The Federal Tort Claims Act’s discretionary-function exception shields the government from a negligence claim related to an accident involving experiments with improvised explosive devices, the U.S. Court of Appeals for the Sixth Circuit has ruled. 

On November 16, a panel of the court affirmed, 2-1, the district court’s holding that plaintiff Debra Kohl’s claims were barred by the exception.

Kohl is a certified bomb technician with the Nashville Police Department’s Hazardous Devices Unit. In December 2007, she participated in U.S. Department of Defense-funded research at the Tennessee State Fire Academy in Bell Buckle, Tenn. The experiment involved making and detonating explosive devices in vehicles and then collecting the debris for laboratory analysis.

After detonation of the explosives, Kohl and others were inspecting the vehicles. While other team members used a winch on a driver’s side vehicle door that would not open, Kohl leaned into the passenger side of the vehicle. Kohl alleged in her complaint lawsuit that, “[d]ue to the winching, the door came loose and the door frame of the vehicle crashed into” her head. She claims government employees were negligent in their operation of the winch. But the Sixth Circuit opinion states that the record is unclear about how Kohl came into contact with the vehicle. It also states that shortly after the incident, a neurologist diagnosed Kohl with “post-concussive syndrome with persistent headaches and cognitive changes.”

Kohl filed her lawsuit against the government in December 2009. In September 2011, the Middle District of Tennessee, finding that her claims were barred by the discretionary-function exception to the Federal Tort Claims Act , dismissed the case for lack of subject matter jurisdiction. Kohl appealed.

Judge Karen Nelson Moore wrote the majority opinion in Kohl v. U.S., joined by David McKeague. Senior Judge Gilbert Merritt authored a dissent.

Moore first summarized the discretionary-function exception: “Sovereign immunity generally bars claims against the United States without its consent. Congress, through the FTCA, waived this governmental immunity for claims brought for injury…caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where 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.…The FTCA’s waiver of immunity is limited, and contains a series of exceptions. One of these exceptions—known as the discretionary-function exception—states that the FTCA’s waiver does not apply to ‘[a]ny 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.’ “

Moore noted that the discretionary-function exception extends “beyond high-level policymakers to government action on the day-to-day operational level if it involves choice or judgment that is “susceptible to policy analysis.”

She observed that the key question in the appeal is whether the conduct “was sufficiently based on the purposes that the regulatory regime—here the research experiment—sought to accomplish. Although this is a close case, we conclude that the answer to this question is yes.”

Moore explained that planning and conducting the research experiment is susceptible to policy analysis in several ways, including judgments about how to respond to hazards; deciding what safety precautions to take; and balancing safety concerns with evidence-gathering.

“Because [Bureau of Alcohol, Tobacco, Firearms and Explosives] employees had discretion to decide how best to conduct the field test, including which equipment to use, the decision to use a specific piece of equipment in this particular situation, i.e., to use a winch to open the door of the minivan, also falls within the government’s discretionary decisions. This is so even if [ATF officer Alex] Guerrero was negligent in using the equipment—the discretionary-function exception protects even abuses of discretion,” Moore wrote.

Merritt in his dissent noted that a private person acting as agent of a company who attempted to open a car door with a winch with a strong spring, “would normally be subject to standard tort principles in case of injury.”

He called the court’s theory “incoherent and directly contrary” to the Supreme Court’s 1955 ruling in Indian Towing Co. v. U.S., which was decided shortly after the enactment of the Federal Tort Claims Act: “In the Indian Towing case the Court concluded that once the government makes a protected policy, every implementing step like conducting an experiment or repairing damaged equipment must proceed with ‘due care’ in carrying out its decision.”

Merritt wrote that “[t]he question should be the regular tort question for ‘private’ persons in the economy: did the agent use due care?”

Merritt asserted that, unlike other cases in which the courts have applied the discretionary-function exception, this case did not involve the complex balancing of regulatory authority. Instead, he wrote, this case involved the challenge of opening a van door: “The Government points to no statute, regulation, or agency guidance granting the agent discretion to choose among a number of methods to achieve this task…The decisional process the agent employed is not the sort of judgment characteristic of social, economic, or political policy.”

Brandon Bass, a partner at The Law Offices of John Day in Brentwood, Tenn., who argued for Kohl, said, “We disagree with [the decision] and fear that it drastically reduces the [claims act's] provision that the federal government should be liable as if it were a private person.” Bass said that he expects to request the U.S. Supreme Court to review of the case.

“We’re pleased that the district court was affirmed,” said Mark Wildasin, civil chief of the U.S. Attorney’s office in Nashville, Tenn..

Sheri Qualters can be contacted at squalters@alm.com.