Majority Says, Over Dissent, That ‘Discretion Function Exception’ to Consent to Suit Applies
By a MetNews Staff Writer
The federal government is not liable based on having failed to cut down an old oak tree in a campsite that fell during the night, hitting another tree which also plummeted, with that tree crushing the toe of the plaintiff who was asleep in his tent, the Ninth U.S. Circuit Court of Appeals held yesterday, over a dissent.
The Discretionary Function Exception (“DFE”) to the federal government’s consent to being sued for injuries—contained in the Federal Tort Claims Act—is applicable, the majority declared. Its opinion affirms Magistrate Judge Laurel D. Beeler’s dismissal with prejudice of an action brought in the District Court of the Northern District of California by the injured man, Phong Lam.
District Court Judge C. Ashley Royal of the Middle District of Georgia, sitting by designation, wrote the majority opinion, signed by Circuit Judge Milan D. Smith Jr. The dissenter was Circuit Judge Andrew D. Hurwitz.
Requisites for Exception
Royal wrote that the Army Corps of Engineers had no policies relating to the Lake Mendocino recreation area that were violated by the maintenance worker, Wayne Shull, who made the decision not to cut down the oak tree. Shull had discretion, “and that discretion is susceptible to policy analysis,” satisfying the requisites for the exemption, the visiting judge said.
The mishap occurred in 2014. For nine years before that, Shull, employed by involved the Army Corps, scoured the park to determine which trees were dangerous and should be felled.
He had inspected the oak in question and saw no reason to have it cut down.
Wording of DFE
The DFE provides:
“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.”
“It is not just any discretion, however, that triggers the DFE.”
Pointing to the U.S. Supreme Court’s 1988 decision in Berkovitz v. United States and its 1991 opinion in United States v. Gaubert, she said:
“The Supreme Court has created a two-part test, known as the Berkovitz/Gaubert test, to determine the types of discretionary acts covered by the DFE. First, ‘conduct cannot be discretionary unless it involves an element of judgment or choice.’…Second, the court must decide if ‘that judgment is of the kind that the discretionary function exception was designed to shield.”
Applying the test, Royal said:
“Because the Lake Mendocino policies have no specific mandatory requirements for maintaining, identifying, or removing dangerous trees, Shull had discretion to act according to his judgment in assessing trees. This discretion satisfies the first part of the Berkovitz/Gaubert test. Now we will turn to the second part of the test.”
She went on to set forth:
“[T]he decision of whether to cut down a tree is susceptible to competing policy considerations. One goal is to maximize recreation opportunities while another goal is to protect resources. One cannot maximize both. These goals also include preserving and enhancing park resources and aesthetics. Keeping the Lake beautiful will eventually compete with maximizing play. And aesthetics is a policy issue.”
In his dissent, Hurwitz insisted that the majority’s decision contravenes the Ninth Circuit’s 2019 decision in Kim v. United States. He wrote:
“I do not dispute that the relevant Army Corps of Engineers policies allow government workers to exercise professional judgment in deciding which trees to remove at Lake Mendocino. But I depart from the majority’s conclusion that this is a “policy judgment” covered by the discretionary function exception.
“In arriving at a contrary conclusion, the majority gives short shrift to Kim, which involved a virtually identical claim. In Kim, we held that a government worker’s decision not to remove a tree from Yosemite National Park, pursuant to an agency policy about removal of hazards, did not trigger the discretionary function exception.”
In a concurring opinion, not signed by Smith, Royal said the facts in the case at hand and in Kim were “very similar,” but the policies involved in the two cases “are very different.” She explained:
“In Kim, the technical requirements were written into the policies, but here they are not. The Lake Mendocino policies allow broad discretion; the Yosemite National Park polices were technical and tight, which left the park rangers with technical considerations alone. This is the decisive difference in the two cases and the reason Kim does not control our ruling.”
The case is Lam v. United States, 19-16243.
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