Payton v. U.S.

• Citation: 679 F.2d 475
• Decision Date: 01 July 1982
• Docket Number: No. 79-2052,79-2052
• Parties: Douglas Glynn PAYTON, Administrator of the estate of Sheryl Lynn Payton, deceased, et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 475

679 F.2d 475

Douglas Glynn PAYTON, Administrator of the estate of Sheryl Lynn Payton, deceased, et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

No. 79-2052.

United States Court of Appeals, Fifth Circuit.

Unit B

July 1, 1982.

Edward L. Hardin, Jr., Leon Kelly, Jr., Birmingham, Ala., for plaintiffs-appellants.

Wayne Schmidt, South San Francisco, Cal., Griffin B. Bell, Atlanta, Ga., for amicus curiae, Crime Victims Legal Advocacy Institute, Inc.

Emilia M. DeMeo, Trial Atty., Elois E. Davies, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., HENDERSON, HATCHETT, ANDERSON and THOMAS A. CLARK, Circuit Judges.

HATCHETT, Circuit Judge:

Appellants bring this wrongful death action under the Federal Tort Claims Act (FTCA) ¹ charging the United States with negligence resulting from the parole of a dangerously psychotic prisoner, who subsequently murdered appellants' decedent. The district court dismissed appellants' complaint due to lack of jurisdiction, based on the court's interpretation of the "discretionary acts" exemption to the FTCA, 28 U.S.C. § 2680(a). ² A panel of this court reversed the district court's decision. Payton v. United States, 636 F.2d 132 (5th Cir. 1981). Finding that the district court, 468 F.Supp. 651, construed the exclusion too broadly, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

In 1975 and 1976, Thomas Warren Whisenhant, a parolee from federal custody, murdered three women, including appellants' decedent, Sheryl Lynn Payton. The murders, which included rape and hideous mutilation of the women's bodies, bore all the earmarks of a severely disturbed mind. These acts were not the first manifestations of Whisenhant's sickness. In 1966, he was sentenced to twenty years in federal prison on a charge of assault with intent to murder arising out of the severe and brutal beating of a woman. His sentence was subsequently reduced to ten years, and he was granted parole in November, 1973.

"A 'facial attack' on the complaint requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true." Menchaca v. Chrysler Corp., 613 F.2d 507, 511 (5th Cir. 1980), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). Appellants allege that records available to the parole board at the time of the decision to release Whisenhant indicated that in 1963 Whisenhant was charged with assaulting a fourteen-year-old girl with intent to ravish, and he possibly participated in the murder of an elderly woman. Appellants also allege that while incarcerated, Whisenhant further evinced his homicidal aggressive tendencies toward women by threatening the life of an employee of the federal penitentiary, the only female with whom he came in contact. Further, Whisenhant's prison records indicate that he was repeatedly diagnosed as psychotic and described as a paranoid schizophrenic. Psychiatrists characterized his mental condition as aggressive, chronic, severe, and manifested by brutality and assaultive behavior. In 1968, one prison psychiatrist concluded that Whisenhant was in dire need of long-term psychiatric treatment, but he never received this treatment.

Appellants allege that the United States is liable for the negligence of the United States Board of Parole in deciding to release a known homicidal psychotic, in neglecting to provide for continued treatment or supervision after his parole, and in failing to consider all available records pertaining to Whisenhant's psychotic condition prior to granting him parole. The complaint further alleges that the United States is liable for the negligence of the United States Bureau of Prisons in failing to supply the parole board with records concerning Whisenhant's condition, in failing to confine Whisenhant in a mental hospital until his sanity was restored or his full sentence was served, and in failing to provide proper psychiatric care and treatment for Whisenhant after undertaking to do so.

The government attacked the complaint on three grounds, asserting (1) that the court lacked subject-matter jurisdiction because of the exclusion from the FTCA's jurisdiction found in 28 U.S.C. § 2680(a); (2) that the complaint failed to allege an actionable duty owed by the government to the appellants; and (3) that the appellants failed to exhaust their administrative remedies pursuant to 28 U.S.C. § 2675(a). Because the district court determined that it did not have jurisdiction pursuant to the 28 U.S.C. § 2680(a) exemption to the FTCA, it did not address the government's second and third contentions. A panel of this court reversed the decision of the district court, Payton v. United States, 636 F.2d 132 (5th Cir. 1981). This court granted rehearing en banc.

ISSUE

This court faces the same issue addressed by the panel:

(W)hether the alleged conduct by personnel of the United States Board of Parole and the United States Bureau of Prisons comes within the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680 (1976) (FTCA) or is exempt as a 'discretionary function' pursuant to 28 U.S.C. § 2680(a) (1976).

636 F.2d at 134. Because the district court dismissed this action solely on the ground that it lacked jurisdiction, our decision today reaches no further than that narrow issue.

FEDERAL TORT CLAIMS ACT

The FTCA authorizes suits against the United States for money damages for personal injury or death caused by the tortious actions of government employees acting within the scope of their employment, under circumstances where a private person would be liable. 28 U.S.C. § 1346(b). Exempt from jurisdiction, however, are claims based upon exercise by a governmental agency or employee of a "discretionary function or duty," whether or not an abuse of discretion results. 28 U.S.C. § 2680(a). The drafters of the Act, however, failed to define the term "discretionary function." This omission is understandable in light of the fact that the courts have struggled for nearly three decades to provide such a definition, with limited success. We will not pretend to succeed where our predecessors for thirty years have failed in providing succinct definition of the term "discretionary function." We will, however, review the guidelines presented by prior decisions and apply them to the facts before us.

DISCRETIONARY FUNCTION

The seminal case construing the "discretionary function" exemption to the FTCA was Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The Supreme Court, perhaps reacting cautiously to the unprecedented waiver of governmental immunity, and perhaps wary because of the huge award in this case, provided this guideline for lower courts:

It 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 included 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. If it were not so, the protection of section 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion.

346 U.S. at 35-36, 73 S.Ct. at 967-968.

The Court attempted to distinguish decisions made at the planning level (discretionary) from those at the operational level (non-discretionary). The Court determined that each negligent act transforming a quantity of fertilizer into a bomb which leveled an entire city was made at the planning level and therefore exempted from the FTCA. ³ If strictly followed, this language would exempt from the FTCA all but the most fortuitous events, for "(u)nless government officials (at no matter what echelon) make their choices by flipping coins, their acts involve discretion in making decisions." Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). The Court, however, narrowed the Dalehite guidelines in later opinions.

In Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Court held that the decision to operate a lighthouse was discretionary, but once the decision was made there was no discretion to operate the light negligently. Similarly, in Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1956), the Court found an actionable claim against the government for the negligence of forest service employees in fighting a forest fire. Thus, the Court has told us that the decision not to inspect a lighthouse (Indian Towing Co.) and the decision not to send a crew to extinguish a smouldering forest fire (Rayonier) were both made on the "operational level" and therefore were not "discretionary acts" exempted under section 2680(a).

It is established in the Fifth Circuit that:

(T)he fact that the negligence may have occurred in connection with a discretionary function does not make the negligent act a discretionary function. Nor does the discretionary character of the government's initial ... undertakings govern whether a duty can arise out of those undertakings. The Tort Claims Act deals with sovereign immunity-that is, with whether the United States may be...