Wells v. U.S., 87-5124

• Decision Date: 19 July 1988
• Docket Number: No. 87-5124,87-5124
• Citation: 271 U.S.App.D.C. 244,851 F.2d 1471
• Parties: , 271 U.S.App.D.C. 244, 57 USLW 2080, 18 Envtl. L. Rep. 21,308 Ella Mae WELLS, et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1471

851 F.2d 1471

28 ERC 1156, 271 U.S.App.D.C. 244, 57

USLW 2080,

18 Envtl. L. Rep. 21,308

Ella Mae WELLS, et al., Appellants, v. UNITED STATES of America, Appellee.

No. 87-5124.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 10, 1987.

Decided July 19, 1988.

Charles S. Siegel, Dallas, Tex., for appellants.

Gregory C. Sisk, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Robert S. Greenspan, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellee.

Before ROBINSON and EDWARDS, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

Plaintiffs, 189 families composed of 571 persons who reside in the Dallas, Texas area, seek compensation for personal injuries and property damage which they and their minor children claim to have suffered due to alleged negligent acts and omissions of the Environmental Protection Agency ("EPA"). Plaintiffs claim that the EPA negligently regulated and communicated knowledge of public health risks and lead pollution dangers in plaintiffs' neighborhoods. ¹ The district court granted the government's motion to dismiss, citing two exceptions to the Federal Tort Claims Act (the "Act"), 28 U.S.C. Secs. 1346(b), 2671-2680, 2680(a) and 2680(h). Wells v. United States of America, 655 F.Supp. 715 (D.D.C.1987). We affirm the district court's decision on the basis of the exception in the Act for discretionary functions and duties. 28 U.S.C. Sec. 2680(a).

I. FACTUAL BACKGROUND

Plaintiffs allege that for many years the EPA has continuously and gratuitously monitored and evaluated lead pollution levels in their neighborhoods that surround three lead smelters, RSR Corporation, Dixie Metals Corporation and N.L. Industries. One of the housing projects in which plaintiffs live, is "directly downwind from the largest lead recycling plant in the world." Brief for Appellants at 3. Plaintiffs contend that "[r]esultant brain damage and developmental impairments [from lead pollution] have produced lifelong debilitating effects ..." id. at 4, and that the EPA negligently violated an alleged legal duty to inform them of the risks and to adequately and timely remedy the hazards or to so require.

Plaintiffs also claim that the EPA affirmatively misled them as to the full extent of the lead pollution problem in that after the regional study was completed, Washington EPA headquarters deleted information from a press statement to mislead the public as to the extent of the lead contamination; that the EPA deleted all information indicating that elevated lead levels had been found in children's blood and in the soil around day care centers and school playgrounds; and that Dr. Norman Dyer, Chief of the EPA Pesticides and Toxics Branch, was discouraged from keeping any notes of his work on the regional lead study.

The district court found plaintiffs' claims barred by the misrepresentation exception of the Act which provides:

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

... (h) Any claim arising out of ... misrepresentation, deceit ...

28 U.S.C. Sec. 2680(h). Wells, 655 F.Supp. at 724. We need not determine the applicability of this misrepresentation exception, or whether the issue is preserved on appeal, because we find that the discretionary function exception applies and the government is immune from suit. Also, because of the application of the discretionary function exception, we need not determine whether the government would be liable as a private person under the good samaritan doctrine of Texas' tort law.

Finally, plaintiffs cursorily assert that the EPA violated the Clean Air Act, 42 U.S.C. Secs. 7401 et seq., by failing to "require the submission by Texas of a 'lead implementation plan' for the Dallas area." Brief for Appellants at 7. Although plaintiffs do refer to the Clean Air Act claim in two sentences of their brief, id., they make no factual or legal arguments in support thereof. Therefore we cannot address the issue.

Plaintiffs' claims primarily concentrate on the allegedly negligent decision of Dr. John Hernandez, the EPA Deputy Administrator for the area, to conduct further study while refusing to take immediate remedial action or to accept an offer of one of the lead companies to clean up the area. After an EPA regional office conducted a study of lead in soil samples and school children's blood, RSR Corporation made a written offer to EPA to replace soil having lead concentrations of over 1000 parts per million. Dr. Hernandez decided, however, that further study was necessary in order to determine whether the study was necessary in order to determine whether the 1000 parts per million standard was an appropriate lead testing level for soil and did not accept the company's offer to clean up the area. In making the decision to further study the problem, he was motivated by his conclusion that if he accepted the company's offer he would implicitly be establishing a precedent that might be too stringent to be applied generally, even though there was evidence that some hazards existed at that level. Dr. Hernandez decided that eighteen months of additional blood testing should be conducted. Wells, 655 F.Supp. at 718. RSR Corporation subsequently voluntarily cleaned up the area.

II. ANALYSIS

A. Applicable Standard

The district court granted the government's motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), 12(b)(6). In order to survive a motion to dismiss, "the complaint must set forth sufficient information to suggest that there exists some recognized legal theory upon which relief can be granted." Gregg v. Barrett, 771 F.2d 539, 547 (D.C.Cir.1985), quoting District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081 (D.C.Cir.1984). Plaintiffs emphasize that they need only "adduce a set of facts" supporting their legal claims in order to survive a motion to dismiss. Brief for Appellants at 1. See also id. at 14; Reply Brief for Appellants at 13-15, 18-19. Assuming all factual allegations are true, a court must dismiss a complaint if the plaintiff fails to establish a right to relief based on the facts alleged in the complaint. Gregg, 771 F.2d at 547.

B. The Private Liability Requirement of the Tort Claims Act

At the outset the government relies upon the private liability requirement that derives from section 1346(b) of Title 28. This provides that federal courts have jurisdiction over actions involving claims against the United States for

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. Sec. 1346(b). The Tort Claims Act further provides that the government shall be liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. Sec. 2674.

We reject the government's argument that, as a threshold matter, the Act does not apply when the government is engaged in a "core governmental function." Brief for Appellee at 23. Very few decisions even mention the Act's private liability requirement and we have found no decisions that rely solely on such requirement or any "core governmental function" doctrine in holding the government immune from suit. See United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1853, 10 L.Ed.2d 805 (1962) ("Whether a claim could be made out would depend upon whether a private individual under like circumstances would be liable under state law ..."); Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957) ("the test ... is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred."); Arvanis v. Noslo Engineering Consultants, Inc., 739 F.2d 1287, 1292 (7th Cir.1984) ("In the absence of any persuasive analogy with private conduct, we conclude that appellants cannot maintain a Tort Claims action against the United States."); Gelley v. Astra Pharmaceutical Products, Inc., 466 F.Supp. 182, 185 (D.Minn.1979) ("Regulatory activity engaged in by FDA personnel simply has no counterpart in private activity and thus cannot give rise to liability ..."), aff'd, 610 F.2d 558, 563 (8th Cir.1979). Most cases simply quote the private liability requirement of section 1346(b) and then proceed to rely upon the Act's discretionary function exception. See, e.g., United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines ), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). The Supreme Court recently rejected the government's core governmental function argument in Berkovitz v. United States, --- U.S. ----, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Justice Marshall, writing for a unanimous Court, commented that the government's core governmental function argument "appears to replicate precisely the position expressly rejected" in Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124-125, 100 L.Ed. 48 (1955), and Rayonier, Inc. v. United States, 352 U.S. 315, 318-19, 77 S.Ct. 374, 376-77, 1 L.Ed.2d 354 (1957). Berkovitz, --- U.S. at ---- n. 5, 108 S.Ct. at 1960 n. 5. Furthermore, as set forth in the margin, courts have imposed liability on the United States in many situations in which the government was engaged in activities that have no analogy in the private sector. ²

The district court concluded that the private liability requirement "merely establishes the foundation for" and is "largely congruent with" the discretionary function exception to the Act, and therefore ...