Pooler v. United States, Civ. No. 85-0035.

• Decision Date: 16 May 1985
• Docket Number: Civ. No. 85-0035.
• Citation: 609 F. Supp. 198
• Parties: Ronald POOLER v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Pennsylvania

609 F. Supp. 198

Ronald POOLER v. UNITED STATES of America.

Civ. No. 85-0035.

United States District Court, E.D. Pennsylvania.

May 16, 1985.

Edward L. McCandless, Jr., Steinberg & Girsh, Philadelphia, Pa., for plaintiff.

Serena H. Dobson, Asst. U.S. Atty., Philadelphia, Pa., for defendant.

OPINION

LUONGO, Chief Judge.

This is an action against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. The gravamen of plaintiff's complaint is that he was falsely arrested on drug charges as a result of a negligent investigation conducted by the Veterans Administration (VA). The government has moved to dismiss the complaint under the discretionary function exception to the FTCA. Because I conclude that the decision to initiate criminal charges and the decision as to the proper means of investigating suspected criminal conduct are discretionary functions within the meaning of 28 U.S.C. § 2680(a), I will grant the motion to dismiss.

I.

Plaintiff Ronald Pooler was employed at the Veterans Administration Medical Center in Coatesville, Pennsylvania until the time of his arrest in March, 1982. In the year preceding plaintiff's arrest the VA conducted an investigation into reports of the distribution and use of controlled substances at the Medical Center. When the inquiry proved unsuccessful, VA officials decided to attempt an undercover operation using the services of an informant.

VA officials who were involved in the decision to implement an undercover operation were: James L.G. Parsons, II, Director of the Medical Center, Peter Mango, Chief of Police at the Medical Center, and Curtis Kimmel, a VA detective. In December, 1981, Mango advised Parsons of his belief that a drug problem existed at the Medical Center. Parsons approved Mango's request for authorization to conduct an investigation, and Mango assigned Detective Kimmel to conduct the probe.

Plaintiff alleges that Kimmel's approach to the investigation was deficient in several respects. Plaintiff alleges that Kimmel selected for use as an informant a VA employee, John Cantrell, who had acknowledged past drug involvement and who exhibited less than average mental capacity. It is further alleged that during the course of the investigation, Kimmel failed to instruct the informant as to which individuals he should observe and as to methods of avoiding violating the rights of such persons. Plaintiff also claims that Kimmel failed to obtain corroborative evidence with respect to Cantrell's allegation that plaintiff sold him drugs: Kimmel did not personally observe, nor did he direct others to witness, the alleged transactions between plaintiff and the informer.

As a result of the undercover investigation, Kimmel filed two criminal complaints against plaintiff on March 18, 1982. A district justice found probable cause and issued a warrant for plaintiff's arrest. After his arrest, plaintiff was required to post bail to obtain release. The charges against plaintiff were nolle prossed by the Chester County District Attorney on August 24, 1982. Plaintiff denies participation in the alleged drug transactions.

II.

The discretionary function exception to the FTCA bars suit against the United States on:

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.

28 U.S.C. § 2680(a). On the few occasions the Supreme Court has considered the discretionary function exception, the Court has accorded the exception a broad reading. In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Court rejected claims arising out of a disastrous explosion of ammonium nitrate fertilizer intended for shipment to Europe in the aftermath of World War II. Declining to establish a precise standard for application of the exception, the Court ruled that the exception covered at least "the initiation of programs and activities." 346 U.S. at 35, 73 S.Ct. at 968. Moreover, the Court held the exception applicable to "determinations made by executives or administrators in establishing plans, specifications, or schedules of operations." Id. at 35-36, 73 S.Ct. at 968 (footnote omitted). As the Court explained:

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 § 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.

Id. at 36, 73 S.Ct. at 968 (footnote omitted). Applying that standard to the facts before it, the Court ruled that all of the government's alleged acts of negligence — including inter alia the improper labeling of fertilizer bags — were discretionary functions. The Court reasoned that the challenged decisions "were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government's fertilizer program." Id. at 42, 73 S.Ct. at 971.

The Supreme Court recently reaffirmed the principles of Dalehite v. United States in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) ___ U.S. ___, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). There the Court ruled that the exception barred actions based on the Federal Aviation Administration's certification of aircraft for commercial use. The Court held that the decision to adopt a "spot check" system for reviewing a manufacturer's compliance with applicable regulations was a discretionary function. The Court heavily emphasized the discretionary character of an agency's regulation of private conduct:

When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the Government's regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding.

104 S.Ct. at 2768. In short, the Court found that the "nature and quality" of the decision to adopt a "spot check" system classified such a decision as a discretionary function.

The Court also ruled that the acts of FAA employees implementing the spot check program were protected by the exception. The Court noted that individuals assigned to review a given manufacturer's compliance with applicable safety standards were specifically empowered to decide the extent to which the manufacturer could be trusted to have observed such regulations.

In this circuit, our court of appeals recently examined the scope of the discretionary function exception in General Public Utilities Corporation v. United States, 745 F.2d 239 (3d Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985). In that case, the court held barred the claims of owners of the Three Mile Island nuclear plant against the government because of the Nuclear Regulatory Commission's failure to warn them of equipment defects. The court reasoned that the character of the function performed by the agency — regulation of the nuclear industry after assessment of information gathered from nuclear facilities — required that the agency's decision whether to report specific data be held a discretionary function. The court emphasized that the nature of the governmental activity, and not the availability of other courses of action, determines whether the conduct is discretionary.

The exemption from the Tort Claims Act is based on the nature of the governmental discretionary function, not whether there is an option to choose. Regulatory activities are within the exemption, not because alternatives exist in particular circumstances, but because of the fundamental character of the role assigned to the agency.

If a government employee performing a discretionary function acts negligently, the exemption remains applicable even though the activity constitutes an abuse of discretion. As the statute itself provides, discretionary functions are exempt "whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).

745 F.2d at 245.

III.

Apart from general pronouncements on the subject of the discretionary function exception, the courts have provided little insight into application of the exception to the investigative conduct of law enforcement officials. In this circuit, Bernitsky v. United States, 620 F.2d 948 (3d Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980), is the most significant appellate ruling. In Bernitsky, a coal company brought suit after portions of its mine collapsed, causing substantial damage to equipment left in the mine. At the time of the collapse, the company was forbidden access to the mine or its equipment because of a Withdrawal Order issued by the Mining Enforcement and Safety Administration. The Withdrawal Order was based on a Notice of Violation regarding toilet facilities which the company had failed to remedy for seven months despite three extensions of time. The company claimed that closure of the mine was unreasonable under the circumstances, and brought suit under the FTCA.

The court of appeals held the suit barred under the discretionary function exception. The court noted that applicable regulations...