Domme v. U.S.

• Decision Date: 31 July 1995
• Docket Number: No. 94-2136,94-2136
• Citation: 61 F.3d 787
• Parties: Curtis DOMME, Nora Bess Domme, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 787

61 F.3d 787

64 USLW 2116

Curtis DOMME, Nora Bess Domme, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 94-2136.

United States Court of Appeals, Tenth Circuit.

July 31, 1995.

David A. Freedman (J. Michele Guttmann, with him on the briefs), Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A., Albuquerque, NM, for appellants.

Robin D. Smith, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC (Frank W. Hunger, Asst. Atty. Gen., Civ. Div., U.S. Dept. of Justice, Washington, DC; John J. Kelly, U.S. Atty., Albuquerque, NM; Paul F. Figley, Deputy Director, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC, with him on the brief), for appellee.

Before TACHA, Circuit Judge, ALARCON, ^* Senior Circuit Judge, and HENRY, Circuit Judge.

TACHA, Circuit Judge.

Background

Sandia National Laboratories (SNL), located on Kirtland Air Force Base near Albuquerque, New Mexico, conducts federally sponsored defense-related research. The United States government owns all of the land, buildings, and other property at SNL. Sandia Corporation (Sandia) manages and operates SNL under a contract with the Department of Energy (DOE). Plaintiff Curtis Domme was employed by Sandia as a high-voltage electrician. On July 15, 1989, Sandia conducted a planned electrical outage. While participating in this procedure, plaintiff was severely burned in an electrical explosion.

Plaintiffs sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), alleging that the government was liable for the DOE's negligent oversight of Sandia. Defendant moved to dismiss or, in the alternative, for summary judgment. Although the district court denied defendant's motion, the court subsequently raised, sua sponte, the question of whether plaintiffs' claims were barred by the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a), and asked both parties to brief the issue. Concluding that the discretionary function exception shielded the government from liability, the district court dismissed plaintiffs' complaint. Plaintiffs appeal, arguing that (1) the government's common-law landowner duties to plaintiffs are not shielded by the discretionary function exception to the FTCA, and (2) the DOE's failure to comply with its own safety standards and procedures was not a decision based on considerations of public policy.

Discussion

Under the FTCA, the United States waives its sovereign immunity with respect to certain injuries caused by government employees acting within the scope of their employment. 28 U.S.C. Sec. 1346(b). The FTCA contains an exception to this broad waiver of immunity, however, for claims "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." Id. Sec. 2680(a). Section 2680(a) is commonly referred to as the "discretionary function exception" to the FTCA. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1537 (10th Cir.1992). "The discretionary function exception ... marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). If the discretionary function exception applies to the challenged governmental conduct, the United States retains its sovereign immunity and the district court lacks subject matter jurisdiction to hear the suit. See Johnson v. United States Dep't of Interior, 949 F.2d 332, 335 (10th Cir.1991). "[A]pplication [of the exception] therefore presents a threshold jurisdictional determination which we review de novo." Daigle, 972 F.2d at 1537.

Plaintiffs argue that the discretionary function exception simply does not apply to "mandatory common law duties." Plaintiffs seem to misunderstand FTCA case law. ¹ In determining whether the discretionary function exception applies to particular governmental conduct, we must apply the two-step analysis developed by the Supreme Court in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). See Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 972 (10th Cir.1994); Kiehn v. United States, 984 F.2d 1100, 1102 (10th Cir.1993); Daigle, 972 F.2d at 1538; Johnson, 949 F.2d at 336; Boyd v. United States ex rel. United States Army, Corps of Eng'rs, 881 F.2d 895, 897 (10th Cir.1989). The Berkovitz inquiry is necessary in all FTCA cases. See Johnson, 949 F.2d at 335 ("Application of this exception is therefore a threshold issue--a jurisdictional issue which precedes any negligence analysis."). Only if the United States waives its sovereign immunity pursuant to the FTCA does the question of whether the government owed the plaintiffs a duty of care under state law arise. Because the district court decided the jurisdictional question in favor of the United States, the only issue in this appeal is whether the district court correctly concluded that the government's conduct is shielded by the discretionary function exception.

Turning to the Berkovitz framework, "a court must first consider whether the action is a matter of choice for the acting employee." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. Conduct that does not involve an element of judgment or choice on the part of the government employee cannot be discretionary conduct. Id. Consequently, the discretionary function exception does not shield conduct that is specifically mandated by a federal statute, regulation, or policy. Id. In such instances, "the [government] employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect." Id.

If the conduct involves discretionary judgment, we proceed to the second prong of Berkovitz and "determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958; see also Kiehn, 984 F.2d at 1103. "The [discretionary function] exception ... protects only governmental actions and decisions based on considerations of public policy." Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959. Thus, the "exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment." Id.

Our initial task in applying the Berkovitz framework to this case is to ascertain the precise governmental conduct at issue. See Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764 ("[T]he nature of the conduct ... governs whether the discretionary function exception applies in a given case."); Johnson, 949 F.2d at 338. In their complaint, plaintiffs allege that the United States breached its duty to maintain its property in a reasonably safe condition and to warn of potential hazards arising out of the conditions of the facilities. Plaintiffs further allege that DOE had specific regulations requiring it "to provide and maintain a safe workplace." It thus appears that the challenged conduct is the failure of DOE employees to ensure that SNL was a safe workplace for employees of Sandia, specifically by assuring that Sandia complied with all applicable safety regulations. ² We turn therefore to an examination of DOE's responsibilities for safety at Sandia; in particular, we must examine "whether the challenged actions were ... controlled by mandatory statutes or regulations." United States v. Gaubert, 499 U.S. 315, 328, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991).

Sandia enjoys substantial autonomy in its operation of SNL. See United States v. New Mexico, 455 U.S. 720, 722-25, 102 S.Ct. 1373, 1376-78, 71 L.Ed.2d 580 (1982) (describing generally the relationship between DOE and Sandia). Despite its general autonomy, Sandia is contractually obligated to comply with all applicable safety regulations and standards. Moreover, under the parties' contract DOE retained "the right ... to inspect and audit in such manner as it deems appropriate all activities of Sandia." DOE has further defined its oversight role in a number of DOE-promulgated orders.

Plaintiffs contend that two DOE orders mandate specific conduct by DOE employees. DOE Order 5482.1B establishes DOE's environmental protection, safety, and health appraisal program for DOE-controlled operations. One of the stated purposes of the appraisal program is to "[p]rovide safe and healthful workplaces and conditions of employment for all employees of DOE and DOE contractors." DOE Order 5482.1B. The appraisal program requires DOE to "[c]onduct [ ] reviews of facilities and operations, including technical safety appraisals." Id. The order further directs that

[t]he quality, frequency, and depth of appraisals shall be commensurate with the hazard attendant with the respective operating activities; consistent with both the DOE policy of comparability and equivalence with similar regulatory programs; and consistent with DOE policy of protection of personnel, property, and the environment. Reviews and appraisals of DOE facilities and line organizations will be conducted, as appropriate, by the line organizations as part of line management's [environment protection, safety, and health] responsibility.

Id.

The second order at issue establishes an occupational safety and health program for DOE contractor employees. DOE Order 5483.1A. This order requires contractors that operate government-owned facilities to comply with a number of specified Occupational Safety and Health Administration (OSHA) standards. Id. ch. I.1. Also pursuant to this order, DOE employees...