Record and brief — Fortney v. United States
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SHOW™ . “PROCEEDINGS AND ORDERS DATE: (10/17/88)
CASF_NER: 1R71919791 CFK STATUS: I . }
T TITLE: [Fortney Maré i... et al. ]
Bisrsis [inated States ) PATE DOCKETED: fOS73e8)
PAGE: [811
insat staica hatin NATE” *~ "NOTE" "~*~" "~*~" """""""PROCEEDINGS & ORMERS™*~~~"*"™*""eerereen® [
May 72 1988 Petition for writ of certiorari: filed. ;
> - . _ dun 1% 1988 Order extending time to file response to petition until \
: July 75. 1988. be
Jul 75 1988 Brief of respondent United States in opposition filed.
; Jul 27 1988 DISTRIBUTED. September 76. 1988
7 Jul 39 1988 Reply brief of petitioners Mark Fortney, et a). filed.
Sep 30 198 REDISTRIBUTED. October 7, 1988
- BS Oct 5S 1988 Supplemental brief of petitioner Mart Fortney filed.
Het 1) 1988 Petition GRANTED. Judgment VACATED and case REMANDED for
. a further consideration in light of Berkovit? v. United
a ; States, 486 1.5. ------ (1988). Dissenting opinion By
Justice Scalia with whom The Chief Justice, Justice
O°fanner and Justice Kennedy join. (Detached opinion.) -
Oe ee el
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PETITION
FOR WRIT OF
CERTIORARI
MAY < 2 \988
owe CLERK a
IN THE
Supreme Court of the United States
OCTOBER TERM, 1987
MARK LYNN FORTNEY;
ESLEY DOUGLAS TIPTON
AND MARY E. TIPTON:
DANIEL WEBSTER HARMON AND
MARY JANE HARMON
Petitioners,
Vv.
UNITED STATES OF AMERICA
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRENT M. ROSENTHAL
COUNSEL OF RECORD
CHARLES S. SIEGEL
BRIAN D. WEINSTEIN
BARON & BUDD
8333 Douglas Avenue
10th Floor
Dallas, Texas 75225
(214) 369-3605
i
QUESTION PRESENTED FOR REVIEW
Does the discretionary function exception to the Federal
ort Claims Act bar a suit turning on violation of mandatory
military safety regulations?
ii.
TABLE OF CONTENTS
PAGE
Question Presented for Review... 2... 6s cere eee eee i
Opinions Below ec eccceseccseeseeeu sane sa EE l
Statement of Jurisdiction ..... 2... 6660 ]
Statutes and Regulations Involved .........---++ss055 l
Statement of the Case .........: cece eee eee neees 5
Reasons for Granting the Writ... 2... ee ees 1]
| THE DECISION BELOW IRRECONCIL-
ABLY CONFLICTS WITH THE DECISIONS
OF OTHER COURTS OF APPEALS .......... 11
A. What are the Precise Govern-
mental Decisions Complained of
by Petitioners? ........-0 0c eee erence 1]
B. The Discretionary Function Ex-
ception Only Protects Social,
Economic and Political Policy
errr rr rr errr eer 14
C. The Decision Below Is in Direct
Conflict with Several Appellate
ee 16
D. The Mandatory Regulation At
Oe )..”.,lU Meee 23
we
TABLE OF CONTENTS (Continued)
PAGE
THIS CASE SHOULD BE DECIDED IN
LIGHT OF BERKOVITZ V UNITED STATES >
TABLE OF AUTHORITIES
CASES
ARA Leisure Services » United States. 841 F 2d 194
(9th Cir, 1987) | 22
Arete » United States, 604 F 2d 417 (Sth Cin, 1979).
opinion vacated, 616 F Jd 254 (5th Cir, 1980) (en
ee ta dd M45 heen Ry Atay
&. }, panel opinion reinstated.
660 F 2d S31 (Sth Cir 1981). 0
Aslakson v United States, 790 F dd 688 (ath ©)
1986). | , 18
Baker vy United States, 817 F 2d S60 (9th Cir, 1987) 25
Barron v United States, 473 ¥ Supp. 1077 (Hawaii
1979), modified, 654 F 2d 644 (9th Civ, 1981) -
Berkovite » United States, 82) F 2d 142) (ied Cir
1987), cert granted, codmadh*y stem 9 ON
$C 6921988) 8. 6
iw
TABLE OF AUTHORITIES (Continued)
PAGE
CASES
Caraballo v United States, 830 F.2d 19 (Qa Cir
1987) ) ) TTTTs
Chotin Transportation, Inc ¥ United States, 819
F 2d 1942 (Oth Cir, 1987) (en bane) cert denied
a 8, 108 S.Ct, 344 (1988) ) 22
Collins » United States, 783 F 2d 1228 (Sth Cir
1986) swee ve |
Dalehite vy United States, 346 US. 1s¢1953)... 14,15, 19
Denham v United States, 834 F.2d 518 (Sth Cir
1987) 2
Pepers » United States, 749 F.2d 1222 (oth Cir
1984), cert denied 471 US. 1125 (1985)... 22
burtney v United States, 689 F Supp. 127 (WD Va
1987). aff'd, . . F.2d — , No, 87-1630
(4th Cir, Feb, 22, 1988) (pereuriam). 12
Griffin » United States, 00 F.2d 1089 (ind Cir
AOPOD cic ce ccee ee eeeeeeeeeeeeeneenenens 20
Loge vy United States, 662 F 2d 1268 (8th Cir
1981). cert. denied, 456 US. 944(1982).......... 25
Madison v United States, 679 F.2d 736 (8th Cir, 1982) . 17
Michael » United States, 751 F.2d 303 (ath Cir.
me. ve PP WO, 22, 26
fe
..
TABLE OF AUTHORITIES (Continued)
CASES
Petham v United States, 661 F Supp 1063 (D.NJ.
. PYTTTie WYTTTTITTT TTT Ty , 2
Petenich » United States, 575 | Supp. 698 (D Neb.
Sheridan Transportation Co » United States, $34
F.2d 467 (Sth Cir, 1987) | 7 sean 8
T & Ritter Corp » Rose, 200 Va. 736 107 S bod
483 (1959) ) toa
Toole » United States, $88 F.2d 403 (3rd Cir 1978)... 20
Totten » United States, 618 F Supp 95! (ED
Tenn. 1985), aff'd, 806 F 2d GOR (Oth Cir, 1986) 22
United States » Muniz, 374 US 150 83 SC 1850
10 L. bd 2d 805 (1963) 1s
United States » SA. tmpresa de Viacao Aerea Riv
Urandense ( Varig Airlines), 467 U8. 797 (1984) i4
18, 16
17, 18,19
United States hire Insurance Co + United States,
806 F 2d 1829 CL Ith Cir 1986) a]
vi
TABLE OF AUTHORITIES (Continued)
PAGE
STATUTES
28 USC. 134000) | 420
USC. §2074 2,7
28 USC. § 268010) 2,11, 19, 20
REGULATIONS
AMCR 385-100 §1 3 3,8,9, 23
AMCR 385-100 §1.5 8,23
AMCR 385-100 §12.3.%@) | 69,13
AMCR 385-100 §204 caer 4,8,9,23
| 1 of
Fourth Circuit is unpublished and appears in the Appendix
at 1A. The initial opinion of the United States District Court
for the Western District of Virginia is published at 659
F Supp. 127 (WD. Va. 1987) and appears in the Appendix
at 74, the district court's opinion on motion for reconsidera-
tron is unpublished and appears in the Appendix at 16A
STATEMENT OF JURISDICTION
The judgment and opinion of the court of appeals were
entered on February 22, 1988. This petition for certiorari
was filed within ninety (90) days of that date. This Court's
jurisdiction is invoked under 28 USC. §1254(1).
STATUTES AND REGULATIONS INVOLVED
28 USC. §1346(b) provides:
61346 United States as defendant
The opinion of the United States Court of Appeals for the
A.
nited States District Court for the District
the Canal Zone and the |
the Virgin Islands, shall have exclusive juris:
liet civil act
2.
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 of omission
28 U.S.C. $2674 provides:
§ 2674 Liability of United States
the provisions of this tithe relating to tort
claims, in the same manner and to the same
extent as a@ private individual under like
ciroumstances, but shall not be liable for
interest prior to judgment or for punitive
damages. If, however, in any case wherein
death was caused, the law of the place where
the act or omission complained of occurred
provides, or has been construed to provide,
for damages only punitive in nature, the
United States shall be liable for actual or
compensatory damages measured by the
pecuniary injuries resulting from such death
to the persons respectively, for whose benefit
the action was brought, in lieu thereof
28 USC, §2680(a) provides:
§ 2680 Exceptions
The provisions of this chapter and section
1346(b) of this title shall not apply to-
(a) Any claim based upon an act
or omission of an employee of
3.
the Government, exercising
due care, in the execution of a
statute or regulation, whether
or not such statute or regula-
tion be valid, or based upon
the failure to exercise of per:
or duty on the part of a feder-
al agency or an employee of
not the discretion involved be
abused
AMCR 385-100 § 1.3 provides:
b. Mandatory requirements are those in
which the terms “shall”, “will” or “must”
are used, and no deviation is permitted with-
out specific written authority in the form
of a waiver, exemption of authorization
from the Commanding General, AMC, Attn:
Safety Office. The advisory provisions are
those in which “may” or “should” are used,
and no deviations are permitted unless excep-
tions (local waivers) are authorized in writing
by the commanding officer or his designated
agent) Local waivers covering conditions
AMCR
4.
which can be corrected should be granted for
definite periods of time (one year or less).
Such waivers must be reviewed at least annu-
ally to determine whether changed conditions
warrant continuation of the waiver. All ex-
emptions, waivers and authorized deviations
shall be maintained in a certral register which
is readily available to authorized personnel.
c. Existing facilities not complying with
safety regulations published after their con-
struction or installation may be exempted
from the new requirements when such action
is authorized by the Commanding General,
AMC. However, modifications, unless minor
in nature and not decreasing safety, must
comply with the latest safety requirements.
AMC establishments with facilities exempted
from compliance with regulations should
take additional precautions to counterbalance
the deficiencies.
385-100 § 20.4 provides:
§ 20.4 Containers
Hazardous materials in bulk or liquid form
must be transported in containers which will
prevent leakage. Containers used in intraplant
transportation and service storage of explo-
sives and explosive mixtures such as initiating
explosives, pyrotechnic compositions and
tracer materials should be made of material
in the following preference order:
Conductive rubber
5.
Nonferrous metal-lined boxes
without seams or rivet heads
under which explosive dust
can accumulate
Plastics (conductive-type only)
Paperined wood boxes
Fiber containers
Fiber containers should not be used when
they show signs of damage or wear. Glass
containers should not be used because of their
fragility and severe missile hazard.
AMCR 385-100 § 12.33(g) provides:
Certain hazardous operations such as nitro-
cellulose dehydration should be protected
with a deluge capable of supplying water on
the hazard within 50 milliseconds after igni-
tion. Pipe lengths between deluge valves and
outlets, and distance between outlets and the
protected areas should be kept short to speed
application of water.
STATEMENT OF THE CASE
The Radford Army Ammunition Plant (RAAP) at Radford,
Virginia, is one of several facilities known as “government-
owned, contractor-operated™ plants, or GOCOs. Under
this arrangement, the Government hires a contractor to
operate a facility. At Radford, Hercules, Inc. operates the
plant as the contractor; the Government owns the land.
6.
ildi i under a
buildings, equipment, etc. Hercules operates RAAP
contract which is periodically renegotiated and modified.
Among the primary products manufactured at Radford
are propellants for use in various explosives. An important
constituent of the propellants is nitrocellulose. To be useful
in these products, nitrocellulose must first be dehydrated
and then dampened with alcohol; that is, water is first
removed from a nitrocellulose slurry, and then the remaining
nitrocellulose powder is dampened to a certain degree of
alcohol moisture. In the late 1970's, efforts were undertaken
by Hercules and the Corps of Engineers to automate the
dehydration process and combine several functions into a
single system. This new process, to be known as C-Line” or
“Continuous Thermal ce ar et cer ees
t operations, be governed by ety regula
eted by various Army authorities. Though it is operated by
a contractor, RAAP is a government facility subordiante
to the Army Munitions and Chemical Command (AMCCOM)
in Rock Island, Illinois. AMCCOM is in turn subordinate
to the Army Materiel Command (AMC) in Alexandria,
Virginia.
AMC ulgates regulations designed to effect and
ensure safe practices at all subordinate facilities, of which
RAAP is one. AMC’s primary set of regulations known as
AMCR 385-100—“the Bible,” as the Government's head of
safety at Radford called it. This compilation is entitled
“Safety Manual,” the current governing manual was publish-
ed in 1970 and occasional supplements or modifications
are issued.
Charged with enforcing a contractor's compliance with
is a Government safety staff at each installation. The entire
7.
Government contingent at RAAP is known as the Con-
tracting Officer's Representative staff. Part of this staff is
devoted exclusively to safety.
In 1979 a hazard analysis was performed by Hercules
personnel on the new dehydration process. The report
identified several dangers in the system and made recommen-
dations. Over a year later, armed with a copy of the report,
the Government safety staff conducted a required preopera-
tional survey and certified the process as safe if certain
changes were implemented.
On May 6, 1981, a fire and explosion occurred in the
“C-Line” process during only its second “proveout” or test
run. Though it was a flash fire, and Petitioners were envelop-
ed in flames less than a second after ignition, there was no
dispute at trial over how the fire started. As the subsequent
Army investigation found, the most likely cause was “an
electrostatic discharge from the nitrocellulose in the contain-
er being filled to the grounded dust shroud which ignited a
flammable alcohol/air mixture or a mixture of nitrocellu-
lose dust and alcohol vapor.” The Hergules investigation
reached the same conclusion.
Petitioners are current and former employees of Hercules,
Inc., who were working on the “C-Line” process at the time
of the fire and explosion. Each Petitioner was severely
burned in the incident. Their injuries include permanent
disfigurement, extreme physical pain and suffering, mental
Petitioners brought suit in the United States District Court
for the Western District of Virginia against the United States
under the Federal Tort Claims Act, 28 US.C. §§1346(b)
and 2674 et seq., for damages for injuries resulting from the
fire. They alleged that the Government violated its duty to
them under Virginia tort law to take all necessary precautions
against likely harm in an inherently dangerous activity.
As both the Army and Hercules investigations concluded
that the fire was caused by a spark from the nitrocellulose
in the tub, Petitioners focused their proof at trial on the
tubs used in the C-Line process. These tubs were made of
nonconductive rubber. Petitioners’ theory was that the static
charge building up in the nitrocellulose in the tub would
have “bled off,” or dissipated harmlessly into the ground
had the tubs been made of conductive material. Instead, the
tubs were nonconductive (they were the only nonconductive
equipment in the entire operation), the charge could not
dissipate, and the charge eventually ignited.
In support of this theory, Petitioners referred the
court to several military safety regulations. Primary emphasis
was placed on AMCR 385-100 § 20.4, reproduced at p.71A
infra. The regulation prescribes the types of containers to
be used for intraplant transportation of hazardous materials.
The containers are listed in descending order of preference,
nonconductive rubber containers are not one of the listed
choices.
The regulation states that containers “should” be made of
the listed materials. Section 1.3 of the same safety manual,
reproduced at p. 34A infra, however, provides thet “advis-
ory” provisions in which the words “may or should
are uscd are mandatory, and no deviation is permitted unless
a waiver of compliance is secured in accordance with the
waiver procedure set out in §1.5 (reproduced at Appendix
p. 36A. It is undisputed that §20.4 was not complied with
and that mo waiver was secured.
9.
At trial, the Government controverted Petitioners’ theory
of causation but did not dispute that the regulation on con-
tainers was violated. Petitioners also demonstrated that
AMCR 385-100 §12.33(g), reproduced at p. 67A infra,
was violated. The regulation explicitly requires for nitro-
cellulose dehydration operations a sprinkler system capable
of delivering water within 50 milliseconds of ignition: the
system in place could deliver water in not less than 150
milliseconds. It was undisputed that the existing system did
not satisfy the explicit command of the regulation, that
mandatory recommendations to change the sprinkler nozzles
to increase system speed were not carried out, and that
no waiver of compliance with the regulation was secured.
The entire trial on liability focused on the validity of
Petitioners’ theory of causation. Expert testimony was
presented for both sides. Several months after the trial,
the district court issued an opinion dismissing Petitioners’
suit for lack of subject matter jurisdiction, finding that the
discretionary function exception to the Federal Tort Claims
Act barred their allegations of negligence. Addressing only
on a motion for reconsideration Petitioners’ contention
that violations of mandatory safety regulations took the
case out of the discretionary function exception, the district
court inexplicably ignored AMCR 385-100 §1.3, and held
that the use of the word “should” in § 20.4, prescribing the
permissible types of containers, made that regulation non-
binding.
On appeal, the Fourth Circuit affirmed in a brief per
curiam opinion. Repeating the district court's apparent
refusal to acknowledge the existence of §1.3 of the Army
safety manual, an error by both lower courts which Petition-
ers are at a loss to explain, the court of appeals found that
§ 20.4 “embraced the type of containers used at the Radford
plant, even though the containers used were not specified
in the regulation”. The court of appeals stated finally
10.
that “the violation of a mandatory regulation does not
abrogate the government's tort immunity independently
of the FTCA.. . .” Appendix p. 4A.
Petitioners contended throughout, and continue to con-
tend, that the discretionary function exception protects
from tort scrutiny only those decisions which are policy
determinations. A decision must be grounded in a political,
social or economic policy judgment to come within the
exception. Congress sought in the FTCA to prevent judicial
examination of public policy choices.
The district court, in holding the discretionary function
exception applicable to Petitioners’ claims, initially focused
on a decision Petitioners did not charge as negligent and did
not attack at trial: the decision to delegate primary responsi-
bility for safety to the contractor and to retain a monitoring
and enforcement role. Petitioners acknowledge that this
decision is discretionary. Petitioners’ grounds of negligence,
however, were different: in enforcing safety requirements
at RAAP, the Government made technical decisions concern-
ing tubs and sprinklers which were negligent.
The Government pointed to no policy concerns in these
decisions, and there is none. The Government safety manager
at RAAP acknowledged his inability to formulate policy.
Finally, mandatory regulations which governed the Govern-
ment safety staff's actions remove any possible discretion
and permit no deviation. These regulations reflect the previous
discretionary determination of policy, but they eliminate
an, policy discretion in their fulfillment. These regulations
were violated in this case.
Since no policy judgment was identified in the grounds of
negligence alleged by Petitioners, the discretionary func*ion
exception cannot bar their claims. The decision between a
i.
conductive and non-conductive tub is simply not the type
of executive of administrative policy making that Congress
wished to shield from judicial review:
REASONS FOR GRANTING THE WRIT
of its recent consideration of Berkovite » Unit
States, No. 87.498 (see Part I, tate) the Coun 0 undeubees.
with the discretionary function exception and its
previous treatment Petitioners will detail the precise nature
of their allegations, and briefly review this Court's two
previous cases on the subject, before examining the conflic.
ort Claims Act waives federal sovereign
in tort. Immunity is preserved, how.
based upon the exercise of performance or
a to exercise of perform a disere-
duty on the part of a federal
agency of an employee of the Government.
whether or not the discretion involved be
28 USC. §2680(a) Before determining whether the discre.
tionary function exception bars Petitioners’ suit, it is neces.
sary to identify the exact allegations of negligence at issue
The decision identified by the courts below as discretion.
ary was the “delegation of safety responsibility” to the
contractor at RAAP. Fortney v Untied States, 659 F Supp.
127, 129 (WD. Va. 1987), Pesitionsm, Rewever, cnpuenty
challenge. however, the Government's engineering decisions
in fulfillment of its chosen role
Had the Government decided to play no role at all at
‘There was no depute ot tri! that nitrocellulose dehydration is
! dangerous sctivity See, eg. AMOR 986-100 §12.58%q)
ford would be of a certain size, and that, among other duties. Tony
these staffs would conduct preoperational surveys of new
processes to determine if they are safe Whether this scheme
“
4
only those governmental decisions in which policy considera:
in Dalehite v United States, 346 U.S. 15 (1953) plaintiffs
charged the Government with negligence in various aspects
of @ program of production and distribution of ammonium
nitrate fertilizer, In holding the claims barred, the Court
made clear that the challenged decision must reflect a deter-
mination involving policy It wrote
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 admin-
istrators in establishing plans, specifications,
or schedules of operations. Where there is
room for policy judgment, there is discretion
id 9446 US. at 35-36 (emphasis added). Thus, while all
governmental officials have “discretion,” in the literal sense
of the work, to act one way or another, their choices are
protected only if policy judgments are involved.
The Court again considered the exemption in United
States » SA Emprem de Viacao Aerea Rio Grandense
(Varig Airlines), 467 US. 797 (1984). In Varig, plaintiffs
sued for harms suffered when an airplane crashed because
of vi of FAA safety regulations Plaintiffs challenged
the FAA's decision to employ a spot check system of inspec.
ting aircraft for comphance with regulations
The Court first held that the rank of the governmental
official involved in immaterial, it is rather the “nature of the
ond ue that is important. /d , 467 U.S. at 813. In
|
3
Seed Bistes 6. tunis, | 374 US. 150, 163.
83 S.Ct. 1850, 1858, 10 L.Ed 2d 805, 815
(1963).
id at 814 (emphasis added) Dalehite and Varig thus teach
that governmental decisions “grounded in social, economic.
and political policy” are the decisions immune from judicial
scrutiny. The Court in Varig took pains to clarify this assess-
ment of the exception
Here, the FAA has determined that a program
of “spot-checking” manufacturers’ compli-
safety and the reality of finite agency re-
making through private tort suits would
require the courts to “second-guess” the
political, social, and economic judgments of
an agency exercising its regulatory function.
it was precisely this sort of judicial interven-
tion in policymaking that the discretionary
function exception was designed to prevent.
/d at 820 (emphasis added). .
it is thus clear from the Supreme Court's treatment of
the discretionary function exception that a decision musi
have policy attributes to be shielded , “judicial intervention in
policymaking” is the evil to be avoided. This Court has
likewise required a showing that a policy judgment was
involved for the exception to control.
©. The Decision Below Is in Direct Conflict with Several
Appellate Decisions
The Fourth Circuit wrote that “violation of a mandatory
regulation does not abrogate the government's tort immunity
independently of the FTCA . Appendix, p. 4A. This
inscrutable statement demonstrates the Court of Appeals’
fundamental misapprehension both of the nature of FTCA
liability and of the role of the discretionary function excep-
violation of a regulation furnishes a cause of action against
the Government. It is the FTCA and the governing local
law that provides the cause of action, violation of a manda-
tory regulation is evidence of negligence. Moreover, the
regulation shows that policy has previously been made and
insulated discretion already exercised.
17.
Numerous courts of appeals have concluded that violations
of mandatory regulations remove a suit from the ambit of
751 F.2d 303 (8th Cir. 1985). Exactly as in the present
case, McMichael involved the government safety staff's failure
suit for failure to enforce compliance with the regulations
Madison v United States, 679 F.2d 736 (8th Cir, 1982).
After Varig, the court directed supplemental briefing on
that case's impact.
its
second ruling, the Eighth Circuit found Varig “en-
not bar the Plaintiff's ‘suit for failing to enforce the
. in the contract.” 751 F.2d at 306. The
court first noted that when the Government acts in a pro-
a Se, | See capacity, as when it
Varig's “admonition to avoid judicial second-guessing of
regulatory decisions is of less force." Jd.
More fundamentally , the court recognized that the safety
inspectors were not making policy, and that therefore their
decisions could properly be the subject of a tort suit”
The inspectors’ regular procedures included
a fifty-one step procedure review checklist
for safety compliance. Thus, the Defense
Department inspectors were not called upon
to make discretionary regulatory judgments
Rather, they had a number of precise inspec.
tions to perform which involved no judgment
concerning agency policy.
Id. at 307.
The factual setting and legal issue in McMichael and in
the present case are identical. Petitioners submit that the
rulings simply cannot co-exist if the discretionary function
exception is to be construed in any principled manner,
and that this Court should reconcile them by reversal of the
decision of the court below.
The Eighth Circuit recently reaffirmed the reasoning of
McMichael in Aslakson v. United States, 790 F.2d 688,
693 (8th Cir. 1986), in which it held that “[w]here the
challenged governmental activity involves safety considera-
tions under an established policy rather than the balancing
of competing public policy considerations, the rationale
for the exception falls away and the United States will be
held responsible for the negligence of its employees.” In
Aslakson, a sailboat operator struck powerlines which had
not been elevated according to governing National Electric
Safety Code rules. The rules left some judgment to officials,
but not the sort of judgment contemplated by the discre-
tionary function exception. /d. at 693 (“although such a
policy necessarily involves some degree of judgment on the
part of government officials, it is not the kind of judgment
that involves the weighing of policy considerations’’).
The Fifth Circuit reached the same result in another
recent explosion case. In Collins v. United States, 783 F.2d
1225 (Sth Cir. 1986), failure by OSHA officials to reinstitute
a “danger order” and to reclassify a mine as “gassy” led to
an explosion in the mine. The Government moved to dismiss
under the exception. The district court denied the motion,
and the Fifth Circuit affirmed in an opinion containing an
19.
extensive discussion of Varig and Dalehite. Noting that “the
presence of a choice does not necessarily mean that there
is discretion under §2680(a),” the court made clear that it
was the absence of any policy consideration in the challenged
actions that compelled its conclusion:
It is apparent that the decision to annul
Imminent Danger Order No. 195 was a
decision only remotely related, if related at
all, to social, economic, or political policy.
The government suggests no policy
reason for that action, and none is apparent
to us.
Id. at 1230 (emphasis added). Lik=wise, the failure to follow
4 mandatory regulation on classiiication of mines as gassy
if a certain level of methane is present was devoid of the
necessary policy attributes:
A subordinate charged with enforcing 30
C.F.R. §57.21-l(c) during the relevant
period therefore had no room for policy
judgment or decision once methane levels
exceeding .25 percent had been detected.
Failure to reclassify the mine as gassy repre-
sented disobedience of official directions,
simple and unadorned... . To the extent
that an employee refuses to carry out a
mandatory statute or regulation, one which
leaves him no discretion in the manner or
extent to which it will be enforced, the
employee is simply disobeying a flat com-
mand. In this instance, any available discre-
tion had been exercised when the command
was adpoted; appellees’ challenges do not
threaten that discretion.
Id. at 1231 (emphasis added).
20.
Since there was no policy discretion in the decision attacked,
the suit could proceed. The case is also notable for Judge
Brown’s concurrence, in which he wrote to “make clear
that the Federal Tort Claims Act is not dead” and is not
confined to automiblie collisions or medical malpractice.
He further found that the dual purposes of the FTCA —to
compensate victims of government negligence and to free
the government from the unwieldy private bill system which
previously had served, clumsily, to reimburse then—would be
thwarted by restrictive application of the Act. Jd. at 1231-33.
Toole v. United States, 588 F.2d 403 (3d Cir. 1978) is
another similar case. Toole was the employee of a contractor
making antitank explosives at a munitions plant in Phila-
delphia. She was killed when the shield behind which she
operated levers failed to withstand an explosion. The govern-
ment knew the shield had been insufficiently tested and
could be unsafe but failed to warn the contractor or Toole.
Succinctly dismissing the discretionary function exception,
the Third Circuit noted that “[t]}he decision whether or not
to warn Mrs. Toole did not require any judgments about
policy. The Government did not need to reach a balance
of such factors as the cost of Government programs against
the potential benefit.” ” 588 F.2d 403, 407 n.4, quoting
Griffin v. United States, 500 F.2d 1059, 1064 (3d. Cir.
1974) (emphasis added). Just as in Toole, the Government
employees’ decisions attached in this case required no judg-
ments about policy. See also Aretz v. United States, 604
F.2d 417 (Sth Cir. 1979), opinion vacated, 616 F.2d 254
(Sth Cir. 1980) (en banc), certified question answered,
248 Ga. 19, 280 S.E.2d 345 (1981), panel opinion reinstated,
660 F.2d 531 (Sth Cir. 1981) (explosion at munitions plant).
21.
Pelham v. United States, 661 F Supp. 1063 (D.N.J. 1987),
was a suit for injuries suffered in a construction accident at
at at Picatinny Arsenal in Dover, New Jersey. Plaintiffs
complained of negligence in the enforcement of military
construction safety regulations. The district court readily
held the adoption of a spot check program and the develop-
ment of the safety provisions discretionary, but the “minis-
terial implementation of safety regulations” was outside
the exception.
In Petznick v. United States, 575 F.Supp. 698 (D. Neb.
1983), the government failed toe enforce compliance with
“policies of the United States Air Force with respect to
electrical work” contained in an Air Force safety manual.
The discretionary function exception was held inapplicable
because the government employee “was not formulating
policy when he decided to allow the work to be performed
on energized lines in this case.” 575 F.Supp. at 702, 703.
See also Barron v. United States, 473 F.Supp. 1077 (Hawaii
1979), modified, 654 F.2d 644 (9th Cir. 1981) (failure
to correct safety problems not discretionary where contrac-
tor disregarded significant safety requirements of Corps
of Engineers safety manual).
In each of these cases, different courts found that viola-
tions of mandatory regulations precluded dismissal under
the discretionary function exception. In each case the court
recognized that a regulation embodies previously determined
policy. The “discretion” protected by the exception—the
uniquely governmental task and privilege of formulating
policy—is exercised in promulgating the regulation. Since
those charged with complying with the regulation are not
making policy, are not making the sort of social, economic
and political judgments Congress wished to protect, those
officials’ negligent failures to satisfy regulations are action-
able. For other holdings standing for the same proposition,
see, e.g., Denham vy. United States, 834 F.2d 518 (Sth Cir.
22.
1987); Sheridan Transportation Co. v. United States, 834
F.2d 467 (Sth Cir. 1987); ARA Leisure Services v. United
States, 831 F.2d 193 (9th Cir. 1987); Caraballo v. United
States, 830 F.2d 19 (2d Cir. 1987); Chotin Transportation,
Inc. v. United States, 819 F.2d 1342 (6th Cir. 1987) (en
banc).
In holding that the violation of a mandatory regulation
was irrelevant to discretionary function exception analysis,
the Fourth Circuit departed sharply from the holdings in
these cases, and the ruling simply cannot be reconciled with
McMichael or any of the other cases cited. This Court should
eliminate the confusion.
The Fourth Circuit cited Totten v. United States, 618
F.Supp. 951, 954 (E.D. Tenn. 1985), aff'd, 806 F.2d 698
(6th Cir. 1986), in support of its statement that mandatory
regulations do not affect the discretionary function inquiry.
Totten involved an explosion at a military site as well. The
holding in Totten at best compounds the disagreement
among the courts of appeals as to the significance of manda-
tory regulations, and so, if anything, should underscore the
need for Supreme Court clarification. Moreover, Totten
relies exclusively on Feyers v. United States, 749 F.2d 1222
(6th Cir. 1984), which also involved Government safety
supervision over military contractors. In Feyers, the Sixth
Circuit made clear that violations of precisely the same
manual at issue herein, AMCR 385-100, would impose
FTCA liability:
While the discretionary function exception
does not apply where mandatory guidelines
or regulations are violated . . . this rule is
inapplicable in this case since neither the
AMC safety manual, AMC 385-100, nor
23.
any other provision of the contract required
specific safety measures in the railyard.
Id. at 1227 n.7 (citations omitted).
Thus, in the Sixth Circuit, violation of AMCR 385-100
is actionable; in the Fourth Circuit it is not. There could not
be a more apparent, less sensible conflict between the Cir-
cuits than that presented in this case.
D. The Mandatory Regulation At Issue Herein
While holding that violation of a mandatory safety regula-
tion did not affect the discretionary function exception
analysis, the Fourth Circuit also stated that it “agree[d]
with the district court’ that the regulation embraced the
type of container used at the Radford plant, even though
the containers used were not specified in the regulation.”
This conclusion represents a manifest error of fact.
AMCR 385-100 §20.4 states that containers “should”
be made of one of the listed options; the nonconductive
rubber tubs used are not listed as an option. The district
court’s conclusion that “should” means that the regulation
is not mandatory is flatly and inexplicably wrong: §1.3 of
AMCR 385-100 states that regulations using “should” are
mandatory unless a waiver of compliance is secured in
accordance with the waiver procedures in §1.5. It is undis-
puted that no such waiver was ever sought, let alone granted.
Petitioner frankly cannot explain the two courts’ ability
to ignore the provisions of the manual. In any event, § 20.4
24.
plainly was violated .2
More fundamentally, perhaps, assuming arguendo that
conductive tubs were somehow not required by these regula-
tions. was there some political, social or economic policy
consideration that demanded a nonconductive rather than
a conductive tub? Of course not: this was a run-of-the-mill
electrical engineering problem.
Petitioners claim that the use of nonconductive tubs was
negligent and violated controlling regulations; the Govern-
ment denies it was negligent. The issue for this Court is
whether a dispute over what kind of tub to use is the type
of tort claim that the courts have no business deciding.
Was this executive or administrative decisionmaking, ground-
ed in political, social or economic policy judgments? Did
this suit require a judge to second-guess governmental offi-
cials formulating public policy?
The Government did not assert, let alone prove, a single
concern remotely related to policy involved in the decisions
attacked in this case. Moreover, the Government’s witnesses
explicitly disclaimed any ability to formulate policy or
deviate from the regulations.
2. ‘If the district court's opinion is read to find insulated discretion
when a regulation permits choices of materials to be used, then that
position conflicts directly with United States Fire Ins. Co. v. United
States, 806 F.2d 1529 (11th Cir. 1986). That case involved Coast
Guard negligence in maintaining wreck markers: the relevant manual
of procedures listed variouse methods of performance. The Coast
Guard selected the method of last resort. On appeal, the Government
argued that selection of an approved method, even if an inferior one,
insulated it from liability. The Eleventh Circuit disagreed, holding that
the choice of methods was obviously not a policy decision. Here of
course, the use of nonconductive tubs was not even a permissible
option.
25.
If injured citizens cannot sue over the type of decision
attacked in this case, the Federal Tort Claims Act may as
well be repealed.
ll. THIS CASE SHOULD BE DECIDED IN LIGHT OF
BERKOVITZ V. UNITED STATES
On April 19, 1988, this Court heard argument in Berkovitz
v. United States, No. 87498. Petitioners respectfully submit
that given the close similarity between this case and Berko-
vitz, resolution of this case should come in light of Berkovitz.
Plaintiffs in Berkovitz sued the Government for negligence
in licensing production lots of strains of polio vaccine.
Appiicablesegulations required that for licensing, the manu-
facturers demonstrate that the neurovirulence of the strains
not exceed specific, previously established quantitative levels.
Plaintiffs alleged that despite a clear disparity between the
submitted neurovirulence data and the required numbers
in the regulations, the lots were licensed. The Third Circuit
found such conduct protected by the discretionary function
exception. Berkovitz v United States, 822 &.2d 1322 (3d
Cir. 1987). The Ninth and Lighth Circuits had found identi-
cal conduct fully actionable. Buker » United States, 817
F.2d 560 (9th Cir. 1987); Loge v United States, 662 F.2d
1268 (8th Cir. 1981), cert, denied. 456 US. 944 (1982).
It is anticipated that this Court's resolution of Berkuvitz
will be dispositive of the discretionary function issue herein.
since Berkovitz will decide whether negligent violation of
mandatory regulations is protected by the discretionary
function exception. Petitioners in Berkuvilz make an identi-
cal argument to that advanced by the Petitioners herein: the
Government exercises discretion when it decides whether.
and to what extent, to regulate or supervise the conduct of
private individuals. Once such decisions are made. however.
26.
and detailed regulations embodying and implementing
those discretionary choices are promulgated, the negligent
failure of functionaries to fullfil the regulations is fully
actionable. The ensuring tort suit will not expose “‘legislative
and administrative decisions grounded in social, economic
and political policy to judicial second-guessing.””
Petitioners note that the only meaningful difference
between Berkovitz and this case is that here, the Government
acted in a proprietary role, rather than as a regulator of
private conduct. In this context, the discretionary function
exception is of even less moment. McMichael, supra.
In any event, Berkovitz will clarify the significance of
mandatory regulations for discretionary function cases.
Petitioners respectfully suggest that the Court grant certiorari
in this case for disposition or remand in light of Berkovitz.
27.
CONCLUSION
Wherefore, premises considered, Petitioners pray that a
writ of certiorari issue to review the decision of the United
States Court of Appeals for the Fourth Circuit.
Respectfully submitted,
BARON & BUDD, PC.
8333 Douglas Avenue
10th Floor
Dallas, Texas 75225
(214) 369-3605
BY :
BRENT M. ROSENTHAL
~ AND -
BY :
CHARLES S. SIEGEL
~ AND -
py Duan 2. Wecroteni no
BRIAN D. WEINSTEIN
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 87-1636
UNPUBLISHED
(stamp)
MARK LYNN FORTNEY;
ESLEY DOUGLAS TIPTON;
DANIEL WEBSTER HARMON
Plaintiffs - Appellants
and
MARY E. TIPTON; MARY JANE HARMON
Plaintiffs
versus
UNITED STATES OF AMERICA
Defendant - Appellee
and
ENVIROTECH CORPORATION; AMERICAN AIR FILTER
CO., INC.; ANACON CORP.; SOUTHEASTERN SPRINK-
LER COMPANY, INC.; GRINNEL FIRE PROTECTION
SYSTEMS COMPANY, INC.; AMERICAN DISTRICT
TELEGRAPH CO.; MILTON ROY COMPANY; TATE
ENGINEERING, INC.; REXNORD, INC.; DREXEL BROOK
ENGINEERING CO.; RUBBERMAID COMMERCIAL
PROD.; INC.; UNIJAX, INC.; E. I. PFAFF CO., INC.;
SIMONS EASTERN CO.; C. P. ROBERTS ENGINEERING,
INC.; YEARGIN CONSTRUCTION CO., INC.; SHELL OIL
CO., DEVON CHEMICALS, INC.; PUBLIKER INDUS-
TRIES, INC.; BUCKEYE CELLULOSE CORP.; SYBRON
CORP.; CARTER AND CRAWLEY, INC.
Defendants
HERCULES, INCORPORATED
Third Party - Defendant
2A
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, District Judge.
(C/A 83-0200-A, C/A 83-0201-A, C/A 83-0202-A)
Argued: January 5, 1988 Decided: February 22, 1988
Before RUSSELL and ERVIN, Circuit Judges, and SPENCER,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Charles Stein Siegel (Brian Weinstein; Baron & Budd on
brief) for Appellants; Thomas Rutledge King, Jr., Assistant
United States Attorney (John P. Alderman, United States
Attorney on Brief) for Appellee.
PER CURIAM:
Plaintiffs in three Federal Tort Claims Act (FTCA) cases
consolidated below appeal the judgment dismissing their
complaints after trial for lack of subject matter jurisdiction.
We address first appellants’ motion for leave to file a
memorandum of clarification, which was received in this
Court, with the memorandum, after oral argument in this
case. Our briefing and oral argument requirements are de-
signed to encourage thorough presentation of the parties’
positions while at the same time serving the important
purposes of orderly procedure and finality. Finding no cause
to deviate from those requirements in this case, we deny the
motion.
3A
On May 6, 1981 an experimental system for the dehydra-
tion of nitrocellulose exploded, severely burning plaintiffs.
The explosion occurred at the Radford Army Munitions
Plant, which is owned by the United States Army and oper-
ated under a contract with Hercules, Inc. Plaintiffs were
Hercules employees.
The Army’s contract with Hercules delegates broad respon-
sibility for safety at the Radford plant to Hercules, including
particularly the safety of Hercules personnel. Ti.e Army
retains the right under this contract to inspect the premises
for quality, security, and safety, and maintains a small staff
at the plant for this purpose. Plaintiffs alleged in the district
court that the government had failed to use reasonable
procedures to assure that Hercules in turn took appropriate
safety precautions in operating the dehydration process in
question.
The district court found that the Army’s supervisory
responsibilities relating to safety lay within the discretionary
function exception. This statutory exemption preserves
sovereign immunity as to FTCA claims “based upon the
exercise or performance or the failure te 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.” 25 U.S.C.A. § 2680(a)
(West 1965). The district court founded its analysis on the
Supreme Court’s teaching that “[w)hen an agency deter-
mines the extent to which it will supervise the safety proce-
dures of private individuals, it is exercising discretionary
regulatory authority fo the most basic kind.” United States
v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 US. 797, 819-20 (1984). This principle
extends to on-location supervisory activities of agency
employees. See Dalehite v. United States, 346 U.S. 15, 36
(1953). The district court, exiending the Varig Airlines
4A
principle beyond the regulatory context to the context of
government production contracts, found that, on the record
in the case at bar, the delegation of safety responsibility to
Hercules left the Army with solely discretionary safety
functions to perform at the Radford plant.
Our review discloses no reversible error in the decision
below,! and convinces us that plaintiffs’ claims were pr vperly
dismissed. We therefore affirm on the reasoning of the
district court.
AFFIRMED.
1. The district court rejected plaintiffs’ argument that the govern-
ment was not entitled to discretionary function immunity in this case
becausé the explosion was traceable in part to a violation of a manda-
tory safety regulation governing permissible containers for hazardous
materials. The district court found that this regulation embraced the
type of container used at the Radford plant, even though the containers
used were not specified in the regulation. We agree with the district
court, but add that violation of a mandatory regulation does not
abrogate the government's tort immunity independently of the FTCA,
and that the discretionary function exception to the FTCA protects
the government from liability ‘““whether or not the discretion involved
be abused.” 28 U.S.C.A. § 2680(a) (West 1965); see Totten v. United
States, 618 F. Supp. 951, 954 (E.D. Tenn. 1985), aff'd 806 F.2d 698
(6th Cir. 1986).
SA
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 87-1636
MARK LYNN FORTNEY;
ESLEY DOUGLAS TIPTON;
DANIEL WEBSTER HARMON
Plaintiffs - Appellants
and
MARY E. TIPTON; MARY JANE HARMON
Plaintiffs
versus
UNITED STATES OF AMERICA
Defendant - Appellee
and
ENVIROTECH CORPORATION; AMERICAN AIR FILTER
CO., INC.; ANACON CORP.; SOUTHEASTERN SPRINK-
LER COMPANY, INC.; GRINNEL FIRE P AOTECTION
SYSTEMS COMPANY, INC.; AMERICAN DISTRICT
TELEGRAPH CO.; MILTON ROY COMPANY: TATE
ENGINEERING, INC.; REXNORD, INC.; DREXEL BROOK
ENGINEERING CO.; RUBBERMAID COMMERCIAL
PROD.; INC.; UNIJAX, INC.; E. I. PFAFF CO., INC.:
SIMONS EASTERN CO.; C. P. ROBERTS ENGINEERING.
INC.; YEARGIN CONSTRUCTION CO., INC.; SHELL OIL
CO... DEVON CHEMICALS, INC.; PUBLIKER INDUS-
TRIES, INC.; BUCKEYE CELLULOSE CORP.; SYBRON
CORP.; CARTER AND CRAWLEY, INC.
Defendants
HERCULES, INCORPORATED
Third Party - Defendant
6A
FILED
U.S. Court of Appeals
Fourth Circuit
(stamp)
Clerk's Office U. S. Dist. Court
At ABINGDON, VA.
FILED
MAR 15 1988
Joyce F. Witt, Cierk
By: s/s A. Cook
Deputy Clerk
(stamp)
APPEAL FROM THE United States District Court for the
Western District of Virginia.
THIS CAUSE came on to be heard on the record from the
United States District Court for the Western District of
Virginia, and was argued by counsel.
ON CONSIDERATION WHEREOF, It is now here ordered
and adjudged by this Court that the judgment of the said
District Court appealed from, in this cause, be, and the same
is hereby, affirmed.
s/s JOHN M. GREACEN (stamp)
CLERK
A True Copy, Teste:
John M. Greacen, Clerk
By s/s C. Marshall Buckles
Deputy Clerk
(stamp)
SL TT FE AN a
7A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CIVIL ACTION NO. 83-0200-A
MARK LYNN FORTNEY,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant
CIVIL ACTION NO. 83-0201-A
ESLEY W. TIPTON,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant
CIVIL ACTION NO. 83-0202-A
DANIEL WEBSTER HARMON,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant
8A
Clerk's Office U. S. Dist. Court
AT ABINGDON, VA
FILED
APR 21 1987
Joyce F. Witt, Clerk
By: s/s A. Cook
Deputy Clerk
(stamp)
MEMORANDUM OPINION
These three consolidated cases are presently before the
court for judgment following a bench trial.
The Radford Army Ammunitions Plant (“R.A.A.P.”’) is
a munitions factory that the United States Army owns. The
Army has contracted with Hercules, Inc. (“Hercules’’)
to operate R.A.A.P. Hercules is responsible for safety at
R.A.A-P. (Plaintiffs’ Exhibits 9, 98-99, and 192); but the
Army has retained the right to inspect the premises for
quality, security, and safety and, consequently, maintains
a small staff at the plant.
One of the intermediate processes that Hercules carries
on at R.A.A-P. is the dehydration of nitrocellulose. In the
1960’s Hercules began experimenting with automating
this process, and in December 1980 Hercules instigated a
trial period for one specific automated dehydration system.
On May 6, 1981 this experimental system exploded severely
burning plaintiffs; and they subsequently brought suit
pursuant to the Federal Tort Claims Act (“FTCA”), 28
US.C. §§ 2671-80, alleging that the government had failed
to use reasonable procedures to assure that Hercules utilized
necessary safety precautions in its performance of hazardous
work.
9A
The FTCA largely abrogates the federal government's
immunity from tort liability. However, the FTCA preserves
that immunity for claims “based upon the exercise or per-
formance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an em-
ployee of the Government, whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a). This exemption
from tort liability is commonly referred to as the discretion-
ary function exception (‘‘d_f.e.”’).
The Supreme Court first explored the d.f.e. in Dalehite vy.
United States, 346 US. 15 (1953). In Dalehite fertilizer
that had been produced as part of a government program
to aid war ravaged countries exploded aboard a ship levelling
much of Texas City, Texas and killing many persons; and
plaintiffs sued for negligent manufacture.! The Court held
the United States was not liable because the d.f.e. protects
the government from tort liability for “the discretion of the
executive or the administrator to act accordingto. . . [his]
judgment of the best course .. .” Dalehite, 346 US. at
34. The Court then explained that the d.f.e. “includes more
than the iniation of programs and activities. It also includes
determinations made by executives or administrators in
establishing plans, specifications or schedules of operation.”
Dalehite, 346 US. at 35-36. Finally the Court extended
this immunity to the “acts of subordinates in carrying
out the operations of government in accordance with official
directions.” Dalehite, 346 US. at 36.
The Court further developed the parameters of the d-f.e.
in United States v. S. A. Empresa de Viacao Aerea Rio
Grandense, 467 U.S. 797 (1984), (“VARIG”). In VARIG
1. One of the ingredients of the fertilizer was a commonly recog-
nized explosive.
10A -
two commercial aircrafts that the Federal Aviation Adminis-
tration (“FAA”) had certified as airworthy caught on fire
mid-air due to the existence of non-regulation equipment.
The Court held the FAA was not liable in tort for its decision
to delegate some inspection responsibility to aircraft manu-
facturers and to only conduct spot checks. The Court ex-
plained: \
When an agency determines the extent to
which it will supervise the safety procedures
of private individuals, it is exercising discre-
tionary regulatory authority of the most
basic kind. Decisions as to the manner of
enforcing regulations directly affect the
feasibility and practicality of the Govern-
ment’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. Here, the FAA has
determined that a program of ‘spotchecking’
manufacturers’ compliance with minimum
safety standards best accommodates the goal
of air transportation safety and the reality of
finite 2..ency resources. Judicial intervention
in such decisionmaking through private tort
suits would require the courts to ‘second-
guess’ the political, social, and economic
judgments of an agency exercising its reguia-
tory function. It was precisely this sort of
judicial intervention in policymaking that
the discretionary function exception was
designed to prevent.
VARIG, 467 US. at 819-20. The Court also indicated that it
is the “nature of the conduct, rather than the status of the
11A
actor” that determines applicability of 28 U.S.C. § 2680(a).
VARIG, 467 US. at 813.
Applying the Dalehite and VAR/G analyses to the instant
facts indicates the government is not liablie in tort for failure
to use reasonable procedures to assure that Hercules utilized
necessary safety precautions. The government's decisions
concerning the production of munitions including its delega-
tion to Hercules of primary responsibility for safety furthers
the objectives of our national defense and, consequently,
represent the nature of conduct that the d.i.e. excepts from
tort liability. And, as the Court has indicated, this immunity
necessarily applies to lower level decision makers as well.
The Sixth Circuit has decided two cases that provide
additional support for this court’s analysis. In Feyers v.
United States, 749 F.2d 1222 (6th Cir. 1984), cert. denied,
105 S. Ct. 2655, a Chrysler employee was injured when
working at a government owned facility pursuant to a con-
tract between Chrysler and the United States. The Court held
that United States’ decisions to delegate responsibility for
safety to Chrysler, to only conduct spot checks of Chrysler's
safety program, and to not institute a safety training program
are the type of discretionary functions excluded from the
FTCA’s waiver of sovereign immunity. The Sixth Circuit,
inter alia, examined the contract between Chrysler and the
United States, which assigned responsibility for safety to
Chrysler, and the relationship of Chrysler to the United
States, which was independent contractor rather than em-
ployee. And in Totten v. United States, No. 85-5921 (6th
Cir. Dec. 9, 1986), the widow of a former employee of an
independent contractor sued the government for failure to
comply with a Department of Defense standard and for
failure to assure use of safety precautions after her husband
was killed when cleaning up missile fuel pursuant to a contract
between the independent contractor and the government
12A
that delegated primary safety responsibility to the independ-
ent contractor. The Court held the d.f.e. precludes tort
liability for the underlying decisions “[b]ecause an exercise
of discretion was required in implementing [Department of
Defense] Standard 882A and in determining the extent to
which the government should review Aerojet’s compliance
with the safety responsibility delegated to it.” Totten,
No. 85-5921 at 8.
This court cannot distinguish the instant facts from
Feyers or Totten in regard to the nature of the underlying
contract: all three contracts delegate primary responsibility
for safety to the independent contractor with the govern-
ment’s retaining the right te review safety procedures. As
the VARIG Court indicated, this delegation of safety respon-
sibility represents the type of policy-making for which the
d.f.e. was designed.
Accordingly, 28 USC. § 2680(a), the discretionary
function exception, bars olaintiffs’ suits against the United
States. Case law is clear that “[i)f a case falls within the
statutory exceptions of 28 U.S.C. § 2680, the Court lacks
subject matter jurisdiction.” Feyers v. United States, 749
F.2d at 1225. Consequently, these cases are dismissed for
lack of subject matter jurisdiction.
In accordance with this Memorandum Opinion, an Order
will be entered dismissing these cases for lack of subject
matter jurisdiction and striking these cases from the docket.
13A
The Clerk is directed to send certified copies of this
Memorandum Opinion to counsel of record.
ENTER: This 21 day of April 1987.
s/s Glen M. Williams
UNITED STATES DISTRICT JUDGE
A TRUE COPY, TESTE:
Joyce F . Witt, Clerk
By: s/s A. Cook
Deputy Clerk
(stamp)
(Note: Circular illegible stamp on page.)
14A ISA
IN THE UNITED STATES DISTRICT COURT ee U. S. Dist. Court
FOR THE WESTERN DISTRICT OF VIRGINIA A wryety VA
N
ABINGDON DIVISIO gaa tame
Joyce F. Will, Clerk
By: s/s A. Cook
CIVIL ACTION NO. 83-0200-A Deputy Clerk
(stamp)
MARK LYNN FORTNEY,
Plaintiff
v. ORDER
UNITED STATES OF AMERIC A In accordance with a Memorandum Opinion entered this
Defendant date, these cases are dismissed for lack of subject matter
jurisdiction. Accordingly, these causes are stricken from the
docket.
CIVIL ACTION NO. 83-0201-A The Clerk is directed to send certified copies of this Order
to counsel of record.
a Plaintiff ENTER: This 21 day of April, 1987.
” s/s Glen M. Williams
UNITED STATES OF AMERICA, UNITED STATES DISTRICT JUDGE
Defendant
A TRUE COPY, TESTE:
Joyce F. Witt, Clerk
Vv N NO. 83-0202-A By: s/s A. Cook
CIVIL ACTIO Depuey Clark
DANIEL WEBSTER HARMON, (stamp)
-- Plaintiff |
We
UNITED STATES OF AMERICA,
. Defendant ’
16A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CIVIL ACTION NO. 83-0200-A
MARK LYNN FORTNEY,
Plaintiff
We
UNITED STATES OF AMERICA,
Defendant
CIVIL ACTION NO. 83-0201-A
ESLEY W. TIPTON,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant
CIVIL ACTION NO. 83-0202-A
DANIEL WEBSTER HARMON,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant
17A
Clerk's Office U. S. Dist. Court
AT ABINGDON, VA
FILED
JUN 8 1987
Joyce F. Witt, Clerk
By: s/s D.S. Slemp
Clerk
(stamp)
MEMORANDUM OPINION AND ORDER
These three consolidated cases are presently before the
court on plaintiffs’ motion for reconsideration.
The Radford Army Ammunitions Plant (“R.A.A.P."’) is
a munitions factory that the United States Army owns. The
Army has contracted with Hercules, Inc. (“Hercules”) to
operate R.A.A.P. On May 6, 1981 an experimental system
exploded at R.A.A-P. severely injuring plaintiffs; and they
subsequently brought suit pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671-80. This court
dismissed that action for lack of subject matter jurisdiction
because the discretionary function exception (‘‘d.f.e.”’) to
the FTCA, 28 U.S.C. § 2680(a), immunizes the government
from suit for its alleged failure to use reasonable procedures
to assure that Hercules utilized necessary safety precautions
in its performance of hazardous work Fortney v. United
States, No. 83-0200-A (W.D. Va. April 21, 1987).
Plaintiffs have moved this court for reconsideration of its
earlier decision. They contend that the court (1) incorrectly
identified the action that plaintiffs challenge; (2) erroneously
applied the df.e. to a mandatory regulation: and (3) failed
to consider relevant cases of the Fourth Circuit Court of
Appeals. This court will discuss these assertions in order.
af
18A
Plaintiffs allege that this court incorrectly identified the
governmental action that they challenge as delegating pri-
mary safety responsibility to Hercules when in fact plaintiffs
challenge “the negligence of the government safety stafff
[sic] in allowing Building 3507 to pass the Pre-Operational
Survey Inspection and, thereby, operate with nonconductive
tubs in violation of AMCR 385-100.” Plaintiffs’ Motion for
Reconsideration and Oral Argument and Memorandum in
Support Thereof p. 5.
After reviewing Plaintiffs’ motion for Judgment and
Memorandum in Support Thereof, this court cannot accept
plaintiffs’ characterization of their earlier allegation. In
fact, Plaintiffs’ Memorandum in Support of Motion for
Judgment refers to the Army’s failure to adequately evaluate
the use of nonconductive tubs and specifically says “[i]f
the Government failed to see to the taking of all reasonable
precautions in this operation, the Government is liable to
Plaintiffs.” Plaintiffs’ Motion for Judgment and Memoran-
dum in Support Thereof p. 2. This failure to adequately
evaluate aligns much more «josely with a discretionary act
than with an operat/onal act ard is consequently immunized.
Plaintiffs also allege “at the d.f.e. cannot immunize the
government for its violation of a mandatory regulation,
i.e. AM.C.R. 385-100 § 20.4 (1970).
A.M.C.R. 385-100 § 20.4 (1970) provides:
_ Hazardous materials in bulk or liquid form
must be transported in containers which will
prevent leakage. Containers used in intraplant
transportation and service storage of explo-
sives and explosive mixtures such as initiating
explosives, pyrotechnic compositions and
19A
tracer materials should be made of material
in the following preference order:
Conductive rubber
Nonferrous metal-lined box-
es without seams or rivet
heads under which explosive
dust can accumulate
Plastics (conductive type
only)
Paper-lined wood boxes
Fiber containers.
Fiber containers of bulk explosives and
propellants should be shipped only by motor
carrier or trailer-on-flat car. Glass containers
should not be used because of their fragility
and severe missile hazard.
This regulation’s use of the word “should” implies that
the use of conductive tubs is not mandatory. “Should, in
indicating obligation or necessity, is. . . appreciably weaker
than must.’ The American Heritage Dictionary 1199 (W.
Morris ed. 1976). Furthermore, § 20.4’s listing of options
utilizing nonconductive tubs clearly indicates that the draf-
ters of §20.4 contemplated situations in which nonconduc-
tive tubs would be used.
Plaintiffs compare the gow rnment’s failure to object
to nonconductive tubs to a decision whether to brake or
accelerate that a government employee makes while driving
to inspect a building. This analogy does not persuade the
20A
court. The government's decision in the instant case reflected
many factors and typifies a decision that the d.f.e. was
designed to protect. On the other hand, a decision whether
to brake or accelerate provides the stereotypical example
of a tort for which the FTCA abrogated sovereign immunity.
Plaintiffs have cited five cases in support of their conten-
tion that the d.f.e. is inapplicable in the context of accidents
at military plants run by contractors where safety was moni-
tored by the government. However, four of these cases were
decided prior to United States v. S.A. Empresa de Viacao
Aerea Rio Grandense , 467 U.S. 797 (1984) (“VARIG”).
Plaintiffs’ final argument is that this court failed to con-
sider relevant decisions of the Fourth Circuit Court of
Appeals. They rely primarily on Staton v. United States,
685 F.2d 117 (4th Cir. 1982). However, Staton held that the
d.f.e. does not immunize a park ranger’s shooting of hunting
dogs in violation of a policy to capture such dogs. The
instant facts do not demonstrate a comparable policy void
of contemplated discretion.
This court cannot imagine a more elusive concept than the
discretionary function for which the FTCA retains sovereign
immunity. Almost every court that considers this concept
necessarily redefines it. However, plaintiffs’ disagreement
with this court’s earlier decision does not justify a self-
imposed reversal.
—s
21A
Accordingly, plaintiffs’ motion for reconsideration is
hereby DENIED. These causes are again stricken from the
docket.
The Clerk is directed to send certified copies of this
Memorandum Opinion and Order to counsel of record.
ENTER: This 8 day of June, 1987.
s/s Glen M. Williams
UNITED STATES DISTRICT JUDGE
A True Copy, Teste:
Joyce F. Witt, Clerk
By: s/s D.S. Slemp
Deputy Clerk
(stamp)
22A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CIVIL ACTION NO. 83-0200-A
MARK LYNN FORTNEY,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant
CIVIL ACTION NO. 83-0201-A
ESLEY W. TIPTON,
Plaintiff
Wa
UNITED STATES OF AMERICA,
Defendant
CIVIL ACTION NO. 83-0202-A
DANIEL WEBSTER HARMON,
Plaintiff
Vv. 7
JNITED STATES OF AMERICA,
Defendant
23A
Clerk's Office U. S. Dist. Court
AT ABINGDON, VA
FILED
APR 21 1987
Joyce F. Witt, Clerk
By: s/s A. Cook
Deputy Clerk
(stamp)
ORDER
In accordance with a Memorandum Opinion entered this
date, these cases are dismissed for lack of subject matter
jurisdiction. Accordingly, these causes are stricken from the
docket.
The Clerk is directed to send certified copies of this
Order to counsel of record.
ENTER: This 2! day of April, 1987.
s/s Glen M. Williams
UNITED STATES DISTRICT JUDGE
A TRUE COPY, TESTE:
Joyce F. Witt, Clerk
By: s/s A. Cook
Deputy Clerk
(stamp)
24A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 87-1636
MARK L. FORTNEY, et al.,
Appellants,
ss
UNITED STATES OF AMERICA,
Appellee.
MEMORANDUM OF CLARIFICATION CONCERNING
WAIVERS OF ARMY SAFETY REGULATIONS
During oral argument of this appeal on January 5, 1988,
significant discussion was devoted to whether the use of
nonconductive tubs in Building 3507 at Radford violated
Army Safety Regulation AMCR 385-100 § 20.4. This regula-
tion, which is reproduced in the Joint Appendix at 111-848,
prescribes in descending order of preference five types of
containers in which hazardous materials, specifically in-
cluding explosive mixtures, may be transported within a
plant. Nonconductive rubber containers are not one of
the choices. Though this regulation states that containers
“should” be made of the listed materials, § 1.3(b) provides
that deviation from “advisory” regulations using the word
“should” are not permitted unless a waiver or “exception”
is obtained inwriting. The Government admits that no
waiver of § 20.4 was ever obtained.
25A
During oral argument the Court questioned whether the
approval by the government safety staff of the results of the
preoperational survey of Building 3507 constituted a waiver
of the obligation to comply with §20.4. This question is
conclusively answered by §1.5 of the same manual, which
is reproduced in the Joint Appendix at III-786. This section
is entitled “Procedure Concerning Waivers of Safety Regu-
lations.” It provides, inter alia, that:
1. Waivers will be granted “only after it has
been determined that compliance with ap-
plicable safety standards cannot be effected,
and that essential work on critical Army
material must still be performed” or that
other extenuating circumstances exist;
2. Waivers and exemptions (excuses from com-
pliance with advisory provisions such as
§ 20.4) are granted for “specific situations”
and are limited as shown in “the pertinent
correspondence ;”
3. Waivers are granted only for such a period of
time as is necessary to correct the unsafe
condition.
In addition, “local waivers” of advisory provisions must
be in writing and are granted for specific periods of time.
See §1.3 (Sections 1.3, 1.4 & 1.5 are also attached hereto
as Exhibit “A”).
Appellants believe that § § 1.5 and | .3 clearly demonstrate
that the overall approval of the preoperational survey of
Building 3507 did not work a waiver of the obligation to
comply with §20.4. A waiver plainly is effected only by
following the procedures mandated tor its obtainme it.
26A
Since the Government admits that these procedures were
not complied with, no waiver can be found, and it is there-
fore indisputable that §20.4 was violated. As previously
contended, the violation of a safety regulation takes the
case outside the discretionary function exception.
Respectfully submitted,
BARON & BUDD, PC.
8333 Douglas Avenue
10th Floor
Dallas, Texas 75225
214/369-3605
BY s/s Charles S. Siegel
CHARLES S. SIEGEL
BY s/s_ Brian D. Weinstein
BRIAN D. WEINSTEIN
Counsel for Appellants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore-
going was mailed this 8th day of January, 1988, to all coun-
sel of record.
S/s Charles S. Siegel
CHARLES S. SIEGEL
ee eee
27A
. IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 87-1636
MARK L. FORTNEY, et al.,
Appellants,
v.
UNITED STATES OF AMERICA,
Appellee.
MOTION FOR LEAVE TO FILE
MEMORANDUM OF CLARIFICATION
COME NOW Appellants in the above matter, pursuant to
Internal Operating Procedure 28.3, and file this their Motion
for Leave to File Memorandum of Clarification and would
show the Court the following:
During oral argument of this appeal on January 5, 1988, a
substantial amount of discussion focused on whether the
use of nonconductive tubs in Building 3507 violated Army
Safety Regulation AMCR 385-100 §20.4. Since nonconduc-
tive tubs are not among the permissible choices in § 20.4 for
intraplant transportation of hazardous materials. _the Court
inquired as to whether a waiver of the regulation. as contem-
plated in §1.3, had been secured. It was further suggested
that the approval, by the government safety staff, of the
preoperational survey of the entire operation may have
constituted such a waiver.
——
28A
Appellants seek leave to file the attached Memorandum of
Clarification in order to fully explain the requisites for a
waiver. Such an explanation is necessary because the Court
was not apprised at oral argument of another section, §1.5,
which is entitled “Procedure Concerning Waivers of Safety
Regulations.”” This section will alleviate uncertainty as to
the definition of a waiver and whether one was obtained.
At oral argument, the Court devoted considerable discus-
sion to the issue of whether a mandatory regulation removes
any policy discretion from a government employee and there-
by places his actions outside the discretionary function
exception. Since the question of whether § 20.4 was violated
may be important to the Court’s decision in this case, Appel-
lants respectfully request the opportunity to fully clarify
the waiver point.
The Memorandum of Clarification is attached hereto.
WHEREFORE, PREMISES CONSIDERED, Appellants
pray that their Motion for Leave to File Memorandum of
Clarification be granted.
Respectfully submitted,
BARON & BUDD, PC.
8333 Douglas Avenue
10th Floor
Dalias, Texas 75225
214/369-3605
BY s/s Charles S. Siegel
CHAF.LES S. SIEGEL
BY s/s Brian D. Weinstein
BRIAN D. WEINSTEIN
Counsel for Appellants
a
29A
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore-
going was mailed this 8th day of January, 1988, to all coun-
sel of record.
s/s Charles S. Siegel
CHARLES S. SIEGEL
30A 31A
AMC REGULATION AMCR 385-100 HEADQUARTERS
UNITED STATES ARMY MATERIEL COMMAND
WASHINGTON, D.C. 20315
AMC REGULATION
No. 385-100 21 April 1970
SAFETY
SAFETY MANUAL
TABLE OF CONTENTS
PAGE
SAFETY CHAPTER | cena eau dsoneeee 1-1
2. General Definitions ............... 2-1
3. Nuclear Weapons Safety ............ 3-1
SAFETY MANUAL 4. Laboratory Safety ................ 4-1
5. Construction and Utilities ........ . §-1 .
6. Electrical Equipment and Wiring ..... 6-!
0 —i‘(‘éiéCR 7-1
8. Lightning Protection ....... aia See
9. Technical Industrial Safety.......... 9-]
10. Personal Protective Clothing and
PE . da wecovscencsecess 10-1
11. Storage and Handling of Chemical
Agents and Munitions........... I 1-1
12. Fire Protection ...... iF .. 12-1
13. Specific Chemicals ... om
14. Explosives and Ammunition ...... 14-1
15. Quantity-Distance Storage Critena
for Liquid Propellants . ..... 1S-1
16. Safety Requirements in Specific
HEADQUARTERS, U.S. ARMY APRIL Hazardous Areas... 16-1
MATERIAL COMMAND 1970 17. Quantity-Distance Tables ... 17-1
32A
TABLE OF CONTENTS (Continued)
PAGE
CHAPTER 18. Storage of Explosives and Ammuni-
eee te ee ee 18-1
19. Quantity - Distance Classification
and Storage Compatibility ....... 19-]
20. Preparing Explosives and Ammuni-
tion for Shipment .............. 20-1
21. Railroad Transportation ........... 21-1
22. Motor Vehicle Transportation ...... 22-1
23. Air and Water Transportation ....... 23-1
24. Materials Handling Equipment ...... 24-1
25. Ammunition Normal Maintenance,
Modification Renovation and De-
A 25-1
26. Safety In Munitions Loading ...... 26-1
27. Collection and Destruction - Explo-
sives, Ammunition, and Chemica!
Agents and Munitions........... 27-1
28. Weapons and Ammunition Testing . . . 28-1!
Pt Vn ardcedee ot ect baeke te ues éacecne Index-]
-_—--
This reguiacion supersedes AMCR 385-224, 4 September 1951, includ-
ing changes 1 through 16.
o —
33A
AMCR 385-100
1-1
CHAPTER |
INTRODUCTION
1-1. PURPOSE
This regulation prescribes the general safety rules of the
U.S. Army Materiel Command (AMC), which are not covered
in sufficient detail by national safety codes or standards.
Safety rules applicable to special hazardous operations
performed at relatively few AMC installations are published
in supplemental AMC regulations in the 385 series.
1-2. SCOPE
This regulation applies to Headquarters, AMC; AMC
major subordinate commands (including subordinate instal-
lations and activities); AMC project/product managers, and
separate installations and activities reporting directly to
Headquarters, AMC. It prescribes safe methods and practices
for safeguarding personnel, insuring continuity of produc-
tion, and preventing property damage. Codes and safety
standards of the National Safety Council, American National
Standards Institute, National Fire Protection Association
and other nationally recognized organizations will be used
in conjunction with these regulations to develop appropnate
local standards for safe practices and procedures, personal
protective equipment, machine guards, etc. However, when
these codes or standards are in conflict with the AMC regula-
tions, the AMC regulations shall apply.
rrr — — ——
34A
AMCR 385-100
1-3
1-3. APPLICATION
a. The mandatory requirements and advisory provisions
set forth in this regulation apply to each activity and facility
where the Commanding General, AMC is charged with the
responsibility for safety.
b. Mandatory requirements are those in which the
terms “shall”, “will” or “must” are used, and no deviation
is permitted without specific written authority in the form
of a waiver, exemption or authorization from the Com-
manding General, AMC, ATTN: Safety Office. The advisory
provisions are those in which “may” or “should” are used,
and no deviations are permitted unless exceptions (local
waivers) are authorized in writing by the commanding
officer or his designated agent. Local waivers covering condi-
tions which can be corrected should be granted for definite
periods of time (one year or less). Such waivers must be
reviewed at least annually to determine whether changed
conditions warrant continuation of the waiver. All exemp-
tions, waivers and authorized deviations shall be maintained
in a central register which is readily available to authorized
personnel.
c Existing facilities not complying with safety regula-
tions published after their construction or installation may be
exempted from the mew requirements when such action is
authorized by the Commanding General, AMC. However,
modifications, unless minor in nature and not decreasing
safety, must comply with the latest safety requirements.
AMC establishments with facilities exempted from compli-
ance with regulations should take additional precautions
to counterbalance the deficiencies.
35A
AMCR 385-100
|-4a
14. RESPONSIBILITY FOR ENFORCEMENT AND
COMPLIANCE
a. The Commander of an AMC command, installation,
or activity is solely responsible for the safety of his com-
mand, and it is important that he take the same active aggres-
sive leadership in safety that he takes in other phases of
command responsibility. It is the responsibility of the Com-
mander to insure that all activities are conducted in accord-
ance with the safety rules and regulations set forth herein.
Where no existing safety rule or regulation applies to circum-
stances of major importance or where a deviation from an
established mandatory safety regulation is desired, it is the
responsibility of the Commander to submit, through com-
mand channels, full particulars and detailed plans to the
Commanding General, AMC, ATTN: Safety Office, for
authorization. In the interim, the Commander shall take the
action he deems necessary to control the hazard. The absence
of a safety requirement in this regulation or in the references
cited does not necessarily indicate that no safeguards are
needed.
b. It is also the responsibility of the Commander to
require personnel of other agencies, while on an AMC estab-
lishment, to comply with the general safety regulations of
his establishment and assure that operations and activities
of tenant agencies do not endanger personnel and facilities
for which he is responsible.
c. The Commander shall enforce the mandatory require-
ments of this regulation and be guided by the advisory
provisions. He shall institute those inspections necessary
to effect compliance with the rules and regulations prescribed
herein.
36A
AMCR 385-100
1 -Sa
1-5. PROCEDURE CONCERNING WAIVERS OF
SAFETY REGULATIONS
a. A waiver will be granted only after it has been deter-
mined that compliance with applicable safety standards
cannot be effected, and that essential work on critical Army
material must still be performed, or other extenuating
circumstances exist. Waivers and exemptions (paragraph
1-3b) are granted for specific situations and are limited as
indicated in the pertinent correspondence, and shall not be
interpreted to cover similar operations, locations or condi-
tions. A waiver, when granted, will be issued only for such
minimum time as is necessary to correct the unsafe condi-
tion. In no case will a waiver be granted initially for a period
in excess of one year. Instailations and activities which have
been granted exemptions or waivers shall initiate action to
effect cancellation when the necessity for the exemptions
or waivers terminates.
b. Upon local determination that a waiver of mandatory
provisions of this regulation is necessary, installations and
activities will forward requests through command channels
to the Commanding General, AMC, ATTN: Safety Office.
Requests forwarded will contain, as a minimum, the follow-
ing information:
(1) Description of condition (maps showing distances to
internal and external exposures, personnel involved, and
facilities exposed).
(2) Safety regulations violated.
37A
AMCR 385-100
1 - Sb(3)
(3) Statement why compliance with mandatory safety
requirements cannot be effected locally ((2) above).
(4) Specific time required for waiver.
(5) Precautions that will be taken to achieve safety in
operations during period of waiver.
In case of an extreme emergency, telephone, teletype or
telegram request may be made through command channels
and confirmed in an official letter forwarded to the Com-
manding General, AMC, ATTN: Safety Office, within three
days of the initial request.
c. Expiring waivers will not be renewed unless there ts
evidence that all practicable means for complying with
approved standards have been exhausted. Waivers shall be
considered as rescinded on the stated expiration dates unless
requests warranting renewal have been received in Hlead-
quarters, AMC, (Safety Office) in ample time (at least 30
days prior to expiration date) to permit evaluation and reply.
14. SAFETY ORGANIZATION
Each AMC major subordiante command and class Il
installation or activity shall institute afd ‘oentain a safety
organization which functions essentially as shown in figure
1-1.
38A
AMCR 385-100
1-7
1-7. SAFETY DIRECTOR
The commander of each AMC major subordinate com-
mand and class II installation and activity shall designate
an individual who is occupationally qualified as either a
safety officer or safety engineer to serve as safety director.
This individual shall supervise all safety activities of his
command, installation or activity. He shall be a member of
the commander’s staff and shall be responsible directly to
the commander for the establishment, continuing interest
in and the success of all phases of the safety program.
1-8. DIRECTORS OR PRODUCTION CHIEFS
Each director or production chief shall be responsible to
the commander for the safety of his area. In addition, each
shall develop an aggressive attitude toward the promotion
of safety activities within his area, shall comply with the
requirements of these regulations and take an active part in
the overall safety program.
1-9 FOREMEN OR SUPERVISORS
Each foreman or supervisor shall consider the prevention
of injuries to employees under his jurisdiction to be as
important a phase of his job as quantity and quality of
production. To accomplish this, he shall train his men to
work safely, supervise them closely, correct unsafe acts and
mechenical or physical conditions, enforce safety regulations,
investigate accidents and take other action necessary to
insure the safety of the employees. The success of a safety
program depends upon the ability of the operations foreman
or supervisor and his enthusiastic participation in the organ-
ized safety effort.
2%). sw tee ee we FS s
| 39A
AMCR 385-100
1-10
1-10. EMPLOYEES
Each employee, as a condition of employment, shall
adhere to all instructions and use the personal protective
equipment and protective devices provided. He should
develop intelligent and safe working habits by following
safe practice rules and regulations in order to protect himself
and his fellow workers from injury and to prevent damage
to material, equipment, and facilities. He should contribute
any suggestions which may assist in the effort to prevent
accidents and otherwise take an active part in the safety
program.
1-11. CENTRAL SAFETY BOARD
a. A safety board shall be organized at each AMC
installation and shall hold meetings regularly, but not less
than once each quarter. The board should include the follow-
ing members:
Commanding officer, chairman
Safety director, secretary
Directors or production chiefs
Facilities engineer (chief engineer)
Senior ammunition inspector
Civilian personnel officer
Fire chief (fire marshal)
Post surgeon (medical officer)
Provost marshall
Others (including representatives of subordinate or tenant
activities) as determined by the commanding officer.
40A
AMCR 385-100
1-1 1(b)
b. The board shall aid in establishing the safety program
and determine its adequacy, effectiveness and methods for
improvement. To do this, the board shall become familiar
with the personal injury and property damage experience of
the installation, and the potential hazards that might cause
injury; and devise ways and means to eliminate unsafe acts
and to correct unsafe mechanical and physical conditions.
c. Minutes of central safety board meetings shall be
prepared and copies furnished through command channels
to the Commanding General, AMC, ATTN: Safety Office,
and to Director, AMC Field Safety Agency.
41A =
385-100
SAFETY ORGANIZATION FUNCTIONAL CHART
COMMANDER
oR
DEPUTY COMMANDER
CENTRAL
SAFETY
- —_— BOARD
!
!
(~~ = ---====/- _----== “al
DIRECTORS
oR SAFETY MEDICAL
propucTion =f DIRECTOR -—-—| - DEPARTMENT
CHIEFS
-
|
|
SUPERVISORS )
SAFETY —_——- <> <-> </> ~
COMMITTEES
__ _ __ | STATE, FEDERAL 6
aa PRIVATE ACENCLES
!
' —_
|
DP LOTEES
SAFETY pe me 4
COMMITTEES
FICURE 1-1. Safety Orgenizetion Punctional Chart
42A
AMCR 385-100
l-l2a *
1-12. FOREMEN’S SAFETY COMMITTEES
a. One or more foremen’s safety committees shall be
formed at each AMC installation and shall hold regular
meetings at least once each month. Each foreman should be
a member of one of these committees, but if the commit-
tees consist of only a portion of the supervisors, membership
shall be roatated so that each member serves for approxi-
mately six months and only a few members are replaced at
any one time. Maximum effectiveness is achieved if mem-
bership in a committee is limited. A limit of 15 members
per committee is recommended. Each committee should
have a chairman and a secretary. The safety director or a
member of his office should attend each meeting in an
advisory capacity. Minutes of committee meetings shall
be prepared and forwarded to the installation safety office
and to appropriate directors or production chiefs for review
and resolution of matters pertaining to safety.
b. Each foremen’s safety committee shall take an
active part in the safety program of the establishment and
particularly shall strive to decrease personal injury possibil-
ities of the employees and property damage under the
jurisdiction of the foremen in the group.
2 Ogee tee (a ee em,
43A
AMCR 385-100
1-13
1-13. EMPLOYEES’ SAFETY COMMITTEES
a. Employees’ safety committees should be formed at
each AMC installation and should hold regular meetings at
least once each month in order that all personnel may parti-
cipate in the safety program of the establishment. Each
committee should consist of not more than 15 employees.
Membership on these committees should be rotated so that
each member serves for approximately three months and
only a few members are replaced at any one time. Each
committee should have a chairman and a secretary should be
appointed by the committee chairman. The safety director or
a member of his staff should attend each meeting in an
advisory capacity. Minutes of committee meeiings shall be
prepared and forewarded to the installation safety office and
to appropriate directors or production chiefs for review and
resolution of matters pertaining to safety.
b. Each employee safety committee shall take an active
part in the safety program of the establishment, and particu-
larly, shall strive to decrease personal injury possibilities
and property damage within its own group.
44A
AMCR 385-100
1-14
1-14. INTERDEPARTMENTAL COORDINATION
The activities of all departments in an installation shall be
coordinated to insure the successful accomplishment of the
safety program. Cooperation within departments and be-
tween other departments and the safety department should
prevail.
1-15. SAFETY PROGRAM
a. To be effective, a safety program must include
provisions of maximum safety (consistent with operational
requirements) in the design of materiel; prevention of injuries
to military, civilian and contractor personnel; prevention of
damage to property and interruption of essential operations.
and elimination from the environment of those effects of
operations which might otherwise endanger the general
populace. The program shall have two phases, the general
and the specific functions. The general function shall be
continuous and repetitive and shall be planned to eliminate
the conditions which cause the majority of accidents. The
specific functions shall be specialized in character and shall
be planned to determine and correct hazards associated
with the flow of materials, the method of process, and/or
physical plant conditions. At each installation, there shall
be only one Safety Program.
b. The object of the general function shall be the elimi-
nation of accidents occurring with a significant frequency and
assignable to a particular agency, unsafe act, unsafe condi-
tion, etc., and of accidents which are concentrated in any
—
;
|
?
45A
AMCR 385-100
1-1 5b
particular area or section of the establishment. This phase of
the program shall be broad in scope and shall include:
(1) Safety program management.
(2) Development of safety standards and
regulations.
(3) Systems safety engineering.
(4) Safety engineering review of construc-
tion, existing facilities and operations.
(5S) Safety education and promotion.
(6) Safety training.
(7) Investigation, analysis and reporting of
accidents and incidents.
' (8) Safety inspections.
c. The nature of the specific function requires the
making of inspections and accident cause investigations
pertaining to special studies and analyses of handling opera-
tions, process operations, materiel faillires, physical condi-
tions of a plant or area, the use of toxic materials, and of
other specific operations. The safety office shall participate
in materiel design, development of precess plans, develop-
ment of new construction and facility modification plans
and development of equipment specifications.
464
AMCR 385-100
1-16
1-16. HAZARD CONTROL
a. The safety organization shall review all regular
operations and al) seasonal or special operations such as tank
cleaning, boiler cleaning, window cleaning, and infrequent
matenals handling jobs Hazards may be determined through
accident cause analyses and analyses of all operations, includ-
ing seasonal or infrequent operations in the establishment.
b. Once the hazards of a particular operation have been
identified, they shall be evaluated in order to facilitate
correction. The specific preventive or control measures to
be applied shall be determined by the characteristics peculiar
to the hazard. The solution may be found in education of
personel, in use of protective equipment, or in engineering
changes involving equipment or processes. The lack of
existing regulations or standards does not relieve the Com-
mander of responsibility for developing local measures for
the control of recognized hazards.
c. Upon completion of the study of each hazard and the
determination of corrective measures, all data should be
assembled and a repo.t prepared for the approval of the
superintendent, production chief, safety board, or Command-
er, as may be required. Upon approval, the correction shall
be effected and continuing protection assured through
follow-up corrective measures by supervisory personnel
and through inspections by the safety department.
47A
AMCR 385-100
1-17
1-17. EDUCATIONAL PROGRAM
An educational program shail be instituted in each estab-
lishment to develop and maintain employees’ interest in the
safety program, and to train employees in safe practices and
safe procedures. The safety director shall determine the need
and arrange for the procurement and selective distribution of
safety promotional and educational materials. Available
media for employee education include posters, bulletin
boards, scoreboards, special exhibits, “No accident” cam-
paigns, safety or clean-up contests, articles in establishment
publications, safety rules handout cards, pamphlets, warning
signs for specific hazards, suggestion systems, essay contests,
and sound slide films or motion pictures for groups of
employees. Appropriate “off-the-job” accident prevention
features sha’! be included in the program, and the safety
organization sould stimulate the interest of and cooperate
with outside agencies concerned with this phase of the
accident prevention piogram.
1-18. EMPLOYEE TRAINING
a. The personnel department or other departments
charged with the responsibility for preparing the written
employee training program shall collaborate with the safety
director to assure adequate treatment of accident prevention
matters. Comprehensive and thorough job safety training
results in increased production through reduced susceptibility
to mistakes and accidents. It is the responsibility of the
training department to assist all departments in determining
training needs, and to provide courses to meet these needs.
AMCR 385-100
1-18b
b. All new employees must be made aware of instal-
lation general safety rules and regulations before being
placed on the job. This should be accomplished through an
orientation course. Each employee shall be trained for the
specific job to which he is assigned. This training may be
accomplished by the supervisor on the job, by special in-
structors or by experienced workers through the apprentice-
ship method. The employee shall be thoroughly instructed in
the efficient safe method of performing his assigned work
before being permitted to work “on his own”. The personal
benefits accruing to the employee by conformity with these
rules should be explained.
c. The instructors shall be properly trained in the use of
sound instructional methods and in determining what knowl-
edge must be passed along to the worker. The instructions
concerning the performance of new duties should be well
planned in advance so that the instructor can present them in
an orderly and complete fashion. The use of a written job
procedure (job) breakdown) based on complete analysis of
the job has been established as a valuable method for this
purpose. Such analysis should include an outline of the
necessary steps in the performance of the job, a listing of
the essential techniques for the efficient performance of each
step, a listing of the hazards present in each step, and defin-
ite, positive instructions regarding each hazard which will
enable the worker to avoid accidents or injury.
d. To insure receiving the maximum benefits from any
training, supervision shall maintain a continuous program of
follow-up, reinstruction, and enforcement of regulations and
“ procedures with each employee.
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:
49A
AMCR 385-100
1-19
1-19. FIRST-AID TRAINING
First-aid training shall be made available during duty hours.
Electricians, maintenance men, guards, firemen and foremen,
attendants and orderlies in the first-aid room, and other job
categories selected by the installation safety director as
having a job-related need for this training shall take the
course. Insofar as practicable, the first-aid training course
should be made available to all employees. The content of
the training course and the number of hours of class atten-
dance will be determined by the commanding officer to
fit local needs based on advice from the Surgeon. Instructors
will be qualified and accredited. A certificate should be
awarded to each person completing the course satisfactorily.
A refresher course should be given at intervals, but it is
more important to give first-aid training to those who have
not been trained.
1-20. INJURY REPORTS
A complete and accurate system of accident records
constitutes the focal point of a safety program. Accident
records must be used, and used effectively, to obtain the
best results in any accident prevention program. In order
that effective accident cause analyses can be made, accident
records will include data which will:
a. Indicate the accident trend:
b. Identify departments with the poorer
records:
AMCR 385-100
1-20c
c. Reveal hazardous agencies, conditions,
practices, and processes requiring cor-
rection or protection;
d. Point to predominant types of accidents;
e. Indicate employees who require special
attention and/or training;
f. Reveal the lack of enforcement of
established regulations; and
g. Indicate the need for additional safety
standards.
!-2!. ACCIDENT PREVENTION INSPECTIONS
Safety personnel shall inspect each operation for unsafe
work practices and unsafe physical and mechanical condi-
tions at least once each month. Hazardous operations or
accident experience will indicate the advisability of more
frequent inspections. The safety director shall arrange for
prompt inspections of any seasonal or unusual work of a
hazardous nature. Operations foremen shall make daily
inspections of work areas and operating conditions to assure
that all hazards have been minimized and that safe work
practices are being employed. The operations foreman
should accompany the assigned safety inspector whenever
possible. All of the discrepancies noted, and recommenda-
tions to be made, by the safety inspector, should be brought
to the operating foreman’s attention during or immediately
after the inspection so that unsafe acts and unsafe conditions
may be corrected promptly. Accident prevention inspections
shall be systematic and thorough so that no location will
be overlooked.
AMCR 385-100
1-22
1-22. ACCIDENT INVESTIGATION
Accidents shall be investigated in accordance with current
directives to determine all contributing causes and the
preventive measures which will eliminate or reduce the
number of accidents. Even accidents which do not cause
severe property damage or injury to personnel must be
investigated so that preventive measures can be taken before
the same or a similar set of circumstances result in a serious
accident. The investigation of first aid cases must not be
overlooked, however slight the injury may be, and an effec-
tive system for the prompt reporting of first-aid cases to the
safety department must be instituted. The operations fore-
man shall be required to investigate, with the help of his
supervisor or a safety office representative if necessary, al!
accidents involving operations, equipment, or personnel
under his supervision, and his report shal) be forwarded for
appropriate action. The safety director shall be responsible
for the arrangements necessary to receive immediate notices
of all disabling injuries. When an accident occurs, immediate
action shall be taken by the safety director to
a. Interview the injured person before he
is sent home or to the hospital when
delay of treatment will not jeopardize
the injured,
b Visit the scene of the accident to observe
conditions as they were or might have
been at the time of the accident:
c Obtain details of the injury trom the
medical department.
S2A
AMCR 385-100
1-22d
d. Prepare or obtain photographs, diagrams,
sketches, and maps as warranted by the
circumstances;
e. Confer with foremen, supervisors and
witnesses for information as to cause;
h. Complete the necessary accident reports;
i. Establish a follow-up on the application
of recommended corrective measures,
j. Follow through for exact information
pertaining to the return of the injured
to work.
1-23. ACCIDENT CAUSE ANALYSIS
Accident reports shall be used to compile accident data,
preferably on a monthly basis, for dissemination to operating
segments. The record shall show the accident factors (agen-
cies, unsafe conditions, types of accidents and unsafe acts)
subdivided into appropriate group classifications. Further
S3A
AMCR 385-100
1-23
analysis should be made of each factor to determine exactly
what has happened. Analyses should be used in developing:
a. The education program,
b. Employee moitivation,
c. Contests and “no accident” campaigns,
d. Safety meeting topics,
e. Process changes, and
f. Facilities and equipment modification.
1-24. OFF-THE-JOB SAFETY
Avoiding off-the-job accidents is fully as important to the
as pedestrian safety, Se ae Se
in driving—teaching employees to avoid accidents that may
to the unsafe driving of others. Local conditions
determine the roles of the installations in community safety.
S4A
AMCR 385-100
7-1
CHAPTER 7
STATIC ELECTRICITY
7-1. GENERAL
a. The generation of static electricity is not of itself
a hazard. The hazard arises when static is allowed to accumu-
late, for subsequently it may discharge as a spark across an
air gap in the presence of highly flammable material, and thus
provide a source of ignition.
b. Detailed discussions of the hazard of static and ways
of reducing it are contained in the following publications:
(1) “Static Electricity,” published by the National Fire
Protection Association as NFPA Standard No. 77M.
(2) “Static Electricity,” Bulletin No. C438, United States
Department of Commerce.
(3) “Static Electricity in Nature and Industry,” Bulletin
No. 368, United States Department of Commerce.
(4) “Standards for Grounding and Bonding Equipment,”
published by Underwniters’ Laboratories, Incorporated.
SSA
AMCR 385-100
7-2
7-2. GROUNDING OF EQUIPMENT
The general method employed for eliminating or reducing
for in order to be completely effective, grounding must
include the contents, which is not always practicable; e.g.,
ungraphited solid propellants in metal containers. Partial
grounding or using conductors of insufficient strength or
too high resistance may increase the static hazard by pro-
viding other opportunities for discharge through an uncon-
trolled path to ground. Electrical continuity may be broken
oil on bearings, paint or rust at any contact point. In
to obtain a continuous circuit, bonding straps should
to bridge such locations. Permanent equipment in
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driven ground rods, which may or may
be the lightning protection system or to down
conductors of lightning protection systems. Wires used as
static ground conductors should be at least size No. 8 or No.
10 AWG as specified by NFPA Standard No 77M.
‘
2
5
2
AMCR 385-100
7-3
7-3. BELTS
Conductive belting shall be used in locations where static
is a hazard. Such belting shall have a resistance to ground
not exceeding 600,0000hms. Static combs must not be used
to drain off static generated from belting or pulleys used in
locations where hazardous concentrations of explosives dust
or flammable vapors are present.
74. TESTING EQUIPMENT GROUNDS
Grounding systems shall be tested for electrical resistance
and continuity when completed and in the case of active
equipment, prior to operation and at specified intervals, to
be determined locally, thereafter. All exposed explosive or
hazardous matenals shall be removed prior to making tests.
Complete record of all tests shall be kept. In testing for
resistance to ground, equipment should be considered as a
unit except in the case of a belt-driven machine. In measuring
the total resistance to ground for belt<iriven machinery to
assure compliance with paragraph a below, resistance of the
belting is to be excluded. The maximum resistance to ground
permitted for different types of equipment is as follows:
a. Hazardous locations (operations where a static
spark discharge may be dangerous) All conductive parts
of equipment shall be grounded so that resistance does not
exceed 25 ohms, unless 10 ohms is required for lightning
protection as specified in Chapter 8. For existing equipment,
the rate of static generation should be considered before
changes in grounding systems are made. The resistance of
conductive rubber hose should not exceed 250,000 ohms.
STA
AMCR 385-100
7-4b
b. Nonhazardous locations. Nonelectrical equipment in
nonhazardous locations need not be grounded unless ground-
ed for static dissipation, but should be grounded as a part
of the lightning protection system when such system is
installed. For interconnection of metallic masses, the stan-
dards set forth in “Lightning Protection Codes,” NFPA
Standard No. 78 apply.
7-§. CONDUCTIVE FLOORS
a. Conductive floors and conductive shoes shall be
used for grounding personnel at operations where explosives
such as primer, initiator, detonator, igniter, tracer and
incendiary mixtures are exposed. Some materials sensitive
to static sparks (easily ignited or detonated) are lead styph-
nate, lead azide, mercury fulminate, tetrazene, diazodinitro-
phenol, potassium chloratedead styphnate mixtures, igniter
composition, grade B magnesium powder, and black powder
dust when exposed in layers. Dust of solid propellants
can also be ignited from the spark energy that can be
accumulated on a person and conductive floors and shoes
must be employed when the dust is present. In addition,
dust-air mixturés of ammonium picrate, tetryl, tetrytol,
and dust of solid propellants are sensitive to static electricity
discharge. Many flammable liquids and air mixtures tested
(ethyl ether, ethyl alcohol, ethyl! acetate, acetone, and
gasoline) can be ignited by static discharge from a person.
When personnel come into the proximity of (possible contact
with) explosives or mixtures enumerated above, conductive
floors shall be installed except where the hazards of dust-air
or flammable vapor-air mixtures are eliminated by adequate
housekeeping, dust collection, ventilation, or solvent re-
covery methods.
S8A
AMCR 385-100
7-Sb
b. Conductive floors also are required where operations
are performed involving:
(1) Loose unpacked ammunition with electric primers.
(2) Exposed electro-explosive devices; e.g., squibs, deton-
ators, etc.
(3) Electrically initiated items with exposed electric
circuity ; e.g., rockets.
(4) Hazardous materials that could be ignited by a static
discharge from the human body.
¢. Conductive floors and footwear are not required
throughout an entire building or room if the hazard remains
localized. In such cases, conductive mats or runners may be
used where required.
d. Personel, except electricians, in locations where
conductive floors are required and installed shall wear con-
ductive foot-wear (see paragraphs 10-11 and 16-18g). Electri-
cians are not to work in a building or room containing
exposed explosives. They must wear nonconductive shoes
for electrical work. In addition, when observing explosives
operations to check on performance of equipment, they shall
— with conductive booties or other grounding
evice
—~
5S9A
AMCR 385-100
76
74. CONDUCTIVE FLOOR SPECIFICATIONS
Conductive floors must be of nonsparking material such as
lead, conductive rubber or conductive flooring composition
and shall meet the following requirements in addition to
those goven in paragraph 5-3.
a. The flooring and its grounding system must provide
for electrical resistance measured between ground and a
S-pound electrode in direct contact with five square inches
of floor arez not to exceed 250,000 ohms.
b. The surface of the installed floor must be free from
cracks and reasonably smooth, and the material must not
slough off, wrinkle or buckle under operating conditions.
c. Where conductive floors and shoes are required, the
resistance between the ground and the wearer shall not
exceed 1,000,000 ohms; i.e., total resistance of conductive
shoes on a person, plus the resistance of floor to ground.
Where conductive floors and shoes are required, table tops
upon which exposed explosives or dusts are encountered
should be covered with a properly grounded conductive
material meeting the same requirements as those for flooring.
See Figures 7-1 and 7-2.
61A
60A
185-
AMCR 385-100
2%
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1MO1IM OF adv —
706A TEST INSTRUMENT
TEST VOLTAGE—90 VOLTS
MAXIMUM CURRENT—2 MILLIAMPERES
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Si - S$. 3OMS SH
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“CL-O1 GdesBe sed a5
SLIOA OOF Ol 06-FOVLIOA 1531
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SHOES IN PARALLEL
250,000 Onms
Note: See paragraph 10-1).
Figure
Testing Shoes on Wearer.
Tel.
_
62A
AMCR 385-100
7-7
7-7. CONDUCTIVE FLOOR TESTS
a. Initial tests shall be made of ali conductive floors
and subsequent tests shall be made at least semiannually.
The test results shall be permanently recorded with a copy
filed in the Safety Office. Instruments used in making tests
shall be used only when the room is free from exposed
explosives. The instrument used should be portable, self-
powered, enclosed unit and should consist of two dry elec-
trodes. One electrode shall consist of a special metal block
(five pounds in weight) which makes contact with five
square inches of floor area. The block should be equipped
with a nonmetallic strap to enable pulling it along the surface
of the floor under test. If the flooring is uneven, making it
difficult to obtain five squre inches of contact, a thin coating
of “electrode jelly” (brushless shaving soaps) may be applied
to the underside of the block. The other electrode should
consist of a suitable spring test clip for attachment to a
permanent ground. The electrodes shall be insulated from
each other and should be connected with instruments by
test leads of such length that all parts of the floor can be
reached, and connected in such a manner that the resistance
between electrodes may be measured as shown in Figure
7-3. The operation and maintenance of test instruments
shall be entrusted to competent personnel.
b. The voltage applied to the instrument should be
between 90 and 500 volts. Low voltage instruments may be
used, but if the floor shows more than the maximum permit-
ted resistance with instruments of jess than 500 volts, a test
with a 500-volt instrument should be made before any action
is taken to gain greater conductance. If the resistance is then
greater than 250,000 ohms, and the floor and electrodes
63A
AMCR 385-100
7-7
are free from insulating materials, the effectiveness of the
floor grounds shall be tested.
7-8. HUMIDIFICATION
Humidification for preventing static electricity accumula-
tions and subsequent discharges is usually effective if the
relative humity is above 60 per cent. However, certain
materials such as metallic powders and some of the pyro-
technic mixtures cannot be exposed to air with 60 per cent
relative humidy because of the possibility of spontaneous
ignition.
79. lONIZATION®
lonization is electrical neutralization “and serves as an
effective method of removing static charges from certain
processes and/or operations. Methods of application can be
found in NFPA Standard 77M, “Static Electricity.” loniza-
tion methods of removing static charges must not be used
in hazardous locations as defined in the National Electrical
Code and Chapter 6 of this regulation.
64A
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Testing Crounded Conductive Floors.
Figure 7-3.
-8
6S5A
AMCR 385-100
12-3le¢
c. Valves controlling active sprinkler systems and
under-ground sections shall be sealed in the open position.
Post indicator stems shall be drilled for insertion of sealing
wire so that valves can be spring tested without breaking
the seal.
12-32 CLEARANCE UNDER SPRINKLERS
A minimum clearance of 18 inches will be maintained
between sprinkler deflectors and stored nonhazardous
15 feet high or less, and a minimum
be maintained between sprinkler
deflectors and stored nonhazardous materials that are piled
feet. Regardless of the height of storage, a
um clearance of 36 inches will be maintained between
sprinklers and storage in extra hazard occupancies and
between sprinklers and baled storage.
12-33 DELUGE SYSTEMS
a. In addition to sprinklers, deluge systems should be
provided for the protection of operating personnel in high
hazard occupancies. Powder cutters, cotton pickers, melt
units, mix-melt kettles, equipment containing reservoirs
molten explosive and other locations where a process
hazard exists shall be protected by properly designed
deluge systems. Rate-of-rise, light-acuating or other quick-
action for automatic control of deluge systems are
recommended. Such automatic controls should be backed
up by quick-ac manual controls.
AMCR 385-100
12-33b
b. The distributing outlets (nozzles, sprays, heads, etc.)
should be located as close to the exposed surface of the
explosive as possible, consistent with the outlet discharge
pattern, to insure immediate drenching of all parts of the
machine under extreme conditions. When explosives are
located inside of machines, under tight hoods or covers,
distributing outlets should be located inside the enclosed
space. For example, on the volumetric loading machine:
(1) Outlets should be placed inside of the enclosed
reservoir over TNT.
(2) Outlets should be placed inside of the machine
over the measuring cups.
(3) Consideration should be given to providing outlets
located so that the top of the heating unit and the tops of
shell in the skid under the machine will be drenched in case
of fire.
c. Where explosive vapors, gases or dusts may enter
outlets and interfere with their operation, nonmetallic
internally spring-held caps should be placed on the outlets.
The design must provide immediate release of the cap upon
exertion of pressure within the outlet. Caps should be at-
tached to outlets with small nonferrous chains to prevent
their loss in equipment upon actuation of the deluge system.
d. Required water flow and pressure should be deter-
mined for the hazard. Where possible, and where no applica-
ble data exists, experimental fire extinguishment should
be made in a safe outdoor location.
67A
AMCR 385-100
12-33¢
e. Deluge systems should be flow tested periodically to
insure that they are in proper operating condition. Records
of tests should be kept on file at the fire department.
f. The deluge valve shali be arranged for automatic
and/or manual actuation.
g. Certain hazardous operations such as nitrocellulose
dehydration should be protected with a deluge capable of
supplying water on the hazard within 50 milliseconds after
ignation. Pipe lengths between deluge valves and outlets,
and distance between outlets and the protected areas should
“Be kept short to speed application of water.
h. NFPA Standards No. 13 and No. 15 contain basic
12-34. FIRE EXIT DRILLS
a. Fire exit drills should be held not less than semi-
annually with due consideration given the size of building
and number of occupants. If emergency exits other than
the usual doors or stairways are provided, it is important for
employees to be drilled in their use so that they will go to
them automatically in case of fire or Other emergency.
Organization among the employees for fire drills is essential.
The Building Exits Code, NFPA Standard No. 101, should be
used as a guide.
b. To facilitate the prompt evacuation of all personnel
from buildings, an alarm system which is audible or visible,
or a combination of both, should be installed in each explo-
sives operating building. The alarm system for operating
buildings containing * * *
AMCR 385-100
20-1
CHAPTER 20
PREPARING EXPLOSIVES AND AMMUNITION FOR
SHIPMENT
20-1. GENERAL REGULATIONS, COMPLIANCE WITH
DEPARTMENT OF TRANSPORTATION REGU-
LATIONS
a. The general regulations governing the marking,
packing and shipping of military supplies are set forth in
applicable current Army regulation. These operations also
will comply with Department of Transportation regulations.
This Section, Section 21 and Chapter 22, contain additional
regulations applying to the marking, packing and shipping
of explosives and ammunition. No live ammunition or
ammunition component that has been subjected to undue
be self-contained if they function.
(2) Ammunition containing high explosives filler but
without fuzes or initiating devices.
(3) Explosives items which both the testing agency and
the project manager or appropriate commodity command
agree can be safely transported. If the normal sensitivity
or the item Sail te Oe Gree ee
69A
AMCR 385-100
20-1b
b. When items covered by paragraphs 20-la(1) and (2)
above are shipped by commercial carrier, the vehicle involved
will be used exclusively for this purpose and will be routed
directly to the consignee.
20-1. MARKING
a. Whenever explosives or ammunition containers or
ammunition and ammunition components are repainted, the
new painting or marking shall correctly identify contents of
items. The marking of empty or inert loaded ammunition
items for display purposes is governed by the provisions of
AR 385-465.
b. Explosives, ammunition, and loaded ammunition
components obtained from salvage operations, and material
which has lost its identification markings shall be clearly
marked to show the explosive nature of the material. Ex-
plosive material or items which cannot be definitely identi-
fied as to their explosive nature should be disposed of by
technically trained personnel in accordance with paragraph
278a.
20-3. TEMPORARY STORAGE IN SHIPPING AND
RECEIVING BUILDINGS
a. LCL Buildings
(1) In buildings specifically designated and used as
packing and shipping buildings, ammunition and explosives
may, subject to the following limitations, be stored in accord-
ance with the Loading and Storage Chart of Explosives and
Other Dangerous Articles as contained in the Department of
70A
AMCR 385-100
20-3a
Transportation regulations. Incoming shipments should
not be allowed to accumulate and-should be distributed as
soon as practicable after receipt. Items for outgoing ship-
ments should not be accumulated prior to receipt of orders
covering each specific shipment.
(2) Separate rooms shall be provided for the temporary
storage of ammunition and explosives awaiting shipment,
and for their preparation for shipment before assembling,
crating, marking, etc. The rooms shall be separated from
each other by substantial dividing walls and shall be separated
from offices or rooms in which inert operations such as the
preparation of stencils, packing and crating are performed.
The substantial dividing walls will be constructed to comply
with the requirements for fire walls also.
b. At shipping and receiving buildings. Where material
is stored in accordance with the DOT requirements, not
more than three cars of ammunition or explosives shall be
permitted at such a building. When materials in the cars,
buildings or on platforms are stored in accordance with the
Storage Compatibility Groups of this regulation (Chapter
19), a larger number of cars may be located at such places.
The combined total amount of explosives in the cars, build-
ings and platforms must be used as the contrulling quantity
for determining distance requirements to other targets
(see paragraph 17-8). If there is an adequate barricade be-
tween the cars and the adjoining building or platform, the
quantity on each side of the barricade may be considered
individually to determine quantity-distance requirements.
TIA
AMCR 385-100
20-4
204. CONTAINERS
Hazardous materials in bulk or liquid form must be trans-
ported in containers which will prevent leakage. Containers
used in intraplant transportation and service storage of
explosives and explosive mixtures such as initiating explo-
sives, pyrotechnic compositions and tracer materials should
be made of material in the following preference order:
Conductive rubber
Nonferrous metal-lined boxes without seams or rivet
heads under which explosive dust can accumulate
Plastics (conductive-type only)
Papersined wood boxes
Fiber containers.
Fiber containers should not be used when they show signs of
damage or wear. Glass containers should not be used because
of their fragility and severe missile hazard.
20-5. BLACK POWDER CONTAINERS
a. Standard containers for black powder are built in
accordance with drawings that meet DOT specifications.
b. Whe black powder is shipped or received, each
container shall be inspected for holes and weak spots, par-
ticularly holes made by small nails and which are visible
only upon close examination. Damaged containers must not
be repaired; the contents shall be transferred to new or
serviceable containers.
72A
AMCR 385-100
20-Sce
c. Empty black powder containers may be reused, and
may be transported empty provided each container is clean.
Empty metal containers which are not to be reused and will
be salvaged shall be thoroughly washed inside with water.
d. Black powder containers must be caiefully opened.
When it is necessary to open containers by puncturing,
the operation will be conducted by remote control.
204. CONTAINERS FOR SOLID PROPELLANTS
a. Solid propellants shall be packed in accordance with
approved AMC drawings that comply with DOT regulations.
.
b. Double base solid propellants, single perforated solid
propellants and all solid propellants with web thickness not
greater than 0.019 inch should not be packed in all-<teel
boxes. Metal lined wooden boxes should be used.
c. Salvaged or deteriorated solid propellants should
be shipped water wet.
20-7. CONTAINERS FOR AMMUNITION AND BULK
HIGH EXPLOSIVES
a. Ammunition and bulk high explosives shall be packed
in accordance with approved AMC drawings that comply
with DOT regulations.
b. Containers used for packing bulk high explosives
should be lined with strong cloth or paper bags, or liners
with cemented seams to prevent sifting.
73A
AMCR 385-100
20-8
20-8. HANDLING
a. Explosives or ammunition. Packaged ammunition
or bulk explosives shall not be handled roughly, thrown
about, tumbied, dropped or walked over other explosives
or ammunition.
b. Propelling charges. Rough handling may open seams
in the containers or loosen the covers. The contents of
damaged containers shall be examined carefully by qualified
personnel for moisture, signs of deterioration or foreign
material before repacking. Propelling charges must not be
exposed to the direct rays of the sun. If igniter pads on
propelling charges are broken, the charges should be handled
using the safety precautions prescribed for black powder.
c. Fuzes, primers, boosters and detonators. All loaded
components must be handled with special care, as these
are extremely sensitive to shock and friction.
d. Other loaded items. Suitable plugs or closures shall
be used to protect exposed explosives in items during transfer
within the installaton, such as transfer of projectile from
defuzing or deboostering building to the explosives washout
building or to the burning or demolition ground.
e. Use of conveyors, chutes and fork lift trucks (see
Chapter 24). When the precautions noted in subparagraph
a above are observed, and the provisions of paragraphs
24-3 and 244 are satisfied, explosives, ammunition and
bombs packaged in accordance with AMC approved drawings
may be handled on power and roller conveyors, chutes or
fork lift trucks. Loaded ammunition items should not be
74A
AMCR 385-100
20-8e
left on conveyors during non-operating periods. Hard-toe
sparkproof safety shoes are recommended in areas where
projectiles or bombs are handled manually.
f. Spotting charges. Spotting charges for practice bombs
filled with black powder shall be stored, handled and shipped
under the regulations for black powder.
g. Tampering with ammunition by unauthorized per-
sonnel is prohibited.
OPPOSITION
BRIEF
No. 87-1929
Supreme Court, U.S.
EILED
(9) juL 25 1988
2 IR.
In the Supreme Court of the United States
OCTOBER TERM, 1988
MARK LYNN FORTNEY, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES
— IN OPPOSITION
CHARLES FRIED
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 633-2217
TABLE OF AUTHORITIES
Page
Cases:
Berkovitz v. United States, No. 87-498 (June 13, 1988) 4
Graver Mfg. v. Linde Co,, 336 U.S. 271 (1949) ..... 6
United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797 (1984) .. 2, 4, 5
Statute:
Federal Torts Claims Act, 28 U.S.C. 2680(a) . .. ae
Miscellaneous:
U.S. Army Safety Manual .......... 2, 3, 6
(1)
oe"
In the Supreme Court of the United States
OCTOBER TERM, 1988
No. 87-1929
MARK LYNN FORTNEY, ET AL., PETITIONERS
Vv.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION
Petitioners contend that the courts below erred in
dismissing their complaint as barred by the discretionary
function exception to the Federal Torts Claims Act
(FTCA), 28 U.S.C. 2680(a).
1. Petitioners are former employees of Hercules, Inc.,
who were severely burned in an explosion at the Radford
Army Ammunition Plant (RAAP). RAAP is an Army-
owned facility in Radford, Virigina, which is operated by
Hercules under a government contract (Pet. App. 3A).
While the Army has the right to inspect the premises, Her-
cules is primarily responsible for safety at the plant, in-
cluding the safety of Hercules personnel (id. at 3A, 8A).
Hercules manufactures explosives at RAAP that con-
tain dehydrated nitrocellulose. In December, 1980,
Hercules began experimenting with a new, automated
system for dehydrating nitrocellulose. On May 6, 1981,
(1)
2
this experimental system exploded, causing the injuries
that are the basis for this lawsuit. Pet. App. 8A.
Petitioners each brought suit against the United States
under the FTCA, claiming that the government “had
failed to use reasonable procedures to assure that Hercules
utilized necessary safety precautions in its performance of
hazardous work” (Pet. App. 8A). More specifically, peti-
tioners alleged (see Pet. 8) that the explosion was caused
by the use of a nitrocellulose container made out of non-
conductive rubber. Petitioners claimed that Section 20.4
of a U.S. Army Safety Manual, AMCR 385-100 (reprinted
at Pet. App. 30A, 71A) forbade the use of nonconductive
containers for hazardous materials. Petitioners also con-
tended (see Pet. 9) that Hercules’ sprinkler system was in-
adequate and in violation of Section 12.33(g) of that same
Manual (Pet. App. 67A).
2. Following a bench trial, the district court (Pet.
App. 8A-13A) dismissed the consolidated cases, con-
cluding that they were barred by the discretionary function
exception to the FTCA, 28 U.S.C. 2680(a). The court
noted (Pet. App. 12A) that the contracts between the
government and Hercules “delegate primary responsibility
for safety to the independent contractor with the govern-
ment’s retaining the right to review safety procedures.”
The court further noted (id. at 10A (quoting United States
v. §.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 819-820 (1984)), that “ ‘[w]hen 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.’ ” The court accordingly concluded (Pet. App. 12A)
that the government’s “delegation of safety responsibility”
to Hercules was “the type of policy-making for which the
[discretionary function exception] was designed.”
3
Petitioners moved for reconsideration in the trial court,
arguing, inter alia, that Section 20.4 of the Army Safety
Manual was a “mandatory” regulation and that the
government had no discretion to permit Hercules to
violate that regulation by using nonconductive tubs in the
dehydration process. The district court denied the motion
on two grounds. First, the court noted (Pet. App. 19A)
that the regulation in question did not mandate the use of
conductive tubs but instead “clearly * * * contemplated
situations in which nonconductive tubs would be used.”
Second, the court noted (id. at 19A-20A) that “the govern-
ment’s failure to object to nonconductive tubs * * *
reflected many factors and typifies a decision that the
[discretionary function exception] was designed to
protect.”
The court of appeals affirmed in a brief per curiam
opinion, holding (Pet. App. 4A) that “on the record in the
case at bar, the delegation of safety responsibility to Her-
cules left the Army with solely discretionary safety func-
tions to perform at the Radford plant.” The court rejected
(id. at 4A n.1) petitioners’ contention “that the govern-
ment was not entitled to discretionary function immunity
in this case because the explosion was traceable in part to a
violation of a mandatory safety regulation governing per-
missible containers for hazardous materials.” The court
agreed with the district court that the regulation in ques-
tion in fact “embraced the type of container used at the
Radford plant, even though the containers used were not
specified in the regulation” (ibid.). The court stated, in
addition, that “violation of a mandatory regulation does
not abrogate the government’s tort immunity independent-
ly of the FTCA, and that the discretionary function excep-
tion to the FTCA protects the government from liability
‘whether or not the discretion involved be abused.” ” /bid.
(quoting 28 U.S.C. 2680(a)).
4
3. a. As both the district court (Pet. App. 8A) and the
court of appeals (id. at 3A) noted, the government’s con-
tracts with Hercules expressly delegated to the contractor
the obligation to provide for the safety of its employees
and to follow any relevant safety regulations. See C.A.
App. 1072. The government retained only a right, not an
obligation, to inspect the premises for quality control,
security, and safety (Pet. App. 3A, 8A).' This case is
therefore controlled by Varig Airlines, in which the Court
held that the government’s decision to place primary
responsibility for safety on manufacturers, while retaining
the right merely to spot-check compliance, was a discre-
tionary decision protected by the discretionary function
exception. “When an agency determines the extent to
which it will supervise the safety procedures of private in-
dividuals, it is exercising discretionary regulatory authori-
ty of the most basic kind” (467 U.S. at 819-820).
Petitioners attempt to avoid the binding effect of Varig
Airlines by arguing that this case is instead controlled by
the Court’s recent decision in Berkovitz v. United States,
No. 87-498 (June 13, 1988).? In Berkovitz, the Court in-
' The portion of the contract that reserves a right to inspect the
premises for safety specifically states that “[nJeither the requirements
of this clause nor any act or failure to act by the Government in
surveillance or enforcement thereof shall affect or relieve the Contrac-
tor of responsibility for the safety of his personnel and his property
and for the safety of the general public in connection with the per-
formance of this contract, or impose or add to any liability of the
Government for such safety.” C.A. App. 1072.
2 In Berkovitz, a vaccine recipient contracted polio from an oral
poliovirus vaccine. He and his parents sued the government claiming
that the FDA licensed the vaccine and approved release of the specific
lot of vaccine from which the boy received his dose in violation of
federal regulations. This Court rejected the government's contention
that the discretionary function exception precluded the suit, holding
dicated (slip op. 15) that if the government exercises its op-
tion to inspect private compliance with government safety
regulations, government ifispectors have no discretion to
“knowingly approve[]” violations of those regulations.
More generally, the Court stated (/bid.) that the discre-
tionary function exception “does not apply if the acts com-
plained of do not involve the permissible exercise of
discretion.” In this case, however, while two Army
employees, along with a number of employees of Her-
cules, did participate in a “pre-operational survey” of the
automated dehydration system (see C.A. App. 778-781),?
there is no indication in the record that they specifically
examined or approved the tubs or the sprinkler system
used by Hercules in its experimental dehydration process.
Neither the tubs nor the sprinkler sysiem are discussed in
the report of that survey (ibid.), nor do any regulations
specifically require that they be examined or approved by
the Army. Thus, the government cannot be faulted for any
violation of its own regulations, but at most for failure to
uncover certain alleged violations of government regula-
tions during its optional inspection. As Varig Airlines
makes clear (467 U.S. at 820), however, “the [Army’s]
(slip op. 4) that “the discretionary function exception will not apply
when a federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow.”
’ Army Regulations specifically require a pre-operational survey,
“consist[ing] of two consecutive stages: a dry run with inert material, a
live run with hazardous material.” ARRCOM Supplement | to AR
385-10 (C.A. App. 1077). The regulations state that ‘[a}ll or a portion
of the pre-operational survey may be delegated to the installation
staff” (ibid.). In the instant case, however, two Army safety inspectors
were present during the pre-operational survey (id. at 612-613). Prior
to the pre-operational survey, Hercules also prepared and submitted
to the Army a lengthy “hazard analysis” of the proposed system. See
id. at 970-1053. The modifications called for in that report were made
by Hercules prior to the pre-operational survey (id. at 777).
6
alleged negligence in failing to check certain specific items
in the course of its [compliance review] falls squarely
within the discretionary function exception of § 2680(a).”
b. Even if the government could be held responsible
for compliance with the regulations in question here, the
district court specifically found (Pet. App. 19a), after a
trial on the merits, that the use of nonconductive tubs was
permitted by Section 20.4 of the Army Safety Manual.*
The court of appeals agreed (Pet. App. 4A n.1).° Peti-
tioners claim (Pet. 23) that that decision was a “manifest
error of fact” but this Court does not sit to review the fac-
tual findings of two lower courts. Graver Mfg. v. Linde
Co., 336 U.S. 271, 275 (1949). Furthermore, expert
testimony by three separate witnesses supports the conclu-
* The district court, in its supplemental opinion, did not discuss
Hercules’ sprinkler system, which petitioners also claimed violated the
Army Safety Manual. The main focus of petitioners’ argument,
however, was on the nonconductive tubs; in their Motion for Recon-
sideration, petitioners only mentioned the sprinkler system in a single
sentence of a footnote (see C.A. App. 339 n.1). The district court's
conclusion that this issue did not warrant independent discussion is
therefore understandable in light of its alternative holding that the
burden for compliance with the regulations rested on the contractor,
not the government. Furthermore, the testimony at trial indicated that
it was not possible at the time in question to buy a faster sprinkler
system (id. at 512-513, 698). In light of this impossibility, the Army in
1986 amended the regulation to raise the required response time (id. at
351-352).
* The court of appeals stated (Pet. App. 4A n.1), in addition, that
violation of a mandatory regulation would not abrogate the govern-
ment’s tort immunity provided that the government was still exercising
a discretionary function. That statement is no longer tenable in light
of this Court's decision in Berkovitz, but it was clearly not essential to
the court of appeals’ decision. The fact that the regulation was not
violated was an independent ground for affirming the district court.
sion that the tubs used by Hercules did comply with the
regulations. See C.A. App. 554, 658-659, 750.
It is therefore respectfully submitted that the petition
for a writ of certiorari should be denied.
CHARLES FRIED
Solicitor General
JULY 1988
US GOVERNMENT PRINTING OFFICE 1988—202-037/60567
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
MARK LYNN FORTNEY:
ESLEY DOUGLAS TIPTON
AND MARY E. TIPTON:
DANIEL WEBSTER HARMON AND
MARY JANE HARMON
Petitioners,
J
UNITED STATES OF AMERICA
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
REPLY BRIEF
IN SUPPORT OF PETITION
BRENT M. ROSENTHAL
= COUNSEL OF RECORD
CHARLES S. SIEGEL
BRIAN D. WEINSTEIN
BARON & BUDD
8333 Douglas Avenue
10th Floor
Dallas, Texas 75225
(214) 369-3605
——_
TABLE OF CONTENTS
Page
Re ee ee i
nh eh ie eek a bie cceae een ii
I. THIS CASE IS NOT GOVERNED BY VARIG. ... 2
Il. SINCE POLICY JUDGMENT WAS NOT !M-
PLICATED THE RULING CANNOT STAND. ... 3
Jee ehek cae hh’ 665 eRe eee ae One's’ bes 6
Conclusion
TABLE OF AUTHORITIES
Page
Cases:
Berkovitz v. United States, No. 87-498 (June 13,
| Ae 3, 4,6
McMichael v. United States, 751 F.2d 303 (8th Cir.
\. .) PP 2,6
T.E. Ritter Corp. v. Rose, 200 Va. 736, 107 S.E.2d
GBS CIDSPD ow ccc cdeccccccesecvces eee 2
United States v. S.A. Empresa de Viacao Aerea Rio
Grandense , 467 U.S. 797 (1984) ...........00058:- 1,2
Westfall v. Erwin, U.S , 98 L.Ed.2d
GID (IDGSD . ww cc ccccccevcsecsdeeeeseee 5
Regulations:
U.S. Army Safety Manual - AMCR 385-100 ...... 3,4,6
IN THE
SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1988
No. 87-1929
MARK LYNN FORTNEY, et al.,
V.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
REPLY BRIEF
IN SUPPORT OF PETITION
The United States makes two arguments in its Memoran-
dum in opposition to the petition. First, it contends that this
case is controlled by United States v. S.A. Empresa de
Viacao Aerea Rio Grandense, 467 U.S. 797 (1984) (“Varig’’),
because safety at the Radford plant was primarily the con-
tractor’s responsibility. Second, while acknowledging that
violation of mandatory regulations remove a case from the
discretionary function exception, the Government asserts
that the regulations in question were not violated.
2
I. THIS CASE IS NOT GOVERNED BY VARIG.
Varig does not control this case, for here the Government
acted in a different capacity: as a proprietary owner of land,
rather than as a regulator of private conduct. In Varig, the
Federal Aviation Administration regulated and tested the
conduct of private manufacturers. Here, contrast, the
Government owns the Radford Army Ammunition Plant;
as the owner it retains duties to act, imposed by Virginia
tort law. T.E. Ritter Corp. v. Rose, 206 Va. 736, 107 S.E.2d
483 (1959). These are proprietary duties rather than regula-
tory rights.
This crucial distinction was recognized by the Eighth
Circuit, after Varig, in McMichael v. United States, 751
F.2d 303 (8th Cir. 1985), a case which involved identical
circumstances: the Government, as the-owner of land and
plant, contracting with a manufacturer for the production
of military equipment, and retaining a duty under local
law to effectuate safety measures. Id. at 306. Noting this
“important difference,” the court concluded that Varig’s
admonition against judicial scrutiny of regulatory decisions
was of less force in the Government-as-proprietary owner
situation.
Acknowledging that the pr sent case involves the Govern-
ment’s “failure to uncover” violations of its own regulations,
the United States nonetheless urges that negligence in “‘com-
pliance review” is shielded by Varig. This is precisely the
position squarely rejected in McMichael, the Fourth Circuit's
holding and McMichael stand in direct conflict. McMichael is
not discussed or cited by the Government, though the
conflict was raised in the Petition. -
Both cases involve Government safety inspectors at Gov-
ernment safety regulations. The conduct cannot be discre-
3
tionary at military plants in the Fourth Circuit but nondiscre-
tionary at plants in the Eighth Circuit. This Court must
resolve the confiict.
Il. SINCE POLICY JUDGMENT WAS NOT IMPLICATED
THE RULING CANNOT STAND.
The Government concedes that after Berkovitz v. United
States, No. 87498 (June 13, 1988), violations of safety
regulations take a case out of the discretionary function
exception because a Government actor could not make
policy judgment in the face of such regulations. The Govern-
ment contends, however, that the Army safety regulations
in question, AMCR 385-100 §20.4 and §12.33(g), were
not violated.
First, it plain and undisputed that §12.33(g) was indeed
violated. The regulation (reproduced at p. 5 of the Petition)!
explicitly requires for nitrocellulose dehydration operations
a fire protection system capable of delivering water in 50
milliseconds, yet it was agreed at trial that the system in use
took three times as long to flow.
Second, the finding below that §20.4, which prescribes
the type of container to be used, was not violated is patently
wrong. That the lower courts inexplicably found nonconduc-
tive tubs to be “embraced” by a regulation which does not
list nonconductive tubs as a permissible choice does not make
it so, any more that the nerovirulence criteria in the regula-
tion at issue in Berkovitz “embrace” test results different
from those explicitly required. This Court should find that
1. As with §20.4, the other regulation, the word “should” is manda-
tory by virtue of §1.3(b) (reproduced at p. 3-4 of the Petition), unless
a waiver is secured. No such waiver was ever sought or obtained, and
the Government does not dispute this fact.
4
black is black, even if the lower courts have held that black
is white.2
More fundamental, however, is the bedrock inquiry of
this case: was the decision between a nonconductive and a
conductive tub a policy choice? Were economic, social, or
political choices being made? Was this an electrical engineer-
ing decision that ought not be judicially second-guessed?
The Government argues in footnote 5 of its Memoran-
dum that if the finding of no violation is upheld, then the
exception applies. While Berkovitz holds that violations of
regulations vitiate the exception, no court, has ever held that
negligence is actionable only if a plaintiff can point to a
specific violation; the question is whether policy is being made.
The Government's suggested ground for affirmance—no
violation—conflicts directly with United States Fire Ins. Co.
vy. United States, 806 F.2d 1529 (11th Cir. 1986), which
involved Coast Guard negligence in maintaining wreck
markers. The relevant manual of procedures listed various
methods of performance. In holding that the choice of a
listed method did not shield the Government from liability
if that choice was negligent, the Eleventh Circuit recognized
that the mere listing of an alternative is unavailing if its
choice “is not required by a policy directive from above.”
Id. at 1537. Similarly, even if §20.4 somehow “embraces”
nonconductive tubs as a choice, their selection is actionable
because policymaking did not enter into the decision.
2. The Government cites portions of the trial transcript, not before
this Court, and argues that “expert testimony” showed that §20.4
was not violated. The Government does not reproduce the testimony,
and neglects to acknowledge that the Government's main expert at
trial conceded on cross-examination that the regualtion was violated.
C.A. App. at 564-65.
5
In the closely analogous field of individual immunity,
this Court recently rejected an identical argument by federal
officials. Westfall v. Erwin, US. , 98 L.Ed.2d
619 (1988) involved a suit by a civilian federal employee
against Army depot officials for negligence in causing him
to inhale soda ash. The officials contended that if “precise
conduct is not mandated by law, then the act is ‘discretion-
ary’ and the official is entitled to absolute immunity. .. .”
Id. at 627. This Court, however, rejected “such a wooden
interpretation of the discretionary function requirement.
Because virtually all official acts involve some modicum of
choice, petitioner’s reading of the requirement would render
it essentially meaningless.” Id.
This Court recognized that such an arbitrary focus would
ignore the real purpose of the immunity doctrine—whether
the prospect of tort liability will detrimentally inhibit federal
officials’ judgment. Similarly, focusing on whether the
conduct challenged in a Federal Tort Claims Act suit is
covered by a mandatory regulation ignores the real ijjue—
whether that conduct implicates policy concerns.
Berkovitz makes clear that if the challenged decision
involves the “application of objective scientific standards”
rather than “policy judgment,” slip op at 13, the exception
does not apply. Here only science was involved—not public
policy. There is no principled way to call neurovirulence
criteria review “discretionary,” and a decision that noncon-
ductive tubs are smarter than conductive tubs “‘discretion-
ary.” If a regulation was violated, policy could not have been
involved. The absence, however, of a regulation does not
make a garden-variety engineering choice a policy decision.
The Government has never pointed to, and the lower
courts did not identify, a single social, economic, or political
6
consideration in the facts of this case. Nowhere in the hun-
dreds of pages of testimony or in the Army or Hercules
post-explosion investigations is any policy factor mentioned.
The Government’s own safety director negated any such
possibility in testifying that AMCR 385-100 is “the Bible,”
that he has no discretion to change the regulations, that he
“can’t formulate [his] own policy,” and that the Govern-
ment safety staff at Radford surveys each operation in its
entirety and may “take as much time as necessary to do a
good job.” (C.A. App. 575, 577-78, 598).
CONCLUSION
No policy decision has ever been identified by the Govern-
ment’s decision to let Building 3507 proceed with noncon-
ductive rather than conductive tubs. Whether or not they are
specifically “embraced” by regulations, the choice of one
set of tubs over another is no different from the kind of
official judgment held fully actionable in Berkovitz. Conduct
identical to that herein has been held actionable by another
court of appeals. The ruling below cannot coexist with
Berkovitz and McMichael.
5
WHEREFORE, PREMISES CONSIDERED, Petitioners
pray that a writ of certiorari issue to review the decision-ef
the United States Court of Appeals for the Fourth Circuit.
Respectfully submitted,
BARON BUDD
A Professional Corporation
8333 Douglas Avenue
10th Floor
Dallas, Texas 75225
(214) 369-3605
BY: Been AW MiatiLt ser
BRENT M. ROSENTHAL
-AND-
sv: Atehea i”
CHARLES S. SIEGEL
-AND-
BY: / &
RIAN D. WEINSTEIN
SUPPLEMENTAL
BRIEF
NO. 87-1929 W)
US
EILED
OCT S 1988
IN THE ly me
Supreme Court of the United States
OCTOBER TERM, 1988
MARK LYNN FORTNEY;
ESLEY DOUGLAS TIPTON
AND MARY E. TIPTON;
DANIEL WEBSTER HARMON AND
MARY JANE HARMON
Petitioners,
Vv.
UNITED STATES OF AMERICA
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SUPPLEMENTAL MEMORANDUM
IN SUPPORT OF PETITION
BRENT M. ROSENTHAL
COUNSEL OF RECORD
CHARLES S. SIEGEL
BRIAN D. WEINSTEIN
BARON & BUDD
8333 Douglas Avenue
10th Floor
Dallas, Texas 75225
(214) 369-3605
SUPPLEMENTAL MEMORANDUM
IN SUPPORT OF PETITION
The above case is before this Court on Petition for a writ
. of certiorari to the Fourth Circuit. The issue is the validity of
Sh ; a the court of appeals’ holding that Petitioners’ claims against
; re , the United States are barred by the discretionary function
- | PCS EL ae ae a . exception to the Federal Tort Claims Act, 26 U.S.C. §
7
-
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| a The Eighth Circuit has now reevaluated the claims in
ME Rk E es LP yo % Sept an McMichael in light of Berkovitz, and again found them to be
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aL l, 2 | | outside the discretionary function exception. McMichael v.
MANGE Es. ee p he ee . 4) is ay e . Ree. United States, ____ F.2d, No. 87-1634 (8th Cir., Aug. 25,
FETE oS Fes / . i 1988) (WESTLAW printout attached as Appendix). The
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2
court again concluded that the broad initial decision to
delegate primary safety responsibility to the contractor was
insulated from liability. Failure to enforce compliance with
regulations embodying policies previously determined,
however, is actionable:
In the case before us, as in Berkovitz, the
initial discretion granted by the regulations to
the Defense Department was broad; the in-
spectors, however, violated the Department’s
own policy directives by failing to comply
with specific procedures mandated by the
Defense Department. The procedures directed
the inspectors to make sure that Celesco
complied with numerous safety requirements
at the plant... . Thus, although Celesco
had the authority to evacuate the plant, the
Department policy prescribed a course of
action for the inspector to follow in the event
of any electrical storm, and the inspector had
no choice but to adhere to that directive.
Hence, the discretionary function is not
applicable.
Id. at 6.
Military inspectors checking for safety compliance are not
formulating public policy. McMichael is indistinguishable
from the present case, and the Eighth Circuit has held that
claims concerning enforcement of safety regulations at
military production plants are not barred by the discretion-
ary function exception. The challenged conduct cannot be
discretionary at plants at the Fourth Circuit but nondiscre-
tionary at plants in the Eighth Circuit. This Court must
resolve the conflict.
3
WHEREFORE, PREMISES CONSIDERED, Petitioners
pray that a writ of certiorari issue to review the decision of
the United States Court of Appeals for the Fourth Circuit.
Respectfully submitted,
BARON & BUDD, P.C.
8333 Douglas Avenue
10th Floor
Dallas, Texas 75225
(214) 369-3605
BrawT UM
BRENT M. ROSENTHAL
Counsel of Record
CHARLES S. SIEGEL ;
Bran 2 MyeceTin po ce
BRIAN D. WEINSTEIN
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore-
going was mailed this 4th day of October, 1988, to all
BrewD MU Kort Lbel yc
BRENT M. ROSENTHAL
APPENDIX
Citation Rank (R) Database Mode
---F.2d-. -- R 14 OF 24 ALLFEDS P
1988 WL 87872 (8th Cir. (Ark.))
Carl McMICHAEL,
Administrator of the Estate of Emma McMichael, Deceased,
Appellee,
v.
UNITED STATES of America,
Appellant
Insurance Company of North America,
° (Intervenor Below).
Mrs. Lamar BARTLETT;
Winfred Lowe, Administrator of the Estate of Thelma Lowe;
Mrs. Edna Rogers; Mrs. Flora Weaver; and Mrs. Georgia Ray,
Appellees.
Vv.
UNITED STATES of America,
Appellant,
Insurance Company of North America,
(Intervenor Below).
Leonard MADISON,
Administrator of the Estate of Lula Mae Madison, Deceased,
Appellee,
Wo -
UNITED STATES of America,
Appellant,
Insurance Company of North America,
(Intervenor Below).
al 2a
Gertie B. MITCHELL,
Administratrix In Succession of the Estate of Eliza Walker,
Deceased,
Appellee,
Ve
UNITED STATES of America,
Appellant,
Insurance Company of North America,
(Intervenor Below).
Billy Dwayne MOODY,
Administrator of the Estate of Geraldine Moody, Deceased,
Appellee,
v.
UNITED STATES of America,
Appellant,
Insurance Company of North America,
(Intervenor Below).
Willie D. KELLY,
Administrator of the Estate of Shirley J. Kelly, Deceased,
Appellee,
Ve
UNITED STATES of America,
Appellant,
Insurance Company of North America,
(Intervenor Below).
3a
Billy HARRISON,
Administrator of the Estate of Elsie Marie Harrison,
Deceased,
Appellee,
v.
UNITED STATES of America,
Appellant.
James STANCILE, Administrator of the Estate of
Lula Mae Madison, Deceased,
Appellant,
Gertie B. Mitchell,
Administratrix In Succession of the Estate of Eliza Walker,
Deceased,
Appellant,
. Willia H. Moody,
Admin «trator of the Estate of Geraldine Moody, Deceased,
Appellant,
Willie D. Keliy,
Administrator of the Estate of Shirley J. Kelly, Deceased,
Appellant,
v.
UNITED STATES of America,
Appellee,
Highland Resources, Inc.,
Appellee.
Nos. 87-1634 to 87-1640, 87-1707.
COPR. (C) WEST 1988 NO CLAIM TO ORIG.
U.S. GOVT. WORKS
4a
United States Court of Appeals,
Eighth Circuit.
Submitted Jan. 11, 1988.
Decided Aug. 25, 1988.
Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior
Circuit Judge, and MAGILL, Circuit Judge.
JOHN R. GIBSON, Circuit Judge.
The United States Department of Defense contracted with
Celesco Industries, Inc., an independent contractor, to
produce explosive photo-flash cartridges. On March 8, 1976,
an explosion occurred at the Celesco plant in East Camden,
Arkansas, killing seven employees, seriously injuring five,
and causing minor injuries to numerous others. Consolidated
cases were filed against the United States under the Federal
Tort Claims Act (FTCA), 28 U.S.C.A. ss 1346, 2671-2680
(1982) and Highland Resources, Inc. under state law, the
owner and lessor of the building where the explosion occur-
red. The government appeals from the district court’s [FN1]
award of damages to the injured or killed employees, arguing
that the court erred in ruling that the claims were not barred
by the discretionary function exception to the FTCA and in
holding thai the government was negligent in failing to
enforce safety standards at the plant. The employees cross-
appeal, contending that the district court erred in ruling that
Highland Resources was not liable under Arkansas products
or strict liability statutes, or common law principles of
negligence. For the reasons set forth below, we affirm.
This case is before us for the third time. The factual
background is outlined in our first opinion, Madison v.
United States, 679 F.2d 736, 737-38 (8th Cir. 1982), and the
procedural and appellate history is set forth in our second
opinion, McMichael v. United States, 751 F.2d 303, 304-05
Sa
(8th Cir. 1985). [FN2} After a bench trial in January 1986
the district court made factual, findings, which we recite
below.
On June 20, 1975, the United States awarded Celesco a
contract to produce highly explosive photo-flash cartridges.
Before submitting the bid, the government required Celesco
to secure a manufacturing facility. Celesco leased a former
naval ammunition plant in East Camden, Arkansas from
Highland Resources, a commercial lessor. Celesco, an ex-
perienced munitions manufacturer, had leased other buildings
for similar purposes and had special knowledge of the con-
struction requirements for buildings to be used in the pro-
duction of munitions. Highland, on the other hand, did not
possess such special knowledge.
Before awarding the contract to Celesco, the Defense
Department required the Safety Manager of the Defense
Contract Administrative Services Region (DSCAR) to review
Celesco’s safety procedures, processes, facility and personnel
to determine whether Celesco could comply with the Depart-
ment of Defense safety requirements. The survey concluded
that Celesco and the facility complied with the department
guidelines. It developed at trial, however, that the Safety
Manager did not conduct an on-site evaluation of the plant
at the time of the survey.
The contract between Celesco and the government re-
quired Celesco to promulgate safety provisions and comply
with safety standards established by the Department of
Defense Contractor's Safety Manual for Ammunition, Explo-
sives and Related Dangerous Materials (DOD Manual) and
the provisions of the Armed Services Procurement Regula-
tions. See 32 C.F.R. s 7.104-79 (1984). These requirements
and standards were incorporated into the contract. The
contract delegated primary responsibility for safety to
6a
Celesco, and Celesco hired a full-time safety staff, headed by
a safety engineer. Pursuant to the contract terms, the govern-
ment provided Celesco with three on-site quality assurance
representatives, or iispectors. One inspector was placed in
Building M-35, the building where the explosion occurred,
on a full-time basis. Although the primary responsibility of
the inspector was to oversee Celesco’s compliance with the
quality requirements of the contract, safety review was also
an integral part of his assigned tasks. The inspectors’ regular
procedures included a fifty-one step procedures review
checklist for safety compliance. The Armed Services Procure-
ment Regulations and the Celesco contract gave the inspec-
tors the authority to require on-the-spot corrective action,
and the contracting officer was authorized to cease produc-
tion by withdrawing government inspectors until the safety
violations were corrected. [FN3]
The district court found a number of conditions at the
Celesco plant did not comply with the safety requirements of
the contract. For example, the lightning protection system
was inadequate and there was no humidity control in Bay 4
of Building M-35, where the explosion occurred. Water was
present in an area where detonation was likely to occur.
(Moisture, in the form of water or humidity, is an initiating
force for the photo-flash). Despite a sign directing that the
steel blast doors to Bay 4 remain shut at all times, the doors
were constantly left open. The open doors allowed the blast
to spread down a hallway, where all but one of the killed or
injured employees were at the time of the explosion. In
addition, although there was conflicting testimony concern-
ing the precise amount of the photo-flash in Bay 4, by any
account the amount exceeded the limit approved by the
government. [FN4] Shortly before the explosion, the Build-
ing M@S government inspector informed Celesco’s line
supervisor that Bay 4 was overloaded. There was also testi-
mony that defective loaded components, or “rejects,” were
7a
stored in Bay 4, contrary to the safety requirements of
the contract. Finally, the Department of Defense manual
required evacuation of personnel in the event of an electrical
storm, and the district court found that although on the
morning of March 8, 1976, there was rain, thunder and
lightning in the East Camden area, no evacuation of the plant
was ordered. An explosion occurred in Building M-35,
killing and injuring numerous employees.
The district court found that the government was negligent
in failing to enforce the safety stand
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