Irving v. U.S.

• Decision Date: 10 September 1998
• Docket Number: No. 96-2368,96-2368
• Citation: 162 F.3d 154
• Parties: 18 O.S.H. Cas. (BNA) 1577, 1998 O.S.H.D. (CCH) P 31,717 Gail Merchant IRVING, Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 154

162 F.3d 154

18 O.S.H. Cas. (BNA) 1577, 1998 O.S.H.D. (CCH)

P 31,717

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

No. 96-2368.

United States Court of Appeals, First Circuit.

Heard Sept. 10, 1998.

Decided Dec. 18, 1998.

Phyllis J. Pyles, Attorney, Torts Branch, Civil Division, with whom Frank W. Hunger, Assistant Attorney General, Paul M. Gagnon, United States Attorney, and Jeffrey Axelrad, Attorney, Torts Branch, Civil Division, were on brief, for appellant.

Paul R. Cox, with whom Matthew B. Cox and Burns, Bryant, Hinchey, Cox & Rockefeller, P.A. were on brief, for appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, SELYA, BOUDIN, STAHL, LYNCH and LIPEZ, Circuit Judges.

OPINIONS EN BANC

SELYA, Circuit Judge.

Almost two decades ago, Gail Merchant Irving suffered horrific injuries in a workplace accident. She sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, claiming that inspectors employed by the Occupational Safety and Health Administration (OSHA) negligently performed their duties and thereby proximately caused her injuries. The case traveled an inexcusably long and tortuous route to a decision on the merits--a route that included four detours to this court. Ultimately, the district court, proceeding under a legal framework established by a panel of this court, concluded that the FTCA's discretionary function exception did not bar the plaintiff's claim; that the OSHA inspectors had acted negligently; and that such negligence was actionable under applicable state law. See Irving v. United States, 942 F.Supp. 1483 (D.N.H.1996) (Irving III ). The court awarded the plaintiff $1,000,000 in damages. See id. at 1502.

A divided panel of this court affirmed the judgment, see Irving v. United States, 1998 WL 152941 (1st Cir. Apr. 8, 1998), but the full court, acting sua sponte, withdrew the opinion and ordered rehearing en banc, principally to review the important question of whether the FTCA's discretionary function exception foreclosed the plaintiff's negligent inspection claim. We now answer that question in the affirmative. ¹

I. BACKGROUND

Because the district court has faithfully chronicled the tangled events that preceded this appeal, see Irving III, 942 F.Supp. at 1485-98, we offer only a synopsis. We refer the reader who hungers for greater detail to the district court's account.

In 1979, Somersworth Shoe Company operated a manufacturing plant in New Hampshire. On October 10 of that year, the plaintiff, a Somersworth Shoe employee, was stamping innersoles by means of a marker machine. At one point, she went behind her workbench to obtain materials from the die rack. In the process, she dropped a glove.

When she stooped to retrieve it, her hair was drawn into the vacuum created by the high-speed rotation of a drive shaft that delivered power to an adjacent "die-out" machine. She sustained grievous injuries.

OSHA compliance officers twice had inspected the plant (once in 1975 and again in 1978) under the auspices of OSHA's authority to conduct general administrative inspections, but had not noted any hazard in connection with the placement or guarding of the die-out machine in the stock fitting room or the bench assembly associated with it. Six days after Irving's mishap, OSHA conducted an inspection focused on the accident and concluded that the arrangement violated OSHA standards in three separate respects, and that all three conditions were "serious." ² The most important of these was the company's failure to guard the drive shaft component of the die-out machine. See 29 C.F.R. § 1910.219(c)(2)(ii) ("Shafting under bench machines shall be enclosed by a stationary casing, or by a trough at sides and top or sides and bottom, as location requires.").

After exhausting her administrative remedies, the plaintiff invoked the FTCA and sued the United States in New Hampshire's federal district court. She alleged that OSHA's negligence in failing to note and cite the unguarded condition of the drive shaft during the two pre-accident inspections proximately caused her injuries. Had the OSHA compliance officers documented the condition of the die-out machine, the plaintiff reasoned, her employer would have taken corrective action and her injury would not have occurred.

The United States moved to dismiss the suit on the ground that the FTCA's discretionary function exception barred the plaintiff's claim. ³ The district court denied the motion. See Irving v. United States, 532 F.Supp. 840 (D.N.H.1982). Trial commenced on February 11, 1985, and ended three days later. The district court took the matter under advisement, but did not act for almost three years. At that point, the court reversed its field and concluded that the discretionary function exception applied after all. See Irving v. United States, No. Civ. C81-501-SD, slip op. (D.N.H. Jan. 27, 1988) (unpublished). Accordingly, it dismissed the case for lack of subject matter jurisdiction.

A panel of this court vacated the order of dismissal and asked the district court to consider the impact of a newly decided case, namely, Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). See Irving v. United States, 867 F.2d 606 (1st Cir.1988) (table). The district court determined that Berkovitz did not alter the result. See Irving v. United States, No. Civ. C81-501-SD, slip op. (D.N.H. Feb. 14, 1989) (unpublished). The plaintiff again appealed.

A second panel of this court vacated the judgment. See Irving v. United States, 909 F.2d 598 (1st Cir.1990) (Irving I ). The panel recognized that, "[w]ere the statute and the formal regulations the only standards guiding the compliance officer's conduct, the discretionary function exception would apply." Id. at 603. But, the panel stated, even though these standards "give OSHA wide freedom at higher agency levels to make decisions and formulate programs," it "does not follow" that "an employee who performs an inspection has the type and breadth of discretion which makes the inspection a discretionary function." Id. The panel thus concluded that further analysis and factfinding were required to determine what OSHA policy actually required of OSHA compliance officers engaged in inspection activities. See id. As a corollary to this point, the panel noted that certain statements by OSHA's area director and the individuals who conducted the earlier inspections suggested that compliance officers may not have enjoyed discretion over how thoroughly they were The district court pondered matters for four more years. Eventually, the judge, relying on a partial transcript of the 1985 trial, supplemented by his own notes, leapfrogged the discretionary function exception entirely and decided the case on the merits, concluding that the United States was not negligent because the die-out machine's drive shaft was "guarded by location" at the time of the inspections and, therefore, in full compliance with OSHA regulations. Irving v. United States, No. Civ. 81-501-SD, 1994 WL 287750, at * 3 (D.N.H. June 23, 1994). The plaintiff again appealed.

                required to inspect a plant.  See id. at 604-05.   Because these statements were inconclusive, however, the panel remanded for further factfinding to determine "whether OSHA policy left the thoroughness of inspections a matter of choice for its compliance officers," and if so, "whether the inspectors had policy-level discretion to fail to note and tell the employer about the violation" which allegedly caused plaintiff's injury.  Id. at 605
                

A third panel of this court vacated the judgment, discerning no basis for the "guarded by location" fact determination. See Irving v. United States, 49 F.3d 830, 835-37 (1st Cir.1995) (Irving II ). The panel then addressed the government's attempted resurrection of its discretionary function defense and rejected it as foreclosed by the prior panel decision. See id. at 834 (noting that the panel did not feel "free to revisit" the legal conclusions explicated in Irving I ). In the bargain, the panel dismissed the government's plaint that the Supreme Court's intervening decision in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), made a decisive difference. See Irving II, 49 F.3d at 834-35.

At this juncture, a different trial judge assumed responsibility for the case. Operating within the legal framework erected by Irving I and reinforced by Irving II, the district court concluded that, even though the applicable statute, regulations, and written agency guidelines appeared to grant compliance officers substantial discretion over how to conduct inspections, this discretion was restricted "by less formal, but no less binding, OSHA policy." Irving III, 942 F.Supp. at 1490-91. To determine the parameters of this purported policy, the district court relied exclusively on evidence adduced at the 1985 trial. It found that the testimony of the compliance officers who had conducted the 1975 and 1978 inspections and the area director who was their superior limned a policy that "required" OSHA's "wall-to-wall" inspections to be "complete" in every respect. Id. at 1491. This, the district court added, meant that OSHA inspectors were obligated to examine "every operational machine and work station in the plant." Id. Finding that the inspectors had been negligent for not examining and/or citing the die-out machine, the court held that the United States was liable. See id. at 1505, 1510. This appeal ensued.

II. PROCEDURAL ISSUES

Because this case comes before us in an anomalous procedural posture, we begin by addressing a series of questions related to the justiciability of the discretionary function issue.

A. Forfeiture.

When the United States instituted this appeal, it did not ask the panel to reverse the district court's refusal to apply the discretionary function exception. The...