At page 1446 Burden of proving waiver of sovereign immunity26 citing cases“A party bringing a cause of action 2 against the federal government bears the burden of demonstrating an unequivocal waiver of 3 immunity”
- Hayes, No. 3:25-cv-05773 (W.D. Wash. Sept. 4, 2026).“As the 13 party asserting a claim against the United States, [the plaintiff] has the burden of ‘demonstrating 14 unequivocal waiver of immunity.’” United States v. Park Place Associates, Ltd., 563 F.3d 907 , 15 924 (9th Cir. 2009) (quotin…
- Saiz, No. 3:24-cv-00905 (S.D. Cal. Aug. 28, 2026).FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, 14 sovereign immunity shields the Federal Government and its agencies from suit.”); Jachetta 15 v. United States, 653 F.3d 898, 903 (9th Cir. 2011) (“It is axiomatic that the Unite…
- McCaster v. United States, No. 1:25-cv-00550 (E.D. Cal. Aug. 13, 2025).A waiver 25 of sovereign immunity is strictly construed in favor of the government, and a plaintiff bears the 26 burden to show that the government has waived its immunity as to the specific claim asserted. 27 Cunningham v. United States,…
- Bond v. Liberty Mut. Ins., No. 9:24-cv-00059 (D. Mont. Jan. 30, 2025).The party asserting a claim against the federal government or its agencies has the burden of “demonstrating an unequivocal waiver of immunity.” United States v. Park Place Assocs., Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningha…
- Reid v. United States Dep't of Interior, No. 2:22-cv-00068 (D. Ariz. May 19, 2023).Cunningham v. United States, 786 F.2d 1445, 1446 (9th 25 Cir. 1986).
- Hin v. U.S. Dept. of Just. U.S. Marshals, No. 2:21-cv-00393 (E.D. Cal. Jan. 3, 2023).“A party bringing a cause of action 2 against the federal government bears the burden of demonstrating an unequivocal waiver of 3 immunity”
- (PS) Pereira v. United States, No. 2:22-cv-00073 (E.D. Cal. July 6, 2022).In order to assert a claim against the United States, 3 the claimant “has the burden of ‘demonstrating an unequivocal waiver of immunity.’” United 4 States v. Park Place Assocs., Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningham…
- (PS) Pereira v. United States, No. 2:22-cv-00073 (E.D. Cal. Apr. 12, 2022).In order to assert a claim against the United States, 8 the claimant “has the burden of ‘demonstrating an unequivocal waiver of immunity.’” United 9 States v. Park Place Assocs., Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningham…
- (PS) Pereira v. United States, No. 2:22-cv-00073 (E.D. Cal. Feb. 3, 2022).In order to assert a claim against the United States, the claimant 15 “has the burden of ‘demonstrating an unequivocal waiver of immunity.’” United States v. Park 16 Place Assocs., Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningha…
- Kelly v. United States, No. 3:21-cv-00367 (S.D. Cal. Aug. 5, 2021).“Congressional waiver of sovereign immunity is a prerequisite to any suit brought 13 against the United States . . . .” Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974). 14 “A waiver of the sovereign immunity of the United State…
Show 15 more citing cases
- Fowler v. T-Mobile USA Inc., No. 2:20-cv-01516 (D. Ariz. June 16, 2021).“unequivocal waiver of immunity”
- (PS) Halousek v. United States Postal Serv., No. 2:19-cv-00588 (E.D. Cal. Apr. 30, 2020).A waiver of sovereign 28 immunity is strictly construed in favor of the government, and the plaintiff bears the burden to 1 show that the United States has waived its immunity as to the specific claim asserted. 2 Cunningham v. United State…
- Navajo Nation v. United States Dep't of the Interior, 34 F. Supp. 3d 1019 (D. Ariz. 2014).publishedA party bringing a cause of action against the federal government bears the burden of demonstrating an unequivocal waiver of immunity.” Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir.1986) (citations omitted).
- Cole v. Fed. Bureau of Investigations, 719 F. Supp. 2d 1229 (D. Mont. 2010).publishedThe party asserting a claim against the United States has the burden of “demonstrating an unequivocal waiver of immunity.” Id. (quoting Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir.1986)).
- Mesa Grande Band of Mission Indians v. Salazar, 657 F. Supp. 2d 1169 (S.D. Cal. 2009).publishedThe party asserting the claim against the United States has the burden of “demonstrating an unequivocal waiver of immunity.” United States v. Park Place Assocs., Ltd., 563 F.3d 907, 924 (9th Cir.2009) (quoting Cunningham v. United States,…
- United States v. Park Place Ass'n, No. 05-56235 (9th Cir. Apr. 22, 2009).published“demonstrating an unequivocal waiver of immunity”
- United States v. Park Place Assocs., Ltd., 563 F.3d 907 (9th Cir. 2009).published“demonstrating an unequivocal waiver of immunity”
- Dunn & Black, P.S. v. United States, 492 F.3d 1084 (9th Cir. 2007).published Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir.1986).
- Camozzi v. Roland/Miller & Hope Consulting Grp., 866 F.2d 287 (9th Cir. 1989).publishedWest v. FAA, 830 F.2d 1044 , 1047-49 (9th Cir.1987); Atmospheric Testing, 820 F.2d at 992-99 ; Cunningham v. United States, 786 F.2d 1445, 1446-47 (9th Cir.1986); Begay v. United States, 768 F.2d 1059, 1064-66 (9th Cir.1985); and Natural G…
- Nos. 87-2554, 87-2579, 866 F.2d 287 (9th Cir. 1989).publishedWright v. United States, 719 F.2d 1032, 1034-35 (9th Cir.1983) 8 See ARA Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir.1987) (quoting Drake Towing Co., Inc. v. Meisner Marine Construction Co., 765 F.2d 1060, 1064 (11th Cir.…
- Ramon Garcia Maria Morfin Garcia v. United States, 826 F.2d 806 (9th Cir. 1987).published Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir.1986).
- Feindt v. United States, No. 1:22-cv-00397 (D. Haw. Feb. 14, 2024).(The nature of the conduct involved governs whether the so-called discretionary function exception applies.” (citation omitted))
- (PC) Donaldson v. Garland, No. 2:21-cv-01178 (E.D. Cal. Oct. 11, 2022).(party seeking redress bears the burden to show that the United States has waived its 26 immunity as to the specific claim asserted)
- (PS) Ferreria v. United States Postal Serv., No. 2:21-cv-00264 (E.D. Cal. Mar. 30, 2021).See 28 Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986). 1 Broadly speaking, the United States has waived its sovereign immunity in civil actions 2 under the FTCA “for injury or loss of property, or personal injury or death…
- Safeco Ins. Co. of Am. v. Nelson, 468 F. Supp. 3d 1291 (S.D. Cal. 2020).publishedSee Dunn & Black P.S. v. 23 United States, 492 F.3d 1084, 1088 (9th Cir. 2007) (citing Cunningham v. United States, 24 786 F.2d 1445, 1446 (9th Cir. 1986)).
At page 1447 Protecting agency inspector actions under discretionary function exception14 citing casesholding that “acts of OSHA inspectors in executing agency directives” were within discretionary function exception
- Villanueva v. United States, 708 F. Supp. 2d 960 (D. Ariz. 2009).publishedLouis River Cruise Lines, Inc., 44 F.3d 508, 513-16 (7th Cir.1995); Cunningham v. United States, 786 F.2d 1445, 1447 (9th Cir.1986); Hylin v. United States, 755 F.2d 551, 553 (7th Cir.1985); Russell v. United States, 763 F.2d 786, 787 (10t…
- Thomas C. Pate v. Oakwood Mobile Homes, Inc., 374 F.3d 1081 (11th Cir. 2004).published(noting as part of discretionary function analysis that under OSH Act, “[t]he employer has the statutory responsibility for maintaining a safe workplace)
- Gatx/airlog Co. Gatx Capital Corp. Airlog Mgmt. Corp. Frederick L. Hatton & Sanford P. Burnstein v. United States, 286 F.3d 1168 (9th Cir. 2002).publishedFinally, in West v. FAA, 830 F.2d 1044 , 1048-49 (9th Cir.1987), we held that the FAA’s adoption of airport departure procedures fell within the discretionary function exception and that its “judgment in deciding what tests were necessary…
- Jane Largent Alfrey, Pers. Rep. of the Est. of Thomas Martin Alfrey v. United States of Am., Jane Largent Alfrey, Pers. Rep. of the Est. of Thomas Martin Alfrey v. Joseph H. Crabtree, Warden Fci Sheridan Lt. Kyle Olson, & Lt. Steven Sales, B. Huerte, R. Kline, Jeffrey C. Sullivan, All Employed at Fci Sheridan, & John Doe Nos. 1-3, Also Employed at Fci Sheridan, All Sued Individually & as Acting as Fed. Officers, 276 F.3d 557 (9th Cir. 2002).publishedCunningham v. United States, 786 F.2d 1445, 1447 (9th Cir. 1986) ("The purpose of the [discretionary function] exception is to prevent judicial second-guessing of administrative decisionmaking based on social, economic, and political polic…
- Alfrey v. United States, 276 F.3d 557 (9th Cir. 2002).publishedCunningham v. United States, 786 F.2d 1445, 1447 (9th Cir.1986) (“The purpose of the [discretionary function] exception is to prevent judicial second-guessing of administrative deci-sionmaking based on social, economic, and political polic…
- Gatx/airlog Co. v. United States, 234 F.3d 1089 (9th Cir. 2000).publishedFinally, in West v. FAA, 830 F.2d 1044 , 1048-49 (9th Cir.1987), we held that the FAA’s adoption of airport departure procedures fell within the discretionary function exception and that its “judgment in deciding what tests were necessary…
- Indus. Risk Insurers v. New Orleans Pub. Serv., Inc., 735 F. Supp. 200 (E.D. La. 1990).publishedArizona Maintenance Co. v. United States, 864 F.2d 1497, 1500-01 (9th Cir. 1989) (citing as examples Begay v. United States, 768 F.2d 1059 , 1062 n. 2 (9th Cir. 1985), cert. denied, 485 U.S. 935 , 108 S.Ct. 1110 , 99 L.Ed.2d 271 (1988); Ch…
- Arizona Maint. Co. v. United States, 864 F.2d 1497 (9th Cir. 1989).published(both OSHA’s decisions establishing safety standards and its allegedly negligent monitoring of a plant under those standards were discretionary decisions shielded from liability)
- Cordeiro v. Brock, 698 F. Supp. 373 (D. Mass. 1988).publishedCunningham v. United States, 786 F.2d 1445, 1447 (9th Cir.1986).
- K.W. Thompson Tool Co. v. United States, 836 F.2d 721 (1st Cir. 1988).published“[t]he acts of OSHA inspectors in executing agency directives are protected by the discretionary function exception”
Show 4 more citing cases
- Fed. Deposit Ins. Corp. v. Carter, 701 F. Supp. 730 (C.D. Cal. 1987).publishedEmpresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 820 , 104 S.Ct. 2755, 2767 , 81 L.Ed.2d 660 (1984) (airline inspections) and Cunningham v. United States, 786 F.2d 1445, 1447 (9th Cir.1986) (OSHA inspections), reinforc…
- In re All Maine Asbestos Litig., 651 F. Supp. 913 (D. Me. 1986).published (holding that “acts of OSHA inspectors in executing agency directives” were within discretionary function exception)
- West v. Fed. Aviation Admin., 830 F.2d 1044 (9th Cir. 1987).published(when Congress leaves the establishment and enforcement of safety standards to an agency, it intends an exercise of that discretion to fall within the discretionary function exception)
- Naomi Ruth West v. Fed. Aviation Admin. United States of Am., Defendants- Dulcy Steinlauf, as Special Adm'x of the Est. of James Steinlauf Dulcy Steinlauf, Individually & Malcolm Steinlauf, Individually, Plaintiffs v. United States, 830 F.2d 1044 (9th Cir. 1987).published(when Congress leaves the establishment and enforcement of safety standards to an agency, it intends an exercise of that discretion to fall within the discretionary function exception)
At page 1445 “demonstrating an unequivocal waiver of immunity.”0 citing cases
Other citing cases
- Markes v. United States, 704 F. Supp. 337 (N.D.N.Y. 1988).published
- In re Consol. United States Atmospheric Testing Litig., Christina Konizeski v. Livermore Labs, Alice P. Broudy v. United States, 820 F.2d 982 (9th Cir. 1987).published
v.
United States
Georgia Cunningham appeals from a district court’s dismissal of her cause of action brought under the Federal Torts Claims Act, 28 U.S.C. § 2674 (“FTCA”). We affirm.
FACTS AND PROCEEDINGS BELOW
Mitchell Cunningham was an employee at the Stauffer Chemical Company Phosphate Plant (“Stauffer Plant") in Silverbow County, Montana. On August 14, 1982 Cunningham was sprayed with raw phosphorous. He died the following day.
The Stauffer Plant is subject to inspection and regulation by the Occupational Safety and Health Administration (“OSHA”), Department of Labor. OSHA conducted two safety and ten health inspections of the Stauffer Plant between 1973 and 1982. The Stauffer Plant received no OSHA citations prior to 1982. Thereafter, OSHA conducted a post-accident inspection and cited the Stauffer Plant for several deficiencies.
Georgia Cunningham brought a cause of action against the United States under the FTCA, contending OSHA safety inspectors failed to exercise reasonable care in performing their inspections of the Stauffer Plant. She argued the deficiencies found in the post-accident inspection would have been identified and remedied by the plant prior to the fatal accident if OSHA had conducted its prior inspections properly.
The district court, 625 F.Supp. 1016, granted the government’s motion to dismiss on the grounds that the action was barred by the discretionary function exception. Cunningham appeals.
DISCUSSION
A party may bring a cause of action against the United States only to the extent it has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). A party bringing a cause of action against the federal government bears the burden of demonstrating an unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984).
A court lacks jurisdiction over a cause of action if the federal government’s alleged negligence is “based on 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.” 28 U.S.C. § 2680(a). See Dalehite v. United States, 346 U.S. 15, 33, 73 S.Ct. 956, 966, 97 L.Ed. 1427 (1953).
The nature of the conduct involved governs whether the so-called discretionary function exception applies. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (“Varig Airlines"), 467 U.S. 797, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660 (1984). “[T]he basic inquiry ... is whether the challenged acts of a government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liabil[*1447]ity.” Id. The purpose of the exception is to prevent judicial second-guessing of administrative decisionmaking based on social, economic, and political policy. Id. 104 S.Ct. at 2765. “ ‘[I]f judicial review would encroach upon this type of balancing done by an agency, then the exception would apply.’ ” Chamberlin v. Isen, 779 F.2d 522, 523 (9th Cir.1985) (quoting Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985)).
Georgia Cunningham claims OSHA was negligent in conducting its inspections. OSHA safety inspections are similar to those discussed in Varig Airlines. In Varig Airlines, the Civil Aeronautics Agency allegedly negligently inspected and certified an aircraft that did not meet minimum fire safety standards. 104 S.Ct. at 2758. The Supreme Court found that a negligent failure to inspect falls within the discretionary function exception. Varig Airlines, 104 S.Ct. at 2768. The Court emphasized that the manufacturer has “the duty to ensure that an aircraft conforms to FAA safety regulations ... while the FAA retains the responsibility for policing compliance.” Id. at 2768. The same is true for companies operating under the directives of OSHA. The employer has the statutory responsibility for maintaining a safe workplace. 29 U.S.C. § 654(a).
This court, in Natural Gas Pipeline Co. v. United States, 742 F.2d 502, 504-05 (9th Cir.1984) found that FAA’s alleged failure to discover aircraft defects and to adequately monitor aircraft safety was protected by the discretionary function exception. The same is true in this case for OSHA’s alleged failure to adequately monitor the Stauffer Plant. Both OSHA’s decision to review the employer’s compliance with safety standards and its actual inspections of the Stauffer Plant are discretionary functions. Congress has left to OSHA’s discretion the establishment of safety standards and the enforcement of those standards. “When 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.” Varig Airlines, 104 S.Ct. at 2768. See also Be-gay, 768 F.2d at 1064 (decision whether to implement safety regulations in uranium mines is within Varig’s coverage).
The acts of OSHA inspectors in executing agency directives are protected by the discretionary function exception. See Varig Airlines, 104 S.Ct. at 2768; Dalehite, 346 U.S. at 36 (“acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable”); see also Begay, 768 F.2d at 1064.
AFFIRMED.