WHISNANT V. UNITED STATES 400 F.3d 1177 (9th Cir. 2005) CASE BRIEF

WHISNANT V. UNITED STATES

400 F.3d 1177 (9th Cir. 2005)

NATURE OF THE CASE: Whisnant (P) appeals the district court's dismissal of his Federal Tort Claims Act suit against the United States (D) for negligence in its operation of a commissary on a naval base.

FACTS: P worked for Northern which had a contract to provide seafood products to the commissary at the United States Navy's Bangor Submarine Base. P made weekly product deliveries to the Bangor Commissary and oversaw Northern employees who staffed the fish counter. P had to come to the commissary for a three-to four-hour period at least once every week to two weeks. Regulations require periodic safety inspections, but it is up to the government employees to decide how and when to conduct the inspections. The base contracts out its maintenance work to Johnson Controls. In June 1997, safety inspection reports by Johnson Controls showed the accumulation of mold in the meat department of the commissary. Over the course of the next three years, several customers and employees of the commissary became ill; symptoms included seizures, nausea and dizziness, irritation to eyes and blurred vision, and feeling 'tingly' and short of breath. Tests conducted in October 2000 revealed that toxic, carcinogenic molds were colonizing the meat department. The government closed the meat market on November 1, 2000; it remained closed until December of that year. As a result of his exposure to the mold prior to the closure of the meat department, P contracted pneumonia, and experienced headaches, swollen glands, sore throat, persistent cough, and other health problems. P sued D under the FTCA. P moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, on the ground that Ps suit was barred by the discretionary function exception to the FTCA, 28 U.S.C. 2680(a). Applying the Supreme Court's two-part test for the applicability of the discretionary function exception, the court found D's actions to have been discretionary because the regulations did not prescribe a specific course of action with respect either to mold specifically or inspections generally, and because the D's choice in selecting an independent contractor was a decision grounded in policy considerations. The motion was granted. P appealed.

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