Galvin v. Occupational Safety & Health Admin.

• Decision Date: 21 November 1988
• Docket Number: No. 88-4119,88-4119
• Citation: 860 F.2d 181
• Parties: , 12 Fed.R.Serv.3d 1498, 13 O.S.H. Cas.(BNA) 1960, 1988 O.S.H.D. (CCH) P 28,351 Mildred GALVIN, Plaintiff-Appellant, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 181

860 F.2d 181

57 USLW 2359, 12 Fed.R.Serv.3d 1498,

13 O.S.H. Cas.(BNA) 1960,

1988 O.S.H.D. (CCH) P 28,351

Mildred GALVIN, Plaintiff-Appellant, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, Defendant-Appellee.

No. 88-4119.

United States Court of Appeals,

Fifth Circuit.

Nov. 21, 1988.

Moses Junior Williams, Felicia T. Williams, Williams & Williams, Tallulah, La., for plaintiff-appellant.

James G. Touhey, Jr., Trial Atty., Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for defendant-appellee.

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

Before WILLIAMS and GARWOOD, Circuit Judges, and NOWLIN ^*, District Judge.

JERRE S. WILLIAMS, Circuit Judge:

Mildred Galvin appeals an adverse summary judgment ruling in her Federal Tort Claims Act action against the Occupational Safety and Health Administration. We conclude that the district court lacked jurisdiction over Galvin's claims and affirm.

I. Facts and Prior Proceedings

Decedent James Edward Galvin was a conveyor operator at the sawmill of P.E. Barnes & Sons, Ltd. in Tallulah, Louisiana. On March 11, 1985, Galvin was trying to remove some wood scraps that had jammed in the conveyor belt when the conveyor began to run again. James Galvin became trapped in the conveyor system and was fatally injured.

Appellant Mildred Galvin, James Galvin's mother, sued the Occupational Safety and Health Administration (OSHA) under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671 et seq. (1982), for failing to inspect or negligently inspecting the Barnes' machinery and for failing to ensure that guards were attached to certain machines. The relevant portion of Galvin's complaint is set out in the margin. ¹

The district court granted OSHA's motion for summary judgment, concluding that OSHA's activities fell within the discretionary function exception to the FTCA. The court also found that Galvin had failed to state a claim under Louisiana law, as is required under the FTCA, because OSHA owed no duty to the decedent.

II. Improper Defendant

We affirm the district court's judgment for OSHA. OSHA is not the proper party to be sued under the FTCA. The lower court therefore lacked jurisdiction over Galvin's claims. ²

It is beyond dispute that the United States, and not the responsible agency or employee, is the proper party defendant in a Federal Tort Claims Act suit. In a section entitled "United States as defendant," the FTCA vests the district courts with "exclusive jurisdiction of civil actions on claims against the United States for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. Sec. 1346(b) (1982) (emphasis added). The Act goes on to state that any other statute authorizing a federal agency to sue and be sued in its own name does not authorize an action against the agency which is cognizable under the tort claims provision. Instead, a suit against the United States under the FTCA is the exclusive remedy for tort claims arising from the actions of government agencies or employees. 28 U.S.C. Sec. 2679(a) (1982).

In view of this explicit statutory language, the courts have consistently held that an agency or government employee cannot be sued eo nomine under the Federal Tort Claims Act. E.g., Hughes v. United States, 701 F.2d 56, 58 (7th Cir.), aff'g 534 F.Supp. 352, 354 (N.D.Ill.1982). Thus, an FTCA claim against a federal agency or employee as opposed to the United States itself must be dismissed for want of jurisdiction. Gregory v. Mitchell, 634 F.2d 199, 204-205 (5th Cir.1981); Carr v. Veterans Administration, 522 F.2d 1355, 1356 (5th Cir.1975). ³

III. Discretionary Function Exception

Although we conclude that the district court need not have reached this issue because Galvin did not sue the proper party, we briefly comment upon the determination by the district court as its basis of decision that Galvin's claim against OSHA fell within the discretionary function exception to the FTCA. The court entered its summary judgment on this ground.

Under 28 U.S.C. Sec. 2680(a), the federal government's waiver of immunity embodied in the FTCA does not apply to any claim against the United States "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." The lower court properly relied on the landmark case United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines ), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), to determine whether the discretionary function exception precluded Galvin's claim.

In Varig Airlines, a unanimous Supreme Court concluded that the Federal Aviation Administration's (FAA) decision to implement a "spot check" inspection system to ensure compliance with its safety standards fell within the discretionary function exception to the FTCA. The Court also determined that the alleged negligence of FAA inspectors in failing to detect safety violations on particular aircraft was protected by this exception.

The Varig Court emphasized that Congress empowered the Secretary of Transportation to establish and implement a mechanism for enforcing the aircraft safety standards according to her own best judgment. 467 U.S. at 816, 104 S.Ct. at 2766. The Court further noted that the FAA inspectors were also authorized to make discretionary judgments regarding "the need to maximize compliance with FAA regulations and the efficient allocation of agency resources." 467 U.S. at 820, 104 S.Ct. at 2768. Finally, the Court stressed that under the FAA regulatory scheme, "the FAA has a statutory duty to promote safety in air transportation, not to insure it." 467 U.S. at 821, 104 S.Ct. at 2768 (emphasis in original). Taking into account all of these factors, the Court concluded that "when an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind." 467 U.S. at 819-20, 104 S.Ct. at 2767.

The FAA "spot check" inspections in Varig Airlines are legally indistinguishable from OSHA's regulatory scheme. Thus, we agree with the district court that OSHA's activities came within the discretionary function exception to a claim under the FTCA. The Occupational Safety & Health Act does not impose a duty on the Secretary of Labor to inspect places of employment, but merely authorizes her to conduct such inspections. 29 U.S.C. Sec. 657(a) (1982). The determination of whether to conduct an inspection and the frequency, scope, detail, and methods of inspection are left to the discretion of the Secretary. This discretionary authority is delegated in part to OSHA field inspectors who are authorized "to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any ... place of employment" covered by the Act. 29 C.F.R. Sec. 1903.3(a) (1987).

In describing the broad authority to conduct OSHA inspections, the Supreme Court has stated that "the [Occupational Safety and Health] Act does not provide any standards to guide inspectors either in their selection of establishments to be searched or in the exercise of authority to search." Donovan v. Dewey, 452 U.S. 594, 601, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981). Indeed, the Court has found that "the provision authorizing [OSHA] administrative searches 'devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search.' " Id. (quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1826, 56 L.Ed.2d 305 (1978)). Other courts have recognized the broad discretionary authority inherent in OSHA's regulatory scheme, and have therefore held that FTCA claims arising from OSHA's alleged negligent inspection or failure to inspect came within the discretionary function exception. Cordeiro v. Secretary of Labor, No. 88-1240 (1st Cir. Aug. 24, 1988 [860 F.2d 1073 (table) ]), aff'g on basis of district court's opinion 698 F.Supp. 373, (D.Mass.1988); Cunningham v. United States, 786 F.2d 1445 (9th Cir.1986); Silva v. Brock, 677 F.Supp. 55 (D.Mass.1988); Daniels v. Black Mountain Spruce, Inc., 676 F.Supp. 220 (D.Colo.1987).

In an attempt to circumvent this strong precedential authority, Galvin argues that her suit is distinguishable from Varig Airlines and its progeny because a mandatory regulation was violated. Galvin cites an Occupational Safety and Health regulation requiring the placement of guards on machines such as the Barnes' conveyor. 29 C.F.R. Sec. 1910.212 (1987).

In Collins v. United States, 783 F.2d 1225 (5th Cir.1986), this Court recognized that the discretionary function exception does not preclude an FTCA claim when a federal agency or employee violates a mandatory regulation which leaves no room for policy judgment. We concluded that the failure of a federal mine inspector to comply with a requirement that a mine must be classified as "gassy" after a certain methane level was exceeded "represented disobedience of official directions, simple and unadorned." 783 F.2d at 1230. We held that this violation of a mandatory regulation did not fall within the discretionary function exception.

The Supreme Court implicitly approved the Collins analysis in Berkovitz v. United States, --- U.S. ----, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The claim before the Court alleged that the Division of Biologic Standards of the National Institute of Health had violated federal laws and regulations regarding the inspection and...