Irеne H. ALLEN, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
No. 84-2126.
United States Court of Appeals, Tenth Circuit.
April 20, 1987.
816 F.2d 1417
Dale Haralson of Haralson, Kinerk & Morey, Tucson, Ariz., and Ralph E. Hunsaker of O‘Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz. (Denneen L. Peterson of Haralson, Kinerk & Morey, David M. Bell and Scott E. Boehm of O‘Connor, Cavanagh, Anderson, Westover, Killingsworth & Beashears, Stewart L. Udall of Beer and Toone, Phoenix, Ariz., J. MacArthur Wright of Wright & Miles, St. George, Utah, with them on the brief), for plaintiffs-appellees.
Before McKAY, SETH, and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
In this action under the
The district court opinion states the facts fully. See Allen, 588 F.Supp. at 337-38, 348-50, 358-404. The authority for federal atomic bomb tests came from the Atomic Energy Act of 1946, Pub.L. No. 585, 60 Stat. 755 (“the 1946 Act“). See
In 1950 the AEC chose an area in Nevada as a testing site. The President approved this choice. Thereafter, between 1951 and 1962, eight series of open-air tests were conducted, with the President approving each series of tests. Over one hundred atomic bombs werе detonated.
Each test explosion was executed according to detailed plans which the AEC officially reviewed and adopted. Separate plans for protecting the public, and for providing the public with appropriate information, were also adopted by the AEC. To actually execute the plans, however, the AEC delegated some of its authority. The AEC selected a “Test Manager” for each test series, who had some day-to-day discretion. The Test Manager could, for example, postpone a given test because of adverse weather conditions. The Test Manager in turn delegated authority to a Radiological Safety Officer (a “Radsafe Officer“) who was in charge of implementing plans to avoid radiation dangers, and a Test Information Officer who was in charge of implementing plans to provide public information on the tests. Both the Radsafe Officer and the Test Information Officer also had some day-to-day discretion in performing their duties.
At trial, as a basis for governmental liability, plaintiffs singled out the alleged failure of the government, especially of the Radsafe Officers and the Test Information Officers, to fully monitor offsite fallout exposure and to fully provide needed public information on radioactive fallout. The district court focused on these two failures in finding government liability. Allen, 588 F.Supp. at 372-404.
The
“for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while act-
ing within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
“based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to еxercise 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.”
Plaintiffs in the present case attempted to distinguish between the discretionary initiation of government programs, at the highest levels of administration, and the decisions involved in carrying out programs, at lower levels. Plaintiffs argued that while low-level decisions may involve some “judgment,” they do not fall within the discretionary function exception of
After the district court judgment in the present case, the Supreme Court decided United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984), in which it explicitly rejected distinctions based on the administrative level at which the challenged activity occurred. In Varig, various plaintiffs brought an FTCA suit against the United States, claiming that the Federal Aviation Administration (FAA) had negligently implemented plane inspection and design certification programs, allowing improper flammable materials and a defective heater system to be used tо construct a specific Boeing 707 and a specific DeHavilland Dove. The planes in question caught fire and burned, killing most of those on board. The Supreme Court held, however, that the United States was immune from suit. The Court found that the contested FAA actions constituted the performance of a “discretionary function,” exempt under
The plaintiffs in Varig focused on “low-level” decisions in their suit. They challenged the actual issuance by the FAA of design approval certificates for two plane types, the decision to enforce FAA standards with a particular “spot-check” system, and the actual plane inspections that were and were not carried out under that system. 467 U.S. at 799-803, 816-20. The Supreme Court found that each of these actions constituted a discretionary function, immune from suit under
“‘[T]he “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.‘”
Id. at 811 (quoting Dalehite v. United States, 346 U.S. 15, 35-36 (1953)). The Court emphasized that it is “the nature of
On аppeal, plaintiffs contend that the AEC, in planning and conducting its monitoring and information programs, was not making the kind of policy judgments protected by
In the case before us, as in Varig, the government actors had a general statutory duty to promote safety; this duty was broad and discretionary. In the case before us it was left to the AEC, as in Varig it was left to the Secretary of Transportation and the FAA, to decide exactly how to protect public safety. If anything, the obligation imposed on the FAA to protect public safety was greater and the disсretion granted to the FAA by Congress was less, in the circumstances reviewed by Varig, than the comparable obligation imposed and discretion available to the AEC in the present case. Compare
Plaintiffs further contend that, even if the initial discretion granted the AEC by statute was broad, test site personnel violated the AEC‘s own policy directives by failing to implement adequate protective measures. We cannot accept this argument either. Neither the plaintiffs nor the district court have been able to point to a single instance in which test site personnel ignored or failed to implement specific procedures mandated by the AEC for monitoring and informing the public. Indeed, the district court‘s conclusions appear to be based, at least in part, on perceived inadequacies in the AEC‘s radiological safety and information plans themselves.3 The court relied heavily on a 1954 report to the AEC by the Committee to Study Nevada Proving Grounds which was moderately critical of the measures taken up to that point to inform and warn the public. See Allen, 588 F.Supp. at 386-90, 392-93. The stated objective of this report, however, was “[t]o be a basis for Commission decisions on future policy.” Pl.Ex. at 4. The operational plans the district court considered deficient embody those AEC policy decisions. As such, these plans clearly fall within the discretionary function exception.4
Govеrnment liability cannot logically be predicated on the failure of test-site personnel to go beyond what the operational plans specifically required them to do. If, as the plaintiffs maintain, the AEC delegated “unfettered authority” to a Test Manager and his subordinates to implement public safety programs, this simply compels the conclusion that those officers exercised considerable discretion. Their actions, accordingly, also fall within the discretionary function exception.
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. v. U.S., 745 F.2d 239, 243, 245 (3d Cir. 1984)
To be sure, the circumstances in Varig are not identical to those now before us. Most notably, Varig involved the actions of a regulatory agency supervising private individuals. The Court observed in Varig that the discretionary actions of government regulators were at the core of what
In Dalehite, private plaintiffs sued the government over deaths, injuries, and property damage resulting from a disastrous explosion of two shiploads of ammonium nitrate fertilizer. 346 U.S. at 22-23. As with the AEC bomb-testing program before us here, Congress and the Prеsident, in response to international tensions following World War II, had decided on a crash government program—in Dalehite, a program to feed the populations of Korea, Japan, and Germany. Id. at 19-20. Broad general authority was given to the War Department, and the War Department created a plan for massive fertilizer shipments. The Army‘s Chief of Ordnance was delegated discretionary responsibilities for carrying out the War Department plan, and he in turn appointed a “Field Director of Ammunition Plants” to administer the program. Id. Other lower-level plant managers and supply officers were also appointed.
As with the AEC bomb tests, the production of fertilizer in Dalehite involved a mix of private and public facilities and employees. Id. at 20-21. As with the AEC bomb tests, all plans for manufacture, packing, and shipping of the fertilizer in Dalehite were officially approved. Id.
The Supreme Court in Dalehite found every contested government decision, action, and omission to be the performance of a discretionary function, exempt from suit under
In Varig, the Supreme Court approved the view of
Our decision here adheres to the principle enunciated by the Supreme Court of broad sovereign immunity. An inevitable consequence of that sovereign immunity is that the United States may escape legal responsibility for injuries that would be compensensible if caused by a private party. There remain administrative and legislative remedies; we note the express authorization under
The Court stated in Varig that the purpose of
For the above reasons, we find all challenged actions surrounding the government atomiс bomb tests in the 1950s and 1960s to be immune from suit, as the performance by a federal agency of a “discretionary function,” protected by
We REVERSE the district court‘s decision with regard to those nine claims in which the government was found to have liability and REMAND for further proceedings consistent with this opinion.
McKAY, Circuit Judge, concurring:
It undoubtedly will come as a surprise to many that two hundred years after we threw out King George III, the rule that “the king can do no wrong” still prevails at the federal level in all but the most trivial of matters. After the passage of the
When Congress decided to employ above-ground testing, it repeatedly evinced the general intent that the tests should be conducted so as not to jеopardize the health and safety of the population downwind.1 However, it did not delineate the health and safety measures to be taken. No mention is made of how fallout from open-air testings should be monitored or how the public should be educated regarding the effects of fallout—the two issues litigated in this case. The responsibility for developing defined health and safety plans and for disseminating information was instead delegated to the AEC.
Based on ample evidence, the trial court found that the people who designed the downwind safety program deviated from optimum practices based on the best available scientific knowledge. On a fully supported record, the trial court found the following deviаtions in the plans which would clearly support liability for injury under standard tort analysis as applied by the trial court: the decision to monitor randomly rather than on a “comprehensive, person-specific basis,” Allen v. United States, 588 F.Supp. 247, 374 (D.Utah 1984); decisions not to use thyroid or whole body counters, id. at 375; decisions regarding the limited extent of urine, fecal, and blood sampling, id. at 374; the decision not to test milk samples “in order to avoid arousing public concern,” id. at 375; the decisions to forego internal fallout assessment from inhalation of fallout particles, id. at 376; decisions regarding the extent of follow-up monitoring in downwind communities, id. at 379; the decision to distribute film badges and pocket dosimeters to a select number of residents rather than to every resident, id. at 379-81, 384-85; the decisions regarding duration of monitoring, id. at 381; the deсisions with respect to the quantum of personnel and equipment committed to the monitoring program, id. at 381-82; and the decisions concerning the content and appropriate tone of the information given the public as well as the decisions to use pamphlets and films as the education media, id. at 385-404.
Again, on a fully supported record, the trial court found that these departures from accepted safety standards were the proximate cause of suffering and death from cancer in many of the plaintiffs. Under the then-available legal precedents, the trial court reasonably concluded that the FTCA showed Congress’ intent that the Government, which benefited from the testing, should bear these particular costs. Thе critical analysis dealt with Congress’ decision in the FTCA to exempt from liability those government acts broadly and vaguely described as “discretionary functions.” See
At the time of the trial court‘s decision, the leading construction of that provision by the Supreme Court was Dalehite v. United States, 346 U.S. 15 (1953). Language in Dalehite invited some courts to focus on the bureaucratic level of the decision maker in determining whether the ensuing decision or action was clothed with immunity under the discretionary function exception. Cabinet-level actions were considered clearly of a “planning” nature and thus immune. A vehicular collision resulting from driver negligence involved “operational” action and was not immune. See Dalehite, 346 U.S. at 28, 37. Struggling to give meaning to the elusive terms “discretionary function,” and noting рarticularly the subsequent decisions of the Supreme Court in Rayonier Inc. v. United States, 352 U.S. 315 (1957), and Indian Towing Co. v. United States, 350 U.S. 61 (1955), some courts thought
Since the appeal was lodged in this case, the Supreme Court decided Varig Airlines. That opinion removed all doubt as to whether the discretionary function exception is to be construed broadly or narrowly. In Varig the Court explicitly denounced both the increasingly narrow construction given the exception since Dalehite and the interpretation of Dalehite that focused on the bureaucratic level of the decision maker. The Court stated, “[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary functiоn applies in a given case.” Varig Airlines, 467 U.S. at 813. It breathed vitality into Dalehite by selectively quoting language other than the planning/operational language most often cited previously: “Where there is room for policy judgment and decision there is discretion.” Id. at 811 (quoting Dalehite, 346 U.S. at 36). The Court thus shifted the discretionary function inquiry back toward examining the nature and character of the governmental action to determine whether it is of the type intended to be protected from tort liability by Congress. Those decisions “grounded in social, economic, and political policy,” id. at 814, are insulated from our review, regardless of who the decision maker happens to be or how negligent the decision or action may be.2
The majority opinion fully deals with the Supreme Court‘s focus in Varig Airlines. It is sufficient here to note that the focus is on the nature of the planning or decision making rather than on the level at which that planning or its implementation takes place. While that may create analytical problems even in automobile accident cases where the driver is left to “plan” how to drive and carry out his mission in the most economic fashion, both the facts and language of Varig easily cover the facts of this case. Varig involved an allegedly faulty safety inspection program for aircraft. The factual parallel to the safety programs at issue here cannot be distinguished on a principled basis. Varig Airlines gives little help to lower courts applying the new standard to specific facts—if the FTCA waiver of immunity indeed applies to anything but trivial government failures, such as automobile accidents. Nonetheless, it removes all doubt that the discretionary function exception swallows the negligent decisions before us.
The AEC devised safety and information plans prior to every open-air detonation, tailoring the plans to the demands of each specific project. None of the trial court‘s documented list of failures represents an instance of deviation from, or negligent implementation of, the safety and information plans adopted. Rather, the court‘s extensive criticisms and ultimate conclusions of negligence were directed at the substance and failures of the plans themselves.
On appeal, plaintiffs do assert that “the evidence clearly demonstrates negligent and wrongful failure to execute and deviation from ... the plans approved by the Commission.” Brief for the Appellee at 22 (emphasis in original). However, the evidence does not support this allegation.
In arguing that the safety and information plans themselves are not immune from our review under the discretionary function exception, plaintiffs contend:
Where Congress has placed a mandatory duty upon the government to protect public health and safety, such as it did upon the Commission, it left no room for further policy-making regarding public safety. Where there is not policy-making thеre is no “discretion” within the meaning of
28 U.S.C. § 2680(a) and no immunity.
Id. at 13. Essentially, they assert that because the two Atomic Energy Acts demonstrate a concern for public health and safety, even though no specific health and safety measures are mandated therein, the safety plans devised to address that concern involved no social, economic, or political policy making.
On the contrary, the broad safety language of the Atomic Energy Acts had to be translated into concrete plans, and that translation involved the very essence of social, economic, and political decision making—the precise policy choices protected by the discretionary function exception. See General Pub. Util. Corp. v. United States, 745 F.2d 239, 244 (3d Cir. 1984) (meаns chosen by Nuclear Regulatory Commission to fulfill its broad statutory duty to review safety of nuclear facilities protected by discretionary function exception), cert. denied, 469 U.S. 1228 (1985). These decisions concerned choices involving the social psychology of how best to inform without alarming residents, the most cost-effective way of using public funds to monitor fallout levels, and how best to use a finite number of personnel. In short, they required the AEC “to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding.” Varig Airlines, 467 U.S. at 820. While those choices deviated from the standards against which liability is measured where liability is availаble, Congress’ determination to retain government immunity for “discretionary functions,” as understood post-Varig Airlines, puts those choices beyond our ability to review and puts compensation for injury to individuals stemming from those choices beyond our power to order.
While we have great sympathy for the individual cancer victims who have borne alone the costs of the AEC‘s choices, their plight is a matter for Congress. Only Congress has the constitutional power to decide whether all costs of government activity will be borne by all the beneficiaries or will continue to be unfairly apportioned, as in this case. Until Congress amends the discretionary function exception to the FTCA or passes a specific relief bill for individual victims, we have no choice but to leave them uncompensated. I must therefore concur in the majority opinion which has carefully reviewed and applied the controlling law to the facts of this case.
LOGAN
UNITED STATES CIRCUIT JUDGE
Notes
Id. at 97-98. Accord In re Consolidated United States Atmospheric Testing Litigation, 616 F.Supp. 759, 776–77 (N.D.Cal. 1985).“The critical error in the trial court‘s analysis is in its conclusion that because the evidence does not show that the departmental policymakers evaluated the pros and cons of requiring that a warning be given concerning the rollover propensity of the jeep and then made a discretionary decision not to give such warnings, it therefore follows that no discretionary decision, of the kind contemplated by § 2680(a), was made....
Stated otherwise, even the negligent failure of a discretionary government policymaker to consider all relevant aspects of a subject matter under consideration does not vitiate the discretionary character of the decision that is made.
Indeed, it is, in part, to provide immunity against liability for the consequences of negligent failure to consider the relevant, even critical, matters in discretionary decisionmaking that the statutory exception exists. If it were otherwise, a judgment-based policy determination made at the highest levels, to which all would concede that the statutory exception applies (the decision to sell surplus jeeps), would result in no immunity if the decision could be shown to have been made without consideration of important, relevant factors, or was a decision negligently reached. If that reasoning were sound, the discretionary function exception would be inapplicable in every case in which a negligent ‘failure to consider’ a relevant risk could be proved.”