author: KOVACHEVICH, District Judge.

text:
    Richard W. HELLER, Plaintiff, v. UNITED STATES of America, Defendant.
    No. 82-812-CIV-T-17.
    United States District Court, M.D. Florida, Tampa Division.
    Sept. 18, 1985.
    Arthur F. McCormick, South Miami, Fla., and Joseph, Powell, McDermott & Reiner, P.C., Washington, D.C. by Mark T. McDer-mott and Arvind K. Lai, for plaintiff.
    Dennis I. Moore, Asst. U.S. Atty., Tampa, Fla., for defendant, the U.S.; Walter Andrew Welch, Jr., Washington, D.C., of counsel.
   MEMORANDUM OPINION

KOVACHEVICH, District Judge.

Plaintiff, Richard W. Heller, a commercial airline pilot, is seeking damages alleging that the Defendant, acting through the Federal Aviation Administration (FAA), was negligent in denying him an airman’s medical certificate that was needed by the Plaintiff to retain his commercial airline pilot’s license. This cause is before the Court on the Defendant’s, United States, motion to dismiss for lack of subject matter jurisdiction.

JURISDICTION

Jurisdiction for this action is pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), § 2671 et seq.

BACKGROUND

For the purposes of this motion, the Defendant accepts as true Plaintiff’s allegations in the complaint. Wyatt v. Kaplan, 686 F.2d 276, 282 n. 13 (5th Cir.1982). Plaintiff was and is an airline pilot holding a transport pilot certification Number 1282810 reissued July 1,1980 by the Federal Aviation Administration. In connection with such certificate, the Plaintiff had a first-class medical certificate issued December 23, 1971. Pursuant to federal air regulation requirements, Plaintiff had Dr. Cheng Yee Teng notify his FAA medical examiner of an unusual physical problem, February 8, 1972. Upon receipt of this notification, the aviation medical examiner, acting under the authority of 14 C.F.R. Section 67.25, withdrew the issuance of the medical certificate and denied Plaintiff’s recertification February 11, 1972. Therefore, Plaintiff could not be employed as a commercial airline pilot.

Plaintiff’s reapplication was denied January 10, 1973 and February 4, 1974. Plaintiff petitioned for an exemption pursuant to Section 67.13(e)(l)(i) of Part 67 of the Federal Aviation Regulations and was denied by the Federal Air Surgeon April 2, 1975, December 4, 1975, and November 11, 1976. Thereafter, on January 30, 1980, the Department of Transportation Federal Aviation Administration accepted a letter from Dr. Richard L. Masters as a petition on behalf of Plaintiff and as requesting exemption from Part 67 of the Federal Aviation Regulations. On April 22, 1980, the Federal Air Surgeon determined Plaintiff qualified for a First-Class Airman Medical Certificate.

Plaintiff maintains that the suspension of his medical certificate was caused by the careless and negligent investigation, data collection, data production, and diagnostic procedures and activities of agents and employees of the FAA. Defendant maintains that the Supreme Court decision in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), et al., 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) excepts the entire FAA medical certification process as a discretionary function, 28 U.S.C. § 2680(a), precluding liability under 28 U.S.C. § 1346(b).

The issue before this Court is whether the entire FAA medical certification process is a discretionary function excepted by 28 U.S.C. § 2680(a), thereby precluding liability under 28 U.S.C. § 1346(b).

DISCUSSION

The Federal Aviation Act, 49 U.S.C. §§ 1301-1542, is designed to promote safety in air commerce. The Act directs the Administrator of the FAA to investigate each airman to insure that he possesses proper qualifications for, and is physically able to perform the duties pertaining to the position for which the airman certificate is sought. 49 U.S.C. § 1422(b). In carrying out this duty, the Administrator requires a pilot to obtain a medical certificate as a condition to the issuance of an airman’s certificate. The Administrator has delegated statutory authority pertaining to medical certification to the Federal Air Surgeon 49 U.S.C. § 1344(d); 14 C.F.R. Sections 67.-13, .15, .17 (1982).

The FAA issues medical certificates in three classes. The Federal Aviation Regulations set forth the medical standards for each class of certificate. A captain of a commercial aircraft must have a first-class medical certificate. A co-pilot or flight engineer must have at least a second-class certificate. A third-class medical certificate will allow an airman to fly only as a private pilot.

Discretionary functions are excepted from the Federal Tort Claims Act, pursuant to 28 U.S.C. § 2680(a). The Supreme Court holds the entire commercial aircraft certification process to be excepted pursuant to § 2680(a). Varig, 81 L.Ed.2d at 660. The Supreme Court stated that “as in Dalehite [v. U.S., 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427], it is unnecessary — and indeed impossible — to define with precision every contour of the discretionary function exception ... first, it is the nature of the conduct, rather than the status of the act, that governs whether the discretionary function exception applies in a given case ... thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from liability ... second, whatever else the discretionary function may include, it plainly was intended to encompass the discretionary acts of the government acting in its role as a regulator of the conduct of private individuals.” 467 U.S. at -, 104 S.Ct. at 2765, 81 L.Ed.2d at 674.

The FAA’s implementation of a mechanism for medical certification, as well as aircraft certification, issuance, review, and reissuance, is plainly a discretionary activity of the nature and quality protected by § 2680(a). Cf. Wendler v. United States, 606 F.Supp. 148 (D.Kan.1985); Joseph E. Seagram & Sons, Inc. v. United States (S.D.Ind.1985) [CV 82-900-C, January 7, 1985]; Proctor v. United States, 622 F.Supp. 10 (C.D.Cal.1984). Medical licensing authority of the FAA is clearly a role where the government is acting “as regulator of the conduct of private individuals.” To hold the entire FAA medical certification process as not excepted would handicap efficient government operations. Furthermore, a decision to not except such medical determinations by the surgeon would be to place these determinations in constant jeopardy to potential tort suits. The safer policy, and thereby the better policy, is to err in favor of grounding a pilot of suspect qualification, thereby fulfilling a greater responsibility to the public at large, than to the individual pilot. Furthermore, the individual acts and decisions in issuing and suspending, or reissuing, a medical certificate and commercial pilot certificate are discretionary conducts of a policy and decision making nature intended to be excepted by § 2680(a). Accordingly, it is

ORDERED that the Defendant’s motion to dismiss be and hereby is granted. The Clerk of this Court is directed to enter final judgment in accord with this Order.


source: Caselaw Access Project

author: NORGLE, District Judge.

license: Public Domain

text:
    Jesse HILL, Plaintiff, v. Harold JENKINS, Andrew L. Rodez and the Village of Maywood, Defendants.
    No. 83 C 3533.
    United States District Court, N.D. Illinois, E.D.
    Sept. 18, 1985.

      Ruth Van Demark, c/o Wildman, Har-rold, Allen & Dixon, Chicago, Ill., for plaintiff.
    John B. Murphey and Ronald Cope and Cary Schwimmer, Ancel, Glink, Diamond, Murphy & Cope, P.C., Chicago, Ill., for defendants.
   ORDER

NORGLE, District Judge.

The Court’s last encounter with this case was on Defendants’, Harold Jenkins (“JENKINS”), Andrew Rodez (“RODEZ”) and the Village of Maywood (“VILLAGE”), Rule 12(b)(6) motion to dismiss. That motion was granted in part and denied in part; the fourth and fourteenth amendment claims remain. All Defendants now move for summary judgment.

Federal Rule 56(c) provides for the entry of summary judgment if the record on the motion reveals “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” An opponent of a properly supported Rule 56 motion must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). See also Local Rule 12(f). The opponent of the motion receives the benefit of all reasonable doubts and inferences arising from the underlying facts. See generally Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2727. Only reasonable inferences favoring the opponent of the motion, however, will be considered by the Court. Hermes v. Hein, 742 F.2d 350, 353 (CA 7 1984). In other words, the Court need not displace logic or disregard inferences which unavoidably follow from the established facts. With this understanding, the Court now turns to the facts established in the present case.

In an ideal world the perpetrators of crime would have the good sense to throw in the towel when the game is up and the odds are against them. But this is not an ideal world and this case bears out that observation. On August 11, 1982 the Plaintiff, Jesse Hill (“HILL”), robbed the T.P. Food Store in Maywood, Illinois. Vright Hardy and two other men aided Hill in the criminal venture. Before, during and after the robbery Hill was armed with two (maybe three) pistols. One pistol was fired during the robbery. The shot hit no one, but it could have. The proceeds from the robbery were small (some cash, some coin). As Hill left the store his wardrobe included two guns; one secured in a shoulder holster under his arm and another held in his hand.

Defendant Jenkins is a Maywood Policeman. He was off duty at the time of the T.P. Foods robbery. Jenkins and his young son were enjoying a drive in Jenkins’ red Trans-Am when a dispatch came over the police radio installed in the car. The dispatch informed listeners that a burglar alarm had been activated at T.P. Foods, 1019 West Madison Street, Maywood, Illinois. Deft’s Ex D at 1. Jenkins heard the dispatch and proceeded to T.P. Foods.

When he arrived at the scene, Jenkins heard a shot. He saw an on-duty Maywood police car proceeding to the store and Vright Hardy “nervously” walking out. Jenkins observed Hardy carried a brown paper bag. He then saw Hill run from the store’s entrance. Jenkins states Hill was carrying two guns, but Hill contends Jenkins could not have seen the guns because they were concealed. Hill does not mention the gun he tucked in the front of his trousers after coming out of the store.

After Hill and Hardy saw the Maywood squad car they decided to escape. They began running and were pursued, on foot, by a uniformed Maywood policeman. Jenkins followed the three in his red car. After some dodging in and out of front yards, Hardy crossed in front of Jenkins and was struck by the red car. Hardy fell and became pinned under the car’s front bumper. Hill Dep at 123-24. Hardy was able to get up. He ran to Hill, who was now looking toward Hardy and the red car. The two began to run together when Hardy reached where Hill was standing. At this point Hill states he heard three shots and felt a burning sensation in his right leg. Hill Dep at 127. According to Hill one minute (or a bit more) had elapsed from the time he came out of the T.P. Food Store and was seen by Jenkins. Hill Dep at 126.

At the time Hill recalls being shot he states he was carrying only one gun. Id. at 131. That gun was in a shoulder holster under his jacket. Id. Hill says he then fell to the ground and groped for the gun in his shoulder holster. Id. at 132. Jenkins walked up to the prone Hill, held a gun on him and told him to freeze. Id. at 134. Jenkins then removed the gun from Hill’s shoulder holster, (id. at 135.) and retrieved another gun and a green bag from the grass near Hill. Id. at 137.

From his position on the grass Hill saw Jenkins walk across to the spot where Hardy had been hit and retrieve another gun and another bag. Id. Hill maintains the two guns retrieved by Jenkins (the one found on the lawn and the one found on the street) belonged to Hardy. Id. at 138. But Hill does admit picking up a second pistol as he left the food store and tucking it in the waistband of his trousers outside the store. Id. at 109-11. Hill specifically remembers tucking the gun directly in the center of his waistband after he exited the store. Id. at 11. Hill claims he later handed off the same pistol to Hardy and therefore could not have had it in his possession when he was shot by Jenkins. Id. at 115-16.

Off-duty Officer Jenkins relates a slightly different version of the shooting. See Jenkins’ Affidavit, Deft’s Ex D. Jenkins says he saw Hardy come out of the store first. Then Hill appeared. According to Jenkins, Hill carried two guns as he came out of the store: one gun (a nickel plated revolver) was in Hill’s right hand; the location of the other gun is not mentioned. Id. at 2. This “two gun” version is not altogether inconsistent with Hill’s version of the facts. For example, it is unlikely Jenkins saw the gun Hill insists was in the shoulder holster, but it is not contested that Jenkins saw the nickel plated gun Hill admits he carried out of the store in his right hand and later tucked in his trousers.

In any case, as Hill came out of the store Jenkins heard someone yell, “there they go!” Jenkins then gave chase to the fleeing Hill and Hardy. Id. at 2. While driving, Jenkins heard from his police radio that “T.P. Foods has been robbed.” Id. Jenkins does not elaborate on the radio message.

After some chasing, Jenkins relates that Hill turned and “pointed a nickel plated revolver at me.” Id. at 3. Jenkins then fired at Hill. Hill began to run, dropped a green bag and the nickel plated gun and then fell some 20 to 30 feet from where he had been shot. Id. These final events took place in or near the front yard located at 1201 South 12th Avenue. Id.

Cheryl Hudson resides at 1224 South 12th Avenue. Hudson Affidavit, Deft’s Ex E at 1. That address is across the street from 1201 South 12th Avenue; the location where Hill was shot by Jenkins. At the time of the shooting, Hudson was sitting by a window which overlooked 12th Avenue. She was talking on the telephone. Id. Through the window Hudson saw a man running north on 12th Avenue; he carried a bag in one hand and “an object in his other hand.” Id. As she watched the man run, Hudson heard someone yell “stop” or “halt.” Id. Hudson turned away from the window and again heard someone yell “stop” or “halt.” Shortly thereafter she heard four or five gunshots. She returned to the window to see the man she had previously seen running now lying in the front yard at 1201 South 12th Avenue. She observed a gun “lying next to [the man’s] hand.” Id. at 2.

Defendants insist a recent Supreme Court decision governs this case. See Tennessee v. Garner, — U.S. -, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Garner involved the fatal shooting of a fifteen year old burglary suspect by an officer responding to a night-time report of a burglary. The issue before the Court involved the “constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon.” 105 S.Ct. at 1697. Specifically at issue was the constitutionality of a statute which allowed the use of all necessary means to effect an arrest (including deadly force) “if, after notice of the intention to arrest the defendant, he either flees or forcibly resists.” See 105 S.Ct. at 1698. The Court found the statute unconstitutional insofar as it authorized the use of deadly force to apprehend an “unarmed, nondangerous” fleeing suspect. Id. at 1701. Thus, the Court held deadly force may not be used “unless if is necessary to prevent ... escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious injury to the officer or others.” 105 S.Ct. at 1697 (emphasis added).

Further into its opinion, the majority attempted to define the limits of the constitutional use of deadly force. The Court expanded on its holding and specifically noted that it is not constitutionally unreasonable for a police officer to prevent a suspect’s escape by using deadly force when the “officer has probable cause to believe ... the suspect poses a threat of serious physical harm ... to the officer or others. 105 S.Ct. at 1701. Consequently, when a suspect threatens an officer with a weapon or the officer has probable cause to believe the suspect “has committed a crime involving the infliction or threatened infliction of serious physical harm, [then] deadly force may be used to prevent escape, and if, where feasible, some warning has been given.” Id. Under Gamer, therefore, either a threat with a gun or a determination of probable cause can support the use of deadly force. More specifically, Jenkins’ use of deadly force (firing his weapon at Hill) was not a violation of Hill’s fourth and fourteenth amendment rights if

(1)(a) Hill threatened Jenkins with a gun, or
(b) Jenkins had probable cause to believe Hill committed a crime involving the infliction or threatened infliction of serious physical harm, and
(2) if feasible, Hill was given some kind of warning.

This is not a new formulation of a deadly force standard (see Garner v. Memphis Police Department, 710 F.2d 240, 247, (CA6 1983); Taylor v. Collins, 574 F.Supp. 1554, 1561-62 (E.D.Mich.1983); American Law Institute, Model Penal Code § 3.07(2)(b) (Proposed Official Draft 1962), but it is the first time the Supreme Court has adopted this formulation as a constitutional minimum which' displaces the traditional common-law rule. See 105 S.Ct. 1703-1704 & nn. 14-21.

THE THREAT THEORY

For the purposes of this motion it cannot be taken as an established fact that Hill threatened Jenkins with a gun before Jenkins shot Hill. It is true that Jenkins claims Hill turned and pointed a nickel plated revolver at him. Jenkins Dep at 3, Deft’s Ex D. But Hill swears to the opposite; he claims he had no gun in his hand when the shooting occurred. Whether there was a threat by Hill is a contested material fact. And the presence of that genuine issue of material fact precludes the entry of summary judgment in favor of Defendants on a threat theory. Resolution of that issue, however, does not dispose of Defendants’ motion. Defendants argue that this case falls within the probable cause rule announced in Garner.

THE PROBABLE CAUSE THEORY

The gist of the probable cause rule is that an officer’s use of deadly force does not violate the fourth amendment if the officer had probable cause to believe the suspect had committed a crime involving the threat or actual infliction of serious physical harm. 105 S.Ct. at 1701. Analysis under the rule initially requires a determination of probable cause. Since Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), probable cause has become a common sense determination based on the totality of the circumstances. United States v. Streich, 759 F.2d 579, 586 (CA7 1985). Moreover, the determination of probable cause is a matter of probability, not certainty. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1948). Even though it is a flexible concept, the determination of probable cause in this case must be limited to the facts available to Officer Jenkins at the time of the shooting incident. See United States v. Simon, 409 F.2d 474, 475 (CA7 1969). Based on an examination of the undisputed facts in this case the Court finds Officer Jenkins had probable cause to believe Hill had committed a crime involving the threat and actual infliction of serious bodily harm. Consequently, Defendants’ motion for summary judgment must be granted.

The following undisputed facts provide the basis for probable cause in this case. Jenkins became aware of the T.P. Foods robbery from a police radio message. After he arrived Jenkins heard a shot from inside the store. Hill admits firing a shot inside the store and does not dispute that Jenkins heard the shot. Similarly, Hill does not dispute Jenkins’ statement that he saw Hill carrying a gun in his hand as Hill came out of the T.P. Food Store. See Jenkins Dep, Deft’s Ex D at 4. Hill in fact admits to carrying the gun in his hand as he left the store. Hill Dep at 76. In sum, then Jenkins heard the police call describing a robbery in progress at a food store, he arrived at the scene and heard a gunshot. He also saw a man (Hill) walk out of the store with a gun in his hand. These facts were sufficient to provide Jenkins with probable cause that Hill had committed a crime involving the threat and infliction of serious bodily harm. But there is more.

Before the shooting, Jenkins saw Hardy run from the food store. Hardy looked nervous. Hill quickly followed on Hardy’s heels. Both ran from the store and were chased by a uniformed Maywood policeman. While he participated in the chase Jenkins saw both Hardy and Hill carrying bags. These facts were sufficient to give Jenkins probable cause to believe Hill and Hardy were the perpetrators of the T.P. Foods robbery. Cheryl Hudson’s affidavit corroborates much of Jenkins’ version of the facts and establishes the sequence of the shooting incident: two shouts of “stop” or “halt” followed by four or five gunshots shortly thereafter. Hudson Affidavit, Deft’s Ex E at 1.

Hill contends Jenkins’ failure to warn him generates a genuine issue in this case. Garner requires only that “some” warning be given before deadly force is used. 105 S.Ct. at 1701. Hill has introduced no evidence to contradict Cheryl Hudson’s statement that “some” warning was given in this case. Thus, Hill’s argument regarding the feasibility of a warning by Jenkins is negated by the fact that Hill actually received “some” warning. The Court does not believe Garner requires more than that.

Moreover, Hill’s argument would fail even if Gamer could be read as requiring more of a warning than was given in this case. The Garner Court specifically noted that a warning before the use of deadly force need only be given “where feasible.” 105 S.Ct. 1701. Given the particular facts in this ease and the very brief amount of time over which the entire incident took place, the Court finds no additional warning was feasible.

Next, Hill argues summary judgment is inappropriate because Jenkins had no artic-ulable basis to believe Hill was armed at the time of the shooting. Hill misses the point. There is ample evidence in this case to support a finding that Jenkins had probable cause to believe Hill had committed a crime involving the threat and actual infliction of serious physical harm. This finding is based in part on four undisputed facts: 1) The police radio dispatch which allerted listeners to a robbery in progress at T.P. Foods; 2) Jenkins’ statement that he heard a shot from inside the food store shortly after he arrived at the scene; 3) Hill’s admission that he carried a gun in his hand when he walked out of the store and into the street; and 4) Jenkins’ statement that he saw the gun in Hill’s hand as Hill came out of the food store. Hill does not argue that Jenkins saw Hill hand off the gun to Hardy. Thus Jenkins was entitled to the reasonable inference that Hill retained the gun, but concealed it on his person. To do otherwise would require a police officer at the scene of a crime to trust that an armed fleeing felon will not use a gun which the officer has every reason to believe the felon still possesses. Thus under these facts, without some affirmative action on Hill’s behalf which showed that he was unarmed, once having seen Hill with a gun in his hand, Jenkins was entitled to continue in his belief that Hill was armed and dangerous. Defendant’s motion for summary judgment is granted.

IT IS SO ORDERED.


author: SPIEGEL, District Judge:

text:
    Bernard T. MOYNAHAN, Jr., Plaintiff, v. The UNITED STATES of America, et al., Defendants.
    No. 85-147.
    United States District Court, E.D. Kentucky, Lexington Division.
    Sept. 20, 1985.
    David R. Irvin, Bulleit, Kinkead, Irvin & Reinhardt, Lexington, Ky., Bernard T. Moynahan, Jr., Nicholasville, Ky., for plaintiff.
    Hermes Fernandez, Richard Greenberg, Judith F. Ledbetter, Attys., U.S. Dept, of Justice, Robert Loesche, Deputy Gen. Counsel, Richard K. Willard, Acting Asst. Atty. Gen., Joseph F. Spaniol Jr., Deputy Director, Washington, D.C., for defendants.
   OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

SPIEGEL, District Judge:

This matter came on for consideration on defendants’ motion to dismiss (doe. 8), and memorandum in support thereof (doc. 9), plaintiff’s brief in opposition (doc. 10), defendants’ reply memorandum (doc. 12), and plaintiff’s supplemental brief (doc. 14). Oral argument was held on August 15, 1985. By stipulation, the parties have agreed that the cause now before us — that is, interpretation of 28 U.S.C. § 371 and 5 U.S.C. §§ 8701(a), 8706, and 8714a, b, as amended — may be treated as if submitted on cross motions for summary judgment (see doc. 15). We sit today, pursuant to provisions of 28 U.S.C. § 292(b) and the Order of Chief Judge Lively, as a district court in the Eastern District of Kentucky at Lexington (see doc. 4).

Before we proceed with the facts of this case and our analysis of the law, we begin with a bit of background. In the context of the question presented to us, we shall group federal judges into four categories. They are: (1) active judges; (2) senior judges — that is, judges who, after satisfying the “rule of 80” requirements, retain their office but retire from regular active service; (3) judges who, after satisfying the “rule of 80” requirements, retire completely from their office; and (4) judges who, before satisfying the “rule of 80” requirements, retire completely from their office. See 28 U.S.C. § 371. This Opinion concerns only those judges that comprise category three. These judges, henceforth dubbed “retired ‘rule of 80’ ” judges, are those jurists who, upon satisfying the “rule of 80,” have opted to retire completely from their office rather than retire only from regular active service. In other words, these judges retire from the Bench rather than take senior status.

The question presented is a straightforward one and asks whether a federal judge who retired from the Bench under the “rule of 80” is entitled to the same level of coverage under the Federal Employees’ Group Life Insurance (FEGLI) plan that he received while on the Bench. For the reasons set forth below, we rule that a federal judge is entitled to such coverage, without interruption or diminution, and thus decide in plaintiff’s favor.

Before setting forth some facts and explaining the theories the parties advocate, we turn to the pertinent statutes. Under FEGLI, once a federal “employee” retires, his or her insurance coverage is reduced. See, e.g., 5 U.S.C. §§ 8706(b)(3), 8714a(c)(2), 8714b(c)(2). The statutory definition of “employee” was amended in 1984 to include specifically:

a justice or judge of the United States appointed to hold office during good behavior (i) who is in regular active judicial service, or (ii) who is retired from regular active service under section 371(b) or 372(a) of title 28, United States Code, or (iii) who has resigned the judicial office under section 371(a) of title 28 with the continued right during the remainder of his lifetime to receive the salary of the office at the time of his resignation.

5 U.S.C. § 8701(a)(5) (emphasis added).

At 12:00 a.m. on September 30, 1984, plaintiff left the Bench, retiring from active status as a United States District Judge for the Eastern District of Kentucky. Prior to retiring from the Bench, however, he made certain inquiries concerning the future status of his life insurance coverage. General Counsel to the Administrative Office of the United States Courts advised him that “judges retiring under section 371(a) with sufficient seniority to be eligible for an annuity are for the first time entitled to continue their Federal life insurance coverage without interruption or diminution” (see doc. 1, exh. B) (emphasis ours). Allegedly relying on this advice, and on correspondence that plaintiff terms supportive {see infra pp. 280-281), plaintiff retired, only to be informed subsequently that his optional life insurance was to be reduced gradually to $2,500.00, that his accidental death and dismemberment coverage had terminated, and that his additional optional group life insurance was to be reduced gradually until it terminated at the end of fifty months. This lawsuit was filed; plaintiff seeks declaratory and injunctive relief that requires defendants to permit him to keep his FEG-LI coverage, including all optional coverage, in full force and effect and without diminution.

Plaintiff maintains that § 8701(a)(5)(iii) or retired “rule of 80” judges are not subject to the statutory reductions in insurance coverage. Plaintiffs logic, divided by the Court into four parts, breaks down in this fashion: Congress, in amending section 8701(a), included retired “rule of 80” judges within the definition of “employee.” Congress, by virtue of sections 8706(b)(3), 8714a(c)(2), and 8714b(e)(2), mandates that a federal “employee” suffer a reduction in his or her life insurance coverage upon retirement. An employee who, by definition, already is retired cannot be expected to retire again. Consequently, Congress, as a matter of common sense, did not intend, as it did with respect to any other federal employee upon retirement, for “rule of 80” judges, upon retirement from the Bench, to suffer a reduction in their life insurance coverage. To put plaintiffs theory in context, and using the section relating to Optional Insurance as an example, plaintiff thinks it absurd that Congress intended the statute to read as follows: “In the case of any [judge ... who has resigned the judicial office ... with the continued right during the remainder of his lifetime to receive the salary of the office at the time of his resignation] who retires on an immediate annuity....” See 5 U.S.C. § 8714a(c)(2)(A), reprinted supra note 3. Plaintiff believes instead that Congress intended to exempt retired “rule of 80” judges from any insurance coverage reduction to which other federal employees might be subject. In fact, plaintiff posits that Congress’ intent was to permit “rule of 80” judges to keep their FEGLI coverage, in full force and effect and without diminution.

Defendants obviously maintain a contrary position. In their view, the definitions in 5 U.S.C. § 8701 merely set forth who is eligible for coverage, a fact distinct from the breadth of that coverage. They state that the distinctions drawn in 28 U.S.C. § 371 between active, senior, and retired judges, rather than the definition of “employee” in section 8701(a), govern how judges shall be treated for FEGLI purposes. Defendants observe that retired judges are separated from service; they urge that retired judges no longer serving the judicial branch ought not to receive the same coverage that active and senior judges do, especially given their option to join law firms where they likely will be compensated generously for their experience on the Bench. Defendants are impressed by Congress’ provision allowing judges who resign, but do not qualify for “rule of 80” status, the option to convert their standard and optional life insurance to individual policies. Defendants reason that Congress knew to amend the coverage rather than the definitional provisions to afford these non-“rule of 80” judges the aforementioned opportunity, and, if it had so intended, could have amended the coverage provisions to afford retired “rule of 80” judges the benefit to which plaintiff lays claim.

Upon consideration, the Court finds plaintiff’s interpretation to carry the day. When Congress defined an “employee” for FEGLI purposes, it included judges who retired under the “rule of 80.” A judge that has retired from the Bench cannot retire again; therefore, we do not believe that Congress intended for retired “rule of 80” judges to suffer a change in their insurance coverage. And, although perhaps superfluous to our ruling, we think that strong policy reasons may have underwritten Congress’ action in favoring retired “rule of 80” judges over other retired federal employees. The act of retirement removes an individual from Article III status, but not from other indicia of unique federal service. At the onset, judges accept life appointments. Also, they often accept their appointment during the prime of their legal career and forego much higher salaries for the privilege of serving on the judiciary. The earliest that “rule of 80” retirement accrues is at age sixty-five and after fifteen years of service. At the risk of sounding self-serving, the Court seriously doubts that Congress considers “rule of 80” retirees to be cheating the United States Government by permitting maintenance of their insurance coverage after leaving the Bench. Furthermore, and with all due respect to my colleagues who have proceeded otherwise, many “rule of 80” eligibles may opt to retire completely not only from the Bench, but also from the legal profession. Without a doubt, years of managing heavy dockets take their toll. For these judges, there is no lucrative law firm salary in the offing to compensate them for the loss of their insurance coverage. Finally, Congress may have realized that continued coverage allows judges to retire from the Bench rather than take senior status. At least one dollar advantage accrues to the United States Government in affording judges qualifying under the “rule of 80” that choice: neither law clerks nor support staff need be provided to retired “rule of 80” judges. In sum, we can identify ample reasons why Congress acted as we believe it did.

The Court notes that we are not the only ones who interpreted the amendment to read that retired “rule of 80” judges would not be subject to a reduction in FEGLI coverage like other retired federal employees. We already mentioned the letter authored by the Administrative Office’s General Counsel on which plaintiff allegedly relied in reaching his decision to retire (see doc. 1, exh. B). Said General Counsel repeated his belief as to the correct interpretation to the Associate Director for Compensation of the Office of Personnel Management (OPM) (see doc. 1, exh. D). Plaintiff apparently has uncovered other correspondence to this effect. For example, a letter from the Director of the OPM to the Director of the Office of Management and Budget voiced the following concern:

However, the Office of Personnel Management strongly objects to including in the definition of “employee” for FEGLI purposes a judge who has resigned his office with the right to salary continuation. Such an individual is deemed to be an employee retired under a civilian retirement system for Federal employees. Therefore, he is treated like any other retired employee under the FEGLI program. If he has had FEGLI coverage for the 5 years of service immediately preceding retirement or, if less than 5 years, since his first opportunity to enroll, a retired employee may continue his FEGLI coverage after retirement, but his coverage» begins to reduce at age 65. If retired judges were defined as “employees” under the FEGLI law, their coverage would never reduce. The Office of Personnel Management opposes offering FEGLI to retired judges on more favorable terms than to retired employees generally. (Emphasis ours.)

(See doc. 1, exh. C), We highlight these communications not under the guise of legislative history, because we tend to agree with defendants that they are not, but as a confirmation, of sorts, of the meaning imparted by the words that eventually were made law by the Congress. That the OPM subsequently reversed itself (see doc. 1, exhs. E, G) bespeaks an unsurprising political reaction and does not render the earlier letters useless for the limited purpose we have described.

Both sides have devoted considerable effort to pinpointing legislative history and other correspondence favorable to their cause. Our ruling today indicates that, while we read the FEGLI configuration to be a bit curious, we do not consider it ambiguous and thus in need of clarification provided by whatever legislative history can be discovered. To be sure, Congress’ effort was awkward, but given the equivocal — and often partisan — nature of legislative history in general, we take solace in knowing that the “plain meaning” canon of statutory construction, applicable here, still prevails in the first instance.

Our colleague sitting in the District of Colorado, Judge West, in deciding this very issue, also has ruled in favor of a retired “rule of 80” judge, but in doing so he did find it necessary to consult with and rely on more than the statute itself. See Winner v. Cornelius, No. CIV-85 L.W. 1103 (D.Colo. July 22, 1985) (doc. 14 app.).

Private correspondence again figures into our discussion. Judge West relied on three letters and a declaration to elucidate “everyone’s belief prior to the enactment as well as the AO’s and Congress’ belief after the legislation passed that the amendment would and did have the effect of providing coverage, without diminution, to judges who resigned under Section 371(a).” See doc. 14 app. at 13-14. In Winner and in the instant case defendants objected to use of these documents as indicators of Congress’ intent. Judge West disagreed and found the papers to be “properly before [him] for all purposes.” Id. at 11. We need not make a similar ruling, but remark that, having read their contents and their unfavorable tenor, we are not surprised at defendants’ objections. , The first letter, dated December 1982, is one written from Charles E. Simons, Jr., Chief Judge for the United States District Court of South Carolina to then-Judge Winner. In it, Judge Simons relates that he had delivered a proposed amendment — the present language of section 8701(a)(5)— that would allow retired “rule of 80” judges to keep their insurance. A second letter reflects an exchange between Strom Thurmond, United States Senator from South Carolina and Chairman of the Committee on the Judiciary and Judge Simons in which the former relates that the purpose of the amendment was to permit retired “rule of 80” judges “to continue their life insurance after their retirement, without diminution” and that he would endeav- or to persuade the OPM to return to its original interpretation that set retired “rule of 80” judges apart from other retired federal employees. Judge Simons submitted a declaration in the Winner case authenticating and elaborating upon these written conversations. The third letter is one from Charles E. Wiggins, United States Circuit Judge for the United States Court of Appeals for the Ninth Circuit, in which he expresses disappointment over the OPM’s current position, particularly in light of his close work with the Administrative Office’s staff to phrase an amendment that would accommodate the judiciary’s goal.

We detail the above correspondence only to advise the parties that we appreciate their efforts in trying to assist the Court in its ruling. As heretofore mentioned, however, we have no qualms in deciding this matter based on a simple reading. It would be absurd to assume that Congress would expect already retired judges to retire again. Congress, whatever its reasons, conferred on retired “rule of 80” judges the privilege of maintaining their life insurance coverage without diminution. Accordingly, summary judgment on this issue is granted in favor of plaintiff.

SO ORDERED.

      . Those portions of the briefs relating to estop-pel neither will be discussed nor ruled upon. The parties reserve the right, however, to litigate with respect to plaintiffs claims of estoppel at some future date.

      . The actual statutory language is reprinted below:
      (a) Any justice or judge of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.
      (b) Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his lifetime, continue to receive the salary of the office.
      (c) The age and service requirements for retirement under this section are as follows:
      Attained age: Years of Service
      65.15
      66.14
      67.13
      68.12
      69.11
      70.10
      (d) The President shall appoint, by and with the advice and consent of the Senate, a successor to a justice or judge who retires under this section.
      28 U.S.C. § 371. The "rule of 80” permits a judge to retire and receive an annuity equal to the salary he or she was receiving at the time he or she retired if his or her age plus the number of years of service yield a figure of eighty. The earliest age at which one may retire, however, as the statute indicates, is sixty-five years.

      . For example, 5 U.S.C. § 8714a reads in relevant part:
      (c)(1) The optional insurance on an employee stops on his separation from service, 12 months after discontinuance of his pay, or on his entry on active duty or active duty for training, as provided in sections 8706(a) and 8706(c) of this title.
      (2)(A) In the case of any employee who retires on an immediate annuity and has been insured under this section throughout—
      (i) The 5 years of service immediately preceding the date of such retirement, or
      (ii) the full period or periods of service during which the employee was entitled to be insured, if less than 5 years,
      the amount of optional life insurance only which has been in force throughout such period may be continued, under conditions determined by the Office.
      (C) The amount of optional life insurance continued under subparagraph (A) or subpara-graph (B) of this paragraph shall be reduced by 2 percent at the end of each full calendar month after the date the employee becomes 65 years of age and is retired or is receiving compensation for disease or injury. The Office shall prescribe minimum amounts, not less than 25 percent of the amount of life insurance in force before the first reduction, to which the insurance may be reduced.

        (3) Notwithstanding paragraph (c)(1) of this section, a justice or judge of the United States as defined by section 8701(a)(5) of this title who resigns his office without meeting the requirements of section 371(a) of title 28, United States Code, for continuation of the judicial salary shall have the right to convert regular optional life insurance coverage issued under this section during his judicial service to an individual policy of life insurance under the same conditions approved by the Office governing conversion of basic life insurance coverage for employees eligible as provided in section 8706(a) of this title.

      . Such judges otherwise are known as § 8701(a)(5)(iii) or retired "rule of 80” judges.

      . Section 8701(a)(5)(iii), in referring to retired “rule of 80” judges, describes them as judges who have "resigned the judicial office under section 371(a) of title 28 with the continued right during the remainder of [their] lifetime to receive the salary of the office at the time of [their] resignation” (emphasis ours). Section 371 of title 28, however, uses the term "retire.” Because Congress interchanges the words "resign" and "retire" with respect to judges who, after satisfying the “rule of 80,” have left the Bench, so, too, will this Court.

      . Defendants cite no legislative history to suggest that their “bright future” argument was a concern of the legislators, but proffer their theory as a policy consideration only.

      . See, e.g., 5 U.S.C. § 8714a(c)(2)(C), reprinted supra note 3.

      . For the record, we indicate again that our ruling in plaintiffs favor is in no way based on an estoppel theory.

      . We comment here that the legislative history brought to light by defendants strikes us as less than persuasive. Frankly, it appears to us that Senator Thurmond, in referencing "amendments to sections 8701(a), 8714a(c), and 8714b(c)” was referring to judges who leave the Bench before qualifying under the "rule of 80.” He does refer to judges who “retire or resign completely,” but one wonders if he was using those terms interchangeably given that the amendments to §§ 8714a(c) and 8714b(c) only added provisions concerning those judges who leave before qualifying under the "rule of 80.” It is these judges who plainly have an option to convert their coverage to individual policies. We observe that Judge West in Winner v. Cornelius, No. CIV-85 L.W. 1103 (D.Colo. July 22, 1985) also did not find this excerpt persuasive. See doc. 14 app.

      . Were we basing our Opinion on this correspondence, the fact that Judge Simons delivered a copy of the proposed amendment to Senator Thurmond’s aide rather than to the Senator himself, as defendants tried to persuade at oral argument, would be of no moment to us.


author: OBERDORFER, District Judge.

text:
    Betty Isen KESSLER, Plaintiff, v. The LINCOLN NATIONAL LIFE INSURANCE COMPANY, Defendant.
    Civ. A. No. 85-0511.
    United States District Court, District of Columbia.
    Sept. 20, 1985.

      Marvin Waldman, Bethesda, Md., for plaintiff.
    Charles H. Fleischer, Randall C. Smith, Washington, D.C., for defendant.
   MEMORANDUM

OBERDORFER, District Judge.

Plaintiffs decedent, a doctor, purchased two policies of life insurance from the predecessor of the defendant insurance company. He purchased the policies in the face amounts of $35,000 and $25,000 in 1951 and 1955, respectively. He elected settlement in installments payable over 15 years, and subject to spendthrift limitations on anticipation or alienation of the proceeds. In 1968, the insured changed the beneficiary clause in details not here relevant, leaving intact the 15 year installment settlement and the spendthrift clauses. The insured died on December 4, 1983. The settlement option in place at the time of his death was unchanged since 1968. It provided for installment payments to his widow, the plaintiff here, for 15 years. If she did not survive her husband for 15 years, the remaining installments went to their daughters, or the lawful children of a deceased daughter.

After the death of the decedent, the insurance carrier tendered the first installment to the plaintiff, decedent’s widow and primary beneficiary. She rejected the tender and demanded a lump sum settlement. When the insurer rejected this demand, this suit followed. It is now before the Court on Defendant’s Motion for Dismissal [sic], and, Alternatively, for Summary Judgment (filed April 2, 1985) and Plaintiff's Motion for Summary Judgment on Count I (filed May 17,1985). Since there is no dispute about material facts, the case is susceptible to disposition on the pending motion.

Although plaintiff advances some imaginative theories, they are more advanced than the precedents (particularly the District of Columbia authorities) will justify. Plaintiff makes three arguments: (1) all of the beneficiaries have waived, and are entitled to waive, any right to installment payments; (2) the insurer negligently failed to advise the insured to change the settlement to lump sum despite a 1981 change in the federal estate tax law which reduced a tax advantage inherent in the installment settlement; and (3) in any event, a contract to accept 15 installments instead of a lump sum is so inequitable that the Court should rescind it.

Plaintiff and her two daughters have, since decedent’s death, executed indemnifications and releases whereby they purport to waive and renounce all rights under the installment settlement provisions. Citing “the applicable law of will and trusts,” plaintiff claims that she and her daughters are entitled to renounce their life insurance proceeds. Plaintiffs Memorandum at 9. She argues that the insurance policy “impliedly anticipated” renunciation by providing for lump sum payment to the estate if both plaintiff and her daughters predeceased the insured. Id. But plaintiffs “implied anticipation” argument is dubious because by the very words of the settlement provision it is obvious that it anticipated the deaths of the beneficiaries, not renunciation by them. For whatever reason, not necessarily confined to estate tax or other economic considerations, the insured chose installment payments with a spendthrift provision. The waiver of the installment and spendthrift terms would change the agreement between the insured and the carrier. Moreover, there is no ambiguity in the option provision of the insurance contract as to decedent’s intent. Absent ambiguity, parole evidence is not admissible to vary decedent’s clear intent as expressed in the contract. King v. Industrial Bank of Washington, 474 A.2d 151, 155 (D.C.App.1984). Consequently, plaintiff’s claims as to decedent’s estate and tax plans, his will, and conversations between plaintiff and decedent are irrelevant. But, most importantly, the special rules which permit a beneficiary of a will or trust to renounce the benefit and take by intestacy, have no application to insurance contracts. See generally 44 Am.Jur.2d Insurance § 1770 (1982 & Supp. 1984).

Finally, as defendant points out, a waiver by the adult beneficiaries cannot bind infant and unborn contingent beneficiaries. Anticipating this last problem, plaintiff suggests the Court appoint a guardian ad litem to protect the interests of unborn beneficiaries. Plaintiff’s Memorandum at 13. This course of action is inappropriate, however, because the contract of insurance is binding upon them as well.

Plaintiff’s second argument charges the insurance carrier or its agent with negligent failure to protect the insured during his lifetime from the disadvantageous consequences of a 1981 change in the estate tax law, and the realities of the time/cost of money which, plaintiff contends, made a installment settlement less advantageous for the insured and his named beneficiaries and more advantageous for the carrier. It may well be that the decedent made, and failed to adjust to, a bad bargain with the insurance company and that insurance companies and their agents should be obligated to protect policyholders from the consequences of tax law changes. But federal and state legislatures and local courts are the fora with authority to correct any such failures by life insurance companies. Moreover, even if a court of equity could and should reform a contract like this one because of a significant tax law change, there is no District of Columbia decision cited as direct or even tangential precedent for such a judicial remedy. Our Court of Appeals has strongly admonished federal district courts to await and follow, but not to create, local law precedents in circumstances like this. See, e.g., Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 851 (D.C.Cir.1981); Gatewood v. Fiat, S.p.A., 617 F.2d 820, 826 n. 11 (D.C.Cir.1980). Therefore, absent a duty, supported by legal precedent, of an insurance carrier to advise its insured of changes which affect the insured’s policy, this Court must decline to impose such an obligation.

Plaintiffs third claim, that the contract is unconscionable and thus should be rescinded, must also be rejected. There is no evidence presented here of anything approaching fraud or duress — the traditional requisites for recission. In fact, this settlement provision was entirely optional. Decedent had a choice of settlement options and voluntarily chose this one. Decedent is entitled to have his chosen option enforced and followed. Recission in this case is thus completely unwarranted.

Plaintiff’s disappointment with the tax and financial consequences of this insurance contract is understandable, but relief for her is beyond the authority of a federal district court. Possibly, this result will alert other policyholders to reconsider their insurance arrangements in light of changing tax laws and the realities of compound interest. It may also remind innovative counsel that, whatever may be the attractions for them of federal courts in matters of this kind, state courts can take initiatives and provide remedies not available in federal court.

      . Plaintiff originally advanced a fourth argument that no contract existed between decedent and the insurance company because the insurance company never formally accepted decedent's offer of a lump sum settlement. Upon examining the insurance policies, however, plaintiffs counsel discovered that they were in fact endorsed by defendant and thus plaintiff has withdrawn this claim. Plaintiffs Memorandum of Points and Authorities in Support of Her Motion for Summary Judgment and in Support of Her Opposition to Defendant’s Motion for Dismissal and Summary Judgment (Plaintiff's Memorandum) at 7 (filed May 17, 1985).

      . Even California courts deny relief in circumstances analogous to this one. See, e.g., Gibson v. Government Employees Insurance Company, 162 Cal.App.3d 441, 208 Cal.Rptr. 511 (5th Dist.1984).


text:
    Wanda G. CHRISLEY, Administratrix of the Estate of Thomas Darren Chrisley, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
    No. 85-270-3.
    United States District Court, D. South Carolina.
    Sept. 23, 1985.

      Griffeth, Mays, Foster & Kittrell, Pope & Hudgens, P.A., Newberry, S.C., for plaintiff.
    Vinton D. Lide, U.S. Atty., Paul E. Wilburn, III, Asst. U.S. Atty., Greenville, S.C., for defendant.
   MEMORANDUM OPINION AND ORDER FOR SUMMARY JUDGMENT OF DISMISSAL

GEORGE ROSS ANDERSON, Jr., District Judge.

This is an action for the alleged wrongful death by drowning of the plaintiffs fifteen-year old son, Thomas Darren Chrisley, who fell from a rock outcropping into swiftly moving waters below the Richard B. Russell Dam. The defendant, United States of America, has moved for dismissal under F.R.Civ.P. 12(b)(1) and (6), or alternatively, for summary judgment under F.R.Civ.P. 56. For the following reasons, the court concludes that the defendant’s Motion for Summary Judgment should be granted.

FINDINGS OF FACT

After examining the record in this case, hearing counsel’s arguments upon the motions, considering the exhibits attached to the Motion and to the Memorandum in Opposition, and after reviewing submitted depositions, certain facts are evident and undisputed by either party.

The Richard B. Russell Dam and Lake is a multipurpose water resource project constructed and maintained by the United States Army Corps of Engineers. It is located on the Savannah River (headwaters of Clarks Hill Lake) on the border between South Carolina and Georgia. A portion of the water resource project which was owned and controlled by the defendant included a riverbank area below the dam on the South Carolina side. The South Carolina riverbank below the dam was a steep, wooded slope with a rocky shoreline. This bank was a favorite spot for fishermen, and paths indicating frequent travel through the area extended from the top of the high bank to the shoreline. At the time of the drowning, June 17, 1983, the United States Army Corps of Engineers had restricted public access to a portion of the South Carolina riverbank extending for approximately two hundred (200) feet below the dam. The Corps also prohibited boats and boaters from entering the water area within one thousand (1,000) feet below the dam. A cable had been placed across the river one thousand (1,000) feet downstream from the dam to keep boaters proceeding upstream from coming any closer to the dam.

Thomas Darren Chrisley was a reasonably healthy fifteen-year old who experienced no significant physical or mental handicaps. On June 17, 1983, at approximately 4:30 p.m., he and his father entered the bank area on the South Carolina side of the dam and proceeded to a location approximately five hundred (500) feet below the dam to fish for striped bass. They paid no entrance fees or admission fees for entry into or use of the bank area for fishing. The area in which the Chrisleys entered and in which they fished had not been restricted to fishermen or others who sought access to the river by way of the land. There were no signs or devices posted at the site which warned persons of the obviously steep and rocky riverbank and of the swiftly moving water current. Thomas Darren Chrisley and his father were familiar with the area below the dam. They had fished together there as recently as June 16, 1983, when they would have observed conditions similar to those which existed on June 17, 1983. Mr. Chrisley desired that his son stay out of the water and had warned him of hazardous conditions presented by the area.

On June 17, 1983, at approximately 8:00 p.m., Thomas Darren Chrisley, while aiding his father in landing a large fish, fell approximately six to ten feet from a rock on the South Carolina riverbank into the swiftly moving current. A Corps of Engineers’ employee standing on the Georgia side of the river unsuccessfully attempted to gain the attention of the father, who at the time of the fall was downstream of his son, to let him know that the boy had fallen into the river. After resurfacing twice the boy disappeared under the water and apparently drowned. His body was recovered two days later approximately three hundred (300) feet below the point where he entered the water.

On the day of the drowning, the dam and powerhouse were still under construction, and the water which would accumulate on the face of the dam was being channeled through the dam by a series of five openings or sluice gates at the bottom of the dam. Passage of the water through the gates created a turbulent “whitewater” effect below the dam. Although the flow rate and turbulence of the water were altered from their natural condition by the passage through the sluice gates, this turbulent condition remained constant when the gates were open. All five sluice gates had been opened on June 14, 1983, and all five gates remained open from that date until the evening of June 17, 1983, when they were closed to assist in rescue operations for the Chrisley boy. The turbulence of the water would have been apparent to Thomas Darren Chrisley and his father when they came to the area on the afternoon of June 17, 1983, and it would not have been altered appreciably during their time at the area.

I. The Discretionary Function Exception of 28 U.S.C. § 2680(a)

The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq., constitutes a limited waiver by the United States of sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). This waiver is limited in part by the discretionary function exception found in 28 U.S.C. § 2680(a) which provides that the Federal Tort Claims Act 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 a 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.

The exception “poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as a part of his overall burden to establish subject matter jurisdiction.” Shirey v. United States, 582 F.Supp. 1251, 1259 (D.S.C.1984) (citing Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981); First National Bank in Albuquerque v. United States, 552 F.2d 370, 376 (10th Cir.1977); and Smith v. United States, 546 F.2d 872, 877 (10th Cir.1976)).

Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (hereinafter “Dalehite,”) is the leading case on discretionary function exception, and its continuing validity was recently reaffirmed by the Supreme Court in its decision in Varig . The court in Dalehite, stated:

[T]he ‘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 includes 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 operations of government in accordance with official directions cannot be actionable. Id., at 35-36, 73 S.Ct. at 967-68.

By 16 U.S.C. § 460, Congress assigned to the Department of the Army responsibility for the efficient management and operation of recreation facilities at water resource development projects. Under United States Army Corps of Engineer Regulation, ER 1130-2-400, responsibility for all aspects of the operations, maintenance, and administration of a water resource project, such as Richard B. Russell Dam and Lake, is delegated to the on site manager.

The United States, in its Motion and Memorandum in Support thereof, asserts that the Resource Manager at Richard B. Russell Lake and Dam project exercised a discretionary function when, in his capacity as an employee of the government, he restricted or did not restrict access to portions of the South Carolina bank below the dam.

The plaintiff argues that by the inclusion of the term “operations” in the description of the Resource Manager’s duties, the Resource Manager functioned upon an operational level as opposed to a planning level; and consequently, his acting or failing to act to restrict or to post warnings at the concerned area was not an exercise of a discretionary function. To support her argument, the plaintiff relies upon a line of cases which seek to interpret Dalehite, by classifying the actions of government employees as being either on an operational level or a planning level. The employee who performs functions on a planning level would be capable of invoking the discretionary function exception, but those who act on the operational level would not be able to utilize the exception. The plaintiff relies in part on two cases, Epps v. United States, 187 F.Supp. 584 (E.D.S.C.1960), and Hardy v. United States, 187 F.Supp. 756 (E.D.S.C.1960). Because these cases discuss an action by government employees which requires no actual decisional process (i.e., surveying of a dam), the Court finds these cases inapplicable to an analysis of the type of decisions and actions exercised by the Resource Manager at Russell Lake.

To determine whether or not an act is an act of discretion, the Court must consider the nature of the conduct of the employee which is in question. Dalehite, however, made it clear that all government employees exercising discretion are covered by the exception. Supra, 346 U.S. at 33, 73 S.Ct. at 966. As to which acts or conduct of the government employees are excepted, The court in Varig, explained:

First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.... Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability. Supra, 104 S.Ct. at 2764.

The Resource Manager at Richard B. Russell Lake and Dam was charged with the responsibility of coordination of all aspects of planning, design, construction, and other project activities. He was to make an evaluation of how the public interest could best be served. In doing so he weighed the demands for access to fishery resources against the possible risk of harm to the public from allowing it access to a steep and rocky hillside adjacent to turbulent waters. By balancing various factors, he made a policy judgment regarding which areas to restrict or not restrict. He declined to restrict the bank from which Thomas Darren Chrisley fell into the water. His decision not to restrict the bank area was made in response to a public demand for access to a fishing area.

The discretion protected is the discretion of the executive or the administrator to act according to his judgment of the best course. Shirey v. United States, supra, at 1259. Clearly, the responsibility given to the Resource Manager to act upon his judgment as to what course would be best, would be an exercise of discretion, and whether he acted or failed to act or perform this exercise of discretion, the discretionary function would cause any claim based upon his action or failure to act to be exempt from the Federal Tort Claims Act. Therefore, the authority delegated to and utilized by the Resource Manager at the Richard B. Russell Dam which caused him to weigh often competing interests and to make a decision according to his best judgment would be a discretionary function which would not be subject to review by this court. See Estate of Callas v. United States, 682 F.2d 613 (7th Cir.1982); Gemp v. United States, 684 F.2d 404 (6th Cir.1982); and Gercey v. United States, 540 F.2d 536 (1st Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977).

Furthermore, even if the plaintiff could show that the best interests of the public were not served by allowing access to the bank, and that the Resource Manager abused his discretion in not closing off an area of obvious hazards, the action or failure to act by the Resource Manager would still be an exercise of discretion and, consequently, could not be actionable.

If a government employee performing a discretionary function acts negligently, the exemption remains applicable even though the activity constitutes abuse of discretion. As the statute itself provides, discretionary functions are exempt whether or not the discretion involved be abused. 28 U.S.C. § 2680(a).

General Public Utilities Corp. v. United States, 745 F.2d 239, 245 (3rd Cir.1984).

Plaintiff has, in addition to questioning the rationale of the defendant in not restricting the bank area, raised an issue regarding the defendant’s duty to post warning signs or devices at the concerned site. Indeed, Shirey v. United States, supra, at 1261, (citing Smith v. United States, 546 F.2d 872 (10th Cir.1976),) may indicate that the act of restricting or not restricting an area may be considered separately from the decision not to issue or post warnings.

The defendant, United States, relying in part upon Empire District Electric Co. v. Rupert, 199 F.2d 941 (8th Cir.1952), cert. denied, 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344 (1953); and Gemp v. United States, supra, contends, however, that the United States Corps of Engineers’ Resource Manager performed an exercise of discretion in not restricting that portion of the bank from which Thomas Darren Chrisley fell, and no further duty was owed to Thomas Darren Chrisley because the hazards encountered were open and obvious. Additionally, the defendant would argue that, just as the Resource Manager acted according to what he deemed to be the best course in not restricting the concerned area, he also performed an act of discretion when he did not post signs and devices which warned persons who entered the bank area of the obvious hazards of that location. The government again points out that the Resource Manager considered various factors including feasibility of posting of warnings, and his not posting signs telling of the obvious hazards of the area was a discretionary function which would not be actionable under the Federal Tort Claims Act.

The plaintiff, on the other hand, asserts that there was a further duty to warn of the hazards below the dam, and the lack of warnings indicated no discretionary function was performed by the Resource Manager. The plaintiff points to several cases, Smith v. United States, supra; and Stephens v. United States, 472 F.Supp. 998 (C.D.Ill.1979); and Price v. United States, 530 F.Supp. 1010 (S.D.Miss.1981), wherein the government may have been negligent in not warning of hazards. However, each case concerns a hidden or concealed danger. The government may be found liable where it conceivably is under no duty to warn but nevertheless does so and does so negligently by providing inadequate warnings upon which a user of the land relied to his detriment. Here, however, no warning signs or devices existed, and Thomas Darren Chrisley was not alleged to have relied upon any warnings by the government.

On the contrary, several cases indicate that the United States has no duty to warn of conditions which are not hidden. In Fitzgerald v. Alba, 261 F.Supp. 915 (S.D.N.Y.1966), the lack of a guard rail on a pier was not found to be a hidden defect, and the government had no duty to warn of the condition. Also in Harmon v. United States, 532 F.2d 669 (9th Cir.1975), the United States Forest Service was found not to have had a duty to warn of hazardous boating conditions in the obviously turbulent high waters of the Salmon River which gave rise to claims on behalf of individuals who attempted to raft the river. And in Henretig v. United States, 490 F.Supp. 398 (S.D.Fl.1980), the National Park Service was found not to have had a duty to warn the plaintiff of a steep incline of a path, and further that had the plaintiff in that case watched carefully where she placed her feet, she would have avoided her fall.

In this action, Thomas Darren Chrisley was familiar with the area and, indeed, had fished at the location on the day before his fall into the river. His father had warned him of the dangers of the bank area and the turbulent waters. The turbulence of the waters was increased by the waters’ passage through the sluice gates at the bottom of the dam, but such turbulence was a constant condition which would have been observable by them when they visited the area on June 16, 1983, and June 17, 1983. Furthermore, it is undisputed that Thomas Darren Chrisley was not swept from the riverbank by an increased current of water which he would not have been able to anticipate but rather fell from a rock outcropping on the bank some six to ten feet above the water level.

Clearly the Resource Manager’s actions do not concern operational details, but reflect an executive’s decision that resulted in the policy that the public would not be denied access to a particular area at a government project. As the agency official in charge of the resource project, the Resource Manager utilized his best judgment to determine which area would be restricted and where warnings would be posted. He did not feel that the concerned area needed to be restricted to the public, nor did he think that signs and devices warning of obvious hazards were required. The Resource Manager did exercise discretion in his administration of this water resource project. His restricting or not restricting certain areas and his posting or not posting warning signs fall within the exception of the Federal Tort Claims Act provided by 28 U.S.C. § 2680(a), and consequently, cannot form a basis for liability. Therefore, since the United States has not waived sovereign immunity, this Court would lack subject matter jurisdiction over the claims asserted by the plaintiff and should accordingly dismiss this action.

II. The duty of a landowner to persons entering his premises and the South Carolina Limitation on Liability of Landowners Act. S.C. Code of Laws, §§ 27-3-10, et seq.

Assuming, for purposes of argument, that the actions of the Resource Manager were not performances of acts within the discretionary function exception, particularly with regard to the issue of warnings, there would still be no duty owed the decedent which was breached by the defendant, United States.

The Federal Tort Claims Act is a procedural statute which requires that this court look to the place of the act or omission to determine the applicable substantive law, and the United States may be held liable only to the extent that a private individual would be under the same circumstances. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Since the plaintiff alleges a failure to post warnings of hazards on the South Carolina riverbank or to restrict access to that riverbank, South Carolina would provide the appropriate substantive law.

Under an analysis of South Carolina case law, a plaintiff must prove three elements in order to recover for negligence of the defendant’s agent: a duty on the part of the defendant, a breach of that duty by an act of omission or commission, and an injury to the plaintiff proximately caused by the breach of that duty. Sherrill v. Southern Bell Telephone and Telegraph Co., 260 S.C. 494, 197 S.E.2d 283, 285 (1973). And a person cannot recover damages of another unless the second has failed to discharge a duty which he owed to the first. Hill v. Broad River Power Co., 151 S.C. 280, 148 S.E. 870, 871 (1929).

As a person privileged to enter upon the lands of the United States, Thomas Darren Chrisley would normally be a licensee to whom no duty would be owed except—

(a) to use reasonable care to discover him and to avoid injury to him in carrying on activities upon the land; and

(b) to use reasonable care and warn him of any concealed dangerous conditions or activities which are known to the possessor, or of any change in the condition of the premises which may be dangerous to him, and which the possessor may be reasonably expected to discover. Frankel v. Kurtz, 239 F.Supp. 713, 717 (W.D.S.C.1965). If the danger, however, is not hidden from the licensee but rather is patent, and an ordinary person of reason and prudence would reasonably and normally be expected to see and avoid the same, the possessor owes no duty to warn of the danger. Id., at 717. Furthermore, there is no common law duty for the United States to maintain safe conditions on a navigable stream which it owns. Faust v. South Carolina Highway Dept., 721 F.2d 934 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1983).

Additionally, South Carolina is one of over forty states, which to encourage landowners to make land and water areas available to the public for recreational purposes, have enacted legislation which places limitations upon the duty which the possessor of land owes to persons using the land for recreation. S.C.Code of Laws, §§ 27-3-10, et seq. Under South Carolina law, an owner of land owes no duty of care to keep the premises safe for entry thereon or use by persons who have sought and obtained permission tó use it for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to such persons entering for recreational purposes. S.C.Code of Laws, § 27-3-30. Furthermore, the landowner who permits without charge a person who is granted permission to use the land for recreation does not thereby: extend any assurance that the premises are safe for any purpose, confer upon such person using the land the legal status of an invitee or a licensee to whom a duty of care is owed, or assume responsibility for, or incur liability for, any injury to persons or property caused by an act or omission of such persons. S.C.Code of Laws, § 27-3-40.

The Act on Limitation of Landowners Liability does not, however, limit the liability which would otherwise exist for grossly negligent, willful, or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. S.C.Code of Laws, § 27-3-60. The plaintiff now alleges that she will show that the defendant was grossly negligent, willful, or malicious in its failure to restrict or provide warnings of dangerous conditions. She directs this court’s attention to cases wherein the United States’ failure to act has been deemed a willful breach of its duty. Again each case cited by the • plaintiff [Miller v. United States, 442 F.Supp. 555 (N.D.Ill.1976); Stephens v. United States, supra; and Richards v. United States, 248 F.Supp. 99 (D.Okla.1965),] deals with a condition which was concealed or hidden from the land user. There has been no showing whatsoever whereby this Court could conclude that the hazards of the area were concealed from Thomas Darren Chrisley. Moreover, there is no showing that the government in this case induced reliance by Thomas Darren Chrisley upon a belief that the bank was an area without dangers. This is not a case where inadequate warnings provided a false concept of an area free of danger, but rather, a situation where the dangers of the area would be apparent to anyone who came upon the land, and there were no postings of inadequate warnings. Indeed, because of the obviousness of the swift currents and of the steep, wooded, and rocky shoreline, no signs or devices to warn of these hazards were necessary.

While the court may be hesitant to grant summary judgment when an issue of willfulness is raised, the existence of such an issue does not preclude summary judgment when the requirements of such are nonetheless satisfied. Gross negligence in South Carolina is the want of even slight care and diligence. It is a greater want of care than is to be understood by the term ordinary care. Frankel v. Kurtz, supra, at 718. Characterizations of actions deemed to be reckless, willful, or wanton stem primarily from cases involving automobile accidents which hold actions classified as such are committed under circumstances “that a person of ordinary reason and prudence would have been conscious of it as an invasion of the rights of the deceased.” Powell v. Simmons, 258 S.C. 242, 188 S.E.2d 386, 388 (1972) (citing Suber v. Smith, 243 S.C. 458, 134 S.E.2d 404 (1964)). However, with the case of Honea v. West Virginia Pulp and Paper Co., 380 F.2d 704 (4th Cir.1967), the Fourth Circuit Court of Appeals noted that there may be a distinction between willfulness which exists in a case involving a dangerous instrumentality — an automobile — and willfulness in a situation involving the duty of a landowner to those persons who use his premises. In that case the Fourth Circuit in affirming a decision involving a South Carolina District Court’s refusal to submit the issue of the defendant’s willful, wanton, and reckless misconduct to the jury, stated:

An owner or occupier of land or buildings owes to persons invited upon the premises the duty of exercising reasonable care for their safety and must warn them of hidden dangers of which they are unaware. However, he need not warn them of open and obvious dangers which would be discovered through the exercise of reasonable diligence and care. Id., at 710, (citing Bruno v. Pendleton Realty Co., 240 S.C. 46, 124 S.E.2d, 580, 95 A.L.R.2d 1333 (1962); Baker v. Clark, 233 S.C. 20, 103 S.E.2d 395 (1958); Bolen v. Strange, 192 S.C. 284, 6 S.E.2d 466 (1939)).

It is undisputed that Thomas Darren Chrisley was familiar with the area below the dam. He had fished in the location prior to the date of his fall into the river, and he had been warned by his father of the dangers of the bank area and of the turbulent waters. The turbulence of the waters would have been apparent to him on June 16, 1983, and June 17, 1983. Unquestionably, Thomas Darren Chrisley was not swept from the riverbank by an unanticipated rise in the level of the water, but rather fell from a rock outcropping along the bank to the water below. To hold that a failure to post a warning sign telling bank fishermen that they may fall from rocks along a shoreline into the river below would constitute grossly negligent, willful or malicious conduct is contrary to common sense.

With the admitted obvious hazards existent at the site where young Chrisley fell into the river and with the application of South Carolina’s law regarding a landowner’s liability, there existed no duty on the part of the United States acting through the United States Army Corps of Engineers to provide for Thomas Darren Chrisley a safe premises or to give to him any warning of dangerous conditions, uses, structures, or activities on such premises. See, e.g., Livingston v. Pennsylvania Power and Light Co., 609 F.Supp. 643 (D.C.Pa.1985). Where there is not a duty owed to the plaintiff there can be no negligence on the part of the defendant.

Therefore, for the foregoing reasons, this Court hereby concludes that the defendant United States’ Motion for Dismissal, or in the Alternative, Summary Judgment should be granted in that the plaintiff has failed to state a claim upon which relief may be granted.

It is unnecessary in light of this ruling to rule upon the defendant’s Motion to Strike.

IT IS SO ORDERED.

      . United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

      . ER 1130-2-400 7.a. Resource Managers. Except for specifically designated facilities such as locks and powerhouses, the resource manager will be responsible for all aspects of operations, maintenance, and administration of a water resource development project and its natural and cultural resources. A resource manager will be assigned to a new project shortly after the initiation of land acquisition. In addition to coordinating the real estate element, the resource manager will be actively involved in coordination aspects of planning, design, construction, and other project activities.