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