Bailey v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIGID BAILEY, individually, as the 
Personal Administrator for the
ESTATE OF JOSEPH PAUL BAILEY,
Deceased, and as Guardian Ad No. 09-16247
Litem for SAMUEL P. BAILEY and D.C. No.
PAUL F. BAILEY, and MEGHAN
BAILEY,
 2:07-cv-02154-
MCE-DAD
Plaintiff-Appellant,
OPINION
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding

Argued and Submitted
March 9, 2010—San Francisco, California

Filed September 29, 2010

Before: Betty B. Fletcher, Richard R. Clifton and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;
Dissent by Judge B. Fletcher

16597
16600 BAILEY v. UNITED STATES

COUNSEL

Gregory D. Rueb and Dirk Manoukian, Rueb Motta &
Manoukian, Concord, California, for the appellant.

Toney West, Assistant Attorney General, Lawrence G.
Brown, United States Attorney, Mark B. Stern, and Matthew
D. Burton, Attorneys, Appellate Staff Civil Division, Depart-
ment of Justice, Washington, DC, for the appellee.

OPINION

BEA, Circuit Judge:

On Memorial Day weekend 2005, John Bailey rowed his
boat over a submerged dam on the Yuba River in Northern
California. The boat foundered, and Bailey drowned. The
Army Corps of Engineers (“the Corps”) had placed signs
warning of the dam, mid-river upstream of, and on the banks
near the dam. However, recent heavy river flows had washed
the signs away. Four days before Bailey met his sad fate, the
Corps had attempted to replace the warning signs, but had
judged that the Yuba was so turbulent as to threaten the safety
of its workers who had to ford the river to attach new signs
and buoys.

Bailey’s widow and children brought suit claiming the gov-
ernment was negligent in the Corps’ failure to place the warn-
ing signs.
 BAILEY v. UNITED STATES 16601
The district court granted a motion to dismiss the Baileys’
complaint on grounds the Federal Torts Claims Act (“FTCA”)
provided the government immunity from suit under the facts
alleged and shown, because the decision not to place the
warning signs on account of worker peril was a discretionary
decision commended by Congress for decision by the Corps,
not to be second-guessed by a court or jury.

Mrs. Bailey and her children appeal. We conclude the dis-
cretionary function exception to liability applies. The district
court acted correctly, and we affirm.

I. Facts and Procedural Background.

The Daguerre Point Dam is a submerged,1 debris-control
dam on the Yuba River in Northern California that is man-
aged and operated by the Army Corps of Engineers (“the
Corps”). The Corps’s management duties include posting
signs to warn recreational boaters that the dam presents a haz-
ard. In 1987, the Corps promulgated the Sign Standards Man-
ual (“SSM”). The SSM tells the Corps how “to provide
appropriate signs and markers at each project to guide,
inform, and protect visitors and employees.” With respect to
sign maintenance and replacement, the SSM requires “that
damaged signs be reported as soon as the problem is noticed
so that the necessary maintenance work can be scheduled and
completed in a timely manner.” The SSM further states that
“[i]t is also critical that missing or damaged signs be replaced
or repaired in a timely manner.” However, the SSM also
declares that, “[p]ersonnel safety is a prime concern in per-
forming sign maintenance.”

Although the 1987 SSM provides guidelines regarding
warning signs, it does not dictate the placement of signs at
any given location operated by the Corps. Rather, it states that
1
A submerged dam is not visible upstream because the dam’s structure
is under water.
16602 BAILEY v. UNITED STATES
“[e]xisting conditions must be evaluated on a site-by-site
basis followed by the development of a sign plan using the
signs and engineering criteria contained in this section.” Pur-
suant to this SSM language, the Corps developed a sign plan
for the Daguerre Point Dam that specifies exactly where
warning signs should be placed along the Yuba River
upstream from the dam, as well as a sign inventory that con-
tains specific details about each sign. The sign plan requires
placement of several permanent signs, such as signs on the
dam abutments that say “Danger-Keep Back,” signs that say
“Raft Portage,” and a sign four miles upstream that says
“Warning-Submerged Dam 4 Miles Downstream.” Because
of increased river usage in the spring and summer months, the
sign plan also calls for seasonal warning signs to be placed
along the south bank of the Yuba River and on a mid-river
sand bar downstream of the four-mile warning sign. The
Corps also installed a mid-river warning buoy.

Installing the signs on the sand bar and installing the buoy
are the most difficult tasks of sign-posting because they
require Corps workers to navigate the river. Installing the
sand bar signs requires the workers to drive two trucks
through the river to the sandbar; installing the buoy requires
a worker to wade out into the river and anchor it underwater.
Thus, to replace any signs, conditions on the river have to be
safe, and the water flow and water levels have to be low
enough to allow workers to do this.

In late April 2005, the Corps installed these seasonal warn-
ing signs. However, around May 19, 2005, there were unex-
pectedly heavy water flows on the Yuba River, and soon
thereafter, the Corps learned that the warning signs had been
submerged or washed away. On May 25, 2005, Corps workers
went to the river to assess if it was possible to replace the
signs. They could not get to the location where the signs had
been placed because of the high, fast water and dangerous
river conditions.
 BAILEY v. UNITED STATES 16603
On May 29, 2005, during Memorial Day Weekend, Joseph
Bailey took his two sons rafting on the Yuba River, starting
approximately six miles upstream of the Daguerre Point Dam.
There were no warning signs about the dam anywhere upriver
of the dam; there were only warning signs on the dam abut-
ments. These came too late. Bailey and his sons went over the
dam; the two sons survived, but Joseph was caught in the spill
water and drowned. The next day, the Corps replaced the
missing signs.

Joseph Bailey’s survivors brought suit on his behalf against
the Corps under the Federal Tort Claims Act. In their com-
plaint they alleged the Corps negligently failed to replace the
missing warning signs before the busy Memorial Day week-
end. The Corps moved for summary judgment, or alterna-
tively to dismiss the case under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. The
district court held that the discretionary function exception
shielded the Corps from suit, and therefore granted the
Corps’s motion to dismiss for lack of subject matter jurisdic-
tion. This appeal timely followed.

II. Standard of Review.

We review de novo the district court’s decision to grant a
motion to dismiss for lack of subject matter jurisdiction under
the discretionary function exception. Terbush v. United States,
516 F.3d 1125, 1128 (9th Cir. 2008). The United States bears
the burden of proving the applicability of the discretionary
function exception. Id.

III. Analysis.

[1] The FTCA waives the federal government’s sovereign
immunity for tort claims arising out of the negligent conduct
of government employees and agencies in circumstances
where the United States, if a private person, would be liable
to the claimant under the law of the place where the act or
16604 BAILEY v. UNITED STATES
omission occurred. Id. at 1128-29. However, the discretionary
function exception provides the government an immunity
from suit that private persons do not have: for “[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 U.S.C.
§ 2680(a).

The discretionary function exception is a limit placed by
Congress on its waiver of traditional sovereign immunity
from suit; it “marks the boundary between Congress’ willing-
ness to impose tort liability upon the United States and its
desire to protect certain governmental activities from expo-
sure to suit by private individuals.” Berkovitz v. United States,
486 U.S. 531, 536 (1988). “The basis for the discretionary
function exception was Congress’ desire 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.” Id. at 536-37 (quotation marks
omitted).

The Supreme Court has created a two-step test for courts
that governs the applicability of this exception. Terbush, 516
F.3d at 1129. The first step is to determine whether a federal
statute, regulation, or policy mandated a specific course of
action,2 or whether the government actor retained an element
of judgment or choice with respect to carrying out the chal-
2
State tort law duties are not relevant to the determination whether the
discretionary function exception applies. See Mitchell v. United States,
787 F.2d 466, 468 (9th Cir. 1986) (“Mitchell argues that ‘BPA was with-
out discretionary authority to breach the duty of care imposed by Wash-
ington law.’ Negligence, however is irrelevant to the discretionary
function issue.”). It is only after we determine as a matter of federal law
that the discretionary function exception does not apply that we then eval-
uate whether the government can be held liable under the laws of the state
where the act or omission took place. See 28 U.S.C. §§ 1346(b) and
2680(a).
 BAILEY v. UNITED STATES 16605
lenged action. Id. If the government action did involve choice
or judgment, the second step is to determine “whether that
judgment is of the kind that the discretionary function excep-
tion was designed to shield, namely, only governmental
actions and decisions based on considerations of public poli-
cy.” Id. (quotation marks omitted). If the challenged action or
omission satisfies these two prongs, the government is
immune from suit based on that action or omission—and fed-
eral courts lack subject matter jurisdiction—even if that action
or omission constituted an abuse of discretion or was a wrong
choice under the circumstances. Id.

A. The first step: the Corps had to exercise its
judgment to determine when to replace the
missing signs; nothing mandated a specific time for
replacement.

[2] An agency does not retain discretion whether to act
where a statute or policy directs mandatory and specific
action and the agency has no lawful option but to adhere to
the directive. Navarette v. United States, 500 F.3d 914, 916
(9th Cir. 2007). On the other hand, an agency retains discre-
tion whether to act where no statute or agency policy dictates
the precise manner in which the agency is to complete the
challenged task. Miller v. United States, 163 F.3d 591, 595
(9th Cir. 1998). In Miller, the plaintiff sued the United States
Forest Service under the FTCA for its allegedly negligent
handling of a forest fire that spread from the Ochoco National
Forest onto Miller’s property and caused damage. Id. at 592.
The district court granted the Forest Service’s motion for
summary judgment on the ground the discretionary function
exception applied. Id. We affirmed. Id.

We held the first prong of the discretionary function excep-
tion was met because there were “no specific directives that
mandate[d] specific action in a multiple fire situation.” Id. at
595. Although there were general firefighting guidelines,
those guidelines “[did] not eliminate discretion because they
16606 BAILEY v. UNITED STATES
. . . did not tell the Forest Service to suppress the fire in a spe-
cific manner and within a specific period of time.” Id.3

[3] Likewise here, no regulation or guideline required the
Corps to replace the missing signs before a busy weekend or
within a specific period of time after receiving notice the
signs were gone. The Corps’s sign manual states only “that
missing or damaged signs must be replaced or repaired in a
timely manner.” (Emphasis added.) Although this does strip
the Corps of its discretion whether to replace missing or dam-
aged signs,4 it does not create a mandatory and specific direc-
tive regarding when the Corps must replace any missing or
damaged signs. Rather, the determination of when to replace
the signs is left to the discretion of the Corps.

Once an agency has discretion with respect to the chal-
lenged action, we must move on to step two. This is because
the discretionary function exception provides immunity even
to abuses of discretion. 28 U.S.C. § 2680(a). Here, the Corps
had discretion to determine what constituted “timely” replace-
ment of the missing warning signs. Therefore, the first prong
of the discretionary function exception is met and we move on
to the second step.

B. The second step: the timeliness decision is
susceptible to policy analysis.

[4] Only discretionary decisions that are susceptible to
public policy analysis confer immunity on the government
under the FTCA; “[t]he challenged decision need not be actu-
ally grounded in policy considerations.” Miller, 163 F.3d at
593. So, even though the Corps retained discretion to decide
when to replace the missing signs, it could still be liable for
3
As discussed more fully below, we also held that the Forest Service’s
decisions regarding how to fight a forest fire were susceptible to policy
analysis. Miller, 163 F.3d at 595-96.
4
The Corps did replace the missing signs on May 30, 2005.
 BAILEY v. UNITED STATES 16607
a negligent decision unless its decision is susceptible to a pub-
lic policy analysis. See id. at 595. “Public policy has been
understood to include decisions grounded in social, economic,
or political policy.” Terbush, 516 F.3d at 1129 (quotation
marks omitted).

[5] We have noted that, although an agency’s decision to
adopt certain safety precautions as opposed to others may be
based in policy considerations, generally, “the implementation
of those precautions is not. Safety measures, once undertaken,
cannot be shortchanged in the name of policy.” Whisnant v.
United States, 400 F.3d 1177, 1182 (9th Cir. 2005) (alter-
ations omitted). However, “[t]he implementation of a govern-
ment policy is shielded where the implementation itself
implicates policy concerns, such as where government offi-
cials must consider competing fire-fighter safety and public
safety considerations in deciding how to fight a forest fire.”
Id. at 1182 n.3 (citing Miller, 163 F.3d at 595-96).5

[6] In Miller, we held that the implementation of a govern-
ment safety program with respect to fighting forest fires did
require the agency to balance competing policy interests, and
thus, the discretionary function exception applied. We noted
that “the Forest Service’s decision regarding how to attack a
fire involved balancing considerations including cost, public
safety, firefighter safety, and resource damage.” 163 F.3d at
5
Whisnant sued the government under the FTCA. 400 F.3d at 1179. He
alleged the government had negligently failed to discover and abate a
mold problem in the commissary of one of its naval bases and that he con-
tracted pneumonia as a result. Id. The government filed a Rule 12(b)(1)
motion to dismiss on the ground the suit was barred under the discretion-
ary function exception. Id. at 1180. The district court granted the motion.
Id. On appeal, we reversed. Id. at 1185. We held that, “removing an obvi-
ous health hazard is a matter of safety, not policy.” Id. However, we
implied that inspecting the commissary did not involve balancing compet-
ing safety considerations—there was no claim, nor was there any evidence
that inspection for mold posed a risk to agency personnel, nor any evi-
dence such risk was considered by the agency. Id. at 1182 n.3.
16608 BAILEY v. UNITED STATES
595. We then held that “[t]hese considerations reflect the type
of economic, social and political concerns that the discretion-
ary function exception is designed to protect.” Id. Thus, when
a decision requires an agency to balance competing safety
considerations, that decision is susceptible to a policy analy-
sis. See id. at 596 (“Where the government is forced, as it was
here, to balance competing concerns, immunity shields the
decision.”).

[7] As with the Forest Service’s decision in Miller, the
Corps’s decision here regarding when to replace the missing
signs on the Yuba River required the Corps to balance com-
peting policy interests. The Corps had to balance the safety of
its workers and the risk to its other limited resources, i.e., its
equipment, in replacing the signs in dangerous conditions
against the competing public safety interest in having the
signs replaced sooner. Indeed, the record establishes that
Corps “[s]taff attempted to assess the situation on May 25,
2005, but could not get to the location where the signs had
been placed either on the gravel/sand bar or on the South
banks of the river because of the high, fast water and danger-
ous conditions.” So, as in Miller, although the Corps was
implementing a safety program when it was deciding when to
replace the washed-out signs, in doing so it had to balance
competing policy interests: the safety of boaters and the safety
of its sign-placing workers and their equipment. Therefore,
under the discretionary function exception, the Corps’s discre-
tionary decision as to when to replace the signs is susceptible
to policy analysis and is immune from suit.

Although the dissent correctly contends that safety consid-
erations generally are not policy considerations, it ignores our
law that establishes that balancing competing safety consider-
ations is a protected policy judgment.6 See id. The dissent is
6
The dissent cites Faber v. United States, 56 F.3d 1122, 1125 (9th Cir.
1995) and Whisnant for the proposition that safety considerations are not
policy considerations. Although those cases did deal with government
 BAILEY v. UNITED STATES 16609
correct that in Miller there were other types of policy consid-
erations in addition to safety that went into the Forest Ser-
vice’s discretionary judgment about how to fight the forest
fire, but that does not detract from Miller’s holding that bal-
ancing competing safety considerations is a policy judgment.
Moreover, so long as a decision involves even two competing
interests, it is “susceptible” to policy analysis and is thus pro-
tected by the discretionary function exception. See Alfrey v.
United States, 276 F.3d 557, 565 (9th Cir. 2002) (holding that
“[a] prison official’s judgment about how extensively to
search a cell involves a balancing of the potential risk [from
the reported threat], on the one hand, against the inmate’s
interest in being free from overly intrusive searches, on the

safety programs, the implementation of those programs did not involve
balancing competing safety considerations. Weighing two competing
safety interests and making a decision in favor of one interest or the other
is a protected policy judgment. See Whisnant, 400 F.3d at 1182 n.3 (“The
implementation of a government policy is shielded where the implementa-
tion itself implicates policy concerns, such as where government officials
must consider competing firefighter safety and public safety consider-
ations . . . .” (emphasis added)); Miller, 163 F.3d at 596 (“Where the gov-
ernment is forced, as it was here, to balance competing concerns,
immunity shields the decision.” (emphasis added)). The dissent contends
that we are relying on this footnote in Whisnant —which the dissent char-
acterizes as “dicta”—to overrule the holding of Whisnant. That is simply
not the case. Whisnant held that the government’s failure to discover mold
at a naval commissary, which it was required to inspect—although no stat-
ute, regulation or policy prescribed the precise manner in which the com-
missary was to be inspected—was not susceptible to policy analysis. 400
F.3d at 1183. The footnote merely contrasts Whisnant’s holding by recog-
nizing the holding of Miller: a decision that requires an agency to balance
competing safety considerations is protected by the discretionary function
exception. It also recognizes that the holding of Miller did not apply to the
facts in Whisnant; that is, the government’s failure to discover mold at the
commissary during its safety inspections did not involve the balance of
competing safety considerations. There was no evidence that mold inspec-
tors place themselves at risk when inspecting mold. Here, the Corps’s
decision when to replace the missing signs did require it to balance com-
peting safety considerations. Thus, nothing in our opinion today conflicts
with Whisnant.
16610 BAILEY v. UNITED STATES
other,” and that this balancing was sufficient to immunize the
government from plaintiff’s claim that the guards negligently
searched his cell). Here, the competing interests the Corps had
to balance in determining when to replace the missing warn-
ing signs were public safety versus Corps worker safety, as
well as the safety of its equipment in the fast river. Thus, the
Corps’s decision regarding when to replace the missing warn-
ing signs is susceptible to policy analysis and is immune as
a basis of suit.

In hindsight it may be easy to say the Corps should have
replaced the signs sooner, but that is exactly the judicial
second-guessing of government decision-making that the dis-
cretionary function exception is designed to prevent. As we
stated in Miller, “[o]ur task is not to determine whether the
Forest Service made the correct decision in its allocation of
resources. Where the government is forced, as it was here, to
balance competing concerns, immunity shields the decision.”
163 F.3d at 596. The Corps had to balance competing policy
interests in deciding when to replace the missing signs. There-
fore, immunity shields its decision.

AFFIRMED

B. Fletcher, Circuit Judge, dissenting:

I respectfully dissent.

The majority holds that the Corps’ decision to delay replac-
ing the Daguerre Point Dam warning signs is protected by the
discretionary function exception because that decision
required the Corps to balance employee safety and public
safety. I strongly disagree. The exception “protects only gov-
ernmental actions and decisions based on considerations of
public policy.” Berkovitz v. United States, 486 U.S. 531, 537
 BAILEY v. UNITED STATES 16611
(1988). Safety considerations — competing or otherwise —
are not policy considerations.

According to the majority, not only does the discretionary
function exception cover decisions that require the govern-
ment to balance competing safety considerations, but it covers
decisions that involve any competing considerations. See Maj.
Op. at 16609 (“[S]o long as a decision involves even two
competing interests, it is ‘susceptible’ to policy analysis and
is thus protected by the discretionary function exception.”);
Maj. Op. at 16610 (“Where the government is forced, as it
was here, to balance competing concerns, immunity shields
the decision.” (internal quotation marks omitted)). Such a
holding is both gratuitous and absurd. All decisions require
balancing. There are always trade-offs. Every action has both
costs and benefits. See generally Milton Friedman, There’s
No Such Thing as a Free Lunch (1975). If the discretionary
function exception is triggered any time the government has
to balance “even two competing interests,” Maj. Op at 16609,
then the exception covers every decision ever made by the
federal government. I cannot endorse such a result.

I would hold that the district court erred in dismissing this
suit and I would remand for further proceedings.

I. Daguerre Point Dam Sign Plan

The Corps’ sign plan for the Daguerre Point Dam is very
specific. The plan requires the Corps to post several perma-
nent warning signs on the Yuba River, including a sign four
miles upstream from the dam that says “Warning-Submerged
Dam 4 Miles Downstream,” a number of signs that read “Raft
Portage,” and signs on the dam abutments that say “Danger-
Keep Back.”

A portion of the river upstream from the dam is popular
with pleasure boaters in the spring and summer months.1 The
1
Submerged dams like the Daguerre Point Dam are particularly hazard-
ous for pleasure boaters. Such dams are difficult to see from low riding
16612 BAILEY v. UNITED STATES
Daguerre Point Dam sign plan requires the Corps to post sea-
sonal signs that clearly instruct boaters to portage when they
approach the submerged dam. Two seasonal signs are placed
on a gravel bar in the middle of the river and read, respec-
tively, “Warning – Submerged Dam 1500 Downstream” and
“Danger – Submerged Dam Ahead Take Out Now.” On the
south bank of the river, seasonal signs direct boaters to points
on the bank where they should ground their boats and begin
to portage. These signs read “←Raft Portage” and “Danger –
Submerged Dam Ahead – Take Out This Side.” The sign plan
also calls for the Corps to anchor a buoy in the middle of the
river that directs boaters “←Take Out.” In no uncertain terms,
these signs make clear that boaters must begin to portage well
before they near the dam.

None of these signs, according to the Complaint, were in
place when Mrs. Bailey’s husband and children began to raft
down the Yuba River. The only warning signs posted were
the “Danger-Keep Back” signs on the dam itself, and they
came too late. As a result, Mr. Bailey and his sons had no
knowledge of the dam and were never instructed to take their
raft out of the water. Mrs. Bailey argues that, had the Corps
timely replaced the warning signs that had been washed away
in May 2005, her husband would have known that the sub-
merged Daguerre Point Dam lay ahead, taken his boat out of
the water as instructed, and survived.

II. Warning Signs on the Banks of the Yuba River

The discretionary function exception covers decisions by
the federal government that are “grounded in social, eco-
nomic, and political policy.” United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,
814 (1984). The majority concludes that the Corps decision to

boats and create strong reverse currents downstream that can pull small
boats into the face of the dam.
 BAILEY v. UNITED STATES 16613
delay replacing the warning signs is protected by the excep-
tion because that decision required the Corps to balance the
safety of the public against the safety of its employees.

If we assume that balancing competing safety consider-
ations requires policy judgment — and I argue below that it
does not — then it follows that the discretionary function
exception covers only the Corps’ decision to delay replacing
the two seasonal signs on the gravel bar in the middle of the
river, the buoy anchored to the bottom of the river and the
signs on the south bank. To place those signs, Corps employ-
ees must drive or wade out into the river, a task that was made
dangerous in May 2005 by unusually high water flows on the
Yuba River.

Douglas Grothe, an employee of the Army Corps of Engi-
neers, indicated in his declaration supporting the Corps’
motion for summary judgment that if called as a witness he
would testify that he is an employee of the Corps and that
among his duties he managed all the recreation areas, includ-
ing operating and managing the Daguerre Point Dam; that his
“[s]taff attempted to assess the situation [of the washed-out
signs] on May 25 but could not get to the location where the
signs had been placed either on the gravel/sand bar or on the
south banks of the river because of the high, fast water and
dangerous conditions. On May 30, 2005 staff confirmed by
visual inspection that the signs were missing and we decided
that it was safe for our employees to begin replacing the miss-
ing signs. The work to replace those signs began the same
day.” The fatal accident occurred the previous day, May 29,
2005.

Nowhere does the Corps assert that turbulent water made
it difficult for employees to post warning signs on the north
bank of the river upstream from the dam — for example, the
“permanent” signs, such as signs on the dam abutments that
say “Danger-Keep Back,” signs that say “Raft Portage,” and
a sign four miles upstream that says “Warning-Submerged
16614 BAILEY v. UNITED STATES
Dam 4 Miles Downstream.” According to the majority’s own
analysis, the Corps’ decision to delay replacing some of the
signs required by the Daguerre Point Dam sign plan involved
no choice between competing safety concerns and thus were
not covered by the discretionary function exception. This
alone requires reversal and a remand.

III. The Corps Decision Implicated Only Safety
Considerations, Not Policy Considerations

“The decision to adopt safety precautions may be based in
policy considerations, but the implementation of those precau-
tions is not.” Whisnant v. United States, 400 F.3d 1177, 1182
(9th Cir. 2005) (internal quotation marks omitted); see also
Terbush v. United States, 516 F.3d 1125, 1133 (9th Cir. 2008)
(“[M]atters of routine maintenance are not protected by the
discretionary function exception . . . .”). For example, in
Indian Towing Co. v. United States, 350 U.S. 61, 69-70
(1955), the Supreme Court held that the Coast Guard could be
sued under the FTCA for failing to maintain a light house, and
in Whisnant, 400 F.3d at 1181-85, the Ninth Circuit held that
the United States could be sued for failing to eradicate mold
at a naval commissary. See also Bolt v. United States, 509
F.3d 1028, 1034-35 (9th Cir. 2007) (holding that snow
removal in parking lot involved routine maintenance and was,
therefore, not protected by the discretionary function excep-
tion); Soldano v. United States, 453 F.3d 1140, 1150-51 (9th
Cir. 2006); O’Toole v. United States, 295 F.3d 1029, 1035-37
(9th Cir. 2002) (holding that Bureau of Indian Affairs could
be held liable for neglecting to maintain an irrigation system).

The Corps’ initial decision to adopt the Daguerre Point
Dam sign plan may have taken into account policy consider-
ations — for example, ensuring public access and protecting
the environment. See Terbush, 516 F.3d at 1135-37; Childers
v. United States, 40 F.3d 973, 975-76 (9th Cir. 1994); but see
Oberson v. U.S. Dep’t of Agric., 514 F.3d 989, 998 (9th Cir.
2008); Faber v. United States, 56 F.3d 1122, 1127-28 (9th
 BAILEY v. UNITED STATES 16615
Cir. 1995). However, the Corps’ subsequent decision to delay
replacing the missing signs did not implicate such concerns.
The policy decision was made when the Corps adopted the
Daguerre Point Dam sign plan. All that was left was for the
Corps to exercise its “professional judgment” in solving the
logistical problem of how to overcome the turbulent water, or
alternatively in deciding how long to wait for the water to
subside. Whisnant, 400 F.3d at 1185. Because Mrs. Bailey is
not arguing that the Corps should have adopted a better sign
plan, but instead is challenging the Corps’ failure to properly
implement the existing plan, we should allow her suit to pro-
ceed.

It is true that the discretionary function exception applies to
the implementation of a pre-existing safety plan when “the
implementation itself implicates policy concerns.” Id. at 1182
n.3. The majority believes that such is the case here because
the Corps had to balance the safety of the public against the
safety of its own employees. The Corps certainly had to make
a judgment call, but not one that involved policy concerns.
The case law is clear that safety considerations are not policy
considerations. See, e.g., Navarette v. United States, 500 F.3d
914, 919 (9th Cir. 2007) (holding that United States not
immune because decision to warn involved “safety consider-
ations under an established policy, rather than the balancing
of competing policy considerations” (internal quotation marks
omitted)); Whisnant, 400 F.3d at 1181 (“[M]atters of scien-
tific and professional judgment — particularly judgments
concerning safety — are rarely considered to be susceptible
to social, economic, or political policy.”); Miller v. United
States, 163 F.3d 591, 596 (9th Cir. 1998) (“[S]afety is not a
consideration based on policy.”); Faber, 56 F.3d at 1125
(“[A] failure to warn involves considerations of safety, not
public policy.”).2 Because the Corps considered only safety
2
See also Oberson, 514 F.3d at 998; Bolt, 509 F.3d at 1034; Soldano,
453 F.3d at 1150-51; Sutton v. Earles, 26 F.3d 903, 910-11 (9th Cir.
16616 BAILEY v. UNITED STATES
factors when it decided to delay replacing the missing warn-
ing signs, that decision is not protected by the discretionary
function exception.

IV. Balancing Competing Safety Considerations Does
Not Require Policy Judgment

The majority acknowledges that safety considerations are
not policy considerations, but concludes that “balancing com-
peting safety considerations is a protected policy judgment.”
Maj. Op. at 16608. This conclusion is based on a footnote in
Whisnant where the court pointed to Miller v. United States,
163 F.3d 591, 595-96 (9th Cir. 1998), as an example of a case
where the implementation of a safety precaution implicated
policy considerations. Whisnant, 400 F.3d at 1182 n.3. The
court observed that Miller was a case where the government
had to “consider competing firefighter safety and public
safety considerations in deciding how to fight a forest fire.”
Id. Because the Corps also had to balance employee and pub-
lic safety, the majority concludes that Whisant requires dis-
missal. This short statement from Whisnant is too thin a reed
for the majority to rest its entire decision upon it. The line is
dicta, as Whisnant was not a case where employee safety was
a concern or where the decision to implement a safety precau-
tion implicated policy considerations. More importantly,
when the footnote is read in context, it is clear that the court
was giving a shorthand description of Miller when it summa-
rized the case as one involving competing safety consider-
ations, not creating a new rule of law providing that balancing
competing safety considerations requires policy judgment.

1994); Ariz. Maint. Co. v. United States, 864 F.2d 1497, 1504 (9th Cir.
1989); Seyler v. United States, 832 F.2d 120, 123 (9th Cir. 1987); ARA
Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir. 1987); cf.
Miller v. United States, 163 F.3d 591, 596 (9th Cir. 1998) (holding that
United States immune because it had to consider more than safety when
making the challenged decision); Lesoeur v. United States, 21 F.3d 965,
970 (9th Cir. 1994) (same).
 BAILEY v. UNITED STATES 16617
The majority’s interpretation of the Whisnant footnote can-
not be correct because it is contrary to the central holdings of
Whisnant and Miller. Both cases compel the conclusion that
the Corps’ decision in this case is not covered by the discre-
tionary function exception. The Whisnant court explained that
“matters of scientific and professional judgment — particu-
larly judgments concerning safety — are rarely considered to
be susceptible to social, economic, or political policy.” Id. at
1181. Because “the governmental decisions Whisnant claim-
[ed] were negligent concerned technical and professional
judgments about safety,” the court concluded that the discre-
tionary function exception did not apply. Id. at 1185. By the
same token, because Mrs. Bailey is challenging a decision by
the Corps that concerned only technical and professional
judgments about safety, that decision is also not covered by
the discretionary function exception.

The decision in Miller is even more clear that balancing
competing safety considerations does not require policy judg-
ment. The Millers sued the Forest Service for damages to
their property from a forest fire. The court began by observing
that the Forest Manual requires the Forest Service to take into
account “cost, public safety, firefighter safety, and resource
damage” when fighting fires. 163 F.3d at 595. After acknowl-
edging “that safety is not a consideration based on policy,”
the court went on to observe that, “[w]hile safety was one
consideration, the decision regarding how to best approach
the Bald Butte fire also required consideration of fire suppres-
sion costs, minimizing resource damage and environmental
impacts, and protecting private property.“ Id. at 596. Based on
those non-safety considerations, the court concluded that the
discretionary function exception applied. Id. 597. The court in
Miller clearly held that the Forest Service’s decision was pro-
tected by the discretionary function exception because that
decision involved considerations other than public and fire-
fighter safety.3
3
The majority ignores the central holding of Miller and focuses instead
on Miller’s statement that “the Forest Service’s decision regarding how to
16618 BAILEY v. UNITED STATES
Instead of considering the central holdings and reasoning of
Whisnant and Miller, the majority focuses exclusively on a
brief footnote in Whisnant that describes Miller as a case
where the Forest Service had to balance employee and public
safety. The footnote’s description of Miller is not wrong —
the Forest Service did indeed have to strike that balance —
but the majority’s interpretation of it is wrong.

It is important to understand Miller in context. Its decision
to let the Bald Butte fire to burn and to destroy the Millers’
property involved far more than safety concerns. Several for-
est fires caused by lightning took place almost simulta-
neously. Resources were stretched thin. Whose property
should be saved was difficult and heart-wrenching. The Miller
court faced with these facts stated: “While safety was one
consideration, the decision regarding how to best approach
the Bald Butte fire also required consideration of fire suppres-
sion costs, minimizing resource damage and environmental
impacts, and protecting private property. The discretionary
function exception is designed to prevent the judiciary from
using its power to police the decisions of the executive

attack a fire involved a balancing of considerations, including cost, public
safety, firefighter safety, and resource damage,” considerations that “re-
flect the type of economic, social and political concerns that the discre-
tionary function exception is designed to protect.” Id. at 595. Based on this
sentence, the majority interprets Miller as holding that the listed factors,
although they may be non-policy considerations when taken alone, trans-
form into policy considerations when they are balanced against one
another. See Maj. Op. at 16608.
If the majority’s reading is correct, then Miller holds that the discretion-
ary function exception applies when the government balances safety
against cost, two of the factors listed. But it is black letter law that the dis-
cretionary function exception does not cover decisions that require the
government to weigh increased safety against the cost of additional pre-
cautions. See Terbush, 516 F.3d at 1134 & n.4; Whisnant, 400 F.3d at
1184; O’Toole, 295 F.3d at 1037 (“Every slip and fall, every failure to
warn, every inspection and maintenance decision can be couched in terms
of policy choices based on allocation of limited resources.”).
 BAILEY v. UNITED STATES 16619
branch. Our task is not to determine whether the Forest Ser-
vice made the correct decision in its allocation of resources.
Where the government is forced, as it was here, to balance
competing concerns, immunity shields the decision.” Id. at
596.

Unlike the Forest Service’s decision in Miller, the Corps’
decision to delay replacing the Daguerre Point Dam warning
signs did not implicate considerations other than safety. Mrs.
Bailey’s suit must be allowed to proceed.

V. The Majority’s Decision is Inconsistent with the
Overarching Purpose of the FTCA

The majority’s conclusion also is inconsistent with the
“broad and just purpose” of the Federal Tort Claims Act,
which is “to compensate the victims of negligence in the con-
duct of governmental activities in circumstances like unto
those in which a private person would be liable and not to
leave just treatment to the caprice and legislative burden of
individual private laws.” Indian Towing Co., 350 U.S. at 68-
69; see also 28 U.S.C. § 1346(b)(1). “It would be wrong to
apply the discretionary function exception in a case where . . .
[the government’s] judgment would be no different than a
judgment made by a private individual not to take certain
measures to ensure the safety of visitors.” Faber, 56 F.3d at
1125. A private landowner in the Corps’ position would have
had to consider the exact same factors the Corps did when
deciding to delay replacing the warning signs. This is exactly
the kind of scenario that Congress intended to be covered by
the FTCA. See Dalehite v. United States, 346 U.S. 15, 28
(1953) (“Uppermost in the collective mind of Congress were
the ordinary common-law torts.”), partially overruled on
other grounds by Rayonier Inc. v. United States, 352 U.S. 315
(1957).4
4
See Varig Airlines, 467 U.S. at 813 n.10 (noting that “fundamental
aspects of Dalehite, including its construction of [the discretionary func-
tion exception], remain undisturbed” after Rayonier).
16620 BAILEY v. UNITED STATES
The discretionary function exception marks the boundary
between those situations where the government is acting in its
legislative or regulatory capacity and those where it is acting
as any private person might. See Varig Airlines, 467 U.S. at
813-14; Dalehite, 346 U.S. at 27-28. By preserving sovereign
immunity for the former category of government actions, the
exception “prevent[s] judicial ‘second-guessing’ of legislative
and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort.”
Varig Airlines, 467 U.S. at 814. If this suit were to proceed,
the district court would not usurp the Corps as supervisor and
regulator of the Daguerre Point Dam. The Corps would still
have responsibility for deciding how to run the dam, what
hazards warrant safety precautions, and what those safety pre-
cautions should entail. But having made that decision, it
would then be left for the court to determine whether the
Corps was obeying applicable laws, its own rules and safety
plans, and the common law. Dalehite, 346 U.S. at 34 (“The
‘discretion’ protected by the section is not that of the judge —
a power to decide within the limits of positive rules of law
subject to judicial review.”). This sort of second-guessing is
not the kind prohibited by the discretionary function excep-
tion, it is the kind that a court must undertake in any garden
variety tort case. The discretionary function exception does
not apply to Mrs. Bailey’s suit.

VI. Balancing, By Itself, Does Not Always Require Policy
Judgment

The majority does not focus on the nature of the consider-
ations that the Corps took into account when deciding when
to replace the missing warning signs, but rather on the fact
that the Corps had to balance competing considerations. All
balancing requires policy judgment, according to the majority.
See Maj. Op. at 16609 (“[S]o long as a decision involves even
two competing interests, it is ‘susceptible’ to policy analysis
and is thus protected by the discretionary function excep-
tion.”); Maj. Op. at 16610 (“Where the government is forced,
 BAILEY v. UNITED STATES 16621
as it was here, to balance competing concerns, immunity
shields the decision.”).

All decisions require balancing. Every action has both costs
and benefits. There are always trade-offs. When the govern-
ment acts to achieve some benefit, that action comes with a
cost; the government consumes resources and creates risks by
acting, and it forgoes opportunities to use those resources in
some other fashion to obtain a different benefit. See O’Toole,
295 F.3d at 1037 (“Every slip and fall, every failure to warn,
every inspection and maintenance decision can be couched in
terms of policy choices based on allocation of limited
resources”). If the discretionary function exception applied to
every decision that required the government to balance “even
two competing interests,” Maj. Op. at 16609, then the discre-
tionary function exception swallows the FTCA whole.

The Army had to weigh the safety of those living in mili-
tary housing against the need to conserve its limited resources
when it decided whether to remove snow from resident park-
ing lots at Fort Wainwright. See Bolt, 509 F.3d at 1034. The
United States Bureau of Reclamation had to balance safety
against efficiency when it decided whether to excavate unsuit-
able materials from underneath the embankments of the Ken-
newick canal. See Kennewick Irrigation Dist. v. United States,
880 F.2d 1018, 1030-32 (9th Cir. 1989). When deciding
whether to eradicate toxic mold at a commissary, the Navy
had to weigh the time and money it would take against the
health benefits for its employees. See Whisnant, 400 F.3d at
1184. The National Park Service had to balance added conve-
nience to park visitors against risks to their safety when it
decided to increase the speed limit on a park road. See Sol-
dano, 453 F.3d at 1151 (9th Cir. 2006). Despite the competing
considerations that underlay each of these decisions, the dis-
cretionary function exception was held not to apply.

It is not enough that the Corps had to balance competing
considerations when deciding when to replace the missing
16622 BAILEY v. UNITED STATES
Daguerre Point Dam signs. We must look at the substance of
those considerations, and decide whether those considerations
were related to “social, economic, or political policy.” Varig,
467 U.S. at 814. The Corps decision was motivated by safety
concerns, and safety considerations are not policy consider-
ations. I would hold that the district court erred in dismissing
this suit and remand for the suit to proceed.