Orlikow v. U.S.
Cite as 682 F.S. 77 (D.D.C.
1988)
82
reliance upon a fixed or readily ascertainable
standard, the decision he makes is discretionary and within the exception to the
Tort Claims Act. Conversely, if there is a standard by which his action is
measured, it is not within the exception." Barton v. United States, 609 F.2d
977, 979 (10th Cir.1979).
The CIA was created to correlate and evaluate
intelligence relating to the national security. If the disputed facts were
resolved in favor of plaintiffs, the defendant would have acted so far beyond
its authority that in any proper construction the action could not be termed
discretionary. As one court stated: "Discretion may be as elastic as a
rubberband, but it, too, has a breaking point," Birnbaum v. United States, 589
F.2d 319 329 (2d Cir.1978).
3,41 Count one involves negligent supervision
of the employees who chose to fund Dr. Cameron's research. Plaintiffs allege
action which falls outside the discretionary function exception. To fall outside
the exception, the plaintiffs must allege conduct that is sufficiently separable
from a decision-making function. Payton v. United States, 679 F-2d 475, 482 (5th
Cie. 1982). The CIA had authority to choose certain employees as part of the
plan or policy of an authorized governmental function. Whether the CIA officials
exercised proper control over the MKULTRA program employees is a question
distinguishable from any policy decision in implementing the plan. Where a claim
alleges negligence by a government official in failing to properly control or
supervise another government employee, who in turn commits an intentional tort,
the negligence claim is barred because it arises out of the intentional tort.
Here plaintiffs are suing for negligence in supervision and failure to exercise
due care in the selection of employees who would carry out a brainwashing
research funding. Selecting incompetent contractors or employees and supervising
them in a careless manner are acts of negligence pure and simple. See Liuzzo,v.
United States, 508 F.Supp. 923, 932 (E.D. Mich.1981); DeLong v. United States,
600 F.Supp. 331 (D.Alaska 1984); Gibson V.
United States, 457 F.2d 1391
(3d Cir.1972); Melton v. United States, 488 F.Supp. 1066, 1072
(D.C.C.1980).
To hold that these discretionary decisions involve a
measure of policy judgment would extend the protection of the exception beyond
what Congress intended to protect from judicial second guessing. Every decision
involves some measure of discretion, but stretched to an extreme, section 2680
could swallow any waiver of sovereign immunity intended by the Act. Morrison
Corporation v. United States, 500 F.Supp. 714, 721 (D.Cal.1980) rev'd on other
grounds, 681 F.2d 645 (9th Cir.1982). Negligent selection or supervision is
unquestionably an area for the judiciary. The government is liable only where
"the question, is not negligence but social wisdom, not due care but political
practicability, not reasonableness but economic expediency." Sami v. United
States, 617 F.2d 755, 766-767 (D.C.Cir.1979). The government is held responsible
for "any negligent execution of admittedly discretionary policy judgrments where
the decisions required for the execution did not themselves involve the
balancing of public policy factors." Id. at 766. The issue of whether defendant
delegated funding authority to persons unreasonably unfit to exercise it is one
that must be left for trial.
111, STATUTE OF LIMITATIONS
[5] If an
action is presented more than two years after the claim accrues it is barred by
the statute of limitations applicable to the FRCA. 28 U.S.C. 2401(b). Courts
which have considered the question are unanimous that mental and legal
dissabilities do not toll the statute of limitations under the FTCA because the
statute is jurisdictional. However, in Fitzgerald v. Seamans, 563 F.2d 220, 228
(D.C.Cir.1977), the court stated (citation omitted):
Read into every
federal statute of limitations ... is the equitable doctrine that in the case of
defendant's fraud or deliberate concealment of material facts relating to his
wrongdoing, time does not begin to run until plaintiff discovers, or