William Gibson v. USA , 809 F.3d 807 ( 2016 )

Case: 14-31303 Document: 00513327588 Page: 1 Date Filed: 01/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31303 United States Court of Appeals
Fifth Circuit
FILED
WILLIAM GIBSON; RITA GIBSON, January 4, 2016
Lyle W. Cayce
Plaintiffs - Appellants Clerk
v.
UNITED STATES OF AMERICA; FEDERAL EMERGENCY
MANAGEMENT AGENCY,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
William Gibson fell and sustained injuries while exiting a trailer or
mobile home owned by the Federal Emergency Management Agency (“FEMA”).
Gibson and his wife, Rita Gibson, sued FEMA under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 2671–2680. The district court granted FEMA’s
motion for summary judgment on the basis that the claims are barred by the
FTCA’s discretionary function exception. We REVERSE and REMAND for
further proceedings.
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FACTUAL AND PROCEDURAL BACKGROUND
Among its many services, FEMA provides trailers or mobile homes to
victims of natural disasters. When a trailer is no longer to be used, it is
transported to a FEMA storage site. On the day of the accident, November 1,
2010, Gibson was at a FEMA storage site in Baton Rouge, Louisiana,
inspecting trailers that were to be sold at auction. In her deposition, FEMA
employee Joan Johnson described the Baton Rouge site as “a federal property
[with] a fence around it” containing “a hundred and some odd acres,” and it
typically “had hundreds . . . of trailers.” Johnson’s job was to accompany
customers while they inspected trailers available at auction because members
of the public were not allowed to walk around the site unsupervised.
According to the Gibsons, “most of the FEMA trailers were equipped with
a set of pull-out steps providing access, [but] the mobile homes were not.” The
parties on appeal, as well as the district court in its summary judgment
opinion, have used the term “trailer” to refer to the relevant mobile home.
Because the distinction between trailers and mobile homes is not dispositive
in this appeal, we adopt the same terminology. On prior occasions, Gibson
would enter the trailers by sitting in the doorway, turning into the trailer, and
then standing up. On November 1, Johnson accompanied Gibson while he
inspected four or five trailers without incident. There is some dispute about
how Gibson entered these trailers that day – whether he used a small step-
stool or a stepladder. Both parties agree, though, that during the final trailer
inspection, which had no attached stairs, Gibson used a stepladder to reach
the trailer’s doorway. The doorway was between two and four feet above the
ground. According to Herman Jones, a FEMA employee, this trailer was
situated on top of “hard gravel.”
Johnson testified that Gibson asked to use her stepladder to enter this
final trailer. Gibson, however, contends that he never requested to use
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Johnson’s stepladder; instead, Johnson directed Gibson to use it. During his
deposition, Gibson first testified that Johnson set up the stepladder in front of
the trailer. Later in that same deposition, though, Gibson testified that he
could not remember who set up the stepladder. For her part, Johnson
maintains that Gibson set up the stepladder on his own. Gibson conceded that
he moved the stepladder around to ensure it was stable before he used it to
reach the trailer’s entrance.
Gibson successfully used the stepladder to enter the trailer. Before
attempting to exit and descend, Gibson contends he tried to get Johnson’s
attention. Johnson was approximately 40 feet away and talking on her cell
phone. After waiting two minutes, Gibson began to descend the stepladder
without Johnson’s assistance. He remembers holding the trailer and putting
both feet securely on the stepladder’s rungs. Gibson fell from the stepladder
as he attempted to step down, but he does not know what caused his fall. He
claims no memory of the fall itself.
In contrast to Gibson’s version of events, Johnson maintains she was
standing by the door as Gibson exited the trailer. Johnson stated that Gibson
had one foot on the ladder when his body started shifting, and he lost his
balance as he attempted to put his other foot on the ladder. Johnson
instinctively reached for Gibson in an attempt to help but quickly withdrew to
prevent herself from being injured. Johnson called for assistance; several
FEMA employees arrived to assist Gibson into an ambulance.
The Gibsons allege that the United States is liable under the FTCA for
numerous acts of negligence: (1) “[f]ailing to provide stairs with handrails . . .
to inspect mobile homes”; (2) “[f]ailing to follow [FEMA] safety regulations . . .
by not providing hand rails for stairs to enter mobile homes”; (3) “[f]ailing to
provide a solid surface upon which to place stairs or ladders when entering a
mobile home”; (4) “[u]sing an under rated ladder to give to invitees to gain
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access to [the Government’s] mobile homes”; (5) “[f]ailing to follow general
safety regulations in the industry”; (6) “[f]ailing to properly train employees on
regulations required for invitee safety”; (7) “[f]ailing to properly supervise
employees”; (8) “[s]upplying employees with under rated ladders to give to
invitees to inspect mobile homes”; (9) “[f]ailing to train and supervise
employees in the proper techniques to spot and hold ladders”; (10) “[f]ailing to
require employees to hold ladders firm”; (11) “[f]ailing to properly supervise
employees who were constantly using cell phones for personal calls and not
properly attending and monitoring invitees”; and (12) “[f]ailing to prevent
personal cell phone usage by employees.”
The Gibsons sought $9,671,682 in damages “arising out of a significant
leg fracture.” On cross-motions for summary judgment, the district court
entered judgment on behalf of the Government. The Gibsons appeal.
DISCUSSION
Under the doctrine of sovereign immunity, a plaintiff may not sue the
United States unless a federal statute explicitly provides the government’s
consent to be sued. In re FEMA Trailer Formaldehyde Prods. Liab. Litig.
(Miss. Plaintiffs), 668 F.3d 281, 287 (5th Cir. 2012). The FTCA waives
sovereign immunity under certain conditions “and provides the sole basis of
recovery for tort claims against the United States.” Id. (citing 28 U.S.C.
§§ 1346, 2671, et seq.). Several exceptions, though, limit the waiver of
sovereign immunity. Here, the Government contends, and the district court
held, that the “discretionary function exception” applies.
The discretionary function exception applies to “[a]ny claim . . . 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.” 28
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U.S.C. § 2680(a). The district court granted summary judgment because of this
exception, concluding it lacked subject matter jurisdiction.
I. Standard of Review
We review the district court’s grant of summary judgment de novo.
Ashford v. United States, 511 F.3d 501, 504 (5th Cir. 2007). “Since the granting
of summary judgment is a disposition on the merits of the case, a motion for
summary judgment is not the appropriate procedure for raising the defense of
lack of subject matter jurisdiction.” Stanley v. Cent. Intelligence Agency, 639
F.2d 1146, 1157 (5th Cir. Unit B Mar. 1981). When there is no jurisdiction, the
district court should dismiss the suit without prejudice so that the plaintiffs
may pursue a claim in a court that has jurisdiction. See Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
We will review this judgment as a jurisdictional determination despite
its label as a summary judgment. We review de novo a district court’s
“construction of immunity” and we review the underlying factual findings for
clear error. See In re Katrina Canal Breaches Litig., 696 F.3d 436, 444 (5th
Cir. 2012).
II. The Discretionary Function Exception
We apply a two-part test to determine whether an agency’s conduct
qualifies as a discretionary function or duty. See United States v. Gaubert, 499
U.S. 315, 322–23 (1991). 1 First, we assess whether the challenged conduct was
1 At the pleading stage, the plaintiff has the burden to “invoke the court’s jurisdiction
by alleging a claim that is facially outside of the discretionary function exception.” Freeman
v. United States, 556 F.3d 326, 334 (5th Cir. 2009). Nonetheless, we previously noted it is
unclear whether the plaintiff or the government bears the ultimate burden of proving the
discretionary function exception applies. See St. Tammany Par., ex rel. Davis v. Fed.
Emergency Mgmt. Agency, 556 F.3d 307, 315 n.3 (5th Cir. 2009). Our sister circuits are split
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“discretionary in nature, [an] act[] that involv[es] an element of judgment or
choice.” Id. at 322. If we find that the agency’s conduct does qualify as
discretionary, then we consider whether the actions taken are “susceptible to
policy analysis.” Id. at 325.
A. Step One: Whether the challenged conduct was an act of discretion.
“If a statute, regulation, or policy leaves it to a federal agency to
determine when and how to take action, the agency is not bound to act in a
particular manner and the exercise of its authority is discretionary.” Spotts v.
United States, 613 F.3d 559, 567 (5th Cir. 2010). In contrast, “the discretionary
function exception does not apply if the challenged actions in fact violated a
federal statute, regulation, or policy.” Id. Gibson contends that FEMA had an
unwritten “no assistance” policy that barred FEMA employees from helping
customers enter and exit trailers, and that Johnson violated that policy by
providing him an unsafe ladder.
The district court disagreed. First, the court held that whatever
unwritten policy may have existed, the policy failed to prescribe sufficient
“specific direction” to establish a nondiscretionary duty. The allegations of
FEMA’s supposed policy were “too broad and conclusory,” the court held, and
therefore the alleged FEMA conduct was not “specifically prescribed or
prohibited” under the terms of the alleged policy. Second, the district court
found that even if FEMA had a sufficient “no assistance” policy, Johnson did
not violate that policy.
The district court relied on an unpublished Fifth Circuit case, Lopez v.
U.S. Immigration & Customs Enf’t, 455 F. App’x 427 (5th Cir. 2011). In Lopez,
on this question. See id. (collecting cases). This issue was not addressed by the district court
or raised by the parties on appeal, and thus we leave it for another day.
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a federal inmate died of a heart attack allegedly due to deficient prisoner
medical care. Id. at 429–31. The inmate’s estate sued certain federal
employees under the FTCA. The district court held the discretionary function
exception applied and dismissed all claims for lack of subject matter
jurisdiction. Id. at 431. On appeal, the plaintiff argued the United States
Marshal Service violated the nondiscretionary policies of conducting regular
inspections of the prison facility and assuring adequate medical care was
provided. Id. We affirmed the district court’s ruling, in part by noting that
when a “policy fails to prescribe ‘specific direction’ as to what course of action
an employee must follow, it generally fails to establish a nondiscretionary
duty.” Id. at 433. While the policy seemed nondiscretionary, it did not define
what specific level of compliance was required and what remedial action the
Marshal Service should take if it discovered insufficient compliance. Id. We
held the policy was mere “generalized, precatory, or aspirational language that
[was] too general to prescribe a specific course of action for an agency or
employee to follow.” Id. (quoting Freeman v. United States, 556 F.3d 326, 338
(5th Cir. 2009)).
In the case before us, Herman Jones, a FEMA “logistics management
specialist and sales lead,” testified in a deposition that FEMA employees “were
not supposed to assist the customers in and out of the trailers.” Jones also
testified that the policy effectively had a corollary, namely, that FEMA
employees were allowed to provide a ladder if the customer requested one. On
this record at least, the undisputed evidence is that the policy allowed a FEMA
employee to provide a ladder but not assist a customer in using it. Whether
the corollary allowed the FEMA employee to place the provided ladder in
position at the trailer, which Gibson alleges the employee did, is not clear. The
district court’s decision that the policy had too little “specific direction” to
establish a nondiscretionary duty was plausible.
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We leave this first step in the analysis unresolved. We find a clearer
answer on the applicability of the discretionary function exception by
examining whether this conduct was susceptible to policy analysis. We
conclude it was not, making the exception inapplicable.
B. Step Two: Whether the challenged conduct is susceptible to policy
analysis.
“[E]ven assuming the challenged conduct involves an element of
judgment, and does not violate a nondiscretionary duty, we must still decide
whether the judgment is of the kind that the discretionary function exception
was designed to shield.” Spotts, 613 F.3d at 568 (quotation marks omitted).
Specifically, the exception was enacted to “prevent judicial second-guessing of
legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.” Katrina Canal
Breaches, 696 F.3d at 449. “The exception, properly construed, therefore
protects only governmental actions and decisions based on considerations of
public policy.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 537
(1988). The exception only shields those acts that are “based on the purposes
that the regulatory regime seeks to accomplish.” Gaubert, 499 U.S. at 325 n.7.
Our inquiry is “not whether the decision maker in fact engaged in a policy
analysis when reaching his decision but instead whether his decision was
susceptible to policy analysis.” In re FEMA Trailer Formaldehyde Prods. Liab.
Litig. (La. Plaintiffs), 713 F.3d 807, 810 (5th Cir. 2013).
The district court determined that decisions about how FEMA would
provide access were related to FEMA’s purpose in offering the trailers for sale:
“[P]racticality and costs are certainly policy considerations touching on these
decisions,” the court noted, and “the cost of rebuilding steps for all of the
trailers would have seriously cut into the net price FEMA obtained from the
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sale of these units.” Further, FEMA’s “no assistance” approach reduced costs
and risks that a customer’s fall could harm a FEMA employee. For the reasons
that follow, we hold that FEMA’s decision about how customers would enter
and exit the trailers was not the type of judgment the discretionary function
exception was designed to protect.
The Government’s decisions about routine property maintenance,
decisions with which any private landowner would be concerned, are not
susceptible to the kind of policy analysis shielded by the discretionary function
exception. See Gotha v. United States, 115 F.3d 176, 181–82 (3d Cir. 1997).
Moreover, budgetary constraints on their own are often an insufficient policy
goal to trigger the exception’s protections. See O’Toole v. United States, 295
F.3d 1029, 1035–37 (9th Cir. 2002). These limits to the exception are
particularly potent where the Government’s actions are those of the operator
of a business who is making the same decisions a private landowner would
make. See generally 2 LESTER S. JAYSON & HON. ROBERT C. LONGSTRETH,
HANDLING FEDERAL TORT CLAIMS § 9.10[4] (2015) (collecting cases).
The Third Circuit held that the discretionary function exception did not
apply where an independent contractor sued the United States Navy after she
fell on Navy property. Gotha, 115 F.3d at 178. The plaintiff Gotha was
working at a Navy base that had two facilities separated by a steep incline. Id.While it was dark, Gotha was walking from the upper facility to the lower when
she fell and suffered an ankle injury. Id. Gotha sued the United States under
the FTCA, alleging negligence for the Government’s failure to provide a
stairway with handrails between the two facilities and failure to provide
sufficient lighting. Id. The district court held the discretionary function
exception barred Gotha’s suit and dismissed the case. Id. In doing so, the
district court relied on an affidavit submitted by the Government, claiming
“[i]n evaluating a decision whether to install an outdoor staircase and artificial
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lighting there are military, social and economic considerations involved.” Id.
at 181.
The Third Circuit reversed, explaining the “case [was] not about a
national security concern, but rather a mundane, administrative, garden-
variety, housekeeping problem that is about as far removed from the policies
applicable to the Navy’s mission as it is possible to get.” Id. Further, the court
noted “[i]t is difficult to conceive of a case more likely to have been within the
contemplation of Congress when it abrogated sovereign immunity than the one
before us.” Id. at 182. More recently, the Third Circuit has revised its holding
in Gotha, concluding the discretionary function exception does not apply
“where the Government is aware of a specific risk of harm, and eliminating the
danger would not implicate policy but would involve only garden-variety
remedial measures.” S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329,
340 (3d Cir. 2012).
Similarly, the Ninth Circuit held the discretionary function exception did
not apply where ranch owners alleged the Bureau of Indian Affairs (“BIA”)
negligently maintained an irrigation system on government-owned property,
damaging the ranch owners’ land. See O’Toole, 295 F.3d 1029. The
Government claimed “its failure to repair and maintain the . . . irrigation
system was the result of a policy decision involving allocation of scarce BIA
resources,” and thus the discretionary function exception barred suit. Id. at
1032.
On appeal, the Ninth Circuit recognized a spectrum on which to assess
the policy prong of the discretionary function exception. On one end, negligent
driving by a government official does not implicate the kinds of policy
considerations protected by the exception. Id. at 1035 (referencing a
hypothetical first described in Gaubert, 499 U.S. at 325 n.7). On the other end
of the spectrum are cases “where the government employee’s exercise of
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judgment is directly related to effectuating agency policy goals . . . . such as the
regulation and oversight of [savings and loan associations] by the Federal
Home Loan Bank Board, see Gaubert, 499 U.S. at 332–34; the release of vaccine
lots by the Bureau of Biologics of the Food and Drug Administration, see
Berkovitz, 486 U.S. at 545–48; and the enforcement and implementation of
airline safety standards by the [FAA], see Varig, 467 U.S. at 814–20.” Id.
Turning to the facts of its own case, the O’Toole court held “that an agency’s
decision to forgo, for fiscal reasons, the routine maintenance of its property –
maintenance that would be expected of any other landowner – is not the kind
of policy decision that the discretionary function exception protects.” Id. at
1036. In so holding, the court cautioned that “[t]he danger of the discretionary
function exception . . . swallow[ing] the FTCA is especially great where the
governments takes on the role of a private landowner.” Id. at 1037.
The discretionary function exception is particularly inapt where the
Government acts as the operator of a business. In many such cases, FTCA
actions proceed without any stated consideration of the discretionary function
exception at all. See generally JAYSON & LONGSTRETH, supra, § 9.10[4]
(collecting cases). If the district court in this case reaches the merits, it will
apply Louisiana law to determine whether the Government is liable. See 28
U.S.C. § 1346(b)(1). Louisiana law provides that an “owner or person having
custody of immovable property has a duty to keep the property in a reasonably
safe condition and must discover any unreasonably dangerous condition on the
premises and either correct that condition or warn potential victims of its
existence.” Daigle v. City of Shreveport, 78 So. 3d 753, 765 (La. Ct. App. 2011)
(interpreting LA. CIV. CODE ANN. art. 2315).
In one of our decisions applying Louisiana law, a plaintiff slipped and
fell on a United States Post Office’s icy steps; she sued the Government under
the FTCA. Salim v. United States, 382 F.2d 240, 241–42 (5th Cir. 1967). We
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recognized the Government was “causally negligent in failing to supply its
employees with” a chemical capable of melting ice. Id. at 242–43. We
considered an analogous case recently, in an unpublished decision. Gourgeot
v. United States, 372 F. App’x 489 (5th Cir. 2010). There, again applying
Louisiana law, we assessed an FTCA suit for a slip-and-fall that occurred
outside a Post Office. Id. at 490. In both Salim and Gourgeot, FTCA claims
were considered on their merits without any discussion of the discretionary
function exception.
Rather differently, when the Government acts as landowner of
wilderness, certain kinds of maintenance decisions have been found to contain
multiple policy considerations. FEMA relies on several of these inapposite
wilderness cases in an attempt to support its contention that sufficient policy
considerations were present in this case. It refers us to a decision in which we
considered how the United States Army Corps of Engineers was to notify the
public of the existence of a sill (an underwater dam formed naturally from
sediment) in the Mississippi River. Theriot v. United States, 245 F.3d 388 (5th
Cir. 1998). We determined the Corps of Engineers’ decision was subject to
policy considerations. Id. at 399–400. Those considerations include “the
degree of danger an object poses, the vessel traffic type and density, the
location of the object in relation to the navigable channel, the history of vessel
accidents, and the feasibility and economics, including costs, of erecting and
maintaining physical markers in light of the available resources.” Id.Likewise, in a recent unpublished decision, we held the Government’s decision
about how to replace warning signs near jetties in Galveston was a choice
subject to policy considerations. Hix v. U.S. Army Corps of Eng’rs, 155 F. App’x
121, 127 (5th Cir. 2005). There, we noted the policy considerations underlying
the Government’s decision to replace warning signs, “ensuring public safety in
the [surrounding] area . . . without encouraging public use of the jetties.” Id.12
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at 127. Unlike in Theriot and Hix, here, the Government operated as a
commercial business and welcomed customers to its site as if it were managing
a trailer showroom.
Also distinguishable is a case in which a vessel allided with a wharf in
New Orleans, allegedly due to inadequate dredging of the river. MS Tabea
Schiffahrtsgesellschaft MBH & Co. KG v. Bd. of Comm’rs of Port of New
Orleans, 636 F.3d 161, 163 (5th Cir. 2011). The ship’s owner sued, alleging
that the Government had neglected its “statutory duty to dredge and maintain
the Mississippi River as a navigable waterway.” Id. On appeal, we analyzed
the two-part test for application of the discretionary function exception. Id. at
165–66. For the second part of the test, we discussed the requirement that the
relevant governmental decision must be “grounded in social, economic, or
public policy.” Id. at 166 (citing Gaubert, 499 U.S. at 322–23). If the
Government is given discretion, “it must be presumed that the agent’s acts are
grounded in policy when exercising that discretion.” Id. (quoting Gaubert, 499
U.S. at 324). Overcoming the presumption requires a plaintiff to “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.”
Id. (quoting Gaubert, 499 U.S. at 324–25). We held that by statute, the Corps
of Engineers was required to consider whether dredging projects were
“economically justified or environmentally acceptable.” Id. at 167.
Maintaining the navigability of the Mississippi River involve “quintessentially
discretionary” judgments that were “susceptible to policy analysis.” Id. at 168.
We find little in common between the judgments of maintaining
thousands of miles of waterways and deciding how to allow customers access
to trailers being offered for sale. In MS Tabea, the Government conducted a
complex policy analysis, balancing costs with environmental concerns. Here,
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the Government has only suggested FEMA would have more money for future
projects by requiring customers to find their own way into the trailers.
In a helpful contrasting situation also involving FEMA, we recently dealt
with FEMA’s provision of emergency housing units that emitted formaldehyde.
See FEMA Trailer Formaldehyde (La. Plaintiffs), 713 F.3d 807. We noted
FEMA’s decisions to provide this housing were susceptible to policy analysis
because the agency had to consider “what would provide the safest, most
feasible, convenient, and readily available housing assistance.” Id. at 810.
In contrast, FEMA’s decision here to allow customers to fend for
themselves in entering and exiting trailers did not require the kind of policy
analysis relevant to the exception. FEMA operated this site in Baton Rouge
like a commercial business. “The mere association of a decision with regulatory
concerns is not enough; exempt decisions are those fraught with . . . public
policy considerations.” Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995)
(quotation marks omitted). The Government at times is to be treated as if it
were a private landowner in assessing its exposure to common tort liability.
See Salim, 382 F.2d at 241–42. This is one of those times.
We conclude the plaintiffs have overcome the presumption that this was
a sufficiently policy-laden decision by alleging facts that show the conduct —
how to provide customers invited onto the premises with reasonably safe access
to the trailers — was not “grounded in the policy of the regulatory regime.”
Gaubert, 499 U.S. at 325. Instead, to use a sister circuit’s descriptive list, the
decision concerned “a mundane, administrative, garden-variety, housekeeping
problem that is about as far removed from the policies applicable to the Navy’s
[or here, FEMA’s] mission as it is possible to get.” See Gotha, 115 F.3d at 181.
The judgment is REVERSED and the cause is REMANDED for further
proceedings.
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