Lead Opinion
In this action under the Federal Tort Claims Act, see 28 U.S.C. §§ 1346(b), 2401(b), 2671-80, nеarly 1200 named plaintiffs have sued the United States, alleging some 500 deaths and injuries as a result of radioactive fallout from open-air atomic bomb tests held in Nevada in the 1950s and 1960s. The district court selected and tried twenty-four “bellwether” claims, in order to find a common framework for the rest.
The district court opinion states the facts fully. See Allen,
In 1950 the AEC chose an area in Nevada as a testing site. The President approved this choice. Thereafter, between 1951 and 1962, eight series of open-air tests were conducted, with the President approving each series of tests. Over one hundred atomic bombs were detonated.
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 Tеst 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,
The Federal Tort Claims Act (FTCA) authorizes suits for damages against the United States
“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*1420 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.”
28 U.S.C. § 1346(b). In such suits, the United States is liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Suit is not allowed, however, for any claim
“based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."
28 U.S.C. § 2680(a) (emphasis added). The key term, “discretionary function,” is not defined. For over thirty-five years the federal courts have been attempting to define it.
Plaintiffs in the present case attempted to distinguish between the discretionary initiation of government programs, at the highest levels of administration, and the dеcisions involved in carrying out programs, at lower levels. Plaintiffs argued that while low-level decisions may involve some “judgment,” they do not fall within the discretionary function exception of § 2680(a). See, e.g., Indian Towing Co. v. United States,
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),
The plaintiffs in Varig focused on “low-level” decisions in their suit. They challenged the actual issuance by the FAA оf 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.
“ ‘[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,
On appeal, plaintiffs contend that the AEC, in planning and conducting its monitoring and information programs, was not making the kind of policy judgments protected by § 2680(a). They point to the general statutory provisions instructing the AEC to consider public health and safety, and claim that these broad congressional directives leave no further room for discrеtion. We disagree.
In the case before us, as in Vañg, 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 Vañg it was left to the Secretary of Transportation and the FAA, to decide exactly how to protect public safety. If anything, the obligation imposed on the FAA to protect public safety was greater and the discretion granted to the FAA by Congress was less, in the circumstances reviewed by Vañg, than the comparable obligation imposed and discretion available to the AEC in the present case. Compare 49 U.S.C. § 1421 (FAA safety duty) with 42 U.S.C. § 2051(d) (AEC safety duty). We cannot say that what was protected by the Supreme Court in Varig is now subject to liability.
Plaintiffs further contend that, even if the initial discretion granted the AEC by statutе 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.
Government liability cannot logically be predicated on the failure of test-site personnel to go beyond what the operational plans specifically required them to do. If, as the plaintiffs maintain, the AEC delegated “unfettered authority” to a Test Manager and his subordinates to implement public safety рrograms, 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,
To be sure, the circumstances in Varig are not identical to those now before us. Most notably, Varig involved the actions of a regulatоry agency supervising private individuals. The Court observed in Varig that the discretionary actions of government regulators were at the core of what § 2680(a) was intended to protect. But Varig expressly reaffirmed the earlier Supreme Court decision of Dalehite v. United States,
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.
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,
The Supreme Court in Dalehite found every contested government decision, action, and omission to be the performance of a discretionary function, exempt from suit under § 2680(a): the cabinet-level decision to export the fertilizer, the lower-level failure to fully test for explosive properties, the Field Director’s fertilizer production plan, the actual production of the fertilizer in accordance with the government specificаtions, and the specific decisions to bag the fertilizer at a certain temperature and to label the fertilizer in a certain way. Id. at 24, 36-42,
In Vañg, the Supreme Court approved the view of § 2680(a) expressed in Dalehite, strongly rejecting any suggestion that later cases had narrowed the broad immunity found there. Vañg,
Our decision here adheres to the principle enunciated by the Supreme Court of broad sovereign immunity. An inevitable consequence of that sovereign immunity is that the United States may escape legal responsibility for injuries that would be compensible if caused by a private party. There remain administrative and legislative remedies; we note the express authorization under 42 U.S.C. § 2012(i) for the government to make funds available for damages suffered by the public from nuclear incidents. Nonetheless, judicial reluctance to recognize the sometimes harsh principle of sovereign immunity explains much of the tangle of the prior FTCA cases.
The' Court stated in Varig that the purpose of § 2680(a) was to avoid any judicial intervention that “would require the courts to ‘second-guess’ the political, social, and ecоnomic judgments of an agency.”
For the above reasons, we find all challenged actions surrounding the government atomic bomb tests in the 1950s and 1960s to be immune from suit, as the perfоrmance by a federal agency of a “discretionary function,” protected by § 2680(a).
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.
Notes
. The trial lasted thirteen weeks. The trial transcript runs more than 7,000 pages; the exhibit evidence more than 54,000 pages. The district court deliberated for seventeen months, then issued an opinion which occupies 225 pages of the Federal Supplement.
. In 1974, the AEC was abolished and its functions transferred to the Nuclear Regulatory Commission and the Energy Research and Development Administration. Energy Reorganization Act of 1974, Pub.L. No. 93-438, 88 Stat. 1233.
. The district court stated that its review of "the vаrious radiation safety plans, public information plans, and related documents” disclosed the "astounding fact" that no concerted effort was made "to directly monitor and record internal contamination or dosage in off-site residents on a comprehensive person-specific basis.” Allen,
. In the one instance which suggested that a subordinate contradicted an official direction by a superior, the district court quoted at length from a document which it characterized as a modification or redetermination of AEC policy regarding off-site exposure levels by personnel at the “NTS operational level.” Allen,
. It is also irrelevant whether the alleged failure to warn was a matter of “deliberate choice,” or a mere oversight. See Allen,
“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 otherwisе, 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 tо 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,
. Plaintiffs rely heavily upon an AEC policy report accepting responsibility for reimbursing radiation-caused losses. We cannot treat such an agency statement as waiving the "discretionary function” exclusion Congress placed in the FTCA. The existence of an administrative claims system does not constitute a waiver of sоvereign immunity. See United States v. Shearer,
. The Court in Dalehite approved a series of earlier lower court interpretations of § 2680(a), which the Court stated were generally "in conformity with our holding.” Dalehite,
. We have previously followed the command of the Supreme Court in Vang. See Russell v. United States,
Concurrence Opinion
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 Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1982) (FTCA), many people, as well as the lower federal courts, assumed that the old governmental immunity from responsibility for negligent conduct that injures individual citizens was gone. Many endorsed what appeared to be the FTCA’s policy that if the citizens at large benefited from a government program, that collective citizenry, not the isolated individual injured by the negligent conduct of the program, would bear the economic burden of that injury. This case dramatically illustrates that, as interpreted by the Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Air
When Congress decided to employ above-ground testing, it repeatedly evinced the general intent that the tests should be conducted so as not to jeopardize the health and safety of the population downwind.
Based on ample evidence, the trial court found that the people who designed the downwind safety program deviated from optimum practices based on the best available scientific knowledge. On a fully supported record, the trial court found the following deviations in the plans which would clearly support liability for injury under standard tort analysis as applied by the trial court: the decision to monitor randomly rather than on a “comprehensive, person-specific basis,” Allen v. United States,
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. The critical analysis dealt with Congress’ decision in the FTCA to exempt from liability those government acts broadly and vaguely described as “discretionary functions.” See 28 U.S.C. § 2680(a).
At the time of the trial court’s decision, the leading construction of that provision by the Supreme Court was Dalehite v. United States,
Since the appeal was lodged in this case, the Supreme Court decided Varig Airlines. That opinion removed all doubt as to whether the discretionary function exception is to be construed broadly or narrowly. In Varig the Court explicitly denounced both the increasingly narrow construction given the exception since Dalehite and the interpretation of Dalehite that focused on the bureaucratic level of the decision maker. The Court stated, “[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function applies in a given case.” Varig Airlines,
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 аutomobile 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.
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 there 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,
While we have great sympathy for the individual cancеr 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
. See The Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 and The Atomic Energy Act of 1954, ch. 1073, 68 Stat. 921 (codified as amended at 42 U.S.C. §§ 2011-2296 (1982 & Supp. Ill 1985)). For detailed discussion of the two act's safety provisions, see Allen v. United States,
. If the evidence had demonstrated such deviation or negligent implementation, neither Varig Airlines nor Dalehite would bar our review. Both those cases confirm that conformity to a discretionary plan insulates the governmental action from review. See Dalehite,
. At one point in their brief,- plaintiffs state that the test manager “authorized [the radsafety] officers to go beyond the information radsafety plans.” Brief for the Appellee at 57. In other words, the test manager authorized the officers to deviate from the plan. Plaintiff argues that because the officers were so authorized, their failure to deviate from the plan subjects the Government to liability. This reasoning is at direct odds with Varig Airlines and Ddlehite. See supra note 2. It is just such deviation from a discretionary plan that can deprive the action of the protection of the discretionary function exception.