Terbush v. U.S.

• Citation: 516 F.3d 1125
• Decision Date: 21 February 2008
• Docket Number: No. 06-15033.,06-15033.
• Parties: Stanli Mae Throckmorton TERBUSH; James W. Terbush, Heirs at law and successor in interest; Peter James Terbush, Decedent, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

516 F.3d 1125

Stanli Mae Throckmorton TERBUSH; James W. Terbush, Heirs at law and successor in interest; Peter James Terbush, Decedent, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 06-15033.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2007.

Filed February 21, 2008.

John Douglas Barr, Bar & Mudford, Redding, CA, and William 0. Davis, Old Station, CA, for the plaintiffs-appellants.

Peter D. Keisler, Assistant Attorney General, McGregor W. Scott, United States Attorney, Mark B. Stern and Isaac J. Lidsky, Appellate Staff, Civil Division, Department of Justice, Washington, DC, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California; Sandra M. Snyder, Magistrate Judge, Presiding. D.C. No. CV-02-05509-SMS.

Before: FERDINAND F. FERNANDEZ and M. MARGARET McKEOWN, Circuit Judges, and DAVID G. TRAGER,¹ Senior Judge.

McKEOWN, Circuit Judge:

This case illustrates the intersection of the National Park Service's ("NPS") mandate to open federal park lands for recreational use, the scope of NPS's obligation to provide for visitor safety, and the risks of mountain climbing. In 1999, Peter Terbush was killed by a rockslide in Yosemite National Park ("Yosemite") while climbing Glacier Point. His family filed claims under the Federal Tort Claims Act, 28 U.S.C. § 2671-2680 (the "FTCA"), claiming that it was not a freak accident and that the NPS is responsible for creating unsafe conditions and failing to warn of the hazards it created. The district court dismissed for lack of subject matter jurisdiction on the ground that the NPS's actions fell within the discretionary function exception to the FTCA. We agree with the district court's analysis with respect to the failure to warn claims and those regarding the design and construction of the wastewater facilities, but the record is insufficient to rule as a matter of law on the Terbushes' maintenance claims, and so we reverse and remand on this issue.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 1999, Terbush was killed while climbing with two friends at Yosemite's Glacier Point Apron. Three weeks earlier, another rockfall led park staff to temporarily close the Glacier Point Apron area and the nearby Curry Village campground. The closure was lifted less than three hours after inspection, when the area was declared to be safe by a park ranger and James B. Snyder, the Yosemite historian who, though not a professionally trained geologist, had been documenting rockfalls at Yosemite for decades. Terbush's climbing partners claim that when they went to Glacier Point Apron three weeks later, none of them saw any warnings about the recent rockfall.

Terbush's parents brought suit under the FTCA, 28 U.S.C. § 1346(b), alleging that. NPS's negligence in its design, construction, operation, and maintenance of the wastewater management system on top of Glacier Point Apron exacerbated the natural exfoliation of the rockfaee, creating a dangerous condition that led to the rockfall that killed their son. The Terbushes also alleged that the NPS failed to warn of the dangerous condition it had created, which was an unnatural and unseen hazard to visitors. The United States denied the allegations, asserted various defenses and filed a motion to dismiss or, in the alternative, a motion for summary judgment on the ground that the court lacked subject matter jurisdiction under the discretionary function exception to the FTCA. Magistrate Judge Sandra M. Snyder granted the motion to dismiss and declared the motion for summary judgment moot.

We review de novo the district court's decision to grant a motion to dismiss for lack of subject matter jurisdiction under the discretionary function exception. GATXIAirlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir.2002). In reviewing the district court's dismissal, we must accept as true the factual allegations in the complaint. Id. (citing United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). The United States bears the burden of proving the applicability of the discretionary function exception. Prescott v. United States, 973 F.2d 696, 702 (9th Cir.1992).

II. ANALYSIS

A. THE FEDERAL TORT CLAIMS ACT FRAMEWORK

The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of their employment. The government can be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

The FTCA includes a number of exceptions to this broad waiver of sovereign immunity, including the oft litigated "discretionary function exception," which provides immunity from suit 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 a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). In this way, the discretionary function exception serves to insulate certain governmental decision-making from "judicial `second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

The Supreme Court in Berkovitz v. United States set out a two-step analysis to determine applicability of the exception. See Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we must determine whether the challenged actions involve an "element of judgment or choice." Gaubert, 499 U.S. at 322, 111 S.Ct. 1267. This inquiry looks at the "nature of the conduct, rather than the status of the actor" and the discretionary element is not met where "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If there is such a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee "has no rightful option but to adhere to the directive." Id.

When a specific course of action is not prescribed, however, an element of choice or judgment is likely involved in the decision or action. We then must consider "whether that judgment is of the kind that the discretionary function exception was designed to shield," namely, "only governmental actions and decisions based on considerations of public policy." Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954. Public policy has been understood to include decisions "grounded in social, economic, or political policy." Varig, 467 U.S. at 814, 104 S.Ct. 2755. Even if the decision is an abuse of the discretion granted, the exception will apply. See 28 U.S.C. § 2680(a); Soldano v. United States, 453 F.3d 1140, 1145 (9th Cir.2006).

The distinction between protected and unprotected actions and decisions has proven itself to be a particularly vexing determination for district and appellate courts alike. As we noted recently, governmental actions "can be classified along a spectrum, ranging from those `totally divorced from the sphere of policy analysis,' such as driving a car, to those `fully grounded in regulatory policy,' such as the regulation and oversight of a bank." Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir.2005) (quoting O'Toole v. United States, 295 F.3d 1029, 1035 (9th Cir.2002)). Courts have been reluctant to create formulaic categories or to demarcate flashpoints on this spectrum to illuminate which governmental decisions fall within the discretionary function exception. See GATX/Airlog Co., 286 F.3d at 1174 ("Whether a challenged action falls within the discretionary function exception requires a particularized analysis of the specific agency action challenged."); Cope v. Scott, 45 F.3d 445, 449 (D.C.Cir.1995) (noting the Supreme Court's rejection of "analytical frameworks" as "inappropriate means of addressing the discretionary function exemption.").

The Supreme Court underscored this point in Gaubert, when it rejected a bright line between planning and operational functions. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267 ("Discretionary conduct is not confined to the policy or planning level. `[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.'") (quoting Varig, 467 U.S. at 813, 104 S.Ct. 2755). In Gaubert, a shareholder of an insolvent savings and loan association brought suit alleging negligent supervision of directors and officers and negligent involvement in day-to-day operations by federal regulators. Id. at 319-20, 111 S.Ct. 1267. In clarifying its prior treatment of the issue, the Court rejected the plaintiff's reliance on a misunderstanding of the law that created convenient, but false, distinctions: The Court noted that the Court of Appeals had "misinterpreted" Berkovitz to "perpetuat[e] a nonexistent dichotomy between discretionary functions and operational activities...." Id. at 326, 111 S.Ct. 1267.

Instead of a rigid dichotomy between "planning" and "operational" decisions and activities, the Court in Gaubert adopted a different rule: "if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations." Id. at 324, 111 S.Ct. 1267. Thus, "[w]hen established governmental policy, as express or implied by statute, regulation, or agency guidelines, allows a Government...