149 F.3d 918 (9th Cir. 1998), 97-15710, Gager v. United States

Docket Nº:97-15710.
Citation:149 F.3d 918
Party Name:D.A.R. 7038 Kenneth GAGER; Deanna Gager, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:June 26, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 918

149 F.3d 918 (9th Cir. 1998)

D.A.R. 7038

Kenneth GAGER; Deanna Gager, Plaintiffs-Appellants,


UNITED STATES of America, Defendant-Appellee.

No. 97-15710.

United States Court of Appeals, Ninth Circuit

June 26, 1998

Argued and Submitted Feb. 12, 1998.

Page 919

Oscar B. Goodman, Las Vegas, NV, for plaintiffs-appellants.

E. Roy Hawkens, Assistant United States Attorney, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-96-00782-PMP.

Before: D.W. NELSON, REINHARDT, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Kenneth and Deanna Gager sued the United States under the Federal Tort Claims Act ("FTCA") after the United States Postal Service ("Postal Service") unwittingly delivered a mail bomb to them. In their suit, the Gagers alleged negligent training and supervision of Postal Service employees. The district court dismissed the action for lack of subject matter jurisdiction. Specifically, the court held that both the postal matter exception, 28 U.S.C. § 2680(b), and the discretionary function exception, 28 U.S.C. § 2680(a), of the FTCA applied. We have jurisdiction under 28 U.S.C. § 1291, and we hold that the discretionary function exception bars the Gagers' claim. Consequently, we do not address the applicability of the postal matter exception.


On or about September 8, 1993, the United States Postal Service delivered a package addressed to Kenneth Gager, a Nevada Highway Patrol Trooper, to his residence in Minden, Nevada. The package weighed several pounds and had been heavily taped. A partial return address indicated that it was sent from Carson City, Nevada.

The package had been sent by an individual whom Mr. Gager had arrested and testified against in the performance of his law enforcement responsibilities. Unfortunately,

Page 920

the package was nothing more than a disguised bomb. The bomb exploded as Mr. Gager opened the package, causing the Gagers serious injuries and damage to their home.

At the time of this mail bombing, the Postal Service did not require nationwide training in bomb detection. The personnel at the Minden Postal facility--including the carrier who delivered Mr. Gager's package--had not received any such training prior to this incident. Minden Postmaster Jose Maes instituted a training program shortly after the Gager mail bomb.

On August 29, 1996, the Gagers sued the United States under the FTCA, 28 U.S.C. §§ 1346(b), 2671-80, for negligence and loss of consortium. Specifically, the Gagers alleged that the Postal Service negligently failed to train and supervise its employees in bomb detection and disposal.

The United States moved to dismiss for lack of subject matter jurisdiction. The government claimed immunity from suit under two exceptions to the FTCA's waiver of sovereign immunity for tort claims against the United States: the postal matter exception, 28 U.S.C. § 2680(b), and the discretionary function exception, 28 U.S.C. § 2680(a). The district court granted the government's motion and held that both exceptions applied. See Gager v. United States, 958 F.Supp. 494 (D.Nev.1997). In addition, the court rejected the Gagers' request to conduct limited discovery on whether the Postal Service had any policies or procedures requiring the training of Postal employees in bomb detection. See id. at 497. Following the dismissal of their claim, the Gagers timely appealed.


We review de novo the district court's determination of subject matter jurisdiction. See Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir.1996). We review the district court's discovery rulings for an abuse of discretion. See id. at 1436.


I. The Discretionary Function Exception

The FTCA, 28 U.S.C. §§ 1346(b), 2671-80, waives the government's sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment. See Blackburn, 100 F.3d at 1429. The discretionary function exception of the FTCA is a statutory reservation of sovereign immunity for a particular class of tort claims. The exception retains immunity when the claim is "based upon 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).

We follow a two-step test to assess the applicability of the discretionary function exception. First, "[t]he exception covers only acts that are discretionary in nature, acts that 'involv[e] an element of judgment or choice.' " United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). This requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy requires a particular course of action. See id. at 322, 111 S.Ct. 1267. Second, the discretion exercised must be " 'of the kind that the discretionary function exception was designed to shield.' " Id. at 321-22, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). The judgments and choices entitled to protection are those "grounded in social, economic, and political policy." United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

A. Judgment or Choice

The Gagers challenge the Postal Service's decision not to train and supervise Minden Postal employees in bomb detection. The Gagers concede that in the absence of any statute, regulation, or policy requiring such training, that decision plainly involves judgment or choice.

The Gagers allege, however, that there was an established policy of training and supervision in bomb detection that eliminated

Page 921

any possible choice involved in the Postal Service's decision. In support of this argument, the Gagers rely on the affidavit of Beth Baca, a Postal Service employee in Las Vegas. She stated that the Postal Service briefly instituted a training program in mail bomb detection following a mail bomb incident in Las Vegas in 1989 or 1990. We believe that this evidence is insufficient to establish that there was a general Postal Service policy or regulation requiring training and...

To continue reading