Tippett v. United States ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 10 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
FRANK TIPPETT and JUDY RAND,
Plaintiffs-Appellants,
v. No. 95-8080
UNITED STATES OF AMERICA and
ROBERT LOWE, dba Best
Adventures,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 95-CV-77)
Submitted on the briefs:
Alan C. Sang of Carmen, Beauchamp, & Sang, Deerfield Beach, Florida, and
Terry W. Mackey and Mark R. Stewart of Hickey, Mackey, Evans, Walker &
Stewart, Cheyenne, Wyoming, for Plaintiffs-Appellants.
David D. Freudenthal, United States Attorney and Nicholas Vassallo, Assistant
United States Attorney, Cheyenne, Wyoming, for Defendants-Appellees.
Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, * District
Judge.
*
Honorable G. Thomas Van Bebber, Chief Judge, United States
District Court for the District of Kansas, sitting by designation.
BRISCOE, Circuit Judge.
The district court dismissed plaintiffs’ claims brought under the Federal
Tort Claims Act, (FTCA) 28 U.S.C. §§ 1346(b) and 2671-80, for lack of subject
matter jurisdiction, finding that the discretionary function exception to the limited
waiver of sovereign immunity contained in the FTCA barred plaintiffs’ claims. 2
We affirm.
Plaintiff Frank Tippett and his wife Judy Rand were members of a guided
snowmobile tour exploring parts of Yellowstone National Park in February 1993.
Plaintiffs’ group entered the park through the south gate and, as they began up the
road toward Old Faithful, they encountered a moose standing in the road. When a
group of snowmobilers ahead of plaintiffs’ group attempted to pass the moose, the
moose charged one of the snowmobiles and knocked two passengers to the
ground. The moose then proceeded south past plaintiffs’ vehicles, and plaintiffs’
group proceeded into the interior of the park.
2
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
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Mr. Dave Phillips, a Yellowstone park ranger, learned of the moose’s
presence and monitored its activities during the day. At the end of the day, he
observed several groups of snowmobilers going southbound who successfully
passed the moose on their way out of the park. 3 When plaintiffs’ group
approached the moose in the course of their departure, Ranger Phillips directed
them to pass the moose on the right, staying in line with other snowmobilers. 4 As
Mr. Tippett attempted to go around the moose, the animal charged his vehicle and
kicked in his windscreen striking him in the helmet and knocking him off the
snowmobile. Mr. Tippett suffered a broken neck from which he has since
recovered; the moose broke one of its legs as a result of the encounter and had to
be destroyed.
Plaintiffs filed negligence and loss of consortium claims against the United
States under the FTCA. As noted above, the district court dismissed plaintiffs’
claims finding them barred by the discretionary function exception to the Act.
Because resolution of the jurisdictional issue in this case was intertwined with the
3
Two hundred eighty-eight snowmobiles, carrying 350 people, entered
the park at the south entrance on this particular day.
4
The evidence is in dispute regarding whether Ranger Phillips simply
shared his observations with plaintiffs or actively directed them to take a certain
course. The district court did not resolve this issue, as it was unnecessary to do
so. As we discuss below, if plaintiffs’ claims are barred by the discretionary
function exception, the shield of the FTCA will preclude liability for the United
States even where Ranger Phillips’ conduct was negligent. See Domme v. United
States, 61 F.3d 787, 789 (10th Cir. 1995).
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merits, see Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, 484
U.S. 986 (1987), the district court was required to convert the government’s
12(b)(1) motion into a Rule 12(b)(6) motion or a Rule 56 motion for summary
judgment, see Holt, 46 F.3d at 1003. Because the district court considered
matters outside of the pleadings, and in an exercise of our plenary power, we treat
the government’s motion as a motion for summary judgment under Rule 56, see
Redmon ex rel. Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991).
Under the FTCA, the United States waives its sovereign immunity with
respect to certain injuries caused by government employees acting within the
scope of their employment. 28 U.S.C. § 1346(b). The FTCA contains an
exception to this broad waiver of immunity, however, for 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." Id. § 2680(a).
Section 2680(a) is commonly referred to as the "discretionary function
exception" to the FTCA. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1537 (10th
Cir.1992). "The discretionary function exception . . . marks the boundary
between Congress' willingness to impose tort liability upon the United States and
its desire to protect certain governmental activities from exposure to suit by
private individuals." United States v. S.A. Empresa de Viacao Aerea Rio
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Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). If the discretionary
function exception applies to the challenged governmental conduct, the United
States retains its sovereign immunity, and the district court lacks subject matter
jurisdiction to hear the suit. See Johnson v. United States Dep't of Interior, 949
F.2d 332, 335 (10th Cir.1991). "[A]pplication [of the exception] therefore
presents a threshold jurisdictional determination which we review de novo."
Daigle, 972 F.2d at 1537.
In order to determine whether the discretionary function exception applies
in cases brought under the FTCA, we utilize the two-prong analysis of Berkovitz
ex rel. Berkovitz v. United States, 486 U.S. 531 (1988). Under that scheme, we
determine (1) whether the action at issue was one of choice for the government
employee; and (2) if the conduct involved such an element of judgment, “whether
that judgment is of the kind that the discretionary function exception was
designed to shield.” Id. at 536.
Citing Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986),
plaintiffs argue that because there was an existing park safety policy in place,
Ranger Phillips had no discretion in the situation he encountered. In Aslakson,
the plaintiff was injured when the aluminum mast of his sailboat made contact
with electrical power lines owned and operated by an agent of the United States.
In rejecting the government’s claim of immunity, the court reasoned that the
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government’s decision was one involving “safety considerations under an
established policy rather than the balancing of competing policy considerations,”
and that the exception could not apply. See id. at 693.
Plaintiffs point to Chapter 8:5 of the Management Policies, U.S.
Department of the Interior National Park Service, 1988, which provides that
“[t]he saving of human life will take precedence over all other management
actions.” Appellants’ App. at 56. Plaintiffs contend that this is the type of
specific mandatory directive which Ranger Phillips failed to observe, and which
renders the action at issue here nondiscretionary. We disagree because we find
the cited directive too general to remove the discretion from Ranger Phillips’
conduct.
In Varig Airlines, 467 U.S. 797, the Supreme Court considered an action
asserting claims against the FAA for negligence in the spot checking of airplanes.
Despite the fact that the FAA had a statutory duty to promote the safety of
American air transportation, decisions surrounding the implementation of that
policy, including the spot checking program, were protected by the discretionary
function exception. See id. at 820-21; see also Kennewick Irrigation Dist. v.
United States, 880 F.2d 1018, 1026 (9th Cir. 1989)(noting in a suit involving
breaks in an irrigation district’s canal, that “[a] general statutory duty to promote
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safety, as was incumbent upon the FAA in Varig, would not be sufficient [to
remove discretion].”).
In a similar vein, this court in Daigle, 972 F.2d at 1538, explained that “[i]f
a specific and mandatory statute, regulation or policy is applicable” the exception
does not apply. Under that standard, we rejected the contention that the health
and safety goals of CERCLA were the type of specific and mandatory direction
sufficient to remove the actions of defendants in that case from the discretionary
function exception. Id. at 1540. Similarly, here, the general goal of protecting
human life in the nation’s national parks is not the kind of specific mandatory
directive that operated to divest Ranger Phillips of discretion in the situation he
faced. See Berkovitz, 486 U.S. at 536 (stating that “the discretionary function
exception will not apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow”)(emphasis added). The
district court was correct to conclude that the actions of Ranger Phillips were
discretionary.
Turning to the second prong of the Berkovitz analysis, plaintiffs argue that
this case does not implicate public policy and thus their claims against the United
States should have survived the motion to dismiss. Because we have held above
that the conduct here involved discretionary judgment, we must now determine
“whether that judgment is of the kind that the discretionary function exception
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was designed to shield.” Id. at 536. The “exception insulates the Government
from liability if the action challenged in the case involves the permissible
exercise of policy judgment.” Id. at 537. The focus of our analysis, therefore, is
on the nature of the action taken and whether it is subject to policy analysis.
United States v. Gaubert, 499 U.S. 315, 324-25 (1991). “Only decisions that are
susceptible to policy analysis are protected by the discretionary function
exception.” Daigle, 972 F.2d at 1538 (quotations omitted).
It is clear that balancing the interest of conserving wildlife in the national
parks with the opportunity for public access has been a cornerstone of park
management since the creation of the national park system. This overarching
policy concern in national park management is expressed in 16 U.S.C. § 1,
enacted in 1916 at the creation of the National Park Service, which provides in
relevant part that the purpose of the National Park Service is to
promote and regulate the use of . . . national parks . . . by such means
and measures as conform to the fundamental purpose of the said
parks . . . which purpose is to conserve the scenery and the natural
and historic objects and the wild life therein and to provide for the
enjoyment of the same in such manner and by such means as will
leave them unimpaired for the enjoyment of future generations.
16 U.S.C. § 1. Other management policies expand on this goal of balancing the
conservation of wildlife with the goal of public access to the national parks. See
Management Policies, U.S. Dep’t of the Interior National Park Service 1988,
Appellee’s Supp. App. at 60-89.
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In determining whether the discretion exercised here is of the type the
discretionary function exception was designed to shield, we are aided in our
analysis by the existence of regulations which allow park employees discretion in
situations similar to that faced by Ranger Phillips. The existence of these
regulations creates a strong presumption that “a discretionary act authorized by
the regulation[s] involves consideration of the same policies which led to the
promulgation of the regulations.” Gaubert, 499 U.S. at 324.
There are no specific regulations dealing with confrontations between
wildlife and snowmobiles or other motorized vehicles. See Affidavit of
Yellowstone Chief Ranger, Appellee’s Supp. App. at 54. However, among the
regulations guiding Ranger Phillips’ conduct is the Ranger Operating Procedure
dealing with the occasional need to temporarily close or restrict an area. That
regulation provides:
Decision/Action
Any . . . road . . . should be temporarily closed by any
NPS employee when imminent life threatening or
potential serious injury situations exist . . . or there is an
immediate serious threat to natural or cultural resources.
...
....
Resolution
The District Ranger is responsible for resolving the
cause of the restriction as soon as possible. Resolution
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alternatives may include actions to prevent or remove
the threats to humans and/or resources, if possible, or
allow natural activities to occur.
Yellowstone National Park Ranger Operating Procedure, id. at 91. While we
realize that this directive indicates that a road “should” be closed under certain
circumstances, possibly implying at least a limitation on discretion, the
determination of when circumstances constitute an imminent life threatening
situation or pose the risk of potential serious injury is clearly a discretionary one
to be made on the basis of judgment, observation, and experience. Further, the
regulation governing the resolution of any such situation expressly gives the
ranger a choice among an unlimited number of actions, thus inarguably allowing
employee discretion.
The second directive cited by the parties deals with stranded animals.
While it is not clear whether this animal was “stranded,” we do note that the
directive provides in relevant part that
In some cases the destruction of injured, dead, or stranded animals
may be necessary. The destruction of a native animal is acceptable
only when relocation is not a feasible alternative; the animal was
injured or deceased through human-induced impacts (e.g. hunting,
automobile collision); or human safety is a concern and the
numbers/location of people cannot be effectively managed.
Natural Resources Management Guideline, Appellants’ App. at 59. This directive
fairly reflects the policy concerns underlying it: balancing the conservation of
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wild animals with the interests of those who want to see them. The directive
itself requires an exercise of discretion in its implementation. Thus, the
existence of these two regulations allowing discretion to park employees creates
the “strong presumption” described in Gaubert that Ranger Phillips’ actions here
were driven by the same policy concerns which led to the promulgation of the
regulations in the first place. See Gaubert, 499 U.S. at 324. Because plaintiffs
have not alleged any 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," id. at 324-25, we affirm the conclusion of the district
court that the government has met the second prong of the Berkovitz test and is
entitled to the protection of the discretionary function exception.
Plaintiffs rely heavily on our decision in Boyd v. United States ex rel.
United States Army, Corps of Eng’rs, 881 F.2d 895 (10th Cir. 1989), in which we
refused to extend the shield of the discretionary function exception where an
agency of the United States failed to warn swimmers of a dangerous area in
Tenkiller Lake in Oklahoma. In Boyd, however, the government’s failure to warn
swimmers of dangerous conditions was not connected to the policy which created
the hazard, thus making the exception inapplicable. See Johnson, 949 F.2d at
338. The fact that Ranger Phillips’ failure to somehow remove the moose to
avoid its further contact with snowmobilers was connected to the policy of
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balancing the conservation of wildlife with the interest of public access
distinguishes this case from Boyd. Here, the conduct at issue was clearly an
attempt by Ranger Phillips to balance the preservation of wildlife with the desire
of the citizenry to access the park, and the analysis of Boyd is inapposite.
Plaintiffs argue strenuously that no shield should operate because plaintiffs
were obeying the directive of Ranger Phillips when they attempted to drive
around the moose. We agree with the government, however, that it is irrelevant
whether Ranger Phillips directed plaintiffs into danger. Appellee’s Br. at 18.
Even if discretion is exercised negligently, the exception can operate to shield the
government from liability. Domme v. United States, 61 F.3d 787, 789 (10th Cir.
1995). The relevant inquiry is whether Ranger Phillips was exercising discretion
grounded in public policy when he directed plaintiffs around the moose. We hold
that he was exercising such discretion and that the district court was correct to
dismiss plaintiffs’ claims against the United States.
The judgment of the district court is AFFIRMED with the clarification that
plaintiffs’ claims against the United States are dismissed with prejudice, see
Wheeler, 825 F.2d at 259.
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