MARK LYNN FORTNEY, ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 87-1929 In the Supreme Court of the United States October Term, 1988 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit Memorandum for the United States in Opposition Petitioners contend that the courts below erred in dismissing their complaint as barred by the discretionary function exception to the Federal Torts Claims Act (FTCA), 28 U.S.C. 2680(a). 1. Petitioners are former employees of Hercules, Inc., who were severely burned in an explosion at the Radford Army Ammunition Plant (RAAP). RAAP is an Army-owned facility in Radford, Virginia, which is operated by Hercules under a government contract (Pet. App. 3a). While the Army has the right to inspect the premises, Hercules is primarily responsible for safety at the plant, including the safety of Hercules personnel (id. at 3A, 8A). Hercules manufacturers explosive at RAAP that contain dehydrated nitrocellulose. In December, 1980, Hercules began experimenting with a new, automated system for dehydrating nitrocellulose. On May 6, 1981, this experimental system exploded, causing the injuries that are the basis for this lawsuit. Pet. App. 8A. Petitioners each brought suit against the United States under the FTCA, claiming that the government "had failed to use reasonable procedures to assure that Hercules utilized necessary safety precautions in its performance of hazardous work" (Pet. App. 8A). More specifically, petitioners alleged (see Pet. 8) that the explosion was caused by the use of a nitrocellulose container made out of non-conductive rubber. Petitioners claimed that Section 20.4 of a U.S. Army Safety Manual, AMCR 385-100 (reprinted at Pet. App. 30A, 71A) forbade the use of nonconductive containers for hazardous materials. Petitioners also contended (see Pet. 9) that Hercules' sprinkler system was inadequate and in violation of Section 12.33(g) of that same Manual (Pet. App. 67A). 2. Following a bench trial, the district court (Pet. App. 8A-13A) dismissed the consolidated cases, concluding that they were barred by the discretionary function exception to the FTCA, 28 U.S.C. 2680(a). The court noted (Pet. App. 12A) that the contracts between the government and Hercules "delegate primary responsibility for safety to the independent contractor with the government's retaining the right to review safety procedures." The court further noted (id. at 10A (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 819-820 (1984)), that "'(w)hen an agency determines the extent to which it will supervise the safety procedures of private individuals, it is excercising discretionary regulatory authority of the most basic kind.'" The court accordingly concluded (Pet. App. 12A) that the government's "delegation of safety responsibility" to Hercules was "the type of policy-making for which the (discretionary function exception) was designed." Petitioners moved for reconsideration in the trial court, arguing, inter alia, that Section 20.4 of the Army Safety Manual was a "mandatory" regulation and that the government had no discretion to permit Hercules to violate that regulation by using nonconductive tubs in the dehydration process. The district court denied the motion on two grounds. First, the court noted (Pet. App. 19A) that the regulation in question did not mandate the use of conductive tubs but instead "clearly * * * contemplated situations in which nonconduciv nonconducive tubs would be used." Second, the court noted id. at 19A-20A) that "the government's failure to object to nonconductive tubs * * * reflected many factors and typifies a decision that the (discretionary function exception) was designed to protect." The court of appeals affirmed in a brief per curiam opinion, holding (Pet. App. 4A) that "on the record in the case at bar, the delegation of safety responsibility to Hercules left the Army with solely discretionary function immunity in this case because the explosion was traceable in part to a violation of a mandatory safety regulation governing permissible containers for hazardous materials." The court agreed with the district court that the regulation in question in fact "embraced the type of container used at the Radford plant, even though the containers used were not specified in the regulation" (ibid.). The court stated, in addition, that "violation of a mandatory regulation does not abrogate the government's tort immunity independently of the FTCA, and that the discretionary function exception to the FTCA protects the government from liability 'whether or not the discretion involved be abused.'" Ibid. (quoting 28 U.S.C. 2680(a)). 3. a. As both the district court (Pet. App. 8A) and the court of appeals (id. at 3A) noted, the government's contracts with Hercules expressly delegated to the contractor the obligation to provide for the safety of its employees and to follow any relevant safety regulations. See C.A. App. 1072. The government retained only a right, not an obligation, to inspect the premises for quality control, security, and safety (Pet. App. 3A, 8A). /1/ This case is therefore controlled by Varig Airlines, in which the Court held that the government's decision to place primary responsibility for safety on manufacturers, while retaining the right merely to spot-check compliance, was a discretionary decision protected by the discretionary function exception. "When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind" (467 U.S. at 819-820). Petitioners attempt to avoid the binding effect of Varig Airlines by arguing that this case is instead controlled by the Court's recent decision in Berkovitz v. United States, No. 87-498 (June 13, 1988). /2/ /In Berkovitz, the Court indicated (slip op. 15) that if the government excercises its option to inspect private compliance with government safety regulations, government inspectors have no discretion to "knowling approve()" violations of those regulations. More generally, the Court stated (ibid.) that the discretionary function exception "does not apply if the acts complained of do not involve the permissible exercise of discretion." In this case, however, while two Army employees, along with a number of employees of Hercules, did participate in a "pre-operational survey" of the automated dehydration system (see C.A. App. 778-781), /3/ there is no indication in the record that they specifically examined or approved the tubs or the sprinkler system used by Hercules in its experimental dehydration process. Neither the tubs nor the sprinkler system are discussed in the report of that survey (ibid.), nor do any regulations specifically require that they be examined or approved by the Army. Thus, the government cannot be faulted for any violation of its own regulations, but at most for failure to uncover certain alleged violations of government regulations during its optional inspection. As Varig Airlines makes clear (467 U.S. at 820), however, "the (Army's) alleged negligence in failing to check certain specific items in the course of its (compliance review) falls squarely within the discretionary function exception of Section 2680(a)." b. Even if the government could be held responsible for compliance with the regulations in question here, the district court specifically found (Pet. App. 19a), after a trial on merits, that the use of nonconductive tubs was permitted by Section 20.4 of the Army Safety Manual. /4/ The court of appeals agreed (Pet. App. 4A n.1). /5/ Petitioners claim (Pet. 23) that that decision was a "manifest error of fact" but this Court does not sit to review the factual findings of two lower courts. Graver Mfg. v. Linde Co., 336 U.S. 271, 275 (1949). Furthermore, expert testimony by three separate witnesses supports the conclusion that the tubs used by Hercules did comply with the regulations. See C.A. App. 554, 658-659, 750. It is therefore respectfully submitted that the petition for a writ of certiorari should be denied. CHARLES FRIED Solicitor General JULY 1988 /1/ The portion of the contract that reserves a right to inpsect the premises for safety specifically states that "(n)either the requirement of this clause nor any act or failure to act by the Government in surveillance or enforcement thereof shall affect or relieve the Contractor of responsibility for the safety of his personnel and his property and for the safety of the general public in connection with the performance of this contract, or impose or add to any liability of the Government for such safety." C.A. App. 1072. /2/ In Berkovitz, a vaccine recipient contracted polio from an oral poliovirus vaccine. He and his parents sued the government claiming that the FDA licensed the vaccine and approved release of the specific lot of vaccine from which the boy received his dose in violation of federal regulations. This Court rejected the government's contention that the discretionary function exception precluded the suit, holding (slip op. 4) that "the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." /3/ Army Regulations specifically require a pre-operational survey, "consist(ing) of two consecutive stages: a dry run with inert material, a live run with hazardous material." ARRCOM Supplement 1 to AR 385-10 (C.A. App. 1077). The regulations state that '(a)ll or a portion of the pre-operational survey may be delegated to the installation staff" (ibid.). In the instant case, however, two Army safety inspectors were present during the pre-operational survey (id. at 612-613). Prior to the pre-operational survey, Hercules also prepared and submitted to the Army a lengthy "hazard analysis" of the proposed system. See id. at 970-1053. The modifications called for in that report were made by Hercules prior to the pre-operational survey (id. at 777). /4/ The district court, in its supplemental opinion, did not discuss Hercules' sprinkler system, which petitioners also claimed violated the Army Safety Manual. The main focus of petitioners' argument, however, was on the nonconductive tubs; in their Motion for Reconsideration, petitioners only mentioned the sprinkler system in a single sentence of a footnote (see C.A. App. 339 n.1). The district court's conclusion that this issue did not warrant independent discussion is therefore understandable in light of its alternative holding that the burden for compliance with the regulations rested on the contractor, not the government. Furthermore, the testimony at trial indicated that it was not possible at the time in question to buy a faster sprinkler system (id. at 512-513, 698). In light of this impossibility, the Army in 1986 amended the regulation to raise the required response time (id. at 351-352). /5/ The court of appeals stated (Pet. App. 4A n.1), in addition, that violation of a mandatory regulation would not abrogate the government's tort immunity provided that the government was still exercising a discretionary function. That statement is no longer tenable in light of this Court's decision in Berkovitz, but it was clearly not essential to the court of appeals' decision. The fact that the regulation was not violated was an independent ground for affirming the district court.