Opinion for the Court filed by Senior Circuit Judge MacKINNON.
Plaintiffs, 189 families composed of 571 persons who reside in the Dallas, Texas area, seek compensation for personal injuries and property damage which they and their minor children claim to have suffered due to alleged negligent acts and omissions of the Environmental Protection Agency ("EPA"). Plaintiffs claim that the EPA negligently regulated and communicated knowledge of public health risks and lead pollution dangers in plaintiffs' neighborhoods.
I. FACTUAL BACKGROUND
Plaintiffs allege that for many years the EPA has continuously and gratuitously monitored and evaluated lead pollution levels in their neighborhoods that surround three lead smelters, RSR Corporation, Dixie Metals Corporation and N.L. Industries. One of the housing projects in which plaintiffs live, is "directly downwind from the largest lead recycling plant in the world." Brief for Appellants at 3. Plaintiffs contend that "[r]esultant brain damage and developmental impairments [from lead pollution] have produced lifelong debilitating effects ..." id. at 4, and that the EPA negligently violated an alleged legal duty to inform them of the risks and to adequately and timely remedy the hazards or to so require.
Plaintiffs also claim that the EPA affirmatively misled them as to the full extent of the lead pollution problem in that after the regional study was completed, Washington EPA headquarters deleted information from a press statement to mislead the public as to the extent of the lead contamination; that the EPA deleted all information indicating that elevated lead levels had been found in children's blood and in the soil around day care centers and school playgrounds; and that Dr. Norman Dyer, Chief of the EPA Pesticides and Toxics Branch, was discouraged from keeping any notes of his work on the regional lead study.
The district court found plaintiffs' claims barred by the misrepresentation exception of the Act which provides:
28 U.S.C. § 2680(h). Wells, 655 F.Supp. at 724. We need not determine the applicability of this misrepresentation exception, or whether the issue is preserved on appeal, because we find that the discretionary function exception applies and the government is immune from suit. Also, because of the application of the discretionary function exception, we need not determine whether the government would be liable as a private person under the good samaritan doctrine of Texas' tort law.
Finally, plaintiffs cursorily assert that the EPA violated the Clean Air Act, 42 U.S.C. §§ 7401 et seq., by failing to "require the submission by Texas of a `lead implementation plan' for the Dallas area." Brief for Appellants at 7. Although plaintiffs do refer to the Clean Air Act claim in two sentences of their brief, id., they make no factual or legal arguments in support thereof. Therefore we cannot address the issue.
Plaintiffs' claims primarily concentrate on the allegedly negligent decision of Dr. John Hernandez, the EPA Deputy Administrator for the area, to conduct further study while refusing to take immediate remedial
A. Applicable Standard
The district court granted the government's motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), 12(b)(6). In order to survive a motion to dismiss, "the complaint must set forth sufficient information to suggest that there exists some recognized legal theory upon which relief can be granted." Gregg v. Barrett, 771 F.2d 539, 547 (D.C.Cir.1985), quoting District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081 (D.C.Cir.1984). Plaintiffs emphasize that they need only "adduce a set of facts" supporting their legal claims in order to survive a motion to dismiss. Brief for Appellants at 1. See also id. at 14; Reply Brief for Appellants at 13-15, 18-19. Assuming all factual allegations are true, a court must dismiss a complaint if the plaintiff fails to establish a right to relief based on the facts alleged in the complaint. Gregg, 771 F.2d at 547.
B. The Private Liability Requirement of the Tort Claims Act
At the outset the government relies upon the private liability requirement that derives from section 1346(b) of Title 28. This provides that federal courts have jurisdiction over actions involving claims against the United States for
28 U.S.C. § 1346(b). The Tort Claims Act further provides that the government shall be liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.
We reject the government's argument that, as a threshold matter, the Act does not apply when the government is engaged in a "core governmental function." Brief for Appellee at 23. Very few decisions even mention the Act's private liability requirement and we have found no decisions that rely solely on such requirement or any "core governmental function" doctrine in holding the government immune from suit. See United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1853, 10 L.Ed.2d 805 (1962) ("Whether a claim could be made out would depend upon whether a private individual under like circumstances would be liable under state law ..."); Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957) ("the test ... is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred."); Arvanis v. Noslo Engineering Consultants, Inc., 739 F.2d 1287, 1292 (7th Cir.1984) ("In the absence of any persuasive analogy with private conduct, we conclude that appellants cannot maintain a Tort Claims action against the United States."); Gelley v. Astra Pharmaceutical
The district court concluded that the private liability requirement "merely establishes the foundation for" and is "largely congruent with" the discretionary function exception to the Act, and therefore the court did not consider the private liability requirement separately. 665 F.Supp. at 719. The government argues that the private liability requirement is both "a logical prerequisite" to a consideration of the Act's exceptions and "an independent basis upon which to affirm the district court's dismissal in this case." Brief for Appellee at 15 n. 9. However, there are very few decisions that even discuss the private liability requirement, see supra note 2, and we have found none that rely solely on it to hold the government immune from suit. Therefore, we reject the government's reliance on the private liability requirement. Instead we rely solely upon the discretionary function or duty exception, infra.
C. The Tort Claims Act and the Discretionary Function Exception
1. The Purpose of the Discretionary Function Exception
The Federal Tort Claims Act, 28 U.S.C., Chapter 171, §§ 2674-2680 provides:
28 U.S.C. §§ 2674, 2680(a) (emphasis added). The effect of this provision of the Act is to waive the government's sovereign immunity for certain kinds of tort liability, but then create an exception to this waiver by excluding the government from any liability where the claim is based upon "the exercise or performance or the failure to exercise or perform a discretionary function or duty ..." Id.
In the leading case interpreting this provision of the Act, the Supreme Court explained: "[I]t was not contemplated that the Government should be subject to liability arising from acts of a governmental nature or function.... Uppermost in the collective mind of Congress [in waiving immunity] were the ordinary commonlaw torts. Of these, the example which is reiterated in the course of the repeated proposals for submitting the United States to tort liability is `negligence in the operation of vehicles.'" Dalehite v. United States, 346 U.S. 15, 28, 73 S.Ct. 956, 964, 97 L.Ed. 1427 (1953), quoting numerous references in legislative history. Dalehite involved large damage claims against the United States arising out of a disastrous explosion of a ship carrying ammonium nitrate fertilizer, that had been produced and distributed under the direction of the United States. The Court concluded that the action was barred by § 2680(a), supra, because the allegedly negligent act involved governmental discretion "to act according to one's judgment of the best course" to follow with respect to the program generally and the handling of its product. Dalehite, 346 U.S. at 34, 73 S.Ct. at 967. The Court commented that
346 U.S. at 35-36, 73 S.Ct. at 968. Dalehite also incorporated an extract from the House Report on the bill which stated:
346 U.S. at 29, n. 21, 73 S.Ct. at 964, n. 21.
More recently the Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), pointed to the intent of Congress in enacting the statute and its legislative history. Varig Airlines involved tort actions by an airline and victims of an airplane accident who alleged that the Federal Aviation Administration ("FAA") was negligent in certifying the airline because its trash receptacles did not satisfy safety regulations. The Varig Airlines Court unanimously held that the FAA's certification process was immune under the discretionary function or duty exception, concluding that "it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Id. at 813, 104 S.Ct. at 2764. With respect to congressional intent the Court stated that the exception "plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals," id. at 813-14, 104 S.Ct. at 2764
Other subsequent decisions have echoed Varig Airlines' concern about judicial second guessing of agency decision making. In Cisco v. United States, 768 F.2d 788, 789 (7th Cir.1985), the Seventh Circuit ruled that "Congress has left to the EPA to decide the manner in which, and the extent to which, it will protect individuals and their property from exposure to hazardous wastes." The facts in Cisco are almost parallel to those here. Members of several households in Cisco sued the EPA claiming that it "was negligent in failing to warn [them] ... that dirt contaminated by [hazardous dioxin] ... had been used as residential landfill, negligent in failing to require that the contaminated dirt be removed, and negligent in failing to protect the households from exposure to the toxin." Id. The court relying primarily upon Varig Airlines, dismissed the action on the ground that the discretionary exception of the statute applied, and held:
Cisco, 768 F.2d at 789, quoting Varig Airlines, 467 U.S. at 820, 104 S.Ct. at 2767-68 (emphasis added).
In Gray v. Bell, 712 F.2d 490 (D.C.Cir.1983), former FBI Acting Director Gray sued the United States claiming that the Justice Department's investigations of him were negligent. This court held that the United States was immune from suit under the discretionary function exception. We noted that the most important modern policy basis for sovereign immunity is that under "principles of separation of powers, courts should refrain from reviewing or judging the propriety of the policymaking acts of coordinate branches." Gray, 712 F.2d at 511. See also Sami v. United States, 617 F.2d 755, 766-67 (D.C.Cir.1979) ("[T]he policy of the [discretionary] exception was to `prevent[ ] tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government' ..." quoting Blessing v. United States, 447 F.Supp. 1160, 1170 (E.D.Pa.1978)).
2. Application of the Discretionary Function Exception to This Case
Plaintiffs argue that Dr. Hernandez's decision was based only upon scientific
In the agency Hearings here there are two examples of economic considerations that Dr. Hernandez took into account in making his decision. See Hearings at 62 (J.A. 105) (Dr. Hernandez quoted as saying that EPA was proposing approaches to the lead contamination issue "that will be within the context of practicality of our budgetary restraints."); Hearings at 320 (J.A. 132) (Frances Phillips, EPA Deputy Regional Administrator, states that Dr. Hernandez told her "that he did not think we should spend any money to remove dirt or have any bulldozers start up until we could identify a specific health problem relative to this case.").
The following statements in the Hearings support the conclusion that Dr. Hernandez also took social and political factors into account in reaching his decision. See Hearings at 66 (J.A. at 109) (Dr. Hernandez explains: "Supposing that we had, the first day that report turned up, said `Let's go and take that playground and clean that place up, and they do this, and say "Done" and get a settlement out of it,' and then we would have been charged with a `sweet-heart' deal with somebody, done in the dark of night, before we had done any kind of further study, when in fact, we found that this study showed problems further out."); Hearings at 67 (J.A. 110) (Dr. Hernandez states that "moving ahead without some kind of information as to the nature of the source, the mode of travel, the kinds of control techniques that might otherwise be used, would leave us open to the same kinds of criticisms, `Why did you do that?'"); Hearings at 317 (J.A. 129) (Mrs. Phillips states that "Dr. Hernandez was concerned about the precedent that cleaning up at an action level of over a 1,000 parts per million would set, not only in the Dallas area, but relative to all the urban areas and lead smelter areas across the country."); Hearings at 335 (J.A. 147) (Mrs. Phillips and Dr. Hernandez discussed, among other factors, "a primary concern for the children" and "the effect this had on other Federal court cases in the region ... and how this could affect our negotiations.").
Even though plaintiffs need only "adduce a set of facts," Brief for Appellants at 1, supporting their legal claims in order to survive a motion to dismiss, Gregg v. Barrett, 771 F.2d 539, 547 (D.C.Cir.1985), the government must prevail in this case. Since Dr. Hernandez's decision ordering further study involved "social, economic and political policy" considerations, Berkovitz, 486 U.S. ___, ___, 108 S.Ct. 1954, 1960, quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765, it is protected by the discretionary function exception. Therefore the government is immune from suit.
We affirm the dismissal of the complaint because even assuming that all of its factual allegations are true, plaintiffs have failed to establish a right to relief. We are therefore without jurisdiction.
The second exchange plaintiffs rely on derives from testimony of four of Dr. Hernandez's subordinates. Congressman Snyder inquired of them whether they had "any reason to believe that any actions on his (Dr. Hernandez) part were based upon anything other than his scientific judgment." Hearings at 339 (J.A. 151). They each replied that they did not. Id. Plaintiffs also take these statements out of context. Congressman Snyder was actually questioning the four subordinates to determine whether they knew of any "unholy alliance between Dr. Hernandez and any of the three companies" that could have influenced his decision. Id. They did not.
The government cites two cases to support its view that it is improper for a court to "compartmentalize one aspect of a discretionary regulatory program and determine its policy implications in isolation." Brief for Appellants at 32-33. Neither case supports the government's argument. In Smith v. Johns-Manville Corp., 795 F.2d 301 (3d Cir.1986), asbestos suppliers sued the United States for indemnity and contribution for employees' injuries. The court held that the General Services Administration's decision to sell asbestos "as is" fell within the exception. The court disagreed with the defendants' view that the court should isolate the agency's decision not to use warning labels from the rest of the program. Smith, 795 F.2d at 308. The basis for the decision in Smith is distinguishable from the basis that is applicable here. Smith emphasized that Dalehite bars suits when administrators act in conformance with official directions. Id. In this case, Dr. Hernandez, as EPA Deputy Administrator, was formulating policy, not following official directions.
The government also cites Gray v. Bell, supra, to support its position. The court found the government immune under the exception, holding that the "tortious actions allegedly undertaken by the defendants are too intertwined with purely discretionary decisions...." Gray, 712 F.2d at 515-16. Gray limited its holding to the facts presented. Id. at 516. The government argues that, as in Gray, it is impossible to consider "an isolated decision to conduct further study of a pollution hazard ... apart from the broad regulatory process of developing a standard to apply." Brief for Appellants at 34. Dr. Hernandez's decision is not too "intertwined" with the overall regulatory process for this court to examine it. Dr. Hernandez was in charge of formulating policies to deal with the lead problem in Dallas. His decision to order further study of the lead situation is a distinct aspect of the overall policy formulation not to participate in a private cleanup that could implicitly sanction an unproven standard and arguably establish a controlling precedent as to a level of pollution requiring government action.