BALDOCK, Circuit Judge.
Uranium miners and survivors of deceased uranium miners brought suit against the United States to obtain money for injuries arising from radiation exposure. The district court granted summary judgment, finding the employees of the government performed discretionary functions and concluding the United States is
Plaintiffs-appellants brought suit in February 1980 against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-80, seeking recovery for injuries sustained as a result of the exposure of miners to radiation in privately owned and operated mines in Utah. In particular, they alleged employees of the United States Public Health Service (PHS), who were conducting medical and environmental surveys associated with radiation in uranium mines, failed to warn miners of hazards, negligently provided safety services to miners, and were otherwise negligent. They also asserted that the Atomic Energy Commission (AEC) breached a statutory duty to protect miners from the radiation.
On appeal, appellants assert summary judgment was improper because there exist disputed facts, the AEC had a mandatory duty to protect the miners, and the discretionary function exception should not apply to negligent medical care. We must decide, therefore, the following issues:
(1) whether the district court erred in finding that there are no material issues of fact in dispute which are pertinent to the government's defense of sovereign immunity;
(2) whether the district court erred in concluding the discretionary function exception should apply to the negligence claims; and
(3) whether the district court erred in concluding the AEC has no mandatory duty to protect the miners from radiation exposure.
The Federal Tort Claims Act provides a general exception to sovereign immunity by authorizing suits against the United States for
28 U.S.C. § 1346(b). Although this is a broad waiver of immunity, the United States is subject to suit only to the extent provided by law, and the waiver may not be extended or narrowed beyond that which Congress intended. Ewell v. United
The discretionary function exception was carefully examined in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Dalehite involved a suit against the United States arising from the explosion of two ships loaded with fertilizer. The government had engaged the ships pursuant to a federal assistance program to transport fertilizer to countries whose economies had been damaged by World War II. Plaintiffs alleged the government had been negligent in failing to label the fertilizer packages to warn of their volatility. In ruling that the discretionary function exception barred the suit, the Court observed that Congress created the exception to ensure that actions brought against the United States would be restricted to such "ordinary common law torts" as automobile collisions. 346 U.S. at 28, 73 S.Ct. at 964. It described the exception to include the initiation of programs and activities as well as
Id. at 35-36, 73 S.Ct. at 967-68.
More recently, the Court examined the discretionary function exception in United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Varig involved suits against the United States for the alleged negligence by the Federal Aviation Administration (FAA) (or the Civil Aeronautics Agency, its predecessor) in inspecting certain aircraft modifications. Plaintiffs alleged that the FAA's negligent failure to discover design defects led to several aircraft disasters. The Court ruled that plaintiffs could not recover under California's "good samaritan" rule because the actions giving rise to the suit, "spot-checking" manufacturer's compliance with safety standards, was determined to be a discretionary function. Id. at 820, 104 S.Ct. at 2767. It instructed that the application of the discretionary function exception is determined by the nature of the conduct rather than the status of the actor and that it clearly applies to regulatory activities. Id. at 813-14, 104 S.Ct. at 2764-65.
A. Factual Disputes
Appellants assert the district court erred in granting summary judgment because there exist disputed facts. In particular, they argue there are disputed facts concerning whether appellees were negligent and whether the decision not to warn was influenced by rational security concerns.
Summary judgment is a district court's decision that the moving party is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Because it is a legal decision rather than a finding of fact, it is subject to de novo review. Morgan v. Mobil Oil Corp., 726 F.2d 1474, 1477 (10th Cir.1984). We therefore apply the standards set forth by the Supreme Court and Fed.R.Civ.P. 56(c) to this case.
The Supreme Court recently elaborated on the requirements for the grant of summary judgment. In Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), the Court stated that summary judgment may be granted only when there is no "genuine issue of material fact," but cautioned that "the mere existence of some alleged factual dispute
The district court determined there were factual disputes among the parties, but concluded those disputes were irrelevant to the issue whether the government's acts were discretionary. Barnson, 630 F.Supp. at 420. The central issue in this case is whether federal officials exercised discretion by not warning miners of radiation hazards and not regulating uranium mining safety. Section 2680(a) maintains sovereign immunity "whether or not the discretion involved is abused." Thus, the discretionary function exception applies even when the discretionary acts constitute negligence. General Public Utilities Corp. v. United States, 745 F.2d 239, 245 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985). Factual issues concerning negligence are irrelevant to the central issue whether the federal officials' actions were discretionary. Hylin v. United States, 755 F.2d 551, 553 (7th Cir.1985).
In determining the decision by federal officials not to warn miners of radiation hazards was discretionary, the district court found two factors dispositive: (1) the study would not have been possible without secrecy and (2) the AEC's concerns about national security influenced that decision. Barnson, 630 F.Supp. at 421. The court noted that those factors were not disputed. The appellants, however, now contend that the issue whether the decision not to warn was based on national security concerns is disputed. The record indicates that the United States supported its motion for summary judgment with exhibits demonstrating the AEC's concern that informed miners would flee the uranium mines and threaten the nation's uranium supply. We have scrutinized the record and find nothing in appellants' response to the motion for summary judgment, the documents attached thereto, or in a transcript of a deposition of Jesse Johnson, a retired official of the Raw Materials Program of the AEC, which would contradict the government's assertions. A party opposing a motion for summary judgment must come forth with specific facts showing the existence of a genuine issue for trial. Fed.R.Civ.P. 56(e); Dart Industries, Inc. v. Plunkett Co. of Okla., 704 F.2d 496, 497 (10th Cir.1983). Appellants have failed to respond with such facts, and the district court correctly concluded there were no issues of material fact.
B. Negligence Claims
Appellants also argue the district court improperly granted summary judgment because PHS physicians breached certain nondiscretionary medical duties and the government breached nondiscretionary "good samaritan" duties. We agree with the district court's disposition of these issues.
Appellants assert that physicians and industrial hygienists involved in the PHS study negligently failed to warn miners of dangers associated with radiation exposure in uranium mines. Had the decision not to warn been a medical judgment, it might not come within the discretionary function exception. See, e.g., Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977). There is no evidence in the record of this case which would indicate that the government physicians and hygienists undertook the medical care and treatment of the miners under study. On the contrary, the record reflects that the decision not to advise the miners of the health risks was based on political policy rather than on medical considerations. Thus, the decision not to warn was discretionary. Varig, 467 U.S. at 820, 104 S.Ct. at 2767. Furthermore, the discretionary function exception is applicable regardless of whether the physicians and hygienists participated in the creation of that policy decision or merely complied with it.
The district court also correctly ruled that the discretionary function exception applies to appellants' "good samaritan" claim. Appellants assert that the exception should not apply because the government undertook a duty to warn the miners of radiation dangers when it began the study. Assuming such a duty was created and the government breached that duty, nothing more would be established than negligence. See Restatement (Second) of Torts §§ 323 and 324A (1965). Because the decision not to warn was a discretionary policy decision, if the government was negligent, it would not be liable for such negligence. Russell v. United States, 763 F.2d 786, 787 (10th Cir.1985) (following Hylin v. United States, 755 F.2d 551 (7th Cir.1985)); General Public Utilities, 745 F.2d at 243 n. 6; Begay v. United States, 591 F.Supp. 991, 1007 and 1013 (D.Ariz.1984) (The government's decision not to warn uranium miners of possible radiation injury is a discretionary decision not subject to liability for breach of good samaritan duty.), aff'd, 768 F.2d 1059 (9th Cir.1985).
C. Mandatory Duty
Appellants assert the AEC had a mandatory duty imposed by statute to protect the health of the uranium miners. 42 U.S.C. § 2051 provides in relevant part as follows:
On appeal, appellants argue that these provisions imposed a mandatory duty on the AEC to establish minimum standards of conduct for the health and safety of uranium miners. It is their position that the duties created by this statute are applicable to the AEC during the mining stage because the extraction of uranium ore may be considered a "production activity" as described in § 2051(a)(5). We agree with the district court that uranium mining is not included within the scope of § 2051(a)(5).
Statutory phrases are not construed in isolation; they must be construed in the context of the statute or act as a whole. United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 2773, 81 L.Ed.2d 680 (1984); Pac. Mut. Life Ins. Co. v. Am. Guar. Life Ins., 722 F.2d 1498, 1500 (9th Cir.1984). Generally, when the same words are used in different sections of the law, they will be given the same meaning. Firestone v. Howerton, 671 F.2d 317, 320 n. 6 (9th Cir.1982). It is apparent from a review of the Atomic Energy Act as a whole, 42 U.S.C. §§ 2011-2296, and § 2051 in particular, that the terms "production activities" were not meant to include the extraction of uranium ore. The act defines the term "produce" and "production facility" with reference to the manufacture of "special nuclear material," not the extraction of "source material" such as uranium. 42 U.S.C. §§ 2014(u) and (v).
In summary, we conclude that the district court properly granted summary judgment because there are no issues of material fact, the discretionary function exception applies to the negligence claims, and 42 U.S.C. § 2051 does not impose a mandatory duty on the AEC to establish regulations concerning uranium mining safety. The district court's grant of summary judgment is affirmed.