Bernitsky v. U.S.

• Citation: 620 F.2d 948
• Decision Date: 19 March 1980
• Docket Number: No. 79-1453,No. 2,2,79-1453
• Parties: 1980 O.S.H.D. (CCH) P 24,455 Joseph BERNITSKY; Albert Bernitsky; Vincent Bernitsky and George Stenulis, Individually and trading as Bernitsky Brothers Coal Company, Slope, v. UNITED STATES of America, United States Department of Justice, Washington, D. C.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 948

620 F.2d 948

1980 O.S.H.D. (CCH) P 24,455

Joseph BERNITSKY; Albert Bernitsky; Vincent Bernitsky and

George Stenulis, Individually and trading as

Bernitsky Brothers Coal Company, Slope No. 2, v. UNITED STATES of America, United States Department of

Justice, Washington, D. C.

No. 79-1453.

United States Court of Appeals,

Third Circuit.

Argued Nov. 16, 1979.

Decided March 19, 1980.

Thomas B. Rutter (argued), Philadelphia, Pa., for appellants.

Robert S. Forster, Jr., Asst. U. S. Atty., Philadelphia, Pa., Raymond A. Nowak (argued), Charles E. Mandolia, Attys., Torts Branch Civil Div., Dept. of Justice, Washington, D. C., for appellee.

Before GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The issue on appeal in this case is the scope of the discretionary function exception of the Federal Tort Claims Act.

On July 11, 1973 a Federal Mine Safety Inspector, acting pursuant to the Federal Coal Mine Health & Safety Act of 1969, 30 U.S.C. § 801 et seq. (hereinafter FCMHSA), inspected the mine owned and operated by appellant, Bernitsky Brothers Coal Company (hereinafter Bernitsky), located at New Philadelphia, Schuylkill County. Among the items inspected was whether the toilet facility complied with the updated list of "Approved Underground and Surface Sanitary Facilities" promulgated by The Bureau of Mines which had been revised April 1973 and distributed to the local mine inspectors on June 28, 1973. The inspector found that the toilet facility at the mine was not on the approved list and he served a Notice of Violation on Bernitsky immediately following his inspection. Approved toilet facilities were available in the vicinity of the mine at a cost of $79.00 but Bernitsky did not purchase a complying toilet nor did it utilize the available administrative and judicial remedies in an attempt to have the Notice of Violation vacated. Over the next seven months, at Bernitsky's request the date for compliance with the Notice was extended three times by mine inspectors. Finally, on February 13, 1974 the Mining Enforcement and Safety Administration (hereinafter MESA), issued a Withdrawal Order pursuant to Section 104(b), of the statute, 30 U.S.C. § 814(b) (1976), barring any access to the mine other than that required to abate the violations. In April 1974 portions of the mine collapsed. Bernitsky claims that as a result of the collapse various mining tools and equipment were damaged and it could not extract certain amounts of coal, causing damage totaling $2,591,000 which it seeks to recover from the federal government through this action. One cannot resist commenting that for want of a nail, the kingdom was lost.

Bernitsky filed suit on March 19, 1976 pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1976). The complaint alleges that the Notice of Violation and subsequent Order of Withdrawal barring access to the mine were issued negligently and caused the mine's collapse by preventing Bernitsky's employees from performing the mining and maintenance operations which were necessary to prevent the collapse. Following more than two years of discovery, the United States filed a Motion to Dismiss or in the Alternative for Summary Judgment on December 8, 1978 supported by affidavits and deposition testimony. On January 11, 1979, the district court ruled that the FCMHSA did not give rise to a private right of action by a mine operator and that there was no liability under the Federal Tort Claims Act because Pennsylvania would not impose liability under the circumstances of this case. Bernitsky v. United States, 463 F.Supp. 1121 (E.D.Pa.1979). Accordingly, the action was dismissed.

On appeal, the appellant concedes that it has no private right of action accruing under the FCMHSA. It relies solely on its claim under the Federal Tort Claims Act.

The operative provision of that statute subjects the United States to liability:

for injury or loss of property, or personal injury or death caused by 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. § 1346(b) (1976). Because liability of the United States is contingent on liability under the "law of the place where the act or omission occurred", in this case Pennsylvania, Bernitsky focuses a considerable portion of its argument on an attempt to establish that under the law of the Commonwealth of Pennsylvania, the circumstances set forth above would give rise to a cause of action for negligence. We need not consider the validity of this argument because we dispose of this case on other grounds.

In its Answer, the United States pleaded the affirmative defense that the court lacked subject matter jurisdiction because the acts complained of are specifically excluded from the Federal Tort Claims Act by the provision exempting acts within the discretionary function of United States employees. This was also one of the bases urged by the United States in its Motion to Dismiss or in the Alternative for Summary Judgment. Although the exception was not the basis for the district court's dismissal of the action, we deem it appropriate to consider its applicability as an initial matter since it involves the central issue of the scope of the United States' surrender of its immunity to suit by passage of the Federal Tort Claims Act. We can do so because it is well established that we are free to affirm the judgment of the district court on any basis which finds support in the record. Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127, 140 (3d Cir. 1978); Fairview Park Excavating Co. v. Al Monzo Construction Co., 560 F.2d 1122, 1123 n. 1 (3d Cir. 1977); United States v. Pennsylvania, 533 F.2d 107, 110 n. 7 (3d Cir. 1976). Because we consider affidavits and accompanying material presented in connection with the Government's Alternative Motion for Summary Judgment which have not been controverted by opposing affidavits, and which demonstrate there is no genuine issue as to any material fact, Fed.R.Civ.P. 56, we can review the district court's dismissal under the standard of the propriety of a grant of summary judgment. See First State Bank of Hudson County v. United States, 599 F.2d 558, 562 (3d Cir. 1979).

The boundaries of the sovereign immunity waived by the Federal Tort Claims Act are delineated by the statutory provision excepting certain claims. 28 U.S.C. § 2680 (1976). The discretionary function exception provides:

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

(a) Any 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.

Id. § 2680(a).

This encompasses two discrete claims: the first excepting acts or omissions of governmental employees in carrying out statutes or regulations and the second excepting acts of discretion in the performance of governmental functions or duty. It is generally the latter phrase which is considered the discretionary function exemption.

There has been a considerable amount of difficulty, recognized by both the courts and the commentators, in applying the discretionary function exception. ¹ In the Supreme Court's initial interpretation of the provision, the Court stressed that the exception was designed to apply to those governmental functions which entail a policy judgment and decision. Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953). "It is the discretion of the executive or the administrator to act according to one's judgment of the best course" which Congress has protected. Id. at 34, 73 S.Ct. at 967. Many of the later cases have focused on the policy judgment aspect of the circumstances in determining whether the exception is applicable. See, e. g., Huntington Towers, Ltd. v. Franklin National Bank, 559 F.2d 863, 870 (2d Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978); First National Bank in Albuquerque v. United States, 552 F.2d 370, 374-75 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Griffin v. United States, 500 F.2d 1059, 1066-67 (3d Cir. 1974). Others have made the distinction between conduct at the planning level, which is considered exempt, and conduct at the operational level, which is not. See, e. g., Driscoll v. United States, 525 F.2d 136, 138 (9th Cir. 1975); Spillway Marina, Inc. v. United States, 445 F.2d 876, 878 (10th Cir. 1971); United Air Lines v. Wiener, 335 F.2d 379, 392-93 (9th Cir.), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964); Swanson v. United States, 229 F.Supp. 217, 220 (N.D.Cal.1964); Wildwood Mink Ranch v. United States, 218 F.Supp. 67, 76-77 (D.Minn.1963). Yet another distinction which has been made, although now of questionable authority, is that between the sovereign functions of government, which were stated to be within the exemption, and the proprietary functions, which were not. See, e. g., National Mfg. Co. v. United States, 210 F.2d 263, 277 (8th Cir.), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108 (1954), but see Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955).

Although these distinctions may provide some guidance in explaining the result of the cases, they do not offer much assistance in the determination whether the activity in question in a particular case falls on the side of...