769 F.2d 1523 (11th Cir. 1985), 84-7690, Alabama Elec. Co-op., Inc. v. United States

Docket Nº:84-7690.
Citation:769 F.2d 1523
Party Name:ALABAMA ELECTRIC COOPERATIVE, INC., Plaintiff-Appellant, v. The UNITED STATES of America and the United States Army Corps of Engineers, Defendants-Appellees.
Case Date:September 03, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1523

769 F.2d 1523 (11th Cir. 1985)

ALABAMA ELECTRIC COOPERATIVE, INC., Plaintiff-Appellant,

v.

The UNITED STATES of America and the United States Army

Corps of Engineers, Defendants-Appellees.

No. 84-7690.

United States Court of Appeals, Eleventh Circuit

September 3, 1985

Page 1524

James J. Thompson, Jr., Hare, Wynn, Newell & Newton, Francis H. Hare, Jr., Birmingham, Ala., George C. Douglas, Jr., Andalusia, Ala., George C. Douglas, Jr., Clower, Watkins & Douglas, Troy, Ala., for plaintiff-appellant.

John C. Bell, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty., Montgomery, Ala., John T. Stahr, David C. Shilton, Dept. of Justice, Land and Natural Resources Div., Appellate Section, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before FAY and ANDERSON, Circuit Judges, and GIBSON [*], Senior Circuit Judge.

R. LANIER ANDERSON, III, Circuit Judge:

Alabama Electric Cooperative, Inc. ("AEC") appeals from a decision of the district court dismissing AEC's complaint on the ground that the acts of design and construction complained of were discretionary functions exempted from liability under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. Sec. 2680(a) (West 1965). AEC contends that the district court erred in dismissing its complaint under the discretionary function exception to the FTCA. We agree and reverse.

I. FACTS

AEC is an electric cooperative which supplies wholesale or bulk electricity to a number

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of rural electric cooperatives in central and south Alabama and northwest Florida. In 1967, AEC built a transmission line across the Alabama River. To support the line, a steel tower was constructed on each bank of the Alabama River. When initially constructed, the tower on the east bank was located approximately 75 feet back from the east river bank. At the time, there was no significant river bank erosion occurring in the area. Subsequently, some erosion on the east bank began to occur. This initial erosion was allegedly caused by the Corps of Engineers ("Corps") dumping dredge spoil into the river during 1969-70 and tailwater surges from the Corps' operation of Claiborne Lock and Dam upstream.

During 1970 and 1971, the Corps prepared plans and specifications for a series of eleven dikes or jetties along the Alabama River, the purpose of which was to reduce dredging costs by narrowing the channel and accelerating the current, which would theoretically wash away more silt. One of these dikes was located about one-half mile upstream from AEC's tower, extending out from the opposite bank. The alleged effect of this dike was to deflect the current toward the east bank and AEC's tower. Erosion increased substantially and in August of 1981, AEC determined that its tower was in danger of being undermined. Accordingly, AEC stabilized the tower by driving pilings around its base at a cost of $576,114.09. AEC subsequently brought this action under the FTCA to recover for the cost of stabilizing the tower.

During discovery, the Corps acknowledged that it did not intend to affect the banks of the river by using these dikes, and there was no intentional decision to widen the river at the dike location involved in this suit. The Corps also produced a technical report during discovery called "State of Knowledge of Channel Stabilization in Major Alluvial Rivers." The Corps published the report in 1969, prior to the design and construction of the dikes at issue in the instant case. Although the Corps acknowledged that the report was a recognized authority on dike design, the Corps engineer who was responsible for most of the dike design in the instant case did not recall consulting this publication. The Corps notes, however, that its engineers are not required by regulation to consider this technical report, and AEC has not alleged the violation of any specific regulation. Nonetheless, the report does purport to determine basic principles and design criteria of dikes and other river works. The factors noted in the report as relevant in the design and construction of dikes include: the necessity of bank protection to preserve property; the necessity that all engineering factors and variables which affect river channel geometry be considered and understood; the necessity that bank shear strength be known with respect to flow depth; the requirement that the river engineer determine the effects of a design in advance as accurately as possible; the advisability of constructing a physical model of the river; the requirements that the radius of river bends be analyzed, that maximum depth be plotted against radius of curvature, and that the width selected be tested by computing river current velocities; and, the warning that overcontraction or extending the dikes too far into the river should be avoided or the river will erode the opposite bank.

In contrast to the principles articulated in the report, the Corps engineers involved in the design of the dike at issue in the instant case testified that: the river was not physically modeled; no bend radius was established for the dikes, nor were any design computations made as to proper length and size; no attempt was made to predict the effects of the dikes on the banks; no attempt was made to determine bank slope, bank shear strength, or width-to-depth ratio at which a stable channel could be maintained; and, no attempt was made to determine whether the degree of contraction the dikes would produce would be within levels that the river banks could

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tolerate. Instead, Corps officials testified that the design was basically "eyeballed" using "rules of thumb."

II. THE DISCRETIONARY FUNCTION EXCEPTION AND THE CONTINUED

VALIDITY OF THE PLANNING/OPERATIONAL DISTINCTION

When it enacted the FTCA, Congress preserved the government's sovereign immunity for:

[a]ny 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.

28 U.S.C.A. Sec. 2680(a) (West 1965).

The Supreme Court addressed the scope of the discretionary function exception to the FTCA in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Dalehite was a test case involving 300 separate personal and property claims stemming from the explosions of fertilizer with an ammonium nitrate base at Texas City, Texas. In Dalehite, the plaintiff argued that the government acted negligently in drafting and adopting its fertilizer export plan; that numerous phases of the manufacturing process were negligently performed; and that the government negligently failed to police the shipboard loading of the fertilizer. In holding that all challenged aspects of the government's fertilizer export program were immune from liability under the discretionary function exception to the FTCA, the Court stated:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims 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. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.

Id. at 35-36, 73 S.Ct. at 968. Cases decided subsequently to Dalehite have placed particular emphasis upon the Court's statement that "[w]here there is room for policy judgment and decision, there is discretion." See, e.g., Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir.1974).

The most recent pronouncement by the Supreme Court on the scope of the discretionary function exception is contained in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. ----, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) (hereinafter cited as "Varig Airlines "). In Varig Airlines, the Court rejected "the supposition that Dalehite no longer represents a valid interpretation of the discretionary function exception." 467 U.S. at ----, 104 S.Ct. at 2764, 81 L.Ed.2d at 673. Plaintiffs in Varig Airlines sought to recover under the FTCA for the alleged negligence of the Federal Aviation Administration ("FAA") in its aircraft certification process. The plaintiffs' essential argument in Varig Airlines was "that the negligent failure of the FAA to inspect certain aspects of aircraft type design in the process of certification gives rise to a cause of action against the United States under the Act." 467 U.S. at ----, 104 S.Ct. at 2766, 81 L.Ed.2d at 675. In holding that the acts of the FAA were immune under the discretionary function exception to the FTCA, the Court noted that the manufacturer of an airplane has primary responsibility for developing plans and specifications and performing the necessary inspections and

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tests to insure that an aircraft's design comports with applicable regulations. The Court placed primary emphasis upon the fact that the FAA made a policy decision as to the best means of assuring compliance with its regulations. The Court stated:

The FAA's implementation of a mechanism for compliance review is plainly discretionary activity of the "nature and quality" protected by Sec. 2680(a). When an agency determines the...

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