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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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Nos. 85-2842, 86-5553
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1987.C09.41275 <http://www.versuslaw.com>; 820 F.2d
982
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filed: June 22, 1987.
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IN RE CONSOLIDATED UNITED STATES ATMOSPHERIC TESTING LITIGATION,
CHRISTINA KONIZESKI, ET AL., PLAINTIFFS-APPELLANTS,
v.
LIVERMORE
LABS, ET AL., DEFENDANTS-APPELLEES; ALICE P. BROUDY, ET AL.,
PLAINTIFFS-APPELLANTS, V. UNITED STATES OF AMERICA,
DEFENDANT-APPELLEE
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Appeal from the United States District Court for the Northern and
Central Districts of California, D.C. Nos. CV 84-0022 WWS et al, CV
79-2626 LEW, William W. Schwarzer, District Judge and Laughlin E. Waters,
District Judge, Presiding.
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Alan W. Sparer, and Ronald G. Bakal, for the
plaintiffs-appellants.
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Marc Johnston, for the defendants-appellees.
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Author: Anderson
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Before: J. Blaine Anderson, Arthur L. Alarcon and Cynthia Holcomb
Hall, Circuit Judges.
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ANDERSON, Circuit Judge:
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These consolidated appeals arise out of judgments entered by the
United States District Court for the Northern District of California,*fn1 in actions for personal injury and wrongful
death brought by or on behalf of military and civilian participants in the
United States atmospheric nuclear weapons testing program. Appellees are
the United States Government and private contractors who participated in
the nuclear weapons testing program.
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In the district court, the government moved pursuant to 42 U.S.C.
2212, to be substituted for the contractors as defendants in these
actions. The contractors joined in that motion. The government then moved
to dismiss or for summary judgment in all actions based on various
exceptions to its liability under the Federal Tort Claims Act (the
"FTCA"), 28 U.S.C. 2680.
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The district court granted the motion to substitute the government as
defendant in place of the contractors, specifically finding 42 U.S.C. 2212
to be constitutional. It then granted the government's motion for summary
judgment pursuant to the FTCA under the discretionary function exception,
28 U.S.C. 2680(a), the foreign country exception, 28 U.S.C. 2680(k), the
combatant activities exception, 28 U.S.C. 2680(j), and the Feres doctrine,
Feres v. United States, 340 U.S. 135, 95 L.
Ed. 152, 71 S. Ct. 153 (1950). We
affirm.
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The district court, The Honorable William W. Schwarzer presiding, in
its Memorandum Opinion and Order, published as In re Consolidated U.S.
Atmospheric Testing Litigation, 616 F. Supp. 759
(D.C. Cal. 1985), accurately summarized the facts, analyzed the
contentions of the parties, and properly applied the law to this case. The
opinion is well reasoned, and we adopt, with appropriate deletions and
additions, the following portions of it as the opinion of this court.*fn2
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I. FACTS
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"The atmospheric nuclear weapons tests giving rise to these actions
took place between the closing days of World War II and the adoption of
the Partial Nuclear Test Ban Treaty in 1963. Even before these tests, the
United States Government had enlisted the scientific resources of
industrial firms and universities in the program to develop an atomic
bomb. The Manhattan Project, which ultimately produced the bomb detonated
over Hiroshima, was an unprecedented joint effort by the government,
universities and and industry.
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"Immediately following the end of World War II, the military services
proposed a series of tests to determine the effects of atomic weapons. On
orders of the President, a joint military task force was established to
conduct the first of these tests. Operation Crossroads, at Bikini Atoll.
The task force, commanded by an admiral, compromised 42,000 military and
civilian personnel and numerous ships and aircraft.
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"In 1946, Congress adopted the Atomic Energy Act, (the 'AEA'),
establishing a national policy for the development and control of nuclear
weapons. Under the AEA, authority was transferred from the military to the
Atomic Energy Commission, (the 'AEC'), which was to operate a 'program of
federally conducted research and development' with the 'paramount
objective of assuring the common defense and security'. AEA, P.L. No. 585,
ch. 724, 60 Stat. 755, 1(a), (b)(3) (current version at 42 U.S.C. 2011 et
seq.). To this end the AEC was authorized to conduct experiments,
undertake research, and develop the military applications of atomic energy
either in its own facilities or pursuant to arrangements with public or
private institutions. Id. at 4(c)(2). All right, title and interest in
fissionable material was vested in it. Id. at 4(b), 5(a)(2). The
production of atomic bombs and bomb parts was authorized, but 'only to the
extent that the express consent and direction of the President of the
United States has been obtained . . . .' Id. at 6(a)(2). In addition,
Congressional oversight of the AEC's activities was established by
creation of the Joint Committee on Atomic Energy. Id. at 15(a). The AEA
thus established a program of pervasive 'governmental control of the
production, ownership, and use of fissionable material', including the
development and testing of nuclear weapons. Id. at 1(b)(4).
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"When the AEC took over the nuclear weapons program from the military,
it acquired a complex of plants, laboratories and other facilities staffed
by some 2,000 military personnel, 4,000 civilian government employees and
38,000 employees of contractors. The integral role of contractors, which
started in the Manhattan Project, continued under the AEC. The University
of California, Sandia Corporation and Reynolds Electrical and Engineering
Co., Inc., were among those contractors.
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"Escalating international tensions, marked by the Berlin blockade in
1948, the confrontation with the Soviet Union over Czechoslovakia, Greece
and Iran, the detonation by the Soviet Union of an atomic device in 1949,
and the Korean War led the government to assign the highest priority to
the development and production of nuclear weapons. Weapons tests were an
essential part of that effort.
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"These tests were regarded as critical to national security.
Presidents Eisenhower and Kennedy and the Chairman of the AEC made public
statements stressing the vital importance of tests to the development of
modern weapons needed to assure national security in the face of the
threat posed by the Soviet Union. Indeed, atmospheric nuclear weapons
testing was a major issue in United States-Soviet relations during this
period. Beginning in 1955, testing was a topic in the disarmament
negotiations. In 1958, a memorandum on tests was agreed on and was
observed until the Soviet Union resumed atmospheric testing in 1961. The
United States followed suit to counteract qualitative improvements in
Soviet weapons. In 1963, atmospheric nuclear tests were finally banned by
the Partial Nuclear Test Ban Treaty.
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"From 1947 through 1963, the AEC in conjunction with the Department of
Defense conducted 21 test series, some of which are the subject of these
actions. These tests had a number of objectives, including developing
weapons, planning their tactical and strategic use, determining how
targets could be given protection, assessing the vulnerability of troops
to the effects of detonations, and improving radiological safety. A
particular objective of the tests was to determine the effects of nuclear
explosions on the equipment, clothing, weapons and fighting capability of
military personnel. The tests were coordinated with studies conducted at
laboratories operated by contractors.
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"Every phase of the preparation and implementation of each nuclear
weapons test series was closely controlled and supervised by government
officials. Initially, proposals for tests had to be approved at various
levels by the responsible divisions of the AEC and the Department of
Defense. Before any test took place, a detailed Operation Plan had to be
reviewed and approved by the AEC, by the National Security Council, and
finally by the President.
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"Tests at the Pacific Proving Ground were under the control of a joint
task force commander, appointed by the AEC and the Joint Chiefs of Staff.
At the Nevada Test Site, tests were under the control of a Test Manager
designated by the AEC. Tests were conducted in conformity with the
approved Operation Plan, which incorporated radiation exposure limits
established by the AEC applicable to both military and civilian personnel.
Various military and civilian committees and medical and scientific
experts took part in making the decisions which were incorporated into the
Operation Plan. Designated units in each test organization were assigned
responsibility for radiological safety.
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"Nuclear weapons testing was known to be an inherently dangerous
activity. Aside from the recognized radiation hazards, the risks included
the dangers associated with any explosive devices, the effects of
unpredictable meteorological conditions, and the risks of injury inherent
in any large-scale military operation.
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"The need to balance risks against test objectives was particularly
acute in tests involving troop maneuvers. These tests were intended to
expose troops to battlefield conditions to test psychological reactions
and protective measures. The location and movement of those troops was a
subject of controversy between the AEC and military commanders. It was
recognized that the desire of the military to expose troops to realistic
combat conditions could interfere with the AEC's weapons testing
objectives. The arrangements ultimately incorporated in the Operation
Plans represented an accommodation of these divergent requirements by the
AEC and military officials. In later tests, involving large scale military
maneuvers under battlefield conditions, these considerations led to
delegation of responsibility for radiological and physical safety of
troops to the military commanders.
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II. DISCUSSION
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A. Motions to Substitute -- 42 U.S.C. 2212
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1. The Provisions and Effect of 2212
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"In October 1984, Congress adopted 1631 of the Department of Energy
National Security and Military Applications of Nuclear Energy
Authorization Act of 1985, (the 'Act'), codified at 42 U.S.C. 2212. It
provides that an action against the United States shall be the exclusive
remedy for injuries 'due to exposure to radiation based on acts or
omissions by a contractor in carrying out an atomic weapons testing
program under a contract with the United States', 2212(a)(1), and requires
any action against these contractors to be maintained solely against the
United States pursuant to the FTCA. The Act applies to alleged acts or
omissions of contractors 'without regard to when the act or omission
occurred.' 2212(a)(2).
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The Act provides, in pertinent part, that: A contractor against whom a
civil action or proceeding described in subsection (a) . . . is brought
shall promptly deliver all processes served upon that contractor to the
Attorney General of the United States. Upon certification by the Attorney
General that the suit against the contractor is within the provisions of
subsection (a) . . ., a civil action or proceeding commenced in a State
court shall be removed without bond at any time before trial by the
Attorney General to the district court of the United States for the
district and division embracing the place wherein it is pending and the
proceedings shall be deemed a tort action brought against the United
States . . . . For purposes of removal, the certification by the Attorney
General under this sub-section establishes contractor status
conclusively.
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42 U.S.C. 2212(b) (emphasis added).
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"A 'contractor' is defined as a 'contractor or cost reimbursement
subcontractor of any tier participating in the conduct of the United
States atomic weapons testing program . . . .' 2212(d). Authority to
certify pursuant to 2212(b) that the action against the contractor 'is
based on acts or omissions by a contractor in carrying out an atomic
weapons testing program under a contract with the United States' rests
with the Attorney General. 2212(a)(1).
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"In its statement supporting the Act, the Department of Justice
explained the unique situation at which it is aimed:
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[The Act] would clarify the status of certain contractors operating
government-owned facilities relating to atomic energy national defense
activities in litigation arising from those activities. Many actions
recently have been brought against these contractors who have invaluably
assisted the Government of the United States in carrying out its nuclear
weapons testing program. The actions allege exposure to radiation and
consequent injury or death as a result of the United States atomic weapons
testing.
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The provisions of the Federal Tort Claims Act determine the rights of
individuals and corporate litigants to seek monetary recovery from the
United States for alleged torts. Typically, the United States cannot be
used for and is not liable for the acts of independent contractors
providing goods or services to the United States. However, contractors who
operate nuclear weapons testing facilities for the Department of Energy or
its predecessor agencies and who, as a result, have participated in the
atomic weapons testing program are unique. They are not typical contract
suppliers of commercially provided goods or services to the government.
These contractors were and are utilized by the United States as
instruments of national policy to assist in an entirely governmental task
-- nuclear weapons research, development and testing. Further, the
government reimburses these contractors for any liability arising out of
their assistance in the weapons program, including the costs of
litigation. The use of the contractors to implement national policy and
perform a uniquely governmental function cannot be disputed. Therefore, it
should be perfectly clear that, for the purposes of civil litigation
arising from atomic weapons testing, the proper party defendant is the
government. Only the government sets policy, makes decisions, and controls
activities and circumstances regarding atomic weapons
testing.
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H.R. Rep. No. 124, Part I, 98th Cong., 1st Sess. 34-35
(1983).
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"The report of the Senate Committee on Armed Services elaborates the
Act's underlying rationale:
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Each nuclear test that has been made since 1946 has been made under
the statutory direction of Congress. Each nuclear test has been approved,
before the fact, by the President of the United States. Each nuclear test
has been under the direct supervision of government officials. Each
nuclear test has been participated in by hundreds, and in some cases
thousands, of government officials and military and civilian
personnel.
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The committee recognizes, as has the Congress, that the military
applications of atomic energy could not proceed either technically or
economically without the participation of organizations that possess both
scientific management skills and a high degree of scientific and technical
expertise. Several such organizations were placed under contract almost at
the inception of the nuclear weapons program in 1942 and have performed in
an outstanding manner in the national interest for more than three
decades. These organizations have provided scientific, engineering and
technical support for nuclear tests carried out by the government and for
the government in the exercise of a governmental function, i.e., providing
for the national defense. These organizations did not order the tests to
be performed; they did not set the times or places for the tests; nor did
they direct military or civilian government personnel to participate in
them.
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S. Rep. No. 500, 98th Cong., 2d Sess. 376 (1984).
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"The Senate Report described the effect of the legislation as
follows:
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[The Act] would cause all litigation involving the atomic weapons
testing program, including suits now filed against contractors, to be
maintained against the United States under the substantive and procedural
requirements of the FTCA.
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Id. at 375. By its terms, however, the Act is specifically limited to
claims
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for injury, loss of property, personal injury, or death due to
exposure to radiation based on acts or omissions by a contractor in
carrying out an atomic weapons testing program under a contract with the
United States.
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42 U.S.C. 2212(a)(1).
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"The instant actions [] qualify under the Act. The Attorney General []
made the statutory certification. The [appellees'] motions to substitute
the United States as the sole defendant in these actions must be granted
unless 2212 is found to be invalid."
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[Appellants raise several issues concerning the constitutionality of
42 U.S.C. 2212: (1) whether 2212 constitutes a taking without just
compensation in violation of the fifth amendment; (2) whether 2212
violates the procedural and substantive due process requirements of the
fifth and fourteenth amendments; (3) whether 2212 violates the principle
of separation of powers; and (4) whether 2212 deprives appellants of their
right to a jury trial as guaranteed by the seventh
amendment.]
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2. Constitutionality of 2212
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a. Fifth Amendment -- Taking
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"The effect of 2212 is to substitute the remedy against the government
under the FTCA for any cause of action against the contractors arising
under state law. In adopting this legislation, Congress broke no new
ground. In a number of other acts, Congress substituted the FTCA remedy
against the government for remedies available against private parties, and
these acts have been uniformly upheld. See Ducharme v. Merrill-National
[sic] Laboratories, 574 F.2d 1307 (5th Cir.), cert.
denied, 439 U.S. 1002, 99 S. Ct. 612, 58 L. Ed. 2d 677 (1978) (Swine Flu
Act); Carr v. United States, 422 F.2d 1007 (4th Cir.
1970) (Federal Drivers Act). See also 42 U.S.C. 233 (Public Health Service
medical personnel); 38 U.S.C. 4116 (Veterans Administration medical
personnel); 22 U.S.C. 817(a) (State Department medical personnel); 10
U.S.C. 1089(a) (Armed Forces medical personnel).
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"[Appellants] contend that the Act [] results in a compensable taking.
In a classic example of understatement, the Supreme Court has said that
'the question of what constitutes a "taking" for purposes of the Fifth
Amendment has proved to be a problem of considerable difficult.' Penn
Central Transportation Co. v. New York City, 438 U.S. 104, 123, 98 S. Ct. 2646, 2658,
57 L. Ed. 2d 631 (1978)."
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[A two-step analysis is used to determine whether a "taking" has
occurred. First, is the subject matter (i.e., a pending cause of action)
"property" within the meaning of the fifth amendment? Second, if so, has
there been a taking of that property?]
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"A cause of action has been described as a 'species of property
protected by the Fourteenth Amendment's Due Process Clause.' Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428, 102
S. Ct. 1148, 1154, 71 L. Ed. 2d 265 (1982)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 313, 70 S. Ct. 652, 656, 94 L. Ed. 865 (1950)). See also In re Aircrash in
Bali, Indonesia on April 22, 1974, 684 F.2d 1301,
1312 (9th Cir. 1982) (dictum).*fn3 [] It is helpful at the outset to recognize
that '"[a] claim of deprivation of property without due process of law
cannot be blended as one and the same with the claim that property has
been taken for public use without just compensation."' Kizas v. Webster,
227 U.S. App. D.C. 327, 707 F.2d 524, 539 (D.C. Cir.
1983), cert. denied, 464 U.S. 1042, 104 S.
Ct. 709, 79 L. Ed. 2d 173 (1984) (quoting
J. Sackman, Nichols' The Law of Eminent Domain 4.3 at 187 rev. 3d ed. cum.
supp. 1982) (emphasis in original). []"
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[In Ducharme v. Merrill-National Laboratories, 574 F.2d 1307 (5th Cir.), cert. denied, 439 U.S. 1002, 58 L. Ed. 2d 677, 99 S.
Ct. 612 (1978), the Fifth Circuit examined the
constitutionality of the Swine Flu Act, 42 U.S.C. 247. Like 2212, this
statute provides for the substitution of the United States as the sole
defendant. That court found it well settled that "a plaintiff has no
vested right in any tort claim for damages under state law." Id. at 1309
(citing Keller v. Dravo Corporation, 441 F.2d 1239
(5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 679, 30 L. Ed. 2d 665
(1972)). See also Carr v. United States, 422 F.2d 1007 (4th Cir. 1970). Furthermore, in Hammond, the First
Circuit found:
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"No person has a vested interest in any rule of law entitling him to
insist that it shall remain unchanged for his benefit." New York Central
R.R. Co. v. White, 243 U.S. 188, 198, 37 S.
Ct. 247, 250, 61 L. Ed. 667 (1917); Duke
Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S.
59, 88 n.32, 98 S. Ct. 2620, 2638 n.32, 57 L. Ed. 2d 595 (1978); Second Employers' Liability
Cases, 223 U.S. 1, 50, 32 S. Ct. 169, 175, 56 L. Ed. 327 (1912); Ducharme
v. Merrill-National Laboratories, 574 F.2d 1307, 1309
(5th Cir.), cert. denied, 439 U.S. 1002, 99
S. Ct. 612, 58 L. Ed. 2d 677 (1978). This
is true after suit has been filed and continues to be true until a final
unreviewable judgment is obtained.
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Hammond, 786 F.2d at 12.]
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"While a cause of action is considered to be a species of property, as
heretofore discussed, those words do not translate into a cognizable
taking claim. See In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1312 (9th Cir. 1982). Whether such a
claim exists is subject to an 'essentially ad hoc, factual inquiry.' Penn
Central, 438 U.S. at 124, 98 S. Ct. at
2659. Both the nature of the property right and of the
governmental invasion must be considered [to determine whether a taking
has occurred.]
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"Unlike contract claims, the tort claims asserted here lack
'investment-backed expectations.' Penn Central, 438 at 124, 98
S. Ct. at 2659. Cf. Lynch v. United States, 292 U.S.
571, 579, 54 S. Ct. 840, 843, 78
L. Ed. 1434 (1934). Not only are they contingent by their
nature, but they also arise in a field in which the law remains to be
developed. See, e.g., Molsbergen v. United States, 757 F.2d
1016, 1020-25 (9th Cir. 1985).
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"The governmental action, moreover, does not abrogate the claims but
subjects them to the tort claims procedure which the plaintiffs could
reasonably expect might be applied. This is true, notwithstanding the
naming of contractors as defendants, because the claims arose out of
activities conducted by the government and the contractors were named [by
appellants] for the obvious purpose of escaping the well-known limits on
the government's waiver of sovereign immunity. For these reasons, the
Court concludes that [appellants] do not have a taking
claim."
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b. Fifth Amendment -- Due Process
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(i) Procedural Due Process
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[As indicated above, a cause of action has been recognized as a
species of property protected by the fifth amendment's due process
clause.]
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"To say that a cause of action is a species of protected property,
however, is not to answer the question of what process is due. A cause of
action is property of a substantially different nature than real or
personal property or vested intangible rights. It is inchoate and affords
no definite or enforceable property right until reduced to final judgment.
Cf. Armstrong v. United States, 364 U.S. 40, 80 S. Ct. 1563, 4 L. Ed. 2d 1554
(1960) (state law materialman's lien entitling supplier to resort to
specific property to satisfy claims is a property right compensable under
fifth amendment); Lynch v. United States, 292 U.S. 571, 579, 54 S. Ct. 840, 843, 78
L. Ed. 1434 (1934) (contract rights are property rights
compensable under fifth amendment).
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"A cause of action does not afford the holder the traditional bundle
of rights associated with the ownership of property. Cf. United States v.
Security Industrial Bank, 459 U.S. 70, 75-76, 103 S. Ct. 407, 410-11, 74 L. Ed. 2d 235 (1982). Instead, it represents a right to assert a claim
for compensation or some other form of judicial relief. Its value is
contingent on successful prosecution to judgment. Thus, to the extent it
is entitled to due process protection, that protection focuses on assuring
access to fair procedures for its prosecution. The notion of due process
relevant to causes of action is that 'deprivation . . . by adjudication be
preceded by notice and opportunity for hearing appropriate to the nature
of the case.' Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 313, 70 S. Ct. 652, 656, 94 L. Ed. 865 (1950)." [On
notice of hearing, appellants were given the opportunity to present their
claims before the district court. The requirements of procedural due
process were thereby satisfied. The plaintiffs' claims were simply
unavailing under the procedure pursued by them. Procedural due process,
however, does not guarantee that a party will prevail. Logan,
455 U.S. at 432. To the extent that 2212 may have
abrogated appellants' causes of action by substituting the parties and
remedies, this court's analysis will focus on substantive due
process.]
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(ii) Substantive Due Process
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[We adopt the Hammond court's cogent due process analysis of 2212 with
the following deletions and additions:
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"[] Congress must comply with due process when abolishing or
substantially modifying a common law cause of action. In that sense the
right to sue is a 'species of property.' Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 1154, 71 L. Ed. 2d 265 (1982); see
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438
U.S. at 82-94, 98 S. Ct. at 2635-41. But,
an act of Congress comes to us clothed with a presumption of
constitutionality, and the burden is on the plaintiff to show that it
violates due process. Usery v. Turner Elkhorn Mining Co., 428
U.S. 1, 15, 96 S. Ct. 2882, 2892, 49 L. Ed. 2d 752 (1976); McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S. Ct. 1101, 1104-05, 6 L. Ed. 2d 393
(1961).
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| [70] |
"Because Congress has acted within its powers under the war powers and
commerce clauses of the Constitution and there is no fundamental right or
suspect classification involved here, we find that the rational basis
standard of due process review applies.
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| [71] |
"In applying the rational basis test to this case we follow the
guidance of the Supreme Court in Pension Benefit Guaranty Corp. v. R. A.
Gray & Co., 467 U.S. 717, 728-34, 104
S. Ct. 2709, 2717-20, 81 L. Ed. 2d 601
(1984); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 82-94, 98 S. Ct. at 2635-41; and Usery v. Turner Elkhorn Mining Co., 428
U.S. at 15-20, 96 S. Ct. at 2892-94. We
find that [appellants have] not met [their] burden of showing that 2212 is
wholly arbitrary and irrational in purpose and effect, i.e., not
reasonably related to a legitimate congressional purpose. See United
States R.R. Retirement Bd. v. Fritz, 449 U.S. 166,
174-77, 101 S. Ct. 453, 459-60, 66 L. Ed.
2d 368 (1980); Vance v. Bradley, 440 U.S. 93, 97-98, 99 S. Ct. 939, 942-43, 59, 59 L. Ed. 2d 171 L. Ed. 2d [sic]
(1979).
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| [72] |
"The reasons asserted by the United States for Congress' enactment of
2212 are neither arbitrary nor irrational, and can be stated simply. The
United States has operated a nuclear weapons testing program for over 40
years. It initiates, designs and authorizes all nuclear tests under the
program but has found it necessary to obtain the assistance of various
private entities including universities and private companies for many
aspects of the testing. From the late 1940's to the early 1960's a series
of above-ground tests of atomic weapons were conducted with military
personnel, civilian government employees and private employees of
government contractors taking part. [] There is no dispute that these
tests were designed and supervised by government officials and were
individually authorized by the President. A significant number of those
present at the above-ground tests have instituted suits against the
government contractors involved in them for injuries caused by radiation
exposure. The contractors are generally not threatened with financial
liability by these suits since most of their contracts with the government
included a clause making the United States indemnitor for all tort
liability, including costs of litigation, arising from their participation
in the testing programs. S. Rep. No. 500, 98th Cong., 2d Sess. 374-76
(1984). Congress has nevertheless perceived these lawsuits to constitute a
threat to the continued participation of the private contractors in the
nuclear weapons program because the contractors fear the bad publicity
generated by the suits. The contractors testified before Congress that the
lawsuits have led the public to blame them for the formulation,
implementation and execution of the atomic weapons testing policy of the
United States. H.R. Rep. No. 124, Part 4, 98th Cong., 1st Sess. 2-3
(1983). They also testified that the lawsuits result in a diversion of
human and financial resources away from research and testing activities
and into litigation and, therefore, seriously disrupt their participation
in the program. See Litigation Relating to Atomic Testing, 1983: Hearings
on H.R. 2797 before the Subcommittee on Administrative Law and
Governmental Relations of the House Committee on the Judiciary, 98th
Cong., 1st Sess. 46-49 (1983). [Appellants assert] that the mere public
embarrassment of the private contractors is not a rational or legitimate
reason for relieving them of liability. We disagree. Even if we question
the extent and effect of this public embarrassment it is not for us to
reevaluate it. It is a plausible reason for Congress' action. United
States R.R. Retirement Bd. v. Fritz, 449 U.S. at 179,
101 S. Ct. at 461.
|
| [73] |
"Nor has Congress chosen a wholly arbitrary or irrational means to its
legitimate end. [Appellants] claim[] that Congress created only an
illusory substitute remedy in 2212, that [] probably will not []
compensate[] [them] because under the terms of 2212(a)(2) the 'limitations
and exceptions' applicable to the remedies provided by 2212 are preserved.
[]"]
|
| [74] |
"[Appellants] argue, however, that the Act must be viewed not simply
as a substitution of remedies, but rather as an abrogation of existing
claims. By substituting the FTCA remedy, the claims become subject to
dispositive defenses available to the government, including the Feres
doctrine and the discretionary function exception."
|
| [75] |
"Nevertheless, although Congress could have relieved the independent
contractors of their burden of defending suits for radiation injuries and
still provided those injured by radiation a more generous substitute
compensation scheme, we cannot say that Congress' choice of means was
without any rational basis. The atomic weapons testing program has been an
important, some say vital, government function from its inception.
Independent contractors were used only to aid the government to carry out
its program. When the program began Congress could have mandated that all
tort claims arising from it be litigated through the FTCA. Under the
statute as originally enacted, [appellants] had the right to sue
contractors without restriction, but it was the government who paid the
judgment under its indemnitor agreement with the contractor. [Appellants]
had the best of both possible worlds, a right to sue free of any FTCA
limitations with the government guaranteeing payment of the judgment. It
was neither arbitrary nor irrational for Congress to change the law so as
to place putative [appellants] in the same position as any other party
suing the United States in tort. See Hearings, supra, at 46-48; S. Rep.
No. 500, supra, at 377. Moreover, there may be government compensation
available to many of those injured by radiation, including [appellants]
here, under veterans benefits legislation, 38 U.S.C. 301-363, 401-423, or
the FECA." Hammond, 786 F.2d at 14.]
|
| [76] |
[Finally, appellants argue that 2212 cannot be applied to them
retroactively. However, "t]he retroactive application of a federal statute
. . . is not forbidden under the constitution so long as due process
requirements are met." Matter of Reynolds, 726 F.2d 1420, 1422 (9th Cir. 1984) (citing C.D. Sands, Statutes and
Statutory Construction, 41-03 (4th ed. 1973)) (footnote omitted). As a
general rule, a judge should apply the law in effect on the date of a
decision. Matter of Reynolds, 726 F.2d at 1422;
United States v. The Schooner Peggy, 5 U.S. 103, 110,
2 L. Ed. 49 (1801). To comport with the requirements
of due process, the retroactive application of a statute must be supported
by a legitimate legislative purpose furthered by a rational means. Pension
Benefit Guaranty Corp., 467 U.S. at 729. "The burden
is on one complaining of a due process violation to establish that the
legislature has acted in an arbitrary and irrational way." Id. (quoting
Turner Elkhorn Mining Co., 428 U.S. at 15). As we
discussed above, appellants have not met this burden].
|
| [77] |
c. Separation of Powers Doctrine
|
| [78] |
"Congressional attempts to alter the rule of decision in pending cases
in favor of the government have been condemned as a violation of Article
III. See United States v. Klein, 80 U.S. (13 Wall.) 128, 146-47, 20 L. Ed. 519 (1871); United
States v. Sioux Nation of Indians, 448 U.S. 371, 404,
100 S. Ct. 2716, 2735, 65 L. Ed. 2d 844 (1980). The instant cases, however, do not fall within that
prohibition. Section 2212 does not withdraw jurisdiction from the federal
courts, does not deprive a party of the benefit of a judgment, and does
not mandate the outcome of particular cases. It substitutes remedies but
it leaves the application of the rules of law, including any defenses, for
judicial determination. See Dames & Moore v. Regan, 453 U.S.
654, 685, 101 S. Ct. 2972, 2989, 69 L. Ed. 2d 918 (1981).
|
| [79] |
The better reading of Klein is quite narrow and construes the case as
holding only that Congress violates the separation of powers when it
presumes to dictate 'how the Court should decide an issue of fact (under
threat of loss of jurisdiction)' and purports to 'bind the Court to decide
a case in accordance with a rule of law independently unconstitutional on
other grounds.'
|
| [80] |
United States v. Brainer, 691 F.2d 691, 695 (4th
Cir. 1982) (quoting P. Bator, D. Shapiro, P. Mishkin & H. Wechsler,
Hart & Weschler's The Federal Courts and the Federal System 316 n.4
(2d ed. 1973)). Since the Act neither directs the court to make a certain
finding of fact nor requires them to apply an unconstitutional law, the
separation of powers doctrine is not offended. See also Battaglia [v.
General Motors Corporation], 169 F.2d [254, 262 (2d
Cir. 1948)]."
|
| [81] |
d. Seventh Amendment -- Right to Jury
|
| [82] |
[Appellants argue that they were unconstitutionally deprived of their
right to trial by jury because 2212 makes an FTCA action against the
United States the exclusive remedy for damages.*fn4 The court in Hammond held:
|
| [83] |
There is no right to a jury trial against the sovereign under the
seventh amendment. Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S. Ct. 1459, 1484,
8 L. Ed. 2d 671 (1962). If the United States can
abolish the right to a cause of action altogether it can also abolish the
right to a jury trial that is part of it. When the United States abolishes
a cause of action and then sets up a separate administrative remedy
against itself, as it has [with 2212], the seventh amendment does not
require that it must also provide a jury trial.
|
| [84] |
Hammond, 786 F.2d at 15. We agree and find that
appellants were not constitutionally deprived of their right to a jury
trial.]
|
| [85] |
"Section 2212 is therefore a valid exercise of Congressional power.
The United States must be substituted as the defendant in place of the
contractors, and the contractors dismissed from these
actions."
|
| [86] |
B. Motion for Summary Judgment
|
| [87] |
"Under 2212, these actions must be treated as having been brought
against the United States under the FTCA. The FTCA is a limited waiver of
sovereign immunity subject to certain statutory and judicial exceptions.
The government [] moved [and the district court granted, a motion] for
summary judgment on the ground that each [appellant's] claims are barred
by one or more of those exceptions.
|
| [88] |
[1]. The Discretionary Function Exception
|
| [89] |
"The FTCA excludes any claim '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.' 28 U.S.C. 2680(a). The government
raises the discretionary function exception as a defense to all claims
raised by all [appellants].
|
| [90] |
[a.] Claims arising out of acts or omissions in connection with the
detonation of nuclear weapons.
|
| [91] |
"[Appellants'] first category of claims is based on injuries caused by
their exposure to radiation from nuclear weapons. They may be summed up as
resting on alleged negligent failures to take adequate safety precautions
at the test sites.
|
| [92] |
"[Appellants] acknowledge that the decision to conduct the tests is
covered by the discretionary function. They contend, however, that the
Court must examine each challenged act or omission to determine whether,
in the light of the policies underlying the exception, it is of the type
that Congress intended to protect. According to [appellants], many of
those acts involved only the exercise of what they refer to as 'scientific
or professional judgment' in implementing an overall decision to conduct
the atomic weapons testing program and hence are not covered by 2680(a).
See e.g., Driscoll v. United States, 525 F.2d 136
(9th Cir. 1975). In addition, they argue that the government can be held
liable for failure to enforce its own safety requirements.
|
| [93] |
"The fountainhead of jurisprudence relating to the discretionary
function exception is Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed.
1427 (1953). The continuing vitality of that decision was
recently affirmed in United States v. S.A. Empresa de Viacao Aerea Rio
Grandense ('Varig'), 467 U.S. 797, 104 S.
Ct. 2755, 81 L. Ed. 2d 660 (1984).
Dalehite involved claims for damages against the United States arising out
of a disastrous explosion of ammonium nitrate fertilizer, which had been
produced and distributed under the direction of the United States for
export to areas occupied by the Allied Armed Forces after World War II.
Numerous acts of the government were charged as negligent: the
cabinet-level decision to institute the fertilizer to determine the
possibility of explosion, the drafting of the basic plan of manufacture,
and the failure properly to police the storage and loading of the
fertilizer.
|
| [94] |
"The Supreme Court concluded that these allegedly negligent acts were
governmental duties protected by the discretionary function exception and
held the actions barred by 2680(a). Describing the discretion protected by
2680(a) as 'the discretion of the executive or the administrator to act
according to one's judgment of the best course,' 346 U.S. at 34, 73 S. Ct. at 967, the Supreme Court
stated:
|
| [95] |
It is unnecessary to define, apart from this case, precisely where
discretion ends. It is enough to hold, as we do, that 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.
|
| [96] |
Id. at 35-36, 73 S. Ct. at 967-68 (footnotes
omitted). In the course of its opinion, the Supreme Court analyzed the
legislative history of the FTCA. It noted that 'congressional thought was
centered on granting relief for the run-of-the-mine accidents, as
distinguished from injury from performing discretionary governmental
functions,' id. at 28, n.19, 73 S. Ct. at 964, n.19,
and concluded that in 2680 'Congress exercised care to protect the
Government from claims, however negligently caused, that affected the
governmental functions.' Id. at 32, 73 S. Ct. at 966
[footnote omitted].
|
| [97] |
"Dalehite is squarely on point. The argument made by plaintiffs in
that case, and rejected by the Supreme Court, was essentially the same as
that made here, i.e., that the charges were directed not at
|
| [98] |
'any Cabinet decision . . . [but] only to the mistakes of judgment and
the careless oversight of Government employees who were carrying out a
program of manufacturing and shipping fertilizer and who failed to concern
themselves as a reasonable man should with the safety of
others.'
|
| [99] |
Id. at 35, 73 S. Ct. at 967 (quoting petitioners'
arguments).
|
| [100] |
"The specific acts of negligence charged were the temperature at which
the fertilizer was bagged, the coating and bagging materials used, and the
labelling of the bags. Id. at 39, 46-57, 73 S. Ct. at 969, 973-79. The Supreme Court found all of these acts covered
by the discretionary function exception because they were 'performed under
the direction of a plan developed at a high level under a direct
delegation of plan-making authority from the apex of the Executive
Department. Id. at 40, 73 S. Ct. at
970.
|
| [101] |
"The case presented by [Appellants] is congruent with Dalehite.
[Appellants] chose to focus their arguments on the conduct of Operation
Crossroads.*fn5 There, too, a detailed and extensive
Operation Plan was adopted on orders from the highest levels of the
Executive Department.*fn6 An integral part of that Plan was an
extensive Safety Plan which, according to [appellants] at first lacked but
later contained a plan for decontamination.*fn7 The Safety Plan described anticipated
radiation hazards, established exposure limits, and assigned
responsibility for protecting personnel against exposure to unknown
hazards.*fn8
|
| [102] |
"[Appellants'] contention is that the government's scientists who
prepared the plan 'failed to appreciate or prepare for the magnitude of
the hazards that would result.' Plaintiffs' Statement of Facts at 16. They
argue that 'AEC and military officials were responsible for developing
safety plans to carry out Presidential and cabinet and agency-level
directives to conduct the planned detonations without unduly jeopardizing
the safety of the participants; for ensuring that all participants except
those performing unusual or high priority missions such as cloud sampling
were not subjected to radiation doses exceeding the exposure limits
established by the plan; and for following other safety guidelines
established in the plan, such as decontamination measures and use of
protective clothing and gear . . . . There is substantial evidence that
their negligent failure to carry out these operational tasks resulted in
the overexposure of many hundreds or thousands of test participants,
including the safety monitors themselves.' Plaintiffs' Op. Br. at
30.
|
| [103] |
"The nuclear weapons tests on which these actions are founded were
carried out pursuant to specific legislative authority in the 1946 Atomic
Energy Act, and its successor, the 1954 Atomic Energy Act, 42 U.S.C. 2011
et seq., and presidential order.*fn9 They were conducted for the purpose of
developing and testing weapons and discovering their effects, an
inherently dangerous undertaking. The Safety Plan developed for each test
series was designed to minimize exposure to radiation consistent with the
purposes of the tests. The Plan provided that 'radiological safety of all
military and civilian personnel is a command responsibility.'*fn10 While the Plan established radiation
exposure limits, it was subject to the authority of the officer in charge
of any particular test, who could permit exposure in excess of the
established level if the exigencies of the situation required. Thus the
Plans specified that compliance with exposure limits was conditioned upon
operational requirements:
|
| [104] |
Due to the special nature of field tests it is considered that a
policy of strict adherence to the radiological standards prescribed for
routine work is not realistic. The regulations set forth herein have been
designed as a reasonable and safe compromise considering conservation of
personnel exposures, the international delays chargeable to excessive
radiological precautions. In all cases other than emergencies or tactical
situations, the ultimate criteria will be limited by the MPEs [maximum
permissible exposure] for personnel. Special instances may arise . . . in
which operations will be carried out without regard to the MPEs and MPLs
[maximum permissible level] prescribed herein. For such emergency or
tactical operations the criteria prescribed below for tactical situations
will be used as a guide.*fn11
|
| [105] |
"The Safety Plan incorporated into the Operation Plan contemplated
that judgments and decisions concerning exposure to radiological hazards
and the degree of protection to be afforded would be made in the light of
the objectives and the needs of the test program. Safety decisions,
therefore, were a part of the policy decisions made in the conduct of the
weapons tests, [] and they fall squarely within the articulation in
Dalehite that
|
| [106] |
where there is room for policy judgment and decision there is
discretion.
|
| [107] |
346 U.S. at 36, 73 S. Ct. at 968. That those judgments and decisions may have been made by
scientists or other operational personnel does not affect the application
of the discretionary function exception. As stated by the Court in Varig,
'it is the nature of the conduct, rather than the status of the actor,
that governs whether the discretionary function exception applies . . . .'
[467 U.S. at 813], 104 S. Ct. at 2765.*fn12
|
| [108] |
"In these actions, the decisions concerning safety were in the first
instance made by those charged with the preparation of the Operation Plan
and its components. The responsibility for carrying out the Safety Plan
was assigned to the officials in charge of the tests who had discretion to
adopt and modify the Plan as necessary to achieve the objectives of the
test. A court would be ill-equipped to evaluate the judgments concerning
safety made by those officials based on the exigencies of the moment. Any
attempt to do so would, moreover, require a comprehensive reexamination of
the conduct of the tests and the decisions made during their course which
would itself defeat the purpose of the exception. The consequences of such
a reexamination would be to hamper the government in its future conduct of
weapons tests and similar operations affecting the national security.*fn13
|
| [109] |
[Finally, the appellants argue that the discretionary function
exception does not bar their challenge to the government's alleged
negligent failure to supervise the contractor's compliance with the safety
procedures and guidelines established by the Safety Plan. Appellants rely
heavily on Gardner v. United States, 780 F.2d 835
(9th Cir. 1986) for the proposition that, under California law, there is a
"nondelegable duty to ensure adequate safety precautions were taken by an
independent contractor" where the work to be performed involves special
dangers. Gardner, 780 F.2d at 837 (citing Rooney v.
United States, 634 F.2d 1238 (9th Cir. 1980)).
Furthermore, the United States can be liable under the FTCA for breaching
this non-delegable duty. Gardner, 780 F.2d at 837.
This case is clearly distinguishable. The discretionary function exception
was not raised nor discussed. Furthermore,
|
| [110] |
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). [] When the conduct at issue involves the exercise
of discretion by a governmental agency or employee, 2680(a) preserves
governmental immunity 'whether or not the discretion involved be
abused.'"
|
| [111] |
Allen v. United States, 816 F.2d 1417 (10th Cir.
1987) (footnotes omitted). See also Cunningham v. United States, 786 F.2d 1445 (9th Cir. 1986) (negligent failure to
inspect falls within discretionary function exception -- "When an agency
determines the extent to which it will supervise the safety procedures of
private individuals, it is exercising discretionary regulatory authority
of the most basic kind." (quoting Varig, 467 U.S. at 819-20)).
|
| [112] |
Furthermore, the Act is specifically limited to claims "for injury,
loss of property, personal injury, or death due to exposure to radiation
based on acts or omissions by a contractor in carrying out an atomic
weapons testing program under a contract with the United States." 42
U.S.C. 2212(a)(1) (emphasis added). Section 2212 is not designed to cover
the negligence of the government itself.]
|
| [113] |
"Accordingly, [Appellants'] claims based on failures to make adequate
safety precautions at tests must be dismissed. [footnote
omitted].
|
| [114] |
[b]. Claims Based on the Government's Failure to Issue Warnings Prior
to 1977.
|
| [115] |
"[Appellants'] second category of claims is based on the breach of the
government's alleged duty to warn [appellants] of the dangers to which
they had been exposed or to monitor test participants for health problems
resulting from radiation exposure. [This court] has postulated that
California courts would impose a duty on the government to warn test
participants of the dangers to which they have been exposed. See
Molsbergen v. United States, 757 F.2d 1016, 1020-25
(9th Cir. 1985). Such a duty would exist when a test participant could
show that (1) the government has information relating to a serious risk to
the life, safety or health of a participant; (2) the conduct of the
government gave rise to the risk; (3) the burden resulting from imposition
of a duty to warn is not onerous; and (4) there is reason to believe that
a warning would have some practical effect. Id. For purposes of this
ruling, it is assumed that the government failed to provide [appellants]
with any warning of the health risks of exposure to radiation until
1977.
|
| [116] |
"The government's motion is not directed at whether it had a duty to
warn. Rather, the government argues that in these cases the government's
failure to warn involved the failure to perform a discretionary function
and that the claims are therefore barred.
|
| [117] |
"Assuming the government had a duty to warn, the threshold question in
determining whether the discretionary function applies is what, if any,
warning measures it was obliged to undertake on behalf of test
participants prior to 1977. This is not a case of failing to warn river
users of a hidden obstruction beneath the surface. Lindgren v. United
States, 665 F.2d 978 (9th Cir. 1982); or park users
of the risk of flash floods, Ducey v. United States, 713 F.2d
504 (9th Cir. 1983); or a treating physician of his patient's
dangerous propensities, Jablonski v. United States, 712 F.2d 391 (9th Cir. 1983). The kind of 'warning' that these cases
involve is best illustrated by the program the government did undertake
beginning in 1977 on the strength of findings by the Centers for Disease
Control of a leukemia cluster among test participants. At that time the
Defense Nuclear Agency established the Nuclear Test Personnel Review
("NTPR") program. It began to assemble and publish voluminous materials
concerning radiation exposure during tests and to calculate levels of
exposure of personnel. Beginning in 1979, test participants whose records
indicated significant radiation exposure were notified and provided with
medical examinations. The notification and examination program was
gradually expanded to include personnel who had received lower doses. It
was also extended to the Department of Health, Education and Welfare which
began to conduct studies and a public information program.*fn14
|
| [118] |
"The decision to embark on this program entailed a commitment of
substantial resources, including the assignment of a large number of
employees and the expenditure of large sums of money. The initial cost of
the NTPR alone was $6,000,000 per year. The program required difficult
judgments balancing the magnitude of the risk from radiation exposure --
of which there was only fragmentary knowledge -- against the risks and
burdens of a public program. Those risks included the potential
consequences of creating public anxiety and the health hazards inherent in
the medical responses to the warning.*fn15
|
| [119] |
"Thus any decision whether to issue warnings to thousands of test
participants of possibly life-threatening dangers and to provide them with
appropriate examinations and counseling calls for the exercise of judgment
and discretion at high levels of government. The difficulty of such
decisions is illustrated simply by the problem of how to phrase such a
warning where the degree of exposure of any particular participants and
the consequent risk is not known.*fn16 A decision must also take into account
sensitive questions concerning its impact on on-going and future tests and
on the military and civilian participants.*fn17
|
| [120] |
"In no sense can such a decision be equated with decisions to warn of
submerged obstructions to navigation or flash floods.*fn18 Courts cannot be considered qualified to
evaluate such a decision and any attempt to do so is likely to interfere
with important governmental activities. Formulating and issuing warnings
requires the government '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, [467 U.S. at 820], 140 S. Ct. at 2768. The conclusion
is inescapable that every aspect of a warning program is a matter that
falls within the discretionary function exception as defined in Dalehite
and Varig:
|
| [121] |
Where there is policy judgment and decision there is
discretion.
|
| [122] |
346 U.S. at 36, 73 S. Ct. at 968. The decisions of [this court], discussed in the
immediately preceding section, compel the same result.
|
| [123] |
"[Appellants] argue that the discretionary function exception cannot
apply in the absence of a 'conscious decision.'*fn19 The statute is not so limited; it exempts
'any claim based upon . . . the failure to exercise or perform a
discretionary function . . .' 28 U.S.C. 2680(a). The language is directed
at the nature of the conduct, and does not require an analysis of the
decision-making process. Cf. General Public Utilities Corp. v. United
States, 745 F.2d 239, 245 (3d Cir. 1984), cert.
denied, 469 U.S. 1228, 105 S. Ct. 1227, 84 L. Ed. 2d 365 (1985) (the
exemption is based on the nature of the conduct, 'not whether there is an
option to choose'). When enacting 2680. 'Congress exercised care to
protect the Government from claims, however negligently caused, that
affected the governmental functions.' Dalehite, 346 U.S. at 32, 73 S. Ct. at 966 (emphasis
added).
|
| [124] |
"If the decision to issue or not to use a 'warning' is within the
discretionary function exception, then logically the failure to consider
whether to issue one necessarily falls within the exception as well. Any
other interpretation of the statute would create insurmountable problems
in its administration: What would constitute a 'decision'? Would a
decision to defer decision be a 'decision'? Would the government be
subject to liability for failing to act where operational employees
conducting the relevant research consider the evidence as yet insufficient
for making a decision? As the Supreme Court said in Varig, one must look
to 'the nature of the conduct' to determine whether the exception applies.
In this case, the relevant conduct is the issuance of 'warnings,' not the
decision-making process or the failure to make a conscious, explicit
decision.
|
| [125] |
"Accordingly, plaintiffs' claims based on the failure to issue
warnings must also be dismissed.*fn20
|
| [126] |
C. Broudy Appeal
|
| [127] |
Appellant Alice Broudy, decedent's wife, appeals from the United
States District for the Central District of California's granting of the
government's motion for summary judgment. In granting that motion, the
Honorable Judge Laughlin E. Waters adopted the reasoning of the decision
in In re Consolidated United States Atmospheric Testing Litigation, 616 F. Supp. 759 (D.C. Cal. 1985) ("Konizeski
appeal") and held, inter alia, that the discretionary function exception
barred Broudy's post-discharge failure to warn and her medical malpractice
claims. We affirm.
|
| [128] |
Major Broudy served as an officer in the U.S. Marine Corps from 1944
to 1960. In 1957, Major Broudy was ordered to participate in military
exercises near two atmospheric tests conducted in Nevada.
|
| [129] |
Major Broudy was honorably discharged in 1960. He received medical
care for various health problems at the Marine Corps medical facility at
El Toro. He was never informed of nor warned about the dangers associated
with his exposure to radiation. In 1976, he was diagnosed as having
lymphosarcoma, a form of cancer that has been related to radiation
exposure. He died from that disease in 1977.
|
| [130] |
Broudy, by stipulation, joined in all arguments and precedent advanced
by the appellants in the Konizeski appeal on the issue of the government's
post-discharge failure to warn and the applicability of the discretionary
function. For the same reasons and policy considerations stated above in
the Konizeski appeal, we find that the government's post-discharge failure
to warn Major Broudy of any harm arising from his exposure to radiation is
barred by the discretionary function exception to the FTCA.
|
| [131] |
Broudy has attempted to distinguish her husband's case from the
Konizeski appellants by asserting a medical malpractice claim.
Specifically, she contends the medical personnel at the El Toro Medical
Facility committed medical malpractice when they failed to warn Major
Broudy of the dangers of radiation exposure when he went to the facility
for post-discharge treatment. The district court held that this medical
malpractice claim was barred for failure to state a sufficient claim to
the appropriate federal agency. We agree.
|
| [132] |
28 U.S.C. 2675(a) provides that as a prerequisite to maintaining a
suit under the FTCA, a plaintiff must first present the claim to the
appropriate federal agency. By enacting the notice requirement, Congress
sought to ensure that plaintiffs "would promptly inform the relevant
agency of the accident so that it may investigate the claim and respond
either by settlement or by defense." Broudy v. United States,
722 F.2d 566, 568 (9th Cir. 1983) (quoting Adams v.
United States, 615 F.2d 284, 289 (5th Cir. 1980)).
The purpose of this notice requirement is to give the relevant agency an
opportunity to commence an investigation into the claim. See Broudy, 722 F.2d at 568. Broudy's administrative claim was
filed with the Department of Energy ("DOE"). The Department of Defense
("DOD") controls the medical facility at El Toro. The DOD received no
notice of Broudy's claim. As a consequence, the DOD was unable to initiate
an investigation into her claims. We agree with the district court that
Broudy's medical malpractice claim is barred because she failed to file
the claim with the DOD which was the appropriate federal
agency.
|
| [133] |
The judgments are AFFIRMED.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [134] |
*fn1 Consolidated with these appeals is Broudy
v. United States, No. 86-5553, a case from the Central District of
California. The issues unique to Broudy will be dealt with in a separate
section.
|
| [135] |
*fn2 Brackets together, in this manner [],
without enclosing material are used to indicate deletions from the opinion
of the district court; brackets enclosing materials are, unless otherwise
indicated, used to denote insertions or additions by this court. Footnotes
in the district court opinion have been renumbered sequentially. Where
appropriate, we have added and adopted portions of First Circuit's opinion
in Hammond v. United States, 786 F.2d 8 (1st Cir.
1986). Hammond examined 42 U.S.C. 2212 and held that substituting the
United States as defendant in all suits against private contractors for
radiation injuries arising from any of the United States atomic weapons
testing programs, was constitutional.
|
| [136] |
*fn3 In Bali, the court of appeals in dictum
postulated that wrongful death claims are property within the meaning of
the just compensation clause. The court, however, reserved the question
whether the Warsaw Convention, limiting the amount recoverable in a
wrongful death action, constituted a compensable taking.
|
| [137] |
*fn4 The FTCA specifically provides that in tort
actions against the United States, trials shall be to the court without a
jury. 28 U.S.C. 2402.
|
| [138] |
*fn5 Plaintiffs' Op. Br. at 3. That operation,
according to plaintiffs, epitomizes the nuclear weapons testing program at
its worst: "In hindsight Operation Crossroads was an extraordinary fiasco,
America's first nuclear disaster. The Joint Task Force took a radiation
bath without adequate resources to deal with the decontamination problems
that ensued." Id. at 76.
|
| [139] |
*fn6 Government Exhibits E-7.10-7.15. Operation
Plans for subsequent tests may be found at Government Exhibits E-8
(Operation Buster-Jangle), E-9 (Operation Castle), E-10 (Operation
Redwing), E-11 (Operation Hardtack), E-12 (Operation Ivy), and E-13
(Operation Dominic I).
|
| [140] |
*fn7 Government Exhibits E-7.3 to E-7.7.
Extensive Safety Plans were a part of the Operation Plan for each test.
See, e.g., Operation Plan for Operation Castle, Government Exhibit E-9, at
N-1 to N-III-2.
|
| [141] |
*fn8 Plaintiffs' Statement of Facts, at
11-16.
|
| [142] |
*fn9 See Government Exhibits E-14 to
E-26.4.
|
| [143] |
*fn10 Government Exhibit I-4, at 1. See also
Government Exhibits J-5, at 3; I-1, at 3; E-11, at K-1; J-3 at
1.
|
| [144] |
*fn11 Joint Task Force Seven, Command Task
Group 7.3, Operation Plan, December 7, 1953, Government Exhibit J-21, at
G-I-1. See generally references cited in Government Memo, in Support of
Summary Judgment (Discretionary Function)[].
|
| [145] |
*fn12 The pre-Varig criterion of looking at
whether the decision was made at the planning level or operational level
is no longer valid in view of the Supreme Court's statement in Varig. See
also Begay v. United States, 768 F.2d 1059, 1062-63
n.2 (9th Cir. 1985).
|
| [146] |
*fn13 The appropriateness of deciding issues of
governmental immunity on summary judgment to avoid unnecessary inquiries
disruptive of effective government was stressed by the Supreme Court in
Harlow v. Fitzgerald, 457 U.S. 800, 816-17, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
|
| [147] |
*fn14 See the discussion and references cited
at Government Memo. in Support of Summary Judgment (Discretionary
Function) []; Government Reply Memo [].
|
| [148] |
*fn15 See E. Robin, Matters of Life &
Death: Risks v. Benefits of Medical Care (1984), which discusses the
health hazards inhering in any widespread campaign to warn against and
detect disease. Diagnostic tests, by reason of the intrusive procedures
used, false positive indications, and sometimes unwarranted psychological
effects, produce their own adverse consequences which must be taken into
account.
The experience under the government's 1976 Swine Flu Program
illustrates the hazards of a hasty reaction to a health program, the
dimensions and seriousness of which are not yet known at the time.
Although the probability of an epidemic was never established, the public
was strongly urged to submit to immunization with little advice respecting
its attendant hazards. R. Neustadt, Swine Flu Affair: Decision-Making on a
Slippery Disease 86-97 (1978); Gray, "Complexities of Informed Consent,"
437 Annals Am. Academy Pol. & Soc. Sci, 37, 44 (May, 1978); Centers
for Disease Control, Public Attitudes Toward the Swine Flu Immunization
Program and Medical Coverage of Events 2-7 (1981). The government's
experience with the swine flu program highlights the policy and
cost/benefit trade-offs involved in large-scale public responses to
perceived health problems.
|
| [149] |
*fn16 Not the least of the problems the
government would face is that once having undertaken to issue a "warning",
it may come under an obligation to exercise due care toward members of the
public relying on it. See Indian Towing Co. v. United States,
350 U.S. 61, 69, 76 S. Ct. 122,
126, 100 L. Ed. 48 (1955) (not decided under the
discretionary function exception).
|
| [150] |
*fn17 Studying the psychological reactions of
troops to nuclear weapons during field tests was a specific goal of many
of the tests. See, e.g., Characteristics of Troops with Varying Levels of
Information about Atomic Effects, Government Exhibit D-67; Memorandum for
the AEC Chairman, July 16, 1951, Government Exhibit K-14. To carry out
such studies and achieve test objectives, the government needed complete
control over information supplied to the troops. Troops were to be
indoctrinated on how to conduct themselves on the nuclear battlefield. As
one officer explained, the goal was to teach soldiers to respect
radioactivity, not to fear it. Capt. Frank Winant, Command Problems of
Atomic Defensive Warfare, Sept. 1947, Government Exhibit
J-13.
|
| [151] |
*fn18 See, Begay v. United States,
768 F.2d 1059 (9th Cir. 1985); First Nat'l Bank in
Albuquerque v. United States, 552 F.2d 370, 374-77
(10th Cir.), cert. denied, 434 U.S. 835, 98
S. Ct. 122, 54 L. Ed. 2d 96 (1977)
(decision by Department of Agriculture whether label on fungicide complied
with statutory requirement that it contain a warning "necessary and if
complied with adequate to prevent injury" fell within discretionary
function exception).
|
| [152] |
*fn19 See Allen v. United States, 588
F. Supp. 247, 337-40 (D. Utah. 1984).
[The district court's decision in Allen was overturned by the Tenth
Circuit in Allen v. United States, F.2d (10th Cir. 1987). In that opinion,
the Tenth Circuit specifically rejected the District of Utah District
Court's "deliberate choice" or "conscious decision" analysis which was
heavily relied upon by the appellants in this case. The Tenth Circuit
held: 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, 94 L. Ed. 2d 793, 107 S.
Ct. 1608 (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 determinations 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." 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). Allen, F.2d at
n.5.]
|
| [153] |
*fn20 Because we dismiss all appellants' claims
under the discretionary function exception, we do not reach the Feres
doctrine, foreign country exception or the combatant activities
exception.
|