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MILLER v. UNITED STATES

January 20, 1982

Linda J. MILLER, Administratrix of the Estate of her daughter, Robin M. Miller, Deceased, and Bruce A. Johnston, Jr.
v.
UNITED STATES of America



The opinion of the court was delivered by: LUONGO

Plaintiffs, Bruce A. Johnston, Jr., a government informant, and Linda J. Miller, the administratrix of the estate of Robin M. Miller, filed this action under the Federal Tort Claims Act, 28 U.S.C. § 1346 (FTCA), contending that Johnston's injuries and Miller's death resulted from the government's negligence in failing to provide them with police protection. The government moves to dismiss for lack of subject matter jurisdiction, F.R.Civ.P. 12(b)(1), contending that this action is barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), and on the ground that plaintiffs have failed adequately to allege the element of legal causation and, therefore, have failed to state a claim upon which relief can be granted, F.R.Civ.P. 12(b)(6).

 (a) Discretionary Function

 The threshold question is whether this action is barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Because the Third Circuit has held this exception to be jurisdictional, Griffin v. United States, 500 F.2d 1059, 1063 (3d Cir. 1974), I must address its applicability before considering any of the government's other arguments. Blessing v. United States, 447 F. Supp. 1160, 1167 (E.D. Pa. 1978).

 28 U.S.C. § 2680(a) provides:

 
The provisions of this chapter and section 1346(b) (the FTCA jurisdictional statute) 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 involved be abused.

 The instant case involves the second clause of the exception which bars all claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty." It is the government's position that whether or not to provide protection to Bruce Johnston, Jr. and Robin Miller is a decision protected by this clause.

 Determining what decisions are or are not protected by the discretionary function exception is not an easy task. Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir. 1980). As Judge Becker pointed out in Blessing v. United States, supra, 447 F. Supp. 1180, the courts have had difficulty in defining what types of decisions fall within the exception and "(r)ather than (being) a seemless web ... the law in this area is a patchwork quilt."

 The only Supreme Court case expressly discussing this issue is Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), in which the Court stated:

 
The "discretion" protected by the section is not that of the judge-a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.
 
....
 
It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government cannot be actionable.

 Dalehite's interpretation of the scope of the discretionary function exception was considered by the Third Circuit Court of Appeals in Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). There, plaintiffs contended that the government, through the Division of Biologic Standards (DBS) of the Department of Health, Education and Welfare, was negligent in approving polio vaccine which caused serious damage when ingested. Regulations provided that vaccine was to be approved by DBS unless neurovirulence of the batch exceeded the National Institute of Health "reference strain". Five criteria of neurovirulence were enumerated in the regulation. DBS had interpreted the regulation as allowing a weighing of all five factors in determining neurovirulence. The court accepted this interpretation of the regulation but still held that DBS' actions in weighing the relevant factors were not protected by the discretionary function exception. The court refused to construe the above quoted language in Dalehite as protecting all exercises of governmental judgment, rather, it noted that the decisions held discretionary in Dalehite, "involved, at minimum, some consideration as to the feasibility or practicability of Government programs.... Such decisions involved considerations of public policy, calling for a balance of such factors as cost of Government programs against the potential benefit." Id. at 1064. Accordingly, the court ...


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