The United States' Motion
New York City filed a third-party complaint against the United States claiming that, if it were held liable, "the United States should share in that liability" under the Federal Tort Claims Act ("FTCA") because certain NYPD detectives were "deputized and actively engaged at the same time as agents of the United States Drug Enforcement Agency." The gravamen of the third-party complaint is that any damages, if proved by Merced to be the result of New York City's negligence, "are attributable, in whole or in part, to the culpable conduct of the United States of America." (Third-Party Complaint, P 9.)
The United States moves to dismiss for lack of subject matter jurisdiction because the FTCA expressly exempts the Government from liability for "the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused." 28 U.S.C. § 2680(a) (1993).
The Supreme Court has defined "discretionary function" as conduct involving an "element of judgment or choice" that the exception "was designed to shield." Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988). In a case involving very similar facts -- the failure of DEA agents to protect a cooperating witness who was later murdered -- the Fourth Circuit affirmed the district court's dismissal of a lawsuit against the United States on the basis of the FTCA's "discretionary function" exemption. Piechowicz v. United States, 885 F.2d 1207 (4th Cir. 1989). The Fourth Circuit held that "the policy choice whether to offer protection to [plaintiff] . . . is just the sort of choice the discretionary function exception insulates from judicial scrutiny." Id. at 1211. The United States cannot be sued, therefore, for the decision of its agents not to provide Merced protection.
The issue does not end here, however. New York City argues that if a promise to protect was made to Merced, "the United States may be held liable if it negligently performed pursuant to its commitment."
The Government admits that it "may have a legal duty to protect" if it "voluntarily assumed or incurred that duty to a specific individual," Piechowicz v. United States, 685 F. Supp. 486, 498 (D. Md. 1988), aff'd, 885 F.2d 1207 (4th Cir. 1989), but contends that there is no evidence that the DEA undertook to protect Merced. Indeed, the Government stresses that the sole statement in the record which Merced attributes to the DEA -- "they told me: Don't worry, that he was going to be taken care of" (Merced Deposition of May 15, 1992 at 173) -- "cannot be credibly construed as a promise" (Gov't Reply Mem. at 7).
New York City has failed to establish that any federal agent affirmatively offered Merced protection or thereafter failed to follow through. Merced testified that she did not remember asking the DEA for protection except to tell them of her fear of Navedo. (Merced Deposition of May 15, 1992 at 173.) At most, the record suggests that perhaps the Government "should have offered to protect" Merced, but this is certainly insufficient to establish an affirmative undertaking of a duty. Piechowicz, 685 F. Supp. at 498-499. Accordingly, the discretionary function exception applies to bar New York City from claiming contribution from the United States under the Federal Tort Claims Act.
* * *
The motions for summary judgment by New York City and the Housing Authority are granted with respect to Merced's cause of action based on 42 U.S.C. § 1983, and are denied with respect to Merced's cause of action based on New York law. The United States' motion for summary judgment on the Third-Party Complaint is granted.
It is so ordered.
Morris E. Lasker
Dated: New York, New York
July 7, 1994
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