Nelms v. Laird

• Decision Date: 28 May 1971
• Docket Number: No. 14568.,14568.
• Citation: 442 F.2d 1163
• Parties: Jim Nick NELMS, Lettie Baker Nelms and Lonnie Ray Nelms, Appellants, v. Melvin LAIRD, Secretary of Defense and Robert Seamans, Jr., Secretary of Air Force, and United States of America, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

442 F.2d 1163 (1971)

Jim Nick NELMS, Lettie Baker Nelms and Lonnie Ray Nelms, Appellants, v. Melvin LAIRD, Secretary of Defense and Robert Seamans, Jr., Secretary of Air Force, and United States of America, Appellees.

No. 14568.

United States Court of Appeals, Fourth Circuit.

Argued March 3, 1971.

Decided May 28, 1971.

George E. Allen, Sr., Richmond, Va. (court-assigned counsel) (Allen, Allen, Allen & Allen, Richmond, Va., on brief), for appellants.

John F. Dienelt, Atty., Dept. of Justice, (William D. Ruckelshaus, Asst. Atty. Gen., and Alan S. Rosenthal, Atty., Dept. of Justice, and Warren H. Coolidge, U. S. Atty., E. D. North Carolina, on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

To maintain its combat readiness, the United States Air Force regularly trains air crews in supersonic flight. Jim Nick Nelms, who lives in a rural community near Nashville, North Carolina claims military planes on a training mission from Beale Air Force Base in California caused sonic booms that damaged his house so extensively the building is now beyond repair. After unsuccessfully seeking satisfaction from the Air Force, Nelms brought this suit for $16,000 damages. The district court entered summary judgment for the government on the ground that supersonic flight training is a discretionary function within the meaning of the Federal Tort Claims Act 28 U.S.C. §§ 1346(b), 2671-2680. We reverse.

I

The Air Force, while denying that it damaged Nelms' house, conceded that a plane on a supersonic training flight caused a sonic boom near it on the day that he alleges the principal damage occurred. The Air Force contends, however, that notwithstanding the dispute over the effects of the sonic boom on Nelms' house, the discretionary function exception of the Federal Tort Claims Act releases it from any liability. To establish that supersonic flight training is a discretionary function, the Air Force relies on these uncontroverted facts: (a) the flight was authorized by the Commander-in-Chief of the Strategic Air Command in the exercise of his responsibility for the nation's air defense; (b) the specific flight plan was developed under the directions of the 9th Strategic Reconnaissance Wing according to Air Force Regulation 55-34; (c) the actual flight was conducted according to explicit directions regarding route, speed, and altitude from which the pilot did not deviate.

The Federal Tort Claims Act allows an action against the government for loss of property "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." 28 U.S.C. § 1346 (b). But the Act releases the government from tort liability for a 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." 28 U.S. C. § 2680(a). The discretionary function exception affords the government a defense "where there is room for policy judgment and decision," Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953), and not when its employees are under a duty imposed by law to perform a mandatory act. Somerset Seafood Co. v. United States, 193 F.2d 631, 635 (4th Cir. 1951). See also O. Reynolds, The Discretionary Function Exception of the Tort Claims Act, 57 Geo.L.J. 81, 91 (1968).

Undoubtedly the Commander-in-Chief of the Strategic Air Command exercised a discretionary function in ordering supersonic training missions over land areas of the United States. The defense needs of the nation and the degree of air crew competence required to meet those needs are precisely the kind of decision that the Congress intended should not be second-guessed in a tort action. See Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). But the discretion of the Commander-in-Chief who authorized the training program and of his subordinates who planned the operating details of this specific flight over North Carolina was restricted by Air Force Regulation 55-34.¹ The regulation directed them to take detailed precautions in planning "maximum protection for civilian communities." AF Reg. 55-34 ¶ 3. Maximum, defined as "greatest in quantity or highest in degree attainable or attained," Webster's Third New International Dictionary (1964), must be given full effect in interpreting the regulation. That the regulation leaves no room for affording the public less protection is apparent from paragraph 4, which recognizes that despite all precautions, damage may result from sonic booms, and in that event, requires the Air Force to accept responsibility for restitution without qualification and pay all just claims.

The import of the regulation is similar to that of the Wreck Removal Acts 14 U.S.C. § 86; 33 U.S.C. §§ 409, 414 in Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir. 1951). In that case, an oyster boat was stranded on the wreck of the old battleship TEXAS in Chesapeake Bay. The boat's owner brought suit under the Federal Tort Claims Act alleging that the government was negligent in creating and marking the wreck. Refusing to apply the discretionary function exception, we said:

"The Wreck Acts effectively dispose of the contention that the United States is relieved of liability here because, under § 2680(a) of the Act, the Government is not liable for the breach of a discretionary duty and that the Government\'s duty here to remove or mark the wreck was discretionary. As we read the Wreck Acts, the duty of the United States to mark or remove the wreck is mandatory. The appropriate federal agencies and officers decide merely the proper methods or measures." 193 F.2d at 635.

The parallel to Somerset is instructive. The Air Force concedes that the sonic boom was caused by an aircraft flying 70,000 feet or more over Nashville at three times the speed of sound. By the laws of physics, a pressure wave producing a sonic boom was unavoidable. While the decision to fly over North Carolina at supersonic speeds was discretionary, the degree of protection to be afforded civilians within reach of the sonic boom was not. In Somerset, a law, here, a regulation, placed the government employees under a mandate that gave them no discretion with regard to the protection they were required to afford the public.

The government relies on several cases that relieve the Air Force of liability for sonic booms under the discretionary function exception of the Act.² These cases, in turn, rely on Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), which dealt with the Texas City disaster of 1947. Nitrogen fertilizers, which the government permitted to be packaged and transported for export in an unsafe manner, caused a catastrophic explosion. The Supreme Court held that administrative decisions about packaging, labeling, testing, and transporting the fertilizer were discretionary and, therefore, not actionable. The Court applied the discretionary function exception to all of the government employees who made these decisions, not merely to those who authorized the export program. The administrative decisions, the Court said, "were all responsibly made at a planning rather than an operational level and involved considerations more or less important to the practicability of the Government's fertilizer program." 346 U.S. at 42, 73 S.Ct. 956, 971. However, no aspect of these administrative decisions included assessment of the risk or even expectation of the possibility that the fertilizer would explode. Recognizing this, the Court indicated that the likelihood of harm was too remote to render the government liable:

"`There must be knowledge of a danger, not merely possible, but probable,\' MacPherson v. Buick Motor Co., 217 N.Y. 382, 389, 111 N.E. 1050. * * * Here, nothing so startling was adduced. The entirety of the evidence compels the view that FGAN fertilizer was a material that former experiences showed could be handled safely in the manner it was handled here. Even now no one has suggested that the ignition of FGAN was anything but a complex result of the interacting factors of mass, heat, pressure and composition." 346 U.S. at 42, 73 S.Ct. 956, 971.

The unforeseeability of harm in the Texas City explosion contrasted with the likelihood of harm from sonic booms raises a distinction so significant that Dalehite cannot be considered to control the case before us. By its reliance on the quoted language in MacPherson, the Court indicated that the exception is inapplicable when the government knows harm is probable. There is an obvious difference between the unencumbered right to make decisions for the general welfare and the unrestricted power to disregard predictable danger to the public at large. Here the release of a destructive force — a sonic boom — was deliberately planned, and the likelihood of harm to some civilians was known to exist despite all precautionary measures the planners could take. These factors, not found in Dalehite, make that case inapplicable.³ The inability to prevent a deliberately released destructive force from causing harm, it seems to us, provides an appropriate limit to the discretionary function exception.

II

Our holding that the exception is inapplicable does not, of course, render the Air Force liable. In order for Nelms to prevail, he must show that the damage to his property was caused by the negligent or wrongful act or omission of a government employee "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 ...