MEMORANDUM OPINION
Before the Court is defendant’s Motion to Dismiss, or in the alternative, For Summary Judgment. Because we considered evidence outside of the pleadings and because discovery has ended in this civil action, we will treat defendant’s Motion to Dismiss as a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated in open court, and for the reasons stated below, the Motion is GRANTED.
BACKGROUND
Plaintiff Patton Electric Company (“Patton”) and the Rival Company (collectively “plaintiffs”) bring this action against the United States for contribution or indemnity under Virginia common law for sums *581 paid pursuant to a settlement of a lawsuit, Wallbank v. Patton et al., Case No. 2:96CV677 (E.D.Va.1996). In that case, Jason Wallbank’s parents sued Patton for negligence, alleging that in 1994 a Patton space heater, Model No. HF-12GT, was defective and, as result, caught fire and severely burned Wallbank, then an 11-year-old boy, while he was sleeping in his bed in his parents’ home. Patton and Wallbank settled the case.
The plaintiffs admit that, in the early 1980s, Patton sold space heaters to the General Services Administration (GSA) and that those space heaters had been defectively manufactured. Plaintiffs do not dispute that the model number of the space heater that burned Wallbank was part of that defective batch. Plaintiffs further allege that GSA negligently conducted, or failed to conduct, a recall of the defectively manufactured Patton portable electric space heaters, and that GSA’s negligent acts or omissions caused a defective Patton space heater to become located in Jason Wallbank’s bedroom. Plaintiffs do not allege how the heater came to be located in a private home, although Wall-bank’s step-father stated in deposition that he bought it at Home Quarters, a local retailer.
On August 27, 1998, plaintiffs filed the instant suit in the district court for the District of Columbia. On February 24, 1999, the district court transferred this action to this Court. Count 1 of the complaint seeks contribution and Count II seeks indemnification in the amount of $ 8,138,477.74 in damages, plus interest, attorney’s fees, and costs.
ANALYSIS
Defendant moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction on the grounds that this action is barred under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and applicable case law. The FTCA waives the federal government’s sovereign immunity for negligent or wrongful acts or omissions of any government employee while acting within the scope of his office or employment. See 28 U.S.C. §§ 1346(b), 2674. Although the statute waives sovereign immunity for certain claims of negligence, under § 2680(a), sovereign immunity is not waived for “[a]ny claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused.” Where a claim under the FTCA falls within the “discretionary function” exception, the court lacks subject matter jurisdiction to hear the suit. Therefore, the key issue before us is whether the decision to recall and manner of recalling space heaters constitutes a “discretionary function.”
The leading case on the “discretionary function” exception is
United States v. Gaubert,
1) whether it involves an element of judgment or choice by the governmental entity; and
2) whether it is an action or decision “based on considerations of public policy.”
Gaubert,
Rather than requiring a fact based inquiry into the circumstances surrounding the government actor’s exercise of a particular discretionary function ... the reviewing court ... [should] look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which we would expect inherently to be grounded in considerations of policy.... The focus of the inquiry is not on the agent’s subjective intent ... but on the nature of the actions taken and whether they are susceptible to policy analysis.
Baum,
Defendant relies on a host of Fourth Circuit cases, holding that the discretionary function exception applied and that the district court lacked subject matter jurisdiction to hear the case. In
Minns v. United States,
In
Goldstar (Panama) S.A. v. United States,
In
Baum v. United States,
In the instant case, plaintiffs have not alleged that there were specific federal or GSA protocols governing the recall of a defective product. According to the GSA, *583 officials were unaware of any federal regulations on how to conduct a safety alert or effectuate a recall. As GSA Quality Assurance Specialist Gaiy Hall stated, “Each ease was handled on its own. You just .... did the best you could with it.” GEX 2, pp. 69-70, Hall Depo.; see also Hall Depo. at pp. 10-13, 16-18, 26, 28, 33-36 (describing recall process.) Because there were no regulations governing the recall, the first prong of the discretionary function test is satisfied.
As for the second prong, plaintiffs acknowledged during oral argument that the decision whether to issue a recall would be discretionary. They maintain, however, that the decisions about how to implement the recall are not “based on considerations of public policy.” We disagree. Deciding when a product safety alert should be issued, how the alert should be communicated to federal customers, and how to identify, gather, and repair the defective products are essentially cost-benefit economic and political decisions. The government agency had to balance the danger of the product against the need to thoroughly investigate the allegations of defects to ensure the accuracy of the allegations, and the agency had to decide how best to deploy scarce government resources to cure the problem. Defendant also points out that the Fourth Circuit approach accords with other “failure to warn” cases from around the circuits.
See Shansky v. United States,
Plaintiffs respond that defendant’s decisions were in no way “based on considerations of public policy.” Plaintiffs argue that GSA’s function is akin to “a retailer ... purchasing produces] at wholesale prices and distributing them to Government agencies who would buy [them].” Hall Depo. at p. 75. GSA, in effect, “was operating for Government agencies the way that Hechinger’s or Home Depot would operate for personal customers.” Deposition of Bryce Frey, GSA’s Director of Quality Assurance Division at pp. 15-16. Plaintiffs argue that this “purchasing agent” role has no connection to public policy considerations. Moreover, plaintiffs distinguish some of the Fourth Circuit’s cases and rely, instead, on authority from other circuits, such as
Cope v. Scott,
Athough plaintiffs cite several cases supporting their position, the law in this circuit favors a finding that the GSA’s actions were discretionary. In our case, the GSA investigated the complaints about the heaters and determined they were justified. It reported the problems to a consumer testing organization, which undertook an evaluation of the problem. Pending the results of the investigation, the GSA placed a hold on further distribu *584 tion of the space heaters. The GSA sent a Memo Alert to GSA warehouses placing all space heaters on hold. On March 21, 1986, it issued a government-wide mass communication to all of its federal customers, called a “Safety Alert,” stating that the Patton heaters were defective and that customers should report the quantities on hand to the Office of Contract Management. The GSA then issued a supplemental safety alert on July 2, 1986, after the investigation revealed that the wiring was defective. GSA and Patton negotiated how to best repair or replace the heaters. Patton then instructed GSA customers who reported being in possession of the affected heaters to ship the heaters directly to Patton for repair. Civilian and military offices all over the country then began to ship the heaters to Patton for repair.
This course of conduct necessarily balanced economic and social welfare concerns. Although there was no consideration of major political issues or national defense matters, the GSA nevertheless had to weigh fairly substantial public health and safety concerns in determining how best to conduct the recall. The GSA considered many- options, rejecting some and accepting others. It was not guided by regulations, but rather by the discretion of its employees. Furthermore, plaintiffs’ contention that “Congress did not intend to immunize the government for these sorts of decisions” is not well supported. The typical FTCA case is a car crash with a government vehicle in which the government driver was negligent. Unlike the car crash case, the instant case actually involved governmental decisions. As such, and in light of the Fourth Circuit case law on this issue, we conclude that we lack subject matter jurisdiction to hear this lawsuit. Because we lack subject matter jurisdiction, we need not decide defendant’s argument that it is entitled to judgment as a matter of law on the tort claim.
CONCLUSION
Thus, for the foregoing reasons, defendant’s Motion for Summary Judgment will be GRANTED and judgment will be entered in favor of defendant. An appropriate Order will issue.
The Clerk is directed to forward copies of this Memorandum Opinion to counsel of record.
ORDER
For the reasons stated in open court and in the accompanying Memorandum Opinion, defendant’s Motion to Dismiss, or in the alternative, For Summary Judgment is GRANTED, and it is hereby
ORDERED that judgment be and is entered in defendant’s favor.
The Clerk is directed to enter judgment in favor of the United States of America pursuant to Fed.R.Civ.P. 58 and to forward copies of this Order to counsel of record.