# Petition for Writ of Certiorari — Allen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1004

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0816%3A1. Public record. Not legal advice.