Allen v. United States

In this action under the Federal Tort Claims Act, see 28 U.S.C. §§ 1346(b), 2401(b), 2671-80, nearly 1200 named plaintiffs have sued the United States, alleging some 500 deaths and injuries as a result of radioactive fallout from open-air atomic bomb tests held in Nevada in the 1950s and 1960s. The district court selected and tried twenty-four “bellwether” claims, in order to find a common framework for the rest. See Allen v. United States, 588 F.Supp. 247, 258 (D.Utah 1984). The court entered final judgment in favor of the government on fourteen of these claims and against the government on nine, leaving one claim outstanding. Id. at 446-47. It then granted a Fed.R.Civ.P. 54(b) motion permitting the government to appeal those claims resolved against it. On appeal the government contends that (1) the “discretionary function” exception in 28 U.S.C. § 2680(a) precludes government liability; (2) the government did not breach any duty owed to the public; (3) the government did not cause plaintiffs’ injuries; and (4) the plaintiffs’ claims were barred by the two-year statute of limitations in 28 U.S.C. § 2401(b). We do not discuss the last three issues, because we agree that the discretionary function exception precludes government liability.

The district court opinion states the facts fully. See Allen, 588 F.Supp. at 337-38, 348-50, 358-404. The authority for federal atomic bomb tests came from the Atomic Energy Act of 1946, Pub.L. No. 585, 60 Stat. 755 (“the 1946 Act”). See Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296 (present version of atomic energy statutes). Under the 1946 Act, the Atomic Energy Commission (AEC) received broad discretionary power to “conduct experiments ... in the military application of atomic energy.” 1946 Act, § 6(a); see 42 U.S.C. § 2121(a) (same authority in present statutes). The AEC was authorized to carry on such experiments “only to the extent that the express consent and direction of the President of the United States has been obtained, which consent and direction shall be obtained at least once each year.” Id. Additionally, the AEC was “authorized and directed to make arrangements ... for ... the protection of health during research and production activities.” 1946 Act, § 3(a). These arrangements were to “contain such provisions to protect health, to minimize danger from explosion and other hazards to life or property ... as [the AEC] may determine.” Id.; see 42 U.S.C. §§ 2012(d)-(e), 2013(d), 2051(d) (similar provisions in present statutes).

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 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 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 acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b). In such suits, the United States is liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Suit is not allowed, however, for any claim

“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 decisions involved in carrying out programs, at lower levels. Plaintiffs argued that while low-level decisions may involve some “judgment,” they do not fall within the discretionary function exception of § 2680(a). See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955) (reference to “operational level” of activity; no immunity found for government failure to operate lighthouse). The district court agreed, basing its finding of government liability squarely on a distinction between high-level and low-level government activity. Allen, 588 F.Supp. at 335-40.

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, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), in which it explicitly rejected distinctions based on the administrative level at which the challenged activity occurred. In Varig, various plaintiffs brought an FTCA suit against the United States, claiming that the Federal Aviation Administration (FAA) had negligently implemented plane inspection and design certification programs, allowing improper flammable materials and a defective heater system to be used to construct a specific Boeing 707 and a specific DeHavilland Dove. The planes in question caught fire and burned, killing most of those on board. The Supreme Court held, however, that the United States was immune from suit. The Court found that the contested FAA actions constituted the performance of a “discretionary function,” exempt under 28 U.S.C. § 2680(a) from potential FTCA liability. 467 U.S. at 819-21, 104 S.Ct. at 2767-68.

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, 104 S.Ct. at 2757-59, 2765-67. The Supreme Court found that each of these actions constituted a discretionary function, immune from suit under § 2680(a):

“ ‘[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, 104 S.Ct. at 2763 (quoting Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-68, 97 L.Ed. 1427 (1953)). The Court emphasized that it is “the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Vang, 467 U.S. at 813, 104 S.Ct. at 2764.

On appeal, plaintiffs contend that the AEC, in planning and conducting its monitoring and information programs, was not making the kind of policy judgments protected by § 2680(a). They point to the general statutory provisions instructing the AEC to consider public health and safety, and claim that these broad congressional directives leave no further room for discretion. We disagree.

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 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. 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.

Government liability cannot logically be predicated on the failure of test-site personnel to go beyond what the operational plans specifically required them to do. If, as the plaintiffs maintain, the AEC delegated “unfettered authority” to a Test Manager and his subordinates to implement public safety programs, this simply compels the conclusion that those officers exercised considerable discretion. Their actions, accordingly, also fall within the discretionary function exception.

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), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985). When the conduct at issue involves the exercise of discretion by a government agency or employee, § 2680(a) preserves governmental immunity “whether or not the discretion involved be abused.” For better or worse, plaintiffs here “obtain their ‘right to sue from Congress [and] necessarily must take it subject to such restrictions as have been imposed.’ ” Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953) (quoting Federal Housing Administration v. Burr, 309 U.S. 242, 251, 60 S.Ct. 488, 493, 84 L.Ed. 724 (1940)).

To be sure, the circumstances in Varig are not identical to those now before us. Most notably, Varig involved the actions of a regulatory agency supervising private individuals. The Court observed in Varig that the discretionary actions of government regulators were at the core of what § 2680(a) was intended to protect. But Varig expressly reaffirmed the earlier Supreme Court decision of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), which found very broad governmental immunity outside a regulatory setting. See Varig, 467 U.S. at 810-14,104 S.Ct. at 2762-64.

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, 73 5. Ct. at 961. As with the AEC bomb-testing program before us here, Congress and the President, in response to international tensions following World War II, had decided on a crash government program — in Dalehite, a program to feed the populations of Korea, Japan, and Germany. Id. at 19-20, 73 S.Ct. at 959-60. 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, 73 S.Ct. at 960. As with the AEC bomb tests, all plans for manufacture, packing, and shipping of the fertilizer in Dalehite were officially approved. Id. at 38-40, 73 S.Ct. at 969-70. The Dalehite plaintiffs, like the present plaintiffs, were unable to point to any instances in which government employees acted negligently in performing specific, mandatory duties. The Dalehite plaintiffs instead argued primarily, just as the present plaintiffs argue here, that at various points the government could have made better plans, and that the government failed to fully investigate the hazards of the dangerous material involved and to fully inform and warn the nearby populace. Id. at 23, 73 S.Ct. at 961.

The Supreme Court in Dalehite found every contested government decision, action, and omission to be the performance of a discretionary function, exempt from suit under § 2680(a): the cabinet-level decision to export the fertilizer, the lower-level failure to fully test for explosive properties, the Field Director’s fertilizer production plan, the actual production of the fertilizer in accordance with the government specifications, and the specific decisions to bag the fertilizer at a certain temperature and to label the fertilizer in a certain way. Id. at 24, 36-42, 73 S.Ct. at 962, 968-71. The various actions and omissions of the Coast Guard, supervising the actual loading of the ships, were also exempted, as was the general failure to warn the nearby populace of potential dangers. Id. at 23-24, 43, 73 S.Ct. at 961-62, 971.

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, 467 U.S. at 810-14,104 S.Ct. at 2762-64. Given the Court’s holding in Dalehite, reaffirmed in Vañg, we must conclude that the government is immune from liability for the failure of the AEC administrators and employees to monitor radioactivity more extensively or to warn the public more fully than they did.

In the instant case, no evidence was presented of any act or omission of the AEC or its employees that clearly contravened a specific statutory or regulatory duty, or that exceeded statutory or regulatory authority. There was no evidence, for example, that the Test Information Officer failed to release information he was required to give out, or that the Radsafe Officer failed to take a specific radiation measurement that had been decided upon. Plaintiffs’ entire case rests on the fact that the government could have made better plans. This is probably correct, but it is insufficient for FTCA liability.

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 economic judgments of an agency.” 467 U.S. at 814, 104 S.Ct. at 2764. The bomb-testing decisions made by the President, the AEC, and all those to whom they were authorized to delegate authority in the 1950s and 1960s, were among the most significant and controversial choices made during that period. The government deliberations prior to these decisions expressly balanced public safety against what was felt to be a national necessity, in light of national and international security. However erroneous or misguided these deliberations may seem today, it is not the place of the judicial branch to now question them.

For the above reasons, we find all challenged actions surrounding the government atomic bomb tests in the 1950s and 1960s to be immune from suit, as the performance by a federal agency of a “discretionary function,” protected by § 2680(a).

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.

. 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 various radiation safety plans, public information plans, and related documents” disclosed the "astounding fact" that no concerted effort was made "to directly monitor and record internal contamination or dosage in off-site residents on a comprehensive person-specific basis.” Allen, 588 F.Supp. at 373-74.

. In the one instance which suggested that a subordinate contradicted an official direction by a superior, the district court quoted at length from a document which it characterized as a modification or redetermination of AEC policy regarding off-site exposure levels by personnel at the “NTS operational level.” Allen, 588 F.Supp. at 385-86. But the district court was actually quoting from the official Operations Plan for the RANGER test series which had been annexed as an appendix to the Rad-Safe Group's after-series report. Def. Ex. 88 at 66, 69.

. 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, - U.S. -, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987):

“The critical error in the trial court’s analysis is in its conclusion that because the evidence does not show that the departmental policymakers evaluated the pros and cons of requiring that a warning be given concerning the rollover propensity of the jeep and then made a discretionary decision not to give such warnings, it therefore follows that no discretionary decision, of the kind contemplated by § 2680(a), was made____

Stated otherwise, even the negligent failure of a discretionary government policymaker to consider all relevant aspects of a subject matter under consideration does not vitiate the discretionary character of the decision that is made.

Indeed, it is, in part, to provide immunity against liability for the consequences of negligent failure to consider the relevant, even critical, matters in discretionary decisionmaking that the statutory exception exists. If it were otherwise, a judgment-based policy determination made at the highest levels, to which all would concede that the statutory exception applies (the decision to sell surplus jeeps), would result in no immunity if the decision could be shown to have been made without consideration of important, relevant factors, or was a decision negligently reached. If that reasoning were sound, the discretionary function exception would be inapplicable in every case in which a negligent ‘failure to consider' a relevant risk could be proved.”

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).

. Plaintiffs rely heavily upon an AEC policy report accepting responsibility for reimbursing radiation-caused losses. We cannot treat such an agency statement as waiving the "discretionary function” exclusion Congress placed in the FTCA. The existence of an administrative claims system does not constitute a waiver of sovereign immunity. See United States v. Shearer, 473 U.S. 52, 58 n. 4, 105 S.Ct. 3039, 3043 n. 4, 87 L.Ed.2d 38 (1985); Feres v. United States, 340 U.S. 135, 144-45, 71 S.Ct. 153, 158, 95 L.Ed. 152 (1950).

. The Court in Dalehite approved a series of earlier lower court interpretations of § 2680(a), which the Court stated were generally "in conformity with our holding.” Dalehite, 346 U.S. at 36 n. 32, 73 S.Ct. at 968 n. 32. The cited cases demonstrate the Court’s intent in Dalehite to include extremely low-level and mundane decisions and implementations of decisions within the discretionary function exception of § 2680(a). See, e.g., Toledo v. United States, 95 F.Supp. 838, 839, 841 (D.P.R.1951) (suit over car damage caused by tree at government facility falling on car; court holds that § 2680(a) bars recovery for failure to remove diseased experimental tree, but notes that negligent removal of tree might not be exempt); Olson v. United States, 93 F.Supp. 150, 152-53 (D.N.D.1950) (suit for property damage caused by questionable discretionary decision of government employees to release flood waters from dam; court holds that § 2680(a) bars recovery).

. We have previously followed the command of the Supreme Court in Vang. See Russell v. United States, 763 F.2d 786, 787 (10th Cir.1985) (no government FTCA liability possible, for failure of federal mine inspectors to more fully inspect Utah coal mine). Most of the post- Vang decisions of the other circuits are in accord with our holding today. See, e.g., Myslakowski v. United States, 806 F.2d 94, 97-99 (6th Cir.1986) (no liability for Postal Service decision to sell used jeeps, without warning buyers of jeep propensity to tip over), cert. denied, — U.S. -, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987); Ford v. American Motors Corp., 770 F.2d 465, 466-68 (5th Cir.1985) (same); Smith v. Johns-Manville Corp., 795 F.2d 301, 306-09 (3d Cir.1986) (no liability for GSA decision to sell asbestos without warning of hazards); Merklin v. United States, 788 F.2d 172, 174-75 (3d Cir.1986) (no liability for AEC inspectors’ failure to warn uranium processing plant employees of health hazards discovered during AEC inspections); Ostera v. United States, 769 F.2d 716, 718 (11th Cir.1985) (no liability for FBI decision to obtain release of particular person from prison to use as informant); Begay v. United States, 768 F.2d 1059, 1066 (9th Cir.1985) (no liability for U.S. Public Health Service failure to warn uranium miners of radiation hazards); Cisco v. United States, 768 F.2d 788, 789-90 (7th Cir.1985) (no liability for EPA failure to warn residents of landfill dirt contaminated with dioxin); Baxley v. United States, 767 F.2d 1095, 1097-98 (4th Cir.1985) (no liability for FAA failure to regulate "ultralight” aircraft); Shuman v. United States, 765 F.2d 283, 291 (1st Cir.1985) (no liability for Navy failure to warn shipyard workers of asbestos hazards); Hylin v. United States, 755 F.2d 551, 554 (7th Cir.1985) (no liability for federal mine inspectors’ failure to fully inspect clay mine); Feyers v. United States, 749 F.2d 1222, 1227 (6th Cir.1984) (no liability for Army’s failure to inspect Chrysler’s operation of government-owned railyard), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985); General Public Utilities Corp. v: United States, 745 F.2d 239, 247 (3d Cir.1984) (no liability for Nuclear Regulatory Commission’s failure to warn of possible equipment defects at the Three Mile Island nuclear facility), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985); Flammia v. United States, 739 F.2d 202, 204 (5th Cir.1984) (no liability for INS’s "specific operational decision” to permit a Cuban refugee known to be a convicted felon to enter the United States). But see Aslakson v. United States, 790 F.2d 688, 691-94 (8th Cir.1986) (FTCA liability possible for government agency’s failure to comply with its own already established safety policy); Henderson v. United States, 784 F.2d 942, 943 n. 2 (9th Cir.1986) (FTCA liability possible, for government missile facility safety decision not made “at the planning stage," but "operational in nature"); Collins v. United States, 783 F.2d 1225, 1228-31 (5th Cir.1986) (FTCA liability possible, for failure of Mine Safety and Health Administration to close mine, when challenged decisions of subordinates did not involve "policy" decisions, or involved only explicit mandatory duties); Alabama Electric Cooperative v. United States, 769 F.2d 1523, 1526-29 (11th Cir.1985) (FTCA liability possible, for "operational” decisions of Army Corps of Engineers in constructing river dikes).