Orlikow v. U.S.
Cite as 682 F.S. 77 (D.D.C. 1988)
81
action were patients of Dr. Cameron during
the grant period. Each was subjected to at least one aspect of
the procedure outlined in the application grant. It is undisputed
that the plaintiff did not have knowledge of the alleged
experimental nature of Dr. Cameron's techniques, however, various
forms of consent were given for treatment. On April 12, 1960,
after receiving the final grant payment, Dr. Cameron sent a
letter to the SIHE, thanking the organization for its assistance
and stating that "[t]he help which we have received front
your Society during the last several years has been
invaluable, and all of us who are engaged in this investigation
have a considerable sense
of indebtedness to your organization."
Defendant's Motion Exhibit 17. The CIA funding period had ended
although Dr.
Cameron continued his work.
11. DISCRETIONARY FUNCTION
Defendant asserts, inter alia, that this case must he dismissed
because each of the
actions alleged are protected by the discretionary function
exception under the FTCA. 28 U.S.C. 2680(a). The issue is
jurisdictional. The applicable two pronged clause provides that
the Act shall not apply to:
Any claim based upon an act or omission
of an employee of the Government exer-
cising 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 perforn, 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).
The discretionary function exception, referred to in the second
clause of section 2680(a) "marks the boundary between
Congress' willingness to impose tort liability upon the United
States and its desire to protect certain governmental activities
from exposure to suit by private individuals." United States
v. S.A. Empresa de Viacao Aerea, Rio Granden.5e (Varig Airlines),
467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 I,.Ed.2d 660 (1984)@
Congress failed to define "discretionary function". The
Courts are thereby saddled with the task of giving form to this
enigmatic term. The seminal cases that have evolved on the issue
assist in the process. Dalehite V. United States, 346 U.S. 15, 73
S.Ct. 956, 97 L.Ed. 1427 (1956) and Varig Airlines, su-pro, are
the two leading Supreme Court cases construing the discretionary
function.
11, 21 Plaintiffs' complaint states three counts: (1) negligent
supervision and control of employees who chose to fund Dr.
Cameron, (2) negligent funding of an inherently dangerous
activity, is, human experimentation, and (3) which can be read
into the second count, asserts liability for CIA funding of
medical malpractice. The second and third count allege
extraordinary and malevolent acts which by their very nature are
beyond any reasonable discretion that Congress might have
envisioned when creating the discretionary exception. See
Glickman v. United States, 626 F.Supp. 171, 175 (S.D.N.Y.1985).5
When a decision is made to conduct intelligence op-erations bv
methods which are unconstitutional or egregious, it is lacking in
statutory or regulatory authority. Socialist Workers Party v.
Attorney General of the United States, 642 F.Supp. 1357, 1417 (S.D.
N.Y.1986). The Court is mindful that an allegation that the
employee has ignored any agency practice does not automatically
take an activity outside of the discretionary function. Red Lake
Band of Chippewa Indians v. United States, 800 F.2d 1187, 1197, n.
3 (D.C.Cir.1986). Yet, from another perspective, defendant admits
that after the Olson tragedy future projects were to be handled
with proper medical guidance. Where the "government official
in performing his statutory duties must act without
footnote 5: Glickman involves alleged acts by the same officials
cited in the case at bar, Plaintiff, an American citizen in Paris.
alleged that Gottlieb and Hclms gave him a drink, which they had
secretly laced with LSD. Additionally, after ingesting the drink
he was taken to a hospital and adminsitered electroshock
treatment.