Mahon v. United States , 742 F.3d 11 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2466
MICHAEL MAHON,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Alan S. Zwiebel, with whom Jonathan Fairbanks and Zwiebel &
Fairbanks, L.L.P. were on brief, for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
February 7, 2014
THOMPSON, Circuit Judge.
Setting the Stage
Today's case takes us to the Charlestown Navy Yard in
Charlestown, Massachusetts. Established in 1800, the Yard is now
a national historic site where one can see the USS CONSTITUTION
(the 216-year-old frigate famously nicknamed "Old Ironsides") and
the Commandant's House (a 19th-century mansion built for the Yard's
first commandant), among other celebrated attractions. Overseeing
the Yard is the Boston Historical Park Service, a unit of the
Interior Department's National Park Service ("Boston Park" and the
"Service," for short). Anyone can rent the Commandant's House for
weddings and such, thanks in part to Boston Park's contracting with
Eastern National to manage the House and Eastern National's
contracting with Amelia Occasions to handle the events. Rental
fees are not exactly cheap, running in the $3,500 neighborhood.
And under the agreements, Amelia Occasions gets to keep 80% of any
fee, while Boston Park and Eastern National get to split the rest.
An altogether tragic event at the Yard triggered a
lawsuit that is the focus of this appeal. Attending a wedding
reception at the Commandant's House, Michael Mahon fell from a
second-story portico. His resulting injuries left him a
quadriplegic. Convinced that he had fallen because of the
portico's (supposedly) dangerously-low railings, Mahon sued the
government on this theory, relying on the Federal Tort Claims Act
-2-
("FTCA," to save some keystrokes). See 28 U.S.C. §§ 1346(b), 2671-
2680.
For those unacquainted with the mysteries of the FTCA,
this statute waives the government's sovereign immunity for certain
torts committed by its employees in the scope of their employment.
See id. § 1346(b). Of course there are exceptions. See id.
§ 2680. And if one applies, the government gets its immunity back,
meaning it need not answer the claim in court because (to use a
little legalese) there is no subject-matter jurisdiction. See,
e.g., Muniz-Rivera v. United States, 326 F.3d 8, 12 (1st Cir.
2003). The exception most relevant here bars claims "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." See 28 U.S.C. § 2680(a). This is what is
called (commonsensically enough) the discretionary-function
exception. See, e.g., Muniz-Rivera, 326 F.3d at 14-15.
Invoking that exception, the government moved early on to
dismiss Mahon's case for lack of subject-matter jurisdiction. See
Fed. R. Civ. P. 12(b)(1). Mahon then amended his complaint, see
Fed. R. Civ. P. 15(a)(1)(b), adding claims against Eastern National
and Amelia Occasions. The government reasserted its motion. And
Mahon in turn opposed — but to no avail, as the district judge
granted the government's dismissal request.
-3-
Believing the judge got it wrong, Mahon moved for
reconsideration, see Fed. R. Civ. P. 59(e), 60(b), arguing that the
agreements involving Boston Park, Eastern National, and Amelia
Occasions were "concession contracts."1 And, he added, the
Service's policy manual (entitled "Management Policies") declares
in section 10.2.4.8 that concession contracts require concessioners
to prepare risk-management programs that jibe with the Occupational
Safety and Health Act of 1970 ("OSHA," from now on) — programs that
the park "superintendent" has to approve.2 All of this meant,
according to Mahon, that Eastern National and Amelia Occasions had
1
Broadly speaking, a "concession contract" is "a binding
written agreement between the Director [of the Service] and a
concessioner . . . that authorizes the concessioner to provide
certain visitor services within a park area under specified terms
and conditions." 36 C.F.R. § 51.3. But these services are
"limited to those . . . that are necessary and appropriate for
public use and enjoyment of the unit of the National Park System in
which they are located." 16 U.S.C. § 5951.
2
That section reads:
Concession contracts require each concessioner to develop
a risk management program that is (1) appropriate in
scope to the size and nature of the operation, (2) in
accord with [OSHA] and the [Service] concession risk
management program, and (3) approved by the
superintendent. Concessioners are responsible for
managing all of their operations to minimize risk and
control loss due to accident, illness or injury. To
ensure compliance, the Service will include a risk
management evaluation as part of its standard operation
review of concession operations.
Both sides rely on the 2006 edition of the policy manual, and we
will follow their lead in assuming that this version controls. See
Shansky v. United States, 164 F.3d 688, 691 n.3 (1st Cir. 1999)
(taking that tack in a similar situation).
-4-
to conduct risk-management assessments. Neither did, he said. But
had they done so, he added, Boston Park would have learned about
the portico's "impermissibly low railing," giving it a
nondiscretionary duty to fix the problem and thus placing his case
beyond the discretionary-function exception's reach. The judge
granted Mahon's motion, vacating the dismissal and letting
discovery go forward on the issue of whether "the defendants'
relationship was governed by a so-called 'concession contract'"
(which is how the judge characterized his ruling).
After some discovery, the government again moved to
dismiss for lack of subject-matter jurisdiction. And the judge
obliged, concluding among other things that even if the contracts
had been concession contracts, and even if Eastern National and
Amelia Occasions had created risk-management plans that dealt with
any railing problems, the government still had discretion to reject
the plan's recommendations — which, he ruled, brings Mahon's case
within the ambit of the discretionary-function exception.
This appeal followed.3 We now give fresh review to the
judge's dismissal order, taking as true all well-pled facts and
looking beyond the pleadings (to affidavits, depositions, exhibits,
3
For anyone wondering about Eastern National and Amelia
Occasions: By stipulation, Mahon voluntarily dismissed his claims
against Eastern National with prejudice. See Fed. R. Civ. P. 41.
His case against Amelia Occasions went to trial, however, and the
jury returned a verdict in Amelia Occasions' favor. And as our
case caption indicates, neither Eastern National nor Amelia
Occasions is a party to this appeal.
-5-
etc.) where necessary. See, e.g., Carroll v. United States, 661
F.3d 87, 94-95 (1st Cir. 2011); Merlonghi v. United States, 620
F.3d 50, 54 (1st Cir. 2010). And as we forge on, we keep two other
things in mind: first, Mahon has the burden of proving sovereign
immunity has been waived, see Skwira v. United States, 344 F.3d 64,
71 (1st Cir. 2003), and second, courts must construe the FTCA's
sovereign-immunity waiver strictly in the government's favor, see
Bolduc v. United States, 402 F.3d 50, 56 (1st Cir. 2005); see also
Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 39 (1st
Cir. 2000) (explaining that "this general waiver is far from an
open-ended panacea for would-be claimants").
Analyzing the Issues
The parties — who agree on very little — agree on the
legal principles that drive the discretionary-function inquiry. A
court must first zero in on the conduct that supposedly caused the
harm. See, e.g., Fothergill v. United States, 566 F.3d 248, 252
(1st Cir. 2009). Next the court must ask whether the harm-
producing conduct itself is discretionary, knowing that when a
"statute, regulation, or policy" actually dictates "a course of
action," the agent has no choice but to follow the "directive."
Berkovitz v. United States, 486 U.S. 531, 536 (1988); accord
Fothergill, 566 F.3d at 253 (also adding that "[i]n carving out the
discretionary function exception, Congress wanted to prevent courts
from second-guessing legislative and administrative
-6-
decisionmaking"). If the conduct does involve choice, then the
court must ask "whether the exercise or non-exercise of the granted
discretion is actually or potentially" affected by policy-related
judgments. Fothergill, 566 F.3d at 252 (citing Bolduc and
Shansky). Of course the law presumes that discretionary acts
involve policy judgments. See, e.g., Bolduc, 402 F.3d at 62
(citing, among other cases, United States v. Gaubert, 499 U.S. 315,
324 (1991)). Anyway, "yes" answers to both questions mean the
discretionary-function exception holds sway and sovereign immunity
blocks the litigation. But a "no" answer to either question means
the exception does not apply and the suit may continue.
As for the harm-producing conduct, Mahon basically
complains about Boston Park's (alleged) failure to deal with the
"threat" created by the portico's "dangerously low railing." Cf.
Fothergill, 566 F.3d at 253 (explaining that the discretionary-
function exception pivots "on the nature and quality of the harm-
producing conduct, not on the plaintiffs' characterization of that
conduct"). He then makes the following multifaceted argument (sort
of a reprise of what he argued below): (1) The contracts involving
Boston Park, Eastern National, and Amelia Occasions are concession
contracts. (2) Consistent with section 10.2.4.8 of the Service's
policy manual, Eastern National and Amelia Occasions had to
generate a risk-management plan — a plan that Boston Park had to
accept. (3) But Boston Park let Eastern National and Amelia
-7-
Occasions get away without writing one. (4) And a "proper plan"
would have highlighted the low-railing situation and proposed
solutions (raising the railing's height, using potted plants or
ropes to keep visitors away from the railing, etc.), leaving Boston
Park no choice but to implement what would have been the plan's
proposed fixes.
"The simplest way to decide a case is often the best," we
have said. Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242,
248 (1st Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d 560,
564 n.4 (8th Cir. 1998) (R. Arnold, J.)). That is true here, as
the district judge showed. And that way leads straight to
affirmance.
Whether the much-discussed contracts are concession
contracts is an interesting question. But it is one we need not
tackle. You see, even assuming for argument's sake that these are
concession contracts requiring risk-management assessments, that
Eastern National and Amelia Occasions had prepared reports that
touched on the railing issue, and that Boston Park then opted not
to implement their recommendations, Mahon's discretionary-function
theory still fails.
On the first question posed by our test, Mahon flags no
discretion-restraining statute, regulation, or policy that compels
Boston Park to adopt a concessioner's risk-management proposals,
whether they be increasing the railing's height, plunking down
-8-
potted plants or stringing up rope to stop visitors from getting to
the railing — or anything else, for that matter. He makes much of
the fact that the policy manual requires Boston Park to review and
approve a concessioner's risk-management program. But he
identifies nothing there (or elsewhere) suggesting that Boston Park
must carry out whatever changes a concessioner pushes. Also
problematic for him is this: Even the manual on which he pins his
hopes says (in section 8.2.5.1) that the Service's policies do not
impose park-specific visitor-safety requirements, noting, for
example, that "safeguards" like "railings" might "not be
appropriate or practicable in a national park setting." "Park
visitors," it adds, "must assume a substantial degree of risk and
responsibility for their own safety when visiting areas that are
managed and maintained as natural, cultural, or recreational
environments." And, perhaps most importantly, while saving lives
is unquestionably a priority, the Service and its functionaries
have "discretion" in carrying out that task, the manual stresses.4
4
Here is how that section pretty much appears in the policy
manual:
The saving of human life will take precedence over all
other management actions as the Park Service strives to
protect human life and provide for injury-free
visits. . . .
. . . When practicable and consistent with
congressionally designated purposes and mandates, the
Service will reduce or remove known hazards and apply
other appropriate measures, including closures, guarding,
signing, or other forms of education. In doing so, the
-9-
What we just said undoes Mahon's theory that the
government's hands are tied on this subject. In other words, given
the record here, the decision whether to implement concessioner-
generated risk-management recommendations involves choice. And
that means that the complained-of conduct — essentially, how the
government "manage[s] risks" (to quote Mahon) — is the product of
discretion. See, e.g., Fothergill, 566 F.3d at 253; Bolduc, 402
F.3d at 61; Shansky, 164 F.3d at 691.
That leaves this question: Is the discretion policy-
driven — that is, is it fueled by "variables about which reasonable
persons can differ"? See Fothergill, 566 F.3d at 253. The law
presumes that it is, as we said a few paragraphs ago. See, e.g.,
Bolduc, 402 F.3d at 62. It was up to Mahon, then, to rebut that
presumption. See, e.g., id. This he has not done. Which is not
Service's preferred actions will be those that have the
least impact on park resources and values.
. . . Park visitors must assume a substantial degree of
risk and responsibility for their own safety when
visiting areas that are managed and maintained as
natural, cultural, or recreational environments.
These management policies do not impose park-specific
visitor safety prescriptions. The means by which public
safety concerns are to be addressed is left to the
discretion of superintendents and other decision-makers
at the park level who must work within the limits of
funding and staffing. Examples include decisions about
whether to . . . install guardrails and fences . . . .
Some forms of visitor safeguards typically found in other
public venues — such as fences [and] railings . . . — may
not be appropriate or practicable in a national park
setting.
-10-
surprising. After all, deciding what if any changes to make or
precautions to take at the Commandant's House requires a balancing
of competing values — "efficiency, safety, aesthetics, and cost"
come quickly to mind. See Fothergill, 566 F.3d at 253. And that
is the stuff of policy analysis. See, e.g., id.; Shansky, 164 F.3d
at 695.
But above and beyond this unrebutted presumption, we note
that the government also put on affirmative evidence that decisions
concerning the railing's height implicated policy judgments.
Specifically, the government noted that a contractor working on the
portico months after Mahon's accident said that the railing did not
comply with the Massachusetts building code's 42-inch height
requirement. Despite the contractor's concerns about safety, the
government chose not to bump up the railing's height to 42 inches
because doing so would have altered the historic appearance of the
Commandant's House.
The bottom line, then, is that the government's
discretion here is deeply rooted in policy considerations. And
Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995), does not change
matters, despite what Mahon says. Cope got hurt in a car accident
on a road in a park maintained by the Service. Id. at 446-47.
Suing the government, he alleged in part that the Service's failure
to post sufficient warning signs at a dangerous curve had caused
the mishap. Id. Among other things, the Cope court stressed that
-11-
the Service already had put up nearly two dozen traffic devices and
signs along the drive — steps that suggested that the Service had
already made the policy choice to choose safety over aesthetics.
See id. at 452; see also Shansky, 164 F.3d at 694 (discussing
Cope). Critically, too, the government could not point to a
sufficient policy basis to justify not adding more or different
signs — signs that could have ensured that the Service's already-
taken safety steps worked better. Cope, 45 F.3d at 452. To put
this slightly differently, the government there never explained how
the placement of additional signs involved protected discretionary
decisions. Id. That is worlds apart from our case. So Cope does
not help Mahon.
Summing Up
Mahon's injuries are truly saddening. Yet "hard as our
sympathies may pull us, our duty to maintain the integrity of the
substantive law pulls harder." Medina-Rivera v. MVM, Inc., 713
F.3d 132, 138 (1st Cir. 2013) (quoting Turner v. Atl. Coast Line
R.R. Co., 292 F.2d 586, 589 (5th Cir. 1961) (Wisdom, J.)). And
having concluded that the FTCA's discretionary-function exception
bars Mahon's claims against the government (no matter how strong
they are), we must uphold the district judge's order dismissing the
case for lack of subject-matter jurisdiction.
Affirmed. No costs to either party.
-12-