Case of the Day – Tuesday, May 2, 2017

IT’S GOOD TO BE KING

One good thing about being king – you can’t be sued.

Anyone with kids of a certain age will remember the strutting, youthful Simba in The Lion King, singing about how he’d be “free to run around all day… free to do it all my way…

The stripling cub might have been singing about the wonder of sovereign immunity, that quaint concept that no one may sue the government. Of course, people do sue the government – this is the US of A, where people sue everyone, sometimes even suing themselves – but in order to do so, the government must grant permission first.

Such a notion may seem peculiar, that the government would give private citizens the right to sue. But the government has done so implicitly and explicitly. The explicit permission of interest to readers of this blog is the Federal Tort Claims Act.

The FTCA allows people to sue the officers and employees of the federal government for negligence. There are strings attached: generally, a rather inflexible administrative exhaustion procedure must be followed first, the statute of limitations is brutally short, and the types of conduct that may justify a suit are limited.

A federal employee runs into you with a dump truck? You may sue. But, as we’ll see today, if your injury results from something more esoteric, you may be foreclosed by the “discretionary function” doctrine.

Tomorrow, we’ll look at how the FTCA applies to the duty to inspect trees (of which the US Forest Service owns a few).

Gonzalez v. United States, Case No. 16-60062 (5th Cir., Mar. 22, 2017). Teresa Gonzalez and her friend were riding mountain bikes on some trails in the De Soto National Forest of Mississippi. Teresa did not bother to check the bulletin board at the head of the trails. If she had, she would have seen the sign warning that the Couch Loop Trail was closed.

The U.S. Forest Service had some problems with the Couch Loop Trail. A local bicycle club liked to build dangerous structures on the trail to enhance their fun. Most recently, Park employees found an unauthorized bridge on the trail, and closed the route to remove the offending span.

Ramp-jumping: not for amateurs…

Teresa and her friend careered down the trail. At some point, they took an “alternate route” to the left of the main trail. On their ersatz path, they found a teeter-totter and a ramp. Wisely, they did not try to ride over the teeter-totter. Unwisely, they did decide to jump the ramp.

Neither had ever tried riding over a ramp before. You can see where this is going. Teresa experienced what the kids call an epic fail, and suffered serious injuries.

De Soto National Forest, about 600 square miles in size, had two technicians charged with maintaining the bike trails. That work included identifying hazards, such as trees, and performing repair work. The worker would “bush hog the trail pretty much every year,” which includes clearing and cleaning the trail, but they were not sure it had been done in 2012.

Teresa filed an FTCA action, alleging that the United States failed to keep its premises safe, failed to perform inspections, and failed to warn of a dangerous condition. The District Court found that the discretionary function exception to the FTCA waiver of sovereign immunity applied., and threw out the lawsuit. She appealed.

Held: The “discretionary function exception,” prevented Theresa’s suit. That function “preserves the federal government’s immunity . . . when an employee’s acts involve the exercise of judgment or choice.” The exception covers only acts that “involve an element of judgment or choice.” It is the nature of the conduct, rather than the status of the actor, that governs whether the exception applies.

The Circuit Court said a two-prong test determines whether the exception applies: (1) “the conduct must be a matter of choice for the acting employee, and (2) the “judgment must be of the kind that the discretionary function exception was designed to shield.”

With respect to the first prong of the test, “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.” Regarding the second prong, a court considers “whether the actions taken are susceptible to policy analysis.” Whether the employee actually did any policy analysis when reaching his or her decision doesn’t matter: it’s whether he or she could have done so that matters. The question of whether the government was negligent or not is irrelevant.”

In this case, the USFS handbook contemplated an “element of choice as to how USFS employees inspect and maintain the trails.” The manual instructed employees to “manage each trail to meet the trail management objectives identified for that trail, based on applicable land management plan direction, travel management decisions, trail-specific decisions, and other related direction, as well as management priorities and available resources.” The Court said the language ordered employees to “meet” the identified objectives, but gave them room for choice based on the evaluation of various factors. Although the objectives listed specific goals, the Court held they did “not prescribe a certain course employees must take to reach those goals. In this way, the provisions… contain generalized, precatory, or aspirational language that is too general to prescribe a specific course of action for an agency or employee to follow.”

So whether the technicians were negligent by not doing a better job of marking the trail as closed, removing the ramp, or not putting training wheels on Theresa’s bike, she had nothing coming.

– Tom Root

TNLBGray140407

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