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February 10, 1978


The opinion of the court was delivered by: BECKER


 I. Preliminary Statement

 These cases, now before us on Rule 12 motions, raise the important question whether a claim is stated against the United States under the Federal Tort Claims Act by a complaint alleging that personal injuries have been sustained by an employee of a private industrial plant as the result of a negligently conducted inspection of the facility by representatives of the Occupational Safety and Health Administration [hereinafter "OHSHA"]. *fn1" As far as we can ascertain, this is a question of first impression.

 In Thomas v. United States, C.A. 76-189, husband-plaintiff [hereinafter "plaintiff"] was injured at his place of employment when a heavy roll of paper was dislodged from its dispenser by the impact of a forklift truck's accidental collision with the dispenser. The roll of paper fell on him, causing severe physical injuries, including several broken bones. Plaintiff alleges that the paper dispenser was defective in that the roll of paper was not locked or otherwise securely affixed to the dispenser. He seeks damages from the United States on the grounds that a representative of OSHA had inspected the premises of plaintiff's employer some nine months before the accident, but, due to alleged negligence, had failed to examine the defective paper dispenser itself. As a result, plaintiff alleges, neither he nor his employer were made aware of the dispenser's dangerous design, nor were any safety precautions taken. It is plaintiff's contention that his injuries were therefore caused by the inspector's negligence and that the United States is liable for the injuries so caused.

 The allegations in Blessing v. United States, C.A. 76-180, are similar to those made in Thomas. Husband-plaintiff [hereinafter "plaintiff"] was employed as the operator of a power press. As he worked at the press one day in January 1974, his right hand was crushed, necessitating amputation of his thumb and partial amputation of two other fingers on his right hand. About a year before the accident, an OSHA representative had visited plaintiff's place of employment for purposes of making a safety inspection and determining compliance with OSHA regulations. Plaintiff alleges that the press was operationally unsafe and had been so for several years, but that the OSHA safety inspector negligently failed to examine it. He further alleges that, because the inspector failed to observe the press' hazardous condition, and since the menace that the press constituted was thus never called to the attention of either plaintiff or his employer, no corrective action was taken. Plaintiff concludes, therefore, that the United States is liable for his injuries in that they were directly and proximately caused by the negligence of its agent, the OSHA safety inspector.

 Plaintiffs premise the government's liability on the Federal Tort Claims Act [hereinafter "FTCA"], by which the United States has waived, with certain exceptions, see 28 U.S.C. § 2680; note 12 infra & accompanying text, its traditional sovereign immunity from suit for common law torts committed by its agents. In relevant part, the FTCA provides:

. . . the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States for money damages . . . 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 the 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). Since, as this provision establishes, the FTCA incorporates the tort law of the state in which the allegedly negligent act or omission occurred, and since both such acts relevant to these cases occurred in Pennsylvania, plaintiffs' claims depend on Pennsylvania law. Plaintiffs contend that had the inspections herein undertaken by the government instead been undertaken by a private person, under the facts of these two cases Pennsylvania would hold such a private person liable in tort for the plaintiffs' respective injuries. In support of their contention plaintiffs cite Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3d Cir. 1963); Toppi v. United States, 327 F. Supp. 1277 (E.D.Pa. 1971); and Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), each of which is set out and examined in Part III, infra.

 The United States, on the other hand, contends that the facts alleged in these cases do not give rise to liability under Pennsylvania tort law. It therefore has moved for dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state claims upon which relief can be granted. In addition, the government argues that the inspections at issue were discretionary in nature, implicating the so-called "discretionary function exception" to the FTCA, 28 U.S.C. § 2680(a), under which the United States remains immune from suit for any injuries sustained as a result of the exercise of governmental discretion, whether or not that discretion is exercised negligently or wrongfully. Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). Because the Third Circuit has held the discretionary function exception to be a jurisdictional bar to federal liability, see text accompanying note 6 infra, we will treat this aspect of each of the government's motions as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). If the government prevails on either of its contentions, therefore, the actions must be dismissed.

 In order to place the governmental inspections challenged in these cases in their proper statutory setting, we observe that the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 [hereinafter "Act"], was enacted for the purpose of reducing nationwide the number and severity of work-related illnesses and injuries -- just the sort of injuries suffered by the plaintiffs in these cases. *fn2" Recognizing the national scope of the health and safety problem it confronted and the human and economic costs that existing conditions imposed, *fn3" Congress established a comprehensive program of regulation, research, and education that calls for the cooperation of and assumption of responsibilities by employers, employees, and both federal and state agencies.

 As part of the Act's regulatory scheme, the Secretary of Labor, with input from the Secretary of Health, Education and Welfare and other federal agencies, 29 U.S.C. § 669, is to promulgate occupational health and safety standards, id. § 665, with which all employers subject to the Act *fn4" are to comply, id. § 654(a)(2). As a means of monitoring compliance with the Secretary's promulgated standards as well as with the more general statutory requirement that "[each] employer -- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees," id. § 654(a)(1), the Act authorizes representatives of the Secretary of Labor to enter, at reasonable times, any place of employment covered by the Act, to inspect all pertinent conditions, and privately to question both employers and employees, id. § 657. Enforcement procedures and penalties are established for violations of the Act or the regulations and standards issued by the Secretary of Labor pursuant to it. Id. §§ 658-666.

 It is important to note at the outset that plaintiffs in these cases do not claim a private right of action against the United States under the Act itself. *fn5" Although the Act authorizes the inspections alleged by plaintiffs to have been performed negligently, and although regulations promulgated pursuant to the Act provide some of the specifics for such inspections, see 29 CFR §§ 1903.1-.12 (1976), neither the regulations nor the statute is at the heart of the present actions. Rather, plaintiffs' claims center on principles of common law tort, made applicable to claims against the United States by the FTCA, whereby one is rendered liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous. See Restatement (Second) of Torts §§ 323, 324A (1965). Succinctly put, it is their contention that, having undertaken to make particular inspections pursuant to the Occupational Safety and Health Act, the government assumed a duty to plaintiffs not to conduct those inspections negligently. Plaintiffs further contend that the government breached its duty to them by its allegedly negligent inspections and that it therefore became liable for the injuries that they subsequently suffered.

  The Third Circuit treats the discretionary function exception as jurisdictional. *fn6" Griffin v. United States, 500 F.2d 1059, 1963 (3d Cir. 1974); Gibson v. United States, 457 F.2d 1391, 1392 n.1 (3d Cir. 1972). It has also held that jurisdictional issues must be resolved before other questions may properly be considered. Pacific Intermountain Express Co. v. Hawaii Plastics Corp., 528 F.2d 911, 912 (3d Cir. 1976). Therefore, we first must analyze the application of the discretionary function exception to these cases. Our discussion of the exception will be detailed and liberally footnoted; such treatment is a function of our search through the case law for a standard or a coherent set of principles that might govern. Rather than a seamless web, however, we found the law in this area to be a patchwork quilt. In the footnotes particularly we will detail conflicting approaches various courts have taken in applying the discretionary function exception. Yet despite some apparent judicial randomness, we have found sufficient guidance, especially from the Third Circuit in Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974), to tell us that the exception does not create pretrial jurisdictional bars in these cases, at least as the facts are now pleaded. The government's 12(b)(1) motions will therefore be denied, without prejudice to their later reassertion on fuller records.

 As to the 12(b)(6) motions, under Pennsylvania law, as the records now stand plaintiffs have not stated claims upon which relief can be granted. But we have stopped at the brink of dismissal for failure to state claims. In keeping with the spirit of the federal rules, we shall not now enter orders of dismissal; rather, we shall give the parties opportunity for discovery on the issues of jurisdiction (discretionary function) and liability, after which time plaintiffs may file amended complaints appropriately sharpened to be in conformity with the guidelines of this opinion, if they can do so in good faith. If plaintiffs do not amend, the actions will be dismissed for failure to state claims upon which relief can be granted. If they do amend, the government will be free to renew its motions or, with discovery having gone forward, to amend them to include motions for summary judgment under Rule 56.

 II. The Discretionary Function Exception

 The question to which we first turn is whether OSHA inspections are "discretionary functions" within the meaning of the FTCA. If they are, we are without jurisdiction of these cases by virtue of the FTCA's discretionary function exception, 28 U.S.C. § 2680(a), *fn7" and must therefore dismiss the actions under Rule 12(b)(1).

 Seeking to clarify the issue for us, the government contends that whatever might be the substantive merits of plaintiffs' allegations, the discretionary function exception excludes "from coverage of the [FTCA] claims arising from acts or activities of a regulatory nature." Government Memorandum of Points and Authorities in Support of Motion to Dismiss, No. 76-180, at 18 [hereinafter "Government Memorandum"]. Insofar as the inspections by representatives of OSHA giving rise to the instant suits were "activities of a regulatory nature," the government would therefore have us conclude that the suits are barred by the exception.

 The broad implications of the government's contention would, if valid, render any possible negligence in our cases nonactionable, for it cannot be gainsaid that the OSHA inspectors were, while inspecting the plaintiffs' respective places of employment, engaged in regulatory activities. Therefore, under the government's reading of the statute, we would be obliged to dismiss for want of jurisdiction any claims, including these two, brought under the FTCA and in which the bases of the complaints were negligently conducted OSHA inspections.

 The government, of course, does not contend that merely because a tort is committed by an agent of a regulatory body while in the course of his employment the tort "arises from" the regulatory activity and therefore may not serve as the basis for suit. Such an interpretation of the discretionary function exception would virtually emasculate the FTCA. Thus, while arguing that an accident resulting from a negligent OSHA inspection is not covered by the FTCA, the government concedes, Government Memorandum, supra, at 19-20, that a collision with a regulatory agency's vehicle while that vehicle was engaged in agency business would be covered, even though the sine qua non for both accidents was regulatory activity. *fn8"

 The government distinguishes the two situations by asserting that the latter is a common law tort while the former is an injury arising from regulatory activity. Government Memorandum, supra, at 19-20. So phrased, however, such a distinction is little more than a conclusory application of labels, for it does not focus on whatever elements distinguish an actionable common law tort from a nonactionable regulatory activity. *fn9" This lack of focus becomes important for analysis when we note that Pennsylvania apparently recognizes a tort action for negligent inspection under certain circumstances, see Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3d Cir. 1963); Toppi v. United States, 327 F. Supp. 1277 (E.D. Pa. 1971); Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961); we then face a situation in which common law tort and regulatory activity coalesce.

 The government nevertheless seeks to support its broad proposition by citing to some of the discretionary function exception's legislative history. It calls our attention to early drafts of the FTCA that exempted claims arising from the activities of certain regulatory agencies *fn10" and notes that when the present § 2680(a) was substituted for these particular exclusions the general legislative intent to exclude regulatory activities apparently remained the same. Thus, a committee memorandum explained the revision by stating that it was "designed to preclude . . . application of the act to a claim against a regulatory agency . . .. Since the language used . . . exempts from the act claims against federal agencies growing out of their regulatory activities, it is not necessary expressly to except such agencies . .. by name . . .." Explanatory of Committee Print of H.R.5373, 77th Cong. 2d Sess. 8 (1942) (Memorandum for the Use of the Committee on the Judiciary).

 To the extent that the government argues that this sampling of the FTCA's legislative history supports its proposition that the discretionary function exception bars all claims based upon regulatory activity, we think that the government reads too much into its examples and that the true exclusionary intent of the statute's framers was less sweeping. The Federal Tort Claims Act was enacted as a waiver of federal sovereign immunity designed to provide relief to those injured in their persons or property by common law torts committed by agents of the United States acting within the scope of their employment. *fn11" Dalehite v. United States, 346 U.S. 15, 24-25, 27-28 & n.17, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). Although giving its general consent to being sued in tort, the government carved out a number of exceptions to its waiver of sovereign immunity. Most of the exceptions are reasonably specific, tied to a particular, recognizable government activity, and interpreted without undue difficulty. *fn12" Not so § 2680(a), which broadly exempts from tort liability the execution in due care of a statute or regulation as well as the exercise or performance, whether or not in due care, of any discretionary function or duty.

 Read as a whole and with an eye to discerning a policy behind this provision, it seems to us only to articulate a policy of preventing tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government and of protecting "the Government from liability that would seriously handicap efficient government operations," United States v. Muniz, 374 U.S. 150, 163, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963). Statutes, regulations, and discretionary functions, the subject matter of § 2680(a), are, as a rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions. *fn13" Rather, the judiciary confines itself -- or, under laws such as the FTCA's discretionary function exception, is confined -- to adjudication of facts based on discernible objective standards of law. In the context of tort actions, with which we are here concerned, these objective standards are notably lacking when the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political, or economic decisions. *fn14"

. . . the cases embraced within [the new] subsection would have been exempted from [the prior] bill by judicial construction. It is not probable that the courts would extend a Tort Claims Act into the realm of the validity of legislation or discretionary administrative action, but H.R. 6463 makes this specific.

 Hearings on H.R. 5373 and 6463 Before the House Committee on the Judiciary. 77th Cong., 2d Sess. 29 (1942) (statement of Francis M. Shea). Thus, subject to glosses imposed by subsequent judicial interpretation, the discretionary function exception seems at first to have been designed simply to incorporate the basic tenets of judicial restraint and proper separation of powers.

 Whatever our evaluation of the legislative history of the FTCA and the legislative intent concerning the discretionary function exception, the government nevertheless cites an extensive list of cases which it claims supports its contention that in the context of these actions we should equate discretionary function and regulatory function. *fn15" Government Memorandum, supra, at 21-22. Our own review of the applicable case law, however, leads us to a contrary conclusion.

 The case on which the government most heavily relies is the leading case of Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953), which contains the Supreme Court's only extended discussion of the discretionary function exception. *fn16" Dalehite was a wrongful death action arising out of a disastrous explosion of ammonium nitrate fertilizer stored in ships in the harbor at Texas City, Texas. Although produced and shipped by private firms, the fertilizer was manufactured and distributed for foreign use according to detailed plans and specifications developed by federal officials and under the over-all control and supervision of the United States. The district court held the United States liable based on findings of governmental negligence in the drafting and adoption of the plans for production and export of the highly explosive fertilizer, in particular aspects of the governmentally mandated manufacturing process, and in the United States' failure to police the shipboard loading of the finished product. 346 U.S. at 23-24. In affirming the Fifth Circuit Court of Appeals, which reversed the district court, 197 F.2d 771 (5th Cir. 1952), the Supreme Court did not disturb the trial court's findings of fact. Rather, in a 4-3 decision, the Court held that, even assuming the existence of the asserted acts of negligence, by virtue of the Federal Tort Claims Act's discretionary function exception the facts did not confer jurisdiction of the case on the district court under the FTCA because each of the allegedly negligent acts was discretionary in nature. 346 U.S. at 38-44.

 After reviewing the history and policies of the FTCA and the discretionary function exception, the Court endeavored to set out broad guidelines for distinguishing discretionary from nondiscretionary acts.

The "discretion" protected by the section is not that of the judge -- a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to ...

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