Weiss v. U.S., 88-1583

• Decision Date: 16 November 1989
• Docket Number: No. 88-1583,88-1583
• Citation: 889 F.2d 937
• Parties: Joseph WEISS, Jr. and Brigitte Weiss, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 937

889 F.2d 937

Joseph WEISS, Jr. and Brigitte Weiss, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 88-1583.

United States Court of Appeals Tenth Circuit.

Nov. 16, 1989.

Rehearing Denied July 20, 1990.

Shelley B. Don (Watson W. Galleher with him on the briefs), Denver, Colo., for plaintiffs-appellants.

William G. Pharo, Jr., Asst. U.S. Atty. (Michael J. Norton, Acting U.S. Atty., with him on the brief), Denver, Colo., for defendant-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR, and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

On August 23, 1976, a helicopter piloted by plaintiff-appellant Joseph Weiss, Jr., crashed in the Buckskin Canyon area of Pike National Forest after striking an aerial tramway cable suspended approximately 150 feet above the ground. The upper end of the tramway, and about two-thirds of the cable (including the point of impact), extended over federal land.

Weiss sued defendant-appellee United States of America, seeking damages under the Federal Tort Claims Act ("FTCA") for the injuries he sustained in the crash. Plaintiff-appellant Brigitte Weiss sought damages for loss of consortium. They made two claims for relief. Their negligence claim based upon the failure of the National Oceanic and Atmospheric Administration ("NOAA") to depict the cable as an obstruction on the Denver Sectional Aeronautical Chart was dismissed under the discretionary function exception to the FTCA. Their premises liability claim was dismissed on the grounds that Colorado law imposed no duty on the United States Forest Service ("Forest Service" or "USFS") to remove the cable or warn the public of its existence. On appeal, the dismissal of the first claim was affirmed, but the court found that a Colorado landowner could have a duty in this situation and reinstated the second claim. See Weiss v. United States, 787 F.2d 518 (10th Cir.1986).

On remand, the government raised the discretionary function exception. After a hearing, the United States District Court for the District of Colorado dismissed the suit. The only issue before us is the applicability of the discretionary function exception. The district court's determination that it lacked subject matter jurisdiction under the exception is reviewed de novo. McMichael v. United States, 856 F.2d 1026, 1031 (8th Cir.1988); Starrett v. United States, 847 F.2d 539, 541 (9th Cir.1988). We affirm the judgment against the Weisses.

The FTCA authorizes suits to recover for personal injuries caused by federal employees in cases "where the United States, if a private person, would be liable." 28 U.S.C. Sec. 1346(b). One exception to this waiver of sovereign immunity is "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty." 28 U.S.C. Sec. 2680(a).

I.

"[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (emphasis added); see also Ayala v. Joy Manufacturing Co., 877 F.2d 846, 848 (10th Cir.1989). The Weisses contend that the discretionary function exception does not bar their claim because the failure to mark or remove the tramway cable violated section 5714.16 of the Forest Service Manual. We agree with the trial court's decision that that section had "no applicability to this case." Memorandum Opinion and Order, Jan. 6, 1988, R. Vol. I at Tab 11, p. 4.

Section 5714.16, part of Title 5700--Air Operations, provides as follows:

"Hazards. The officer in charge, with the assistance of the Regional, Forest, or project air officer, will make every effort to locate and eliminate air hazards. This applies to natural and manmade hazards. If they cannot be eliminated, they will be marked, and air personnel informed of the potential danger. Future construction of powerlines, towers, tall buildings, and similar structures on National Forest land, should be planned so as to minimize or eliminate air hazards.

Each Forest should maintain a current flight hazard map showing flight hazards marked in red ink and located as accurately as possible. This should be used for briefing flight crews for any low-level air operation.

In event two or more aircraft on different missions arrive over a fire simultaneously without preestablished priorities, the following will be the standard order of mission priority: smokejumpers and their equipment, air-tanker operations, helicopter operations, aircargo, and reconnaissance. As each mission is completed, the pilot thereof will inform remaining crews.

Other areas should be restricted if, in the opinion of the air officer or pilots, a special hazard exists."

Were we to accept the Weisses' invitation to read the highlighted language out of context, we might agree that the Forest Service lacked discretion to leave the tramway unmarked. However, ostensibly mandatory provisions must be read "in their entirety," Dube v. Pittsburgh Corning, 870 F.2d 790, 793 (1st Cir, 1989), and such a reading indicates that section 5714.16 applies only to operations, such as fire suppression missions, conducted by the Forest Service or its contractors. This can be seen from the reference in the first paragraph to the "officer in charge," which means the officer in charge of a particular mission, see, e.g., R. Vol. II at 52-53 (testimony of William Munro, Forest Service aviation specialist); id. at 80 (testimony of Gary Cargill, Regional Forester for the Rocky Mountain Region), ¹ and from the third and fourth paragraphs.

Joseph Weiss was not on a Forest Service operation when the accident occurred. Buckskin Canyon was not the site of any such operation at that time. Section 5714.16 did not govern the situation and consequently was not violated. Therefore, it cannot be the basis of a finding that the Forest Service's conduct was not discretionary. See Dube v. Pittsburgh Corning, 870 F.2d at 793.

II.

Under 14 C.F.R. Sec. 77.23(a)(1), a Federal Aviation Administration ("FAA") regulation, no object less than 500 feet above ground level is an obstruction. This was the Forest Service's policy regarding what objects should be removed for the safety of civil aviation. See, e.g., R. Vol. II at 44-47 (testimony of Munro). Because the cable was only 150 feet in the air, it was consonant with Forest Service policy for it to be left unmarked.

The decision to adopt the FAA provision was an exercise of "discretionary regulatory authority of the most basic kind." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 819-20, 104 S.Ct. 2755, 2767-68, 81 L.Ed.2d 660 (1984); accord, e.g., Collins v. United States, 783 F.2d 1225, 1229 (5th Cir.1986); Comment, The Discretionary Function Exception and Mandatory Regulations, 54 U.Chi.L.Rev. 1300, 1332 (1987) ("The discretion of the government in promulgating, or failing to promulgate, regulations is unquestioned."). Conforming with a discretionary policy ...