UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 94-1848
GAIL MERCHANT IRVING,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge] __________________________
____________________
Before
Selya, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Paul R. Cox, with whom Jennifer A. Rosenfeld and Burns, Bryant, ____________ ______________________ ______________
Hinchey, Cox & Rockefeller, P.A. were on brief for appellant. ________________________________
Phyllis Jackson Pyles, Assistant Director, Torts Branch, Civil ______________________
Division, Department of Justice, with whom Paul M. Gagnon, United ________________
States Attorney, Frank Hunger, Assistant Attorney General, and Jeffrey ____________ _______
Axelrad, Director, Torts Branch, Civil Division, Department of _______
Justice, were on brief for appellee.
____________________
March 16, 1995
____________________
BOWNES, Senior Circuit Judge. This appeal requires BOWNES, Senior Circuit Judge. ____________________
us to decide, for a third time, whether the district court
correctly decided this Federal Tort Claims Act ("FTCA") suit
in favor of the government. Once again, we are of the
opinion that the district court's ruling is not sustainable.
We therefore vacate the judgment and remand this matter for
further proceedings. We also direct that the proceedings
take place before a different district court judge.
I. I. __
On October 10, 1979, while working at the
Somersworth Shoe Company plant in Somersworth, New Hampshire,
plaintiff-appellant Gail Merchant Irving sustained severe
injuries when her hair became entangled in the unguarded
rotating shaft of a die-out machine located next to her work
station. The accident occurred when plaintiff bent over to
pick up a glove she had dropped near the machine.
On October 7, 1981, plaintiff filed suit against
the United States under the FTCA. She claimed that
inspectors from the Occupational Safety and Health
Administration ("OSHA") had twice negligently failed to
notice a dangerous condition which was an undisputedly
serious violation of OSHA safety standards -- i.e., that the
rotating shaft on the die-out machine was unguarded. Her
theory of liability was that Somersworth would have corrected
the dangerous condition prior to her accident had it been
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given notice of the violation during either of the two ______
inspections. The inspections at issue took place in 1975 and
1978.
From the beginning, the government has argued that
the district court lacked subject matter jurisdiction over
this case because the actions of the OSHA inspectors were
protected by the "discretionary function" exception to the
FTCA's waiver of sovereign immunity. See 28 U.S.C. ___
2680(a); see also Irving v. United States, 909 F.2d 598, 600 ___ ____ ______ _____________
(1st Cir. 1990) (because discretionary function exception
effectively reinstates sovereign immunity, cases falling
within it are dismissed for lack of subject matter
jurisdiction) ("Irving I"). Section 2680(a) exempts from the ______
FTCA's waiver
Any claim based upon an act or
omission of an employee of the
Government, exercising due care, in the
execution of a statute or regulation,
whether or not such statute or regulation
be valid, or based upon the exercise or
performance or the failure to exercise or
perform a discretionary function or duty
on the part of a federal agency or an
employee of the Government, whether or
not the discretion involved be abused.
The government's initial challenge to the district
court's subject matter jurisdiction was presented in a motion
to dismiss. On February 22, 1982, the court denied the
motion. See 532 F. Supp. 840 (D.N.H. 1982). Prior to trial, ___
but after the Supreme Court handed down an opinion
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elaborating upon the scope of the discretionary function
exception, see United States v. Varig Airlines, 467 U.S. 797 ___ _____________ ______________
(1984), the government renewed its motion to dismiss. On
August 8, 1984, the district court denied this second motion.
A bench trial on the merits of plaintiff's claim
began on February 11, 1985, and concluded on February 14,
1985. For nearly three years, the district court had the
matter under advisement. Finally, on January 27, 1988, the
court dismissed the suit without reaching the merits. The
court, citing intervening circuit authority, reversed its
earlier rulings to the contrary effect and concluded that the
discretionary function exception applied to the OSHA
inspections.
The court's dismissal order came shortly before the
Supreme Court decided Berkovitz v. United States, 486 U.S. _________ _____________
531 (1988). On plaintiff's initial appeal, we vacated the
dismissal and remanded the matter for further consideration
in light of Berkovitz. Irving v. United States, No. 88-1454 _________ ______ _____________
(1st Cir. Dec. 7, 1988) (unpublished order). We directed:
On remand . . . the district court
should first consider whether, viewing
the evidence in the light most favorable
to the appellant, its decision to dismiss
remains correct after Berkovitz. A _________
determination by the district court that
its initial decision does not survive
Berkovitz does not of course preclude a _________
later finding of immunity based upon the
court's factual findings. If the
district court ultimately finds that the
OSHA employees had discretion in
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conducting their inspection and that the
discretion involved considerations of
policy, it should grant the government
immunity.
Id., slip op. at 3-4. ___
The district court did not follow our instructions.
It did not discuss whether, in light of Berkovitz, _________
plaintiff's allegations were sufficient to state a claim
falling outside the discretionary function exception. Nor
did it analyze whether plaintiff's proof was sufficient to
sustain her allegations. Instead, the court simply compared
the facts here with the facts of a then-recent, post-
Berkovitz OSHA case in which the Fifth Circuit had found the _________
discretionary function exception to apply, see Galvin v. ___ ______
OSHA, 860 F.2d 181 (5th Cir. 1988), and ruled that the suit ____
was within the scope of the exception.
Plaintiff again appealed, and again prevailed on
appeal. See Irving I, 909 F.2d at 605. We pointed out that, ___ ______
under Berkovitz, the discretionary function exception applies _________
"only if the challenged action `is a matter of choice for the ___ ___
acting employee' and `if the action challenged in the case ______ ________ ___ ______ __________ __ ___ ____
involves the permissible exercise of policy judgment.'" Id. ___
at 601 (quoting Berkovitz, 486 U.S. at 536, 537). Applying _________
this rule, we first found plaintiff's allegation that OSHA
policy required the inspectors to notice the violation at ________
issue here adequate to state a claim that the discretionary
function exception did not apply. Id. at 601-03 (analyzing ___
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pertinent case law). We next assessed the evidence and
concluded that it was sufficient for a finding in plaintiff's
favor on the discretionary function question. Id. at 603-05. ___
We therefore vacated and remanded for a second time. In so
doing, we stated:
[A]n issue of fact lingers in the record:
whether OSHA policy left the thoroughness
of inspections a matter of choice for its
compliance officers. There is some
evidence, viewed in the light most
favorable to the plaintiff, that the
thoroughness of inspections was not left
up to the individual compliance officers,
and that the compliance officers did not
have policy-level discretion to fail to
note and tell the employer about the
violation which allegedly was the cause
of Ms. Irving's injuries. The district
court should have made findings resolving
this issue, in conformity with the
directions of this court on the earlier
appeal.
Id. at 605. Our opinion issued on July 25, 1990. ___
For nearly four years, the district court did not
respond to the second remand. Finally, on June 27, 1994, the
court issued a memorandum opinion. Once again, the court
declined to follow our mandate. Instead, it addressed the
merits of plaintiff's claim. After reviewing its trial notes
and a partial transcript of the 1985 trial, the court found
that, at the time of the 1975 and 1978 OSHA inspections, the
die-out machine was "some two feet closer to the wall to its
rear" than it was on the day of plaintiff's accident. This
finding led the court to conclude that the offending rotating
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shaft was permissibly "guarded by location" -- i.e., that "it
was then in such a location that employees working near it
would not be exposed to injury" -- at the time of the OSHA
inspections. As the court explained, "[The machine's]
nearness to the wall to its rear would prevent access and
probable injury." Accordingly, the court found that no
negligent act or omission on the part of any OSHA employee
occurred during the 1975 and 1978 inspections. In the
court's view, this finding obviated any need to resolve the
discretionary function question. Judgment was entered for
the government.
II. II. ___
On appeal, plaintiff makes two arguments. First,
she contends that the district court's guarded-by-location
finding is clearly erroneous and/or predicated upon errors of
law. Second, she asserts that "the undue delay of nine and
one-third years between the bench trial and the final
decision on the merits rendered the court's findings of fact
unreliable and also violated the plaintiff's right to access
to the courts, due process, and fundamental fairness as
guaranteed by the United States Constitution." For its part,
the government renews its argument that the actions of the
OSHA inspectors fell within the FTCA's discretionary function
exception.
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Because the government's argument puts the district
court's subject matter jurisdiction into issue, we begin with
the last of the three appellate arguments.
A. The Discretionary Function Exception A. The Discretionary Function Exception ________________________________________
It is axiomatic that, "in a multi-panel circuit,
newly constituted panels, generally speaking, are bound by
prior decisions on point." Metcalf & Eddy, Inc. v. Puerto _____________________ ______
Rico Aqueduct and Sewer Auth., 991 F.2d 935, 939 n.3 (1st ______________________________
Cir. 1993). This rule does not apply, however, when the
decision is subsequently undercut by controlling authority --
e.g., a Supreme Court opinion, an en banc opinion of the __ ____
circuit court, or a statutory overruling. Metcalf & Eddy, ________________
Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10, 12 ____ ____________________________________
(1st Cir. 1991), rev'd on other grounds, 113 S. Ct. 684 _____ __ _____ _______
(1993). Nor does it apply in those rare situations "where
newly emergent authority, although not directly controlling,
nevertheless offers a convincing reason for believing that
the earlier panel, in light of the neoteric developments,
would change its course." Id. ___
The government does not dispute that, under
ordinary circumstances, we would be precluded from
reexamining whether the discretionary function exception
applies here. After all, the panel in Irving I gave the ______
question careful and exhaustive consideration, and concluded
that it could not be resolved without further fact finding.
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Irving I, 909 F.2d at 605. Instead, the government argues: ______
(1) that the factual findings made by the district court in
the June 27, 1994 memorandum opinion are sufficient to
resolve the outstanding factual issues noted in Irving I; and ______
(2) that the Supreme Court's decision in United States v. ______________
Gaubert, 499 U.S. 315 (1991), which was handed down after _______
Irving I, offers convincing reasons to believe that the panel ______
in Irving I would have ruled differently had it had the ______
benefit of the Gaubert opinion. We disagree with both _______
contentions.
The Irving I panel ruled that the applicability of ______
the discretionary function exception could not be decided
without findings as to whether OSHA policy left the ______
thoroughness of inspections a matter of choice for individual
inspectors, and whether the inspectors had policy-level
discretion to fail to note and tell the employer about the
violation which allegedly caused plaintiff's injuries. 909
F.2d at 605. The government relies on certain "findings" in
the district court's June 27, 1994 memorandum opinion. These
findings were: that the OSH Act and its implementing ___
regulations do not themselves provide standards to guide ___________
inspectors in the exercise of their authority to search; that
there is no statute or regulation requiring OSHA to ensure _______ __________
that all machines in every workplace are properly guarded;
that the OSHA Field Operations Manual recognizes that
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inspections may vary considerably in scope and detail,
depending upon the circumstances in each case; and that it is
a judgment call whether a certain machine is in violation of
OSHA standards. We do not think that these findings address
the concerns noted in Irving I. ______
The Irving I panel explicitly acknowledged that if ______
"the statute and the formal regulations [were] the only
standards guiding the compliance officer's conduct, the
discretionary function exception would apply." Id. at 603. ___
The question in this case, however, revolves around OSHA
policy -- as opposed to the statute and formal regulations -- ______
in 1975 and 1978. Id. The referenced findings in no way ___
speak to OSHA policy during these two years. Similarly,
while the OSHA Field Operations Manual notes that inspections
may vary considerably in scope and detail, it does not
indicate that the individual inspectors were themselves to __________ __________
decide on the scope and detail of each inspection. And the
general statement that it is a judgment call whether a
certain machine is in violation of OSHA standards is not,
when read in context, a finding at all. It is, rather, a
reiteration of the testimony of Francis Amirault, who was the
Area Director of OSHA at all times relevant to this
litigation. The Irving I panel was well aware of this ______
testimony, and did not view it as dispositive. See id. at ___ ___
604-05. For reasons explained more fully below, we are not
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free to revisit this conclusion. See Metcalf & Eddy, 991 ___ _______________
F.2d at 939 n.3.
As to the assertion regarding Gaubert, we note that _______
the government has not attempted to explain how Gaubert _______
renders Irving I incorrect or obsolete. Ordinarily, this ______
would lead us to conclude that the argument is waived. See ___
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) ("issues ______________ _______
adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived"), cert. _____
denied, 494 U.S. 1082 (1990). Because the question ______
implicates the district court's subject matter jurisdiction,
however, we have independently analyzed whether Gaubert _______
offers a convincing reason for concluding that the Irving I ______
panel would change its course. See Metcalf & Eddy, 945 F.2d ___ ______________
at 12. We discern no such reason. Gaubert was concerned _______
primarily with correcting the lower court's misperception
that operational or management decisions cannot be policy
decisions protected by the discretionary function exception.
See 499 U.S. at 325-26. No such misperception is apparent in ___
Irving I. Moreover, Gaubert explicitly reaffirmed the legal ______ _______ __________
basis on which the holding in Irving I was constructed: that ______
"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,'
because `the employee has no rightful option but to adhere to
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the directive.'" Gaubert, 499 U.S. at 322 (emphasis _______
supplied) (quoting Berkovitz, 486 U.S. at 536). Applying _________
this rule, the panel in Irving I first noted plaintiff's ______
allegation that OSHA had a policy requiring its inspectors to _________
notice safety violations within the four walls of the
inspected plant. 909 F.2d at 603. The panel then found that
there was sufficient evidence in the record for a rational
fact finder to credit this allegation, and held that the
discretionary function question could not be answered until
the trial court decided whether or not to credit the
allegation. Id. at 603-05. There is nothing new in Gaubert ___ _______
that calls this analysis into question. We therefore see no
reason to conclude that the panel would have decided Irving I ______
any differently had Gaubert been previously issued. _______
The discretionary function doctrine is fraught with
difficulty, and the Supreme Court or Congress may some day
decide that the analysis in Irving I is incorrect. Unless ______
and until that day arrives, however, or unless and until we
revisit the question as an en banc court, Irving I remains __ ____ ______
binding on all newly constituted panels in this Circuit.
Accordingly, we reject the government's argument that the
discretionary function question can be decided in its favor
without further fact finding.
B. The Guarded-by-Location Finding B. The Guarded-by-Location Finding ___________________________________
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In reviewing a factual finding made by a district
judge in connection with a bench trial, we almost always
apply the clear-error standard of review. See Fed. R. Civ. ___
P. 52(a). Under this standard, we give the finding effect
unless we are "`left with the definite and firm conviction
that a mistake has been committed.'" Anderson v. City of ________ ________
Bessemer City, 470 U.S. 564, 573 (1985) (quoting United ______________ ______
States v. United States Gypsum Co., 333 U.S. 364, 395 ______ ___________________________
(1948)). Thus, "[w]here there are two permissible views of
the evidence, the factfinder's choice between them cannot be
clearly erroneous." Id. ___
Of course, the deference mandated by Rule 52(a) has
its limits. For example, the Rule clearly presumes that a
sustainable finding will be based upon properly admitted
evidence. And the Supreme Court has indicated that if a
reviewing court is firmly convinced that a finding is
mistaken, it should reverse the finding even where there is ____ _____
evidence to support it. See Anderson, 470 U.S. at 573; ___ ________
United States Gypsum, 333 U.S. at 395. ____________________
Here, the court reached its conclusion that the
rotating shaft of the die-out machine was guarded by location
at the time of the 1975 and 1978 OSHA inspections by
analyzing the inspections separately. With regard to the
1975 inspection, the court's finding was premised on a
subsidiary finding that "[p]rior to the spring of 1977, the
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offending machine had been positioned some two feet closer to
the wall to its rear. Between that date and the spring of
1979, it had been moved forward to the position it occupied
at the time of plaintiff's accident." As the basis for so
finding, the court stated: "The evidence as to the prior
location of the `die-out' machine came from the testimony of
Robert [sic]1 Couture." In rejecting plaintiff's request
that it reconsider the finding, the court elaborated:
Although [Couture's] testimony was not
transcribed, the court, as is its custom,
took contemporaneous trial notes of the
testimony of each witness. Mr. Couture's
testimony was therein recorded. In light
of such testimony, the court credited
that testimony over the testimony of Igor
Paul that Mr. Paul was of the opinion
that the machine had not been moved.2
____________________
1. The first name of Couture, who was foreman of the stock
fitting room (the room in which the die-out machine was
located) at the time of the 1975 and 1978 inspections, is
Roger.
2. The expert testimony of Paul, which was based upon his
examination of the accident site, was not the only evidence
that the die-out machine's rotating shaft was not guarded by
location at the time of the 1975 inspection. It is
undisputed that, at this time, a rack with die and pattern
slots going down to the floor was positioned against the wall
behind the machine. It also is undisputed that employees
could not access the dies and patterns in these slots if
there were no space between the machine and the rack. This,
of course, gives rise to an inference that, in 1975, there
was an aisle wide enough for one to bend over in between the
machine and the rear wall. The trial court made no mention
of this evidence in its findings of fact.
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The transcript of Couture's actual testimony, which has been
provided to this court on appeal, reveals serious errors in
the district court's trial notes.
First, Couture did not testify that the die-out
machine had been moved; he testified that "it might have been _____
moved." Second, Couture did not testify that the machine had
been moved two feet; he testified that it might have been
moved "one or two feet."3 And third, Couture did not __
testify that the machine had been moved between the spring of
1977 and the spring of 1979; he testified that he "really
[did not] remember" when any movement might have taken place.
To be sure, there was evidence in the record
tending to support the district court's finding. This
"evidence," however, was hearsay testimony of OSHA compliance
officer O'Connell regarding statements Couture allegedly made
a few days prior to trial. On redirect examination by
plaintiff's counsel, O'Connell testified that, just before
trial, Couture told him that the machine had been moved two
____________________
3. The only evidence in the record that the rotating shaft
would have been guarded by location had it been differently
situated at the time of the inspections came in the form of
testimony by Paul O'Connell, an OSHA compliance officer who
did a post-accident inspection of the plant. O'Connell
testified that the shaft "very likely" would have been
guarded by location if the bench upon which the die-out
machine sat "had been two feet closer" to the wall. There is ___ ____
no evidence that the shaft would have been guarded by __
location if it had been one foot closer to the wall. ___ ____
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feet at some point in the two years preceding the spring of
1979. In light of Couture's testimony at trial (which was __ _____
inconsistent with O'Connell's), the probative value of
O'Connell's testimony is open to serious question. And much
more importantly, the district court does not appear to have
relied upon O'Connell's testimony in finding that the
rotating shaft was guarded by location at the time of the
1975 inspection.
In the end, we have little confidence in the trial
court's finding regarding the 1975 inspection. The court
fundamentally misconstrued the testimony upon which it
explicitly and exclusively relied in making the finding.
Moreover, the nine and one-third-year delay between trial and
the finding significantly undercuts the reason for presuming
that the trial court was in a superior position to judge the
demeanor and credibility of the relevant witnesses. Cf. ___
Williams v. Poulos, 11 F.3d 271, 278 (1st Cir. 1993). Thus, ________ ______
even though the record evidence is inconclusive as to
location, we set aside the finding that the die-out machine's
rotating shaft was guarded by location at the time of the
1975 inspection.
Having made this determination, we do not need to
decide any of the other issues in this case. This means that
we need not determine whether: (1) the district court's
patently erroneous reliance upon deposition testimony which
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had not been read into the record at trial, see Secretary of ___ ____________
Labor v. DeSisto, 929 F.2d 789, 796-97 (1st Cir. 1991) _____ _______
(documents attached to summary judgment motions are not
evidence unless admitted at trial), requires reversal of the
finding that the rotating shaft was guarded by location in
1978; (2) the court erroneously failed to give plaintiff the
benefit of a favorable state law principle -- i.e., that a
prior or subsequent location "is evidential of a later or
earlier one," see Dube v. Bickford, 31 A.2d 64, 66 (N.H. ___ ____ ________
1943); or (3) the delay in deciding this case was so
substantial that it deprived plaintiff of her constitutional
rights.
Plaintiff's theory of liability was that
Somersworth would have guarded the rotating shaft had it been
informed of the dangerous condition in 1975 or 1978. The __
court rejected this claim on the basis of its findings that
the rotating shaft was, in fact, guarded by location in 1975
and 1978. The defective finding that the shaft was guarded ___
by location in 1975 was therefore necessary to the court's
entry of judgment in favor of the government. For this
reason alone, the judgment cannot stand.
III. III. ____
There still remains the question of relief. If
this were an ordinary case, we would remand the matter to the
trial court for further proceedings consistent with our
-17- 17
opinion. Obviously, this has not been an ordinary case for
quite some time. Thus, despite the difficulties inherent in
retrying a case which was tried over ten years ago, and which
arises out of injuries suffered more than fourteen years ago,
we think fundamental fairness dictates that plaintiff be
granted her request for a trial de novo before a different __ ____
district court judge. No finding from the previous trial
should be given preclusive effect in the new trial, and the
government is free to renew its argument that the inspectors'
actions fell within the discretionary function exception, as
well as its argument that the machine was guarded by location
during the period when the OSHA inspections occurred. We
commit to the new judge's discretion the question whether to
proceed solely on the current record.
For the reasons stated above, the judgment of the
district court is vacated. This matter is remanded to a vacated remanded _______ ________
different district court judge for further proceedings
consistent with this opinion. Plaintiff is entitled to her
costs.
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