Collins v. U.S.

• Decision Date: 03 March 1986
• Docket Number: No. 84-4837,84-4837
• Citation: 783 F.2d 1225
• Parties: , 1986-1987 O.S.H.D. ( 27,515 Gail COLLINS, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1225

783 F.2d 1225

54 USLW 2491, 1986-1987 O.S.H.D. ( 27,515

Gail COLLINS, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 84-4837.

United States Court of Appeals Fifth Circuit.

March 3, 1986.

Colette J. Winston, Jeffrey F. Axelrad, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Elwood C. Stevens, Jr., William D. Hunter, Morgan City, La., W. Arthur Abercrombie, Baton Rouge, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge and BROWN and GEE, Circuit Judges.

GEE, Circuit Judge:

The United States appeals the district court order denying its motion to dismiss for lack of subject matter jurisdiction; we affirm.

This case arises from a 1979 explosion at the Belle Isle salt mine in southern Louisiana and certain governmental conduct occurring before that explosion. For the purpose of deciding defendant's motion to dismiss, the district court found that in March 1977 a Mine Safety and Health Administration ("MSHA") inspector conducted a three-day inspection at the Belle Isle mine, owned and operated by Cargill, Inc. Based on instrument readings taken at that time, the inspector issued Imminent Danger Order No. 195, requiring that the mine be reclassified as "gassy" and closed until suitable safety equipment was installed. Later analysis of air samples taken by the inspector showed .3 percent methane by air analysis. ¹ Plaintiffs maintain that Hugh D. Graham, the inspector's superior and the subdistrict manager for the MSHA's Southern Central District, terminated the Imminent Danger Order, suppressed or tampered with air samples, and instructed his subordinates to "lay off the methane" in subsequent inspections. ² The mine was not reclassified as gassy; in June 1979, methane gas there exploded, killing five and injuring seventeen.

Plaintiffs, two injured miners and the widows of two dead miners, sued the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671, et seq., alleging that its failure to reclassify the mine as gassy and require abatement of that condition represented the legal cause of the injuries and deaths at issue. The United States moved to dismiss, asserting that the allegedly negligent conduct fell within the discretionary function exception of 28 U.S.C. Sec. 2680(a), that the United States was therefore exempt from liability under the Federal Tort Claims Act ("FTCA"), and that the district court was wanting in subject matter jurisdiction. The district court denied that motion and, on a later government motion for reconsideration or for certification for interlocutory appeal, certified its order for interlocutory review pursuant to 28 U.S.C. Sec. 1292(b).

The discretionary function exception, contained in 28 U.S.C. Sec. 2680(a), provides that there shall be no liability under the FTCA on

[a]ny 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.

The issue before us is whether the United States is exempt from FTCA liability because the alleged acts of negligence represent the exercise or performance of discretionary functions under Sec. 2680(a).

Our analysis of this issue is guided by the Supreme Court's decisions in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed.2d 1427 (1953), and, more recently, in United States v. Empresa De Viacao Rio Grandense, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) ("Varig"). In Dalehite, plaintiffs sued the United States on claims arising from a massive explosion of nitrate fertilizer being exported as part of a post-World War II United States relief program. Plaintiffs asserted that the government had been negligent in drafting and adopting the fertilizer export program as a whole, in various phases of the manufacturing plan, and in policing shipboard loading. The Supreme Court held that the government's conduct came within the discretionary function exception, stating that

[i]t 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.

346 U.S. at 35-36, 73 S.Ct. at 967-68 (footnote omitted), quoted with approval in Varig, 104 S.Ct. at 2764. The Court concluded that the discretionary function exception applied to the cabinet-level decision to institute the export program, to the decision not to experiment further to determine the fertilizer's explosive characteristics, and to the manufacture and labelling of the fertilizer according to government specifications. 346 U.S. at 37-42, 73 S.Ct. at 969-71.

In Varig, the Supreme Court further clarified the discretionary function exemption. The two cases before the Court in Varig involved in-flight fires and consequent destruction of aircraft that the FAA or its predecessor had certified under a spot-check certification program. In fact, the planes did not meet FAA standards and may never have been inspected at all. Plaintiffs alleged that the FAA would have discovered the defects had it conducted a plane-by-plane inspection of the aircraft instead of delegating responsibility for satisfying FAA standards to airplane manufacturers, with periodic spot checks to encourage compliance. Here, too, the Supreme Court determined that the alleged negligent conduct came within Sec. 2680(a).

The unanimous Court rejected the proposition that Dalehite no longer represents a valid interpretation of the discretionary function exception. 104 S.Ct. at 2764. To the Dalehite analysis, the Supreme Court observed that it is impossible

to define with precision every contour of the discretionary function exception.... [Nevertheless] several factors [are] useful in determining when the acts of a Government employee are protected from liability by Sec. 2680(a). 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.

Id. at 2765. A second aspect of the exception is that it plainly encompasses "the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals." Id. (footnote omitted). This reflects Congress' desire 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." Id.

Having examined Sec. 2680(a), the Supreme Court considered at some length the statutory and regulatory discretion granted to the Secretary of Transportation to decide what inspection system to adopt for enforcing safety standards and the discretion granted an inspector to determine how extensively to conduct a spot-check of a specific aircraft. As to the former, the Court stated that "[w]hen an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind." Id. at 2768. As to the latter, the Court reiterated its conclusion in Dalehite that the discretionary function exception applies when government employees perform duties in accordance with agency directives. Id. at 2768-69 (citing Dalehite, 346 U.S. at 36, 73 S.Ct. at 968).

In the present case, the government advocates radically extending Varig to mean that whenever challenged conduct is regulatory in nature, the conduct is per se discretionary and, as such, shielded from exposure to private tort actions. It is therefore irrelevant, according to the government, whether the employee whose conduct is challenged was granted any choice whether or not to act as he did. Quoting General Public Utilities Corp. v. United States, 745 F.2d 239, 245 (3d Cir.1984) cert. denied, --- U.S. ----, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985), the government asserts that "[r]egulatory activities are within the exception, not because alternatives exist in particular circumstances, but because of the fundamental character of the role assigned to the agency." This character alone, the government claims, is sufficient to invoke Sec. 2680(a) in today's case. Responding to the second factor in Varig, the government argues that any judicial inquiry into allegedly negligent regulatory conduct exposes the MSHA to judicial second-guessing because the inquiry ultimately touches on the manner of enforcing regulatory standards.

We reject the government's argument that Varig exempts the United States from liability whenever challenged conduct is regulatory in nature. Neither the language nor the structure of the decision in Varig supports such a view. While "the discretionary acts of the Government acting in its role as regulator of the conduct of private individuals" are within Sec. 2680(a), Varig, 104 S.Ct. at 2765, this does not mean that all regulatory acts are discretionary acts. ³ Following Dalehite and Varig, we are instructed that there is discretion under Sec. 2680(a) when "there is room for policy judgment and decision...." The...