Petition for Writ of Certiorari — United States Fidelity & Guaranty Co. v. United States

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Sanne Court, Bg,

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APR 14 1988

JOSEPH F. SPARK, ue,

CLERK

NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1987

UNITED STATES FIDELITY & GUARANTY COMPANY

Petitioner

Vs.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Jonathan E. Butterfield, Esquire

Counsel for Petitioner

LIEBERT, SHORT,

FITZPATRICK & HIRSHLAND

One Executive Plaza, Suite 400

330 Pine Street

Williamsport, PA 17701

(717) 326-9091

NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1987

UNITED STATES FIDELITY & GUARANTY COMPANY

Petitioner

VS.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Jonathan E. Butterfield, Esquire

Counsel for Petitioner

LIEBERT, SHORT,

FITZPATRICK & HIRSHLAND

One Executive Plaza. Suite 400

330 Pine Street

Williamsport, PA 17701

(717) 326-9091

QUESTIONS PRESENTED

1. Does the discretionary function exception to the

Federal Tort Claims Act immunize the United States from

liability for damages incurred as a result of negligence in its

day-to-day operations at a hazardous waste clean-up site?

2. Is the absence of any consideration by a government

employee of economic. social or political policy irrelevant

to a Court's determination of the applicability of the discre-

tionary function exception to the Federal Tort Claims Act?

LIST OF PARTIES

All parties are listed in the caption. Petitioner, United

States Fidelity & Guaranty Company. has no parent com-

pany. subsidiary. or affiliate which must be listed pursuant

to Rule 28.1

7

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TABLE OF CONTENTS

Page

ee ee I ooo oon ee ee i

Re Pee FTE ee errr? 1

I Sm nc ay vgn pele a ee ee ee 1

I IN oo eo cae yeu ona e ree eee 2

re Oe 5 ob coy Ra ee 2

Reasons tor (arming Gie Wat ois oe sa 6

I. The Third Circuit's analysis of the discretionary fun-

tion exception conflicts in principle with that of other

Circuits 6

A. Relevance of the Government Actor's Actual

Consideration of Policy 7

B. Allocation of Finite Governmental Resources 10

C. Planning/Operation Dichotomy 11

Il. The decision below, immunizing the government

from liability from its operational negligence in

connection with the chemical waste disposal project.

raises important and potentially recurrent problems]?

Comment on. kaise eee eee 16

i

TABLE OF AUTHORITIES

Cases Page

Alabama Electric Cooperative. Inc. v. United States, 8, 9

769 F. 2d 1523 (1985)

Allen v. United States, 816 F. 2d 1417 8

(10th Cir. 1987)

Brown v. United States. 790 F. 2d 199 ak, iz

(1st Cir. 1986)

Caraballo v. United States. 830 F. 2d 19 12

(2d Cir. 1987)

Collins v. United States. 783 F. 2d 1225 13, 15

(5th Cir. 1986)

In re Consolidated United States Atmospheric 8

Testing Litigation. 820 F. 2d 982

(9th Cir. 1987). cert. denied

sub nom Konizeski v. Livermore Labs.

US. . 108 S. Ct. 1076.

L. Ed. 2d (1988)

Dalehite v. United States. 346 U.S. 15. 6.7.11

73 S. Ct. 956, 97 L. Ed. 1427 (1953)

Denham v. United States. 834 F. 2d 518 10. 12

(5th Cir. 1987)

Eklof Marine Corps v. United States. 10.11.12

762 F. 2d 200 (2d Cir. 1985)

Fonester v. White. US. 45

108 S. Ct. 538, 98 L. Ed. 2d 555 (1988)

Indian Towing Company v. United States.

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

Myslakowski v. United States. 806 F. 2d 94

(6th Cir. 1986), cert. denied U.S.

107 S. Ct. 1608, 94 L. Ed. 2d 793 (1987)

Payne v. United States. 730 F. 2d 1434

(11th Cir. 1984)

Rayonier. Inc. v. United States, 352 U.S. 315,

77 S Ct. 374.1 L Ed. 22 354 (1957)

Smith v. Johns Manville Corp., 795 F. 2d 301

(3d Cir. 1986)

United States v. S.A. Empresa De Viacao

Area Rio Grandense (Varig Airlines).

13

&. 7, 8a ae

467 US. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984)

United States v. Union Trust Company. 350 U.S. 907.

76S Ct 192.100 L. Ed 796 (1955)

Westfall v. Irwin. US. ;

108 S. Ct. 580. at 583, 98 L. Ed. 2d 619 (1988)

Statutes

28 USC. §1346(b)

28 USC. §1254(1)

28 USC. §2674

28 USC §2680

42 USC §9601-9657

13

15

NOM NM eK Mh

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1987

UNITED STATES FIDELITY :

& GUARANTY COMPANY,

Petitioner * NO.

VS. ..

UNITED STATES OF AMERICA, °

Respondent x

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, United States Fidelity & Guaranty Company

repectfully prays that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Third Circuit, entered in the above-entitled

proceeding on January 15, 1988.

OPINIONS BELOW

The opinion of the Court of Appeals for the Third

Circuit is reported at 837 F. 2d 116 and is reprinted in the

appendix hereto, page 1a infra.

The opinion of the United States District Court for the

Middle District of Pennsylvania (Muir, D.J.) is reported at

638 F. Supp. 1068 and is reprinted in the appendix hereto,

p. 17a infra

JURISDICTION

Invoking federal jurisdiction under 28 U.S.C. § 1346(b),

the Petitioner brought this suit in the Middle District of

Pennsylvania. On November 17, 1986, the District Court

entered final judgment in favor of the Petitioner and against

the United States, awarding damages in the amount of

$91,374.75. On January 15, 1988, the Third Circuit

entered a judgment and opinion reversing the District

Court's judgment. No petition fer rehearing was sought.

The jurisdiction of this Court to review the judgment

of the Third Circuit is invoked under 28 U.S.C. §1254(1).

2

STATUTES INVOLVED

28 U.S.C. §2674. Liability of the United States.

The United States shall be liable, respecting the provi-

sions of this title relating to tort claims, in the same manner

and to the same extent as a private individual under like cir-

cumstances, but shall not be liable for interest prior to

judgment or for punitive damages...

28 U.S.C. §2680 Exceptions.

Provisions of this Chapter and § 1346(b) of this title [28

U.S.C. §1346(b)] shall not apply to --

(a) any claim based upon an act or omission of an

employee of the government, exercising due care in the

execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the

exercise or performance or the failure to 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.

STATEMENT OF THE CASE

Drake Chemicals, Inc. operated a chemical manufactur-

ing facility in Lock Haven, Pennsylvania, from 1961 until

the company went bankrupt in 1981. When Drake ceased

operations, it abandoned its manufacturing site, leaving

numerous chemical drums, tanks, and reactors behind. The

Pennsylvania Department of Environmental Resources

inspected the Drake site and determined that the site posed

a threat to the public health and to the environment. After

attempting unsuccessfully to have Drake clean up the site,

the Department requested the Environmental Protection

Agency (EPA) to undertake a clean-up operation. In Feb-

ruary, 1982, the EPA approved the Drake site for an

“immediate removal action” pursuant to its authority under

the Comprehensive Environmental Response Compen-

sation and Liability Act of 1980, 42 U.S.C. §9601-9657

(1982) (CERCLA). The EPA’s clean-up operation at the

Drake site was directed by an on-scene coordinator, an EPA

employee, who selected OH Materials Handling Company

3

(OH Materials), a private chemical clean-up specialist, as

the prime cortractor, and numerous other EPA emplovees,

remained at the Drake site throughout the clean-up oper-

ation. Pursuant to the terms of the contract between the

EPA and OH Materials, and through the presence of EPA

employees on site, the EPA retained responsibility and

control for determining what work would be done, the

scheduling of that work, the means and methods employed

in disposing of waste, and the expenditures of OH Materials

for material and manpower. The EPA retained the respon-

sibility for public safety in connection with the operations

on site, and directed and monitored the activities of OH

Materials and other contractors on site.

One of the most serious hazards at the Drake site was an

old railroad tank car, resting on raised concrete pedestals,

and containing oleum, a form of concentrated sulfuric acid,

which is extremely reactive with a wide range of compounds,

including water. At the commencement of the clean-up

operation, the oleum tank was venting directly into the

atmosphere. The EPA was aware that the neutralization of

the oleum tank posed a potential danger to the public

inherent in the work, unless special precautions were taken.

OH Materials initially recommended that the tank be

removed from its pedestals and transferred to a remote

location, or, alternatively, placed on the ground at the rear

of the Drake site prior to neutralization and removal of the

oleum. This recommendation was rejected by the EPA. OH

Materials then suggested neutralizing the oleum in the tank

by slowly draining all of the liquid oleum from the tank

through a valve at the bottom of the tank into a container of

water, allowing the oleum to react with the water in a con-

trolled fashion. The remaining sludge inside the tank would

then be neutralized by slowly adding water to the tank.

Following the completion of the chemical reaction, the

neutralized sludge would be drained. The EPA’s on-scene

coordinator approved this plan.

On March 4, 1982, a hydrogeologist employed by the

4

Commonwealth of Pennsylvania issued a report recom-

mending that the more hazardous operations at the Drake

site, such as those involving the oleum, should be done ona

sunny day with a north wind in excess of 3 knots. The

reason for this recommendation was that the City of Lock

Haven, with a population of approximately 15,000. is

situated immediately to the north, west, and northeast of

the Drake site, while areas to the south, southeast, and east

of the site are sparsely populated. The on-scene coordin-

ator was on notice of the hydrogeologist’s report prior to the

neutralization of the oleum tank.

On March 15, 1982, while the oleum was being drained

from the tank through the bottom valve, a nut loosened and

an uncontrolled flow of oleum, of approximately one quart

to one gallon, dropped into the water tub below the tank.

OH Materials personnel immediately tightened the valve,

stopping the flow of oleum into the tank. However, the

oleum hitting the water produced a dense acid cloud, which

migrated off site, causing respiratory distress to five Pennsyl-

vania Department of Transportation workers working in

the City of Lock Haven. After this incident, the on-scene

coordinator instructed OH Materials to continue neutral-

ization of the oleum in the manner originally approved.

Eventually all liquid contents of the tank were drained.

OH Materials then, at the direction and with the approval of

the on-scene coordinator, began adding water to the tank,

to neutralize the sludge. The product was then drained

through the valve at the bottom of the tank. On March 23,

1982, the valve became clogged with sludge, and with the

knowledge and approval of the EPA, OH Materials in-

serted rods through the manway at the top of the tank.

seeking to clear the valve. Following the insertion of the

rods, a steam explosion occurred in the tank, and a large

acid cloud shot out of the manway. Blown by south-

southwest winds, the acid cloud migrated into Lock Haven,

causing property damage to over 500 motor vehicles, an

airplane, and several buildings. Following the March 23

S

incident, the EPA’s on-scene coordinator ordered that

operations on the Drake site prone to the release of vapors

would take place. henceforth, only when winds were

blowing away from the city.

United States Fidelity & Guaranty Company (U.S.F. &

G.), the insurer for OH Materials, paid and settled all of the

claims of the public arising out of this March 23 incident.

U.S.F. & G. then filed an administrative settlement claim

with the EPA. which was denied. U.S.F. & G. then filed this

suit against the United States on September 20, 1984.

seeking recovery of its losses. The United States filed its

Motion to Dismiss or for Summary Judgment on the

grounds that the discretionary function exception to the

Federal Tort Claims Act barred liability. This motion was

denied by the District Court.

After trial, the District Court again concluded that the

discretionary function exception did not appry, stating

(pp33a-34a, infra):

Perhaps the United States could have ignored the

Drake site, but once it chose to clean-up the hazardous

waste there, its decisions regarding the procedures to be

followed were not of the nature and quality the Congress

intended to shield from tort liability. United States v.

S.A. Empresa De Viacao Area Rio Grandense (Varig

Airlines), 104 S. Ct. 2755 (1984). The United States

agrues that it cannot be held liable for any incidents which

occurred as a result of the initial decision to clean-up the

Drake site. The results of such a broad interpretation of

the discretionary function exception could lead to results

which Congress did not intend. The United States must

be held accountable for the acts of its workers who carry

out tasks on an operational level.

The District Court then concluded that the United

States, and OH Materials, had been negligent in conducting

the oleum neutralization operation without taking wind

conditions into account.

In conducting a clean-up of materials which would

6

explode and release hazardous chemicals into the air,

the entities responsible for the clean-up have the duty to

take all reasonable precautions so as to protect public

safety...

There is no evidence that the neutralization operations

would have been more dangerous had the addition of

water, draining the tank, and clogging of the valve, and

other procedures involved in the neutralization been

delayed so as to be performed on days with favorable

wind conditions. (pp. 39a-40a). infra

The District Court found the United States 60% res-

ponsible for the damage arising out of the March 23

incident, and OH Materials 40% responsible, and entered

judgment in favor of U.S.F. & G. for 60% of the damages

claimed, or a total of $91,374.75.

The United States appealed from this judgment, and,

on January 15, 1988, the Third Circuit entered an Opinion

and Order, reversing the District Court on the grounds that

the discretionary function exception to the Federal Tort

Claims Act immunized the government in this case. Accor-

ding to the Third Circuit,

It is irrelevant whether the government's employee

actually balanced economic, social, and political con-

cerns in reaching his or her decision. (p. 8a, infra)

.. The fact that there was no evidence of an actual

policy determination by the on-scene coordinator taking

wind conditions into account does not affect the nature

of the decision. (p. 14a, infra.)

The Third Circuit felt that the facts of this case were

sufficiently similar to Dalehite v. United States, 346 U.S.

15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953) as to mandate the

immunization of the government from liability for its

employee's negligence.

REASONS FOR GRANTING THE WRIT

I. The Third Circuit’s analysis of the discretionary

function exception conflicts in principle with that of

other Circuits.

7

The Circuit Courts of Appeals have differed in their

readings of the implications of this Court's decision in

United States v. S.A. Empresa De Viacao Area Rio Gran-

dense (Varig Airlines), 467 U.S. 797,104 S. Ct. 2755, 81 L.

Ed. 2d 660 (1984). The instant case illustrates how the

Third Circuit's post-Varig approach to the discretionary

function exception differs from that of other Circuits, in that

the Third Circuit views as irrelevant whether the gover-

nment action at issue actually was the product of consid-

erations of policy; the Third Circuit allows governmental

immunity when the government's lack of provision for

public safety is potentially explained by an allocation of

finite governmental resources; and the Third Circuit rejects

this Court’s decision in Indian Towing Company v. United

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

having any continuing relevance to discretionary function

analysis.

A. Relevance of the Government Actor’s Actual

Consideration of Policy.

The Third Circuit recognizes that the decision of this

Court in Dalehite v. United States, 346 U.S. 15, 73 S. Ct.

956, 97 L. Ed. 1427 (1953) distinguishes between plan-

ning level decisions and operational decisions (p. 10a

infra.). Planning levei decisions will always be discretionary

and immunized. On the other hand, some actions on an

operational level will be immunized, and others will not,

depending on whether the imposition of tort liability would

involve the Court in judicial second guessing of social,

political, and economic policy considerations bearing on

the operational act.

Acts at the operational level may be discretionary if

planning level orders anticipate decisions at lower levels

that leave room for policy judgment and decisions. (p.

11a infra.) -

The Third Circuit views the governmental actions at

issue in the instant case as being on the operational level.

and recognizes that the government presented no evidence

8

that its failure to take wind direction into account was

motivated by considerations of policy, citing

the fact that there was no evidence of an actual policy

determination by the on-scene coordinator taking

wind conditions into account (p. 14a infra).

However, the Court holds that

it is irrelevant whether the government employee act-

ually balanced economic, social and political concerns

in reaching his or her decision. (p. 8a infra).

Even though the specific operational act at issue was not

motivated by policy considerations, the Court is willing to

immunize the government since the action is susceptible to

a policy analysis. The Court bases this view on its previous

decision in Smith v. Johns Manville Corp., 795 F. 2d 301

(3d Cir. 1986) and decisions from other Circuits in

Myslakowski v. United States, 806 F. 2d 94 (6th Circuit

1986, cert. denied tls. , 107 S.Ct. 1608, 94

L. Ed. 2d 793 (1987); Allen v. United States, 816 F. 2d

1417 (10th Cir. 1987): In re Consolidated United States

Atmospheric Testing Litigation, 820 F. 2d 982 (9th Cir.

1987), cert. denied sub nom Konizeski v. Livermore Labs.

, Us . 108 S. Ct. 1076, L. Ed 2d

(1988).

In contrast to this analysis of the discretionary function

exception, the 11th Circuit, in Alabama Electric Cooper-

ative, Inc. v. United States, 769 F. 2d 1523 (1985) allows

for the imposition of liability against the government, based

on the government's failure to demonstrate that its oper-

ational actions were actually motivated by considerations

of social, economic or political policy. The Alabama Elec-

tric case concerned the erosion of downstream property

caused by the Army Corps of Engineers’ construction of

dikes in the Alabama River. The 11th Circuit there recog-

nizes that decisions concerning the design of a particular

Corps project could be based on considerations of social.

economic and political policy. entitling the government to

immunity:

9

We hold that where the Corps make a social, economic

or political policy decision concerning the design of a

particular project. that decision is excepted from judicial

review under § 2680(a). In the absence of such a policy

decision, the Corps’ design decisions are subject to

judicial review under the state law tort standards that

would normally govern an action for engineering mal-

practice. os

Alabama Electric Cooperative. Inc., supra. 769 F. 2d at

1536-1537.

The 11th Circuit distinguishes the Alabama Electric

Cooperative. Inc. case from its previous decision in Payne v.

United States, 730 F. 2d 1434 (11th Cir. 1984), noting that

in Payne, where the government was immunized by the

Court,

the Court did consider the fact that its actions would

likely cause erosion and encroachment in some areas.

In Payne, however, the Corps made a policy decision

not to determine precisely where the harm would occur,

and thus the propriety of that decision is not subject to

judicial review. In contrast, the District Court may find

on remand in this case either that the Corps never

considered the possibility that the dikes they planned to

construct might adversely affect the opposite river bank.

or otherwise made no policy decision not to determine

the harm to the opposite bank.

Alabama Electric Cooperative, Inc., supra, 769 F 2d at

1535 N. 7. (emphasis in original).

The 11th Circuit thus imposes on the government the

burden of demonstrating that its actions were motivated

by policy consideratons, in order to be entitled to immunity.

In contrast. the Third Circuit will immunize the government

based. not on the record before it, but on the Court's

capability for hypothesizing after the fact a policy consider-

ation which could have motivated governmental action.

Obviously, the Third Circuit approach will immunize the

government in more instances. While the Third Circuit's

10

concern, is, of course, with judicial interference in govern-

mental policy making, it is hard to see how judicial review

unduly restricts or intimidates the government employee, if

no policy consideration has actually taken place.

B. Allocation of Finite Governmental Resources

The Court hypothesizes the following policy rationale

for the on-scene coordinator’s failure to take wind direction

into account in scheduling the neutralization operation:

In this context. one would expect the scheduling

decision to reflect not only the available resources and

the other hazards to be neutralized on the site, but most

importantly. a balancing of the risks of proceeding with

the neutralization on the day chosen against the risks of

further delay. (p. 13a infra).

The Third Circuit’s grant of immunity is thus based. in part,

on the hypothesis, unsubstantiated by the evidence, that

the government's failure to take wind direction into account

could have been motivated by a policy concern with the

allocation of scarce governmental resources. Other Circuit

Courts have rejected the government's contention that a

failure to adequately insure public safety becomes an

immunized discretionary decision by potentially implicating

a policy question concerning the allocation of finite govern-

mental resources. In Denham v. United States, 834 F. 2d

518 (5th Cir. 1987), a case involving an injury resulting

from a dangerous condition in a federally owned swimming

area. the government contended.

The decision not to check the swimming area for under-

water hazards was itself discretionary and hence could

not be the basis for imposing liability under the FTCA.

We do not agree. The government's approach would

subsume practically any decision within the discretion-

ary function exception and thereby vitiate the FTCA.

Denham, supra, 834 F. 2d at 520.

Similarly, in Eklof Marine Corps v. United States, 762 F.

2d 200 (2d Cir. 1985), wherein the Court holds the govern-

ment susceptible to a tort action for its alleged negligent

11

marking of a navigational hazard, the Court rejects the

concern that allowing such actions to proceed to judg-

ment will result in improper judicial interference with

the allocation of finite resources.

Eklof Marine Corps, supra, 762 F. 2d at 204.

Cf. Brown v. United States, 790 F. 2d 199 (1st Cir. 1986),

immunizing the United States from liability for its negli-

gence in maintaining a weather observation buoy.

Certainly there are situations where the government

does indeed engage in a cost-benefit analysis leading to a

policy decision to accept certain risks to the public arising

from its activities, in order to save expense or time or

promote some other public benefit. Thus in U.S. v. Varig

Airlines, supra, the FAA made a policy decision in favor of

its spot check program. In Dalehite v. United States, supra,

government employees decided to bag fertilizer at high

temperatures after specifically considering that bagging at

lower temperatures “would result in greatly increased

production costs and/or greatly reduced production.”

Dalehite, supra, 346 U.S. at 41. In both cases, the govern-

ment substantiated its contention that concern with the

allocation of scarce governmental resources, and with the

expeditious progress of the government activity, had ex-

plicitly motivated the challenged action. In contrast, the

Third Circuit in this case is willing to immunize the govern-

ment on the basis of a judge’s being able to discern some

increased costs to the government if the safety precautions

at issue had been instituted. The exercise of due care in

connection with government activities will consistently

impose additional cost on the government, and the Third

Circuit's approach to the discretionary function exception

allows the exception to come close to swallowing the

Federal Tort Claims Act.

C. Planning/Operation Dichotomy.

In the instant case, the Third Circuit indicates that the

decision of this Court in Indian Towing Company v. United

States, supra, is not pertinent to interpreting discretionary

12

function exception. In contrast, other Circuits have con-

tinued to follow the analysis suggested by Indian Towing

Company. That test has the advantage of simplicity: The

government's decision to embark upon a particular action or

program is discretionary, but once it decides to act, it is

obliged to do so with due care. This analysis is employed by

the Second Circuit in Caraballo v. United States, 830 F. 2d

19 (2d Cir. 1987), see also, Denham v. United States,

supra; Eklof Marine Corps v. United States, supra; Cf.

Brown v. United States, supra. Thus, a conflict in principle

exists among the Circuits as to the continuing validity of the

planning/operational dichotomy, which was suggested in

Dalehite and formed the basis of decision in Indian Towing

Company.

Il. The decision below, immunizing the government

from liability from its operational negligence in connec-

tion with the chemical waste disposal project, raises

important and potentially recurrent problems.

In United States v. Varig Airlines, supra, this Court held

that the discretionary function exception immunized the

government from damages allegedly resulting from the

negligence of the Federal Aviation Administration, in

certifying as safe an airplane which failed to comply with

governmental fire protection standards. An unanimous

Court there stated,

...whatever else the discretionary function exception

may include, it plainly was intended to encompass the

discretionary acts of the government acting in its role as

a regulator of the conduct of private individuals.

United States v. Varig Airlines, supra, 467 U.S. at 816

(footnote omitted).

Allowing for the imposition of liability in the Varig

situation would carry with it vast implications for govern-

mental regulatory activity, making the government an

insurer of private parties’ compliance with whatever safety

regulations the government might enact. If liability had

been imposed on the government in Varig, any govern-

—veaau]

13

mental agency engaged in the promulgation of safety

regulations would have to insure that it had adequate

manpower to rigorously enforce the safety regulation, or

face liability for private parties’ noncompliance. Such

liability would constitute a dramatic disincentive to govern-

mental safety regulation.

Narrowly interpreted, the dictate of Varig is limited to

insulating the government from liability for regulation of

private activity. Varig differs from the instant case in that

here, the government was the instigator and active director

of and participant in the project causing injury, as opposed

to merely being involved as a regulator of private conduct.

Notwithstanding the potentially narrow applicability of

Varig, the Third Circuit, in the instant case, has interpreted

the Varig decision as restricting the scope of the Federal

Tort Claims Act to all but the most mundane of torts such as

auto accidents. In all but such mundane torts, application of

the Third Circuit's analysis of the discretionary function

exception will allow a judge to hypothesize some policy

implications potentially underlying the decision - if nothing

else, a concern with allocation of government resources.

Other Courts have not seen the Varig decision as having

substantial impact on tort claims outside the regulatory

sphere. See, e.g., the concurring opinion of Judge Brown in

Collins v. United States, 783 F. 2d 1225, at 1231 (5th Cir.

1986) (holding the United States liable for failing to re-

classify a mine as gassy) wherein Judge Brown states,

The FTCA is not, as government counsel think and

continue to urge, confined to the typical fender-bender

automobile intersectional collision between a postal

truck and a citizen’s child-filled stationwagon. We still

have the significant still valid decisions in Indian Towing.

[350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 38 (1955)

Rayonier [Rayonier, Inc v. United States, 352 U.S. 315,

77 S. Ct. 374, 1 L. Ed. 22 354 (1957)] and Eastern

Airlines, [Eastern Airlines, Inc. v. Union Trust Company,

affd sub nom., United States v. Union Trust Company,

14

350 U.S. 907, 76 S. Ct. 192, 100 L. Ed. 796 (1955)}

which recognized FTCA liability in areas traditionally

thought to have some governmental activity immunity

that inherently involved extensive operational judgment.

and hence, “discretion.”

The expansive interpretation of the discretionary func-

tion exception adopted by the Third Circuit in the instant

case would preclude virtually any injury and damage claim

arising out of governmental activities in the field of hazar-

dous waste disposal. It would be a rare situation in the

chemical waste disposal field where a Court, reviewing the

government's failure to take adequate precautions for the

surrounding citizenry, could not hypothesize some policy

implications involving the more rapid completion of the

clean-up task, or the minimizing of the expenditure of

governmental resources. The Third Circuit's discretionary

function exception analysis essentially renders those citizens

injured or damaged by governmental hazardous waste

clean-up activity without a remedy against the govern-

ment.

This Court in Varig recognizes that the Court's primary

concern. in interpreting the discretionary function exception.

is to define congressional intent.

The basic inquiry concerning the application of the

discretionary function exception is whether the chal-

lenged acts of agovernment employee - whatever his or

her rank - are of the nature and quality that Congress

intended to shield from tort liability.

Varig Airlines, supra, 467 U.S. at 816.

It is safe to assume that Congress, when enacting the

Federal Tort Claims Act in 1946, did not consider whether

governmental handling of chemical waste should be shielded

from tort liability. The buildup of chemical waste in this

country was not, at that time, an area of public concern or

active governmental involvement. Subsequent to the enact-

ment of the Federal Tort Claims Act. Congress has not

legislatively addressed the question of the potential liability

a a

15

ot the United States for personal injury or property damage

caused by the government's negligence in a chemical waste

clean-up operation. :

The Courts have recognized that in enacting the Federal

Tort Claims Act, with the discretionary function exception,

Congress was engaged in balancing the rights of the

citizenry to be compensated when injured or damaged by

governmental negligence against the interference with

governmental decision making which could arise from the

threat of tort litigation. The Congress sought to achieve this

through a system which dispensed with a costly and time

consuming method of private bills. See Collins v. United

States, supra, 783 F. 2d at 1233.

In discussing the closely related field of judicially created

immunity for discretionary acts of federal officials, this

Court, in Westfall v. Irwin, U.S. , 108 S. Ct.

580, at 583, 98 L. Ed. 2d 619 (1988), recognized the

governmental interest in insulating “the decision making

process from the harassment of prospective litigation”, but

further observed:

that official immunity comes at a great cost. An injured

party with an otherwise meritorious tort claim is denied

compensation simply because he had the misfortune to

be injured by a federal official. Moreover, absolute

immunity contravenes the basic tenet that individuals

be held accountable for their wrongful conduct.

See also, Forrester v. White, U.S. , 108 S. Ct.

538, 98 L. Ed. 2d 555 (1988).

Petitioner contends that the Third Circuit, in the instant

case, adopted a mode ct analysis which fails to appropriately

i The CERCLA statute, pursuant to which the United States undertook the

Drake Chemical Clean-up, does have certain liability provisions, establishing a

system of essentially strict liability for clean-up costs and damage to natural

resources. However, those liability provisions are inapplicable to the present

action, since this action concerns claims for private property damage. The

CERCLA statute does not subject the agencies of the United States to the same

potential liability as any non-governmental entity. for claims which. unlike the

instant claim, fall with CERCLA’s liability provisions. See 42 US.C §9607(q)

16

balance the competing interests. When a governmental

employee’s failure to take appropriate precautions for the

protection of the public is not actually motivated by any

consideration of public policy, the immunization of the

government does not serve its intended purpose. Where no

policy decision has been made, immunizing the government

does not protect the policy making process. The Third

Circuit's decision fails to give appropriate weight to the

interests of the citizenry in deterring governmental negligence,

and in being compensated for lesses which result from

governmental negligence. The decision allows the EPA to

ignore the welfare of the population residing in the vicinity

of hazardous waste clean-up sites.

CONCLUSION

For these various reasons, this Petition for Certiorari

should be granted. The opinion of the Third Circuit should

be reversed and the case remanded to the Third Circuit for

consideration of the other issues which the United States

raised in its appeal below.

Respectfully submitted,

LIEBERT, SHORT,

FITZPATRICK & HIRSHLAND

By:

Jonathan E. Butterfield, Esquire

1.D. #23952

Counsel for Petitioner

(717) 326-9091