Petition for Writ of Certiorari — Hart v. United States

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Suprans Court, US.

FILED

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

ANNE M. HART, GILLIAN ELAINE HART,

and VERA LEE HART,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ROBERT L. CRONGEYER

BEGGS & LANE

3 West Garden Street

Sixth Floor, Blount Building

Post Office Box 12950

Pensacola, Florida 32576

(904) 432-2451

Counsel of Record for Petitioners

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

413

QUESTIONS PRESENTED

1. Does the discretionary function exception to the

Federal Tort Claims Act apply to the non-discretionary

execution of discretionary decisions?

2. In reversing a grant of summary judgment, may an

appellate court ignore applicable state law and undis-

puted facts of record?

(i)

LIST OF PARTIES

The parties to the proceedings below were the Peti-

tioners, ANNE M. HART, GILLIAN ELAINE HART,

and VERA LEE HART, and the Respondent, UNITED

STATES OF AMERICA.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................ i

coos sscasecacncensnnsessnnseseceseacens ii

TABLE OF AUTHORITIES ...........0000000000000000000ooeeoee.. Vv

asec shondshuisusnsscensioadsansons 1

Nee sa cabhcdcuaceaiivobucniavaas’ 2

SPR ED EEE WEPEOW BEEP ..........-0cccacencceccevenccccesacccsnsacceccose 2

Brass OF Tee CASE ........................................ 2-9

REASONS FOR GRANTING THE WRIT .................... 9-15

I. The Eleventh Circuit’s holding that all govern-

ment efforts to identify, account for and bury

dead U.S. servicemen are based entirely upon

policy judgments, directly conflicts with deci-

sions of this Court and other Circuits ............... 9-13

II. The decision below on the merits is directly at

odds with Florida Law and the undisputed facts

Se ea cscanmnaaamaes 13-15

a Sones came bsuuctonatontecsonbs 15

APPENDICES:

‘ A. Decision of United States Court of Appeals for

the Eleventh Circuit in Hart v. United States,

894 F.2d 1539 (11th Cir. 1990) -......0022 la

Memorandum decision of the United States Dis-

trict Court for the Northern District of Florida,

Pensacola Division, Hart v. United States, 681

F. Supp. 1518 (N.D. Fila. 1988) ............................ 19a-27a

Memorandum decision of the United States Dis-

trict Court for the Northern District of Florida,

Pensacola Division, Hart v. United States, PCA

86-04370 WEA (N.D. Fla. 1988) -........0000.000000.... 28a-37a

(iii)

TABLE OF CONTENTS—Continued

Page

Order of United States Court of Appeals for the

Eleventh Circuit denying petition for rehearing

and suggestion of rehearing en banc, No. 89-3193

(11th Cir., April 27, 1990) .. SN a

28 U.S.C. $1346; 28 U.S.C. $§ 2671-2680 _........40a-49a

SSS

TABLE OF AUTHORITIES

Cases: Page

Alabama Electric Cooperative, Inc. v. First Na-

tional Bank of Akron, 684 F.2d 789 (11th Cir.

WI sis sciikescecmice vas olen aaa eee eae 14

Alabama Electric Cooperative, Inc. v. United

States, 769 F.2d 1523 (11th Cir. 1985) .........0...... 12 -

Berkovitz v. United States, 108 S.Ct. 1954 (1988)... 9,11

Carlin Communication, Inc. v. Southern Bell Tel.

& Tel. Company, 802 F.2d 1352 (11th Cir.

EE uiciatcthnscbinielonen en Addict iucee me taeem ar a 14

Dalehite v. United States, 346 U.S. 15 (1953) ..... 9, 10, 11,

Drake Towing Company, Inc. v. Meisner Marine

Construction Co., 765 F.2d 1060 (11th Cir.

) | ETE rr R AE 12

Hendry v. United States, 418 F.2d 774 (2nd Cir.

|” | a ae aer reer Lmere STE ae Ne ay! 9,13

Indian Towing Company v. United States, 350 U.S.

Bh CS aaccniacctetcceatexsesncecanen eee 9,10, 12

J.H. Rutter Rex Manufacturing Company v.

United States, 515 F.2d 97 (5th Cir. 1975), cert.

Comb, GB Ui te Wi oan cssntecsccndn cain cases 10

Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950)........ 14

Kohn v. United States, 591 F.Supp. 568 (E.D.N.Y.

1984), affirmed, 760 F.2d 253 (2nd Cir. 1985)... 9, 12

Metropolitan Life Insurance Co. v. McCarson, 467

Ba Ge ST Ce. Fe anne eee i3

Payton v. United States, 679 F.2d 475 (5th Cir.

NE FD DI wicks caoaeuneeees eee 10

Smith v. United States, 375 F.2d 243 (5th Cir.

1967), cert. denied, 389 U.S. 841 (1967) -............ 10

United States v. A. S. Empresa De Viacao Aerea

Rio Grandense (Varig Airlines), 467 U.S. 797

CTI csccee’ cs scasocomutecs endineesckltik eee nea 9,11, 12

Statutes:

Federal Tort Claims Act:

DS UTD. BR TEGO D serie ictnrciccitontnrccecnetenne 2

y- bap Rome BR: | |) meaner ennne 2,6

- Bp Tog” "> 1g Seen smn 2,6

TABLE OF AUTHORITIES—Continued

Page

28 U.S.C. Section 2680 (a)... 7

BB UB.C. Bocthems BEBO CED ncecescccsssescseccecccscsnssoseee 7

28 U.S.C. Section 2680 (j) ................... Sadia ics 7

Legislative Materials:

“Live Sighting” Reports of Americans Listed As

Missing in Action in Southeast Asia: Hearings

before the Senate Committee on Veterans’ Af-

fairs, 99th Cong., 2d Sess. (1986) ......................... 5

H.R. Rep. No. 94-1764, 94th Cong., 2d Sess.

CRU cunnecssencuchasdscincisiecencuaaa mee i a phe 10

Miscellaneous:

Air Force Regulations:

148-1, Sections 8-10 (a) ........................................ 10

7 + | SRR REN ee Relea eee as See eal 11

Army Field Manual 10-286:

Section 1-6(a) (2) —..0000......... EAL: ae 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No.

ANNE M. HART, GILLIAN ELAINE HART,

and VERA LEE HART,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The petitioners, Anne M. Hart, Gillian Elaine Hart,

and Vera Lee Hart, respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Eleventh Circuit,

entered in the above-entitled proceeding on March 1,

1990, petition for rehearing and suggestion of rehear-

ing en kanc denied April 27, 1990.

OPINIONS BELOW

The opinion of the Court of Appeals for the Eleventh

Circuit is reported at 894 F.2d 1539, and is reprinted in

the appendix hereto, p. la, infra.

The memorandum decision of the United States Dis-

trict Court for the Northern District of Florida dated

January 12, 1988, is reported at 681 F. Supp. 1518, and

is reprinted in the appendix hereto, p. 19a, infra.

The memorandum decision of the United States Dis-

trict Court dated October 20, 1988 is not reported, but

is reprinted in the Appendix hereto, p. 28a. tifra.

\ JURISDICTION

Invoking federal jurisdiction under the Federal Tort

Claims Act, 28 U.S.C., Sections 1346(b), 2671-80, the

petitioners brought the suit in the Northern District of

Florida. On January 12, 1988, the Northern District

granted ANNE M. HART’S motion for partial summary

judgment and subsequently entered judgment for all peti-

tioners. See p. 19a, infra.

On respondent’s appeal, the Eleventh Circuit, on March

1, 1990, entered a judgment and opinion reversing the

Northern District’s grant of summary judgment and

remanded with instructions to enter judgment for the

respondent. See p. la, infra. A petition for rehearing

and suggestion of rehearing en bane was timely filed by

petitioners, but denied on April 27, 1990. See p. 39a,

infra.

The jurisdiction of this Court to review the judgment

of the Eleventh Circuit is invoked under 28 U.S.C., Sec-

tion 1254/1).

STATUTES INVOLVED

28 U.S.C., Sections 1346(b), 2671-80. See p. 40a,

infra.

STATEMENT OF THE CASE

On December 21, 1972, a United States Air Force

AC130 aircraft engaged in enemy fire over Pakse, Laos.

Sixteen manifested crew members were aboard, one of

whom was Lt. Col. Thomas T. Hart, III, the husband,

father, and son, respectively, of the petitioners, Anne M.

Hart, Gillian Elaine Hart, and Vera Lee Hart. Two crew

members parachuted to safety and were rescued the night

the plane crashed. The hand and forearm of another

crew member was found the next day. He was listed as

killed in action (KIA) with the other thirteen crew mem-

bers listed as missing in action (MIA). Indigenous per-

sonnel found five other open parachutes and two piles of

bloody bandages. They also found the remains of five to

six individuals which were then buried in a common

grave. Approximately five months after the crash,

American reconnaissance aircraft flying over northern

Laos photographed a large area of grass or vegetation in

the configuration of either “1973TH” or “1573TH”.

Military intelligence analysis of this photograph contains

specific reference to then Capt. Thomas Hart.’

In December, 1982, the National League of Families

visited the crash site and found two bone fragments.

Mrs. Anne Hart, a member of the visiting delegation,

turned these remains over to United States government

officials who, in turn, sent them to the United States

Army Central Identification Laboratory, Hawaiian Is-

lands, (CILHI). These two bone fragments, incredibly,

were subsequently included in the set of remains iden-

tified as Lt. Col. Thomas T. Hart, ITI.

In February. 1985, a joint excavation of the Pakse

crash site was conducted by the United States and Lao-

tian governments. Bone fragments and other materials

were recovered and transferred to CILHI for processing.

The excavation team did not discover the common grave.

CILHI issued recommendations for positive identifica-

tions of all thirteen MIAs. Mrs. Anne Hart was notified

by Air Force Casualty on July 1, 1985, that her husband

had been positively identified and that he was, indeed,

dead. She asked for the opportunity to have an expert

1 Brigadier General Shufelt of the Defense Intelligence Agency

filed a declaration which, as the District Court noted, ignored this

crucial information. See p. 2la, infra.

forensic anthropologist examine the remains at her own

expense. This request was summarily denied.

Mrs. Hart brought suit in the Northern District of

California against Vernon Orr, then Secretary of the

Air Force, to enjoin the transfer of all thirteen sets of

remains until an expert forensic anthropologist had the

opportunity to make his examinations and render his

opinions. Dr. Michael Charney, Emeritus Professor of

Anthropology, Colorado State University, subsequently

examined the purported remains of Lt. Col. Thomas T.

Hart, III, and concluded identification was impossible.

In fact, Charney could not tell if the remains were from

one individual or several individuals. A temporary in-

junction was issued, but Judge Orrick subsequently dis-

solved the injunction based upon Secretary Orr’s attor-

ney’s assurances that the remains would be held as un-

claimed in a mortuary storage facility.

An evaluation team consisting of three board certified

forensic anthropologists was formed to review the per-

sonnel and procedures of CILHI and to specifically re-

view the documentation of the Pakse identifications.

Prior to the evaluation, the office of the Secretary to the

Air Force sent a letter to Mrs. Hart amounting to an

ultimatum for her to bury the remains or the Air Force

would bury them ‘with full military honors” at Avling-

ton National Cemetery. Letters from Mrs. Hart’s attor-

ney in California (Howard DeNike) to the Air Force

attorneys reminding them of their assurances to Judge

Orrick that the remains would be held as unclaimed in

a mortuary storage facility and putting them on notice

that their actions were causing Mrs. Hart extreme emo-

tional distress, went unheeded. Mr. DeNike pointed to

relevant Air Force regulations which would preclude the

action the Air Force intended to take. Another letter was

sent to Mrs. Hart from the office of the Secretary inform-

ing her of the planned burial of “her husband” and giv-

ing her a toll-free number to call to make arrangements

to attend the funeral. Mrs. Hart was finally successful

in getting the Air Force to postpone (not cancel) the

burial until after the evaluation team issued its report

on the CILHI.

The report issued by the evaluation team discredited

eleven of the thirteen identifications based upon the

team’s review of the documentation involved. One of the

team members, Dr. William Maples, subsequently exam-

ined tw) sets of actual remains and concluded that the

documentation prepared by CILHI officials attributed

physical characteristics to the remains that simply did

not exist.”

Dr. Maples’ subsequent testimony before the U.S. Sen-

ate Committee on Veterans’ Affairs pointed to other

falsifications of the anthropological narratives issued by

CILHI in the Pakse incident.*

*In his report, Dr. Maples states: “When we did the CILHI evalu-

ations, the three of us agreed that without seeing the remains, when

the files indicated that certain features were present and evaluated

by the CILHI anthropologists, we must assume that they saw what

they described and the resulting estimates were accurate given the

limitations of the various established techniques. Now after seeing

two sets of the Pakse remains, I must conclude that our assumption

was not justified.” (Emphasis in the original). His report con-

cluded: ‘There is no convincing scientific or circumstantial evidence

that suggests that the fragments ... came from the same individual.

The identification of Lt. Col. Hart is not positive. It is not even

probable.”

3“Live Sighting” Reports of Americans Listed as Missing in

Action in Southeast Asia: Hearings before the Senate Committee

on Veterans’ Affairs, 99th Cong., 2d Sess. (1986). “Well, the amount

of variation that they allowed in their estimates was totally inade-

quate, and even someone in introductory courses in human oste-

ology would not be allowed to write a report inferring such accuracy

from this type of evidence.” at p. 73. “Some (remains) are burned,

some are not. In the reports, the reports say that the remains were

sorted by texture, by burning, and by location of the excavation, and

they are attributed to one individual. In this case we have a burned

bone and we have unburned bones. Texture-wise, there is a remark-

The public outery' that followed the exposure of the

abuses in the identification process, forced the govern-

ment to rescind the “positive identification” of Lt. Col.

Hart. The Government refused, however, to return him

to an “unaccounted for’ status.

Petitioners filed suit in the United States District

Court, Northern District of Florida, alleging that the

United States was liable for damages under the Federal

Tort Claims Act, 28 U.S.C., Sections 1346(b), 2671-80,

for the intentional infliction of emotional distress, as

that tort is defined under Florida law. The complaint

alleged, among other things, that the action of the Army

and the Air Force in making a knowingly false “positive”

identification of Lt. Col. Hart’s remains, the persistence

in that identification in the face of overwhelming evi-

dence to the contrary, the issuance of improper ulti-

matums to bury those remains as Lt. Col. Hart, and the

refusal to return him to an “unaccounted for” status af-

ter the recission of the identification, constituted “conduct

so outrageous in character and extreme in degree as to

go beyond all possible bounds of decency and must be

regarded as atrocious and utterly intolerable in a civilized

community.”

The government filed a motion to dismiss, alleging the

court lacked subject matter jurisdiction. The govern-

ment argued plaintiffs’ claims were non-justiciable, and

that the discretionary function, misrepresentation and

deceit, and the combatant activity exceptions to the Fed-

able difference in these bones. There seems to be a lot of windqu-

dressing in these reports and little substance.” at p. 72. “Looking

at the printed reports coming from the Laboratory, several of us

have found some misleading statements in them.” at p. 65.

4 Senate and House of Representatives hearings, numerous news-

paper articles, magazine articles and television documentaries all

evidence the national reaction to these false identifications was

that they were “outrageous.”

eral Torts Claim Act, 28 U.S.C. Sections 2680(a), (h),

and (j), precluded suit.°

The Court, after full hearing on February 26, 1987,

ruled that although it was within the Secretary’s dis-

cretion to provide for the identification of service re-

mains, onee having undertaken that identification it had

to be accomplished with due care and could not be un-

reasonable.*®

After the government filed its answer admitting many

of petitioners’ allegations, petitioners filed a request for

admissions on May 29, 1987. The court issued its sched-

uling order on June 11, 1987, directing that the parties

conduct discovery so that the due date of any discovery

requested shall not be later than September 9, 1987. On

September 10, 1987, the government answered petitioners’

request for admissions. Petitioners filed a motion to

strike these answers and also filed their motion for

partial summary judgment. The government’s response

to petitioners’ motion to strike alleged an informal agree-

ment between attorneys for an extension of time, which

petitioners’ attorneys flatly denied. Petitioners’ motion

to strike was granted and the requested admissions were

deemed admitted.’

On January 12, 1988, the District Court ruled that the

government was liable to Anne M. Hart under the Florida

law for having committed the tort of intentional infliction

5 Indeed, the goverrment attorney even insisted that Mrs. Hart

had no standing to maintain this action as she was not the next of

kin to the remains involved as they were “not her husband.”

® Even the government recognizes this duty of reasonableness and

due care owed to the next of kin. H.R. Rep. No. 94-1764, 94th Cong.,

2d Sess., 168 (1976).

7 The government argued on appeal that the District Court erred

in not allowing the admissions to be withdrawn or amended, but

stated at oral argument that the admissions did not harm its case.

of emotional distress. The Court found that there was

no disputed issue of material fact and ruled that the four

elements necessary to prove intentional infliction of emo-

tional distress were proven for Anne M. Hart. After

trial, the Court ruled that the government was liable to

petitioners, Gillian Elaine Hart and Vera Lee Hart, as

well.

The elements required to be proven in order to main-

tain an action for intentional infliction of emotional dis-

tress under Florida law are: (1) deliberate or reckless

infliction of mental suffering; (2) outrageous conduct;

(3) the conduct must have caused the distress; and (4)

the distress must be severe.

The memorandum decision of the District Court in

support of it’s grant of partial summary judgment as-

serted that the government’s brief in opposition to peti-

tioners’ motion for summary judgment confined itself to

the single element of seriousness.* There was no dispute

as to the causation and seriousness of Mrs. Hart’s emo-

tional distress. The District Court found that outrageous-

ness was proven as a matter of law. See p. 17a, infra.

The District Court, after trial, awarded damages to

the three plaintiffs below and the government appealed.

On appeal to the Eleventh Circuit, the government

argued that the discretionary function exception to the

Federal Tort Claims Act barred plaintiffs’ action for

damages. The government additionally argued that the

District Court erred on the merits in holding it liable

for the intentional infliction of emotional distress in that

its conduct was not “outrageous” and that it had not

conceded that its employees had acted intentionally or

recklessly. The Eleventh Circuit agreed. See p. 10a, infra.

8 The government, in its appeal, addressed the District Court’s

failure to discuss the first element of the tort-deliberate or reckless

infliction.

The Eleventh Circuit found that all government efforts

to identify, account for, and bury dead U.S. servicemen

are based entirely upon policy judgments and thus im-

mune from suit under the discretionary function excep-

tion to the Federal Tort Claims Act. The Court also

found that the- District Court’s holding that the conduct

complained of was intentional and outrageous was er-

roneous. The court, therefore, reversed the District

Court’s grant of summary judgment and remanded with

instructions to enter judgment for the United States.

See p. 12a, infra.

REASONS FOR GRANTING THE WRIT

I.. The Eleventh Circuit’s holding, that all government

efforts to identify, account for and bury dead U.S.

servicemen are based entirely upon policy judgments,

directly conflicts with decisions of this Court and other

Circuits.

The Eleventh Circuit’s ruling is in direct conflict with

this Court’s holdings in United States v. A. S. Empresa

De Viacao Aerea Rio Grandense (Varig Airlines), 467

U.S. 797 (1984), Dalehite v. United States, 346 U.S. 15

(1953), Berkovitz v. United States, 108 S.Ct. 1954

(1988), and Indian Towing Company v. United States,

350 U.S. 61 (1955). It is also in direct conflict with

Hendry v. United States, 418 F.2d 774 (2nd Cir. 1969)

and Kohn v. United States, 591 F.Supp. 568 (E.D.N.Y.

1984), Affirmed, 760 F.2d 253 (2nd Cir. 1985).

The Eleventh Circuit decision also directly conflicts

with several of its own decisions. specifically, A/abama

Electric Co-op, Inc., v. United States, 769 F.2d 1523

(11th Cir. 1985) and Drake Towing Company, Inc. v.

Meisner Marine Construction Co., 765 F.2d 1060 (11th

Cir. 1985).

“Tt is the nature of the conduct, rather than the status

of the actor, that governs whether the discretionary func-

tion exception applies in a given case.” Varig Airlines,

supra. A governmental act is discretionary and therefore

shielded from liability if it is performed “at a planning

rather than operational level and involve(s) considera-

tions more or less important to the practicability of the

Government’s .. . program.” Dalehite, supra. The gov-

ernment may be sued, however, for negligence in the non-

discretionary execution of discretionary decision. Payton

v. United States, 679 F.2d 475, 480 (5th Cir. Unit B

1982) (en banc); see Indian Towing Company v. United

States, supra. The ultimate determination is the “na-

ture and quality of the discretion involved in the act

complained of.” Smith v. United States, 375 F.2d 243,

246 (5th Cir.), cert. denied, 389 U.S. 841 (1967). For

the government to show merely that some choice was

involved in the decision making process is insufficient to

activate the discretionary function exception. J.H. Rut-

ter Rex Manufacturing Co. v. United States, 515 F.2d

97, 99 (5th Cir. 1975), cert. denied, 424 U.S. 954 (1976).

The balancing of policy considerations is a necessary pre-

requisite. Id.

Under these principles, the initial decisions by the

government to excavate the Pakse crash site, to seek the

recovery of remains, and to forward the remains to the

CILHI were within the government’s discretionary au-

thority. At that point, however, the operational level of

the government owed a duty of reasonableness to the

petitioners here in the non-discretionary execution of dis-

cretionary decisions.* The actions of the government in

the issuance of a “positive identification,” the persistence

in that identification in the face of overwhelming evi-

dence to the contrary, the issuance of ultimatums by the

Secretary of the Air Force, and the summary refusal of

® A “responsibility of the military to the missing servicemen and

their next of kin,” has been recognized and admitted by the govern-

ment, imposing a duty of due care and reasonableness upon it.

H.R. Rep. No. 94-1764, 94th Cong., 2d Sess., 168 (1976) (“H.R.

Rep. 94-1764’),

the government to return Lt. Col. Hart to the “unac-

counted for list” were all accomplished at the operational

level of government and are actionable.

In both Varig Airlines and Dalehite, supra, this Court

held that the implementation of government policies or

programs may be shielded from tort liability if the as-

pects of its performance alleged to be negligent are dic-

tated by guidelines adopted at the policy-making level.

The government has failed to produce any evidence

regarding guidelines adopted at the policy-making level

which would shield its conduct. from liability. In fact,

to the contrary, relevant military regulations specifically

prohibit the actions taken by CILHI and the Secretary

of the Air Force. The government may not simply ‘“ap-

portion commingled masses of remains into the known

number of individuals involved in a common incident,

for release to the next of kin as individually identified

remains.” '® The Secretary of the Air Force may not

direct the burial of a service member when the next of

kin can be located and has not stated in writing that she

is unconcerned with the disposition of the remains."'

The government’s removal of Lt. Col. Hart from the

unaccounted for list is also contrary to its own policy

- position as stated in a memorandum from the office of

the Assistant Secretary of Defense.

The Eleventh Cireuit’s decision offhandedly dismissed

petitioners’ contention that violation of relevant military

regulations brings this case squarely out of the protection

afforded under the discretionary function exception. This

directly conflicts with Berkovitz, supra, which held that

“the discretionary function exception will not apply when

a federal statute, regulation, or policy specifically pre-

10 Army Field Manual 10-286, Section 1-6(a)(2) and Air Force

Regulations 143-1, Sections 8-10(a).

11 Air Force Regulation 143-1 (C1).

scribes a course of action for an employee to follow.”

Id., at p. 1958. Incredibly, the government’s attorney ad-

mitted at oral argument before the Eleventh Circuit that

the effect of the admissions of record, including the ad-

mission it randomly sorted bone remnants, if allowed to

stand, removed this case from the discretionary function

exception."

The District Court’s denial of the government motion

to dismiss is firmly grounded not only in Varig Airlines,

and Dalehite, supra, but also in Indian Towing Company

v. United States, supra, and in the Eleventh Circuit’s

own decisions in Drake Towing Company, Inc. v. Meisner

Marine Construction Co., 765 F.2d 1060 (11th Cir.

1985), and Alabama Electric Co-operative, Inc. v. United

States, 769 F.2d 1523 (11th Cir. 1985). All three cases

involved initial decisions made at the planning level, de-

cisions involving questions of policy and the evaluation

of factors such as the financial, political, economic, and

social effects of a given plan or policy. However, all

three cases also recognized that execution of those de-

cisions in the absence of policy directives to the contrary,

musi be accomplished reasonably and with due care.

The District Court’s ruling recognized this line of de-

mareation between the planning and operational levels

of government. The governmert’s actions in “identify-

ing’ the remains and its treatment of the family is “on

all fours” with Kohn v. United States, supra. As in

Koln, the government’s actions in the handling of the

remains and the treatment of Lt. Col. Hart’s family “did

not involve the government’s regulations of conduct or

private policy jucements to advance important govern-

mental purposes. There is thus no basis for considering

those actions discretionary.” J/d., at 571.

12 The Eleventh Circuit did not disturb the District Court’s

ruling that the matters sought were deemed admitted. It simply

stated in dicta, contradicted by the admission of record, that the

government did not “foist” a mistake on the Harts. See p. 18a, infra.

The Eleventh Circuit’s decision is also at odds with

Hendry v. United States, supra, where the Second Cir-

cuit held:

“The fact that judgments of government officials

occur in areas requiring professional expert evalua-

tion does not necessarily remove those judgments

from the examination of the Court by classifying

them as discretionary functions under the Act. To

the extent that the medical profession establishes no

set rules to accommodate the handling of a particular

medical case, the individual doctor’s judgment in that

case sHould be measured by the standards of due

care.” 418 F.2d at 783.

Any concern that this case will open the “floodgates”

of litigation is misdirected. Largely as a result of this

suit, the government is now issuing valid identifications,

soundly based on recognized scientific methodology. The

families are now given the opportunity to have an expert

second opinion prior to the government issuing an iden-

tification and changing records. The Pakse identifica-

tions were an aberration. With the exception of this

case, scientific evidence has always been required. The

government, however, now wants the courts to sanction

the aberration.

The Eleventh Circuit has created a confusing and

dangerous precedent, likely to generate even further con-

fusion among the other Circuits. It is a precedent directly

at odds with the prior decisions of this Court. Plenary

consideration of the matter by this Court is essential.

II. The decision beiow on the merits is directly at odds

with Florida Law and the undisputed facts of this

case.

Even before the Florida Supreme Court recognized the

tort of intentional infliction of emotional distress in

Metropolitan Life Insurance Co. v. McCarson, 467 So.2d

277 (Fla. 1985), the courts in the State of Florida had

historically and consistently awarded damages for the

tortious interference with rights involving dead bodies. In

Kirksey v. Jernigan, 45 $.2d 188 (Fla. 1950), the Florida

Supreme Court set out the test which even today stands

as the basis of any recovery: “Where the wrongful act

is such as to reasonably imply malice, or where, from

the entire want of care or of attention to duty, or great

indifference to the persons, property, or rights of others,

such malice will be imputed as would justify the assess-

ment of exemplary or punitive damages.” Malice, or

stated in other words—deliberate or reckless disregard

of the rights of others—will be imputed to the actor

upon a finding of outrageousness.

The District Court correctly found the actions of the

government in this case were outrageous as a matter of

law. Even though a grant of summary judgment is sub-

ject to de novo review," in a case such as this one involv-

ing a district court’s interpretation of the law of the

state where it sits, the appellate court must give defer-

ence to that interpretation.'' The Eleventh Circuit’s as-

sertion that “CILHI took months to make its identifica-

tions and attempted to use what scientific methods it

could to make sense of the sparse remains’ *’ flies in the

face of the government admissions of record. The govern-

ment admitted science played no part in the identification.

It admitted that the co-mingled masses of unidentified

remains were simply apportioned into the known number

of individuals involved in a common accident for release

to the next of kin as individually identified remains.

The Eleventh Cireuit’s assertions, that ‘“(a)lthough

Secretary Orr did send Mrs. Hart a letter telling her that

if the remains were not claimed they would be buried,

the Secretary promptly postponed the preposed interment

13 Carlin Communication, Inc. v. Southern Bell Tel. & Tel. Co.,

802 F.2d 1352 (11th Cir. 1986).

14 Alabama Electric Cooperative, Inc. v. First National Bank of

Akron, 684 F.2d 789 (11th Cir. 1982).

15 See p. 17a, infra.

at Mrs. Hart’s request,” ** also ignores the undisputed

acts of this case. -The office of the Secretary of the Air

Force sent not one, but two, letters concerning the im-

pending burial of “her husband” to Mrs. Hart. The

Court also ignores the prior assurances to Mrs. Hart and

the California District Court by the Air Force that the

remains would be held as unclaimed in a mortuary stor-

age facility. The Court additionally missed the point that

the Secretary had no right to direct the burial under

relevant Air Force Regulations.

It is obvious that the Eleventh Circuit’s reversal on

the merits is premised upon its finding that the acts

complained of were protected under the discretionary

function exception to the Federal Tort Claims Act. Once

this Court finds the conduct is not so protected, it is clear

that Florida law and the undisputed facts here would

permit a grant of summary judgment. The lower courts

need guidance from this Court.

CONCLUSION

For these various reasons, this petition for certiorari

should be granted. If petitioners are correct in urging

that the Eleventh Circuit erred in failing to note that

the acts complained of were committed in the non-discre-

tionary execution of discretionary decisions, in addition

to being “outrageous” and committed in reckless disregard

of petitioners’ rights, the District Court’s judgment should

be affirmed. Respectfully submitted,

ROBERT L. CRONGEYER

BeGcGs & LANE

3 West Garden Street

Sixth Floor, Blount Building

Post Office Box 12950

Pensacola, Florida 32576

(904) 432-2451

Counsel of Record for Petitioners

1© See p. 17a, infra.

APPENDICES

; : ‘48

aol ae os

—_

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 89-3193

ANNE M. HAnkt, individually and as natural guardian for

GILLIAN ELAINE HAkT, and VERA LEE HART,

Plaintiffs-A ppellees,

UNITED STATES OF AMERICA,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Florida

March 1, 1990

Michael P. Finney, Asst. U.S. Atty., Pensacola, Fla.,

Robert S. Greenspan, U.S. Dept of Justice, Civil Div.,

Appellate Staff, Thomas M. Bondy, Major James M.

Kinsella, U.S. Air Force, General Litigation Div., Office

of the Judge Advocate Gen., Lt. Col. Wm. C. Kirk and

Major James N. Hatten, Judge Advocate Gen., Dept. of

the Army, Washington, D.C., for defendant-appellant.

Robert L. Crongeyer, Fran L. Frick, Pensacola, Fla.,

for plaintiffs-appellees. ~

Before JOHNSON, HATCHETT and ANDERSON,

Circuit Judges.

JOHNSON, Cireut Judge:

The United States appeals the district court’s grant of

summary judgment in favor of appellee Anne Hart, 681

F.Supp. 1518, and the court’s decision after a bench trial

in favor of Vera Hart and Gillian Hart under the Federal

Tort Claims Act, 28 U.S.C.A. $$ 1346(b), 2671-2680.

I. STATEMENT OF THE CASE

A. Facts

On December 21, 1972, during the Vietnam War, a

United States Air Force AC-1304 Spectre was hit by

anti-aircraft fire and crashed near Pakse, Laos. Sixteen

crewmen were aboard, including Lt. Col. Thomas Tram-

mell Hart, III, a 32-year-old Table Navigator. Of the

sixteen crew members, two parachuted to safety and were

rescued. Friendly Loatian forces found the arm and hand

of one crew member at the crash site; these remains

were identified as belonging to Capt. Joel Birch. A cap-

tured Pathet Lao soldier claimed also to have found a

pile of bloody bandages, five deployed parachutes, and

the remains of five or six individuals which were sub-

sequently buried in a common grave. Capt. Birch was

declared killed in action (“KIA”) and the thirteen miss-

ing crewmen were listed as missing in action (“MIA”).

About five months after the Pakse crash, an Ameri-

ean reconnaissance aircraft flying over an area of North-

ern Laos approximately three hundred miles from the

Pakse site photographed what appeared to be a large

area of tall grass that had been stomped down to read

“1573 TH” or “1973 TH.” Military intelligence indi-

cated that the military believed the symbol referred to

Lt. Col. Hart. This photograph, along with the testimony

about the bloody bandages and deployed parachutes, was

classified.

In 1978, President Carter lifted the injunction against

status reviews of military personnel missing in Southeast

Asia. The Air Force convened a status review board to

review the status of the thirteen crewmen. The crew-

men’s families were informed that no classified material

would be made available to them or considered in de-

termining whether to change the crewmen’s status. Thus,

the existence of the photograph and the bandages and

parachutes was not revealed.' The review board con-

ducted a hearing and concluded that Lt. Col. Hart was

dead. Mrs. Hart testified before the board that she con-

curred with this finding. Lt. Col Hart’s status, along

with that of the twelve other missing crewmen, was thus

changed from MIA to KIA.

In September 1982 members of the National League of

Families, including Anne Hart, visited the crash site.

The group recovered several bits of airplane skin, a metal

flight boot insert, and two bone fragments, which Mrs.

Hart turned over to the Government. The fragments

were transmitted to the U.S. Army Central Indentifica-

tion Laboratory in Hawaii (“CILHI’). In February

1985, a CILHI team excavated the Pakse crash site and

recovered thousands of bone and tooth fragments, per-

sonal effects, and I.D. tags.°. This material was trans-

mitted to the CILHI laboratory. After approximately

four months of study, CILHI recommended to the Armed

Services Graves Registration Office (““ASGRO’’) that the

thirteen crewmen be listed as identified. CILHI stated

that it had found very small numbers of bone fragments

corresponding to each airman; these pieces, along with

their location at the crash site and various personal ef-

fects, led to CILHI’s conclusion. ASGRO accepted

CILHI’s recommendation, and Mrs. Hart was _ notified

on July 1, 1985 that her husband had been identified.

1 Mrs. Hart later obtained this information from other sources.

2 No. 1L.D. tags, dental material, or personal effects belonging to

Lt. Col. Hart were found.

Mrs. Hart was told at this time that the identification

was the result of a process of elimination.

Mrs. Hart immediately requested that she be allowed

to have an expert examine the remains at her expense

and provide a second opinion.* This request was denied.

Mrs. Hart subsequently contacted Dr. Michael Charney,

a forensic anthropologist at Colorado State University,

to determine whether he would be willing to provide the

second opinion. After determining that Dr. Charney

would be so willing, Mrs. Hart filed suit in the Northern

District of California. She sought injunctive relief pro-

hibiting the Government from forwarding the remains

to the families before Dr. Charney examined them. The

district court granted a temporary injunction. Dr. Char-

ney examined the bones purported to belong to Lt. Col.

Hart and concluded that it was impossible to tell whether

those fragments came from Lt. Col. Hart or even from

an individual at the crash site.

Based on Dr. Charney’s disagreement with the CILHI

conclusion, the case was dismissed with prejudice. Left

unresolved was the question of what to do with the dis-

puted remains; Mrs. Hart refused to accept them, mak-

ing her the first family member to refuse to accept re-

mains. Government counsel told the district judge that

the remains would be held in mortuary storage. Based

on his confidence in the Government identification, how-

ever, Secretary of the Air Force Verne Orr sent a letter

to Mrs. Hart on October 9, 1985 stating that if she did

not wish to accept the remains, they would be buried at

Arlington National Cemetery with full military honors.

December 2, 1985 was set as the interment date.

3 Mrs. Hart became concerned that the identification was arbi-

trary when she realized that there had been 13 positive identifica-

tions. She felt that CILHI did not consider that five individuals

may have been buried in a common grave. She also felt that there

should have been 14 identifications, because only Capt. Birch’s arm

and hand were found.

Meanwhile, the Army decided to commission an inde-

pendent civilian inquiry into the CILHI identification.

Drs. Ellis R. Kerley, William R. Maples, and Lowell Le-

vine, forensic anthropologists and fellows of the Ameri-

can Academy of Forensic Scientists, were enlisted as the

investigating team. Mrs. Hart heard of the investigation

and requested that the burial of the remains be delayed.

Secretary Orr complied with this request. From De-

cember 9 through December 12, 1985, the team conducted

an on-site inspection of the CILHI laboratory. The team

found that the administration of CILHI was excellent

and that CILHI’s personnel were dedicated, well-trained,

and experienced.

The panel concluded, however, that it could confidently

confirm only two of the Pakse identifications. The other

identifications did not appear to be justified according

to standard forensic methods and could not withstand

scientific scrutiny. The team’s report recommended some

changes in CILHI procedure and personnel. Drs. Kerley

and Maples saw the actual Pakse remains after the is-

suance of their report. After viewing the remains them-

selves, the two doctors affirmed their earlier findings that

the remains did not provide sufficient information to make

the kinds of identifications CILHI had made.

The Air Force contacted the families of the thirteen

crew members and explained that, if they wished, the

identifications of their loved ones would be reconsidered.

Mrs. Hart and the family of Capt. George McDonald re-

quested such reconsideration. On June 10, 1986, ASGRO

rescinded the identifications of Lt. Col. Hart and Capt.

George McDonald. The Government did not, however,

return Lt. Col. Hart to unaccounted-for status.

B. Proceedings Below

On October 30, 1986, after exhausting their administra-

tive remedies, Anne Hart, along with Lt. Col. Hart’s

mother, Vera Lee Hart, and Lt. Col. Hart’s daughter,

Gillian Elaine Hart, filed suit in the Northern District

of Florida. The Harts sued under the Federal Tort

Claims Act (“FTCA”) for the intentional infliction of

emotional distress as defined by Florida law. The com-

plaint alleged that the Army and Air Force knowingly

made a false positive identification of Lt. Col. Hart’s

remains, that they persisted in this identification in spite

of overwhelming evidence to the contrary, that they im-

properly issued an “ultimatum” about burial, and that

they refused to return Lt. Col. Hart to unaccounted-for

status after resciding his identification. The Harts also

produced evidence which they claim proves Lt. Col. Hart

may still be alive.

The Government filed a motion to dismiss on December

29, 1986. The Government argued, among other things,

that the court had no jurisdiction under the FTCA’s

“discretionary function” exception, 28 U.S.C.A. § 2680

(a). The district court denied the motion on March 17,

1987. The Government filed a motion for reconsidera-

tion, which was denied on May 13, 1987. The Govern-

ment also requested certification of the ‘discretionary

function” question to this Court under 28 U.S.C.A. § 1292

(b) ; the district court denied this motion.

On May 26, 1987, the Government filed its answer.

On October 21, 1987, the district court ruled pursuant to

the Harts’ motion that the Government had admitted all

of the matters with respect to which the Harts had sought

admission.* The Harts moved for partial summary judg-

4 Federal Rule of Civil Procedure 36(a) states that matters con-

tained in a request for admission are deemed admitted unless they

are answered in writing within 30 days after service of the request.

The Harts appear to have filed their request for admissions on May

29, 1987; the Government responded on September 10, 1987. Be-

cause the response was submitted more than 30 days after service,

the court was correct in deeming the matters admitted. The Gov-

ernment argues that the district court erred in not allowing the ad-

mission to be withdrawn or amended under Rule 36(b), which states

that the court may allow such action upon motion if presentation

ment on September 21, 1987. On January 12, 1988, the

court granted the motion, finding the Government liable

to Anne Hart under Florida law for intentional infliction

of emotional distress. After a bench trial on October 6,

1988, the district court found the Government liable to

Vera and Gillian Hart as well.® On October 20, 1988, the

court awarded the plaintiffs a total of $632,814.62:

$382,814.62 for Anne Hart and $125,000.00 each for

Vera and Gillian Hart.

II. ISSUES

The Government appeals to this Court, claiming that

the district court erred in denying the Government’s mo-

tion to dismiss based on the FTCA’s “discretionary func-

tion” exception. We also consider whether the district

court erred in granting Anne Hart’s motion for summary

judgment and in holding the Government liable for the

intentional infliction of emotional distress.

Ill. ANALYSIS

A. Discretionary Function

1. Definition

The question of whether the district court had jurisdic-

tion to consider the Government’s actions in this case

under the discretionary function exception is a question

of the merits would be subserved thereby and if the requesting

party fails to prove prejudice. Because the Government states on

appeal that the admissions do not harm its case, however, we do

not disturb this ruling.

5 The court dealt separately with the parties due to some con-

fusion in the pleadings. At the time of the initial filing, all of the

children were apparently below the age of majority. Mrs. Hart

thus submitted evidence only as to her own suffering. After grant-

ing her motion for summary judgment, the district court discovered

that Lt. Col. Hart’s mother and daughter (who had since reached

majority) also sought damages. Because no evidence had been

submitted as to their suffering. the district court held a bench trial

on these issues.

of law, subject to de novo review by this Court. Baker v.

United States, 817 F.2d 560, 562 (9th Cir.1987), cert.

denied, 487 U.S. 1204, 108 S.Ct. 2845, 101 L.Ed.2d 882

(1988). The FTCA provides that federal courts have

jurisdiction to entertain tort suits against the federal

government, unless such suits involve:

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

an employee of the Government... 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 Govern-

ment, whether or not the discretion involved be

abused.

28 U.S.C.A. § 2680(a). See United States v. S.A. Em-

presa de Viacao Aerea Rio Grandense (Varig Airlines),

467 U.S. 797, 809, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660

(1984). The discretionary function exception expresses a

congressional intent to “prevent judicial ‘second-guessing’

of legislative and administrative decisions grounded in

social, economic, and political policy through the medium

of an action in tort.” Jd. at 814, 104 S.Ct. at 2765.

The Supreme Court has isolated several factors in

analyzing the exception. First, it is the nature of the

conduct, rather than the status of the actor, that governs

whether the discretionary function exception applies. .. .”

Varig, 467 U.S. at 818, 104 S.Ct. at 2764. Thus a court

must ask whether the challenged acts, whatever the rank

of the actor, “are of the nature and quality that Con-

gress intended to shield from tort liability.” Jd. This

involves determining whether the action was “a matter

of choice for the employee.” Berkovitz by Berkovitz v.

United States, 486 U.S. 531, 108 S.Ct. 1954, 1958, 100

L.Ed.2d 531 (1988). For this reason, the exception does

not apply if a federal statute, policy, or regulation spe-

cifically mandated the action. Id. at 1958, 1959.

Second, the Court has defined discretionary decisions as

those in which there is room for policy judgment. United

States Fire Ins. Co. v. United States, 806 F.2d 1529,

1535 (11th Cir.1986) (quoting United States v. Varig

Airlines, 467 U.S. at 811, 104 S.Ct. at 2763). The discre-

tion referred to is ‘“‘the discretion of the executive or the

administrator to act according to one’s judgment of the

best course... .” Dalehite v. United States, 346 U.S. 15,

34, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953); see also

Ostera v. United States, 769 F.2d 716, 718 (11th Cir.

1985); United States Fire Ins. Co., 806 F.2d at 1535.

Ror example, “|a] Governmental act is discretionary and

therefore shielded from liability if it is performed at a

planning rather than operational level.” Drake Towing

Co., Inc. v. Meisner Marine Constr. Co., 765 F.2d 1060,

1064 (11th Cir.1985) (quoting Dalehite, 346 U.S. at 42,

73 8.Ct. at 971).

2. Decisions Regarding Lt. Col. Hart

a. U.S. Efforts to Identify Dead Servicemen

The United States argues that all government efforts

to identify and bury dead United States servicemen are

based entirely upon policy judgments, so that any act

taken in connection with that effort should fall under the

exception. The Government maintains that its actions in

this case reflect a longstanding policy of attempting to

search for, recover, and identify dead American service-

men. This policy was developed for two reasons. First,

the United States military maintains that everyone who

dies in service to the United States deserves a burial with

full military honors. Second, POW MIA families during

the Vietnam era expressed a desire for the Government

to attempt to identify individual remains if possible.

Thus. the Government argues that the identification pro-

cedures used in this case were not merely scientific and

forensic, but also were based on issues of public policy.

10a

The Harts respond that methods used by CILHI to

identify the remains in this case did not comport with

ordinary forensic standards. They argue that the Army’s

forensic examiners, like doctors, should be judged by the

standards of due care applicable to the forensics profes-

sion if that profession provides no set rules for a par-

ticular case. See Hendry v. United States, 418 F.2d 774,

783 (2nd Cir.1969) (“To the extent that the medical

profession establishes no set rules to accommodate the

handling of a particular medical case, the individual

doctor’s judgment in that case should be measured by

the standards of due care.’”’).°

We are persuaded by the Government’s argument. Gov-

ernment efforts to identify deceased personnel are clearly

discretionary functions. Further, ordinary forensic stand-

ards are inappropriate in cases such as the Pakse crash,

when the remains of a number of persons are commingled,

severely burned, and shattered. In such cases, military

forensics examiners draw conclusions not only from the

remains themselves, but from the fact that the remains

were recovered at the crash site, that personal effects

were found among the remains, that the remains showed

the effects of high temperatuures associated with fires

and explosions, and that the deceased personnel were

listed as crew members on the plane’s manifest. The tech-

nique is similar te a process of elimination; remains are

® The Harts also argue that the Government's actions in this case

were not discretionary under Kohn v. United States, 591 F.Supp. 568

(E.D.N.Y.1984), aff'd, 760 F.2d 253 (2nd Cir.1985). Kohn was

shot in the head by a fellow officer. His family sued under the

FTCA, claiming that Kohn’s organs were cremated and his body

was embalmed without their knowledge and contrary to their re-

ligious beliefs, and that they were misled regarding the circum-

stances of his death. Kohn, while similar in some ways to the

present case, is not applicable. The government in Kohn did not

argue the discretionary function exception. Jd. at 571. Further,

the Army’s actions in Kohn appear to have violated a specific Army

policy. Jd. at 573-74. Finally, Kohn did not involve decisions made

by coroners in the context of intermingled remains.

lla

likely to belong to one person if they are not likely to

belong to anyone else. The Army examiners also use

anthropological approximations, inferring characteristics

such as height and age from the bone fragments.’ These

inferred characieristics are compared with the known

characteristics of the missing crewmen.

The discretionary nature of these processes is particu-

larly evident with regard to the identification techniques

used by CILHI. CILHI specializes in identification of

remains from mass military disasters, such as the Iraqi

bombing of the U.S.S. Stark, the terrorist bombing of the

Marine barracks in Lebanon, and the plane crash in

Gander, Newfoundland. The forensic procedures dis-

cussed above are often used in such situations. The deci-

sion to use these methods is an exercise of diseretion

dependent on the circumstances: it is up to the discretion

of the individual forensics examiner to determine how

much to rely on these techniques.”

* Mrs. Hart claims that the anthrepological records in this case

were falsified, but offers no evidence in support of this claim.

*The Harts argue that CILHIT's actions directly contradicted

the provisions in the Army Field Manual for Identification of De-

ceased Personnel. As discussed earlier, the discretionary function

exception does not apply if a government policy or regulation spe-

cifically prescribes a course of action. Berkovitz, 108 S.Ct. at 1958.

Similarly, an employee's improper implementation of a policy or

discretionary decision does not fall under the exception. See United

States Five Ins. Co., 806 F.2d at 1537 (Coast Guard’s decision to use

method of “last :esort” on operatioral decision not exempted from

the FTCA); Drake Towing, 765 F.2d at 1065 (Coast Guard de-

cision to establish navigational aids without determining safety

characteristics of water not exempted from FTCA). If the Field

Manual did indeed prescribe or nroscribe specific metheds for identi-

fying remains in a Hart-tyvpe situation, CILHI’s actions would not

fall within the discretionary functicn exception. This argument is

inapplicable, however, for two reasons. First, it does not appear

that the Harts raised this contention below: in such a case, the

claim is waived. See Lattimore O van Construction, 868 F.2d 437,

159 (lith Cir.1989). Second, + of the sections cited by Mrs.

12a

For the reasons discussed above, we find that the

United States’ efforts to identify the thirteen servicemen

were discretionary functions, and that the court below had

no subject matter jurisdiction to consider a challenge to

those functions. In reaching this conclusion, we do not

leave family members without remedy. Family members

may challenge mistakes through military channels such

as the Armed Forces Board of the Military or ASGRO.

We simply decide that the identification procedures in-

volved were administrative decisions grounded in social

policy, which should not be second-guessed by the courts.

Like nonjusticiable political questions, these procedures

required decisions which “lack . . . judicially discoverable

and manageable standards for resolving [{them|” and

were “impossib|le| [to decide] without an intial policy

determination of a kind clearly for nonjudicial discre-

tion.” Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691,

710, 7 L.Ed.2d 663 (1962).

b. Lt. Col. Hart’s Unaccounted-for Status

As discussed supra, the discretionary function excep-

tion does not apply if a government policy specifically

prescribes an action and that policy is violated. Berkovitz,

108 S.Ct. at 1958: United States Fire Ins. Co., 806 F.2d

at 1537. The Harts point to a POW MIA interagency

memorandum which states that it was the practice of

the Government to remove names from the unaccounted

for list as their remains were identified. The Harts argue

that this practice establishes a specific federal policy, and

that because Lt. Col. Hart’s remains have not been posi-

tively identified, the Government’s failure to return his

name to the unaccounted-for list violates that policy.

Thus, they argue that the discretionary function excep-

tion cannot apply. See Berkovitz, 108 S.Ct. 1958-59.

Hart provides specific guidelines for what actions should be taken

and how. At best, they state that all procedures should be care-

fully carried oui and recorded.

13a

The Harts, however, produce no evidence other than

their own assertions that this practice is a federal policy.

In fact, the Government’s policy seems to be embodied in

its “Policy Position” statement, which states:

Clearly, in cases where the total evidence indicates

that the persons involved in the incident were in fact

killed and where recovery eiforts were thorough and

complete, we must conclude that the individuals have

been accounted for.

The Harts also claim that this policy was violated. This

argument fails for two reasons. First, it is not clear

that the above-quoted statements constitute a federal

policy for the purposes of the discretionary function ex-

ception. The exception does not protect required func-

tions, thus it does not protect functions which are man-

dated by statute, regulation, or policy. The act of deem-

ing an individual “accounted for’’ if recovery efforts were

thorough is not mandated. It depends upon the circum-

stances and the recovery efforts.

Second, the total evidence in this case indicates that the

persons aboard the aircraft were killed. The plane took

anti-aircraft fire in its forward fuel tank, resulting in a

large mid-air explosion. The two men who parachuted to

safety were located at the rear of the plane, away from

the fuselage: Lt. Col. Hart was in the front of the plane.

The two rescued men did not see anyone else survive.

Remains were found seattered about the crash site.*

*The Harts argue that the aerial photograph and the enemy

soldier’s testimony of bloody bandages and parachutes prove that

Lt. Col. Hart is still alive. They also point to an affidavit by former

Congressman William Hendon of North Carolina, in which he con-

cludes that Hart is still alive. The House Select Committee on

Missing Persons in Southeast Asia, H.R.Rep. No. 94-1764, 94th

Cong., 2d Sess. (1976), investigated the Pakse crash. The Com-

mittee found that it was unclear whether the parachutes were flare

chutes, personnel chutes, or drogic chutes, and that the parachutes

might have been deployed by th force of the crash. The Com-

l4a

There is no evidence indicating that the search was not

thorough. The CILHI team divided the crash site into

sectors and dug down as deep as 14 feet in some areas

They recovered some 50,000 bone fragments, ID. tags,

and personal effects.'" Even if the statement discussed

above did constitute federal policy, the decision to label

Lt. Col. Hart “accounted for” did not violate that policy.

Mrs. Hart expresses concern that the decision to label

her husband “accounted for’? may encourage his captors

to kill him in the event that he is alive and held hostage,

or may doom Lt. Col. Hart to live out his life in a prison

camp.'' The Government, however, must make a practical

mittee found that the bloody bandages were found 10 lilometers

from the crash site, in an area where both Royal and Pathet Lao

forces were active. Based upon this and other information. the

Committee concluded that the evidence overwhelmingly pointed to

the death of all the crew members. Similarly, the Defense Intelli-

gence Agency determined that the symbols in the acrial photograph

were more likely attributable to victims of a crash occurring only

five miles from the site of the photo.

Further, most of the evidence pointed to by the Marts is military

intelligence information. The Supreme Court has recognized that

judges have “little or no background in the delicate business of

intelligence gathering.” CIA v. Sims, 471 U.S. 159, 176. 105 S.Ct.

1881, 1891, 85 L.Ed.2d 173 (1985). Similarly, the Fourth Circuit

has noted that courts are “inexpert and unfamiliar” with intelligence

reports. Smith v. Reagan, 844 F.2d 195, 200 (4th Civ.). ecrt. denis d,

—— U.S. ——-, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988). Because

the decision as to how much weight to give this evidence is dis-

cretionary, the decision whether to credit this evidence, and to what

degree, falls under the discretionary function exception.

The Harts argue that the recovery efforts at the crash site

were not thorouch and complete. They point to the district court's

conclusion that the recovery efforts were not thorough because the

CILMI party never found the common grave described by the cap-

tured Pathet Lao soldier. Again, the decision recarding the eredi-

bility ef the enemy soldier is purely discretionary. There is ro

guideline or standard defining appropriately thorough search pro-

cedures,

"The Government explains in its reply brief that information

regarding deceased personnel is kept on file even after such per-

l5a

decision at some point regarding when to discontinue the

search for personnel. Such a decision must be discretion-

ary in order for the Government to practically pursue

such searches. Concerns such as Mrs. Hart’s “frequently

‘aise questions which are political and nonjusticiable in

nature.” Alabama Elec. Co-op, Inc. v. United States, 769

M.2d 1523, 15380 (11th Cir.1985) (quoting Hendry, 418

I'.2d at 7831). This is just such a question.

ce. Secretary Orr's Letter

Finally, Mrs. Hart argues that Secretary Orr’s letter

telling her that if she did not claim the remains they

weuld be buried -is actionable. This is a prime example

of the discretionary function. Because this avas the first

time a tamily member had refused to accept “identified”

remains, there was no policy or procedure explaining

what to do with the remains. Secretary Orr had to

rely on his own discretion. Based upon his confidence in

CILHT’s track record and his belief that the remains

had to be properly interred, he wrote the letter. Although

there may have bene other reasonable options available to

Secretary Orr, he had the discretion to choose among

those options,

B. The Merits

Althouch we find that the district court had no juris-

diction to hear the Harts’ suit, we also note that the

district court erred on the merits. To prove intentional

infliction of emotional distress under Florida law, the

plaintiff must prove: (1) deliberate or reckless infliction

of mental suffering; (2) by outrageous conduct: (3)

which conduct must have caused the suffering; and (4)

sonnel are preclaimed “accounted for’; “accounted for” and “identi-

fied” are not equal in Army terminology. In fact, it was reported

that Hart was captured alive in 1988, and a sighting of a “Tommy

IIart” was reported in Laos in tho some year: the Government has

been investigating this information.

l6éa

the suffering must have been severe. Metropolitan Life

Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla.1985)

(adopting definition laid out in Restatement (Second) of

Torts § 46); Dominguez v. Equitable Life Assur. Soc. of

the United States, 438 So.2d 58, 59 (Fla.App.1983). To

grant summary judgment on such a claim, the district

court must find that there is no genuine issue of material

fact regarding the claim. Fed.R.Civ.P. 56. This Court’s

review of the district court’s grant of summary judgment

is de novo. Shipes v. Hanover Ins. Co., 884 F.2d 1357,

1359 (11th Cir.1989). Regardless of whether the Gov-

ernment’s conduct caused severe suffering, we cannot

find that the conduct complained of was intentional or

outrageous.

Conduct is intentional “|w]here the actor knows that

[severe] distress is certain, or substantially certain to

result from his conduct.” Ford Motor Credit Co. v. Shee-

han, 373 So.2d 956, 958 (Fla.App.', cert. dismissed, 379

So.2d 204 (Fla.1979). We have seen absolutely no evi-

dence that the Government’s acts in identifying, classify-

ing, or attempting to bury the remains in question were

committed with the knowledge that they would cause

severe distress,'*

Outrageous conduct is conduct which “is so outrageous

in character. and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized commu-

nity.” MeCarson, 467 So.2d at 278-79 (quoting Restate-

ment (Second) of Torts § 46 Comment (d) (19651). The

district court found that ASGRO’s reliance on CILHI’s

identification was reasonable. The court found, however,

that Secretary Orr issued an “ultimatum” to Mrs. Hart

regarding burial without addressing the Government’s

statement that the remains would be stored. It also found

that the Government took Lt. Col. Hart off the unac-

12 The district court did not discuss this clement of the tort.

-Tfa

counted-for list without considering the evidence of the

commen grave, the bloody bandages, the five parachutes,

and the aerial photograph. The court concluded:

although, respecting some of the disparate acts of

the vovernment in this case a reasonable jury might

find a particular act was not outrageous, taken as a

whole outrageousness is provided; an average mem-

ber of society, upon recitation of these facts would

exclaim, “outrageous.’”’ Outrageousness is proved

herein as a matter of law.

The district court’s conclusion is difficult to understand.

CILHI took months-to make its identifications and at-

temped to use what scientific methods it could to make

sense of the sparse remains. The identification of Lt. Col.

Hart’s remains was made after considering CILHI’s re-

port and Mrs. Hart’s testimony. It is not clear that the

Government failed to consider the classified evidence in

its identification decision. Instead, the Government de-

cided that the classified information was not probative of

its decision. Although Secretary Orr did send Mrs. Hart

a letter telling her that if the remains were not claimed

they would be buried, the Secretary promptly postponed

the proposed interment at Mrs. Hart’s request. The Gov-

ernment also rescinded the identification at Mrs. Hart’s

request. CILHI has subsequently implemented the major-

ity of the changes suggested by the Army review panel.

Mrs. Hart herself has testified that throughout the pro-

ceedings she was treated in a very pleasant manner.

The Harts point to two Florida cases and one New

York case which they claim parallel this case in out-

rageousness. In Kirksey v. Jernigan, 45 So.2d 188 (Fla.

1950), an undertaker took a five-year-old child’s body

and embalmed it without parental consent. The under-

taker refused to return the body to the mother and, in

fact, charged the mother twice the usual amount for em-

balming. In Sherer v. Rubin Memorial Chapel, Ltd., 452

18a

So.2d 574 (Fla.App.1984), a funeral home dressed the

wrong cadaver and then tried to convince the family that

the cadaver was their loved one. After the family pre-

vailed, the funeral home would not dress the cadaver, but

simply threw clothes over it. Finally, in Kohn v. United

States, 591 F.Supp. 568 (E.D.N.Y.1984), aff'd, 760 F.2d

953 (2nd Cir.1985), the Army embalmed a soldier and

cremated some internal organs without the family’s con-

sent. The family was orthodox Jewish, and such actions

violated their faith. The Army also misled the family

regarding the circumstances of the soldier’s death.

These cases are starkly distinguishable from the Hart

“ase. In each of the above cases, the defendants made

mistakes which they deliberately tried to hide from the

families. In this case, the Government has not inten-

tionally foisted a mistake upon the Harts. It made its

identification as best it could, and when that proved to

be insufficient, it complied with every request made by

the Harts except their request that Lt. Col. Hart be re-

turned to accounted-for status. As explained above, that

decision lies within the “policv judgment” discretion of

the Army.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district

court’s grant of summary judgment and REMAND with

instructions to enter judgment for the United States.

19a

APPENDIX B

UNITED STATES DISTRICT COURT

N.D. FLORIDA

No. PCA 86-04370 WEA

ANNE M. HART, individually, ete., et al.,

Plaintiffs,

UNITED STATES OF AMERICA,

Defendant.

Jan. 12, 1988

Robert L. Crongeyer, Beggs & Lane, Fran L. Frick,

Pensacola, Fla., for plaintiffs.

Michael P. Tinney, Asst. U.S. Atty., Pensacola, Fla.,

Joan M. Bernott, Sp. Litigation Counsel, U.S. Dept. of

Justice, Lt. Col. William C. Kirk, Major James N. Hat-

ten, Office of the Judge Advocate General, Dept. of the

Army, Major James M. Kinsella, USAF, General Litiga-

tion Div., Office of the Judge Advocate General, Wash-

ington, D.C., for defendant.

MEMORANDUM DECISION

ARNOW, Senior District Judge.

In this case plaintiffs have brought suit against the

United States under the Federal Tort Claims Act, 28

U.S.C. $ 2671 et seq., for intentional infliction of mental

distress caused by the misidentification of remains as Lt.

Col. Thomas Hart, persistence in that identification, and

continued carrying of Lt. Col. Hart’s name as “accounted

20a

for” even after the Graves Registration Board rescinded

the identification. Before the court is plaintiffs’ motion

for partial summary judgment on the issue of liability,

defendant’s cross motion for summary judgment, and

plaintiffs’ motion to strike defendant’s cross motion for

summary judgment. The case is one of first impression

presenting a unique factual situation and a unique appli-

cation of the Federal Tort Claims Act to tho8e facts.

A recitation of the facts will be helpful to a full under-

standing of this court’s ruling.’

On December 21, 1972, during the Vietnam conflict, an

American Air Force AC 130 was shot down by enemy

fire in Laos. Sixteen American military personnel were

aboard. Within two hours two survivors who had para-

chuted safely from the plane before it crashed were res-

cued. Early the following morning enemy soldiers went

to the crash site. A captive enemy later reported that

dismembered remains of five or six individuals were scat-

tered about the crash site and that he never heard any

reports of survivors.” Later that day an American team

searched the crash site. No other survivors were found

but part of an arm and hand were recovered. Finger-

print analysis later identified these body parts as being

of Captain Birch, whose status was changed to killed in

action. Thirteen other crew members were listed as miss-

ing in action, including Lt. Col. Thomas Trammell Hart,

Iil.

In 1973 an American reconnaissance aircraft flying

over Northern Laos photographed a large area of grass

in the configuration of “1973TH” or ‘1573TH”. The

1In an earlier ruling the court struck the untimely responses to

plaintiffs’ request for admissions, so that every item of that request

is deemed admitted pursuant to F.R.Civ.P. 36(a), and, therefore,

conclusively established pursuant to F.R.Civ.P. 36(b).

* Those remains found were reportedly buried. (Defendant’s Ex.

D). There were also reports that some bloody bandages and 5 open

parachutes were found at the site.

2la

military intelligence analysis of this photo contained spe-

cific reference to Lt. Col. Hart, then Captain Hart.*

In 1978, a status review board convened and recom-

mended the status of Lt. Col. Hart be changed from

MIA to KIA.*

In September, 1982, members of the National League

of Families visited the crash site. Mrs. Hart, a plaintitf

here, was a member of that group. This group discov-

ered two bone fragments which were turned over to the

government and sent to the United States Army Central

Identification Laboratory, Hawaiian Islands (CIL).*

In December, 1983, eight additional bone fragments

were found by an advance team from the CIL. In Feb-

ruary, 1985, a CIL team excavated the site and recovered

approximately 50,000 bone and dental fragments along

with personal effects and ID tags, all of which were

transported to the Hawaii lab. (Complaint, paragraph

10, Answer, paragraph 10; Analysis of these was under-

taken at the CIL and the CIL recommended identifica-

tion of 13 individuals from these fragments."

3 Plaintiffs’ Request for Admissions, paragraph 1. In affidavit,

Brigadier General James W. Shufelt stated that this photo was

taken 5 months after the crash and 300 miles North of the crash

site, and that it is more plausibly associated with an aircraft crash

which occurred within 5 miles of the characters and 13 days before

the photographs were taken. But he neither disputes nor mentions

an intelligence lysis, which is admitted, linking this photo with

Lt. Col. Hart. (Defendant’s Ex. F).

4 At this time the Review Board and Mrs. Hart were ignorant of

the photograph and analysis referred to in footnote 3.

> These 2 fragments were later identified by CIL as belonging to

Lt. Col. Hart along with 5 other fragments out of 50,000 found

during a 1985 excavation of the crash site. (Complaint, paragraph

12, Answer, paragraph 12).

® No fragments were identified as belonging to Captain Birch

altheugh his ID tag was found. (Complaint, paragraph 13, Answer,

paragraph 13). The majority of the fragments found, being deter-

22a

Among those identified was Lt. Col. Hart. The CIL

reported these findings to the Armed Services Graves

Registration Board (ASGRO}. The ASGRO accepted the

identifications and the families were notified.

Mrs. Hart requested, and was refused, an independent

forensic anthropologic examination of all 15 sets of re-

mains. Thereafter she brought suit in the Centra! Dis-

trict of California for an injunction, but before hearing

the Air Force allowed the independent examination of

the remains identified as Lt. Col Hart. Dr. Michael Char-

ney, PhD, conducted the examination and concluded that

the 7 small bone fragments which had been identified by

CIL as those of Lt. Col. Hart could not have been so

identified.« The defendant admits that the remains iden-

tified as those of Lt.Col. Hart lacked the criteria neces-

sary for identification pursuant to any recognized scien-

tific procedure, and that the identification was based upon

examination of the 7 bone fragments and the exclusion

of other casualties involved in this crash. ( Plaintiffs’

Request for Admissions paragraphs 5 and 7)

Although Mrs. Hart’s request for a permanent in-

junction was denied, the government asserted that, if the

next of kin did not want to bury the remains, because

of an independent examination throwing doubt upon the

identification, the Air Force would accept return of the

mined to be too small or too unexceptional to be helpful to the

identification team were not used in the identification. (Declaration

of Tadao Furue (decument 58) at pg. 5). Identifications of all 13

of the unaccounted for cref members were reported made. (Com-

plaint, paragraph 15, Answer, paragraph 15).

7 “Tt is impossible to determine whether these fragments are from

LTC HART or any other individual, whether they are from one

individual or several, or whether they are even frem any of the crew

members of the AC-130A aircraft in question.” (Declaration of

Michael Charney, PhD, in Hart v. Orr, Civil No. C-85-4324 WHO,

filed July 11, 1985). No dental identification was possible in the

identification of Lt. Col. Hart, nor were ID tags or personal effects

found which were asscciated with him. (Defendant’s Ex. H, Attach-

ment B at form DD 890 and form DD 891). -

23a

remains and they would just remain unclaimed remains

kept in a mortuary. Hart v. Orr, No. C-85-4324 WHO

(N.D.Cal.1985) (Transcript of Proceedings on July 18,

1985) .8

In October of 1985, two events occurred. Ellis R.

Kerley, PhD, was asked by the Army to conduct an

evaluation of the procedures used at the CIL in identi-

fying remains and the Air Force wrote Mrs. Hart, ap-

parently without any regard for contrary assurances

made to her in July, requiring that she arrange for dis-

posal of the remains identified as her husband and ad-

vising that if she did not the Air Force would arrange

burial of such remains as being those of her husband at

Arlington National Cemetery.

In December of 1985 the inspection of the CIL was

conducted. The inspection team was unable to make or

confirm eleven of the thirteen proposed identifications

with any scientific certainty. Dr. William Maples of the

inspection team characterized CIL’s failure to exercise

proper standards of identification as “blatant”. (Plain-

tiffs’ Request for Admissions, paragraph 14). The CIL

had “apportioned co-mingled masses of unidentified re-

mains into the known number of individuals involved in

a common accident for release to the next of kin as in-

cdividually identified remains.” ®

8“Yes. the plaintiff’s attorney has requested what would hap-

pen—-suppose it was sent te a laboratory somewhere; they disagreed

with it, and the next of lin did not want te bury because they did

not believe, for some reason, that it was the remains—the Govern-

ment-—the Air Force—-is willing to consider that assuming that we

can protect the integrity of the remains—that they would then

accent a return of the remains from the next of kin; and the next

of kin, essentially, just rejecting the remains—those remains. Then

they would just be kept, I believe, probably, unclaimed remains,

and just maintained in a—mortuary storage—-or something .. .—

as unclaimed.” (Plaintiffs’ Request for Admissions, paragraph #10).

9 Plaintiffs’ Request for Admissions, paragraph 13. This. in vio-

lation of Air Ferece Regulation 143-1(¢)(3) dated December 28,

1983. (Defendant’s Ex: V at pg. 9).

24a

As a result of this investigation the Graves Registra-

tion Board rescinded the identification of Lt. Col. Hart.

yet the departments of the Army and Air Force refused

to place his name again on the unaccounted for list."

Liability under the Federal Tort Claims Act is de-

termined in accordance with state law. 28 U.S.C. § 1346

(b) Florida law is applicable here. Under Florida law

for the plaintiff to prevail in this action the following

four elements must be established: 1) deiiberate or reck-

less infliction of menta] suffering; 2) outrageous con-

duct; 3) the conduct must have cause the distress: and

4) the distress must be severe. Metropolitan Life iIn-

surance Co. v. McCarson, 467 So.2d 277 ( Fla.1985).

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories and admissions

on file, together with affidavits on file... show that there

is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of

law. F.R.Civ.P. 56(¢).

In the instant case, by affidavits ef Dr. Jack Moser

and Mrs. Hart, the mental distress of Mrs. Hart, its se-

riousness, and its cause, are proved. The government has

presented no evidence to controvert the establishment of

10 The policy of the government is that, when identifications are

rescinded and information exists which indicates that one or more

individuals survived or may have survived, those individuals will be

listed as unaccounted for but unidentified individuals will continue

to be listed as accounted for, when the recovery efforts were thor-

ough and complete. (Defendant’s Ex. T). The thoroughness of the

recovery effort here is not established. In fact, evidence exists

which tends to prove the lack of thoroughness. A member of the

Pathet Lao, who later surrendered, stated that he went to the crash

site shortly after the crash and found 5 parachutes, two small piles

of bloody bandages, and the remains of five or six people which were

then buried in a common grave at the site. (Legal Review of Status

Review Hearing attached to Defendant’s Ex. D). During the exca-

vation no evidence of anv grave was found. ( Defendant’s Ex. G).

25a

these elements, but has confined its opposition to plain-

tiffs’ motion to the single issue of outrageousness."'

Adopting the Restatement (Second) of Torts § 46

(1965), the Florida Supreme Court held that:

Liability has been found only where the conduct is

so outrageous in character, and so extreme in de-

gree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intol-

erable in a civilized community. Generally the case

is one in which the recitation of the facts to an aver-

age member of the community would arouse his re-

sentment against the actor, and lead him to exclaim,

“Outrageous!”

467 So.2d at 279. (Citation omitted)

The question of whether or not the complained of be-

havior rises to the level of outrageousness necessary to

constitute the tort is a matter of law, no fact. Ponton v.

Scarfone, 468 So.2d 1009, 1011 (Fla. 2d DCA 1985).

The test is whether the behavior is “so outrageous in

character, so extreme in degree, as to go beyond all pos-

sible bounds of decency . . . atrocious, and utterly intol-

erable in a civilized community. Jd. (quoting Metropoli-

tan Life Insurance Company v. McCarson, 467 So.2d 277

(Fla. 1985) ).

Regarding summary judgment, the Supreme Court has

directed:

The judge must ask himself not whether he thinks

the evidence unmistakably favors one side or the

other, but whether a fair-minded jury could return

a verdict for the [defendant] on the evidence pre-

sented. The mere existence of a scintille of evidence

in support of the |defendant’s} position will be in-

11 Indeed, defendant’s cross motion for summary judgment is

premised solely upon its assertion that defendant’s actions were

not outrageous.

26a

sufficient: there must be evidence on which the jury

could reasonable find for the {defendant}. The

judge’s inquiry, therefore, unaviodably asks whether

reasonable jurors could find by a preponderance of

the evidence that the plaintiff is entitled to a verdict

—‘whether there is [evidence] upon which a jury

can properly proceed to find a verdict for the party

conducting it, upon which the onus of proof is im-

posed.”

Anderson v. Liberty Lobbu, lie., 477 U.S. 242, 252, 106

S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (citation omitted).

The sentiment expressed by the Florida Supreme Court

in Kirksey v. Jernigan, 45 So.2d 188 (1950), although

the case is clearly distinguishable on its facts, is instruc-

tive. The court stated “the right to recover... is es-

pecially appropriate to |torts| .. . involving dead hu-

man bodies, where mental anguish to the surviving rela-

tives is not only the natural and probable consequence

of the character of wrong committed, but indeed is fre-

quently the only injurious consequence to follow from it.

Id at 189.

The government asserts that its actions in identifying

the remains initially was reasonable, but no evidence of

this reasonableness exists. In fact, in light of subsequent

findings it was and is outrageous. The government then

asserts that the adoption of that identification by the

Graves Registration Boara was reasonable. Under the

evidence submitted it was reasonable. The GRP. relied

upon the CIL identification at that time and there is

no evidence to indicate such reliance at that time was

unreasonable. Next, the government asserts that the Oc-

tober, 1985, letter to Mrs. Hart containing the ultimatum

that either she accept the remains and bury them or the

government would do so was reasonable because the Sec-

retary of the Air Force concluded there was a reason-

able basis upon which to believe the identification was

accurate. (Declaration of Vern Orr, Defendant’s Ex. D).

27a

Nowhere does Secretary Orr address the reasonablene-:

of this action in light of the government’s assurance of

contrary action at the July, 1985, district court proceed-

ings. Further, the government addresses the asserted

outrageousness of maintaining Lt. Col. Hart on the ac-

counted for list with the affidavit of Brigadier Genera!

James Shufelt of the Defense Intelligence Agency, who

coneludes there is no evidence to support the assertion

that anyone other than the two survivors who were picked

up at the scene survived. (Defendant’s Ex. F) The af-

fidavit ignored the information about a commen grave,

which was not found, the two piles of bloody handages,

and 5 parachutes, and dismissed assertions that the

photographs of “1573TH” or 1973TH” were connected

with Lt. Col. Hart without addressing why such a con-

nection was ever made.

This court concludes that, although, respecting some

of the disparate acts of the government in this case a

reasonable jury might find a particular act was not out-

rageous, taken as a whole outrageousness is proved: an

average member of society, upon recitation of these facts

would exclaim, “outrageous.” Outrageousness is proved

herein as a matter of law. There being no disputed issue

of material fact, the plaintiff Anne M. Hart, individually,

is entitied to summary judgment on the issue of liability

as a matter of law.

Insofar as the remainder of the plaintiffs are con-

cerned, the record before this court is insufficient to es-

tablish for purposes of summary judgment the liability

of the government to them. Insofar as the government's

cross motion is concerned, it is insufficient to establish

there was no liability on the part of the government to

them.

An order in accordance with this memorandum deci-

sion will be entered.

28a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PCA 86-04370 WEA

ANNE M. HART, individually, etc., et a.,

Plaintiffs,

VS.

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM DECISION

| Filed Oct. 20, 1988]

In this case the court has, by prior summary judg-

ment, determined that the defendant is liable to plain-

tiff Anne M. Hart ‘hereinafter Anne) for the severe

emotional distress she has sustained by virtue of its

actions so that there is now involved only the question of

damages as far as she is concerned.

Insofar as plaintiffs Vera Lee Hart (hereinafter Vera)

and Gillian Elaine Hart (hereinafter Gillian) are con-

cerned, the matter is before the court on the question

both of liability of the defendant to them and, if there is

liability, the amount of damages.

The pertinent facts giving rise to this action are set

forth in detail in the attached copies of pages 1 through

6 of this court’s memorandum decision of January 12,

1988 ‘doe. 68), which are mace a part hereof by refer-

ence.

29a

ANNE M. HART

From the evidence before this court, prior to the mis-

identification of remains gathered at the crash site in

Laos, Anne to a large extent had adjusted to the loss of

her husband. Sharon Ezell, who has known her since

1981, testified Anne was an active, capable mother who

was very attentive to her children and who was effectively

managing a large household while participating in out-

side activities related to the MIA issue. She had also

maintained her patriotic faith in the rectitude of the

federal government.

Dr. Jack Mosher, a mental health counselor who first

came to know Anne while he served as a guidance coun-

selor at 2 parochial school her children were attending in

the late 1970s, described her as an active, articulate and

enthusiastic person who was intensely interested in her

progeny’s academic progress. Thomas Trammel Hart,

IV, Anne’s twenty five year old son, remembered his

mother as 2 warm, caring, happy person who took good

‘ave of herself and the family prior to July 1985. His

observation was confirmed by Heather Anne Hart, Anne’s

seventeen year old daughter and youngest child.

Subsequent to the event of the latter half of 1985

Anne’s* condition changed significantly. Her frustrating

struggle with what she perceived to be an indifferent and

unresponsive government undercut the foundations upon

which her life had been built. As her feelings of power-

lessness and alienation grew, she began to engage in

emotional outbursts when dealing with the government’s

representatives. By February 1986 Anne knew she had

seyjous emotional problems and began to see Dr. Jack

Mosher for mental health counseling.

Under the evidence before this court she was no longer

able to function or cope with the demands of daily life.

She found herself unable to care for the children, keep the

house clean or even pay the family’s bills. Previously in-

30a

volved and organized, she took no part in a daughte’s

wedding; it was all she could do to attend the ceremony.

At the same time she stopped participating in National

League of Families activities because she no longer

possessed the drive and energy necessary to continue

doing so. Instead, obsessed with the Vietnam war, she

spent nearly all of her time at a local vet center. The

children were neglected, her home was unkept, and her

personal appearance became increasingly shoddy.

Sharon Ezell articulated specific changes in Anne’s

condition and behavior. She recalled getting phone calls

from the children who complained there was no food in

the house and decried their mother’s refusal to speak to

them. Overall, Sharon Ezell observed that Anne was

simply unable to function, evincing signs of escalating

emotional turmoil: smoking four or five packs of ciga-

rettes a day: nervously twisting her hair into knots: let-

ting her appearance deteriorate; refusing to eat; pacing

the floor; and phoning at late hours because she was

unable to sleep.

Thomas Trammell Hart, IV, testified that by February

1986 his mother was unable to shop, cook, or pay the bills,

causing the utilities to be disconnected on several oc-

casions even though sufficient funds were always avail-

able. He also observed that she has become shrewish and

intolerant, discouraging visits by the childrens’ friend

which she had previously welcomed. Closeting herself in

an upstairs bedroom with a television set and a coffee-

maker, she paced the floor unable to sleep, leaving the

house only to go to the local vet center where she served

as a volunteer.

Dr. Jack Mosher, who first saw Anne professionally in

February 1986, and was duly qualified as an expert wit-

ness, relaced similar observations. He explained that the

active, joyful woman he had known in the late 1970s had

become joyless, docile and alienated. Physically she showed

symptoms of intense stress and emotional disturbance:

a eeEEeeeeeeeeeeeeEeEeeEeEeeeeee———eEe—EEE

3la

drastic weight loss; a pallid complexion; an unkept ap-

pearance; and constant smoking and coffee drinking. Dr.

Mosher concluded that her condition demonstrated the

debilitating consequences of severe emotional distress. In

July 1986 he diagnosed her condition as situational de-

pression, ultimately arriving at a treating diagnosis of

depressive neurosis, an affiiction she continues to suffer

from today.

Under Dr. Mosher’s testimony 75% of Anne’s de-

pressive neurosis was attributable to the government’s

misconduct and 25°) to other causes. His testimony also

establishes Anne’s depressive neurosis as a permanent

condition with no prospect for recovery, and that the

government’s ongoing refusal to reclassify Lt. Col. Thomas

Hart as unaccounted for continues to cause her great

distress. In support of his professional opinion, Dr.

Mosher deseribed the results of a widely accepted person-

ality inventory he administered in 1988. The test revealed

severe Cepression, confusion and deep pessimism. Signifi-

cantly it indicated that Mrs. Hart’s ego strength was

simply inadequate to permit recovery: she lacked the force

of will to “bounce back”. Dr. Mosher continues to see

her in the hope that this assessment will ultimately

prove overly pessimistic.

The government offered no evidence to refute or con-

tradict the foregoing expert testimony and did not dis-

pute his causal finding. Under the evidence presented

this court ean only conclude that Anne has suffered sig-

nificant compensable injury as a consequence of the gov-

ernment’s outrageous conduct.

To determine the appropriate measure of damages, this

court has reviewed state court awards in similar cases.

Johnson v. U.S. 780 F.2d 902, 907 (11th Cir. 1986)

(measure and components of damages for FTCA claims

should be determined with reference to relevant state

court decisions of the jurisdiction where the tort oc-

curred). The Florida cases proved to be of relatively

32a

limited value because this case is seemingly “one of first

impression presenting a unique factual situation and a

unique application of the FTCA to those facts.’ Memo-

randum Decision at 1-2 (doc. 68). Nevertheless, one

Florida case involving analogous facts and an emotional

distress claim provides a useful point of departure.

In Smith v. Telophase National Cremation Society, 471

So.2d 163 (Fla. 2d DCA 1985), the court held that an

award of $250,000 in compensatory damages was not ex-

cessive, reversing the trial court’s remittiture to

$100,000. 471 So.2d at 166-167. Smith involved the mis-

handling and misidentification of the plaintiff's husband’s

ashes which were not disposed of in accordance with her

explicit instructions, causing her to suffer extreme mental

distress.

Several considerations distinguish Smit/ from the facts

presented here.

First, Mrs. Smith know for a certainty that her hus-

band was dead; her distress arose solely from the mis-

identification and improper handling of his ashes. Anne,

however, was and remains uncertain of her husband’s

fate: she did not and does not know whether he is dead

cr alive. Such a situation is far more egregious than that

presented in Smith, and logically more likely to produce

a higher level of emotional distress and mental suffering.

Second, the misconduct in Smith constituted a discrete

and completed incident, while the situation here remains

unresolved. Anne has been subjected to a drawnout and

ongoing emotional roller coaster. The government first

positively identified certain remains as those of Lt.Col.

Thomas Hart, refused his wife’s request for a second

opinion, then subsequently rescinded its identification.

And yet it continues to classify him as accounted for

despite the lack of any evidence upon which to base such

a classification. Thus, unlike Mrs. Smith, Anne’s quan-

dary has not been resolved and continues to cause her

severe emotional distress.

33a

Finally, Anne, again apparently unlike Mrs. Smith,

suffers from depressive neurosis with no prospect for re-

covery. She is afflicted with a serious, permanent condi-

tion that drastically impairs her ability to function and

cope with everyday life. As far back as 1974 in Metro-

politan Dade County v. Dillon, 305 So.2d 36 (Fla. 3d

DCA 1974), the court upheld an award of $500,000 to

compensate a young mother whose depressive neurosis

was brought on by the tragic and wrongful death of her

six year old daughter.

This court concludes that Anne’s damages for severe

emotional distress are $500,000. Accepting Dr. Mosher’s

uncontroverted testimony that 75% of her injuries are

attributable to the government’s misconduct, Anne shall

recover $375,000.00. In addition, she shall be awarded

$7,814.62, being the amount of stipulated economic dam-

ages. Total recovery shall be $382,814.62.

VERA LEE HART AND GILLIAN ELAINE HART

Liability unded the Federal Tort Claims Act is deter-

mined in accordance with state law. 28 U.S.C. § 1346(b).

Florida law is applicable here. For plaintiffs Vera and

Gillian to prevail under Florida law the following four

‘elements must be established: 1) deliberate or reckless

infliction of emotional suffering; 2) outrageous conduct;

3) the conduct must have caused the distress and 4) the

distress must be severe. Metropolitan Life Insurance Co.

v. McCarson, 467 So.2d 277 (Fla. 1985).

Adopting the Restatement (Second) of Torts § 46

(1965), the Florida Supreme Court held that:

Liability has been found only where the conduct is so

outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to

be regarded as atrocious, and utterly intolerable in a

civilized community. Generally the case is one in

which the recitation of the facts to an average mem-

34a

ber of the community would arouse his resentment

against the actor, and lead him to exclaim, “Out-

rageous!”’

467 So.2d at 279.

The question whether the complained of behavior rises

to the level of outrageousness necessary to constitute the

tort is a matter of law, not fact. The test is whether

the behavior is “so outrageous in character, so extreme

in degree, as to go beyond all possible bounds of decency

... atrocious, and utterly intolerable in a civilized com-

munity.” Ponton v. Scarfone, 468 So.2d 1099, 1011 (Fla.

2d DCA 1985). In addition, the outrageous conduct must

have caused distress that no reasonable person in a civil-

ized society should be expected to endure. Kracer Fu-

neral Homes, lnc. v. Noble, 521 So.2d 324 (Fla. 4th DCA

1988).

After reviewing all the evidence this court concludes

that defendant is liable for compensatory damages for

the reckless infliction of emotional distress as to both

Vera and Gillian.

VERA LEE HART

Vera is the mother of Lt.Col. Thomas Hart. He was

her oldest child and only son. Throughout the events of

the latter half of 1985 Vera was kept up to date on her

son’s case by representatives of the government. Anne

testified the government did so pursuant te her request,

which included her desire to be contacted first so she

could prepare Vera for the news. After Lt.Col. Hart

was reclassified such communications were discontinued,

but Anne was still in constant touch with Vera and kept

her well informed of developments as they occurred. Vera

was fully aware of the government’s conduct and par-

ticipated fully in the family’s often frustrated but tena-

cious efforts to rectify the situation.

The evidence presented established that Vera suffered

mental distress which was factually and legally caused

35a

by the government’s handling of the matter. She man-

aged to carry on after the initial shock when she was

informed her son was missing in action. Indeed, she con-

tinued to work as a bookkeeper and officer manager for a

local newspaper in Live Oak, Florida. She also went back

to school in 1972 and subsequently obtained a real estate

license. Vera had regained what she described as a

semblance of stability and order in her life; she had ad-

justed to the apparent loss of her son.

Ann Carolyn Hart and Sharon Ratliffe described their

mother as an active, caring person who was very involved

in her church prior to July 1985. Ann Carolyn Hart

observed significant changes in her mother following the

misidentification and ensuing events. She explained that

her mother was no longer interested in church or family

activities, even losing interest in attending the annual

family reunion at Thanksgiving which she had previously

organized and managed. Vera was described as depressed

and uninterested in anythirg besides her son’s case. Both

her daughters described her as withdrawn, spending most

of her time sitting on the sofa sifting through the docu-

mentation on her son in an apparently aimless and repeti-

tive manner. She left her position with the local news-

paper and now only works part time in a clerical position

described as below her capabilities. Anne testified that

her mother-in-law is now unable to cope with life and,

like herself, is obsessed with the status and fate of her

only son.

GILLIAN ELAINE HART

Gillian is twenty two years old. She is the eldest

daughter of Lt.Col. and Mis. Thomas Hart. Her sister

Heather Anne Hart. testified that prior to the events of

the second half of 1985 Gillian was a normal, happy,

athletic and independent individual. While in high school

she ran cross country and played tennis and basketball.

Prior to the erroneous positive identification of her fa-

ther’s remains Gillian had moved to Northern California

to attend school and pursue an acting career.

36a

Of all the children Gillian was the only one who had

distinct memories of her father, whom she said she deeply

loved. On July 2, 1985, Anne called to inform her that

her father’s remains had been positively identified. Gil-

lian testified that she was surprised, saddened and an-

gered. Mother and daughter discussed their desire for a

second opinion to confirm or contradict the government’s

findings. Thereafter, they were in frequent contact re-

garding Lt.Col. Hart’s case. According to Anne, they

talked on the phone about it approximately three or four

times a week. Gillian even made a trip to Washington

from Berkeley, California to support her mother’s efforts.

After her return from our nation’s capital, Gillian

began to feel increasingly empty and hurt. She testified

that she began to overeat and then purge herself. As

her depression grew she began to lose motivation and

interest in her own affairs; ignoring audition calls and

dropping her classes at a local junior college.

When she returned to Pensacola to visit at Christmas

in 1985 her family noticed significant behavioral changes.

Heather Anne Hart observed her constant eating and

purging. She noticed that her hitherto happy go lucky

sister had become intolerable yet passive. Gillian in-

formed Heather of her distress over the government’s

“lving” and related her feelings of alienation from her

government and country, which she had previously held

in highest esteem. Heather also stated that her sister

called much more often thereafter, sounding disillusioned

and depressed. She suspected that Gillian was having

trouble sleeping because she would frequently call very

late at night.

Gillian next saw her family during the Thanksgiving

holiday in 1986. Anne noticed that she was unusually

thin. Gillian testified she had lost forty five pounds be-

tween July 1984 and Thanksgiving 1986! but is now

15-20 pounds overweight). She attributed her drastic

37a

body weight fluctuations to the gorging and purging be-

havior pattern she developed subsequent to the events of

the latter half of 1985. Heather Anne Hart also ex-

pressed her concern when she saw how thin and irritable

her sister had become.

Based on the evidence before -it this court concludes

that Vera and Gillian have individually established a

right to recovery for the reckless infliction of severe dis-

tress under Florida law. See McCarson, supra. The gov-

ernment recklessly engaged in outrageous conduct* which

factually and legally caused Vera and Gillian to suffer

“emotional distress of such substantial [and] enduring

quality, that no reasonable person in a civilized society

should be expected to endure it.” Kraeer Funeral Homes,

Inc., supra at 325. This court holds that Vera and Gil-

lian have each incurred damages in the amount of

$125,000 as a result of the government’s conduct.

The foregoing awards refiects the absence of any evi-

dence tending to show that Vera or Gillian, unlike Anne,

will be permanently afflicted. Nevertheless, this court

finds that Vera and Gillian, as the mother and eldest

daughter of Lt.Col. Thomas Hart, are entitled to a size-

able recovery based solely on severe emotional distress.

Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950).

Although conscious of the importance of Florida prece-

dent, this court found that Kohn v. U.S., 591 F.Supp. 568

(E.D. N.Y. 1984) involved the most similar facts, and

otherwise provides a persuasive comparable verdict. The

Kolin court applied the substantive law of New York,

which iike llorida recognizes this tort. See e.g., Johnson

vu. State of New York, 37 N.Y. 2d 378, 334 N.E. 2d 590,

* The element of outrageous conduct is established since the con-

duct complained of here consisted of precisely the same acts that this

court previously held were outrageous as a matter of law as to

Anne M. Hart. See Memorandum Decision (doc. 68). These acts

were consistently communicated to and discussed with Vera and

Gillian by Anne.

38a

372 N.Y.S. 2d 638 (1975); Thompson v. Duncan Brothers

Funeral Home, Inc., 116 Mise. 2d 227, 455 N.Y.S. 2d 324

(N.Y. Cir.Ct. 1982). In Kohn a Jewish serviceman was

killed by a fellow soldier. Without informing his family,

and contrary to their deeply held religious beliefs, the

body was autopsied and embalmed before being returned

to the family in New York. Decedent’s parents sought

damages for the emotional distress caused, inter alia, by

the performance of the unauthorized autopsy; embalming

the body; and communicating inaccurate and misleading

information about the circumstances surrounding their

son’s death. 591 F.Supp. at 568. The court awarded Mr.

and Mrs. Kohn $105,000 each as compensation for the

extreme emotional distress caused by the Army’s conduct.

The circumstances presented here are more aggravated

than those in Kohn. Unlike the Kohns, Vera and Gillian

are and remain uncertain of Lt.Col. Thomas Hart’s fate.

Moreover, their distress, although not shown to be per-

manent, is ongoing since the government still refuses to

acknowledge that Lt.Col. Hart is unaccounted for, pro-

longing their mental suffering. At least the Kohns were

able to bury their son, put the incident behind them, and

carry on with their lives. It remains unclear when Vera

and Gillian will finally be able to do the same.

For all the foregoing reasons, this court concludes that

Vera and Gillian’s damages for severe emotional distress

are $125,000 each, and they shall individually recover

such a sum.

Judgment in accordance with this memorandum deci-

sion will be entered.

DATED this 20th day of October, 1988.

/s/ Winston E. Arnow

WINSTON E. ARNOW

Senior Judge

39a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-3193

ANNE M. Hart, individually and as natural guardian for

GILLIAN ELAINE HART, VERA LEE HART,

Plaintiffs-A ppellees,

versus

UNITED STATES OF AMERICA,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION (S) OF REHEARING IN BANC

‘Opinion March 1, 1990, 11th Cir., 198-, ——- F.2d ——)

(April 27, 1990)

Before JOHNSON, HATCHETT, and ANDERSON, Cir-

cuit Judges.

PER CURIAM:

(“) The Petition(s) for Rehearing are DENIED and

no member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing in bane (Rule 35, Federal Rules of

Appellate Procedure: Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing In Banc are DENIED.

ENTERED FOR THE COURT:

‘s/ |Iilegible] Johnson

United States Circuit Judge

40a

APPENDIX D

STATUTES INVOLVED

S 1346. United States as defendant

(a) The district courts shall have original jurisdiction,

concurrent with the United States Claims Court, of:

(1) Any civil action against the United States

for the receovery of any internal-revenue tax alleged

to have been erroneously or illegally assessed or col-

lected, or any penalty claimed to have been collected

without authority or any sum alleged to have been

excessive or in any manner wrongfully collected

under the internal-revenue laws;

(2) Any other civil action or claim against the

United States, not exceeding $10,000 in amount,

founded either upon the Constitution, or any Act of

Congress, or any regulation of an executive depart-

ment, or upon any express or implied contract with

the United States, or for liquidated or unliquidated

damages in cases not sounding in tort, except that

the district courts shall not have jurisdiction of any

civil action or claim against the United States founded

upon any express or implied contract with the United

States or for liquidated or unlicuidated damages in

cases not sounding in tort which are subject to sec-

tions 8(g)(1) and 10(a)(1) of the Contract Dis-

putes Act of 1978. For the purpose of this para-

graph, an express or implied contract with the Army

and Air Foree Exchange Service, Navy Exchanges,

Marine Corps Exchanges, Coast Guard Exchanges,

or Exchange Councils of the National Aeronautics

and Space Administration shall be considered an ex-

press or implied contract with the United States.

(b) Subject to the provisions of chapter 171 of this

title, the district courts, together with the United States

4la

District Court for the District of the Canal Zone and the

District Court of the Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims against the United

States, for money damages, accruing on and after Janu-

ary 1, 1945, for injury or loss of property, or personal

injury or death caused by the negligent or wrongful act

or omission of any employee of the Government while

acting within the scope of his office or employment, under

circumstances where the United States, if a private per-

son, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred.

* * * *

CHAPTER 171—TORT CLAIMS PROCEDURE

$ 2671. Definitions

As used in this chapter and sections 1346(b) and

2401(b) of this title, the term—

“Federal agency” includes the executive depart-

ments, the judicial and legislative branches, the mili-

tary departments, independent establishments of the

United States, and corporations primarily acting as

instrumentalities or agencies of the United States,

but does not include any contractor with the United

States. es

“Employee of the government” includes officers or

employees of any federal agency, members of the

military or naval forces of the United States, mem-

bers of the National Guard while engaged -in training

or duty under section 316, 502, 503, 504, or 505 of

title 32, and persons acting on behalf of a federal

agency in an official capacity, temporarily or per-

manently in the service of the United States, whether

with or without compensation.

“Acting within the scope of his office or employ-

ment”, in the case of a member of the military or

naval forces of the United States or a member of the

42a

National Guard as defined in section 101(3) of title

32, means acting in line of duty.

$2672. Administrative adjustment of claims

The head of each Federal agency or his designee, in

accordance with regulations prescribed by the Attorney

General, may consider, ascertain, adjust, determine, com-

promise, and settle any claim for money damages against

the United States for injury or loss of property or per-

sonal injury or death caused by the negligent or wrong-

ful act or omission of any employee of the agency while

acting within the scope of his office or employment, un-

der circumstances where the United States, if a private

person, would be liable to the claimant in accordance

with the law of the place where the act or omission oe-

curred: Provided, That any award, compromise. or set-

tlement in excess of $25,060 shall be effected only with

the prior written approval of the Attorney General or

his designee.

Subject to the provisions of this title relating to civil

sclions on tort claims against the United States, any

such award, compromise, settlement, or determination

shall be final and conclusive on all officers of the Govern-

ment, except when procured ly means of fraud.

Any award, compromise, or settlement in an amount

of $2,500 or less made pursuant to this section shall be

paid by the head of the Federa! agency concerned out of

appropriations available to that agency. Payment of any

award, compromise, or settlement in an amount in excess

of $2,500 made pursuant to this section ov made by the

Attorney General in any amount pursuan: to section

2677 of this title shall be paid in a manner similar to

judgments and compromises in like causes and appropri-

ations or funds available for the payment of such judg-

ments and compromises are hereby made available for the

payment of awards, compromises, or settlements under

this chapter.

48a

The acceptance by the claimant of any such award,

compromise, or settlement shall be final and conclusive

on the claimant, and shall constitute a complete release

of any claim against the United States and against the

employee of the government whose act or omission gave

rise to the claim, by reason of the same subject matter.

\ 2674. Liability of 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 circumstances, but shall not be liable for in-

terest 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.

With resnect to any claim under this chapter, the

United States shall be entitled to assert any defense

based upon judicial or legislative immunity which other-

wise would have been available to the employee of the

United States whose act or omission gave rise to the

claim, as well as any other defenses to which the United

States is entitled.

With vespect to any claim to which this section ap-

plies, the Tennessee Valley Authority shall be entitled

to assert any defense which otherwise would have been

available to the employee based upon judicial! or legislative

immunity, which otherwise would have been available to

the employee of the Tennessee Valley Authority whose

act or omission gave rise to the claim as well as any

Disposition

evidence

\, ,

ida

the Tenne

ipvel

/ . /

fed

as har

4da

the claimant, by reason of the same subject matter,

against the employee of the government whose act or

omission gave rise to the claim.

‘2677. Compromise

The Attorney General or his designee may arbitrate,

compromise, or settle any claim cognizable under section

1346(b) of this title, after the commencement of an

action thereon.

(As amended July 18, 1966, Pub.L. 89-506, $ 3, 80 Stat.

307.)

* 2678. Attorney fees; penalty

No attorney shall charge, demand, receive, or collect

for services rendered, fees in excess of 25 per centum of

any judgment rendered pursuant to section 1346(b) of

this title or any settlement made pursuant to section 2677

this title, or in excess of 20 per centum of any award,

compromise, or settlement made pursuant to section 2672

of this title.

Any attorney who charges, demands, receives, or col-

lects for services rendered in connection with such claim

any amount in excess of that allowed under this section,

if recovery be had, shall be fined not more than $2,000

or imprisoned not more than one year, or both.

(As amended July 18, 1966, Pub.L. 89-506, § 4, 80 Stat.

307.)

‘2679. Exclusiveness of remedy

‘a! The authority of any federal agency to sue and

be sued in its own name shall not be construed to author-

ize suits against such federal azency on claims which are

comnizable under section 1346(b) of this title, and the

remedies provided by this title in such cases shall be

exclusive.

46a

(b) (1) The remedy against the United States pro-

vided by sections 1346(b) and 2672 of this title for in-

jury or loss of property, or personal injury or death

arising or resulting from the negligent or wrongful act

or omission of any employee of the Government while

acting within the scope of his office or employment is

exclusive of any other civil action or proceeding for

money damages by reason of the same subject matter

against the employee whose act or omission gave rise to

the claim or against the estate of such employee. Any

other civil action or proceeding for money damages aris-

ing out of or relating to the same subject matter against

the employee or the employee’s estate is precluded without

regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply to a civil

action against an employee of the Government—

(A) which is brought for a violation of the Con-

stitution of the United States, or

(B) which is brought for a violation of a statute

of the United States under which such action against

an individual is otherwise authorized.

(ec) The Attorney General shall defend any civil action

or proceeding brought in any court against any employee

of the Government or his estate for any such damage or

injury. The employee against whom such civil action or

proceeding is brought shall deliver within such time after

date of service or knowledge of service as determined by

the Attorney General, all process served upon him or an

attested true copy thereof to his immediate superior or

to whomever was designated by the head of his depart-

ment to receive such papers and such person shall

promptly furnish copies of the pleadings and _ process

therein to the United States attorney for the district em-

bracing the place wherein the proceeding is brought, to

the Attorney General, and to the head of his employing

Federal agency

47a

(d)(1) Upon certification by the Attorney General

that the defendant employee was acting within the scope

of his office or employment at the time of the incident

out of which the claim arose, any civil action or proceed-

ing commenced upon such claim in a United States dis-

trict court shall be deemed an action against the United

States under the provisions of this title and all references

thereto, and the United States shall be substituted as

the party defendant.

(2) Upon certification by the Attorney General that

the defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose, any civil action or proceeding

commenced upon such claim in a State court shall be

removed without bond at any time before trial by the

Attorney General to the district court of the United

States for the district and division embracing the place

in which the action or proceeding is pending. Such action

or proceeding shall be deemed to be an action or proceed-

ing brought against the United States under the pro-

visions of this title and all references thereto, and the

United States shall be substituted as the party defendant.

This certification of the Attorney General shall conclu-

sively establish scope of office or employment for purposes

of removal.

(3) In the event that the Attorney General has re-

fused to certify scope of office or employment under this

section, the employee may at any time before trial peti-

tion the court to find and certify that the employee was

acting within the scope of his office or employment. Upon

such certification by the court, such action or proceeding

shall be deemed to be an action or proceeding brought

against the United States under the provisions of this

title and all references thereto, and the United States

shall be substituted as the party defendant. A copy of

the petition shall be served upon the United States in

accordance with the provisions of Rule 4(d)(4) of the

48a

Federal Rules of Civil Procedure. In the event the peti-

tion is filed in a civil action or proceeding pending in a

State court, the action or proceeding may be removed

without bond by the Attorney General to the district court

of the United States for the district and division embrac-

ing the place in which it is pending. If, in considering

the petition, the district court determines that the em-

ployee was not acting within the scope of his office or

employment, the action or proceeding shall be remanded

to the State court.

(4) Upon certification, any action or proceeding sub-

ject to paragraph (1), (2), or (3) shall proceed in the

Same manner as any action against the United States

filed pursuant to section 1346(b) of this title and shall

be subject to the limitations and exceptions applicable to

those actions.

(5) Whenever an action or proceeding in which the

United States is substituted as the party defendant un-

der this subsection is dismissed for failure first to pre-

sent a claim pursuant to section 2675(a) of this title,

such a claim shall be deemed to be timely presented un-

der section 2401(b) of this title if—

(A) the claim would have been timely had it been

filed on the date the underlying civil action was com-

menced, and

(B) the claim is presented to the appropriate

Federal agency within 60 days after dismissal of

the civil action.

(e) The Attorney General may compromise or settle

any claim asserted in such civil action or proceeding in

the manner provided in section 2677, and with the same

effect.

-- ~-

(As amended Sept. 21, 1961, Pub.L. 87-258, $1, 75 Stat.

539; July 18, 1966, Pub.L. 89-506, § 5(a), 80 Stat. 307:

Nov. 18, 1988, Pub.L. 100-694, §§ 5, 6, 102 Stat. 4564.)

49a

$ 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 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 in-

volved be abused.

(b) Any claim arising out of the loss, miscar-

riage, or negligent transmission of letters or postal

matter.

ment or collection of any tax or customs duty, or

the detention of any goods or merchandise by any

officer of customs or excise or any other law-enforce-

ment officer.

(d) Any claim for which a remedy is provided

by sections 741-752, 781-790 of Title 46, relating to

claims or suits in admiralty against the United

States.

(e) Any claim arising out of an act or omission

of any employee of the Government in administering

the provisions of sections 1-31 of Title 50, Appendix.

(f) Any claim for damages caused by the imposi-

tion or establishment of a quarantine by the United

States.

[(g) Repealed. Sept. 26, 1950, c. 1049, $ 13/5),

64 Stat. 1043. |

(h) Any claim arising out of assault, battery,

false imprisonment, false arrest, malicious prosecu-

50a

tion, abuse of process, libel, slander, misrepresenta-

tion, deceit, or interference with contract rights:

Provided, That, with regard to acts or omissions of

investigative or law enforcement officers of the

United States Government, the provisions of this

chapter and section 1346(b) of this title shall apply

to any claim arising, on or after the date of the

enactment of this proviso, out of assault, battery,

false imprisonmnet, false arrest, abuse of process,

or malicious prosecution. For the purpose of this

subsection, “investigative or law enforcement offi-

cer’? means any officer of the United States who is

empowered by law to execute searches, to seize evi-

dence, or to make arrests for violations of Federal

law.

(i) Any claim for damages caused by the fiscal

operations of the Treasury or by the regulation of

the monetary system.

(j) Any claim arising out of the combatant ac-

tivities of the military or naval forces, or the Coast

Guard, during time of war.

(k) Any claim arising in a foreign country.

(1) Any claim arising from the activities of the

Tennessee Valley Authority.

(m) Any elaim arising from the activities of the

Panama Canal Company.

(n) Any claim arising from the activities of a

Federal land bank, a Federal intermediate credit

bank, or a bank for cooperatives.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.