Fortney v. US, Civ. A. No. 83-0200-A to 83-0202-A.

• Decision Date: 08 May 1989
• Docket Number: Civ. A. No. 83-0200-A to 83-0202-A.
• Citation: 714 F. Supp. 207
• Court: U.S. District Court — Western District of Virginia
• Parties: Mark Lynn FORTNEY, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

714 F. Supp. 207

Mark Lynn FORTNEY, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 83-0200-A to 83-0202-A.

United States District Court, W.D. Virginia, Abingdon Division.

May 8, 1989.

Russell W. Budd and Brian D. Weinstein, Dallas, Tex., for plaintiffs.

Collette J. Winston, Washington, D.C., for defendant.

MEMORANDUM OPINION

GLEN M. WILLIAMS, Senior District Judge.

This case is before the court on remand from the Supreme Court of the United States. Fortney, et al. v. United States, ___ U.S. ___, 109 S.Ct. 210, 102 L.Ed.2d 202 (1988). The purpose of the remand is to reconsider in light of the decision of the Supreme Court of the United States in Berkovitz v. United States, 486 U.S. ___, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Specifically, the apparent purpose of this remand is to determine whether or not an Army safety manual safety provision is mandatory or discretionary in nature. The regulation in the safety manual, AMCR 385-100 § 20.4 prescribes the use of containers for storage of hazardous materials. This court and the Fourth Circuit Court of Appeals had previously held that the discretionary function exception encompassed violations of mandatory government regulations. Berkovitz held that the violation by an agency of a mandatory directive is not "sheltered within the discretionary function exception at the Federal Tort Claims Act (FTCA) waiver of sovereign immunity." 28 U.S.C. § 2680(a).

In addition, plaintiffs argued in their brief before the Supreme Court that the use of a sprinkler system also violated another provision of the safety manual. AMCR 385-100 § 12.33(g). When the case was before this court, the use of a sprinkler system was an allegation of negligence at the trial, but at no time was there any contention that it was a mandatory regulation. Both § 12.4 and § 12.33(g) use the word "should" in describing the requirement. § 12.33(g) states as follows:

"Certain hazardous operations such as nitrocellulose dehydration should be protected with a deluge capable of supplying water on the hazard within 50 milliseconds after ignition."

The testimony at trial showed that the water deluge did not achieve the reaction time of 50 milliseconds, but the testimony at trial was undisputed that such a system as the regulation required was impossible to design and could not be purchased nor built given the state of art at the time of this accident. Furthermore, experts testified that the provisions in the manual were for general guidance. With regard to § 20.4, which refers to the use of conductive rubber tubs, four experts testified that nonconductive plastic tubs were not prohibited by the regulations. Finally, the regulations themselves suggest that AMCR 385-100 consists of advisory provisions. AMCR 385-100, 1-3b states as follows:

"The advisory provisions are those in which `may' or `should' are used."

When this matter was before this court previously, this court stated as follows:

"this regulation's use of the word `should' implies that the use of conductive tubs is not mandatory. `Should, in indicating obligation or necessity, is ... appreciably weaker than must.' The American Heritage Dictionary 1199 (W. Morris ed. 1976). Furthermore, § 20.4s listing of options utilizing nonconductive tubs clearly indicates that the drafters of § 20.4 contemplated situations in which nonconductive tubs would be used."

Memorandum Opinion dated June 8, 1987.

It is also noteworthy that since Berkovitz, the United States Court of Appeals for the First Circuit has considered the word "should" as used in The Safety Precautions for Shore activities § 2058.2. The Court found that the word "should" indicates precautions of "advisory" rather than "mandatory". Dube v. Pittsburgh Corning, 870 F.2d 790, 794-95 (1st Cir.1989).

Upon consideration of the specific language of the regulations involved in this case and the regulation at issue in Berkovitz, this court notes that the differences are great. The regulations involved in Berkovitz were directed to government officials, spelling out in no uncertain terms that the government officials were to act in specific, mandated actions. The violations were committed by government officials. The regulations made it clear that the agency had no discretion as to when it should issue a license. In this case, the plain language of two provisions of the safety manual, and the interpretation placed upon them by all the expert...