*1 taking scope. Protection could extend to years employees many hired after William J. GARBER and John J. merger, were “affected” it. Nor if Hurley, Appellants, provide the “affected”
does v. satisfactory limiting principle, since consoli- UNITED STATES America. long and other economies instituted dations might well be merger traced back after principle urged by it to in some sense. United States Court of short, petitioner, threatens to vitiate merg- Circuit. large measure the economies that designed to achieve. We it.2 er was March alternatively contends Petitioner au discretionary the Commission has thority protection to post-merger to afford
employees employees promoted and to after merger, adequately and that it failed
explain its refusal exercise this authori
ty. We need not decide whether the Com authority, has such
mission from which derives, it it
provision is clear all of the
members Commission are unanimous not appropriate
that it is exercise what may
ever discretion it give so protection to the nine employees
retroactive question.
here in The basis for that discre
tionary may adequately determination inequity discerned in terms of the of retro
active insertion of conditions not contained merger agreement
in either the or the 1967 order, as supplemen
ICC contrasted 5(10)
tal order under the nature of clarification, and of the threat to labor cost
savings protective such augmented pose.5
conditions would
employees
2. We
do
consider whether
91 S.Ct.
merger might
were on board at the time of the
415 SWYGERT,* Before United States Cir Judge Circuit, cuit for the Seventh and LEVENTHAL and Judges. Circuit the Opinion by for Court filed LEVEN- THAL, Judge. Circuit LEVENTHAL, Judge: were lawyers visiting who are prisoner their clients in the cell block United States Court House in the District Columbia, of and were taken hostage by prisoners acquired guns two while in the cell blocks. Plaintiffs were held from July 11,1974, July until when they made escape smuggled use their the of key. They the United under sued States alleged They the Tort Act.1 Claims of in the United States Marshals prior during various to and respects, both the takeover of the cell block the male- They any did physical factors. not claim them, impact on damages but sued for sulting from emotional stress to which subjected were the during days they were captive. held correctly The District Court held liability the of the United States is place determined the law of the the Roads, Ahern, Jr., Bailey’s Cross J. Albert tort, and that the District of brief, appellants. Va., for was on precludes recovery Columbia for emotional Jr., C., Washington, D. Mahoney, in resulting stress from the ab John physical impact. Capital sence of for appearance appellants. also App.D.C. Traction F.2d Mann, Atty., Dept, for of Jus- L. Roanne C., Barbara tice, D. with whom Washington, L.Ed. 627 Parrish v. United Gen., Babcock, Earl J. Atty. Asst. Allen (1966). F.2d 828 Glancz, Silbert, and Ronald R. Atty., U. S. Judge Richey re opinion Justice, Washington, D. Dept, for Atty., we are applicable precedents views the and brief, appellee. C., were on opinion.2 with that general accord 91-358, designation pursuant Sitting by Stat. to 28 Pub.L.No. stands U.S.C. 291(a). exposition an authoritative law of unless is su- and until it 1346(b), 2674 28 U.S.C. §§ perseded by opinion statute or an. of the Dis- Appeals. trict of Columbia Court Perhaps note a of difference. we should Judge “sub- The District noted that word Perry, Richey Judge under observed that reappeared Gilper v. stantial” Kiamesha requirement leading precedent, there is a Concord, Inc., (D.C.App. 302 A.2d Perry injury. Capi- See substantial Opinion Memorandum at 9. But App.D.C. at Traction doctrine, this did not have occasion consider subsequent opinion in at But the 939-40. F.2d Parrish, Parrish, only purported as did court, distinguished panel by a of this merely restating settled law. It borrowed the injury requirement drops be sub- Dry wording Corp., 245 of Harrison v. Canada stantial. (D.C.App.1968), opinion which in turn 829. That at opinion Judge quoted from an then District to the D.C. Court was rendered Spottswood Robinson Brown Procedure Act and Criminal Reform argue appeal exception does not on this when the Plaintiff is qualified as available Perry-Parrish rule should that the be aban- gross negligence, even many jurisdictions Even the which doned. assuming qualification, that such a as ad- limiting abandoned the vanced appellant,5 ais viable concept.6 to cases The doctrine recovery for *3 suffering was produced by phys- where that suffering, mental even without physical in- injuries prohibit recovery still ical men- jury, in torts, the case of intentional obvi- no physical inju- ously cuts across the considerations that led a ry.3 construing As federal court local the requirement injury for law, justified, we are not in the absence of ordinary negligence interests as —such some indications from District of Co- speculative avoiding claims; or fabricated courts, to state that District of lumbia Co- permit the desire to freedom of action un- for negligently lumbia fettered regard undue for others’ sensi- suffering in the inflicted mental absence of tivities; and awareness of the wide range physical harm. of sensibilities might promote that step take the lesser of con suffering in different individuals. tending physical impact that is not required The crosscutting consideration in negligence when the case involves cases that wilful assault and trespass leads to foreseeable intentional torts oth is rooted in a ers. sense of Plaintiff in effect seeks an moral extension blameworthiness not unlike permits recovery of the rule that underlying for emo that the award of exemplary stress, tional even in the absence of physical damages, “elements of outrage extreme impact, from a tortfeasor who has commit moral blame.”7 The courts assess compen- ted an intentional tort.4 satory damages against those who do not take due care in light of foreseeable contention, though This not as marked a trespass by others.8 But that is not the departure prior law, from announced same, by good a margin, as assigning quires carving exception, of an or the such lack of care the opprobrium moral exception, represents extension an attaches in innovation, cases of wilful considerable assault and and one that tres- is pass. When support goes beyond without conduct the decisions of either recklessness, the District to the of Columbia courts or other there is courts might approximation be closer looked as indicators the situation of wil- misconduct,9 growth the trend and of the common ful but even that situation is law. The presented conclusionremains the same even not the case at bar and thus 815, F.Supp. (D.D. Electric Power “degrees” view is that there are no of care or C.1964). negligence, But Brown was law; to Parrish and as a matter of there are qualified by Parrish. Neither Harrison nor different amounts of care a matter of fact. purport discuss Parrish Prosser, 3, supra . . W. note § ruling. Parrish 182. Prosser, 3. W. The Law of Torts § at 328-29 Prosser, supra (4th 7. W. note ed. at 329. g., Chesapeake Clay, 4. E. & Tel. Co. v. See, g., e. Hicks v. United U.S.App.D.C. 194 F.2d App.D.C. 169, 182-83, 511 F.2d 420-21 Brothers, Ramos, Neisner Inc. v. (D.C.App.1974). A.2d 239 Dixon, 9. See United States v. Allegations gross negligence, although 401, 403-07, (1969) (Lev- 419 F.2d 290-94 complaint, papers in the were made in the filed J., enthal, concurring) (analyzes recklessness summary judgment. manslaughter as an element of and as the disregard “wanton of human life” found Degrees generally have not murder; definition of implies recklessness recognized been in the District of Columbia. E. may, however, “awareness” risk that g., Early Schweid, Settlers Insurance Co. v. extremely dangerous conduct). inferred from (D.C.App.1966). prevailing “The v. FEDERAL ENERGY REG. COM’N
SCHWARTZ (1978) Cite as 578 ques- to consider no occasion
we have
tion. concurring: Judge, Capital Traction regard
I
(1929),
U.S.App.
controlling
149,
D.C. I in the Accordingly concur this case. in the judgment
affirmance
District Court. SCHWARTZ, Appellant,
David S. REGULATORY ENERGY
FEDERAL
COMMISSION,* et al. Court of
United States of Columbia Circuit. Feb. tory by 402 of Public Law Federal Power Commission Commission functions Regula- Energy the Federal 91 Stat. 565. were transferred