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January 29, 1977

MARY ALICE RELF, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants

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. *fn1" They charged these officials with negligence in connection with a decision made within the Executive Branch *fn2" not to issue and distribute certain sterilization guidelines *fn3" to OEO grantees such as the Montgomery CAC. *fn4" Recovery was sought also against the United States under the Federal Tort Claims Act *fn5" 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. *fn6" 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. *fn7" The Court accordingly reversed the Sixth Circuit decision upon which these plaintiffs relied *fn8" 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. *fn9" 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. *fn10" This Instruction amended an earlier OEO regulation *fn11" 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. *fn12"

 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 *fn13" 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. *fn14" It is plaintiffs' contention that such issuance and distribution "would have prevented the tragedy" which befell them. *fn15"

 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." *fn16" 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 previously announced. Although plaintiffs have advanced scant factual analysis in support of this view, their ultimate conclusion is that this Court should find Dr. Cooper's decision to be outside of the exception because it was assertedly not "based on considerations of public policy." *fn17"

 However, the Court finds that Dr. Cooper's decision not to officially issue and distribute the sterilization guidelines pending the resolution of existing policy concerns is exactly the type of decision-making which Congress had in mind when enacting the discretionary function exception to the Federal Tort Claims Act. See Monarch Insurance Co. of Ohio v. District of Columbia, 353 F. Supp. 1249, 1258 (D.D.C. 1973), aff'd, 162 U.S. App. D.C. 97, 497 F.2d 684 (1974). As has been stated by the Supreme Court in Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953), the discretionary function exception is properly construed to include " . . . determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion." Id. at 35-36. Although this construction has been narrowed somewhat by later cases, *fn18" the exception unquestionably applies to decisions which of necessity involve the conscious balancing of policy considerations. J. H. Rutter Rex Manufacturing Company Inc. v. United States, 515 F.2d 97, 99 (5th Cir. 1975); see Griffin v. United States, 500 F.2d 1059, 1064 (3rd Cir. 1974); see also Moyer v. Martin Marietta Corp., 481 F.2d 585, 597-98 (5th Cir. 1973). This would seem to be most particularly so with respect to those high-echelon decisions which by their very nature require the careful consideration of sensitive political and public policy factors. See Monarch Insurance, supra at 1258.

 Such was necessarily the nature of Dr. Cooper's decision to withhold issuance of the sterilization guidelines. The evidence adduced shows without rebuttal that at the time of Dr. Cooper's allegedly negligent failure to act there existed within OEO substantial public policy concerns about the use of federal funds for federally-authorized sterilizations. *fn19" At the same time, he evidently was under heavy competing pressure to issue the guidelines and thus irrevocably deepen OEO's commitment toward that controversial social policy. *fn20" Whether or not Dr. Cooper's decision was the wisest choice available -- a determination which this Court is neither prepared nor is it required to make -- it appears clear that it was by definition a choice alternately influenced and circumscribed by policy constraints and considerations of the public interest well within the parameters of the discretionary function exception. Indeed, even the affidavit testimony of plaintiffs' chief witness, an OEO official under Dr. Cooper's supervision who evidently took strong exception to his decision, *fn21" lends corroborative support to the conclusion that Dr. Cooper based that decision upon an active (to the point of sustained direct challenge) consideration of pressing policy concerns. Affidavit of Dr. Warren Hern in Opposition to Defendants' Motions for Summary Judgment at 4, 5. See also testimony of Dr. Hern before the Senate Health Subcommittee, July 10, 1973, Exhibit #9 to Plaintiffs' Opposition Memorandum at 1.

 It seems to the Court that throughout the course of this litigation the plaintiffs have consistently misconceived the circumstances under which liability may properly be imposed upon the federal government under the Federal Tort Claims Act. Aside from their first theory of recovery which was conclusively rejected by the Supreme Court, *fn22" they have also made an alternative argument which asks this Court to impose federal liability on the theory that Dr. Cooper's decision-making amounted to a "gross abuse" of his discretion. Such an argument, of course, mistakenly overlooks the plain language of the statute providing directly to the contrary. *fn23" To the same end, and on the most tenuous of authority, *fn24" the plaintiffs have advanced the additional novel argument that this Court should hold the federal government liable on the theory that Dr. Cooper was grossly negligent in the exercise of his discretionary authority. What the plaintiffs have clearly attempted to accomplish in this case is to impose Federal Tort Claims Act liability on the strength of their characterization of Dr. Cooper's decision as a monumental error of inexcusable proportions. *fn25" Yet the harsh fact remains that such a claim is simply not cognizable under the statute on that basis when it concerns the character (as distinguished from arguable quality) of decision-making such as is presented here.

 II. Dr. Cooper's Motion

 The plaintiffs have also asserted a claim against Dr. Cooper in his personal capacity in connection with his controversial decision. In response, Dr. Cooper has moved for summary judgment based upon his official immunity as a federal officer. Barr v. Matteo, 360 U.S. 564, 571-75, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959); Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949), cert. denied, 339 U.S. 949, 94 L. Ed. 1363, 70 S. Ct. 803 (1950). He argues that his decision not to issue the sterilization guidelines was well within the scope of his specific official responsibilities and duties, not to mention the "outer perimeter" of those duties. Barr v. Matteo, supra, at 575. He also incorporates by reference the United States' prevailing argument that his decision was the exercise of a discretionary function, one which should not be "unduly inhibited . . . by the threat of liability for tortious conduct." Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F.2d 358, 362 (1971), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1973).

 In their opposition, plaintiffs fail to meet this legal issue, nor for that matter do they demonstrate any true realization of their burden to do so. Rather, they take itemized issue with numerous factual statements contained in Dr. Cooper's affidavit concerning the asserted correctness of his decision. As Dr. Cooper in reply accurately points out, however, the correctness of his decision is not a material issue before the Court in its consideration of his motion. In point of fact, the only material issue presented is whether Dr. Cooper was acting within the protective scope of his official immunity when he engaged in the conduct (or non-conduct) alleged. Plaintiffs appear to rest their position on this legal issue upon their bare allegation that Dr. Cooper's inaction was the product of a "personal motive not connected with the public good." *fn26" Aside from their failure or inability to further elaborate, it is in any event clear that "[the] claim of an unworthy purpose does not destroy the privilege." Barr v. Matteo, supra, at 575, quoting with approval Tenney v. Brandhove, 341 U.S. 367, 377, 95 L. Ed. 1019, 71 S. Ct. 783 (1951).

 The Court notes that the Court of Appeals for this Circuit has recently addressed this often complex topic of official immunity in a decision which departs to some extent from the principle set forth in Barr v. Matteo. See Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, No. 74-1899 (D.C. Cir., June 28, 1976). *fn27" Even under the reasoning and standards articulated by the majority in that decision, as well as under the Barr v. Matteo rule advocated by Judge Leventhal in his dissenting opinion, *fn28" this Court finds that Dr. Cooper is entitled to absolute immunity in connection with his controversial decision-making.

 The Court of Appeals in Expeditions Unlimited set forth the following test for the application of absolute official immunity.


To summarize, we conclude that absolute immunity should be granted an executive official only where these conditions are met: First, the action at issue must be discretionary and within the scope of employment duties. Second, the court must further find that the extra contribution of absolute immunity to the "effective functioning of government" [ citing Barr v. Matteo ] justifies the concommitant denial of litigant interests, in view of the part played by the challenged activity in defendant's overall performance of duties, and in view of the functions which that official performs, within a traditional conceptual framework of public and private sectors.

 (Slip Opinion at 29-30.) As discussed supra, this Court has found the first portion of this standard to be satisfied in the instant case. Further, this Court finds the remainder of the test satisfied to the extent applicable on the basis of the nature of Dr. Cooper's policy responsibilities and the need for executive officers to be free to make decisions similar in type to the decision made by him. See, e.g., Carter v. Carlson, supra, at 362. Certainly, as the Court of Appeals has foreseen, the analogy to recent Supreme Court precedent upholding absolute immunity *fn29" is "striking". (Slip Opinion at 27.)

 Accordingly, the Court finds that both defendants are entitled to summary judgment as a matter of law and that their motions should be granted.


 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 433 F. Supp.]


 Upon consideration of the defendants' motions for summary judgment, the memoranda of points and authorities filed in support thereof, and the memoranda of points and authorities filed in opposition thereto, and upon further consideration of the argument of counsel in open Court, the entire record herein, and for the reasons briefly set forth in the Court's Memorandum issued this day, it is by the Court this 29th day of January, 1977

 ORDERED that the motion of the United States for summary judgment be, and hereby is, granted; and it is further

 ORDERED that the motion of Dr. E. Leon Cooper for summary judgment be, and hereby is, granted.


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