government. Johnston v. United States, 597 F. Supp. 374 (D. Kan. 1984). 5. U.S. Government failed to monitor safety procedures of construction work performed by private contractor on Government building. The survivor of a construction worker brought a wrongful death action against the U.S. and three companies, seeking damages for negligence. The decedent was handling a reinforcing bar while in the process of installing insulated metal siding on a building owned by the U.S. when the bar allegedly broke, causing the decedent to fall forty feet to his death. The court held the claim against the U.S. was barred by the discretionary function exception since discretionary policy considerations are involved in the decision not to monitor the daily safety procedures of the companies with whom the government contracts. Maltais v. United States, 546 F. Supp. 96 (N.D.N.Y. 1982), aff'd, 729 F.2d 1442 (2d Cir. 1983). 6. U.S. Government failed to warn employees of contractor performing road construction about presence of dioxin in road area. Employees of a road construction company filed a complaint alleging that the U.S. Department of Housing and Urban Development ("HUD") improperly granted a block grant to a county for road repairs. The employees alleged that HUD and the Environmental Protection Agency were negligent in failing to warn the employees of the presence of dioxin in the work area, resulting in physical and psychological injuries. The Eighth Circuit, stating that the U.S. had neither reached a conclusion regarding the presence of dioxin nor adopted a safety policy, held the claim was based on failure to exercise or perform a discretionary function" and was, therefore, barred by the discretionary function exception. Bacon v. United States, 810 F.2d 827 (8th Cir. 1987). 7. U.S. Government failed to warn employees at a nuclear power plant about dangers of exposure to radiation. Survivors of pipe fitters who were employed by a nuclear power plant brought an action against the U.S. alleging the Nuclear Regulatory Commission ("NRC") was negligent in requiring or permitting the employees to work under hazardous conditions, failing to warn the employees before, during and after employment, and failing to protect the employees from exposure to radiation. The court held that because the NRC was engaging in regulatory activity, the discretionary function exception barred the claim. Sizemore v. United States, 651 F. Supp. 463 (M.D. Fla. 1985). Senator HEFLIN. Professor Popper, you go ahead and then we will have questions. STATEMENT OF ANDREW F. POPPER Mr. POPPER. Thank you. I am honored to have this opportunity to address the subcommittee this morning, and ask that my statement be accepted into the record. I have three children, and from time to time when I discipline them I think a reasonable translation of my admonition to them is do as I say, not as I do, particularly when I am telling them to go to bed at night. And when my children understand that I am asking them to do something I am unwilling to do, my effectiveness as a parent diminishes dramatically. Workplace safety today puts the Federal Government in the position of telling the public, do as I say, not as I do. The record of the Government as an employer is not an admirable one. Regulatory and tort sanctions applied to virtually every significant employer in the United States do not apply when the employer is the U.S. Government. When I look at S. 464, I do not see, first, in listening to the Justice Department statement and then in looking at the bill itself, a basis for concluding that there is going to be massive financial hardship imposed by this legislation. Frankly, if the Government is involved in cognizable negligent behavior such that it would result in the imposition of millions, and now I hear billions of dollars in liability, something is so wrong, so fundamentally wrong with the way the Government acts that radical steps such as the imposition of liability are in order. Those who defend the discretionary function exception defend the opportunity of the Government to behave in a negligent manner. The premise for the defense is, without the discretionary function exception, critical employees of the Government will not feel free to do their jobs. To be sure, there is a behavioral limitation in this bill. It is the limitation prohibiting Federal employees from behaving in an unreasonable manner, jeopardizing public safety. In a world where we have come to understand that command and control regulation is not the most effective way to accomplish health and safety objectives, the tort system provides a swift, efficient, and effective mechanism for upgrading the level of workplace safety. You can spend years passing a rule and tens of millions of dollars passing an OSHA rule, and it won't have the impact of a single million-dollar judgment against a negligent employer. The tort system is a fundamental part of our health and safety system, but it is flawed and incomplete when it eliminates the Nation's largest employer. There are shortcomings in this bill. I am not comfortable with the way it handles FECA. I am not feeling very easy about the way that it deals with joint and several liability; it doesn't, and I would like to keep that in, and keep it in fully. But those criticisms, I don't think are sufficient to offset support of the bill. I don't think it will neutralize aggressive law enforcement unless our law enforcers are engaged in wholesale negligence. I don't think it will suddenly cause the Federal Government to pay for the wrongdoing caused by private employers. That is the function of joint and several liability. The bill is likely to make the Government an aggressive enforcer of OSHA rules, and a partner with plaintiffs who are injured by employers who maintain an unsafe workplace. For too long the Federal Government has stood back and allowed the weak and the vulnerable in our society, the worker, to fight the monoliths in your society, their employers. This detached disinterest is objectionable. I believe it will be cured at least in part by the elimination of the discretionary function exception. A few years ago, Paul Brodeur published an article in the New Yorker, actually a series of articles, in which he revealed to an absolutely astonished public that the asbestos industry had had notice of the carcinogenic dangers of asbestos for almost half a century. I think the public would be interested to know how long the Federal Government knew of the dangers of asbestos in shipyards and in construction facilities, in housing, and in other areas where it proceeded. Eliminate the discretionary function exception and that kind of information will end up right where it belongs, in the hands of the American people. And what will motivate them to use the Freedom of Information Act and to seek out that information? For better or worse, it will be the tort system. The tort system provides incentives to discover product risks. It provides incentives to manage and sometimes eliminate or reduce risks. I have heard arguments, and I have read them today, that this exception will somehow interfere with the ability of the Government to make legislative choices, and will somehow turn the judiciary into the policymaking body intended to be our legislature. I think the arguments are hollow; I think they are wrong. Is it good government if policymakers can, through the exercise of, quote, "discretion," create and maintain unsafe and destructive work environments, and thereafter be subject neither to regulatory oversight nor tort review? That doesn't seem to me to be good government. Those who are negligent and who create unsafe work environments and those who violate safety standards hardly have a basis to demand the protection inherent in Federal immunity. More to the point, those who are injured and defenseless by virtue of Government misconduct ought not be told that those who have caused their harm are somehow part of a special and protected class. Thank you very much. [The prepared statement of Mr. Popper follows:] BEFORE THE UNITED STATES SENATE COMMITTEE OF THE JUDICIARY SUBCOMMITTEE ON COURTS AND ADMINISTRATIVE PRACTICE FEBRUARY 20, 1990 TESTIMONY OF ANDREW F. POPPER PROFESSOR OF LAW AND DEPUTY DEAN THE AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW STATEMENT IN SUPPORT OF SENATE BILL 464 ANDREW F. POPPER Professor of Law and Deputy Dean The American University Washington College of Law 4400 Massachusetts Avenue, NW Washington, D.C. 20016 (202) 885-2604 |