losses due to safety and not commercial misrepresentations and deny defendant's motion predicated upon the misrepresentation exception.
Discretionary Function Exception
We now consider the Government's claim that the "discretionary function exception" bars this suit.
Briefly, this exception precludes an FTCA suit against the Government for the harm resulting from the improper exercise of official discretion and is grounded in notions of separation of powers. The Government argues that its decision to issue a license to plaintiffs, to promulgate IE Bulletins, Circulars and to notify Congress of "abnormal occurrences", etc., all involve the exercise of executive discretion which is not subject to judicial scrutiny. For example, defendant argues that prior to the issuance of an "IE Bulletin", NRC officials must exercise their experience, expertise and discretion in determining whether the event is "important", has "potential" for being "generic in nature" and whether "timely information is necessary for licensees". See Manual, Chapter 1100-1125-041. Similar determinations must be made prior to the issuance of Circulars which consider whether an event "warrants wide dissemination". Id. at 1125-042.
In Griffin v. United States, 500 F.2d 1059, 1063-66 (3d Cir. 1974), the Third Circuit rejected a contention similar to the one which the Government makes today. Here, the Government contends that it employed discretionary decision-making authority in determining how, if at all, to notify nuclear licensees of the Davis-Besse accident and of other so-called "precursors". Defendant asserts that the scientific judgments which it made in determining the "generic" applicability of the Davis-Besse accident are the kinds of decisions of which the discretionary function exception bars review.
Plaintiff in Griffin had injested a live polio vaccine; the Government had previously tested the lot from which it came and certified it as safe. The decision to certify the vaccine required reference by Government scientists to five criteria. Hence, whether the vaccine was safe required exercise of scientific judgment, expertise and discretion by Government scientists.
The court held that the "discretionary function" exception did not bar suit since the judgment involved was of a scientific nature and that the discretionary function exception only bars suit predicated upon policy-making decisions; i.e., those which consider the feasibility or practicability of Government programs. Cf., Dalehite, supra, (barring suit challenging the Government's decision to create a fertilizer export program using volatile chemicals which resulted in an unprecedented explosion.) The Griffin court viewed scientific "judgments", similar to the ones at bar, as essentially ministerial acts performed by Government physicians whose responsibility was "limited" to "merely executing policy judgments" of the Surgeon General. 500 F.2d at 1059. Judge Becker also concluded that regulatory decisions of a scientific or professional character, as opposed to policy-oriented conclusions, are properly reviewable. Blessing v. United States, 447 F. Supp. at 1178.
Defendant attempts to distinguish Griffin by asserting that the degree of scientific judgment there involved was subject to exact, specific statutory commands, see e.g., Griffin v. United States, 500 F.2d at 1062-63, n.7, whereas here the NRC's scientific judgments as to whether an "abnormal event" occurred at Davis-Besse or whether "generic problems" existed, requires reference to broad, inexact statutory commands. Continuing, defendant urges that the lack of specific statutory guidelines within which NRC scientists exercise their "discretion" distinguishes this case from Griffin.
We disagree. Although NRC scientists possess judgmental latitude broader than that which existed in Griffin, we conclude that the governing standards are not so vague or inexact as to call for unfettered scientific "discretion". Indeed, equally broad exercises of judgment have survived similar challenges.
For example, Caban v. United States, 671 F.2d 1230, 1233 (2nd Cir. 1982) held that an immigration officer's judgment governed by standards requiring reference as to how an applicant "appears" and requiring that the official be properly "satisfied" of the proofs of entitlement, are not so broad as to compel immunization from suit under the discretionary function exception. Ingham v. Eastern Air Lines, 373 F.2d 227, 233 (2nd Cir.), cert. denied, 389 U.S. 931, 88 S. Ct. 295, 19 L. Ed. 2d 292 (1967) held that the duty to report changing weather conditions when "necessary" was sufficient guidance to withstand challenge. Accord, Wenninger v. United States, 234 F. Supp. 499, 504 (D. Del. 1964), aff'd, 352 F.2d 523 (3d Cir. 1965). Moreover, there is nothing so unique in the type of injury at bar as to preclude application of traditional tort principles. Allen v. United States, 527 F. Supp. 476, 488 (D. Utah 1981).
Finally, the Griffin court noted that the judgments which Government scientists may permissibly make are circumscribed by applicable regulations; where decision-makers exceed that scope, liability may properly be imposed. 500 F.2d at 1068-69. See also, United Scottish Ins. Co. v. United States, 614 F.2d 188, 198 (9th Cir. 1979) (the breach of "duty creating" regulations vitiates the Government's ability to assert the discretionary function exception).
The issues which we have addressed, the initial characterization of the suit as sounding in misrepresentation or negligence, the contours of the misrepresentation exception and the proper breadth of the Government's discretion are all "controlling issues" which admit to a "substantial ground for difference of opinion". 28 U.S.C. § 1292(b). Indeed, in deciding these issues we have considered numerous decisions which are admittedly not "fully reconcilable". Green v. United States, 629 F.2d at 585. Moreover, our conclusion to deny the Government's motion to dismiss subjects the Government to tremendous trial costs, a staggering amount of potential liability
and forces them to defend a suit in which they may ultimately prevail on jurisdictional issues. As such, we conclude that the "ultimate termination" of this litigation may well be "materially advanced" by an immediate appeal. See, Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974), 28 U.S.C. § 1292(b).
Accordingly, we will certify this matter for an immediate interlocutory appeal and stay all proceedings in this Court pending the outcome thereof. Id. The question which we certify to the Third Circuit is no broader than that which has previously been certified for such an appeal, Zenith Radio Corp. v. Matsushita Electric Industrial Co., Inc., 478 F. Supp. 889, 946 (E.D. Pa. 1979), and is as follows:
"Is our decision correct that neither the misrepresentation nor the discretionary function exception bars this suit?"
An appropriate order will issue.
AND NOW, this 24th day of November, 1982, IT IS ORDERED that defendants' motion to dismiss is DENIED.
IT IS FURTHER ORDERED that the issues herein decided involve "controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of this litigation". 28 U.S.C. § 1292(b). We accordingly CERTIFY this matter for an immediate appeal, ORDER that all proceedings in this Court be STAYED pending the result thereof, and invite the Circuit Court to consider the following question:
"Is our decision correct that neither the misrepresentation nor the discretionary function exception to the Federal Tort Claims Act bars this suit?"