Petition for Writ of Certiorari — Allen v. United States

Supreme Court, U.S.

FILE DO

No JORESH FF. SRANIOL, JR

: OuUskw

In The

Supreme Court of the United States

October Term, 1987

IRENE H. ALLEN, et al.,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DALE HARALSON

Counsel of Record

DENNEEN L. PETERSON

RALPH HUNSAKER

DAVID M. BELL

SCOTT E. BOEHM

HARALSON, KINERK & MOREY, P.C.

82 South Stone Avenue

Tucson, Arizona 85701

(602) 792-4330

STEWART K. UDALL

Attorney At Law

70 East Mitchell

Phoenix, Arizona 85012

(602) 230-1254

O'CONNOR, CAVANAGH. ANDERSON

WESTOVER, KILLINGSWORTH &

BESHEARS

One East Camelback. Suite 1100

Phoenix, Arizona 85012

(602) 263-2604

J. MacARTHUR WRIGHT

WRIGHT & MILES

60 North 300 East

P.O. Box 339

St. George, Utah 84770

(801) 623-2612

QUESTION PRESENTED FOR REVIEW

Whether this Court's treatment of the

"discretionary function" exception to the

Federal Tort Claims Act in 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), precludes

government liability where the Government

acts as a regulator of private conduct.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. . .

TABLE OF AUTHORITIES ...... -«

PORAEONs «4 4 0 8 ee 8 ee ee ee

OPINIONS BELOW . . . +. « « «© «© « »

JURISDICTIONAL STATEMENT... .

STATUTORY PROVISIONS INVOLVED

28 U.S.C. §$2346(b)*

United States as defendant. .

28 U.S.C. §$2680(a):

SREGRt ONS i wee 8 eK GS

STATEMENT OF THE CASE. .... .-

BASIS FOR FEDERAL JURISDICTION. .

ARGUMENT:

CERTIORARI SHOULD BE GRANTED

IN ORDER TO DETERMINE WHETHER

THE DISCRETIONARY FUNCTION

EXCEPTION TO THE FEDERAL TORT

CLAIMS ACT APPLIES TO

NON-REGULATORY CONDUCT .... .

A. Certiorari Should Be

Granted Because The

Discretionary Function

Exception Is An Important

Federal Question .... e

PAGE

viii

14

14

j

A A er rte

B. Certiorari Should Be

Granted To Examine The

Discretionary Function

Exception To The Federal

Tort Claims Act Because

The Courts Of Appeals Have

Differed In Their Reading

SE a b

ee, T

CERTIFICATE OF i ot a

= 113. =

TABLE OF AUTHORITIES

AUTHORITY:

Allen v. United States,

527 F.Supp. 476

iD; Deak Teen) « 6 tc te 6 SS

Allen v. United States,

588 F.Supp. 247

(D. Utah 1984) .. .

Allen v. United States,

816 F.2d 1417

(i0th Cit. LOST) « «= 2 0 2 @ «

Aslakson v. United States,

790 F.2d 688 (8th Cir. 1986)

Baker v. United States,

817 F.2d 560 (9th Cir. 1987) .

Collins v. United States,

783 F.24 1225 (5th Cir. 1966).

Dalehite v. United States,

346 U.S. 15, 73 S.Ct. 956,

S7 1.86. 3427 ti9eaa) « «© «+ * *

Ford v. American Motors

Corporation, 770 F.2d 465

(Stn Cig. 296G0)s * «© o 4 8

Hylin v. United States,

755 F.2d 551 (7th Cir. 1985) .

In re “Agent Orange" Product

Liability Litigation,

818 F.2d 210 (2d Cir. 1987).

McMichael v. United States,

751 F.2d 303 (8th Cir. 1985) .

« ig «

PAGE

11,12

12-13,15

20,22

23,4!

24-25,27

20,21

24,27

15-16

21,27

26

26

25-4]

23

oA ates

ree er) TLR ee

AUTHORITY: PAGE:

Ostera v. United States,

769 F.2d 716 (llth Cir. 1985). . 26

Shuman v. United States,

465 £.44 263 (ist Cir., 1965). . 21

Sutton v. United States,

SiS F.26 1289 (Sth Cir. 1967). . 20

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

ef ee er are ee er eres

STATUTES AND RULES:

ae Vemons Geeeee: +. :4 2 we % * 3 eee

oe U.8.6c- Seaeee ss + oe ee ew 8

40 0.8.C. .9$2673-00. 2-405 6 2 ea

ee ee oS ee

42 U.S.C. §§2011-2296

(Atomic Energy Act of 1954). .. 2

Pub. L. No. 585, 60 Stat. 755

(Atomic Energy Act of 1946)... 2

OTHER AUTHORITY:

Comment, United States v. Varig:

Can The King Only Do Little

Wrongs?, 22 Cal.W.L.Rev. 175

Rents O-l0 ree ee eo 2 aS eo

H.R.Rep. No. 1287,

79th Cong., lst Sess. 2 (1946) . 19

OTHER AUTHORITY: PAGE:

H.R.Rep. No. 2245,

77th Cong., 2d Sess. 5-7 (1942). 19

Kratzke, The Convergence Of The

Discretionary Function Exception

To The Federal Tort Claims Act

With Limitations Of Liability

In Common Law Negligence, 60

St. John's L.Rev. 221 (1986). . 19

Plave, United States v. Varig

Airliness The Supreme Court

Narrows The Scope Of Government

Liability Under The Federal Tort

Claims Act, 51 J. of Air L. and

rs SF €2096SP « « 6 @ oe 8 + 6 S8

S.Rep. No. 1196,

77th Cong., 2d Sess. 5 (1942). . 19

S.Rep. No. 1400,

-79th Cong., 2d Sess. 7 (1946). . 19

PARTIES

Plaintiffs, numbering approximately

1200, are listed in the Appendix

(Petitioner's Appendix E, hereafter

Pet.App. E).

OPINIONS BELOW

The Opinion of the United States Court

of Appeals for the Tenth Circuit is reported

in Allen v. United States, 816 F.2d 1417

(10th Cir. 1987) (Pet.App. A). The

Opinions for the United States District

Court for the District of Utah are reported

in Alien v. United States, 588 F.Supp. 247

(D. Utah, 1984) (Pet.App. B) and Allen v.

United States, 527 F.Supp. 476 (D. Utah

1981) (Pet.App. C).

JURISDICTIONAL STATEMENT

The Joddmeat of the United States Court

of Appeals for the Tenth Circuit was entered

April 20, 1987. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C.

§1254(1).

- vill -

STATUTORY PROVISIONS INVOLVED

28 U.S.C. §1346(b): United States

as defendant.

Subject to the provisions of Chapter 171i

of this Title, the District Courts, together

with the United States District Court for

the District of the Canal Zone and the

District Court of the Virgin Islands, shall

have exclusive jurisdiction of civil actions

on claims against the United States, for

money damages, accruing on and after January

1, 1945, 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.

- vill -

28 U.S.C. §2680(a): Exceptions

The provisions of this Chapter and

section 1346(b) of this Title shall not

apply to--

a) 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.

Relevant portions of the Atomic Energy

Acts of 1946, Pub. L. No. 585, 60 Stat. 755,

and of 1954, 42 U.S.C. §§2011-2296, are set

forth in the Appendix at Pet.App. F and

Pet.App. G, respectively.

- ix -

STATEMENT OF THE CASE

This is a case~brought by approximately

1,200 Plaintiffs representing victims of

low-level radiation exposure from fallout

during United States atmospheric testing.

The Complaint against the United States for

injuries and death (cancer and leukemia) was

filed in the District Court for the District

of Utah August 30, 1979. Plaintiffs or

their decedents resided in Utah, Arizona, or

Nevada during open-air nuclear testing.

Plaintiffs complain of the Government's

negligence in monitoring testing results; in

failing to inform persons at hazard of the

dangers from the testing; and in failing to

inform the persons at risk how to avoid,

Minimize, or mitigate the dangers. Early in

the case, the United States filed a Motion

to Dismiss based on the discretionary

function exception to the Federal Tort

Claims Act (FTCA), 28 U.S.C. §2680(a). The

District Court denied the Motion and the

Opinion is found at Allen v. United States,

527 F.Supp. 476 (D. Utah 1981).

As required by the mandate of the

Atomic Energy Acts to provide for the

safety of the public, Pub. L. No. 585, 60

Stat. 755; 42 U.S.C. §§2011-2296, duties

were specified in public information plans

prepared for each test series and approved

by the Atomic Energy Commission (Tr. at

157; DX-85 (Ranger); PX-907/DX-119

(Buster-Jangle); PX-908/ DX-141, DX-144,

DX-1178 (Tumbler-Snapper); DX-270, 271, 184,

185, 190, PX-909/DX-153-303 (Upshot-

Knothole); PX-910/DX-205, DX-323 (Teapot);

DX-376, PX-911/DX-392, PX-224/DX-387,

DX-405, PX-217 (Plumbbob)). The Public

Information Plan for Buster-Jangle (PX-907)

(p. 3) requires:

"That the Manager, [Santa Fe

Operations Office], be authorized

to make announcements deemed

necessary for reasons of safety

and security immediately prior to

any test operations; to confirm

the fact of tests afterward in the

same manner aS at RANGER; and to

make announcements necessary in

connection with local radiological

safety, and the handling of damage

Claims. ..«.”*

The public information plan for Tumbler-

Snapper (PX-908) established that

responsibility for public information on all

phases of test shots rested upon the Test

Manager who was to operate in accordance the

plan. The plan designated the types of

public announcements authorized and included

pre-shot notices to public officials and

citizens of nearby communities of possible

blast and/or radiation effects as necessary

in the interest of public safety (p. 6).

The public information plans for Upshot-

Knothole (PX-909) and Teapot (PX-910)

explain their purpose as establishing

guidelines for issuing information publicly

in order to protect life and property with

warnings designed to avoid or reduce

off-site hazards.

One theme for the information program

- 3-

was what individuals and local authorities

should do in case potential hazards occur

(PX-910, p, 9). According to Richard D.

Elliott, Director of the Joint Test

Information Office, the radiation monitoring

teams were authorized to explain radiation

to the public (Tr. at 161-173), but he did

not determine whether the monitors had

enough knowledge to give information or

warnings (Tr. at 185).

James E. Reeves was Deputy Test Manager

at the Nevada Test Site for each series of

atmospheric tests beginning with Upshot-

Knothole (Tr. at 113, 115, 117). He

testified that when it came to safety of

citizens living in the vicinity of the test

site, he placed no restrictions on people

such as Oliver Placak, U.S. Public Health

Service senior officer in charge of off-site

monitoring, to warn, inform, or assist

off-site residents with respect to radiation

hazards (Tr. at 138-40). "If he [Placak]

wanted to spend $200,000.00 to reduce the

fallout and estimated dose on people and the

people and equipment were available to do

it, I wouldn't question it one minute."

However, Placak never warned anyone of the

carcinogenic risks of radiation exposure

(Tr. et 278).

Atomic Energy Commission press releases,

Such as a January 25, 1951 release (PX-923),

downplayed any thoughts of danger:

"All areas of the earth are

subject to cosmic ray bombardment.

Much of the earth contains

radioactive minerals such as

uranium. Each area has a normal

background of radioactivity which

can be determined by sensitive

measuring instruments. It is

simply part of the AEC's normal

program to control radioactivity

hazards and to provide public

assurance of safety. Such checks

are a routine part of that ~

program. They are conducted

routinely around all AEC

installations where radioactive

materials are used."

After tests in January 1951, the AEC

announced that no levels of radiation had

been found that could conceivably produce

any damage to humans (PX-922).

The newspapers customarily read by

Plaintiffs had similar information. For

example, in the Washington County News in

St. George, Utah for March 26, 1953 the fact

of a detonation was reported (PX-918):

"Radiation fallout reported by field

monitoring teams at other points in the

Nevada Proving Grounds region was low. None

of the levels at any point was hazardous."

Even when roadblocks were set up after

atomic dust was discovered on cars near

St. George, the AEC emphasized "that

persons. . . exposed to the material

were in no danger." (PX-919).

A little yellow booklet entitled "Atomic

Test Effects In The Nevada Test Site

Region" was distributed by the thousands

through schools, post offices, and motels

throughout Southern Nevada and Utah,

Arizona, and California. Report of Off-Site

Radiological Safety Activities, Operation

Teapot, Nevada Test Site, Spring-1955

(PX-338). This booklet (PX-832) downplayed

fears about radiation exposure.

Off-site residents were told that their

"best action is not be worried about

fallout" (p. 33).

The film, "Atomic Tests In Nevada"

(PX-912) explains safety precautions (Tr. at

287, 289-91) and tells viewers:

"Word has just been received

from the Atomic Energy Commission

that due to a change in wind

direction, the residue from this

morning's atomic detonation is

drifting in the direction of

St. George. It is suggested that

everyone remain indoors for one

hour or until further notice.

There is no danger." (Emphasis

added).

(Tr, at ZL); 3

Monitoring instruments were often

calibrated to the high-energy gamma

rays, but little attention was directed to

the careful monitoring of lower-energy gamma

rays, or measurement of beta radiation or

determination of beta/gamma ratios. On

occasion, off-site monitors were

specifically instrusted to work with the

metal beta shields on their instruments

completely closed. CEG 1 Proceedings of the

Off-Site Monitors Workshop, at 21 (1980)

(PX-297); T. Shipman, "Special Rad Safe

Problems--Operation Bungle, BUSTER-JANGLE,"

July 11, 1951, at 2 (PX-88).

William Johnson, the radiological safety

officer for Tumbler-Snapper, reported that

none of the military personnel assigned to

Sampling ever had received any previous

training in the procedures associated with

fallout studies. W. Johnson, et al.,

"Report of the Advisory Personnel to the Air

Sampling Program," Operation Tumbler-

Snapper, WT-566 (June 1953), at 10

(PX-362). Before Upshot-Knothole in 1953 it

was determined that post-shot reports would

be made to owners of livestock of nearby

fallout levels, but this was not done and it

remained for owners to discover such

exposure and report to the test

Organization. Abstract of Report, Committee

to Study Nevada Proving Grounds (February l,

1954, at 43-44) (PX-51/DX-1I).

Frank Butrico, a Public Health Service

monitor, testified regarding the events in

St. George, Utah on May 19, 1953 following

Test Harry (Tr., at 844-74). During this

event, although he was cautioned to dispose >

of his clothing and decontaminate himself by

showering, Butrico was not told to inform

the public to do so as well (Id., at 872).

AEC stated in numerous documents on numerous

occasions that it had no right to expose

off-site population to levels of radiation

permitted for its employees. Adam, Test

Effects in Nevada, at 36 (PX-832/DX-1153).

Pursuant to the on-site radiation protection

Standards for the same series (Operation

UPSHOT-KNOTHOLE: Radiological Safety

Operation, WT-817 (March-June 1953), at 17

(PX-698)), the levels of radiation

experienced in Shot Harry would have

required the following on-site response:

(1) delineation of contaminated areas;

personnel entering these areas accompanied

by a monitor; and rad-safe clothing and

equipment issued to personnel. (2) Rad-safe

monitors assigned to individuals or groups

working in contaminated areas acting in an

advisory capacity to keep the recovery party

leader informed of radiation intensities at

all times. (3) Film badges, dosimeters, and

protective clothing (coveralls, booties,

caps, gloves, dust respirators, etc.) as

deemed necessary issued to personnel

entering contaminated areas. (4) When

eating or smoking in any contaminated area,

sensible sanitary precautions taken.

None of these measures were taken

off-site for the public--including

Plaintiffs or their decedents--prior to or

following Shot Harry (Tr., at 844-74) :

(testimony of Butrico).

« 26 =

After 17 months of deliberation the

District Court rendered its 225 page Opinion

in favor of 10 of the 24 representative

victims in Allen v. United States, 588

F.Supp. 247 (D. Utah 1984). The 14 cases

where the Court found for the Government

were decided on the issue of causation only.

Concerning discretionary function, the

District Court looked at whether the

Government's “acts were so imbued with

considerations of public policy and

governance as to be immunized from the reach

of the Federal Tort Claims Act." Id., at

336. It is the nature of the specific

decision, not the fact that some decision or

choice was made, that is important. Id.,

at 339. The case here is not footed on the

fact that high level policy decisions were

made--but is footed on the allegedly

inappropriate manner in which such policy

decisions were carried out. Id., at 340.

The Court determined that the acts

= 22 »

complained of--failure to adequately warn,

to adequately and contemporaneously measure,

and to adequately educate the popu lation at

hazard in simple and inexpensive

preventative and mitigating measures--are

not discretionary because the Government did

not adopt a poiicy of indifference to

safety. Id., at 337. The Court

concluded, to the contrary, that the

Government was liable for its negligent

failure to carry out directives and follow

the guidelines of the AEC regarding public

safety.

The United States Court of Appeals for

the Tenth Circuit reversed, based upon its

interpretation of 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). The Tenth Circuit held

that the government actors had a general

Statutory duty to promote safety which was

broad and discretionary. Allen v. United

- 12 -

States, 816 F.2d 1417 (10th Cir. 1987). The

Court ruled that it was left to the AEC to

decide exactly how to protect public safety

and the Government's conduct is therefore

protected. Id., at 1421. The Tenth

Circuit also determined that the public

information plans fell within the

discretionary function exception. Id.

Judge McKay's concurring opinion points

out that the FTCA, as interpreted in Varig,

"is largely a false promise in all but

"fender benders’ and perhaps some cases

involving medical malpractice by government

doctors." Id., at 1424-25 (McKay, J.,

concurring). McKay wrote that Varig "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...."

Id., at 1426. This Petition follows.

- 13 «

BASIS FOR FEDERAL JURISDICTION

The United States District Court had

jurisdiction of this action pursuant to

28 U.S.C. §1346(b) and the Federal Tort

Claims Act, 28 U.S.C. §§2671-80.

ARGUMENT

CERTIORARI SHOULD BE GRANTED IN ORDER TO

DETERMINE WHETHER THE DISCRETIONARY

FUNCTION EXCEPTION TO THE FEDERAL TORT

CLAIMS ACT APPLIES TO NON-REGULATORY

CONDUCT.

After four decades of judicial

experience with the Federal Tort Claims Act,

there is still no adequate explanation of

the FTCA and its discretionary function

exception. This case is the perfect vehicle

fer finally defining “discretionary

function." This case involves 1,200 victims

unwittingly exposed to low-level radiation

during open-air atomic tests conducted by

the United States. ‘these victims and their

representatives are left remediless by the

Tenth Circuit's interpretation of Varig and

the discretionary function exception.

- 14 -

A. Certiorari Should Be Granted Because

The Discretionary Function Exception

Is An Impcrtant Federal Question.

The Tenth Circuit has decided an

important question of federal law which has

not, but should finally be, settled by this

Court. This is more than an academic

question or a one-time problem. Rather,

this is a very common issue which deserves

this Court's attention.

The cases relied upon by the Tenth

Circuit Court of Appeals in Allen v. United

States, 816 F.2d 1417 (10th Cir. 1987),

Varig, and Dalehite v. United States, 346

U.S. 15, 73 &.Ct. 956, 97 L.Ed. 1427

(1953), do not settle the question of the

discretionary function exception. Varig

is limited in its holding. First, it is an

inspection case, dealing with the liability

of the Federal Aviation Administration in

Carrying out inspection of aircraft for

certification. Second, it is a regulatory

case in that the Federal Aviation

- 15 -

Administration was performing a regulatory

function.

Dalehite holds that the court must

determine whether a Plaintiff's allegations

attack the rules formulated by the agency or

merely their application.

In the present case, the Government -

itself--rather than a third party--created

the risk of injury by its conduct. The

injuries in this case would not have

occurred without the Government's act. The

conduct complained of here was not

regulatory and did not regulate private

conduct. The AEC itself had the duty to

provide for the safety of the off-site

public and it created the risk of harm

through its atomic weapons testing. The AEC

is liable for its commission compounded by

its omission. Its conduct gave rise to the

very problem which required it to monitor.

Varig does not immunize the United States

from such liability. Cases where the

- 16 -

Government is the primary negligent party

are not in the same category as those

involving Government inspection or

regulatory activity.

In Varig, when this Court examined the

Federal Aviation Act, it determined that

the Act granted to the Secretary of

Transportation the discretion to prescribe

reasonable regulations governing the

inspection of aircraft, including the manner

in which such inspections should be made.

Varig, at 804, 104 S.Ct. at 2760.

The responsibility discussed in Varig

is a completely different kind of

responsibility than existed in the present

case where the AEC had imposed upon it--by

the Act which created it and by the public

information plans--the express duty to

provide for the safety of the public. There

was no congressionally delegated or mandated

duty on the part of the airline industry to

Carry out a program for the safety of the

» AF -«

public. However, such a public safety

program was mandated to be carried out by

the AEC.

Where Varig discusses the Federal

Tort Claims Act and the discretionary

function exception in particular, this Court

examined the testimony of Assistant Attorney

General Francis M. Shea where he described

the discretionary function exception as

being “designed to preclude application of

the act to a claim based upon an alleged

abuse of discretionary authority by a

regulatory or licensing agency--for example,

the Federal Trade Commission, the Securities

and Exchange Commission, the Foreign Funds

Control Office of the Treasury, or others."

Id., at 809, 104 S.Ct. at 2762. Again,

Varig applies the discretionary function

exception to a regulatory or licensing

agency. The present case does not deal with

any regulatory or licensing function in

carrying out the public safety program.

= 18 «

The Federal Tort Claims Act was passed

by Congress in 1946 as a means for providing

compensation to those injured by the

negligent acts of government employees

without continually imposing upon Congress

and the President the burden of "disposing

of such matters by private claim bills."

S.Rep. No. 1196, 77th Cong., 2d Sess. 5

(1942); H.R.Rep. No. 1287, 79th Cong., lst

Sess. 2 (1946); H.R.Rep. No. 2245, 77th

Cong., 2d Sess. 5-7 (1942); S.Rep.

No. 1400, 79th Cong., 2d Sess. 7 (1946);

Kratzke, The Convergence Of The

Discretionary Function Exception To The

Federal Tort Claims Act With Limitations Of

Liability In Common Law Negligence, 60

St. John's L.Rev. 221 (1986). The Tenth

Circuit's decision here violates that

principle: "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

» 19 =

damages suffered by the public from nuclear

incidents." Allen, 816 F.2d at 1424.

Congress has had more than ten years to so

act and has yet to do so. The FTCA should

not be construed so that it conflicts with

the statute's purpose. Sutton v. United

States, 819 F.2d 1289 (5th Cit. Leer }«

The Federal Tort Claims Act is not dead,

Collins v. United States, 783 F.2d 1225,

1231 (5th Cir. 1986) (Brown, J.,

concurring), and should not be confined to

the typical fender bender case. Id.

Unless Varig's scope is defined carefully,

the discretionary function exception will

insulate the Government from nearly all tort

liability, contrary to the initial

expectation that citizens would receive

recompense when their injuries were caused

by the Governinment. Id., at 1234. The

Tenth circuit's opinion returns us to the

days when Congress was forced to award

compensation via the clumsy mechanism of

= 26 «

|

private bills, contrary to the expectation

of a streamlined remedial procedure under

the FTCA. Id.

This Court should be careful because

the:

"Government as a defendant, can

exert an unctuous persuasiveness

because it can clothe official

carelessness with a public

interest. Hence, one of the

unanticipated consequences of the

Tort Claims Act has been to throw

the weight of government influence

on the side of lax standards of

care in the negligence cases it

defends."

Shuman v. United States, 765 F.2d 283,

294-95 (lst Cir., 1985), quoting from

Dalehite v. United States, 346 U.S. 15,

50, 73 S.Ct. 956, 975 (Jackson, J.,

dissenting).

This Court should grant Certiorari to

clarify that Varig does not address the

situation where the United States has the

primary role for operation, but only

addresses the situation where the United

States has a secondary or regulatory role in

oo 2 =

a ee

enforcement. Plave, United States v.

Varig Airlines: The Supreme Court Narrows

Narrows The Scope Of Government Liability

Under The Federal Tort Claims Act, 51 J. of

Air L. and Comm. 197, 238 (1985).

For these reasons, Certiorari should be

granted because this case raises important

questions regarding the application of the

discretionary function exception to the

Federal Tort Claims Act in cases where the

Government itself is the operator rather

than the inspector or regulator.

B. Certiorari Should Be Granted To Examine

The Discretionary Function Exception To

The Federal Tort Claims Act Because The

Courts Of Appeals Have Differed In Their

Reading Of Varig.

In the Tenth Circuit opinion, a conflict

among the Circuits post-Varig is

demonstrated in Footnote 8. Allen, 816

F.2d at 1423, n. 8 (10th Cir. 1987). While

the meaning of the Varig opinion is fairly

clear regarding policy decisions, there is a

difference of opinion.in interpreting the

« 2 «

|

extent of its meaning. Comment, United

States v. Varig: Can The King Only Do

Little Wrongs?, 22 Cal.W.L.Rev. 175, 199

(1985).

For example, in Aslakson v. Unitec

States, 790 F.2d 688 (8th Cir. 1986), the

decedent's sailboat mast struck electrical

power lines owned and operated by the

Western Area Power Administration. WAPA's

decision not to elevate certain power lines

running over the lake was a violation of

established policy. Citing to McMichael v.

United States, 751 F.2d 303 (8th Cir.

1985), the Eighth Circuit Court of Appeals

held that where challenged governmental

activity involves safety considerations

under an established policy rather than the

balancing of competing public policy

considerations, the rationale for the

exception falls away and the United States

will be held responsible for the negligence

of its employees. Id., at 693.

a

Similar reasoning appears in Baker v.

United States, 817 F.2d 560 (9th Cir. 1987).

The Secretary of the Department of Health,

Education and Welfare licensed Lederle

Laboratories to manufacture a polio vaccine.

The Secretary promulgated regulations

pertaining to safety, purity, and potency

standards that serve to protect susceptible

persons from contracting polio. Drug

manufacturers must establish their product's

conformity to these regulations before the

Secretary will issue a license for

manufacturing. HEW failed to adhere to its

own regulations in supervising the Lederle

testing of the vaccine. The issue was

whether the Government's alleged failure to

follow its own regulatory commands is the

type of decision that Congress intended to

shield by the discretionary function

exception. Citing to Coilins v. United

States, 783 F.2d 1225, 1231 (5th Cir.

1986), the Ninth Circuit held that the

- 24 -

discretionary function exception is

inapplicable when a federal agency employee

refuses to carry out a mandatory statute or

regulation. The Ninth Circuit also

distinguished Varig from the facts in

Baker by pointing out that in Varig the

mandatory regulations governed the conduct

of the airline, not the Government. Because

of the mandatory regulations, there was no

discretion. Where there is a negligent

failure to obey a mandatory regulatory

command, the discretionary function

exception does not insulate the Government

from liability.

Conflicting reasoning has been

demonstrated where the Second Circuit

announced in In re “Agent Orange" Product

Liability Litigation, 818 F.2d 210 (2d Cir.

1987), that it could not be seriously

contended that the decision to use Agent

Orange as a defoliant was anything but a

discretionary act. Plaintiffs could not

- 25 -

remove them f om the category of

discretionary functions by allegations of

negligent labeling, shipping, handling, etc.

Id. The Fifth, Sixth, Seventh, and

Eleventh Circuits have similar holdings.

Ford v. American Motors Corporation, 770

F.2d 465 (5th Cir. 1985), ruled that the

Postal Service's sale of a used Jeep without

a warning about the Jeep's propensity to tip

over was discretionary. Hylin v. United

States, 755 F.2d 551 (7th Cir. 1985), held

that the enforcement activities of the Mine

Enforcement and Safety Administration are

protected by the discretionary function

exception. Ostera v. United States, 769

F.2d 716 (llth Cir. 1985), held that

because there were no guidelines for the

decision-making process as to who to use as

an FBI informant, the decision to release

the informant from jail in order to use him

was a policy decision and therefore

discretionary.

- 6 =

The critical difference between the

holdings of the Circuits is the extent to

which Varig exempts the Government from

liability. The Agent Orange and similar

cases decide--in a conclusory fashion--that

certain decisions are discretionary and

everything connected or resulting from those

decisions are likewise discretionary. On

the other hand, the Aslakson, Baker, and

Collins tests indicate that where the

Government fails to adhere to its own

“Statutory, regulatory, or policy mandate,

the discretionary function exception does

not apply. This "test" is the more

appropriate test. In fact, this test was

set forth in Dalehite and apparently was

affirmed in Varig. Thus, there is a

conflict in the various Circuits pertaining

to the discretionary function exception.

These conflicts are of no small import when

considered in light of the different

positions of the parties and of the

-» 27 =

different burdens imposed upon injured

parties in meeting the various tests. For

example, in some Circuits, plaintiffs must

show that the United States violated an

established policy in order to avoid the

discretionary function exception. On the

other hand, other Circuits leave plaintiffs

virtually remediless because of a sweeping

interpretation of Varig and the

discretionary function exception. This does

not serve the purpose of the Federal Tort

Claims Act. Thus, chaos has been created

by the various conflicting interpretations

in the Circuits. This Court should accept

this Writ of Certiorari in order to resolve

this conflict.

-™

CONCLUSION

For the reasons set forth above,

Petitioners request this this Court grant

Certiorari.

RESPECTFULLY SUBMITTED this AOE day

—s

of July, 1987.

__-HARALSON, KINERK & MOREY, P.C.

Dale Haralson

Denneen L. Peterson

82 South Stone Avenue

Tucson, Arizona 85701

Attorneys for Petitioners

Ralph Hunsaker

David M. Bell

Scott E. Boehm =

O'CONNOR, CAVANAGH, ANDERSON

WESTOVER, KILLINGSWORTH &

BESHEAR

J. MacArthur Wright

WRIGHT & MILES

Stewart Udall

ATTORNEY AT LAW

~

CERTIFICATE OF SERVICE

Dale Haralson, an attorney for

Petitioners and a member of the Bar of this

Court, certifies that on July PH, 1987,

copies of the foregoing Petition for Writ of

Certiorari, along with the Appendix (bound

separately), were served by mail upon all

parties required to be ¢ ‘rved:

ATTORNEYS FOR RESPONDENT UNITED STATES:

\

Ralph H. Johnson

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 888

Benjamin Franklin Station

Washington, D.C. 20044

Attorneys for Defendants.

Marc Johnston

DEPARTMENT OF JUSTICE

10th and Constitution Avenue, N.W.

Washington, D.C. 20530

ATTORNEYS FOR PETITIONERS:

Stewart Udall

ATTORNEY AT LAW

70 East Mitchell

Phoenix, Arizona 85012

Attorneys for Plaintiffs

Ralph Hunsaker

Dave M. Bell a ~

Scott E. Boehm

O'CONNOR, CAVANAGH, ANDERSON, WESTOVER,

KILLINGSWORTH & BESHEARS

One East Camelback Road, Suite 1100

Phoenix, Arizona 85012

Attorneys for Plaintiffs

J. MacArthur Wright

WRIGHT & MILES, Chartered

60 North 300 East

P.O. Box 339

St. George, Utah 84770

Attorneys for Plaintiffs

DATED THIS ACYL day of July, 1987.

& MOREY, P.C.

Dale Haralson

SUBSCRIBED AND SWORN to before me this

~)

xO aay of July, 1987.

Cds C. Near

Notary Public

My Commission Expires:

My Commission Expires Sept. 19, 1982

a oe