Fisher Bros. Sales v. United States , 46 F.3d 279 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
1-25-1995
Fisher Bros v USA
Precedential or Non-Precedential:
Docket 93-1182
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-1182; 93-1205; 93-1206;
93-1207; 93-1208; 93-1209
FISHER BROS. SALES, INC.
Appellant in 93-1182.
v.
UNITED STATES OF AMERICA
JULIA SAAVEDRA BALMACEDA; AANDRES MUNOZ TORRES;
ABALOS LABBE JUAN PABLO; ABATTE OSORIO HONS.;
ABDON M. ALVAREZ; ABRAHAM SABAJ NALLAR;
ABRIGO OLIVOS RODEMIL; ACEVEDO DURAN OSVALDO HERNAN;
ACOSTA RAMIREZ CARLOS; VICTORIANO ACUNA CONTRERAS;
MARCO HERIBETO ACUNA MONTERO; JAVIER ACUNA GONZALEZ;
MARDONES ADOLFO RIVEROS; ADRIANA RODRIGUEZ LARRAGANA;
AGR HENRIQUEZ Y VARELA; AGR KIWI MASTERS LTDA;
AGRIC MORANDE LAVIN LTDA; AGRIC CAIQUENES LTDA;
AGRIC CARVALLO LTDA; AGRIC CERRILLO LTDA; AGRIC CHOROMBO LTDA;
AGRIC COTIELLA LTDA; AGRIC DEL ALTO LTDA; AGRIC DEL VALLE
LTDA; AGRIC EL ESPINO N12, et al.
Appellants in 93-1205,
v.
UNITED STATES OF AMERICA
CARBEN, INC.,
Appellant in 93-1206
v.
UNITED STATES OF AMERICA
COMPANIA SUD AMERICANA DE VAPORES S.A.,
Appellant in 93-1207.
v.
UNITED STATES OF AMERICA
NEW MARKET INVESTMENT CORPORATION,
Appellant in 93-1208.
v.
UNITED STATES OF AMERICA
GUZMAN Y DEL REAL, LIMITRADA,
individually and as class representative,
v.
UNITED STATES OF AMERICA,
Guzman Y Del Real, Limitrada,
Appellant in 93-1209
.
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action Nos. 92-02818; 92-00907;
92-01204; 92-01208; 92-01279; 92-04057)
Argued: September 23, 1993
Before: STAPLETON, ROTH and LEWIS, Circuit Judges
Reargued in banc October 18, 1994
Before: SLOVITER, Chief Judge, BECKER, STAPLETON
MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges
(Opinion Filed January 25, l995 )
Christopher H. Mansuy, Esquire
Walker & Corsa
96 Hudson Street
Hoboken, NJ 07030
Attorney for Appellant in 93-1182
Edward W. Madeira, Jr., Esquire
Robert L. Hickok, Esquire (Argued)
Matthew H. Adler, Esquire
Michael A. Ceramella, Esquire
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Philadelphia, PA 19103-2799
Attorneys for Appellants in 93-1205; 93-1206;
93-1207; 93-1208; and 93-1209
Stuart E. Schiffer,
Acting Assistant Attorney General
Michael J. Rotko
United States Attorney
Robert S. Greenspan, Esquire
Thomas M. Bondy, Esquire (Argued)
United States Department of Justice
Civil Division, Appellate Staff
Tenth and Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Phyllis J. Pyles, Esquire
United States Department of Justice
Torts Branch, Civil Division
P. O. Box 888
Ben Franklin Station
Washington, D.C.20044
Attorneys for Appellees
OPINION OF THE COURT
STAPLETON, Circuit Judge:
The Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b), 2671-2680, waives the federal government's sovereign
immunity with respect to tort claims for money damages. The
"discretionary function exception" to the FTCA limits that
waiver, stating that the government retains sovereign immunity
with respect to "[a]ny claim . . . based upon the exercise or
performance [of,] or the failure to exercise or perform[,] a
discretionary function or duty . . . , whether or not the
discretion involved be abused." 28 U.S.C. § 2680(a). The
appeals now before the court in banc require us to examine the
scope of the discretionary function exception.
The plaintiffs in these cases were injured by several
policy decisions made by the Commissioner of the Food and Drug
Administration ("FDA") while exercising a discretionary function.
They seek to avoid the legal consequences that would flow from
application of the discretionary function exception to their
cases by (1) looking behind the Commissioner's injury-causing
decision, (2) finding fault with an aspect of the data upon which
it may have been based, and (3) arguing that their claims are not
"based upon" the Commissioner's decisions but instead are "based
upon" the alleged negligence of various laboratory technicians
who supplied the allegedly faulty data to the Commissioner. We
reject this attempt to circumvent the discretionary function
exception, concluding that if the discretionary function
exception to the FTCA is to fulfill its clear and important
purpose, a claim must be "based upon" the exercise of a
discretionary function whenever the immediate cause of the
plaintiff's injury is a decision which is susceptible of policy
analysis and which is made by an official legally authorized to
make it. Because the plaintiffs' claims are based upon
decisions susceptible of policy analysis and made by an official
of the executive branch acting within his authority, we will
affirm the district court's order dismissing these cases for lack
of subject-matter jurisdiction.
For the purpose of our analysis, we have assumed the
facts alleged by the plaintiffs to be true. Berkovitz v. United
States, 486 U.S. 531, 540 (1988). Our "scope of review of the
applicability of the discretionary function exception is
plenary." United States Fidelity & Guar. Co. v. United States,
837 F.2d 116, 119 (3d Cir.), cert. denied, 487 U.S. 1235 (1988).
I.
On March 2, 1989, an anonymous caller to the United
States Embassy in Santiago, Chile, stated that Chilean fruit
bound for the United States would be injected with cyanide. The
FDA took the lead agency role in evaluating the seriousness of
the call, and it detained all incoming Chilean fruit over the
weekend of March 4 and 5 while it undertook an investigation. On
March 6, having found no evidence that any Chilean fruit had
actually been poisoned, the FDA announced that it considered the
call a hoax. It nevertheless continued to conduct experiments
concerning the effects that cyanide injections would have on
various Chilean fruits.
The embassy in Santiago then received a second
anonymous call. This time the warnings were more specific. The
caller indicated that he had access to orchards, storage
facilities, and shipping locations in Chile, and stated that
unidentified fruit had already been injected with cyanide. This
prompted the FDA's Philadelphia District Office to double the
inspection level of incoming Chilean fruit, beginning with that
arriving on the "Almeria Star." The Philadelphia District Office
designated that certain portions of the Almeria Star's cargo
would be examined, and any fruit that looked "suspect" was to be
sent to the Philadelphia District Office for testing.
The increased level of inspection soon yielded results.
On the morning of March 12, an FDA inspector discovered two
grapes from the Almeria Star which appeared to have been
punctured, and which displayed uniform white rings. Further
examination of the crate containing these suspect grapes revealed
a third white-ringed grape, which, unlike the others, appeared to
have been slit rather than punctured. Although the physical
appearance of these grapes was inconsistent with that of grapes
injected with cyanide during FDA experimentation, the FDA
officials as a precautionary measure sent the grapes, as well as
the crate in which they were packaged, to the FDA's Philadelphia
laboratory for testing.
The Philadelphia laboratory began testing the grapes
for cyanide in the early afternoon of March 12. The FDA
technicians used all of the two punctured grapes in conducting
their tests, but saved the third, slit, grape for confirmation
purposes. The testing process required the grapes to be mashed
until they turned into a solution. Sulfuric acid was then added
to this slurry, causing a chemical reaction that released in
gaseous form any cyanide that was present in the solution. The
gas released from the solution was twice exposed to cyanide-
sensitive strips of reactive paper, both of which indicated the
presence of cyanide. A third test then confirmed a high
concentration of cyanide present in the slurry. At approximately
9:30 p.m. on March 12, the Philadelphia laboratory orally
reported positive cyanide test results from the solution to the
FDA's Emergency Operations Center.
Meanwhile, FDA officials transferred a portion of the
slurry, along with the third, slit, grape and the bunch in which
these grapes had been found, to the FDA's Cincinnati laboratory.
Technicians there identified two additional white-ringed grapes
on the bunch, but were unable to confirm the presence of cyanide.
The Philadelphia laboratory also continued testing other grapes
from the suspect crate, as well as all packing materials in that
crate. These further tests also failed to reveal the presence of
cyanide.
The Commissioner was supplied with the findings of the
Philadelphia and Cincinnati laboratories in the early morning
hours of March 13. The information before him at that point was
that three tests conducted on two of the suspect grapes indicated
the presence of cyanide. The retesting of the slurry and the
testing of the third "reserved" grape, the other grapes, and the
packaging, however, did not confirm the presence of cyanide. He
also knew of the reports to the embassy in Santiago and the
surveillance activity that had already been conducted. On the
basis of this information, the Commissioner on March 13 issued an
order refusing entry of any additional Chilean fruit into the
United States and requiring the withdrawal and destruction of all
Chilean fruit then in domestic channels of distribution. The FDA
also issued a press release publicizing the Philadelphia
laboratory's finding of cyanide in two Chilean grapes and the
order refusing the entry of Chilean fruit into the United States.
Consumers were encouraged to destroy any Chilean fruit in their
possession, and grocers were instructed to remove all Chilean
fruit from their shelves.
The plaintiffs in these cases are (1) approximately
2400 Chilean growers and exporters of fresh fruit, (2) a Chilean
shipping line, (3) three United States firms that are engaged in
the importation and distribution of fresh produce, and (4) a non-
certified class whose named plaintiff is a Chilean fruit grower.
They seek damages from the United States government under the
FTCA, 28 U.S.C. § 1346(b), on a negligence theory, contending
that the technicians in the FDA's Philadelphia laboratory were
negligent in failing to reserve any portion of the two punctured
grapes for later confirmation testing. Plaintiffs claim that
this violated both the FDA's Regulatory Procedures Manual and
good laboratory practices generally. As a result, the Cincinnati
laboratory was unable to verify the positive result reported by
the Philadelphia laboratory. Plaintiffs further allege that the
lab technicians were negligent in failing to record their
observations contemporaneously with their testing, thereby
casting doubt on the accuracy of their results and the content of
the oral report, and in failing to take account of the known
properties of cyanide in fruit. According to the complaint, but
for this negligence, the Commissioner would not have issued his
orders and the Chilean fruit business for the spring season of
1989 would not have been destroyed.
The United States moved to dismiss, arguing that the
district court lacked subject-matter jurisdiction over
plaintiffs' claims. The district court granted that motion,
reasoning that the discretionary function exception to the FTCA
shielded the government's conduct from liability. The plaintiffs
appeal.
II.
A.
The Federal Tort Claims Act gives district courts
jurisdiction over:
civil actions on claims against the United
States, for money damages, accruing on and
after January 1, 1945, 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, under circumstances where the
United States, if a private person, would be
liable to the claimant in accordance with the
law of the place where the act or omission
occurred.
28 U.S.C. § 1346(b). The FTCA thus waives the government's
sovereign immunity with respect to tort claims against the United
States for money damages.
This waiver of the government's immunity is subject to
certain exceptions, however, one of which is the discretionary
function exception. 28 U.S.C. § 2680(a). As we have noted, that
exception dictates that the waiver "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 discretionary function exception is designed to
protect policy making by the politically accountable branches of
government from interference in the form of "second-guessing" by
the judiciary -- second guessing the result of which burdens the
public fisc and the prospect of which skews the decisionmaking
process of executive and legislative policymakers. United States
v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 808 (1984). As the Court explained in Varig
Airlines:
[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. Time and again the legislative
history refers to the acts of regulatory
agencies as examples of those covered by the
exception . . . . This emphasis upon
protection for regulatory activities suggests
an underlying basis for the inclusion of an
exception for discretionary functions in the
Act: Congress wished 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 814 (footnote omitted). Thus, the discretionary function
exception is a product of Congress' recognition that "the
imposition of liability for damages occasioned by governmental
policymaking would necessarily involve a very substantial, if not
prohibitive, social cost not only in terms of the imposed
liability itself, but also in terms of the constraining effect of
that liability on the decisions of governmental policymakers."
Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 890 (3d Cir.
1990), cert. denied, 500 U.S. 941 (1991).
Whether the discretionary function exception applies
involves a two-pronged inquiry. "[A] court must first consider
whether the action is a matter of choice for the acting
employee." Berkovitz, 486 U.S. at 536. Second, the court must
determine whether the element of judgment involved "is of the
kind that the discretionary function exception was designed to
shield." Id. Under this second prong, the court must determine
whether the challenged discretionary actions or decisions were
"based on considerations of public policy." Id. at 537. "The
focus of the inquiry is not on the agent's subjective intent in
exercising the discretion conferred by statute or regulation, but
on the nature of the actions taken and on whether they are
susceptible to policy analysis." United States v. Gaubert, 499
U.S. 315, 325 (1991).
B.
The district court, applying these principles to the
Commissioner's decisions to deny entry of Chilean fruit and to
destroy Chilean fruit already in the United States, found that
the decisions were policy decisions protected by the
discretionary function exception to the FTCA. We agree.
Specifically, the district court concluded:
The FDA acted to protect the public from the
risk of exposure to poisonous fruit which it
learned could be coming from Chile. It had
the discretion to test the fruit and
determine whether the fruit was adulterated.
It also had the discretion to refuse entry
into the United States. The actions taken
were not violative of any regulatory or
statutory provisions. The acts taken were in
accordance with the FDA's authority to
determine whether or not a specific product
should be allowed entrance into the United
States. This conduct is grounded in the
policy of protecting the public health. The
actions were clearly in furtherance of the
FDA's statutory mission to protect the
American public from adulterated food. All
the acts involved judgment and choice and
were grounded in policy.
Balmaceda v. United States, 815 F. Supp. 823, 827 (E.D. Pa.
1992).
As the district court found, the Commissioner's
decisions were clearly "matter[s] of choice" for a person
occupying his position. As the plaintiffs readily concede, the
orders giving rise to these cases were authorized both in the
sense that the Commissioner was acting within the scope of his
authority1 and in the sense that his orders were not in conflict
with any applicable statute or regulation. In short, the
Commissioner was the public official responsible for making these
choices and he made them in a lawful manner. Accordingly, we
turn to the second prong of a discretionary function exception
analysis and consider whether the choices to be made were
susceptible to policy analysis.
In making his decisions, the Commissioner was required
to evaluate and reconcile in some manner the findings of the
Philadelphia and Cincinnati laboratories. Among other things,
this would include making a judgment about the significance of
the fact that no segment of the first two grapes had been
reserved for confirmatory testing. Moreover, the significance of
this data had to be judged in the overall context of the reports
to the embassy in Santiago, the surveillance activity that had
1
. The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-
394, provides that the Commissioner of the FDA may "cause to be
disseminated information regarding food, drugs, devices, or
cosmetics in situations involving, in the opinion of the
[Commissioner], imminent danger to the health or gross deception
of the consumer." 21 U.S.C. § 375(b); see also 21 C.F.R. §
2.5(a). FDA regulations also permit the Commissioner of the FDA
to initiate a "recall" of food in distribution channels where the
food presents a risk of injury to consumers and recall is needed
to protect the public health. 21 C.F.R. § 7.45; see 21 C.F.R. §§
7.40-7.59. Whether and when to initiate a recall in any
particular case is a judgment call for appropriate FDA officials
to make in light of the perceived "urgen[cy]" of the situation.
21 C.F.R. § 7.40(b). Thus, whether recall is warranted is
assessed in light of "the degree of seriousness of the health
hazard" and "the likelihood of occurrence of the hazard." 21
C.F.R. § 7.41(a)(4),(5).
already been conducted, the probability that contaminated grapes,
if they existed, would be consumed, and probable consequences of
any such consumption to the person poisoned, fruit consumers in
general, and to the fruit industry as a whole.
A critical part of the policymaking process was the
Commissioner's decision to make a decision in the early morning
hours of March 13, rather than to await more surveillance and
testing. If he had waited, the plaintiffs might not have
suffered the injury of which they complain. Of course, the
Commissioner did not wait and, unfortunately, that injury did
occur. The point, however, is that the decision about when the
data were sufficient to permit responsible decisionmaking
involved questions of "social, economic, and political policy."
Varig Airlines, 467 U.S. at 814. That decision was an inherent
part of the policymaking process and just as susceptible of being
skewed by the prospect of judicial second guessing as any other
part of the process. Thus, the Commissioner's decisions both
involved an element of judgment or choice, and were the kind of
choices "that the discretionary function exception was designed
to shield." Berkovitz, 486 U.S. at 536.
C.
The plaintiffs attempt to avoid application of the
discretionary function exception by looking behind the injury-
causing decision and finding fault with an aspect of the data on
which it may have been based. The gist of their complaint is
that the FDA's Philadelphia laboratory's tests were negligently
performed because the procedures used conformed neither to the
FDA's Regulatory Procedures Manual nor to good laboratory
practices generally. Thus, the plaintiffs claim, their complaint
is "based on" the behavior of the laboratory technicians and not
on the FDA Commissioner's decisions to bar fruit from Chile and
to remove it from the marketplace. The methods employed by the
laboratory technicians while testing the grapes, they argue
further, did not involve "the permissible exercise of policy
judgment," Berkovitz, 486 U.S. at 537, and accordingly were not
themselves protected by the discretionary function exception.
We acknowledge that simply as a matter of semantics, it
is possible to characterize the plaintiffs' claims as being
"based upon" the conduct of the Philadelphia laboratory
technicians. We nevertheless reject that proposed
characterization because it is inconsistent with the purpose of
the discretionary function exception.
The plaintiffs emphasize that this case comes to us on
a grant of a motion to dismiss, and that we must accept their
version of the facts as true. This is, of course, an accurate
statement of the law. But the fact that we must accept the
plaintiffs' version of the facts as true does not mean that we
must accept plaintiffs' characterization of those facts. We know
of no authority for the proposition that plaintiffs, by the
manner in which they draft their complaints, may dictate that
their claims are "based upon" one government employee's actions
and not another's. The relevant authority is to the contrary.
Cf. United States v. Neustadt, 366 U.S. 696, 703-06 & n.13 (1961)
(holding that federal law, not state law or the language of
plaintiff's complaint, governs the applicability of 28 U.S.C.
§ 2680(h)'s retention of sovereign immunity in cases where the
plaintiff's claim "arise[s] out of . . . misrepresentation");
Kosak v. United States, 465 U.S. 848, 851-62 (1984) (whether
plaintiff's claim "aros[e] in respect of . . . the detention of
any goods or merchandise by any officer of customs" for the
purposes of 28 U.S.C. § 2680(c) is an independent question of
federal law the resolution of which depends on the terms and
purposes of the FTCA).
The reality here is that the injuries of which the
plaintiffs complain were caused by the Commissioner's decisions
and, as a matter of law, their claims are therefore "based upon"
those decisions. Any other view would defeat the purpose of the
discretionary function exception. In situations like this where
the injury complained of is caused by a regulatory policy
decision, the fact of the matter is that there is no difference
in the quality or quantity of the interference occasioned by
judicial second guessing, whether the plaintiff purports to be
attacking the data base on which the policy is founded or
acknowledges outright that he or she is challenging the policy
itself.
If plaintiffs injured by regulatory policy decisions
were permitted to prosecute damage actions by challenging the
manner in which the underlying data was collected, federal
courts, of necessity, would be required to examine in detail the
decisionmaking process of the policy maker to determine what role
the challenged data played in the policymaking and what the
policymaker's decision would have been if he or she had received
the unchallenged data but not the challenged data (or had
received other data in lieu of the challenged data). Without
such an examination and all of the discovery that would
necessarily precede it, a plaintiff in the position of these
plaintiffs would be unable to prove a causal link between the
alleged negligence and the alleged injury. Yet this is precisely
the kind of inquiry that the Supreme Court sought to foreclose
when it ruled out any inquiry into an official's "subjective
intent in exercising the discretion conferred by statute or
regulation." Gaubert, 499 U.S. at 325.
The social cost of permitting the inquiries required by
the plaintiffs' theory are prohibitive. First, because the
liability-creating decision might be a policy choice at the very
highest level of a regulatory agency, the number of persons
affected by the decision is potentially staggering and the
potential liability virtually unlimited. Second, because of the
nature of the inquiry, the demands of the litigation process on
the most valuable human resources of the regulatory agency will
be extraordinary. But this is only a part of the picture.
As we have earlier suggested, every policy decision
involves an exercise of the policymaker's judgment about the
reliability, adequacy, and significance of the information
available to him or her. Because of time and expense constraints
and because experience teaches that human beings make mistakes in
technique, perception, logic, communication, and a myriad of
other areas, no decisionmaker can have one hundred percent
confidence in the information before him or her at any given
point in time. Each responsible decision therefore necessarily
reflects the decisionmaker's judgment that it is more desirable
to make a decision based on the currently available information
than to wait for more complete data or more confirmation of the
existing data.
When one appreciates that virtually all policymaking
involves judgments about the reliability of the available data,
it is not difficult to predict the impact upon policymakers that
would result from the fear of virtually unlimited liability and
the prospect of virtually interminable litigation associated with
the plaintiffs' theory of liability. The "safest" course from
the decisionmaker's personal perspective will be to wait for more
conclusive data. But that course can carry a very high social
cost. This is graphically illustrated by asking what will happen
the next time a Commissioner of the FDA has to make decisions
like those here involved if the current Commissioner is exposed
to this litigation and the United States government is found
liable for all the losses here alleged. We believe the
discretionary function exception was intended to make sure every
Commissioner's judgment will not be skewed by such
considerations.
D.
The plaintiffs rely principally on two Supreme Court
decisions: Berkovitz v. United States, 486 U.S. 531 (1988), and
Indian Towing Co. v. United States, 350 U.S. 61 (1955). In
Berkovitz, the plaintiff had contracted polio from a dose of
polio vaccine. The decisions alleged to have caused the
plaintiff's injury were a decision to license the manufacture of
the lot from which that plaintiff's dose of vaccine came and the
decision to release that lot for use by the public. The Supreme
Court held that the discretionary function exception would not
protect those decisions if they were contrary to a previously-
established policy which left no discretion to the
decisionmakers. Thus, where the policy previously established by
statute and regulation deprived the agency of the authority to
license a manufacturer without insisting that it submit specified
data to the agency, a decision to license without requiring that
submission was not a protected exercise of a discretionary
function. Similarly, if a previously determined policy
established objective scientific criteria for release of a lot
and deprived the agency of discretion to release a lot not
meeting those standards, damage liability could be imposed for a
decision to release a lot not meeting those criteria.
The cases before us, unlike Berkovitz, are not cases in
which the injury-causing decision was contrary to a previously
established policy which deprived the decisionmaker of
discretion. The policy previously established by Congress and
the FDA called for the Commissioner to make a discretionary
decision on whether the public health required a quarantine of
Chilean fruit. The plaintiffs have pointed to no statute or
regulation that the Commissioner's decision violated. The best
they can do is reach behind the Commissioner's decision and point
to a laboratory manual that allegedly called for the retention of
a portion of the first two perforated, white-ringed grapes. But
clearly the laboratory manual was not intended to deprive the
Commissioner of the discretion to make the decision that he made
on March 13 based on the information available to him at the
time.
In Indian Towing, the plaintiff had been injured as a
result of the negligent operation of a lighthouse by the Coast
Guard. The Court held that although the Coast Guard had no
obligation to undertake lighthouse service, once it exercised its
discretion to do so, it was obliged to exercise due care. The
Court has recently described the basis for decision in Indian
Towing as follows:
The United States was held liable . . .
because making sure the light was operational
"did not involve any permissible exercise of
policy judgment." . . . Indeed, the
Government did not even claim the benefit of
the exception but unsuccessfully urged that
maintaining the light was a governmental
function for which it could not be liable.
United States v. Gaubert, 499 U.S. at 326.
The plaintiffs argue that just as the government, after
making the discretionary decision to provide lighthouse services,
could not thereafter provide those services negligently, so too
the government here, after making a discretionary decision to
test incoming Chilean fruit, could not thereafter fail to
exercise care in doing the testing. Besides the fact that the
discretionary function exception was not at issue in Indian
Towing, the plaintiffs miss the critical distinction between that
case and this. The plaintiff in Indian Towing was injured by the
negligently performed lighthouse services and his case
accordingly required an inquiry only into how those services were
delivered, not into the exercise of policymaking discretion.
Here the plaintiffs would not have been injured but for the
decisions of the Commissioner and litigation of their cases will
require extensive inquiry into the process by which those
decisions were made. Once a policy decision has been made
negligence in its non-discretionary execution can give rise to
FTCA liability without jeopardizing the interests the
discretionary function exception is designed to protect. Those
interests would be jeopardized, however, by allowing these
plaintiffs to go forward. Cf. Patterson v. United States, 881
F.2d 127, 128 (4th Cir. 1989) (in banc) (holding that plaintiffs
may not base claim on the non-discretionary action of an Office
of Surface Mining ("OSM") inspector because that action was
followed by a decision by the OSM not to take further action).
IV.
For the foregoing reasons, we will affirm the order of
the district court dismissing the complaints in these cases.
Fisher Bros. Sales, Inc. v. United States
Nos. 93-1182, 93-1205; 93-1206, 93-1207,
93-1208, and 93-1209
ROTH, Circuit Judge, Dissenting. Judges Becker, Hutchinson,
Scirica, Lewis and McKee join in the dissent.
I respectfully dissent from the conclusion reached by
the majority. I cannot accept cloaking a decision, which results
from negligently performed laboratory work, with the
discretionary function exception under circumstances in which the
decision maker would expect, first, that the laboratory work will
be performed under scientifically recognized and accepted
techniques and, second, that further actions by the decision
maker will be governed by the results of that testing.
Because I conclude that such circumstances have been
alleged by the plaintiffs in their complaint, I find it improper
for the district court to have dismissed the complaint on the
basis of the discretionary function exception.
In ruling on defendants' motions to dismiss, the
district court focused on the conduct of the FDA as a whole. It
conducted an analysis of the statutes and regulations governing
the FDA, and concluded that
[u]nder this authorization, FDA had the discretion to
act during the Chilean grape crisis. The FDA acted to
protect the public from the risk of exposure to
poisonous fruit which it learned could be coming from
Chile. It had the discretion to test the fruit and
determine whether the fruit was adulterated. It also
had the discretion to refuse entry into the United
States. The actions taken were not violative of any
regulatory or statutory provisions. The acts taken
were in accordance with the FDA's authority to
determine whether or not a specific product should be
allowed entrance into the United States. This conduct
is grounded in the policy of protecting the public
health. The actions were clearly in furtherance of the
FDA's statutory mission to protect the American public
from adulterated food. All the acts involved judgment
and choice and were grounded in policy.
Balmaceda v. United States, 815 F. Supp. 823, 827 (E.D. Pa.
1992). The district court declined to "consider alleged
violations of a laboratory procedures manual because this
argument simply is the basis of the plaintiffs' claim of
negligence." Id. at 826.
I believe, however, that, in analyzing the actions
taken here by the FDA, one must consider carefully whether it is
implicit in the order for tests to be performed that the tests
are both scientifically accepted and reliable. If it is
implicit, I would not extend the discretionary function exception
to actions which predictably follow from the test results. The
discretionary function exception should not protect an official's
decisions, brought about by the results of accepted and reliable
tests, just as it will not protect an official's release of a
noncomplying lot of polio vaccine. See Berkovitz by Berkovitz v.
United States, 486 U.S. 531 (1988).
Moreover, if actions are taken as a result of accepted
and reliable testing, they may no longer be the product of
independent judgment. The determination to order testing
involved the element of choice. However, it is not clear from
the record before us whether any significant discretion to choose
remained after the decision to test or whether a positive test
result would implicate a concomitant decision to withdraw the
fruit from the market. If plaintiff can prove the existence of
such inevitability, the discretionary function exception may no
longer be implicated. Accord Westfall v. Erwin, 484 U.S. 292,
296-97 (1988) ("When an official's conduct is not the product of
independent judgment, the threat of liability cannot
detrimentally inhibit that conduct.").
I do not question the majority's conclusion that the
Commissioner's action in ordering the testing was discretionary.
I believe, however, that the majority's view of the case
misapprehends the precise nature of plaintiffs' claims under the
FTCA. Plaintiffs do not argue that the initial decision to test
was not a protected discretionary function. What plaintiffs do
argue is that the decision to withdraw Chilean fruit from the
market was proximately caused by the positive test results.
Plaintiffs contend that the tests performed by the FDA's
Philadelphia laboratory were negligently performed in that the
procedures used conformed neither to the FDA's Regulatory
Procedures Manual nor to good laboratory practices. Their
complaints allege that, "as a result of the negligent analysis
performed and reported by the Philadelphia laboratory, the FDA
decided to take three actions: 1) refusing entry into the United
States of all Chilean fruit; 2) forcing a market withdrawal of
all Chilean fruit already in distribution channels; and 3)
issuing a press release informing consumers to refrain from
eating Chilean fruit." Joint Appendix at 169. Thus, plaintiffs
do not challenge the FDA Commissioner's decisions to test fruit
from Chile or, based upon properly performed testing, to take
action to remove all Chilean fruit from the marketplace.
Because we are considering a motion to dismiss, we must
accept as true all of the factual allegations in the complaints.
Berkovitz, 486 U.S. at 540, 108 S. Ct. at 1961. For present
purposes, there was no cyanide in the grapes, the FDA technicians
were negligent in reaching the conclusion that there was cyanide
contamination, and this negligence was the cause-in-fact and
proximate cause of the damage to plaintiffs. Moreover, there is
no contention here that the actions of the laboratory
technicians, in testing the grapes, involved the permissible
exercise of policy judgment. The technicians are not protected
by the exception.
In Berkovitz, the Supreme Court stated that "the
discretionary function exception will not apply when a federal
statute, regulation, or policy specifically prescribes a course
of action for an employee to follow. In this event, the employee
has no rightful option but to adhere to the directive." Id. at
536, 108 S. Ct. at 1958-59. In this case, the plaintiffs allege
that the Regulatory Procedures Manual established procedures to
be followed for tests such as those performed at the Philadelphia
lab and provided that any modification to those procedures be
reduced to writing. Plaintiffs contend that the lab technicians
violated the manual's specific instructions in failing to reserve
portions of the two punctured grapes for confirmatory testing and
in failing to make contemporaneous records of their observations.
The majority speculates that, after receiving the test
results, the Commissioner was required to make a judgment about
the conflicting findings of the Philadelphia and Cincinnati
laboratories and to judge the significance of the Philadelphia
laboratory's failure to follow established procedures. See page
[typescript at 13-14]. These contentions, however, do not appear
in the complaint. In the record before the district court on the
motion to dismiss, such speculation would be inappropriate.
Plaintiffs' allegations do, however, permit the conclusion that
the decision to withdraw Chilean fruit from the market followed
as a result of the negligent testing.
I find that such an allegation satisfies the pleading
requirements of Berkovitz. Moreover, in Berkovitz, which
concerned, inter alia, a claim that the Division of Biologic
Standards (DBS) of the National Institutes of Health had
wrongfully licensed the production of a polio vaccine, the Court
made the following observation:
If petitioners' claim is that the DBS made a
determination that [the vaccine] complied with
regulatory standards, but that the determination was
incorrect, ... the question turns on whether the manner
and method of determining compliance with the safety
standards at issue involve agency judgment of the kind
protected by the discretionary function exception.
Petitioners contend that the determination involves the
application of objective scientific standards, ...
whereas the Government asserts that the determination
incorporates considerable "policy judgment" ... . In
making these assertions, the parties have framed the
issue appropriately; application of the discretionary
function exception to the claim that the determination
of compliance was incorrect hinges on whether the
agency officials making that determination permissibly
exercise policy choice.
Id. at 544-45, 108 S. Ct. at 1963 (footnote omitted). As this
passage makes clear, judgment guided purely by scientific or
other objective principles does not involve discretion for
purposes of the discretionary function exception. See also
Griffin v. United States, 500 F.2d 1059, 1066 (3d Cir. 1974)
("Where the conduct of Government employees in implementing
agency regulations requires only performance of scientific
evaluation and not the formulation of policy, we do not believe
that the conduct is immunized from judicial review as a
'discretionary function.'"); Ayala v. United States, 980 F.2d
1342, 1349-50 (10th Cir. 1992) ("We fail to see how the
determination in this case can be labeled a policy decision. The
choice was governed, as plaintiffs contend, by 'objective
principles of electrical engineering.'").
In Berkovitz, the specifications for licensing vaccine
or releasing lots of vaccine had been incorporated in procedures
and regulations. In the present case, the Commissioner did not
have specific procedures established for handling fruit to
determine if it had been contaminated. Nevertheless, the
plaintiffs allege that the technicians' sole purpose in testing
the suspect grapes was to determine whether they had been
injected with cyanide. Appellants claim that the technicians
were provided with precise, objective, scientific standards to
use in the testing. Any decisions made in the course of testing
concerning what portions of the grapes to test or how to conduct
the tests should have been made solely with reference to these
principles of science. I am not persuaded that this situation is
significantly different from that in Berkovitz.
Social, economic, and political factors--those involved
in the kinds of decisions Congress intended to shield from
liability--had no place in the decision making process once the
Commissioner decided to order testing. Consequently, if the
district court were to adjudicate this case as it is alleged in
the complaint by plaintiffs, the court would not be "second-
guessing" a policy-based decision. Instead, by measuring the
technicians' conduct against the procedures they were to have
followed and principles of good laboratory practice, it would be
undertaking the sort of inquiry that courts are called on to make
all the time.
Moreover, I do not find it significant that the conduct
challenged here was embedded within the clearly discretionary
consideration of whether to test incoming fruit or to remove all
Chilean fruit from the market. With respect to the decision to
test fruit in the first place, I am guided by the body of law
"holding that once the government makes a policy decision
protected by the discretionary function exception, it must
proceed with due care in the implementation of that decision."
Caplan v. United States, 877 F.2d 1314, 1316 (6th Cir. 1989).
This line of cases has grown out of the Supreme Court's decision
in Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.
Ct. 122, 100 L. Ed. 48 (1955), which concerned an action against
the Coast Guard for negligent operation of a lighthouse. The
Court stated:
The Coast Guard need not undertake the lighthouse
service. But once it exercised its discretion to
operate a light on Chandeleur Island and engendered
reliance on the guidance afforded by the light, it was
obligated to use due care to make certain that the
light was kept in good working order; and, if the light
did become extinguished, then the Coast Guard was
further obligated to use due care to discover this fact
and to repair the light or give warning that it was not
functioning. If the Coast Guard failed in its duty and
damage was thereby caused to petitioners, the United
States is liable under the Tort Claims Act.
Id. at 69, 76 S. Ct. at 126-27. In this case, once the FDA
exercised its discretion to test incoming Chilean fruit, it
incurred the obligation to use due care in doing so.
Nor am I led to a different result by the fact that the
alleged negligence in the laboratory was followed by a decision
that was, at the very least, a "but for" cause of the harm to
plaintiffs.2 I am not persuaded by the majority's contention
2
. While I suspect that plaintiffs may encounter
difficulty in attempting to prove that the alleged negligence of
the lab technicians, rather than the Commissioner's decision, was
the proximate cause of their injuries, I cannot allow that
perception to color my analysis here. Instead, I must accept the
allegations in plaintiffs' complaints as true. Those allegations
that the possibility of liability will have an undesirable effect
on policymakers who find themselves in a position analogous to
that of the FDA Commissioner in this case. Because there is an
obligation to use due care in operating a lighthouse or licensing
a polio vaccine or testing a grape for cyanide, decisions arising
from the execution of that duty must be based upon the proper
performance of that duty. The desired result is that the purely
technical aspects of any such decision will be properly
(..continued)
are directed at harm allegedly caused to plaintiffs by the
negligent testing. The district court may appropriately consider
causation in subsequent stages of these proceedings, such as in
deciding whether to grant a motion for summary judgment. See
Appley Brothers v. United States, 7 F.3d 720, 725 and n.2 (8th
Cir. 1993) (Reversing district court's dismissal of suit,
pursuant to discretionary function exception, on ground that
plaintiffs based their claim on Department of Agriculture's
negligent inspection of warehouse rather than on USDA's decision
whether or not to revoke warehouse license; as to the issue of
causation, the court of appeals held that the "question of
whether appellants failed to state a cause of action was not
before the district court, and is not an issue in this appeal.").
I believe, however, that the factor of causation has no place in
my consideration of whether the discretionary function exception
applies to plaintiffs' allegations as they are presently
expressed in the complaint.
conducted. If there is a chilling effect, as the majority fears
there will be, the chill must be directed to ensure the non-
negligent operation of the lighthouse or the non-negligent
licensing of the polio vaccine or the non-negligent examination
of the grapes. Just as the requirements for licensing a polio
vaccine are discretionary but the steps to determine that a
particular batch of vaccine is properly licensable are not
discretionary, so too the removal from the market of cyanide-
contaminated grapes may be discretionary but the proper
performance of established tests to detect the contamination is
not.
In effect, I see no reason to believe that a finding of
liability against the government in this case would have
consequences of a different nature or to a greater extent than a
finding of liability against the government in either Indian
Towing or Berkovitz. When an official makes a policy decision--
to build a lighthouse or to license a vaccine or to remove fruit
from the market--the possibility of tort liability may factor
into the analysis. However, the focus of that consideration
should be the ability of the government to perform the tasks
which follow from the decision to implement the action. If the
government agency cannot reasonably expect to be able non-
negligently to operate a lighthouse or to license a vaccine or to
test a grape for cyanide, this factor should be considered in
instituting the line of action in the first place. If testing
grapes for cyanide were difficult or the results of such testing
not reliable, the Commissioner might better exercise his
discretion by withdrawing grapes from the market without having
them tested. However, once the decision was made to do the
testing, the discretionary function exception should not protect
the government from the consequences of the negligence of the
laboratory technicians in performing their routine duties.
For the above reasons, I would reverse the dismissal of
this case by the district court and would remand it for further
proceedings.