959 F.2d 793 (9th Cir. 1992), 90-16758, Prescott v. United States

Docket Nº90-16758.
Citation959 F.2d 793
Party NameKeith L. PRESCOTT, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
Case DateMarch 24, 1992
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 793

959 F.2d 793 (9th Cir. 1992)

Keith L. PRESCOTT, et al., Plaintiffs-Appellees,

v.

UNITED STATES of America, Defendant-Appellant.

No. 90-16758.

United States Court of Appeals, Ninth Circuit

March 24, 1992

Argued and Submitted Oct. 9, 1991.

Mark B. Stern, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Stewart L. Udall, Santa Fe, N.M., Dale Haralson, Haralson, Kinerk & Morey, Tucson, Ariz., Larry C. Johns, Johns & Johns, Las Vegas, Nev., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Nevada.

Before: NORRIS and THOMPSON, Circuit Judges, and EZRA, District Judge. [*]

Page 794

WILLIAM A. NORRIS, Circuit Judge:

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.

I

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:

  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.

  2. Failure to instruct and advise workmen at the Nevada Test Site as to the possible detrimental health effects of radiation exposure.

  3. Failure to provide protective clothing or other apparatus to eliminate, reduce, or minimize the radiation exposure and consequent adverse health effects.

  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.

  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.

  6. Failure to advise the individuals exposed to the extent of their exposures and possible detrimental health effects.

  7. Failure to properly train, supervise, and inform its employees, agents, contractors, and subcontractors in matters concerning radiation containment and radiation health procedures.

  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.

Prescott v. United States, 724 F.Supp. 792, 798-99 (D.Nev.1989).

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 [g]overnment." 28 U.S.C. § 2680(a).

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, 108 S.Ct. 1076, 99 L.Ed.2d 235 (1988) (Atmospheric Testing ), for the proposition that everything the government does in carrying out the nuclear testing program falls within the discretionary function exception.

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, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The court then certified the alleged acts and omissions for trial. After its ruling, the district court granted the government's

Page 795

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.

II

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.

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, 73 S.Ct. 956, 97 L.Ed. 1427 (1953).

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, 73 S.Ct. at 970. 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...

To continue reading

Request your trial
11 practice notes
  • 47 F.Supp.2d 1172 (D.Mont. 1999), CV-95-100, Bear Medicine v. United States
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • 21 de Abril de 1999
    ...for an employee to follow," because the employee has no rightful option but to adhere to the directive. 8 Prescott v. United States, 959 F.2d 793, 798 (9th Cir.1992), quoting, Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If the challenged conduct is not discretionary, the exception does......
  • 7 F.3d 720 (8th Cir. 1993), 92-3382, Appley Bros. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 13 de Outubro de 1993
    ...failure to warn of asbestos hazards not a policy decision protected by the discretionary function exception); Prescott v. United States, 959 F.2d 793, 799 (9th Cir.1992) (summary judgment inappropriate when government failed to adduce any evidence that the specific acts of negligence flowed......
  • 814 F.Supp. 1468 (E.D.Wash. 1992), CR-91-135, Marin v. United States
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of Washington
    • 3 de Setembro de 1992
    ...existence and applicability of the discretionary function exception to the FTCA's general waiver of immunity. Prescott v. United States, 959 F.2d 793 (9th Cir. 1992). The Ninth Circuit utilized the Berkovitz analysis in Kennewick Irrigation Dist., supra, a case arising in this district. The......
  • Munyua v. United States, 011005 CANDC, C-03-04538 EDL
    • United States
    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • 10 de Janeiro de 2005
    ...28 U.S.C. § 2680(a). The defendant bears the burden of proving the discretionary function exception. See Prescott v. United States , 959 F.2d 793, 797, 799 (9th Cir. 1992). The discretionary function exception is designed "to prevent judicial second guessing' of legislative and adminis......
  • Request a trial to view additional results
11 cases
  • 47 F.Supp.2d 1172 (D.Mont. 1999), CV-95-100, Bear Medicine v. United States
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • 21 de Abril de 1999
    ...for an employee to follow," because the employee has no rightful option but to adhere to the directive. 8 Prescott v. United States, 959 F.2d 793, 798 (9th Cir.1992), quoting, Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If the challenged conduct is not discretionary, the exception does......
  • 7 F.3d 720 (8th Cir. 1993), 92-3382, Appley Bros. v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 13 de Outubro de 1993
    ...failure to warn of asbestos hazards not a policy decision protected by the discretionary function exception); Prescott v. United States, 959 F.2d 793, 799 (9th Cir.1992) (summary judgment inappropriate when government failed to adduce any evidence that the specific acts of negligence flowed......
  • 814 F.Supp. 1468 (E.D.Wash. 1992), CR-91-135, Marin v. United States
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of Washington
    • 3 de Setembro de 1992
    ...existence and applicability of the discretionary function exception to the FTCA's general waiver of immunity. Prescott v. United States, 959 F.2d 793 (9th Cir. 1992). The Ninth Circuit utilized the Berkovitz analysis in Kennewick Irrigation Dist., supra, a case arising in this district. The......
  • Munyua v. United States, 011005 CANDC, C-03-04538 EDL
    • United States
    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • 10 de Janeiro de 2005
    ...28 U.S.C. § 2680(a). The defendant bears the burden of proving the discretionary function exception. See Prescott v. United States , 959 F.2d 793, 797, 799 (9th Cir. 1992). The discretionary function exception is designed "to prevent judicial second guessing' of legislative and adminis......
  • Request a trial to view additional results