Gail Collins v. United States

JOHN R. BROWN, Circuit Judge,

concurring:

I concur in both the result and the court’s opinion. I add this concurrence to make clear that the Federal Torts Claims Act is not dead. The FTCA is not, as government counsel think and continue to urge, confined to the typical fender bender automobile intersectional collision between a postal truck and a citizen’s child-filled station wagon. We have still the significant, still valid, decisions in Indian Towi ng, 1 Rayonier 2 and Eastern Airlines 3 which recognized FTCA liability in areas traditionally thought to have some governmental activity immunity that inherently involved extensive operational judgment, and hence, “discretion.”

Added to this is the extensive judicial history reflected in the operation and application of the FTCA — of which Congress has peculiar knowledge — in which the government has been found liable in areas in which the governmental actors inherently and necessarily had to exercise much careful selection of action and, at least, operational judgment. With nothing but rudimentary research, these examples have been routinely chosen from the annotations to 28 U.S.C. § 2680 in the United States Code Service to illustrate that the discretionary function exception has traditionally been narrowly construed by the courts: Moyer v. Martin Marietta Cory., 481 F.2d 585 (5th Cir.1973) (§ 2680(a) does not bar suit for death of test pilot due to alleged negligence in construction of ejection seat); United States v. Hunsucker, 314 F.2d 98 (9th Cir.1962) (government liable to landowner for damages caused by defective sewage disposal system at air force base); Seaboard C.L.R. Co. v. United States, 473 F.2d 714 (5th Cir.1973) (government liable for negligently constructed drainage ditch causing train derailment); Pierce v. United States, 142 F.Supp. 721 (E.D.Tenn.1955) aff'd. 235 F.2d 466 (6th Cir.1956) (erection of defective electrical substation at munitions plant and failure to warn workers subjected government to liability); Ingham v. Eastern Airlines, Inc., 373 F.2d 227 (2d Cir.1967) cert. denied 389 U.S. 931 , 88 S.Ct. 295 , 19 L.Ed.2d 292 (failure of air traffic

*1232 controller to report weather changes); Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala.1968) aff'd. 411 F.2d 794 (5th Cir.1969) (negligently publishing incorrect airport lighting chart); Driscoll v. United States, 525 F.2d 136 (9th Cir.1975) (failure to install warning devices, barriers, and crosswalks); Hendry v. United States, 418 F.2d 774 (2d.Cir.1969) (government liable for medical decision by governmental psychiatrist that plaintiff was unfit for sea duty); White v. United States, 317 F.2d 13 (4th Cir.1963) (Veterans Administration hospital permitting patient with suicidal tendencies to have freedom of hospital grounds resulting in his suicide); Underwood v. United States, 356 F.2d 92 (5th Cir.1966) (negligence of government psychiatrist in failing to give wife information on patient’s threats on wife’s life); Supchak v. United States, 365 F.2d 844 (3rd Cir.1966) (Veterans’ Administration hospital’s failure to admit emergency patient); Baker v. United States, 226 F.Supp. 129 (S.D.Iowa 1964) aff'd. 343 F.2d 222 (8th Cir.1965) (injuries to mental patient for attempted suicide from negligent failure to properly supervise and restrain patient); Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir.1951) (loss of vessel from stranding on wreck of negligently unmarked battleship); Bevilacqua v. United States, 122 F.Supp. 493 (W.D.Pa.1954) (failure to light lanterns at lock resulting in drowning of two occupants of vessel); Everitt v. United States, 204 F.Supp. 20 (S.D.Tex.1962) (vessel sinking from striking submerged piling); American Exchange Bank v. United States, 257 F.2d 938 (7th Cir.1958) (absence of handrail on post office building steps); Hatahley v. United States, 351 U.S. 173 , 76 S.Ct. 745 , 100 L.Ed. 1065 (1956) (negligence by government agents in impounding livestock); Dahlstrom v. United States, 228 F.2d 819 (8th Cir.1956) (excessive noise by Civil Aeronautics Administration aircraft to establish approach patterns); Friday v. United States, 239 F.2d 701 (9th Cir.1957) (negligence of automobile driver lacking adequate sleep); United States v. DeCamp, 478 F.2d 1188 (9th Cir.1973), cert. den. 414 U.S. 924 , 94 S.Ct. 232 , 38 L.Ed.2d 158 (failure to equip bulldozers with canopy guards); United States v. White, 211 F.2d 79 (9th Cir.1954) (failure to warn of danger of unexploded shells to one collecting scrap metal on army base); United Airlines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.1964) (CAB tower operator failure to inform commercial flights of hazardous training procedures in the area); El Paso Natural Gas Co. v. United States, 343 F.2d 145 (9th Cir.1965) (absence of warning device on wires connecting Coast Guard station with the mainland); United States v. Washington, 351 F.2d 913 (9th Cir.1965) (absence of warning devices on power line to inform pilots of its existence); Wenninger v. United States, 234 F.Supp. 499 (D.Del.1964) aff'd. 352 F.2d 523 (3d Cir.1965) (absence of warning of dangerous activities near radio beam used as navigational aid); Murray v. United States, 327 F.Supp. 835 (D.Utah 1971) aff'd. 463 F.2d 208 (10th Cir.1972) (publication and distribution of incorrect aeronautical information regarding available runway lighting, etc.); Jablonski v. United States, 712 F.2d 391 (9th Cir.1983) (failure to warn victim of violent tendencies of a patient); overruled on other grounds Matter of McLinn 739 F.2d 1395 (9th Cir.1984) (en banc); Petty v. United States, 740 F.2d 1428 (8th Cir.1984) (negligence of swine flue inoculations); Bryant v. United States, 565 F.2d 650 (10th Cir.1977) (negligent operation of boarding school by Bureau of Indian Affairs); Butler v. United States, 726 F.2d 1057 (5th Cir.1984) (repairs to adjacent ocean seawall.)

The narrow construction given to the discretionary function exception is abundantly apparent even from this brief survey of the cases which appear in the pages of the Federal Reporter. The decisions are of vital significance because they clearly reflect the congressional intent in enacting the FTCA. The judgments which arise from these decisions must be paid by an appropriation out of the public purse, and, as I will illustrate, the repeated payment of these judgments by the Congress consti *1233 tutes a Congressional approval of the ap- , proach adopted by these Courts.

Three Supreme Court cases illustrate the significance of Congressional acts of appropriation as important evidence in the task of divining Congressional intent. Ex Parte Endo, 323 U.S. 283 , 65 S.Ct. 208 , 89 L.Ed. 243 (1944), Brooks v. Dewar, 313 U.S. 354 , 61 S.Ct. 979 , 85 L.Ed. 1399 (1941), Isbrandtsen-Moller v. United States, 300 U.S. 139 , 57 S.Ct. 407 , 81 L.Ed. 562 (1937). In order to be probative of Congressional intent, an appropriation “must plainly show a purpose to bestow the precise authority which is claimed.” Ex Parte Endo, 323 U.S. 283 , 65 S.Ct. 208 , 89 L.Ed. 243 , 256 fn. 24 (1944). This is fully satisfied in this case, since Congress has specifically appropriated money to pay FTCA judgments. The attention of the Congress is specifically drawn to judgments entered under the Tort Claims Act by the statute which authorizes the payment of judgments entered against the United States. See 31 U.S.C. § 1304 (a)(3)(A). 4 The information regarding the narrow construction given to § 2680(a) was in the possession of Congress at the time of each appropriation, it was plentiful, and it arose from a cross-section of the Courts of Appeal and the District Courts in the federal system. Cf. Brooks v. Dewar, 313 U.S. 354 , 61 S.Ct. 979 , 85 L.Ed. 1399, 1403 (1941). The repeated payment of these judgments is strong indication that Congress, rather than dissatisfied with these judicial decisions and developments, has ratified them as an appropriate fulfillment of the congressional intent in enacting the FTCA.

Of equal importance, in enacting the FTCA, Congress had a dual objective. First, it wished to compensate citizens for damages inflicted by the increasingly complex operations of government. Second, and equally as vital, was its desire to free itself from the burdensome and highly unsatisfactory system of private bills which had evolved as a means of assuaging the “feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work.” Dalehite v. United States, 346 U.S. 17, 24 , 73 S.Ct. 956, 962 , 97 L.Ed. 1428 , 1435 (1953). As the Dalehite court observed, the private bill device was “notoriously clumsy” 5 and the provision of a “simplified recovery procedure for the mass of claims was imperative.” Id. The Tort Claims Act, then, was designed to afford easy and simple access to the federal courts for persons injured by the activities of government without the need to rely on such unwieldy means of restitution.

Every act of a rational being involves some choices — speed up or slow down, turn right or left, put helm port or starboard, go full astern or full ahead, tighten brakes or replace them, glide in or circle, use general anesthetic or local, use a human heart or a JARVIK 7. It is plain that the discretionary function exception of section 2680(a) must be applied with restraint if the Tort *1234 Claims Act is to achieve the dual purposes which motivated its enactment.

Unless section 2680(a) is read carefully, it will insulate the Government from nearly all tort liability, contrary to the initial expectation that citizens would receive recompense when their injuries were caused by the Government. Unless section 2680(a) is read carefully, it will return us to the days when Congress was forced to award compensation through the clumsy mechanism of private bills, contrary to the expectation of a streamlined remedial procedure under the Tort Claims Act.

This concurrence stands for my conviction that section 2680(a) be carefully applied lest the dual objectives of Congress in enacting the FTCA fail.

. 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955);

. Rayonier, Inc. v. United States, 352 U.S. 315 , 77 S.Ct. 374 , 1 L.Ed.2d 354 (1957);

. Eastern Airlines, Inc. v. Union Trust Co. aff'd sub. nom., United States v. Union Trust Co., 350 U.S. 907 , 76 S.Ct. 192 100 L.Ed. 796 (1955).

. The text of this provision reads:

(a) Necessary amounts are to be appropriated to pay final judgments, awards, compromise settlements, and interest and costs specified in the judgments or otherwise authorized by law when—

(3) the judgment, award, or settlement is payable

(A) under section ... 2672 ... of title 28 [the Federal Tort Claims Act].

. The massive drain of congressional and administrative resources consumed by the flood of private bills which existed at the time of the enactment of the FTCA is illustrated by the following statistics gleaned from a House report quoted in footnote nine of Dalehite.

In the 68th congressional session, 2,200 private bills were introduced, of which 250 became law. In the 70th congressional session, there were 2,268 private bills presented for consideration, of which 144 were enacted for the benefit of tort victims accompanied by appropriations of what was then a modest sum of $562,000 for their compensation. The 74th and 75th congressional sessions witnessed the introduction of over 2,300 private bills each; the 76th, in turn, saw the introduction of over 2,000 bills of which 315 became law together with compensatory appropriations of $826,000. In the 77th, 593 of the more than 1,800 private bills presented became law accompanied by over $1,000,000 in compensatory appropriations. The high water mark of the deluge was reached in the 78th Congress when the 549 private bills enacted carried compensatory awards of $1,355,767.12.