Barnson v. U.S., No. 85-2470
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before McKAY and BALDOCK, Circuit Judges, and BROWN; BALDOCK |
| Citation | 816 F.2d 549 |
| Decision Date | 17 April 1987 |
| Docket Number | No. 85-2470 |
| Parties | Sylvia BARNSON, surviving wife, Rodney E. Barnson, Randy D. Barnson, Eldora Barnson Johnson, John Steve Barnson, Julia Mae Barnson Wise, and Maida Barnson Simms, surviving children, heirs of Earl S. Barnson, deceased; Vonda L. Cropper, surviving wife, Helen E. Cropper, surviving wife, Helen E. Cropper Davis, Janice Cropper Peterson, William D. Cropper, Charles L. Cropper, and Lorraine Cropper Harris, surviving children, heirs of William E. Cropper, deceased; Eva Dean Hanson, surviving wife, Clyde E. Hanson, David B. Hanson and Shane Hanson, surviving children of Byron Hanson, deceased; Maurine Pitts, surviving wife of Elbert Pitts, deceased, Rowena Anderson, surviving wife, Byron Anderson, Terral Anderson, and Robert Mellor, surviving children, heirs of Byron Anderson, deceased; Leola Christensen, surviving wife, Alvin Christensen, Karl Christensen, Neil Christensen, and Colleen Peterson, surviving children, heirs of Alvin Christensen, deceased; John Dinsmore Rell Frederick; Aldon McIntosh and Tony McIntosh, surviving children, heirs of LaMar McIntosh, deceased; Ada Morrill, surviving wife, Dale Morrill, Denzil Morrill, Steve Morrill, Ida Ann Newby, Cleora Peterson, and Thelma Pope, surviving children, heirs of Clarence Morrill, deceased; Norrene Neel, surviving wife, and Shelly Ann Neel, surviving child, heirs of Jack Neel, deceased; Carl Norton, Doyle Palmer, LaMond Palmer, and LuDale Palmer, surviving children, heirs of Edward Palmer, deceased; Gayle Nillson, surviving heir of Elbert Pitts, deceased; Margaret Quinn, surviving wife, Gary Quinn, Milton Quinn, and Janet Lott, surviving children, heirs of George Quinn, deceased; Bernadine Hurley, surviving child, heir of Farley Smith, deceased; Ida Mae Swenson, surviving wife, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
Page 549
Barnson, Eldora Barnson Johnson, John Steve Barnson, Julia
Mae Barnson Wise, and Maida Barnson Simms, surviving
children, heirs of Earl S. Barnson, deceased; Vonda L.
Cropper, surviving wife, Helen E. Cropper, surviving wife,
Helen E. Cropper Davis, Janice Cropper Peterson, William D.
Cropper, Charles L. Cropper, and Lorraine Cropper Harris,
surviving children, heirs of William E. Cropper, deceased;
Eva Dean Hanson, surviving wife, Clyde E. Hanson, David B.
Hanson and Shane Hanson, surviving children of Byron Hanson,
deceased; Maurine Pitts, surviving wife of Elbert Pitts,
deceased, Rowena Anderson, surviving wife, Byron Anderson,
Terral Anderson, and Robert Mellor, surviving children,
heirs of Byron Anderson, deceased; Leola Christensen,
surviving wife, Alvin Christensen, Karl Christensen, Neil
Christensen, and Colleen Peterson, surviving children, heirs
of Alvin Christensen, deceased; John Dinsmore Rell
Frederick; Aldon McIntosh and Tony McIntosh, surviving
children, heirs of LaMar McIntosh, deceased; Ada Morrill,
surviving wife, Dale Morrill, Denzil Morrill, Steve Morrill,
Ida Ann Newby, Cleora Peterson, and Thelma Pope, surviving
children, heirs of Clarence Morrill, deceased; Norrene
Neel, surviving wife, and Shelly Ann Neel, surviving child,
heirs of Jack Neel, deceased; Carl Norton, Doyle Palmer,
LaMond Palmer, and LuDale Palmer, surviving children, heirs
of Edward Palmer, deceased; Gayle Nillson, surviving heir
of Elbert Pitts, deceased; Margaret Quinn, surviving wife,
Gary Quinn, Milton Quinn, and Janet Lott, surviving
children, heirs of George Quinn, deceased; Bernadine
Hurley, surviving child, heir of Farley Smith, deceased;
Ida Mae Swenson, surviving wife, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
Tenth Circuit.
Page 550
Stewart L. Udall, Phoenix, Ariz. (Thomas S. Udall, Albuquerque, N.M. and Kenly W. Burnsdale, Salt Lake City, Utah, with him on the briefs), for plaintiffs-appellants.
John P. Schnitker, U.S. Dept. of Justice, Washington, D.C. (Robert S. Greenspan, U.S. Dept. of Justice, Washington, D.C., Brent D. Ward, U.S. Atty., Salt Lake City, Utah, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., J. Michael Farrell and Edward Jiran, Dept. of Energy, Washington, D.C.), for defendant-appellee.
Before McKAY and BALDOCK, Circuit Judges, and BROWN, District Judge. *
BALDOCK, Circuit Judge.
Uranium miners and survivors of deceased uranium miners brought suit against the United States to obtain money for injuries arising from radiation exposure. The district court granted summary judgment, finding the employees of the government performed discretionary functions and concluding the United States is
Page 551
immune from tort liability. For the reasons set forth below, we affirm.I.
Plaintiffs-appellants brought suit in February 1980 against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 2671-80, seeking recovery for injuries sustained as a result of the exposure of miners to radiation in privately owned and operated mines in Utah. In particular, they alleged employees of the United States Public Health Service (PHS), who were conducting medical and environmental surveys associated with radiation in uranium mines, failed to warn miners of hazards, negligently provided safety services to miners, and were otherwise negligent. They also asserted that the Atomic Energy Commission (AEC) breached a statutory duty to protect miners from the radiation. 1 After extensive discovery, the government moved for summary judgment, arguing sovereign immunity bars recovery from the United States because of the discretionary function exception contained in the second clause of 28 U.S.C. Sec. 2680(a). 2 The district court granted summary judgment, finding the acts of the government employees were discretionary and also ruling the AEC had no mandatory duty to regulate uranium mine safety. Barnson v. United States, 630 F.Supp. 418, 420-23 (D.Utah 1985).
On appeal, appellants assert summary judgment was improper because there exist disputed facts, the AEC had a mandatory duty to protect the miners, and the discretionary function exception should not apply to negligent medical care. We must decide, therefore, the following issues:
(1) whether the district court erred in finding that there are no material issues of fact in dispute which are pertinent to the government's defense of sovereign immunity;
(2) whether the district court erred in concluding the discretionary function exception should apply to the negligence claims; and
(3) whether the district court erred in concluding the AEC has no mandatory duty to protect the miners from radiation exposure.
II.
The Federal Tort Claims Act provides a general exception to sovereign immunity by authorizing suits 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. Sec. 1346(b). Although this is a broad waiver of immunity, the United States is subject to suit only to the extent provided by law, and the waiver may not be extended or narrowed beyond that which Congress intended. Ewell v. United
Page 552
States, 776 F.2d 246, 248 (10th Cir.1985). Of particular importance here is the exception contained in 28 U.S.C. Sec. 2680(a) for discretionary functions.The discretionary function exception was carefully examined in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Dalehite involved a suit against the United States arising from the explosion of two ships loaded with fertilizer. The government had engaged the ships pursuant to a federal assistance program to transport fertilizer to countries whose economies had been damaged by World War II. Plaintiffs alleged the government had been negligent in failing to label the fertilizer packages to warn of their volatility. In ruling that the discretionary function exception barred the suit, the Court observed that Congress created the exception to ensure that actions brought against the United States would be restricted to such "ordinary common law torts" as automobile collisions. 346 U.S. at 28, 73 S.Ct. at 964. It described the exception to include the initiation of programs and activities as well as
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 35-36, 73 S.Ct. at 967-68.
More recently, the Court examined the discretionary function exception in United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Varig involved suits against the United States for the alleged negligence by the Federal Aviation Administration (FAA) (or the Civil Aeronautics...
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