Justices Widen Federal Immunity to Lawsuits : Refuse to Hear Challenges to Open-Air Testing of Atomic Bomb, Mining of Nicaraguan Harbors

Times Staff Writer

The Supreme Court on Monday gave the U.S. government broad immunity from legal attack, refusing to hear suits challenging the open-air testing of the atomic bomb in the 1950s and the mining of Nicaragua's harbors in the 1980s.

The high court action strengthens a key exception to the 1946 Federal Tort Claims Act, the law that provides the right to sue the government for damages "caused by the negligent or wrongful act" of a government employee. The exception says that the government is immune where its employees "perform a discretionary function or duty."

According to lawyers for the plaintiffs, the two cases illustrate the growing tendency of the federal courts to throw out suits against the government, even when strong U.S. liability is alleged.

Dismissal Ends Suit

The dismissal of the atomic testing case ends a suit by 1,200 persons who were exposed to nuclear fall-out in Utah, Nevada and Arizona between 1951 and 1962 and later developed cancer or leukemia. They charged that federal officials knew of the health danger of the atomic tests being conducted and were negligent in failing to warn them. The plaintiffs were awarded damages of $2.6 million in an initial trial, but a federal appeals panel threw out the judgment.

In the second case, the owners of a Norwegian ship that struck a mine in a Nicaraguan harbor filed a Tort Claims Act suit against the United States for $1.6 million in damages. But a federal court dismissed what could have been a politically sensitive case by concluding that the CIA's covert operation against Nicaragua was a discretionary policy decision and a "political question."

Federal judges have readily admitted that they do not understand exactly what Congress meant by the "discretionary function" exception, but U.S. attorneys have argued strongly in recent years that it gives the government near-blanket immunity.

According to this view, once the government uses its discretion to set a policy and its employees seek to carry it out, they are immune from all liability even when they appear to have acted negligently.

"Once you get beyond the case of negligent driving by a government employee, it gets very difficult," said Dale Haralson, an Arizona lawyer who represented the victims of the atomic testing.

In the atomic bomb case, Haralson said the government had the discretionary authority to test the new weapon but charged that its employees were negligent in carrying out the tests.

Exposed to Radiation

"We asserted that they had to take reasonable care in regard to persons living downwind--by alerting them of the dangers, by telling them to stay indoors," he said. Instead, government officials put out public statements saying that the atomic fall-out in the air posed no danger to residents, and many were exposed to radiation.

At the initial trial in Salt Lake City, Judge Bruce Jenkins ruled in the plaintiffs' favor, but the U.S. 10th Circuit Court of Appeals, in overturning the opinion, ruled that the government had the legal discretion not to warn of the health dangers of fall-out.

One of the appeals judges who concurred in the opinion wrote that he felt he had no choice but to recognize the legal exception, despite grave misgivings about its fairness.

"It undoubtedly will come as a surprise to many that, 200 years after we threw out King George III, the rule that the 'king can do no wrong' still prevails at the federal level in all but the most trivial of matters," Judge Monroe McKay wrote.

On Monday, the justices dismissed the final appeal of the atomic bomb victims (Allen vs. U.S., 87-316).

Vessel Struck Mine

In the Nicaraguan mining case, attorneys for ship owners said that the CIA, in operations against the Sandinista government, had recklessly placed mines in shipping lanes and damaged vessels carrying on international trade. The M. T. Iver Chaser, based in Larvik, Norway, struck a mine on March 24, 1984. The justices let stand the lower court ruling dismissing the suit (Chaser Shipping vs. U.S. 87-391).

The high court announced Monday that it will review another aspect of government liability--the question of whether the government is entirely immune in regulating--or failing to regulate--a dangerous product.

The court said that it would consider a case (Berkovitz vs. U.S., 87-498) that involves a Pennsylvania boy who was paralyzed in 1979 after taking a dose of a government-approved polio vaccine. His lawyers contend that federal officials were negligent because they licensed the vaccine before requiring the drug maker to submit adequate test results.

A federal appeals court last year threw out the suit, ruling that such testing and licensing is a "discretionary function" performed by government officials. A dissenting judge called it an example of official negligence.

Residential Picketing

In other actions:

--The court agreed to decide whether a town may ban picketing on its residential streets. Faced with anti-abortion activists marching back and forth outside a doctor's home, the town council of Brookfield, Wis., enacted a law banning picketing in residential areas. But federal courts said that it was an unconstitutional limit on free speech to prohibit all such picketing (Frisby vs. Schultz, 87-168).

--The court, possibly marking an end to a notorious 22-year-old New Jersey murder case, refused to reinstate the triple-murder convictions of former boxer Rubin (Hurricane) Carter and co-defendant John Artis. The justices, without comment, let stand a ruling that the two men's convictions were unlawful because prosecutors had concealed information about a lie detector test taken by a key witness.

Carter's attorney, Myron Beldock, said the former boxer is living in seclusion in New Jersey and would have no comment until after the state announces whether it would seek a third trial. A New Jersey prosecutor said a decision to retry Carter and Artis will be made within the next two weeks.

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