Bailey v. USA

• Decision Date: 29 September 2010
• Docket Number: No. 09-16247.,09-16247.
• Citation: 623 F.3d 855
• Parties: Brigid BAILEY, individually, as the Personal Administrator for the Estate of Joseph Paul Bailey, Deceased, and as Guardian Ad Litem for Samuel P. Bailey and Paul F. Bailey, and Meghan Bailey, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

623 F.3d 855

Brigid BAILEY, individually, as the Personal Administrator for the Estate of Joseph Paul Bailey, Deceased, and as Guardian Ad Litem for Samuel P. Bailey and Paul F. Bailey, and Meghan Bailey, Plaintiff-Appellant,

v.UNITED STATES of America, Defendant-Appellee.

No. 09-16247.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 9, 2010.

Filed Sept. 29, 2010.

COPYRIGHT MATERIAL OMITTED.

Gregory D. Rueb and Dirk Manoukian, Rueb Motta & Manoukian, Concord, CA, for the appellant.

Toney West, Assistant Attorney General, Lawrence G. Brown, United States Attorney, Mark B. Stern, and Matthew D. Burton, Attorneys, Appellate Staff Civil Division, Department of Justice, Washington, DC, for the appellee.

Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding. D.C. No. 2:07-cv-02154-MCE-DAD.

Before: BETTY B. FLETCHER, RICHARD R. CLIFTON and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA; Dissent by Judge B. FLETCHER.

OPINION

BEA, Circuit Judge:

On Memorial Day weekend 2005, Joseph Bailey rowed his boat over a submerged dam on the Yuba River in Northern California. The boat foundered, and Bailey drowned. The Army Corps of Engineers (“the Corps”) had placed signs warning of the dam, mid-river upstream of, and on the banks near the dam. However, recent heavy river flows had washed the signs away. Four days before Bailey met his sad fate, the Corps had attempted to replace the warning signs, but had judged that the Yuba was so turbulent as to threaten the safety of its workers who had to ford the river to attach new signs and buoys.

Bailey's widow and children brought suit claiming the government was negligent in the Corps' failure to place the warning signs.

The district court granted a motion to dismiss the Baileys' complaint on grounds the Federal Torts Claims Act (“FTCA”) provided the government immunity from suit under the facts alleged and shown, because the decision not to place the warning signs on account of worker peril was a discretionary decision commended by Congress for decision by the Corps, not to be second-guessed by a court or jury.

Mrs. Bailey and her children appeal. We conclude the discretionary function exception to liability applies. The district court acted correctly, and we affirm.

I. Facts and Procedural Background.

The Daguerre Point Dam is a submerged, ¹ debris-control dam on the Yuba River in Northern California that is managed and operated by the Army Corps of Engineers (“the Corps”). The Corps's management duties include posting signs to warn recreational boaters that the dam presents a hazard. In 1987, the Corps promulgated the Sign Standards Manual (“SSM”). The SSM tells the Corps how “to provide appropriate signs and markers at each project to guide, inform, and protect visitors and employees.” With respect to sign maintenance and replacement, the SSM requires “that damaged signs be reported as soon as the problem is noticed so that the necessary maintenance work can be scheduled and completed in a timely manner.” The SSM further states that “[i]t is also critical that missing or damaged signs be replaced or repaired in a timely manner.” However, the SSM also declares that, “[p]ersonnel safety is a prime concern in performing sign maintenance.”

Although the 1987 SSM provides guidelines regarding warning signs, it does not dictate the placement of signs at any given location operated by the Corps. Rather, it states that “[e]xisting conditions must be evaluated on a site-by-site basis followed by the development of a sign plan using the signs and engineering criteria contained in this section.” Pursuant to this SSM language, the Corps developed a sign plan for the Daguerre Point Dam that specifies exactly where warning signs should be placed along the Yuba River upstream from the dam, as well as a sign inventory that contains specific details about each sign. The sign plan requires placement of several permanent signs, such as signs on the dam abutments that say “Danger-Keep Back,” signs that say “Raft Portage,” and a sign four miles upstream that says “Warning-Submerged Dam 4 Miles Downstream.” Because of increased river usage in the spring and summer months, the sign plan also calls for seasonal warning signs to be placed along the south bank of the Yuba River and on a mid-river sand bar downstream of the four-mile warning sign. The Corps also installed a mid-river warning buoy.

Installing the signs on the sand bar and installing the buoy are the most difficult tasks of sign-posting because they require Corps workers to navigate the river. Installing the sand bar signs requires the workers to drive two trucks through the river to the sandbar; installing the buoy requires a worker to wade out into the river and anchor it underwater. Thus, to replace any signs, conditions on the river have to be safe, and the water flow and water levels have to be low enough to allow workers to do this.

In late April 2005, the Corps installed these seasonal warning signs. However, around May 19, 2005, there were unexpectedly heavy water flows on the Yuba River, and soon thereafter, the Corps learned that the warning signs had been submerged or washed away. On May 25, 2005, Corps workers went to the river to assess if it was possible to replace the signs. They could not get to the location where the signs had been placed because of the high, fast water and dangerous river conditions.

On May 29, 2005, during Memorial Day Weekend, Joseph Bailey took his two sons rafting on the Yuba River, starting approximately six miles upstream of the Daguerre Point Dam. There were no warning signs about the dam anywhere upriver of the dam; there were only warning signs on the dam abutments. These came too late. Bailey and his sons went over the dam; the two sons survived, but Joseph was caught in the spill water and drowned. The next day, the Corps replaced the missing signs.

Joseph Bailey's survivors brought suit on his behalf against the Corps under the Federal Tort Claims Act. In their complaint they alleged the Corps negligently failed to replace the missing warning signs before the busy Memorial Day weekend. The Corps moved for summary judgment, or alternatively to dismiss the case under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The district court held that the discretionary function exception shielded the Corps from suit, and therefore granted the Corps's motion to dismiss for lack of subject matter jurisdiction. This appeal timely followed.

II. Standard of Review.

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. Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir.2008). The United States bears the burden of proving the applicability of the discretionary function exception. Id.

III. Analysis.

The FTCA waives the federal government's sovereign immunity for tort claims arising out of the negligent conduct of government employees and agencies in circumstances where the United States, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred. Id. at 1128-29. However, the discretionary function exception provides the government an immunity from suit that private persons do not have: 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).

The discretionary function exception is a limit placed by Congress on its waiver of traditional sovereign immunity from suit; it “marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). “The basis for the discretionary function exception was Congress' desire to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 536-37, 108 S.Ct. 1954 (quotation marks omitted).

The Supreme Court has created a two-step test for courts that governs the applicability of this exception. Terbush, 516 F.3d at 1129. The first step is to determine whether a federal statute, regulation, or policy mandated a specific course of action, ² or whether the government actor retained an element of judgment or choice with respect to carrying out the challenged action. Id. If the government action did involve choice or judgment, the second step is to determine “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.” Id. (quotation marks omitted). If the challenged action or omission satisfies these two prongs, the government is immune from suit based on that action or omission-and federal courts lack subject matter jurisdiction-even if that action or omission constituted an abuse of discretion or was a wrong choice under the circumstances. Id.

A. The first step: the Corps had to exercise its judgment to determine when to replace the missing signs; nothing mandated a specific time for replacement.

An agency does not retain discretion whether to act where a statute or policy directs mandatory and specific action and the agency has no lawful option but to adhere to the directive. Navarette v. United States, 500 F.3d 914, 916 (9th Cir.2007). On the other hand, an agency retains discretion whether to act where no statute or agency policy dictates the precise manner in which the agency is to...