
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1848                                GAIL MERCHANT IRVING,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Paul R.  Cox, with whom Jennifer  A. Rosenfeld  and Burns, Bryant,            ____________            ______________________      ______________        Hinchey, Cox & Rockefeller, P.A. were on brief for appellant.        ________________________________            Phyllis Jackson  Pyles,  Assistant Director,  Torts Branch,  Civil            ______________________        Division,  Department of  Justice, with  whom Paul  M.  Gagnon, United                                                      ________________        States Attorney, Frank Hunger, Assistant Attorney General, and Jeffrey                         ____________                                  _______        Axelrad,  Director,  Torts  Branch,   Civil  Division,  Department  of        _______        Justice, were on brief for appellee.                                 ____________________                                    March 16, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.  This appeal requires                      BOWNES, Senior Circuit Judge.                              ____________________            us  to decide, for a  third time, whether  the district court            correctly decided this Federal  Tort Claims Act ("FTCA") suit            in  favor  of the  government.   Once  again,  we are  of the            opinion that the district  court's ruling is not sustainable.            We  therefore vacate the judgment and  remand this matter for            further  proceedings.   We also  direct that  the proceedings            take place before a different district court judge.                                          I.                                          I.                                          __                      On  October   10,  1979,  while   working  at   the            Somersworth Shoe Company plant in Somersworth, New Hampshire,            plaintiff-appellant  Gail  Merchant  Irving sustained  severe            injuries  when her  hair  became entangled  in the  unguarded            rotating  shaft of a die-out machine located next to her work            station.   The accident occurred when  plaintiff bent over to            pick up a glove she had dropped near the machine.                      On October  7, 1981, plaintiff  filed suit  against            the  United   States  under  the  FTCA.    She  claimed  that            inspectors   from  the   Occupational   Safety   and   Health            Administration  ("OSHA")  had  twice  negligently  failed  to            notice  a  dangerous  condition  which  was  an  undisputedly            serious violation of OSHA safety standards -- i.e., that  the            rotating shaft  on the  die-out machine  was unguarded.   Her            theory of liability was that Somersworth would have corrected            the dangerous  condition prior  to her  accident had it  been                                         -2-                                          2            given  notice  of  the violation  during  either  of the  two                                                      ______            inspections.  The inspections at issue took place in 1975 and            1978.                      From  the beginning, the government has argued that            the district  court lacked  subject matter jurisdiction  over            this case  because the actions  of the  OSHA inspectors  were            protected by  the "discretionary  function" exception  to the            FTCA's  waiver  of  sovereign  immunity.    See 28  U.S.C.                                                           ___            2680(a);  see also Irving v. United States, 909 F.2d 598, 600                      ___ ____ ______    _____________            (1st  Cir.  1990) (because  discretionary  function exception            effectively  reinstates  sovereign  immunity,  cases  falling            within  it   are  dismissed   for  lack  of   subject  matter            jurisdiction) ("Irving I").  Section 2680(a) exempts from the                            ______            FTCA's waiver                           Any  claim  based  upon  an  act  or                      omission   of   an   employee    of   the                      Government, exercising due  care, in  the                      execution  of  a  statute or  regulation,                      whether or not such statute or regulation                      be valid,  or based upon the  exercise or                      performance or the failure to exercise or                      perform a discretionary function  or duty                      on  the part  of a  federal agency  or an                      employee  of  the Government,  whether or                      not the discretion involved be abused.                      The government's initial  challenge to the district            court's subject matter jurisdiction was presented in a motion            to  dismiss.   On  February 22,  1982,  the court  denied the            motion.  See 532 F. Supp. 840 (D.N.H. 1982).  Prior to trial,                     ___            but  after   the  Supreme   Court  handed  down   an  opinion                                         -3-                                          3            elaborating  upon  the scope  of  the  discretionary function            exception,  see United States v. Varig Airlines, 467 U.S. 797                        ___ _____________    ______________            (1984), the  government renewed  its motion  to dismiss.   On            August 8, 1984, the district court denied this second motion.                      A bench  trial on  the merits of  plaintiff's claim            began on  February 11, 1985,  and concluded  on February  14,            1985.  For  nearly three  years, the district  court had  the            matter under advisement.  Finally,  on January 27, 1988,  the            court dismissed  the suit without  reaching the merits.   The            court,  citing  intervening circuit  authority,  reversed its            earlier rulings to the contrary effect and concluded that the            discretionary   function  exception   applied  to   the  OSHA            inspections.                        The court's dismissal order came shortly before the            Supreme Court  decided Berkovitz  v. United States,  486 U.S.                                   _________     _____________            531 (1988).   On plaintiff's initial  appeal, we vacated  the            dismissal and  remanded the matter  for further consideration            in  light of Berkovitz.  Irving v. United States, No. 88-1454                         _________   ______    _____________            (1st Cir. Dec. 7, 1988) (unpublished order).  We directed:                           On remand  . . . the  district court                      should  first  consider whether,  viewing                      the evidence in  the light most favorable                      to the appellant, its decision to dismiss                      remains  correct  after  Berkovitz.     A                                               _________                      determination by the district  court that                      its  initial  decision  does not  survive                      Berkovitz does not  of course preclude  a                      _________                      later finding of  immunity based upon the                      court's   factual   findings.     If  the                      district court ultimately finds  that the                      OSHA   employees    had   discretion   in                                         -4-                                          4                      conducting their inspection and  that the                      discretion  involved   considerations  of                      policy,  it  should grant  the government                      immunity.            Id., slip op. at 3-4.            ___                      The district court did not follow our instructions.            It  did   not  discuss   whether,  in  light   of  Berkovitz,                                                               _________            plaintiff's  allegations were  sufficient  to state  a  claim            falling  outside the  discretionary function exception.   Nor            did it  analyze whether  plaintiff's proof was  sufficient to            sustain her allegations.   Instead, the court simply compared            the  facts  here  with  the  facts  of  a then-recent,  post-            Berkovitz  OSHA case in which the Fifth Circuit had found the            _________            discretionary function  exception  to apply,  see  Galvin  v.                                                          ___  ______            OSHA,  860 F.2d 181 (5th Cir. 1988),  and ruled that the suit            ____            was within the scope of the exception.                        Plaintiff  again appealed,  and again  prevailed on            appeal.  See Irving I, 909 F.2d at 605.  We pointed out that,                     ___ ______            under Berkovitz, the discretionary function exception applies                  _________            "only if the challenged action `is a matter of choice for the                                                                  ___ ___            acting employee'  and `if the  action challenged in  the case            ______ ________           ___  ______ __________ __  ___ ____            involves the permissible exercise  of policy judgment.'"  Id.                                                                      ___            at 601 (quoting Berkovitz,  486 U.S. at 536, 537).   Applying                            _________            this rule,  we first  found plaintiff's allegation  that OSHA            policy  required the  inspectors to  notice the  violation at                    ________            issue here adequate  to state a claim that  the discretionary            function exception did  not apply.  Id.  at 601-03 (analyzing                                                ___                                         -5-                                          5            pertinent  case  law).   We  next assessed  the  evidence and            concluded that it was sufficient for a finding in plaintiff's            favor on the discretionary function question.  Id. at 603-05.                                                           ___            We therefore  vacated and remanded for a  second time.  In so            doing, we stated:                      [A]n issue of fact lingers in the record:                      whether OSHA policy left the thoroughness                      of inspections a matter of choice for its                      compliance  officers.    There   is  some                      evidence,  viewed  in   the  light   most                      favorable  to  the  plaintiff,  that  the                      thoroughness of inspections was  not left                      up to the individual compliance officers,                      and  that the compliance officers did not                      have policy-level discretion  to fail  to                      note  and  tell  the  employer  about the                      violation which allegedly  was the  cause                      of Ms.  Irving's injuries.   The district                      court should have made findings resolving                      this  issue,  in   conformity  with   the                      directions of  this court on  the earlier                      appeal.            Id. at 605.  Our opinion issued on July 25, 1990.            ___                      For nearly  four years, the district  court did not            respond to the second remand.  Finally, on June 27, 1994, the            court  issued a  memorandum opinion.   Once again,  the court            declined to follow  our mandate.   Instead, it addressed  the            merits of plaintiff's claim.  After reviewing its trial notes            and a partial transcript  of the 1985 trial, the  court found            that, at the time of the  1975 and 1978 OSHA inspections, the            die-out machine was "some two feet closer to the  wall to its            rear" than it was on  the day of plaintiff's accident.   This            finding led the court to conclude that the offending rotating                                         -6-                                          6            shaft was permissibly "guarded by location" -- i.e., that "it            was  then in such a  location that employees  working near it            would not  be exposed to injury"  -- at the time  of the OSHA            inspections.    As  the  court  explained,  "[The  machine's]            nearness to the  wall to  its rear would  prevent access  and            probable  injury."   Accordingly,  the  court  found that  no            negligent  act or omission on  the part of  any OSHA employee            occurred  during  the  1975  and 1978  inspections.    In the            court's view, this finding  obviated any need to resolve  the            discretionary function  question.  Judgment  was entered  for            the government.                                         II.                                         II.                                         ___                      On appeal,  plaintiff makes two arguments.   First,            she  contends that  the district  court's guarded-by-location            finding is clearly erroneous and/or predicated upon errors of            law.  Second, she asserts that  "the undue delay of nine  and            one-third  years  between  the  bench  trial  and  the  final            decision on  the merits rendered the court's findings of fact            unreliable and also violated  the plaintiff's right to access            to  the  courts, due  process,  and  fundamental fairness  as            guaranteed by the United States Constitution."  For its part,            the government renews  its argument that  the actions of  the            OSHA inspectors fell within the FTCA's discretionary function            exception.                                           -7-                                          7                      Because the government's argument puts the district            court's subject matter jurisdiction into issue, we begin with            the last of the three appellate arguments.            A.  The Discretionary Function Exception            A.  The Discretionary Function Exception            ________________________________________                      It is  axiomatic that,  "in a multi-panel  circuit,            newly constituted  panels, generally  speaking, are  bound by            prior  decisions on point."   Metcalf & Eddy,  Inc. v. Puerto                                          _____________________    ______            Rico Aqueduct and  Sewer Auth.,  991 F.2d 935,  939 n.3  (1st            ______________________________            Cir.  1993).   This rule  does not  apply, however,  when the            decision is subsequently undercut by controlling authority --            e.g.,  a Supreme  Court opinion,  an en  banc opinion  of the                                                 __  ____            circuit court,  or a statutory  overruling.  Metcalf  & Eddy,                                                         ________________            Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10, 12            ____    ____________________________________            (1st  Cir.  1991), rev'd  on other  grounds,  113 S.  Ct. 684                               _____  __ _____  _______            (1993).   Nor does it  apply in those  rare situations "where            newly  emergent authority, although not directly controlling,            nevertheless offers  a convincing reason  for believing  that            the  earlier panel,  in light  of the  neoteric developments,            would change its course."  Id.                                       ___                      The   government  does  not   dispute  that,  under            ordinary   circumstances,   we   would  be   precluded   from            reexamining  whether  the  discretionary  function  exception            applies here.   After all,  the panel  in Irving  I gave  the                                                      ______            question careful and  exhaustive consideration, and concluded            that  it could not be  resolved without further fact finding.                                         -8-                                          8            Irving I, 909 F.2d  at 605.  Instead, the  government argues:            ______            (1) that the factual  findings made by the district  court in            the  June  27,  1994  memorandum opinion  are  sufficient  to            resolve the outstanding factual issues noted in Irving I; and                                                            ______            (2) that  the Supreme  Court's decision  in United  States v.                                                        ______________            Gaubert, 499  U.S. 315 (1991),  which was  handed down  after            _______            Irving I, offers convincing reasons to believe that the panel            ______            in  Irving  I would  have ruled  differently  had it  had the                ______            benefit  of  the  Gaubert opinion.    We  disagree  with both                              _______            contentions.                      The Irving I panel  ruled that the applicability of                          ______            the  discretionary function  exception could  not  be decided            without  findings   as  to  whether  OSHA   policy  left  the                                                        ______            thoroughness of inspections a matter of choice for individual            inspectors,  and  whether  the  inspectors  had  policy-level            discretion  to fail to note  and tell the  employer about the            violation which  allegedly caused plaintiff's  injuries.  909            F.2d  at 605.  The government relies on certain "findings" in            the district court's June 27, 1994 memorandum opinion.  These            findings were:    that  the  OSH  Act  and  its  implementing                                              ___            regulations  do not  themselves  provide  standards to  guide            ___________            inspectors in the exercise of their authority to search; that            there is  no statute or  regulation requiring OSHA  to ensure                         _______     __________            that all  machines in  every workplace are  properly guarded;            that   the  OSHA  Field  Operations  Manual  recognizes  that                                         -9-                                          9            inspections  may  vary  considerably  in  scope  and  detail,            depending upon the circumstances in each case; and that it is            a  judgment call whether a certain machine is in violation of            OSHA  standards.  We do not think that these findings address            the concerns noted in Irving I.                                  ______                      The Irving I panel  explicitly acknowledged that if                          ______            "the  statute  and the  formal  regulations  [were] the  only            standards  guiding  the  compliance  officer's  conduct,  the            discretionary function  exception would apply."   Id. at 603.                                                              ___            The  question in  this  case, however,  revolves around  OSHA            policy -- as opposed to the statute and formal regulations --            ______            in 1975  and 1978.   Id.  The  referenced findings in  no way                                 ___            speak to  OSHA policy  during  these two  years.   Similarly,            while the OSHA Field Operations Manual notes that inspections            may vary  considerably  in  scope  and detail,  it  does  not            indicate  that the individual  inspectors were  themselves to                               __________  __________            decide on the scope  and detail of each inspection.   And the            general  statement  that  it is  a  judgment  call  whether a            certain machine is  in violation  of OSHA  standards is  not,            when  read in context,  a finding at  all.  It  is, rather, a            reiteration of the testimony of Francis Amirault, who was the            Area  Director  of  OSHA  at  all  times  relevant  to   this            litigation.   The  Irving  I panel  was  well aware  of  this                               ______            testimony, and  did not view it  as dispositive.   See id. at                                                               ___ ___            604-05.  For reasons  explained more fully below, we  are not                                         -10-                                          10            free to revisit  this conclusion.   See Metcalf  & Eddy,  991                                                ___ _______________            F.2d at 939 n.3.                      As to the assertion regarding Gaubert, we note that                                                    _______            the  government  has not  attempted  to  explain how  Gaubert                                                                  _______            renders  Irving I  incorrect or  obsolete.   Ordinarily, this                     ______            would lead us to  conclude that the argument is waived.   See                                                                      ___            United  States v. Zannino, 895 F.2d 1, 17 (1st Cir.) ("issues            ______________    _______            adverted to  in a  perfunctory manner, unaccompanied  by some            effort at developed argumentation, are deemed waived"), cert.                                                                    _____            denied,  494   U.S.  1082  (1990).     Because  the  question            ______            implicates the district court's subject  matter jurisdiction,            however,  we  have  independently  analyzed  whether  Gaubert                                                                  _______            offers a  convincing reason for concluding that  the Irving I                                                                 ______            panel would change its course.   See Metcalf & Eddy, 945 F.2d                                             ___ ______________            at 12.  We discern no such reason.  Gaubert   was   concerned                                                _______            primarily  with  correcting the  lower  court's misperception            that  operational or  management  decisions cannot  be policy            decisions protected by  the discretionary function exception.            See 499 U.S. at 325-26.  No such misperception is apparent in            ___            Irving I.  Moreover,  Gaubert explicitly reaffirmed the legal            ______                _______            __________            basis on which the holding in Irving I was constructed:  that                                          ______            "the  requirement of judgment or choice is not satisfied if a            `federal   statute,   regulation,   or  policy   specifically                                                    ______            prescribes a  course of action  for an  employee to  follow,'            because `the employee has no rightful option but to adhere to                                         -11-                                          11            the  directive.'"    Gaubert,   499  U.S.  at  322  (emphasis                                 _______            supplied)  (quoting Berkovitz,  486 U.S.  at 536).   Applying                                _________            this  rule, the  panel in  Irving I  first noted  plaintiff's                                       ______            allegation that OSHA had a policy requiring its inspectors to                                              _________            notice  safety  violations  within  the  four  walls  of  the            inspected plant.  909 F.2d at 603.  The panel then found that            there was sufficient  evidence in the  record for a  rational            fact finder  to  credit this  allegation, and  held that  the            discretionary  function question could  not be answered until            the  trial  court  decided  whether  or  not  to  credit  the            allegation.  Id. at 603-05.   There is nothing new in Gaubert                         ___                                      _______            that  calls this analysis into question.  We therefore see no            reason to conclude that the panel would have decided Irving I                                                                 ______            any differently had Gaubert been previously issued.                                _______                      The discretionary function doctrine is fraught with            difficulty, and the  Supreme Court or  Congress may some  day            decide  that the analysis in  Irving I is  incorrect.  Unless                                          ______            and until that day  arrives, however, or unless and  until we            revisit  the question as an  en banc court,  Irving I remains                                         __ ____         ______            binding  on all  newly  constituted panels  in this  Circuit.            Accordingly,  we reject  the government's  argument that  the            discretionary function  question can be decided  in its favor            without further fact finding.            B.  The Guarded-by-Location Finding            B.  The Guarded-by-Location Finding            ___________________________________                                         -12-                                          12                      In reviewing  a factual finding made  by a district            judge  in connection  with a  bench  trial, we  almost always            apply the clear-error standard  of review.  See Fed.  R. Civ.                                                        ___            P.  52(a).  Under this  standard, we give  the finding effect            unless we  are "`left with  the definite and  firm conviction            that a mistake  has been  committed.'"  Anderson  v. City  of                                                    ________     ________            Bessemer  City,  470 U.S.  564,  573  (1985) (quoting  United            ______________                                         ______            States  v.  United  States  Gypsum  Co.,  333 U.S.  364,  395            ______      ___________________________            (1948)).  Thus, "[w]here  there are two permissible views  of            the evidence, the factfinder's  choice between them cannot be            clearly erroneous."  Id.                                 ___                      Of course, the deference mandated by Rule 52(a) has            its  limits.  For example,  the Rule clearly  presumes that a            sustainable  finding will  be  based  upon properly  admitted            evidence.   And  the Supreme  Court has  indicated that  if a            reviewing  court  is  firmly  convinced  that  a  finding  is            mistaken, it should reverse the  finding even where there  is                                                     ____ _____            evidence  to  support it.   See  Anderson,  470 U.S.  at 573;                                        ___  ________            United States Gypsum, 333 U.S. at 395.            ____________________                      Here,  the court  reached its  conclusion that  the            rotating shaft of the die-out machine was guarded by location            at  the time  of  the  1975  and  1978  OSHA  inspections  by            analyzing  the inspections  separately.   With regard  to the            1975  inspection,  the  court's  finding was  premised  on  a            subsidiary  finding that "[p]rior to  the spring of 1977, the                                         -13-                                          13            offending machine had been positioned some two feet closer to            the wall  to its rear.   Between that date and  the spring of            1979, it had been  moved forward to the position  it occupied            at the time  of plaintiff's accident."   As the basis  for so            finding, the court  stated:   "The evidence as  to the  prior            location of the `die-out' machine came from the  testimony of            Robert  [sic]1 Couture."   In  rejecting plaintiff's  request            that it reconsider the finding, the court elaborated:                        Although  [Couture's]  testimony was  not                      transcribed, the court, as is its custom,                      took contemporaneous trial  notes of  the                      testimony of each witness.  Mr. Couture's                      testimony was therein recorded.  In light                      of  such  testimony,  the court  credited                      that testimony over the testimony of Igor                      Paul that  Mr.  Paul was  of the  opinion                      that the machine had not been moved.2                                            ____________________            1.  The first name of  Couture, who was foreman of  the stock            fitting room  (the  room in  which  the die-out  machine  was            located) at the  time of  the 1975 and  1978 inspections,  is            Roger.            2.  The expert testimony  of Paul, which  was based upon  his            examination  of the accident site, was  not the only evidence            that  the die-out machine's rotating shaft was not guarded by            location  at  the  time  of  the  1975  inspection.    It  is            undisputed  that, at this time,  a rack with  die and pattern            slots going down to the floor was positioned against the wall            behind  the machine.   It also  is undisputed  that employees            could  not access  the dies  and patterns  in these  slots if            there were no space between the  machine and the rack.  This,            of  course, gives rise to  an inference that,  in 1975, there            was an aisle wide enough for  one to bend over in between the            machine and the rear  wall.  The trial court  made no mention            of this evidence in its findings of fact.                                         -14-                                          14            The transcript of Couture's  actual testimony, which has been            provided to this  court on appeal, reveals serious  errors in            the district court's trial notes.                      First, Couture  did not  testify  that the  die-out            machine had been moved; he testified that "it might have been                                                          _____            moved."  Second, Couture did not testify that the machine had            been moved two  feet; he  testified that it  might have  been            moved  "one  or  two feet."3    And  third,  Couture did  not                         __            testify that the machine had been moved between the spring of            1977 and the  spring of  1979; he testified  that he  "really            [did not] remember" when any movement might have taken place.                      To  be  sure,  there  was evidence  in  the  record            tending  to  support  the  district court's  finding.    This            "evidence," however, was hearsay testimony of OSHA compliance            officer O'Connell regarding statements Couture allegedly made            a  few days  prior  to trial.    On redirect  examination  by            plaintiff's  counsel, O'Connell  testified that,  just before            trial, Couture told him  that the machine had been  moved two                                            ____________________            3.  The  only evidence in the  record that the rotating shaft            would have been  guarded by location had  it been differently            situated at the  time of the inspections came  in the form of            testimony by  Paul O'Connell, an OSHA  compliance officer who            did  a  post-accident inspection  of  the  plant.   O'Connell            testified  that  the  shaft  "very likely"  would  have  been            guarded  by  location if  the  bench upon  which  the die-out            machine sat "had been two feet closer" to the wall.  There is                                  ___ ____            no evidence  that  the  shaft  would  have  been  guarded  by            __            location if it had been one foot closer to the wall.                                    ___ ____                                         -15-                                          15            feet  at some point in the  two years preceding the spring of            1979.   In light of  Couture's testimony at  trial (which was                                                     __  _____            inconsistent  with  O'Connell's),   the  probative  value  of            O'Connell's testimony is open to serious question.  And  much            more importantly, the district court  does not appear to have            relied  upon  O'Connell's  testimony   in  finding  that  the            rotating shaft was  guarded by  location at the  time of  the            1975 inspection.                      In the  end, we have little confidence in the trial            court's  finding regarding  the 1975  inspection.   The court            fundamentally  misconstrued  the  testimony  upon   which  it            explicitly  and  exclusively  relied in  making  the finding.            Moreover, the nine and one-third-year delay between trial and            the finding significantly undercuts  the reason for presuming            that the trial court was in a superior position to  judge the            demeanor  and credibility  of  the relevant  witnesses.   Cf.                                                                      ___            Williams v. Poulos, 11 F.3d 271, 278  (1st Cir. 1993).  Thus,            ________    ______            even  though  the  record  evidence  is  inconclusive  as  to            location, we set aside the finding that the die-out machine's            rotating shaft was  guarded by  location at the  time of  the            1975 inspection.                      Having made  this determination, we do  not need to            decide any of the other issues in this case.  This means that            we  need not  determine  whether:   (1) the  district court's            patently erroneous reliance  upon deposition testimony  which                                         -16-                                          16            had not been read into the record at trial,  see Secretary of                                                         ___ ____________            Labor  v.  DeSisto, 929  F.2d  789,  796-97  (1st Cir.  1991)            _____      _______            (documents  attached  to  summary  judgment  motions  are not            evidence unless admitted at  trial), requires reversal of the            finding that  the rotating shaft  was guarded by  location in            1978; (2) the court erroneously failed to give  plaintiff the            benefit  of a favorable state  law principle --  i.e., that a            prior  or subsequent location  "is evidential  of a  later or            earlier  one," see  Dube v.  Bickford, 31  A.2d 64,  66 (N.H.                           ___  ____     ________            1943);  or (3)  the  delay  in  deciding  this  case  was  so            substantial  that it deprived plaintiff of her constitutional            rights.                        Plaintiff's   theory   of   liability    was   that            Somersworth would have guarded the rotating shaft had it been            informed of the  dangerous condition  in 1975 or  1978.   The                                                          __            court rejected this claim  on the basis of its  findings that            the  rotating shaft was, in fact, guarded by location in 1975            and 1978.  The  defective finding that the shaft  was guarded            ___            by location in  1975 was therefore  necessary to the  court's            entry  of  judgment in  favor of  the  government.   For this            reason alone, the judgment cannot stand.                                         III.                                         III.                                         ____                      There  still remains  the question  of relief.   If            this were an ordinary case, we would remand the matter to the            trial court  for  further  proceedings  consistent  with  our                                         -17-                                          17            opinion.  Obviously, this  has not been an ordinary  case for            quite  some time.  Thus, despite the difficulties inherent in            retrying a case which was tried over ten years ago, and which            arises out of injuries suffered more than fourteen years ago,            we  think  fundamental  fairness dictates  that  plaintiff be            granted  her request for a  trial de novo  before a different                                              __ ____            district court  judge.   No finding  from the previous  trial            should be given preclusive  effect in the new trial,  and the            government is free to renew its argument that the inspectors'            actions fell within the discretionary function exception,  as            well as its argument that the machine was guarded by location            during the  period when  the OSHA  inspections occurred.   We            commit to the new judge's discretion the question whether  to            proceed solely on the current record.                      For the  reasons stated above, the  judgment of the            district  court is  vacated.   This matter  is remanded  to a                                vacated                    remanded                                _______                    ________            different  district  court  judge  for   further  proceedings            consistent with this opinion.   Plaintiff is entitled to  her            costs.                                            -18-                                          18
