## Facts

- Lorrin Whisnant worked for a private contractor that supplied seafood to a Navy commissary at Bangor Submarine Base in Silverdale, Washington.
- He made regular deliveries, supervised workers at a fish counter located in the commissary’s meat department, and spent several hours in the commissary about weekly to biweekly.
- The commissary was operated by the Defense Commissary Agency (DeCA); maintenance work was contracted to Johnson Controls, which performed safety inspections and issued reports.
- By June 1997, inspection reports documented mold accumulation in the meat department; over the next several years, customers and employees reportedly experienced serious symptoms consistent with exposure.
- In October 2000, testing revealed toxic, carcinogenic molds in the meat department; the meat market closed in November 2000 and reopened in December 2000.
- Whisnant alleged exposure caused pneumonia and other ongoing health problems, and he sought damages under the Federal Tort Claims Act (FTCA) for negligent failure to maintain safe premises and protect against known health hazards.
- The district court dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1), holding the claim barred by the FTCA discretionary function exception.

## Issues

1. Whether the FTCA discretionary function exception bars an action alleging the government negligently failed to remediate known toxic mold and maintain safe conditions in a commissary meat department.
2. Whether alleged failures in inspection, remediation, and day-to-day maintenance constitute policy-based discretionary judgments or unprotected operational negligence.

## Decision

- The Ninth Circuit reversed the Rule 12(b)(1) dismissal and remanded.
- The court held the government did not establish that the challenged conduct was the type of policy-based judgment protected by the discretionary function exception.
- Even assuming discretion existed in how inspections and remediation were performed, the alleged failure to eliminate known toxic hazards and keep the premises safe was not susceptible to social, economic, or political policy analysis.

## Legal Principles

- The FTCA waives sovereign immunity for torts where the United States would be liable as a private person under the law of the place of the act or omission, subject to statutory exceptions.
- Under the discretionary function exception, courts apply a two-part inquiry: (1) whether the conduct involved judgment or choice (no specific mandatory directive), and (2) whether that judgment is the kind grounded in social, economic, or political policy that the exception protects.
- Routine maintenance and implementation-level safety failures, including failure to address known hazards, are generally not protected merely because the government had discretion in execution.
- The government bears the burden of proving the discretionary function exception applies to defeat FTCA jurisdiction.

## Conclusion

The Ninth Circuit held that allegations of prolonged failure to remediate known toxic mold and maintain safe premises at a government-run commissary described operational negligence rather than protected policy decisionmaking, so the FTCA discretionary function exception did not bar jurisdiction and the case was returned for proceedings on the merits.


Whisnant v. United States, 400 F.3d 1177 (9th Cir. 2005)