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October 19, 1993


The opinion of the court was delivered by: WILLIAM W. CALDWELL

 We are considering Defendant's motions to dismiss and for summary judgment and Plaintiffs' motions for partial summary judgment and to strike. We properly exercise jurisdiction over this environmental-law claim according to 28 U.S.C. § 1331.

 I. Facts and Procedural History

 As our previous memoranda have described the facts in some detail, our recitation here of the history of the case will be brief.

 Plaintiffs in Redland Soccer Club v. Department of the Army are members of a soccer club that used the field, township employees who worked at the field, and neighbors. Plaintiffs in Elliott v. United States are neighbors of the park who allege that their children were exposed to toxins while playing in what is now called Marsh Run Park. *fn1"

 II. Law and Discussion

 A. Defendant's Motion to Dismiss

 The Army argues that it is immune from Plaintiffs' tort claims.

1. The Federal Tort Claims Act and the Discretionary Function Exception

 In 1946, Congress enacted the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), which was to serve as a limited waiver of sovereign immunity.

The FTCA . . . waives sovereign immunity in suits against the United States for injuries or losses caused by the negligent or wrongful acts or omissions of any employee of the government under circumstances where a private person would be liable to the claimant.

 Sea-Land Service, Inc. v. United States, 919 F.2d 888, 890 (3d Cir. 1990). The FTCA contains an number of exceptions, including the one at issue here: the discretionary function exception. It exempts from the purview of the FTCA 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, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Thus, if a governmental action falls within the discretionary function exception, the waiver of sovereign immunity has no effect and the government remains immune from suit.

 The United States Supreme Court has examined the discretionary function exception on several occasions in the 47 years since the FTCA was enacted. The Court's most recent pronouncement was in United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). There, the Court re-stated the two-part test it established in Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988). A district court considering application of the discretionary function exception is to question (1) whether the act is actually discretionary; i.e., does the government actor have decisions to make or is his conduct prescribed by statute or regulation? and (2) whether the action implicates legislative or administrative decisions grounded in social, economic, and political policy. Berkovitz, supra, at 537. In delineating those decisions implicating social, economic or political policy, courts have indicated that the exception is intended to "prevent judicial 'second-guessing' of legislative and administrative decisions . . . through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814; 104 S. Ct. 2755; 81 L. Ed. 2d 660 (1984). Importantly, the exception does not immunize every discretionary act by a government employee or agency; a court must decide "whether that judgment is of the kind that the discretionary function exception was designed to shield." Berkovitz, supra, at 536.

 We read Gaubert, Berkovitz, Varig Airlines, and the lower-court cases applying them, to draw an important distinction between those acts of government actors that embody public policy and those that are merely every-day decisions devoid of any public policy implications. To implicate public policy, a decision must be "susceptible to policy analysis." Autery v. United States, 992 F.2d 1523, 1531 (11th Cir. 1993).

 Many actions of government agencies and employees clearly implicate policy decisions. For example, in Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the Court considered a case involving a massive explosion in fertilizer being prepared for shipment to Europe as part of a comprehensive program to increase the food supply in occupied countries at the conclusion of World War II. Id. The Court determined that the discretionary function exception applied because the fertilizer was gathered and prepared as part of an overall federal policy. 346 U.S. at 37-38.

 Varig Airlines involved a tort challenge to regulations regarding the Federal Aviation Administration's program for "spot-checking" airplanes for safety problems. 467 U.S. at 815. The Court determined that the regulations and the decisions of the FAA in implementing them reflected public policy considerations concerning airline safety and, thus, were within the exception. Id.

 In Berkovitz, the Court determined that a government program regulating laboratories producing polio vaccine reflected public policy concerns, although the Court remanded the case for consideration of whether the decision at issue was, in fact, discretionary. 486 U.S. at 533.

 Finally, in Gaubert, the Supreme Court reviewed the dismissal of a case alleging negligent supervision of an insolvent savings and loan association by federal regulators. 499 U.S. 315, 113 L. Ed. 2d 335, 111 S. Ct. 1267. The Court determined that the actions of the government in regulating the savings and loan and in managing its affairs were actions in furtherance of public policy. Id.

 These cases share a common theme: in each, the government agency acted in some way to fulfill the mandate of Congress; each case involved either government regulation of private conduct or government conduct of foreign affairs as delegated to the agency. Public policy, however, is not implicated by everything the government does. As Justice Byron White wrote in Gaubert:

There are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception because these acts cannot be said to be based on the purposes that the regulatory regime seeks to accomplish. If one of the officials involved in this case drove an automobile on a mission connected with his official duties and negligently collided with another car, the exception would not apply. Although driving requires the constant exercise of discretion, the official's decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.

 113 L. Ed. 2d at 348 n.7. Finally, the United States Court of Appeals for the First Circuit has recently explained that:

"if the injury-producing conduct was an integral part of government policymaking or planning, if the imposition of liability might jeopardize the quality of the governmental process, or if the case could not be decided without usurping the power and responsibility of either the legislative or executive branch of government, governmental immunity would probably attach."

 Horta v. Sullivan, 4 F.3d 2, 1993 WL 323615 at *15 (1st Cir. 1993) quoting Harry Stoller and Company, Inc. v. Lowell, 412 Mass. 139, 587 N.E.2d 780, 783 (Mass. 1992).

2. The Application of the Discretionary Function Exception to The Case at Bar

 The question of the applicability of the FTCA and its exceptions to an action is, in effect, an issue of subject-matter jurisdiction. Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977). As such, in considering whether an action falls within an exception to the FTCA, we do not consider the merits of the case or the factual record beyond its description of the nature of the governmental action. Id. Further, the FTCA, as a waiver of sovereign immunity, must be strictly construed in favor of the government. Sea-Land Service, Inc., supra, at 889.

 In the instant case, the Army argues that the decisions regarding waste disposal and land transfer at Marsh Run Park meet the first prong of the Berkovitz test; namely, that the decisions were truly discretionary. Further, the Army asserts that the decisions must implicate policy concerns, thus satisfying the second prong of the Berkovitz test.

The decisions referred to -- including selecting a method of waste disposal, classification of some waste material as salvageable, locating the landfill, and selecting methods of operating and maintaining the landfill -- are the type of decisions dominated by considerations of affordability, efficiency and safety. Therefore, they are decisions grounded in policy, and are thus protected by the discretionary functions exception.

 Defendant's Brief in Support of Motion to Dismiss at 30.

 Plaintiffs dispute Defendant's analysis, focusing primarily on the first part of the Berkovitz test. Plaintiffs contend that various statutes and regulations made the various actions by the Army non-discretionary.

 Plaintiffs address only in passing the second prong of the Berkovitz analysis, which we find dispositive of the issue. As we have noted, not every discretionary action undertaken by a government actor falls within the discretionary function exception. We examine the "nature of the conduct, rather than the status of the actor." Varig Airlines, supra, at 813. The Army's actions with regard to Marsh Run Park were not the sorts of decisions contemplated by the discretionary functions exception.

 Defendant contends that, because it had to determine how and where to dispose of waste and because these questions are governed by considerations of cost and safety, policy in the Berkovitz sense is necessarily implicated. We disagree. We construe Berkovitz and the cases preceding and following it to refer to a specific sort of policy -- not merely policy regarding internal affairs of the agency but policy in more direct furtherance of the agency or department's congressionally delegated mission. *fn3"

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