This exception, like all waivers of sovereign immunity, is to be construed strictly in favor of the sovereign. See Sea-Land Service, Inc. v. U.S.A., 919 F.2d 888, 889 (3d Cir. 1990).
After Gercey, every circuit to consider the question likewise concluded that an implied discretionary function exception should be read in the SIAA. See Tew v. United States, 86 F.3d 1003, 1005 (10th Cir. 1996); Earles v. United States, 935 F.2d 1028, 1032 (9th Cir. 1991); Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 893 (3d Cir. 1990); Robinson v. United States (In re Joint E. S. Dists. Asbestos Litig.), 891 F.2d 31, 34-35 (2d Cir. 1989); Williams v. United States, 747 F.2d 700 (11th Cir. 1984) (per curiam), aff'g Williams ex rel. Sharpley v. United States, 581 F.Supp. 847 (S.D.Ga. 1983); Gemp v. United States, 684 F.2d 404, 408 (6th Cir. 1982); Canadian Transp. Co. v. United States, 663 F.2d 1081, 1085 (D.C. Cir. 1980); Bearce v. United States, 614 F.2d 556, 560 (7th Cir. 1980). Even the Fifth Circuit, describing the discussion of the issue in De Bardeleben as non-binding dictum, has concluded that the SIAA includes a discretionary function exception.
As we noted in another context, when construing a waiver of sovereign immunity we must remember that "the process of governing almost always helps some and hurts others." Sea-Land Service, Inc. v. United States, 919 F.2d 888, 890 (3d Cir. 1990) (quoting 5 K. Davis, Administrative Law Treatise § 27.11 (1983)), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991). To permit courts to extract money damages from the government for its regulatory activities "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."
"[T]he government can be negligent, but nevertheless immune from tort liability." See Sea-Land Service, Inc. v. United States, 919 F.2d 888, 892 (3rd Cir. 1990); see also Nyazie v. Kennedy, Civ.A. No. 97-0120, 1998 WL 32601. at *4 (E.D.Pa. Jan. 27, 1998) ("Considerations of' negligence are irrelevant to this inquiry."). Hence, the issue of whether the staircase was improperly maintained (i.e., the slippery staircase, inadequate lighting, and faulty bannister) is irrelevant. Indeed, the court refuses and, in fact, cannot examine the NPS's discretionary choice to preserve the staircase in its original and allegedly negligent condition because the NPS's choice, by itself, falls within the discretionary function exception.
Id. Nor need the court examine the record for evidence of a conscious policy decision. Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 892 (3d Cir. 1990). Rather, in determining whether the challenged action involves the permissible exercise of policy judgment, the court must look to the nature of the decision and whether it is a matter "susceptible to policy analysis."
This exception has been held to bar actions based on the federal government's alleged negligence in using asbestos on ships, failing to warn of its dangers, and promulgating an inadequate policy or having no policy for asbestos safety in shipyards. ( Sea-Land Service, Inc. v. U.S. (3d Cir. 1990) 919 F.2d 888, 892-893; Gordon v. Lykes Bros. S.S. Co., Inc. (5th Cir. 1988) 835 F.2d 96, 99-100; Shuman v. U.S. (1st Cir. 1985) 765 F.2d 283, 290.) Plant argues the Navy's immunity is essentially one from suit and does not mean the service owes no duty of care as to its enlisted personnel and civilian employees and thus cannot be characterized as a "tortfeasor" for purposes of Proposition 51. Plaintiffs contend sovereign immunity is based on the historical adage "the King can do no wrong" and therefore the Navy's actions cannot be "wrongful" and thus no "fault" can be allocated to the service.
This exception has been held to bar actions based on the federal governments alleged negligence in using asbestos on ships, failing to warn of its dangers, and promulgating an inadequate policy or having no policy for asbestos safety in shipyards. (Sea-Land Service, Inc. v. United States (3rd Cir. 1999) 919 F.2d 888, 892-893; Gordon v. Lykes Bros. S.S. Co., Inc. (5th Cir. 1988) 835 F.2d 96, 99-100; Shuman v. United States (1st Cir. 1985) 765 F.2d 283, 290.) Plant argues the Navys immunity is essentially one from suit and does not mean the service owes no duty of care as to its enlisted personnel and civilian employees and thus cannot be characterized as a "tortfeasor" for purposes of Proposition 51. Plaintiffs contend sovereign immunity is based on the historical adage "the King can do no wrong" and therefore the Navys actions cannot be "wrongful" and thus no "fault" can be allocated to the service.
These are the kind of judgments involving public policy decisions that Congress sought to shield. Compare Gotha, 115 F.3d at 181 (Navy's failure to provide a proper stairway, railing and lighting at a Navy facility was not subject to the discretionary function exception because it involved a "mundane, administrative, garden-variety, housekeeping problem" far removed from the Navy's mission) with Sea-Land Serv., Inc. v. U.S.A., 919 F.2d 888, 892 (3d Cir. 1990) (government's decision to use war ships containing asbestos fell within discretionary function exception because it involved questions of resource allocation and effective utilization of the nation's naval fleet). Therefore, the discretionary function exception applies, amendment would have been futile, and the District Court did not abuse its discretion in denying Abuhouran leave to amend.
The "focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by the statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325, 111 S.Ct. at 1275; see also Mitchell, 225 F.3d at 363-64; Cestonaro, 211 F.3d at 753; Sea-Land Serv. Inc. v. United States, 919 F.2d 888, 892 (3d Cir. 1990). B. The Challenged Government Conduct
Every other circuit to consider the question has agreed with the government. See Mid-South Holding Co. v. United States, 225 F.3d 1201, 1204 (11th Cir. 2000); Good v. Ohio Edison Co., 149 F.3d 413, 418-19 (6th Cir. 1998); Tew v. United States, 86 F.3d 1003, 1005 (10th Cir. 1996); Baldassaro v. United States, 64 F.3d 206, 208 (5th Cir. 1995); Cassens v. St. Louis River Cruise Lines, Inc., 44 F.3d 508, 511 (7th Cir. 1995); Earles v. United States, 935 F.2d 1028, 1032 (9th Cir. 1991); Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 891-93 (3d Cir. 1990); Robinson v. United States (In re Joint E. S. Dists. AsbestosLitig.), 891 F.2d 31, 34-35 (2d Cir. 1989); Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976). These courts have typically concluded that principles of separation of powers require that the discretionary function be read into the SIAA: