United States’ Liability For Negligent Disaster Response Under The Federal Tort Claims Act

- Bertrand Russell

Following disasters, both natural or man-made, those affected naturally look to their government for assistance and support.  In addition to emergency response, rescue and recovery efforts, citizens expect the federal government to provide timely and accurate information regarding environmental, health and/or other related risks.  The last several decades have seen considerable growth in the number and scale of governmental programs devoted to preparing for and managing emergency disaster response.  At the federal level, programs have been established pursuant to the Disaster Relief Act, 42 U.S.C. § 5121 (1988), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 (1988), and the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002), among other statutes.  These programs include FIRESAT, the National Bio-Weapons Defense Center, the WMD Assessment and Analysis Center, the Disaster Mortuary Operational Response Team, the National Threat Warning System, and the Commissioned Corps Readiness Force, among others.  As a result of the burgeoning number of governmental disaster management programs, the Federal Emergency Management Agency (“FEMA”) was created, essentially consolidating all administrative responsibilities for disaster preparedness and response into one organization.

While the number of governmental programs aimed at protecting citizenry from disasters has increased, the extent of governmental tort immunity

remains heavily contested, leading many to question, “When is the United States liable for negligent disaster response management?”  This article distills some of the recent issues involving disaster management tort liability under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) & 2671-2680.

Historically, the sovereign was immune from tort liability, irrespective of wrongdoing, under the principle that “the King can do no wrong” - Rex non potest peccare.  This traditional principle remained steadfast until 1946 when Congress enacted the FTCA.  Prior to the FTCA’s enactment, the sole remedy for a private individual recovery from the U.S. was by the exceptional enactment of a private relief bill from Congress.  The FTCA provides, inter alia,  that negligent acts or omissions on the part of a government employee, acting within the scope of their employment, shall give rise to a cause of action against the United States “. . . if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”  28 U.S.C. § 1346(b). 

This erosion of traditional sovereign immunity reflects the over-arching concept of fairness - that when the government actively operates/manages buildings, public lands/structures, hospitals, airports, vehicles, etc., it should be subject to the same standards and duties of care that are required of a private citizen.  This concept of fairness, however, has its limits.  In order to avoid paralysis, the government must be able to perform its essential functions, i.e., enact legislation, create governmental policies, maintain public order, protect national security, without fear of being sued in tort.  Thus, the courts have wrestled with numerous FTCA immunity exceptions, including the most heavily litigated “discretionary function exception.” 

Under the “discretionary function exception,” an act is immune from tort liability if: 1) it involves an element of choice; and 2) the choice involves applying judgment independent of any mandate and is essentially the type of decision making, grounded in social, economic, and public policy, that is meant to be afforded protection from tort suits.  Judgments involving matters of policy, balancing of competing interests, or that have been delegated to a given official by statute are often afforded protection.  In a nutshell, “[w]here there is room for policy judgment and decision there is discretion.”  Dalehite v. U.S., 346 U.S. 15, 36 (1953).  The “discretionary function exception” has been at the core of FTCA litigation against the federal government for its negligent disaster response, including claims arising out of the government’s: 1) failed fire management; 2) failure to warn; and 3) failure to protect citizens.  

In Pope & Talbot, Inc. v. Dept. of Agric., 782 F. Supp. 1460 (D. Or. 1991), a landowner brought an FTCA suit, alleging the U.S. was negligent in failing to close its land and/or deny access to the public under weather conditions and potential/known fire hazards that the government knew or should have known existed.  The court found, pursuant to federal guidelines including the Forest Service Manual, that the Forest Service’s decisions on forest closure were not specific and mandatory.  Because the final decision to close the forest remained with the forest ranger, depending upon his evaluation and weighing of the public’s need for open forests and related costs, the court found the forest ranger’s decision discretionary and held in favor of the United States.  Similarly, in McDougal v. U.S., 195 F. Supp. 2d 1229 (D. Or. 2002), the court rejected an FTCA claim for a lightning-ignited fire that ultimately “blew-up” after initially being allowed to burn unchecked in a national forest.  The court was unable to find a “specific mandatory statute, regulation or policy that required [agency officials] to do or not do something.”  Id. at 1236.   

In the landmark decision of Rayonier v. U.S., 352 U.S. 315 (1957), although the U.S. Supreme Court did not address the discretionary function exception, it found the government liable for failing to extinguish a wild fire originating on public lands that spread to adjoining private property.  The Court’s holding was partially based on the Forest Service’s contract with Washington state to provide firefighting services, an arrangement known and relied upon by surrounding residents.  The Court was not persuaded by the government’s characterization of its fire management actions as a “uniquely governmental function.”  

Similarly, in Anderson v. U.S., 55 F.3d 1379 (9th Cir. 1995), landowners brought suit after their residential property was damaged by a fire started by the U.S. Forest Service in a nearby national forest.  As a result of the Forest Service’s failure to control the fire, it spread into the landowners’ neighborhood.  The district court granted summary judgment in favor of the U.S., on the theory that since a private individual could not be held liable for such fire damage, neither could the federal government.  The Ninth Circuit disagreed, holding that since state law permitted a private individual to be liable for damage from such a fire if it was negligently allowed to spread to residential property, even if that individual operated under a controlled burn permit, that the U.S. could also be held liable, and remanded the case for further proceedings.

Without the necessary record, courts have often refused to subject complex forest fire management/suppression decisions to judicial scrutiny via tort liability.  But when the federal government engages in controlled burning projects, courts will likely engage in rigorous scrutiny of the government’s actions and decisions and are more willing to impose FTCA liability on the U.S. where the controlled fire exceeds its prescribed limits.

In Loughlin v. U.S., 393 F.3d 155 (D.C. Cir. 2004), nearby residents of American University brought FTCA claims alleging government negligence for:  1) burying of dangerous post-WWI munitions and chemicals; 2) failing to warn residents about the buried munitions, chemicals, and other dangerous conditions; and 3) failing to investigate and remedy the hazards and contamination it caused.  In rejecting plaintiffs’ claims, the D.C. Circuit affirmed the district court’s findings that claimants “failed to cite any regulation or policies that prescribed a nondiscretionary duty to warn.”  Further, the court noted that the decision to warn was “fraught with ... public policy considerations” and “required balancing competing concerns of secrecy and safety, national security and public health."

In Bichage v. U.S., 2002 U.S. Dist. LEXIS 17604 (D.D.C. 2002), victims of a terrorist bombing at the American Embassy in Kenya brought FTCA claims asserting that U.S. employees knew or should have known of the likelihood of a terrorist attack and failed to properly alert superiors to such a likelihood, negligently failed to take adequate precautions to protect against such an attack, and negligently failed to ensure the sufficient presence of trained and prepared security personnel and equipment.  The U.S. moved to dismiss claiming its actions were discretionary and thus immune from suit, arguing that the victims failed to carry their burden because the claims all involved policy decisions that were made in a foreign country and FTCA sovereign immunity waiver excepts policy decisions and actions arising in foreign countries.  The court ruled in favor of the U.S. and dismissed the complaint for lack of subject matter jurisdiction. 

The boundaries of the “discretionary function” test were recently examined in the September 11th disaster response case of Benzman v. Whitman, 2006 U.S. Dist. LEXIS 4005 (S.D.N.Y. Feb. 2, 2006).  In Benzman, plaintiffs filed a class action lawsuit on behalf of  residents, students and workers of Lower Manhattan and Brooklyn - all of whom were exposed to hazardous substances in the interior of their residences, schools or work places as a result of World Trade Center (“WTC”) dust and

debris.  Plaintiffs alleged that they relied on the government’s media statements that all levels of contamination were below levels deemed dangerous for human exposure. Further, plaintiffs alleged that they were not told that: 1) the EPA was using obsolete testing procedures;  and 2) testing by other independent organizations resulted in findings that toxins and particulate matter in the air were hazardous.  Plaintiffs also alleged that they were not provided with protective equipment and proper training for handling the dust and debris.  The suit alleged the EPA knew of 1000 tons of asbestos in WTC from the 1993 bombing, and that the uncontrolled burning of building materials would release toxic chemicals and extremely caustic cement dust, and as a result of the EPA’s failure to properly protect or warn plaintiffs, they suffered severe health problems ranging from chronic cough, bronchitis and asthma to pulmonary fibrosis, tumors and leukemia.  Plaintiffs raised FTCA claims against the EPA and individual claims against former EPA Administrator and Assistant Administrator, Christine Todd Whitman and Marianne Horinko, respectively.  Applying the “discretionary function exception,” the court found plaintiffs had not identified any mandatory duty to act in response to the September 11th attacks and that the regulations relied upon by plaintiffs did not mandate EPA action.  Accordingly, the court determined that the “regulations asserted by [p]laintiffs as the basis of their [EPA] claim are discretionary in nature, and therefore, are precluded from judicial review.”  While other causes of action were dismissed, plaintiffs’ claims against Whitman were allowed to proceed as they did not require that any such mandatory duty exist.

Benzman demonstrates the necessity of building a factual record of binding nondiscretionary directives, regulations or policies on the government’s conduct following a mass disaster.

  

In responding to mass disasters, the United States potentially faces enormous FTCA liability for violating and/or deviating from their binding emergency disaster response plans and directives.  Although the discretionary function exception is a formidable challenge to overcome, by developing the necessary factual record there are significant opportunities for recovery against the United States.  It is imperative to employ the right strategies and devote necessary resources and efforts to hone in on the nondiscretionary hooks that trigger FTCA liability. 

To overcome the discretionary function exception, one must:

Should you have any questions, please contact any of the authors.  If you desire an in-house client seminar on this topic, please contact CM partner Dean S. Rauchwerger,

drauchwerger@clausen.com.

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¹ Although not discussed in this article, pending Hurricane Katrina litigation against the United States for the levee failures will likely flesh out various issues involving the FTCA, FTCA exceptions and the Flood Control Act of 1928 as they relate to the government's involvement in the design, construction, operation and maintenance of the Mississippi River Gulf Outlet and other related projects.