Baldassaro v. U.S.

• Decision Date: 15 September 1995
• Docket Number: No. 94-30605,94-30605
• Citation: 64 F.3d 206
• Parties: 150 L.R.R.M. (BNA) 2269, 1995 A.M.C. 2947 Dennis J. BALDASSARO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 206

64 F.3d 206

150 L.R.R.M. (BNA) 2269, 1995 A.M.C. 2947

Dennis J. BALDASSARO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 94-30605.

United States Court of Appeals Fifth Circuit.

Sept. 15, 1995.

Lawrence D. Wiedemann, John Denenea, Jr., Wiedemann & Wiedemann, New Orleans, LA, for appellant.

Michelle T. Delemarre, U.S. Dept. of Justice, Trial Atty., David V. Hutchinson, Asst. Dir., Admiralty, Washington, DC, Eddie J. Jordan, Jr., Nancy A. Nungesser, U.S. Attys., New Orleans, LA, Rick Gonzalez, U.S. Dept. of Transp., Maritime Admin., Washington, DC, for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, KING and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Dennis J. Baldassaro appeals a district court order granting summary judgment in favor of Defendant-Appellee the United States of America, dismissing Baldassaro's maritime personal injury action on the ground that the "discretionary function exception" bars his negligence claim against the United States. Baldassaro also appeals the district court's amended judgment to the extent that it rejects his contention that the United States should pay him more than the $8.00 daily maintenance benefit stipulated in his Union's collective bargaining agreement (CBA). Finding no reversible error in either ruling, we affirm.

I FACTS AND PROCEEDINGS

As a Jones Act seaman and member of the Seafarer's International Union, Baldassaro sued his employer, the United States of America, for injuries sustained while working aboard the Cape Carthage, a vessel assigned to the Ready Reserve Force (RRF) component of the National Defense Reserve Fleet (Fleet). While climbing into his upper bunk in the summer of 1991, Baldassaro fell to the deck when the part of the detachable sea rail located at the foot of his bunk separated from the bunk. Baldassaro filed suit against the United States pursuant to the War Shipping Administration Act ¹ and the Suits in Admiralty Act (SAA), ² alleging negligence in failing to secure the railing. He also claimed that the daily maintenance benefit of $8.00 stipulated in his CBA and paid to him while he was unable to work was insufficient to fulfill its purpose of providing a seaman with food and lodging comparable to that aboard ship.

The district court granted summary judgment for the United States, concluding that, as the decision to place the Cape Carthage in the RRF was a "discretionary function" within the scope of the discretionary function exception, the United States was immune from suit. Subsequently, the district court amended its judgment to uphold the $8.00 daily maintenance benefit.

II ANALYSIS

A. STANDARD OF REVIEW

We review a grant of summary judgment using the same standards that guide the district court. ³ Summary judgment is appropriate when no issue of material fact exists and the movant is entitled to judgment as a matter of law. ⁴ Questions of law are reviewed de novo. ⁵

B. DISCRETIONARY FUNCTION EXCEPTION

Baldassaro first contends that the district court improperly dismissed his claim based on the discretionary function doctrine. Baldassaro maintains that the United States' decision to equip the bunks on the Cape Carthage with detachable sea rails is not a discretionary function immune from judicial scrutiny, as the design decisions regarding the bunks and sea rails were not based on policy considerations. Baldassaro asserts that the United States has advanced no legitimate social, economic, or political policies that guided its decision to equip the bunks on the Cape Carthage with detachable sea rails. And he insists that the only applicable consideration--safety--is an inappropriate basis on which to apply the discretionary function exception.

The discretionary function exception is set forth in the Federal Tort Claims Act (FTCA). It limits the United States' waiver of sovereign immunity under the Act by providing that the waiver will not apply to:

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. ⁶

Although the SAA does not contain an express discretionary function exception to its waiver of sovereign immunity, we recognize that the FTCA's exception is "implicit in private suits brought against the United States Government under the Suits in Admiralty Act." ⁷

The exception covers only acts that " 'involv[e] an element of judgment or choice;' " ⁸ thus " 'it is the nature of the conduct, rather than the status of the actor,' that governs whether the exception applies." ⁹ As the purpose of the exception is to " 'prevent judicial "second guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,' " ¹⁰ it " 'protects only governmental actions and decisions based on considerations of public policy.' " ¹¹

Recently, in United States v. Gaubert, ¹² the Supreme Court held that, "when established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." ¹³ The Court determined that, in light of this presumption, to survive a motion to dismiss based on the discretionary function exception a complaint "must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." ¹⁴ The Court noted that, in determining whether the discretionary function exception bars a suit against the government, the focus of the inquiry is on the nature of the action taken and on whether that action is susceptible to policy analysis. ¹⁵

1. Nature of the Decision

The Fleet was established by Section 22 of the Merchant Ship Sales Act of 1946 to serve as a reserve fleet that could be activated to meet the United States' shipping requirements during national emergencies. ¹⁶ The Fleet and its RRF component consist of "those vessels owned or acquired by the United States Government that the Secretary of Transportation, after consultation with the Secretary of the Navy, determines are of value for national defense purposes and that the Secretary of Transportation decides to place and maintain in the fleet." ¹⁷ Clearly, as is reflected in the language of the statute, the Merchant Ship Sales Act authorizes and requires the Secretary of Transportation to exercise his discretion in determining which vessels are to be included in the Fleet and its RRF component. Consequently, as the act of selecting or approving a particular ship for the Fleet or the RRF involves an element of judgment or choice, that act, standing alone, satisfies the first prong of the discretionary function exception standard.

Taking our analysis a step further and focusing on the act of equipping the bunks on the Cape Carthage with detachable sea rails, we note first that there are no statutes, regulations, policies, guidelines, or Maritime Administration (MARAD) standards that require sea rails to be attached permanently to the bunks on RRF vessels. ¹⁸ As there were no such specifications, it follows that the decisions regarding the design of the Cape Carthage's bunks and sea rails were within the discretion of the United States. Second, although unnecessary in light of the absence of a statutory mandate requiring permanently attached sea rails, our review of the history of the Cape Carthage further convinces us that the design for the bunks on board the vessel was a discretionary act for purposes of the exception.

The Cape Carthage was constructed in the 1960's by Lykes Brothers Steamship Company, Inc. (Lykes) under the Title V Construction Subsidy Program. ¹⁹ The subsidy program was enacted to (1) encourage ship owners to have their ships built by American labor and (2) ensure that the United States had an adequate merchant marine in times of national emergency. Eligibility under the program required Lykes to develop and construct a ship that satisfied MARAD standards. Lykes submitted specifications to build a C3-S-37c, the standard for a combination bulk and general cargo ship. This particular design included specifications for crew furniture that complied with the MARAD's furniture design standards, which were contained in two books of drawings of different designs of crew furniture.

Although the MARAD standards depicted bunk beds with detachable sea rails, shipbuilders were not required to build exact replicas of those designs. Shipbuilders could have submitted--and MARAD could have approved--designs that were "equal" to the MARAD standards, including bunks designed with permanently attached sea rails. In fact, at the time the Cape Carthage was built, there was a different bunk design that specified a very shallow bed pan which housed the mattress and required permanently attached sea rails. Even though this bunk design was considered too new and too expensive in the 1960's, it was both an option that the shipbuilder could have included in its specifications and an alternative design that MARAD would have approved. The record reveals, however, that detachable sea rails were--and still are--the standard in most United States and foreign ships; and even though these rails can be used as hand rails, they are installed primarily to protect the occupant from rolling and sliding out of the bunk during heavy weather.

Adhering to customary practice, Lykes submitted--and MARAD approved--plans to equip the Cape Carthage with...