Irving v. United States

• Court: Court of Appeals for the First Circuit
• Decided: April 29, 1998
• Docket: 96-2368
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 96-2368



                      GAIL MERCHANT IRVING,



                       Plaintiff, Appellee,



                                v.



                    UNITED STATES OF AMERICA,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



         [Hon. Steven J. McAuliffe, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                 Bownes, Senior Circuit Judge,

     Selya, Boudin, Stahl, Lynch and Lipez, Circuit Judges.


Phyllis J. Pyles, Attorney, Torts Branch, Civil Division, with

whom Frank W. Hunger, Assistant Attorney General, Paul M. Gagnon,

United States Attorney, and Jeffrey Axelrad, Attorney, Torts

Branch, Civil Division, were on brief, for appellant.

     Paul R. Cox, with whom Matthew B. Cox and Burns, Bryant,

Hinchey, Cox & Rockefeller, P.A. were on brief, for appellee.


OPINIONS EN BANC


December 18, 1998

                     _____________________

  SELYA, Circuit Judge.  Almost two decades ago, Gail

Merchant Irving suffered horrific injuries in a workplace accident. 

She sued the United States under the Federal Tort Claims Act

(FTCA), 28 U.S.C.  1346(b), 2671-2680, claiming that inspectors

employed by the Occupational Safety and Health Administration

(OSHA) negligently performed their duties and thereby proximately

caused her injuries.  The case traveled an inexcusably long and

tortuous route to a decision on the merits   a route that included

four detours to this court.  Ultimately, the district court,

proceeding under a legal framework established by a panel of this

court, concluded that the FTCA's discretionary function exception

did not bar the plaintiff's claim; that the OSHA inspectors had

acted negligently; and that such negligence was actionable under

applicable state law.  See Irving v. United States, 942 F. Supp.

1483 (D.N.H. 1996) (Irving III).  The court awarded the plaintiff

$1,000,000 in damages.  See id. at 1502.

  A divided panel of this court affirmed the judgment, seeIrving v. United States, 1998 WL 152941 (1st Cir. Apr. 8, 1998),

but the full court, acting sua sponte, withdrew the opinion and

ordered rehearing en banc, principally to review the important

question of whether the FTCA's discretionary function exception

foreclosed the plaintiff's negligent inspection claim.  We now

answer that question in the affirmative.

I.  BACKGROUND

     Because the district court has faithfully chronicled the

tangled events that preceded this appeal, see Irving III, 942 F.

Supp. at 1485-98, we offer only a synopsis.  We refer the reader

who hungers for greater detail to the district court's account.

     In 1979, Somersworth Shoe Company operated a

manufacturing plant in New Hampshire.  On October 10 of that year,

the plaintiff, a Somersworth Shoe employee, was stamping innersoles

by means of a marker machine.  At one point, she went behind her

workbench to obtain materials from the die rack.  In the process,

she dropped a glove.  When she stooped to retrieve it, her hair was

drawn into the vacuum created by the high-speed rotation of a drive

shaft that delivered power to an adjacent "die-out" machine.  She

sustained grievous injuries.

     OSHA compliance officers twice had inspected the plant

(once in 1975 and again in 1978) under the auspices of OSHA's

authority to conduct general administrative inspections, but had

not noted any hazard in connection with the placement or guarding

of the die-out machine in the stock fitting room or the bench

assembly associated with it.  Six days after Irving's mishap, OSHA

conducted an inspection focused on the accident and concluded that

the arrangement violated OSHA standards in three separate respects,

and that all three conditions were "serious."  The most important

of these was the company's failure to guard the drive shaft

component of the die-out machine.  See 29 C.F.R.

 1910.219(c)(2)(ii) ("Shafting under bench machines shall be

enclosed by a stationary casing, or by a trough at sides and top or

sides and bottom, as location requires.").

     After exhausting her administrative remedies, the

plaintiff invoked the FTCA and sued the United States in New

Hampshire's federal district court.  She alleged that OSHA's

negligence in failing to note and cite the unguarded condition of

the drive shaft during the two pre-accident inspections proximately

caused her injuries.  Had the OSHA compliance officers documented

the condition of the die-out machine, the plaintiff reasoned, her

employer would have taken corrective action and her injury would

not have occurred.

     The United States moved to dismiss the suit on the ground

that the FTCA's discretionary function exception barred the

plaintiff's claim.  The district court denied the motion.  SeeIrving v. United States, 532 F. Supp. 840 (D.N.H. 1982).  Trial

commenced on February 11, 1985, and ended three days later.  The

district court took the matter under advisement, but did not act

for almost three years.  At that point, the court reversed its

field and concluded that the discretionary function exception

applied after all.  See Irving v. United States, No. Civ. C81-501-

SD, slip op. (D.N.H. Jan. 27, 1988) (unpublished).  Accordingly, it

dismissed the case for lack of subject matter jurisdiction.

     A panel of this court vacated the order of dismissal and

asked the district court to consider the impact of a newly decided

case, namely, Berkovitz v. United States, 486 U.S. 531 (1988).  SeeIrving v. United States, 867 F.2d 606 (1st Cir. 1988) (table).  The

district court determined that Berkovitz did not alter the result. 

See Irving v. United States, No. Civ. C81-501-SD, slip op. (D.N.H.

Feb. 14, 1989) (unpublished).  The plaintiff again appealed.

     A second panel of this court vacated the judgment.  SeeIrving v. United States, 909 F.2d 598 (1st Cir. 1990) (Irving I). 

The panel recognized that, "[w]ere the statute and the formal

regulations the only standards guiding the compliance officer's

conduct, the discretionary function exception would apply."  Id. at

603.  But, the panel stated, even though these standards "give OSHA

wide freedom at higher agency levels to make decisions and

formulate programs," it "does not follow" that "an employee who

performs an inspection has the type and breadth of discretion which

makes the inspection a discretionary function."  Id.  The panel

thus concluded that further analysis and factfinding were required

to determine what OSHA policy actually required of OSHA compliance

officers engaged in inspection activities.  See id.  As a corollary

to this point, the panel noted that certain statements by OSHA's

area director and the individuals who conducted the earlier

inspections suggested that compliance officers may not have enjoyed

discretion over how thoroughly they were required to inspect a

plant.  See id. at 604-05.  Because these statements were

inconclusive, however, the panel remanded for further factfinding

to determine "whether OSHA policy left the thoroughness of

inspections a matter of choice for its compliance officers," and if

so, "whether the inspectors had policy-level discretion to fail to

note and tell the employer about the violation" which allegedly

caused plaintiff's injury.  Id. at 605.

     The district court pondered matters for four more years. 

Eventually, the judge, relying on a partial transcript of the 1985

trial, supplemented by his own notes, leapfrogged the discretionary

function exception entirely and decided the case on the merits,

concluding that the United States was not negligent because the

die-out machine's drive shaft was "guarded by location" at the time

of the inspections and, therefore, in full compliance with OSHA

regulations.  Irving v. United States, No. Civ. C81-501-SD, 1994 WL

287750, at *3 (D.N.H. June 23, 1994).  The plaintiff again

appealed.

     A third panel of this court vacated the judgment,

discerning no basis for the "guarded by location" fact

determination.  See Irving v. United States, 49 F.3d 830, 835-37

(1st Cir. 1995) (Irving II).  The panel then addressed the

government's attempted resurrection of its discretionary function

defense and rejected it as foreclosed by the prior panel decision. 

See id. at 834 (noting that the panel did not feel "free to

revisit" the legal conclusions explicated in Irving I).  In the

bargain, the panel dismissed the government's plaint that the

Supreme Court's intervening decision in United States v. Gaubert,

499 U.S. 315 (1991), made a decisive difference.  See Irving II, 49

F.3d at 834-35.

     At this juncture, a different trial judge assumed

responsibility for the case.  Operating within the legal framework

erected by Irving I and reinforced by Irving II, the district court

concluded that, even though the applicable statute, regulations,

and written agency guidelines appeared to grant compliance officers

substantial discretion over how to conduct inspections, this

discretion was restricted "by less formal, but no less binding,

OSHA policy."  Irving III, 942 F. Supp. at 1490-91.  To determine

the parameters of this purported policy, the district court relied

exclusively on evidence adduced at the 1985 trial.  It found that

the testimony of the compliance officers who had conducted the 1975

and 1978 inspections and the area director who was their superior

limned a policy that "required" OSHA's "wall-to-wall" inspections

to be "complete" in every respect.  Id. at 1491.  This, the

district court added, meant that OSHA inspectors were obligated to

examine "every operational machine and work station in the plant." 

Id.  Finding that the inspectors had been negligent for not

examining and/or citing the die-out machine, the court held that

the United States was liable.  See id. at 1505, 1510.  This appeal

ensued.

II.  PROCEDURAL ISSUES

     Because this case comes before us in an anomalous

procedural posture, we begin by addressing a series of questions

related to the justiciability of the discretionary function issue.

                         A.  Forfeiture.

     When the United States instituted this appeal, it did not

ask the panel to reverse the district court's refusal to apply the

discretionary function exception.  The plaintiff now seeks to

convince us that this omission precludes the en banc court from

considering the issue.  We are not persuaded.

     In the ordinary course, a party seeking to preserve a

point for review must present it seasonably in both the trial and

appellate courts and offer developed argumentation in support. 

See, e.g., United States v. Bongiorno, 106 F.3d 1027, 1034 (1st

Cir. 1997). Thus, a party who fails to raise a particular claim or

defense at a prior stage in the litigation normally forfeits the

right to assert it at a later stage.  See National Ass'n of Soc.

Workers v. Harwood, 69 F.3d 622, 627-29 (1st Cir. 1995).  But the

instant case does not fit this paradigm neatly.  Even though the

United States did not hawk its basic discretionary function defense

the last time around, it did assert the defense at the very

beginning of this case and persistently raised it thereafter.  It

was not until the final round of litigation that the government put

down those cudgels.

     The United States had good reason not to press its basic

discretionary function point at that stage (either in the district

court or before the fourth appellate panel).  In Irving I, a panel

of this court expressly defined the contours of the discretionary

function exception.  909 F.2d at 601-05.  From then on, that

methodology represented both the law of the case and the law of

this circuit regarding the due application of the discretionary

function exception.  The law of the circuit doctrine, as a general

matter, permits successor panels to revise prior panel decisions in

only two types of circumstances:  (1) when supervening authority

(such as a newly enacted statute, an intervening opinion of the

Supreme Court, or a subsequent ruling of the en banc court)

directly requires such a step, or (2) when newly emergent

authority, though not controlling, offers a clear and convincing

reason to conclude that the earlier panel would have decided the

issue differently.  See Williams v. Ashland Eng'g Co., 45 F.3d 588,

592 (1st Cir. 1995).  Indeed, when the United States asserted the

discretionary function defense in  Irving II, the panel not only

took refuge in the law of the circuit doctrine to dispense the

argument, but also rejected the government's importuning that the

Supreme Court's 1991 decision in Gaubert required a modification of

the prior circuit precedent.  See Irving II, 49 F.3d at 834-35. 

Because two panels of this court had squarely rebuffed the

government's discretionary function defense, it is hardly

surprising that the government did not raise it anew in subsequent

proceedings before yet another (co-equal) panel of this court.  SeeLouisiana-Pacific Corp. v. ASARCO, Inc., 24 F.3d 1565, 1583 (9th

Cir. 1994) (stating that raising a point on appeal that governing

state law foreclosed would have been "foolish," and excusing

waiver); see also United States v. London, 66 F.3d 1227, 1239-240

(1st Cir. 1995).

     In sum, strong arguments can be made for not finding a

forfeiture here or, at least, for not strictly applying forfeiture

principles.  Still, we need not definitively decide the point, for

there is a simple, clearcut answer to whether the question is

properly before us.  After all, the discretionary function

exception to the FTCA implicates the federal courts' subject matter

jurisdiction.  Federal courts, being courts of limited

jurisdiction, have an affirmative obligation to examine

jurisdictional concerns on their own initiative.  See BIW Deceivedv. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132

F.3d 824, 828 (1st Cir. 1997).  Consequently, even if the

government failed properly to raise and preserve the discretionary

function defense   a question on which we take no view   we

nonetheless are bound to consider it.  See Hydrogen Tech. Corp. v.

United States, 831 F.2d 1155, 1162 n.6 (1st Cir. 1987).

     In her supplemental brief, the plaintiff puts a somewhat

different spin on the forfeiture argument.  Citing a footnote in

the final district court opinion, she argues that the government

conceded the discretionary function question in that venue by

admitting that OSHA policy required its compliance officers to

"inspect every operation".  Irving III, 942 F. Supp. at 1491 n.8. 

Waiver is, of course, a matter separate from forfeiture.  SeeUnited States v. Olano, 507 U.S. 725, 733 (1993).  Be that as it

may, we have reviewed the record with care and can find no such

concession.  In any  event, insofar as the plaintiff asserts that

the United States has conceded the discretionary function issue, we

note that parties do not possess the power to confer subject matter

jurisdiction on a federal court by concession.  See United Statesv. Horn, 29 F.3d 754, 768 (1st Cir. 1994).

                 B.  Power of the En Banc Court.

     The procedural tangle in this case raises yet another

question:  may an en banc court review issues decided by panels of

the court in prior appeals in the same litigation?  We hold that

neither the law of the case doctrine nor the law of the circuit

doctrine disables an en banc court from overruling a panel decision

from a prior appeal in the same case.  Accord Watkins v. United

States Army, 875 F.2d 699, 704-05 n.8 (9th Cir. 1989) (en banc);

Shimman v. International Union of Operating Eng'rs, Local 18, 744

F.2d 1226, 1229 n.3 (6th Cir. 1984) (en banc).  The authority to

overrule the decision of a prior panel in the same case flows

logically from the error-correcting function of the full court. 

When a court sits en banc, the concern for adhering to a past

resolution of an issue in deference to settled expectations, which

underpins the doctrines of law of the case and law of the circuit,

must give way to the institutional interest in correcting a

precedent-setting error of great public import or a panel opinion

that conflicts with Supreme Court precedent.  See United States v.

Rivera-Martinez, 931 F.2d 148, 151 (1st Cir. 1991) (noting that law

of the case doctrine does not apply when "controlling authority has

since made a contrary decision of the law applicable") (internal

quotes and citations omitted); see also Irving II, 49 F.3d at 834

(acknowledging that the law of the circuit rule would not apply in

the face of a contrary en banc opinion).

     We are aware that the Eighth Circuit appears to have

suggested otherwise.  See Robertson Oil Co. v. Phillips Petrol.

Co., 14 F.3d 373 (8th Cir. 1993) (en banc).  The Robertson majority

held that the law of the case doctrine precluded it from revisiting

holdings from two earlier panel decisions because the full court

had denied contemporaneous suggestions for en banc rehearings after

the adjudication of both the first and second appeals.  See id. at

376 n.5, 383, & n.13.  We decline to follow Robertson for two

reasons.  First, in this case, unlike in Robertson, the en banc

court was not invited to review any of the earlier panel decisions

on a contemporaneous basis, and thus, did not decline to do so. 

Second   and more important   to the extent that the Robertsonmajority's reasoning rests on mechanically applying the law of the

case doctrine to the decisions of earlier panels across the board,

it too narrowly cabins the proper purview of a court sitting en

banc.  See id. at 386-88 (Beam, J., with whom Bowman and Loken,

JJ., join, dissenting).

     Nor does the decision in Van Gemert v. Boeing Co., 590

F.2d 433 (2d Cir. 1978) (en banc), create an obstacle to en banc

review of a prior panel decision.  There, the Second Circuit

suggested that the en banc court is free to overturn prior panel

decisions unless doing so would seriously and unfairly prejudice

the party that had benefitted from the earlier ruling.  See id. at

436-37 n.9 (stating in dictum that "sitting en banc, we may

overrule any panel decision that a majority of the active judges

believes was wrongly decided, unless a party would be seriously

prejudiced as a result").  Even were we prepared to adopt this

formulation of the rule   a matter which we leave for another day

  it would not preclude us from reviewing the holdings of Irving Iand Irving II.  As we have noted, the discretionary function

exception implicates the subject matter jurisdiction of federal

courts.  Prejudice to a party, while always regrettable, cannot

furnish a viable rationale for overlooking a federal court's lack

of power to grant a remedy in the first place.

III.  THE DISCRETIONARY FUNCTION EXCEPTION

     Having cut a swath through the procedural thicket, we

turn to the government's discretionary function defense.  In the

process, we afford plenary review to the question of whether the

discretionary function exception applies.  See National Union Fire

Ins. v. United States, 115 F.3d 1415, 1417-18 (9th Cir. 1997),

cert. denied, 118 S. Ct. 1053 (1998); Fisher Bros. Sales, Inc. v.

United States, 46 F.3d 279, 282 (3d Cir. 1995) (en banc).

     In the Court's words, "the basic inquiry concerning the

application of the discretionary function exception is whether the

challenged acts of a Government employee   whatever his or her rank

  are of the nature and quality that Congress intended to shield

from tort liability."  United States v. S.A. Empresa de Viacao

Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984).  To

respond to this inquiry, we first must identify the conduct at

issue and then determine whether that conduct is discretionary. 

See Gaubert, 499 U.S. at 322.  Even if this hurdle is cleared, the

discretionary function exception still does not attach unless the

exercise of discretion involves (or, at least, is susceptible to)

policy-related judgments.  See id. at 322-23.

A.  The Statutory and Regulatory Regime.



     In this instance, the plaintiff claims that workplace

inspections, negligently performed by OSHA compliance officers,

proximately caused her injuries.  In analyzing the nature of this

conduct, we begin with the language of the OSH Act because "it will

most often be true that the general aims and policies of the

controlling statute will be evident from its text," id. at 324,

and, in turn, these aims and policies will offer valuable insights

into the nature of the conduct.

     In relevant part, the OSH Act authorizes the Secretary of

Labor to "inspect and investigate during regular working hours and

at other reasonable times, and within reasonable limits and in a

reasonable manner, any such place of employment and all pertinent

conditions, structures, machines, apparatus, devices, equipment,

and materials therein . . . ."  29 U.S.C.  657(a).  Under this

authority, OSHA conducts both programmed general administrative

inspections   known in the bureaucratic argot that OSHA so readily

attracts as "full-scope" or "wall-to-wall" inspections   and more

focused efforts pinpointed to threats of imminent danger.  Aside

from a reasonableness limitation on the time and manner of

inspections, the statute places virtually no constraint on the

Secretary's discretion to conduct such inspections in any way that

she deems fit.  See Donovan v. Dewey, 452 U.S. 594, 601 (1981).

     Comparison of this language to a parallel provision in

the Federal Mine Safety and Health Act (MSH Act), 30 U.S.C.  801

et seq., another health and safety statute administered by the

Secretary of Labor, strongly suggests that Congress's choice of

words was no accident.  In defining the Secretary's

responsibilities regarding mine inspections, the MSH Act provides

that, in order to determine whether "an imminent danger exists" in

a mine and "whether there is compliance with the mandatory health

or safety standards or with a citation, order, or decision" issued

under applicable law, "the Secretary shall make inspections of each

underground coal or other mine in its entirety at least four times

a year, and of each surface coal or other mine in its entirety at

least two times a year."  30 U.S.C.  813(a) (emphasis supplied). 

For our purposes, the stark differences between the inspection

provisions of the MSH Act and those of the OSH Act are extremely

significant.  Whereas Congress was careful to mandate comprehensive

inspections in the MSH Act, it left the scope and detail of OSH Act

inspections to the Secretary's discretion.  Had Congress wished to

impose upon OSHA an obligation to inspect every corner of every

plant that it visited, we think it is highly likely that Congress

would have expressed its intention by choosing language comparable

to that which it used in crafting the MSH Act.

     We recognize that, by its plain terms, the OSH Act

confers discretion only upon the Secretary, not upon compliance

officers   and it is the latter's conduct that concerns us. 

Nevertheless, 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.  The regulations' stated goal is "to

set forth general policies for enforcement of the inspection,

citation, and proposed penalty provisions of the Act."  29 C.F.R.

 1903.1.  Echoing the language of 29 U.S.C.  657(a), section

1903.3 of the regulations confers upon compliance officers the

unbridled power, subject only to limits of reasonableness, to enter

workplaces, inspect any piece of equipment or other pertinent item,

and interview any person in order to carry out the Secretary's

statutory mission.  See 29 C.F.R.  1903.3(a).

     To be sure, the regulations contain a sprinkling of

mandatory directives.  See, e.g., id. at  1903.7 (obligating

compliance officers, inter alia, to present their credentials at

the start of an inspection, to use "reasonable precautions" when

taking photographs and samples, to wear appropriate protective

clothing, to avoid "unreasonable disruption" of the workplace, and

to "confer with the employer" in order to inform him of "any

apparent safety or health violations disclosed by the inspection"). 

Save for these and, for our purposes, other similarly innocuous

details, the regulations neither mandate a particular modusoperandi for conducting inspections nor otherwise materially

restrict compliance officers' flexibility.  Of particular

importance, the regulations do not prescribe any specific regimen

governing the scope or detail of general administrative inspections

performed by compliance officers.

                  B.  The Nature of the Action.

     Under the jurisprudence of the FTCA, a function is non-

discretionary only when a "federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow."  Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at

536); accord Williams v. United States, 50 F.3d 299, 309-10 (4th

Cir. 1995) (applying discretionary function bar because applicable

regulations did not mandate a specific course of action for agent

to follow when engaging managerial and custodial services); Laytonv. United States, 984 F.2d 1496, 1502-03 (8th Cir. 1993) (holding

that, in the absence of specific guidelines, the manner of

inspection is a matter of discretion, and distinguishing situations

"in which [a] government inspector is controlled by precise

regulations establishing specific steps he is required to perform

in his inspections"); Cooper v. American Auto. Ins. Co., 978 F.2d

602, 612 (10th Cir. 1992) (holding that discretionary function

exception bars negligent investigation claim absent any statute or

"regulation mandating particular inquiries to be made or methods of

making them").  Given the considerable leeway afforded to

compliance officers under the statutory and regulatory mosaic,

general administrative inspections conducted by OSHA compliance

officers would seem to fit comfortably within the discretionary

function exception.  Indeed, two of our sister circuits have so

held,  see Judy v. United States, 864 F.2d 83, 84 (8th Cir. 1988);

Galvin v. OSHA, 860 F.2d 181, 184 (5th Cir. 1988), and none has

demurred.

     The Irving I panel, though clearly recognizing the

discretionary nature of the authority granted by the statute and

regulations, 909 F.2d at 603, nevertheless held that a further

factual inquiry was needed to ascertain whether some less formal

protocol "left the compliance officers with no policy-level

discretion," id. at 603.  We now reject the panel's predictive

analysis.

     To begin with, the Irving I panel appears to have

accepted the plaintiff's position that, because the 1975 and 1978

inspections were "general inspections," the compliance officers'

conduct was not discretionary.  This conclusion suggests that the

panel further assumed that general administrative inspections fall

outside the scope of 29 U.S.C.  657(a) and 29 C.F.R.  1903.7. 

See Irving I, 909 F.2d at 603.  We cannot accept this construct. 

As our explication of the statute and regulations demonstrates, seesupra Part III(A), general administrative inspections are conducted

under the auspices of section 657(a).  The relevant regulations,

moreover, explicitly grant compliance officers the same broad

discretion enjoyed by the Secretary with respect to such

inspections.  Had the Irving I court not overlooked this important

fact, its own logic quite likely would have led it to hold, as we

do today, that the discretionary function defense prevails.  SeeIrving I, 909 F.2d at 603 (acknowledging that the statute and

regulations, considered alone, appear to confer discretion for

covered inspections, but questioning whether they governed the

actions of compliance officers).

     This error materially altered the decisional calculus. 

Because the Irving I panel misconstrued the applicability of the

regulations to the conduct of compliance officers, it failed

properly to consider when a court might justifiably consult

informal policy statements in order to shed light on whether an act

is discretionary.  Of course, as Irving I suggests, informal agency

rules and similar pronouncements may at times bind agency personnel

for the purposes of discretionary function exception analysis.  SeeGaubert, 499 U.S. at 324.  Hence, courts may consult such sources

in appropriate cases to determine whether a particular function is

(or is not) discretionary.  See, e.g., Domme v. United States, 61

F.3d 787, 791 (10th Cir. 1995) (applying discretionary function bar

when none of the relevant statutes, regulations, or internal agency

guidelines specified the "precise manner" in which the Department

of Energy was to conduct safety appraisals); Autery v. United

States, 992 F.2d 1523, 1529 (11th Cir. 1993) (similar, re park

inspections).  Occasionally, such an informal policy will tip the

scales.  See McMichael v. United States, 856 F.2d 1026, 1033-34

(8th Cir. 1988) (holding that when internal agency guidelines

directed government inspectors to follow a detailed regime,

discretionary function exception did not apply).  Still,

recognizing that informal sources sometimes may assist courts in

deciding whether a function is discretionary is one thing;

synthesizing when and how they may do so is another.

     Gaubert itself provides some clues as to when courts

ought to consult informal rules.  There, the Justices indicated

that such rules become significant to the discretionary function

analysis when an agency promulgates "regulations on some topics,

but not on others," or when it relies on "internal guidelines

rather than on published regulations" to govern official conduct. 

Gaubert, 499 U.S. at 324.  The Court contrasted these situations

with those in which agencies announced policy mainly through

rulemaking and/or adjudication.  See id.  Thus, if an agency

establishes policy primarily by promulgating legislative rules, and

if those legislative rules unambiguously define the nature of the

challenged conduct, the discretionary function inquiry is at an

end.

     Of course, this formulation requires that the legislative

rules be unambiguous and that they define the proper level of

conduct.  We can well imagine that resort to informal indicia may

be justified either when an agency's legislative rules define the

conduct of some employees, but not others (e.g., when the

regulations define the conduct of a regional official but not of a

subordinate whose negligence is alleged to have caused the

plaintiff's injury), or when legislative rules create ambiguity

(e.g., when the regulations interweave precatory with quasi-

mandatory language, as in Kelly v. United States, 924 F.2d 355,

360-61 (1st Cir. 1991)).  This case, however, involves neither of

these circumstances, nor does it involve any other fairly

comparable situation.  Here, the regulations flow rationally from

the enabling statute, directly address the level of conduct at

issue, and unambiguously grant OSHA compliance officers discretion

over the scope, manner, and details of conducting inspections. 

Where, as here, the statute and the applicable regulations clearly

speak to the nature of the conduct, there is no occasion to consult

informal rules.

     In this case, moreover, our conclusion would remain

unaffected even were we obliged to go beyond formal sources, for,

as the regulations adumbrate, OSHA's informal rules point

unerringly in the same direction.  At the relevant time, OSHA

published (and still publishes) a field operations manual (the

Manual), which is a compilation of agency guidelines.  These

guidelines are intended to limn the agency's operating procedures. 

The Manual devotes an entire chapter to describing "General

Inspection Procedures."  Discussing the responsibilities of

compliance officers, this chapter states in pertinent part:

     The conduct of effective inspections requires

     identification, professional evaluation, and

     accurate reporting of safety and health

     conditions and practices.  Inspections may

     vary considerably in scope and detail,

     depending upon the circumstances of each case.



From that point forward, the chapter essentially mirrors the

requirements set forth in the regulations.  Importantly, the Manual

contains no specific prescription mandating OSHA inspectors to

proceed item by item or to cover every nook and cranny of a

facility during a general administrative inspection.  Consequently,

even if it were necessary to consult informal rules in this

instance   and we stress that it is not   those rules place the

compliance officers' actions squarely in the maw of the

discretionary function exception.

     Of course, the Irving I panel directed the district court

to determine OSHA policy by looking beyond the clear statements in

the statute, the regulations, and the agency's internal guidelines. 

909 F.2d at 603-05.  In the circumstances of this case, that

directive should not have issued.  The Gaubert Court instructed

inferior courts to look to the requirements set forth by

"established governmental policy" in mounting a discretionary

function inquiry.  Gaubert, 499 U.S. at 324 (emphasis supplied).

     The Court specifically identified only statutes,

regulations, and agency guidelines as competent sources for

determining government policy.  See id.  Although we do not suggest

that those items invariably will be the exclusive sources for

determining established policy, it bears remembering that the

Court's recognition that informal rules may be a relevant source

took place against a background understanding, both in

administrative law generally and in the OSHA context specifically,

that agencies typically make authoritative informal statements of

policy positions through published interpretive rules or

enforcement guidelines.  See Martin v. OSHRC, 499 U.S. 144, 157

(1991).  Although anecdotal testimony sometimes may furnish clues

regarding the nature of agency policy, it is usually a last-ditch

resort.  See Kenneth C. Davis & Richard J. Pierce, Jr., 3

Administrative Law Treatise  17.3, at 108 (3d ed. 1994) (placing

unwritten rules and "officer's habit" at the bottom of a list of

twelve sources, headed by "legislative rules," and including

interpretative rules, published guidelines, published policy

statements, orders, and written but unpublished guidelines, and

noting that the power to limit officer discretion decreases "as the

reader proceeds down the list").

     The most obvious reason why such sources command less

weight is because it matters who speaks.  To determine what is

agency policy, courts customarily defer to the statements of the

official policymaker, not others, even though the others may occupy

important agency positions.  See Martin, 499 U.S. at 152-53; seealso Director, OWCP v. Eastern Associated Coal Corp., 54 F.3d 141,

147 (3d Cir. 1995).  This case is a suitable vehicle for

application of the principle.  Congress has the legal authority to

render a function either discretionary or obligatory, and it has

delegated that power to the Secretary, not to OSHA's area directors

or compliance officers.  Hence, we decline to accord decretory

significance to the area director's or compliance officers'

thoughts on OSHA policy requirements, especially when the plaintiff

insists on interpreting this testimony in a manner contrary to both

the express statements of Congress and the agency's institutional

pronouncements.  Accord Valdez v. United States, 56 F.3d 1177,

1179-180 (9th Cir. 1995) (refusing to credit agency employees'

testimony that agency rules were mandatory when plain text of

guidelines belied that interpretation; concluding, moreover, that

discretionary function exception barred action).

     We add a coda.  As the Irving I panel itself intimated,

909 F.2d at 604-05, the trial testimony does not  unequivocally

establish that OSHA imposed on its officers a  mandatory duty of

inspecting every piece of equipment in a workplace.  Rather, the

testimony on which the plaintiff relies (and upon which the

district court premised its holding) is at best ambiguous   and

this erodes any conceivable legitimacy that it otherwise may have

had as an expression of agency policy.  Thus, even setting aside

the statute, regulations, and Manual, we do not believe that any

statement in the trial record suffices to support the plaintiff's

theory that OSHA had a policy of exhaustively inspecting every

machine.

     By way of illustration, consider the following exchange,

which is perhaps the plaintiff's best evidence, between her counsel

and OSHA's area director, F. Richard Amirault:

     Q.   And, by the way, the obligation

          and procedure of your department

          is to note and cite specific

          violations, is it not?  



     A.   To note   document and  

          identify and document specific

          hazards, yes.  



     Q.   Machine by machine by machine?



     A.   As far as we can see. 



     Q.   Hazard by hazard by hazard?



     A.   As can be observed.



To begin with, the passage is internally ambiguous in at least one

critical way.  Given the tenor of Amirault's answers, it can be

construed to mean that inspectors were obligated to note and

document every hazard that they saw associated with the machines

that they in fact inspected.  At no point did Amirault state,

directly or by necessary implication, that there was a policy to

look at every machine.

     Furthermore, even if we interpret this passage favorably

to the plaintiff, it is inadequate as a matter of law to support

the plaintiff's position.  Where, as here, the express statements

of Congress and the agency occupy the field, trial testimony by a

witness must, if it is to carry any weight, somehow  reconcile the

witness's understanding of policy with that authority.  At the very

least, there must be an indication in the record that the witness

demonstrated his awareness of the agency's formal policy

statements, but nevertheless had some other articulable basis that

supported his understanding of agency policy.

     In the absence of such evidence, the most that is

suggested by a passage such as the one quoted above is that the

OSHA area director and the compliance officers who inspected the

Somersworth Shoe plant subjectively exercised, or intended to

exercise, the discretion conferred upon them by law in a particular

manner, or, alternatively, that they were unaware of the existence

of such discretion.  We know from Gaubert that the subjective

intent of an agency actor is irrelevant to conducting a

discretionary function analysis.  See Gaubert, 499 U.S. at 325. 

Rather, the focus of the inquiry is on "the nature of the actions

taken and on whether they are susceptible to policy analysis."  Id. 

The OSHA officers' ambiguous testimony in this case is by itself

insufficient to alter the nature of the actions as defined by

authoritative formal and informal sources.

     There are also passages in the trial record where

Amirault refers to OSHA guidelines.  This testimony further

undermines the plaintiff's theory.  For example, when plaintiff's

counsel asked Amirault about the Manual, Amirault responded that it

was OSHA's "procedural bible" and, as such, described his staff's

"operating procedure."  He unequivocally stated that inspections

were conducted pursuant to directions set forth by the Manual:

     Q.   So that for any general or

          regular inspection at least they

          [i.e., the compliance officers]

          would simply follow the manual

          and the objective standards of

          OSHA?



     A.   Right.  Following the manual,

          the FOM, Field Operations

          Manual.



This cinches the matter, for, as we have already noted, the Manual

provides no support for the plaintiff's theory.

     Our conclusion is further confirmed by other statements

made by Amirault.  Consider, for instance, the following exchange:

     Q.   And those programmed

          inspections, as I understand it,

          would be your random way of just

          doing spot checks on an entire

          plant without advance  notice?



     A.   Yes, that's correct.



     Q.   And those are the type of

          inspections that your agency

          performed on the Somersworth

          plant in 1975 and 1978?



     A.   Yes.



     Q.   We've learned through the

          depositions that those two

          inspections were what is known

          as a wall-to-wall inspection, is

          that correct?



     A.   I'm going to say yes.



     Q.   And in such an instance, when

          one of your safety men goes to a

          plant, he would spend the whole

          day or whatever time was

          necessary to inspect the entire

          plant for safety hazards. 



     A.   He would be able to walk

          through, yes.



Read naturally, this passage indicates that general administrative

inspections constitute nothing more than "walk throughs" that

involve random spot checks.  As such, it flatly contradicts the

suggestion that the inspectors "could not choose simply to spot

check certain areas,"  Irving I, 909 F.2d at 604, and it places the

inspection scheme squarely within the Varig Airlines regime.  On

any reading, the passage does not come close to establishing that

OSHA had a strict policy of requiring inspectors to look in detail

at every machine.

                   C.  Policy-Based Discretion.

     Having confirmed the existence of discretion on the

compliance officers' part, what remains is to examine whether that

discretion is grounded in policy   a question that none of the

prior panels reached.  We believe that it is.

     The plaintiff contends that the discretionary function

defense is doomed because the United States failed to adduce any

evidence to support the proposition that OSHA inspectors' actions

are grounded in policy.  This argument lacks force.  When a

function is discretionary, there is a presumption that "the agent's

acts are grounded in policy when exercising that discretion." 

Gaubert, 499 U.S. at 324.  Hence, the United States has no burden

of production; it may rest, as it did here, on the Gaubertpresumption.

     The plaintiff next endeavors to overcome the Gaubertpresumption by pointing to trial testimony by OSHA employees and

noting that they purportedly failed to articulate policy

justifications for their actions.  But Gaubert requires only that

a government agent's actions be "susceptible" to policy analysis,

and  insists that courts must disregard analyses that rely on

subjective intent to determine whether a discretionary choice is

policy-driven.  See id. at 325.  Because the plaintiff offers no

concrete challenge to the position that OSHA compliance officers'

actions are policy-driven, the Gaubert presumption remains intact.

     Even beyond the presumption, we believe that the

discretion granted to OSHA inspectors is deeply rooted in policy

considerations.  The OSH Act's purpose is to provide for a

satisfactory standard of safety, not to guarantee absolute safety. 

See Industrial Union Dep't v. American Petroleum Inst., 448 U.S.

607, 646 (1980) (plurality opinion) (discussing legislative

history); Donovan v. General Motors Corp., 764 F.2d 32, 35-36 (1st

Cir. 1985) (same); cf. Union of Concerned Scientists v. NRC, 824

F.2d 108, 118 (D.C. Cir. 1987) (citing Industrial Union and

stating, in the context of nuclear regulation, that an "adequate

protection" standard "need not, and almost certainly will not" be

a level of "zero risk").  A corollary to this observation is 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.  OSHA has done so in

part, for example, by adopting inspection priorities and an

administrative plan to govern programmed general inspections.  See,

e.g., Industrial Steel Prods. Co. v. OSHA, 845 F.2d 1330, 1333-34

(5th Cir. 1988) (describing OSHA site selection criteria for

programmed inspections).

     The function of an OSHA compliance officer is an integral

part of OSHA's enforcement policies.  When conducting inspections

under the auspices of an administrative plan, OSHA compliance

officers are expected to study the layout of the facility they are

about to investigate, to review its health and safety records, and

to interview employer and employee representatives during the

inspection about working conditions.  One might expect that as a

result of such study, OSHA inspectors will make daily judgments

about what risks and safety issues most urgently require their

attention.  At bottom, OSHA inspectors must visit numerous

workplaces, all of which present different challenges and issues,

and they simply cannot be expected to inspect every item in every

plant.  The day-to-day decisions made by compliance officers thus

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. 

Cf. Gaubert, 499 U.S. at 331-33 (explaining that day-to-day

decisions of thrift regulators were grounded in policies underlying

thrift regulation statutes).

     We are not persuaded by the plaintiff's contention that

all inspections ought to be painstakingly comprehensive because

individual companies rely on OSHA inspections to improve their

health and safety conditions.  The OSH Act, in no uncertain terms,

places primary responsibility for workplace safety on employers,

not on the federal government.  See 29 U.S.C.  654(a); Reich v.

Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993).



IV.  CONCLUSION

     This case has disturbing aspects.  The government's

inspectors appear to have been negligent and the plaintiff suffered

grievous harm.  Arrayed in opposition, however, is the core policy

that underlies the discretionary function exception:  an abiding

concern about exposing the government to far-flung liability for

action (or inaction) in situations in which it has reserved to its

own officials the decision about whether or not to act.  Even if

the decision may seem wrong in retrospect, or if its implementation

is negligent, such decisionmaking by its nature typically requires

a balancing of interests (e.g., how to deploy scarce government

resources in the accomplishment of worthwhile   but expensive  

public needs).  Congress reasonably struck this balance by

requiring that, ordinarily, liability will not inhere absent an

authoritative decision that a specific act should become a

governmental responsibility.  Under this model, the random and

uncodified practices of a local supervisor cannot create the kind

of specific obligation that gives rise to liability.  Were the law

otherwise, there would be scant likelihood of precision or

uniformity, and local supervisors would have a perverse incentive

to refrain from laying down any rules at all.

     We need go no further.  Even though exceptions to the

FTCA's waiver of sovereign immunity are construed narrowly, they

are not to be ignored.  Here, Congress clearly expressed its intent

through unequivocal statutory language, and the Secretary of Labor,

as Congress's delegate, adopted legislative rules which faithfully

adhere to that monition.  The statute and regulations, fairly read,

bring the case within the compass of the FTCA's discretionary

function exception, and the agency's internal guidelines buttress

this positioning.  Accordingly, we must grant the government the

immunity that Congress envisioned.  We regret only the plaintiff's

unfortunate accident and the added suffering she has endured due to

the inordinate delay and erratic decisionmaking that spawned two

decades of needlessly protracted litigation.



Reversed.  No costs.


Separate Opinions Follow       STAHL, Circuit Judge, (concurring).  Despite strong

reservations, I joined the withdrawn panel opinion, see Irving v.

United States, 1998 WL 152941 (1st Cir. Apr. 8, 1998), because I was

then bound by the interpretation of the discretionary function

exception set forth in Irving v. United States, 909 F.2d 598 (1stCir. 1990) (Irving I).  Having endorsed the decision of the en banccourt to revisit Irving I, I now concur in the view, ably stated in

Judge Selya's majority opinion, that the discretionary function

exception forecloses plaintiff's negligent inspection claim. 

Although the issue is close and no Supreme Court case is directly

on point, I do not believe that, in a regulatory context that is so

obviously discretionary, Congress would intend to make actionable

under the FTCA an ignored instruction from a superior to a

subordinate that the subordinate perform a function that is

otherwise discretionary (for policy-based reasons).  To my mind, an

ignored instruction of this sort is better conceptualized as an

abuse of the discretion conferred by the regulatory regime.  Such

abuses of discretion are not within the reach of the statute.  See28 U.S.C.  2680(a).     BOWNES, Senior Circuit Judge, with whom LIPEZ, Circuit

Judge, joins (dissenting).  The majority opinion fundamentally

misconstrues controlling Supreme Court precedent in analyzing the

discretionary function exception to the Federal Tort Claims Act

("FTCA").  The majority is concerned that permitting Irving's claim

to succeed would undermine OSHA's broad discretion in deciding how

to implement its enforcement policy.  No one disputes that the

agency as a whole retains considerable discretion.  The problem is

that the majority undertakes its analysis from the wrong vantage

point.  

     As the Supreme Court has made clear, the appropriate

focus is the degree of choice that was in fact available, not to

the agency as a whole but to the specific "acting employee" whose

conduct is the basis for the tort action.  Berkovitz v. United

States, 486 U.S. 531, 536 (1988).  The discretionary function

exception shields the government from lawsuits challenging

governmental action only if that specific action was based on

discretion grounded in policy.  See id.  The exception was intended

to protect only such specific policy-based judgment.  The present

case involves no second-guessing of protected policy-making.

     A parallel problem is the majority's mischaracterization

of Gail Irving's position.  Irving does not contend "that all

[OSHA] inspections ought to be painstakingly comprehensive."  Maj.

Op. at 34.  Her claim, properly construed, is that once inspectors

have been ordered by their supervisor to perform a wall-to-wall

inspection, they must do so with due care.  Irving argues that if

the inspectors had followed their superiors' orders, she would not

have had her scalp torn from her head.  Thus, she contends that the

negligent inspections were not protected by the discretionary

function exception because the inspectors had "no rightful option

but to adhere to the directive" of their superior officer.  SeeBerkovitz, 486 U.S. at 536.

     Because in my view the district court properly concluded

that the exception does not bar Irving's claim, I respectfully

dissent.                                I

     The FTCA, except for certain enumerated exceptions,

"waives the Government's immunity from suit in sweeping language." 

Smith v. United States, 507 U.S. 197, 205 n.1 (1993) (quoting

United States v. Yellow Cab Co., 340 U.S. 543, 547 (1951)).  The

FTCA authorizes suits against the United States for damages

     for . . . 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 under the law of the place where the

     act or omission occurred.



28 U.S.C.  1346(b).  The FTCA is a "broad waiver of sovereign

immunity," which "generally authorizes suits against the United

States for damages" that fit within its description.  Berkovitz,

486 U.S. at 535.  This waiver applies unless the government is

protected by one of several specifically enumerated exceptions to

the FTCA.   Id.; see 28 U.S.C.  2680. 

     The majority opinion relies upon the discretionary

function exception, which provides that no liability shall lie for

"[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."  28 U.S.C.

 2680(a).

     Congress's purpose in enacting the discretionary function

exception was 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."  United

States v. Varig Airlines, 467 U.S. 797, 814 (1984); see alsoBerkovitz, 486 U.S. at 539.  Thus, the exception was designed to

protect government agents' exercise of policy-based discretion, to

prevent individual government agents from having to look over their

shoulders worrying about a potential lawsuit when they are truly

exercising policy-based discretion.

     The same protective rationale does not apply when

government agents are merely carrying out mandatory directives,

whatever the basis of those mandatory orders.  If a government

employee has no choice about how to act   whether because a

statute, regulation, or agency policy mandates particular actions

for all such employees, or for whatever other reason (here, because

his supervisor explicitly ordered him to conduct a wall-to-wall

inspection)   then "there is no discretion in the conduct for the

discretionary function exception to protect."  Berkovitz, 486 U.S.

at 536.

     Thus, the Court has set forth a two-prong test to

determine whether the discretionary function exception applies. 

First, the acting government employee must be exercising

discretion, when he engages in the challenged conduct.  And second,

even when government agents are exercising discretion, their

conduct is immune from tort suits only when that discretion is

based on policy.  The exception "protects only governmental actions

and decisions based on considerations of public policy."  Id. at

537.

                                II

     The majority misses an important part of the Supreme

Court's analysis of the discretionary function exception:  from

what vantage point should the court view the conduct of government

agents?  In this case, what level of OSHA employees is the proper

focus for our attention?  "The proper question to ask is not

whether the Government as a whole had discretion at any point, but

whether its allegedly negligent agents did in each instance."  In

re The Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995).  Instead,

the majority focuses on the discretion of the agency as a whole, at

the command level.  This fundamental misconception of the

discretionary function exception infects the majority's entire

analysis.  It leads the majority to misunderstand Irving's claim

and to misapply the law governing the discretionary function

exception.

                                A

     Section 2680(a) refers to two different types of

discretion:  (1) the "performance . . . [of] a discretionary

function or duty on the part of a federal agency" and (2) such

"performance . . . on the part of . . . an employee of the

Government."  The majority's analysis centers on the first type. 

Citing both the statute and the regulations, it emphasizes that the

agency as a whole had discretion in carrying out its statutory

inspection functions.  Of course it did.  If the plaintiff had

challenged OSHA's hypothetical decision to conduct inspections upon

only a random sample of factories, or a supervisor's decision to

omit Somersworth Shoe from that sample, or an order that the

inspectors conduct only a spot check and not a wall-to-wall

inspection of Somersworth Shoe, then I would agree with the

majority that her claim must be dismissed based on the

discretionary function exception.    If Amirault did not have the authority to order a wall-to-wall inspection, e.g., because

    the statute or regs precluded him from doing so, then his order would be ultra vires and

  Irving could not rely on it.  

         But that is merely the first type of discretion addressed

    in  2680(a) ("performance . . . [of] a discretionary function or

    duty on the part of a federal agency").  The plain language of the

    statute requires a distinction between this type of discretion and

    the second type:  "performance [of] . . . a discretionary function

    or duty on the part of . . . an employee of the Government."  28

    U.S.C.  2680(a).  The latter is the focus of Irving's complaint.

         Here, OSHA exercised its discretion, at the command level

    of the agency, about how to allocate its scarce resources.  It

    delegated to each area office a certain amount of discretion to

    conduct various types of inspections.  Pursuant to that delegation,

    as Irving alleged and the district court found, the area office

    here decided to deploy its inspection resources by calling for less

    than complete inspections of some factories but, in the case of

    Somersworth Shoe, by requiring wall-to-wall inspections of its New

    Hampshire plant.  The area director instructed two members of his

    staff, inspectors Chase and Ritchie, to examine every machine in

    the plant.  Irving v. United States, 942 F. Supp. 1483, 1491 & n.8

    (D.N.H. 1996).

         Thus, the agency's discretionary policy decisions were

    completed as soon as the area director made his "wall-to-wall"

    decision; the agency had committed itself to this undertaking,

    before the inspectors set foot on the premises of Somersworth Shoe. 

    It was after these discretionary policy decisions had been

    completed that the inspectors negligently executed the agency's

    policy, giving rise to the injuries suffered by the plaintiff.  At

    that point, Chase and Ritchie, the inspectors, had "no rightful

    option but to adhere to the directive" from their supervisor and

    examine every machine in the plant.  Berkovitz, 486 U.S. at 536. 

    The conduct of Chase and Ritchie "cannot appropriately be the

    product of judgment or choice, [so] there is no discretion in

    [their] conduct for the discretionary function exception to

    protect."  Id.

    

                                  B

         The plain language of the statute is only one reason why

    the majority is wrong to focus only on the upper levels of the

    agency   rather than the inspectors whose actions Irving is

    challenging   for determining whether the discretionary function

    exception applies.  Controlling Supreme Court precedent likewise

    demonstrates the majority's error.  The principal Supreme Court

  case explicating the discretionary function exception is Berkovitzv. United States, 486 U.S. 531 (1988).  

   The Court's opinion exposes the majority's error in three

different ways:  (1) in the Court's analysis of the discretionary

function exception, (2) in the Court's discussion of prior Supreme

Court precedent, to harmonize those cases with the Berkovitzanalysis, and (3) in the Court's application of its legal analysis

to the facts of Berkovitz's claims.  Because of the importance of

the Berkovitz case, and because this court is duty-bound to

faithfully apply Supreme Court precedent, I will discuss each of

these in some detail.

                                1

   The Berkovitz Court set forth clearly the mode of

analysis that we should employ in cases such as this:

   The determination of whether the discretionary

   function exception bars a suit against the

   Government is guided by several established

   principles.  This Court stated in Varig that

   "it is the nature of the conduct, rather than

   the status of the actor, that governs whether

   the discretionary function exception applies

   in a given case."  In examining the nature of

   the challenged conduct, a court must first

   consider whether the action is a matter of

   choice for the acting employee.  This inquiry

   is mandated by the language of the exception;

   conduct cannot be discretionary unless it

   involves an element of judgment or choice.  



Id. at 536 (citation omitted) (emphasis added).  

   The Court's methodology, which was plainly not followed

by the majority in this case, requires that we ask what "conduct"

is "challenged" by the plaintiff in the particular case, determine

which employee in the agency has engaged in that conduct, and then

consider "whether the action is a matter of choice for the acting

employee."  Id.  

   The Court's focus on "the acting employee" is equally

plain from the next passage of Berkovitz:

   [T]he 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.  And if the

   employee's conduct cannot appropriately be the

   product of judgment or choice, then there is

   no discretion in the conduct for the

   discretionary function exception to protect. 

   Cf. Westfall v. Erwin, 484 U.S. 292, 296-97

   (1988) (recognizing that conduct that is not

   the product of independent judgment will be

   unaffected by threat of liability).



Id. (citation omitted; emphasis added).  

 The Court could not have been more clear that, when we

examine whether there is "discretion in the [challenged] conduct

for the discretionary function exception to protect," we must focus

on the individual employee whose "conduct" is "challenged" by the

plaintiff.  Here, that is Chase and Ritchie.  The challenged

conduct is their failure to inspect the die-out machine that

injured Irving, despite having been ordered by their supervisor to

inspect every machine.  Where, as here, the acting employee has

been ordered by his supervisor to proceed in a certain manner, and

the plaintiff is seeking recompense for injuries resulting from

that employee's failure properly to follow that command, then it is

irrelevant that "the statute places virtually no constraint on the

Secretary's discretion to conduct such inspections in any way that

she deems fit," maj. op. at 17, or that OSHA's generally applicable

"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

18.

 Of course the Secretary and her top assistants have broad

discretion in managing the agency's enforcement enterprise, as do

any subordinate officials to whom that discretion is properly

delegated.  But this does not mean that front-line inspectors have

any discretion once decisions have been made by their superiors in

the hierarchy and a mandatory directive has been given to the

inspectors.

 The Court in Berkovitz moved on to the second prong of

its analysis:  even "assuming the challenged conduct involves an

element of judgment," was that judgment based on policy?  There,

too, the Court looked at this question at the level of the

individual whose actions are challenged by the plaintiff in the

case at hand:  "The exception, properly construed, . . . protects

only governmental actions and decisions based on considerations of

public policy.  In sum, the discretionary function exception

insulates the Government from liability if the action challenged in

the case involves the permissible exercise of policy judgment." 

Berkovitz, 486 U.S. at 537 (citation omitted; emphasis added). 

Again, the focus is on the particular "action challenged in the

case"   the shoddy inspection by Chase and Ritchie   and not on

whether the agency as a whole   or even a supervisor like Amirault

  "exercise[s] . . . policy judgment."  See id.; In re The Glacier

Bay, 71 F.3d at 1451.

                                2

 The Berkovitz Court next discussed prior Supreme Court

precedent, to demonstrate how those prior decisions fit into the

Court's analytical framework.  This discussion again stresses the

importance of keeping the analysis focused at the level of the

acting government employee.

 The Court first analyzed the actions challenged in Varig

Airlines, namely, the FAA's negligence in certifying certain

airplanes for operation, including its decision to certify the

airplanes without first inspecting them.  

 Congress had given the Secretary of

 Transportation broad authority to establish

 and implement a program for enforcing

 compliance with airplane safety standards.  In

 the exercise of that authority, the FAA, as

 the Secretary's designee, had devised a system

 of "spot-checking" airplanes for compliance. 

 Th[e Supreme] Court first held that the

 establishment of that system was a

 discretionary function within the meaning of

 the FTCA because it represented a policy

 determination as to how best to "accommodat[e]

 the goal of air transportation safety and the

 reality of finite agency resources."



Berkovitz, 486 U.S. at 537 (quoting Varig Airlines, 467 U.S. at

820).  Applying this portion of the analysis to the present case,

OSHA's broad discretion in devising its methodology for conducting

inspections, whether "spot-checking" or some other method, is

protected under the discretionary function exception.

 But the Court's analysis did not end there.  Varig

Airlines also held that the discretionary function exception

protected "the acts of FAA employees in executing the 'spot-check'

program," because under this program the employees "were

specifically 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."  Varig Airlines,

467 U.S. at 820.  The Berkovitz Court added the following

explanation:  "Thus, the Court [in Varig Airlines] held the

challenged acts protected from liability because they were within

the range of choice accorded by federal policy and law and were the

results of policy determinations."  Berkovitz, 486 U.S. at 538

(emphasis added).

 This second set of actions   executing the "spot-check"

program   is not analogous to the Irving situation.  The crucial

distinction is that Varig's spot-check protocol left the FAA's

line-level employees with a "range of choice" based on "policy"

judgments.  In contrast, the OSHA inspectors in Irving were not

executing a "spot-check" protocol; they were specifically ordered

by their superiors to inspect every machine.  They thus had zero

"range of choice."  Berkovitz, 486 U.S. at 538.  They had no

discretion, whether based on policy judgment or otherwise, to

decide unilaterally during their inspection of the Somersworth

plant not to inspect the die-out machine that caused Irving's

injuries.  These inspectors' shoddy execution does not involve "the

necessary element of choice," grounded in policy, United States v.

Gaubert, 499 U.S. 315, 323 (1991), that the discretionary function

exception was intended to protect.

 Berkovitz also analyzed Indian Towing Co. v. United

States, 350 U.S. 61 (1955), as "illuminat[ing] the appropriate

scope of the discretionary function exception."  Berkovitz, 486

U.S. at 538 n.3.  The plaintiff in Indian Towing sued the

government for failing to maintain a lighthouse in good working

order.  The Court stated that the initial decision to undertake and

maintain lighthouse service was a discretionary judgment.  SeeIndian Towing, 350 U.S. at 69.  Thus, if the agency had instead

exercised its discretionary judgment to decline such an

undertaking, the government would be insulated from tort liability. 

This is analogous to OSHA's decision whether to undertake a wall-

to-wall inspection of the Somersworth Shoe plant.  

 "The Court [in Indian Towing] held, however, that the

failure to maintain the lighthouse in good condition subjected the

Government to suit under the FTCA," because "[t]he latter course of

conduct did not involve any permissible exercise of policy

judgment."  Berkovitz, 486 U.S. at 538 n.3.  The failure by agency

employees to exercise ordinary care in carrying out an undertaking

that the government agency willingly undertook is not protected by

the discretionary function exception.  This latter aspect of Indian

Towing is analogous to the OSHA inspections challenged in the

present case.

                                3

 A third aspect of the Berkovitz decision further

undermines the majority's focus on the discretion permitted to be

exercised by the highest levels of OSHA.  In Part III of its

opinion, the Court discussed the specific actions that the

Berkovitz plaintiffs challenged.  The Court's mode of analyzing

each of the five possible claims illuminates how our court should

have examined the applicability of the discretionary function

exception.

 The Division of Biologic Standards (DBS) of NIH had

issued a license to Lederle Laboratories to produce a drug called

Orimune.  The plaintiffs alleged that DBS issued the license

without first receiving certain data that the manufacturer was

required to submit showing its compliance with regulatory safety

standards.  The Court held that the discretionary function

exception did not bar a cause of action based on this allegation,

because the statute and regulations "require, as a precondition to

licensing, that the DBS receive" that data, and DBS had "no

discretion to issue a license without first receiving the required

test data."  Berkovitz, 486 U.S. at 542.  The actor in Berkovitzwas whatever level of the agency made the decision to issue the

license.  Viewing the facts from that vantage point, there was "no

discretion . . . for the discretionary function exception to

protect" because of the statutory mandate.

 The plaintiffs in Berkovitz also alleged that DBS

licensed Orimune without complying with other regulatory standards. 

The allegation was ambiguous and the Court explored three different

possible interpretations.  Under a DBS regulation, DBS "may not

issue a license except upon an examination of the product and a

determination that the product complies with all regulatory

standards."  Berkovitz, 486 U.S. at 544.  Thus, if the plaintiffs

were "aver[ring] that the DBS licensed Orimune either without

determining whether the vaccine complied with regulatory standards

or after determining that the vaccine failed to comply, the

discretionary function exception does not bar the claim."  Id. at

544.  This is because "[t]he agency has no discretion to deviate"

from its "clear duty," i.e., from the procedures mandated by its own

regulations.

 The Court applied a different analysis to the third

possible interpretation of the plaintiffs' claim:  that the agency

found Orimune to comply with regulatory standards but that the

agency's conclusion was incorrect.  This question "hinges on

whether the agency officials making that determination permissibly

exercise policy choice . . . in determining that a vaccine product

complies with the relevant safety standards."  Id. at 545 (emphasis

added).  Because the record was unclear on this point, the Court

remanded for appropriate findings by the district court. 

 The Berkovitz plaintiffs made another allegation:  that

DBS had approved the release of the particular lot of Orimune that

contained Kevan Berkovitz's dose, and the agency violated federal

policy in approving the release of that lot.  The Court therefore

considered whether the discretionary function exception applied to

the release of a particular lot of the vaccine, as distinct from

the issuance of a license to produce the drug.  The regulations

governing particular lots do not impose a duty on DSB to ensure

that the vaccines comply with regulatory standards, nor do they

require DSB to inspect every lot.  Instead, "[t]he regulations

generally allow [DSB] to determine the appropriate manner in which

to regulate the release of vaccine lots, rather than mandating

certain kinds of agency action."  Id. at 546.  

      Given this regulatory context, the

 discretionary function exception bars any

 claims that challenge [DSB's] formulation of

 policy as to the appropriate way in which to

 regulate the release of vaccine lots.  Cf.[Varig Airlines, 467 U.S.] at 819-20 (holding

 that discretionary function exception barred

 claim challenging FAA's decision to establish

 a spot-checking program).  In addition, if the

 policies and programs formulated by [DSB]

 allow room for implementing officials to make

 independent policy judgments, the

 discretionary function exception protects the

 acts taken by those officials in the exercise

 of this discretion.  Cf. id. at 820 (holding

 that discretionary function exception barred

 claim that employees charged with executing

 the FAA's spot-checking program made negligent

 policy judgments respecting the proper

 inspection of airplanes).  The discretionary

 function exception, however, does not apply if

 the acts complained of do not involve the

 permissible exercise of policy discretion. 

 Thus, if [DSB's] policy leaves no room for an

 official to exercise policy judgment in

 performing a given act, or if the act simply

 does not involve the exercise of such

 judgment, the discretionary function exception

 does not bar a claim that the act was

 negligent or wrongful.  Cf. Indian Towing v.

 United States, 350 U.S. at 69 (holding that a

 negligent failure to maintain a lighthouse in

 good working order subjected the Government to

 suit under the FTCA even though the initial

 decision to undertake and maintain lighthouse

 service was a discretionary policy judgment).



Berkovitz, 486 U.S. at 546-47 (emphasis added).  

 This passage again makes clear the Court's view that, in

determining whether a particular (allegedly negligent) act is

exempt from the FTCA under the discretionary function exemption,

Berkovitz requires us to examine the particular government agent

who "performed [the] given act," and to determine whether particular

conduct is discretionary by looking at the "range of choice" the

agency has delegated to the particular employee in performing the

task in question.

 The plaintiffs in Berkovitz had alleged that DBS had

 adopted a policy of testing all vaccine lots

 for compliance with safety standards and

 preventing the distribution to the public of

 any lots that fail to comply.  [Plaintiffs]

 further allege[d] that notwithstanding this

 policy, which allegedly leaves no room for

 implementing officials to exercise independent

 policy judgment, employees of [DBS] knowingly

 approved the release of a lot that did not

 comply with safety standards.  Thus,

 [plaintiffs'] complaint is directed at a

 governmental action that allegedly involved no

 policy discretion.



Id. at 547 (citation omitted; emphasis added).  

 The Berkovitz Court held that, "[i]f those allegations

are correct   that is, if [DBS's] policy did not allow the official

who took the challenged action to release a noncomplying lot on the

basis of policy considerations   the discretionary function

exception does not bar the claim."  Id.  It was therefore improper

to dismiss plaintiffs' claim regarding the release of the

particular lot of vaccines.  See id. at 548.

 The Berkovitz lot release allegations are analogous to

Irving's claim that the "implementing officials" at OSHA (the line-

level inspectors, Chase and Ritchie) were "le[ft] no room . . . to

exercise independent policy judgment" because their supervisors

mandated that they follow a particular inspection protocol.  Id.at 547.  Thus, as in Berkovitz, we must parse the distinction

between a regulatory agency's higher-level exercise of discretion

in determining agency policy and procedure   which is exempt under

 2680(a)   and the implementation of that policy by the official

who took the challenged action   which is exempt only if the

employee himself is given his own policy-based discretion to

"exercise independent policy judgment" in how to carry out his job. 

Id.

 The staff employee's implementation conduct is not exempt

from the FTCA if the employee has no choice but to comply with a

higher-level mandate.  And it makes no difference whether that

higher-level mandate comes from an agency regulation that adopts a

policy for all employees, saying they all must follow a particular

procedure in all particular situations, or whether the higher-level

mandate comes to the line-level employee from his or her immediate

supervisor as the manner in which to conduct his inspection of this

particular plant.  The question is whether the individual

"employee's conduct can[] appropriately be the product of judgment

or choice" on his part; if not, then "there is no discretion in the

conduct for the discretionary function exception to protect." 

Berkovitz, at 536.

                                C

 The Court's most recent FTCA discretionary function case,

United States v. Gaubert, 499 U.S. 315 (1991), is fully consistent

with this approach.  The plaintiff in Gaubert challenged the

allegedly negligent manner in which federal bank regulators had

offered advice and made recommendations to a savings and loan

institution.  He argued that "the discretionary function exception

protects only those acts of negligence which occur in the course of

establishing broad policies, rather than individual acts of

negligence which occur in the course of day-to-day activities." 

Id. at 334.  The Court rejected the plaintiff's distinction between

policy-making and operational decisions, reaffirming Berkovitz's

focus on whether the actions of the particular government employee

"involv[ed] the necessary element of choice" that was grounded in

regulatory policy.  Id. at 323.  

 The Court offered the example of a federal official

negligently driving an automobile while on a mission connected with

his official duties, concluding that "the [discretionary function]

exception would not apply.  Although driving requires the constant

exercise of discretion, the official's decisions in exercising that

discretion can hardly be said to be grounded in regulatory policy." 

Id. at 325 n.7.  The exception is no more applicable to Irving's

case:  even if the majority can somehow muster an argument that a

compliance inspector has discretion to refuse to follow his

supervisor's direct order about how thoroughly to inspect a

particular plant, any such discretion "can hardly be said to be

grounded in regulatory policy."  Id.  

 In contrast, the regulators' actions that Gaubert

challenged were within their range of policy-based discretion. 

They included replacing the bank's management; urging it to convert

to federal charter; intervening with a state regulatory agency;

advising the hiring of a financial consultant; advising when to

place a subsidiary into bankruptcy; advising on litigation policy;

and mediating salary disputes.  These are not at all analogous to

Chase and Ritchie's negligent failure to inspect every machine in

the Somersworth Shoe plant, in contravention of the direct order of

their supervisor to do so.

                                D

 Unlike the majority here, other circuits have followed

the Supreme Court's teachings in analyzing discretionary function

cases.  For example, in Kennewick Irrigation Dist. v. United

States, 880 F.2d 1018, 1031-32 (9th Cir. 1989), the Ninth Circuit

held that a claim that the government negligently constructed a

canal was not barred because the "contracting officer's on-site

decisions" were not based on "policy judgments," and hence "were not

of the nature and quality that Congress intended to shield from

tort liability."  In Phillips v. United States, 956 F.2d 1071 (11th

Cir. 1992), the Eleventh Circuit held that the exception was not

applicable to a claim that the Army Corps of Engineers failed to

exercise due care in carrying out mandatory safety obligations.  In

Murdock v. Employer's Ins. of Wausau, 917 F.2d 1065 (8th Cir.

1990), the court held the exception did not preclude a claim that

the government failed to ensure that proper procedure was followed

in conducting excavation work.  And in Cope v. Scott, 45 F.3d 445,

449 (D.C. Cir. 1995), the Third Circuit held that the exception did

not apply to the claim that the government had failed to post

adequate warning signs of dangerous road conditions.

                               III

 It is true that the majority pays lip service to the

appropriate focus:  "We recognize that, by its plain terms, the OSH

Act confers discretion only upon the Secretary, not upon compliance

officers   and it is the latter's conduct that concerns us."  Maj.

Op. at 18.  But the majority then shifts its focus.  It bases its

analysis not on the scope of discretion actually delegated to the

two inspectors whose conduct is challenged in the instant case, but

rather on regulations and manuals that generally grant OSHA

compliance officers broad discretion in the conduct of their

inspections.  Id. at 18-19.  

 The majority overstates the significance of the OSH Act

and the relevant guidelines.  According to the majority, "the

statute and applicable regulations clearly speak to the nature of

the conduct" at issue in this case.  But they do not.  The statute

does not unambiguously permit inspectors to perform incomplete

inspections, nor does it clearly leave discretion to the individual

inspectors to decide just how comprehensive inspections must be,

regardless of direct instructions from their superior officers. 

Rather, the statute only confers jurisdiction on the Secretary to

perform inspections, and says nothing at all about how

comprehensive they must be.   

 The majority finds it "[o]f particular importance" that

"the regulations do not prescribe any specific regimen governing

the scope or detail of general administrative inspections performed

by compliance officers."  Id. at 19.  But neither do the

regulations preclude all supervisors from exercising any

independent authority in managing the agency's work force. 

Regulations setting forth OSHA's general enforcement authority vis-

a-vis employers do not speak to the question of how the agency may

organize its staff into a hierarchy of managers, various levels of

supervisors, and line-level subordinate staff.  As the Court stated

in Gaubert in an analogous situation, there is "no prohibition

against the use of supervisory mechanisms not specifically set

forth in statute or regulation."  499 U.S. at 330.  The majority

cannot seriously read OSHA's general regulations, applicable

agency-wide, to transform OSHA supervisors into automatons who must

tell all subordinate inspectors nothing more than "go out and

exercise your own broad discretion."

 Thus, the regulations cannot be read to deprive a

supervisor, in this case the area director, of all authority, in a

particular set of circumstances, to issue a specific instruction

mandating that a particular compliance officer take specific

actions when inspecting a particular factory (in this case,

instructions as to the degree of thoroughness of the inspection). 

Surely, a subordinate compliance officer cannot refuse such an

instruction on the theory that supervisory direction would violate

the broad discretion given to him or her in the regulations.  A

subordinate employee does not have the "discretion" to disregard a

direct order from his supervisor merely because there is no

regulation or other "established governmental policy" that

specifically requires such action of all inspectors in all

circumstances.  In the present case, it is enough that one

particular area director, Amirault, did prescribe certain

limitations on compliance inspectors Chase and Ritchie, with

respect to their inspections of the Somersworth Shoe factory.

 The majority ignores Amirault's direct order because, it

asserts,"'wall-to-wall' inspections are no more than the general

administrative inspections described by the statute, regulations,

and guidelines."  Maj. Op. at 25 n.10.  Whatever may be true of the

ordinary case, the facts of this case are different and require a

different result.  It is true that the general language of the

statute, regulations, and guidelines ordinarily permit inspectors

to exercise "the same broad discretion enjoyed by the Secretary

with respect to such inspections."  Maj. Op. at 21.  But in thiscase, area director Amirault ordered inspectors Chase and Ritchie

to do more than merely conduct a general administrative inspection;

he ordered them to "look at the entire plant."  "As far as humanly

possible, [Chase and Ritchie] were supposed to cover the work

place" and "observe any place where the employee works," "look[ing]

at every operation" and "observing and documenting any violative

condition."  These facts were found by the district court and its

factual findings are supported by record evidence and are not

clearly erroneous.  See Part VI, infra.

 Even the government recognizes that the district court's

finding   that Chase and Ritchie were required, in their

"particular inspections," to "inspect every operational machine in

the plant"   was "limited to the specific factual circumstances it

found existed during the time and area covered by Mr. Amirault's

testimony."  Gov't Br. to Panel at 4-5 n.1.  Indeed, such

limitation is the reason why the government decided not to "appeal

the court's finding regarding the application of the discretionary

function exception to this case."  Id.

 The proper inquiry therefore becomes whether Chase and

Ritchie in fact retained any policy-based discretion, in failing to

carry out Amirault's specific order to perform a wall-to-wall

inspection.  The majority's sweeping discussion of overall OSHA

discretion in handling its inspections utterly fails to address

this inquiry, and it certainly contains no support for the kind of

affirmative response that would justify application of the

discretionary function exception.  On the contrary, it is clear

from the facts as found by the district court that the answer to

the proper question is "no," and the exception is inapplicable.  If,

as the district court found, inspectors Chase and Ritchie had no

such discretion, see Part VI, infra, then they had "no rightful

option" about what action to take, and therefore the discretionary

function exception does not apply, Berkovitz, 486 U.S. at 536.

 The majority cites Gaubert for the proposition that

"informal agency rules and similar pronouncements may at times bind

agency personnel for the purposes of discretionary function

exception analysis."  Maj. Op. at 22 (citing Gaubert, 499 U.S. at

324).  This still focuses on generally applicable "pronouncements." 

 What the majority fails to recognize is that a

supervisor's mandate to a subordinate agency official will "bind"

the subordinate in the conduct of his official duties, every bit as

much as "agency rules," formal or informal.  Such a binding order

will preclude the subordinate from exercising discretion to any

extent other than that allowed within the supervisor's command. 

Thus, "for the purposes of discretionary function exception

analysis," courts should consult such individualized constraints "in

appropriate cases to determine whether a particular function is (or

is not) discretionary."  Maj. Op. at 22.

 In sum, the majority fails to follow the Court's guidance

on the most fundamental question.  The majority focuses its

analysis on the discretion that OSHA and its command-level

employees enjoy to determine how it will enforce the Act, including

how thoroughly to inspect any given factory.  The majority fails to

apply the Court's analysis which centers on the extent of

discretion exercised by the particular agency employee whose

actions are challenged by the plaintiff.  This focus should prevail

at both steps of the Berkovitz analysis.  

 Here, it is difficult to see any policy judgment in

negligently carrying out a commanded inspection or in flouting a

supervisor's direct order.  But even if some such discretion did

exist, we still have to reach Berkovitz's step two, which asks

whether such discretion was based in political, social, or economic

policy, for Congress intended to "protect[] only governmental

actions and decisions based on considerations of public policy." 

Gaubert, 499 U.S. at 323 (quoting Berkovitz, 486 U.S. at 537).  And

any discretion Chase and Ritchie might have enjoyed to negligently

carry out a commanded inspection "can hardly be said to be grounded

in regulatory policy."  Id. at 325 n.7.

                                IV

 In its attempt to apply the appropriate legal doctrine

here, the majority opinion repeatedly distorts Irving's theory of

the case, characterizing it as alleging "that OSHA had a policy of

exhaustively inspecting every machine," Maj. Op. at 28; "that OSHA

had a strict policy of requiring inspectors to look in detail at

every machine," id. at 31; "that all inspections ought to be

painstakingly comprehensive," id. at 34; "expect[ing] [OSHA

inspectors] to inspect every item in every plant," id.; and "zero

tolerance for any kind of risk," id. at 34 n. 13.  The majority

then bravely shoots down this straw man.  

 But it bears no relationship to Irving's theory of the

case.  The conduct that Irving challenges is Chase and Ritchie's

failure to inspect every machine in the Somersworth Shoe factory

after receiving binding instructions from their supervisor to do

so.  She does not argue that OSHA inspectors must "inspect every

item in every plant."  Maj. Op. at 33-34.  With respect only to the

Somersworth Shoe plant, Amirault had already weighed the competing

policy interests and concluded that this particular inspection must

be wall-to-wall, with every machine inspected and every violation

documented.  Thus, the two inspectors who actually visited the

Somersworth plant had no choice about how extensively to inspect;

there was no room for them to exercise judgment or consider agency

policy concerns when it came to determining whether to skip any

machines; they had no discretion in the matter at all, whether

driven by policy or otherwise.  They had orders and they were to

follow them.  The fact that OSHA's upper management had a great

deal of discretion to choose various methods of enforcement in

deciding which plants around the country to inspect, whether to do

spot checks for some and wall-to-wall inspections for others, is

quite irrelevant from the point of view of the "Government agent[s]"

whose "acts" the Court told us to scrutinize in cases like this. 

Gaubert, 499 U.S. at 324; see Berkovitz, 486 U.S. at 536, 547.  In

this rare case, those higher officials had already chosen to

exercise their discretion in a particular way, and their actions in

so deciding are not being challenged here.

 The majority makes much of the fact that OSHA's resources

are limited and that OSHA must be permitted discretion to choose

how best to allocate such resources.  But Irving does not challenge

OSHA's allocation of resources any more than she challenges OSHA's

enforcement policy in general or the decision to inspect one site

rather than another.  Rather, she challenges only the thoroughness

with which the inspection was carried out after the decision had

been made to inspect this particular site in a particular way,

i.e., after the inspectors were specifically instructed to conduct

wall-to-wall inspections.  The Eleventh Circuit's admonition is

also applicable to OSHA (and virtually all federal agencies):  

 "Because resources are limited, it is axiomatic

 that discretion must be used in allocating

 available resources. . . . Nevertheless, this

 does not mean that a federal employee's every

 choice is a policy judgment shielded from

 liability through the operation of the

 discretionary function exception."  



Phillips, 956 F.2d at 1075.

 The majority blurs the distinction, implicitly lumping

together Irving's claim with a theoretical challenge to high-level

agency resource-allocation decisions.  This fundamental failure

carefully to parse her claim is contrary to the Supreme Court's own

detailed practice, as evidenced by Gaubert and Berkovitz, and it

infects the majority's entire analysis.  See, e.g., Murdock, 917

F.2d at 1073 (carefully distinguishing between claims, barring

claim concerning decision as to what procedure should be used to

conduct excavation but not precluding claim as to government's

"failure to ensure that procedure was followed").

 Moreover, as noted supra, while the Supreme Court has

rejected a rigid dichotomy between high-level and operational

decisions, see Gaubert, 499 U.S. at 326, the relative place of the

individual within the hierarchy does shed some light on the

question of whether that "acting employee's" conduct is of the kind

that Congress would have shielded.  See id. at 335 (Scalia, J.,

concurring); Coumou v. United States, 114 F.3d 64, 65 (5th Cir.

1997) (recognizing some difference "between decisions at a planning

level, or decisions that exercise policy judgment, and decisions at

a[n] operational level, or decisions that are merely incident to

carrying out a government policy.").  In particular, here, a line-

level inspector is not the kind of OSHA official who normally makes

policy judgments as to how the agency should deploy its scarce

resources.  Nor is there any evidence in the record or other reason

to believe that Chase or Ritchie were in fact authorized to

exercise such discretion in connection with Somersworth Shoe.

 Irving's claim, properly construed, is that, once

inspectors have been ordered to perform a wall-to-wall inspection,

they must do so with due care.  Her claim does not implicate OSHA's

resource allocation discretion at all.  Not only has the government

failed to identify a specific policy empowering on-site inspectors

to determine how thoroughly to conduct inspections, it has utterly

failed to provide any support for its naked assertion that such a

decision is actually "grounded" in any policy decisions.  This case

simply does not involve second-guessing broad policy choices.

                                V

 A number of other legal errors flaw the majority opinion.

                                A

 The majority distorts Supreme Court precedent in the very

framing of its analysis.  It states:  "Under the jurisprudence of

the FTCA, a function is non-discretionary only when a 'federal

statute, regulation, or policy specifically prescribes a course of

action for an employee to follow.'  Gaubert, 499 U.S. at 322

(quoting Berkovitz, 486 U.S. at 536)."  Maj. Op. at 19-20 (emphasis

added).  There is no basis in law for that position.

 The word "only" does not appear in either Gaubert or

Berkovitz in connection with the quoted passage.  The Supreme Court

has never required that a plaintiff show that the acting agent is

a bureaucratic automaton.  Rather, it has repeatedly made clear

that "[t]he so-called discretionary function exception . . . does

not protect all governmental activities involving an element of

choice."  Gaubert, 499 U.S. at 335 (Scalia, J., concurring) (citing

Berkovitz, 486 U.S. at 536-37).  In the passage quoted by the

majority, the Court was merely explaining, by way of illustration,

that the government could not satisfy "the requirement of judgment

or choice" if a specific prescription existed in the statute,

regulation or policy.  But the Court has never said that, absent

such a clear statement, embedded in formal law, a particular

function is therefore purely discretionary.  Indeed, in Gaubert,

the Court essentially said the contrary: "[T]here was no

prohibition against the use of supervisory mechanisms not

specifically set forth in statute or regulation."  499 U.S. at 330;

see also id. at 326 ("[T]he distinction in Dalehite [v. United

States, 346 U.S. 15 (1953)] [between decisions made at a planning

rather than operational level] was merely description of the level

at which the challenged conduct occurred.  There was no suggestion

that decisions made at an operational level could not also be based

on policy.").

 Moreover, the Court plainly has never raised the

threshold on the first prong so high, as the majority does today,

as to make it virtually impossible to satisfy.  To require a

plaintiff to show that the "acting employee" has no discretion at

all is tantamount to requiring the plaintiff to disprove the

government's entitlement to the exception, and expands the

discretionary function exception so much that it swallows the rule

of waiver of sovereign immunity.  But these exceptions should be

read narrowly.  As the Court stated in Kosak v. United States, 465

U.S. 848, 854 n.9 (1984):

 Though . . . the exceptions to the Tort Claims

 Act should not be read in a way that would

 "nullif[y them] through judicial

 interpretation," [citation omitted], unduly

 generous interpretations of the exceptions run

 the risk of defeating the central purpose of

 the statute.  See United States v. Yellow Cab

 Co., 340 U.S. 543, 548 n. 5 (1951);  cf. Blockv. Neal, 460 U.S. 289, 298 (1983) ("The

 exemption of the sovereign from suit involves

 hardship enough where consent has been

 withheld.  We are not to add to its rigor by

 refinement of construction where consent has

 been announced.") [internal quotation marks

 omitted].  We think that the proper objective

 of a court attempting to construe one of the

 subsections of 28 U.S.C.  2680 is to identify

 "those circumstances which are within the words

 and reason of the exception" -- no less and no

 more.  See Dalehite v. United States, 346 U.S.

 15, 31 (1953).



                                B

 The second prong of Berkovitz's analysis of the

discretionary function exception   whether the challenged inaction

"is of the kind that the . . . exception was designed to shield,"

i.e., grounded in policy   is critical, for the exception, at its

heart, seeks to prevent second-guessing of governmental policy

decisions.  True, "there is a presumption that 'the agent's acts

are grounded in policy,'" where an agency official is found to be

exercising discretion.  Maj. Op. at 31-32 (quoting Gaubert, 499

U.S. at 324).  But the majority fails to recognize that the

presumption is rebuttable.  It may be overcome by evidence such as

Irving presented here, demonstrating that these particular

officials were not balancing competing policy concerns when they

failed to inspect the die-out machine during their inspection of

the Somersworth Shoe factory, after being instructed by their

supervisor to inspect every machine.

 The majority erroneously treats the presumption as a

strong one, such that "the United States has no burden of

production; it may rest, as it did here, on the Gaubertpresumption."  Maj. Op. at 32.  The result of this front-loaded

approach is that the second prong will almost always be satisfied

once the first has been met.  This approach is contrary to

Berkovitz and Gaubert, and also to the weight of authority in other

circuits that have properly acknowledged the overriding purpose of

the exception:  to protect against impermissible second-guessing of

express policy judgments.

 It is admittedly difficult to determine whether a

decision or task is based on political, social or economic policy,

for "nearly every government action is, at least to some extent,

subject to 'policy analysis.'"  Cope, 45 F.3d at 448.  The

majority's approach permits decisions by low-level employees

involving the faintest hint of choice to fall within the exception. 

But as courts have repeatedly warned, such a front-loaded approach

"would not only eviscerate the second step of the analysis set out

in Berkovitz and Gaubert, but it would allow the exception to

swallow the FTCA's sweeping waiver of sovereign immunity."  Cope,

45 F.3d at 449 (holding that exception did not apply to claim that

government failed to post adequate warning signs of dangerous road

conditions); see also Duke v. Department of Agric., 131 F.3d 1407,

1411 (10th Cir. 1997) (agreeing with D.C. Circuit that applying

exception to governmental decision involving a "hint of policy

concern" eviscerates the second prong of Berkovitz). 

 A somewhat analogous situation may be seen in the cases

involving a failure to warn of a danger to health or safety.  In

such situations, the actor who failed to warn is similar to

inspectors Chase and Ritchie here:  if the acting employee had

warned of the danger, the plaintiff would not have been injured. 

And, similarly, the failure to warn was not based on balancing

competing policy interests.  Some courts have consistently held

that "a failure to warn involves considerations of safety, not

public policy" and that except for the rare case where failure to

warn implicates "broad, policy-making activities" the discretionary

function exception is inapplicable in failure to warn cases.  Faberv. United States, 56 F.3d 1122, 1125 (9th Cir. 1995); see also Boydv. United States, 881 F.2d 895, 898 (10th Cir. 1989) (failure to

warn swimmers of dangerous conditions "does not implicate any

social, economic, or social policy judgments with which the

discretionary function exception properly is concerned.");

Andrulonis v. United States, 952 F.2d 652 (2d Cir. 1991) (high-

ranking official's alleged failure to warn of hazards associated

with rabies vaccine not barred by exception).

                                C

 The majority's analysis seems to reinstate the

"regulatory function exception" which the government urged upon the

Court in Berkovitz but which the Court explicitly rejected.  SeeBerkovitz, 486 U.S. at 538-39.  Without any basis in the Act, the

government had proposed that the Court transform the discretionary

function exception into a "regulatory function exception" that would

apply  2680(a) to "preclude[] [government] liability for any and

all acts arising out of the regulatory programs of federal

agencies."  Id. at 538.  The government had argued that regulatory

programs by their nature entail agency discretion at the highest

levels to weigh various competing policy interests.  Based on the

statute's plain language and the legislative history, the Court

"put the Government's argument to rest," id. at 539, concluding that

"Congress intended the discretionary function exception to apply to

the discretionary acts of regulators, rather than to all regulatory

acts," id. at 539 n.4.  

 The majority's decision today resurrects the government's

discredited "regulatory function" theory.  Because the larger agency

(OSHA) has broad discretion over its enforcement authority (as all

regulatory agencies clearly will), the majority's approach would

exempt from tort liability virtually all actions taken by employees

of regulatory agencies, without looking at whether the acting

employee, whose conduct is the basis of the suit, actually had "no

rightful option but to adhere to [a] directive" from his

supervisor.  Berkovitz, 486 U.S. at 536.

                                VI

 In addition to its erroneous interpretation of Supreme

Court precedent, the majority inexplicably fails to adhere to the

well-established "clearly erroneous" standard of review for district

court findings of fact.  See Fed. R. Civ. P. 52(a); Anderson v.

Bessemer City, 470 U.S. 564, 573-74 (1985). 

 The district court found the following facts:  (i) in

1975 and 1978, the OSHA compliance officers each had been directed

to perform a "wall-to-wall" safety inspection of the Somersworth

plant; (ii) although the OSH Act and OSHA regulations leave many

decisions regarding the conduct of workplace inspections to the

discretion of the area director and compliance officers, the scope

of the inspections of the Somersworth plant that the compliance

officers were instructed to perform in 1975 and 1978 "was dictated

by less formal, but no less binding, OSHA policy," requiring the

officers to "inspect every operational machine and work station in

the plant," and to record every violation of OSHA safety standards

that they observed   be they de minimis, non-serious, or serious

  if there was potential employee exposure to the violative

condition; (iii) the die-out motor drive shaft was not guarded by

location at the time of the accident; (iv) at the time of the

accident, the die-out machine was in materially the same condition,

and was at or near the place it had been located during the 1975

and 1978 inspections, and, therefore, the drive shaft had not been

guarded by location at the time of these inspections; (v) the die-

out machine was in near-continuous operation during the relevant

time period, and was in operation during both inspections; (vi)

operation of the die-out machine while the drive shaft remained

unguarded was in flagrant violation of OSHA safety standards; (vii)

during the 1975 and 1978 inspections, the compliance officers

failed to document, and OSHA failed to cite, the violative

condition of the drive shaft; (viii) had the compliance officers

actually inspected the bench assembly, they would have noticed and

documented the violative condition of the drive shaft.  942 F.

Supp. at 1492-1502.

    The district court concluded from the evidence that the

record would not support a finding that OSHA compliance officers

Chase and Ritchie   both of whom the court found to be experienced

workplace safety inspectors who took their jobs seriously   were

so utterly incompetent as to have inspected the bench assembly but

failed to notice the unguarded condition of the drive shaft and to

recognize it as a violation of OSHA standards.  Instead, the

preponderance of the evidence "decidedly supports the conclusion

that both Chase and Ritchie would have recognized that the bench

assembly violated OSHA safety standards requiring the guarding of

power transmissions if they had, in fact, inspected it," and that

the only realistic explanation for their failure to notice and

document the unguarded drive shaft was that neither officer

actually inspected the bench assembly during his inspection of the

Somersworth plant.  942 F. Supp. at 1497 (emphasis added).  The

district court thus determined that the challenged conduct, and the

basis for Irving's state-law cause of action and FTCA claim, was

the failure of the compliance officers to inspect every operational

machine in the Somersworth plant in 1975 and 1978, as they were

required to do by mandatory OSHA policy, and their negligent

performance of their task.  Id. "[T]hey were under a mandatory duty

to inspect every operational machine and failed to do so."  Id. at

1502.

    The majority never analyzes the district court's findings

of fact under the proper standard of review:  whether they were

clearly erroneous.  See Fed. R. Civ. P. 52(a).  In particular, the

majority fails to accord appropriate deference to the district

court's findings, as the "clearly erroneous" standard requires.  SeeAnderson, 470 U.S. at 573-74 (explaining that the same deference is

required to district court's "inferences drawn from other facts");

Johnson v. Watts Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995)

("[A]n appellate court must refrain from any temptation to retry

the factual issues anew.").

 Instead, the majority examines the evidence for itself

and second-guesses the district court's findings, making its own

findings of fact.  That would be fine, if this court were the trial

court.  But the district court heard the evidence and reached a

contrary set of factual determinations.  This court has no basis

for disturbing those findings.  Arthur D. Little, Inc. v. Dooyang

Corp., 147 F.3d 47, 54 (1st Cir. 1998) (Where the "district court's

findings of fact are not clearly erroneous," the appellate court

"will not disturb them.").

 The district court's findings are plainly supported by

the record in this case; at the very least, they are not so lacking

in support as to be clearly erroneous.  Nothing in the record

indicates that Amirault ordered inspections in 1975 and 1978 that

were anything other than wall-to-wall inspections, or that the OSHA

compliance officers were at liberty to choose to conduct a spot-

check inspection of only some, not all, machines or areas within

the plant.  In all events, the government does not now dispute that

the compliance officers in 1975 and 1978 were obliged to conduct

wall-to-wall safety inspections; indeed, the government's attorney

conceded at oral argument before the district court that "[i]f

there's a requirement to look at every machine and he does not look

at every machine, then I would agree that that's a violation of a

mandatory regulation."  942 F. Supp. at 1499 n.19.

 Moreover, the means by which the majority carries out its

own fact-finding mischaracterizes the trial testimony.  An example

appears in the majority opinion at 31.  The majority quotes a

series of questions and answers and then summarizes them as

follows:  "Read naturally, this passage indicates that general

administrative inspections constitute nothing more than 'walk

throughs' that involve random spot checks."  This summary is not at

all accurate.  The "natural" reading of Amirault's testimony is not

that the inspector, once inside the plant, would "spot check" only

some machines; rather, OSHA's "random way of just doing spot checks

on an entire plant without advance notice," maj. op. at 30, more

likely meant that OSHA chose at random which plant to inspect. 

Regarding the Somersworth inspections in particular, Amirault

testified that, once inside the plant, the inspector was to conduct

"a wall-to-wall inspection," spending "whatever time was necessary

to inspect the entire plant for safety hazards," id. at 31

(emphasis added), "machine by machine by machine," Irving, 942 F.

Supp. at 1491 n.8.  If the majority's "spot-check" finding of fact

were made by a district court, an appellate tribunal would be

compelled to strike it as clearly erroneous.  The district court's

findings to the contrary were plainly correct, and surely pass

muster under the clearly erroneous standard of review.

 In discussing the ordinary procedures for conducting

inspections, the majority notes that "OSHA compliance officers are

expected to study the layout of the facility they are about to

investigate, to review its health and safety records, and to

interview employer and employee representatives during the

inspection about working conditions.  One might expect that as a

result of such study, OSHA inspectors will make daily judgments

about what risks and safety issues most urgently require their

attention."  Maj. Op. at 33.  But again, the question is not what

the majority of this court "expects" might occur during an ordinary

OSHA inspection, but what actually appears in the record of this

case.  As the district court found, here, OSHA, through its area

director, in fact undertook a wall-to-wall inspection of the

Somersworth Shoe plant.  Chase and Ritchie were ordered to carry

out that undertaking, not to decide for themselves "what risks and

safety issues most urgently require their attention."  Whatever

"daily judgments" they might, in other circumstances, have been

authorized to make about such issues were inapplicable here.  Chase

and Ritchie had no choice in these particular inspections but to

comply with the mandate from their superior.

                            CONCLUSION

 The majority decides today that the government is immune

from suit for the inspectors' negligence, based on the

discretionary function exception to the Federal Tort Claims Act

(FTCA).  28 U.S.C.  2680(a).  It rewards the agency when it

undertakes to conduct a comprehensive safety inspection and then

does so carelessly.  And when the record is devoid of any evidence

to suggest why incomplete "wall-to-wall" inspections or shoddy

inspections could possibly be grounded in policy, the majority

creates its justifications out of whole cloth.  Such a decision

violates the letter and spirit of the FTCA and flies in the face of

controlling Supreme Court precedent on the subject.

 I have great regard for my colleagues on this court.  But

however able they may be, they do not have the authority to refuse

to follow a binding precedent from the Supreme Court of the United

States.  The Court's early treatment of the discretionary function

exception may have been inconsistent or unclear as to how to apply

the exception.  But the decision in Berkovitz clarified the

analysis courts must employ in such cases.  Berkovitz also

harmonized prior precedents and, as I have shown, Gaubert is

likewise in harmony with the Berkovitz approach.

 Unfortunately, the majority today totally misapplies the

Court's rulings, indeed eschewing any analysis of Berkovitzwhatsoever.  The majority instead states its own priorities:  "Even

if [a government] decision may seem wrong in retrospect, or if its

implementation is negligent, such decisionmaking by its nature

typically requires a balancing of interests (e.g., how to deploy

scarce government resources in the accomplishment of worthwhile   

but expensive   public needs).  Congress reasonably struck this

balance by requiring that, ordinarily, liability will not inhere

absent an authoritative decision that a specific act should become

a governmental responsibility."  Maj. Op. at 35.  

 This does not state the applicable law according to the

Supreme Court.  Nowhere does the Court require "an authoritative

decision that a specific act should become a governmental

responsibility" before an injured party may sue in tort.  On the

contrary, the FTCA broadly waives sovereign immunity unless the

government establishes that the employee performing the challenged

act   not his supervisor   acted within authorized discretion that

was based in policy.  If other members of this court are unhappy

with the FTCA as it has been authoritatively interpreted by the

Supreme Court, they cannot simply ignore the Court's interpretation

of Congressional intent.  Unless Congress amends the statute or the

Court modifies its construction, this court must faithfully apply

the Court's teachings.  See Wessmann v. Gittens, ___ F.3d ___, ___,

1998 WL 792148, at *21 (1st Cir. 1998) ("[U]nless and until the

Justices reconfigure their present doctrine, it is the job of

judges in courts such as this to respect the letter and spirit of

the Supreme Court's pronouncements.").

 The majority's mischaracterization of plaintiff's

position further undermines its conclusion.  In short, the majority

does today what the Supreme Court has specifically warned against:

it has acted "as a self-constituted guardian of the Treasury

import[ing] immunity back into a statute designed to limit it." 

Indian Towing, 350 U.S. at 69.

 I respectfully dissent.