Cisco v. U.S. Through E.P.A., 84-1799

• Citation: 768 F.2d 788
• Decision Date: 30 May 1985
• Docket Number: No. 84-1799,84-1799
• Parties: 15 Envtl. L. Rep. 20,571 James A. CISCO, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Acting Through the ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 788

768 F.2d 788

15 Envtl. L. Rep. 20,571

James A. CISCO, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Acting Through the ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.

No. 84-1799.

United States Court of Appeals Seventh Circuit.

Argued Jan. 16, 1985.

Decided March 28, 1985.

Publication Ordered May 30, 1985.

Before WOOD and FLAUM, Circuit Judges, and GRANT, Senior District judge. ^*

Order

Plaintiffs-Appellants [hereinafter Cisco] appeal the dismissal of their suit filed under the Federal Torts Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680 (1976 & Supp. V 1981) [hereinafter FTCA]. The district court found that the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a), barred Cisco's claim and accordingly dismissed Cisco's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). We AFFIRM.

The United States Supreme Court has recently addressed the discretionary function exception contained in Sec. 2680(a), and that Court has found the following factors useful when applying Sec. 2680(a) to the acts of Government employees:

First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.... Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee--whatever his or her rank--are of the nature and quality that Congress intended to shield from tort liability.

Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. Time and again the legislative history refers to the acts of regulatory agencies as examples of those covered by the exception, and it is significant that the early tort claims bills considered by Congress specifically exempted two major regulatory agencies by name. See supra, at ----. This emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished to prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took "steps to protect the Government from liability that would seriously handicap efficient government operations." United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963).

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), --- U.S. ----, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984) (footnote omitted).

Cisco contends that the United States, acting through the Environmental Protection Agency [hereinafter EPA], was negligent in failing to warn the members of several Jefferson County, Missouri households that dirt contaminated by 2, 3, 7, 8 tetrachlorodibenzo-para-dioxin had been used as residential landfill, negligent in failing to require that the contaminated dirt be removed, and negligent in failing to protect the households from exposure to the toxin. Whether the EPA acted negligently or even abused its discretion has no effect on the applicability of the discretionary function exception. General Public Utilities Corporation v. United States, 745 F.2d 239, 245 (3d Cir.1984). This Court must only consider whether the exception applies.

The Resource Conservation and Recovery Act of 1976, Sec. 1003, 42 U.S.C. Sec. 6902 (1976) has the objective of promoting the protection of health and the environment by, among other things, prohibiting open dumping of hazardous wastes, regulating the disposal of those wastes, and promulgating guidelines for the disposal of hazardous wastes. Under Sec. 3008 of the Act, the Administrator of the EPA may issue compliance orders or may begin civil actions against violators of the Act. 42 U.S.C. Sec. 6928(a)(1) (1976 & Supp. IV 1980). Under the proper circumstances, the Administrator may order the owner of a hazardous waste site or facility to monitor, test, analyze and report the extent and nature of a suspected...