IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-50779 Summary Calendar _____________________

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.

_______________________________________________________

Appeal from the United States District Court for the Western District of Texas (W-96-CV-198) _______________________________________________________ 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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),

(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

2 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.

(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.

(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,

(1991). The focus of the

inquiry is on the nature of the actions taken and whether they

are susceptible to policy analysis.

. In this case,

the Arnolds challenge actions which are clearly grounded in

policy. The decision to protect civilians in the Gulf War using

3 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.,

(1988); Industria Panificadora, S.A. v. United

States,

, 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.

(5th Cir. 1988). “[O]fficials chose from among important

alternative courses of action.”

.

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,

(9th Cir. 1987).

Under § 2680(j), the case is also barred because the claims

arose out of combatant activities of the military forces during

4 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,

(9th Cir. 948). This exception is applicable

to claims even in the absence of a formal declaration of war.

Koohi v. United States,

(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.

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.”

(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,

(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

(b), which states that

5 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,

(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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