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McKay v. United States

ELR Citation: 13 ELR 20569
Nos. Nos. 82-1771, -1816, 703 F.2d 464/18 ERC 1937/(10th Cir., 03/23/1983) Rev'd

Reversing the district court, 13 ELR 20540, the Tenth Circuit rules that defendants, the federal government and two contractors, may be held liable under state tort law for radioactive contamination of land near the Rocky Flats nuclear facility. The court first rules that federal laws dealing with the operation of Rocky Flats do not preempt state tort action against defendants. Allowing tort actions would not interfere with federal regulatory authority or administrative remedies. The court holds that its recent decision in Silkwood v. Kerr McGee, 12 ELR 20367, is controlling. The court then upholds the district court's ruling that exclusive jurisdiction to hear plaintiffs' takings claims in excess of $10,000 rests with the Court of Claims and that such claims are improper subjects for pendent jurisdiction. The court then rules that merely because Rocky Flats is connected with the national defense does not remove it from the jurisdiction of the courts. Redress of the claimed injury will not involve the court in resolution of political questions, nor is there another branch of government better able to resolve the claim. Finally, the court rules that the federal government may be liable to plaintiffs under the Federal Tort Claims Act upon a showing of negligence if the private contractors who ran the plant were so tightly supervised as to qualify as federal employees under the Act. The court remands to the district court for a trial on the merits.

Counsel are listed at 13 ELR 20540.

Joined by Holloway and Brown,* JJ.