son, Douglas Beaman, suffers from congenital birth defects, both as a result of Dale Beaman's exposure in 1946 to nuclear radiation, while he was on active duty with the United States Navy You are advised that the enclosed Navy records reflect the alleged exposure occurred, if at ail, while Mr Beaman was at sea on board a public vessel of the United States Therefore, the complaint properly falls within the admiralty jurisdiction of the United States under the provisions of the Public Vessels Act, 46 USC S (1976), as that act incorporates the Suits in Admiralty Act, 46 USC (1976) Since the claim of Douglas Beaman, the son of Dala Robert Beaman, derives from the same incident, his claim is also considered to be a suit in admiralty against the United States Review of the documents enclosed with this letter confirms that Mr Beaman served on board USS FULTON (AS-11) while that vessel participated in Operation CROSSROADS, an atmospheric nuclear test series occurring at Bikini Atoll in July 1946 FULTON operated in and around the atell as a non-target ship providing tender support to the target submarines that were utilized at CROSSROADS FULTON remained in the area from May 23, 1946, mtil it departed for Pearl Earbor on August 25, 1946, arriving there cn September 5, 1946 Throughout the course of the atomic tests, many precautionary steps were taken to eliminate potential contamination hazards on board the vessel In addition, upon return to the continental United States, USS FULTON was automatically scheduled for preentry surveys that were standard for any ship that had spent more than ten days in Bikini Lagoon during CROSSROADS These surveys were simply precautionary and did not necessarily mean that the ships surveyed were contaminated A careful search of dosimetry data from Operation CROSSROADS revealed that there is no recorded radiation exposure data for tlr Beaman, nor any indication that he was issued a film badge The lack of data is not unusual, since it was common practice during CROSSROADS to obtain representative personnel exposure data by badging only a percentage of the crew The recorded mean exposure for badged FULTON personnel during CROSSROADS was 0075 rem gamma, with a range of exposure from zero to 024 rem gamma Compared to other tests, exposures for CROSSROADS were relatively low -2-

3 While no pssonal radiation exposure record for Mr Beaman exists, it is considered most unlikely that his exposure was significantly greater than the greatest exposure recorded aboard FULTON (024 rem gama) This amount exceeds only slightly the dosage received from a standard clinical chest x-ray of the time (02 rem gamma), and is far below the present national occupational radiation exposure standards of 50 rem per calendar year Moreover, a complete blood count performed on Mr Beaman in May 1947 was essentially normal Because of the relatively low level of ionizing radiation exposure to Mr Beaman, we do not believe that his exposure while on board USS FULTON was the proximate cause of his later medical problems Likewise, we do not believe that the alleged congenital birth defects of Douglas Beaman have been shown to be the proximate result of his father's radiation exposure Regardless of the merits of the case, the claims of Dale Robert Beaman and Douglas Beaman are barred by the Feres doctrine of intra-military immunity established by the Supreme Court in Feres v United States, 340 US 135, 71 SCt 153, 94 LEd (1950) As Mr Beaman has invoked jurisdiction under the Federal Tort Claims Act, 28 USC (19761, his claim is directly barred by the Feres doctrine since his alleged injuries occurred while he was on active duty with the Navy aboard a ship at sea and are, therefore, incident to his military service Monaco v United States, 661 F2d 129 (9th Cir 1981) Noreover, the Feres doctrine bars his claim resardless of whether it is basedn a theory of in-service negligence or intentional tort, Broudy v United States, 661 F2d 125 (9th Cir 19811, or constituional violation, Jaffee v United States, 663 F2d 1226 (3d Cir 1981) - Mr Beaman has attempted to avoid the Feres bar by alleging that subsequent to his discharge from the military service, the government was negligent in that it failed to warn him of the effects of his alleged exposure to radiation and failed to provide continuing medical care and treatment It is considered that the alleged post-discharge tortious conduct is not factually distinct from the allegedly tortious conduct which is claimed to have occurred while Mr Beaman was on active military duty See Kelly v United States, 512 FSupp 356 (ED Pa, 1981) Therefore, plaintiff has not alleged an actionable independent, post-service negligent act on the part of the government, but merely a course of conduct which began while he was in the service and continued after his discharge A cause of action against the United States based on such a "continuing tort" is barred by Feres Broudy Nr Beaman's reliance on the Civil Rights Act, 28 USC S 1343 (1976), to confer jurisdiction of his claims in the District - 3-

4 Court is,pi+f course, misplaced This statute is not a waiver of the sovereign immunity of the United States and the court, therefore, does not have jurisdiction by reason of the act over that part of this action alleging violations of his rights under the act by the United States The aforementioned jurisdictional impediments barring the claim of Dale Robert Beaman, Sr apply with equal force to bar the derivative claim of his son, Douglas Beaman Assuming, arguendo, that Douglas Beaman's congenital birth defects were the result of his father's exposure to ionizing radiation, the allegedly negligent act which caused those injuries occurred at the time of exposure, ie, while Dale Robert Beaman, Sr was on active duty with the United States Navy Thus, Douglas Beaman's claim is also barred by the Feres doctrine, since it arises from and is incident to the military service of father Monaco As mentioned previously, since the alleged radiation exposure of Dale Robert Beaman, Sr occurred, if at all, while he was on board USS FULTON, a public vessel of the United States, jurisdiction of the instant action arises under the Public Vessels Act, 46 USC (19761, as that Act incorporates the Suits in Admiralty Act, 46 USC (1976) Suits arising under these statutes are specifically excepted from the coverage of the Federal Tort Claims Act, 28 USC (d) (1976) While the Feres doctrine arose within the context of suits under the F edxtort Claims Act, 28 USC (b), (1976), it has been held to bar similar suits in admiralty against the United States Charland v United States, 615 F2d 508 (9th Cir 1980) Therefore, even if the complaint is amended to properly invoke the admiralty jurisdiction of the United States, the causes of action alleged therein will still be subject to the above-discussed jurisdictional bars Assuming the jurisdictional amendment is made, the claims of both Mr Beaman and his son will then be further barred by the statute of limitations set forth in the Suits in Admiralty Act Admiralty suits against the United States "may be brought only within two years after the cause of action arises" 46 USC 745 (1976) This limitation period is considered to run from the date the negligent act which caused the injury occurred and not from the date the injury is discovered Since the alleged injury to Mr Beaman and the derivative injury to his son both occurred at the time of Mr Beaman's exposure to the ionizing radiation, both claims have now long since been barred by the statute of limitations Based on the foregoing, we assume that you will move to dismiss the above-captioned action due to lack of subject-matter jurisdiction As you are aware, such a motion was granted at the trial level and upheld on appeal in the factually similar Monaco case -4-

5 -- Me shall be pleased to provide such further information as you may from time to time request Sincerely, Enclosures copy to: Veterans Administration 4Defense Nuclear Agency Nuclear Regulatory Commission Naval Nuclear Test Personnel Review DOE, Nevada Operations Office Office of General Counsel, DOD 3J, TB CD DC (Attn- Susan P Engelman, Esq) -5-