Duke v. Department of Agriculture, 95-2281

• Decision Date: 17 December 1997
• Docket Number: No. 95-2281,95-2281
• Citation: 131 F.3d 1407
• Parties: 97 CJ C.A.R. 3367 Joel Ray DUKE, by his father and next friend Danny Duke; Danny Duke, Plaintiffs-Appellants, v. DEPARTMENT OF AGRICULTURE, Forest Service, USA; State of New Mexico, Department of Game and Fish and State Highway Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1407

131 F.3d 1407

97 CJ C.A.R. 3367

Joel Ray DUKE, by his father and next friend Danny Duke Danny Duke, Plaintiffs-Appellants, v. DEPARTMENT OF AGRICULTURE, Forest Service, USA; State of New Mexico, Department of Game and Fish and State Highway Department, Defendants-Appellees.

No. 95-2281.

United States Court of Appeals Tenth Circuit.

Dec. 17, 1997.

Colleen M. Clear of Clear & Clear, Albuquerque, NM, for Plaintiffs-Appellants.

Marilyn S. Hutton, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with her on the brief), Albuquerque, NM, for Defendant-Appellee United States of America.

John M. Wells, Albuquerque, NM, for Defendant-Appellee State of New Mexico.

Before HENRY, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Danny Duke, individually and as next friend of plaintiff Joel Ray Duke, appeals the district court's grant of summary judgment in favor of defendants, United States and the State of New Mexico. Plaintiffs asserted that six-year-old Joel Duke suffered serious brain injury when a boulder rolled down a hillside and smashed into his tent while he was camping with his family in the Gila National Forest. Plaintiffs' claim for damages against the United States was founded on the Federal Tort Claims Act (FTCA). The district court found that it lacked subject matter jurisdiction under the discretionary function exception to the FTCA. The central issue in this appeal is whether the discretionary function exception furnishes immunity for the United States. Plaintiffs also appeal the district court's dismissal of their claims against the State of New Mexico as barred from federal court by the Eleventh Amendment. ¹

I

We first address plaintiffs' argument that the district court erred in dismissing their claims against the State of New Mexico. ² Unless a state expressly waives Eleventh Amendment immunity it cannot be sued for damages in federal court. See Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974). Plaintiffs' assertion that the state waived Eleventh Amendment immunity by engaging in activities and entering contracts subject to federal regulation is incorrect. See, e.g., Faust v. South Carolina State Highway Dep't, 721 F.2d 934, 940-41 (4th Cir.1983) (acknowledging overruling of Chesapeake Bay Bridge & Tunnel Dist. v. Lauritzen, 404 F.2d 1001, 1003 (4th Cir.1968), relied on by plaintiffs), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984); see also Seminole Tribe of Florida v. Florida, 517 U.S. 609, ----, 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996) (Congress had no power to unilaterally abrogate state's Eleventh Amendment sovereign immunity when the act in question was not "passed pursuant to a constitutional provision granting Congress the power to abrogate"). Plaintiffs' claims against the State of New Mexico are barred by the Eleventh Amendment.

II

We next turn to plaintiffs' FTCA claim against the United States. The FTCA provides a broad waiver of sovereign immunity for "the negligent or wrongful act or omission" of any government employee acting in the scope of his or her employment to the extent that a private person would be liable in similar circumstances under state law. See 28 U.S.C. § 1346(b). This waiver of immunity is limited, however, because the government is not liable for

[a]ny 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 involved be abused.

Id. § 2680(a). The second clause of the statute contains the "discretionary function exception" at issue here.

The Supreme Court in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), set out a two-step test to determine when the discretionary function exception applies.

The first step of the Berkovitz test requires this court to 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. Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958.

If the conduct involves discretionary judgment under the first step of Berkovitz, then we must apply the second step, which requires this court to "determine whether that judgment is the kind that the discretionary function exception was designed to shield." Id. The exception protects only those discretionary actions or decisions which are "based on considerations of public policy." Id. at 537, 108 S.Ct. at 1959. The purpose is to "prevent judicial 'secondguessing' 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. at 1959-60 (quoting [United States v.] Varig Airlines, 467 U.S. at 814 [104 S.Ct. 2755, 2764, 81 L.Ed.2d 660] [1984] ).

Kiehn v. United States, 984 F.2d 1100, 1102-03 (10th Cir.1993) (parallel citations omitted).

We review the district court's determination of the applicability of the discretionary function de novo, and in doing so consider not only the allegations in the complaint but the affidavits, depositions, and other evidence in the record. Gotha v. United States, 115 F.3d 176, 179 (3d Cir.1997). Because there was no trial--the district court having entered summary judgment--we determine only whether the district court has jurisdiction; we make no judgment on the merits of the case.

The first step of the Berkovitz test requires us to determine whether there was a discretionary decision. Plaintiffs camped on the Quemado Lake Dam emergency spillway in Gila National Forest, administered by the United States Forest Service, Department of Agriculture. The State of New Mexico constructed the dam and spillway under an agreement with the Forest Service. Construction entailed cutting out a part of a mountain; a state road was then built on an easement through the spillway. On one side of the road were designated parking spots for vehicles; plaintiffs camped on the other side of the road at the bottom of the cut-away slope. The Forest Service admitted that it allowed camping in that area although no sign designated it as a camping area. In fact, plaintiffs, who came to camp with two other families, set up camp there around an existing fire ring.

Plaintiffs alleged that the Forest Service and State of New Mexico, which jointly operated the Quemado Lake area, knew that large rocks falling from the mountain presented a danger to people camping there. Plaintiffs presented affidavits and deposition testimony that maintenance crews removed rocks from the area, Appellants' App. 133, 135, 137-38, 176, 222, 421, and thus defendants had notice of the danger, see also id. at 397-98. Plaintiffs asserted that the Forest Service had a duty to put up a sign warning of the danger of falling rocks, install a protective fence, or prohibit camping in the area.

The parties agree, as do we, that under the first step of the Berkovitz test there was no "federal statute, regulation, or policy [that] specifically prescribe[d] a course of action" for the Forest Service employees to follow. ³ See United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958). The relevant Forest Service Manual (FSM) states that the policy was to "provide safe and healthful facilities for visitors," § 6703(3) (Appellants' App. 336). The Gila Supplement to the Forest Service Manual provides:

The Gila National Forest signing objectives shall be to safely guide, regulate, warn or advise the public and to provide uniformity and continuity in signing procedures throughout the Forest including signs and posters erected by individuals or organizations under Special Use Permits.

FSM, Gila Supp. § 7160.2 (Appellants' App. 343) (emphasis added); see also FSM § 7160.2 (Appellants' App. 340) (objectives of sign and poster program are to provide information for "the safety, enjoyment, and convenience" of forest users).

While these manuals emphasize safety and appropriate warnings they are not specific enough to eliminate the Forest Service employees' choice regarding how to act in particular circumstances. As the District of Columbia Circuit noted, "[d]espite the pervasiveness of regulation, government policies will almost always leave some room for individual choice.... But not all actions that require choice--actions that are, in one sense, 'discretionary'--are protected as 'discretionary functions' under the FTCA." Cope v. Scott, 45 F.3d 445, 448 (D.C.Cir.1995).

That brings us to the second step of the Berkovitz test, which requires the court to "determine whether that judgment is of the kind that the discretionary function exemption was designed to shield." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. "Decisions that require choice are exempt from suit under the FTCA only if they are 'susceptible to policy judgment' and involve an exercise of 'political, social, [or] economic judgment.' " Cope, 45 F.3d at 448 (quoting Gaubert, 499 U.S. at 325, 111 S.Ct. at 1274). Justice Scalia, concurring in Gaubert, noted that the courts have had difficulty applying this "policy" aspect of the test. See 499 U.S. at 335, 111 S.Ct. at 1280.

One of the problems, as Cope recognized, is that nearly every governmental action is, to some extent, subject to policy analysis--to some argument that it was influenced by economics or the like. An added difficulty is that a failure to act can be a policy decision;...