Whisnant v. U.S.

• Decision Date: 11 March 2005
• Docket Number: No. 04-35340.,04-35340.
• Citation: 400 F.3d 1177
• Parties: Lorrin WHISNANT, individually, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.3d 1177

Lorrin WHISNANT, individually, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 04-35340.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 18, 2005.

Filed March 11, 2005.

COPYRIGHT MATERIAL OMITTED

Darrell L. Cochran, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, WA, for the plaintiff-appellant. Also on the briefs was Lincoln Beauregard.

Quyhn Vu Bain, Department of Justice, Washington, D.C., for the defendant-appellee. Also on the briefs was Kirsten Wilkerson.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-03-05121-FDB.

Before: B. FLETCHER, GOULD, Circuit Judges, and KING, District Judge.^*

BETTY B. FLETCHER, Circuit Judge.

Plaintiff-appellant Lorrin Whisnant appeals the district court's dismissal of his Federal Tort Claims Act suit against the United States for negligence in its operation of a commissary on a naval base. Whisnant claims he became ill as a result of regular exposure to the toxic mold the government negligently allowed to colonize the commissary's meat department over a period of three years. Holding this action barred by the discretionary function exception to the FTCA, the district court dismissed for lack of subject matter jurisdiction. We hold that the government's alleged failure to maintain safe and healthy premises was not a decision susceptible to considerations of social, economic or political policy. We therefore reverse the dismissal of Whisnant's suit.

I. BACKGROUND

Where a defendant in its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) asserts that the allegations in the complaint are insufficient to establish subject matter jurisdiction as a matter of law (to be distinguished from a claim that the allegations on which jurisdiction depends are not true as a matter of fact), we take the allegations in the plaintiff's complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004).

Plaintiff-appellant Lorrin Whisnant worked for Northern Fish Products, Inc., which had a contract to provide seafood products to the commissary at the United States Navy's Bangor Submarine Base in Silverdale, Washington. As part of his job, Whisnant made weekly product deliveries to the Bangor Commissary and oversaw Northern Fish employees who staffed the fish counter, which is in the commissary's meat department. These tasks required Whisnant to come to the commissary for a three- to four-hour period at least once every week to two weeks.

The commissary is operated and maintained by the Defense Commissary Agency ("DeCA"), a government agency. DeCA regulations require periodic safety inspections, but it is up to DeCA employees to decide how and when to conduct the inspections. Though DeCA personnel are responsible for safety, the base contracts out its maintenance work to Johnson Controls.

As early as June 1997, safety inspection reports by Johnson Controls showed the accumulation of mold in the meat department of the commissary. Over the course of the next three years, several customers and employees of the commissary became ill; symptoms included seizures, nausea and dizziness, irritation to eyes and blurred vision, and feeling "tingly" and short of breath. Finally, tests conducted in October 2000 revealed that toxic, carcinogenic molds were colonizing the meat department. In response, the government closed the meat market on November 1, 2000; it remained closed until December of that year. As a result of his exposure to the mold prior to the closure of the meat department, Whisnant contracted pneumonia, and experienced headaches, swollen glands, sore throat, persistent cough, and other health problems.

In March 2003, Whisnant sued the United States under the Federal Tort Claims Act (FTCA) for damages for its negligence, which caused severe health problems for Whisnant and loss of consortium with his two motherless children. The FTCA confers subject matter jurisdiction on the federal district courts to hear tort actions against the federal government for negligence of its employees under circumstances in which the United States, if it were a private party, would be liable under the law of the place where the tortious act or omission occurred. 28 U.S.C. § 1346(b)(1). Whisnant alleged that the government ignored indications of the dangerous condition of the meat department and intentionally or recklessly or both intentionally and recklessly permitted employees and customers to work and shop at the commissary in spite of health hazards about which the government knew or should have known. The government moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, on the ground that Whisnant's suit was barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a) (providing that the FTCA shall not apply to "[a]ny claim ... 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 district court granted the motion to dismiss. Applying the Supreme Court's two-part test for the applicability of the discretionary function exception, the court found the government's actions to have been discretionary because DeCA regulations did not prescribe a specific course of action with respect either to mold specifically or inspections generally, and because the government's choice in selecting an independent contractor was a decision grounded in policy considerations. The court rejected Whisnant's argument that the discretionary exception did not apply because he was suing on the basis of the government's negligence in inspecting the premises rather than the government's negligence in selecting Johnson Controls as its maintenance contractor: according to the court, Whisnant's "allegations of negligence are irrelevant" to the jurisdictional question. The court also rejected Whisnant's claim that the government's conduct fell outside of the exception because it occurred at the "operational" rather than the "planning or policy-making" level: the court found that the Supreme Court had abolished the operational-planning distinction.

II. ANALYSIS

A dismissal for lack of subject matter jurisdiction is a final judgment over which this court has jurisdiction under 28 U.S.C. § 1291, McGowan v. Scoggins, 890 F.2d 128, 129 (9th Cir.1989), and is reviewed de novo, Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir.2003).

As the district court correctly noted, the Supreme Court has prescribed a two-part test for determining the applicability of the discretionary function exception. See United States v. Gaubert, 499 U.S. 315, 322-25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Courts are to ask first whether the challenged action was a discretionary one — i.e., whether it was governed by a mandatory statute, policy, or regulation. If the action is not discretionary, it cannot be shielded under the discretionary function exception. Second, courts ask whether the challenged action is of the type Congress meant to protect — i.e., whether the action involves a decision susceptible to social, economic, or political policy analysis. O'Toole v. United States, 295 F.3d 1029, 1033-34 (9th Cir.2002) (summarizing Gaubert/Berkovitz test). It is the government's burden to demonstrate the applicability of the discretionary function exception. Bear Medicine v. United States ex rel. Sec'y of the Dep't of the Interior, 241 F.3d 1208, 1213 (9th Cir.2001).

Application of the first prong is straightforward in Whisnant's case. No statute, policy, or regulation prescribed the specific manner in which the commissary was to be inspected or a specific course of conduct for addressing mold. The parties are in agreement on this point.

The dispute in this case concerns the application of the second Gaubert/Berkovitz prong. We have recently remarked upon the difficulty of charting a clear path through the weaving lines of precedent regarding what decisions are susceptible to social, economic, or political policy analysis. See O'Toole, 295 F.3d at 1035. Government actions can be classified along a spectrum, ranging from those "totally divorced from the sphere of policy analysis," such as driving a car, to those "fully grounded in regulatory policy," such as the regulation and oversight of a bank. Id. (citing Gaubert, 499 U.S. at 325 n. 7, 332-34, 111 S.Ct. 1267, for these examples). But determining the appropriate place on the spectrum for any given government action can be a challenge.

We begin by noting the lines of analysis that are foreclosed. Specifically, the Supreme Court has rejected two categorical approaches to this area of law. First, the applicability of the exception does not depend on whether the relevant decision was made by an individual at the "operational" or "planning" level. See Gaubert, 499 U.S. at 325-26, 111 S.Ct. 1267. Second, actions that are regulatory or "uniquely governmental" in nature are not automatically covered by the exception by virtue of that designation. See Berkovitz, 486 U.S. at 538-39, 108 S.Ct. 1954.

A review of circuit precedent reveals two trends in the law that bear particularly on Whisnant's case. First, a dominant theme in our case law is the need to distinguish between design and implementation: we have generally held that the design of a course of governmental action is shielded by the discretionary function exception, whereas the implementation of that course of action is not.¹ Second, and relatedly, matters of scientific and professional judgment — particularly judgments concerning safety — are rarely considered to be susceptible to social, economic, or political policy.

Thus, for example, in a suit...