Cope v. Scott

Decision Date20 January 1995
Docket NumberNo. 92-5508,92-5508
PartiesJohn R. COPE, Appellant, v. Roland G. SCOTT; United States of America, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 90cv1111).

Marc Fiedler, Washington, DC, argued the cause for appellant. With him on the briefs were Roger C. Johnson and Lisa R. Riggs, Washington, DC.

Thomas S. Rees, Asst. U.S. Atty., Washington, DC, argued the cause for appellees. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Before: WALD, GINSBURG, and TATEL, Circuit Judges.

Opinion of the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In this negligence case, John R. Cope appeals a grant of summary judgment against him in favor of the government. The District Court concluded that the government's allegedly negligent actions were "discretionary functions" immune from suit under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. Secs. 1346(b), 2671-2680 (1988 & Supp. V 1993). With respect to Cope's allegations of negligent road maintenance, we affirm the District Court's decision. We find, however, that any discretion exercised by the government with respect to where and how to post signs warning of dangerous road conditions did not implicate "political, social, or economic" policy choices of the sort that Congress intended to protect from suits under the FTCA. We therefore affirm in part, reverse in part, and remand so that the case may proceed to trial on the allegations of improper warnings.


Beach Drive, a two-way, two-lane road, is the main north-south route through Rock Creek Park, an urban park in Washington, D.C. that is maintained by the National Park Service. The road was "originally designed for pleasure driving," Joint Appendix ("J.A.") 35, as seems evident given what an engineering study described as its "poor alignment"--which we understand to refer to its many sharp curves. The Park Service alleges that the road is not "intended to provide fast and convenient transportation," but to "enhance visitor experience" in the park. Declaration of E. Macdougall Palmer, Assistant Chief of Maintenance, Rock Creek Park, J.A. 37. Commuters in Washington appear to believe otherwise, however, and the Park Service has allowed Beach Drive to become an important commuter route connecting downtown Washington with its northern suburbs. As a result, the road carries heavy traffic throughout the day. National Park Service road standards recommend that a road like Beach Drive carry a maximum of 8,000 vehicles daily, but recent estimates indicate that the average daily traffic on the stretch of road involved in this case was between two and three times that load.

On a rainy spring evening in 1987, Cope was driving north along Beach Drive. As a southbound vehicle driven by Roland Scott rounded a curve, it slid into the northbound lane and hit Cope's car. Cope alleges he suffered neck and back injuries. The Park Service officer who responded to the scene classified the pavement in his accident report as a "worn polished surface" that was "slick when wet." J.A. 89. Cope sued Scott and the Park Service, alleging that the latter was negligent "in failing to appropriately and adequately maintain the roadway of Beach Drive ... and failing to place and maintain appropriate and adequate warning signs along the roadway." J.A. 10.

While preparing for trial, Cope discovered an engineering study of roads in Rock Creek Park that was conducted between 1986 and 1988. The study identified this stretch of Beach Drive as one of nine "high accident areas" in the park, and noted that sections of Beach Drive, including, apparently, the location of the accident, fell below "acceptable skid-resistance levels" in a test conducted five months after the accident. J.A. 164-65. The study recommended that future repaving use "polish-resistant coarse aggregate" as an overlay in the most dangerous curves. J.A. 166. As for the stretch of road in question here, the study noted that "[t]he curves should be adequately signed and the skid resistance maintained with an opened graded friction course." J.A. 246. Cope also offers an affidavit from a traffic engineer to the effect that over 50% of the accidents that occurred on that stretch of road over the last five years occurred during wet weather, while only 18% of accidents nationwide occur in wet conditions.

Despite the less-than-perfect road surface, the 1988 study listed this stretch of Beach Drive as 33rd on a maintenance priority list of 80 sections of park road. J.A. 168. Maintenance work on this section of road was preceded on the list by at least 15 other projects estimated to be of equal or less cost.

As for the presence of relevant warning signs, the record does not reflect precisely where such signs were located as of the date of the accident. A 1981 road sign inventory indicated that "slippery when wet" signs were located in two places on the half-mile stretch of road bracketing the curve where the accident occurred, and the Assistant Chief of Maintenance of the park stated that in 1990, a slippery road sign was posted in each direction on the same stretch of road, although there is no indication of how close such signs were to the curve where the accident occurred.

In the District Court, the government moved for summary judgment, arguing that its action (or inaction) with respect to the road was discretionary and therefore exempt from suit under the FTCA. J.A. 15. The District Court agreed, ruling that it had no jurisdiction to hear the case. Cope v. Scott, No. 90cv1111, mem. op. at 3-6 (D.D.C. June 26, 1992), reprinted in J.A. 535-38. Cope settled with Scott and now appeals the District Court's immunity ruling.


The FTCA authorizes district courts to hear suits against the United States

for money damages ... for injury or loss of property, or 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, 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. Sec. 1346(b). This broad waiver of sovereign immunity is limited, however, by the exceptions in 28 U.S.C. Sec. 2680(a):

The provisions of this chapter and section 1346(b) of this title shall not apply to--

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.

28 U.S.C. Sec. 2680(a) (emphasis added).

The second clause of this exception, emphasized above, is known as the "discretionary function" exception, and lies at the heart of the dispute in this case. When an individual is injured by an act of the government or a government employee, section 1346(b) allows him or her to bring suit unless the action that allegedly caused the injuries is a discretionary function as defined under the FTCA. This exception was designed to prevent the courts from "second guessing," through decisions in tort actions, the way that government officials choose to balance economic, social, and political factors as they carry out their official duties. See United States v. Varig Airlines, 467 U.S. 797, 814, 820, 104 S.Ct. 2755, 2464-65, 2767-68, 81 L.Ed.2d 660 (1984).

Discretionary function determinations are jurisdictional in nature. While we must review the complaint to determine what actions allegedly caused the injuries, we do so only to determine whether the district court has jurisdiction over those actions, not to prejudge the merits of the case. If the district court has jurisdiction over the suit, the plaintiff must still prove that the government's actions were negligent in order for him to prevail.

The Supreme Court has established a two-step test that we use to determine whether an action is exempt from suit under the discretionary function exemption. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The two steps of the test largely track the two clauses of section 2680(a). In the first step, we determine whether it is appropriate to analyze the action under the first or the second clause of the exception. In other words, we ask whether any "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (citing Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958). If a specific directive exists, then the employee had no "choice." The only issue is whether the employee followed the directive, and is thus exempt under the first clause, or whether the employee did not follow the directive, thus opening the government to suit. See 28 U.S.C. Sec. 2680(a). Because no choice is involved where a "specific prescription" exists, the discretionary function exception contained in the second clause is not applicable.

The discretionary function exception may be applicable where there is no specific prescription and the government employee has a "choice" regarding how to act in a particular circumstance. This is true more often than one might expect. Despite the pervasiveness of regulation, government policies will almost always leave some room for individual choice. If the choice led to the events being litigated, the exception may apply. But not all actions that require...

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