Trooper’s appeal rejected in mail-bomb case

Monday, Nov. 2, 1998 | 11:30 a.m.

The Supreme Court rejected without comment today an appeal by a Minden couple that had sued the federal government over injuries they suffered when a mailed package bomb exploded.

The court also turned away an appeal by workers at Area 51, a top-secret Air Force base about 90 miles north of Las Vegas, who claim they and colleagues may have been exposed to extremely harmful levels of hazardous waste.

In the package bomb case, Kenneth Gager, a Nevada Highway Patrol trooper, and his wife, Deanna Gager, argued that they should be allowed to sue the U.S. Postal Service for failing to train employees on how to detect a mail bomb.

The Gagers were injured in 1993 when a shoebox-sized package they received by mail exploded as Kenneth Gager opened it.

The package had only a partial return address and was heavily taped. It was sent by someone who had been arrested by Gager. The sender later was convicted.

A federal judge dismissed the Gager's lawsuit, relying on a federal law that says the government is immune from lawsuits over actions that involve an exercise of discretion or judgment.

The 9th U.S. Circuit Court of Appeals agreed and refused to let the Gagers conduct additional fact-finding to determine whether the Postal Service may have had a policy requiring bomb-detection training.

The government does not have protection from lawsuits when a law or policy requires it to perform a particular duty, which the Gagers contended was the case when the Postal Service failed to train its employees in bomb detection.

In the appeal acted on today in Gager vs. U.S., 98-513, the Gagers' lawyer said it was "unreasonable for the Postal Service to neglect teaching mail bomb detection techniques."

The package bomb that the Gager's opened was received two days before Kenny Gager's 42nd birthday five years ago. The couple had presumed it was from their son.

Instead, it was a mail bomb that blew Gager's left hand off. He also lost his left eye and suffered severe muscular damage to his abdomen.

"I kept waiting to die," Gager told the Sun for a recent story. "I thought about my accomplishments. I thought about never seeing my family again. I told my wife to get a gun and finish me off."

He underwent 21 surgeries.

Recently, Gager was pulled into a mud-slinging District F Clark County Commission race between incumbent Erin Kenny and Nevada Highway Patrol Trooper Steve Harney.

Glossy brochures that include graphic, color photographs of Gager's injuries had been reproduced and sent to voters.

The fliers, which appeared in mailboxes of residents in southwest Clark County, were from the Las Vegas Metropolitan Police Protective Association, which has endorsed Kenny. Kenny said she was unaware of the brochure until it arrived in her mailbox.

The pamphlet describes a lawsuit Gager filed June 24 against two state agencies and 10 individuals, including Harney, who was president of the Highway Patrol Association at the time of the bombing.

In the lawsuit, Gager claims employees and administrators with the Nevada Highway Patrol Division and the Department of Motor Vehicles and Public Safety conspired to decommission him to civilian status while he was recuperating.

Specifically, the lawsuit says, Harney pressured the deputy director of the Department of Motor Vehicles and Public Safety to decommission Gager.

Harney has explained his actions in earlier interviews, saying that Gager was receiving full trooper benefits while working in a civilian position.

Harney has said that his actions were not prompted by a desire to hurt Gager, but by the desire of the Highway Patrol Association's board to be fair to other seriously injured troopers, who have been always been forced to take medical retirement at reduced benefits.

In the Area 51 lawsuit, the court let stand rulings that threw out the lawsuit over the burning of toxic waste.

The lawsuit was filed by five former or current workers at the facility, identified in court documents as "five John Does," and Helen Frost and Stella Kasza, widows of two men who worked there.

A federal judge dismissed the lawsuit, and a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld that ruling last January.

Invoking the legal privilege attached to state and military secrets, the appeals court said lawyers for the workers and widows are not entitled to learn what hazardous substances exist at Area 51 or how they are handled.

The lawsuit against the Department of Defense and Environmental Protection Agency alleged that vast amounts of hazardous materials were burned illegally in huge open trenches.

The lawsuit alleged that Mrs. Kasza's husband, Walter, died in 1995 of cancer that might have been the result of his employment. It also alleged that Mrs. Frost's husband, Robert, had suffered from a rare skin disease most likely caused by exposure to burning hazardous materials.

The appeals court said results of a federal inspection and even the facility's name could not be disclosed as part of the pretrial exchange of information called discovery.

The appeal acted on Monday, among other things, contended that such secrecy should not be able to defeat a lawsuit filed under the federal Resource Conservation and Recovery Act.

SUN REPORTER Ed Koch contributed to this report.