Allen v. United States, Civ. No. C 79-0515.

• Citation: 527 F. Supp. 476
• Decision Date: 21 August 1981
• Docket Number: Civ. No. C 79-0515.
• Parties: Irene H. ALLEN, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Utah

527 F. Supp. 476

Irene H. ALLEN, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. C 79-0515.

United States District Court, D. Utah, C. D.

August 21, 1981.

COPYRIGHT MATERIAL OMITTED

Dale Haralson, Haralson, Kinerk & Morey, Tucson, Ariz., Stewart L. Udall, Phoenix, Ariz., Wayne Owens, Parsons, Behle & Latimer, Salt Lake City, Utah, J. MacArthur Wright, Atkin & Wright, St. George, Utah, Duncan, Weinberg, Palmer & Miller, Washington, D. C., for plaintiffs.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Bruce E. Titus, Asst. Director, Pamela A. Hornett, Deborah C. Ratner, William R. Herman, Trial Attys., U. S. Dept. of Justice, Civ. Div., Henry A. Gill, Jr., Deputy Asst. Gen. Counsel for General Litigation, U. S. Dept. of Energy, Washington, D. C., Ralph B. Johnson, Asst. U. S. Atty., Salt Lake City, Utah, for defendant.

MEMORANDUM OPINION and ORDER

JENKINS, District Judge.

The above-entitled action was brought by nearly 1,000 persons against the United States government for injuries alleged to have been individually sustained as a result of the government's program of open-air testing of nuclear weapons at its Nevada Test Site conducted from 1951 through 1962. The plaintiffs, residents of Utah, Nevada and Arizona, assert broad allegations of negligence on the part of federal agencies and personnel in the conduct of the testing program, including breach by the government of an alleged continuing duty to conduct the tests in a manner that was reasonably safe to life and property, to warn persons in affected communities, including the plaintiffs, of the risks and potential consequences of exposure to radioactive fallout generated by the tests, and to take adequate precautions to minimize or eliminate exposure of civilians to harmful fallout radiation. This action was filed in this Court pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

On April 27, 1981, the defendant filed two motions to dismiss the complaint for want of subject-matter jurisdiction. See Rule 12(b)(1), Federal Rules of Civil Procedure. The first motion asserts that this Court lacks jurisdiction of the plaintiffs' claims on the ground that they all allege injuries resulting from governmental conduct that comes within the scope of 28 U.S.C. § 2680(a), the discretionary function exception to the Federal Tort Claims Act.¹ The second motion asserts that the plaintiffs' claims "accrued" more than two years before any action was taken pursuant to the Federal Tort Claims Act and are therefore barred by the applicable statute of limitations, 28 U.S.C. § 2401(b).²

The parties filed extensive memoranda, including voluminous attachments and exhibits.³ On June 4, 1981, the motions to dismiss came on for hearing before this Court. This Court, having heard and considered the arguments of learned counsel on both sides, having reviewed the documentation and memoranda submitted by the parties, and having given attention to the applicable legal authorities, now rules on the defendant's motions to dismiss as follows:

I. THE DISCRETIONARY FUNCTION EXCEPTION

The discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), has been the subject of extensive litigation and of professional and scholarly comment. See e. g., Reynolds, "The Discretionary Function Exception of the Federal Tort Claims Act," 57 Georgetown Law Journal 81 (1968); Annot., 37 A.L.R. Fed. 537 (1978); Annot., 36 A.L.R. Fed. 240 (1978); Annot., 35 A.L.R. Fed. 481 (1977); Annot., 99 A.L.R.2d 1016 (1965). Of the exceptions to the Government's waiver of sovereign immunity under the Federal Tort Claims Act, the discretionary function exception has by far the greatest potential for repeated and varied application. The other exceptions bar litigation by certain classes of plaintiffs or the adjudication of specific categories of claims. The discretionary function exception compels an examination of the intrinsic nature of the Government's conduct, no matter who the plaintiff is or what interest the plaintiff asserts has been injured by that conduct.

Read broadly, the discretionary function exception may easily swallow the rule; the stopping of a government truck at a highway stop sign involves choice, judgment, assessment of risks — discretion in the broadest sense.^3A Clearly the courts must sort the intrinsically discretionary from the truly operational if the Federal Tort Claims Act is to have any meaningful application at all.

The initial outline of the reach of the exception was traced by the United States Supreme Court in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), involving claims arising from the cataclysmic explosion of shiploads of government fertilizer at Texas City, Texas. In Dalehite, the Supreme Court held the plaintiffs' claims against the United States for negligent planning and handling of the fertilizer shipment to be encompassed within the discretionary function exception. Justice Reed couched this finding in broad terms:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "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.

Id., 346 U.S. at 35-36, 73 S.Ct. at 967-68 (emphasis added).

Since Dalehite the federal courts have struggled repeatedly to formulate a principled analysis of governmental conduct that will effectively guide the application of the discretionary function exception, see, e. g., Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978), and cases cited therein; Jackson v. Kelly, 557 F.2d 735, 737 (10th Cir. 1977), while remaining consistent with the broad language of Dalehite. See Barton v. United States, 609 F.2d 977, 979 (10th Cir. 1979) ("The basic authority is Dalehite v. United States, ..."). No "precise litmus paper test," Payton v. United States, 636 F.2d 132, 143 (5th Cir. 1981), has yet emerged. See, e. g., Baird v. United States, 653 F.2d 437, 441-42 (10th Cir. 1981).

Instead, the courts have looked to the policies underlying the discretionary function exception and have balanced those against the policies served by the Federal Tort Claims Act. As the United States Court of Appeals for the Fifth Circuit pointed out in Payton v. United States, 636 F.2d 132 (5th Cir. 1981), "The crux of the concept embodied in the discretionary function exception is that of separation of powers." Id. at 143 (footnote omitted). Judge Becker in Blessing v. United States, 447 F.Supp. 1160, 1170 (E.D.Pa.1978) skillfully elaborates on this notion:

Read as a whole and with an eye to discerning a policy behind this provision, it seems to us only to articulate a policy of preventing tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government and of protecting "the Government from liability that would seriously handicap efficient government operations," United States v. Muniz, 374 U.S. 150, 163 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 ... Statutes, regulations, and discretionary functions, the subject matter of § 2680(a), are, as a rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions. Rather the judiciary confines itself ... to adjudication of facts based upon discernible objective standards of law. In the context of tort actions, ... these objective standards are notably lacking when the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political, or economic decisions.

Id., 447 F.Supp. at 1170 (footnotes omitted and emphasis added).⁴

This concern for the non-justiciability of questions of political, social or economic policy, a concern long-recognized under traditional separation of powers principles, finds some reflection in the legislative history of the discretionary function exception, see e.g., Hearings on H.R. 5373 and 6463, House Committee on the Judiciary, 77th Cong., 2d Sess., at 29 (1942) (Statement of Francis M. Shea), and in the Supreme Court's initial construction of the exception in Dalehite v. United States, supra, 346 U.S. at 34, 73 S.Ct. at 967 ("The `discretion' protected by the section ... is the discretion of the executive or administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law." footnote omitted). In Dalehite, Justice Reed attempted to define the limits of protected discretion through reference to the "planning" level as opposed to the "operational" level of government activity; conduct at the planning level is discretionary and therefore immune, conduct at the operational level is not. Dalehite, however, gives little transferable guidance in determining where "planning" stops and "operations" begin. Some light was shed upon the subject by the Supreme Court in its subsequent decision in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), involving alleged negligence by the Coast Guard in the operation of a coastal lighthouse. In Indian Towing, Justice Frankfurter's opinion for the majority distinguished Dalehite and held the Government liable for its alleged negligence:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due

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