Baum v. U.S.

• Decision Date: 23 February 1993
• Docket Number: No. 91-1608,91-1608
• Citation: 986 F.2d 716
• Parties: Price A. BAUM; Margaret Leedy, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, v. Michael A. MASSEY, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 716

986 F.2d 716

Price A. BAUM; Margaret Leedy, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, v. Michael A. MASSEY, Third Party Defendant-Appellee.

No. 91-1608.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 4, 1991.

Decided Feb. 23, 1993.

John Philip Kessel, Chaikin & Karp, P.C., Rockville, MD, argued (Paul B. Tierney, on brief), for plaintiffs-appellants.

David Ira Salem, Asst. U.S. Atty., Baltimore, MD, argued (Richard D. Bennett, U.S. Atty., Roann Nichols, Asst. U.S. Atty., on brief), for defendant-appellee.

Before WIDENER and WILKINSON, Circuit Judges and SHEDD, United States District Judge for the District of South Carolina, sitting by designation.

OPINION

WIDENER, Circuit Judge:

This appeal requires us to examine the scope of the discretionary function exception to the limited waiver of sovereign immunity provided for in the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (FTCA or the Act). Appellants Price A. Baum and Margaret Leedy were injured in an automobile accident in which their vehicle penetrated a guardrail on a bridge over the Baltimore-Washington Parkway, causing them to fall to the roadway below. The bridge and guardrail system was owned and maintained by the United States Department of Interior, National Park Service. Baum and Leedy brought suit against the United States pursuant to the FTCA, claiming negligence in the design, construction, and maintenance of the guardrail system in question. The district court dismissed the action on the government's motion, holding that all of the government actions complained of were inherently ones involving choice and policy considerations, and thus fell within the discretionary function exception to the FTCA. Baum v. United States, 765 F.Supp. 268 (D.Md.1991). Finding no error, we affirm.

I

The accident giving rise to the instant action occurred on May 24, 1987, when Baum was driving his van on eastbound Maryland Route 198 in Anne Arundel County, Maryland, approaching the Fort Meade Road Bridge, which carries Route 198 over the Baltimore-Washington Parkway. Leedy was a passenger in Baum's van. In their complaints Baum and Leedy allege that a vehicle being driven westbound on Route 198 by one Michael Massey crossed into the eastbound lane on or near the bridge and collided with the driver's side of Baum's van. Following the collision, the Baum vehicle caromed off the south side of the road and ran into a curved stone bridge approach adjacent to the eastbound lanes. That collision, in turn, caused the van to rebound across the eastbound and westbound lanes of the bridge on Route 198. There the van went over a curb, crossed a sidewalk, and hit a steel ^* bridge rail mounted on cast iron ^* bridge posts. ^* The guardrail gave way upon impact and the van fell 22 feet to the southbound lanes of the Baltimore-Washington parkway.

On January 31, 1990, Baum filed a one-count complaint under the FTCA in the United States District Court for the District of Maryland against the United States claiming that his injuries were the result of the negligence of the National Park Service, National Capital Region, in designing, constructing, and maintaining the guardrail system in place on the Fort Meade Road Bridge at the time of the accident. Leedy filed a similar suit against the United States on March 19, 1990. The cases were consolidated and the government moved for dismissal or, in the alternative, summary judgment on the grounds that the actions of the government with respect to the guardrail fell within the discretionary function exception to the FTCA and that the negligence action was thus barred by sovereign immunity. On May 23, 1991 the district court granted the government's motion and dismissed the case. Baum and Leedy now appeal from that dismissal. ¹

II

A

The FTCA waives the sovereign immunity of the United States so that the government may be liable in tort "in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or punitive damages." 28 U.S.C. § 2674. This broad waiver of immunity is tempered by a rather extensive list of exceptions found at 28 U.S.C. § 2680. The instant case involves one of the more important, and certainly one of the most often-contested, exceptions, the discretionary function exception of 28 U.S.C. § 2680(a). That exception provides that the FTCA's waiver of the federal immunity "shall not apply to--[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 be abused."

The discretionary function 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, 2762, 81 L.Ed.2d 660 (1984). The Supreme Court has further identified the purpose of the exception as follows:

Congress wished 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. By fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took "steps to protect the Government from liability that would seriously handicap efficient government operations."

Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765 (quoting United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963)).

Though the purpose underlying the discretionary function exception is well accepted, courts have encountered some difficulty in applying its rather general terms to the myriad of fact patterns that predictably present themselves as litigants attempt to measure governmental conduct by the measuring stick of state tort law. See generally L. Jayson, Handling Federal Tort Claims § 248.01 (1992). The statute itself makes no attempt to define what governmental functions are to be deemed discretionary and thus outside the scope of the waiver. Moreover, until recently the Supreme Court, as well as this court, found it unnecessary to define with precision when the discretion ends in deciding questions involving the exception. See, e.g., Dalehite v. United States, 346 U.S. 15, 35, 73 S.Ct. 956, 967-68, 97 L.Ed. 1427 (1953); Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764; Patterson v. United States, 856 F.2d 670 (4th Cir.1988), vacated en banc, 881 F.2d 127 (4th Cir.1989).

However, the law defining what governmental functions are discretionary for purposes of the exception has been clarified by two recent decisions of the Supreme Court. In Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), and United States v. Gaubert, --- U.S. ----, 111 S.Ct. 1267, 113 L.Ed.2d 335 (U.S.1991), the Court settled upon and then clarified a two-tier analysis for identifying discretionary functions. When evaluating a claim under the FTCA, we must ask first whether the governmental action complained of "involves an element of judgment or choice." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958; Gaubert, --- U.S. ----, 111 S.Ct. at 1273; see also Piechowicz v. United States, 885 F.2d 1207, 1211 (4th Cir.1989). The inquiry boils down to whether the government conduct is the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of action. If such a mandatory statute, regulation, or policy applies, then the conduct involves no legitimate element of judgment or choice and the function in question cannot be said to be discretionary. In that case the government actor "has no rightful option but to adhere to the directive," and if the plaintiff can show that the actor in fact failed to so adhere to a mandatory standard, then the claim does not fall within the discretionary function exception. Berkovitz, 486 U.S. at 530, 108 S.Ct. at 1953-54.

If no such mandatory statute, regulation, or policy applies to remove the challenged conduct from the choice and judgment of the government, then we move to the second tier of the Berkovitz- Gaubert analysis and ask whether the choice or judgment involved is one "based on considerations of public policy." Berkovitz, 486 U.S. at 531, 108 S.Ct. at 1954-55; Gaubert, --- U.S. at ----, 111 S.Ct. at 1274. This requirement is consistent with and mandated by the general purpose underlying the FTCA and the discretionary function exception, i.e., to balance Congress' desire to allow redress of injuries suffered through the negligence of government actors against the need to protect the government from being hobbled in the discharge of its policy-driven duties by tort suits. In Gaubert, the Court provided an illustration of the operation of this requirement that we think particularly helpful in its application:

There are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception because these acts cannot be said to be based on the purposes that the regulatory regime seeks to accomplish. If one of the officials involved in this case drove an automobile on a mission connected with his official duties and negligently collided with another car, the exception would not apply. Although driving requires the constant exercise of discretion, the official's decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.

Gaubert, --- U.S. at ---- n. 7, 111 S.Ct. at 1275 n. 7.

Finally, we note one further point with respect to the application of the second element of the foregoing analysis that we believe Gaubert clarified. Rather than requiring a fact-based inquiry into the circumstances surrounding the government...