Petition for Writ of Certiorari — Wilde v. Department of the Air Force

00 35 APR2 8000

OFFICE OF THE CLERK

In The

Supreme Court of the United States

Dennis William Wilde, Petitioner

VS.

United States Air Force, Respondents

On Petition for a Writ of Certiorari to

United States District Court Western District of Louisiana

we ee ee eee

Dennis William Wilde Pro se

8934 Marlow Drive

Shreveport, Louisiana 71118

318-687-7744

QUESTIONS PRESENTED

I.

Do veterans forfeit all civil and constitutional

rights as part of their enlistment?

Il.

Does the Feres Doctrine deny veterans equal

protection under the law?

Il.

Is it lawful under the Feres Doctrine for the

Department of Defense to deny military

personnel records from a veteran for 37 years

thereby denying due process?

IV.

Does the Feres Doctrine allow the military to

surgically remove a healthy viable body part for

the soul purpose of human medical research

without informed consent and deny all in-service

connection without an avenue of re-dress?

LIST OF PARTIES

United States Air Force

United States Department of Defense

United States Department of Veterans

United States Attorney Western District

of Louisiana

TABLE OF CONTENTS

Page

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Constitutional and Statutory Provisions Involved..4

Statement of the Case...esssssssssssssesessseseessee a,

Reasons for Granting the Writ..................... 8-9

NS ECE PEDIC ARORELE Ces SC APOIO IO 10-11

TABLE OF AUTHORITIES

CASES

Brown V. United States

Elliott V. United States Army 11” Circuit en

banc 1994

Feres V. United States

STATUTES AND RULES

28 U.S.C. 2401 (b)

28 U.S.C. 1346(b) Xs

10 U.S.C. Sec. 1552

OTHER

Nuremburge Code (1953 Military Directive)

(Informed Consent)

Universal Declaration of Human Rights (1948)

IN THE

SUPREME COURT

OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a

writ of certiorari issue to the judgment of the

United States District Court for the Western

District of Louisiana, Shreveport, Louisiana

appearing in APPENDIX A & B.

OPINIONS BELOW

INDEX TO APPENDICES

APPENDIX A: Order denying reconsideration

by United States Court of Appeals for the Fifth

Circuit.

APPENDIX B: Order to Dismiss from United

States District Court Western District of Louisiana

APPENDIX C: Report and Recommendation

by the United States Court Western District of

Louisiana

APPENDIX D: Air Force Board for Correction

of Military Records

APPENDIX E: Appeal from the United States

District Court for the Western District of

Shreveport, Louisiana.

APPENDIX F: - Order on appellant’s motion to

reinstate.

JURISDICTION

The jurisdiction is involked under 28

U.S.C. 1254 (1)

(A)

(B)

(C)

(D)

A petition for rehearing was denied

by the United States Court of

Appeals on March 22, 2000.

A Judgment was entered in District

Court Dismissing

on August 23, 1999,

A Report and Recommendation

was rendered in District Court on

July 7, 1999.

Air Force Board for Correction of

Military Records

Title 10 U.S.C. Sec. 1552.

renter sae Apeias 5 dldieiinan attics alae cha adits co Fe eee Om ¥

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In the District Court Western District of

Louisiana the application of the Feres Doctrine

was improperly applied and a judgment was

entered August 23, 1999 denying this veteran a

court trial date.

The Feres Doctrine specifically states the

right of those veterans on leave of duty, involved

in activities unrelated to training or a veterans unit

to seek relief.

The Feres Doctrine also acknowledges the

unique method of the governments way of redress

for veterans other than the FTCA. However, when

that forum fails to recognize a just claim, is it then

the right under the Feres Bar to deny the veteran

another forum for redress?

4

STATEMENT OF THE CASE

With the signature of my legal guardian on

28 November 1960, I became an enlistee in the

United States Air Force. On 21 December while

stationed at Lackland Air force Base, Texas, I was

removed from duty, separated from my unit, and

transported to Brooks Research Facility for use as

a subject in what I later discovered was a baseline

subject study in human research. This research

was designed to recognize stress in dental patients

pre and post operative by measuring the corticol

(ACTH) levels in the blood and urine. The

subjects were not aware of the impending surgery

as part of the experiment nor were they informed

of any danger. Placebos were administered

through injection with no anesthetic. A healthy

viable first lower left molar tooth was extracted

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and more blood and urine samples were taken

periodically throughout the day. I became very ill

and suffered from a severe infection. This

infection triggered an immune disease which was

ignored by the Air Force and the Veterans

Administration for decades. The military medical

records were denied to the veteran until 1997 by

the Department of Defense. When ie veteran

became aware of the connection between this

infection and the veteran’s disease, he filed suit in

District Court.

The court ruled that active military service

precludes a veteran from suit under the Feres

Doctrine. The court ignored the circumstance

under which the veteran was removed from duty

and his unit and that the Air Force had violated

existing directives in order to do their research.

i i en ne

a

The veteran was required and did repeat the two

weeks of training he missed due to this research.

Orders were issued Sending the veteran to a new

unit and training schedule.

REASONS FOR GRANTING THE

PETITION

I.

The District Court has improperly applied

the law under the Feres Doctrine.

Il.

The respondents have relied upon the

courts to decide these claims and ignoring their

own purpose mandated by law.

Claims for in-service compensation are

dependant upon the veteran to prove his or her

claim, that proof lies in the veterans military

record, (personnel record, medical records, dates

of entry and discharge, all pertinent information

regarding one’s time in the service). These records

are kept by the Office of Personnel records

administered by the Department of Defense. The

military is responsible for those records, mandated

by law.

Il.

Claims for the correction of the military

record under Title 10 U.S.C. Sec. 1552 are

dependant upon the veteran to prove his claim, this

too is dependant upon the military record, the

government mandates by law that these records be

Provided to the veteran upon request.

IV.

District Court ruled that active military

service precludes one from Suit under the Feres

Bar, for in-service compensation, correction of

military records, medical care, personal ae and

medical mal-practice by the Veterans

Administration without any avenue to redress an

agency for a disputed decision.

3

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CONCLUSION

I cannot believe that the Supreme Court in

its 1950 ruling in Feres V. United States was to be

used by the military as a means to escape liability

for behavior that is neither legal or moral. The

removal of healthy teeth without the benefit of

anesthesia for the purpose of medical research is an

afront to individual civil liberties.

10

This court should grant this application to

Provide the lower courts with authoritative

guidance on this issue.

Respectfully submitted, this

_Aa ond day of June, 2000. ;

Dennis William Wilde Pro se

8934 Marlow Drive

Shreveport, Louisiana 71118

1]

ae

APPENDIX A

NOT DESIGNATED FOR PUBLICATION

IN THE UNITED STATES COURT OF

' APPEALS

FOR THE FIFTH CIRCUIT

No. 99-31082

DENNIS WILLIAM WILDE

Plaintiff - Appellant

V

US DEPARTMENT OF AIR FORCE: US

DEPARTMENT OF DEFENSE; VETERANS

ADMINISTRATION

Defendants - Appellees

U.S. Court of Appeals Filed March 22, 2000

Charles R. Fulbruge III Clerk

Appeal from the United States District Court for

the

Western District of Louisiana, Shreveport

before JOLLY, JONES, and BENAVIDES,

Circuit Judges.

BY THE COURT: |

A member of this panel has

Previously denied appellant’s motion to reinstate

the appeal. After consideration by this panel

Upon request of appellant, IT IS ORDERED

that appellant’s motion for reconsideration is

DENIED.

MOT-29

13

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT: OF LOUISIANA

SHREVEPORT DIVISION

Dennis William Wilde Civil Action No. 99-0754

versus Judge Stagg

U.S. Dept. of Defense Magistrate Judge Payne

et al.

JUDGMENT

For the reasons assigned in the Report and

Recommendation of the Magistrate Judge

previously filed herein, and having thoroughly

reviewed the record, including the written

objections filed, and concurring with the findings

of the Magistrate Judge under the applicable law;

IT IS ORDERED that the Motion to

Dismiss (Doc. 3) is GRANTED, and Plaintiff's

case is DISMISSED WITH PREJUDICE.

THUS DONE AND SIGNED in chambers

at Shreveport, Louisiana, this the 21" day of

A ONE eee ar

August, 1999.

Signed: Tom Stagg

UNITED STATES DISTRICT JUDGE

Filed Robert H. Shemwell, Clerk

JUDGMENT ENTERED

USDC, Western District Louisiana

DATED: 8/23/99

Signed By: Donna Hemp

- COPY: Wilde Date: August 23, 1999

Halliburton

15

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

Dennis William Wilde Civil Action No. 99-0754

versus Judge Stagg

U.S. Dept. of Defense Magistrate Judge Payne

et al.

REPORT AND RECOMMENDATION

Introduction

Dennis William Wilde (“Plaintiff”) alleges

that while he was enlisted in the United States Air

Force in 1960 he was a non-consensual subject in

a military experiment which began with the

extraction of a healthy molar tooth. Plaintiff says

that several blood and urine samples were also

taken. Soon afterwards, he became ill and a lack

of treatment triggered an immune response that

16

plagued him for several months. Plaintiff says that

in July of 1961 he suffered a minor injury to his

right hand which also triggered severe symptoms.

Air Force physicians allegedly rendered a false

diagnosis of conversion reaction. Plaintiff was

then discharged from the military less than one

year into a scheduled four-year tour of duty.

Plaintiff alleges that the Air force is liable

for conducting medical experiments on him,

denying him representation or not permitting him

to appear at hearings held in the 1960's related to

his separation from service, and not providing him

with a copy of his medical records with which he

could respond to the Air Force’s evidence at those

hearings that his problems were based on a

psychological _ disorder. The Veterans

Administration is said to be liable for medical

17

malpractice because in 1989 it ignored evidence of

the true nature of Plaintiff's illness and attributed

his problems to his mental health. The Department

of Defense is accused of wrongfully refusing to

release medical records (eventually obtained on

May 12, 1997) that were first requested in 1961.

Plaintiff originally brought these allegations

in Civil Action No. 97-127. The undersigned

issued a ruling that the court lacked subject matter

jurisdiction because Plaintiff had not filed an

administrative claim prior to suit as required by the

Federal Tort Claims Act. See 28 U.S.C. § 2675.

That ruling was appealed and Judge Stagg affirmed

it. See Civil Action No. 97-127, Docs. 28 and 35.

Because the court lacked subject matter

jurisdiction over the prior action, the undersigned

noted that the court need not reach two alternate

18

grounds urged by the defendants as a basis for

dismissal: (1) that the action is barred by the Feres

doctrine and (2) that the action is barred by the

limitations period contained in 28 U.S.C. § 2401

(b). Those defenses are again raised in this action

by the defendant’s Motion to Dismiss (Doc. 3).

For the reasons that follow, it is recommended that

the motion by granted.

Timeliness

Timeliness is an obvious issue. Plaintiffs

‘péincipal allegations are that he was subjected to

non-consensual medical experiments and other

mistreatment in 1960 and 1961, more than 35

years prior to his filing of an administrative claim

on April 9, 1998.!

' This date is based on the representation of the government

in its memorandum in support of the motion. No

documentary in evidence was submitted, but Plaintiff has

not contested the date.

19

The most recent wrongdoing alleged is

malpractice in 1989, 9 years before the

administrative claim. “A tort claim against the

United States shall be forever barred unless it is

presented in writing to the appropriate Federal

agency within two years after such claim accrues.”

28 U.S.C. § 2401 (b). Plaintiff seeks to excuse his

late filing on the grounds that he did not have

access to his military medical records until they

were produced on or about May 12, 1997 during

discovery conducted in the prior law suit. Plaintiff

says that the records were the subject of more than

30 requests over the intervening years by him,

legislators and veterans service organizations.

Although he does not use the words

“equitable tolling,” that is the legal doctrine that

governs his response to the limitations defense.

20

The two-year limitations period of § 2401

(b) has often been referred to as jurisdictional. See

Flory v. United States, 183 F.3d 157, 159 (5" Cir.

1998) (“it is well-settled that these limitation

periods are jurisdictional.”). The Fifth Circuit has

recently recognized, however, that the Supreme

Court’s decision in Irwin v. Dept of Veterans

Affairs, 498 U.S. 89, 111 S.Ct. 453 (1990) and its

progeny compel the conclusion that equitable

tolling is available to overcome the limitations

“period. Perez v. United States, 167 F.3d 913 (5*

Cir. 1999). Irwin states that equitable tolling is

permitted in situations such as where the claimant

has actively pursued his judicial remedies by filing

a defective pleading during the statutory period, or

where he has been tricked by misconduct into

allowing the deadline to pass. If the claimant has

21

:

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merely failed to exercise due diligence in

preserving his rights the courts are much less

forgiving. Irwin, 111 S.Ct. At 453.

Equitable tolling is not warranted or

permitted in this case. Plaintiff may not have had

all of the evidence that he would have liked, in the

form of medical records, until 1997, but his own

pleadings make clear that he has believed for more

than a decade that he was the victim of malpractice

and other wrongful actions by the government. A

cause of action for medical malpractice brought

under the Federal Tort Claims Act accrues when

“the claimant discovered, or in the exercise of

reasonable diligence should have discovered, the

existence of the acts of malpractice upon which his

claim is based.” Quinton v. United States, 304

F.2d 234, 235 (5" Cir. 1962). That same accrual

22

standard applies to other federal claims that may

not be immediately apparent to the victim. Dubose

v Kansas City Southern Ry. Co., 729 F.2d 1026

(5™ Cir. 1984), cert. denied, 469 U.S. 854, 105

S.Ct. 179 (1984) (FELA action based on long term

exposure to lung irritants) Plaintiff knew of the

facts that he alleges as the basis of his claims long

before his receipt of the medical records. In fact,

he knew enough of them to file a federal law suit in

1997. His claims are, therefore, time barred.

Feres Doctrine

The Feres doctrine also bars Plaintiff's

claims for injuries suffered while he was a member

of the service. In Feres v. United States, 340 U.S.

135, 71 S.Ct. 153 (1950) the Supreme Court held

that members of the armed services could not sue

23

the Government for injuries that “arise out of or

are in the course of activity incident to ane”

71 S.Ct. At 159. The doctrine has been broadly

applied and blocks even actions based on

unauthorized activities or intentional torts.

Gaspard v. United States, 713 F.2d 1097 cS" Ce.

1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2354

(1984) (doctrine barred servicemen’s FTCA and

Bivens claims based upon radiation experiments

conducted on them during their service); and Jaffe

v. United States, 663 F.2d 1226 (3d Cir. 1981) (en

banc) cert. denied, 456 U.S. 972, 102 S.Ct. 2234

(1982) (same). Accordingly, any claims by

Plaintiff for in-service injuries, whether filed before

or after his discharge, are barred by Feres.

Gaspard, 713 F.2d at 1100.

24

Accordingly;

IT IS RECOMMENDED that the

Motion to Dismiss (Doc. 3) be GRANTED, and

that Plaintiffs case be DISMISSED WITH

PREJUDICE.

Objections

Under the provisions of 28 U.S.C. § 636

(b) (1) (C) and Fed.R.Civ. Proc. 72 (b), parties

aggrieved by this recommendation have ten (10)

business days from service of this report and

recommendation to file specific, written objections

with the Clerk of Court, unless an extension of

time is granted under Fed.R.Civ.P. 6 (b). A party

may respond to another party’s objections within

ten (10) days after being served with a copy

thereof Counsel are directed to furnish a courtesy

copy of any objections or responses to the District

25

Judge at the time of filing.

A party’s failure to file written objections

to the proposed findings, conclusions and

recommendation set forth above, within 10 days

after being served with a copy, shall bar that party,

except upon grounds of plain error, from attacking

on appeal the unobjected-to proposed factual

findings and legal conclusions accepted by the

district court. See Douglass v U.S.A.A., 79 F.3d

1415 (5® Cir. 1996) (en banc).

THUS DONE AND SIGNED at

Shreveport, Louisiana, this the 7” day of July,

1999.

Signed: Roy S, Payne

United States Magistrate Judge

26

Filed: Robert H. Shemwell, Clerk

COPY SENT at

USDC, WESTERN DISTRICT CLERK

DATE: 7/7/99

Signed By: M. Cassanova BY: RSP

Date: July 7, 1999

TO: WILDE

HALLIBURTON

J. STAGG

APPENDIX D

RECORD OF PROCEEDINGS

AIR FORCE BOARD FOR

CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:

DOCKET NO: 97-03378

DATED: 8/14/1998

DENNIS W. WILDE

COUNSEL: NONE

396-40-4752

HEARING DESIRE: YES

Applicant requests that his medical

diagnosis be changed from Conversion Reaction to

Reactive Arthritis. Applicant’s submission is at

Exhibit A.

The appropriate Air Force office evaluated

applicant’s request and provided an advisory

opinion to the Board recommending the

28

application be denied (Exhibit C). The advisory

Opinion was forwarded to the applicant for review

and response (Exhibit D). Applicant’s response to

the advisory opinion is at Exhibit E.

After careful consideration of applicant’s

request and the available evidence of record, we

find insufficient eVitlenee of error or injustice to

warrant corrective action. The facts and opinions

stated in the advisory opinion appear to be based

on the evidence of record and have not been

adequately rebutted by applicant. Absent

persuasive evidence applicant was denied rights to

which entitled, appropriate regulations were not

followed, or appropriate standards were not

applied, we find no basis to disturb the existing

record.

Accordingly, applicant’s request is denied.

29

ee

The applicant’s case is adequately

documented and it has not been shown that a

personal appearance with or without counsel will

materially add to our understanding of the issue(s)

involved. Therefore, the request for a hearing is

not favorably considered. ©

The Board staff is directed to inform

applicant of this decision. Applicant should also

informed that this decision is final and will only be

reconsidered upon the presentation of new relevant

evidence which was not reasonably available at the

time the application was filed.

30

Members of the Board Mr. David W.

Mulgrew, Mr. Joseph G. Diamond, and Mr. Terry

A. Yonkers considered this application on 21 July

1998 in accordance with the provisions of Air

Force Instruction 36-2603, and the governing

statute, 10, U.S.C. 1552.

Signed: David W. Mulgrew

Panel Chair -

31

APPENDIX E

IN THE UNITED STATES COURT OF

_ APPEALS FOR THE FIFTH CIRCUIT

No. 99-31082 U.S.Court of Appeals

Filed

Dennis William Wilde Dec 01 1999

Plaintiff - Appellant Charles R. Fulbruge IIT

- v. _ Clerk

US Department of Air Force; US Department of

Defense; Veterans Administration

Defendants - Appellees

Appeal from the United States District Court for

the Western District of Louisiana, Shreveport

Clerk’s Office:

Under 5" Cir. R. 42.3, the appeal is

dismissed for want of prosecution for appellant’s

failure to file brief and record excerpts, within the

time fixed by the rules, this date, December 1,

1999. Charles R. Fulbruge II

Clerk of the United States Court

of Appeals for the Fifth Circuit

By: Monica Washington, Deputy

Clerk for the Court - By Direction

VIO OPEN: oat RNC RnR NE NASER 8 saa

32

APPENDIX F

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 99-31082

Dennis William Wilde

Plaintiff - Appellant

aa

US Department of Air Force; US Department of

Defense; Veterans Administration

Defendants - Appellees

Appeal from the United States District Court for

the Western District of Louisiana, Shreveport

ORDER:

IT IS ORDERED that appellant’s motion

to reinstate the appeal is DENIED.

E. Grady Jolly

United States Circuit Judge

33