# Record and brief — Fortney v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1409%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1988 - **Citation:** 488 U.S. 882 ## Text DOCKET ° Sd Last page of dociet d 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 “ ! ; i ‘ * ‘ — . i a e- ; ’ PETITION FOR WRIT OF CERTIORARI MAY 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. oe ee : : ' e : 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 se © aga ip: attr tyson fe pags Hifi: HEE ite ga5E2= peuiht 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 : ey. ¥ Pp vig Soe a ; % ite Side 2 ' ‘Léa. Grok re ’ “, a4 J ‘> ” B: - ‘ ' ” a - \- f b - | 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 ere B: “ ¢ v. 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 « : Ws ru | od y Fe oe ee - . Vices een sete baa yee by = “ tos - > 7 epee oe tat ‘a7 “fs , . TEs ee rs 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 standards incorporated in its contract with Celesco. Specifically, the court ruled that the government inspectors were negligent in failing to order an evacuation until the storm passed and that this was the proximate cause of the employees’ injuries. The court also concluded that the lessor of the Celesco Plant, Highland Resources, Inc. was not liable on any of the theories ad- vanced by the employees and dismissed the counts against them. The government first argues that the action is barred by the discretionary function exception*to the FTCA, 28 U.S.C. 2680(a) (1982), and that the district court erred in refusing to consider whether the exception applied. For purposes of the government's motion for summary judgment, the parties entered into a stipulation of fact, which was before, and substantially relied upon by, this court in our earlier decisions. See McMichael, 751 F.2d at 305; Madison, 679 F.2d at 738 n. 3. The essence of the stipulation was that the contract imposed numerous mandatory safety standards on Celesco, but that the government, despite its “three onsite assurance inspectors,” failed to enforce Celesco’s compliance with those standards and thereby caused plantiffs’ injuries. {FNS} The government expressly reserved the nght to Sa contest all assertions set forth im the stipulation at trial. [FN6] After this court affirmed the district court's ruling that the discretionary function exception did not bar the employees clarm and remanded the case for tral, McMichael. 7S) F.2d at 310. the government moved to vacate the stipulation. alleging that the stipulation was “fragmented” and “flawed ~ Although the district court vacated the stipula- ton. the cowrt ruled that it was bound by this court's rulings i> Madson and McMichael! that the discretionary function exception did not apply in wew of the facts developed at tnal the government contends that the dmscretionary func- hon excephon apphes and accordingly the dustrnct court was without subject matter jurisdiction See KW Thompson Tool Co. Inc » United States. 836 F 2d 721. 726 0. 3 (ist Cor }ORR) ft ws true that the district court did not reconmder whether the dmcretonary functor applied However the sourt dud make extenawe finding of fact which bear upon the eee and @ amy event. we rewiew de nowo the applica porn of the duscrenonarny funchorn exception See Berkovitz ~ Unered States 108 SCY 1954 (1988). MecBfichaeei, 75! F ld at 30D wee also Starret + United States. 847 F ld ‘30 Sa!) (oth Cir (ORR) (owe rewrew de nowo «6 district _ourt © ¢etermmathor that \ lecks astyect matter punsdicthor under the dacretonary functor excephor”) Thus. the ssuce before at & whether the United States & exempt from PTCA Wability because the act of negligence found by the @etrct cowrt represent the ewercese of performance of treecreforarn functhonms under sector 1680ta) A The FTCA authorizes suits for damages against the United States for “Wwalery or tome of property. or persona! myury or jeath caweed Oy the ceghger’ of erongfu! act or ommmpor ~ any emoplewee of the governmen!t efile acting either the scope of fe office oF emptow™mert ender crcumstances 9a — where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”’ 28 U.S.C. s 1346(b). In such suits, the United States is liable in the same manner and to the same extent as a private individual under like circumstances. 28 U.S.C. s 2674. Suit is not allowed, how- ever, for “{a]ny claim * * * based upon the exercise or performance or the failure to exercise or perform a discre- tionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discre- tion involved be abused.”’ 28 U.S.C. s 2680(a). After both the trial in this case, and briefing and oral arguments on appeal, the United States Supreme Court issued its decision in Berkovitz v. United States, 108 S.Ct. 1954 (1988), clarifying the scope of the FTCA discretionary function exception. — The Court reiterated that “it is the nature of the conduct, rather than the status of the actor, that governs whether'the discretionary function exception applies.” Berkovitz, 108 S.Ct at 1958 (citing Varig Airlines, 467 U.S. at 813). In examining the nature of the challenged conduct, we are wmstructed to first consider whether the action is a matter of chose for the acting employee; conduct cannot be discre- onary unless it involves an element of judgment or choice. See Dalehite v. United States, 346 U.S. 15, 34 (1953). Thus, the exception is not applicable when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. Berkovitz, 108 S.Ct. at 1958-59. If the challenged conduct does, however, involve an element of yudgment, we must then determine whether that yudgment is of the kind that the discretionary function exception was designed to shield As stated in Varig Airlines, the bass for the exception was Congress’ desire to “prevent 10a judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” 467 U.S. at 814. Thus, the exception protects only governmental actions and decisions based on considerations of public policy. Berkovitz, 108 S.Ct. 1959 (citing Dalehite, 346 US. at 36). The Court examined Berkovitz’s allegation that the Bureau of Biologics of the Food and Drug Administration (FDA) wrongfully approved release to the public a contaminated polio vaccine lot, looking first to the regulatory framework governing release of vaccine lots. The regulations required the vaccine manufacturers, not the FDA, to examine all lots before distribution to ensure compliance with regulatory standards. The regulations empowered, but did not require, the FDA to examine and prevent the distribution of non- complying losts. The Court concluded that the regulatory scheme was substantially similar to the scheme in Varig Airlines, because the regulations allowed the Bureau to determine the appropriate way to regulate the release of vaccine lots, rather than mandating certain kinds of agency action. Berkovitz 108 S.Ct. at 1963-64. See Varig Airlines, 467 US. at 804-07. In this regulatory context, the Court held that the discretionary function exception barred any claim challenging the Bureau’s formulation of policy as to the appropriate way in which to regulate the release of vaccine lots, and any claim challenging the officials in exercis- ing any discretion the policy itself allowed for. Berkovitz, 108 SCt. at 1964. The Court based these rulings on Varig Airlines, in which it had earlier held that the Federal Aviation Administration’s decision to review aircraft design and manu- facture for compliance with FAA safety regulations through a certification process—involving a spotcheck of the manu- facturer’s work—was a discretionary, function; and that the FAA employees’ execution of the spot-check program was discretionary. 467 U.S. at 819-20. The Court further held that the exception did not apply to the Bureau's acts implementing that policy which did not involve the permissible exercise of policy discretion. Berkovitz, 108 S.Ct. at 1964. The latter type of claim was precisely the claim asserted by Berkovitz. Berkovitz alleged that under the authority of the regulations, the Bureau adopted a policy of testing all lots for compliance with safety standards and preventing distribution to the public of any noncomplying lots, and that notwithstanding this policy, the employees knowingly approved release of a noncomplying lot. The Court ruled that this claim was directed at governmental action that involved no policy discretion, and thus the exception could not apply. [FN7] Id. » Berkovitz controls our decision in this case. Certainly, the Defense Department's decision to entrust Celesco with the primary responsibility of ensuring that it complied with safety regulations and supervising plant safety involved the permissible exercise of policy judgment and is protected by the discretionary function exception. Cf. Berkovitz, 108 S.Ct. at 1964 (discretionary function exception barred any claim challenging the Bureau's formulation of policy as to the appropriate way in which to regulate the release of vaccine lots); Varig Airlines, 467 U.S. at 819-20 (same with respect to the FAA's formulation of policy about how to regulate airplane safety). So, too, are any of ‘he policy judgments made by officials in implementing “he PDetense Department's policies and programs. Berkovitz, (O08 S.Ct. at 1964; Varig Airlines, 467 U.S. at 820. However, as discussed, the discretionary function ex- ception does not apply to acts which do not involve the permissible exercise of discretion. Berkovitz, 108 S.Ct. at 1964. In the case before us, as in Berkovitz, the initial discre- tion granted by the regulations to the Defense Department 12a was broad: the inspectors, however, violated the Depart- ment’s own policy directives by failing to comply with specific procedures mandated by the Defense Department. The procedures directed the inspectors to mak [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1409%3A0. Public record. Not legal advice.