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July 11, 1985


Ditter, J.

The opinion of the court was delivered by: DITTER


 In this action plaintiff alleges negligent and/or tortious conduct on the part of United States' employees. The facts, viewed in the light most favorable to plaintiff, are as follows. Alarmed by the sale of illegal drugs in the Coatesville Veterans Administration Hospital, James L. G. Parsons, II, director of the hospital, and Peter J. Mango, chief of the hospital's police force, decided to conduct an undercover investigation. Curtis Kimmel, a V.A. police officer, was assigned to the undercover investigation and John Cantrell, a hospital clothing clerk, was utilized as an informant. As is the case with some informants, Cantrell's reputation was not as a vestal virgin it being alleged that he was known to be both mentally deficient and a drug user.

 Shortly after commencement of Cantrell's undercover activities, and based upon information supplied by Cantrell, Officer Kimmel caused a criminal complaint to be filed against plaintiff. This complaint charged plaintiff with "possession, possession with intent to deliver and delivery of a controlled substance, to wit: marijuana." Because of weaknesses in the government's evidence, this criminal action was nolle prossed by the Chester County District Attorney's Office. However, the allegation that plaintiff was a drug dealer did result in plaintiff's dismissal from employment at the V.A. hospital.

 Based on the foregoing, plaintiff caused a Bivens type action to be filed against Curtis Kimmel, John Cantrell, and James Parsons. Approximately two weeks prior to the scheduled trial date for the Bivens action, plaintiff filed this complaint asserting a cause of action directly against the United States pursuant to the Federal Tort Claims Act ("FTCA"). 28 U.S.C. § 1346(b). Presently before me is the government's motion to dismiss the FTCA action. In this motion, the government asserts the conduct complained of is within the "discretionary function" exception to the waiver of sovereign immunity contained in the FTCA. For the reasons that follow, the government's motion will be granted.

 The "discretionary function" exception *fn1" to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), has resulted in much litigation with judicial precedent difficult to harmonize. See Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir. 1980). On the one hand, cases recognize that statutes waiving a sovereign's immunity from suit "are to be strictly construed in favor of the sovereign" McMahon v. United States, 342 U.S. 25, 27, 72 S. Ct. 17, 19, 96 L. Ed. 26 (1951). On the other hand, blind application of the "discretionary function" language would completely abrogate the waiver of immunity contained in 28 U.S.C. § 1346(b) because virtually all governmental actions require some decision making and, therefore, the exercise of some discretion. See Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S. Ct. 76, 19 L. Ed. 2d 106 (1967) ("If the Tort Claims Act is to have the corpuscular vitality to cover anything more than automobile accidents in which government officials are driving, the federal courts must reject an absolutist interpretation . . . ."). See also Downs v. United States, 522 F.2d 990, 995 (6th Cir. 1975), Liuzzo v. United States, 508 F. Supp. 923, 931 (E.D. Mich. 1981). This conflict, together with Supreme Court decisions Chief Justice Burger has characterized as "not follow[ing] a straight line," United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S. Ct. 2755, 2764, 81 L. Ed. 2d 660 (1984), has resulted in judicial precedent that does not "comprise a particularly coherent body of case law." Blessing v. United States, 447 F. Supp. 1160, 1172-73 (E.D. Pa. 1978) (comparing various cases).

 One of the earliest, and easily the most famous case on the subject is Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953). In Dalehite the Supreme Court characterized discretionary functions as those functions in which there was "room for policy judgment and decision." Id. at 36, 73 S. Ct. 968. Continuing, the Court found the challenged conduct could not "subject the Government to liability [because] the decisions . . . were all responsibly made at a planning rather than operational level." Id. at 42, 73 S. Ct. 971.

 From this Supreme Court language was born what is termed the planning level/operational level test for use in determining the contours of the discretionary function exception. See Lindgren v. United States, 665 F.2d 978, 980 (9th Cir. 1982); Bryson v. United States, 463 F. Supp. 908, 911 (E.D. Pa. 1978). Under this test all decisions concerning the "feasibility or practicability of governmental programs" or "considerations of public policy, calling for a balance of such factors as cost of Government programs against the potential benefit" were held to be "planning level " decisions and protected by the discretionary function exception. See Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir. 1974). Conversely, decisions which merely addressed how best to implement planning level decisions were defined as "operational decisions" not sheltered by the discretionary function exception.

 From the beginning the planning level/operational level test proved troublesome. As stated by Judge Becker, in one of the most comprehensive opinions on the subject, the "planning/operational distinction, instructive as it may be on a theoretical level, can become exceedingly problematic when applied to concrete facts." Blessing v. United States, 447 F. Supp. 1160, 1173 (E.D. Pa. 1978). Nonetheless, and apparently because this test does provide for many cases an accurate and easily applied standard, use of this test can still be found in reported decisions. See Payne v. United States, 730 F.2d 1434 (11th Cir. 1984); Grunnet v. United States, 730 F.2d 573 (9th Cir. 1984); Jablonski v. United States, 712 F.2d 391 (9th Cir. 1983); Morris v. United States, 585 F. Supp. 1543 (D. Mo. 1984). Its continued use, however, is of questionable propriety in that the most recent Supreme Court pronouncement on the discretionary function exception fails to even mention the test. See Varig Airlines, 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660. Similarly, recent Third Circuit decisions on the discretionary function exception have not utilized the planning/operational distinction. See General Public Utilities Corp. v. United States, 745 F.2d 239 (3d Cir. 1984). *fn2"

 In place of the planning/operational distinction, the Supreme Court in Varig Airlines, and the Third Circuit in its recent decisions utilize the reasoning employed by the Sixth Circuit in Downs v. United States, 522 F.2d 990 (6th Cir. 1975). In Downs, the plaintiffs alleged FBI agents were negligent in the handling of an airplane hijack incident. As a result of this negligence, the hijackers murdered plaintiffs' decedents. After reviewing the relevant case law and legislative history, the Sixth Circuit rejected the planning level-operational level test. In so doing the Downs court noted that the basis undergirding the test, "the status of the official making a judgment," was "not a sufficient test for determining whether a government employee's actions are within the exception." Downs, 522 F.2d at 997. Rather, "the basic question concerning the exception is whether the judgments of a Government employee are of 'the nature and quality' which Congress intended to put beyond judicial review. Id. (quoting Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S. Ct. 76, 19 L. Ed. 2d 106 (1967).

 In this case, plaintiff has challenged four areas of conduct. First, he alleges government employees were negligent in using Cantrell as an informant because of his questionable mental capacity and moral character. Secondly, plaintiff alleges negligence in the supervision of Cantrell. More specifically, plaintiff alleges Curtis Kimmel failed to follow accepted procedures for the use of undercover drug informants. Third, plaintiff alleges Officer Kimmel acted in bad faith in causing criminal charges to be filed. And finally, plaintiff alleges his arrest, coupled with Kimmel's bad faith in bringing criminal charges, constitutes the tort of false arrest. Reduced to their core, plaintiff's allegations challenge the methods used by federal employees in investigating criminal offenses and their reliance on these procedures in causing criminal charges to be filed.

 The decision to prosecute a given individual is the quintessential example of discretionary conduct. See Accardi v. United States, 435 F.2d 1239 (3d Cir. 1970); United States v. Arnold, 403 F. Supp. 172 (E.D. Pa. 1975). That prosecutors possess wide latitude in this regard has never been questioned and the reasons supportive of its existence have often been used to analyze the availability of the discretionary function exception in similar FTCA situations. See Bernitsky v. United States, 620 F.2d 948 (3d Cir. 1980); Blessing v. United States, 447 F. Supp. 1160 (E.D. Pa. 1978) (Becker, J.) Furthermore, the protection afforded prosecutorial decisions extends even to prosecutors at the lowest level. See United States v. Panza, 381 F. Supp. 1133 (W.D. Pa. 1974).

 With these principles in hand, the United States Court of Appeals for the District of Columbia, when presented with a similar factual scenario, found a plaintiff's action barred by the discretionary function exception. Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490 (D.C. Cir. 1983). In so holding the Gray court expanded the discretionary function umbrella over not only the decision to prosecute but also over decisions concerning how best to investigate alleged criminal activities. It reasoned that "each allegation of improper investigatory conduct is inextricably tied to the decision to prosecute" and to separate the allegations would be to "elevate the form of Gray's complaint over its essence." Id. at 516.

 I fully agree with Gray to the extent it holds separating allegations of improper investigatory techniques from the decision to prosecute would be an exercise in semantic obfuscation. Deciding how to investigate, who to investigate, and how to present evidence to the proper authorities are classic examples of immunized prosecutorial conduct. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). See also United States v. Faneca, 332 F.2d 872, 875 (5th Cir. 1964), cert. denied, 380 U.S. 971, 14 L. Ed. 2d 268, 85 S. Ct. 1327 (1965) ("It is clear that the United States has a duty to maintain law and order and to enforce the commands of its courts; just how best to fulfill this duty is wholly within the discretion of its officers.") (emphasis in original). Furthermore, such conduct is exclusively within the province of the ...

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