

                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 &amp; 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 &amp; 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  &amp; 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  &amp; 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 &amp; 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
