Alice P. Broudy v. The United States of America

The appellant, Alice P. Broudy, appeals from an order of the district court dismissing with prejudice her claim brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 , 2671 et seq. (1976 & Supp.1979). The district court held that appellant did not properly file an administrative claim and that the court thus lacked subject matter jurisdiction (Fed.R.Civ.P. 12(b)(1)). In addition, the district court concluded that the United States owed no legal duty to appellant’s deceased and dismissed the complaint for failing to state a claim upon which relief can be granted. (Fed.R.Civ.P. 12(b)(6)). We review these issues of law de novo, Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978), and reverse in part, and vacate and remand in part.

FACTS AND PROCEDURE

Appellant’s husband, Major Charles A. Broudy, served as an officer in the United States Marine Corps from 1944 to 1960. During the summer of 1957, Major Broudy was ordered by his commanding officers to participate in military exercises in the immediate vicinity of at least two atmospheric nuclear tests conducted in Nevada.

Major Broudy was honorably discharged in 1960 and over the years…