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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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No. 90-16758
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1992.C09.42618 <http://www.versuslaw.com>; 973 F.2d
696
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filed: August 26, 1992.
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KEITH L. PRESCOTT, 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
Nevada. D.C. No. CV-80-00143-RDF. Roger D. Foley, District Judge,
Presiding. Original Opinion Reported at,
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Mark B. Stern, United States Department of Justice, Washington, D.C.,
for the defendant-appellant.
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Stewart L. Udall, Santa Fe, New Mexico; Dale Haralson, Haralson,
Kinerk & Morey, Tucson, Arizona; Larry C. Johns, Johns & Johns,
Las Vegas, Nevada, for the plaintiffs-appellees.
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Before: William A. Norris and David R. Thompson, Circuit Judges, and
David A. Ezra, District Judge.*fn* Opinion by Judge Norris.
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Author: Norris
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Order AND AMENDED OPINION
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NORRIS, Circuit Judge:
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This case arises from the government's alleged negligence in
protecting workers at the Nevada Nuclear Testing Site. The government
appeals the district court's motion denying summary judgment on the basis
of the discretionary function exception to the Federal Tort Claims Act
(FTCA). We affirm.
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I
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These consolidated actions under the FTCA seek damages for injuries
allegedly sustained by 220 individuals in the course of the Government's
nuclear weapons testing program in Nevada. All worked at the United States
Nevada Test Site and claim to have suffered radiation injuries as a result
of the government employees' alleged negligence in conducting nuclear
tests at the site between 1951 and 1981. The plaintiffs claim that their
alleged injuries were the result of the following tortious acts by the
United States:
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1. Failure to establish or supervise the establishment of adequate
procedures to monitor and determine the amount of radiation in a given
geographic area or the amount of radiation to which an individual has been
exposed.
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2. Failure to instruct and advise workmen at the Nevada Test Site as
to the possible detrimental health effects of radiation
exposure.
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3. Failure to provide protective clothing or other apparatus to
eliminate, reduce, or minimize the radiation exposure and consequent
adverse health effects.
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4. Continuing to expose or to allow the exposure of workmen to
radiation contamination well knowing or having reason to believe that said
continued exposures were actually or potentially unsafe.
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5. Failing to take reasonable and necessary precautions in the conduct
of the tests which in many instances resulted in unnecessary and
undesigned radiation exposure.
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6. Failure to advise the individuals exposed to the extent of their
exposures and possible detrimental health effects.
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7. Failure to properly train, supervise, and inform its employees,
agents, contractors, and subcontractors in matters concerning radiation
containment and radiation health procedures.
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8. Failure to advise workers that because of their exposure to
radiation they should have medical check-ups and follow-up medical
observations in order to diagnose as early as possible any cancers which
might develop.
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Prescott v. United States, 724 F. Supp. 792,
798-99 (D. Nev. 1989).
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The government moved for summary judgment, claiming that plaintiffs'
actions were barred by the discretionary function exception to the FTCA.
The FTCA authorizes suits against the United States for damages for
personal injuries when a private person would be liable under the law of
the place where the act or omission causing the injury occurred. See 28
U.S.C. §§ 1346(b), 2674. Such a suit is not available, however, when the
act or omission complained of is "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." 28 U.S.C.
§ 2680(a).
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In support of its summary judgment motion, the government proffered no
evidence that the alleged acts of negligence flowed from choices grounded
in political, social or economic policy. Instead, the government relied on
In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988) (Atmospheric Testing), for the
proposition that everything the government does in carrying out the
nuclear testing program falls within the discretionary function
exception.
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The district court denied the government's motion on the ground that
Atmospheric Testing has been effectively overruled by Berkovitz v. United
States, 486 U.S. 531, 100 L. Ed. 2d 531 , 108 S. Ct. 1954 (1988). The court
then certified the alleged acts and omissions for trial. After its ruling,
the district court granted the government's motion to certify the
discretionary function issue for interlocutory appeal pursuant to 28
U.S.C. § 1292(b), and we granted the government's petition for
interlocutory review.
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II
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We need not reach the question whether Atmospheric Testing has been
effectively overruled by Berkovitz because we disagree with the
government's broad reading of Atmospheric Testing as providing blanket
immunity to all actions related to the nuclear testing operations.
Contrary to the government's view, Atmospheric Testing does not say that
the discretionary function exception immunizes every act or omission of
government employees in carrying out the nuclear testing
program.
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In Atmospheric Testing, civilian and military participants in the
government's nuclear testing program sued the United States on two
categories of claims. The first rested on alleged negligence in failing to
take adequate safety precautions at the test site; the second was based on
the government's alleged duty to warn participants of the dangers to which
they had been or would be exposed. The district court granted summary
judgment to the United States on the basis that the claims were barred by
the discretionary function exception. We affirmed on the basis of Dalehite
v. United States, 346 U.S. 15, 97 L. Ed.
1427 , 73 S. Ct. 956 (1953).
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In Dalehite, the Supreme Court held that specific acts of negligence
came within the purview of 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. In Atmospheric Testing, we found
Dalehite "squarely on point." 820 F.2d at 993.
Crucial to our analysis was the fact that the alleged acts of negligence
were the result of a balancing of competing policy considerations by
on-site officials who had been entrusted with the power to engage in such
discretionary decisionmaking. We said, "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." Id. at 995 (emphasis added). In rejecting the
claims arising from decisions by military commanders, we particularly
relied on the following facts:
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The need to balance risks against test objectives was particularly
acute in tests involving troop maneuvers. . . . 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 Operations 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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Id. at 986 (emphasis added).
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In further holding that the government's failure to issue warnings was
also covered by the discretionary function exception, we also relied on
the fact that the decision whether to issue warnings involved the weighing
of competing policy consideration. Quoting Dalehite, we said, " 'Where
there is policy judgment and decision there is discretion.' " Id. at 998
(quoting Dalehite, 346 U.S. at 36). Thus, in
Atmospheric Testing, the acts of alleged negligence came within the
purview of the discretionary function exception because the district court
found that the specific acts of alleged negligence flowed directly from
the policy choices of on-site officials who had been explicitly entrusted
with the responsibility of weighing competing policy considerations.
Atmospheric Testing, 820 F.2d at 995.
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As we read Atmospheric Testing, then, it did not, as the government
contends, provide blanket immunity to all aspects of nuclear testing;*fn1 rather, it provided immunity solely to
those acts resulting from policy choices that were expressly delegated to
test site officials. See id. ; see also Roberts v. United States, 887 F.2d 899, 901 (9th Cir. 1989). In Roberts, a suit
brought by the widows of two men who died from leukemia four years after
contamination by radioactive fallout produced by the venting of an
underground nuclear test, we considered whether Atmospheric Testing
immunized the government against plaintiffs' claim of negligence. Id. at
900. If Atmospheric Testing had provided blanket immunity to all
activities associated with nuclear testing, there is no question that in
Roberts we would have affirmed the district court's order denying relief
on the ground that we lacked subject matter jurisdiction. Instead, we
remanded. Implicit in our observation that "the record is not sufficiently
developed for [us] to determine whether Roberts' challenge is different in
any meaningful way from that in Atmospheric Testing " is the idea that
Atmospheric Testing neither provides blanket immunity nor precludes a
particularized fact-specific inquiry. Id. at 901. Indeed, in Roberts, we
went on to note that "the crucial distinction between this case and
Atmospheric Testing appears to be that Roberts does not challenge the
safety procedures authorized by the AEC but rather the failure to develop
the mandated procedures." Id. Reasoning that "we are unable to determine
from the documents in the record whether the Test Manager had the degree
of discretion in deciding whether to develop these plans that the
Atmospheric Testing court found in that case," id. at 901-02 (emphasis
added), we remanded to the district court for further proceedings. We thus
declined to immunize governmental conduct unless the government proved
that the exercise of a discretion to make policy choices had been
explicitly delegated to the test site officials and that the officials'
allegedly negligent actions flowed from choices based on social, economic
and political policy considerations.
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Were we to adopt the government's expansive reading of Atmospheric
Testing, we would find ourselves in conflict with the discretionary
function exception caselaw of both the Supreme Court and the Ninth
Circuit. See, e.g., Berkovitz v. United States, 486 U.S. 531, 100 L. Ed. 2d 531 , 108 S.
Ct. 1954 (1988); Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Cir. 1989); Arizona Maintenance
Co. v. United States, 864 F.2d 1497 (9th Cir. 1989).
As we explained in Arizona Maintenance, "The Supreme Court's unanimous
opinion in Berkovitz,. . . made clear that all decisions implementing a
discretionary decision are not necessarily protected, but only those where
choices are grounded in 'social, economic, and political policy.' " 864 F.2d at 1501 (quoting Berkovitz, 486
U.S. at 537.). We further noted, 'Under Berkovitz the key
inquiry is not whether the government employee has a choice, but whether
that choice is a policy judgment." Id. at 1503. Arizona Maintenance
requires a particularized and fact-specific inquiry to determine whether
the acts or omissions in question flowed from a choice based on social,
economic and political policy. The government attempts to avoid this
particularized and fact-specific inquiry, which we articulated in Arizona
Maintenance and followed, inter alia, in Roberts, through a blanket
reliance on Atmospheric Testing. This attempt must necessarily
fail.
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B
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Having determined that the United States was not entitled to summary
judgment on the basis of Atmospheric Testing, we now consider whether the
record gives rise to an alternative ground for awarding the government
summary judgment. This question turns on the allocation of the burden of
proving (or disproving) the applicability of the discretionary function
exception. If the plaintiffs bear the burden of disproving the
applicability of the discretionary function exception, then the government
would be entitled to summary judgment if plaintiffs fail to come forth
with sufficient evidence to establish that there are genuine issues of
material fact on the discretionary function issue. However, if the
government bears the burden of proving the applicability of the exception,
then the government would be entitled to summary judgment if it has
adduced sufficient evidence to establish that no genuine issues of
material fact remain for trial with respect to the discretionary function
exception.
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As an initial matter, then, we must decide whether the plaintiff or
the government has the burden of proving whether a certain act or omission
comes within the purview of the discretionary function exception. This
appears to be an issue of first impression in our circuit. Although the
answer has been implicit in many of our cases, we have never explicitly
addressed the question.
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We first note that plaintiff bears the burden of persuading the court
that it has subject matter jurisdiction under the FTCA's general waiver of
immunity. See 28 U.S.C. § 1346(b). This follows from the general principle
that "the party who sues the United States bears the burden of pointing to
. . . an unequivocal waiver of immunity." Holloman v. Watt, 708
F.2d 1399, 1401 (9th Cir. 1983) (citation omitted), cert.
denied, 466 U.S. 958 (1984). We applied this general
principle in the context of the FTCA's general waiver of immunity in Baker
v. United States, 817 F.2d 560, 562 (9th Cir. 1987),
cert. denied, 487 U.S. 1204, 101 L. Ed. 2d
882 , 108 S. Ct. 2845 (1988), and
subsequently in West v. Federal Aviation Administration, 830
F.2d 1044, 1046 (9th Cir. 1987), cert. denied, 485
U.S. 1007, 99 L. Ed. 2d 699 ,
108 S. Ct. 1470 (1988). Neither Baker nor West,
however, considered the allocation of the burden for proving the
exceptions to the general waiver of immunity.
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Only two circuits have decided this question. See Carlyle v. United
States, 674 F.2d 554 (6th Cir. 1982); Stewart v.
United States, 199 F.2d 517, 520 (7th Cir. 1952).
Both circuits agreed that the burden of proving the exception lies with
the government.*fn2 The Sixth Circuit laid out the following
framework:
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[A] plaintiff can invoke jurisdiction only if the complaint is
facially outside the exceptions of § 2680. This does not mean, [however,]
that the plaintiff must disprove every exception under § 2680 to establish
jurisdiction pursuant to the FTCA. What it does mean is that a plaintiff
may not invoke federal jurisdiction by pleading matters that clearly fall
within the exceptions of § 2680. Only after a plaintiff has successfully
invoked jurisdiction by a pleading that facially alleges matters not
excepted by § 2680 does the burden fall on the government to prove the
applicability of a specific provision of § 2680.
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Carlyle, 674 F.2d at 556.*fn3
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The Sixth Circuit rule - that the government bears the ultimate burden
of proving the applicability of an exception to the FTCA - is consistent
with the results our circuit has reached in FTCA cases. We have declined
to affirm a dismissal of an action on the basis of a discretionary
function issue when the evidentiary record was insufficient to entitle the
government to summary judgment on the question whether the alleged acts of
negligence resulted from choices grounded in social, economic or political
policy. In Seyler v. United States, 832 F.2d 120 (9th
Cir. 1987), for instance, we reversed a summary judgment in favor of the
United States because "the record [was] clearly insufficient for entry of
summary judgment on the discretionary function issue." Id. at 123.
Similarly, in ARA Leisure Services v. United States, 831 F.2d
193 (9th Cir. 1987), we declined to hold that the Park
Service's "failure to maintain [a pass] in a safe condition was a decision
grounded in social, economic or political policies [because of
insufficient evidence of a] clear link between Park Service road policies
and the condition of [the pass]." Id. at 195. The holding in these cases
is consistent with the view that the United States is not entitled to
summary judgment until it has established that the actionable conduct was
the result of a choice grounded in social, economic or political
policy.
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Because an exception to the FTCA's general waiver of immunity,
although jurisdictional on its face, is analogous to an affirmative
defense, we believe the Sixth and Seventh Circuits correctly placed the
burden on the United States as the party which benefits from the defense.
Today, we follow these two circuits and adopt the rule as set forth by the
Sixth Circuit in Carlyle. We thus hold explicitly that the United States
bears the burden of proving the applicability of one of the exceptions to
the FTCA's general waiver of immunity. As the Seventh Circuit reasoned in
Stewart, placing the burden on the plaintiff would "impose upon the
plaintiff the burden of proving [thirteen] negative averments. Such a
result would border on the preposterous." Stewart, 199 F.2d at
520.*fn4
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Having determined that the United States bears the ultimate burden of
proving the applicability of the discretionary function exception, we
reach the question whether the evidentiary record before us establishes
the non-existence of a genuine issue of material fact with respect to the
discretionary function question. It is undisputed that "nuclear tests
themselves and all decisions and planning made in the preparation and
carrying out of the tests and in the evaluation of the test results are
clearly within the discretionary function exception and thus immune from
suit." Prescott, 724 F. Supp. at 798. More
specifically, the question is whether the alleged acts of negligence the
district court certified for trial come within the purview of the
discretionary function exception.
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We have previously mentioned the particularized and fact-specific
inquiry applicable to FTCA cases raising the discretionary function
exception issue. See supra page 9. "In accordance with the Supreme Court's
decision in Berkovitz, this court utilizes a two-step test to determine
whether the FTCA discretionary function exception applies in a given
case." Summers v. United States, 905 F.2d 1212, 1214
(9th Cir. 1990) (citation omitted). First, the court considers "whether
the challenged action is a matter of choice for the acting employees: 'The
discretionary function exception will not apply when a federal statute,
regulation, or policy specifically prescribes a course of action for an
employee to follow' " and the employee fails to follow that course of
action. Id. at 1214 (quoting Berkovitz, 486 U.S. at 536). Second, "if the challenged conduct does involve an
element of judgment, the second step is to determine whether that judgment
'is of a kind that the discretionary function was designed to shield' "
Id. (quoting Berkovitz, 486 U.S. at 536). "To be
shielded the judgment must be grounded in social, economic, or political
policy." Id. Under prong two of the Summers inquiry, for the discretionary
function exception to apply, the United States must prove that each and
every one of the alleged acts of negligence (1) involved an element of
judgment and (2) the judgment was grounded in social, economic, or
political policy.
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In its motion to the district court, the government did not come forth
with evidence to prove that the alleged acts of negligence by test site
officials "involved an element of judgment." Id. Nor did the government
put forth evidence that the judgment (if any) was grounded in social,
economic, or political policy. Instead, having shown that these actions
were carried out in the course of the nuclear testing operations, the
government relied exclusively on Atmospheric Testing, which it read as
providing a blanket immunity to all government operations related to
nuclear testing. Implicit in the government's summary reliance on
Atmospheric Testing is the view, in the context of nuclear testing, that
the government need not prove that particular acts and omissions resulted
from choices grounded in social, economic and political policy because
Atmospheric Testing has brought all such acts and omissions within the
purview of the exception. In essence, then, the government interprets
Atmospheric Testing as holding that a complaint based on a government
employee's negligence in carrying out a nuclear test necessarily
constitutes a pleading outside the FTCA's waiver of general immunity. We
have already rejected this expansive reading of Atmospheric
Testing.
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III
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In sum, we affirm the district court's order denying summary judgment
because the government failed to adduce any evidence that the specific
acts of negligence flowed directly from the policy choices of on-site
officials who had been explicitly entrusted with the responsibility of
weighing competing policy considerations.*fn5 There remains a genuine issue of material
fact whether "the [applicable government officials] had the degree of
discretion . . . that the Atmospheric Testing court found in that case."
See Roberts, 887 F.2d 901 at 901-02 . At this stage of the case, the
government has not established that choices exercised by government
officials involved policy judgments.*fn6
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In light of the foregoing, we affirm the district court's order
denying the government's motion for summary judgment on the ground that
there are triable issues of fact as to whether the acts certified for
trial flowed from choices grounded in social, economic or political
policy.
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The order of the district court denying the government's motion for
summary judgment is AFFIRMED.
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Order
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This court's Opinion, filed March 24, 1992, is amended as
follows:
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1. At the end of the first full paragraph on slip. op. at 2873, add a
footnote that reads as follows:
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In its petition for rehearing, the government argues that our holding
that the United States bears the ultimate burden of proof is inconsistent
with United States v. Gaubert, 113 L. Ed. 2d 335, 111 S. Ct. 1267, 1275 (1991). We disagree. In
Gaubert, the Court indicated that a plaintiff must advance a claim that is
facially outside the discretionary function exception in order to survive
a motion to dismiss. The framework that the Seventh Circuit articulated in
Carlyle and that we adopt here is consistent with the Court's analysis.
See Carlyle, 674 F.2d at 556 ("Only after a plaintiff
has successfully invoked jurisdiction by a pleading that facially alleges
matters not excepted by § 2680 does the burden fall on the government to
prove the applicability of a specific provision of § 2680."). Gaubert, of
course, did not deal with the burden of proof question.
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The government also argues that the plaintiffs' claims should not
survive dismissal on their face. As we explained above, this argument is
foreclosed by Roberts, 887 F.2d at 901.
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2. At the end of the first sentence of the first full paragraph on
slip. op. at 2875, add a footnote that reads as follows:
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The government, of course, need not necessarily prove that a
government employee actually balanced economic, social, and political
concerns in reaching his or her decision. Kennewick, 880 F.2d at
1028. Nevertheless, the government must, at a minimum, prove
that the challenged decision was susceptible to such balancing or that the
government employee was entrusted with the responsibility of conducting
such balancing. Berkovitz, 486 U.S. at 536; Arizona
Maintenance, 864 F.2d at 1501; Roberts, 887
F.2d at 901-02.
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Judges Footnotes |
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*fn* Honorable David A. Ezra, United States
District Judge for the District of Hawaii, sitting by
designation.
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Opinion Footnotes |
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*fn1 Just as we do not read Atmospheric Testing
as providing blanket immunity to all aspects of nuclear testing, we
decline the government's invitation to read the Tenth Circuit's opinion in
Allen v. United States, 816 F.2d 1417 (10th Cir.
1987), cert. denied, 484 U.S. 1004, 98 L.
Ed. 2d 647 , 108 S. Ct. 694 (1988), as
providing such immunity. In Allen, the court held that the discretionary
function exception immunized the failure of test-site personnel to go
beyond what the operational plans specifically required them to do. Id. at
1421. Crucial to the court's holding, however, was the plaintiffs'
admission that "the AEC delegated 'unfettered authority' to a Test Manager
and his subordinates to implement public safety programs." Id. As a result
of plaintiffs' concession, there was no issue of material fact on this
point. Although we express no views on the soundness of Allen 's reasoning
and holding, we note that it is readily distinguishable from this case
because the government has not proven here that on-site officials were
delegated the sort of unfettered discretion which the court in Allen,
based on plaintiffs' concession, found that the Test Manager enjoyed.
Unlike in Allen, there are genuine issues of material fact
here.
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*fn2 The only other circuit to have discussed
the same issue is the First Circuit. See Hydrogen Technology Corp. v.
United States, 831 F.2d 1155, 1162 n.6 (1st Cir.
1987), cert. denied, 486 U.S. 1022, 100 L.
Ed. 2d 227 , 108 S. Ct. 1995 (1988). The
First Circuit has expressed no view, however, on the burden of proof
question. It is, of course, "well-established law that . . .
jurisdictional defenses cannot be waived by the parties and may be raised
for the first time on appeal or even raised by a court sua sponte." Id. ;
accord Roberts v. United States, 887 F.2d 899, 900
(9th Cir. 1989).
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*fn3 Two district courts have applied the Sixth
Circuit's rule in Carlyle that the government bears the burden to prove
the applicability of an exception to the FTCA in order to defeat
jurisdiction. See Martinez v. United States, 740 F. Supp. 399, 401 (D.S.C. 1990) ("Once the plaintiff has established a
prima facie case of applicability of the FTCA, the burden shifts to the
government to prove that an act is excepted by 28 U.S.C. § 2680.");
Bergman v. United States, 565 F. Supp. 1353, 1404-05
(W.D. Mich. 1983). Two district courts have placed the burden on the
plaintiff. Waymire v. United States, 629 F. Supp. 1396, 1397 (D. Kan. 1986); Porter v. United States,
619 F. Supp. 137, 142 (S.D. Ohio 1985). Curiously,
Porter is a district court case from the Sixth Circuit that was decided
after Carlyle.
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*fn4 In its petition for rehearing, the
government argues that our holding that the United States bears the
ultimate burden of proof is inconsistent with United States v. Gaubert, 113 L. Ed. 2d 335, 111 S. Ct. 1267, 1275 (1991). We disagree. In Gaubert, the Court indicated
that a plaintiff must advance a claim that is facially outside the
discretionary function exception in order to survive a motion to dismiss.
The framework that the Seventh Circuit articulated in Carlyle and that we
adopt here is consistent with the Court's analysis. See Carlyle, 674 F.2d at 556 ("Only after a plaintiff has
successfully invoked jurisdiction by a pleading that facially alleges
matters not excepted by § 2680 does the burden fall on the government to
prove the applicability of a specific provision of § 2680."). Gaubert, of
course, did not deal with the burden of proof question.
The government also argues that the plaintiffs' claims should not
survive dismissal on their face. As we explained above, this argument is
foreclosed by Roberts, 887 F.2d at
901.
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*fn5 The government, of course, need not
necessarily prove that a government employee actually balanced economic,
social, and political concerns in reaching his or her decision. Kennewick,
880 F.2d at 1028. Nevertheless, the government must,
at a minimum, prove that the challenged decision was susceptible to such
balancing or that the government employee was entrusted with the
responsibility of conducting such balancing. Berkovitz, 486 U.S.
at 536; Arizona Maintenance, 864 F.2d at 1501; Roberts, 887 F.2d at
901-02.
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*fn6 We express no opinion with respect to the
first prong of the Summers inquiry, i.e., whether the government's actions
in this case are not shielded by the discretionary function exception
because the government officials acted in contravention of a federal
statute, regulation, or policy. The district court's opinion suggests that
this case shares certain similarities with another FTCA case arising from
nuclear testing and currently pending in a Nevada district court. See
Prescott, 724 F. Supp. at 798 (citing Roberts v.
United States, 724 F. Supp. 778 (D. Nev. 1989)). In
Roberts, on remand from our decision discussed above, Roberts,
887 F.2d 899, the district court found that the
government violated Atomic Energy Commission regulations in carrying out
certain aspects of the nuclear tests which resulted in the alleged
injuries. Roberts, 724 F. Supp. at 785-87. As a
result, the court held that it had subject matter jurisdiction over the
suit under the first part of the Summers inquiry. Plaintiffs in this case
argue that the government acted in contravention of its own regulations
just as it did in Roberts and that therefore there is no difference
between Roberts and this case. The government strongly disputes this
contention. If, as plaintiffs contend, the government officials did indeed
violate their own regulations, denial of summary judgment would have been
proper under prong one of the Summers inquiry. Although the district
court's reference to the regulations cited in Roberts suggests that the
court thought certain AEC regulations were applicable here and the
government violated them, see Prescott, 724 F. Supp. at 798, the record is less than clear on this issue. Because we
affirm the order denying the motion for summary judgment under prong two
of the Summers inquiry, however, we decline to address this ambiguity in
the record with respect to prong one of the same
inquiry.
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