Downs v. U.S.

• Decision Date: 08 August 1975
• Docket Number: No. 74-1660,74-1660
• Citation: 522 F.2d 990
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Mrs. Brent Quinton DOWNS for herself as Executrix of the Estate of Brent Quinton Downs, and as guardian and next friend of Andrew Arthur Downs and Brent Q. Downs, II, minors, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Page 990

522 F.2d 990

36 A.L.R.Fed. 219

Mrs. Brent Quinton DOWNS for herself as Executrix of the

Estate of Brent Quinton Downs, and as guardian and next

friend of Andrew Arthur Downs and Brent Q. Downs, II, minors, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 74-1660.

United States Court of Appeals,

Sixth Circuit.

Aug. 8, 1975.

Gilbert S. Merritt, Jr., Thomas Wardlaw Steele, Gullett, Steele, Sanford, Robinson & Merritt, Jack A. Butler, Nashville, Tenn., for plaintiffs-appellants.

Charles H. Anderson, U. S. Atty., Nashville, Tenn., John G. Laughlin, Chief, Tort Section, Leonard Schaitman, Neil Koslowe, Martha Johnson, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before PHILLIPS, Chief Circuit Judge, and CELEBREZZE and MILLER, Circuit Judges.

CELEBREZZE, Circuit Judge:

This appeal presents two basic questions concerning the United States' liability for actions of FBI agents resulting in the death of innocent victims of a hijacking. These issues are the applicability of the "discretionary function" exception to the Federal Tort Claims Act ¹ and the existence of negligence under Florida law on the facts of this case.

This action arose out of the hijacking of a small passenger airplane in Nashville, Tennessee. Inside the aircraft were the hijacker, an associate, the hijacker's estranged wife, a pilot, and a co-pilot. The hijacker ordered the aircraft flown to Freeport, Bahamas, with a refueling stop in Jacksonville, Florida. After the plane landed in Jacksonville, FBI agents refused to allow refueling, despite the pilot's signals that the hijacker was armed and dangerous and that in his opinion the agents' intervention would prove disastrous. The hijacker allowed the co-pilot, and, later, an associate to deplane to bargain for fuel. The FBI agents took them both into custody. Moments later the agents used rifle fire to disable one of the aircraft's engines and attempted, unsuccessfully, to deflate the aircraft's tires. This attack provoked the hijacker to shoot and kill his wife, the pilot, and himself.

The survivors of the hijacker's victims sued the United States under the Federal Tort Claims Act, alleging that the chief FBI agent had been negligent in handling the situation and had thereby caused the two victims' deaths. The aircraft's owner sued for damage to the plane. The Government defended, asserting that the "discretionary function" exception to the Act barred jurisdiction over the complaint and, in any event, that the agent had not been negligent.

The District Court, sitting without a jury, held that the "discretionary function" exception to the Federal Tort Claims Act did not bar the action. It found, however, that under Florida law the FBI agent had not been negligent. Accordingly, it entered judgment for the United States.

The first issue we face is whether this action is barred by the "discretionary function" exception to the Federal Tort Claims Act. The Government argues that the District Court erred in deciding that this exception did not apply and urges that the Judgment be affirmed on this ground, contending that law enforcement is the type of activity for which the United States may not be held liable.

The Federal Tort Claims Act constitutes a broad waiver of the United States' sovereign immunity from tort liability. The Act gives federal courts jurisdiction to hear actions

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

Before the Act's passage, victims of torts committed by federal employees had to pursue the cumbersome route of seeking a private relief bill from Congress. The Act's basic purpose was to relieve Congress of the burden of considering these bills and to entrust their consideration to the courts. United States v. Muniz, 374 U.S. 150, 153-54, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Dalehite v. United States 346 U.S. 15, 24-25, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 703-704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Enacted as part of the Legislative Reorganization Act of 1946, the Act was meant "to provide for increased efficiency in the legislative branch of the Government." ³

Certain exceptions were provided, however, which limited the waiver of immunity. Among these was the "discretionary function" exception, which the Government contends is applicable. It reasons that the FBI agent in charge of handling the hijacking had the "discretion to make an on-the-scene judgment as to the best course of action during the hijacking." Since there was "room for policy judgment," Appellee argues, the agent's actions fall within the discretionary function exception.

We recognize that the agent was called upon to use judgment in dealing with the hijacking. Judgment is exercised in almost every human endeavor. It is not the mere exercise of judgment, however, which immunizes the United States from liability for the torts of its employees. ⁴ Driving an automobile was frequently cited in the congressional reports leading to the Act as an example of "non-discretionary" activity which would be outside the discretionary function exception. Dalehite v. United States, 346 U.S. 15, 29-30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Driving an automobile involves judgment. The failure to signal a turn, for example, may be said to represent an exercise of judgment, albeit a poor one. Yet, the automobile accident caused by a federal employee while on the job is the archetypal claim which Congress sought to place in the courts. If exercise of judgment were the standard for applying the discretionary function exception, a host of cases have been wrongly decided. These cases would include Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (failure to replace a burned-out lamp in a lighthouse); Rayonier, Incorporated v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (failure completely to extinguish intermittently smoldering matter following a forest fire); Underwood v. United States, 356 F.2d 92 (5th Cir. 1966) (decision of psychiatrists to release airman from mental hospital and to provide him access to weapons), and Fair v. United States, 234 F.2d 288 (5th Cir. 1956) (decision to release homicidal patient).

A review of the language of the exception, the provision's legislative history, and the application of this section by the courts offers guidance in applying the exception.

The discretionary function provision is one part of an exception to the Tort Claims Act embodied in 28 U.S.C. § 2680(a). The text of that section reads as follows 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.

In our view, the first part of this section immunizes the Government from liability for the actions of a Government employee who is exercising due care in implementing a government policy as set forth in a statute or regulation. The second part of the provision, the discretionary function exception, immunizes Government employees while they are formulating policy.

The limited legislative history of the section supports this reading. A paragraph ⁵ discussing the provision, excerpted from testimony given in 1942 before the House Committee on the Judiciary by an Assistant Attorney General, states that liability should not arise "out of an authorized activity, such as a flood-control or irrigation project." The exception was " designed to preclude application of the bill to a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission, based upon an alleged abuse of discretionary authority by an officer or employee." Claims arising out of "an allegedly negligent exercise by the Treasury Department of the blacklisting or freezing powers are also intended to be excepted." Congressional reports indicate that the regulatory functions of the FTC and SEC were the types of activity to be exempted by this exception. ⁶ The functions which this sparse legislative history indicates were to be excepted are those involving policy formulation, as distinguished from the day-to-day activities of persons not engaged in determining the general nature of the Government's business.

Supreme Court decisions have not extensively analyzed the exception. In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court first discussed the discretionary function provision. The 4-3 majority opinion concluded that immunized discretion "includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. (Footnote omitted) Where there is room for policy judgment and decision there is discretion." 346 U.S. at 35-36, 73 S.Ct. at 968. Later opinions have suggested a more restrictive view of the exception, without setting forth clear guideposts for decision. See Rayonier, Incorporated v. United States, 353 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955).

Numerous Circuit and District Courts have struggled to mold the sparse legislative history and the language of Dalehite into a...