Andrulonis v. U.S., s. 61
| Citation | 952 F.2d 652 |
| Decision Date | 30 December 1991 |
| Docket Number | Nos. 61,62 and 506,s. 61 |
| Parties | Joanna ANDRULONIS, Individually and as Conservator of the Property of Jerome Andrulonis, Plaintiffs-Appellees/Cross-Appellants, v. UNITED STATES of America, Glatt Air Techniques, Inc.; Glatt GmbH; Wisconsin Alumni Research Foundation, Inc.; Warf Institute, Inc.; Raltech Scientific Services, Inc., Ralston Purina Company; Eli Lilly and Company; and John L. Thompson and Sons and Company, Defendants, United States of America, Defendant-Appellant/Cross-Appellee. Dockets 89-6274, 90-6016 and 90-6028. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Michael S. Buskus, Albany, N.Y., Asst. Atty. Gen. of State of N.Y. , for third-party defendant-appellant N.Y.S. Dept. of Health.
William G. Cole, Washington, DC, Appellate Staff Atty., Civ. Div., Dept. of Justice (Stuart M. Gerson, Asst. Atty. Gen., Dept. of Justice, Robert M. Greenspan, Staff Atty., Civ. Div., Frederick J. Scullin, U.S. Atty. for N.D.N.Y., of counsel), for U.S.
James D. Featherstonhaugh, Albany, N.Y. (Roemer & Featherstonhaugh, John R. Mineaux, of counsel), for plaintiffs-appellees/cross-appellants.
Before PRATT, MAHONEY and WALKER, Circuit Judges.
The Supreme Court, --- U.S. ----, 112 S.Ct. 39, 116 L.Ed.2d 18, has remanded this case to us for further consideration of the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, ("FTCA"), in light of its opinion in United States v. Gaubert, --- U.S. ----, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). After considering additional briefs submitted by the parties, we conclude for the reasons that follow that Gaubert does not undermine our original opinion, which is reported as Andrulonis v. United States, 924 F.2d 1210 (2d Cir.1991). Therefore, we reinstate our previous opinion that affirmed in part and reversed and remanded in part the judgment of the district court.
This negligence action was brought under the FTCA against the United States which filed a third-party complaint for contribution against the State of New York. For a full statement of the facts and circumstances of this case, see our original opinion, familiarity with which is assumed. Here, we will mention only those facts which bear directly on this opinion.
Jerome Andrulonis was a 34-year-old bacteriologist employed by the New York State Department of Health ("NYSDOH") when he contracted the disease of rabies while conducting a laboratory experiment. He became tragically ill and suffered severe and permanent injuries as a result of the disease. The tragic experiment took place in the state-operated Griffin Laboratories, under the supervision of Dr. John G. Debbie, also a scientist employed by NYSDOH. The rabies viral strain used in the experiment was provided by Dr. George M. Baer, a federal government scientist from the Center for Disease Control ("CDC"), who also observed the experiment.
The district court found the government liable in negligence for Andrulonis's injuries, and also found NYSDOH liable for 65 percent of the damages on the government's contribution claim. The government's liability was based on a finding that Dr. Baer had a duty to warn about the obviously dangerous conditions he should have noticed in the laboratory when the rabies virus he had supplied was being used. By neglecting to warn, Dr. Baer exposed the government to tort liability. In so finding, the district court also held that the discretionary function exception to the FTCA was inapplicable in this case.
In our earlier opinion, we affirmed the district court's finding of liability against the government as well as its finding on the contribution claim. We also agreed with the district court's conclusion that the discretionary function exception did not insulate the government from liability. We held that Dr. Baer's failure to warn of the dangers presented by the research conditions was the type of conduct for which congress had waived sovereign immunity, since his decision not to act did not implicate any policy considerations.
The Supreme Court summarily vacated our original opinion and remanded the case for further consideration in light of Gaubert, which was decided three months after our decision was filed.
In Gaubert, the chairman of the board and largest shareholder of a Texas thrift institution commenced suit against the United States under the FTCA, alleging negligence on the part of regulators from the Federal Home Loan Bank Board ("FHLBB") and the Federal Home Loan Bank-Dallas ("FHLB-D") in their role as supervisors for the thrift. The fifth circuit held that the discretionary function exception was inapplicable to the situation, and thus, could not be used to immunize the actions of the federal officials who had supervised the savings and loan. Citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), that court held that the discretionary function exception protected the officials' actions only until their actions became operational in nature. Thus, as soon as the officials began to participate in management decisions and assumed a role in the day-to-day affairs of the institution, the fifth circuit held, their actions could no longer be protected.
The Supreme Court reversed, however, concluding that the actions of the federal officials in Gaubert did merit protection under the discretionary function exception despite the fact that they were participating in the daily operation of the thrift. In doing so, the Court focused on the fifth circuit's erroneous interpretation of Indian Towing. It sought to abolish the perpetuation of a "nonexistent dichotomy between discretionary functions and operational activities." Gaubert, 111 S.Ct. at 1275. The Court stated:
A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policymaking or planning functions. Day-to-day management of banking affairs, like the management of other businesses, regularly require judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level.
Id. Thus, the Court rejected the fifth circuit's mistaken belief that the exception could not reach decisions made at the operational or management level. Id.
The Supreme Court also emphasized the importance of the regulatory structure in which the government actors worked.
When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.
Id. at 1274-75 (emphasis added). The Court thus explicitly recognized the importance of a regulatory scheme with specific policy objectives. If such a scheme delegated discretion to government agents, those actions in furtherance of stated policy objectives would be insulated from tort liability even if they were taken at a nonplanning level. Therefore, the Court attempted to clarify any confusion created by Indian Towing, as well as stem any dispositive emphasis being placed on the distinction between...
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