Fortney v. U.S., 89-3277

• Decision Date: 15 October 1990
• Docket Number: No. 89-3277,89-3277
• Citation: 912 F.2d 722
• Parties: Mark Lynn FORTNEY; Esley Douglas Tipton; Mary E. Tipton; Daniel Webster Harmon; Mary Jane Harmon, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. ENVIROTECH CORPORATION; American Air Filter Company, Inc.; Anacon Corp.; Southeastern Sprinkler Company, Inc.; Grinnell Fire Protection Systems Co., Inc.; American District Telegraph Co.; Milton Roy Company; Tate Engineering, Inc.; Rexnord, Inc.; Drexel Brook Engineering Co.; Rubbermaid Commercial Prod., Inc.; Unijax, Inc.; E.I. Pfaff Co., Inc.; Simons Eastern Co.; C.P. Roberts Engineering, Inc.; Yeargin Construction Co., Inc.; Shell Oil Company; Devon Chemicals, Inc.; Publiker Industries, Inc.; Buckeye Cellulose Corp.; Sybron Corp.; Carter and Crawley, Inc., Defendants, v. HERCULES, INCORPORATED, Third Party Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 722

912 F.2d 722

Mark Lynn FORTNEY; Esley Douglas Tipton; Mary E. Tipton;

Daniel Webster Harmon; Mary Jane Harmon, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

ENVIROTECH CORPORATION; American Air Filter Company, Inc.;

Anacon Corp.; Southeastern Sprinkler Company, Inc.;

Grinnell Fire Protection Systems Co., Inc.; American

District Telegraph Co.; Milton Roy Company; Tate

Engineering, Inc.; Rexnord, Inc.; Drexel Brook Engineering

Co.; Rubbermaid Commercial Prod., Inc.; Unijax, Inc.;

E.I. Pfaff Co., Inc.; Simons Eastern Co.; C.P. Roberts

Engineering, Inc.; Yeargin Construction Co., Inc.; Shell

Oil Company; Devon Chemicals, Inc.; Publiker Industries, Inc.; Buckeye Cellulose Corp.; Sybron Corp.; Carter and Crawley, Inc., Defendants, v. HERCULES, INCORPORATED, Third Party Defendant.

No. 89-3277.

United States Court of Appeals Fourth Circuit.

Argued Feb. 6, 1990.

Decided Aug. 30, 1990.

Rehearing and Rehearing In Banc Denied Oct. 15, 1990.

Charles Stein Siegel, argued (Brian D. Weinstein, on brief), Baron & Budd, P.C., Dallas, Tex., for appellants.

William George Cole, U.S. Dept. of Justice, Washington, D.C. (Stuart E. Schiffer, Acting Asst. Atty. Gen., Robert S. Greenspan, U.S. Dept. of Justice, Washington, D.C., John Perry Alderman, U.S. Atty., Roanoke, Va., on brief), for appellee.

Before ERVIN, Chief Judge, and RUSSELL and CHAPMAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

On May 6, 1981, there was an explosion at the Radford Army Ammunition Plant ("RAAP"). This plant is owned by the U.S. Army and operated by Hercules, Inc., pursuant to a cost-plus contract. The explosion severely burned several workers, who required hospitalization. Four of the injured individuals brought this suit against the United States under the Federal Tort Claims Act ("FTCA"). This suit was dismissed by the district court, and it has been winding its way through the appellate process ever since, making stops at the Supreme Court, this court (now for the second time) and a return visit to the district court. The cause of this extended journey was a remand by the Supreme Court, which ordered a reconsideration in light of Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Berkovitz further defined the contours of the "discretionary functions exception" ("DFE") to the FTCA. Upon remand, the district court held that the DFE need not be considered, because there was no basis for government liability under the FTCA. We agree with that ruling, and affirm.

I.

The explosion occurred due to a defect in a recently-installed automated dehydration system for nitrocellulose. Nitrocellulose is one ingredient in the propellant of certain weapons used by the Army. As part of processing nitrocellulose, water must be removed from a nitrocellulose pulp and replaced with alcohol. For over thirty years, this process was performed manually. In the late 1960's, Hercules proposed automating the dehydration process, and the Army adopted this proposal. Hercules designed a building to house this project, the Army Corps of Engineers constructed the building, and the building was turned over to Hercules in 1978. During the second test run of this facility, the explosion occurred.

Although the government is under scrutiny in this case, Hercules bore the responsibility for safety at RAAP. Under the terms of the contract between the government and Hercules, the entire RAAP was turned over to Hercules, including all of the buildings and equipment. The contract called for Hercules to follow certain safety guidelines imposed by the government. In its contract with the Army, Hercules expressly acknowledged that none of the government regulations or oversight relieved Hercules of any responsibility for the safety for its employees, the public, or the RAAP itself.

In April of 1983, the plaintiffs filed this suit against 22 corporations that had supplied goods and services to the RAAP. In October of that year, the plaintiffs amended their complaint to add the United States as a defendant. Subsequently, the plaintiffs dismissed their suits against all of the defendants except the government. ¹

The thrust of the plaintiffs' complaint was that the government had failed to insure that Hercules used proper safety safeguards at the RAAP. This complaint was very general, and it did not state that any isolated acts or omissions on the part of the government had caused the accident. ² At trial, however, the plaintiffs' allegations became more specific. The plaintiffs contended that two "mandatory" regulations were violated in the equipping of the processing building, and that if these violations had not been present, the explosion would not have occurred. More specifically, the plaintiffs contended that (1) the nitrocellulose should have been transported in "conductive" tubs (i.e., tubs that can conduct an electrical charge), and (2) the sprinkler system should have had a faster reaction time. To complete their theory of government liability, the plaintiffs argued that if the government had carried out a fuller safety oversight, these problems would have been detected and avoided.

Following the presentation of all of the evidence, the government made a motion to dismiss. It contended that its decision to delegate safety responsibility to Hercules and its decisions regarding the scope of government oversight were protected by the DFE. The district judge agreed, dismissed the case on that basis, and wrote a published opinion explaining his reasoning in detail. ³ See 659 F.Supp. 127 (W.D.Va.1987).

The plaintiffs made a motion for reconsideration, arguing that the district court had construed their accusations of government negligence too broadly. They argued that they did not challenge the decision to delegate responsibility for safety to Hercules or the failure to implement a system to insure safe practices by Hercules. Instead, the plaintiffs argued that allowing the processing building to pass inspection with its nonconductive tubs was negligent, and that there was no government discretion to be protected in that inspection because the regulations required these safety measures (in the plaintiffs' view). ⁴

The district court rejected this motion for reconsideration on two grounds, in an unpublished memorandum opinion. Fortney v. United States, CA-83-200-A (W.D.Va. June 8, 1987). First, it held that the argument made by the plaintiffs in their motion for reconsideration was a variance from the plaintiffs' allegations in their complaint. While the motion for reconsideration argued that the plaintiffs did not quarrel with the decision to delegate safety responsibility to Hercules, and that only the tubs were challenged, ⁵ the complaint stated just the opposite. The complaint specifically attacked the selection of Hercules and the delegation of safety responsibility to Hercules, and never even mentioned the specific act of permitting the use of nonconductive tubs. The plaintiffs never amended their complaint in order to adopt this altered theory of negligence.

Second, the district court held that the regulations regarding tubs that were relied upon by the plaintiffs were not mandatory, contrary to the plaintiffs' allegations. The district court found that the regulations at issue were merely advisory, because they were couched in "should" terminology, instead of "shall."

The plaintiffs appealed to this court, which affirmed the district court's decision in an unpublished, per curiam opinion. Fortney v. United States, 841 F.2d 1122 (4th Cir.1988). This court upheld the finding that the delegation of safety responsibilities to Hercules was protected by the DFE. In a footnote, this court also supported the district court's other rationale in denying the motion to reconsider--that Section 20.4 did not mandate the use of nonconductive tubs. Either ground was sufficient to dispose of the appeal.

The plaintiffs then appealed to the Supreme Court, which granted certiorari, and vacated and remanded this case for further consideration in light of Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Fortney v. United States, 488 U.S. 882, 109 S.Ct. 210, 102 L.Ed.2d 202 (1988). Berkovitz, discussed infra, clarified the test for when the DFE is applicable. Four Justices dissented from the granting of certiorari, and Justice Scalia wrote an opinion setting out the dissenters' views. Justice Scalia noted that the second opinion of the district court, and the affirming opinion of this court, had held that the regulations did not mandate the use of nonconductive tubs. Justice Scalia added that this was an adequate independent ground for denying certiorari: "Quite obviously, a Berkovitz inquiry into the mandatory or discretionary nature of a provision that has in any event not been violated is fruitless." The majority did not comment on this alternative ground for denying certiorari.

On remand, the district court found that the regulations did not require conductive tubs. 714 F.Supp. 207. In support of that finding, the district court relied on the language of the regulations and on the testimony of four expert witnesses who testified about safety procedures at RAAP. In short, the district court made it clear that the plaintiffs' theory of liability had been undermined in the trial of the case. If there was no basis for liability, then there was no need to determine if the DFE provided a reprieve from liability.

We agree with the district court's disposition of this case on remand. The appellants' primary argument concerns the use of nonconductive tubs. We are convinced, as was the district court, that the regulation concerning tubs was inapplicable to the situation at issue. A rather full accounting of the facts behind the accident is necessary to explain the basis for this conclusion.

II.

The investigation that followed this accident indicated that the explosion occurred because the...