Irving v. U.S., 89-1365

• Decision Date: 15 September 1989
• Docket Number: No. 89-1365,89-1365
• Citation: 909 F.2d 598
• Parties: , 14 O.S.H. Cas.(BNA) 1705, 1990 O.S.H.D. (CCH) P 29,037 Gail Merchant IRVING, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 598

909 F.2d 598

59 USLW 2098, 14 O.S.H. Cas.(BNA) 1705,

1990 O.S.H.D. (CCH) P 29,037

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

No. 89-1365.

United States Court of Appeals,

First Circuit.

Heard Sept. 15, 1989.

Decided July 25, 1990.

James H. Schulte, with whom Paul R. Cox and Burns, Bryant, Hinchey, Cox & Schulte, P.A., were on brief for plaintiff, appellant.

Phyllis Jackson Pyles, Torts Branch, Civ. Div., Dept. of Justice, with whom Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Richard V. Wiebusch, U.S. Atty., Manchester, N.H., and Jeffrey Axelrad, Torts Branch, Civ. Div., Dept. of Justice Washington, D.C., were on brief for the U.S.

Before BOWNES and BREYER, Circuit Judges, and FAIRCHILD, ^* Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

The plaintiff's suit alleges that she was injured at work because Occupational Safety and Health Administration (OSHA) inspectors twice negligently failed to notice a dangerous condition which was a serious violation of OSHA safety standards. The question on appeal is whether this suit falls within the discretionary function exception to the United States' waiver of sovereign immunity in the Federal Tort Claims Act (FTCA).

I.

Gail Merchant Irving (then Gail Merchant) worked at the Somersworth Shoe Company plant in Somersworth, New Hampshire. On October 10, 1979, she was operating a hand-powered marking machine. Apparently, after walking to the opposite side of her work bench and bending under it to retrieve something she had dropped, her hair became caught in the unguarded rotating drive shaft of a nearby machine, causing her severe injuries.

Twice prior to Ms. Irving's injury, in 1975 and 1978, OSHA inspectors (also called "compliance officers") had conducted general inspections of the Somersworth Shoe manufacturing plant. While various violations of OSHA standards were noted during these inspections, neither inspector noted any problems with the area around Ms. Irving's work station. Following the accident, OSHA conducted a third inspection, determined that failing to guard the rotating drive shaft which had injured Ms. Irving was a serious violation of OSHA standards, and fined the employer. Ms. Irving claims the dangerous condition had existed for years. Appellant's brief at 4.

Ms. Irving has sued the United States under the FTCA. Her theory is that under similar circumstances, the law of New Hampshire would impose liability upon a person who undertook to inspect the plant for safety and was negligent in failing to observe the danger and bring it to the attention of the employer. See Corson v. Liberty Mutual Insurance Company, 110 N.H. 210, 265 A.2d 315 (1970) (insurance company which undertook periodic inspections of workplace of insured could be held liable to injured employee for negligent inspections); Restatement (Second) of Torts Sec. 324A(b) (1965). As part of its defense, the United States relies upon the FTCA's discretionary function exception. 28 U.S.C. Sec. 2680(a).

In 1988, after trial, the district court dismissed the suit. Without reaching the merits, the court decided that the discretionary function exception applied to the OSHA inspections. This decision 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 appeal, this court vacated the dismissal and remanded for further consideration in light of Berkovitz. Irving v. United States, No. 88-1454 (1st Cir. Dec. 7, 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 again dismissed the action without analysis of the evidence, citing the then recent decision of the Fifth Circuit, Galvin v. OSHA, 860 F.2d 181 (5th Cir.1988). Plaintiff appealed.

II.

The FTCA is a broad waiver of sovereign immunity, granting district courts jurisdiction to hear tort suits against the United States for damages caused by its employees acting in the scope of their duties, where the United States, if a private person, would be liable under the law of the place where the tort occurred. 28 U.S.C. Secs. 2674; 1346(b). Among the fourteen statutory exceptions to this waiver of immunity is 28 U.S.C. Sec. 2680(a) which exempts

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.

Section 2680 "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. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). Because Sec. 2680(a) is a limitation on the waiver of sovereign immunity, cases which fall within the discretionary function exception are dismissed for lack of subject matter jurisdiction. See 28 U.S.C. Sec. 1346(b); Wright v. United States, 719 F.2d 1032, 1034 (9th Cir.1983); Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981), cert. denied 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982).

Two recent unanimous Supreme Court decisions, Varig Airlines and Berkovitz, in attempting to clarify the scope of Sec. 2680(a), have set forth a number of principles. "[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764. The Supreme Court has emphatically rejected the assertion that "the exception precludes liability for any and all acts arising out of the regulatory programs of federal agencies." Berkovitz, 486 U.S. at 538, 108 S.Ct. at 1960. Instead, the inquiry focuses on the permissible range of action available to the government employee allegedly at fault. "In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee." Id. at 536, 108 S.Ct. at 1958 (emphasis added). "[I]f the act simply does not involve the exercise of [policy] judgment," or if "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," Sec. 2680(a) does not apply. Id. at 546-47, 536, 108 S.Ct. at 1964, 1958. Even when the challenged action is the product of an employee's permissible use of judgment, a suit is barred only if that judgment "is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress' desire 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.' " Id. at 536-37, 108 S.Ct. at 1959 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764).

Varig Airlines involved two lawsuits challenging the Federal Aviation Administration's certification for commercial use of two airplanes which later caught fire in flight. The Court held that the discretionary function exception applied because the two challenged agency actions--the FAA's general decision to spot-check airplane manufacturers' self-inspections rather than fully inspecting every plane, and the spot-check inspectors' specific decisions to certify the two airplanes as safe--were taken within a statutory and regulatory milieu leaving both the agency and its spot-check inspectors room to make policy decisions. 467 U.S. at 819-20, 104 S.Ct. at 2767-68. On the other hand, the Court held that the exception did not apply in Berkovitz, a suit challenging the government's licensing of a vaccine lab, and the Food and Drug Administration's approval of a specific batch of vaccine made at that lab--at least insofar as the plaintiff's complaint alleged that the government employees had failed to follow mandatory statutes, regulations, or agency policy which did not allow for employee choices grounded in policy. 486 U.S. at 539-48, 108 S.Ct. at 1960-61.

III.

The government emphasizes the broad statement in Varig Airlines that "w]hatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals." 467 U.S. at 813-14, 104 S.Ct. at 2764-65. Government's brief at 15. The government in particular points out that one of the two cases consolidated for review in Varig Airlines did not just involve the agency's decision on what types of inspection to conduct, but also included allegations that agency inspectors had in fact inspected the airplane, and had done so negligently. See United Scottish Ins. Co. v. United States, 614 F.2d 188, 190 (9th Cir.1979). Thus, the government argues, Varig Airlines holds that the discretionary function exception bars claims based on the negligence of agency inspectors carrying out inspections.

Varig Airlines, viewed in light of the subsequent unanimous decision in Berkovitz, does not provide any such broad immunity for...