The opinion of the court was delivered by: DITTER
This action for damages against the United States
was brought by plaintiff, Catherine Bryson, as Administratrix of the estate of her son, Craig T. Toohey, a private in the United States Army killed by a fellow serviceman on September 27, 1974. The jurisdiction of this court is invoked under the general grant of jurisdiction provided in the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and under the Military Claims Act, 10 U.S.C. § 2733. The case is presently before me on the government's motion to dismiss, alleging that there is no jurisdiction over the subject matter of this action and that the complaint fails to state a claim upon which relief can be granted.
In her complaint, plaintiff alleges that on the evening of September 27, 1974, Private Craig T. Toohey, decedent, attempted to render assistance to a fellow soldier, Private Carl Weidenhammer, who was intoxicated and unable to remove himself from a men's room in a barracks at Bad Hersfeld, Germany. Private Weidenhammer became violent and struck decedent's head repeatedly against the floor, killing him. Plaintiff's brief in opposition to the instant motion adds certain relevant allegations which are not contained in the complaint. The brief alleges that, at the time of his death, Private Toohey was "on a weekend leave or pass." Plaintiff's Memorandum at 1. The Government questions this allegation, but for the purposes of this motion I will accept it as true. The complaint further alleges that Private Weidenhammer had a "background of emotional problems, lack of maturity, (and) lack of average intelligence," Complaint, paragraph 5, and plaintiff's brief adds that he "suffered from dylexcia" (sic), had an abnormal EEG, and had a behavior problem as a child. Plaintiff's Memorandum at 3.
The Government asserts that the Military Claims Act, 10 U.S.C. § 2731, et seq., affords no jurisdiction to this court. It suggests that plaintiff submitted a claim under this act to the United States Army Claims Service and that decisions of that Service are "final and conclusive" under 10 U.S.C. § 2735.
In support of this argument, the Government cites Macomber v. United States, 335 F. Supp. 197 (D.R.I.1971), a case interpreting virtually identical language found in 31 U.S.C. § 242 as precluding judicial review. Plaintiff has not challenged the Government's position here, and I agree that this court lacks jurisdiction to consider the complaint insofar as it is based on the Military Claims Act. The defendant concedes, however, that a decision by the Claims Service does not preclude an action under the Federal Tort Claims Act (FTCA) based on the same facts. See Ward v. United States, 331 F. Supp. 369 (W.D.Pa.), rev'd on other grounds, 471 F.2d 667 (3d Cir. 1971). The remainder of this opinion is therefore addressed solely to plaintiff's FTCA claims.
Plaintiff alleges four distinct acts of negligence by the Government: (1) "Failing to properly screen and admit into service individuals emotionally mature and of average intelligence." Complaint, paragraph 5; (2) "providing access to intoxicating beverages within the Barracks" to be consumed "by young men not emotionally mature nor of sufficient age, in some instances." Complaint, paragraph 6; (3) "failing to take the proper precautions and safeguards that the young men in the Barracks would not become intoxicated to such a degree that they would cause personal injury and/or death to a fellow soldier." Complaint, paragraph 7; and (4) "admitting into the service the assailant, Private Weidenhammer, Complaint, paragraph 8, and "in view of (his) prior records and history of intoxication," failing "to either remove him from the service or to provide safeguards for (his) fellow soldiers." Complaint, paragraph 9. For clarity of analysis, I will consider each of these allegations, and the Government's arguments against it, separately.
1. Screening And Admissions Policies
Several specific exceptions to the FTCA's general waiver of sovereign immunity are enumerated in 28 U.S.C. § 2680. Subsection (a) bars "any claim . . . 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 . . .." This language has been interpreted to preclude actions based on "determinations made by executives or administrators in establishing plans, specifications or schedules of operation" and decisions "made at a planning rather than operational level." Dalehite v. United States, 346 U.S. 15, 35, 42, 73 S. Ct. 956, 967, 971, 97 L. Ed. 1427, (1953). In Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974), the Court of Appeals held that, as an exception to the general grant of jurisdiction provided by 28 U.S.C. § 1346(b), this section limits the jurisdiction of the federal courts. Since, in my opinion, the formulation of the standards used to judge the fitness of applicants to the military forces of this country is clearly a decision at the planning level, I conclude that this court lacks jurisdiction to consider this allegation.
2. Providing Intoxicating Beverages
Insofar as plaintiff alleges governmental negligence in formulating its policies concerning the distribution of alcoholic beverages, this court lacks jurisdiction to consider her complaint. See 28 U.S.C. § 2680(a). Further, while this section does not bar an action based on allegations of particular acts of negligence involving the distribution of alcoholic beverages to Private Weidenhammer, another FTCA exception does do so. Section 2680(k) of Title 28 bars "any claim arising in a foreign country." This prohibition extends to torts occurring in military bases on foreign soil, See United States v. Spelar, 338 U.S. 217, 70 S. Ct. 10, 94 L. Ed. 3 (1949), and focuses on the Situs of the Tort (i. e. the place where the act or omission occurred) as the place where the claim arises. See Roberts v. United States, 498 F.2d 520 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S. Ct. 656, 42 L. Ed. 2d 665 (1974); Manemann v. United States, 381 F.2d 704 (10th Cir. 1967); In Re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D.Cal.1975). Any negligence which might have been involved in the distribution of alcoholic beverages to Private Weidenhammer on the evening of decedent's death clearly occurred "in a foreign country." Hence, I must conclude that this court is without jurisdiction to further consider this allegation.
3. Failing to Guard Against Excessive Intoxication And Its Consequences
4. Admitting Private Weidenhammer Or Failing To Remove Him Or Guard Against His Behavior
Finally, plaintiff contends the Government was negligent in accepting and retaining Weidenhammer as a member of the army. To the extent that this allegation attacks, as negligently formulated, the admissions standards promulgated for the program under which Private Weidenhammer was admitted into the army, this court is without jurisdiction to consider it. The promulgation of such standards is a discretionary act within the meaning of 28 U.S.C. § 2680(a) with respect to which the United States has not waived its sovereign immunity. However, to the extent that plaintiff alleges that the specific decision to admit Private Weidenhammer and/or the subsequent failure to remove him constituted negligent conduct by the United States, this court has jurisdiction to consider her complaint. This alleged act of negligence occurred within the United States and involved only decisions on the "operational level." Such decisions are not discretionary judgments within the meaning of 28 U.S.C. § 2680(a). See Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953); Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). In Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972), the Court of Appeals for the Third Circuit explained clearly that " "application of . . . policy To the individual case is administrative decision at the operational level which if negligently done will make the Government liable . . . (Emphasis supplied).' " Id. at 1397, quoting White v. United States, 317 F.2d 13, 17 (4th Cir. 1963).
The Government suggests that this court lacks jurisdiction to consider this allegation because "the substance of the claim is in actuality an assault or battery" exempted from the FTCA's general waiver of sovereign immunity by 28 U.S.C. § 2680(h), and that plaintiff "beclouds the issue by alleging that his (sic) cause of action is predicated on negligence." Government Supplemental Memorandum at 2. In support of this proposition, the Government cites Lambertson v. United States, 528 F.2d 441 (2d Cir.), cert. denied 426 U.S. 921, 96 S. Ct. 2627, 49 L. Ed. 2d 374 (1976), and Coffey v. United States, 387 F. Supp. 539 (D.Conn.1975). The plaintiffs in both of these cases sought to characterize offensive conduct as negligence to avoid section 2680(h). In each case, the court looked to the facts, found the only tortious conduct to be battery, and refused to consider the complaint.
When injuries directly resulting from assaults and batteries may be reasonably alleged to have their roots in negligence, however, the courts have refused to dismiss them under section 2680(h). See, e. g., Gibson v. United States, supra; Rogers v. United States, 397 F.2d 12 (5th Cir. 1968). In Gibson, the Third Circuit allowed a plaintiff job corps instructor to maintain an action alleging governmental negligence in accepting into the job corps a juvenile delinquent and narcotics addict who assaulted him, 457 F.2d at 1392-93. The court recognized "ample allegations in the complaint of a breach of duty by the United States because of a failure to exercise due care", Id., at 1394, and held that the offensive conduct "had its roots in the Government's negligence." Id. at 1395. The instant complaint also amply alleges negligence by the United States and, taking the facts as stated by ...