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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
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No. 84-2126
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1987.C10.40238 <http://www.versuslaw.com>; 816 F.2d
1417
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Filed: April 20, 1987.
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IRENE H. ALLEN, ET AL., PLAINTIFFS-APPELLEES,
v.
UNITED
STATES OF AMERICA, DEFENDANT-APPELLANT
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Appeal from the United States District Court for the District of Utah
D.C. No. C 79-0515
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Marc Johnston, Appellate Staff Attorney, Civil Division, Department of
Justice (Richard K. Willard, Acting Assistant Attorney General;, Robert S.
Greenspan, Appellate Staff Attorney, Civil Division, Department of
Justice; Brent D. Ward, United States Attorney; Henry A. Gill, Acting
Assistant General Counsel, and Edward Jiran, Attorney, Department of
Energy; Ralph H. Johnson, Pamela L. Wood, and Patrick O. Cavanaugh, Trial
Attorneys, Torts Branch, Civil Division, Department of Justice, with him
on the brief), for Defendants-Appellants.
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Dale Haralson of Haralson, Kinerk & Morey, and Ralph E. Hunsaker
of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears,
(Denneen L. Peterson of Haralson, Kinerk & Morey; David M. Bell and
Scott E. Boehm of O'Connor, Cavanagh, Anderson, Westover, Killingsworth
& Beshears; Stewart L. Udall of Beer and Toone, J. MacArthur Wright of
Wright & Miles, with them on the brief), for
Plaintiffs-Appellees.
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Logan
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Before McKAY, SETH, and LOGAN, Circuit Judges.
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LOGAN, Circuit Judge.
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In this action under the Federal Tort Claims Act, see 28 U.S.C.
1346(b), 2401(b), 2671-80, nearly 1200 named plaintiffs have sued the
United States, alleging some 500 deaths and injuries as a result of
radioactive fallout from open-air atomic bomb tests held in Nevada in the
1950s and 1960s. The district court selected and tried twenty-four
"bellwether" claims, in order to find a common framework for the rest.*fn1 See Allen v. United States, 588
F. Supp. 247, 258 (D. Utah 1984). The court entered final
judgment in favor of the government on fourteen of these claims and
against the government on nine, leaving" one claim outstanding. Id. at
446-47. It then granted a Fed. R. Civ. P. 54(b) motion permitting the
government to appeal those claims resolved against it. On appeal the
government contends that (1) the "discretionary function" exception in 28
U.S.C. 2680(a) precludes government liability; (2) the government did not
breach any duty owed to the public; (3) the government did not cause
plaintiffs' injuries; and (4) the plaintiffs' claims were barred by the
two-year statute of limitations in 28 U.S.C. 2401(b). We do not discuss
the last three issues, because we agree that the discretionary function
exception precludes government liability.
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The district court opinion states the facts fully. See Allen, 588 F. Supp. at 337-38, 348-50, 358-404. The
authority for federal atomic bomb tests came from the Atomic Energy Act of
1946, Pub. L. No. 585, 60 Stat. 755 ("the 1946 Act"). See Atomic Energy
Act of 1954, 42 U.S.C. 2011-2296 (present version of atomic energy
statutes). Under the 1946 Act, the Atomic Energy Commission (AEC) received
broad discretionary power to "conduct experiments . . . in the military
application of atomic energy." 1946 Act, 6(a); see 42 U.S.C. 2121(a) (same
authority in present statutes).*fn2 The AEC was authorized to carry on such
experiments "only to the extent that the express consent and direction of
the President of the United States has been obtained, which consent and
direction shall be obtained at least once each year." Id. Additionally,
the AEC was "authorized and directed to make arrangements . . . for . . .
the protection of health during research and production activities." 1946
Act, 3(a). These arrangements were to "contain such provisions to protect
health, to minimize danger from explosion and other hazards to life or
property . . . as [the AEC] may determine." Id.; see 42 U.S.C.
2012(d)-(e), 2013(d), 2051(d) (similar provisions in present
statutes).
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In 1950 the AEC chose an area in Nevada as a testing site. The
President approved this choice. Thereafter, between 1951 and 1962, eight
series of open-air tests were conducted, with the President approving each
series of tests. Over one hundred atomic bombs were
detonated.
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Each test explosion was executed according to detailed plans which the
AEC officially reviewed and adopted. Separate plans for protecting the
public, and for providing the public with appropriate information, were
also adopted by the AEC. To actually execute the plans, however, the AEC
delegated some of its authority. The AEC selected a "Test Manager" for
each test series, who had some day-to-day discretion. The Test Manager
could, for example, postpone a given test because of adverse weather
conditions. The Test Manager in turn delegated authority to a Radiological
Safety Officer (a "Radsafe Officer") who was in charge of implementing
plans to avoid radiation dangers, and a Test Information Officer who was
in charge of implementing plans to provide public information on the
tests. Both the Radsafe Officer and the Test Information Officer also had
some day-to-day discretion in performing their duties.
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At trial, as a basis for governmental liability, plaintiffs singled
out the alleged failure of the government, especially of the Radsafe
Officers and the Test Information Officers, to fully monitor offsite
fallout exposure and to fully provide needed public information on
radioactive fallout. The district court focused on these two failures in
finding government liability. Allen, 588 F. Supp. at
372-404.
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The Federal Tort Claims Act (FTCA) authorizes suits for damages
against the United States
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"for injury or loss of property, or personal injury or death caused 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." 28 U.S.C. 1346(b). In such suits, the United
States is liable "in the same manner and to the same extent as a private
individual under like circumstances." 28 U.S.C. 2674. Suit is not allowed,
however, for any claim
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"based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether
or not such statute or regulation be valid, or based upon the exercise or
performance or the failure to exercise or perform a discretionary function
or duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused."
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28 U.S.C. 2680(a) (emphasis added). The key term, "discretionary
function," is not defined. For over thirty-five years the federal courts
have been attempting to define it.
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Plaintiffs in the present case attempted to distinguish between the
discretionary initiation of government programs, at the highest levels of
administration, and the decisions involved in carrying out programs, at
lower levels. Plaintiffs argued that while low-level decisions may involve
some "judgment," they do not fall within the discretionary function
exception of 2680(a). See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 64, 100 L. Ed. 48, 76 S. Ct. 122 (1955) (reference to "operational
level" of activity; no immunity found for government failure to operate
lighthouse). The district court agreed, basing its finding of government
liability squarely on a distinction between high-level and low-level
government activity. Allen, 588 F. Supp. at
335-40.
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After the district court judgment in the present case, the Supreme
Court decided United States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 81 L. Ed.
2d 660, 104 S. Ct. 2755 (1984), in which
it explicitly rejected distinctions based on the administrative level at
which the challenged activity occurred. In Varig, various plaintiffs
brought an FTCA suit against the United States, claiming that the Federal
Aviation Administration (FAA) had negligently implemented plane inspection
and design certification programs, allowing improper flammable materials
and a defective heater system to be used to construct a specific Boeing
707 and a specific DeHavilland Dove. The planes in question caught fire
and burned, killing most of those on board. The Supreme Court held,
however, that the United States was immune from suit. The Court found that
the contested FAA actions constituted the performance of a "discretionary
function," exempt under 28 U.S.C. 2680(a) from potential FTCA liability. 467 U.S. at 819-21.
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The plaintiffs in Varig focused on "low-level" decisions in their
suit. They challenged the actual issuance by the FAA of design approval
certificates for two plane types, the decision to enforce FAA standards
with a particular "spot-check" system, and the actual plane inspections
that were and were not carried out under that system. 467 U.S.
at 799-803, 816-20. The Supreme Court found that each of these
actions constituted a discretionary function, immune from suit under
2680(a):
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"'The "discretionary function or duty" that cannot form a basis for
suit under the Tort Claims Act includes more than the initiation of
programs and activities. It also includes determinations made by
executives or administrators in establishing plans, specifications or
schedules of operations. Where there is room for policy judgment and
decision there is discretion. It necessarily follows that acts of
subordinates in carrying out the operations of government in accordance
with official directions cannot be actionable.'"
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Id. at 811 (quoting Dalehite v. United States, 346 U.S. 15, 35-36, 97 L. Ed. 1427, 73 S.
Ct. 956 (1953)). The Court emphasized that it is "the nature of
the conduct, rather than the status of the actor, that governs whether the
discretionary function exception applies in a given case." Varig, 467 U.S. at 813.
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On appeal, plaintiffs contend that the AEC, in planning and conducting
its monitoring and information programs, was not making the kind of policy
judgments protected by 2680(a). They point to the general statutory
provisions instructing the AEC to consider public health and safety, and
claim-that these broad congressional directives leave no further room for
discretion. We disagree.
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In the case before us, as in Varig, the government actors had a
general statutory duty to promote safety; this duty was broad and
discretionary. In the case before us it was left to the AEC, as in Varig
it was left to the Secretary of Transportation and the FAA, to decide
exactly how to protect public safety. If anything, the obligation imposed
on the FAA to protect public safety was greater and the discretion granted
to the FAA by Congress was less, in the circumstances reviewed by Varig,
than the comparable obligation imposed and discretion available to the AEC
in the present case. Compare 49 U.S.C. 1421 (FAA safety duty) with 42
U.S.C. 2051(d) (AEC safety duty). We cannot say that what was protected by
the Supreme Court in Varig is now subject to liability.
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Plaintiffs further contend that, even if the initial discretion
granted the AEC by statute was broad, test site personnel violated the
AEC's own policy directives by failing to implement adequate protective
measures. We cannot accept this argument either. Neither the plaintiffs
nor the district court have been able to point to a single instance in
which test site personnel ignored or failed to implement specific
procedures mandated by the AEC for monitoring and informing the public.
Indeed, the district court's conclusions appear to be based, at least in
part, on perceived inadequacies in the AEC's radiological safety and
information plans themselves.*fn3 The court relied heavily on a 1954 report
to the AEC by the Committee" to Study Nevada Proving Grounds which was
moderately critical of the measures taken up to that point to inform and
warn the public. See Allen, 588 F. Supp. at 386-90, 392-93. The stated
objective of this report, however, was "[t]o be a basis for Commission
decisions on future policy." Pl. Ex. at 4. The operational plans the
district court considered deficient embody those AEC policy decisions. As
such, these plans clearly fall within the discretionary function
exception.*fn4
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Government liability cannot logically be predicated on the failure of
test-site personnel to go beyond what the operational plans specifically
required them to do. If, as the plaintiffs maintain, the AEC delegated
"unfettered authority" to a Test Manager and his subordinates to implement
public safety programs, this simply compels the conclusion that those
officers exercised considerable discretion. Their actions, accordingly,
also fall within the discretionary function exception.
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It is irrelevant to the discretion issue whether the AEC or its
employees were negligent in failing to adequately" protect the public. See
Cisco v. United States, 768 F.2d 788, 789 (7th Cir.
1985); General Public Utilities Corp., 745 F.2d 239,
243, 245 (3d Cir. 1984), cert. denied, 469 U.S. 1228,
84 L. Ed. 2d 365, 105 S. Ct. 1227 (1985).*fn5 When the conduct at issue involves the
exercise of discretion by a government agency or employee, 2680(a)
preserves governmental immunity "whether or not the discretion involved be
abused." For better or worse, plaintiffs here "obtain their 'right to sue
from Congress [and] necessarily must take it subject to such restrictions
as have been imposed.'" Dalehite v. United States, 346 U.S. 15, 31 , 97 L. Ed. 1427, 73 S.
Ct. 956 (1953) (quoting Federal Housing Administration v. Burr,
309 U.S. 242, 251, 84 L. Ed. 724, 60 S. Ct. 488 (1940)).*fn6
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Id. at 97-98. Accord In re Consolidated United States Atmospheric
Testing Litigation, 616 F. Supp. 759, 776-77 (N.D.
Cal.), appeal docketed, No. 85-2842 (9th Cir. 1985).
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To be sure, the circumstances in Varig are not identical to those now
before us. Most notably, Varig involved the" actions of a regulatory
agency supervising private individuals. The Court observed in Varig that
the discretionary actions of government regulators were at the core of
what 2680(a) was intended to protect. But Varig expressly reaffirmed the
earlier Supreme Court decision of Dalehite v. United States, 346
U.S. 15, 97 L. Ed. 1427, 73 S.
Ct. 956 (1953), which found very broad governmental immunity
outside a regulatory setting. See Varig, 467 U.S. at 810-14.
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In Dalehite, private plaintiffs sued the government over deaths,
injuries, and property damage resulting from a disastrous explosion of two
shiploads of ammonium nitrate fertilizer. 346 U.S. at 22-23. As with the AEC bomb-testing program before us here,
Congress and the President, in response to international tensions
following World War II, had decided on a crash government program--in
Dalehite, a program to feed the populations of Korea, Japan, and Germany.
Id. at 19-20. Broad general authority was given to the War Department, and
the War Department created a plan for massive fertilizer shipments. The
Army's Chief of Ordnance was delegated discretionary responsibilities for
carrying out the War Department plan, and he in turn appointed a "Field
Director of Ammunition Plants" to administer the program. Id. Other
lower-level plant managers and supply officers were also
appointed.
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As with the AEC bomb tests, the production of fertilizer in Dalehite
involved a mix of private and public facilities and employees. Id. at
20-21. As with the AEC bomb tests, all plans for manufacture, packing, and
shipping of the fertilizer in Dalehite were officially approved. Id. at
38-40. The Dalehite plaintiffs, like the present plaintiffs, were unable
to point to any instances in which government employees acted negligently
in performing specific, mandatory duties. The Dalehite plaintiffs instead
argued primarily, just as the present plaintiffs argue here, that at
various points the government could have made better plans, and that the
government failed to fully investigate the hazards of the dangerous
material involved and to fully inform and warn the nearby populace. Id. at
23.
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The Supreme Court in Dalehite found every contested government
decision, action, and omission to be the performance of a discretionary
function, exempt from suit under 2680(a): the cabinet-level decision to
export the fertilizer, the lower-level failure to fully test for explosive
properties, the Field Director's fertilizer production plan, the actual
production of the fertilizer in accordance with the government
specifications and the specific decisions to bag the fertilizer at a
certain temperature and to label the fertilizer in a certain way. Id. at
24, 36-42. The various actions and omissions of the Coast Guard,
supervising the actual loading of the ships, were also exempted, as was
the general failure to warn the nearby populace of potential dangers. Id.
at 23-24, 43.*fn7
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In Varig, the Supreme Court approved the view of 2680(a) expressed in
Dalehite, strongly rejecting any suggestion that later cases had narrowed
the broad immunity found there. Varig, 467 U.S. at 810-14. Given the Court's holding in Dalehite, reaffirmed in
Varig, we must conclude that the government is immune from liability for
the failure of the AEC administrators and employees to monitor
radioactivity more extensively or to warn the public more fully than they
did.*fn8
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In the instant case, no evidence was presented of any act or omission
of the AEC or its employees that clearly contravened a specific statutory
or regulatory duty, or that exceeded statutory or regulatory authority.
There was no evidence, for example, that the Test Information Officer
failed to release information he was required to give out, or that the
Radsafe Officer failed to take a specific radiation measurement that had
been decided upon. Plaintiffs' entire case rests on the fact that the
government could have made better plans. This is probably correct, but it
is insufficient for FTCA liability.
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Our decision here adheres to the principle enunciated by the Supreme
Court of broad sovereign immunity. An inevitable consequence of that
sovereign immunity is that the United States may escape legal
responsibility for injuries that would be compensible if caused by a
private party. There remain administrative and legislative remedies; we
note the express authorization under 42 U.S.C. 2012(i) for the government
to make funds available for damages suffered by the public from nuclear
incidents. Nonetheless, judicial reluctance to recognize the sometimes
harsh principle of sovereign immunity explains much of the tangle of the
prior FTCA cases.
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The Court stated in Varig that the purpose of 2680(a) was to avoid any
judicial intervention that "would require the courts to 'second-guess' the
political, social, and economic judgments of an agency." 467
U.S. at 814. The bomb-testing decisions made by the President,
the AEC, and all those to whom they were authorized to delegate authority
in the 1950s and 1960s, were among the most significant and controversial
choices made during that period. The government deliberations prior to
these decisions expressly balanced public safety against what was felt to
be a national necessity, in light of national and international security.
However erroneous or misguided these deliberations may seem today, it is
not the place of the judicial branch to now question them.
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For the above reasons, we find all challenged actions surrounding the
government atomic bomb tests in the 1950s and 1960s to be immune from
suit, as the performance by a federal agency of a "discretionary
function," protected by 2680(a).
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We REVERSE the district court's decision with regard to those nine
claims in which the government was found to have liability and REMAND for
further proceedings consistent with this opinion.
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McKAY, Circuit Judge, concurring:
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It undoubtedly will come as a surprise to many that two hundred years
after we threw out King George III, the rule that "the king can do no
wrong" still prevails at the federal level in all but the most trivial of
matters. After the passage of the Federal Tort Claims Act, 28 U.S.C.
2671-2680 (1982) (FTCA), many people, as well as the lower federal courts,
assumed that the old governmental immunity from responsibility for
negligent conduct that injures individual citizens was gone. Many endorsed
what appeared to be the FTCA's policy that if the citizens at large
benefited from a government program, that collective citizenry, not the
isolated individual injured by the negligent conduct of the program, would
bear the economic burden of that injury. This case dramatically
illustrates that, as interpreted by the Supreme Court in United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 81 L. Ed. 2d 660, 104
S. Ct. 2755 (1984), the FTCA (and for that matter Congress's
injunction that a program be carried out safely) is largely a false
promise in all but "fender benders" and perhaps some cases involving
medical malpractice by government doctors.
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When Congress decided to employ above-ground testing, it repeatedly
evinced the general intent that the tests should be conducted so as not to
jeopardize the health and safety of the population downwind.*fn1 However, it did not delineate the health
and safety measures to be taken. No mention is made of how fall-out from
open-air testings should be monitored or how the public should be educated
regarding the effects of fallout--the two issues litigated in this case.
The responsibility for developing defined health and safety plans and for
disseminating information was instead delegated to the AEC.
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Based on ample evidence, the trial court found that the people who
designed the downwind safety program deviated from optimum practices based
on the best available scientific knowledge. On a fully supported record,
the trial court found the following deviations in the plans which would
clearly support liability for injury under standard tort analysis as
applied by the trial court: the decision to monitor randomly rather than
on a "comprehensive, person-specific basis," Allen v. United States, 588 F. Supp. 247, 374 (D. Utah 1984); decisions not
to use thyroid or whole body counters, id. at 375; decisions regarding the
limited extent of urine, fecal, and blood sampling, id. at 374; the
decision not to test milk samples "in order to avoid arousing public
concern," id. at 375; the decisions to forego internal fallout assessment
from inhalation of fallout particles, id. at 376; decisions regarding the
extent of follow-up monitoring in downwind communities, id. at 379; the
decision to distribute film badges and pocket dosimeters to a select
number of residents rather than to every resident, id. at 379-81, 384-85;
the decisions regarding duration of monitoring, id. at 381; the decisions
with respect to the quantum of personnel and equipment committed to the
monitoring program, id. at 381-82; and the decisions concerning the
content and appropriate tone of the information given the public as well
as the decisions to use pamphlets and films as the education media, id. at
385-404.
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Again, on a fully supported record, the trial court found that these
departures from accepted safety standards were the proximate cause of
suffering and death from cancer in many of the plaintiffs. Under the
then-available legal precedents, the trial court reasonably concluded that
the FTCA showed Congress's intent that the Government, which benefited
from the testing, should bear these particular costs. The critical
analysis dealt with Congress' decision in the FTCA to exempt from
liability those government acts broadly and vaguely described as
"discretionary functions." See 28 U.S.C. 2680(a).
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At the time of the trial court's decision, the leading construction of
that provision by the Supreme Court was Dalehite v. United States. 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). Language in Dalehite invited
some courts to focus on the bureaucratic level of the decision maker in
determining whether the ensuing decision or action was clothed with
immunity under the discretionary function exception. Cabinet-level actions
were considered clearly of a "planning" nature and thus immune. A
vehicular collision resulting from driver negligence involved
"operational" action and was not immune. See Dalehite, 346 U.S.
at 28, 37. Struggling to give meaning to the elusive terms
"discretionary function," and noting particularly the subsequent decisions
of the Supreme Court in Rayonier Inc. v. United States, 352 U.S.
315, 1 L. Ed. 2d 354, 77 S. Ct.
374 (1957), and Indian Towing Co. v. United States,
350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955), some courts thought the Supreme
Court intended to narrow the sweep of its Dalehite interpretation of that
exception. See, e.g., Relf v. United States, 433 F. Supp. 423, 427 (D.D.C. 1977), aff'd, 193 U.S. App. D.C. 217, 593 F.2d
1371 (D.C. Cir. 1979). Following that pattern, the trial court in this
case focused on the decisions made at the operational level. It concluded
they were not immune.
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Since the appeal was lodged in this case, the Supreme Court decided
Varig Airlines. That opinion removed all doubt as to whether the
discretionary function exception is to be construed broadly or narrowly.
In Varig the Court explicitly denounced both the increasingly narrow
construction given the exception since Dalehite and the interpretation of
Dalehite that focused on the bureaucratic level of the decision maker. The
Court stated, "[I]t is the nature of the conduct, rather than the status
of the actor, that governs whether the discretionary function applies in a
given case." Varig Airlines. 467 U.S. at 813. It
breathed vitality into Dalehite by selectively quoting language other than
the planning/operational language most often cited previously: "Where
there is room for policy judgment and decision there is discretion." Id.
at 811 (quoting Dalehite. 346 U.S. at 36). The Court
thus shifted the discretionary function inquiry back toward examining the
nature and character of the governmental action to determine whether it is
of the type intended to be protected from tort liability by Congress.
Those decisions "grounded in social, economic, and political policy," id.
at 814, are insulated from our review, regardless of who the decision
maker happens to be or how negligent the decision or action may
be.
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The majority opinion fully deals with the Supreme Court's focus in
Varig Airlines. It is sufficient here to note that the focus is on the
nature of the planning or decision making rather than on the level at
which that planning or its implementation takes place. While that may
create analytical problems even in automobile accident cases where the
driver is left to "plan" how to drive and carry out his mission in the
most economic fashion, both the facts and language of Varig easily cover
the facts of this case. Varig involved an allegedly faulty safety
inspection program for aircraft. The factual parallel to the safety
programs at issue here cannot be distinguished on a principled basis.
Varig Airlines gives little help to lower courts applying the new standard
to specific facts--if the FTCA waiver of immunity indeed applies to
anything but trivial government failures, such as automobile accidents.
Nonetheless, it removes all doubt that the discretionary function
exception swallows the negligent decisions before us.
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| [50] |
The AEC devised safety and information plans prior to every open-air
detonation, tailoring the plans to the demands of each specific project.
None of the trial court's documented list of failures represents an
instance of deviation from, or negligent implementation of, the safety and
information plans adopted.*fn2 Rather, the court's extensive criticisms
and ultimate conclusions of negligence were directed at the substance and
failures of the plans themselves.
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On appeal, plaintiffs do assert that "the evidence clearly
demonstrates negligent and wrongful failure to execute and deviation from.
. . the plans approved by the Commission." Brief for the Appellee at 22
(emphasis in original). However, the evidence does not support this
allegation. Not one example is given of a failure to monitor or distribute
information as prescribed in the plans.*fn3 Rather, plaintiffs' challenge, mirroring
the trial court's concerns, goes toward the failure of the plans to
specifically prescribe greater monitoring or more diffuse and in-depth
information distribution. Plaintiffs' statement that "test site personnel
negligently and wrongfully failed to implement basic radiological
protection measures which were common at the time," id. at 24 (emphasis
added), demonstrates the true character of their allegations. Plaintiffs
concede as much by stating that the trial court "determined that the
fallout monitoring program and information program which coincided with
the 1951-1962 open-air testing at the Nevada test site did not comport
with the 'best available scientific knowledge.'" Id. at 42-43 (emphasis
added).
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In arguing that the safety and information plans themselves are not
immune from our review under the discretionary function exception,
plaintiffs contend:
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Where Congress has placed a mandatory duty upon the government to
protect public health and safety, such as it did upon the Commission, it
left no room for further policy-making regarding public safety. Where
there is not policy-making there is no "discretion" within the meaning of
28 U.S.C. 2680(a) and no immunity.
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Id. at 13. Essentially, they assert that because the two Atomic Energy
Acts demonstrate a concern for public health and safety, even though no
specific health and safety measures are mandated therein, the safety plans
devised to address that concern involved no social, economic, or political
policy making.
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On the contrary, the broad safety language of the Atomic Energy Acts
had to be translated into concrete plans, and that translation involved
the very essence of social, economic, and political decision making--the
precise policy choices protected by the discretionary function exception.
See General Pub. Util. Corp. v. United States, 745 F.2d 239, 244 (3d Cir. 1984) (means chosen by Nuclear Regulatory
Commission to fulfill its broad statutory duty to review safety of nuclear
facilities protected by discretionary function exception), cert. denied, 469 U.S. 1228, 105 S. Ct. 1227, 84 L. Ed. 2d 365 (1985). These decisions concerned
choices involving the social psychology of how best to inform without
alarming residents, the most cost-effective way of using public funds to
monitor fallout levels, and how best to use a finite number of personnel.
In short, they required the AEC "to establish priorities for the
accomplishment of its policy objectives by balancing the objectives sought
to be obtained against such practical considerations as staffing and
funding." Varig Airlines, 467 U.S. at 820. While
those choices deviated from the standards against which liability is
measured where liability is available, Congress' determination to retain
government immunity for "discretionary functions," as understood
post-Varig Airlines, puts those choices beyond our ability to review and
puts compensation for injury to individuals stemming from those choices
beyond our power to order.
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| [56] |
While we have great sympathy for the individual cancer victims who
have borne alone the costs of the AEC's choices, their plight is a matter
for Congress. Only Congress has the constitutional power to decide whether
all costs of government activity will be borne by all the beneficiaries or
will continue to be unfairly apportioned, as in this case. Until Congress
amends the discretionary function exception to the FTCA or passes a
specific relief bill for individual victims, we have no choice but to
leave them uncompensated. I must therefore concur in the majority opinion
which has carefully reviewed and applied the controlling law to the facts
of this case.
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Opinion Footnotes |
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| [57] |
*fn1 The trial lasted thirteen weeks. The trial
transcript runs more than 7,000 pages; the exhibit evidence more than
54,000 pages. The district court deliberated for seventeen months, then
issued an opinion which occupies 225 pages of the Federal
Supplement.
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| [58] |
*fn2 In 1974, the AEC was abolished and its
functions transferred to the Nuclear Regulatory Commission and the Energy
Research and Development Administration. Energy Reorganization Act of
1974, Pub. L. No. 93-438, 88 Stat. 1233.
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| [59] |
*fn3 The district court stated that its review
of "the various radiation safety plans, public information plans, and
related documents" disclosed the "astounding fact" that no concerted
effort was made "to directly monitor and record internal contamination or
dosage in off-site residents on a comprehensive person-specific basis."
Allen, 588 F. Supp. at 373-74.
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| [60] |
*fn4 In the one instance which suggested that a
subordinate contradicted an official direction by a superior, the district
court quoted at length from a document which it characterized as a
modification or redetermination of AEC policy regarding off-site exposure
levels by personnel at the "NTS operational level." Allen, 588 F. Supp. at
385-86. But the district court was actually quoting from the official
Operations Plan for the RANGER test series which had been annexed as an
appendix to the Rad-Safe Group's after-series report. Def. Ex. 88 at 66,
69.
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| [61] |
*fn5 It is also irrelevant whether the alleged
failure to warn was a matter of "deliberate choice," or a mere oversight.
See Allen, 588 F. Supp. at 337-38. We agree with the
treatment of this distinction in Myslakowski v. United States,
806 F.2d 94 (6th Cir. 1986), cert. denied,
480 U.S. 948, 107 S. Ct. 1608, 94 L. Ed. 2d 793 (1987):
"The critical error in the trial court's analysis is in its conclusion
that because the evidence does not show that the departmental policymakers
evaluated the pros and cons of requiring that a warning be given
concerning the rollover propensity of the jeep and then made a
discretionary decision not to give such warnings, it therefore follows
that no discretionary decision, of the kind contemplated by 2680(a), was
made . . . . Stated otherwise, even the negligent failure of a
discretionary government policymaker to consider all relevant aspects of a
subject matter under consideration does not vitiate the discretionary
character of the decision that is made. Indeed, it is, in part, to provide
immunity against liability for the consequences of negligent failure to
consider the relevant, even critical, matters in discretionary
decisionmaking that the statutory exception exists. If it were otherwise,
a judgment-based policy determination made at the highest levels, to which
all would concede that the statutory exception applies (the decision to
sell surplus jeeps), would result in no immunity if the decision could be
shown to have been made without consideration of important, relevant
factors, or was a decision negligently reached. If that reasoning were
sound, the discretionary function exception would be inapplicable in every
case in which a negligent 'failure to consider' a relevant risk could be
proved."
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| [62] |
*fn6 Plaintiffs rely heavily upon an AEC policy
report accepting responsibility for reimbursing radiation-caused losses.
We cannot treat such an agency statement as waiving the "discretionary
function" exclusion Congress placed in the FTCA. The existence of an
administrative claims system does not constitute a waiver of sovereign
immunity. See United States v. Shearer, 473 U.S. 52,
, 105 S. Ct. 3039, 3043 n.4, 87 L. Ed. 2d
38 (1985); Feres v. United States, 340 U.S. 135, 144-45, 95 L. Ed. 152, 71
S. Ct. 153 (1950).
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| [63] |
*fn7 The Court in Dalehite approved a series of
earlier lower court interpretations of 2680(a), which the Court stated
were generally "in conformity with our holding." Dalehite, 346
U.S. at 36 n. 32. The cited cases demonstrate the Court's
intent in Dalehite to include extremely low-level and mundane decisions
and implementations of decisions within the discretionary function
exception of 2680(a). See, e.g., Toledo v. United States, 95 F.
Supp. 838, 839, 841 (D.P.R. 1951) (suit over car damage caused
by tree at government facility falling on car; court holds that 2680(a)
bars recovery for failure to remove diseased experimental tree, but notes
that negligent removal of tree might not be exempt); Olson v. United
States, 93 F. Supp. 150, 152-53 (D.N.D. 1950) (suit
for property damage caused by questionable discretionary decision of
government employees to release flood waters from dam; court holds that
2680(a) bars recovery).
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| [64] |
*fn8 We have previously followed the command of
the Supreme Court in Varig. See Russell v. United States, 763
F.2d 786, 787 (10th Cir. 1985) (no government FTCA liability
possible, for failure of federal mine inspectors to more fully inspect
Utah coal mine). Most of the post-Varig decisions of the other circuits
are in accord with our holding today. See, e.g., Myslakowski v. United
States, 806 F.2d 94, 97-99 (6th Cir. 1986) (no
liability for Postal Service decision to sell used jeeps, without warning
buyers of jeep propensity to tip over), cert. denied, 480 U.S.
948, 107 S. Ct. 1608, 94 L. Ed.
2d 793 (1987); Ford v. American Motors Corp., 770
F.2d 465, 466-68 (5th Cir. 1985) (same); Smith v.
Johns-Manville Corp., 795 F.2d 301, 306-09 (3d Cir.
1986) (no liability for GSA decision to sell asbestos without warning of
hazards); Merklin v. United States, 788 F.2d 172,
174-75 (3d Cir. 1986) (no liability for AEC inspectors' failure to warn
uranium processing plant employees of health hazards discovered during AEC
inspections); Ostera v. United States, 769 F.2d 716,
718 (11th Cir. 1985) (no liability for FBI decision to obtain release of
particular person from prison to use as informant); Begay v. United
States, 768 F.2d 1059, 1066 (9th Cir. 1985) (no
liability for U.S. Public Health Service failure to warn uranium miners of
radiation hazards); Cisco v. United States, 768 F.2d 788, 789-90 (7th Cir. 1985) (no liability for EPA failure to
warn residents of landfill dirt contaminated with dioxin); Baxley v.
United States, 767 F.2d 1095, 1097-98 (4th Cir. 1985)
(no liability for FAA failure to regulate "ultralight" aircraft); Shuman
v. United States, 765 F.2d 283, 291 (1st Cir. 1985)
(no liability for Navy failure to warn shipyard workers of asbestos
hazards); Hylin v. United States, 755 F.2d 551, 554
(7th Cir. 1985) (no liability for federal mine inspectors' failure to
fully inspect clay mine); Feyers v. United States, 749 F.2d
1222, 1227 (6th Cir. 1984) (no liability for Army's failure to
inspect Chrysler's operation of government-owned railyard), cert. denied, 471 U.S. 1125, 105 S. Ct. 2655, 86 L. Ed. 2d 272 (1985); General Public Utilities
Corp. v. United States, 745 F.2d 239, 247 (3d Cir.
1984) (no liability for Nuclear Regulatory Commission's failure to warn of
possible equipment defects at the Three Mile Island nuclear facility),
cert. denied, 469 U.S. 1228, 105 S. Ct.
1227, 84 L. Ed. 2d 365 (1985); Flammia v.
United States, 739 F.2d 202, 204 (5th Cir. 1984) (no
liability for INS's "specific operational decision" to permit a Cuban
refugee known to be a convicted felon to enter the United States). But see
Aslakson v. United States, 790 F.2d 688, 691-94 (8th
Cir. 1986) (FTCA liability possible for government agency's failure to
comply with its own already established safety policy); Henderson v.
United States, 784 F.2d 942, 943 n.2 (9th Cir. 1986) (FTCA liability
possible, for government missile facility safety decision not made "at the
planning stage," but "operational in nature"); Collins v. United States, 783 F.2d 1225, 1228-31 (5th Cir. 1986) (FTCA
liability possible, for failure of Mine Safety and Health Administration
to close mine, when challenged decisions of subordinates did not involve
"policy" decisions, or involved only explicit mandatory duties); Alabama
Electric Cooperative v. United States, 769 F.2d 1523,
1526-29 (11th Cir. 1985) (FTCA liability possible, for "operational"
decisions of Army Corps of Engineers in constructing river
dikes).
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Concurrence Footnotes |
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| [65] |
*fn1 See The Atomic Energy Act of 1946, ch. 724,
60 Stat. 755 and The Atomic Energy Act of 1954, ch. 1073, 68 Stat. 921
(codified as amended at 42 U.S.C. 2011-2296 (1982 & Supp. III 1985)).
For detailed discussion of the two act's safety provisions, see Allen v.
United States, 588 F. Supp. 247, 348-50 (D. Utah
1984).
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| [66] |
*fn2 If the evidence had demonstrated such
deviation or negligent implementation, neither Varig Airlines nor Dalehite
would bar our review. Both those cases confirm that conformity to a
discretionary plan insulates the governmental action from review. See
Dalehite, 346 U.S. at 36 ("It necessarily follows
that acts of subordinates in carrying out the operations of government in
accordance with official directions cannot be actionable."); Varig
Airlines, 467 U.S. at 820 (acts of FAA employees
immune from review because dictated by immune policy-based program).
Deviation from an immune plan or negligent implementation of an immune
plan, however, can strip the action of the discretionary function
exception, for such governmental action does not involve the type of
social, economic, or political policy considerations at the core of the
exception.
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| [67] |
*fn3 At one point in their brief, plaintiffs
state that the test manager "authorized [the radsafety] officers to go
beyond the information radsafety plans." Brief for the Appellee at 57. In
other words, the test manager authorized the officers to deviate from the
plan. Plaintiff argues that because the officers were so authorized, their
failure to deviate from the plan subjects the Government to liability.
This reasoning is at direct odds with Varig Airlines and Dalehite. See
supra note 2. It is just such deviation from a discretionary plan that can
deprive the action of the protection of the discretionary function
exception.
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