Ball v. United States

• Decision Date: 31 July 2020
• Docket Number: No. 19-1161,19-1161
• Citation: 967 F.3d 1072
• Parties: Logan BALL ; Elizabeth Ball; Estate of Sarah Ball, Plaintiffs - Appellants, v. UNITED STATES of America, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

967 F.3d 1072

Logan BALL ; Elizabeth Ball; Estate of Sarah Ball, Plaintiffs - Appellants,

v.UNITED STATES of America, Defendant - Appellee.

No. 19-1161

United States Court of Appeals, Tenth Circuit.

FILED July 31, 2020

Randall M. Weiner, Law Offices of Randall M. Weiner, P.C., Boulder, Colorado (Annmarie Cording, Law Offices of Randall M. Weiner, P.C., Boulder, Colorado on the briefs) on behalf of Plaintiffs-Appellants.

Casen B. Ross, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C. (Mark B. Stern, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., Joseph H. Hunt, Assistant Attorney General, and Jason R. Dunn, United States Attorney, Washington, D.C. on the briefs) on behalf of the Defendant-Appellee.

Before HARTZ, MATHESON, and CARSON, Circuit Judges.

HARTZ, Circuit Judge.

Shortly before 3:00 a.m. on June 12, 2016, Sarah Ball was killed when the car in which she was a passenger drove off United States Forest Service Road 456.1A and over an earthen mound before falling into an abandoned mine shaft about 20 feet off the road. Her parents and her estate (Plaintiffs) brought suit against the United States under the Federal Tort Claims Act (FTCA), raising several causes of action alleging negligence by the United States Forest Service. The United States District Court for the District of Colorado granted the government's motion to dismiss for lack of subject-matter jurisdiction, ruling that the government was immune from liability under the discretionary-function exception to the FTCA. Plaintiffs appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

The accident took place in the Arapaho and Roosevelt National Forests and Pawnee National Grassland (the Forest) within Region 2 of the National Forest System, which contains lands within five states. The area of the Forest exceeds 1.5 million acres. In Region 2 there are an estimated 11,500 remnants of abandoned mines (commonly referred to as abandoned-mine features), such as adits (the mine entrances), mine shafts, quarries and pits, tailing piles, and buildings. A 1993 survey identified 1329 such features in the Forest. There are over 2600 miles of road in the Forest, of which 1987 miles, including Forest Service Road 456.1A, are designated as Maintenance Level 2 roads.

The Forest Service Handbook describes the Level 2 designation as follows:

Assigned to roads open for use by high clearance vehicles. Passenger car traffic, user comfort, and user convenience are not considerations. Warning signs and traffic control devices are not provided with the exception that some signing, such as W-18-1 "No Traffic Signs," may be posted at intersections. Motorists should have no expectations of being alerted to potential hazards while driving these roads. Traffic is normally minor, usually consisting of one or a combination of administrative, permitted, dispersed recreation, or other specialized uses. Log haul may occur at this level. Appropriate traffic management strategies are either to:

a. Discourage or prohibit passenger cars, or

b. Accept or discourage high clearance vehicles

Aplt. App., Vol. I at 60 (emphasis added). The Forest Service Guidelines for Road Maintenance Levels similarly explain that Level 2 roads are "not suitable for passenger cars" and "[d]o not always provide motorists with alerts to potential hazards." Id. at 142. The publicly available Motor Vehicle Use Map prepared by the Forest Service for visitors to the Forest further states that "[m]aintenance of designated roads and trails will depend on available resources, and many may receive little maintenance." Id. at 61. The map also counsels that "[m]otor vehicle use, especially off-highway vehicle use, involves inherent risks that may cause property damage, serious injury, and possible death to participants." Id.

A Forest Service official submitted a sworn declaration explaining that the selection of which road-maintenance projects get funding requires balancing several priorities, including repairing roads with severe damage, maintaining roads where the Forest Service anticipates an upcoming project, and maintaining roads frequently used by the public for recreational activities. On average for the years between 2013 and 2017, the Forest Service had funding to perform maintenance of only 122 of the 1987 miles of Level 2 roads in the Forest. Road 456.1A, however, has been considered to be in acceptable condition for its Level 2 classification and thus has not been designated for any maintenance or repair.

Not until 1998 did Congress make funds available to address the physical-safety hazards, as opposed to environmental concerns, posed by abandoned mines. The inventory of abandoned mines on Forest Service land and the mitigation of their hazards are conducted through the Environmental Compliance and Protection and Abandoned Mine Lands (ECAP/AML) Program. The Program's Forest-level managers request funding for specific projects from the Region manager who allocates available funds. As the Region 2 manager explained in his sworn declaration, "Funding for mitigating potential physical safety hazards associated with abandoned mine sites is limited and competes with funding for other Forest Service programs and priorities." Id. at 49.

If funding is obtained, the Forest-level manager has discretion on how to administer the project, including whether to partner with state or local entities or private organizations. In Colorado the Forest Service has a Master Participating Agreement with the Colorado Division of Reclamation, Mining, and Safety to address the abandoned mines in the state. Before any project can begin, the Forest Service must undertake various environmental reviews, including those required by the National Environmental Policy Act, and ensure compliance with agency standards, such as those in the Forest's own 1997 Land and Resource Management Plan, which has a standard to protect bats that use mines. In Region 2 between 2008 and 2016 the Forest Service and its partners were able to mitigate only an average of 86 abandoned-mine features and associated hazards each year, of the over 11,500 in the Region.

II. DISCUSSION

A. The FTCA

The FTCA provides a limited waiver of sovereign immunity. It allows private parties to bring civil suits against the United States for personal injury or death caused by the negligence or wrongful conduct of government employees within the scope of employment. See 28 U.S.C. § 1346(b)(1) ; Kiehn v. United States , 984 F.2d 1100, 1102 (10th Cir. 1993). The United States can be held liable only "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).

There are also several statutory exceptions to the waiver of sovereign immunity. In particular, the discretionary-function exception precludes holding the United States liable for an act or omission "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 basis for the discretionary function exception was Congress’ desire to prevent the judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Berkovitz v. United States , 486 U.S. 531, 536–37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (internal quotation marks omitted). The exception "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." United States v. Varig Airlines , 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

To determine whether this exception applies, we employ the two-part test set out by the Supreme Court in Berkovitz . First, we "determine whether the challenged conduct ‘involves an element of judgment or choice,’ in which case it is discretionary and falls within the language of the exception, or whether it involves ‘a federal statute, regulation, or policy that specifically prescribes a course of action for an employee to follow,’ in which case the exception does not apply." Kiehn , 984 F.2d at 1102 (brackets omitted) (quoting Berkovitz , 486 U.S. at 536, 108 S.Ct. 1954 ).

If the conduct was discretionary, we move to the second step and ask " ‘whether that judgment is the kind that the discretionary function exception was designed to shield.’ " Id . at 1103 (quoting Berkovitz , 486 U.S. at 536, 108 S.Ct. 1954 ). In particular, discretionary decisions "grounded in the social, economic, or political goals of the [governing] statute and regulations are protected." United States v. Gaubert , 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Or, as this court has expressed the point, if the conduct "implicates the exercise of a policy judgment of a social, economic, or political nature," the discretionary-function exception shields the government from liability. Duke v. Dep't of Agric. , 131 F.3d 1407, 1411 (10th Cir. 1997).

The Supreme Court has provided guidance on how courts should determine whether this second prong is satisfied. "When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert , 499 U.S. at 324, 111 S.Ct. 1267 (emphasis added); see Kiehn , 984 F.2d at 1105 (ordinarily we "will not assume a nonpolicy decision unless the record shows something to the contrary"). That is, the complaint must be dismissed unless it "allege[s] facts which would support a finding that the...