Whisnant v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORRIN WHISNANT, individually,  No. 04-35340
Plaintiff-Appellant,
v.  D.C. No.
CV-03-05121-FDB
UNITED STATES OF AMERICA,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
February 18, 2005—Seattle, Washington
Filed March 11, 2005
Before: Betty B. Fletcher, Ronald M. Gould, Circuit Judges,
and Samuel P. King, District Judge.*
Opinion by Judge B. Fletcher
*Honorable Samuel P. King, Senior United States District Judge for the
District of Hawaii, sitting by designation.
3211
WHISNANT v. UNITED STATES 3213
COUNSEL
Darrell L. Cochran, Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim, Tacoma, Washington, for the plaintiff-
appellant. Also on the briefs was Lincoln Beauregard.
3214 WHISNANT v. UNITED STATES
Quyhn Vu Bain, Department of Justice, Washington, D.C., for
the defendant-appellee. Also on the briefs was Kirsten
Wilkerson.
OPINION
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 commis-
sary 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 jurisdic-
tion. We hold that the government’s alleged failure to main-
tain 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 juris-
diction 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 Ban-
WHISNANT v. UNITED STATES 3215
gor 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 commis-
sary became ill; symptoms included seizures, nausea and diz-
ziness, irritation to eyes and blurred vision, and feeling
“tingly” and short of breath. Finally, tests conducted in Octo-
ber 2000 revealed that toxic, carcinogenic molds were colo-
nizing 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, Whis-
nant 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 negli-
gence, 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 dis-
trict courts to hear tort actions against the federal government
3216 WHISNANT v. UNITED STATES
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 custom-
ers to work and shop at the commissary in spite of health haz-
ards 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 govern-
ment’s actions to have been discretionary because DeCA reg-
ulations 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 indepen-
dent contractor was a decision grounded in policy consider-
ations. 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 irrele-
vant” 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
WHISNANT v. UNITED STATES 3217
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).
[1] 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 (1991); Berkovitz v. United
States, 486 U.S. 531, 536-37 (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 Con-
gress 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).
[2] 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 sec-
ond Gaubert/Berkovitz prong. We have recently remarked
3218 WHISNANT v. UNITED STATES
upon the difficulty of charting a clear path through the weav-
ing lines of precedent regarding what decisions are suscepti-
ble to social, economic, or political policy analysis. See
O’Toole, 295 F.3d at 1035. Government actions can be classi-
fied 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 regu-
lation and oversight of a bank. Id. (citing Gaubert, 499 U.S.
at 325 n.7, 332-34, 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. Second, actions that
are regulatory or “uniquely governmental” in nature are not
automatically covered by the exception by virtue of that des-
ignation. See Berkovitz, 486 U.S. at 538-39.
[3] A review of circuit precedent reveals two trends in the
law that bear particularly on Whisnant’s case. First, a domi-
nant 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
1
The design/implementation distinction should be differentiated from
the operational/planning distinction rejected in Gaubert: the former con-
cerns the nature of the decision, while the latter concerns the identity of
the decisionmaker. Cf. Gaubert, 499 U.S. at 325 (“It is the nature of the
conduct, rather than the status of the actor, that governs whether the dis-
cretionary function exception applies in a given case.” (citation, internal
quotation marks, and alteration omitted)). There is nothing to prevent a
low-level government official from selecting a course of action or a
higher-level official from implementing one.
WHISNANT v. UNITED STATES 3219
of scientific and professional judgment — particularly judg-
ments concerning safety — are rarely considered to be sus-
ceptible to social, economic, or political policy.
Thus, for example, in a suit alleging government negli-
gence in the design and maintenance of a national park road,
we held that designing the road without guardrails was a
choice grounded in policy considerations and was therefore
shielded under the discretionary function exception, but main-
taining the road was a safety responsibility not susceptible to
policy analysis. See ARA Leisure Servs. v. United States, 831
F.2d 193, 195 (9th Cir. 1987). Similarly, in a suit alleging
government negligence in the design and construction of an
irrigation canal, we held that the decision not to line the canal
with concrete was susceptible to policy analysis, but the fail-
ure to remove unsuitable materials during construction was
not. See Kennewick Irrigation Dist. v. United States, 880 F.2d
1018, 1027-28, 1031 (9th Cir. 1989). In three cases concern-
ing injuries resulting from the government’s failure to post
warnings concerning hazards present in national parks, we
held that the government’s decision not to post signs warning
of obvious dangers such as venturing off marked trails to walk
next to the face of a waterfall, and the government’s decision
to use brochures rather than posted signs to warn hikers of the
dangers of unmaintained trails, involved the exercise of policy
judgment of the type Congress meant to shield from liability,
Valdez v. United States, 56 F.3d 1177, 1178, 1180 (9th Cir.
1995); Childers v. United States, 40 F.3d 973, 976 (9th Cir.
1994), but that such policy judgment was absent when the
government simply failed to warn of the danger to barefoot
visitors of hot coals on a park beach, Summers v. United
States, 905 F.2d 1212, 1215 (9th Cir. 1990). And in an action
for the death of a prospective logger “trying out” for a job
with a government contractor at a logging site under the man-
agement of a government agency, we held that while the gov-
ernment’s authorization of the contract was protected under
the discretionary function exception, the government’s failure
3220 WHISNANT v. UNITED STATES
to monitor and ensure safety at the work site was not. Bear
Medicine, 241 F.3d at 1212, 1214, 1217.
[4] All of these cases comport with the Supreme Court’s
pronouncement in Indian Towing Co. v. United States, 350
U.S. 61 (1955), in which the Court held that the government
could not escape liability for negligent maintenance of a light-
house:
The Coast Guard need not undertake the lighthouse
service. But once it exercised its discretion to oper-
ate a 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 [Federal] Tort Claims Act.
Id. at 69.2 As we have summarized: “The decision to adopt
safety precautions may be based in policy considerations, but
the implementation of those precautions is not. . . . [S]afety
measures, once undertaken, cannot be shortchanged in the
name of policy.” Bear Medicine, 241 F.3d at 1215, 1216-17.3
2
Although the analysis in Indian Towing is not addressed to the discre-
tionary function exception, see 350 U.S. at 64, subsequent Supreme Court
precedent has treated Indian Towing as relevant authority in this area, see
Berkovitz, 486 U.S. at 538 n.3 (“The decision in Indian Towing . . . illumi-
nates the appropriate scope of the discretionary function exception.”), and
our court has followed suit, see, e.g., O’Toole, 295 F.3d at 1036; Alfrey
v. United States, 276 F.3d 557, 567 (9th Cir. 2002); Nat’l Union Fire Ins.
v. United States, 115 F.3d 1415, 1419 (9th Cir. 1997).
3
Our case law reveals one exception — not relevant here — to the
design/implementation distinction: The implementation of a government
policy is shielded where the implementation itself implicates policy con-
cerns, such as where government officials must consider competing fire-
WHISNANT v. UNITED STATES 3221
[5] Under these principles, Whisnant’s suit is not barred by
the discretionary function exception. Whisnant does not allege
that the government was negligent in designing its safety
inspection procedures; rather, he charges that the government
was negligent in following through on those procedures to
safeguard the health of employees and customers of the Ban-
gor commissary. Like the government’s duties to maintain its
roads in safe condition, to ensure the use of suitable materials
in its building projects, and to monitor the safety of its log-
ging sites, the government’s duty to maintain its grocery store
as a safe and healthy environment for employees and custom-
ers is not a policy choice of the type the discretionary function
exception shields. Cleaning up mold involves professional
and scientific judgment, not decisions of social, economic, or
political policy. “Indeed, the crux of our holdings on this issue
is that a failure to adhere to accepted professional standards
is not susceptible to a policy analysis.” Bear Medicine, 241
F.3d at 1217 (internal quotation marks omitted); see also In
re Glacier Bay, 71 F.3d 1447, 1453 (9th Cir. 1995)
(“Decisions involving the application of objective scientific
standards are not insulated by the discretionary function
exception because they do not involve the weighing of eco-
nomic, political and social policy.” (quoting Kennewick, 880
F.2d at 1030) (alterations omitted)). Because removing an
obvious health hazard is a matter of safety and not policy, the
government’s alleged failure to control the accumulation of
toxic mold in the Bangor commissary cannot be protected
under the discretionary function exception.
The government argues that implementation of the DeCA
regulations regarding health and safety required employees
fighter safety and public safety considerations in deciding how to fight a
forest fire, see Miller v. United States, 163 F.3d 591, 595-96 (9th Cir.
1998), balance prison safety and inmate privacy considerations in deciding
how to search a prisoner’s cell in response to a reported threat of violence,
see Alfrey, 276 F.3d at 565, or weigh various regulatory objectives in
deciding whether to certify a new aircraft design, see GATX/Airlog Co. v.
United States, 286 F.3d 1168, 1175-77 (9th Cir. 2002).
3222 WHISNANT v. UNITED STATES
“to balance the agency’s goal of occupational safety against
such resource constraints as costs and funding.” In addressing
government negligence in the implementation of safety pre-
cautions, we have several times rejected this precise argu-
ment. The reasoning in ARA Leisure is representative:
[T]he fact that Park Service maintenance personnel
were required to work within a budget does not
make their failure to maintain [a park road] a discre-
tionary function for purposes of the FTCA. . . . To
hold otherwise would permit the discretionary func-
tion exception to all but swallow the Federal Tort
Claims Act. Budgetary constraints underlie virtually
all governmental activity.
831 F.2d at 195-96; see also Bear Medicine, 241 F.3d at
1216-17; Kennewick, 880 F.2d at 1031.
More recently, in O’Toole v. United States, we held that the
discretionary function exception did not apply to a claim for
private property damage resulting from the government’s fail-
ure to maintain an irrigation ditch on its own property. See
295 F.3d at 1037. Elaborating on ARA Leisure, we explained:
The danger that the discretionary function exception
will swallow the FTCA is especially great where the
government takes on the role of a private landowner.
Every slip and fall, every failure to warn, every
inspection and maintenance decision can be couched
in terms of policy choices based on allocation of lim-
ited resources. As we have noted before in the dis-
cretionary function exception context, “[b]udgetary
constraints underlie virtually all governmental activi-
ty.” Were we to view inadequate funding alone as
sufficient to garner the protection of the discretion-
ary function exception, we would read the rule too
narrowly and the exception too broadly. Instead, in
order to effectuate Congress’s intent to compensate
WHISNANT v. UNITED STATES 3223
individuals harmed by government negligence, the
FTCA, as a remedial statute, should be construed lib-
erally, and its exceptions should be read narrowly.
Id. (quoting ARA Leisure, 831 F.2d at 196) (additional cita-
tions omitted) (emphasis added).
Like the plaintiffs in O’Toole, Whisnant is alleging that
government negligence in the maintenance of its own prop-
erty caused his injuries. Following O’Toole, then, we decline
to permit the government to use the mere presence of budget-
ary concerns to shield allegedly negligent conduct from suit
under the FTCA. “To hold otherwise would permit the discre-
tionary function exception to all but swallow the Federal Tort
Claims Act.” ARA Leisure, 831 F.2d at 196.
The government urges the applicability of United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Air-
lines), 467 U.S. 797 (1984), in which the Supreme Court held
that the discretionary function exception barred wrongful
death and property damage suits alleging government negli-
gence in certifying an airplane that turned out to be defective.
The Court concluded that both the Federal Aviation Adminis-
tration’s choice of a system for reviewing planes for compli-
ance with safety standards and the implementation of that
system involved social, economic and political policy judg-
ments. See id. at 799-800, 819-20.4
Varig Airlines is distinguishable from Whisnant’s case. The
Supreme Court’s holding with respect to the FAA’s choice of
an inspection system is clearly not on point: as we have
observed, Whisnant is not alleging that DeCA was negligent
in designing its inspection system. The second portion of the
Supreme Court’s holding in Varig Airlines does not control
4
Varig Airlines is reflected in the line of Ninth Circuit cases developing
what we have identified as the one exception to the design/implementation
distinction. See supra note 3.
3224 WHISNANT v. UNITED STATES
here either. Although the Court held that the implementation
as well as the design of the FAA’s airplane inspection system
was protected under the discretionary function exception, the
Court explained that “FAA employees who conducted com-
pliance reviews of the aircraft involved in this case were spe-
cifically empowered to make policy judgments regarding the
degree of confidence that might reasonably be placed in a
given manufacturer, the need to maximize compliance with
FAA regulations, and the efficient allocation of agency
resources.” Id. at 820 (emphasis added). Complex decisions
about confidence in corporations, maximizing compliance
with regulations, and allocation of limited resources among
competing safety-promoting tasks hardly resemble the type of
decision Whisnant attributes to DeCA safety personnel —
which, at best, reflects exactly the type of budget-driven
shirking of safe maintenance to which the ARA Leisure-
O’Toole line of cases emphatically denies protection under
the discretionary function exception, and at worst constitutes
simple carelessness.
[6] In applying the discretionary function exception, the
district court treated Whisnant’s claim as one of government
negligence in the engagement of Johnson Controls to perform
maintenance work at the commissary. But this is not what
Whisnant alleged. Rather, according to Whisnant’s complaint,
the government ignored reports and complaints describing the
unsafe condition of the meat department, knew or should have
known of the dangerous condition, and intentionally or reck-
lessly or both intentionally and recklessly permitted employ-
ees and customers to work and shop at the commissary in
spite of the health hazards. The district court brushed these
claims aside, explaining Whisnant’s “allegations of negli-
gence are irrelevant” to the jurisdictional question. While the
district court is correct to the extent that the question of
whether the government was negligent is irrelevant to the
applicability of the discretionary function exception, see Gla-
cier Bay, 71 F.3d at 1451, the question of how the government
is alleged to have been negligent is critical. If Whisnant were
WHISNANT v. UNITED STATES 3225
claiming that the government was negligent in electing to
employ contractors rather than doing the work itself, or in
designing its safety regulations, then his claim would most
likely be barred; instead, he is claiming that the government
negligently ignored health hazards that were called to its
attention, and so his claim is not barred. Because it failed to
recognize the import of this distinction, the district court mis-
characterized Whisnant’s allegations and thereby erred in dis-
missing his action.5
III. CONCLUSION
While the government has discretion to decide how to carry
out its responsibility to maintain safe and healthy premises, it
does not have discretion to abdicate its responsibility in this
regard. When it does so, the discretionary function exception
cannot shield the government from FTCA liability for its neg-
ligent conduct.
In this case, Whisnant has alleged negligence in the imple-
mentation, rather than the design, of government safety regu-
lations, and the governmental decisions Whisnant claims were
negligent concerned technical and professional judgments
about safety rather than broad questions of social, economic,
or political policy. Therefore, the discretionary function
exception to the FTCA does not bar Whisnant’s suit.
5
The confusion apparently caused by the use of an independent contrac-
tor in this case seems to have led the district court to include an extraneous
reference in its holding. The court’s dismissal of Whisnant’s suit con-
cludes: “This cause of action is barred by the discretionary function and
contractor exceptions to the waiver of sovereign immunity under the
FTCA . . . .” (emphasis added). However, a review of the district court’s
decision in this case indicates that the independent contractor exception to
the FTCA is not a ground upon which the district court actually relied: the
district court’s ruling is devoid of analysis of this exception. On appeal,
neither party discussed the issue at all. We must conclude that the district
court’s reference to this additional basis for dismissal was inadvertent and
does not reflect the basis for the court’s decision.
3226 WHISNANT v. UNITED STATES
We reverse the district court’s dismissal of the action and
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.