                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-25-1995

Fisher Bros v USA
Precedential or Non-Precedential:

Docket 93-1182




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               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT



               Nos. 93-1182; 93-1205; 93-1206;
                  93-1207; 93-1208; 93-1209


                   FISHER BROS. SALES, INC.

                                        Appellant in 93-1182.
                              v.

                   UNITED STATES OF AMERICA



         JULIA SAAVEDRA BALMACEDA; AANDRES MUNOZ TORRES;
          ABALOS LABBE JUAN PABLO; ABATTE OSORIO HONS.;
             ABDON M. ALVAREZ; ABRAHAM SABAJ NALLAR;
      ABRIGO OLIVOS RODEMIL; ACEVEDO DURAN OSVALDO HERNAN;
       ACOSTA RAMIREZ CARLOS; VICTORIANO ACUNA CONTRERAS;
      MARCO HERIBETO ACUNA MONTERO; JAVIER ACUNA GONZALEZ;
     MARDONES ADOLFO RIVEROS; ADRIANA RODRIGUEZ LARRAGANA;
         AGR HENRIQUEZ Y VARELA; AGR KIWI MASTERS LTDA;
         AGRIC MORANDE LAVIN LTDA; AGRIC CAIQUENES LTDA;
AGRIC CARVALLO LTDA; AGRIC CERRILLO LTDA; AGRIC CHOROMBO LTDA;
   AGRIC COTIELLA LTDA; AGRIC DEL ALTO LTDA; AGRIC DEL VALLE
                LTDA; AGRIC EL ESPINO N12, et al.

                                        Appellants in 93-1205,

                              v.

                   UNITED STATES OF AMERICA



                        CARBEN, INC.,

                                        Appellant in 93-1206

                              v.

                   UNITED STATES OF AMERICA
     COMPANIA SUD AMERICANA DE VAPORES S.A.,

                                Appellant in 93-1207.

                        v.


            UNITED STATES OF AMERICA



       NEW MARKET INVESTMENT CORPORATION,

                                Appellant in 93-1208.

                        v.

            UNITED STATES OF AMERICA



          GUZMAN Y DEL REAL, LIMITRADA,
    individually and as class representative,

                        v.

            UNITED STATES OF AMERICA,

                 Guzman Y Del Real, Limitrada,

                                Appellant in 93-1209
.




On Appeal From the United States District Court
    For the Eastern District of Pennsylvania
  (D.C. Civil Action Nos. 92-02818; 92-00907;
     92-01204; 92-01208; 92-01279; 92-04057)



           Argued:   September 23, 1993

Before: STAPLETON, ROTH and LEWIS, Circuit Judges
                Reargued in banc October 18, 1994
       Before: SLOVITER, Chief Judge, BECKER, STAPLETON
        MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
     NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges

               (Opinion Filed   January 25, l995   )




Christopher H. Mansuy, Esquire
Walker & Corsa
96 Hudson Street
Hoboken, NJ 07030
          Attorney for Appellant in 93-1182


Edward W. Madeira, Jr., Esquire
Robert L. Hickok, Esquire (Argued)
Matthew H. Adler, Esquire
Michael A. Ceramella, Esquire
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Philadelphia, PA 19103-2799
          Attorneys for Appellants in 93-1205; 93-1206;
                        93-1207; 93-1208; and 93-1209


Stuart E. Schiffer,
Acting Assistant Attorney General
Michael J. Rotko
United States Attorney
Robert S. Greenspan, Esquire
Thomas M. Bondy, Esquire (Argued)
United States Department of Justice
Civil Division, Appellate Staff
Tenth and Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Phyllis J. Pyles, Esquire
United States Department of Justice
Torts Branch, Civil Division
P. O. Box 888
Ben Franklin Station
Washington, D.C.20044
          Attorneys for Appellees
                      OPINION OF THE COURT



STAPLETON, Circuit Judge:


          The Federal Tort Claims Act ("FTCA"), 28 U.S.C.

§§ 1346(b), 2671-2680, waives the federal government's sovereign

immunity with respect to tort claims for money damages.     The

"discretionary function exception" to the FTCA limits that

waiver, stating that the government retains sovereign immunity

with respect to "[a]ny claim . . . based upon the exercise or

performance [of,] or the failure to exercise or perform[,] a

discretionary function or duty . . . , whether or not the

discretion involved be abused."   28 U.S.C. § 2680(a).   The

appeals now before the court in banc require us to examine the

scope of the discretionary function exception.

          The plaintiffs in these cases were injured by several

policy decisions made by the Commissioner of the Food and Drug
Administration ("FDA") while exercising a discretionary function.

They seek to avoid the legal consequences that would flow from

application of the discretionary function exception to their

cases by (1) looking behind the Commissioner's injury-causing

decision, (2) finding fault with an aspect of the data upon which

it may have been based, and (3) arguing that their claims are not

"based upon" the Commissioner's decisions but instead are "based

upon" the alleged negligence of various laboratory technicians

who supplied the allegedly faulty data to the Commissioner.       We
reject this attempt to circumvent the discretionary function

exception, concluding that if the discretionary function

exception to the FTCA is to fulfill its clear and important

purpose, a claim must be "based upon" the exercise of a

discretionary function whenever the immediate cause of the

plaintiff's injury is a decision which is susceptible of policy

analysis and which is made by an official legally authorized to

make it.    Because the plaintiffs' claims are based upon

decisions susceptible of policy analysis and made by an official

of the executive branch acting within his authority, we will

affirm the district court's order dismissing these cases for lack

of subject-matter jurisdiction.

            For the purpose of our analysis, we have assumed the

facts alleged by the plaintiffs to be true.      Berkovitz v. United

States, 486 U.S. 531, 540 (1988).      Our "scope of review of the

applicability of the discretionary function exception is

plenary."   United States Fidelity & Guar. Co. v. United States,

837 F.2d 116, 119 (3d Cir.), cert. denied, 487 U.S. 1235 (1988).



                                  I.

            On March 2, 1989, an anonymous caller to the United

States Embassy in Santiago, Chile, stated that Chilean fruit

bound for the United States would be injected with cyanide.      The

FDA took the lead agency role in evaluating the seriousness of

the call, and it detained all incoming Chilean fruit over the

weekend of March 4 and 5 while it undertook an investigation.        On

March 6, having found no evidence that any Chilean fruit had
actually been poisoned, the FDA announced that it considered the

call a hoax.   It nevertheless continued to conduct experiments

concerning the effects that cyanide injections would have on

various Chilean fruits.

          The embassy in Santiago then received a second

anonymous call.   This time the warnings were more specific.    The

caller indicated that he had access to orchards, storage

facilities, and shipping locations in Chile, and stated that

unidentified fruit had already been injected with cyanide.     This

prompted the FDA's Philadelphia District Office to double the

inspection level of incoming Chilean fruit, beginning with that

arriving on the "Almeria Star."   The Philadelphia District Office

designated that certain portions of the Almeria Star's cargo

would be examined, and any fruit that looked "suspect" was to be

sent to the Philadelphia District Office for testing.

          The increased level of inspection soon yielded results.

On the morning of March 12, an FDA inspector discovered two

grapes from the Almeria Star which appeared to have been

punctured, and which displayed uniform white rings.   Further

examination of the crate containing these suspect grapes revealed

a third white-ringed grape, which, unlike the others, appeared to

have been slit rather than punctured.   Although the physical

appearance of these grapes was inconsistent with that of grapes

injected with cyanide during FDA experimentation, the FDA

officials as a precautionary measure sent the grapes, as well as

the crate in which they were packaged, to the FDA's Philadelphia

laboratory for testing.
            The Philadelphia laboratory began testing the grapes

for cyanide in the early afternoon of March 12.    The FDA

technicians used all of the two punctured grapes in conducting

their tests, but saved the third, slit, grape for confirmation

purposes.    The testing process required the grapes to be mashed

until they turned into a solution.    Sulfuric acid was then added

to this slurry, causing a chemical reaction that released in

gaseous form any cyanide that was present in the solution.    The

gas released from the solution was twice exposed to cyanide-

sensitive strips of reactive paper, both of which indicated the

presence of cyanide.    A third test then confirmed a high

concentration of cyanide present in the slurry.    At approximately

9:30 p.m. on March 12, the Philadelphia laboratory orally

reported positive cyanide test results from the solution to the

FDA's Emergency Operations Center.

            Meanwhile, FDA officials transferred a portion of the

slurry, along with the third, slit, grape and the bunch in which

these grapes had been found, to the FDA's Cincinnati laboratory.

Technicians there identified two additional white-ringed grapes

on the bunch, but were unable to confirm the presence of cyanide.

The Philadelphia laboratory also continued testing other grapes

from the suspect crate, as well as all packing materials in that

crate.   These further tests also failed to reveal the presence of

cyanide.

            The Commissioner was supplied with the findings of the

Philadelphia and Cincinnati laboratories in the early morning

hours of March 13.     The information before him at that point was
that three tests conducted on two of the suspect grapes indicated

the presence of cyanide.    The retesting of the slurry and the

testing of the third "reserved" grape, the other grapes, and the

packaging, however, did not confirm the presence of cyanide.      He

also knew of the reports to the embassy in Santiago and the

surveillance activity that had already been conducted.    On the

basis of this information, the Commissioner on March 13 issued an

order refusing entry of any additional Chilean fruit into the

United States and requiring the withdrawal and destruction of all

Chilean fruit then in domestic channels of distribution.    The FDA

also issued a press release publicizing the Philadelphia

laboratory's finding of cyanide in two Chilean grapes and the

order refusing the entry of Chilean fruit into the United States.

Consumers were encouraged to destroy any Chilean fruit in their

possession, and grocers were instructed to remove all Chilean

fruit from their shelves.

          The plaintiffs in these cases are (1) approximately

2400 Chilean growers and exporters of fresh fruit, (2) a Chilean

shipping line, (3) three United States firms that are engaged in

the importation and distribution of fresh produce, and (4) a non-

certified class whose named plaintiff is a Chilean fruit grower.

They seek damages from the United States government under the

FTCA, 28 U.S.C. § 1346(b), on a negligence theory, contending

that the technicians in the FDA's Philadelphia laboratory were

negligent in failing to reserve any portion of the two punctured

grapes for later confirmation testing.    Plaintiffs claim that

this violated both the FDA's Regulatory Procedures Manual and
good laboratory practices generally.   As a result, the Cincinnati

laboratory was unable to verify the positive result reported by

the Philadelphia laboratory.   Plaintiffs further allege that the

lab technicians were negligent in failing to record their

observations contemporaneously with their testing, thereby

casting doubt on the accuracy of their results and the content of

the oral report, and in failing to take account of the known

properties of cyanide in fruit.    According to the complaint, but

for this negligence, the Commissioner would not have issued his

orders and the Chilean fruit business for the spring season of

1989 would not have been destroyed.

          The United States moved to dismiss, arguing that the

district court lacked subject-matter jurisdiction over

plaintiffs' claims.   The district court granted that motion,

reasoning that the discretionary function exception to the FTCA

shielded the government's conduct from liability.   The plaintiffs

appeal.



                               II.

                                  A.

          The Federal Tort Claims Act gives district courts

jurisdiction over:
          civil actions on claims against the United
          States, for money damages, accruing on and
          after January 1, 1945, for injury or loss of
          property, or 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 in accordance with the
            law of the place where the act or omission
            occurred.


28 U.S.C. § 1346(b).    The FTCA thus waives the government's

sovereign immunity with respect to tort claims against the United

States for money damages.

            This waiver of the government's immunity is subject to

certain exceptions, however, one of which is the discretionary

function exception.    28 U.S.C. § 2680(a).   As we have noted, that

exception dictates that the waiver "shall not apply to . . .

[a]ny claim . . . based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty

on the part of a federal agency or an employee of the Government,

whether or not the discretion involved be abused."

            The discretionary function exception is designed to

protect policy making by the politically accountable branches of

government from interference in the form of "second-guessing" by

the judiciary -- second guessing the result of which burdens the

public fisc and the prospect of which skews the decisionmaking

process of executive and legislative policymakers.    United States
v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines),

467 U.S. 797, 808 (1984).    As the Court explained in Varig

Airlines:
            [W]hatever else the discretionary function
            exception may include, it plainly was
            intended to encompass the discretionary acts
            of the Government acting in its role as a
            regulator of the conduct of private
            individuals. Time and again the legislative
            history refers to the acts of regulatory
            agencies as examples of those covered by the
            exception . . . . This emphasis upon
           protection for regulatory activities suggests
           an underlying basis for the inclusion of an
           exception for discretionary functions in the
           Act: Congress wished 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.


Id. at 814 (footnote omitted).    Thus, the discretionary function

exception is a product of Congress' recognition that "the

imposition of liability for damages occasioned by governmental

policymaking would necessarily involve a very substantial, if not

prohibitive, social cost not only in terms of the imposed

liability itself, but also in terms of the constraining effect of

that liability on the decisions of governmental policymakers."

Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 890 (3d Cir.

1990), cert. denied, 500 U.S. 941 (1991).

           Whether the discretionary function exception applies

involves a two-pronged inquiry.   "[A] court must first consider

whether the action is a matter of choice for the acting

employee."   Berkovitz, 486 U.S. at 536.   Second, the court must
determine whether the element of judgment involved "is of the

kind that the discretionary function exception was designed to

shield."   Id.   Under this second prong, the court must determine

whether the challenged discretionary actions or decisions were

"based on considerations of public policy."    Id. at 537.   "The

focus of the inquiry is not on the agent's subjective intent in

exercising the discretion conferred by statute or regulation, but

on the nature of the actions taken and on whether they are
susceptible to policy analysis."     United States v. Gaubert, 499

U.S. 315, 325 (1991).



                                B.

          The district court, applying these principles to the

Commissioner's decisions to deny entry of Chilean fruit and to

destroy Chilean fruit already in the United States, found that

the decisions were policy decisions protected by the

discretionary function exception to the FTCA.    We agree.

Specifically, the district court concluded:
          The FDA acted to protect the public from the
          risk of exposure to poisonous fruit which it
          learned could be coming from Chile. It had
          the discretion to test the fruit and
          determine whether the fruit was adulterated.
          It also had the discretion to refuse entry
          into the United States. The actions taken
          were not violative of any regulatory or
          statutory provisions. The acts taken were in
          accordance with the FDA's authority to
          determine whether or not a specific product
          should be allowed entrance into the United
          States. This conduct is grounded in the
          policy of protecting the public health. The
          actions were clearly in furtherance of the
          FDA's statutory mission to protect the
          American public from adulterated food. All
          the acts involved judgment and choice and
          were grounded in policy.


Balmaceda v. United States, 815 F. Supp. 823, 827 (E.D. Pa.

1992).

          As the district court found, the Commissioner's

decisions were clearly "matter[s] of choice" for a person

occupying his position.   As the plaintiffs readily concede, the

orders giving rise to these cases were authorized both in the
sense that the Commissioner was acting within the scope of his

authority1 and in the sense that his orders were not in conflict

with any applicable statute or regulation.    In short, the

Commissioner was the public official responsible for making these

choices and he made them in a lawful manner.    Accordingly, we

turn to the second prong of a discretionary function exception

analysis and consider whether the choices to be made were

susceptible to policy analysis.

          In making his decisions, the Commissioner was required

to evaluate and reconcile in some manner the findings of the

Philadelphia and Cincinnati laboratories.    Among other things,

this would include making a judgment about the significance of

the fact that no segment of the first two grapes had been

reserved for confirmatory testing.   Moreover, the significance of

this data had to be judged in the overall context of the reports

to the embassy in Santiago, the surveillance activity that had


1
 . The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-
394, provides that the Commissioner of the FDA may "cause to be
disseminated information regarding food, drugs, devices, or
cosmetics in situations involving, in the opinion of the
[Commissioner], imminent danger to the health or gross deception
of the consumer." 21 U.S.C. § 375(b); see also 21 C.F.R. §
2.5(a). FDA regulations also permit the Commissioner of the FDA
to initiate a "recall" of food in distribution channels where the
food presents a risk of injury to consumers and recall is needed
to protect the public health. 21 C.F.R. § 7.45; see 21 C.F.R. §§
7.40-7.59. Whether and when to initiate a recall in any
particular case is a judgment call for appropriate FDA officials
to make in light of the perceived "urgen[cy]" of the situation.
21 C.F.R. § 7.40(b). Thus, whether recall is warranted is
assessed in light of "the degree of seriousness of the health
hazard" and "the likelihood of occurrence of the hazard." 21
C.F.R. § 7.41(a)(4),(5).
already been conducted, the probability that contaminated grapes,

if they existed, would be consumed, and probable consequences of

any such consumption to the person poisoned, fruit consumers in

general, and to the fruit industry as a whole.

           A critical part of the policymaking process was the

Commissioner's decision to make a decision in the early morning

hours of March 13, rather than to await more surveillance and

testing.   If he had waited, the plaintiffs might not have

suffered the injury of which they complain.   Of course, the

Commissioner did not wait and, unfortunately, that injury did

occur.   The point, however, is that the decision about when the

data were sufficient to permit responsible decisionmaking

involved questions of "social, economic, and political policy."

Varig Airlines, 467 U.S. at 814.   That decision was an inherent

part of the policymaking process and just as susceptible of being

skewed by the prospect of judicial second guessing as any other

part of the process.   Thus, the Commissioner's decisions both

involved an element of judgment or choice, and were the kind of

choices "that the discretionary function exception was designed

to shield."   Berkovitz, 486 U.S. at 536.
                                 C.

          The plaintiffs attempt to avoid application of the

discretionary function exception by looking behind the injury-

causing decision and finding fault with an aspect of the data on

which it may have been based.   The gist of their complaint is

that the FDA's Philadelphia laboratory's tests were negligently

performed because the procedures used conformed neither to the

FDA's Regulatory Procedures Manual nor to good laboratory

practices generally.    Thus, the plaintiffs claim, their complaint

is "based on" the behavior of the laboratory technicians and not

on the FDA Commissioner's decisions to bar fruit from Chile and

to remove it from the marketplace.    The methods employed by the

laboratory technicians while testing the grapes, they argue

further, did not involve "the permissible exercise of policy

judgment," Berkovitz, 486 U.S. at 537, and accordingly were not

themselves protected by the discretionary function exception.

          We acknowledge that simply as a matter of semantics, it

is possible to characterize the plaintiffs' claims as being

"based upon" the conduct of the Philadelphia laboratory

technicians.   We nevertheless reject that proposed

characterization because it is inconsistent with the purpose of

the discretionary function exception.

          The plaintiffs emphasize that this case comes to us on

a grant of a motion to dismiss, and that we must accept their

version of the facts as true.   This is, of course, an accurate

statement of the law.   But the fact that we must accept the

plaintiffs' version of the facts as true does not mean that we
must accept plaintiffs' characterization of those facts.    We know

of no authority for the proposition that plaintiffs, by the

manner in which they draft their complaints, may dictate that

their claims are "based upon" one government employee's actions

and not another's.   The relevant authority is to the contrary.

Cf. United States v. Neustadt, 366 U.S. 696, 703-06 & n.13 (1961)

(holding that federal law, not state law or the language of

plaintiff's complaint, governs the applicability of 28 U.S.C.

§ 2680(h)'s retention of sovereign immunity in cases where the

plaintiff's claim "arise[s] out of . . . misrepresentation");

Kosak v. United States, 465 U.S. 848, 851-62 (1984) (whether

plaintiff's claim "aros[e] in respect of . . . the detention of

any goods or merchandise by any officer of customs" for the

purposes of 28 U.S.C. § 2680(c) is an independent question of

federal law the resolution of which depends on the terms and

purposes of the FTCA).

          The reality here is that the injuries of which the

plaintiffs complain were caused by the Commissioner's decisions

and, as a matter of law, their claims are therefore "based upon"

those decisions.   Any other view would defeat the purpose of the

discretionary function exception.   In situations like this where

the injury complained of is caused by a regulatory policy

decision, the fact of the matter is that there is no difference

in the quality or quantity of the interference occasioned by

judicial second guessing, whether the plaintiff purports to be

attacking the data base on which the policy is founded or
acknowledges outright that he or she is challenging the policy

itself.

          If plaintiffs injured by regulatory policy decisions

were permitted to prosecute damage actions by challenging the

manner in which the underlying data was collected, federal

courts, of necessity, would be required to examine in detail the

decisionmaking process of the policy maker to determine what role

the challenged data played in the policymaking and what the

policymaker's decision would have been if he or she had received

the unchallenged data but not the challenged data (or had

received other data in lieu of the challenged data).   Without

such an examination and all of the discovery that would

necessarily precede it, a plaintiff in the position of these

plaintiffs would be unable to prove a causal link between the

alleged negligence and the alleged injury.   Yet this is precisely

the kind of inquiry that the Supreme Court sought to foreclose

when it ruled out any inquiry into an official's "subjective

intent in exercising the discretion conferred by statute or

regulation."   Gaubert, 499 U.S. at 325.

          The social cost of permitting the inquiries required by

the plaintiffs' theory are prohibitive.    First, because the

liability-creating decision might be a policy choice at the very

highest level of a regulatory agency, the number of persons

affected by the decision is potentially staggering and the

potential liability virtually unlimited.   Second, because of the

nature of the inquiry, the demands of the litigation process on
the most valuable human resources of the regulatory agency will

be extraordinary.    But this is only a part of the picture.

           As we have earlier suggested, every policy decision

involves an exercise of the policymaker's judgment about the

reliability, adequacy, and significance of the information

available to him or her.    Because of time and expense constraints

and because experience teaches that human beings make mistakes in

technique, perception, logic, communication, and a myriad of

other areas, no decisionmaker can have one hundred percent

confidence in the information before him or her at any given

point in time.   Each responsible decision therefore necessarily

reflects the decisionmaker's judgment that it is more desirable

to make a decision based on the currently available information

than to wait for more complete data or more confirmation of the

existing data.

           When one appreciates that virtually all policymaking

involves judgments about the reliability of the available data,

it is not difficult to predict the impact upon policymakers that

would result from the fear of virtually unlimited liability and

the prospect of virtually interminable litigation associated with

the plaintiffs' theory of liability.    The "safest" course from

the decisionmaker's personal perspective will be to wait for more

conclusive data.    But that course can carry a very high social

cost.   This is graphically illustrated by asking what will happen

the next time a Commissioner of the FDA has to make decisions

like those here involved if the current Commissioner is exposed

to this litigation and the United States government is found
liable for all the losses here alleged.    We believe the

discretionary function exception was intended to make sure every

Commissioner's judgment will not be skewed by such

considerations.



                                  D.

             The plaintiffs rely principally on two Supreme Court

decisions:    Berkovitz v. United States, 486 U.S. 531 (1988), and

Indian Towing Co. v. United States, 350 U.S. 61 (1955).       In

Berkovitz, the plaintiff had contracted polio from a dose of

polio vaccine.     The decisions alleged to have caused the

plaintiff's injury were a decision to license the manufacture of

the lot from which that plaintiff's dose of vaccine came and the

decision to release that lot for use by the public.     The Supreme

Court held that the discretionary function exception would not

protect those decisions if they were contrary to a previously-

established policy which left no discretion to the

decisionmakers.     Thus, where the policy previously established by

statute and regulation deprived the agency of the authority to

license a manufacturer without insisting that it submit specified

data to the agency, a decision to license without requiring that

submission was not a protected exercise of a discretionary

function.     Similarly, if a previously determined policy

established objective scientific criteria for release of a lot

and deprived the agency of discretion to release a lot not

meeting those standards, damage liability could be imposed for a

decision to release a lot not meeting those criteria.
          The cases before us, unlike Berkovitz, are not cases in

which the injury-causing decision was contrary to a previously

established policy which deprived the decisionmaker of

discretion.   The policy previously established by Congress and

the FDA called for the Commissioner to make a discretionary

decision on whether the public health required a quarantine of

Chilean fruit.   The plaintiffs have pointed to no statute or

regulation that the Commissioner's decision violated.     The best

they can do is reach behind the Commissioner's decision and point

to a laboratory manual that allegedly called for the retention of

a portion of the first two perforated, white-ringed grapes.     But

clearly the laboratory manual was not intended to deprive the

Commissioner of the discretion to make the decision that he made

on March 13 based on the information available to him at the

time.

          In Indian Towing, the plaintiff had been injured as a

result of the negligent operation of a lighthouse by the Coast

Guard.   The Court held that although the Coast Guard had no

obligation to undertake lighthouse service, once it exercised its

discretion to do so, it was obliged to exercise due care.     The

Court has recently described the basis for decision in Indian
Towing as follows:
          The United States was held liable . . .
          because making sure the light was operational
          "did not involve any permissible exercise of
          policy judgment." . . . Indeed, the
          Government did not even claim the benefit of
          the exception but unsuccessfully urged that
          maintaining the light was a governmental
          function for which it could not be liable.
United States v. Gaubert, 499 U.S. at 326.


          The plaintiffs argue that just as the government, after

making the discretionary decision to provide lighthouse services,

could not thereafter provide those services negligently, so too

the government here, after making a discretionary decision to

test incoming Chilean fruit, could not thereafter fail to

exercise care in doing the testing.   Besides the fact that the

discretionary function exception was not at issue in Indian
Towing, the plaintiffs miss the critical distinction between that

case and this.   The plaintiff in Indian Towing was injured by the

negligently performed lighthouse services and his case

accordingly required an inquiry only into how those services were

delivered, not into the exercise of policymaking discretion.

Here the plaintiffs would not have been injured but for the

decisions of the Commissioner and litigation of their cases will

require extensive inquiry into the process by which those

decisions were made.   Once a policy decision has been made

negligence in its non-discretionary execution can give rise to

FTCA liability without jeopardizing the interests the

discretionary function exception is designed to protect.    Those

interests would be jeopardized, however, by allowing these

plaintiffs to go forward.   Cf. Patterson v. United States, 881

F.2d 127, 128 (4th Cir. 1989) (in banc) (holding that plaintiffs

may not base claim on the non-discretionary action of an Office

of Surface Mining ("OSM") inspector because that action was

followed by a decision by the OSM not to take further action).
                              IV.

          For the foregoing reasons, we will affirm the order of

the district court dismissing the complaints in these cases.
           Fisher Bros. Sales, Inc. v. United States




            Nos. 93-1182, 93-1205; 93-1206, 93-1207,
                      93-1208, and 93-1209


ROTH, Circuit Judge, Dissenting. Judges Becker, Hutchinson,
Scirica, Lewis and McKee join in the dissent.




          I respectfully dissent from the conclusion reached by

the majority.   I cannot accept cloaking a decision, which results

from negligently performed laboratory work, with the

discretionary function exception under circumstances in which the

decision maker would expect, first, that the laboratory work will

be performed under scientifically recognized and accepted

techniques and, second, that further actions by the decision

maker will be governed by the results of that testing.

          Because I conclude that such circumstances have been

alleged by the plaintiffs in their complaint, I find it improper

for the district court to have dismissed the complaint on the

basis of the discretionary function exception.

          In ruling on defendants' motions to dismiss, the

district court focused on the conduct of the FDA as a whole.    It
conducted an analysis of the statutes and regulations governing

the FDA, and concluded that
          [u]nder this authorization, FDA had the discretion to
          act during the Chilean grape crisis. The FDA acted to
          protect the public from the risk of exposure to
          poisonous fruit which it learned could be coming from
          Chile. It had the discretion to test the fruit and
          determine whether the fruit was adulterated. It also
          had the discretion to refuse entry into the United
          States. The actions taken were not violative of any
          regulatory or statutory provisions. The acts taken
          were in accordance with the FDA's authority to
          determine whether or not a specific product should be
          allowed entrance into the United States. This conduct
          is grounded in the policy of protecting the public
          health. The actions were clearly in furtherance of the
          FDA's statutory mission to protect the American public
          from adulterated food. All the acts involved judgment
          and choice and were grounded in policy.


Balmaceda v. United States, 815 F. Supp. 823, 827 (E.D. Pa.

1992).   The district court declined to "consider alleged

violations of a laboratory procedures manual because this

argument simply is the basis of the plaintiffs' claim of

negligence."   Id. at 826.

          I believe, however, that, in analyzing the actions
taken here by the FDA, one must consider carefully whether it is

implicit in the order for tests to be performed that the tests

are both scientifically accepted and reliable.   If it is

implicit, I would not extend the discretionary function exception

to actions which predictably follow from the test results.    The

discretionary function exception should not protect an official's

decisions, brought about by the results of accepted and reliable

tests, just as it will not protect an official's release of a
noncomplying lot of polio vaccine.    See Berkovitz by Berkovitz v.

United States, 486 U.S. 531 (1988).

           Moreover, if actions are taken as a result of accepted

and reliable testing, they may no longer be the product of

independent judgment.    The determination to order testing

involved the element of choice.    However, it is not clear from

the record before us whether any significant discretion to choose

remained after the decision to test or whether a positive test

result would implicate a concomitant decision to withdraw the

fruit from the market.   If plaintiff can prove the existence of

such inevitability, the discretionary function exception may no

longer be implicated.    Accord Westfall v. Erwin, 484 U.S. 292,

296-97 (1988) ("When an official's conduct is not the product of

independent judgment, the threat of liability cannot

detrimentally inhibit that conduct.").

           I do not question the majority's conclusion that the

Commissioner's action in ordering the testing was discretionary.

I believe, however, that the majority's view of the case

misapprehends the precise nature of plaintiffs' claims under the

FTCA.   Plaintiffs do not argue that the initial decision to test

was not a protected discretionary function.    What plaintiffs do

argue is that the decision to withdraw Chilean fruit from the

market was proximately caused by the positive test results.

Plaintiffs contend that the tests performed by the FDA's

Philadelphia laboratory were negligently performed in that the

procedures used conformed neither to the FDA's Regulatory

Procedures Manual nor to good laboratory practices.    Their
complaints allege that, "as a result of the negligent analysis

performed and reported by the Philadelphia laboratory, the FDA

decided to take three actions: 1) refusing entry into the United

States of all Chilean fruit; 2) forcing a market withdrawal of

all Chilean fruit already in distribution channels; and 3)

issuing a press release informing consumers to refrain from

eating Chilean fruit."   Joint Appendix at 169.    Thus, plaintiffs

do not challenge the FDA Commissioner's decisions to test fruit

from Chile or, based upon properly performed testing, to take

action to remove all Chilean fruit from the marketplace.

          Because we are considering a motion to dismiss, we must

accept as true all of the factual allegations in the complaints.

Berkovitz, 486 U.S. at 540, 108 S. Ct. at 1961.     For present

purposes, there was no cyanide in the grapes, the FDA technicians

were negligent in reaching the conclusion that there was cyanide

contamination, and this negligence was the cause-in-fact and

proximate cause of the damage to plaintiffs.      Moreover, there is

no contention here that the actions of the laboratory

technicians, in testing the grapes, involved the permissible

exercise of policy judgment.   The technicians are not protected

by the exception.

          In Berkovitz, the Supreme Court stated that "the
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."     Id. at
536, 108 S. Ct. at 1958-59.    In this case, the plaintiffs allege
that the Regulatory Procedures Manual established procedures to

be followed for tests such as those performed at the Philadelphia

lab and provided that any modification to those procedures be

reduced to writing.   Plaintiffs contend that the lab technicians

violated the manual's specific instructions in failing to reserve

portions of the two punctured grapes for confirmatory testing and

in failing to make contemporaneous records of their observations.

          The majority speculates that, after receiving the test

results, the Commissioner was required to make a judgment about

the conflicting findings of the Philadelphia and Cincinnati

laboratories and to judge the significance of the Philadelphia

laboratory's failure to follow established procedures.   See page

[typescript at 13-14].   These contentions, however, do not appear

in the complaint.   In the record before the district court on the

motion to dismiss, such speculation would be inappropriate.

Plaintiffs' allegations do, however, permit the conclusion that

the decision to withdraw Chilean fruit from the market followed

as a result of the negligent testing.

          I find that such an allegation satisfies the pleading

requirements of Berkovitz.   Moreover, in Berkovitz, which

concerned, inter alia, a claim that the Division of Biologic

Standards (DBS) of the National Institutes of Health had

wrongfully licensed the production of a polio vaccine, the Court

made the following observation:
               If petitioners' claim is that the DBS made a
          determination that [the vaccine] complied with
          regulatory standards, but that the determination was
          incorrect, ... the question turns on whether the manner
          and method of determining compliance with the safety
          standards at issue involve agency judgment of the kind
          protected by the discretionary function exception.
          Petitioners contend that the determination involves the
          application of objective scientific standards, ...
          whereas the Government asserts that the determination
          incorporates considerable "policy judgment" ... . In
          making these assertions, the parties have framed the
          issue appropriately; application of the discretionary
          function exception to the claim that the determination
          of compliance was incorrect hinges on whether the
          agency officials making that determination permissibly
          exercise policy choice.


Id. at 544-45, 108 S. Ct. at 1963 (footnote omitted).   As this

passage makes clear, judgment guided purely by scientific or

other objective principles does not involve discretion for

purposes of the discretionary function exception.   See also
Griffin v. United States, 500 F.2d 1059, 1066 (3d Cir. 1974)

("Where the conduct of Government employees in implementing

agency regulations requires only performance of scientific

evaluation and not the formulation of policy, we do not believe

that the conduct is immunized from judicial review as a

'discretionary function.'"); Ayala v. United States, 980 F.2d

1342, 1349-50 (10th Cir. 1992) ("We fail to see how the
determination in this case can be labeled a policy decision.    The

choice was governed, as plaintiffs contend, by 'objective

principles of electrical engineering.'").

          In Berkovitz, the specifications for licensing vaccine

or releasing lots of vaccine had been incorporated in procedures

and regulations.   In the present case, the Commissioner did not

have specific procedures established for handling fruit to

determine if it had been contaminated.   Nevertheless, the

plaintiffs allege that the technicians' sole purpose in testing
the suspect grapes was to determine whether they had been

injected with cyanide.   Appellants claim that the technicians

were provided with precise, objective, scientific standards to

use in the testing.   Any decisions made in the course of testing

concerning what portions of the grapes to test or how to conduct

the tests should have been made solely with reference to these

principles of science.   I am not persuaded that this situation is

significantly different from that in Berkovitz.

          Social, economic, and political factors--those involved

in the kinds of decisions Congress intended to shield from

liability--had no place in the decision making process once the

Commissioner decided to order testing.   Consequently, if the

district court were to adjudicate this case as it is alleged in

the complaint by plaintiffs, the court would not be "second-

guessing" a policy-based decision.   Instead, by measuring the

technicians' conduct against the procedures they were to have

followed and principles of good laboratory practice, it would be

undertaking the sort of inquiry that courts are called on to make

all the time.

          Moreover, I do not find it significant that the conduct

challenged here was embedded within the clearly discretionary

consideration of whether to test incoming fruit or to remove all

Chilean fruit from the market.   With respect to the decision to

test fruit in the first place, I am guided by the body of law

"holding that once the government makes a policy decision

protected by the discretionary function exception, it must

proceed with due care in the implementation of that decision."
Caplan v. United States, 877 F.2d 1314, 1316 (6th Cir. 1989).

This line of cases has grown out of the Supreme Court's decision

in Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.

Ct. 122, 100 L. Ed. 48 (1955), which concerned an action against

the Coast Guard for negligent operation of a lighthouse.    The

Court stated:
               The Coast Guard need not undertake the lighthouse
          service. But once it exercised its discretion to
          operate a light on Chandeleur Island and engendered
          reliance on the guidance afforded by the light, it was
          obligated to use due care to make certain that the
          light was kept in good working order; and, if the light
          did become extinguished, then the Coast Guard was
          further obligated to use due care to discover this fact
          and to repair the light or give warning that it was not
          functioning. If the Coast Guard failed in its duty and
          damage was thereby caused to petitioners, the United
          States is liable under the Tort Claims Act.


Id. at 69, 76 S. Ct. at 126-27.    In this case, once the FDA

exercised its discretion to test incoming Chilean fruit, it

incurred the obligation to use due care in doing so.

          Nor am I led to a different result by the fact that the

alleged negligence in the laboratory was followed by a decision
that was, at the very least, a "but for" cause of the harm to

plaintiffs.2    I am not persuaded by the majority's contention


2
.         While I suspect that plaintiffs may encounter

difficulty in attempting to prove that the alleged negligence of

the lab technicians, rather than the Commissioner's decision, was

the proximate cause of their injuries, I cannot allow that

perception to color my analysis here.    Instead, I must accept the

allegations in plaintiffs' complaints as true.    Those allegations
that the possibility of liability will have an undesirable effect

on policymakers who find themselves in a position analogous to

that of the FDA Commissioner in this case.    Because there is an

obligation to use due care in operating a lighthouse or licensing

a polio vaccine or testing a grape for cyanide, decisions arising

from the execution of that duty must be based upon the proper

performance of that duty.     The desired result is that the purely

technical aspects of any such decision will be properly


(..continued)

are directed at harm allegedly caused to plaintiffs by the

negligent testing.   The district court may appropriately consider

causation in subsequent stages of these proceedings, such as in

deciding whether to grant a motion for summary judgment.     See

Appley Brothers v. United States, 7 F.3d 720, 725 and n.2 (8th

Cir. 1993) (Reversing district court's dismissal of suit,

pursuant to discretionary function exception, on ground that

plaintiffs based their claim on Department of Agriculture's

negligent inspection of warehouse rather than on USDA's decision

whether or not to revoke warehouse license; as to the issue of

causation, the court of appeals held that the "question of

whether appellants failed to state a cause of action was not

before the district court, and is not an issue in this appeal.").

I believe, however, that the factor of causation has no place in

my consideration of whether the discretionary function exception

applies to plaintiffs' allegations as they are presently

expressed in the complaint.
conducted.   If there is a chilling effect, as the majority fears

there will be, the chill must be directed to ensure the non-

negligent operation of the lighthouse or the non-negligent

licensing of the polio vaccine or the non-negligent examination

of the grapes.   Just as the requirements for licensing a polio

vaccine are discretionary but the steps to determine that a

particular batch of vaccine is properly licensable are not

discretionary, so too the removal from the market of cyanide-

contaminated grapes may be discretionary but the proper

performance of established tests to detect the contamination is

not.

          In effect, I see no reason to believe that a finding of

liability against the government in this case would have

consequences of a different nature or to a greater extent than a

finding of liability against the government in either Indian

Towing or Berkovitz.   When an official makes a policy decision--

to build a lighthouse or to license a vaccine or to remove fruit

from the market--the possibility of tort liability may factor

into the analysis.   However, the focus of that consideration

should be the ability of the government to perform the tasks

which follow from the decision to implement the action.    If the

government agency cannot reasonably expect to be able non-

negligently to operate a lighthouse or to license a vaccine or to

test a grape for cyanide, this factor should be considered in

instituting the line of action in the first place.   If testing

grapes for cyanide were difficult or the results of such testing

not reliable, the Commissioner might better exercise his
discretion by withdrawing grapes from the market without having

them tested.   However, once the decision was made to do the

testing, the discretionary function exception should not protect

the government from the consequences of the negligence of the

laboratory technicians in performing their routine duties.

          For the above reasons, I would reverse the dismissal of

this case by the district court and would remand it for further

proceedings.
