Payton v. United States, Civ. A. No. 78-533-P.

• Court: United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
• Writing for the Court: PITTMAN
• Citation: 468 F. Supp. 651
• Parties: Douglas Glynn PAYTON, etc., et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Docket Number: Civ. A. No. 78-533-P.
• Decision Date: 29 March 1979

468 F. Supp. 651

Douglas Glynn PAYTON, etc., et al., Plaintiffs,
v.
UNITED STATES of America, Defendant.

Civ. A. No. 78-533-P.

United States District Court, S. D. Alabama, S. D.

March 29, 1979.

468 F. Supp. 652

Edward L. Hardin, Jr., Birmingham, Ala., for plaintiffs.

William A. Kimbrough, U. S. Atty., Mobile, Ala., Barbara Allen Babcock, Asst. Atty. Gen., Jeffrey Axelrad, Emilia M. DeMeo, Dept. of Justice, Washington D. C., for defendant.

ORDER ON MOTION TO DISMISS

PITTMAN, Chief Judge.

In 1977, Thomas Warren Whisenhant was convicted of the murder of Sheryl Lynn Payton, the plaintiffs' decedent.

This is a wrongful death action in which the plaintiffs allege the United States negligently reduced the sentence of Whisenhant and negligently granted him a parole. Plaintiffs assert that this court has jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680.

The defendant's motion to dismiss the complaint asserts three grounds: (1) the court lacks subject matter jurisdiction; (2) plaintiffs allege no actionable duty owed by defendant to plaintiffs; and (3) plaintiffs have failed to exhaust their administrative remedies with respect to Count VI of the complaint. Agreeing that it is without jurisdiction in this apparent case of first impression, this court does not reach the issues presented by grounds (2) and (3).

The United States may not be sued unless Congress has so provided. Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 965, 97 L.Ed. 1427, 1438 (1953); Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 95 L.Ed. 152, 157 (1950). Congress has authorized a limited waiver of the United States' tort immunity by conferring jurisdiction upon the federal district courts with respect to

"claims against the United States, for money damages . . . 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 . . ." 28 U.S.C. § 1346(b).

Excluded from the broad grant of jurisdiction contained in § 1346(b) are claims

"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." 28 U.S.C. § 2680(a).

The so-called "discretionary function" exception to federal tort liability of § 2680(a) was construed in Dalehite v. United States, supra. Dalehite was an attempt to recover damages for the death of plaintiffs' decedent caused by explosions of fertilizer at Texas City, Texas in 1947, in which many people were killed and much of Texas City destroyed. The plaintiffs claimed negligence on the part of the federal officials and employees involved in producing and

468 F. Supp. 653

distributing the fertilizer "at the instance, according to the specifications of and under the control of the United States." 346 U.S. at 18, 73 S.Ct. at 959, 97 L.Ed. at 1432. The Supreme Court affirmed the Court of Appeals' reversal of the District Court's award of damages to the plaintiffs. The Court held, id. at 24, 73 S.Ct. at 962, 97 L.Ed. at 1434, that the District Court was without jurisdiction because, id. at 37, 73 S.Ct. at 969, 97 L.Ed. at 1441, "the cabinet-level decision to institute the fertilizer export program was a discretionary act . . .."¹ within the meaning of § 2680(a). The Court did not define the limits of the discretion exempted from liability by § 2680(a). It did state "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." Id. at 35-36, 73 S.Ct. at 968, 97 L.Ed. at 1440-1441. It stated that the "`discretion' protected by the section is not that of the judge — a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law." Id. at 34, 73 S.Ct. at 967, 97 L.Ed. at 1440

In Smith v. United States, 375 F.2d 243 (5th Cir. 1967), cert. denied 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967), the plaintiff sought to recover for damages to his business caused by the failure of the United States Attorney to arrest and prosecute members of a civil rights group who allegedly had illegally conspired to boycott the plaintiff's store after his service as a member of a federal jury which returned a verdict for the white defendant in a civil rights damage suit brought by a black plaintiff. In concluding that the United States was insulated from liability by § 2680(a) "for exercising the discretion inherent in the prosecutorial function of the Attorney General," 375 F.2d at 248, the court rejected the notion that its determination could be governed by hard and fast rules of decision. "It must be remembered that the question at hand here is the nature and quality of the discretion involved in the acts complained of." (emphasis added) Id. at 246.

The court then examined the "nature and quality" of the Attorney General's prosecutorial discretion. The court pointed to factors which, in its view, require that such discretion be absolute (and stated):

"In weighing these factors, the prosecutor must apply responsible standards, based, not on loose assumptions but, on solid evidence balanced in a scale demanding proof beyond a reasonable doubt to overcome the presumption of innocence. * * * Intangible and imponderable factors must be carefully weighed and considered . . .. `All of these considerations point up the wisdom of vesting broad discretion in the United States Attorney.' Pugach v. Klein, S.D. N.Y.1961, 193 F.Supp. 630, 635. United States v. Cox, supra, 342 F.2d 167 at 182-196 (concurring opinions of Judges Brown and Wisdom); United States v. Brokaw, S.D.Ill.1945, 60 F.Supp. 100."

Id. at 247-48.²

In Radford v. United States, 264 F.2d 709 (5th Cir. 1959), the complaint charged that officers or enlisted personnel of the United States Army entered into a conspiracy resulting in the plaintiff's loss of her position with the United States. The claim was

468 F. Supp. 654

held barred by the "discretionary function" exception of § 2680(a). The court said that the Federal Tort Claims Act did not subject "the United States to a claim of the kind asserted here, that, as a result of a conspiracy to cause plaintiff's discharge, plaintiff was discharged by the officer or agent of the United States charged with the duty of determining whether...