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EMPLOYERS INS. OF WAUSAU v. UNITED STATES

August 23, 1993

EMPLOYERS INSURANCE OF WAUSAU, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Employers Insurance of Wausau A Mutual Company ("Wausau") seeks to recover from the United States some $ 2 million that it spent to take removal action as the result of contamination at an oil recycling facility in Romulus, Michigan. Wausau challenges the determination by the Environmental Protection Agency ("EPA") (and the foundation of that determination) that Wausau had responsibility for such removal under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA," 42 U.S.C. §§ 9601-9660). *fn1"

 Wausau, which has brought this action under the Federal Tort Claims Act ("FTCA," 28 U.S.C. §§ 267l-2680), *fn2" originally separated its claim into three counts. This Court's February 26, 1993 memorandum opinion and order has dismissed Count I (sounding in malicious prosecution) and Count II (an abuse of process claim) for lack of subject matter jurisdiction. Only Count III, sounding in negligence, remains for consideration. Now the government, pointing to Section 2680(a)'s discretionary function provision, has moved to dismiss what is left of Wausau's action for lack of subject matter jurisdiction. For the even more basic reason stated in this memorandum opinion and order, that motion is granted.

 This Court had waded through all of the parties' most recent bulky submissions more than once, and it was in the process of reviewing its law clerk's lengthy draft opinion dealing with those submissions, when this Court's initial and persisting belief that Wausau's claims simply did not fit the FTCA caused it to abandon the parties' debate over "discretionary function" to pursue a more fundamental issue. To paraphrase the late Adlai Stevenson's rueful comment in the immediate aftermath of his first loss to Dwight Eisenhower (in the 1952 presidential race)-- "Something funny happened to me on the way to the White House"-- something funny has indeed happened to Wausau on its way to the federal courthouse.

 Indeed, the deficiency in Wausau's FTCA claim is so basic that there is really no need to retain even the extended nine-page statement of facts in the draft opinion that this Court's law clerk had prepared based on the parties' briefing. All that needs to be said in that respect is to add to the skeletal statement at the outset of this opinion the fact that Wausau spent the money that it now seeks to recover after EPA (1) had designated Wausau as a "Potentially Responsible Person" for CERCLA purposes, demanding that it participate in the cleanup of the contaminated site, then (2) had issued an administrative order under CERCLA § 9606 directing Wausau and others to take emergency cleanup measures or suffer stiff penalties (daily fines of up to $ 25,000 as well as treble damages) and finally (3) had filed an administrative action against Wausau under the Toxic Substances Control Act, 15 U.S.C. §§ 2601 -2609.

 Essentially Wausau urges that EPA was dead wrong in the way that it has read the relevant CERCLA provisions and has gone after Wausau as a "Potentially Responsible Person." And Wausau contends that such wrongheaded pursuit, which forced Wausau to spend the money that it did, is actionable under the FTCA. *fn3"

 From the outset of this action this Court has been beset by the nagging sense that Wausau has no legal justification for its Procrustean effort to shape its claim so as to fit within the FTCA. Except perhaps in the minds of Wausau and its lawyers, it would seem strongly counterintuitive for anyone to suggest that the United States--by the partial surrender of its sovereign immunity that is represented by the FTCA--intended to lay itself open to liability in tort because one of its executive agencies turned out to have construed a statute differently from the reading that the courts might ultimately give that statute. Assume for example that a government official, in the course of pursuing a uniquely federal governmental goal (one with no counterpart 'in the private sector), issued a regulation or ruling or otherwise applied the statutory provision covering that activity in one colorable way, only to find that the reading embodied in that regulation or ruling or application was ultimately rejected by a Court of Appeals or the Supreme Court. Would anyone seriously contend that such difference in views would trigger tort liability for the government?

 One partial assurance that the just-posed question will receive the natural and obviously correct "Of course not!" response is provided by the first half of the same FTCA exception that contains as its last half the "discretionary function" provision (Section 2680(a)):

 
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. . . .

 But that provision, which insulates the United States where a formal regulation has been adopted, does not extend to all of the equally obvious situations where there is no regulation but it is equally clear that no tort responsibility is intended or should be imposed.

 Thus it is unsurprising that courts confronted with attempts to thrust tort liability on the government where its personnel have engaged in exclusively governmental action have emphasized the portion of Section 1346(b) that confers federal jurisdiction only where a governmental employee's negligent or wrongful act or omission has caused injury "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" (emphasis added). And that same emphasis is (also unsurprisingly) placed on the corresponding limitation set out in the FTCA itself as part of Section 2674, imposing tort liability on the United States only "in the same manner and to the same extent as a private individual under like circumstances" (emphasis again added).

 Those provisions as well as the original purpose and genesis of the FTCA have led to the sensible approach epitomized (for example) by a trilogy of cases from the Second Circuit, *fn4" C.P. Chem. Co. v. United States, 810 F.2d 34 (2d Cir. 1987), Chen v. United States, 854 F.2d 622 (2d Cir. 1988) and Akutowicz v. United States, 859 F.2d 1122 (2d Cir. 1988). Chen, for example, offers a striking parallel to what Wausau attempts here, for (854 F.2d at 623):


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