1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-25-1995

Fisher Bros v USA

Precedential or Non-Precedential:

Docket 93-1182

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Recommended Citation

"Fisher Bros v USA" (1995). 1995 Decisions. Paper 22.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/22
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 Nos. 93-1182; 93-1205; 93-1206; 

 93-1207; 93-1208; 93-1209 

 

 FISHER BROS. SALES, INC. 

 

 Appellant in 93-1182. 

v. 

 UNITED STATES OF AMERICA 

 

 JULIA SAAVEDRA BALMACEDA; AANDRES MUNOZ TORRES; 

 ABALOS LABBE JUAN PABLO; ABATTE OSORIO HONS.; 

 ABDON M. ALVAREZ; ABRAHAM SABAJ NALLAR; 

 ABRIGO OLIVOS RODEMIL; ACEVEDO DURAN OSVALDO HERNAN; 

 ACOSTA RAMIREZ CARLOS; VICTORIANO ACUNA CONTRERAS; 

 MARCO HERIBETO ACUNA MONTERO; JAVIER ACUNA GONZALEZ; 

 MARDONES ADOLFO RIVEROS; ADRIANA RODRIGUEZ LARRAGANA; 

 AGR HENRIQUEZ Y VARELA; AGR KIWI MASTERS LTDA; 

 AGRIC MORANDE LAVIN LTDA; AGRIC CAIQUENES LTDA; 

 AGRIC CARVALLO LTDA; AGRIC CERRILLO LTDA; AGRIC CHOROMBO LTDA; 

 AGRIC COTIELLA LTDA; AGRIC DEL ALTO LTDA; AGRIC DEL VALLE 

 LTDA; AGRIC EL ESPINO N12, et al. 

 Appellants in 93-1205, 

v. 

 UNITED STATES OF AMERICA 

 

 CARBEN, INC., 

 Appellant in 93-1206 

v. 

 

 UNITED STATES OF AMERICA 
 
 COMPANIA SUD AMERICANA DE VAPORES S.A., 

 Appellant in 93-1207. 

v. 

 UNITED STATES OF AMERICA 

 

 NEW MARKET INVESTMENT CORPORATION, 

 Appellant in 93-1208. 

v. 

 UNITED STATES OF AMERICA 

 

 GUZMAN Y DEL REAL, LIMITRADA, 

 individually and as class representative, 

v. 

 UNITED STATES OF AMERICA, 

 Guzman Y Del Real, Limitrada, 

 Appellant in 93-1209

 . 

 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 (D.C. Civil Action Nos. 92-02818; 92-00907; 

 92-01204; 92-01208; 92-01279; 92-04057) 

 

 Argued: September 23, 1993 

 Before: STAPLETON, ROTH and LEWIS, Circuit Judges
 Reargued in banc October 18, 1994 

 Before: SLOVITER, Chief Judge, BECKER, STAPLETON 

 MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, 

 NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges

 (Opinion Filed January 25, l995 ) 

 

Christopher H. Mansuy, Esquire 

Walker & Corsa 

96 Hudson Street 

Hoboken, NJ 07030 

 Attorney for Appellant in 93-1182 

Edward W. Madeira, Jr., Esquire 

Robert L. Hickok, Esquire (Argued) 

Matthew H. Adler, Esquire 

Michael A. Ceramella, Esquire 

Pepper, Hamilton & Scheetz 

3000 Two Logan Square 

Philadelphia, PA 19103-2799 

 Attorneys for Appellants in 93-1205; 93-1206; 

 93-1207; 93-1208; and 93-1209 

Stuart E. Schiffer, 

Acting Assistant Attorney General 

Michael J. Rotko 

United States Attorney 

Robert S. Greenspan, Esquire 

Thomas M. Bondy, Esquire (Argued) 

United States Department of Justice 

Civil Division, Appellate Staff 

Tenth and Pennsylvania Avenue, N.W. 

Washington, D.C. 20530-0001 

Phyllis J. Pyles, Esquire 

United States Department of Justice 

Torts Branch, Civil Division 

P. O. Box 888 

Ben Franklin Station 

Washington, D.C.20044 

 Attorneys for Appellees 

 

 OPINION OF THE COURT 

 

STAPLETON, Circuit Judge:

 The Federal Tort Claims Act ("FTCA"), 28 U.S.C. 

§§ 1346(b), 2671-2680, waives the federal government's sovereign 

immunity with respect to tort claims for money damages. The 

"discretionary function exception" to the FTCA limits that 

waiver, stating that the government retains sovereign immunity 

with respect to "[a]ny claim . . . based upon the exercise or 

performance [of,] or the failure to exercise or perform[,] a 

discretionary function or duty . . . , whether or not the 

discretion involved be abused." 28 U.S.C. § 2680(a). The 

appeals now before the court in banc require us to examine the 

scope of the discretionary function exception. 

 The plaintiffs in these cases were injured by several 

policy decisions made by the Commissioner of the Food and Drug 

Administration ("FDA") while exercising a discretionary function. 

They seek to avoid the legal consequences that would flow from 

application of the discretionary function exception to their 

cases by (1) looking behind the Commissioner's injury-causing 

decision, (2) finding fault with an aspect of the data upon which 

it may have been based, and (3) arguing that their claims are not 

"based upon" the Commissioner's decisions but instead are "based 

upon" the alleged negligence of various laboratory technicians 

who supplied the allegedly faulty data to the Commissioner. We 
reject this attempt to circumvent the discretionary function 

exception, concluding that if the discretionary function 

exception to the FTCA is to fulfill its clear and important 

purpose, a claim must be "based upon" the exercise of a 

discretionary function whenever the immediate cause of the 

plaintiff's injury is a decision which is susceptible of policy 

analysis and which is made by an official legally authorized to 

make it. Because the plaintiffs' claims are based upon 

decisions susceptible of policy analysis and made by an official 

of the executive branch acting within his authority, we will 

affirm the district court's order dismissing these cases for lack 

of subject-matter jurisdiction. 

 For the purpose of our analysis, we have assumed the 

facts alleged by the plaintiffs to be true. Berkovitz v. United 

States, 486 U.S. 531, 540 (1988). Our "scope of review of the 

applicability of the discretionary function exception is 

plenary." United States Fidelity & Guar. Co. v. United States, 

837 F.2d 116, 119 (3d Cir.), cert. denied, 487 U.S. 1235 (1988). 

I. 

 On March 2, 1989, an anonymous caller to the United 

States Embassy in Santiago, Chile, stated that Chilean fruit 

bound for the United States would be injected with cyanide. The 

FDA took the lead agency role in evaluating the seriousness of 

the call, and it detained all incoming Chilean fruit over the 

weekend of March 4 and 5 while it undertook an investigation. On 

March 6, having found no evidence that any Chilean fruit had 
actually been poisoned, the FDA announced that it considered the 

call a hoax. It nevertheless continued to conduct experiments 

concerning the effects that cyanide injections would have on 

various Chilean fruits. 

 The embassy in Santiago then received a second 

anonymous call. This time the warnings were more specific. The 

caller indicated that he had access to orchards, storage 

facilities, and shipping locations in Chile, and stated that 

unidentified fruit had already been injected with cyanide. This 

prompted the FDA's Philadelphia District Office to double the 

inspection level of incoming Chilean fruit, beginning with that 

arriving on the "Almeria Star." The Philadelphia District Office 

designated that certain portions of the Almeria Star's cargo 

would be examined, and any fruit that looked "suspect" was to be 

sent to the Philadelphia District Office for testing. 

 The increased level of inspection soon yielded results. 

On the morning of March 12, an FDA inspector discovered two 

grapes from the Almeria Star which appeared to have been 

punctured, and which displayed uniform white rings. Further 

examination of the crate containing these suspect grapes revealed 

a third white-ringed grape, which, unlike the others, appeared to 

have been slit rather than punctured. Although the physical 

appearance of these grapes was inconsistent with that of grapes 

injected with cyanide during FDA experimentation, the FDA 

officials as a precautionary measure sent the grapes, as well as 

the crate in which they were packaged, to the FDA's Philadelphia 

laboratory for testing. 
 The Philadelphia laboratory began testing the grapes 

for cyanide in the early afternoon of March 12. The FDA 

technicians used all of the two punctured grapes in conducting 

their tests, but saved the third, slit, grape for confirmation 

purposes. The testing process required the grapes to be mashed 

until they turned into a solution. Sulfuric acid was then added 

to this slurry, causing a chemical reaction that released in 

gaseous form any cyanide that was present in the solution. The 

gas released from the solution was twice exposed to cyanidesensitive strips of reactive paper, both of which indicated the 

presence of cyanide. A third test then confirmed a high 

concentration of cyanide present in the slurry. At approximately 

9:30 p.m. on March 12, the Philadelphia laboratory orally 

reported positive cyanide test results from the solution to the 

FDA's Emergency Operations Center. 

 Meanwhile, FDA officials transferred a portion of the 

slurry, along with the third, slit, grape and the bunch in which 

these grapes had been found, to the FDA's Cincinnati laboratory. 

Technicians there identified two additional white-ringed grapes 

on the bunch, but were unable to confirm the presence of cyanide. 

The Philadelphia laboratory also continued testing other grapes 

from the suspect crate, as well as all packing materials in that 

crate. These further tests also failed to reveal the presence of 

cyanide. 

 The Commissioner was supplied with the findings of the 

Philadelphia and Cincinnati laboratories in the early morning 

hours of March 13. The information before him at that point was 
that three tests conducted on two of the suspect grapes indicated 

the presence of cyanide. The retesting of the slurry and the 

testing of the third "reserved" grape, the other grapes, and the 

packaging, however, did not confirm the presence of cyanide. He 

also knew of the reports to the embassy in Santiago and the 

surveillance activity that had already been conducted. On the 

basis of this information, the Commissioner on March 13 issued an 

order refusing entry of any additional Chilean fruit into the 

United States and requiring the withdrawal and destruction of all 

Chilean fruit then in domestic channels of distribution. The FDA 

also issued a press release publicizing the Philadelphia 

laboratory's finding of cyanide in two Chilean grapes and the 

order refusing the entry of Chilean fruit into the United States. 

Consumers were encouraged to destroy any Chilean fruit in their 

possession, and grocers were instructed to remove all Chilean 

fruit from their shelves. 

 The plaintiffs in these cases are (1) approximately 

2400 Chilean growers and exporters of fresh fruit, (2) a Chilean 

shipping line, (3) three United States firms that are engaged in 

the importation and distribution of fresh produce, and (4) a noncertified class whose named plaintiff is a Chilean fruit grower. 

They seek damages from the United States government under the 

FTCA, 28 U.S.C. § 1346(b), on a negligence theory, contending 

that the technicians in the FDA's Philadelphia laboratory were 

negligent in failing to reserve any portion of the two punctured 

grapes for later confirmation testing. Plaintiffs claim that 

this violated both the FDA's Regulatory Procedures Manual and 
good laboratory practices generally. As a result, the Cincinnati 

laboratory was unable to verify the positive result reported by 

the Philadelphia laboratory. Plaintiffs further allege that the 

lab technicians were negligent in failing to record their 

observations contemporaneously with their testing, thereby 

casting doubt on the accuracy of their results and the content of 

the oral report, and in failing to take account of the known 

properties of cyanide in fruit. According to the complaint, but 

for this negligence, the Commissioner would not have issued his 

orders and the Chilean fruit business for the spring season of 

1989 would not have been destroyed. 

 The United States moved to dismiss, arguing that the 

district court lacked subject-matter jurisdiction over 

plaintiffs' claims. The district court granted that motion, 

reasoning that the discretionary function exception to the FTCA 

shielded the government's conduct from liability. The plaintiffs 

appeal. 

II. 

A. 

 The Federal Tort Claims Act gives district courts 

jurisdiction over: 

 civil actions on claims against the United 

States, for money damages, accruing on and 

after January 1, 1945, for injury or loss of 

property, or personal injury or death caused 

by the negligent or wrongful act or omission 

of any employee of the Government while 

acting within the scope of his office or 

employment, under circumstances where the 

United States, if a private person, would be 
liable to the claimant in accordance with the 

law of the place where the act or omission 

occurred. 

28 U.S.C. § 1346(b). The FTCA thus waives the government's 

sovereign immunity with respect to tort claims against the United 

States for money damages. 

 This waiver of the government's immunity is subject to 

certain exceptions, however, one of which is the discretionary 

function exception. 28 U.S.C. § 2680(a). As we have noted, that 

exception dictates that the waiver "shall not apply to . . . 

[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." 

 The discretionary function exception is designed to 

protect policy making by the politically accountable branches of 

government from interference in the form of "second-guessing" by 

the judiciary -- second guessing the result of which burdens the 

public fisc and the prospect of which skews the decisionmaking 

process of executive and legislative policymakers. United States 

v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 

467 U.S. 797, 808 (1984). As the Court explained in Varig 

Airlines: 

 [W]hatever else the discretionary function 

exception may include, it plainly was 

intended to encompass the discretionary acts 

of the Government acting in its role as a 

regulator of the conduct of private 

individuals. Time and again the legislative 

history refers to the acts of regulatory 

agencies as examples of those covered by the 

exception . . . . This emphasis upon 
protection for regulatory activities suggests 

an underlying basis for the inclusion of an 

exception for discretionary functions in the 

Act: Congress wished 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. 

Id. at 814 (footnote omitted). Thus, the discretionary function 

exception is a product of Congress' recognition that "the 

imposition of liability for damages occasioned by governmental 

policymaking would necessarily involve a very substantial, if not 

prohibitive, social cost not only in terms of the imposed 

liability itself, but also in terms of the constraining effect of 

that liability on the decisions of governmental policymakers." 

Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 890 (3d Cir. 

1990), cert. denied, 500 U.S. 941 (1991). 

 Whether the discretionary function exception applies 

involves a two-pronged inquiry. "[A] court must first consider 

whether the action is a matter of choice for the acting 

employee." Berkovitz, 486 U.S. at 536. Second, the court must 

determine whether the element of judgment involved "is of the 

kind that the discretionary function exception was designed to 

shield." Id. Under this second prong, the court must determine 

whether the challenged discretionary actions or decisions were 

"based on considerations of public policy." Id. at 537. "The 

focus of the inquiry is not on the agent's subjective intent in 

exercising the discretion conferred by statute or regulation, but 

on the nature of the actions taken and on whether they are 
susceptible to policy analysis." United States v. Gaubert, 499 

U.S. 315, 325 (1991). 

B. 

 The district court, applying these principles to the 

Commissioner's decisions to deny entry of Chilean fruit and to 

destroy Chilean fruit already in the United States, found that 

the decisions were policy decisions protected by the 

discretionary function exception to the FTCA. We agree. 

Specifically, the district court concluded: 

 The FDA acted to protect the public from the 

risk of exposure to poisonous fruit which it 

learned could be coming from Chile. It had 

the discretion to test the fruit and 

determine whether the fruit was adulterated. 

It also had the discretion to refuse entry 

into the United States. The actions taken 

were not violative of any regulatory or 

statutory provisions. The acts taken were in 

accordance with the FDA's authority to 

determine whether or not a specific product 

should be allowed entrance into the United 

States. This conduct is grounded in the 

policy of protecting the public health. The 

actions were clearly in furtherance of the 

FDA's statutory mission to protect the 

American public from adulterated food. All 

the acts involved judgment and choice and 

were grounded in policy. 

Balmaceda v. United States, 815 F. Supp. 823, 827 (E.D. Pa. 

1992). 

 As the district court found, the Commissioner's 

decisions were clearly "matter[s] of choice" for a person 

occupying his position. As the plaintiffs readily concede, the 

orders giving rise to these cases were authorized both in the 
sense that the Commissioner was acting within the scope of his 

authority1 and in the sense that his orders were not in conflict 

with any applicable statute or regulation. In short, the 

Commissioner was the public official responsible for making these 

choices and he made them in a lawful manner. Accordingly, we 

turn to the second prong of a discretionary function exception 

analysis and consider whether the choices to be made were 

susceptible to policy analysis. 

 In making his decisions, the Commissioner was required 

to evaluate and reconcile in some manner the findings of the 

Philadelphia and Cincinnati laboratories. Among other things, 

this would include making a judgment about the significance of 

the fact that no segment of the first two grapes had been 

reserved for confirmatory testing. Moreover, the significance of 

this data had to be judged in the overall context of the reports 

to the embassy in Santiago, the surveillance activity that had 

 

1. The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-

394, provides that the Commissioner of the FDA may "cause to be 

disseminated information regarding food, drugs, devices, or 

cosmetics in situations involving, in the opinion of the 

[Commissioner], imminent danger to the health or gross deception 

of the consumer." 21 U.S.C. § 375(b); see also 21 C.F.R. § 

2.5(a). FDA regulations also permit the Commissioner of the FDA 

to initiate a "recall" of food in distribution channels where the 

food presents a risk of injury to consumers and recall is needed 

to protect the public health. 21 C.F.R. § 7.45; see 21 C.F.R. §§ 

7.40-7.59. Whether and when to initiate a recall in any 

particular case is a judgment call for appropriate FDA officials 

to make in light of the perceived "urgen[cy]" of the situation. 

21 C.F.R. § 7.40(b). Thus, whether recall is warranted is 

assessed in light of "the degree of seriousness of the health 

hazard" and "the likelihood of occurrence of the hazard." 21 

C.F.R. § 7.41(a)(4),(5). 
already been conducted, the probability that contaminated grapes, 

if they existed, would be consumed, and probable consequences of 

any such consumption to the person poisoned, fruit consumers in 

general, and to the fruit industry as a whole. 

 A critical part of the policymaking process was the 

Commissioner's decision to make a decision in the early morning 

hours of March 13, rather than to await more surveillance and 

testing. If he had waited, the plaintiffs might not have 

suffered the injury of which they complain. Of course, the 

Commissioner did not wait and, unfortunately, that injury did 

occur. The point, however, is that the decision about when the 

data were sufficient to permit responsible decisionmaking 

involved questions of "social, economic, and political policy." 

Varig Airlines, 467 U.S. at 814. That decision was an inherent 

part of the policymaking process and just as susceptible of being 

skewed by the prospect of judicial second guessing as any other 

part of the process. Thus, the Commissioner's decisions both 

involved an element of judgment or choice, and were the kind of 

choices "that the discretionary function exception was designed 

to shield." Berkovitz, 486 U.S. at 536. 
 C. 

 The plaintiffs attempt to avoid application of the 

discretionary function exception by looking behind the injurycausing decision and finding fault with an aspect of the data on 

which it may have been based. The gist of their complaint is 

that the FDA's Philadelphia laboratory's tests were negligently 

performed because the procedures used conformed neither to the 

FDA's Regulatory Procedures Manual nor to good laboratory 

practices generally. Thus, the plaintiffs claim, their complaint 

is "based on" the behavior of the laboratory technicians and not 

on the FDA Commissioner's decisions to bar fruit from Chile and 

to remove it from the marketplace. The methods employed by the 

laboratory technicians while testing the grapes, they argue 

further, did not involve "the permissible exercise of policy 

judgment," Berkovitz, 486 U.S. at 537, and accordingly were not 

themselves protected by the discretionary function exception. 

 We acknowledge that simply as a matter of semantics, it 

is possible to characterize the plaintiffs' claims as being 

"based upon" the conduct of the Philadelphia laboratory 

technicians. We nevertheless reject that proposed 

characterization because it is inconsistent with the purpose of 

the discretionary function exception. 

 The plaintiffs emphasize that this case comes to us on 

a grant of a motion to dismiss, and that we must accept their 

version of the facts as true. This is, of course, an accurate 

statement of the law. But the fact that we must accept the 

plaintiffs' version of the facts as true does not mean that we 
must accept plaintiffs' characterization of those facts. We know 

of no authority for the proposition that plaintiffs, by the 

manner in which they draft their complaints, may dictate that 

their claims are "based upon" one government employee's actions 

and not another's. The relevant authority is to the contrary. 

Cf. United States v. Neustadt, 366 U.S. 696, 703-06 & n.13 (1961) 

(holding that federal law, not state law or the language of 

plaintiff's complaint, governs the applicability of 28 U.S.C. 

§ 2680(h)'s retention of sovereign immunity in cases where the 

plaintiff's claim "arise[s] out of . . . misrepresentation"); 

Kosak v. United States, 465 U.S. 848, 851-62 (1984) (whether 

plaintiff's claim "aros[e] in respect of . . . the detention of 

any goods or merchandise by any officer of customs" for the 

purposes of 28 U.S.C. § 2680(c) is an independent question of 

federal law the resolution of which depends on the terms and 

purposes of the FTCA). 

 The reality here is that the injuries of which the 

plaintiffs complain were caused by the Commissioner's decisions 

and, as a matter of law, their claims are therefore "based upon" 

those decisions. Any other view would defeat the purpose of the 

discretionary function exception. In situations like this where 

the injury complained of is caused by a regulatory policy 

decision, the fact of the matter is that there is no difference 

in the quality or quantity of the interference occasioned by 

judicial second guessing, whether the plaintiff purports to be 

attacking the data base on which the policy is founded or 
acknowledges outright that he or she is challenging the policy 

itself. 

 If plaintiffs injured by regulatory policy decisions 

were permitted to prosecute damage actions by challenging the 

manner in which the underlying data was collected, federal 

courts, of necessity, would be required to examine in detail the 

decisionmaking process of the policy maker to determine what role 

the challenged data played in the policymaking and what the 

policymaker's decision would have been if he or she had received 

the unchallenged data but not the challenged data (or had 

received other data in lieu of the challenged data). Without 

such an examination and all of the discovery that would 

necessarily precede it, a plaintiff in the position of these 

plaintiffs would be unable to prove a causal link between the 

alleged negligence and the alleged injury. Yet this is precisely 

the kind of inquiry that the Supreme Court sought to foreclose 

when it ruled out any inquiry into an official's "subjective 

intent in exercising the discretion conferred by statute or 

regulation." Gaubert, 499 U.S. at 325. 

 The social cost of permitting the inquiries required by 

the plaintiffs' theory are prohibitive. First, because the 

liability-creating decision might be a policy choice at the very 

highest level of a regulatory agency, the number of persons 

affected by the decision is potentially staggering and the 

potential liability virtually unlimited. Second, because of the 

nature of the inquiry, the demands of the litigation process on 
the most valuable human resources of the regulatory agency will 

be extraordinary. But this is only a part of the picture. 

 As we have earlier suggested, every policy decision 

involves an exercise of the policymaker's judgment about the 

reliability, adequacy, and significance of the information 

available to him or her. Because of time and expense constraints 

and because experience teaches that human beings make mistakes in 

technique, perception, logic, communication, and a myriad of 

other areas, no decisionmaker can have one hundred percent 

confidence in the information before him or her at any given 

point in time. Each responsible decision therefore necessarily 

reflects the decisionmaker's judgment that it is more desirable 

to make a decision based on the currently available information 

than to wait for more complete data or more confirmation of the 

existing data. 

 When one appreciates that virtually all policymaking 

involves judgments about the reliability of the available data, 

it is not difficult to predict the impact upon policymakers that 

would result from the fear of virtually unlimited liability and 

the prospect of virtually interminable litigation associated with 

the plaintiffs' theory of liability. The "safest" course from 

the decisionmaker's personal perspective will be to wait for more 

conclusive data. But that course can carry a very high social 

cost. This is graphically illustrated by asking what will happen 

the next time a Commissioner of the FDA has to make decisions 

like those here involved if the current Commissioner is exposed 

to this litigation and the United States government is found 
liable for all the losses here alleged. We believe the 

discretionary function exception was intended to make sure every 

Commissioner's judgment will not be skewed by such 

considerations. 

D. 

 The plaintiffs rely principally on two Supreme Court 

decisions: Berkovitz v. United States, 486 U.S. 531 (1988), and 

Indian Towing Co. v. United States, 350 U.S. 61 (1955). In 

Berkovitz, the plaintiff had contracted polio from a dose of 

polio vaccine. The decisions alleged to have caused the 

plaintiff's injury were a decision to license the manufacture of 

the lot from which that plaintiff's dose of vaccine came and the 

decision to release that lot for use by the public. The Supreme 

Court held that the discretionary function exception would not 

protect those decisions if they were contrary to a previouslyestablished policy which left no discretion to the 

decisionmakers. Thus, where the policy previously established by 

statute and regulation deprived the agency of the authority to 

license a manufacturer without insisting that it submit specified 

data to the agency, a decision to license without requiring that 

submission was not a protected exercise of a discretionary 

function. Similarly, if a previously determined policy 

established objective scientific criteria for release of a lot 

and deprived the agency of discretion to release a lot not 

meeting those standards, damage liability could be imposed for a 

decision to release a lot not meeting those criteria. 
 The cases before us, unlike Berkovitz, are not cases in 

which the injury-causing decision was contrary to a previously 

established policy which deprived the decisionmaker of 

discretion. The policy previously established by Congress and 

the FDA called for the Commissioner to make a discretionary 

decision on whether the public health required a quarantine of 

Chilean fruit. The plaintiffs have pointed to no statute or 

regulation that the Commissioner's decision violated. The best 

they can do is reach behind the Commissioner's decision and point 

to a laboratory manual that allegedly called for the retention of 

a portion of the first two perforated, white-ringed grapes. But 

clearly the laboratory manual was not intended to deprive the 

Commissioner of the discretion to make the decision that he made 

on March 13 based on the information available to him at the 

time. 

 In Indian Towing, the plaintiff had been injured as a 

result of the negligent operation of a lighthouse by the Coast 

Guard. The Court held that although the Coast Guard had no 

obligation to undertake lighthouse service, once it exercised its 

discretion to do so, it was obliged to exercise due care. The 

Court has recently described the basis for decision in Indian 

Towing as follows: 

 The United States was held liable . . . 

because making sure the light was operational 

"did not involve any permissible exercise of 

policy judgment." . . . Indeed, the 

Government did not even claim the benefit of 

the exception but unsuccessfully urged that 

maintaining the light was a governmental 

function for which it could not be liable. 
United States v. Gaubert, 499 U.S. at 326. 

 The plaintiffs argue that just as the government, after 

making the discretionary decision to provide lighthouse services, 

could not thereafter provide those services negligently, so too 

the government here, after making a discretionary decision to 

test incoming Chilean fruit, could not thereafter fail to 

exercise care in doing the testing. Besides the fact that the 

discretionary function exception was not at issue in Indian 

Towing, the plaintiffs miss the critical distinction between that 

case and this. The plaintiff in Indian Towing was injured by the 

negligently performed lighthouse services and his case 

accordingly required an inquiry only into how those services were 

delivered, not into the exercise of policymaking discretion. 

Here the plaintiffs would not have been injured but for the 

decisions of the Commissioner and litigation of their cases will 

require extensive inquiry into the process by which those 

decisions were made. Once a policy decision has been made 

negligence in its non-discretionary execution can give rise to 

FTCA liability without jeopardizing the interests the 

discretionary function exception is designed to protect. Those 

interests would be jeopardized, however, by allowing these 

plaintiffs to go forward. Cf. Patterson v. United States, 881 

F.2d 127, 128 (4th Cir. 1989) (in banc) (holding that plaintiffs 

may not base claim on the non-discretionary action of an Office 

of Surface Mining ("OSM") inspector because that action was 

followed by a decision by the OSM not to take further action). 
IV. 

 For the foregoing reasons, we will affirm the order of 

the district court dismissing the complaints in these cases. 
 Fisher Bros. Sales, Inc. v. United States

 Nos. 93-1182, 93-1205; 93-1206, 93-1207, 

 93-1208, and 93-1209 

ROTH, Circuit Judge, Dissenting. Judges Becker, Hutchinson, 

Scirica, Lewis and McKee join in the dissent. 

 I respectfully dissent from the conclusion reached by 

the majority. I cannot accept cloaking a decision, which results 

from negligently performed laboratory work, with the 

discretionary function exception under circumstances in which the 

decision maker would expect, first, that the laboratory work will 

be performed under scientifically recognized and accepted 

techniques and, second, that further actions by the decision 

maker will be governed by the results of that testing. 

 Because I conclude that such circumstances have been 

alleged by the plaintiffs in their complaint, I find it improper 

for the district court to have dismissed the complaint on the 

basis of the discretionary function exception. 

 In ruling on defendants' motions to dismiss, the 

district court focused on the conduct of the FDA as a whole. It 
conducted an analysis of the statutes and regulations governing 

the FDA, and concluded that 

 [u]nder this authorization, FDA had the discretion to 

act during the Chilean grape crisis. The FDA acted to 

protect the public from the risk of exposure to 

poisonous fruit which it learned could be coming from 

Chile. It had the discretion to test the fruit and 

determine whether the fruit was adulterated. It also 

had the discretion to refuse entry into the United 

States. The actions taken were not violative of any 

regulatory or statutory provisions. The acts taken 

were in accordance with the FDA's authority to 

determine whether or not a specific product should be 

allowed entrance into the United States. This conduct 

is grounded in the policy of protecting the public 

health. The actions were clearly in furtherance of the 

FDA's statutory mission to protect the American public 

from adulterated food. All the acts involved judgment 

and choice and were grounded in policy. 

Balmaceda v. United States, 815 F. Supp. 823, 827 (E.D. Pa. 

1992). The district court declined to "consider alleged 

violations of a laboratory procedures manual because this 

argument simply is the basis of the plaintiffs' claim of 

negligence." Id. at 826. 

 I believe, however, that, in analyzing the actions 

taken here by the FDA, one must consider carefully whether it is 

implicit in the order for tests to be performed that the tests 

are both scientifically accepted and reliable. If it is 

implicit, I would not extend the discretionary function exception 

to actions which predictably follow from the test results. The 

discretionary function exception should not protect an official's 

decisions, brought about by the results of accepted and reliable 

tests, just as it will not protect an official's release of a 
noncomplying lot of polio vaccine. See Berkovitz by Berkovitz v. 

United States, 486 U.S. 531 (1988). 

 Moreover, if actions are taken as a result of accepted 

and reliable testing, they may no longer be the product of 

independent judgment. The determination to order testing 

involved the element of choice. However, it is not clear from 

the record before us whether any significant discretion to choose 

remained after the decision to test or whether a positive test 

result would implicate a concomitant decision to withdraw the 

fruit from the market. If plaintiff can prove the existence of 

such inevitability, the discretionary function exception may no 

longer be implicated. Accord Westfall v. Erwin, 484 U.S. 292, 

296-97 (1988) ("When an official's conduct is not the product of 

independent judgment, the threat of liability cannot 

detrimentally inhibit that conduct."). 

 I do not question the majority's conclusion that the 

Commissioner's action in ordering the testing was discretionary. 

I believe, however, that the majority's view of the case 

misapprehends the precise nature of plaintiffs' claims under the 

FTCA. Plaintiffs do not argue that the initial decision to test 

was not a protected discretionary function. What plaintiffs do 

argue is that the decision to withdraw Chilean fruit from the 

market was proximately caused by the positive test results. 

Plaintiffs contend that the tests performed by the FDA's 

Philadelphia laboratory were negligently performed in that the 

procedures used conformed neither to the FDA's Regulatory 

Procedures Manual nor to good laboratory practices. Their 
complaints allege that, "as a result of the negligent analysis 

performed and reported by the Philadelphia laboratory, the FDA 

decided to take three actions: 1) refusing entry into the United 

States of all Chilean fruit; 2) forcing a market withdrawal of 

all Chilean fruit already in distribution channels; and 3) 

issuing a press release informing consumers to refrain from 

eating Chilean fruit." Joint Appendix at 169. Thus, plaintiffs 

do not challenge the FDA Commissioner's decisions to test fruit 

from Chile or, based upon properly performed testing, to take 

action to remove all Chilean fruit from the marketplace. 

 Because we are considering a motion to dismiss, we must 

accept as true all of the factual allegations in the complaints. 

Berkovitz, 486 U.S. at 540, 108 S. Ct. at 1961. For present 

purposes, there was no cyanide in the grapes, the FDA technicians 

were negligent in reaching the conclusion that there was cyanide 

contamination, and this negligence was the cause-in-fact and 

proximate cause of the damage to plaintiffs. Moreover, there is 

no contention here that the actions of the laboratory 

technicians, in testing the grapes, involved the permissible 

exercise of policy judgment. The technicians are not protected 

by the exception. 

 In Berkovitz, the Supreme Court stated that "the 

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." Id. at 

536, 108 S. Ct. at 1958-59. In this case, the plaintiffs allege 
that the Regulatory Procedures Manual established procedures to 

be followed for tests such as those performed at the Philadelphia 

lab and provided that any modification to those procedures be 

reduced to writing. Plaintiffs contend that the lab technicians 

violated the manual's specific instructions in failing to reserve 

portions of the two punctured grapes for confirmatory testing and 

in failing to make contemporaneous records of their observations. 

 The majority speculates that, after receiving the test 

results, the Commissioner was required to make a judgment about 

the conflicting findings of the Philadelphia and Cincinnati 

laboratories and to judge the significance of the Philadelphia 

laboratory's failure to follow established procedures. See page 

[typescript at 13-14]. These contentions, however, do not appear 

in the complaint. In the record before the district court on the 

motion to dismiss, such speculation would be inappropriate. 

Plaintiffs' allegations do, however, permit the conclusion that 

the decision to withdraw Chilean fruit from the market followed 

as a result of the negligent testing. 

 I find that such an allegation satisfies the pleading 

requirements of Berkovitz. Moreover, in Berkovitz, which 

concerned, inter alia, a claim that the Division of Biologic 

Standards (DBS) of the National Institutes of Health had 

wrongfully licensed the production of a polio vaccine, the Court 

made the following observation: 

 If petitioners' claim is that the DBS made a 

determination that [the vaccine] complied with 

regulatory standards, but that the determination was 

incorrect, ... the question turns on whether the manner 

and method of determining compliance with the safety 
standards at issue involve agency judgment of the kind 

protected by the discretionary function exception. 

Petitioners contend that the determination involves the 

application of objective scientific standards, ... 

whereas the Government asserts that the determination 

incorporates considerable "policy judgment" ... . In 

making these assertions, the parties have framed the 

issue appropriately; application of the discretionary 

function exception to the claim that the determination 

of compliance was incorrect hinges on whether the 

agency officials making that determination permissibly 

exercise policy choice. 

Id. at 544-45, 108 S. Ct. at 1963 (footnote omitted). As this 

passage makes clear, judgment guided purely by scientific or 

other objective principles does not involve discretion for 

purposes of the discretionary function exception. See also

Griffin v. United States, 500 F.2d 1059, 1066 (3d Cir. 1974) 

("Where the conduct of Government employees in implementing 

agency regulations requires only performance of scientific 

evaluation and not the formulation of policy, we do not believe 

that the conduct is immunized from judicial review as a 

'discretionary function.'"); Ayala v. United States, 980 F.2d 

1342, 1349-50 (10th Cir. 1992) ("We fail to see how the 

determination in this case can be labeled a policy decision. The 

choice was governed, as plaintiffs contend, by 'objective 

principles of electrical engineering.'"). 

 In Berkovitz, the specifications for licensing vaccine 

or releasing lots of vaccine had been incorporated in procedures 

and regulations. In the present case, the Commissioner did not 

have specific procedures established for handling fruit to 

determine if it had been contaminated. Nevertheless, the 

plaintiffs allege that the technicians' sole purpose in testing 
the suspect grapes was to determine whether they had been 

injected with cyanide. Appellants claim that the technicians 

were provided with precise, objective, scientific standards to 

use in the testing. Any decisions made in the course of testing 

concerning what portions of the grapes to test or how to conduct 

the tests should have been made solely with reference to these 

principles of science. I am not persuaded that this situation is 

significantly different from that in Berkovitz. 

 Social, economic, and political factors--those involved 

in the kinds of decisions Congress intended to shield from 

liability--had no place in the decision making process once the 

Commissioner decided to order testing. Consequently, if the 

district court were to adjudicate this case as it is alleged in 

the complaint by plaintiffs, the court would not be "secondguessing" a policy-based decision. Instead, by measuring the 

technicians' conduct against the procedures they were to have 

followed and principles of good laboratory practice, it would be 

undertaking the sort of inquiry that courts are called on to make 

all the time. 

 Moreover, I do not find it significant that the conduct 

challenged here was embedded within the clearly discretionary 

consideration of whether to test incoming fruit or to remove all 

Chilean fruit from the market. With respect to the decision to 

test fruit in the first place, I am guided by the body of law 

"holding that once the government makes a policy decision 

protected by the discretionary function exception, it must 

proceed with due care in the implementation of that decision." 
Caplan v. United States, 877 F.2d 1314, 1316 (6th Cir. 1989). 

This line of cases has grown out of the Supreme Court's decision 

in Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S. 

Ct. 122, 100 L. Ed. 48 (1955), which concerned an action against 

the Coast Guard for negligent operation of a lighthouse. The 

Court stated: 

 The Coast Guard need not undertake the lighthouse 

service. But once it exercised its discretion to 

operate a light on Chandeleur Island and engendered 

reliance on the guidance afforded by the light, it was 

obligated to use due care to make certain that the 

light was kept in good working order; and, if the light 

did become extinguished, then the Coast Guard was 

further obligated to use due care to discover this fact 

and to repair the light or give warning that it was not 

functioning. If the Coast Guard failed in its duty and 

damage was thereby caused to petitioners, the United 

States is liable under the Tort Claims Act. 

Id. at 69, 76 S. Ct. at 126-27. In this case, once the FDA 

exercised its discretion to test incoming Chilean fruit, it 

incurred the obligation to use due care in doing so. 

 Nor am I led to a different result by the fact that the 

alleged negligence in the laboratory was followed by a decision 

that was, at the very least, a "but for" cause of the harm to 

plaintiffs.2 I am not persuaded by the majority's contention 

 

2. While I suspect that plaintiffs may encounter 

difficulty in attempting to prove that the alleged negligence of 

the lab technicians, rather than the Commissioner's decision, was 

the proximate cause of their injuries, I cannot allow that 

perception to color my analysis here. Instead, I must accept the 

allegations in plaintiffs' complaints as true. Those allegations 
that the possibility of liability will have an undesirable effect 

on policymakers who find themselves in a position analogous to 

that of the FDA Commissioner in this case. Because there is an 

obligation to use due care in operating a lighthouse or licensing 

a polio vaccine or testing a grape for cyanide, decisions arising 

from the execution of that duty must be based upon the proper 

performance of that duty. The desired result is that the purely 

technical aspects of any such decision will be properly 

(..continued) 

are directed at harm allegedly caused to plaintiffs by the 

negligent testing. The district court may appropriately consider 

causation in subsequent stages of these proceedings, such as in 

deciding whether to grant a motion for summary judgment. See

Appley Brothers v. United States, 7 F.3d 720, 725 and n.2 (8th 

Cir. 1993) (Reversing district court's dismissal of suit, 

pursuant to discretionary function exception, on ground that 

plaintiffs based their claim on Department of Agriculture's 

negligent inspection of warehouse rather than on USDA's decision 

whether or not to revoke warehouse license; as to the issue of 

causation, the court of appeals held that the "question of 

whether appellants failed to state a cause of action was not 

before the district court, and is not an issue in this appeal."). 

I believe, however, that the factor of causation has no place in 

my consideration of whether the discretionary function exception 

applies to plaintiffs' allegations as they are presently 

expressed in the complaint. 
conducted. If there is a chilling effect, as the majority fears 

there will be, the chill must be directed to ensure the nonnegligent operation of the lighthouse or the non-negligent 

licensing of the polio vaccine or the non-negligent examination 

of the grapes. Just as the requirements for licensing a polio 

vaccine are discretionary but the steps to determine that a 

particular batch of vaccine is properly licensable are not 

discretionary, so too the removal from the market of cyanidecontaminated grapes may be discretionary but the proper 

performance of established tests to detect the contamination is 

not. 

 In effect, I see no reason to believe that a finding of 

liability against the government in this case would have 

consequences of a different nature or to a greater extent than a 

finding of liability against the government in either Indian 

Towing or Berkovitz. When an official makes a policy decision--

to build a lighthouse or to license a vaccine or to remove fruit 

from the market--the possibility of tort liability may factor 

into the analysis. However, the focus of that consideration 

should be the ability of the government to perform the tasks 

which follow from the decision to implement the action. If the 

government agency cannot reasonably expect to be able nonnegligently to operate a lighthouse or to license a vaccine or to 

test a grape for cyanide, this factor should be considered in 

instituting the line of action in the first place. If testing 

grapes for cyanide were difficult or the results of such testing 

not reliable, the Commissioner might better exercise his 
discretion by withdrawing grapes from the market without having 

them tested. However, once the decision was made to do the 

testing, the discretionary function exception should not protect 

the government from the consequences of the negligence of the 

laboratory technicians in performing their routine duties. 

 For the above reasons, I would reverse the dismissal of 

this case by the district court and would remand it for further 

proceedings.