JOHN BEGAY, ET AL., PETITIONERS V. UNITED STATES OF AMERICA

   No. 87-961

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Memorandum for the United States in Opposition

   Petitioners seek review of a decision by the court of appeals that
their claims were barred by the discretionary function exception to
the Federal Tort Claims Act, 28 U.S.C. 2680(a).  Petitioners contend
that the federal government's trust responsibilities towards Indians
preclude application of the discretionary function exception to claims
by Navajo uranium miners that the government negligently failed to
protect them from, or warn them against, the possible dangers of
radiation exposure.

   1. Petitioners are former Navajo uranium miners (or their
survivors) who worked in privately owned and operated mines on the
Navajo Reservation in the 1940s and 1950s.  Petitioners brought suit
against the United States under the Federal Tort Claims Act (FTCA), 28
U.S.C. 2671 et seq., contending that the government negligently failed
to establish and enforce radiation safety standards in the underground
mines where the miners worked.  Petitioners further contended that the
United States Public Health Service, which conducted an
epidemiological study in the 1950s of the health hazards associated
with uranium mining, negligently failed to warn them of the possible
dangers of radiation exposure.

   On petitioners' own motion, the district court severed the claims
of eleven "representative" plaintiffs for trial.  After full discovery
on issues common to all plaintiffs (as well as on "causation" issues
particular to the "representative" plaintiffs), the case was tried to
the district court.  After trial, the district court entered detailed
findings of fact and conclusions of law (Pet. App. A1-A43) and held
that the claims of the "representative" plaintiffs were barred by the
discretionary function exception to the FTCA, 28 U.S.C. 2680(a).  /1/

   The "representative" plaintiffs sought review of that decision
before the United States Court of Appeals for the Ninth Circuit which,
on August 13, 1985, affirmed the district court's decision (Pet. App.
B1-B14).  The court of appeals determined in Begay I (id. at B10-B13)
that both the alleged failure to regulate and the failure to warn were
discretionary decisions falling within the discretionary function
exception to the FTCA, as interpreted by this Court in United States
v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 813 (1984).  The "representative" plaintiffs did not seek
certiorari.

   2. Petitioners -- those who were not named as representative
plaintiffs in the initial test cases -- subsequently sought to amend
their complaint in the district court.  /2/ The government opposed
that motion, and the district court, treating the government's
opposition as a motion for summary judgment, entered judgment for the
government (Pet. App. D1-D3).  In an oral opinion, the district court
noted (id. at C3) that in the Amended Complaint "there is nothing that
I can find that is a new fact in the sense that it would materially
change or change at all the outcome of the original trial." The court
therefore concluded (id. at C4) that petitioners' claims were barred
by the discretionary function exception "for the same reasons as
stated in the findings of fact and conclusions of law that resulted
from the first trial in 1983 of the representative plaintiffs and as
affirmed in the opinion of (the court of appeals in Begay I.)" /3/

   The court of appeals affirmed in an unpublished opinion (Pet. App.
E1-E3).  The court stated (id. at E3):  "(T)his action and Begay I are
not factually distinguishable.  Thus, the doctrine of stare decisis
applies to (petitioners') action, and the discretionary function
exception of the FTCA bars their claims."

   3. The court of appeals was clearly correct in concluding that
petitioners' claims were barred by a straightforward application of
the discretionary function exception to the FTCA.  Petitioners'
assertion that they are entitled to a special exemption from the
discretionary function exemption is without merit.

   a. Although peitioners claim (Pet. 9) that there are "dramatic
disparities" between the facts in Varig Airlines and the instant case,
this case is clearly controlled by Varig Airlines.  Decisions by
government agencies as to whether regulation is necessary in a given
area or whether warnings should be issued as to certain health hazards
are quintessentially discretionary.  As this Court clearly stated (467
U.S. at 813-814), "whatever else the discretionary function exception
may include, it plainly was intended to encompass the discretionary
acts of the Government acting in its role as a regulator of the
conduct of private individuals." Other courts of appeals faced with
identical or analogous allegations have also concluded that they were
barred by the discretionary function exception.  See Barnson v. United
States, 816 F.2d 549, 553-555 (10th Cir. 1987) (alleged failure of
U.S. Public Health Service and AEC to warn uranium miners of, and
protect them against, radiation hazards), cert. denied, No. 87-104
(Oct. 13, 1987);  Bacon v. United States, 810 F.2d 827 (8th Cir. 1987)
(alleged failure of HUD and EPA to warn of dioxin levels during repair
of roads at Times Beach under federal block grant);  Merklin v. United
States, 788 F.2d 172 (3d Cir. 1986) (AEC inspectors' alleged failure
to warn uranium processing plant employees of health hazards
discovered during AEC inspections).  /4/

   b. Petitioners' contention that the federal government's special
"trust responsibility" for the Indian tribes should preclude
application of the discretionary function exception to Navajo Indian
miners finds no support in law or logic.  Such a trust responsibility
might affect the duty of care owed to petitioners and, thus, aid their
attempts to establish negligence.  But whether or not the United
States was negligent has no bearing on the proper interpretation of
the discretionary function exception, which applies "whether or not
the discretion involved be abused." 28 U.S.C. 2680 (a).  Petitioners
are unable to point to a single case that holds, or any authority that
even implies, that the discretionary function exception should be
construed more narrowly when applied to Indian plaintiffs.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1988

   /1/ Section 2680(a) precludes the exercise of jurisdiction by the
federal courts over:

         Any claim * * * 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.

   /2/ Petitioners sought to add to their complaint, in addition to a
realleged "failure to warn" count, claims of:  (1) breach of an
alleged "good samaritan" undertaking;  (2) medical malpractice;  (3)
professional and industrial health malpractice;  and (4) breach of
alleged duties to research subjects.

   /3/ The district court also stated (Pet. App. C3-C4) that "under
the principle of virtual representation" the case was "subject to
dismissal on res judicata or collateral estoppel grounds." The court
noted that petitioners and the representative plaintiffs had "the same
attorneys * * *, the same issues involved, the same facts involved"
and that the representative plaintiffs had been specifically "selected
by the plaintiffs as being representative of everybody else in the
group" (id. at C4).  The district court decided (ibid.), however, that
it was "safer, in order to enable counsel for the (petitioners) to
have a better record to appeal on," to grant summary judgment for
respondents on the merits.

   /4/ There are no allegations in this case that any government
agency negligently failed to follow its own regulations in regulating
the safety of a given agency.  Rather, the claim is that the agency
failed to promulgate suitable regulations or to issue appropriate
warnings.  Thus, this case does not present any issue found in
Berkovitz v. United States, cert. granted, No. 87-498 (Jan. 11, 1988),
and there is no reason to hold this case for disposition in light of
Berkovitz.