United States Court of Appeals
For the First Circuit
No. 01-2028
PAMELA WOOD, GLENROY WOOD,
Plaintiffs, Appellants,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ralph A. Dyer with whom the Law Offices of Ralph A. Dyer, P.A.
was on brief for appellants.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, were on brief for appellee.
May 10, 2002
CAMPBELL, Senior Circuit Judge. The district court case
from which this appeal is taken derives from an accident at the
Cutler Naval Computer and Telecommunications Station on August 23,
1998 in which plaintiff Pamela Wood sustained serious injuries and
a coworker was killed. Wood was employed at the time by Abhe &
Svoboda, Inc. ("ASI"), an independent contractor chosen by the Navy
to remove lead from, and to paint, the tall radio towers located on
the naval base in Cutler, Maine. On December 15, 1999, Wood and
her husband filed a four-count complaint against the United States
alleging negligence and loss of consortium and seeking punitive
damages under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 2671, et seq. (1994 & Supp. 2001). On the government's motion,
the court granted summary judgment against the Woods, and this
appeal followed.
I.
A. The Facts
1. The Contract
In 1996, the Navy sought contractor bids for the lead
abatement and painting of radio towers ranging in height from 200
to 750 feet, located on the naval base in Cutler, Maine. As part
of the award process, bidders were required to submit a two-part
proposal. The first part related to pricing alone. The second
part consisted of a "technical proposal" with four factors to be
addressed: (1) technical expertise (including schedule, quality
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control, technical approach, and environmental control);
(2) corporate management (including organizational structure,
management plan, technical personnel, and subcontracting); (3) past
experience; and (4) safety plan (including safety plan, safety
record, proposed safety procedures, and safety programs/safety
awareness/EMR rating). In evaluating each bid, the Navy weighted
price and technical factors equally and the four technical factors
were also weighted equally with respect to each other. ASI
submitted a proposal and was awarded Naval Contract N62472-95-C-
0425 (the "Contract") on October 29, 1996. The Contract required
that ASI provide "appropriate controls to ensure a safe work
environment for employees." Prior to the start of work, ASI was
obligated to submit a safety plan demonstrating how the contractual
safety goals would be accomplished. ASI presented a safety plan
that dictated, inter alia, that all employees exposed to the
possibility of falling would wear safety belts and that a project
superintendent would make periodic inspections of equipment to
assure it was in safe operating condition and properly maintained.
According to the plan drafted by ASI, ASI’s supervisors would "have
the responsibility and the absolute authority to enforce [its] job
safety program" to "ensure that no laborer or mechanic employed on
this project is allowed to work in surroundings or under conditions
which are . . . dangerous to his/her health or safety." In
addition, the Contract provided that ASI would comply with all
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federal safety regulations as well as the "Safety and Health"
provisions of the Corp of Engineers Manual.
According to the Contract, the Navy was to notify ASI of
any non-compliance with the applicable safety provisions of the
Contract and identify the corrective action to be taken by ASI. If
ASI failed or refused to comply, the Navy was given the option to
"issue an order stopping all or part of the work until satisfactory
corrective action ha[d] been taken."
2. Safety Violations
After ASI commenced work, the Navy made limited and
cursory inspections of the work site. According to the testimony
of Navy personnel, it conducted walk-through inspections of the ASI
work site several times a week. Each inspection lasted less than
an hour and the inspections were confined to the ground level. The
inspections were meant to serve a dual purpose: to monitor the
quality of ASI’s work and to identify possible safety infractions.
As required by the Contract, the Navy notified ASI of safety
violations that it recognized. In 1997, after being apprized by
Navy personnel that ASI was not in compliance with certain safety
requirements, the Navy contacted ASI and requested that particular
corrective actions be taken. A letter was sent on March 27, 1997,
pointing out necessary amendments to ASI’s safety plan. After a
severe accident on August 20, 1997, another letter was sent to ASI
by the Project Engineer, Mark Leighton. In a letter dated
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August 26, 1997, Leighton noted that ASI was not in compliance with
the approved safety plan. On September 17, 1997, yet another
letter was sent observing that ASI had failed to address certain
issues outlined in the August 26 letter. The Navy recommended a
review of ASI’s fall protection plan and comprehension training for
all employees working on scaffolding.
Meanwhile, the Occupational Safety and Health
Administration ("OSHA") was also investigating ASI’s compliance
with mandated safety regulations after the accident of August 20
had caused serious injury to one of ASI’s employees. The accident
occurred when two employees were riding a suspension scaffold. The
wire cable holding the scaffold broke, dropping the workers to a
roof thirty feet below. OSHA cited ASI with eight violations
classified as "serious" and administered a penalty of $80,000.
During the course of the investigation, OSHA uncovered a similar
accident that had occurred just two weeks prior in which a cable
broke on a scaffold suspended 720 feet in the air. Fortunately,
the five employees on that scaffold reached the ground safely. It
appears from the record that ASI had not informed the Navy of the
earlier August accident.
As a result of OSHA’s investigation and report, issued in
February 1998, the Navy informed ASI that, before the 1998
construction season began in June, a revised safety plan, along
with several other items, would have to be submitted. After two
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months had elapsed and ASI had not proffered the requested
documents, the Navy threatened to prohibit the start of work on
June 1, 1998. On that date, ASI responded to the Navy’s requests,
and it also hired a full-time Health and Safety Officer, Josh
Callander.
3. The Accident
On Sunday, August 23, 1998, Wood, David Boutell, Steve
Bailey and Josh Callander were painting one of the towers. They
were approximately 250 feet above the ground. As was the norm, the
crew had ridden to the work platform on a man-lift.1 Once the crew
arrived, one member descended in the man-lift a short distance,
secured it to the side of the tower and then returned to the work
platform via the internal ladder. As the crew progressed in its
work, the work platform was lowered and eventually the man-lift
needed to be lowered as well. It was at this juncture of the
process that Bailey instructed Boutell to lower the man-lift.
Boutell left the work platform without his safety
harness. Unfamiliar with operating the man-lift, Boutell was
having difficulty with the controls and Wood went to assist him.
She too failed to wear her safety harness. Apparently the wiring
1
A man-lift is essentially scaffolding suspended by two cables from
one side of the work platform. The man-lift is raised and lowered
by two electric motors, one for each cable, with a button for UP,
a button for DOWN, and an emergency kill button. In this case, the
man-lift cables were secured to the ground with a large, concrete
block to prevent the cables from swinging in the wind.
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of the man-lift’s motor control buttons had been reversed during an
earlier repair and had not been re-labeled to reflect the change.
As a result, the cable securing the man-lift moved up rather than
down. In so doing, it pulled on a large, 3,000 pound concrete
block to which the end of the cable was attached. This action
strained and broke the ropes securing the man-lift. The man-lift
fell approximately 70 feet before the slack in the cable ran out.
Boutell was thrown to his death. Wood managed to remain on the
platform but sustained injuries.
The subsequent OSHA investigation resulted in the
assessment of penalties of $383,500 against ASI. Five citations
were considered wilful and resulted in the maximum penalty allowed
under law. Several of the citations were directly related to the
accident. Specifically, OSHA cited ASI for making unauthorized
modifications to the scaffolds and their controls, including tying
off the man-lift to the tower, attaching the man-lift to a fixed
object on the ground, reversing the control buttons on the man-
lift’s hoist control and failing to label the change, and failing
to ensure that employees working were protected by the means of a
"personal fall arrest system." Following the accident, the Navy
temporarily suspended work on the towers.
Pamela Wood and her husband thereafter brought this
action in district court. In their complaint, the Woods allege
that the Navy acted negligently in both the selection and the
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supervision of Wood's employer, ASI. In Count I, the Woods
asserted that the Navy had negligently selected ASI to be the
contractor for the project. In Counts II and III, the Woods
alleged that the Navy had failed to take the precautions necessary
to protect ASI employees against known dangers, both by failing to
ensure a safe work environment and by failing to exercise
reasonable supervisory control over ASI. Finally, in Count IV, the
Woods sought punitive damages.2
The government moved to dismiss the complaint and, in the
alternative, sought summary judgment, asserting that the Woods'
claims were barred by the "discretionary function" exception to the
FTCA. 28 U.S.C. § 2680 (1994). After allowing limited discovery,
the district court concluded that the conduct alleged to be
negligent fell within the discretionary function exception. See
Wood v. United States, 148 F. Supp.2d 68 (D. Me. 2000); Wood v.
United States, 115 F. Supp.2d 9 (D. Me. 2000). Alternatively, the
court determined that ASI was an independent contractor, and that
the Navy was not liable for any breach of ASI’s duty to Wood as its
employee. We affirm.
2
The FTCA does not allow for the imposition of punitive damages
against the United States. 28 U.S.C. § 2674. Consequently, the
Woods do not challenge the dismissal of Count IV.
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II.
A. The Federal Acquisition Regulations
In the Competition in Contracting Act of 1984 ("Act"),
Congress created the Office of Federal Procurement Policy
("Office") to exercise responsibility for, and oversight of, the
procurement of property and services3 for the federal government.
41 U.S.C. § 404 (1987 & Supp. 2001). To the administrator of the
Office ("Administrator"), Congress granted the discretion to
prescribe reasonable rules and regulations governing the
procurement of property and services by an executive agency,
including departments of the military. Id. §§ 403, 404. The goal
of the Act is to obtain maximum efficiency in the expenditure of
public resources.
To implement a uniform procurement system, the
Administrator has promulgated a set of rules and regulations, the
Federal Acquisition Regulations ("FAR"), 48 C.F.R. § 1 et seq.
(2001), that broadly outline procurement policies and procedures
for the acquisition of goods and services by the government on
behalf of the American taxpayer. It grants broad discretion to
"local procurement officials to take independent actions based on
their professional judgment" so as to obtain the "best value
3
The term procurement refers to all stages of the process of
acquiring property or services, starting with the identification of
the need for the property or service and ending with contract
completion. 41 U.S.C. § 403.
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product or service." Id. §§ 1.102, 1.102-2(c)(2). "Best value" is
viewed "from a broad perspective and is achieved by balancing the
many competing interests" in a system that promotes efficiency and
the maximization of resources. Id. § 1.102-1(b). To achieve
efficient operations, the FAR "shifts its focus from ‘risk
avoidance’ to one of ‘risk management.’" Id. § 1.102-2(c)(2). The
FAR views the cost to the taxpayer of attempting to eliminate all
risk as prohibitive. To avoid these costs, the FAR encourages the
broad use of discretion. It explicitly states that "[t]he
Executive Branch will accept and manage risk associated with
empowering local procurement officials to take independent action
based on their professional judgment." Id.
Congress provided guiding principles concerning the
retention of contractors like ASI by the Navy. Id. §§ 9.104-1,
9.104-3. Pursuant to both the statute and the FAR, some of the
factors to be considered include whether the prospective contractor
has adequate financial resources; the ability to comply with
delivery and performance schedule; a satisfactory performance
record; and a satisfactory record of integrity and business ethics.
41 U.S.C. § 403(7)(Supp. 2001); 48 C.F.R. § 9.104-1(a)-(d). Safety
considerations are mentioned within the broad category of having
"the necessary organization, experience, accounting and operational
controls, and technical skills, or ability to obtain them
(including, as appropriate, such elements as . . . safety programs
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applicable to materials to be produced or services to be performed
. . . .)." 48 C.F.R. § 9.104-1(e). Thus, in this case, the Navy
was to consider a variety of factors - safety programs among them -
when it evaluated bids and selected a contractor.
In regards to safety issues, the FAR mandates that
certain provisions be placed in the contract; these delegate
primary responsibility to the contractor to maintain a safe work
environment. Id. § 36.513. According to the required contract
clauses, the contractor must comply with all federal safety laws
and regulations, id. § 52.236-13(b)(2), must follow the pertinent
provisions of the United States Army Corps of Engineers Safety and
Health Requirements Manual, id. § 52.236-13(c), and must ensure
that any additional safety measures required by the contracting
officer are taken, id. § 52.236-13(b)(2). In addition, if the
contract involves hazardous work or materials, the contractor is
required to submit a written plan that must include "analysis of
the significant hazards of life, limb, and property inherent in
contract work performance and a plan for controlling these
hazards." Id. § 52.236-13(f)(1).
While the FAR gives primary responsibility for safety to
the contractor, the contracting officer is required to notify the
contractor of any instances, coming to the officer’s attention, of
"noncompliance with these requirements or any condition which poses
a serious threat or imminent danger to the health or safety of the
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public or Government personnel." Id. § 52.236-13(d). If, upon
notification, the contractor refuses to take corrective action the
contracting officer has the option to stop work until satisfactory
corrective action is taken. Id. The contracting officer is also
required to contact OSHA of instances where the contractor has been
notified to take immediate action to correct serious or imminent
dangers. Id. § 36.513(c).
The FAR prescribes broad oversight obligations for the Navy.
Specifically, "[c]ontracting officers are responsible for ensuring
performance of all necessary actions for effective contracting,
ensuring compliance with the terms of the contract, and
safeguarding the interests of the United States . . . In order to
perform these responsibilities, contracting officers should be
allowed wide latitude to exercise business judgment." Id.
§ 1.602-2. Thus, the FAR explicitly provides a contracting officer
with discretion in determining the manner in which the officer will
conduct oversight responsibilities.
B. The Federal Tort Claims Act
The FTCA is a limited waiver of the federal government’s
sovereign immunity. It allows civil actions against the United
States "for 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
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with the law of the place where the act or omission occurred." 28
U.S.C. § 1346(b). Absent this waiver of sovereign immunity, the
federal courts lack subject matter jurisdiction over torts against
the United States.
Congress has specified several circumstances in which the
waiver will not attach. 28 U.S.C. § 2680. The exception primarily
relied on by the district court relates to the claims "based upon
the exercise or performance or failure to exercise or perform a
discretionary duty . . . whether or not that discretion is abused."
28 U.S.C. § 2680(a).4 A line of Supreme Court cases explains the
purpose behind, and the boundaries of, the exception. See United
States v. Gaubert, 499 U.S. 315 (1991); Berkovitz v. United States,
486 U.S. 531 (1988); United States v. S.A. Emperesa de Viacao Aerea
Rio Grandenese (Varig Airlines), 467 U.S. 797 (1984); Dalehite v.
4
In the alternative, the district court determined that the Navy’s
conduct was protected from liability by the independent contractor
exception. 28 U.S.C. § 2671; United States v. Orleans, 425 U.S.
807, 815 (1976). Pursuant to this theory, the government cannot be
held vicariously liable for the negligence of an independent
contractor unless it supervised the day to day operations of the
contractor. Orleans, 425 U.S. at 815. Wood attempts to circumvent
this exception by first arguing that the Navy retained close
supervisory control over ASI’s work. We find no evidence in the
record to support this contention. Second, Wood fashions her
argument as one of direct rather than vicarious negligence. This
argument dovetails with the discretionary function exception in
that if the conduct of the government’s employees was
discretionary, it is protected from liability even if negligent.
Berkovitz, 486 U.S. at 539; Dalehite, 346 U.S. at 33; Attallah v.
United States, 955 F.2d 776, 784 n.13 (1st Cir. 1992). As a result,
we will limit our discussion to the discretionary function
exception.
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United States, 346 U.S. 15 (1953). The exception exists to protect
the "discretion of the executive or administrator to act according
to one’s judgment of the best course." Dalehite, 346 U.S. at 34,
and to prevent "judicial 'second-guessing' of legislative and
administrative decisions grounded in social, economic, and
political policy." Varig Airlines, 467 U.S. at 814. By creating
an exception for discretionary decisions, Congress intended "to
protect the government from liability that would seriously handicap
efficient government operations." United States v. Muniz, 374 U.S.
150, 163 (1963).
As the discretionary function jurisprudence has evolved,
an analytical framework has developed. We must first identify the
conduct that allegedly caused the harm. Gaubert, 499 U.S. at 322.
Next, we must determine whether the identified conduct is
discretionary. Id. Conduct is non-discretionary only when a
"federal statute, regulation or policy specifically prescribes a
course of action for an employee to follow." Id. Once the conduct
is deemed discretionary, we still must determine if the exercise of
that discretion involves, or is at least susceptible to, policy-
related judgments. Id. The Gaubert Court directed the lower
courts to look first to statutes, regulations and agency guidelines
as competent sources for determining established government policy.
Id.; see also Irving v. United States, 162 F.3d 154, 165 (1st Cir.
1998) (en banc). We review de novo the lower court’s determination
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that the discretionary function exception controls. Irving, 162
F.3d at 161.
III.
A. Count I
Wood claims that the Navy was negligent when it selected
ASI as the lead abatement and painting contractor. While Wood
concedes that selection of a contractor is a discretionary act, she
argues that ASI would never have been chosen if the Navy had not
negligently mis-read ASI’s so-called experience modification rating
("EMR"), causing it to select "a notoriously unsafe contractor to
perform work acknowledged to be highly or ultra dangerous."
According to Wood, the calculation of the EMR was non-discretionary
and therefore not protected by the exception.
The EMR is a rating used by worker’s compensation
underwriters to set insurance premiums. The higher the EMR, the
worse the safety record.5 At the time the present contract was
awarded, the Navy identified ASI’s EMR as .47, a rating considered
extremely good and admittedly better than the other contract
bidders. According to the affidavit of Robert Flynn, a consultant
in workplace safety, it was "extremely unlikely" that ASI had, in
fact, an EMR that low. In his opinion it was more likely 1.47 and
5
According to the information provided by plaintiffs’ workplace
safety consultant, an EMR range is generally 2.0 or higher for most
unsafe employers. For very large companies with an almost perfect
safety record the EMR may be as low as .30. The norm for employers
engaged in the same type of work as ASI is 1.0.
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it could have been as high as 2.87 given ASI’s poor safety record
on the jobs performed in the past. Flynn stated that ASI had
committed multiple OSHA violations and experienced a loss of life
prior to the commencement of the 1996 contract.
The government argues that the selection of a contractor
is the quintessential discretionary act and that, in this instance,
there was no directive to cabin the Navy’s discretion. Wood argues
that the issue is not the broad discretion in selecting a
contractor but the issue to conduct properly a mandatory activity,
the consideration of ASI’s EMR, and that this failure was causally
connected to the selection of ASI. The argument is that, but for
the negligent performance of a mandatory duty, ASI would have never
been selected. The argument fails for lack of proof. Wood points
to no express requirement, to which the Navy was subject, mandating
an assessment, whether or not accurate, of a contractor’s EMR, or
establishing a particular EMR benchmark as a precondition to
selection. Nor was there an express requirement that the
government disregard or disqualify a contractor based on a
contractor’s past failure to maintain some particular level of
safety compliance on other jobs. In the absence of a particular
criterion that the government failed to meet, or a mandated duty it
failed to perform, the conduct of a government employee must be
deemed discretionary.
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Wood counters that even if the assessment of ASI’s EMR
was discretionary, it was not policy related. Because the law
presumes that the exercise of official discretion implicates policy
judgments, Wood bears the burden, when making this argument, of
demonstrating that the Navy’s conduct was not at least susceptible
to policy related judgments. Irving, 162 F.3d at 168. Wood
contends that the Navy’s award of the contract to ASI was based on
an erroneous assessment of ASI’s EMR. Because the decision was
based on a mistake, the Navy never made a conscious, policy-based
decision to accept a questionable EMR. In essence, Wood argues,
the Navy’s selection of ASI was based on error and not on a
weighing of competing factors.
But this argument, although made under the rubric of
whether the decision was "policy-driven," boils down to little more
than a restatement of the same argument we have just rejected
above: namely, that the Navy was required to conduct an EMR
assessment and that a satisfactorily low EMR was a mandatory
requirement, depriving the Navy of overall discretion to select a
contractor failing to meet such a criterion. As we have said, the
record simply does not support giving such pivotal importance to
the EMR. The FAR, the federal procurement regulations, do not
refer in any way to an EMR; they clearly mandate nothing in this
regard.
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The record makes plain that in selecting a contractor,
the Navy was required to evaluate and weigh a plethora of factors,
using its overall judgment as to the final choice. The Navy’s bid
application makes safety just one aspect of the selection decision
and the EMR rating just one piece of information being sought
pertaining to safety. As noted earlier, the Navy evaluated and
awarded the project based on proposals submitted by the various
bidders. The proposals consisted of both price information and
technical data - each weighted equally. Safety was one of four
issues addressed in the technical data, and within the safety
information provided to the Navy, the EMR was but one of six items.
All of these factors appear to have been considered in
the selection of ASI. Marilyn Colot, the Deputy Director of
Contracts for the Navy, identified several factors that led to
ASI’s selection. Specifically, ASI presented a "schedule of work
and work force that supported their [sic] ability to both phase and
complete the outlined tasks"; it was prepared to do all the work
"in-house" with the exception of electrical work; it proposed using
employees that "far exceed[ed] the minimum experience
qualifications required by the solicitation"; and it presented a
"well qualified team of technical personnel" for accomplishment of
the project. In addition, the firm’s corporate management plan
showed that top management personnel would be directly involved in
the project. Further, ASI’s past performance information
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demonstrated that it had experience in large contracts specializing
in painting and lead abatement of bridges and other structures over
500 feet in height. The Navy contacted ASI’s previous customers to
verify satisfaction and performance. Finally, ASI’s proposed
safety plan was "by far the best of the proposers," its corporate
safety plan was excellent, and its EMR was low.
In sum, the evidence indicates that the Navy’s selection of
ASI was a discretionary decision grounded in a broadly-based policy
judgment that ASI represented the "best value" for the American
taxpayer. It is pure speculation that the Navy would have
reconsidered its choice of ASI if ASI’s EMR had been significantly
higher than what the Navy apparently believed it to be. It was
certainly not required to do so, nor was it obvious it would have
done so. This is exactly the type of decision that Congress
intended to protect from judicial second-guessing. Consequently,
the Navy’s decision to engage ASI is protected by the discretionary
function exception.
B. Counts II & III
Wood contends in Count II that the failure of the Navy to
ensure contract compliance with safety requirements creates
landowner liability pursuant to Restatement (Second) of Torts
§§ 343, 343A. In Count III, Wood alleges that the Navy had a
responsibility to supervise carefully an independent supervisor
under Restatement (Second) of Torts §§ 413, 414. We pass no
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judgment on whether either theory, if established, would support
liability against the Navy. Both theories rely on the premise that
the Navy was mandated to supervise closely and to ensure ASI’s
compliance with its contractual obligations, including all safety
requirements. Because the two claims are rooted in the same
operative facts, we consider them together.
Wood does not suggest that the Navy failed to perform
inspections, nor, for that matter, does she suggest that the Navy
violated its explicit obligations under the contract; rather she
alleges that the inspections and oversight were inadequate to
ensure that ASI was in compliance with the safety requirements.
Once again Wood concedes that the Navy’s determination of how to
ensure ASI’s compliance with the contract was discretionary and
involved the balancing of competing factors. Wood contends,
however, that there was no discretion provided the Navy on whether
it ensured that ASI was in compliance with the contract.
Wood relies on a document, prepared by Marilyn Colot,
delegating administration of the ASI contract, to support her
contention that the Navy had accepted the responsibility to ensure
that ASI was following the mandated safety requirements. According
to Wood, this document represents the Navy’s policy in regards to
the Contract and mandates that the naval officers overseeing the
project made certain that ASI was in compliance. The document
outlines generally the administrative functions to be performed by
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the oversight officer. Included amongst the almost thirty duties
was the directive to "ensure contractor compliance with the
contractual safety requirements." Pursuant to Wood’s theory, this
document removes the Navy’s conduct from the safe harbor created by
the discretionary function exception.
Wood’s reliance on Colot’s memorandum is misplaced,
however. In Irving we addressed, at some length, the source of
policy pronouncements and what role that source plays in
determining the existence of discretion. 162 F.3d at 165.
Congress has the ultimate authority to render a function
discretionary or obligatory. Id. (citing Martin v. Occupational
Safety and Health Review Comm’n, 499 U.S. 144, 152-53 (1991)). In
this case, it delegated that authority to the Administrator, not to
Navy officials. Thus, we must look first to the statements of the
official policymaker, as set forth in the FAR, to determine the
Navy’s obligations with respect to ASI’s compliance with safety
requirements. Gaubert, 499 U.S. at 322.
As noted earlier, the Navy’s primary objective under FAR
in entering and overseeing the Contract was to obtain the best
value for the American taxpayer. While the Navy was required
generally to ensure performance of contract terms, the FAR dictates
that contracting officers be provided "wide latitude to exercise
business judgment" in this endeavor. 48 C.F.R. § 1.602-2. The FAR
does not prescribe a course of action the Navy must follow in
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ensuring contractor compliance with contractual safety
requirements. Pursuant to the FAR and the mandated contract
provisions, the Navy had limited supervisory duties - it needed to
review and to approve the safety plan, contact ASI if it noted that
it was not in compliance with the contract, and contact OSHA if the
Navy notified ASI regarding a serious or imminent danger.
Even if Colot’s pronouncement was controlling in this
case, it is too general to satisfy the specific prescription
requirement set forth in Gaubert and Berkovitz. Shansky, 164 F.3d
at 691. Colot’s directive is simply a goal that, to attain,
required Navy personnel to make discretionary judgments. Contrary
to Wood’s assertion, Colot’s testimony supports this conclusion.
When Colot was asked how Lieutenant Schroeder, the navy officer in
charge of administration of the Contract, ensured compliance with
the safety requirements of the contract she replied: "Well I think
that you would have to ask Lieutenant Schroeder that question
because that varies widely by activity, by office, by resource, by
contract."
The context of the directive also bolsters this
conclusion. See id. The statement is embedded in a list of thirty
other goals including, but not limited to, that the contracting
officer ensure compliance with applicable labor laws; that he
ensure compliance with contractual quality assurance requirements;
and that he ensure contractor compliance with small disadvantaged
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business subcontracting plans. The list, read as a whole, simply
echoes the objectives set forth in the FAR, and like the FAR,
leaves the implementation of these objectives to the discretion of
the contracting officer. The Navy’s performance of safety
oversight was plainly discretionary, a point that Wood
acknowledges.
The Navy’s decisions regarding safety oversight also
involved the permissible exercise of policy judgment. See Shansky,
164 F.3d at 692; Irving, 162 F.3d at 168. The Supreme Court has
stated that "if a regulation allows the employee discretion, the
very existence of the regulation creates a strong presumption that
a discretionary act authorized by the regulation involves the same
policies which led to the promulgation of the regulation."
Gaubert, 499 U.S. at 324. For this claim to survive, Wood must
allege some facts to support a finding that the contested conduct
is not grounded in the policy of the regulatory regime. Id. at
324-25. Wood offers no real challenge to the position that the
Navy’s actions were policy-driven.
In meeting the objectives of the FAR, the Navy was
required to balance a host of competing factors, among them the
cost, quality and timeliness of the delivered product as well as
the minimization of administrative operating costs. 48 C.F.R.
§ 1.102-2(a) and (c). Here, the Navy decided the best manner to
achieve these sometimes-competing objectives was to conduct brief,
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ground-level inspections several times a week to assess ASI’s
compliance with the safety requirements of the contract.
Moreover, the policy objectives set forth in the FAR do
not show that Congress intended the contracting officer to be
responsible ultimately for the safety practices of a contractor.
To the contrary, the FAR places primary responsibility for safety
on the contractor; a limited supervisory role is given to
contracting officers. The delegation of the responsibility for
safety issues to the contractor suggests that, in promulgating the
FAR, the Administrator had determined already that in obtaining the
"best value" for the American taxpayer, worker safety should be a
primary concern of the contractor. See Varig Airlines, 467 U.S. at
816.
We disagree with Wood’s attempt to equate this case with
the Supreme Court’s decision in Indian Towing Co. v. United States,
350 U.S. 61 (1955). There, the Coast Guard assumed direct and sole
responsibility for the operation of a lighthouse, a charted
navigational aid, any failure of which would create unique dangers
to shipping. Id. at 62. The light was allowed to go out and a
vessel ran aground. Id. The Court held the Coast Guard liable,
reasoning that, once it had exercised its discretion to operate the
lighthouse, it was obligated to act with reasonable care. Id. at
68. Here, the Navy itself did not assume responsibility for the
safety of the contractor’s own employees working at the towers but
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rather left that responsibility to the contractor, with minimal
oversight.
Rather than to Indian Towing, the Navy’s decision-making
and conduct are better analogized to the Federal Aviation
Administration’s ("FAA") conduct discussed in Varig Airlines, 467
U.S. at 799. In Varig Airlines the government was facing tort
liability for several plane accidents allegedly caused by the FAA’s
negligence in issuing safety compliance certificates. Id. Pursuant
to regulations promulgated by the Secretary of Transportation, the
FAA was empowered to enforce compliance with minimum safety
standards in aircraft according to its best judgment. Id. at 816.
In the exercise of this discretion, the FAA devised a certification
process that placed the duty to ensure that an aircraft met with
FAA safety regulations in the hands of the manufacturer and
operator, while the FAA retained the responsibility for policing
compliance. Id. at 817. To meet its responsibility, the FAA
devised a "spot-check" system.
The Court held that the implementation and performance of
the "spot-check" system "for compliance review is plainly
discretionary activity of the ‘nature and quality’ protected by
§ 2680(a)." Id. at 819. The Court reasoned that:
When an agency determines the extent to which
it will supervise the safety procedures of
private individuals, it is exercising
discretionary regulatory authority of the most
basic kind. Decisions as to the manner of
enforcing regulations directly affect the
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feasibility and practicality of the
Government’s regulatory program; such
decisions require the agency to establish
priorities for the accomplishment of its
policy objectives by balancing the objective
sought to be obtained against such practical
considerations as staffing and funding.
Id. at 819-20.
Here, the Navy’s contracting officer was empowered to
enter a contract and to ensure compliance with the contract,
including the safety requirements mandated in the FAR and set forth
in the contract. Part of ensuring that ASI was in compliance with
the safety aspects of the contract, including all applicable safety
regulations, was to require that ASI submit a safety plan outlining
its program to comply with all safety requirements. Before the
contract began, ASI submitted and the Navy approved such a plan.
In its safety plan, ASI assured the Navy that ASI’s supervisors
would "have the responsibility and the absolute authority to
enforce [its] job safety program" to "ensure that no laborer or
mechanic employed on this project is allowed to work in
surroundings or under conditions which are . . . dangerous to
his/her health or safety." Prior to Wood’s accident, the Navy
required that ASI amend the plan to respond to noted safety
deficiencies. In terms of ongoing oversight, the Navy implemented
a system in which ASI was required to submit daily logs, including
accident reports, and the Navy visited the work site two to three
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times a week to perform walk-through inspections to identify
possible safety violations.
In this instance, the statutory and regulatory scheme
provides the Navy broad discretion to balance a number of competing
factors in making its supervisory decisions. Varig Airlines, 467
U.S. at 814; Shansky, 164 F.3d at 693; Mercado Del Valle v. United
States, 856 F.2d 406, 409 (1st Cir. 1988). There is nothing in the
record to suggest that the Navy’s discretionary decision regarding
the implementation and administration of a supervisory system was
anything other than policy-driven. Decisions regarding the
exercise of supervisory authority are traditionally the sort the
discretionary function exception was designed to encompass. See
Attallah v. United States, 955 F.2d 776, 784 (1st Cir. 1992)
(ruling extent Custom service supervises employees protected by the
discretionary function exception); Mercado Del Valle, 856 F.2d at
409 (concluding that Air Force’s supervision of student military
organization discretionary); Andrews v. United States, 121 F.3d
1430, 1441 (11th Cir. 1997) (holding Navy’s supervision of
contractor’s adherence to waste disposal safety regulations
encompassed by discretionary function exception); Domme v. United
States, 61 F.3d 787, 792-93 (10th Cir. 1995) (ruling that
Department of Energy’s supervision of contractor’s compliance with
applicable safety regulations protected by exception); Kirchmann v.
United States, 8 F.3d 1273, 1277 (8th Cir. 1993) (concluding Air
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Force’s supervision of contractor’s disposal of TCE protected by
exception).
Because the Navy’s conduct is protected by the
discretionary function exception, the United States has not waived
its sovereign immunity. Consequently, there is no subject matter
jurisdiction.
AFFIRMED.
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