Mitchell v. U.S.

• Decision Date: 13 June 2000
• Docket Number: No. 99-3357,99-3357
• Parties: (3rd Cir. 2000) DEBBIE MITCHELL, v. UNITED STATES OF AMERICA, Appellant. Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 361

225 F.3d 361 (3rd Cir. 2000)

DEBBIE MITCHELL, v. UNITED STATES OF AMERICA, Appellant.

No. 99-3357

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: June 13, 2000

Filed August 28, 2000

Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. No. 96-cv-00897, District Judge: Honorable A. Richard Caputo

Attorneys for Appellant: Mary C. Frye United States Attorney David M. Barasch United States Attorney David W. Ogden Acting Assistant Attorney General Office of United States Attorney Federal Building 228 Walnut Street P.O. Box 11754 Harrisburg, PA 17108, Robert S. Greenspan United States Department of Justice Civil Division, Appellate Staff 10th & Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001, Douglas Hallward-Driemeier (Argued) United States Department of Justice Civil Division, Appellate Staff 601 D Street, N.W. Washington, D.C. 20530

Attorney for Appellee: J. Craig Currie (Argued) Currie & Strawley Two Penn Center Suite 1032 Philadelphia, PA 19102

Before: SLOVITER, BARRY and ALDISERT, Circuit Judges.

OPINION FOR THE COURT

ALDISERT, Circuit Judge.

This appeal from the district court's judgment in favor of Appellee Debbie Mitchell in her complaint brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. S 1346, requires us to decide whether the National Park Service's choice not to repair or improve a drainage ditch and concrete head-wall located five feet west of a paved roadway came within the discretionary function exception to the Act so as to immunize the Service from Mitchell's suit brought after she collided with a head-wall at the end of a drainage ditch.

Under the Federal Tort Claims Act, the United States waives sovereign immunity for torts involving "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. S 1346(b). The FTCA carves out an exception to governmental liability and provides:

The provisions of this chapter . . . shall not apply to--

(a) Any claim based upon an act or omission of an employee of the Government . . . 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 . . .

28 U.S.C. S 2680.

The United States contends on appeal that the National Park Service's decision not to repair or improve the drainage ditch and head-wall was a legitimate exercise of governmental discretion and thus not actionable under the FTCA. We agree with the government and will reverse.

The district court had federal question jurisdiction under 28 U.S.C. SS 1346(b), 2671. This court has appellate jurisdiction over the final decision of the district court pursuant to 28 U.S.C. S 1291. The United States filed a timely notice of appeal under Rule 4(a), Federal Rules of Appellate Procedure. This court exercises plenary review over the applicability of the discretionary function exception. See United States Fidelity & Guaranty Co. v. United States, 837 F.2d 116, 119 (3d Cir. 1988).

I.

The National Park Service, a bureau within the Department of the Interior, manages the nation's parks and recreational areas, including the Delaware Water Gap National Recreation Area, a unit of the National Park Service. Highway Route 209 runs through the Recreation Area and was designed, built and maintained by the Commonwealth of Pennsylvania. In 1983, the Commonwealth ceded State Route 209 to the United States as part of the Recreation Area.

Since the time the roadway was received from Pennsylvania, the Park Service has adopted a policy aimed at converting it from a commercial through-road to one used in connection with the Recreation Area itself. To this end, Congress enacted legislation closing the road to non- local commercial traffic and provided funding for the construction of a bypass in New Jersey, which was explicitly intended as an alternative to Route 209. In 1996, Congress provided that all commercial traffic not connected with the Recreation Area itself will be barred from Route 209 as of September 30, 2005.

Since 1983 the Park Service has performed necessary maintenance on the road. Because of the condition of the road as received from the Commonwealth, however, the Park Service has not had sufficient appropriations for a complete reconstruction, which has resulted in the Service setting priorities among work items. The Service conducted an engineering study of the roads in the Recreation Area in 1986 that identified numerous bridges that were in need of reconstruction because of structural deficiencies, insufficient width and low load limits, and reported that "most of the paved roads in the Recreation Area are in need of an overlay in a minimum of ten years." App. at 154. The study recognized also that "[c]oncrete posts, telephone poles, culvert head-walls, and trees within the clear zone . . . may constitute a safety hazard." Id. Such encroachments existed "on nearly all road sections in the Park." Id. Because of the massive repairs needed, the Service was forced to determine priorities and repair the most urgent problems first. From 1989 to 1993 no accidents, other than Mitchell's, were attributed to the Eshback area of Route 209, and a 1992 traffic safety report did not cite this stretch of roadway as a high hazard area. See App. at 65.

On July 27, 1993 at approximately 7:30 p.m., Appellee Debbie Mitchell was driving her 1989 GMC pick-up northbound on Route 209 within the Delaware Water Gap National Recreation Area. The road is a two-lane asphalt road which has a posted speed limit of 45 MPH. Attempting to avoid an oncoming vehicle she believed was improperly in her travel lane, she swerved to the right, drove off the road, which had a 4-5 inch drop-off, and entered a grassy area which sloped slightly to the right. The grassy area was approximately 40-50 feet wide and constituted a "clear zone" in which she traveled in excess of 300 feet, at which point she turned to the left to re-enter the road at a speed "no greater than 45 MPH." App. at 22. Mitchell over-corrected, crossed over the northbound travel lane and the southbound lane, drove off the paved roadway, entered a drainage ditch and struck a concrete head-wall of a culvert on the north end of the ditch. The head-wall, culvert and ditch were all approximately five feet from the near edge of paved road. Mitchell was seriously injured.

The district court entered final judgment in Mitchell's favor, holding that the discretionary exception did not apply to the Service's acts and that Mitchell did not negligently operate her automobile. The United States now appeals. We do not meet the question of negligence because we hold that the court erred in not applying the discretionary function exception. Accordingly, we will reverse.

II.

In United States v. Gaubert, 499 U.S. 315, 322-323 (1991), the Court provides a two-part inquiry to guide the application of the discretionary function exception. First, a court must determine whether the act involves an "element of judgment or choice." 499 U.S. at 322. "The requirement of judgment or choice is not satisfied if a `federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow . . . .' " Id. (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)); see also Cestonaro v. United States, 211 F.3d 748, 753 (3d Cir. 2000).

Second, even if the challenged conduct involves an element of judgment, the court must determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." Gaubert , 499 U.S. at 322-323 (quoting United States v. Varig Airlines 467 U.S. 797, 813 (1984)). The "focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by the statute, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325; see also Cestonaro, 211 F.3d at 753; Sea-Land Serv. Inc. v. United States, 919 F.2d 888, 892 (3d Cir. 1990).

A.

The government refers to the 1984 Park Road Standards as providing guidance to the Park Service. See App. 67-74; Appellee's App. at 1-5. In particular, the Standards read:

Road safety and efficiency of operation depend on adequate levels of cyclic and preventative maintenance and repair, which are also essential to protect the Service's extensive capital investment in the physical facility constituted by park roads, parkways and bridges. Consequently, park roads shall be maintained to the standards to which they have been constructed or reconstructed, and in a condition that promotes safety and protects capital investment.

Appellee's App. at 3. The Standards "provide flexibility in the planning and design processes to allow for consideration of variations in types and intensities of park use, for wide differences in terrain and climatic conditions, and for protection of natural and cultural resources in National Park System areas." App. at 69. Furthermore, "[b]ecause of the resources preserved in the Federal land management areas, and the type of tourist use in such areas, the roads in certain instances do not have to be constructed to normal highway standards." App. at 69.

Under these guidelines, the Park Service's decision about how and when to reconstruct Route 209 would seem to be a discretionary decision implicating a number of policy considerations. When the Park Service took over Route 209 from the Commonwealth, there were numerous aspects of the road's design, condition and safety that called for the Park Service's attention. The Service was forced to prioritize among these projects because of its restricted budget and its limited ability to make repairs.

Because the Park Service legitimately exercised discretion in determining the priority of road repairs and redesigns, this court...