Cheryl L. Duff, Appellant, v. United States of America, Acting by and Through the Unitedstates Air Force, Appellee, 999 F.2d 1280 (8th Cir. 1993)

Cheryl Duff sued the United States, claiming the government, as her landlord at the Minot Air Force Base in North Dakota, breached its duty to warn her of the dangers from the fumes caused by government contractors varnishing the floors in an adjacent apartment with an industrial polyurethane.¹  The district court²  dismissed Duff's suit on the basis that it lacked subject matter jurisdiction over the action. 829 F. Supp. 299. The trial judge determined that the delegation of safety responsibilities to a government contractor fell within the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, and thus concluded that the United States maintained its sovereign immunity. We affirm.

The FTCA waives the United States's sovereign immunity for negligent acts of its employees, 28 U.S.C. §§ 1346(b), 2671, but only for those functions that are not discretionary in nature, 28 U.S.C. § 2680(a). In Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988), the Supreme Court laid out a test for determining when governmental acts are discretionary. It ruled the discretionary function exception applies when the government action in question involves "a matter of choice for the acting employee"³  and the choice is "based on considerations of public policy." Id. at 536-37, 108 S. Ct. at 1959; see also United States v. Gaubert, 499 U.S. 315, ---- - ----, 111 S. Ct. 1267, 1273-74, 113 L. Ed. 2d 335 (1991) (same).

Duff argues the government's failure to warn her of the nearby use of a noxious varnish is not "the kind [of judgment] that the discretionary function exception was designed to shield," Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1959, because such a decision does not implicate any social, economic or political considerations.⁴  Thus, she likens the failure to warn to the Supreme Court's comment in Gaubert that " [a]lthough driving [a car] requires the constant exercise of discretion," the exception would not apply to a government official's negligent, on-the job traffic accident because "decisions in exercising that discretion can hardly be said to be grounded in regulatory policy." Gaubert, 499 U.S. at ---- n. 7, 111 S. Ct. at 1275 n. 7. We think Duff's argument misses the mark. The exercise of discretion here occurred when the government decided to delegate to its contractor responsibility for making safety judgements. As the government observes in its brief, the decision to delegate allowed the Air Force to "tak [e] advantage of a contractor's special expertise, thereby creating the opportunity for a safer, more efficient operation." This view is bolstered by our opinion in Layton v. United States, 984 F.2d 1496, 1501-02 (8th Cir. 1993), in which we held that the decision to select a particular contractor falls within the exception. See also Madison v. United States, 679 F.2d 736, 739 (8th Cir. 1982) (same).

Because the government's decision to delegate responsibility for safety is covered by the exception, we will find jurisdiction only if the government has also retained and exercised control over the project's safety. McMichael v. United States, 751 F.2d 303, 307 (8th Cir. 1985); see also Layton, 984 F.2d at 1496.⁵  Duff argues that as her landlord, the Air Force retained a duty to provide a safe living environment. She points to the government's continued responsibility for day-to-day management of residential maintenance on the base. These assertions are in direct conflict with the trial court's factual findings that the government retained "no day-to-day supervisory responsibility" over the contractor, Kato Corporation, and that the Air Force and Kato agreed the contractor should "take all reasonable steps and precautions to prevent accidents." These findings are not clearly erroneous. The government's relinquishment of control here stands in contrast to the high level of control the government retained in McMichael, where the government maintained a thorough program of on-site quality control. See 751 F.2d at 307. As we stated in Layton, 984 F.2d at 1502-03, a government agency's delegation of "primary responsibility for safety to its contractors" is protected by the discretionary function exception. See also United States v. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 819-20, 104 S. Ct. 2755, 2767, 81 L. Ed. 2d 660 (1984) (stating, in the context of regulatory delegation to airplane manufacturers, that " [w]hen an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.").⁶  We thus hold the district court correctly concluded that the Air Force retained insufficient control over safety operations to warrant reversal.

For the foregoing reasons, the judgment of the district court is affirmed.