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).
Accepting as true the well-pleaded facts of the complaint, as I must on this motion to dismiss, they are: Bruce A. Johnston, Jr., because of his relationship with his girl friend, Robin M. Miller, was cooperating with the government in its investigation of Bruce Johnston, Sr."s criminal organization. During the course of obtaining information from Bruce Johnston, Jr., and to induce his further cooperation, government agents promised "the federal protection program to Bruce Johnston, Jr. for both he (sic) and ... Robin Miller." (Amended Complaint P 5). The government knew of the senior Johnston's organization's reputation for "assignation and murder" and, therefore, knew of the risk created by Bruce Johnston, Jr."s cooperation with federal authorities. The risk to Miller stemmed from her relationship with Bruce Johnston, Jr. and the fact that she was "the principal reason for Johnston's cooperation with the government." (Amended Complaint P 6). The government did not furnish the promised protection. On or around November 13, 1979, Bruce Johnston, Jr. suffered serious injuries, and Robin Miller died, from gunshot wounds. Plaintiffs contend that the government was negligent for failing to provide protection and that its negligence caused Johnston's injuries and Miller's death. Administrative claims were filed as required by the FTCA, 28 U.S.C. § 2675, and this action followed.
(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.
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 ...