Davallou v. United States ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1523
A. MICHAEL DAVALLOU,
Plaintiff, Appellant,
v.
UNITED STATES,
Defendant, Appellee,
ANCIENT AND HONORABLE ARTILLERY COMPANY
OF MASSACHUSETTS; EMERY A. MADDOCKS, JR.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Scott E. Charnas, with whom Charnas Law Firm, P.C., Thomas R.
Murphy, Law Offices of Thomas R. Murphy, LLC, Kevin J. Powers, and
Law Offices of Kevin J. Powers were on brief, for appellant.
Thomas E. Kanwit, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
May 25, 2021
KAYATTA, Circuit Judge. Michael Davallou alleges that
he suffered permanent hearing damage when the Massachusetts Army
National Guard (MANG) negligently fired military artillery "in
close proximity" to him while he walked through Boston Common. He
filed suit against the United States under the Federal Tort Claims
Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680. The district court
dismissed the suit, finding that the United States was entitled to
sovereign immunity pursuant to the FTCA's so-called "discretionary
function exception." See id. § 2680(a). For the following
reasons, we affirm.1
I.
We recite the facts alleged in Davallou's complaint,
taking as true all well-pleaded facts and drawing all reasonable
inferences in Davallou's favor. See Fothergill v. United States,
566 F.3d 248, 251 (1st Cir. 2009). On June 1, 2015, the Ancient
and Honorable Artillery Company of Massachusetts (AHAC), a
historic military organization with no present-day military
functions, conducted its annual "Change of Command" ceremony, also
known as the "June Day" ceremony. AHAC "organized, directed,
arranged, supervised and controlled" the ceremony, as it had done
1 Given that we affirm the district court's application of
the discretionary function exception, we do not address its
alternative conclusion that the FTCA does not apply because a
private individual would not be liable for the challenged conduct
under like circumstances. See 28 U.S.C. § 2674.
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each year since at least 2010. As part of the annual ceremony,
AHAC "arranged for military artillery to be fired within Boston
Common [by MANG] . . . in the presence of members of the public."
In keeping with this tradition, MANG performed an artillery salute
during the June 2015 ceremony, firing blank rounds from howitzers
(a type of cannon). The noise produced by the howitzers caused
Davallou, who was walking on Boston Common at the time, to suffer
permanent hearing damage.
Davallou filed suit against the United States, alleging
that MANG negligently caused his hearing loss by failing to warn
him before firing the howitzers and by failing to ensure that he
remained at a safe distance from the howitzers.2 The government
moved to dismiss the suit pursuant to the doctrine of sovereign
immunity, arguing that Davallou's negligence claim arose out of
MANG members' "performance [of] . . . a discretionary function."
28 U.S.C. § 2680(a). The district court agreed and dismissed
Davallou's suit against the United States for lack of subject-
matter jurisdiction. Davallou appeals.
2 Davallou also brought negligence claims against AHAC and
its Executive Secretary, Emery A. Maddocks, Jr., but later
stipulated to their dismissal pursuant to a settlement agreement.
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II.
We review de novo the district court's dismissal for
lack of subject-matter jurisdiction. See Shansky v. United States,
164 F.3d 688, 690 (1st Cir. 1999). Federal courts lack subject-
matter jurisdiction over claims against the United States absent
a waiver of sovereign immunity. See Villanueva v. United States,
662 F.3d 124, 126 (1st Cir. 2011). The FTCA "waives the [federal]
government's sovereign immunity for certain torts committed by its
employees in the scope of their employment."3 Mahon v. United
States, 742 F.3d 11, 12 (1st Cir. 2014); see also 28 U.S.C.
§ 1346(b)(1). But that waiver does not extend to claims based
upon a government employee's exercise or failure to exercise a
"discretionary function." See Mahon, 742 F.3d at 12; 28 U.S.C.
§ 2680(a). The pivotal question is whether Davallou's claim falls
within the scope of this "discretionary function exception." If
so, it must be dismissed for lack of subject-matter jurisdiction.
See Bolduc v. United States, 402 F.3d 50, 55 (1st Cir. 2005).
To determine whether the discretionary function
exception applies, we follow a "familiar analytic framework."
Shansky, 164 F.3d at 690. First, we must "identify the conduct
that allegedly caused the harm." Id. at 690–91. Here, Davallou
focuses on two omissions by MANG: failing to issue a warning
3 The government concedes that MANG members were acting as
federal employees at all times relevant to the complaint.
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before firing the howitzers and failing to ensure that bystanders
maintained a safe distance from the howitzers. Second, we must
ask whether that conduct is both "discretionary," id. at 691, and
"susceptible to policy analysis," id. at 692. Because no federal
statute, regulation, or policy dictated MANG's safety protocols
during the June Day ceremony, the parties agree that the challenged
conduct was discretionary. Davallou's claim therefore turns on
his contention that MANG's exercise of discretion under the
circumstances was not susceptible to policy analysis.
Although we employ a "case-by-case approach" when
evaluating whether challenged government conduct is susceptible to
policy analysis, id. at 693, several principles guide our inquiry.
First, the discretionary function exception is not limited to high-
level policymaking or planning functions. Rather, it can apply as
well to day-to-day operational decisions. United States v.
Gaubert, 499 U.S. 315, 325 (1991). Second, it does not matter
whether MANG consciously engaged in any analysis of any policy
considerations, see Shansky, 164 F.3d at 692, or whether its
decision on how to proceed "was in fact motivated by a policy
concern," Hajdusek v. United States, 895 F.3d 146, 150 (1st Cir.
2018). Rather, we ask only whether "some plausible policy
justification could have undergirded" MANG's conduct. Shansky,
164 F.3d at 692. Nor does it matter, for purposes of the
discretionary function exception, whether MANG's conduct was
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ultimately negligent: The exception shields the government from
liability for discretionary policy choices "whether or not the
discretion involved be abused." Evans v. United States, 876 F.3d
375, 381 (1st Cir. 2017) (quoting 28 U.S.C. § 2680(a)). Finally,
because the law presumes that government employees' discretionary
decisions do indeed involve policy judgments, Davallou bears the
burden of alleging facts that would support a finding that MANG's
exercise of discretion in this instance was not susceptible to
policy analysis. See Gaubert, 499 U.S. at 324–25 ("For a complaint
to survive a motion to dismiss [based on the discretionary function
exception], it must allege facts which would support a finding
that the challenged actions are not the kind of conduct that can
be said to be grounded in the policy of the regulatory regime.").
Considering all the circumstances alleged, we conclude
that Davallou has not met this burden. Deciding how to handle
safety considerations at the annual June Day ceremony implicated
a number of competing values, including the efficient allocation
of resources, the historical and ceremonial functions of the event,
the public's ability to view the event, and the value of the event
as a military training or recruitment exercise. Cf. Mahon, 742
F.3d at 16 (applying the discretionary function exception to the
government's decision not to raise the railing height in a historic
building because it actually or potentially involved
considerations of efficiency, safety, aesthetics, and cost).
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Given that AHAC allegedly "organized, directed, arranged,
supervised and controlled" the June Day ceremony for years without
any prior report of injury, it is plausible that MANG could have
weighed the various policy considerations and favored the lower
cost and greater efficiency of relying on AHAC generally when it
came to safely managing spectators. Cf. Carroll v. United States,
661 F.3d 87, 104 (1st Cir. 2011) (applying the discretionary
function exception where the government ceded responsibility for
managing known safety risks to independent contractors); Wood v.
United States, 290 F.3d 29, 40 (1st Cir. 2002) (holding that the
"delegation of the responsibility for safety issues to the
contractor suggests that . . . the [Navy] had determined already
that in obtaining the 'best value' for the American taxpayer,
worker safety should be a primary concern of the contractor" rather
than the Navy).
One can imagine circumstances in which such policy
considerations could not plausibly have informed MANG's conduct.
Imagine, for example, that unprotected individuals were standing
an arm's length away from the howitzers as MANG prepared to fire.
With MANG thus on notice that AHAC's safety precautions were
failing and that spectators were in imminent danger, the
government's proffered policy justifications for firing the
howitzers "may be so far-fetched as to defy any plausible nexus
between the challenged conduct and the asserted justification."
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Shansky, 164 F.3d at 695; accord Hajdusek, 895 F.3d at 152
(predicting that a decision to have Marine Corps recruits "jump
off a twenty-foot high cliff onto concrete" during training would
not be protected, as such a decision would "amount to a complete
rejection" of safety considerations).
Such cases, though, "invariably involve extreme
circumstances." Shansky, 164 F.3d at 695. As in Hajdusek,
Davallou's complaint alleges no facts "supporting an inference
that [the defendant] would have [had] reason to know ex ante that
the [challenged conduct] was sufficiently likely to cause serious
injury as to deem it the product of a rejection of a policy goal
rather than a balancing of such goals." 895 F.3d at 153. Rather,
the complaint alleges in conclusory terms that MANG fired artillery
in a ceremony organized and controlled by AHAC without first
issuing a warning or making a "reasonable effort to keep members
of the public including plaintiff a safe distance from said
artillery." In similarly vague terms, the complaint further
alleges that MANG fired that artillery "in close proximity to
civilians," including Davallou, even though "[t]he level of noise
and/or sonic waves produced by the firing of said military
artillery . . . was sufficient to cause tinnitus, permanent damage
to hearing, and other injury to human beings." We do not know
from the complaint where in the park the ceremony was held, how
close AHAC allowed the public (including Davallou) to get to the
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howitzers at the time of the artillery salute, or whether anyone
was even aware of Davallou's presence when the howitzers were
fired. We also do not know how far from the howitzers the public
would have had to stand in order to avoid any substantial risk of
hearing loss. Nor is there reason to believe that anyone else had
previously suffered injury as a result of AHAC's supervision of
the annual June Day ceremony. Without at least some such
averments, Davallou has not carried his burden of alleging facts
that could support a finding that MANG exhibited such a complete
disregard for public safety that its decisions could not have been
driven by policy analysis. See Gaubert, 499 U.S. at 324–25.
In arguing to the contrary, Davallou points to a line of
cases from the Ninth Circuit holding that a "decision not to warn
of a specific, known hazard for which the acting agency is
responsible is not the kind of broader social, economic or
political policy decision that the discretionary function
exception is intended to protect." Sutton v. Earles, 26 F.3d 903,
910 (9th Cir. 1994) (emphasis added); accord, e.g., Green v. United
States, 630 F.3d 1245, 1252 (9th Cir. 2011) (finding that the
discretionary function exception did not apply to the Forest
Service's failure to warn property owners of its decision to light
a backfire nearby). But none of the Ninth Circuit cases Davallou
relies on dealt with the policy consideration applicable here (the
advantages of relying on AHAC as before). And if we were to read
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those cases as broadly as Davallou does, they would place outside
the discretionary function exception all instances in which the
government knowingly creates a risk of injury without issuing a
warning, even if the risk is minimal and a particular type of
warning would undermine competing policy interests. Such a
sweeping approach is contrary to our precedents. We have
previously rejected the notion that "when safety becomes an issue,
all else must yield." Shansky, 164 F.3d at 693 (explaining that
"there is no principled basis for superimposing a generalized
'safety exception' upon the discretionary function defense").
Rather, as we have already explained, a "case-by-case approach is
required." Id.; accord Hajdusek, 895 F.3d at 150.
Davallou falls back on the argument that MANG's conduct
was "not readily amenable to policy analysis" because it implicated
only "technical safety assessments conducted pursuant to prior
policy choices." Shansky, 164 F.3d at 694; see also Berkovitz v.
United States, 486 U.S. 531, 547 (1988) (concluding that the
government's approval of an unsafe vaccine batch was not
susceptible to policy analysis because the government had failed
to follow already-settled scientific criteria for assessing
vaccine safety). In advancing this argument, he relies solely on
a training manual prepared by the U.S. Army Public Health Command,
entitled "Readiness through Hearing Loss Prevention," which
recognizes that firing a 155-millimeter howitzer creates a risk of
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hearing loss. But, unlike the vaccine safety standards in
Berkovitz, the training manual does not purport to establish
concrete safety criteria that account for any risk to public safety
or any of the other competing interests that MANG might have
considered in this instance. Rather, the manual simply explains
how noise can cause hearing loss, how service members using
military equipment can protect themselves from noise, and how
hearing loss can adversely affect readiness for combat. This sort
of general educational information does not remove MANG's conduct
in this case from the realm of policy decisions. Cf. Shuman v.
United States, 765 F.2d 283, 285–86, 293–94 (1st Cir. 1985)
(finding that the Navy's promulgation of advisory safety
guidelines for shipyards did not eliminate the Navy's discretion
to prioritize production over safety).
III.
This is a challenging case, and a sad one. Assuming
that his allegations are true, Davallou was simply taking a walk
through one of our country's most celebrated city parks when,
through no fault of his own, he was exposed to noise loud enough
to cause permanent hearing damage. Our federal government,
however, does not allow itself to be sued for its discretionary
decisions, even bad ones, so long as they are reasonably
susceptible to policy analysis. And on the facts alleged,
additional precautions were not so obviously needed that the
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decisions to proceed according to tradition and to leave the
management of spectators to AHAC fell outside the realm of possible
policy decisions. We therefore affirm the judgment of the district
court.
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