Irving v. U.S.

• Decision Date: 09 February 1995
• Docket Number: No. 94-1848,94-1848
• Parties: 1995 O.S.H.D. (CCH) P 30,764 Gail Merchant IRVING, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 830

49 F.3d 830

1995 O.S.H.D. (CCH) P 30,764

Gail Merchant IRVING, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 94-1848.

United States Court of Appeals First Circuit.

Heard Feb. 9, 1995.

Decided March 16, 1995.

Paul R. Cox, with whom Jennifer A. Rosenfeld and Burns, Bryant, Hinchey, Cox & Rockefeller, P.A., Dover, NH, were on brief, for appellant.

Phyllis Jackson Pyles, Asst. Director, Torts Branch, Civ. Div., Dept. of Justice, Washington, DC, with whom Paul M. Gagnon, U.S. Atty., Concord, NH, Frank Hunger, Asst. Atty. Gen., and Jeffrey Axelrad, Director, Torts Branch, Civ. Div., Dept. of Justice, Washington, DC, were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

This appeal requires us to decide, for a third time, whether the district court correctly decided this Federal Tort Claims Act ("FTCA") suit in favor of the government. Once again, we are of the opinion that the district court's ruling is not sustainable. We therefore vacate the judgment and remand this matter for further proceedings. We also direct that the proceedings take place before a different district court judge.

I.

On October 10, 1979, while working at the Somersworth Shoe Company plant in Somersworth, New Hampshire, plaintiff-appellant Gail Merchant Irving sustained severe injuries when her hair became entangled in the unguarded rotating shaft of a die-out machine located next to her work station. The accident occurred when plaintiff bent over to pick up a glove she had dropped near the machine.

On October 7, 1981, plaintiff filed suit against the United States under the FTCA. She claimed that inspectors from the Occupational Safety and Health Administration ("OSHA") had twice negligently failed to notice a dangerous condition which was an undisputedly serious violation of OSHA safety standards--i.e., that the rotating shaft on the die-out machine was unguarded. Her theory of liability was that Somersworth would have corrected the dangerous condition prior to her accident had it been given notice of the violation during either of the two inspections. The inspections at issue took place in 1975 and 1978.

From the beginning, the government has argued that the district court lacked subject matter jurisdiction over this case because the actions of the OSHA inspectors were protected by the "discretionary function" exception to the FTCA's waiver of sovereign immunity. See 28 U.S.C. Sec. 2680(a); see also Irving v. United States, 909 F.2d 598, 600 (1st Cir.1990) (because discretionary function exception effectively reinstates sovereign immunity, cases falling within it are dismissed for lack of subject matter jurisdiction) ("Irving I"). Section 2680(a) exempts from the FTCA's waiver

Any 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.

The government's initial challenge to the district court's subject matter jurisdiction was presented in a motion to dismiss. On February 22, 1982, the court denied the motion. See 532 F.Supp. 840 (D.N.H.1982). Prior to trial, but after the Supreme Court handed down an opinion elaborating upon the scope of the discretionary function exception, see United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the government renewed its motion to dismiss. On August 8, 1984, the district court denied this second motion.

A bench trial on the merits of plaintiff's claim began on February 11, 1985, and concluded on February 14, 1985. For nearly three years, the district court had the matter under advisement. Finally, on January 27, 1988, the court dismissed the suit without reaching the merits. The court, citing intervening circuit authority, reversed its earlier rulings to the contrary effect and concluded that the discretionary function exception applied to the OSHA inspections.

The court's dismissal order came shortly before the Supreme Court decided Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). On plaintiff's initial appeal, we vacated the dismissal and remanded the matter for further consideration in light of Berkovitz. Irving v. United States, 867 F.2d 606 (1st Cir.1988) (unpublished order). We directed:

On remand ... the district court should first consider whether, viewing the evidence in the light most favorable to the appellant, its decision to dismiss remains correct after Berkovitz. A determination by the district court that its initial decision does not survive Berkovitz does not of course preclude a later finding of immunity based upon the court's factual findings. If the district court ultimately finds that the OSHA employees had discretion in conducting their inspection and that the discretion involved considerations of policy, it should grant the government immunity.

Id., slip op. at 3-4.

The district court did not follow our instructions. It did not discuss whether, in light of Berkovitz, plaintiff's allegations were sufficient to state a claim falling outside the discretionary function exception. Nor did it analyze whether plaintiff's proof was sufficient to sustain her allegations. Instead, the court simply compared the facts here with the facts of a then-recent, post-Berkovitz OSHA case in which the Fifth Circuit had found the discretionary function exception to apply, see Galvin v. OSHA, 860 F.2d 181 (5th Cir.1988), and ruled that the suit was within the scope of the exception.

Plaintiff again appealed, and again prevailed on appeal. See Irving I, 909 F.2d at 605. We pointed out that, under Berkovitz, the discretionary function exception applies "only if the challenged action 'is a matter of choice for the acting employee ' and 'if the action challenged in the case involves the permissible exercise of policy judgment.' " Id. at 601 (quoting Berkovitz, 486 U.S. at 536, 537, 108 S.Ct. at 1958, 1959). Applying this rule, we first found plaintiff's allegation that OSHA policy required the inspectors to notice the violation at issue here adequate to state a claim that the discretionary function exception did not apply. Id. at 601-03 (analyzing pertinent case law). We next assessed the evidence and concluded that it was sufficient for a finding in plaintiff's favor on the discretionary function question. Id. at 603-05. We therefore vacated and remanded for a second time. In so doing, we stated:

[A]n issue of fact lingers in the record: whether OSHA policy left the thoroughness of inspections a matter of choice for its compliance officers. There is some evidence, viewed in the light most favorable to the plaintiff, that the thoroughness of inspections was not left up to the individual compliance officers, and that the compliance officers did not have policy-level discretion to fail to note and tell the employer about the violation which allegedly was the cause of Ms. Irving's injuries. The district court should have made findings resolving this issue, in conformity with the directions of this court on the earlier appeal.

Id. at 605. Our opinion issued on July 25, 1990.

For nearly four years, the district court did not respond to the second remand. Finally, on June 27, 1994, the court issued a memorandum opinion. Once again, the court declined to follow our mandate. Instead, it addressed the merits of plaintiff's claim. After reviewing its trial notes and a partial transcript of the 1985 trial, the court found that, at the time of the 1975 and 1978 OSHA inspections, the die-out machine was "some two feet closer to the wall to its rear" than it was on the day of plaintiff's accident. This finding led the court to conclude that the offending rotating shaft was permissibly "guarded by location"--i.e., that "it was then in such a location that employees working near it would not be exposed to injury"--at the time of the OSHA inspections. As the court explained, "[The machine's] nearness to the wall to its rear would prevent access and probable injury." Accordingly, the court found that no negligent act or omission on the part of any OSHA employee occurred during the 1975 and 1978 inspections. In the court's view, this finding obviated any need to resolve the discretionary function question. Judgment was entered for the government.

II.

On appeal, plaintiff makes two arguments. First, she contends that the district court's guarded-by-location finding is clearly erroneous and/or predicated upon errors of law. Second, she asserts that "the undue delay of nine and one-third years between the bench trial and the final decision on the merits rendered the court's findings of fact unreliable and also violated the plaintiff's right to access to the courts, due process, and fundamental fairness as guaranteed by the United States Constitution." For its part, the government renews its argument that the actions of the OSHA inspectors fell within the FTCA's discretionary function exception.

Because the government's argument puts the district court's subject matter jurisdiction into issue, we begin with the last of the three appellate arguments.

A. The Discretionary Function Exception

It is axiomatic that, "in a multi-panel circuit, newly constituted panels, generally speaking, are bound by prior decisions on point." Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935, 939 n. 3 (1st Cir.1993). This rule does not apply, however, when the decision is subsequently undercut by controlling authority--e.g., a Supreme Court opinion, an en banc opinion of the circuit court, or a statutory overruling. Metcalf & Eddy, Inc. v. Puerto Rico...