ANGLE BY ANGLE v. US

• Decision Date: 25 October 1994
• Docket Number: No. 2:93-CV-215.,2:93-CV-215.
• Citation: 931 F. Supp. 1386
• Parties: Michael Ryan ANGLE, by Joanne M. ANGLE, as his Next Friend, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

931 F. Supp. 1386

Michael Ryan ANGLE, by Joanne M. ANGLE, as his Next Friend, Plaintiff, v. UNITED STATES of America, Defendant.

No. 2:93-CV-215.

United States District Court, W.D. Michigan, Southern Division.

October 25, 1994.

COPYRIGHT MATERIAL OMITTED

Brian D. Sheridan, Steward & Sheridan, P.L.C., Ishpeming, MI, Michael Ryan Angle, Joanne M. Angle.

Paul M. Honigberg, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, Judd R. Spray, Assistant U.S. Atty., Michael H. Dettmer, United States Attorney, Marquette, MI, United States.

ORDER AND JUDGMENT ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

ROBERT HOLMES BELL, District Judge.

On September 14, 1994, United States Magistrate Judge Timothy P. Greeley issued a report and recommendation recommending that Defendant's motion for summary judgment for lack of subject matter jurisdiction be granted on the ground that Defendant's conduct was protected by the discretionary-function exception to the Federal Tort Claims Act. See 28 U.S.C. § 2680(a). Plaintiff filed objections to the report and recommendation on September 27, 1994.

Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure this Court has made a de novo review upon the record of those portions of the magistrate's disposition to which specific written objection has been made.

The Court reads Plaintiff's "Objections" to state two objections to the report and recommendation. First, Plaintiff argues that Air Force Regulation 90-1 imposes the mandatory requirement that the Air Force "provide livable accommodations in good condition" and that Defendant's failure to inspect for, abate, or warn of lead poisoning violated this mandatory, non-discretionary requirement. A.F.Reg. 90-1, Ch. 17-1. Several circuit court decisions have considered the effect of a general statute or regulation such as A.F.Regulation 90-1, Ch. 17-1 in the context of the discretionary-function exception. There appears to be general consensus that general regulations, such as those parts of A.F.Regulation 90-1 upon which Plaintiff relies, do not deprive the governmental agency of discretion such that the agency is not entitled to assert the discretionary-function exception. See Daniels v. United States, 967 F.2d 1463, 1465 (10th Cir.1992); Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir.1989); Allen v. United States, 816 F.2d 1417, 1421 (10th Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 694, 98 L.Ed.2d 647 (1988). These cases rely on the Supreme Court's statements in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), and Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (stating that "the discretionary-function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.") (emphasis added). Unlike the specific provisions of Air Force Manual 85-3, which does not appear to mandate any particular action with regard to then-existing lead-based paint, and 15 U.S.C. § 2688, which became effective after the relevant time period involved in the instant case, A.F.Regulation 90-1 allowed Defendant ample discretion to exercise policy judgments in determining what constituted "livable accommodations in good condition," how such accommodations could best be achieved, and with what factors optimum conditions would have to be balanced. Cf. Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959.

Plaintiff's other objection argues that, to the extent that Defendant's conduct was discretionary, it was not grounded in social, economic, or political policy, and therefore the exception does not apply. Plaintiff acknowledges that the report and recommendation cites the "`impact on the public fisc'" as a policy consideration made by Defendant. Pl.'s Objs. at 12 (quoting R & R at 19). However, Plaintiff argues, "budgetary considerations alone are not enough to bring challenged activity within the discretionary-function exception." Id. The Court finds this statement not to be supported by law. Rather, economic considerations are one type of considerations expressly recognized by the Supreme Court as bringing a decision under the protection of the discretionary-function exception, Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988), and economic considerations are by their very nature political considerations. The cases cited by Plaintiff in this regard do not convince the Court otherwise. For example, in Arizona Maintenance Co. v. United States, 864 F.2d 1497 (9th Cir.1989), the court remanded the case to the trial court for that court to determine whether there were existing objective standards cabining the defendant's discretion. If so, the discretionary-function exception would not apply. See id. at 1504.

Upon review of Plaintiff's objections, this Court finds that the issues raised have been fully considered and properly addressed in the magistrate's report and recommendation.

Accordingly, IT IS HEREBY ORDERED that:

1. The Report and Recommendation of the Magistrate is ACCEPTED and ADOPTED as the opinion of the Court.

2. Plaintiff's complaint is DISMISSED.

REPORT AND RECOMMENDATION

GREELEY, United States Magistrate Judge.

Plaintiff Michael Ryan Angle, an infant, through his next friend, Joanne Angle, his mother, filed this negligence action seeking money damages against the United States. Plaintiff alleges that he suffered lead poisoning as a result of ingesting chips of lead-based paint from the interior of the military family housing unit at K.I. Sawyer Air Force Base, near Marquette, Michigan, in which he and his family resided. Plaintiff maintains that the defendant is guilty of negligently failing to maintain the premises in a reasonably safe condition as required by Michigan's landlord-tenant jurisprudence. Jurisdiction is asserted under the Federal Tort Claims Act (FTCA), being codified at 28 U.S.C. §§ 1346(b), 2671-2680.

The defendant has moved for dismissal for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). According to the defendant, the Court lacks jurisdiction over the subject matter of this case by virtue of the discretionary function exception of the FTCA. 28 U.S.C. § 2680(a). This motion was referred to the undersigned for proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). A hearing was held by the undersigned on July 18, 1994, and the parties have fully briefed the issues presented. The matter is now ready for decision.

I. STANDARD OF REVIEW

Defendant characterizes the motion as one for dismissal pursuant to Fed.R.Civ.P. 12(b)(1), lack of subject matter jurisdiction. Although this is technically correct, the ordinary rules to which such motions are subject are not fully applicable here. For example, ordinarily the party claiming jurisdiction bears the burden of demonstrating that the court has jurisdiction over the subject matter. Ohio National Life Ins. Co. v. United States, 922 F.2d 320, 324 (6th Cir.1990). In the instant motion, once the plaintiff has plead a prima facie case under the FTCA, the burden shifts to the government to establish the applicability of an exception to the Federal Tort Claims Act's general waiver of immunity. Carlyle v. United States, 674 F.2d 554, 556 (6th Cir.1982); Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992).¹ Moreover, the motion must be denied if a genuine issue of material fact exists with respect to whether the exception is applicable.

II. STATEMENT OF FACTS

The facts are not in dispute. Plaintiff resided with his parents in a military family housing unit known as 149 Panther on the K.I. Sawyer Air Force Base from the time of his birth in March 1989 until January 1991. During that time period, he allegedly ingested lead-based paint chips, causing him to suffer lead poisoning.

The Department of Defense Directive No. 4165.63, effective July 20, 1989, indicates that it is the policy of the Department of Defense to "provide excellent housing facilities ... for military members, their families, and eligible civilians...." The Comptroller of the Department of Defense is required to provide procedures on financing, budgeting, and accounting for military housing. Id. Housing is provided to members of the military for various reasons, including "where personnel must reside on the installation for reasons of military necessity." DoD 4165.63-M 1-2.

Between 1988 and 1990, the Air Force owned over 128,000 military housing units worldwide which were constructed prior to 1978. See affidavit of Michael J.W. Kaminskas, attached to defendant's Motion to Dismiss. The cost of sampling an individual housing unit for the presence of lead-based paint is between $300.00 and $500.00. To sample all existing units would cost approximately $51 Million. Id. The estimated cost of removal of all lead-based paint from military housing units is over $900 Million. Some of the techniques available today for sampling lead-based paint were not readily available between 1988 and 1990. Id. Between 1988 and 1990, the Federal Budget for the Department of Defense did not provide any money for sampling or abatement programs relative to lead-based paint in military housing.²

The defendant's uncontroverted evidence indicates that prior to October 28, 1992, the Air Force had addressed the issue of lead-based paint. Air Force Manual 85-3, entitled "Paints and Protective Coatings" (hereinafter AFM 85-3), dated June 1981, at Section 1.5.2, forbid the prospective use of lead-based paint in "the interior of residential structures and exterior surfaces accessible to children (window sills, porches, railings, etc.)" .... constructed or rehabilitated by the federal government after its effective date. According to the defendant, this provision implemented the Consumer Product...