Conn. v. American Electric, Memo in Support of Motion to Dismiss ...

69 F. Supp. at 955; footnotes omitted.
Dalehite v. United States, 346 U.S. 15 (1953), also illustrates the point. Dalehite
involved claims for numerous personal injuries and deaths in Texas City arising out of a
disastrous explosion of ammonium nitrate fertilizer which had been produced and was being
shipped as part of a Government export program to devastated areas after World War II. Among
other things, the district court found the Government liable based on Government negligence in
various phases of the manufacturing process, including the Government’s use of TVA
specifications related to high bagging temperatures, which increased the risk of fire and
explosion. Id. at 23. The court of appeals reversed and the Supreme Court affirmed, pointing
out that the tortious conduct involved decisions touching upon the feasibility of the foreign aid
program and was thus the kind of conduct precluded from judicial review by the discretionary
function doctrine:
[T]he decision to bag at the temperature fixed was also within the [discretionary
function] exception. Maximum bagging temperatures were first established under
the TVA specifications. That they were the product of an exercise of judgment,
requiring consideration of a vast spectrum of factors, including some which
touched directly the feasibility of the fertilizer export program, is clear. . . . It
would be possible to keep the product in graining kettles for a longer period or to
install cooling equipment. But both methods would result in greatly increased
production costs and/or greatly reduced production. This kind of decision is not
one which the courts, under the Act, are empowered to cite as “negligence” . . . .
346 U.S. at 40-41.
The Second Circuit, too, has specifically applied the discretionary function
doctrine to challenged Government conduct susceptible to discretionary policy analysis. For
example, in In re Joint E. and S. Districts Asbestos Litig., 891 F.2d 31, 37 (2d Cir. 1989), which
challenged Government decisions to operate merchant ships containing asbestos during World
War II and expose the crews to the hazards of asbestos, the Second Circuit held:
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