346 U.S. 15 (1953), 308, Dalehite v. United States

Docket NºNo. 308
Citation346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427
Party NameDalehite v. United States
Case DateJune 08, 1953
CourtUnited States Supreme Court

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346 U.S. 15 (1953)

73 S.Ct. 956, 97 L.Ed. 1427



United States

No. 308

United States Supreme Court

June 8, 1953

Argued April 6-8, 1953




In this action against the United States under the Tort Claims Act to recover damages for a death resulting from the disastrous explosion at Texas City, Tex., of ammonium nitrate fertilizer produced at the instance, according to the specifications, and under the control of the United States, for export to increase the food supply in areas under military occupation following World War II, the District Court found that the explosion resulted from negligence on the part of the Government in adopting the fertilizer export program as a whole, in its control of various phases of manufacturing, packaging, labeling and shipping the product, in failing to give notice of its dangerous nature to persons handling it, and in failing to police its loading on shipboard.

Held: as a matter of law, the facts found by the District Court cannot give it jurisdiction of the cause under the Act, because the claim is

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

within the meaning of 28 U.S.C. § 2680(a), which makes the Act inapplicable to such claims. Pp. 17-45.

(a) The legislative history of the Act discloses that § 2680(a) was included to assure protection for the Government against tort liability for errors in administration or in the exercise of discretionary functions. Pp. 24-30.

(b) The "discretionary function or duty" that cannot form a basis for suit under the Act includes more than the initiation of programs and activities; it also includes determinations made by executives or administrators in establishing plans, specifications, or schedules of operations. Acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. Pp. 30-36.

(c) The acts of "negligence" found by the District Court do not subject the Government to liability, because the decisions found culpable were all responsibly made in the exercise of judgment at a planning, rather than an operational, level, and involved

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considerations more or less important to the practicability of the Government's fertilizer program. Pp. 37-42.

(d) The District Court's finding that the Coast Guard and other agencies were negligent in failing to prevent the fire by regulating storage or loading of the fertilizer is classically within the exception relating to acts based on legislative judgment. Pp. 42-43.

(e) The alleged failure in fighting the fire is also outside the coverage of the Act, for the Act did not change the normal rule that an alleged failure or carelessness of public firemen does not create private actionable rights. Pp. 43-44.

(f) Since the Act may be invoked only on a "negligent or wrongful act or omission" of an employee, it created no absolute liability of the Government by virtue of its ownership of an "inherently dangerous commodity" or property, or of its engaging in an "extra-hazardous" activity. Pp. 44-45.

197 F.2d 771 affirmed.

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REED, J., lead opinion

MR. JUSTICE REED delivered the opinion of the Court.

Petitioners seek damages from the United States for the death of Henry G. Dalehite in explosions of fertilizer with an ammonium nitrate base at Texas City, Texas, on April 16 and 17, 1947. This is a test case, representing some 300 separate personal and property claims in the aggregate amount of two hundred million dollars. Consolidated trial was had in the District Court for the Southern District of Texas on the facts and the crucial question of federal liability generally. This was done under an arrangement that the result would be accepted as to those matters in the other suits. Judgment was rendered following separate proof of damages for these individual plaintiffs in the sum of $75,000. Damages in the other claims remain to be determined. The Court of Appeals for the Fifth Circuit unanimously reversed, however, In re Texas City Disaster Litigation, 197 F.2d 771, and we granted certiorari, 344 U.S. 873, because the case presented an important [73 S.Ct. 959] problem of federal statutory interpretation.

The suits were filed under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2678, 2680. That Act waived sovereign immunity from suit for certain specified torts of federal employees. It did not assure injured persons damages for all injuries caused by such employees.

The Act provides that the federal district courts, "[s]ubject to the provisions of [the act]," are to have:

exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or

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loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

§ 1346(b).

There is an exception from the scope of this provision. Section 2680 reads:

The provisions of this chapter and section 1346(b) of this title shall not apply to --

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.

Suing under this grant of jurisdiction, the plaintiffs claimed negligence, substantially on the part of the entire body of federal officials and employees involved in a program of production of the material -- Fertilizer Grade Ammonium Nitrate (FGAN hereafter) -- in which the original fire occurred, and which exploded. This fertilizer had been produced and distributed at the instance, according to the specifications, and under the control, of the United States.

The adaptability of the material for use in agriculture had been recognized long prior to 1947. The Government's interest in the matter began in 1943 when the TVA, acting under its statutory delegation to undertake experiments and "manufacture" fertilizer, 48 Stat. 61, 16

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U.S.C. § 831d, first began production for commercial purposes.1 TVA used plant facilities formerly used for production of ammonium nitrate for explosives. In the year 1943, the War Production Board, responsible for the production and allocation of war materials, Exec. Order 9024, January 16, 1942, 7 Fed.Reg. 329, instituted a program of yearly production of 30,000 tons a month of FGAN for private domestic agricultural use through plants no longer required for ammunition production. Administration was to be carried on through the Army's Bureau of Ordnance. The TVA specifications were followed, and advice given by its experts. This early production for domestic use furnished a test for manufacture and utility of FGAN.

The particular FGAN involved at Texas City came to be produced for foreign use for these reasons: following the World War II hostilities, the United States' obligations [73 S.Ct. 960] as an occupying power,2 and the danger of internal unrest, forced this Government to deal with the problem of feeding the populations of Germany, Japan, and Korea. Direct shipment of foodstuffs was impractical; available fertilizer was in short supply, and requirements from the United States were estimated at about 800,000 tons. However, some 15 ordnance plants had been deactivated and turned over to the War Assets Administration, 44 CFR, Part 401, for disposal. Under-Secretary of War Royall suggested in May of 1946, and Secretary Patterson agreed, that these be used for production of fertilizer needed for export.3 The Director of

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the Office of War Mobilization and Reconversion, 58 Stat. 785, 50 U.S.C.App. § 1651 et seq. (1944 ed.), acting under the power delegated by the President in Exec.Order 9347, May 27, 1943, 8 Fed.Reg. 7207 and Exec.Order 9488, October 3, 1944, 9 Fed.Reg. 12145, ordered the plants into operation. Cabinet approval followed. The War Department allocated funds from its appropriations for "Supplies" and "Military Posts" for 1946; direct appropriations for relief in the occupied areas were made by Congress in the following year.4 The Army's Chief of Ordnance was delegated the responsibility for carrying out the plan, and was authorized particularly to enter into cost plus fixed fees contracts with private companies for the operation of the plants' facilities. He, in turn, appointed the Field Director of Ammunition Plants (FDAP) to administer the program. Thereafter, the Department entered into a number of contracts with private firms -- including the du Pont Co. and Hercules Powder Co. -- to "operate the installations . . . described herein for the graining of ammonium nitrate (fertilizer grade)," but subjecting "the work to be done by the Contractor . . . to the general supervision, direction, control and approval of the Contracting Officer." A detailed set of specifications was drawn up and sent to each plant which included "FDAP Specifications for Products" and a similar TVA paper. Army personnel were appointed for each plant. These were responsible for the application of these specifications, liaison with supply officials,

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and satisfaction of production schedules, pursuant to an Army Standard Operating Procedure. Beyond this, operations were controlled by the administering corporation, which...

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