C.R.S. by D.B.S. v. U.S.

• Decision Date: 27 January 1994
• Docket Number: 93-2494,Nos. 93-2294,s. 93-2294
• Citation: 11 F.3d 791
• Parties: C.R.S., a minor, by D.B.S., in his dual capacity as her father and natural guardian and as her guardian ad litem; D.B.S., in his capacity as an individual; N.A.S., in her capacity as an individual, Appellants, Minneapolis Painting Industry Health and Welfare Fund, Local 386, Intervenor, v. UNITED STATES of America, Appellee. C.R.S., a minor, by D.B.S., in his dual capacity as her father and natural guardian and as her guardian ad litem; D.B.S., in his capacity as an individual; N.A.S., in her capacity as an individual, Plaintiffs, Minneapolis Painting Industry Health and Welfare Fund, Local 386, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 791

11 F.3d 791

62 USLW 2395

C.R.S., a minor, by D.B.S., in his dual capacity as her

father and natural guardian and as her guardian ad litem;

D.B.S., in his capacity as an individual; N.A.S., in her

capacity as an individual, Appellants,

Minneapolis Painting Industry Health and Welfare Fund, Local

386, Intervenor,

v.

UNITED STATES of America, Appellee.

C.R.S., a minor, by D.B.S., in his dual capacity as her

father and natural guardian and as her guardian ad litem;

D.B.S., in his capacity as an individual; N.A.S., in her

capacity as an individual, Plaintiffs,

Minneapolis Painting Industry Health and Welfare Fund, Local

386, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 93-2294, 93-2494.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 10, 1993.

Decided Dec. 10, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 27, 1994.

Bruce A. Peterson, Minneapolis, MN, argued, for minors.

Michael S. Raab, Dept. of Justice, Washington, DC, argued (Frank W. Hunger, Francis X. Hermann and John F. Daly, on the brief), for appellee.

Before JOHN R. GIBSON, MAGILL, and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

D.B.S., N.A.S., and their minor child C.R.S. ¹ (plaintiffs) brought this suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680 (1988), alleging that they all contracted AIDS as a result of the federal government's negligence in providing D.B.S. with contaminated blood when he underwent transfusions at the Martin Army Community Hospital (MACH) in Fort Benning, Georgia, while a member of the Minnesota National Guard. Plaintiffs appeal from the district court's ² order granting defendant's motion for summary judgment. 820 F.Supp. 449. For the reasons set forth below, we affirm the district court's order.

I. BACKGROUND

In August 1983, D.B.S. was ordered to go to Fort Benning for basic training. While in training, D.B.S. required emergency medical care for an intestinal condition. He underwent surgery and blood transfusions at MACH in response to the condition. After recovering from his surgery, D.B.S. completed the training and returned to his home in Minnesota in December 1983. In November 1984, he married N.A.S. and they had three children, including C.R.S., who was born in June 1987.

In late 1987, the Minnesota National Guard discharged D.B.S. In early 1989, all three plaintiffs discovered that they had tested positive for the presence of the human immunodeficiency virus (HIV) after undergoing blood tests. In the summer of 1992, Donor 3903, one of nine donors whose blood MACH had used in D.B.S.'s transfusions, also tested HIV positive.

At the time of D.B.S.'s transfusion in 1983, public health officials and blood banks were struggling to address the AIDS crisis. Researchers, for instance, had yet to develop the HIV test, so blood banks could not be certain whether donated blood was infected. On January 4, 1983, the Centers for Disease Control organized a national meeting to discuss how blood banks could protect their supplies from contamination. While disputes arose at the meeting regarding what precautions would best protect the blood supply, attendees agreed that they should adopt some measures to keep intravenous drug users and homosexual and bisexual men from donating blood because these groups constituted nearly ninety percent of AIDS patients at the time.

In March 1983, the Food and Drug Administration (FDA) ³ and the American Association of Blood Banks (AABB) ⁴ issued recommendations concerning procedures for screening donors for AIDS. The recommendations suggested educating donors about AIDS, questioning them about the early signs of AIDS, and asking those in high risk groups not to give blood. Thus, the FDA/AABB procedures relied on voluntary self-deferral by high risk donors and did not include measures such as direct questioning.

In a memorandum dated April 12, 1983, the Military Blood Program Office (MBPO) adopted the FDA/AABB guidelines, which were applicable to private sector blood banks. The MBPO is responsible for the operation of the military's blood banks. Department of Defense Directive 6480.5 established the MBPO in 1972. The directive stated that the MBPO was responsible for "[d]evelop[ing], recommend[ing] and monitor[ing] policies (fully coordinated with the Military Departments) on ... [t]he collection, procurement, processing, storage, distribution, and management of whole blood." United States Department of Defense, Directive 6480.5, at 3 (June 16, 1972). It also directed the MBPO to "[m]aintain and disseminate plans for coordinating the collection, processing, distribution, and management of blood and blood components necessary to meet the requirements of the Military Departments." Id. The Assistant Secretary of Defense (Health and Environment), in contrast, was responsible for "providing overall policy guidance on the ... Military Blood Program, and for coordinating it with the National Emergency Blood Program, when required." Id. at 4.

Because the MBPO staff consisted of only three people, it often relied on FDA and AABB regulations in formulating military blood bank policies. Its reliance here is reflected in the April 12, 1983, memorandum adopting the FDA/AABB civilian guidelines. Indeed, Capt. James Bates, the Director of the MBPO in 1983, testified that the MBPO did not consider adopting different procedures for the military. Thus, when Donor 3903 gave blood in August 1983, MACH's blood bank had in place the procedures outlined in the MBPO memorandum, which included providing information about AIDS to potential donors, identifying high-risk groups, asking that members of these groups refrain from donating, and distributing cards prospective donors filled out that were updated to reflect concerns about AIDS.

The FDA/AABB guidelines did not call for notifying recipients of blood that they could have received infected blood. In 1985, however, the Department of Defense began testing active members of the military for HIV infection. Then, in February 1986, the Army Surgeon General circulated guidelines classifying those who received transfusions between January 1980 and July 1985 as being at high risk for HIV exposure. The guidelines then described ways to identify, notify, evaluate and counsel such individuals.

Plaintiffs brought suit in the United States District Court for the District of Minnesota in 1990 after four government agencies rejected their administrative claims. They asserted two negligence claims: (1) that the military was negligent in adopting the FDA/AABB blood donor screening procedures in 1983, which they allege were unreasonable in the military context, and (2) that the military was negligent in later failing to warn D.B.S. of the risk that he had received contaminated blood at MACH. The district court denied defendant's motion to dismiss or, in the alternative, for summary judgment, that the action was barred by the Feres doctrine. ⁵ The government then asserted the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a) (1988), barred the claims. The district court granted this motion, finding that Sec. 2680(a) barred all claims. Plaintiffs then filed this appeal.

Summary judgment is appropriate when the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). This court reviews the granting of a motion for summary judgment de novo. United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992). In light of these standards, we first discuss the discretionary function exception and then apply this law to each of plaintiffs' claims.

II. DISCUSSION

Congress waived the sovereign immunity of the United States by enacting the FTCA, under which the federal government is liable for certain torts its agents commit in the course of their employment. See 28 U.S.C. Sec. 2674 (1988). The FTCA, however, does not provide a blanket waiver, but rather retains the government's immunity from suit through several exceptions. One such exception is the discretionary function exception, which prohibits suits "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. Sec. 2680(a).

The Supreme Court has announced a two-part test for determining when the discretionary function exception applies. The first requirement is that the conduct at issue indeed be discretionary, that is, it must "involve[ ] an element of judgment or choice." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). Agency decisions exercising delegated authority from Congress to establish programs and policies in implementing the general provisions of a regulatory statute, for example, involve one type of judgment that the exception protects. See United States v. Gaubert, 499 U.S. 315, 323-24, 111 S.Ct. 1267, 1274, 113 L.Ed.2d 335 (1991). Decisions made at the operational level, as well as decisions made at the policy-planning level, can involve the exercise of protected discretion. See id. at 325-26, 111 S.Ct. at 1275. Moreover, "the fact that determinations are made at a relatively low level does not prevent the applicability of the exception." Layton v. United States, 984 F.2d 1496, 1500 (8th Cir.) (citing Gaubert, 499 U.S. at 332-33, 111 S.Ct. at 1279), cert. denied, --- U.S. ----, 114 S.Ct. 213, 126 L.Ed.2d 170 (1993). Judgment or choice is absent "when a federal statute, regulation, or policy specifically prescribes a course of...