The opinion of the court was delivered by: GASCH
This action is brought on behalf of two black females who allege that at the respective ages of twelve and fourteen they were wrongfully subjected to surgical tubal sterilization without the informed consent of their parents. These sterilizations were performed on June 14, 1973 in Montgomery, Alabama by medical personnel of the Montgomery Family Planning Clinic ("Clinic") under the auspices of the Montgomery Community Action Committee ("Montgomery CAC"). This latter organization was created pursuant to 42 U.S.C. § 2790 for the purpose of carrying out the policies of the Economic Opportunity Act, 42 U.S.C. §§ 2701 et seq. ; at the time pertinent to this action, it was a federal grantee receiving funds from the Office of Economic Opportunity ("OEO").
On February 4, 1974, plaintiffs filed this action against the United States and against several federal officers in their personal as well as their official capacities.
They charged these officials with negligence in connection with a decision made within the Executive Branch
not to issue and distribute certain sterilization guidelines
to OEO grantees such as the Montgomery CAC.
Recovery was sought also against the United States under the Federal Tort Claims Act
both on the basis of this alleged negligence within the Executive Branch and for the alleged tortious conduct of the local Clinic and Montgomery CAC personnel directly involved in the sterilization procedures.
On October 7, 1976, plaintiffs entered a voluntary dismissal with prejudice as to all individual defendants with the exception of Dr. E. Leon Cooper, former Director of Health Affairs for the Office of Economic Opportunity. Presently before the Court are the motions of Dr. Cooper and the United States for summary judgment as to all claims.
For the reasons set forth briefly below, the Court finds that both motions for summary judgment should be granted.
I. The Government's Motion
When the plaintiffs initially brought this action, they sought to recover against the United States on dual theories of Federal Tort Claims Act liability. First, they sought to hold the federal government liable for the alleged tortious acts of the Clinic and Montgomery CAC personnel directly involved in the sterilization procedures, under the asserted theory that those persons were "federal employees" within the meaning of the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Second, they advanced an assertion of federal liability in connection with certain specific actions (or inactions) of several federal officials in Washington, D.C. The United States has moved for summary judgment, arguing that it bears no Federal Tort Claims Act liability under either of these two theories.
With respect to plaintiffs' first asserted theory of recovery, the Supreme Court has recently resolved the controversy respecting the status of federal grantee personnel in connection with attempts to impose federal liability for their alleged torts. In United States v. Orleans, 425 U.S. 807, 96 S. Ct. 1971, 48 L. Ed. 2d 390, 44 U.S.L.W. 4700, 4703 (1976), a unanimous Court held that a community action agency which was established and maintained with OEO funding is not a federal agency and its employees are not federal employees for purposes of federal liability under the Federal Tort Claims Act.
The Court accordingly reversed the Sixth Circuit decision upon which these plaintiffs relied
and approved the line of cases which had established the prevailing weight of authority on this question. See, e.g., Vincent v. United States, 513 F.2d 1296, 1297-98 (8th Cir. 1975); Hughes v. United States, 383 F. Supp. 1071, 1072 (S.D. Iowa 1973). Consequently, plaintiffs' counsel disregarded this theory of recovery in their final pleadings and formally withdrew it at oral argument.
Plaintiffs' second and only remaining theory of recovery against the United States stems from the decision made within the Office of Economic Opportunity not to issue and distribute certain sterilization guidelines, a decision which plaintiffs assert to be the proximate cause of their allegedly wrongful sterilizations.
It is undisputed that in May of 1971 the Office of Economic Opportunity changed its policy toward sterilization as embodied by OEO Instruction 6130-1.
This Instruction amended an earlier OEO regulation
by removing the then-existing prohibition on the use of OEO funds for surgical sterilizations. It did not, however, expressly authorize any grantees to use OEO funds for this purpose; it merely evidenced a new policy under which the Office of Economic Opportunity would consider the funding of sterilization programs upon the application of a grantee agency, such as the Montgomery CAC.
After the promulgation of this Instruction, the Family Planning Division of OEO's Office of Health Affairs drafted guidelines for any sterilizations to be performed by OEO grantees with OEO funding. These guidelines were finalized as OEO Instruction 6130-2
and were printed in preparation for official issuance and distribution to all appropriate grantee organizations. For numerous asserted and contested reasons, however, and in the face of much evident criticism and controversy, defendant Cooper decided not to issue officially this Instruction.
It is plaintiffs' contention that such issuance and distribution "would have prevented the tragedy" which befell them.
It is the position of the United States that the particular decision making upon which plaintiffs rest this claim cannot be the basis upon which federal liability may be imposed under the Federal Tort Claims Act. The United States maintains that Dr. Cooper's decision, although most certainly controversial and quite possibly unwise, nevertheless falls squarely within the well-recognized "discretionary function" exception to that Act. Section 2680(a) of the Federal Tort Claims Act provides as follows:
The provisions of this chapter and section 1346(b) of this title shall not apply to --
(a) Any claims based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.
28 U.S.C. § 2680(a) (emphasis added).
In numerous pleadings as well as at oral argument, plaintiffs have argued at great length that the Court should not apply this exception in the instant case. They reason that the promulgation of OEO Instruction 6130-1, which signalled a marked shift in OEO's sterilization policy, was the exercise of a discretionary function, but that the omitted issuance of the sterilization guidelines, OEO Instruction 6130-2 (unissued), "was purely a ministerial act."
For support, plaintiffs point out that an appropriate judicial standard for determining the applicability of the discretionary function exception is the "planning vs. operations level" test. Several courts have held that the exception is not applicable where the challenged conduct is at an "operations level," even though such conduct is required for the execution of a planning level decision. See Eastern Air Lines, Inc. v. Union Trust Co., 95 U.S. App. D.C. 189, 221 F.2d 62, 78 (1955), aff'd per curiam sub nom. United States v. Union Trust Co., 350 U.S. 907, 100 L. Ed. 796, 76 S. Ct. 192 (1955); Swanson v. United States, 229 F. Supp. 217 (N.D. Cal. 1964). Plaintiffs therefore make the argument that Dr. Cooper's decision to withhold distribution of the finalized and printed guidelines involved what was a mere operational implementation of the OEO policy change ...