No. 98-1805
In the Supreme Court of the United States
GAIL MERCHANT IRVING, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK STERN
PETER R. MAIER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the sua sponte grant of rehearing en banc exceeded the authority
of the court of appeals.
2. Whether the court of appeals erred in concluding that the actions of
Occupational Safety and Health Administration inspectors in conducting workplace
safety inspections were within the discretionary function exception to the
Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680 (1994 & Supp.
III 1997).
3. Whether the court of appeals abused its discretion in considering sua
sponte whether petitioner's claims were barred by the discretionary function
exception, when the government had not pressed the issue on appeal from
the final judgment.
In the Supreme Court of the United States
No. 98-1805
GAIL MERCHANT IRVING, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals sitting en banc (Pet. App. A1-A67) is
reported at 162 F.3d 154. The opinion of the district court (Pet. App. E1-E60)
is reported at 942 F. Supp. 1483.
JURISDICTION
The judgment of the court of appeals sitting en banc was entered on December
18, 1998. A petition for rehearing was denied on February 9, 1999 (Pet.
App. D1-D2). The petition for a writ of certiorari was filed on May 7, 1999.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. In 1981, petitioner filed this suit in the United States District Court
for the District of New Hampshire under the Federal Tort Claims Act (FTCA),
28 U.S.C. 1346(b), 2671-2680 (1994 & Supp. III 1997), alleging that
negligence by Occupational Safety and Health Administration (OSHA) inspectors
in performing plant safety inspections proximately caused her injuries in
a workplace accident. Pet. App. E1-E2. Specifically, petitioner alleged
that, during general administrative inspections conducted in 1975 and 1978,
OSHA compliance officers negligently failed to note and cite an unguarded
condition of a die-out machine located near her work station. According
to the complaint, these failures proximately caused petitioner's injuries
because documentation and citation of this condition would have caused her
employer to take corrective action. Ibid.
The government moved to dismiss the suit on the ground that the discretionary
function exception to the FTCA, 28 U.S.C. 2680(a), barred petitioner's claim.
Although the district court initially denied the motion and conducted a
trial, it concluded after trial that the discretionary function exception
barred the claim and dismissed the action for want of subject-matter jurisdiction.
See Pet. App. C10-C11. On appeal, the court of appeals vacated the order
of dismissal and directed the district court to reconsider the applicability
of the discretionary function exception in light of this Court's decision
in Berkovitz v. United States, 486 U.S. 531 (1988). See Irving v. United
States, 867 F.2d 606 (1st Cir. 1988) (Table).
On remand, the district court concluded that Berkovitz did not alter the
result and that the action was barred by the discretionary function exception.
See Pet. App. C11. On appeal, the court of appeals again vacated the judgment
and remanded the action for a further determination of the applicability
of the discretionary function exception, concluding that further analysis
and factfinding were necessary to determine what OSHA policy actually required
of OSHA compliance officers engaged in inspection activities. See id. at
G1-G15. The district court, however, held on remand that the government
was not negligent, and accordingly entered judgment in its favor. The district
court did not address the discretionary function exception. See id. at C12.
Petitioner appealed, and the court of appeals reversed the district court's
negligence finding and vacated the judgment. With respect to the discretionary
function exception, which the government had raised as an alternative ground
for affirming the judgment, the court held that its prior decision prevented
it from passing on that issue without further factfinding. The court again
remanded the case. Id. at F1-F13.
On remand, the district court concluded that the discretionary function
exception did not apply. Finding that the OSHA inspectors had been negligent
in not examining the die-out machine or citing it to the employer as a safety
violation, the district court held the government liable for the accident.
Pet. App. E1-E53. The government appealed, arguing principally that the
predicate for liability under the FTCA had not been satisfied because a
private person would not be liable to plaintiff under state law in the same
circumstances. Gov't C.A. Br. 6-7. The government stated in a footnote that
it did "not appeal the [district] court's finding regarding the application
of the discretionary function exception," given that the finding was
"limited to the specific factual circumstances [that the court] found
existed during the time and [in the] area" at issue. Id. at 4 n.1.
On April 8, 1998, a divided panel of the court of appeals affirmed the judgment.
Pet. App. C1-C4.
2. On June 8, 1998, the full court of appeals, acting sua sponte, withdrew
the panel opinion and ordered rehearing en banc (see Pet. App. B1) "to
review the * * * question of whether the FTCA's discretionary function exception
foreclosed the plaintiff's negligent inspection claim." Id. at A2.
On rehearing en banc, the court first addressed and rejected petitioner's
argument that, because the government had not asked the panel to reverse
the district court's refusal to apply the discretionary function exception,
and in fact had conceded that issue in the district court, the en banc court
was precluded from considering the issue. The government, the court pointed
out, did not concede the discretionary function defense before the district
court; to the contrary, it had "persistently raised" the defense
since the beginning of the case. Id. at A7-A8. Observing that two earlier
panels of the court "had squarely rebuffed the * * * discretionary
function defense," the court found that "strong arguments"
existed for not applying forfeiture, because the government had "good
reason" not to raise the defense yet again on appeal. Ibid. The court
then resolved the issue by concluding that, at any rate, the discretionary
function exception "implicates the federal courts' subject matter jurisdiction,"
a question that the courts are duty-bound to examine and that neither party
can waive or concede. Id. at A8-A10.
The court went on to address the merits of the discretionary function defense.
Citing United States v. Gaubert, 499 U.S. 315 (1991), the court stated that
the discretionary function exception applies only where two conditions are
satisfied: (1) the conduct at issue must be discretionary; and (2) the exercise
of discretion must involve or be susceptible to policy-related judgments.
Pet. App. A12. The court found both conditions satisfied. As to the first,
the court found that the relevant portion of the Occupational Safety and
Health Act "places virtually no constraint on the Secretary's discretion
to conduct * * * inspections in any way that she sees fit" (id. at
A13); that "the legislative rules governing the authority of compliance
officers mimic the statute and grant these officials broad discretion over
the scope, manner, and detail of general administrative inspections"
(id. at A14); and, consequently, that general administrative inspections
constitute discretionary conduct within the meaning of the FTCA. As to the
second, the court observed that "OSHA may legitimately devote its limited
enforcement resources to monitoring workplaces and working conditions that
pose the most serious threats to worker health and safety" (id. at
A25); that OSHA inspectors must "make daily judgments about what risks
and safety issues most urgently require their attention" (id. at A26);
and that the inspectors' "day-to-day decisions * * * further OSHA's
enforcement policy of ensuring adequate safety in workplaces with a view
toward efficient and effective use of limited enforcement resources, and
are thus grounded in policy" (ibid.). The court thus held that the
discretionary function exception barred petitioner's claim.1
The court denied petitioner's subsequent request for rehearing. Pet. App.
D1-D2. In doing so, the court explained that "[t]he initial request
for rehearing en banc was made, albeit provisionally, by a judge of this
court on April[] 20[,] 1998, well before the time for filing a petition
for rehearing en banc had expired." Ibid. The court therefore concluded
that "the en banc court had jurisdiction to proceed" (id. at D2),
and rejected petitioner's request after finding that her arguments threw
"no new light * * * on the matters heard and determined" on rehearing
en banc. Ibid.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or of any other court of appeals. Accordingly,
further review is unwarranted.
1. Petitioner first claims (Pet. 15-19) that the grant of en banc review
on June 8, 1998, exceeded the authority of the court of appeals because
it occurred after the issuance of the mandate and therefore involved a recall
of the mandate. Petitioner is mistaken. To begin, the premise of petitioner's
argument fails because, so far as the record reveals, the court of appeals
never issued the mandate. The panel issued its decision and entered judgment
on April 8, 1998. Under the applicable rules, the mandate ordinarily would
have issued on June 2, 1998-seven days after the expiration of the time
to file a petition for rehearing, which in this case was 45 days. See Fed.
R. App. P. 40(a)(1), 41(b); see also ibid. ("The court may shorten
or extend the time" in which the mandate may issue.). As the court
of appeals explained, however, in this case a judge of the court made an
initial request for rehearing on April 20, 1998, twelve days after the panel
had issued its opinion and judgment. Consequently, the court of appeals
did not issue the mandate, and no evidence in the record suggests otherwise.2
Because of this, the order granting en banc review, as its plain terms reveal
(see Pet. App. B1-B2), did not entail a recall of the mandate, and the court
of appeals, as it rightly explained in denying petitioner's request for
rehearing, acted while it had full authority to do so. Even the two dissenters
from the en banc decision did "not question the court's authority to
call sua sponte for en banc review." Id. at A31 n.14.
Moreover, even had the court of appeals recalled the mandate in connection
with its grant of en banc review, doing so would not have constituted the
kind of egregious misuse of judicial power that warrants this Court's exercise
of its supervisory powers over the lower federal courts. The courts of appeals
possess an inherent power to recall their mandates, subject to review only
for abuse of discretion. Calderon v. Thompson, 523 U.S. 538, 549-550 (1998);
Hawaii Hous. Auth. v. Midkiff, 463 U.S. 1323, 1324 (1983) (Rehnquist, J.,
in chambers). In this case, as noted, p. 6, supra, the mandate ordinarily
would have issued on June 2, 1998 absent other actions by the court. The
court of appeals granted rehearing en banc on June 8, 1998. Given the short
duration between the earliest date on which the mandate could have issued
and the date on which the court of appeals granted en banc review, a recall
of the mandate would not have been an abuse of discretion. Cf. Midkiff,
463 U.S. at 1324 (Rehnquist, J., in chambers) (recall of mandate "some
four months" after court of appeals' opinion on the merits had issued
was not an abuse of discretion). Indeed, before June 8, 1998, there could
be no reliance on the mandate either by the parties or by others given that
the time to seek review by this Court had not yet expired. See Sup. Ct.
R. 13.
Calderon does not alter this analysis. In Calderon, this Court invoked its
supervisory powers to reverse a decision of a court of appeals in which
the court had recalled its mandate sua sponte. 523 U.S. at 566. The Court
did so, however, based on the unique circumstances of the case and the nature
of the action in the court of appeals, a habeas petition brought by a state
prisoner who had been sentenced to death. Noting that "[t]he promptness
with which a court acts to correct its mistakes is evidence of the adequacy
of its grounds for reopening the case," the Court pointed out that
the recall came 53 days after the mandate had issued and only two days before
the prisoner was scheduled to be executed. Id. at 552, 548. In the interim,
"the executive branch of California's government," through the
State's governor, "took extensive action in reliance on the mandate"
by considering and denying a request for clemency. Id. at 552. The Court
concluded that the court of appeals abused its discretion in recalling the
mandate under such circumstances, for in doing so it failed adequately to
consider both "the * * * vital interests of California's executive
branch" (ibid.) and "the State's interest in the finality of convictions
that have survived direct review within the state court system." Id.
at 555 (citing Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam)).
Here, of course, federalism concerns are not implicated and there has been
neither inordinate delay by the court of appeals nor any reliance upon the
finality of the panel's decision.
2. Petitioner next argues (Pet. App. A19-A23) that the court of appeals
erroneously resolved the discretionary function exception in a manner inconsistent
with this Court's precedent. Petitioner's argument is without merit. The
FTCA's discretionary function exception, 28 U.S.C. 2680(a), excludes any
claim which is "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." This Court has articulated a two-prong test to
determine whether challenged conduct falls within the discretionary function
exception. First, in examining the nature of the challenged conduct, a court
must consider whether the action is a matter of choice for the acting employee.
See United States v. Gaubert, 499 U.S. 315, 322 (1991); Berkovitz v. United
States, 486 U.S. 531, 536 (1988). Second, the discretion involved in the
choice of conduct must be grounded in considerations of public policy, whether
it be social, economic, or political. See Gaubert, 499 U.S. at 323; Berkovitz,
486 U.S. at 536-537.
The court of appeals adhered to and correctly applied this standard in ruling
on the discretionary function exception. With respect to prong one, the
court observed that the relevant portion of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 657(a), "places virtually no constraint
on the Secretary's discretion to conduct * * * inspections in any way that
she deems fit." Pet. App. A13. The court also found that "[t]he
relevant regulations * * * explicitly grant compliance officers the same
broad discretion enjoyed by the Secretary with respect to such inspections."
Id. at A16. Based on those observations, the court concluded that the determination
how to conduct an administrative inspection on behalf of OSHA was discretionary
conduct "involv[ing] an element of judgment or choice." Berkovitz,
486 U.S. at 536; see also Gaubert, 499 U.S. at 322 ("The requirement
of judgment or choice is not satisfied if a 'federal statute, regulation,
or policy specifically prescribes a course of action for an employee to
follow.'") (citation omitted). With respect to prong two, the court
pointed out that OSHA inspectors cannot be expected to conduct "painstakingly
comprehensive" inspections of every item in every plant. Pet. App.
A26. Rather, they must "make daily judgments about what risks and safety
issues most urgently require their attention," judgments which "further
OSHA's enforcement policy of ensuring adequate safety in workplaces with
a view toward efficient and effective use of limited enforcement resources."
Ibid. The court thus concluded that day-to-day decisions of OSHA compliance
officers are an integral part of and grounded in considerations of public
policy, namely, OSHA's enforcement policies. These conclusions are correct
and in accordance with the standard laid down in Gaubert and Berkovitz.
They also are in accordance with the decisions of the other courts of appeals
that have addressed the issue, all of which have concluded that the conduct
of OSHA safety inspections falls within the discretionary function exception
to the FTCA. See Daniels v. United States, 967 F.2d 1463 (10th Cir. 1992);
Judy v. United States, 864 F.2d 83 (8th Cir. 1988); Galvin v. United States,
860 F.2d 181 (5th Cir. 1988); Cunningham v. United States, 786 F.2d 1445
(9th Cir. 1986).3
3. Petitioner's final contention is that the court of appeals lacked authority
to review sua sponte the applicability of the discretionary function exception
in light of the government's failure to press that issue before the panel,
the government's earlier assertions of the defense notwithstanding. Pet.
23. The court of appeals, however, clearly had authority to consider this
issue. For one thing, the government had raised the applicability of the
exception earlier in the litigation only to have it "rebuffed"
(Pet. App. A8) by the court of appeals. See Irving v. United States, 909
F.2d 598, 601-605 (1st Cir. 1990). The court's decision with respect to
the exception thereafter became the law of the case. See Pet. App. A7-A8.
In light of this, the court of appeals properly concluded that the government
had "good reason" for choosing not to press the point yet again
before the panel, and thus that strict application of forfeiture principles
to prevent consideration of the issue by the en banc court would be inappropriate.4
Moreover, because the discretionary function exception forms a condition
upon the government's waiver of sovereign immunity under the FTCA, the question
whether the exception applies is one of subject-matter jurisdiction, a fact
that the court of appeals rightly recognized. See Pet. App. A8. The court
thus had an affirmative obligation to examine the applicability of the exception
on its own initiative to satisfy itself of its jurisdiction to hear the
case. See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986) ("[E]very federal appellate court has a special obligation to
'satisfy itself not only of its own jurisdiction, but also that of the lower
courts in a cause under review,' even though the parties are prepared to
concede it.") (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934));
see also, e.g., Appley Bros. v. United States, 164 F.3d 1164, 1169-1170
(8th Cir. 1999) (applicability of discretionary function exception is a
threshold question of subject-matter jurisdiction); Cohen v. United States,
151 F.3d 1338, 1340 (11th Cir. 1998) (same), cert. denied, 119 S. Ct. 1803
(1999); Good v. Ohio Edison Co., 149 F.3d 413, 419 (6th Cir. 1998) (same);
General Dynamics Corp. v. United States, 139 F.3d 1280, 1283 (9th Cir. 1998)
(same); Tippett v. United States, 108 F.3d 1194, 1196-1197 (10th Cir. 1997)
(same).
The authorities cited by petitioner for the proposition that the court of
appeals lacked authority to address this issue are inapposite. In United
States v. Gaubert, 499 U.S. 315 (1991); Block v. Neal, 460 U.S. 289 (1983);
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797 (1984); and Indian Towing Co. v. United States, 350 U.S. 61
(1955), the Court simply observed that the government had not asserted a
defense based on the discretionary function exception. The Court did not
suggest that a lower court is powerless to ascertain the applicability of
the discretionary function exception on its own initiative.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK STERN
PETER R. MAIER
Attorneys
JULY 1999
1 Senior Judge Bownes, joined by Judge Lipez, dissented on the ground that
the discretionary function exception did not bar petitioner's action. Judge
Bownes argued that the OSHA inspectors lacked discretion in how they conducted
the compliance inspections because their superiors already had determined
that the inspections must encompass an evaluation of all potential hazards
at this particular workplace. Pet. App. A30-A67.
2 A July 23, 1999, telephone inquiry to the First Circuit confirmed that
the Clerk's Office has no record of the mandate having issued.
3 In September 1994, OSHA amended the internal guidelines that govern the
conduct of safety inspections in a way that reflects this understanding.
Under the new guidelines, which apply to all inspections conducted nationwide,
an inspection "may be deemed comprehensive even though, as a result
of the exercise of professional judgment, not all potentially hazardous
conditions, operations and practices within those areas are inspected."
Field Inspection Reference Manual, Chapter II-Inspection Procedures, 4 O.S.H.
Rep. (BNA) 77:0141 (Sept. 26, 1994) (Instruction CPL 2.103). The amended
guidelines supersede those that applied to OSHA safety inspectors when the
challenged conduct in this case occurred and remove any doubt concerning
whether safety inspectors have policy-based discretion regarding how to
conduct safety inspections like those at issue here. In doing so, they further
detract from the need for review of the decision of the court of appeals.
4 Contrary to petitioner's representation (see Pet. 9-10), the government
did not concede the point in its brief in the court of appeals. To be sure,
the government did state in the brief that the "failure [of the inspectors
to inspect the machine] violated a mandatory policy and, as such, precluded
application of the discretionary function exception." Gov't C.A. Br.
4; see Pet. 9-10 (quoting this statement). But the government made that
statement merely as part of its summary of the district court's holding,
not as an affirmative concession in the court of appeals. Petitioner quotes
the statement out of context.