Bibeau

concurring:

I concur in the majority’s well-thought-out opinion, but I write separately because of the majority’s determination to resolve the qualified immunity issues. I am inclined to agree with the substance of the majority’s resolution, but I would not reach these issues for prudential reasons. Rather, I would remand to allow the district court to decide them in the first instance.

“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 , 96 S.Ct. 2868 , 49 L.Ed.2d 826 (1976). “Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt....” Id. at 121 , 96 S.Ct. 2868 . It seems, however, that the appellate courts have sometimes forgotten that resolving issues not addressed by the district court is the exception, not the rule. Compare Weiser v. United States, 959 F.2d 146, 147 (9th Cir.1992) (simply stating that “[o]ur review is not limited to a consideration of the grounds upon which the district court decided the issues”), with River City Markets, Inc. v.…

Opinion by Judge KOZINSKI; Concurrence by Judge WALLACE.

More than thirty years ago, plaintiff Harold Bibeau suffered the unkindest cut of all. Today, he seeks to bring suit against those he claims are responsible for injuring him. The defendants parry by raising the statute of limitations. The district court agreed and entered summary judgment in favor of all defendants. See Bibeau v. Pacific Northwest Research Found., Inc., 980 F.Supp. 349 , 358 (D.Or.1997). We must decide whether Bibeau was or should have been aware of his injuries, and is therefore barred from bringing suit as a matter of law.

I

In the 1960s, Bibeau was an inmate at the Oregon State Penitentiary (OSP). During that time, Dr. Carl Heller of the Pacific Northwest Research Foundation conducted a series of experiments, under the auspices of the Atomic Energy Commission, in order to determine the human body’s responses to various experimental regimens, among them the effect of radiation on human testicular function. Inmates were paid for participating and proselytized other inmates to sign up for the experiments. As a result of this encouragement, Bibeau volunteered for the testicular irradiation…