Gonzalez v. United States

• Decision Date: 22 March 2017
• Docket Number: No. 16-60062,16-60062
• Citation: 851 F.3d 538
• Parties: Teresa GONZALEZ, Plaintiff–Appellant v. UNITED STATES of America; John Does A–Z, Defendants–Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

851 F.3d 538

Teresa GONZALEZ, Plaintiff–Appellant

v.UNITED STATES of America; John Does A–Z, Defendants–Appellees

No. 16-60062

United States Court of Appeals, Fifth Circuit.

FILED March 22, 2017

Alben Norris Hopkins, Jr., Hopkins, Barvie & Hopkins, P.L.L.C., Gulfport, MS, for Plaintiff–Appellant.

Cynthia Lynn Eldridge, Assistant U.S. Attorney, U.S. Attorney's Office, Gulfport, MS, for Defendants–Appellees.

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Teresa Gonzalez was injured while riding her bicycle over a ramp at De Soto National Forest. She sued various United States officials under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 –2680, alleging they failed to inspect and maintain the bicycle trails, and failed to warn her of the hazard. The United States moved to dismiss, arguing that the FTCA's "discretionary function exception" barred Gonzalez's claims. The district court granted the motion. We AFFIRM.

I.

On July 28, 2012, Teresa Gonzalez and Robert Reville, Jr., went to the De Soto National Forest to ride their bicycles at the Bethel Bicycle Trails, which included the Couch Loop Trail. Before they began riding, Gonzalez did not look at the bulletin board at the park's entrance, which contained a sign stating that the Couch Loop Trail was closed. They nevertheless embarked on the Couch Loop Trail. At some point, they took an "alternate route" to the left of the main trail that led to obstacles including a teeter-totter and a ramp. Neither attempted to ride over the teeter-totter, but both decided to ride over the ramp. Gonzalez had never jumped off a ramp before, and when she tried to do so, she fell off and suffered serious injuries.

Gonzalez assumed that the ramp was part of the trail and built by the Forest Service. In fact, the ramp was built illegally by Gulf Coast Bicycle Club members, without the knowledge of the United States Forest Service ("USFS"). The USFS employees were not aware of the ramp's existence before Gonzalez's accident. They were, however, aware of an unauthorized bridge further down the trail, which is why the Couch Loop Trail was closed on the day of Gonzalez's accident.¹

USFS recreational technician Charles Grice had posted a sign at the trailhead bulletin board that stated the trail was closed, and also flagged the bridge area with boards, signs, and ribbons. The sign at the trailhead bulletin board stated: "Couch Trail CLOSED," and in smaller type, "Bridge Out." The sign was on an 8 ½? by 11? sheet of paper. Gonzalez claims that neither she nor Reville saw any signs, and that she would have obeyed any warning sign she saw.

De Soto National Forest is about 382,000 acres. In 2012, Ronald Smith was the De Soto National Forest District Ranger, the highest ranking officer of a district. Two technicians were responsible for maintaining and inspecting the Bethel Bicycle Trails, full-time technician Charles Grice, and part-time technician, Anthony Bond. Grice testified that inspection and maintenance of the trails included identifying hazards, such as trees, and performing repair work. He spot-checked the trail and checked it when people called. If Grice found an unauthorized structure, he reported it to the ranger. He stated that he and Bond "bush hog the trail pretty much every year," which includes clearing and cleaning the trail. Grice did not know whether he had bush hogged the teeter-totter and ramp area in 2012. The last time Grice remembered inspecting the Couch Loop Trail before Gonzalez's accident was when he was inspecting a trail contractor's work, however he could not remember when that was. Other than checking for unsafe structures or trees and bush hogging, there are no other scheduled inspections of the trail. Since January 2012, Grice was also responsible for posting any warning signs at the trailhead. Grice stated that no one instructed him about the placement of trail closure notices, and that "[w]e just put them on the bulletin board at the trailhead areas." Grice and Bond were not allowed to post warning signs or close a trail without Ranger Smith's authority.

A number of laws, regulations and policies affect the USFS, including the following that Gonzalez highlights in this appeal: (1) The Forest Service Manual—FSM–2300 Recreational, Wilderness, and Related Resource Management ("the Manual"); (2) The Forest Service Handbook—FSH 2309.18—Trails Management Handbook ("the Handbook"); and (3) the Forest Service–EM7100–15 Sign and Poster Guidelines for the Forest Service ("Sign and Poster Guidelines").

Gonzalez filed a complaint against the United States on February 21, 2014, asserting jurisdiction under 28 U.S.C. § 1346(B)(1). She advanced several negligence theories, essentially alleging that the United States failed to keep its premises safe, failed to perform inspections, and failed to warn of a dangerous condition. The United States moved to dismiss for lack of subject matter jurisdiction, arguing that the discretionary function exception to the FTCA's waiver of sovereign immunity applied. It alternatively moved for summary judgment "because no USFS employee engaged in any negligent act or omission for which the United States may be held liable to the Plaintiff under the FTCA." The district court granted the motion to dismiss based on the FTCA discretionary functions exception, not reaching the government's alternative argument. Gonzalez appealed.

II.

"We review the district court's dismissal for lack of subject-matter jurisdiction over [a plaintiff's] FTCA claim de novo."² "Lack of subject-matter jurisdiction may be found in the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by the undisputed facts plus the court's resolution of the disputed facts."³ The district court here based its conclusion on the complaint and undisputed facts.⁴

III.

The United States enjoys sovereign immunity from suit, meaning it cannot be sued without consent.⁵ "The FTCA is recognized as providing a waiver of sovereign immunity and provides the sole basis of recovery for tort claims against the United States."⁶ This waiver, however, "is subject to several exceptions."⁷ The exception relevant here is the "discretionary function exception,"⁸ which "preserves the federal government's immunity ... when an employee's acts involve the exercise of judgment or choice."⁹ The exception is found in 28 U.S.C. § 2680(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 involved be abused.

The Supreme Court has explained, "[t]he exception covers only acts that are discretionary in nature, acts that ‘involv[e] an element of judgment or choice,’ [ ] and ‘it is the nature of the conduct, rather than the status of the actor’ that governs whether the exception applies."¹⁰ "The basis for the discretionary function exception was Congress' desire 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.’ "¹¹

A two-prong test determines whether the exception applies: (1) "the conduct must be a ‘matter of choice for the acting employee[;]’ "¹² and (2) the "judgment [must be] of the kind that the discretionary function exception was designed to shield."¹³ Both prongs must be met for the exception to apply.¹⁴ With respect to the first prong, "[i]f a statute, regulation, or policy leaves it to a federal agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary."¹⁵ On the contrary, "[t]he requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’ "¹⁶ Regarding the second prong, the court "consider[s] whether the actions taken are ‘susceptible to policy analysis.’ "¹⁷ "[T]he proper inquiry ... is not whether [the official] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was ‘susceptible to policy analysis.’ "¹⁸ In performing the two-prong test, "the question of whether the government was negligent is irrelevant."¹⁹

IV.

The FTCA's discretionary function exception bars Gonzalez's claims. The district court categorized Gonzalez's claims into two groups: (1) the alleged failures to inspect and maintain the trails, and (2) the alleged failures to warn. We adopt the same useful organization.

Gonzalez alleges the government employees failed to meet a number of provisions from the Manual and Handbook. She argues that such provisions prescribe a course of action and contends that "routine property maintenance decisions are not susceptible to the kind of policy analysis shielded by the discretionary function [exception]." Gonzalez compares the government's actions to those of a business operator who makes decisions about premises safety. The Government responds that Ranger Smith and the other USFS officials had discretion in maintaining and inspecting their trails. The Government argues that no specific law or policy proscribed how employees should inspect and maintain the trails, and that the Manual and Handbook offer "general guidance." The Government urges, "[t]he determining factor is whether the challenged actions are ‘grounded in the policy of the regulatory regime,’ " and concludes that "trail inspection and maintenance are part of the essence of the regulatory regime set forth in the Manual, the Handbook,...