with whom LIPEZ, Circuit Judge, joins (dissenting).
The majority opinion fundamentally misconstrues controlling Supreme Court prece*170dent in analyzing the discretionary function exception to the Federal Tort Claims Act (“FTCA”). The majority is concerned that permitting Irving’s claim to succeed would undermine OSHA’s broad discretion in deciding how to implement its enforcement policy. No one disputes that the agency as a whole retains considerable discretion. The problem is that the majority undertakes its analysis from the wrong vantage point.
As the Supreme Court has made clear, the appropriate focus is the degree of choice that was in fact available, not to the agency as a whole but to the specific “acting employee” whose conduct is the basis for the tort action. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The discretionary function exception shields the government from lawsuits challenging governmental action only if that specific action was based on discretion grounded in policy. See id. The exception was intended to protect only such specific policy-based judgment. The present case involves no second-guessing of protected policy-making.
A parallel problem is the majority’s mis-characterization of Gail Irving’s position. Irving does not contend “that all [OSHA] inspections ought to be painstakingly comprehensive.” Maj. Op. at 168. Her claim, properly construed, is that once inspectors have been ordered by their supervisor to perform a wall-to-wall inspection, they must do so with due care. Irving argues that if the inspectors had followed their superiors’ orders, she would not have had her scalp torn from her head. Thus, she contends that the negligent inspections were not protected by the discretionary function exception because the inspectors had “no rightful option but to adhere to the directive” of their superior officer. See Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
Because in my view the district court properly concluded that the exception does not bar Irving’s claim,14 I respectfully dissent.
I
The FTCA, except for certain enumerated exceptions, “waives the Government’s immunity from suit in sweeping language.” Smith v. United States, 507 U.S. 197, 205 n. 1, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (quoting United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 95 L.Ed. 523 (1951)). The FTCA authorizes suits against the United States for damages
for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b). The FTCA is a “broad waiver of sovereign immunity,” which “generally authorizes suits against the United States for damages” that fit within its description. Berkovitz, 486 U.S. at 535, 108 S.Ct. 1954. This waiver applies unless the *171government is protected by one of several specifically enumerated exceptions to the FTCA.15 Id.; see 28 U.S.C. § 2680.
The majority opinion relies upon the discretionary function exception, which provides that no liability shall lie for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).
Congress’s purpose in enacting the discretionary function exception was to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); see also Berkovitz, 486 U.S. at 539, 108 S.Ct. 1954. Thus, the exception was designed to protect government agents’ exercise of policy-based discretion, to prevent individual government agents from having to look over their shoulders worrying about a potential lawsuit when they are truly exercising policy-based discretion.
The same protective rationale does not apply when government agents are merely carrying out mandatory directives, whatever the basis of those mandatory orders. If a government employee has no choice about how to act — whether because a statute, regulation, or agency policy mandates particular actions for all such employees, or for whatever other reason (here, because his supervisor explicitly ordered him to conduct a wall-to-wall inspection) — then “there is no discretion in the conduct for the discretionary function exception to protect.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
Thus, the Court has set forth a two-prong test to determine whether the discretionary function exception applies. First, the acting government employee must be exercising discretion, when he engages in the challenged conduct. And second, even when government agents are exercising discretion, their conduct is immune from tort suits only when that discretion is based on policy. The exception “protects only governmental actions and decisions based on considerations of public policy.” Id. at 537, 108 S.Ct. 1954.
II
The majority misses an important part of the Supreme Court’s analysis of the discretionary function exception: from what vantage point should the court view the conduct of government agents? In this case, what level of OSEA employees is the proper focus for our attention? “The proper question to ask is not whether the Government as a whole had discretion at any point, but whether its allegedly negligent agents did in each instance.” In re The Glacier Bay, 71 F.3d 1447, 1451 (9th Cir.1995). Instead, the majority focuses on the discretion of the agency as a whole, at the command level.16 This fundamental misconception of the discretionary function exception infects the majority’s entire analysis. It leads the majority to misunderstand Irving’s claim and to misapply the law governing the discretionary function exception.
A
Section 2680(a) refers to two different types of discretion: (1) the “performance ... [of] a discretionary function or duty on the part of a federal agency” and (2) such “performance ... on the part of ... an employee of the Government.” The majority’s analysis centers on the first type. Citing both the statute and the regulations, it emphasizes that the agency as a whole had discretion in carrying out its statutory inspection functions. Of course it did. If the plaintiff had challenged OSHA’s hypothetical decision to conduct inspections upon only a random sample of factories, or a supervisor’s decision to *172omit Somersworth Shoe from that sample, or an order that the inspectors conduct only a spot check and not a wall-to-wall inspection of Somersworth Shoe, then I would agree with the majority that her claim must be dismissed based on the discretionary function exception.17
But that is merely the first type of discretion addressed in § 2680(a) (“performance ... [of] a discretionary function or duty on the part of a federal agency”). The plain language of the statute requires a distinction between this type of discretion and the second type: “performance [of] ... a discretionary function or duty on the part of ... an employee of the Government.” 28 U.S.C. § 2680(a). The latter is the focus of Irving’s complaint.
Here, OSHA exercised its discretion, at the command level of the agency, about how to allocate its scarce resources. It delegated to each area office a certain amount of discretion to conduct various types of inspections. Pursuant to that delegation, as Irving alleged and the district court found, the area office here decided to deploy its inspection resources by calling for less than complete inspections of some factories but, in the case of Somersworth Shoe, by requiring wall-to-wall inspections of its New Hampshire plant. The area director instructed two members of his staff, inspectors Chase and Ritchie, to examine every machine in the plant. Irving v. United States, 942 F.Supp. 1483, 1491 & n. 8 (D.N.H.1996).
Thus, the agency’s discretionary policy decisions were completed as soon as the area director made his “wall-to-wall” decision; the agency had committed itself to this undertaking, before the inspectors set foot on the premises of Somersworth Shoe. It was after these discretionary policy decisions had been completed that the inspectors negligently executed the agency’s policy, giving rise to the injuries suffered by the plaintiff. At that point, Chase and Ritchie, the inspectors, had “no rightful option but to adhere to the directive” from their supervisor and examine every machine in the plant. Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. The conduct of Chase and Ritchie “cannot appropriately be the product of judgment or choice, [so] there is no discretion in [their] conduct for the discretionary function exception to protect.” Id.
B
The plain language of the statute is only one reason why the majority is wrong to focus only on the upper levels of the agency — rather than the inspectors whose actions Irving is challenging — for determining whether the discretionary function exception applies. Controlling Supreme Court precedent likewise demonstrates the majority’s error. The principal Supreme Court case explicating the discretionary function exception is Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).18
The Court’s opinion exposes the majority’s error in three different ways: (1) in the Court’s analysis of the discretionary function exception, (2) in the Court’s discussion of prior Supreme Court precedent, to harmonize those cases with the Berkovitz analysis, and (3) in the Court’s application of its legal analysis to the facts of Berkovitz’s claims. Because of the importance of the Berkovitz case, and because this court is duty-bound to faithfully apply Supreme Court precedent, I will discuss each of these in some detail.
*1731
The Berkovitz Court set forth clearly the mode of analysis that we should employ in cases such as this:
The determination of whether the discretionary function exception bars a suit against the Government is guided by several established principles. This Court stated in Vang that “it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; con-duet cannot be discretionary unless it involves an element of judgment or choice.
Id. at 536, 108 S.Ct. 1954 (citation omitted) (emphasis added).
The Court’s methodology, which was plainly not followed by the majority in this case, requires that we ask what “conduct” is “challenged” by the plaintiff in the particular case, determine which employee in the agency has engaged in that conduct, and then consider “whether the action is a matter of choice for the acting employee.” Id.
The Court’s focus on “the acting employee” is equally plain from the next passage of Berkovitz:
[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect. Cf. Westfall v. Erwin, 484 U.S. 292, 296-97, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988) (recognizing that conduct that is not the product of independent judgment will be unaffected by threat of liability).19
Id. (citation omitted; emphasis added).
The Court could not have been more clear that, when we examine whether there is “discretion in the [challenged] conduct for the discretionary function exception to protect,” we must focus on the individual employee whose “conduct” is “challenged” by the plaintiff. Here, that is Chase and Ritchie. The challenged conduct is their failure to inspect the die-out machine that injured Irving, despite having been ordered by their supervisor to inspect every machine. Where, as here, the acting employee has been ordered by his supervisor to proceed in a certain manner, and the plaintiff is seeking recompense for injuries resulting from that employee’s failure properly to follow that command, then it is irrelevant that “the statute places virtually no constraint on the Secretary’s discretion to conduct such inspections in any way that she deems fit,” maj. op. at 162, or that OSHA’s generally applicable “rules governing the authority of compliance officers mimic the statute and grant these officials broad discretion over the scope, manner, and detail of general administrative inspections,” id. at 162.
Of course the Secretary and her top assistants have broad discretion in managing the agency’s enforcement enterprise, as do any subordinate officials to whom that discretion is properly delegated. But this does not mean that front-line inspectors have any discretion once decisions have been made by their superiors in the hierarchy and a mandatory directive has been given to the inspectors.
The Court in Berkovitz moved on to the second prong of its analysis: even “assuming the challenged conduct involves an element of judgment,” was that judgment based on policy? There, too, the Court looked at this question at the level of the individual whose actions are challenged by the plaintiff in the *174case at hand: “The exception, properly construed, ... protects only governmental actions and decisions based on considerations of public policy. In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.” Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954 (citation omitted; emphasis added). Again, the focus is on the particular “action challenged in the case” — the shoddy inspection by Chase and Ritchie — and not on whether the agency as a whole — or even a supervisor like Amirault — “exereise[s] ... policy judgment.” See id.; In re The Glacier Bay, 71 F.3d at 1451.
2
The Berkovitz Court next discussed prior Supreme Court precedent, to demonstrate how those prior decisions fit into the Court’s analytical framework. This discussion again stresses the importance of keeping the analysis focused at the level of the acting government employee.
The Court first analyzed the actions challenged in Varig Airlines, namely, the FAA’s negligence in certifying certain airplanes for operation, including its decision to certify the airplanes without first inspecting them.
Congress had given the Secretary of Transportation broad authority to establish and implement a program for enforcing compliance with airplane safety standards. In the exercise of that authority, the FAA, as the Secretary’s designee, had devised a system of “spot-checking” airplanes for compliance. Th[e Supreme] Court first held that the establishment of that system was a discretionary function within the meaning of the FTCA because it represented a policy determination as to how best to “accommodat[e] the goal of air transportation safety and the reality of finite agency resources.”
Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954 (quoting Varig Airlines, 467 U.S. at 820, 104 S.Ct. 2755). Applying this portion of the analysis to the present case, OSHA’s broad discretion in devising its methodology for conducting inspections, whether “spot-checking” or some other method, is protected under the discretionary function exception.
But the Court’s analysis did not end there. Varig Airlines also held that the discretionary function exception protected “the acts of FAA employees in executing the ‘spot-check’ program,” because under this program the employees “were specifically empowered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources.” Varig Airlines, 467 U.S. at 820, 104 S.Ct. 2755. The Berkovitz Court added the following explanation: “Thus, the Court [in Varig Airlines ] held the challenged acts protected from liability because they were within the range of choice accorded by federal policy and law and were the results of policy determinations.” Berkovitz, 486 U.S. at 538, 108 S.Ct. 1954 (emphasis added).
This second set of actions — executing the “spot-check” program' — is not analogous to the Irving situation. The crucial distinction is that Varig’s spot-check protocol left the FAA’s line-level employees with a “range of choice” based on “policy” judgments. In contrast, the OSHA inspectors in Irving were not executing a “spot-check” protocol; they were specifically ordered by their superiors to inspect every machine. They thus had zero “range of choice.” Berkovitz, 486 U.S. at 538, 108 S.Ct. 1954. They had no discretion, whether based on policy judgment or otherwise, to decide unilaterally during their inspection of the Somersworth plant not to inspect the die-out machine that caused Irving’s injuries. These inspectors’ shoddy execution does not involve “the necessary element of choice,” grounded in policy, United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), that the discretionary function exception was intended to protect.
Berkovitz also analyzed Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), as “illuminat[ing] the appropriate scope of the discretionary function exception.” Berkovitz, 486 U.S. at 538 n. 3, 108 S.Ct. 1954. The plaintiff in Indian Towing sued the government for failing to *175maintain a lighthouse in good working order. The Court stated that the initial decision to undertake and maintain lighthouse service was a discretionary judgment. See Indian Towing, 350 U.S. at 69, 76 S.Ct. 122. Thus, if the agency had instead exercised its discretionary judgment to decline such an undertaking, the government would be insulated from tort liability. This is analogous to OSHA’s decision whether to undertake a wall-to-wall inspection of the Somersworth Shoe plant.
“The Court [in Indian Towing ] held, however, that the failure to maintain the lighthouse in good condition subjected the Government to suit under the FTCA,” because “[t]he latter course of conduct did not involve any permissible exercise of policy judgment.” Berkovitz, 486 U.S. at 538 n. 3, 108 S.Ct. 1954. The failure by agency employees to exercise ordinary care in carrying out an undertaking that the government agency willingly undertook is not protected by the discretionary function exception. This latter aspect of Indian Towing is analogous to the OSHA inspections challenged in the present case.
3
A third aspect of the Berkovitz decision further undermines the majority’s focus on the discretion permitted to be exercised by the highest levels of OSHA. In Part III of its opinion, the Court discussed the specific actions that the Berkovitz plaintiffs challenged. The Court’s mode of analyzing each of the five possible claims illuminates how our court should have examined the applicability of the discretionary function exception.
The Division of Biologic Standards (DBS) of NIH had issued a license to Lederle Laboratories to produce a drug called Orimune. The plaintiffs alleged that DBS issued the license without first receiving certain data that the manufacturer was required to submit showing its compliance with regulatory safety standards. The Court held that the discretionary function exception did not bar a cause of action based on this allegation, because the statute and regulations “require, as a precondition to licensing, that the DBS receive” that data, and DBS had “no discretion to issue a license without first receiving the required test data.” Berkovitz, 486 U.S. at 542, 108 S.Ct. 1954. The actor in Berko-vitz was whatever level of the agency made the decision to issue the license. Viewing the facts from that vantage point, there was “no discretion ... for the discretionary function exception to protect” because of the statutory mandate.
The plaintiffs in Berkovitz also alleged that DBS licensed Orimune without complying with other regulatory standards. The allegation was ambiguous and the Court explored three different possible interpretations.20 Under a DBS regulation, DBS “may not issue a license except upon an examination of the product and a determination that the product complies with all regulatory standards.” Berkovitz, 486 U.S. at 544, 108 S.Ct. 1954. Thus, if the plaintiffs were “aver[ring] that the DBS licensed Orimune either without determining whether the vaccine complied with regulatory standards or after determining that the vaccine failed to comply, the discretionary function exception does not bar the claim.” Id. at 544, 108 S.Ct. 1954. This is because “[t]he agency has no discretion to deviate” from its “clear duty,” i.e., from the procedures mandated by its own regulations.
The Court applied a different analysis to the third possible interpretation of the plaintiffs’ claim: that the agency found Orimune to comply with regulatory standards but that the agency’s conclusion was incorrect. This question “hinges on whether the agency officials making that determination permissibly exercise policy choice ... in determining that a vaccine product complies with the relevant safety standards.” Id. at 545, 108 S.Ct. 1954 (emphasis added). Because the record was unclear on this point, the Court remanded for appropriate findings by the district court.21
*176The Berkovitz plaintiffs made another allegation: that DBS had approved the release of the particular lot of Orimune that contained Kevan Berkovitz’s dose, and the agency violated federal policy in approving the release of that lot. The Court therefore considered whether the discretionary function exception applied to the release of a particular lot of the vaccine, as distinct from the issuance of a license to produce the drug. The regulations governing particular lots do not impose a duty on DSB to ensure that the vaccines comply with regulatory standards, nor do they require DSB to inspect every lot. Instead, “[t]he regulations generally allow [DSB] to determine the appropriate manner in which to regulate the release of vaccine lots, rather than mandating certain kinds of agency action.” Id. at 546, 108 S.Ct. 1954.
Given this regulatory context, the discretionary function exception bars any claims that challenge [DSB’s] formulation of policy as to the appropriate way in which to regulate the release of vaccine lots. Cf. [Varig Airlines, 467 U.S.] at 819-20[, 104 S.Ct. 2755] (holding that discretionary function exception barred claim challenging FAA’s decision to establish a spot-checking program). In addition, if the policies and programs formulated by [DSB] allow room for implementing officials to make independent policy judgments, the discretionary function exception protects the acts taken by those officials in the exercise of this discretion. Cf. id. at 820[, 104 S.Ct. 2755] (holding that discretionary function exception barred claim that employees charged with executing the FAA’s spot-checking program made negligent policy judgments respecting the proper inspection of airplanes). The discretionary function exception, however, does not apply if the acts complained of do not involve the permissible exercise of policy discretion. Thus, if [DSB’s] policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment, the discretionary function exception does not bar a claim that the act was negligent or wrongful. Cf. Indian Towing v. United States, 350 U.S. at 69[, 76 S.Ct. 122] (holding that a negligent failure to maintain a lighthouse in good working order subjected the Government to suit under the FTCA even though the initial decision to undertake and maintain lighthouse service was a discretionary policy judgment).
Berkovitz, 486 U.S. at 546-47, 108 S.Ct. 1954 (emphasis added).
This passage again makes clear the Court’s view that, in determining whether a particular (allegedly negligent) act is exempt from the FTCA under the discretionary function exemption, Berkovitz requires us to examine the particular government agent who “performed [the] given act,” and to determine whether particular conduct is discretionary by looking at the “range of choice” the agency has delegated to the particular employee in performing the task in question.
The plaintiffs in Berkovitz had alleged that DBS had
adopted a policy of testing all vaccine lots for compliance with safety standards and preventing the distribution to the public of any lots that fail to comply. [Plaintiffs] further allege[d] that notwithstanding this policy, which allegedly leaves no room for implementing officials to exercise independent policy judgment, employees of [DBS] knowingly approved the release of a lot that did not comply with safety standards. Thus, [plaintiffs’] complaint is directed at a governmental action that allegedly involved no policy discretion.
Id. at 547, 108 S.Ct. 1954 (citation omitted; emphasis added).
The Berkovitz Court held that, “[i]f those allegations are correct — that is, if [DBS’s] policy did not allow the official who took the challenged action to release a noncomplying lot on the basis of policy considerations — the discretionary function exception does not bar the claim.” Id. It was therefore improper to dismiss plaintiffs’ claim regarding the release of the particular lot of vaccines. See id. at 548,108 S.Ct. 1954.
*177The Berkovitz lot release allegations are analogous to Irving’s claim that the “implementing officials” at OSHA (the line-level inspectors, Chase and Ritchie) were “le[ft] no room ... to exercise independent policy judgment” because their supervisors mandated that they follow a particular inspection protocol.22 Id. at 547,108 S.Ct. 1954. Thus, as in Berkovitz, we must parse the distinction between a regulatory agency’s higher-level exercise of discretion in determining agency policy and procedure — which is exempt under § 2680(a) — and the implementation of that policy by the official who took the challenged action — which is exempt only if the employee himself is given his own policy-based discretion to “exercise independent policy judgment” in how to carry out his job. Id.
The staff employee’s implementation conduct is not exempt from the FTCA if the employee has no choice but to comply with a higher-level mandate. And it makes no difference whether that higher-level mandate comes from an agency regulation that adopts a policy for all employees, saying they all must follow a particular procedure in all particular situations, or whether the higher-level mandate comes to the line-level employee from his or her immediate supervisor as the manner in which to conduct his inspection of this particular plant.23 The question is whether the individual “employee’s conduct can[ ] appropriately be the product of judgment or choice” on his part; if not, then “there is no discretion in the conduct for the discretionary function exception to protect.” Berkovitz, at 536, 108 S.Ct. 1954.
C
The Court’s most recent FTCA discretionary function case, United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), is fully consistent with this approach. The plaintiff in Gaubert challenged the allegedly negligent manner in which federal bank regulators had offered advice and made recommendations to a savings and loan institution. He argued that “the discretionary function exception protects only those acts of negligence which occur in the course of establishing broad policies, rather than individual acts of negligence which occur in the course of day-to-day activities.” Id. at 334, 111 S.Ct. 1267. The Court rejected the plaintiffs distinction between policy-making and operational decisions, reaffirming Berko-vitz ’s focus on whether the actions of the particular government employee “involv[ed] the necessary element of choice” that was grounded in regulatory policy. Id. at 323, 111 S.Ct. 1267.
The Court offered the example of a federal official negligently driving an automobile while on a mission connected with his official duties, concluding that “the [discretionary function] exception would not apply. Although driving requires the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.” Id. at 325 n. 7, 111 S.Ct. 1267. The exception is no more applicable to Irving’s case: even if the majority can somehow muster an argument that a compliance inspector has discretion to refuse to follow his supervisor’s direct order about how thoroughly to inspect a particular plant, any such discretion “can hardly be said to be grounded in regulatory policy.” Id.
In contrast, the regulators’ actions that Gaubert challenged were within their range of policy-based discretion. They included replacing the bank’s management; urging it to convert to federal charter; intervening with a state regulatory agency; advising the hiring of a financial consultant; advising when to place a subsidiary into bankruptcy; advis*178ing on litigation policy; and mediating salary disputes. These are not at all analogous to Chase and Ritchie’s negligent failure to inspect every machine in the Somersworth Shoe plant, in contravention of the direct order of their supervisor to do so.
D
Unlike the majority here, other circuits have followed the Supreme Court’s teachings in analyzing discretionary function cases. For example, in Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1031-32 (9th Cir.1989), the Ninth Circuit held that a claim that the government negligently constructed a canal was not barred because the “contracting officer’s on-site decisions” were not based on “policy judgments,” and hence “were not of the nature and quality that Congress intended to shield from tort liability.” In Phillips v. United States, 956 F.2d 1071 (11th Cir.1992), the Eleventh Circuit held that the exception was not applicable to a claim that the Army Corps of Engineers failed to exercise due care in carrying out mandatory safety obligations. In Murdock v. Employers Ins. of Wausau, 917 F.2d 1065 (8th Cir.1990), the court held the exception did not preclude a claim that the government failed to ensure that proper procedure was followed in conducting excavation work. And in Cope v. Scott, 45 F.3d 445, 449 (D.C.Cir.1995), the Third Circuit held that the exception did not apply to the claim that the government had failed to post adequate warning signs of dangerous road conditions.
Ill
It is true that the majority pays lip service to the appropriate focus: “We recognize that, by its plain terms, the OSH Act confers discretion only upon the Secretary, not upon compliance officers — and it is the latter’s conduct that concerns us.” Maj. Op. at 162. But the majority then shifts its focus. It bases its analysis not on the scope of discretion actually delegated to the two inspectors whose conduct is challenged in the instant case, but rather on regulations24 and manuals that generally grant OSHA compliance officers broad discretion in the conduct of their inspections. Id. at 162-63.
The majority overstates the significance of the OSH Act and the relevant guidelines. According to the majority, “the statute and applicable regulations clearly speak to the nature of the conduct” at issue in this case. But they do not. The statute does not unambiguously permit inspectors to perform incomplete inspections, nor does it clearly leave discretion to the individual inspectors to decide just how comprehensive inspections must be, regardless of direct instructions from their superior officers. Rather, the statute only confers jurisdiction on the Secretary to perform inspections, and says nothing at all about how comprehensive they must be.
The majority finds it “[o]f particular importance” that “the regulations do not prescribe any specific regimen governing the scope or detail of general administrative inspections performed by compliance officers.” Id. at 163. But neither do the regulations preclude all supervisors from exercising any independent authority in managing the agency’s work force. Regulations setting forth OSHA’s general enforcement authority vis-a-vis employers do not speak to the question of how the agency may organize its staff into a hierarchy of managers, various levels of supervisors, and line-level subordinate staff. As the Court stated in Gaubert in an analogous situation, there is “no prohibition against the use of supervisory mechanisms not specifically set forth in statute or regulation.” 499 U.S. at 330, 111 S.Ct. 1267. The majority cannot seriously read OSHA’s general regulations, applicable agency-wide, to transform OSHA supervisors into automatons who must tell all subordinate inspectors nothing more than “go out and exercise your own broad discretion.”
Thus, the regulations cannot be read to deprive a supervisor, in this case the area director, of all authority, in a particular set of circumstances, to issue a specific instruction *179mandating that a particular compliance officer take specific actions when inspecting a particular factory (in this case, instructions as to the degree of thoroughness of the inspection). Surely, a subordinate compliance officer cannot refuse such an instruction on the theory that supervisory direction would, violate the broad discretion given to him or her in the regulations. A subordinate employee does not have the “discretion” to disregard a direct order from his supervisor merely because there is no regulation or other “established governmental policy” that specifically requires such action of all inspectors in all circumstances. In the present case, it is enough that one particular area director, Amirault, did prescribe certain limitations on compliance inspectors Chase and Ritchie, with respect to their inspections of the Somersworth Shoe factory.
The majority ignores Amirault’s direct order because, it asserts, “ “wall-to-wall’ inspections are no more than the general administrative inspections described by the statute, regulations, and guidelines.” Maj. Op. at 165 n.10. Whatever may be true of the ordinary case, the facts of this case are different and require a different result. It is true that the general language of the statute, regulations, and guidelines ordinarily permit inspectors to exercise “the same broad discretion enjoyed by the Secretary with respect to such inspections.” Maj. Op. at 164. But in this case, area director Amirault ordered inspectors Chase and Ritchie to do more than merely conduct a general administrative inspection; he ordered them to “look at the entire plant.” “As far as humanly possible, [Chase and Ritchie] were supposed to cover the work place” and “observe any place where the employee works,” “looking] at every operation” and “observing and documenting any violative condition.” These facts' were found by the district court and its factual findings are supported by record evidence and are not clearly erroneous. See Part VI, infra.
Even the government recognizes that the district court’s finding — that Chase and Rit-chie were required, in their “particular inspections,” to “inspect every operational machine in the plant” — was “limited to the specific factual circumstances it found existed during the time and area covered by Mr. Amirault’s testimony.” Gov’t Br. to Panel at 4-5 n.l. Indeed, such limitation is the reason why the government decided not to “appeal the court’s finding regarding the application of the discretionary function exception to this case.” Id.
The proper inquiry therefore becomes whether Chase and Ritchie in fact retained any policy-based discretion, in failing to carry out Amirault’s specific order to perform a wall-to-wall inspection. The majority’s sweeping discussion of overall OSHA discretion in handling its inspections utterly fails to address this inquiry, and it certainly contains no support for the kind of affirmative response that would justify application of the discretionary function exception. On the contrary, it is clear from the facts as found by the district court that the answer to the proper question is “no,” and the exception is inapplicable. If, as the district court found, inspectors Chase and Ritchie had no such discretion, see Part VI, infra, then they had “no rightful option” about what action to take, and therefore the discretionary function exception does not apply, Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
The majority cites Gaubert for the proposition that “informal agency rules and similar pronouncements may at times bind agency personnel for the purposes of discretionary function exception analysis.” Maj. Op. at 164 (citing Gaubert, 499 U.S. at 324, 111 S.Ct. 1267). This still focuses on generally applicable “pronouncements.”
What the majority fails to recognize is that a supervisor’s mandate to a subordinate agency official will “bind” the subordinate in the conduct of his official duties, every bit as much as “agency rules,” formal or informal. Such a binding order will preclude the subordinate from exercising discretion to any extent other than that allowed within the supervisor’s command. Thus, “for the purposes of discretionary function exception analysis,” courts should consult such individualized constraints “in appropriate cases to determine whether a particular function is (or is not) discretionary.” Maj. Op. at 164.
*180In sum, the majority fails to follow the Court’s guidance on the most fundamental question. The majority focuses its analysis on the discretion that OSHA and its command-level employees enjoy to determine how it will enforce the Act, including how thoroughly to inspect any given factory. The majority fails to apply the Court’s analysis which centers on the extent of discretion exercised by the particular agency employee whose actions are challenged by the plaintiff. This focus should prevail at both steps of the Berkovitz analysis.
Here, it is difficult to see any policy judgment in negligently carrying out a commanded inspection or in flouting a supervisor’s direct order. But even if some such discretion did exist, we still have to reach Berko-vitz’s step two, which asks whether such discretion was based in political, social, or economic policy, for Congress intended to “protect[ ] only governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954). And any discretion Chase and Ritchie might have enjoyed to negligently carry out a commanded inspection “can hardly be said to be grounded in regulatory policy.” Id. at 325 n. 7, 111 S.Ct. 1267.
rv
In its attempt to apply the appropriate legal doctrine here, the majority opinion repeatedly distorts Irving’s theory of the case,25 characterizing it as alleging “that OSHA had a policy of exhaustively inspecting every machine,” Maj. Op. at 166; “that OSHA had a strict policy of requiring inspectors to look in detail at every machine,” id. at 167; “that all inspections ought to be painstakingly comprehensive,” id. at 169; “expecting] [OSHA inspectors] to inspect every item in every plant,” id.; and “zero tolerance for any kind of risk,” id. at 168 n. 13.26 The majority then bravely shoots down this straw man.
But it bears no relationship to Irving’s theory of the case. The conduct that Irving challenges is Chase and Ritchie’s failure to inspect every machine in the Somersworth Shoe factory after receiving binding instructions from them supervisor to do so. She does not argue that OSHA inspectors must “inspect every item in every plant.” Maj. Op. at 168-69. With respect only to the Somersworth Shoe plant, Amirault had already weighed the competing policy interests and concluded that this particular inspection must be wall-to-wall, with every machine inspected and every violation documented. Thus, the two inspectors who actually visited the Somersworth plant had no choice about how extensively to inspect; there was no room for them to exercise judgment or consider agency policy concerns when it came to determining whether to skip any machines; they had no discretion in the matter at all, whether driven by policy or otherwise. They had orders and they were to follow them. The fact that OSHA’s upper management had a great deal of discretion to choose various methods of enforcement in deciding which plants around the country to inspect, whether to do spot checks for some and wall-to-wall inspections for others, is quite irrelevant from the point of view of the “Government agent[s]” whose “acts” the Court told us to scrutinize in cases like this. Gaubert, 499 U.S. at 324, 111 S.Ct. 1267; see Berkovitz, 486 U.S. at 536, 547, 108 S.Ct. 1954. In this rare case, those higher officials had already chosen to exercise their discretion in a particular way, and their actions in so deciding are not being challenged here.
The majority makes much of the fact that OSHA’s resources are limited and that OSHA must be permitted discretion to *181choose how best to allocate such resources. But Irving does not challenge OSHA’s allocation of resources any more than she challenges OSHA’s enforcement policy in general or the decision to inspect one site rather than another. Rather, she challenges only the thoroughness with which the inspection was carried out after the decision had been made to inspect this particular site in a particular way, i.e., after the inspectors were specifically instructed to conduct wall-to-wall inspections. The Eleventh Circuit’s admonition is also applicable to OSHA (and virtually all federal agencies):
“Because resources are limited, it is axiomatic that discretion must be used in allocating available resources.... Nevertheless, this does not mean that a federal employee’s every choice is a policy judgment shielded from liability through the operation of the discretionary function exception.”
Phillips, 956 F.2d at 1075.
The majority blurs the distinction, implicitly lumping together Irving’s claim with a theoretical challenge to high-level agency resource-allocation decisions. This fundamental failure carefully to parse her claim is contrary to the Supreme Court’s own detailed practice, as evidenced by Gaubert and Berkovitz, and it infects the majority’s entire analysis. See, e.g., Murdock, 917 F.2d at 1073 (carefully distinguishing between claims, barring claim concerning decision as to what procedure should be used to conduct excavation but not precluding claim as to government’s “failure to ensure that procedure was followed”).
Moreover, as noted supra, while the Supreme Court has rejected a rigid dichotomy between high-level and operational decisions, see Gaubert, 499 U.S. at 326, 111 S.Ct. 1267, the relative place of the individual within the hierarchy does shed some light on the question of whether that “acting employee’s” conduct is of the kind that Congress would have shielded. See id. at 335, 111 S.Ct. 1267 (Scalia, J., concurring); Coumou v. United States, 114 F.3d 64, 65 (5th Cir.1997) (recognizing some difference “between decisions at a planning level, or decisions that exercise policy judgment, and decisions at a[n] operational level, or decisions that are merely incident to carrying out a government policy.”). In particular, here, a line-level inspector is not the kind of OSHA official who normally makes policy judgments as to how the agency should deploy its scarce resources. Nor is there any evidence in the record or other reason to believe that Chase or Ritchie were in fact-authorized to exercise such discretion in connection with Somersworth Shoe.
Irving’s claim, properly construed, is that, once inspectors have been ordered to perform a wall-to-wall inspection, they must do so with due care. Her claim does not implicate OSHA’s resource allocation discretion at all. Not only has the government failed to identify a specific policy empowering on-site inspectors to determine how thoroughly to conduct inspections, it has utterly failed to provide any support for its naked assertion that such a decision is actually “grounded” in any policy decisions. This case simply does not involve second-guessing broad -policy choices.
V
A number of other legal errors flaw the majority opinion.
A
The majority distorts Supreme Court precedent in the very framing of its analysis. It states: “Under the jurisprudence of the FTCA, a function is non-diseretionary only when a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.’ Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954).” Maj. Op. at 163 (emphasis added). There is no basis in law for that position.
The word “only” does not appear in either Gaubert or Berkovitz in connection with the quoted passage. The Supreme Court has never required that a plaintiff show that the acting agent is a bureaucratic automaton. Rather, it has repeatedly made clear that “[t]he so-called discretionary function exception ... does not protect all governmental activities involving an element of choice.” Gaubert, 499 U.S. at 335, 111 S.Ct. 1267 *182(Sealia, J., concurring) (citing Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954). In the passage quoted by the majority, the Court was merely explaining, by way of illustration, that the government could not satisfy “the requirement of judgment or choice” if a specific prescription existed in the statute, regulation or policy. But the Court has never said that, absent such a clear statement, embedded in formal law, a particular- function is therefore purely discretionary. Indeed, in Gaubert, the Court essentially said the contrary: “[Tjhere was no prohibition against the use of supervisory mechanisms not specifically set forth in statute or regulation.” 499 U.S. at 330, 111 S.Ct. 1267; see also id. at 326, 111 S.Ct. 1267 (“[T]he distinction in Dalehite [v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) ] [between decisions made at a planning rather than operational level] was merely description of the level at which the challenged conduct occurred. There was no suggestion that decisions made at an operational level could not also be based on policy”).
Moreover, the Court plainly has never raised the threshold on the first prong so high, as the majority does today, as to make it virtually impossible to satisfy.27 To require a plaintiff to show that the “acting employee” has no discretion at all is tantamount to requiring the plaintiff to disprove the government’s entitlement to the exception, and expands the discretionary function exception so much that it swallows the rule of waiver of sovereign immunity. But these exceptions should be read narrowly. As the Court stated in Kosak v. United States, 465 U.S. 848, 854 n. 9, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984):
Though ... the exceptions to the Tort Claims Act should not be read in a way that would “nulliffy them] through judicial interpretation,” [citation omitted], unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute. See United States v. Yellow Cab Co., 340 U.S. 543, 548 n. 5, 71 S.Ct. 399, 95 L.Ed. 523 (1951); cf. Block v. Neal, 460 U.S. 289, 298, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983) (“The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.”) [internal quotation marks omitted]. We think that the proper objective of a court attempting to construe one of the subsections of 28 U.S.C. § 2680 is to identify “those circumstances which are within the words and reason of the exception” — no less and no more. See Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 97 L.Ed. 1427 (1953).
B
The second prong of Berkovitz’s analysis of the discretionary function exception— whether the challenged inaction “is of the kind that the ... exception was designed to shield,” i.e., grounded in policy — is critical, for the exception, at its heart, seeks to prevent second-guessing of governmental policy decisions. True, “there is a presumption that ‘the agent’s acts are grounded in policy,’ ” where an agency official is found to be exercising discretion. Maj. Op. at 168 (quoting Gaubert, 499 U.S. at 324, 111 S.Ct. 1267). But the majority fails to recognize that the presumption is rebuttable. It may be overcome by evidence such as Irving presented here, demonstrating that these particular officials were not balancing competing policy concerns when they failed to inspect the die-out machine during their inspection of the Somersworth Shoe factory, after being instructed by their supervisor to inspect every machine.28
*183The majority erroneously treats the presumption as a strong one, such that “the United States has no burden of production; it may rest, as it did here, on the Gaubert presumption.” Maj. Op. at 168. The result of this front-loaded approach is that the second prong will almost always be satisfied once the first has been met. This approach is contrary to Berkovitz and Gaubert, and also to the weight of authority in other circuits that have properly acknowledged the overriding purpose of the exception: to protect against impermissible second-guessing of express policy judgments.29
It is admittedly difficult to determine whether a decision or task is based on political, social or economic policy, for “nearly every government action is, at least to some extent, subject to ‘policy analysis.”’ Cope, 45 F.3d at 448. The majority’s approach permits decisions by low-level employees involving the faintest hint of choice to fall within the exception. But as courts have repeatedly warned, such a front-loaded approach “would not only eviscerate the second step of the analysis set out in Berkovitz and Gaubert, but it would allow the exception to swallow the FTCA’s sweeping waiver of sovereign immunity.” Cope, 45 F.3d at 449 (holding that exception did not apply to claim that government failed to post adequate warning signs of dangerous road conditions); see also Duke v. Department of Agric., 131 F.3d 1407, 1411 (10th Cir.1997) (agreeing with D.C. Circuit that applying exception to governmental decision involving a “hint of policy concern” eviscerates the second prong of Berkovitz ).30
A somewhat analogous situation may be seen in the cases involving a failure to warn of a danger to health or safety. In such situations, the actor who failed to warn is similar to inspectors Chase and Ritchie here: if the acting employee had warned of the danger, the plaintiff would not have been injured. And, similarly, the failure to warn was not based on balancing competing policy interests. Some courts have consistently held that “a failure to warn involves considerations of safety, not public policy” and that except for the rare case where failure to warn implicates “broad, policy-making activities” the discretionary function exception is inapplicable in failure to warn cases. Faber v. United States, 56 F.3d 1122, 1125 (9th Cir.1995); see also Boyd v. United States, 881 F.2d 895, 898 (10th Cir.1989) (failure to warn swimmers of dangerous conditions “does not implicate any social, economic, or social policy judgments with which the discretionary function exception properly is concerned.”); Andrulonis v. United States, 952 F.2d 652 (2d Cir.1991) (highranking official’s alleged failure to warn of hazards associated with rabies vaccine not barred by exception).
C
The majority’s analysis seems to reinstate the “regulatory function exception” which the government urged upon the Court in Berko-vitz but which the Court explicitly rejected. See Berkovitz, 486 U.S. at 538-39, 108 S.Ct. 1954. Without any basis in the Act, the government had proposed that the Court transform the discretionary function exception into a “regulatory function exception” that would apply § 2680(a) to “preclude[] *184[government] liability for any and all acts arising out of the regulatory programs of federal agencies.” Id. at 538,108 S.Ct. 1954. The government had argued that regulatory programs by their nature entail agency discretion at the highest levels to weigh various competing policy interests. Based on the statute’s plain language and the legislative history, the Court “put the Government’s argument to rest,” id. at 539, 108 S.Ct. 1954, concluding that “Congress intended the discretionary function exception to apply to the discretionary acts of regulators, rather than to all regulatory acts,” id. at 539 n. 4, 108 S.Ct. 1954.
The majority’s decision today resurrects the government’s discredited “regulatory function” theory. Because the larger agency (OSHA) has broad discretion over its enforcement authority (as all regulatory agencies clearly will), the majority’s approach would exempt from tort liability virtually all actions taken by employees of regulatory agencies, without looking at whether the acting employee, whose conduct is the basis of the suit, actually had “no rightful option but to adhere to [a] directive” from his supervisor. Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
VI
In addition to its erroneous interpretation of Supreme Court precedent, the majority inexplicably fails to adhere to the well-established “clearly erroneous” standard of review for district court findings of fact. See Fed. R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
The district court found the following facts: (i) in 1975 and 1978, the OSHA compliance officers each had been directed to perform a “wall-to-wall” safety inspection of the Som-ersworth plant; (ii) although the OSH Act and OSHA regulations leave many decisions regarding the conduct of workplace inspections to the discretion of the area director and compliance officers, the scope of the inspections of the Somersworth plant that the compliance officers were instructed to perform in 1975 and 1978 “was dictated by less formal, but no less binding, OSHA policy,” requiring the officers to “inspect every operational machine and work station in the plant,” and to record every violation of OSHA safety standards that they observed— be they de minimis, non-serious, or serious — if there was potential employee exposure to the violative condition; (iii) the die-out motor drive shaft was not guarded by location at the time of the accident; (iv) at the time of the accident, the die-out machine was in materially the same condition, and was at or near the place it had been located during the 1975 and 1978 inspections, and, therefore, the drive shaft had not been guarded by location at the time of these inspections; (v) the die-out machine was in near-continuous operation during the relevant time period, and was in operation during both inspections; (vi) operation of the die-out machine while the drive shaft remained unguarded was in flagrant violation of OSHA safety standards; (vii) during the 1975 and 1978 inspections, the compliance officers failed to document, and OSHA failed to cite, the violative condition of the drive shaft; (viii) had the compliance officers actually inspected the bench assembly, they would have noticed and documented the vio-lative condition of the drive shaft. 942 F.Supp. at 1492-502.31
*185The district court concluded from the evidence that the record would not support a finding that OSHA compliance officers Chase and Ritchie — both of whom the court found to be experienced workplace safety inspectors who took their jobs seriously — were so utterly incompetent as to have inspected the bench assembly but failed to notice the unguarded condition of the drive shaft and to recognize it as a violation of OSHA standards. Instead, the preponderance of the evidence “decidedly supports the conclusion that both Chase and Ritchie would have recognized that the bench assembly violated OSHA safety standards requiring the guarding of power transmissions if they had, in fact, inspected it,” and that the only realistic explanation for their failure to notice and document the unguarded drive shaft was that neither officer actually inspected the bench assembly during his inspection of the Som-ersworth plant. 942 F.Supp. at 1497 (emphasis added). The district court thus determined that the challenged conduct, and the basis for Irving’s state-law cause of action and FTCA claim, was the failure of the compliance officers to inspect every operational machine in the Somersworth plant in 1975 and 1978, as they were required to do by mandatory OSHA policy, and their negligent performance of their task. Id. “[T]hey were under a mandatory duty to inspect every operational machine and failed to do so.” Id. at 1502.
The majority never analyzes the district court’s findings of fact under the proper standard of review: whether they were clearly erroneous. See Fed.R.Civ.P. 52(a). In particular, the majority fails to accord appropriate deference to the district court’s findings, as the “clearly erroneous” standard requires. See Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504 (explaining that the same deference is required to district court’s “inferences drawn from other facts”); Johnson v. Watts Regulator Co., 63 F.3d 1129, 1138 (1st Cir.1995) (“[A]n appellate court must refrain from any temptation to retry the factual issues anew.”).32
Instead, the majority examines the evidence for itself and second-guesses the district court’s findings, making its own findings of fact. That would be fine, if this court were the trial court. But the district court heard the evidence and reached a contrary set of factual determinations. This court has no basis for disturbing those findings. Arthur D. Little, Inc. v. Dooyang Corp., 147 *186F.3d 47, 54 (1st Cir.1998) (Where the “district court’s findings of fact are not clearly erroneous,” the appellate court “will not disturb them.”).
The district court’s findings are plainly supported by the record in this case; at the very least, they are not so lacking in support as to be clearly erroneous. Nothing in the record indicates that Amirault ordered inspections in 1975 and 1978 that were anything other than wall-to-wall inspections, or that the OSHA compliance officers were at liberty to choose to conduct a spot-check inspection of only some, not all, machines or areas within the plant. In all events, the government does not now dispute that the compliance officers in 1975 and 1978 were obliged to conduct wall-to-wall safety inspections; indeed, the government’s attorney conceded at oral argument before the district court that “[i]f there’s a requirement to look at every machine and he does not look at every machine, then I would agree that that’s a violation of a mandatory regulation.” 942 F.Supp. at 1499 n. 19.
Moreover, the means by which the majority carries out its own fact-finding mischarae-terizes the trial testimony. An example appears in the majority opinion at 167. The majority quotes a series of questions and answers and then summarizes them as follows: “Read naturally, this passage indicates that general administrative inspections constitute nothing more than ‘walk throughs’ that involve random spot checks.” This summary is not at all accurate. The “natural” reading of Amirault’s testimony is not that the inspector, once inside the plant, would “spot check” only some machines; rather, OSHA’s “random way of just doing spot checks on an entire plant without advance notice,” maj. op. at 167, more likely meant that OSHA chose at random which plant to inspect. Regarding the Somersworth inspections in particular, Amirault testified that, once inside the plant, the inspector was to conduct “a wall-to-wall inspection,” spending “whatever time was necessary to inspect the entire plant for safety hazards,” id. at 167 (emphasis added), “machine by machine by machine,” Irving, 942 F.Supp. at 1491 n. 8. If the majority’s “spot-check” finding of fact were made by a district court, an appellate tribunal would be compelled to strike it as clearly erroneous. The district court’s findings to the contrary were plainly correct, and surely pass muster under the clearly erroneous standard of review.33
In discussing the ordinary procedures for conducting inspections, the majority notes that “OSHA compliance officers are expected to study the layout of the facility they are about to investigate, to review its health and safety records, and to interview employer and employee representatives during the inspection about working conditions. One might expect that as a result of such study, OSHA inspectors will make daily judgments about what risks and safety issues most urgently require their attention.” Maj. Op. at 168. But again, the question is not what the majority of this court “expects” might occur during an ordinary OSHA inspection, but what actually appears in the record of this case. As the district court found, here, OSHA, through its area director, in fact undertook a wall-to-wall inspection of the Som-ersworth Shoe plant. Chase and Ritchie were ordered to carry out that undertaking, not to decide for themselves “what risks and safety issues most urgently require their attention.” Whatever “daily judgments” they might, in other circumstances, have been authorized to make about such issues were inapplicable here. Chase and Ritchie had no choice in these particular inspections but to comply with the mandate from their superi- or.
CONCLUSION
The majority decides today that the government is immune from suit for the inspectors’ negligence, based on the discretionary function exception to the Federal Tort Claims Act (FTCA). 28 U.S.C. § 2680(a). It *187rewards the agency when it undertakes to conduct a comprehensive safety inspection and then does so carelessly. And when the record is devoid of any evidence to suggest why incomplete “wall-to-wall” inspections or shoddy inspections could possibly be grounded in policy, the majority creates its justifications out of whole cloth. Such a decision violates the letter and spirit of the FTCA and flies in the face of controlling Supreme Court precedent on the subject.
I have great regard for my colleagues on this court. But however able they may be, they do not have the authority to refuse to follow a binding precedent from the Supreme Court of the United States. The Court’s early treatment of the discretionary function exception may have been inconsistent or unclear as to how to apply the exception. But the decision in Berkovitz clarified the analysis courts must employ in such cases. Berko-vitz also harmonized prior precedents and, as I have shown, Gaubert is likewise in harmony with the Berkovitz approach.
Unfortunately, the majority today totally misapplies the Court’s rulings, indeed eschewing any analysis of Berkovitz whatsoever. The majority instead states its own priorities: “Even if [a government] decision may seem wrong in retrospect, or if its implementation is negligent, such decisionmak-ing 34 by its nature typically requires a balancing of interests (e.g., how to deploy scarce government resources in the accomplishment of worthwhile — -but expensive — public needs). Congress reasonably struck this balance by requiring that, ordinarily, liability will not inhere absent an authoritative decision that a specific act should become a governmental responsibility.” Maj. Op. at 169.
This does not state the applicable law according to the Supreme Court. Nowhere does the Court require “an authoritative decision that a specific act should become a governmental responsibility” before an injured party may sue in tort. On the contrary, the FTCA broadly waives sovereign immunity unless the government establishes that the employee performing the challenged act — not his supervisor — acted within authorized discretion that was based in policy. If other members of this court are unhappy with the FTCA as it has been authoritatively interpreted by the Supreme Court, they cannot simply ignore the Court’s interpretation of Congressional intent. Unless Congress amends the statute or the Court modifies its construction, this court must faithfully apply the Court’s teachings. See Wessmann v. Gittens, 160 F.3d 790, 808 (1st Cir.1998) (“[U]nless and until the Justices reconfigure their present doctrine, it is the job of judges in courts such as this to respect the letter and spirit of the Supreme Court’s pronouncements.”).
The majority’s mischaracterization of plaintiffs position further undermines its conclusion. In short, the majority does today what the Supreme Court has specifically warned against: it has acted “as a self-constituted guardian of the Treasury importing] immunity back into a statute designed to limit it.” Indian Towing, 350 U.S. at 69, 76 S.Ct. 122.
I respectfully dissent.
. The majority finds to the contrary and concludes that, because of the discretionary function exception, it is without jurisdiction to entertain Irving's suit. In contrast, the dissent from the withdrawn panel opinion was based on the belief "that state law, properly applied, requires the entry of judgment in the government’s favor.” Irving v. United States, 1998 WL 152941, *37 (1st Cir.1998) (Irving IV). It did not discuss the discretionary function exception at all or, indeed, any aspect of the panel’s treatment of federal law. The dissent from the panel opinion mentioned not a word about the purported "precedent-setting error of great public import,” maj. op. at 160, or about the overriding importance of the discretionary function exception’s “impli-catfion of] the subject matter jurisdiction of federal courts," id. at 161. I find it remarkable that, until the en banc opinion issued, nothing was said about the lack of jurisdiction, because of the discretionary function exception, by the dissenting judge who is the writer of the majority opinion. Surely the framework of the case did not preclude comments about an issue that is now the basis for the majority’s opinion. As the majority itself stresses on page 160 of its opinion, “[flederal courts, being courts of limited jurisdiction, have an affirmative obligation to examine jurisdictional concerns on their own initiative.” Thus, contrary to the majority's protestations at page 157 n.l, members of the prior panel were certainly not precluded from commenting on the jurisdictional issue that the en banc court now raises. I do not question the court’s authority to call sua sponte for en banc review, but I question its judgment and wisdom in doing so here.
. Thus it is the government's burden to demonstrate that an exception applies. In the present case, the burden of proof should be on the government to show that OSHA explicitly delegated to inspectors Chase and Ritchie the discretion to determine how thoroughly to inspect the Som-ersworth Shoe plant. The majority opinion implicitly flips this burden on its head, and requires the plaintiff essentially to disprove the exception’s applicability.
. See Part III, infra.
. But that is not what this case is about. Irving does not challenge area director Amirault's discretionary decision that the inspectors perform a wall-to-wall inspection of Somersworth Shoe. She applauds it, and wishes the inspectors under Amirault’s supervision had carried out his mandate. It is the inspectors' negligent execution of Amirault’s mandatory order to them that Irving challenges.
. Astonishingly, the majority opinion fails even to discuss this seminal case. The majority reaches back to overrule Irving I and Irving II but inexplicably fails to discuss the Berkovitz decision which prompted those opinions. In both Irving opinions, which were unanimous, we directed the district court to determine, in the light of Berkovitz, whether the discretionary function exception applied. The majority evidently thinks Berkovitz is now beside the point, at least for its purposes. The opinion mentions that the district court and a prior panel of this court relied on Berkovitz, but in rejecting those panel decisions, the majority does not itself discuss or distinguish — much less apply — the Supreme Court’s analysis or holding in Berkovitz.
. The Court’s reference to Westfall recognizes the purpose of immunizing certain government conduct from ordinary tort liability. Unlike tort suits brought against non-govemmental defendants, the Court does not want the possibility of being sued for negligence to chill a government official from exercising "independent judgment” when such is appropriately part of his or her job serving the public. See Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755 (noting Congress’ desire to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort”).
. The case came up on a motion to dismiss, so the Court did not have the benefit of a fully developed factual record, as we have here.
. In Irving II, we remanded to the district court for similar findings, as to whether Chase and Ritchie had any discretion to “permissibly exercise policy choice" in failing to inspect the die-*176out machine, in light of the factual circumstances of this case. It is those factual determinations, and the judgment for Irving resulting therefrom, that are before us now on appeal.
. Because Berkovitz came up on a motion to dismiss, the Court remanded the case, giving plaintiffs the opportunity to make the required factual showing in support of their allegations. In this procedural respect, the present Irving appeal is not analogous. We previously ordered such a remand, and, as discussed infra at Part VI, here the plaintiff has already made the requisite factual showings and the district court has made findings that support her claims.
. It is true that the Court in Berkovitz did not discuss the example of a mandate from a supervisor. But, as discussed supra, it did offer a great variety of illustrative examples, all of which show that we have to look at whether the individual employee actually has policy-based discretion to take the actions which the plaintiff is challenging in the lawsuit.
. The majority notes that "the legislative rules governing the authority of compliance officers mimic the statute and grant these officials broad discretion over the scope, manner, and detail of general administrative inspections.” Maj. Op. at 163.
. This is essentially the flip side of its blurring the distinction between generally applicable rules granting discretion, on the one hand, and, on the other hand, the fact-specific question of whether Chase and Ritchie actually had any discretion in Irving’s case. See Part II, supra.
. The majority writes: "Importantly, the Manual contains no specific prescription mandating OSHA inspectors to proceed item by item or to cover every nook and cranny of a facility during a general administrative inspection.” Maj. Op. at 165. Of course the Manual contains no such prescription. It is not a general requirement, applicable to all inspections at all times. But Irving simply alleges that the area director decided to order a wall-to-wall inspection in this case, at this plant, at this time.
. The majority’s position would require a plaintiff to demonstrate that no possible discretion could be exercised by the acting government official, in order to satisfy the first of the two Berkovitz prongs.
. In addition, as Justice Sealia has explained, "[o]rdinarily, an employee working at the operational level is not responsible for policy decisions, even though policy considerations may be highly relevant to his actions.” Gaubert, 499 U.S. at 335, 111 S.Ct. 1267 (Sealia, J., concurring). It makes sense to consider whether the acting employee's decision was one that "ought to be informed by considerations of ... policy and is made by an officer whose official responsibilities include assessment of those considerations.” Id. Hence, it is less likely that tort suits challenging the actions of low-level employees *183can be said to result in a second-guessing of important public policy decisions, which is what the exception is intended to prohibit.
. Unlike today's majority, those circuits have kept the main goal of the exception in focus by giving meaning to the second prong. See Cope, 45 F.3d at 449 ("nature” of exempt decision must be "fraught with ... public policy considerations."); see, e.g., Gotha v. United States, 115 F.3d 176, 181 (3d Cir.1997) (rejecting applicability of exception where claim involved Navy's failure to provide safeguards to pathway); Andrulonis v. United States, 952 F.2d 652, 654 (2d Cir.1991) ("Policy considerations ... remain the touchstone for determining whether the discre-tionaiy function exception applies.”); Routh v. United States, 941 F.2d 853, 857 (9th Cir.1991) (contracting officer's on-site decisions not so rooted in policy as to bar claim alleging failure to use proper safety equipment); Kennewick Irrigation Dist., 880 F.2d at 1031-32; Phillips, 956 F.2d at 1075.
. Courts have also held the government to fail the second prong on evidentiary grounds, where the record does not support its contention that the challenged decision was "grounded in policy.” See, e.g., In re The Glacier Bay, 71 F.3d at 1450 ("When the record does not show that a decision is based on ... policy considerations, the exception does not apply.”).
. Four OSHA employees testified at the 1985 bench trial: Richard Amirault, the area director at the time of the 1975 and 1978 inspections; William Chase, the compliance officer who conducted the 1975 inspection; John M. Ritchie, the compliance officer who conducted the 1978 inspection; and Paul O'Connell, the senior safety engineer who conducted the 1979 post-accident inspection.
Amirault testified that OSHA compliance officers were "charged to look at the entire plant”; that, in conducting a wall-to-wall inspection, the compliance officers "were supposed to make a complete walk-through and identify and document any hazardous conditions that they would see”; and that, "[a]s far as humanly possible, [the inspectors] were supposed to cover the work place” and “observe any place where the employee works.” Although Amirault repeatedly testified that the compliance officers were required only to report the violations they observed — e.g., "If we could spot the unsafe condition, it should be cited." — he also testified that the inspectors “should look at every operation” and "should be observing and documenting any violative condition.”
*185Chase conceded that it would have been carelessness for a compliance officer to have missed the violative condition of the drive shaft. He testified that, in 1975, "I made a complete inspection of the facility as I am required to do and made notes, et cetera, of everything that I observed." While acknowledging that inspectors occasionally fail to notice violative conditions. Chase testified that, if the bench assembly were in the same location at the time of his 1975 inspection as it was at the time of the accident, he could not have failed to recognize the condition of the drive shaft as a serious violation of OSHA standards. He stated, "I deny anybody to say they haven’t [made a mistake] but not something that obvious." And, “I wouldn't miss something like that; it’s too obvious, positively.” He also stated, "[T]here’s no way I’d have missed that setting right out in the wide open on a main aisle in ... the stock fitting room. No way." According to Chase, no compliance officer who looked at the bench assembly would have failed to recognize the unguarded drive shaft as a serious violation, even on the officer’s worst day. Amirault and O’Connell concurred in Chase’s conclusion that the violation was both obvious and serious, with Amirault conceding that a prudent inspector who saw the bench assembly depicted in O’Connell’s post-accident photographs should have noticed the unguarded condition of the drive shaft and recognized it as a violation of OSHA safety standards.
. The majority explains this failure by stating that "the lower court's crucial findings were grounded in an erroneous legal framework,” so “an appellate court should not defer to [the] trial court’s factfinding." Maj. Op. at 166 n.ll. It is true that appellate courts should not defer to a trial court’s factual findings which actually result from an erroneous application of law to the facts of the case. But that is not what happened here. The district court here found historical facts, e.g., facts that describe what Amirault ordered Chase and Ritchie to do, and what the inspectors in fact did (or did not do) in response to that order. These historical facts have nothing to do with the question whether the district court later examined those facts through an incorrect legal lens. See Reich v. John Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir.1997); State Police Ass’n of Mass. v. Commissioner of Internal Revenue, 125 F.3d 1, 5 (1st Cir.1997). As to such historical facts, appellate courts must defer to the trial court's factual findings unless they are clearly erroneous. See Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504; Johnson, 63 F.3d at 1138.
. Even the majority’s legal analysis is based on an erroneous factual predicate: that the government "has reserved to its own officials the decision about whether or not to act.” Maj. Op. at 169. While OSHA as a whole retains such discretion, and has delegated it down the ranks at least as far as the area director, the latter refused to delegate such discretion to the line inspectors whose conduct the plaintiff has challenged.
. Irving does not, of course, challenge OSHA's decision-making. She applauds the decision to pursue a wall-to-wall inspection of Somersworth Shoe. She challenges only the negligent implementation, by subordinate employees, of the agency's decision.