Smith v. United States

• Decision Date: 04 May 1967
• Docket Number: No. 23305.,23305.
• Citation: 375 F.2d 243
• Parties: Alex Carl SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

375 F.2d 243 (1967)

Alex Carl SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 23305.

United States Court of Appeals Fifth Circuit.

April 3, 1967.

Rehearing Denied May 4, 1967.

H. P. Burt, Albany, Ga., for appellant.

David L. Rose, Robert C. McDiarmid, Attys., Dept. of Justice, John W. Douglas, Asst. Atty. Gen., Floyd M. Buford, U. S. Atty., Washington, D. C., for appellee.

Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge.

We have here another facet of the Albany, Georgia, imbroglio. See Kelly v. Page, 5 Cir., 1964, 335 F.2d 114; Rabinowitz v. United States, 5 Cir. 1966, 366 F.2d 34. Alex Carl Smith, the plaintiff, lives in Albany, and at the time relevant to this action owned a grocery store there. Smith alleges that the clientele of this store was about 98 per cent Negro.

In early April 1963, Smith was summoned to serve as a juror in the United States District Court for the Middle District of Georgia, Albany Division. Smith sat on the jury in the case of Ware v. Johnson, which, Smith alleges, was a "civil rights damage suit in which the plaintiff Ware was colored, and the defendant Johnson was the duly elected sheriff of Baker County, Georgia." The jury returned a verdict for the defendant Johnson on April 12.

Smith alleges that on about April 15, because of his participation in the jury verdict, certain "militant and activist" civil rights groups conspired to retaliate against him by picketing his grocery business with the aim of inducing a boycott of it.

On April 20, the picketing began. Smith alleges that in furtherance of the conspiracy, would-be customers were "physically carried" from his store. Sensing that the boycott was becoming effective, Smith requested the United States Attorney and the Federal Bureau of Investigation in Albany to investigate and prosecute the boycotters for intimidation of a federal juror.¹ Smith alleges that the FBI investigated only to the extent of determining that C. B. King, the attorney for Ware, was not part of the conspiracy. Upon this determination, the FBI refused to act further, despite repeated requests from Smith.

Smith alleges that the boycott resulting from the picketing completely destroyed his business. He filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346,² claiming that the government failed to arrest or prosecute the persons injuring his business. The government moved to dismiss for failure to state a claim, and this motion was granted. Smith appeals, and we affirm.

This case tests the meaning of vital sections of the Federal Tort Claims Act: 28 U.S.C.A. §§ 1346(b), 2674, and 2680(a).³

Smith argues here first that the government owes an affirmative duty to its citizens to investigate and prosecute crime, and that where, as here, there is a "clear violation" of a federal statute, the government may not rely on the discretionary function exception of § 2680(a) to avoid liability for failure to prosecute. Second, Smith argues that even if the failure to act complained of was discretionary, once an investigation is started by the government, the operation changes from the "planning" stage to the "operational" stage, and that discretionary functions on the "operational" stage are not within the exception of § 2680(a).

The government answers by arguing that the government's duty to prosecute crime does not run to the victim of the crime but to the nation as a whole, and that a victim's only remedy in tort is to sue the criminal. It argues further that the aspects of investigation and prosecution complained of here are discretionary functions within the exception of § 2680(a).

While we believe that the facts of the present case compellingly uphold the government's immunity from liability, we are also concerned lest we make some comment which would impede in other cases the full extension of the Act to its proper purpose, which includes waiving "the Government's traditional all-encompassing immunity from tort actions and * * * establishing novel and unprecedented governmental liability." Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 319, 77 S.Ct. 374, 377, 1 L.Ed.2d 354, 358. We therefore have undertaken to set out the precise ground for our decision that the government activity complained of here was discretionary within the meaning of § 2680(a).

I.

Each party recognizes, of course, that the major case interpreting the Act in this area is Dalehite v. U. S., 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427. In Dalehite, the United States was sought to be held liable for the catastrophic explosion in Texas City, Texas, of nitrate fertilizers manufactured by the government for shipment to Europe. The plaintiffs there could show no negligence by specific individuals in handling the material: therefore they claimed that the government was liable for having allowed manufacture and shipment of inherently dangerous fertilizers without either warning of the danger or demanding safe procedures for their handling. The Supreme Court rejected this claim, holding that any governmental misfeasance was protected because it was part of governmental discretion, and excepted from liability by § 2680(a):

"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 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. 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." 346 U.S. at 35-36, 73 S. Ct. at 968, 97 L.Ed. at 1440-1441.

Smith contends that this holding has been rejected or so completely diluted by the holdings in Indian Towing Co. v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 and Rayonier, supra, that it is no longer authoritative.

The government brushes off this suggestion with a quotation from Blaber v. United States, 2 Cir. 1964, 332 F.2d. 629, 631:

"These cases Indian Towing and Rayonier did enlarge the scope of the United States\' liability as it might have been thought to exist after Dalehite, but they did not affect the scope of the discretionary function immunity."

We cannot agree with this statement. The description of a discretionary function in Dalehite permits the interpretation that any federal official vested with decision-making power is thereby invested with sufficient discretion for the government to withstand suit when those decisions go awry. Most conscious acts of any person whether he works for the government or not, involve choice. Unless government officials (at no matter what echelon) make their choices by flipping coins, their acts involve discretion in making decisions.

If the Tort Claims Act is to have the corpuscular vitality to cover anything more than automobile accidents in which government officials were driving, the federal courts must reject an absolutist interpretation of Dalehite, and that interpretation is rejected by Indian Towing and especially by Rayonier. In the latter case, the Court held that the government could be liable for substandard firefighting by the Forest Service. The facts of the case make it clear that the negligence lay in part in the decision to withdraw the major part of the firefighting force before the blaze was truly extinguished. This is perhaps a minor decision when compared to some made in the government, but it is a decision nonetheless, made by an official exercising some discretion.⁴ Cases under the Act therefore put courts to the question of what sorts of decisions can be classified as resulting from discretion within the meaning of § 2680(a). It is not a sufficient defense for the government merely to point out that some decision-making power was exercised by the official whose act was questioned. Answering these questions, a difficult process, is not aided by importation of the planning stage-operational stage standard as argued for by Smith. Such a distinction is specious. It may be a makeweight in easy cases where of course it is not needed, but in difficult cases it proves to be another example of a distinction "so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation." Mr. Justice Frankfurter for the Court in Indian Towing, supra, 350 U.S. at 68, 76 S. Ct. at 126, 100 L.Ed. at 55. Such non-statutory "aids" to construction tend to obscure, to limit, or even to replace the standards whose meaning they are supposed to clarify. Cf. Georgia Southern and Florida Railway Co. v. Atlantic Coast Line Railroad Co., 5 Cir. 1967, 373 F.2d 493; Frosty Morn Meats, Inc. v. NLRB, 5 Cir. 1961, 296 F.2d 617, 621. It must be remembered that the question at hand here is the nature and quality of the discretion involved in the acts complained of.

II.

The President of the United States is charged in Article 2, Section 3, of the Constitution with the duty to "take care that the laws be faithfully executed * * *" The Attorney General is the President's surrogate in the prosecution of all offenses against the United States. 5 U.S.C.A. § 291 et seq., 28 U.S.C.A. § 507. The discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute. Confiscation Cases, 1869, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196, Powell v. Katzenbach, 1965, 123 U.S.App.D.C. 250, ...