BALMACEDA v. UNITED STATES

The opinion of the court was delivered by: BY THE COURT; HERBERT J. HUTTON

MEMORANDUM AND ORDER

 HUTTON, J.

 December 29, 1992

 Presently before the Court is the defendant United States of America's Motion to Dismiss the five consolidated actions brought under the Federal Tort Claims Act. *fn1" These actions allege that the Food and Drug Administration ("FDA") negligently performed cyanide testing which resulted in the denial of Chilean fruit into the United States. Defendant moves to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

 FACTUAL BACKGROUND

 According to the complaints, taken as true under Fed. R. Civ. P. 12(b), the events which provoked the Chilean grape scare began on Thursday, March 2, 1989. *fn2" On that day, the United States Embassy in Santiago, Chile, received an anonymous telephone call. The caller reported that Chilean fruit exported to the United States would be injected with cyanide. (Complaint, P 9). All Chilean fruit was detained during the weekend of March 4th and 5th while federal authorities considered the seriousness of the threat. (Complaint, P 10). The FDA concluded after an investigation that the call was a hoax. (Complaint, P 11).

 On March 7, 1989, the U.S. Embassy received another anonymous call. This time the caller stated that unidentified fruit had been injected with cyanide. The Embassy was told that the caller had access to orchards, storage facilities and shipping locations in Chile. (Complaint, P 13). On March 11, 1989, in response to the second call, the FDA's Philadelphia District Office doubled its inspection efforts with respect to fruit imported from Chile. The "Almeria Star" was the first vessel subjected to the increased inspection procedures. (Complaint, P 14). Government inspectors examined fruit in sealed holds and transferred any suspected fruit to the FDA's Philadelphia District Office laboratory for testing.

 On March 12, 1989, the FDA reported the discovery of two grapes taken from the "Almeria Star" that appeared to have puncture holes and discoloration. (Complaint, P 16). Further, examination produced one additional grape that had what appeared to be a small incision or slit. Investigators sent the grapes along with the crate from which they came to the Philadelphia laboratory where the FDA tested the two punctured grapes. The performed tests purported to detect the presence of cyanide. (Complaint, P 18).

 On March 13, 1989, the FDA denied importation of any Chilean fruit, forced the withdrawal of all Chilean fruit in the distribution process and issued a press release that announced the presence of cyanide in the two Chilean grapes and urged consumers and sellers to destroy Chilean fruit in their possession.

 The plaintiffs include United States importers, Chilean exporters and Chilean fruit growers. The complaints allege that the FDA negligently performed the testing for cyanide.

 DISCUSSION

 The threshold question before the Court is whether there is subject-matter jurisdiction in light of the discretionary function exception of the Federal Tort Claims Act. 28 U.S.C. § 2680(a). To defeat the exception's application, the plaintiffs argue that the FDA did not have the discretion to remove fruit from commerce under § 381(a) of the Federal Food Drug and Cosmetics Act unless it specifically found each article to be adulterated. 21 U.S.C. § 381(a). Plaintiffs argue that any finding of adulteration by the FDA could not be extended beyond that fruit which is appropriately represented by samples. Thus, plaintiffs contend that the FDA in taking action against unexamined fruit did not act within its discretion. They also contend that the FDA did not have the discretion to act given alleged negligent violations of a procedures manual which provides instructions on testing procedures within the FDA laboratory.

 It is axiomatic that the United States may not be sued unless there is an unequivocal waiver of sovereign immunity. United States v. Nordic Village, Inc., 117 L. Ed. 2d 181, 112 S. Ct. 1011, 1014 (1992); United States v. Dalm, 494 U.S. 596, 608, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (1990). In the absence of such an express waiver, federal courts lack subject-matter jurisdiction to hear a claim for damages against the United States. City of Garland v. Zurn Industries, Inc., 870 F.2d 320, 326 (5th Cir. 1989). Plaintiffs initiate their claims for relief under § 1346(b) of the Federal Tort Claims Act ("FTCA" or "the Act") 28 U.S.C. § 1346(b). The Act provides for a limited waiver of immunity with respect to certain tort claims committed by United States employees. *fn3" However, as the "exceptions" to the FTCA make clear, Congress' waiver of sovereign immunity under § 1346(b) was never intended to extend to all "tort" claims brought against the United States. United States v. Varig Airlines, 467 U.S. 797, 808, 81 L. Ed. 2d 660, 104 S. Ct.2755 (1984); 28 U.S.C. § 2680 (exceptions to FTCA). Any government action satisfying the requirements of any exception to the FTCA as codified in § 2680 still enjoys the protection of the doctrine of sovereign immunity. General Public Utilities Corp. v. United States, 745 F.2d 239, 242 (3d Cir. 1984), cert denied, 469 U.S. 1228, 84 L. Ed. 2d 365, 105 S. Ct. 1227 (1985).

 The exception at issue in the instant cases is § 2680(a), the "discretionary function" exception. *fn4" This section ...