Builders Corporation of America v. United States

• Decision Date: 07 August 1963
• Docket Number: No. 18315.,18315.
• Citation: 320 F.2d 425
• Parties: BUILDERS CORPORATION OF AMERICA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

320 F.2d 425 (1963)

BUILDERS CORPORATION OF AMERICA, Appellant, v. UNITED STATES of America, Appellee.

No. 18315.

United States Court of Appeals Ninth Circuit.

August 7, 1963.

Alvin Landis, Sacramento, Cal., Maurice J. Hindin, Beverly Hills, Cal., and Harry B. Seelig, Los Angeles, Cal., for appellants.

Cecil F. Poole, U. S. Atty., and Robert N. Ensign, San Francisco, Cal., for appellee.

Before CHAMBERS, BARNES, and KOELSCH, Circuit Judges.

BARNES, Circuit Judge.

Chapter 171 of Title 28 United States Code, and specifically Section 2674 thereof, provides in material part:

"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *."

Section 2680(a) of Title 28 United States Code, provides certain exceptions to the liability created by the entire Chapter 171 of Title 28 United States Code. Section 2680 reads, in material part:

"The provisions of this chapter * * * shall not apply to —

"(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."

By virtue of the same section (2680), if such discretionary function or duty is involved, no jurisdiction exists in the federal courts under § 1346(b) of Title 28 United States Code, to hear this claim.¹

The waiver of the sovereign right created by the statutes above mentioned, did not create new causes of action where none existed before, nor did it foist novel and unprecedented liabilities upon the federal government. National Mfg. Co. v. United States, 8 Cir. 1954, 210 F.2d 263, certiorari denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108.

The rule of liberality of construction, in favor of the exceptions, applies. Mid-Central Fish Co. v. United States, W.D.Mo.1953, 112 F.Supp. 792, 8 Cir. 1954, 210 F.2d 263, certiorari denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108.

The exceptions are not to be nullified through judicial interpretation, since Congress clearly delineated the areas in which it did not intend to forfeit its immunity from suit. Toledo v. United States, D.Puerto Rico 1951, 95 F.Supp. 838, Hernandez v. United States, D.Hawaii 1953, 112 F.Supp. 369.

Acts of a governmental nature were never intended to be within the scope of the liability created. Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, rehearings denied, 346 U.S. 841, 74 S.Ct. 13, 98 L.Ed. 362, 346 U.S. 880, 74 S.Ct. 117, 98 L.Ed. 386, 347 U.S. 924, 74 S.Ct. 511, 98 L.Ed. 1078; Wheeldon v. United States, N.D. Cal.1960, 184 F.Supp. 81.

With the applicable law in mind we turn to the case before us, and the specific facts involved. We find them adequately, fairly and accurately stated in the memorandum opinion of the district court. We use and adopt a large portion of such memorandum opinion in the margin.²

The district court then considered the three communications between the Commanding General of the Sixth Army and the Commanding Officer of the Depot, dated January 13, 1954, April 28, 1954 and July 10, 1954, respectively (each in evidence herein as Plaintiff's Exhibits Nos. 19, 21 and 30).³ The trial judge ruled the first two letters contained no direct or specific orders and were merely statements of existing and future policy. We agree. The third letter the trial judge ruled was an order which directed certain things to be done, but which did not go so far as to order eviction of anyone from their then present housing. We need not pass on whether or not the July 10, 1954 letter was an order, in view of our disposition of other defenses. The trial judge ruled all the suggestions and orders had been followed and complied with by the officers so directed to act — that there was no "failure, either wilful or negligent, of government agents specifically Colonel Leavitt and his staff to carry out orders" — that all such orders so given were complied with.

We do not meet the question of what orders were given, or whether they were complied with. They all required Colonel Leavitt, in the chain of command he was then holding, to exercise some discretion. He was required by the position he held, for example, to notify his superior officer of the fourteen alleged deficiencies in the construction, as such deficiencies had been reported to him by those whom he was encouraging to use the housing accommodations. (Plaintiff's Ex. 25.) He was required, in his discretion, to determine whether certain key employees had to be available for telephone calls — day or night — and hence should not use the accommodations offered.

In Dalehite v. United States, supra, the Army's Chief of Ordnance was delegated to carry out the plan of producing a Fertilizer Grade Ammonium Nitrate (FG AN) by plants originally built in the United States to manufacture ammonium nitrate for explosives. The plants were operated by private companies, but under the supervision of the military. Army personnel were appointed for each camp. Negligence of all responsible for the production of FGAN was charged, resulting from the explosion of the French steamship Grandcamp — with the leveling of the town of Texas City, and the death of thousands. The trial court found in favor of the plaintiffs, the court of appeals reversed, and that latter judgment was affirmed. The Supreme Court held the findings did not establish a case, and "that as a matter of law the facts found cannot give the District Court jurisdiction of the cause under the Tort Claims Act."⁴

We come to the same conclusion with respect to the matter now before us, for the same reasons set forth in Dalehite v. United States, supra, 346 U.S. pp. 27-45, 73 S.Ct. pp. 963-973, 97 L.Ed. 1427.

Once the discretionary function is established as applicable to the facts —

"It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the `discretionary function or duty\' that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion." Dalehite v. United States, supra, 346 U.S. pp. 35-36, 73 S.Ct. pp. 967-968, 97 L.Ed. 1427.

The Commanding General here, in whatever he requested or ordered, was exercising his discretion in attempting to encourage a policy of full and maximum use of the housing facilities available. We think Colonel Leavitt exercised his best judgment in what he did and how he did it. But whether he did or not, whether he was negligent or not; whether he abused his discretion, are all immaterial. The sovereign immunity of the United States does not permit awards for damages arising out of acts performed by reason of the discretionary duty or function of "an employee of the government."⁵

The judgment in favor of the United States is affirmed.

1 Section 1346(b) of Title 28 United States Code, reads:

"(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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."

2 "This is an action to recover damages from the United States of America under the provisions of the Federal Tort Claims Act (Title 28 U.S.C. §§ 1346(b) and 2671 et seq.)....