Phong Lam v. United States, No. 19-16243 (9th Cir. 2020)Annotate this Case
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.