Rothrock v. U.S.

• Decision Date: 07 August 1995
• Docket Number: No. 94-3965,94-3965
• Citation: 62 F.3d 196
• Parties: Michael J. ROTHROCK and Edelle Rothrock, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 196

62 F.3d 196

Michael J. ROTHROCK and Edelle Rothrock, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 94-3965.

United States Court of Appeals Seventh Circuit.

Argued June 8, 1995.

Decided Aug. 7, 1995.

Peter C. King (argued), J. Kevin King, Cline, King & King, Columbus, IN, for Michael J. Rothrock and Edelle Rothrock.

Sue Hendricks Bailey, Asst. U.S. Atty., Indianapolis, IN, Paul F. Figley, Elizabeth A. Russell (argued), Dept of Justice, Torts Branch, Civ. Div., Washington, DC, for U.S.

Before CUMMINGS, ESCHBACH, and RIPPLE, Circuit Judges.

ESCHBACH, Circuit Judge.

Michael and Edelle Rothrock ("Rothrocks") appeal the district court's dismissal of their action for lack of subject matter jurisdiction. The district court held that the Rothrocks' complaint, brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 2671-2680, was barred by the FTCA's discretionary function exception, 28 U.S.C. Sec. 2680(a). It also denied the Rothrocks' motion for an extension of time to conduct additional discovery. We affirm.

I.

On November 7, 1991, Michael Rothrock was traveling in the northbound lane of Interstate 65 across a bridge north of mile marker 76 in Bartholomew County, Indiana, when his car rolled down a steep embankment adjacent to the north exit of the bridge. Rothrock was left paralyzed by the accident. According to the Rothrocks, the accident was caused by the absence of a guardrail at the point in the bridge where the car slid down the embankment. Apparently, a guardrail had been installed when the State of Indiana first built Interstate 65 in the early 1960's under the Federal-Aid Highway Act, whereby states are provided with federal funds for state highway projects. In 1988, however, when the State resurfaced the bridge through a grant of federal funds, the guardrail was removed from the spot in question.

On July 1, 1994, the Rothrocks sued the United States under the Federal Tort Claims Act to recover for Michael Rothrock's injuries. The Rothrocks contend that the Federal Government is liable for failing to ensure, as a condition of its funding decision, that the bridge was constructed in accordance with the safety standards it references for such decisions, including those adopted by the American Association of State Highway Traffic Officials ("AASHTO"). On September 6, 1994, the United States moved to dismiss the action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that the decision whether to enforce certain safety guidelines in funding Indiana's highway construction is protected by the discretionary function exception to the FTCA. In response, the Rothrocks moved for an extension of time to conduct further discovery they deemed necessary to respond to the motion. The district court denied the Rothrocks' request for an extension of time and the United States moved for a protective order upon receiving the Rothrocks' discovery requests. On November 17, 1994, the district court granted the United States' motion to dismiss for lack of subject matter jurisdiction and denied the United States' motion for a protective order as moot. The Rothrocks filed a timely notice of appeal.

II.

The central question in this case is whether the discretionary function exception to the United States' waiver of sovereign immunity in the FTCA applies so as to bar subject matter jurisdiction. We review de novo the district court's dismissal of a complaint under Rule 12(b)(1). Young v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184, 185 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 320, 130 L.Ed.2d 281 (1994).

The FTCA is a "broad waiver of sovereign immunity." Berkovitz v. United States, 486 U.S. 531, 535, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). There are, however, a number of exceptions to this statute whereby the United States retains its immunity from suit. ¹ Under Sec. 2680(a), no liability against the United States shall lie if a claim is "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 is abused." According to several recent Supreme Court cases, see, e.g., United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991); Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958, there are two factors in determining whether this "discretionary function" exception bars a plaintiff's suit against the United States. First, the exception "covers only acts that are discretionary in nature, acts that 'involv[e] an element of judgment or choice.' " Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273, (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958). Thus, "[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.' " Id. Second, "even 'assuming the challenged conduct involves an element of judgment,' it remains to be decided 'whether that judgment is of the kind that the discretionary function was designed to shield.' " Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1959). Since the purpose of the exception was to prevent "judicial 'second guessing' of legislative and administrative decisions grounded in social, economic, and political policy," Berkovitz, 486 U.S. at 536-37, 108 S.Ct. at 1959 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2756, 81 L.Ed.2d 660 (1984)), it "protects only governmental actions and decisions based on considerations of public policy." Id. at 537, 108 S.Ct. at 1959.

A brief discussion of the statutes and regulations involved in this case amply illustrates the substantial discretion afforded to the Government agents in deciding whether to enforce its safety standards in funding Indiana's bridge resurfacing. The Federal-Aid Highway Act, 23 U.S.C. Secs. 101-58, was intended to accelerate the construction of the nation's highway system through federal grants to state highway construction projects. 23 U.S.C. Sec. 101(b). Under this system, states seeking funding must submit all plans, specifications, and estimates to the Secretary of Transportation for approval. 23 U.S.C. Sec. 105(a) and 106(a). The Secretary is directed not to approve such funding requests

if they fail to provide for a facility (1) that will adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance; (2) that will be designed and constructed in accordance with standards best suited to accommodate the foregoing objectives and to conform to the particular needs of each locality.

23 U.S.C. Sec. 109(a). In making this clearly discretionary judgment, Congress directs the Secretary to formulate guidelines for the approval of projects "in the best overall public interest," taking into account such considerations as safety, efficiency, and cost. 23 U.S.C. Sec. 109(h). The statute also directs the Secretary to consider the following factors:

(1) air, noise and water pollution;

(2) destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and the availability of public facilities and services;

(3) adverse employment effects, and tax and property value losses;

(4) injurious displacement of people, businesses and farms; and

(5) disruption of desirable community and regional growth.

23 U.S.C. Sec. 109(h). The sheer number of factors involved suggests that Congress intended these decisions to be made as an exercise of judgment and choice. See Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. The Secretary has delegated the responsibility of approving projects and developing these guidelines to the Federal Highway Administration ("FHWA"), an agency within the Department of Transportation. In approving bridge projects, the FHWA specifically references the AASHTO safety standards. See 23 C.F.R. Sec. 625.4(b); 23 C.F.R. Sec. 650.405(b)(2). However, projects may be approved despite nonconformance to these standards "where conditions warrant that exceptions be made ... after due consideration is given to all project conditions such as maximum service and safety benefits for the dollar invested...." 23 C.F.R. Sec. 625.3(f)(1)(ii) and (2). Thus, in deciding whether to fund Indiana's bridge resurfacing project despite the alleged nonconformance with certain AASHTO standards, the FHWA is charged with balancing a mix of factors such as cost and safety. This is inherently a discretionary judgment involving the balancing of a mix of policy factors. See Baum v. United States, 986 F.2d 716, 724 (4th Cir.1993) (the decision whether to replace a guardrail is "at bottom a question of how to best allocate resources. Such a decision is inherently bound up in considerations of economic and political policy, and accordingly is precisely the type of governmental decision that Congress intended to insulate."). As the Tenth Circuit found in a factually similar case involving the same statutes and regulations, "[w]hile portions of the standards, specifications, policies, and guides deal with the specifics of engineering criteria for highways, they are not prescribed as mandatory standards ... but are instead part of the overall regulatory scheme involving policy decisions and competing considerations." Miller v. United States, 710 F.2d 656, 666-667 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (19...