|||UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
|||Nos. 89-6274, 90-6016, 90-6028
952 F.2d 652
|||decided: December 30, 1991.
|||JOANNA ANDRULONIS, INDIVIDUALLY AND AS CONSERVATOR OF THE PROPERTY OF
JEROME ANDRULONIS, PLAINTIFFS-APPELLEES/CROSS-APPELLANTS,
UNITED STATES OF AMERICA, GLATT AIR TECHNIQUES, INC.; GLATT GMBH; WISCONSIN ALUMNI RESEARCH FOUNDATION, INC.; WARF INSTITUTE, INC. RALTECH SCIENTIFIC SERVICES, INC., RALSTON PURINA COMPANY; ELI LILLY AND COMPANY; AND JOHN L. THOMPSON AND SONS AND COMPANY, DEFENDANTS, UNITED STATES OF AMERICA, DEFENDANT-APPELLANT/CROSS-APPELLEE. UNITED STATES OF AMERICA, THIRD-PARTY PLAINTIFF-APPELLEE, V. NEW YORK STATE DEPARTMENT OF HEALTH, THIRD-PARTY DEFENDANT-APPELLANT.
|||Reconsideration of discretionary function exception of the Federal Tort
Claims Act, 28 U.S.C. §§ 1346, 2671-2680, ("FTCA"), on remand
from the United States Supreme Court. Original decision reinstated.
|||MICHAEL S. BUSKUS, Albany, NY, Assistant Attorney General of the State
of New York (Robert Abrams, Attorney General of the State of New York, Peter
H. Schiff, Deputy Solicitor General, of Counsel), for Third-Party Defendant-Appellant
NYS Department of Health.
|||WILLIAM G. COLE, Washington, DC, Appellate Staff Attorney, Civil Division,
Department of Justice (Stuart M. Gerson, Assistant Attorney General, Department
of Justice, Robert M. Greenspan, Staff Attorney, Civil Division; Frederick
J. Scullin, United States Attorney for the Northern District of New York,
of Counsel) for United States of America.
|||JAMES D. FEATHERSTONHAUGH, Albany, NY (Roemer & Featherstonhaugh,
John R. Mineaux, of Counsel), for Plaintiffs-Appellees/Cross-Appellants.
|||Before: Pratt, Mahoney, And Walker, Circuit Judges.
|||PRATT, Circuit Judge:
|||The Supreme Court has remanded this case to us for further consideration
of the discretionary function exception to the Federal Tort Claims Act,
28 U.S.C. §§ 1346, 2671-2680, ("FTCA"), in light of its opinion
in United States v. Gaubert,
113 L. Ed. 2d 335,
111 S. Ct. 1267
(1991). After considering additional briefs submitted by the parties, we
conclude for the reasons that follow that Gaubert does not undermine our
original opinion, which is reported as Andrulonis v. United States,
924 F.2d 1210
(2d Cir. 1991). Therefore, we reinstate our previous opinion that affirmed
in part and reversed and remanded in part the judgment of the district court.
|||This negligence action was brought under the FTCA against the United States,
which filed a third-party complaint for contribution against the State of
New York. For a full statement of the facts and circumstances of this case,
see our original opinion, familiarity with which is assumed. Here, we will
mention only those facts which bear directly on this opinion.
|||Jerome Andrulonis was a 34-year-old bacteriologist employed by the New
York State Department of Health ("NYSDOH") when he contracted
the disease of rabies while conducting a laboratory experiment. He became
tragically ill and suffered severe and permanent injuries as a result of
the disease. The tragic experiment took place in the state-operated Griffin
Laboratories, under the supervision of Dr. John G. Debbie, also a scientist
employed by NYSDOH. The rabies viral strain used in the experiment was provided
by Dr. George M. Baer, a federal government scientist from the Center for
Disease Control ("CDC"), who also observed the experiment.
|||The district court found the government liable in negligence for Andrulonis's
injuries, and also found NYSDOH liable for 65 percent of the damages on
the government's contribution claim. The government's liability was based
on a finding that Dr. Baer had a duty to warn about the obviously dangerous
conditions he should have noticed in the laboratory when the rabies virus
he had supplied was being used. By neglecting to warn, Dr. Baer exposed
the government to tort liability. In so finding, the district court also
held that the discretionary function exception to the FTCA was inapplicable
in this case.
|||In our earlier opinion, we affirmed the district court's finding of liability
against the government as well as its finding on the contribution claim.
We also agreed with the district court's conclusion that the discretionary
function exception did not insulate the government from liability. We held
that Dr. Baer's failure to warn of the dangers presented by the research
conditions was the type of conduct for which congress had waived sovereign
immunity, since his decision not to act did not implicate any policy considerations.
|||The Supreme Court summarily vacated our original opinion and remanded
the case for further consideration in light of Gaubert, which was decided
three months after our decision was filed.
|||In Gaubert, the chairman of the board and largest shareholder of a Texas
thrift institution commenced suit against the United States under the FTCA,
alleging negligence on the part of regulators from the Federal Home Loan
Bank Board ("FHLBB") and the Federal Home Loan Bank-Dallas ("FHLB-D")
in their role as supervisors for the thrift. The fifth circuit held that
the discretionary function exception was inapplicable to the situation,
and thus, could not be used to immunize the actions of the federal officials
who had supervised the savings and loan. Citing Indian Towing Co. v. United
350 U.S. 61,
100 L. Ed. 48
76 S. Ct. 122
(1955), that court held that the discretionary function exception protected
the officials' actions only until their actions became operational in nature.
Thus, as soon as the officials began to participate in management decisions
and assumed a role in the day-to-day affairs of the institution, the fifth
circuit held, their actions could no longer be protected.
|||The Supreme Court reversed, however, concluding that the actions of the
federal officials in Gaubert did merit protection under the discretionary
function exception despite the fact that they were participating in the
daily operation of the thrift. In doing so, the Court focused on the fifth
circuit's erroneous interpretation of Indian Towing. It sought to abolish
the perpetuation of a "nonexistent dichotomy between discretionary
functions and operational activities." Gaubert,
111 S. Ct. at 1275.
The Court stated:
|||A discretionary act is one that involves choice or judgment; there is
nothing in that description that refers exclusively to policymaking or planning
functions. Day-to-day management of banking affairs, like the management
of other businesses, regularly require judgment as to which of a range of
permissible courses is the wisest. Discretionary conduct is not confined
to the policy or planning level.
|||Id. Thus, the Court rejected the fifth circuit's mistaken belief that
the exception could not reach decisions made at the operational or management
|||The Supreme Court also emphasized the importance of the regulatory structure
in which the government actors worked.
|||When established governmental policy, as expressed or implied by statute,
regulation, or agency guidelines, allows a Government agent to exercise
discretion, it must be presumed that the agent's acts are grounded in policy
when exercising that discretion. For a complaint to survive a motion to
dismiss, it must allege facts which would support a finding that the challenged
actions are not the kind of conduct that can be said to be grounded in the
policy of the regulatory regime. The focus of the inquiry is not on the
agent's subjective intent in exercising the discretion conferred by statute
or regulation, but on the nature of the actions taken and on whether they
are susceptible to policy analysis.
|||Id. at 1274-75 (emphasis added). The Court thus explicitly recognized
the importance of a regulatory scheme with specific policy objectives. If
such a scheme delegated discretion to government agents, those actions in
furtherance of stated policy objectives would be insulated from tort liability
even if they were taken at a nonplanning level. Therefore, the Court attempted
to clarify any confusion created by Indian Towing, as well as stem any dispositive
emphasis being placed on the distinction between planning-level decisions
versus operational decisions.
|||The government and the state (hereinafter, the "government")
now argue that Gaubert requires a change in our application of the discretionary
function exception in this case. They contend that by relying heavily on
Indian Towing, we erroneously emphasized the importance of considering policy
factors as a prerequisite for granting protection from liability, and they
focus on that part of the Supreme Court's opinion that emphasizes that discretionary
acts are not to be confined to just policy-making or planning decisions.
|||The government, however, confuses the Court's distinction between decisions
made at a policy-making level and decisions implicating policy considerations
at whatever level they might be made. Gaubert's import lies in its clarification
of Indian Towing and its rejection of any simplistic reliance on the dichotomy
between planning-level actions and operational-level actions. Policy considerations,
however, remain the touchstone for determining whether the discretionary
function exception applies. Indeed, the Court carefully reiterated that
the exception "'protects only governmental actions and decisions based
on considerations of public policy,'" Gaubert,
111 S. Ct. at 1274
(emphasis added) (quoting Berkovitz v. United States,
486 U.S. 531,
100 L. Ed. 2d 531
108 S. Ct. 1954
(1988)), and further stated that "the actions of Government agents
involving the necessary element of choice and grounded in the social, economic,
or political goals of the statute and regulations are protected." Id.
|||Furthermore, we did not rely on the "nonexistent dichotomy"
between planning-level decisions and operational decisions as did the fifth
circuit. We did look to precedent to help clarify the distinction between
governmental decisions that were policy-oriented and those that were not.
Although some of the cases we relied on, including Indian Towing, focused
on initial planning-level decisions that flowed from balancing policy factors,
as distinguished from implementation decisions that did not carry policy
implications, see Andrulonis,
924 F.2d at 1218-19,
we did recognize that "sometimes, even the execution of a policy decision
is subject to protection by the discretionary function exception".
Id. at 1219 (citing United States v. S.A. Empresa De Viacao Aerea Rio Grandense
467 U.S. 797,
81 L. Ed. 2d 660
104 S. Ct. 2755
(1984)). Our determination that "the key inquiry is whether the decisions,
be they initial decisions or implementation decisions, were necessarily
susceptible to policy analysis", id., is entirely consistent with the
Supreme Court's view that "the focus of the inquiry is * * * on the
nature of the actions taken and on whether they are susceptible to policy
111 S. Ct. at 1275
|||The government also argues that Dr. Baer's decision to allow the experiment
to proceed was necessary to fulfill the policy objectives of the CDC and
as such, should be protected by the exception. It interprets Gaubert as
focusing on whether the government agent was allowed discretion, not whether
he actually contemplated different policy implications. For this proposition,
the government relies on the Court's language, quoted above, which gives
government agents a presumption of discretion when they are fulfilling policy
objectives as provided within a regulatory framework. See id. at 1274-75.
In our view, the government's argument cuts too broad a swath. Its attempt
to sweep all of Dr. Baer's acts and omissions under the rug of broad CDC
policy would effectively insulate virtually all actions by a government
agent from liability, excepting only those where the agent had acted contrary
to a clear regulation.
|||Gaubert, however, does not cut so broadly. There, a clear regulatory scheme
entrusted government agents with discretionary powers to effectuate a clearly-defined
policy. Here, we have neither a regulatory framework nor a defined policy
that could serve as the basis for infusing all decisions of CDC employees
with policy implications. Indeed, it is hardly conceivable that the CDC
would ever have a policy to keep silent about obvious, easily-correctable
dangers in experiments using drugs supplied by the CDC. Although we recognize
that Dr. Baer is a distinguished, high-level official with substantial discretionary
authority to shape policy at the CDC, we do not agree that his negligent
omission in this case could implicate any policy considerations and thereby
warrant protection under the discretionary function exception.
|||This situation is much closer to the type of circumstance described in
a footnote in Gaubert, where the Court states:
|||There are obviously discretionary acts performed by a Government agent
that are within the scope of his employment but not within the discretionary
function exception because these acts cannot be said to be based on the
purposes that the regulatory regime seeks to accomplish. If one of the officials
involved in this case drove an automobile on a mission connected with his
official duties and negligently collided with another car, the exception
would not apply. Although driving requires the constant exercise of discretion,
the official's decisions in exercising that discretion can hardly be said
to be grounded in regulatory policy.
111 S. Ct. at 1275
n. 7. Looking at the "nature of the conduct" in this situation,
we do not see how Dr. Baer's negligent omission could possibly have been
grounded in CDC's policy scheme. Nothing indicates that CDC policy required,
or even encouraged, Dr. Baer to ignore unsafe laboratory conditions and
thereby unnecessarily place the lives of laboratory workers at risk in order
to further a scientific cause or any other objective of the government.
The general policy of wanting to eradicate rabies and granting officials
some discretion to achieve those ends is far too broad and indefinite to
insulate Dr. Baer's negligent conduct in the circumstances of this case.
Thus, Dr. Baer's action "cannot be said to be based on the purposes
the regulatory regime seeks to accomplish." Id.
|||For the foregoing reasons, upon reconsideration after remand, we reinstate
our previous decision in which we affirmed all aspects of the district court
judgment, except for that portion calculating the setoff from the allocation
of settlement proceeds, which we reversed and remanded for further proceedings.
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