Court: Court of Appeals for the Eighth Circuit; December 9, 1993; Federal Appellate Court
D.B.S. N.A.S. and their minor child C.R.S. filed a lawsuit under the Federal Tort Claims Act, claiming they contracted AIDS due to the federal government's negligence in providing contaminated blood during D.B.S.'s transfusions at Martin Army Community Hospital while he served in the Minnesota National Guard. The district court granted summary judgment in favor of the government, a decision which the plaintiffs are appealing.
In August 1983, D.B.S. underwent surgery and blood transfusions at MACH for an intestinal issue during basic training. He returned to Minnesota after completing his training in December 1983, married in November 1984, and had three children. By early 1989, all three plaintiffs tested positive for HIV. In 1992, it was confirmed that one of the blood donors used for D.B.S.'s transfusions tested positive for HIV.
At the time of D.B.S.'s transfusion, there were significant challenges in addressing the AIDS crisis, including the absence of an HIV test. The CDC had organized a meeting in January 1983 to discuss blood supply safety, which led to recommendations from the FDA and AABB to screen blood donors and educate them about AIDS, particularly targeting high-risk groups for self-deferral. The Military Blood Program Office adopted these civilian guidelines in April 1983, despite being limited in staff and resources, and did not consider implementing alternative procedures. The Assistant Secretary of Defense oversaw the military blood program and coordinated it with national emergency requirements.
In August 1983, Donor 3903 donated blood at MACH, which had established procedures regarding AIDS risk as per the MBPO memorandum. These procedures included informing donors about AIDS, identifying high-risk groups, and requesting that members of these groups refrain from donating. Although FDA/AABB guidelines did not require notifying blood recipients about potential contamination, the Department of Defense began HIV testing for active military members in 1985. In February 1986, guidelines were issued classifying individuals who received transfusions between January 1980 and July 1985 as high-risk for HIV and outlined steps for identifying, notifying, and counseling these individuals.
In 1990, plaintiffs filed a lawsuit in the District Court for Minnesota after their claims were rejected by four government agencies. They alleged two negligence claims against the military: (1) the adoption of FDA/AABB blood donor screening procedures in 1983 was negligent and unreasonable in a military context, and (2) the military failed to warn D.B.S. about the risk of receiving contaminated blood. The district court denied the military's motion to dismiss based on the Feres doctrine but later granted a motion asserting that the discretionary function exception under the FTCA barred the claims, concluding that 28 U.S.C. 2680(a) applied.
Summary judgment is appropriate when there are no genuine issues of material fact, as per Fed. R. Civ. P. 56(c). The court reviews summary judgment decisions de novo. The FTCA allows for federal liability for certain torts but includes exceptions that preserve the government's immunity, notably the discretionary function exception, which protects federal agency actions that involve judgment or choice. The Supreme Court's two-part test for this exception requires that the conduct in question be discretionary and involve an element of judgment. Agency decisions regarding program and policy implementation, as well as operational and policy-planning decisions, may fall under this protection.
Determinations made at a low level do not negate the applicability of the discretionary function exception. The absence of judgment or choice occurs when a federal statute or policy mandates a specific course of action, leaving no discretion for the employee. The second requirement of the exception is that the judgment must be of the type intended to be shielded, specifically those grounded in public policy considerations. Judicial second-guessing of government decisions is avoided if the actions are susceptible to policy analysis, even if the government agent did not consciously consider policy factors.
In the case at hand, plaintiffs allege negligence by the MBPO for inadequate screening of blood donors for HIV, claiming that reliance on FDA and AABB procedures was unreasonable given military-specific circumstances. The plaintiffs argue that the military environment, which penalizes high-risk behaviors, necessitated the creation of stricter screening procedures. They challenge the decision itself rather than its implementation.
Applying the Supreme Court's two-part test, the court finds that the MBPO's decision to adopt civilian screening procedures falls under the discretionary function exception. The decision was discretionary as no mandatory regulations dictated specific screening procedures. While Directive 6480.5 required the MBPO to develop policies regarding blood management, it granted the MBPO broad discretion in choosing the appropriate screening procedures. Plaintiffs' assertion that the MBPO lacked policy-making authority is contradicted by the directive's language, which delineates the Assistant Secretary's role in providing overall guidance while allowing the MBPO to coordinate and recommend policies.
The Assistant Secretary's authority to provide overall policy guidance does not negate the MBPO's authority to develop donor screening policies. Both entities share authority over blood collection procedures, and the MBPO's discretionary decisions are valid. The court finds that the defendant's screening decision aligns with the Supreme Court's test, as it involves weighing social, economic, and political factors, particularly in the context of budget constraints and public health challenges related to AIDS. Plaintiffs argue this decision was purely technical and not a matter of public policy, but the court clarifies there is no strict separation between professional judgment and the discretionary function exception. The case is differentiated from Aslakson v. United States, where the government’s conduct did not involve balancing public policy considerations but rather a straightforward safety determination under an existing policy. Thus, the court concludes that the defendant's actions in this case are protected by the discretionary function exception, as they pertain to complex policy decisions rather than mere technical judgments.
Plaintiffs contend that the defendant's decision-making process lacked evidence of a conscious balance of policy factors or consideration of alternatives, arguing it was not rooted in policy. However, under Gaubert, the key issue is whether the conduct is 'susceptible to policy analysis,' not whether the defendant actually weighed public policy factors. The decision regarding screening procedures is indeed susceptible to policy analysis, making it compliant with the requirement of being grounded in public policy considerations. Plaintiffs further argue that the discretionary function exception does not apply as the decision pertains to internal operations rather than core military functions. The court, however, has previously rejected such a distinction, emphasizing that the nature of the conduct, rather than the role of the actor, determines the applicability of the exception. Citing Jurzec, the court noted that whether the government acts in a governmental or non-governmental capacity is irrelevant to discretionary function analysis. Additionally, the plaintiffs' reliance on McMichael is misplaced, as that case hinged on the discretionary nature of the conduct rather than the presence of a regulatory purpose. Consequently, the inquiry into whether military medical services are internal operations or core functions is irrelevant to determining the discretionary nature of the actions in question.
In a separate claim, plaintiffs assert negligence for failing to notify D.B.S. about the risk of receiving contaminated blood during his 1983 transfusions, arguing that the government should have warned individuals who underwent transfusions in military hospitals after the availability of HIV testing in 1985, which they believe could have prevented the transmission of AIDS to D.B.S.'s family.
The analysis focuses on whether the defendant is entitled to summary judgment based on the discretionary function exception, particularly regarding the failure to warn about untested blood. The critical issue is whether the defendant's actions were discretionary, meaning they involved judgment or choice that was not constrained by law or regulation. Plaintiffs argue that the "Guidelines for the Evaluation, Counseling, and Management of HTLV-III/LAV-Infected Individuals and Their Contacts," issued by the Army Surgeon General in February 1986, imposed a duty to warn individuals such as D.B.S.
Citing the Berkovitz precedent, the document explains that a government policy must specifically prescribe actions to remove discretion from employees. It is emphasized that a regulation must be a "specific mandatory directive" to eliminate discretion. Past cases illustrate that vague regulations grant broad latitude to government actors. In scrutinizing the Guidelines, it is noted that while they identify high-risk groups, including individuals like D.B.S., the process for notifying these individuals was not clearly mandated. The Guidelines indicated that identification of at-risk persons could occur through interviews with infected individuals or self-referral, which allows for multiple interpretations. The conclusion drawn is that the Guidelines do not constitute a specific mandatory directive that removes discretion from the defendant regarding notifying individuals like D.B.S.
Intravenous drug users are identified as a high-risk group in the Guidelines, which suggest that identifying contacts of infected individuals should occur through interviews, while persons at risk should self-refer. D.B.S. did not self-refer and thus was not entitled to notification under subsection B. Even if the Guidelines allowed for identifying at-risk individuals through interviews, the Army had discretion not to notify D.B.S. regarding the risk of receiving infected blood. The policy provided options for identification through interviews or self-referral, allowing the Army to wait for self-referrals without needing to interview infected individuals. The Guidelines, while stating that individuals in risk groups "will be notified," left significant details of the notification process to the discretion of Army employees, including when to notify, whom to notify, and how to prioritize notifications. This ambiguity indicates the Guidelines do not impose specific mandates on governmental actors, thereby allowing broad interpretations and significant discretion. Ultimately, the Guidelines were deemed insufficiently specific to mandate notification to D.B.S. regarding the risk of infected blood.
Plaintiffs contend that the absence of a regulatory duty to warn exempts the case from the application of 2680(a), arguing that notification is a matter of professional medical judgment. However, the analysis does not hinge on labels, and the matter must be evaluated using a two-part test. The plaintiffs' distinction from Bacon v. United States, where the EPA's failure to warn was deemed protected by 2680(a), is unconvincing. The court in Layton interpreted that Bacon provided government immunity when there is no regulatory requirement to warn, highlighting that the government retains discretion in such scenarios. In this case, the defendant had no regulatory obligation to notify D.B.S., allowing for discretion in issuing warnings.
The applicability of 2680(a) is not automatic when the government opts not to warn; it must also involve public policy considerations. The core issue is whether the government's conduct, specifically its failure to warn, can be analyzed through a policy lens. This includes weighing safety against costs, as seen in decisions about informing military personnel of past transfusions. The government had to consider the minimal risk of transmission, potential impacts on military morale, and the allocation of limited resources.
The Layton decision also referenced the balance of safety and cost in government decisions not to warn, contrasting it with other cases where no competing values were considered, such as Andrulonis v. United States, which involved a failure to warn that did not engage policy analysis and was classified as simple negligence. In contrast, Layton's context involved significant policy considerations regarding resource allocation and safety benefits.
Government employees were tasked with deciding whether to allocate substantial resources to identify numerous personnel nationwide to warn them about a statistically minor risk. This situation contrasts with the need for a single, targeted warning about a severe risk, as seen in the Andrulonis case. Plaintiffs contend that cost considerations should not shield government decisions from scrutiny, arguing that if cost alone could transform decisions into protected discretion, it would immunize all government actions. However, the focus should be on whether the decision is of the nature that Congress aimed to shield from tort liability. The distinction between discretionary conduct and competing policy considerations is what differentiates this case from Andrulonis. The court emphasized that the defendant’s actions fell within the protected scope intended by Congress. The plaintiffs' claims challenge the choices made by the government, which requires judicial second-guessing that the discretionary function exception seeks to prevent. Consequently, the court concluded that the claims are barred under 28 U.S.C. § 2680(a) and affirmed the district court's summary judgment in favor of the defendant. Additionally, it noted the death of plaintiff C.R.S. on June 26, 1993, and referenced the FDA's role in regulating blood banks and the AABB as a trade organization. The court also cited Feres v. United States, establishing that military-related injury claims are not actionable.
In 1974, the FDA Commissioner and the Assistant Secretary of Defense established a Memorandum of Understanding requiring the military to follow FDA regulations for blood banks, implying that the MBPO was mandated to adopt FDA/AABB screening procedures. However, it was concluded that the MBPO had the authority to make its own screening decisions. Subsection B outlined the identification of contacts and individuals at risk for HTLV-III infection through interviews or self-referrals, with local health authorities responsible for notifying and counseling these individuals about testing for HTLV-III antibodies. Active duty members were required to be tested, while dependents and civilians were encouraged to do so.
Subsection C mandated interviews for those identified as high or moderate risk; however, it was noted that if D.B.S. was not considered a contact of Donor 3903, an interview would not reveal D.B.S.'s identity. Identifying D.B.S. would necessitate tracing Donor 3903's infected blood, which was not explicitly required by the general language of subsection B. The provision regarding the interviews lacked clarity, leaving the Army with discretion in its implementation, thereby not imposing a requirement to interview Donor 3903 or any infected individuals. Additionally, D.B.S. was a National Guard member until 1987, and the risk of infection from transfusions during the 1980-1986 period was statistically low, although higher for specific high-risk groups like intravenous drug users.
