Thompson v. Dilger

• Decision Date: 21 September 1988
• Docket Number: 88-196-A.,Civ. A. No. 88-197-A
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Theresa M. THOMPSON, Plaintiff, v. Robert George DILGER, et al., Defendants. Domenico and Elda GARGANI, Plaintiffs, v. UNITED STATES, et al., Defendants.

696 F. Supp. 1071

Theresa M. THOMPSON, Plaintiff, v. Robert George DILGER, et al., Defendants.

Domenico and Elda GARGANI, Plaintiffs, v. UNITED STATES, et al., Defendants.

Civ. A. Nos. 88-197-A, 88-196-A.

United States District Court, E.D. Virginia, Alexandria Division.

September 21, 1988.

John P. Ellis, Schwartz, Ellis & Sullivan, Ltd., Arlington, Va., for Gargani.

Michael S.J. Chernau, Nixon, Hargrave, Devans & Doyle, Washington, D.C., for Thompson.

Dennis E. Szybala, Asst. U.S. Atty., Alexandria, Va., for U.S.

Frank W. Dunham, Jr., Cohen, Gettings, Alper & Dunham, Arlington, Va., Robert E. Ellis, Fairfax, Va., for Dilger.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

These essentially similar, consolidated cases arose from the same bizarre incident, an incident that confirms yet again that fact is often stranger than fiction. It happened on August 19, 1986, at the Texacare Service Station in Arlington, Virginia. On that day, defendant Robert G. Dilger, a retired Air Force Colonel with extensive experience in arms development and procurement, and a companion, defendant Joseph Donahue, drove into the service station to buy gasoline. Dilger and Donahue were in the Washington area to demonstrate an armor piercing rifle developed by Dilger with unofficial government encouragement, but without a government contract or official funding. The weapon was in the car. It was loaded. Significantly, it was loaded with ammunition furnished to Dilger by government officials in contravention of government regulations and policies. Donahue and Dilger started handling the weapon. It fired, hit a gas pump and caused an explosion. Plaintiffs, claiming they were injured as a result, brought these actions. Against the individual defendants, plaintiffs bring negligence actions based on diversity jurisdiction. Against the United States, plaintiffs assert a number of negligence theories based on the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). In essence, the FTCA theories are based on the following:

1. the negligence of Dilger who was alleged to be an "employee of the United States Government,"

2. the negligence of other United States employees in providing ammunition to Dilger,

3. the negligence of the government in wrongfully supporting the development, testing and transportation of the weapon, and

4. the negligence of the government in failing to supervise Dilger's transportation, storage and handling of the ammunition.

The government seeks summary judgment with respect to the first, third and fourth theories, apparently conceding for now that the second theory warrants a trial. The first theory falls, the government contends, because Dilger was not "an employee of the Government" under 28 U.S.C. § 2671. Against the third and fourth theories, the government asserts the "discretionary function exception" as set forth in 28 U.S.C. § 2680 and the elucidating cases. Since the dispositive facts are undisputed, summary judgment is appropriate. Fed.R.Civ.P. 56; See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). For the reasons stated in this Opinion, the Court grants summary judgment on these three FTCA theories.¹

Facts

The pertinent facts are as follows: defendant Robert George Dilger, a retired Air Force officer with extensive experience in the development and procurement of munitions, conceived an idea for a portable rifle (approximately eight and one-half feet in length) capable of piercing tank armor. Essentially, Dilger's idea involved taking a barrel that used GAU-8 ammunition, modifying it with a manual breech mechanism, and adding a sight so that it could fire surplus GAU-8 ammunition.

In 1985, at a social gathering in Washington, D.C., Dilger outlined his idea to William Bode, Special Assistant to the Undersecretary of State for Security Assistance, Science and Technology. Bode was in charge of guerilla activities for the Department of State and expressed interest in Dilger's idea. Subsequently, Bode introduced Dilger to Charles Bernard, Director of Land Warfare for the Department of Defense (DOD). Bernard was the head of DOD's Equipment Upgrade Program (Program) established for the purpose of supporting the development of light infantry weapons. It appears that the Program was intended to support the development of weaponry for use by the mujahedin against the Soviet Army in Afghanistan. Bernard, who was familiar with Dilger's munitions and armament expertise, expressed support for Dilger's project and indicated to Dilger that his portable armor piercing rifle project would be considered for funding once Congress appropriated funds for the Program. At the time, Congress had already allocated $10,000 for the Program.

Although Dilger's project could not then be funded, Bernard decided to assist Dilger by arranging for the release of the GAU-8 ammunition necessary for testing the weapon. Dean Zerbe, a member of Congressman Dennis Smith's office, also assisted Dilger in obtaining ammunition for his project. In the fall of 1985, Bernard and Andrus Viilu, a program manager for Army Fire Support Systems, met with Walter Squire, Army Staff Specialist for Conventional Munitions, in order to obtain ammunition for Dilger's project. Squire contacted personnel with access to ammunition at Fort Dix and told them that Dilger was "involved in some kind of clandestine R & D type activity" and was "working for people at the highest levels of the Government." Squire then contacted Dale Adams who worked at Aerojet Ordinance Company in California, a manufacturer of GAU-8 ammunition. Squire asked Adams to provide ammunition for this project, stressing Dilger's reputation and the government's interest in the weapon. Aerojet agreed to modify an existing government contract to supply this additional ammunition provided that the government paid for it and provided that the shells were delivered to a government installation. Robert Trifiletti, a branch Chief in the Armament Research, Development and Engineering Center (ARDEC) at Picatinny Arsenal, New Jersey, agreed to modify the existing government contract and authorized the shipment of 216 rounds of 30 mm ammunition to Fort Dix. Thereafter, a contracting official made the necessary alterations to the contract under the mistaken impression that the ammunition was to be used at a DOD test agency.

At Squire's request, the ammunition shipped from Aerojet was received by an ARDEC official at Ft. Dix, who released it to Dilger. Dilger then transported the ammunition to his home in the back of his truck. None of the regulations and paperwork requirements concerning the receipt and release of ammunition pursuant to a government contract were followed. An Army investigation following the accident concluded that the authorization and release of this ammunition was flatly contrary to Army policy and regulations.

Once Dilger received the ammunition, he worked on the weapon at his home in Ohio. He used other government contacts to obtain the gun barrels and sights. Significantly, he was neither supervised nor given safety instructions by federal officials or inspectors. In June of 1986, Bode sponsored several briefings on the weapon for representatives of various branches of government, including the Central Intelligence Agency, National Security Council, and Congress. Dilger also demonstrated early versions of the weapon at a farm in Virginia for the benefit of government officials, including representatives from DOD and CIA. These representatives expressed concern that Dilger was not conducting the demonstrations in a safe manner.² Yet none of these officials made any effort to admonish Dilger, nor did they take back the ammunition the government had provided.

Dilger continued work on the weapon until August 1986, though he still had not received either a government contract or any funding. On August 19, 1986, he was in the Washington metropolitan area in anticipation of a third demonstration of the weapon. After taking the weapon out to buy parts for the demonstration, Dilger and a companion, Joseph Donahue, stopped for gasoline at the Texacare Station on Columbia Pike in Arlington, Virginia. At the station, Donahue started handling the loaded rifle. Dilger then began to explain the weapon and as he picked it up, it discharged, striking a gas pump. An explosion followed, causing injury to plaintiffs and their property.

Analysis

I.

Government liability for Dilger's acts turns on whether Dilger was, at the time, an "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 to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). An "employee of the Government" is, in turn, defined to include:

officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty ..., and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

28 U.S.C. § 2671. There is no contention that Dilger was an officer or employee of a federal agency, or an active member of the military forces. Plaintiffs concede that their FTCA claim for Dilger's acts survives only if they successfully establish that Dilger was a "person acting on behalf of a federal agency in an official capacity." This, as is now clear, they cannot do, and hence the FTCA claim for Dilger's acts fails. While there is no controlling authority directly in point, well-established principles hold that a person does not act on behalf of a federal agency in an official capacity where, as here, there is no governmental authority to supervise the person's daily activities.

The Supreme Court in Logue v. United States, 412...