Bergmann v. U.S.

• Decision Date: 06 October 1982
• Docket Number: No. 81-2254,81-2254
• Citation: 689 F.2d 789
• Parties: Leona BERGMANN, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 789

689 F.2d 789

Leona BERGMANN, Appellee, v. UNITED STATES of America, Appellant.

No. 81-2254.

United States Court of Appeals Eighth Circuit.

Submitted May 20, 1982.

Decided Oct. 6, 1982.

Michael W. Newport, St. Louis, Mo., for appellee.

J. Paul McGrath, Asst. Atty. Gen., Washington, D. C., Thomas E. Dittmeier, U. S. Atty., St. Louis, Mo., Anthony J. Steinmeyer, Marleigh D. Dover, Attys., Dept. of Justice, Civ. Div., Washington, D. C., for appellant.

Before ROSS, McMILLIAN and JOHN R. GIBSON, Circuit Judges.

ROSS, Circuit Judge.

Leona Bergmann instituted this wrongful death action under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (FTCA) alleging that the government's negligent selection and supervision of Benjamin Rosado a/k/a Benjamin Russo, as a federally protected witness resulted in the murder of her husband, police officer Fred B. Bergmann, by Rosado. The district court, 526 F.Supp. 443, ¹ found that the government's negligent selection and supervision of Rosado under the Federal Witness Security Program was a substantial factor in the death of Mr. Bergmann and awarded Mrs. Bergmann $69,077.91 in damages. We reverse.

On June 17, 1976, Benjamin Rosado became a protected witness after agreeing to testify against organized crime figures in New York City relating to the murder of a government drug informant. Rosado had been present when the informant had been beaten and shot to death. Protection for Rosado was requested by Assistant United States Attorney, John P. Cooney. The request for protection was approved by various Department of Justice officials. The United States Marshals Service then assumed the task of protecting Rosado and his family.

On July 21, 1976, Rosado and his family were relocated to St. Charles, Missouri, and their name was legally changed to Russo. The marshals service arranged for rental of an auto, an apartment, placement of one of the Rosado children in school and credit with service companies.

On September 12, 1976, Fred Bergmann, an auxiliary police officer for the City of St. Charles, responded with other officers to a reported burglary at the St. Charles gas company. Officer Bergmann was shot by the burglar upon entering the gas company's offices. Officer Bergmann lived for a few weeks after the shooting and then died of complications.

In May 1977, Benjamin Rosado was implicated in the Bergmann murder. In April 1978, Rosado was convicted in state court of the murder of officer Bergmann and sentenced to life imprisonment.

The district court held that the government had negligently selected Rosado for the witness protection program in that Rosado's criminal history, including repeated imprisonments for robbery, created a foreseeable risk of harm to officer Bergmann. The court also concluded that

by permitting Rosado to participate in the witness protection program, the government created a special relationship which required the government to exercise reasonable care to control Rosado. Although the government had special facts within its knowledge concerning Rosado's criminal propensities, the government relocated Rosado from New York City to St. Charles, Missouri, with a new identity but without taking measures to prevent Rosado from engaging in the criminal activities which resulted in the murder of plaintiff's husband.

The district court found that the government, specifically the marshals service, negligently supervised Rosado in the program by failing to set up any job interviews for Rosado during the time he was relocated and by failing to contact Rosado from August 1976 until October 22, 1976. ² The district court concluded that the lack of supervision by the government of Rosado's participation in the program was a substantial factor in officer Bergmann's death.

The district court also rejected the government's claim that the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a) applied to decisions regarding the selection and supervision of protected witnesses. The court found that although the formulation of policy on how to select and supervise protected witnesses could not support liability, here, neither the United States attorney in requesting protection nor the marshal in supervising Rosado were formulating policy.

I. Discretionary Function

The discretionary function exception to the FTCA excludes from the waiver of sovereign immunity: ³

(a) Any 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).

This court has in the past used the planning or policy level versus operational level distinction in evaluating whether the government was involved in a discretionary function. See Gross v. United States, 676 F.2d 295, 302 (8th Cir. 1982); Madison v. United States, 679 F.2d 736, 739 (8th Cir. 1982). This distinction is derived from the Supreme Court's evaluation of the discretionary function exception in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) and Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). However, as noted in Gross v. United States, supra, 676 F.2d at 303 n.19, other circuits have applied the discretionary function exception "only to decisions in which the decisionmaker must look to considerations of public policy."

In this case, the district court in rejecting the government's claim that the discretionary function exception applied relied upon Liuzzo v. United States, 508 F.Supp. 923 (E.D.Mich.1981). In Liuzzo, the district court denied the government's motion to dismiss for failure to state a claim. The court held that the decisions of the FBI agent regarding the recruitment, training and supervision of an FBI informant, and the authorization by the agent for the informant's participation in a specific mission were not decisions within the discretionary function exception. Id. at 932. A key factor in the Liuzzo opinion was the fact that the FBI agent in question "was operating under FBI policy on the recruitment and supervision of racial and criminal informants." Id. at 932 (footnote omitted). In Liuzzo, the court held "that claims which arise out of the manner in which a particular situation is handled, and which are based on allegations that existing, valid regulations were wrongfully or negligently implemented are not so barred." Id. at 931.

This court has also found the discretionary function exception inapplicable to allegations that government employees ignored or failed to comply with regulations or policies designed to guide their actions in the particular situation. See Madison v. United States, 679 F.2d 736 (8th Cir. 1982) (enforcing compliance with safety regulations); Gross v. United States, supra, 676 F.2d at 302 (consistent reversal of local official's decisions by higher authorities and ignoring directives of supervisors); Loge v. United States, 662 F.2d 1268 (8th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982) (failure to require mandatory tests of vaccine as provided for in regulations). Of course, the plaintiff having identified a nondiscretionary function or duty must go on to show that the acts or omissions of government employees constitute tortious conduct under state law. 28 U.S.C. § 1346(b).

On the other hand, regulations or policies may, in fact, vest certain employees or officials with the discretion to make a judgment in a particular situation. An example of this type of policy was considered in the recent case of Payton v. United States, 679 F.2d 475 (5th Cir. 1982) (en banc). In Payton, the court held that the former federal parole statute specifically describes the decision of whether to parole a prisoner and the terms of that parole as a discretionary decision and the discretionary function exception therefore applied. At 480-82. In Payton, the plaintiff alleged, inter alia, that a specific prisoner had been negligently released on parole and the parole board had negligently failed to make adequate provisions for the continued treatment and supervision of the parolee. Id. at 480-82.

In the present case, the district court held that the government was not "formulating policy" when Rosado was selected for and supervised in the Witness Security Program. The court noted that the decisions of Justice Department officials and the U. S. Marshals Service regarding Rosado were "responses to a particular situation" and the officials "operated under the Department of Justice policy for supervising protected witnesses." These same general comments could very well have also been made about the decision in Payton of whether to grant parole and the terms of parole. We turn, therefore, to the statute and policy which govern the Witness Security Program.

II. Selection

The statutory authorization for the Witness Security Program is contained in Sections 501 to 504 of Title V of the Organized Crime Control Act, Pub.L. 91-452 (pres. 18 U.S.C. § 3481) and it provides:

Sec. 501. The Attorney General of the United States is authorized to provide for the security of Government witnesses, potential Government witnesses, and the families of Government witnesses and potential witnesses in legal proceedings against any person alleged to have participated in an organized criminal activity.

Sec. 502. The Attorney General of the United States is authorized to rent, purchase, modify, or remodel protected housing facilities and to otherwise offer to provide for the health, safety, and welfare of witnesses and persons intended to be called as Government witnesses, and the families of witnesses and persons intended to be called as Government witnesses in legal proceedings instituted against any person alleged to have participated in an organized criminal activity whenever, in his judgment, testimony from, or...