agent had been negligent in handling the situation and, thereby, had caused the victims' deaths. In its defense, the Government asserted that the discretionary function exception to the Act protected the agent's actions and barred plaintiffs' suit. In determining that the agent's actions were not discretionary in nature, the court considered that the agent was not involved in formulating governmental policy but, rather, was engaged in directing the actions of other government agents in the handling of a particular situation. Downs, 522 F.2d at 997. The Downs court, however, was guided by the pre-Gaubert distinction between activities that entail the formulation of governmental policy and activities conducted on an operational level. Therefore, the decision in Downs is not controlling authority.
Under the more recent Supreme Court decision in Gaubert, plaintiff's argument that the actions of the FBI surveillance team are not protected by the discretionary function exception because the agents were not engaged in forming FBI policy but, rather, were engaged in the handling of the surveillance of the kidnappers must fail. Gaubert, U.S. at , 111 S. Ct. at 1275, 1278.
The established policy of the FBI, as expressed by the FBI regulations and guidelines, allows its agents to exercise discretion in conducting investigations. Walker Decl. PP 3,4. The focus of this Court's inquiry is not on the agents' subjective intent in exercising the discretion conferred by the FBI regulations, but on the "nature of the actions taken and on whether they are susceptible to policy analysis." Gaubert, U.S. at , 111 S. Ct. at 1275.
The Court recognizes that there exist discretionary acts performed by government agents that, while they may be within the scope of their employment, are not within the discretionary function exception because they are not based on established policy. See Gaubert, U.S. at ; 111 S. Ct. at 1275 n.7. In Gaubert, the Supreme Court noted that if a government agent drives an automobile on a mission connected with his official duties and negligently collides with another car, the discretionary function exception would not apply. The Court acknowledged that, although driving requires a continuous exercise of discretion, the agent's decisions in exercising that discretion are not grounded in regulatory policy. Id. at , 111 S. Ct. at 1275 n.7; see Dalehite, 346 U.S. at 29-30.
The conduct described in Gaubert, however, is distinguishable from the FBI actions challenged by plaintiff in this case. The discretion exercised by the agents during the surveillance of Martini and his accomplice involved more than the ordinary judgment entailed driving an automobile.
The decisions made by the FBI agents while attempting to conduct the surveillance of Martini and Afdahl undoubtedly involved the weighing of specific public policy considerations. Following the target of the surveillance, or, as it is colloguially referred to, executing a "tail," necessarily requires the making of numerous tactical determinations throughout the operation. The agents must continually adjust the distance maintained between the surveillance team and the target of the surveillance. The agents first must consider the availability of agency resources such as cars, agents, and aircraft and then must achieve a balance between conducting too close a tail, and thereby risking discovery, and allowing too much distance between the surveillance team and the target, thereby jeopardizing the successful apprehension of the target. On the one hand, conduct which increases the risk of discovery necessarily increases the likelihood of injury to the victim, for the discovery of police surveillance is likely to antagonize the wrongdoer.
On the other hand, conduct which increases the risk of losing the subject creates a risk that the victim will be harmed before the authorities are able to intervene. These considerations must be weighed and evaluated under severe time constraints and in the context of constantly changing and unpredictable traffic conditions.
The decisions made by the FBI agents while conducting the surveillance of Martini and Afdahl involved discretionary determinations made in pursuit of the FBI objective to apprehend kidnappers with a minimal risk of danger to the victim. Therefore, the Court finds that the actions of the FBI agents fall within the discretionary function exception. See also Pooler v. United States, 787 F.2d 868, 871 (3d Cir.), cert. denied, 479 U.S. 849 (1986) (holding that because the government agent charged with the responsibility of conducting an investigation had to exercise discretion as to the policy decision to use an informant and as to the extent of control which should be maintained over the selected informant, his actions were protected by the discretionary function exception).
In deciding whether actions of a government agent fall within the discretionary function exception to the Federal Tort Claims Act, the Court must determine whether the challenged actions involve the exercise of discretion and whether the actions are conducted in furtherance of government policy. Where there exists an agency regulation that allows the government agent to exercise discretion, it is presumed that the agent's actions inhere in policy when he exercises that discretion.
The agents assigned to the surveillance of Martini and Afdahl specifically were empowered to make policy judgments regarding the safety of the victim and the public, the deterrence of crime, and the efficient allocation of agency resources. In carrying out the surveillance operation, the agents necessarily took certain took certain calculated risks, but those risks were encountered to advance the policies of the FBI and pursuant to the specific grant of authority expressed in the FBI regulations. See Varig Airlines, 467 U.S. at 820; Pooler, 787 F.2d at 871. Thus, the Court is satisfied that the actions in question involved the kind of policy judgment that the discretionary function was designed to protect.
Under these circumstances, the Court finds that the FBI agents' alleged negligence in failing to properly conduct the surveillance of Martini and Afdahl falls within the discretionary function exception to the Federal Tort Claims Act. Thus, plaintiff's contentions regarding the surveillance operations of the FBI present no issue of material fact, and defendant is entitled to judgment as a matter of law. An appropriate Order shall issue.
STANLEY R. CHESLER,
U.S. Magistrate Judge