Phong Lam v. United States, No. 19-16243 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's dismissal of plaintiff's action under the Federal Tort Claims Act (FTCA), alleging that the U.S. Army Corps of Engineers negligently failed to cut down a tree at the Lake Mendocino recreation area that crashed into plaintiff's tent and smashed his leg.
The panel held that the discretionary function exception applies in this case because plaintiff has not shown any specific mandatory duties, has not defeated the Gaubert presumption, and has not negated the evidence of discretion for policy judgments. After outlining Supreme Court precedent for the Berkovitz/Gaubert test and its Ninth Circuit progeny, the panel applied this precedent to the plain language of the policies that controlled the actions of the forest ranger and the Corps' employees at Lake Mendocino. In doing so, the panel concluded that the policies allow for discretion and that they are susceptible to the policy analysis the discretionary function exception was designed to protect.
Court Description: Federal Tort Claims Act. The panel affirmed the district court’s dismissal of a Federal Tort Claims Act (“FTCA”) action alleging that the U.S. Army Corps of Engineers negligently failed to cut down a tree at the Lake Mendocino recreation area that crashed into the plaintiff’s tent and smashed his leg. The FTCA permits private suits against the United States for damages for loss of property, injury, or death caused by a government employee’s negligence. The FTCA’s discretionary function exception (“DFE”) provides that the government does not waive sovereign immunity for tort claims if the alleged tortfeasor was performing a discretionary function or duty when he or she injured the plaintiff. The district court dismissed based on its finding that the FTCA’s DFE defeated plaintiff’s claims. In deciding whether the DFE applied, the panel applied the Berkovitz/Gaubert test: 1) Did the Lake Mendocino policies allow for discretion? and 2) Were those policies susceptible to the policy analysis the DFE was designed to protect? If the answer to both questions is yes, the DFE applies. First, the panel held that because the Lake Mendocino policies had no specific mandatory requirements for maintaining, identifying, or removing dangerous trees, the Lake Mendocino maintenance worker had discretion to act according to his judgment in assessing trees. The panel LAM V. UNITED STATES 3 held further that this discretion satisfied the first part of the Berkovitz/Gaubert test. Second, the panel held that park rangers’ decisions as to tree maintenance were susceptible to policy considerations. The panel concluded that the DFE applied in this case. District Judge Royal concurred, and wrote separately to address the dissent. Judge Hurwitz dissented because the majority’s decision conflicts with the precedent in Kim v. United States, 940 F.3d 484, 487-90 (9th Cir. 2019), which held that governmental immunity does not apply to precisely the governmental decision at issue in this case. He wrote that this case does not call on the court to judge the wisdom of any social, economic, or political policy, but rather simply to perform the familiar role of determining whether the government agent exercised reasonable care.