Douglas Glynn Payton, Administrator of the Estate of Sheryl Lynn Payton, Deceased v. The United States of America , 679 F.2d 475 ( 1982 )

HATCHETT, Circuit Judge:

Appellants bring this wrongful death action under the Federal Tort Claims Act (FTCA)¹ charging the United States with negligence resulting from the parole of a dangerously psychotic prisoner, who subsequently murdered appellants’ decedent. The district court dismissed appellants’ complaint due to lack of jurisdiction, based on the court’s interpretation of the “discretionary acts” exemption to the FTCA, 28 U.S.C. § 2680(a).² A panel of this court reversed the district court’s decision. Payton v. United States, 636 F.2d 132 (5th Cir. 1981). Finding that the district court, 468 F.Supp. 651, construed the exclusion too broadly, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

In 1975 and 1976, Thomas Warren Whisenhant, a parolee from federal custody, murdered three women, including appellants’ decedent, Sheryl Lynn Payton. The murders, which included rape and hideous mutilation of the women’s bodies, bore all the earmarks of a severely disturbed mind. These acts were not the first manifestations of Whisenhant’s sickness. In 1966, he was sentenced to twenty years in federal prison on a charge of assault with intent to murder arising out of the severe and brutal beating of a woman. His sentence was subsequently reduced to ten years, and he was granted parole in November, 1973.

“A ‘facial attack’ on the complaint requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true.” Menchaca v. Chrysler Corp., 613 F.2d 507, 511 (5th Cir. 1980), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). Appellants allege that records available to the parole board at the time of the decision to release Whisenhant indicated that in 1963 Whisenhant was charged with assaulting a fourteen-year-old girl with intent to ravish, and he possibly participated in the murder of an elderly woman. Appellants also allege that while incarcerated, Whisenhant further evinced his homicidal aggressive tendencies toward women by threatening the life of an employee of the federal penitentiary, the only female with whom he came in contact. Further, Whisenhant’s prison records indicate that he was repeatedly diagnosed as psychotic and described as a paranoid schizophrenic. Psychiatrists characterized his mental condition as aggressive, chronic, severe, and manifested by brutality and assaultive behavior. In 1968, one prison psychiatrist concluded that Whisenhant was in dire need of long-term psychiatric treatment, but he never received this treatment.

Appellants allege that the United States is liable for the negligence of the United States Board of Parole in deciding to release a known homicidal psychotic, in neglecting to provide for continued treatment or supervision after his parole, and in failing to consider all available records pertaining to Whisenhant’s psychotic condition pri- or to granting him parole. The complaint further alleges that the United States is liable for the negligence of the United States Bureau of Prisons in failing to supply the parole board with records concerning Whisenhant’s condition, in failing to confine Whisenhant in a mental hospital until his sanity was restored or his full sentence was served, and in failing to provide proper psychiatric care and treatment for Whisenhant after undertaking to do so.

The government attacked the complaint on three grounds, asserting (1) that the court lacked subject-matter jurisdiction because of the exclusion from the FTCA’s jurisdiction found in 28 U.S.C. § 2680(a); (2) that the complaint failed to allege an actionable duty owed by the government to the appellants; and (3) that the appellants failed to exhaust their administrative remedies pursuant to 28 U.S.C. § 2675(a). Because the district court determined that it did not have jurisdiction pursuant to the 28 U.S.C. § 2680(a) exemption to the FTCA, it did not address the government’s second and third contentions. A panel of this court reversed the decision of the district court, Payton v. United States, 636 F.2d 132 (5th Cir. 1981). This court granted rehearing en banc.

ISSUE

This court faces the same issue addressed by the panel:

[Wjhether the alleged conduct by personnel of the United States Board of Parole and the United States Bureau of Prisons comes within the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680 (1976) (FTCA) or is exempt as a ‘discretionary function’ pursuant to 28 U.S.C. § 2680(a) (1976).

636 F.2d at 134. Because the district court dismissed this action solely on the ground that it lacked jurisdiction, our decision today reaches no further than that narrow issue.

FEDERAL TORT CLAIMS ACT

The FTCA authorizes suits against the United States for money damages for personal injury or death caused by the tortious actions of government employees acting within the scope of their employment, under circumstances where a private person would be liable. 28 U.S.C. § 1346(b). Exempt from jurisdiction, however, are claims based upon exercise by a governmental agency or employee of a “discretionary function or duty,” whether or not an abuse of discretion results. 28 U.S.C. § 2680(a). The drafters of the Act, however, failed to define the term “discretionary function.” This omission is understandable in light of the fact that the courts have struggled for nearly three decades to provide such a definition, with limited success. We will not pretend to succeed where our predecessors for thirty years have failed in providing succinct definition of the term “discretionary function.” We will, however, review the guidelines presented by prior decisions and apply them to the facts before us.

DISCRETIONARY FUNCTION

The seminal case construing the “discretionary function” exemption to the FTCA was Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The Supreme Court, perhaps reacting cautiously to the unprecedented waiver of governmental immunity, and perhaps wary because of the huge award in this case, provided this guideline for lower courts:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also included 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. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of section 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion.

346 U.S. at 35-36, 73 S.Ct. at 967-968.

The Court attempted to distinguish decisions made at the planning level (discretionary) from those at the operational level (non-discretionary). The Court determined that each negligent act transforming a quantity of fertilizer into a bomb which leveled an entire city was made at the planning level and therefore exempted from the FTCA.³ If strictly followed, this language would exempt from the FTCA all but the most fortuitous events, for “[ujnless government officials (at no matter what echelon) make their choices by flipping coins, their acts involve discretion in making decisions.” Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). The Court, however, narrowed the Dalehite guidelines in later opinions.

In Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) , the Court held that the decision to operate a lighthouse was discretionary, but once the decision was made there was no discretion to operate the light negligently. Similarly, in Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1956) , the Court found an actionable claim against the government for the negligence of forest service employees in fighting a forest fire. Thus, the Court has told us that the decision not to inspect a lighthouse (Indian Towing Co.) and the decision not to send a crew to extinguish a smouldering forest fire (Rayonier) were both made on the “operational level” and therefore were not “discretionary acts” exempted under section 2680(a).

It is established in the Fifth Circuit that: [T]he fact that the negligence may have occurred in connection with a discretionary function does not make the negligent act a discretionary function. Nor does the discretionary character of the government’s initial ... undertakings govern whether a duty can arise out of those undertakings. The Tort Claims Act deals with sovereign immunity — that is, with whether the United States may be sued for certain torts; it does not define ... torts.

Aretz v. United States, 604 F.2d 417, 431 n. 18 (1979). Discretionary decision-making, then, is accompanied by nondiscretionary acts of execution, whether termed operational, ministerial, or clerical. With these guidelines in mind, we now consider whether the district court had jurisdiction to address the appellant’s complaint.

PART I.

The first count of the complaint alleges that the United States is liable for Sheryl Lynn Payton’s death because the parole board, knowing Whisenhant to be a dangerous psychotic, nevertheless negligently released him on parole. Although the term “negligent release” is imprecise, we read the count as alleging that the parole board, having considered all information available to it, was negligent in deciding to release Whisenhant on parole. The question thus becomes whether the decision by the parole board was a discretionary act. We need go no further than the statute in order to make this determination. Former 18 U.S.C. § 4203(a) provides:

If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the board may in its discretion authorize the release of such prisoner on parole.

Applicants would have us to read the statute to mean that the parole board must first determine that the prisoner is a “good risk,” and if so then the parole board may, in its discretion, order his release on parole. Thus, the argument goes, the parole board’s discretionary (non-actionable) function begins only after it has determined that the prisoner is worthy to return to society. Since the evaluation of the prisoner is a non-discretionary function, the government would not be immune from prosecution under 28 U.S.C. § 2680(a) for negligently performing that duty. That is not, however, what the statute says.

We read the statute to state that if the initial request for parole, whether submitted by the prison bureaucracy or by the prisoner himself, shows a reasonable probability that the prisoner is capable of living in society without violating the laws or endangering the public welfare, then the parole board may, in its discretion, release the prisoner on parole. The decision to release the prisoner on' parole must necessarily entail an evaluation by the parole board of the prisoner’s records. Thus, the parole board’s final decision that the prisoner is worthy to live in society as a free person is not different from the decision to release him on parole. The statute clearly describes this as a discretionary function.

Appellants attempt to draw a parallel between the instant case and Fair v. United States, 234 F.2d 288 (5th Cir. 1956), and Underwood v. United States, 356 F.2d 92 (5th Cir. 1966). In Fair, a mentally disturbed air force officer who had threatened to kill a woman was released from a military hospital despite the fact that air force physicians knew of the threats. The officer subsequently killed the woman and two hired bodyguards. The government argued that the diagnosis, care, and treatment of the officer were within the discretionary function exception to the FTCA, and therefore not actionable.⁴ This court agreed that the decision to treat the officer was discretionary, but once the decision was made to treat him, the government was under a non-discretionary duty to perform the treatment with due care.⁵

Thus, the court did not base its decision on the “negligent release” of the officer, but rather on his “negligent medical treatment,” which encompassed the decision to release him from the hospital. That decision was no different, under the facts in Fair, from the decision to administer or withhold medication. The doctor was under a non-discretionary duty to render adequate care to his patient, and if the decision to release him could not be justified under prevailing medical standards, the doctor was guilty of an act of negligence. The FTCA subjected the government, as the doctor’s employer, to the same liability that a private employer would face. This situation is in no way analogous to the parole board, acting within the discretion granted it by statute, deciding to release a prisoner on parole.

Underwood involved a mentally disturbed airman who was released from hospitalization to return to active duty, and who subsequently killed his wife with a military weapon. Here, the initial physician, prior to being transferred, negligently failed to provide his replacement with vital information concerning the airman’s mental state. The replacement physician, lacking this information, released the airman to duty with disastrous results. This court found actionable negligence not in the decision to release the airman from the hospital, but rather in the failure of the initial physician to transfer vital information to his replacement, an “operational” function. Again, this ease is inapposite to our current discussion.

In holding that the actual decision to grant or deny parole is within the complete discretion of the parole board, we do not hold that the board has the discretionary power to ignore the required steps of the decision-making process.

PART II.

Count II of the complaint alleges that the parole board negligently failed to make adequate provisions for the continued treatment or supervision of Whisenhant. Again, we need only to look to the controlling statute to determine whether we are faced with a discretionary function. Former 18 U.S.C. § 4203(a) states that the “parolee shall be allowed in the discretion of the board, to return to his home, or to go elsewhere, upon such terms and conditions ... as the board shall prescribe .... ” The terms of the parole are within the discretion of the parole board. While the board could have provided for continued supervision of Whisenhant during his parole, and although failure to do so might appear to be an abuse of discretion, that decision was discretionary and therefore is excluded from the FTCA by 28 U.S.C. § 2680.

PART III.

Count III of the complaint alleges that although the Parole Board had access to records showing that Whisenhant was a psychotic with homicidal tendencies and would endanger society if released, the Board negligently failed to acquire, read, or give adequate consideration to these records. We find Count III of the complaint insufficient. Count III implicates the discretionary function of the Board. To withstand a motion to dismiss, an allegation challenging the Board’s performance of any ministerial act must be sufficiently distinguishable from a complaint disputing the Board’s exercise of its discretionary function. The plaintiff must therefore allege that the Board breached a duty sufficiently separable from the decision-making function to be nondiscretionary and outside of the exception. The plaintiff may not withstand a motion to dismiss by alleging that the Board’s decision was wrong.

We therefore find insufficient the allegation that the Parole Board failed to acquire, read, or give adequate consideration to these records. The acquisition and examination of the records on which the Board bases its ultimate decision necessarily implicates its discretionary function. In fulfilling this task, the Board must exercise its judgment by determining the materiality of certain studies and documents and the propriety of relying thereon in reaching its final assessment.⁶ Further, the manner and degree of consideration with which the Board examines these materials is inextricably tied to its ultimate decision. This allegation thus addresses the Board’s exercise of its discretionary function. For these reasons we hold that the trial court properly dismissed Count III.

PART IV.

Count IV of the complaint alleges that agents of the United States, presumably the Bureau of Prisons, failed to supply the parole board with records that would show Whisenhant to be a dangerous psychotic and a menace to society. The controlling statute is former 18 U.S.C. § 4208(c), which states:

It shall be the duty of the various probation officers and government bureaus and agencies to furnish the board of parole information concerning the prisoner, and, whenever not incompatible with the public interest, their views and recommendations with respect to the parole disposition of his case.

This statute placed a duty on the Bureau of Prisons to provide the parole board with Whisenhant’s records. No discretion is involved. The district court therefore had jurisdiction to entertain this count of the complaint.

PART V.

Count V of the complaint alleges that the United States had a positive duty pursuant to 18 U.S.C. § 4241 to ascertain the nature and extent of Whisenhant’s mental problem and to place him in a mental institution for the remainder of his full sentence. The controlling statute, 18 U.S.C. § 4241, states that a board of examiners for each federal prison “shall examine any inmate of the institution alleged to be insane or of unsound mind or otherwise defective and report their findings and the facts on which they are based to the attorney general.” This section of the statute places an affirmative, non-discretionary mandate upon the government to examine inmates who may be insane. The statute continues:

The attorney general, upon receiving such report, may direct the warden ... to cause such prisoner to be removed to . .. any ... institution authorized by law to receive insane persons ... convicted of offenses against the United States, there to be kept until ... the prisoner shall be restored to sanity or health or until the maximum sentence without deduction for good time or commutation of sentence shall have been served.

This portion of the statute allows the attorney general in his discretion, to order certain prisoners to be hospitalized. Here, we have an operational function preceding a discretionary decision. This count, therefore, may stand to the extent that it charges the government with negligence in failing to examine Whisenhant and report their findings to the attorney general or his designee as required by statute.

PART VI.

Count VI of the complaint alleges that the Bureau of Prisons undertook to render psychiatric treatment to Whisenhant, but did so negligently. This is analogous to Fair, wherein this court held that if the government undertakes to render psychiatric care, it will be liable for doing so negligently. It is established in the Fifth Circuit that when the government undertakes to perform services which would not be required in the absence of specific legislation, it will be liable if these activities are performed negligently. Ross v. United States, 640 F.2d 511, 519 (5th Cir. 1981). Without commenting on the merit of the allegation, we hold that the district court has jurisdiction to entertain the allegations contained in this count.

CONCLUSION

The district court properly determined that the decision to release a prisoner on parole is a discretionary function within the meaning of 28 U.S.C. § 2680(a). The court erred, however, in finding that requesting or transmitting records and providing standard medical care “appertained to the parole decision” and were therefore not actionable.

Finding that the decision of the parole board to release a prisoner on parole and the determination of the terms of parole are discretionary functions, we affirm the district court’s dismissal of Counts I and II. Because we find that the appellant failed to sufficiently allege a non-discretionary act against the parole board in this ease, we affirm the trial court’s dismissal of Count III of the complaint. We reverse the decision of the district court as to Count IV of the complaint and remand for further proceedings because the appellants alleged a non-discretionary act. Because we find that the decision of the prison medical board to examine allegedly insane prisoners is non-discretionary, we reverse the decision of the district court as to that part of Count V and remand. Because we find that the decision of the attorney general or his designee to place an insane prisoner in a mental institution is a discretionary act, we affirm the decision of the trial court as to that part of Count V. Because we find that once the government assumed the duty of providing psychiatric treatment to Whisenhant, it was under a non-discretionary duty to provide proper care, we reverse the decision of the district court as to Count VI of the complaint and remand.

REVERSED AND REMANDED.

1 . Title 28 U.S.C. § 1346(b) reads:

(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

2 . Title 28 U.S.C. § 2680(a) reads:

The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim 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.

3 . The Court found that the following decisions were made at the “planning level” and, therefore, were not actionable: (1) selecting a coating for the fertilizer which rendered it highly susceptible to explosion; (2) packing the fertilizer in paper bags, which were easily ignited and subject to tearing; (3) placing the fertilizer in the bags at a very high temperature; (4) packing the fertilizer in a manner that prevented it from cooling; and (5) failing to label the bags as a dangerous explosive and fire hazard.

4 . The base provost marshal had promised to notify the woman prior to the officer’s release, but he failed to do so. The government argued that he was under no legal duty to do so, stating that no air force regulation imposed upon him the duty to aid civilians. Finding that it was testing the government’s liability under the FTCA rather than determining military duties, the court held that the government would be liable for the actions of the provost marshal under the same theory that would support an action against a private employer under the state law being applied. 234 F.2d at 296.

5 . In reaching this conclusion, the court cited Eastern Airlines, Inc. v. Union Trust Co., 221 F.2d 62 (D.C.Cir.1955), aff'd. sub. nom., United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955). In Eastern, the court found that, while controlling air traffic was discretionary on the government's part, the air traffic controller in the tower functioned at the “operational level.” While he may exercise discretion in determining, for example, which approach pattern an aircraft should take, he was not performing the sort of discretionary functions contemplated by section 2680(a).

6 . We find nothing inconsistent in holding on the one hand that the Board’s ultimate decision is discretionary and within the ambit of the exclusion, and on the other hand suggesting, by the formulation of the test we announce, that there may be Parole Board acts which are sufficiently separable from the decision-making function to be deemed non-discretionary. For example, non-discretionary action would perhaps be involved if a clerk in the Parole Board office negligently failed to forward requested material records to the Parole Board members, or if the chairman of the Parole Board bypassed the decision-making function and simply executed a form releasing a parolee. We express no opinion with respect to the foregoing examples which are not presented by the facts of the case; they merely provide some flesh on the bare-boned standard we announce.