Fang v. U.S., 96-56800.

• Decision Date: 31 March 1998
• Docket Number: No. 97-55028.,No. 96-56800.,96-56800.,97-55028.
• Citation: 140 F.3d 1238
• Parties: Pearl Bei Lei FANG, as the Mother of Freda Fang, decedent, Plaintiff-Appellant, v. UNITED STATES of America; County of Tulare; Kevin Bohl, individually and as a deputy sheriff/coroner; Toyota Motor Sales, U.S.A., Inc.; Petrel International Co., Ltd., dba Sino Auto Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F.3d 1238

Pearl Bei Lei FANG, as the Mother of Freda Fang, decedent, Plaintiff-Appellant, v. UNITED STATES of America; County of Tulare; Kevin Bohl, individually and as a deputy sheriff/coroner; Toyota Motor Sales, U.S.A., Inc.; Petrel International Co., Ltd., dba Sino Auto Service, Defendants-Appellees.

No. 96-56800.

No. 97-55028.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 1998.

Decided March 31, 1998.

Ronald E. Hermanson; Michael G. Nutter, Law Offices of Michael S. Yu, Alhambra, California, for appellant.

Julie Zatz, Assistant United States Attorney, Los Angeles, California; Alan J. Lazarus, Preuss Walker & Shanagher LLP, San Francisco, California, for appellees.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-96-01113-SVW.

Before: FLETCHER, MAGILL,^* and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

Plaintiff appeals the district court's grant of summary judgment in favor of the United States which dismissed her claims for lack of subject matter jurisdiction. The court found that the claims challenged discretionary functions as contemplated by 28 U.S.C. § 2680(a), which exempts certain conduct from the limited waiver of sovereign immunity created by the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq. ("FTCA"). Plaintiff additionally appeals the district court's dismissal of her remaining state claims pursuant to 28 U.S.C. § 1367(c)(3), which permits a court to decline to exercise jurisdiction over supplemental state claims when all of the claims over which the court had original jurisdiction have been dismissed.

We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse in part.

I.

On September 3, 1994, Freda Fang ("Fang") was a passenger in a 1988 Toyota Camry travelling through Sequoia National Park. While travelling down a hill in one of the least visited sections of the park, the car's brakes failed. The vehicle left the roadway, proceeded over an embankment, and plunged approximately 210 feet down the side of a mountain with a 45-degree slope. Both rear-seat passengers, including Fang, were ejected from the car during the accident.

Lookout Point Ranger Station was close to the accident scene. Two Level IV¹ Emergency Medical Technicians ("EMTs"), Craig Cavanna and Colleen Boes, were in the Ranger Residence adjacent to the station at the time of the accident and responded immediately. After requesting additional medical personnel and supplies through dispatch, the two EMTs grabbed their emergency medical kits, a radio, and a partially full portable oxygen tank with delivery system and went down the hill.

Upon finding Fang, the EMTs cleared her airway and administered oxygen without attempting to move her. No immediate attempt was made to stabilize her spine. Approximately fifteen minutes after the accident, Fang stopped breathing. Cavanna and Boes, with the assistance of another of the car's passengers, then began to administer cardiopulmonary resuscitation ("CPR").

After the arrival of additional medical support and equipment, Fang was placed in a cervical collar and strapped to a backboard. Then, using climbing ropes, the EMTs transported her up the mountain. This process took approximately fifty-five minutes, during which CPR was continuously administered. Unfortunately, Fang was pronounced dead upon her arrival at the top of the hill. The cause of death was listed as "cervical fracture."

Fang's mother, Pearl Bei Fei Fang ("plaintiff"), subsequently brought this wrongful death action. The suit was initially filed in the California Superior Court against Toyota Motor Sales, U.S.A., Inc. ("TMS"). The United States was not named as a defendant. Subsequently, plaintiff filed suit in the United States District Court for the Central District of California, adding claims against the United States which alleged the negligent failure of National Park Service ("NPS") employees to (1) properly stabilize Fang's spine prior to treatment; (2) administer to Fang proper CPR; (3) carry all of the equipment necessary to Fang's treatment with them to the accident site.

The United States moved for summary judgment, contending that the discretionary function exception to the FTCA deprived the court of subject matter jurisdiction over the claims asserted against it. The district court agreed and granted the motion. Subsequently, the court dismissed the remaining claims, also due to a lack of subject matter jurisdiction, because the claims over which the court had original jurisdiction had now been dismissed. Plaintiff timely, but separately, appealed both the grant of summary judgment and the dismissal of the remaining claims. The two independent appeals were then consolidated into this proceeding.

II.

Whether the United States is immune from liability in an FTCA action is a question of law reviewed de novo. Montes v. United States, 37 F.3d 1347, 1351 (9th Cir.1994).

A district court's decision whether to retain jurisdiction over supplemental claims when the original federal claims are dismissed is reviewed for an abuse of discretion. Patel v. Penman, 103 F.3d 868, 877 (9th Cir.1996), cert. denied, ___ U.S. ____, 117 S.Ct. 1845, 137 L.Ed.2d 1048 (1997).

III.

Plaintiff challenges the district court's disposition of the case on two distinct grounds: (1) the grant of summary judgment in favor of the United States was improper because the claims were not barred by the discretionary function exception to the FTCA's waiver of immunity; and (2) the district court abused its discretion in subsequently dismissing the claims against the remaining defendants. Additionally, defendant TMS has requested that we take judicial notice of several documents in support of its argument that the supplemental claims were properly dismissed. Each of these arguments is addressed in turn below.

A. The FTCA and the Discretionary Function Exception

The FTCA "waived sovereign immunity from suit for certain specified torts of federal employees." Dalehite v. United States, 346 U.S. 15, 17, 73 S.Ct. 956, 959, 97 L.Ed. 1427 (1953). Thus, the Federal Government may be held liable for certain torts its agents commit in the course of their employment. 28 U.S.C. § 2674. However, expressly excluded is "[a]ny claim ... based on 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"). Thus, if the claim is based on a discretionary function, the United States remains immune from liability.

1. Determining Whether a Claim is Barred By the Discretionary Function Exception.

To determine whether a claim is barred by the discretionary function exception, we apply the two-part test announced in Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). First, the conduct at issue must be discretionary, involving an element of judgment or choice. Id. This element is not met "when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow" and the employee "has no rightful option but to adhere to the directive." Id. If the act is not discretionary, the exception does not apply and the immunity does not attach.

Once it is determined that the act is discretionary, we "must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. "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." United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). The primary focus of the second part of the test is on "the nature of the actions taken and on whether they are susceptible to policy analysis." United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 1275, 113 L.Ed.2d 335 (1991).

Thus, decisions involving the allocation and deployment of limited governmental resources are the type of administrative judgment that the discretionary function exception was designed to immunize from suit. See, e.g., Kiehn v. United States, 984 F.2d 1100, 1107 (10th Cir.1993). However, the need to protect the exercise of policy judgment from the spectre of tort liability does not mean that Congress intended a mere medical error or mistake to be similarly shielded. Accordingly, the United States remains immune from liability for lawsuits challenging the distribution of emergency medical equipment throughout a national park when those suits challenge the decisionmaker's policy-based judgment. On the other hand, the United States is not immune from claims which challenge the actual administration of medical care by its employees when the claims do not concern actions which are the product of judgment driven by the consideration of competing policy-based choices.

2. NPS Regulations and Protocols Regarding Emergency Rescue Services.

The Park Service, through the administrators at Sequoia National Park, issued regulations which set forth the location, type, and quantity of the emergency response equipment required to be kept at various sites throughout the Park. The regulations additionally mandate the level of EMT training the personnel stationed at each of these sites must have received. Thus, each station is required to staff EMTs with a certain training level and to house equipment of varying sophistication.

For example, personnel at the Lookout Point station must have received a minimum of Level I training. Although six Level V EMTs are supposed to be stationed within the park at any given time, they are not required to be present at any...