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Prescott v. United States

Citation: 23 ELR 20016
No. No. 90-16758, 973 F.2d 696/(9th Cir., 03/24/1992)

The court holds that a district court properly denied the government's summary judgment motion on the basis of the discretionary function exception to the Federal Tort Claims Act (FTCA) in a consolidated action by 220 individuals seeking damages for injuries allegedly sustained in the course of the government's nuclear weapons testing program in Nevada. The court first holds that the government's broad reading of In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir. 1987), for the proposition that everything the government does in carrying out the nuclear testing program falls within the discretionary function exception of the FTCA, is an incorrect interpretation of that case. In Atmospheric Testing, the acts of alleged negligence came within the purview of the discretionary function exception because the district court found that the specific acts of alleged negligence flowed directly from the policy choices of on-site officials who had been explicitly entrusted with the responsibility of weighing competing policy considerations. Thus, Atmospheric Testing does not provide blanket immunity to all aspects of nuclear testing, but provides immunity solely to those acts resulting from policy choices that were expressly delegated to test site officials. The court next observes that adoption of the government's expansive reading of Atmospheric Testing would conflict with the discretionary function exception case law of both the U.S. Supreme Court and the Ninth Circuit, which have held that all decisions implementing a discretionary decision are not necessarily protected; only those in which choices are grounded in social, economic, and political policy.

As a matter of first impression in the Ninth Circuit, the court adopts the rule of the Sixth and Seventh Circuits that the United States bears the burden of proving the applicability an exception to the FTCA's general waiver of immunity. Thus, the court holds that the United States is not entitled to summary judgment until it has established that the actionable conduct was the result of a choice grounded in social, economic, or political policy. The court also holds that because the government failed to introduce any evidence that the alleged specific acts of negligence flowed directly from the policy choices of on-site officials who had been explicitly entrusted with the responsibility of weighing competing policy considerations, summary judgment was properly denied.

Counsel for Plaintiffs-Appellees
Dale Haralson
Haralson, Kinerk & Morey
82 S. Stone Ave., Tucson AZ 85701
(602) 792-4330

Counsel for Defendant-Appellant
Mark B. Stern
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Before Thompson and Ezra,* JJ.