Appeal from the United States District Court for the District of Columbia (No. 89cv03128)
Before: Sentelle, Henderson and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion of the court filed by Circuit Judge Tatel.
In this case we must decide whether Madolyn L. Crumpton can sue the Department of the Army under the Federal Tort Claims Act for releasing records that allegedly caused her great embarrassment and emotional distress. Because no "federal statute, regulation, or policy specifically [proscribes]" the release of this information in response to a Freedom of Information Act request, and because the discretion exercised by the Army in evaluating the FOIA request is of the "nature and quality that Congress intended to shield from tort liability," Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995), we agree with the district court that the discretionary function exemption to the FTCA prevented it from taking jurisdiction over this case.
Nearly ten years ago, the Army Inspector General, and then the Army Criminal Investigations Division, conducted an investigation into allegations that Col. Alfred T. Crumpton had padded his travel expense reports and that he had accepted gratuities while stationed in England as commander of an Army Standardization Group. Near the close of that investigation, after the Army had reassigned the Crumptons to New Jersey, Col. Crumpton committed suicide, an event into which the CID conducted another investigation. The reports of these investigations, known as "Reports of Inquiry" or "Reports of Investigation" (ROIs), included information regarding Mrs. Crumpton and her family. Neither investigation led to criminal charges.
In response to FOIA requests for the ROIs by New Jersey newspapers, the Army concluded that the reports were not, as a whole, likely to lead to an "unwarranted invasion of personal privacy." See 5 U.S.C. Section(s) 552(b)(6) & (7)(C) (1988) (exempting certain information from mandatory release under the Freedom of Information Act). It thus released the reports, although it redacted certain portions because of privacy concerns. Mrs. Crumpton claims that even more of the information should have been withheld because the Army knew its release would cause an "unwarranted invasion of personal privacy" by revealing to the public both false and intimate information about her and her family. The portions of the ROI of fraud that the Army released, for example, included reports of allegations linking Mrs. Crumpton to the alleged fraud as well as statements she made to investigators. The ROI of death included details regarding the Crumpton family's discovery of, and immediate reaction to, Col. Crumpton's suicide.
Seeking relief under the Federal Tort Claims Act, Mrs. Crumpton initiated administrative proceedings, arguing that the release of the ROIs invaded her personal privacy and caused her significant emotional distress. After the Army rejected her claim, she sued. Following a four-day trial, the district court ruled that it had no jurisdiction under the FTCA and dismissed the case. Mrs. Crumpton appeals.
The FTCA waives the government's immunity in suits "for money damages ... for ... personal injury ... 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." 28 U.S.C. Section(s) 1346(b) (1988). The Act contains two exceptions that are at the heart of this dispute. The "due care" exemption excludes from district court jurisdiction "[a]ny 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." 28 U.S.C. 2680(a) (1988). The "discretionary function" exemption bars district court jurisdiction over claims "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." Id.
The district court concluded that both exemptions applied, i.e. that Army officials had exercised "due care" in determining that the requested information was not exempt, and that the decision involved in that determination was an exercise of a "discretionary function" that the FTCA exempts from judicial review. See Crumpton v. United States, 843 F. Supp. 751, 756-57 (D.D.C. 1994). To the extent that it rests on interpretations of law, we review the district court's decision de novo, see Cope, 45 F.3d at 450, ...