Mabel Nevin v. United States

696 F.2d 1229 Mabel NEVIN, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 81-4365. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 14, 1982. Decided Jan. 17, 1983. Edward J. Nevin, San Francisco, Cal., Allan Jay Favish, Fogle, Rothschild, Feldman & Ostrove, Los Angeles, Cal., for plaintiffs-appellants. George C. Stoll, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before CHOY and NORRIS, Circuit Judges, and SMITH, * District Judge. CHOY, Circuit Judge: 1 Relatives of Edward Nevin appeal from a judgment in favor of the United States in this wrongful-death action brought under the Federal Tort Claims Act (the FTCA), 28 U.S.C. Sec. 1346 (b). They claim that Nevin died as a result of the Government's negligence in conducting a simulated biological warfare attack on the City of San Francisco in 1950. The district court concluded in part that the Government was immune from suit because its acts fell within the discretionary function exemption to the FTCA, 28 U.S.C. Sec. 2680 (a). 2 On appeal, the Nevins concede that the…

Relatives of Edward Nevin appeal from a judgment in favor of the United States in this wrongful-death action brought under the Federal Tort Claims Act (the FTCA), 28 U.S.C. § 1346 (b). They claim that Nevin died as a result of the Government’s negligence in conducting a simulated biological warfare attack on the City of San Francisco in 1950. The district court concluded in part that the Government was immune from suit because its acts fell within the discretionary function exemption to the FTCA, 28 U.S.C. § 2680 (a).

On appeal, the Nevins concede that the selection of the test site fell within the discretionary function exemption, but argue that the selection of the strain of bacterium used did not. Even assuming that we should isolate the selection of the strain of bacterium from the selection of the site, we conclude that the decision to use the particular strain was exempt as a discretionary function.

The discretionary function exemption provides, in pertinent part, that the United States has not waived sovereign immunity on

28 U.S.C. § 2680 (a). The purpose of the exemption is to permit the government to make planning-level decisions without fear of suit. Dalehite v.…

dissenting:

I cannot agree that General McAuliffe’s decision to use a particular strain of bacterium in conducting a simulated biological attack on the City of San Francisco falls within the discretionary function exemption to the Federal Tort Claims Act, 28 U.S.C. § 2680 (a) (1976).

That decision, in my view, was made at the operational, not the planning level of government. As appellant readily concedes, the decision to conduct a simulated attack on San Francisco was a planning decision that did fall within the exemption. It required the weighing of political, social and military factors and, as such, is a decision the judiciary is ill-equipped to review. But once that policy decision was made, its execution necessarily involved a myriad of decisions at the operational level which are not insulated from judicial review. 1 The choice of bacterium was one such decision. 8 UK was chosen not on the basis of politi *1232 cal or military concerns, but on the basis of medical and scientific ones. Care had to be exercised in selecting a bacterium that would not constitute a health hazard. Whether there was failure to exercise due care in making that decision is the type of question…