Phong Lam v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PHONG LAM, No. 19-16243
Plaintiff-Appellant,
D.C. No.
v. 3:18-cv-00936-LB

UNITED STATES OF AMERICA,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted June 8, 2020
San Francisco, California

Filed October 28, 2020

Before: Milan D. Smith, Jr. and Andrew D. Hurwitz,
Circuit Judges, and C. Ashley Royal, * District Judge.

Opinion by Judge Royal;
Concurrence by Judge Royal;
Dissent by Judge Hurwitz

*
The Honorable C. Ashley Royal, United States District Judge for
the Middle District of Georgia, sitting by designation.
2 LAM V. UNITED STATES

SUMMARY **

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

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 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.

COUNSEL

Robert V. Chin (argued), Law Office of Robert V. Chin, San
Rafael, California, for Plaintiff-Appellant.

Julie Bibb Davis (argued), Assistant United States Attorney;
Sara Winslow, Chief, Civil Division; David L. Anderson,
United States Attorney; United States Attorney’s Office, San
Francisco, California; for Defendant-Appellee.
4 LAM V. UNITED STATES

OPINION

ROYAL, District Judge:

During the 2014 July Fourth weekend, Phong Lam
(“Lam”) was asleep in the Lake Mendocino recreation area
when a tree crashed into his tent and smashed his foot. Lam
sued the United States under the Federal Tort Claims Act
(“FTCA”) and alleged that the Army Corps of Engineers
(“Corps”) negligently failed to cut down the tree. The
Government filed a 12(b)(1) Motion to Dismiss Lam’s
complaint for lack of subject matter jurisdiction, and the
district court granted the motion after finding that the
FTCA’s Discretionary Function Exception (“DFE”)
defeated Lam’s claim. 1 Lam appeals that ruling.

This panel has jurisdiction under 28 U.S.C. § 1291 to
review a district court’s final decision. We review the district
court’s dismissal for lack of subject matter jurisdiction de
novo. Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir.
1995). And we accept the district court’s factual findings on
all jurisdictional issues unless they are clearly erroneous.
Sabow v. United States, 93 F.3d 1445, 1450 (9th Cir. 1996),
as amended (Sept. 26, 1996).

The issue in this case is simple. This panel must decide
if the district court erred in ruling that the FTCA’s
discretionary function exception shields the Government
from liability for Lam’s injuries. Ultimately, this case turns
on the Corps’ policies. Because those policies are not

1
With the parties’ consent, United States Magistrate Judge Laurel
Beeler wrote the order for the district court.
 LAM V. UNITED STATES 5

mandatory and allow for discretion, and that discretion is
susceptible to policy analysis, we AFFIRM.

I. Facts and Procedural Background

A 60-foot interior live oak buckled and crashed into
another tree and that tree collapsed onto Lam’s tent while he
and his family slept at the Kyen campground at Lake
Mendocino. Lake Mendocino (“the Lake”) is a recreation
area built and operated by the Corps for camping, boating,
swimming, picnicking, fishing, and hiking. Half a million
people visit the Lake each year. Kyen is one of six recreation
areas, and it has 93 campsites. Oak woodlands dominate in
Kyen. Corps employees maintain the campsites and the
surrounding trees.

In 2014, the Corps employed Wayne Shull (“Shull”) as
a maintenance worker at Lake Mendocino where he had
managed the trees since 2007. The United States Forest
Service had certified Shull as a chainsaw operator and as a
tree climber and had trained him to identify and remove
hazardous trees. For nine years before the oak fell on Lam’s
tent, Shull had patrolled the park looking for dangerous
trees, and he was familiar with the tree that injured Lam.

During his daily foot patrols, Shull looked for trees with
dead spots, foliage loss, cankers, fungi, or trees with dead
branches that would signal a threat. If a tree looked
dangerous, he would remove it the same day or first thing
the next morning. If the tree did not pose an immediate
threat, he would make a mental note and return when he had
time to remove it.

Shull said that he had inspected this oak tree before it
fell, but he never saw any reason to believe that it was
dangerous. He saw no signs of distress in the main tree bole,
6 LAM V. UNITED STATES

such as fungi, cracks, the presence of insects, insect damage,
or signs of disease; and the tree canopy was green and
healthy. When he examined the tree after it fell, he saw that
its roots had broken off, and that it had fallen on a cluster of
trees next to it. He also found rot in the roots and in the center
bole that he could not have seen when the tree was standing. 2

Lam countered the Government’s case with an expert
arborist, Dr. Kent Julin. Dr. Julin has a doctorate in forestry,
and he specializes in assessing tree-risks. He disagreed with
Shull and said that Shull could have seen the rot before the
tree fell. He further explained that the tree had two large
holes in the lower trunk that had been there for at least
20 years. He thought the tree was a hazard, and it should
have been cut down. Lam relied on Dr. Julin to establish the
government’s negligence and for his opinion that the
American National Standards Institute (“ANSI”) A300,
part 9 standard imposed a mandatory duty to cut down the
tree.

After a hearing, the district court granted the
Government’s Motion to Dismiss for lack of jurisdiction
finding that the DFE barred Lam’s claims. The court
specifically found the ANSI standards did not apply to tree
maintenance at Lake Mendocino, and no mandatory policy
barred DFE immunity. The court also found that decisions
about tree safety were susceptible to policy analysis.
Accordingly, the court entered judgment for the
Government.

2
The government also offered the testimony of two other
employees, Christopher Schooley, the park manager, and Lance Pool, a
park ranger, who examined the tree after it fell. They both opined that
the tree showed no signs of distress before it fell.
 LAM V. UNITED STATES 7

II. Analysis

As previously stated, this appeal turns on the Corps’
policies. In reaching its ruling, the district court carefully
examined the Lake Mendocino policies and found ample
evidence of discretion. Before analyzing these policies in
this opinion, it helps to review the law on the discretionary
function exception, and then armed with these established
legal concepts, turn to the plain language of the policies.
Understanding the complex law in this area and how it
applies to the Lake Mendocino policies is especially
important in Lam’s case because, as this Circuit
acknowledged in Terbush v. United States, “our case law
may not be in complete harmony on this issue,” i.e.,
discretion in national park safety cases. 516 F.3d 1125, 1136
(9th Cir. 2008).

A. The Discretionary Function Exception

i. DFE Supreme Court Cases and the
Berkovitz/Gaubert Test

The United States has sovereign immunity and cannot be
sued without its consent. One important immunity waiver
that allows suits against the federal government is the FTCA.
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. See United States v.
S.A. Empresa de Viaco Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 808 (1984). Liability arises for these
acts if a private person would be liable to the claimant under
the law of the place where the act or omission occurred. Id.;
28 U.S.C. §1346(b)(1). Such acts are typically “ordinary
common-law torts.” Dalehite v. United States, 346 U.S. 15,
28 (1953). The government can be held liable in tort “in the
8 LAM V. UNITED STATES

same manner and to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 2674.

The DFE, however, is an important exception to the
FTCA. The government does not waive immunity for tort
claims if the alleged tortfeasor was performing a
discretionary function or duty when he or she injured the
plaintiff. This is true even if the employee abused that
discretion. 28 U.S.C. § 2680(a). This kind of abuse is
typically simple negligence. So, if the DFE applies, it defeats
a plaintiff’s FTCA action. The applicable code section
explains when immunity is not waived, or stated another
way, which claims cannot go forward:

Any claim based upon an act or omission of
an employee of the government, exercising
due care, in the execution of a statute or
regulation, whether or not such statute or
regulation be valid, or 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). Therefore, where the DFE applies, the
United States has not waived its sovereign immunity, and the
district court lacks subject matter jurisdiction over a
plaintiff’s claim. GATX/Airlog Co. v. United States,
286 F.3d 1168, 1173 (9th Cir. 2002). Four key Supreme
Court cases, Dalehite v. United States, United States v. Varig
Airlines, Berkovitz v. United States, and United States v.
Gaubert, explain how this defense works and describe the
analysis a court should follow to test if the DFE applies.
 LAM V. UNITED STATES 9

To succeed in district court under the FTCA, a plaintiff
must have suffered an injury, a federal employee must have
caused that injury, and state law must offer a legal theory
that makes that employee’s negligence actionable. Varig
Airlines, 467 U.S. at 808. But proving these three elements
is not enough if the government has a viable DFE defense.
If the government can show that the alleged injury arose out
of the employee’s discretionary acts, then the district court
must dismiss plaintiff’s case. Discretion is the watchword,
the byword of the DFE. Central then to the early stages of a
plaintiff’s FTCA claim is the discretion question, and the
district courts typically deal with the DFE when the
government either files a motion for summary judgment or,
as in this case, a motion to dismiss. 3

The government has the burden to prove this defense, so
to win dismissal, it must show that the DFE applies because
the employee’s acts were discretionary. GATX/Airlog Co.,
286 F.3d at 1174. If the employee acted with discretion, the
DFE restores the government’s immunity, and plaintiff
loses. The DFE is intended to “prevent judicial ‘second-
guessing’ of legislative and administrative decisions
grounded in social, economic, and political policy through

3
Lam argues that the district court erred by failing to convert the
Government’s Motion to Dismiss to a motion for summary judgment
because his expert created triable issues of material fact. We disagree.
The purported expert affidavit Lam relied upon from Dr. Julin is in itself
a legal nullity because it opined on the ranger’s potential negligence;
however, it is well-established that negligence is not part of the
discretionary function exception analysis. See Chadd v. United States,
794 F.3d 1104, 1111 (9th Cir. 1015) (“[W]hether reasonable care
required such action goes to the merits of Chadd’s negligence
claim[…][,] but at step one of the of the discretionary-function-exception
analysis all that matters is that there was, in fact, discretion.”). Moreover,
Lam has waived this argument because he did not raise this issue below.
Id. at 1110 n. 4.
10 LAM V. UNITED STATES

the medium of an action in tort.” Varig Airlines, 467 U.S. at
814. And as the Supreme Court further said about FTCA
immunity, “[i]t is neither desirable nor intended that the
constitutionality of legislation, the legality of regulations, or
the propriety of a discretionary administrative act should be
tested through the medium of a damage suit for tort.” Id.
at 809.

Accordingly, “[w]here there is room for policy judgment
and decision there is discretion.” Dalehite, 346 U.S. at 36.
So, if the policies allow an employee to make independent
policy judgments, then the DFE defeats plaintiff’s claim.
Berkovitz v. United States, 486 U.S. 531, 536, 546 (1988).
But if the “policy leaves no room for an official to exercise
policy judgment in performing a given act, or if the act
simply does not involve the exercise of such judgment, the
discretionary function exemption does not bar a claim that
the act was negligent or wrongful.” Id. at 546–47.

Furthermore, because the discretionary or non-
discretionary nature of the acts are the focus of the DFE, “it
is the nature of the conduct, rather than the status of the actor,
that governs whether the discretionary function exception
applies in a given case.” Varig Airlines, 467 U.S. at 813.
Importantly, the DFE covers all employees exercising
discretion, not just planners, administrators, and regulators.
Id. Indeed, “the acts of subordinates in carrying out the
operations of government in accordance with official
directions cannot be actionable.” Id. at 811.

Moreover, whether the discretion involved was abused
makes no difference; the government will still prevail.
28 U.S.C. § 2680(a); see also Varig Airlines, 467 U.S. at
808. This means that even if the employee’s discretionary
act is negligent, the district court should dismiss plaintiff’s
case. Indeed, in Dalehite, the Supreme Court repeatedly
 LAM V. UNITED STATES 11

states that negligence is not an issue in the DFE analysis.
346 U.S. at 30–32. And the “degree of care used in
performing the activities are irrelevant to the application of
that doctrine.” Id. at 45–46. Thus, courts should put the
negligence issue aside on a DFE-based motion to dismiss
and focus its inquiry on whether the employee’s acts were
discretionary. This most often means that the court must
examine the applicable government policies to see if they
authorize or imply discretion or if they mandate specific
duties.

It is not just any discretion, however, that triggers the
DFE. The Supreme Court has created a two-part test, known
as the Berkovitz/Gaubert test, to determine the types of
discretionary acts covered by the DFE. First, “conduct
cannot be discretionary unless it involves an element of
judgment or choice.” Berkovitz, 486 U.S. at 536. Second, the
court must decide if “that judgment is of the kind that the
discretionary function exception was designed to shield.” Id.

“The exception, properly construed, therefore protects
only governmental actions and decisions based on
considerations of public policy.” Id. Following Berkovitz,
this Circuit aptly explained that “the key inquiry is not
whether the government employee has a choice, but whether
that choice is a policy judgment.” Arizona Maintenance Co.
v. U.S., 864 F.2d 1497, 1503 (9th Cir. 1989). This raises the
question about what public policy considerations support the
DFE. More specifically, did the employee’s acts involve “the
permissible exercise of policy judgment?” Berkovitz,
486 U.S. at 537.

Berkovitz offers some rules for analyzing policy
judgments. The DFE “will not apply when a federal statute,
regulation, or policy specifically prescribes a course of
action for an employee to follow.” Id. at 536. This is very
12 LAM V. UNITED STATES

important. If the policy is mandatory, it cannot be
discretionary. An employee has no discretion to deviate from
mandated procedures. Id. at 544. Guided by this directive,
the court must look at the policies to see if they mandate
certain actions that the employee failed to follow. If so, that
defeats the DFE.

If, however, the policies are not mandatory but rather
directly or implicitly give discretion to the employee, the
DFE defense survives this first step. It survives “because if
the policies…allow room for implementing officials to make
independent policy judgments, the discretionary function
exception protects the acts taken by those officials in the
exercise of this discretion.” Id. at 546. But the Supreme
Court offers more insight into dealing with the thorny
discretion issue.

The fourth Supreme Court case on the DFE is United
States v. Gaubert, 499 U.S. 315 (1991). Gaubert offers
additional guidance on how to analyze the DFE. In Gaubert,
the Supreme Court explained that:

When established governmental policy, as
expressed or implied by statute, regulation, or
agency guidelines, allows a government
agent to exercise discretion, it must be
presumed that the agent’s acts are grounded
in policy when exercising that discretion. For
a complaint to survive a motion to dismiss, it
must 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. The focus of the inquiry is not on the
agent’s subjective intent in exercising the
discretion conferred by statute or regulation,
 LAM V. UNITED STATES 13

but on the nature of the actions taken and on
whether they are susceptible to policy
analysis.

Id. at 324–325 (emphasis added). So, if the policies allow the
exercise of discretion in tree maintenance, the agent’s acts or
failures to act are presumed to be discretionary. In other
words, if the Corps’ policies allow discretion, then this panel
should presume that Shull and other Corps employees acted
with discretion.

It follows then that to avoid dismissal, a plaintiff must
allege facts that support a finding that the government
employee’s negligence was not grounded in policy
judgments. Furthermore, and very importantly, the district
court must not focus on or even consider the employee’s
actual thinking about what to do or not do, or the status of
the employee, or the “routine or frequent nature” of the
discretionary act. See Gaubert, 499 U.S. at 334. The court,
however, must consider whether the actions the employee
took were susceptible to policy analysis. Id. at 326.

That means in this case the Corps does not have to show
that Shull or some other Corps employee analyzed or
considered policies about managing trees in general or this
oak tree in particular. If managing trees was susceptible to
policy analysis, then the Corps will prevail on the DFE
defense.

ii. Ninth Circuit DFE Cases Applying the
Berkovitz/Gaubert Test

It is important now to move from the Supreme Court
cases on the DFE to those Ninth Circuit opinions that apply
the Supreme Court’s analysis. The following five Ninth
Circuit opinions control the analysis and show that to
14 LAM V. UNITED STATES

properly analyze Lam’s case, we must closely scrutinize the
Corps’ policies in their totality to determine whether they are
discretionary or mandatory.

In Childers v. United States, an 11-year-old boy died
after falling off an icy, unmaintained mountain trail in
Yellowstone National Park. 40 F.3d 973 (9th Cir. 1994), as
amended (Jan. 17, 1995). The plaintiffs argued that the
National Park Service (“NPS”) knew that the unmaintained
trail was dangerous in winter; therefore, the NPS had a duty
to warn of the danger that was not discretionary. The
plaintiffs also argued that NPS safety manuals required
warning signs. Id. In other words, the NPS allegedly violated
its own mandatory standards. Id. The government responded
that the policies were not mandatory, and the park rangers
had discretion to balance competing policy concerns. Id.
at 974–75.

The Childers panel agreed with the government and held
that the DFE protected the NPS employees’ decisions
regarding trail maintenance. The panel largely adopted the
findings of the district court that the NPS policies left it to
the park employees’ discretion to post signs or close trails,
and this discretion satisfied the first part of the
Berkovitz/Gaubert test. See id. at 975–76.

On the second part of the Berkovitz/Gaubert analysis, the
panel accepted the government’s argument that park rangers
had the discretion to balance competing policy concerns. As
the court explained: “Although the Childers insist that
several park guidelines make the posting of warning signs
and other decisions nondiscretionary, the record points to a
statute, … regulations, and guidelines which leave these
decisions, either explicitly or implicitly, in the hands of NPS
rangers.” Id. at 975–76. Hence, the panel affirmed the
district court’s ruling on immunity. This case shows how
 LAM V. UNITED STATES 15

closely courts should look at the policies to determine
whether they are discretionary or mandatory.

In another tragic case, Valdez v. United States, the
plaintiff fell 90 feet off Ella Falls in Kings Canyon National
Park and broke his back. 56 F.3d 1177 (9th Cir. 1995).
Among other negligence claims, he alleged the NPS failed
to warn about the dangers at the falls. Again, in this case,
plaintiff contended that the NPS policies imposed mandatory
safety duties for park rangers. The panel disagreed and found
that the policies outlined general policy “goals” for visitor
safety, not mandatory requirements. As the panel explained,
“[t]hese guidelines can be considered mandatory only in the
larger sense that they set forth broad policy goals attainable
only by the exercise of discretionary decisions.” Id. at 1180.

Specifically on the warning claim, the Valdez panel
found that the NPS’s Loss Control Management Guidelines’
broad mandate to warn about special hazards “through
educational materials, brochures, pamphlets, and the like
necessarily encompasses an element of discretion in
identifying such hazards.” Id. As the court explained, it is
too much to ask the NPS to warn about everything. Such
decisions implicate public policy concerns and are therefore
discretionary. Id. Again, we see that the court should look at
all the relevant policies in their totality and how they fit
together to determine if they are discretionary or mandatory.

In Morales v. United States, a helicopter pilot struck an
unmarked cable suspended 40 feet above the Verde River in
the Prescott National Forest. 895 F.3d 708 (9th Cir. 2018).
The cable was virtually invisible from more than 100 feet
away. The cable was not marked because it did not meet the
criteria for marking under United States Geological Survey’s
(“USGS”) standards. No statute, regulation, or rule required
marking cables below 200 feet, so “the decision of whether
16 LAM V. UNITED STATES

to mark the cableway was a result of considered judgment
and choice.” Id. at 714. The panel recognized that factors
such as safety interests, installation and maintenance costs,
and the natural beauty of the river showed that no “course of
action” was mandated. Id. That took care of the first step of
the Berkovitz/Gaubert inquiry.

The panel then considered whether deciding not to mark
the cable was “susceptible to policy analysis grounded in
social, economic, and political concerns.” Id. The panel
enumerated several policy concerns including the risk of
confusing pilots who expected cables to be marked at
200 feet or above and the risks to USGS employees in
installing and maintaining the markers; the costs for
installing and maintaining the cable markers; the likelihood
of vandalism; and the environmental choices about
minimizing the visual distractions around the Verde River,
which is designated as a “Wild and Scenic River.” Id. at 715.
These policy considerations satisfied the second part of the
Berkovitz/Gaubert test.

But the most important ruling in Morales involved the
question about whether the DFE even applied in safety cases.
The plaintiff argued that the DFE did not apply to public
safety decisions. The panel disagreed. It explained that
“[t]his sweeping exemption would severely undermine the
discretionary function exception and is unsupported by our
precedent. In case after case, we have considered the
government’s balancing of public safety with a multitude of
other factors.” Id. at 716. The panel further explained that it
is only in cases where the government has no evidence of
policy discretion to support DFE immunity that the
immunity does not apply. Id.

Next, in Gonzalez v. United States, the panel found that
the DFE immunized the FBI for failing to disclose a possible
 LAM V. UNITED STATES 17

home invasion by the Minutemen American Defense gang.
814 F.3d 1022 (9th Cir. 2016). The Minutemen opposed
illegal immigration and patrolled the Mexican border
searching for illegal aliens. The FBI got a tip that members
of the gang planned to invade a home to steal drugs,
weapons, and money. Several days later three members of
the gang attacked the Gonzalez’s home, killed the plaintiff’s
husband, wounded the plaintiff, and killed her daughter. Id.
at 1025–26. The wife sued the FBI for not alerting local law
enforcement to the danger so that she and her family could
have been protected from the threat.

The Gonzalez panel applied the proper two-part analysis
and found that the DFE immunized the FBI. The panel
reviewed the Attorney General guidelines for the FBI.
Although factually quite different from a tree safety case, the
opinion guides us in interpreting certain policy language,
especially the use of the word “shall.” The FBI policy said:

When credible information is received by an
FBI field office concerning serious criminal
activity not within the FBI’s investigative
jurisdiction, the field office shall promptly
transmit the information or refer the
complainant to a law enforcement agency
having jurisdiction, except where disclosure
would jeopardize an ongoing investigation,
endanger the safety of an individual, disclose
the identity of a human source, interfere with
a human source’s cooperation, or reveal
legally privileged information. If full
disclosure is not made for the reasons
indicated, then, whenever feasible, the FBI
field office shall make at least limited
disclosure to a law enforcement agency or
18 LAM V. UNITED STATES

agencies having jurisdiction, and full
disclosure shall be made as soon as the need
for restricting disclosure is no longer present.

Id. at 1029 (emphasis added). Note that the word “shall” is
used three times in this guideline. “Shall” typically means
mandatory, but the panel did not find that the word “shall”
controlled the DFE question. The panel described the many
judgments that FBI agents had to consider before disclosing
possible criminal activity. Id. at 1032.

This decision teaches the importance of analyzing
policies that contain mandatory words in their overall
context. The panel said that “the presence of a few, isolated
provisions cast in mandatory language does not transform an
otherwise suggestive set of guidelines into binding agency
regulations.” Id. at 1030. Furthermore, viewed in the context
of that case, “mandatory-sounding language such as ‘shall’
does not overcome the discretionary character of the
Guidelines.” Id. As a result, the DFE immunized the FBI’s
actions. Hence, we must compare any mandatory words in
the Lake Mendocino policies with the overall scope of the
policies to see if, in their totality, the policies are mandatory
or discretionary. The use of a few mandatory words like
“shall” does not create a mandatory policy if the policy
otherwise allows for discretion.

Finally, in Chadd v. United States, a 370-pound
mountain goat gored a hiker’s femoral artery, and he bled to
death. 794 F.3d 1104 (9th Cir. 2015). National Park Service
officials in Olympic National Park knew that this goat and
other goats had become habituated to park visitors. They also
knew that they had a mountain goat problem because park
visitors had complained that goats were standing their
ground, following or chasing people, rearing up, and pawing
 LAM V. UNITED STATES 19

the ground. Id. at 1107. They had become aggressive and
threatening.

Recognizing this problem, park officials began to warn
visitors verbally and with trail signs. They also shot goats
with paintballs and bean bags to change the goats’ behavior.
In fact, park rangers had considered relocating the goat that
killed the hiker to another park because that goat had become
increasingly aggressive. But the rangers spared the goat. Id.

Susan Chadd, the deceased hiker’s wife, filed a
complaint and alleged that park officials were negligent in
not killing the goat until after it had killed her husband. In
analyzing the DFE issue, the court noted that park policies
did not mandate what should be done with an aggressive
mountain goat, so park rangers had discretion in how to
solve the goat problem. Id. at 1110, 1111. That shifted the
legal question from the first step of the Berkovitz/Gaubert
test to the second step.

On the second step, the panel asked if the rangers’
responses to the goat threat were of the kind that Congress
intended the DFE to protect; that is, were they susceptible to
policy judgments. Id. at 1109. Importantly, the panel noted
that if park policies and regulations allowed discretion, there
is “a strong presumption that a discretionary act authorized
by the regulation involves consideration of the same policies
which led to the promulgation of the regulations.” Id. (citing
Gaubert, 499 U.S. at 324). The panel found that the DFE
immunity applied to the acts described above. This decision
is important because it emphasizes the Gaubert presumption
that flows from discretionary policies. These five Ninth
Circuit opinions show the elements for the proper analysis
for Lam’s case.
20 LAM V. UNITED STATES

Lam’s counsel argues that Kim v. United States, 940 F.3d
484 (2019), should control this panel’s ruling because it is a
tree safety case. The Kim panel found that the DFE did not
apply when two young boys were killed after a tree limb fell
on their tent. But that case turned on Directive 25, part of
Yosemite National Park policies. Id. at 488. And as the panel
explained, once the Park officials undertook to inspect the
trees in the park, they had to follow the established policies.
Id.

Directive 25 set forth the “Hazard Tree Management”
program with a Seven Point system that required
documenting and quantifying hazardous trees with a rating
system. As the panel described it: “The system provides
specific criteria for how to rate each component based on the
tree’s visible features and the nature of the surrounding area.
Trees with a total rating of five or higher are considered
‘high’ risks and, according to directive, ‘will require some
type of abatement/mitigation.’” Id. Here, nothing in the
Corps’ policies at Lake Mendocino even approaches the
level of specificity found in Directive 25 or requires or
mandates abatement or mitigation of certain trees. Thus, Kim
does not control or assist in deciding the outcome of Lam’s
case. 4

Now, armed with this Supreme Court and analogous
Ninth Circuit precedent, we turn to the relevant Corps
policies governing Lake Mendocino and how the above
precedent dictates the outcome of this case.

4
Two out-of-circuit cases help with analyzing dangerous tree cases.
Merando v. United States, 517 F.3d 160 (3rd Cir. 2008) and Autery v.
United States, 992 F.2d 1523 (11th Cir. 1993). In both cases, those
circuits found that the DFE applied.
 LAM V. UNITED STATES 21

B. Analyzing the Lake Mendocino Policies

i. The Applicable Policies are Discretionary

Above, we have outlined the Supreme Court precedent
for the Berkovitz/Gaubert test and its Ninth Circuit progeny.
We now apply this precedent to the plain language of the
policies that controlled the actions of Shull and the Corps’
employees at Lake Mendocino. In doing so, we must answer
two questions: 1) Did the policies allow for discretion? and
2) Were those policies susceptible to the policy analysis the
DFE was designed to protect? Because the answer is yes to
both questions, the DFE applies.

The relevant policies are found in the Operational
Management Plan (OMP), Engineering Manual 385-1-1
(“EM 385-1-1”), specifically Section 31, and Engineering
Manual 1110-1-400: Engineering and Design Recreation
Facility and Customer Services Standards. Lam argues that
the ANSI A300 Part 9 also applies and imposes mandatory
duties for identifying and removing hazardous trees. But, as
explained below, that argument is wrong.

First, we turn to the OMP. The OMP by its own terms is
meant as a “guide”; it “guides use, development, and
management of the natural and man-made resources.” It
states that its “Guiding Objectives” are to:

Maintain a diversity of productive fish and
wildlife habitat for both game and non-game
species, accomplished through: woodland
management and other vegetative
manipulation; grassland maintenance and
preservation; fisheries enhancement; other
management practice. . . .
22 LAM V. UNITED STATES

How to best follow this guide, however, is left to the Lake
Mendocino rangers’ discretion. That is not to say that there
are no general requirements for rangers inspecting,
maintaining, and removing trees, only that the OMP does not
specify how to carry out these general requirements.

Generally, rangers should conduct “daily
maintenance/safety inspections” in all “developed
recreational areas,” as well as safety inspections for the
ranger to “survey operational activities, facilities,
equipment, and procedures for safety hazards. Personnel will
take or recommend actions necessary to remove or isolate
hazards. The appointed Safety Officer will conduct such
safety inspections as directed or as requested.” Although the
OMP does require daily inspections, there is no requirement,
checklist, or criteria for how to conduct these inspections or
what they should cover. That is left out of the policy
language and left up to the ranger’s discretion. See Morales,
895 F.3d at 714 (finding where no specific guidance was
provided in the policy, “employees were left to exercise their
judgment”).

Additionally, for maintaining and preserving trees,
rangers should implement a tree pruning program to remove
dead trees, limbs, and snags before they become a public
hazard. And maintenance staff is tasked with improvement
cutting and thinning of trees for both safety and aesthetic
reasons. Although the OMP has a Five-Year Plan, Task 9,
for Hazard Tree Removal, Task 9 includes only the
following general information:

Initiation Date: October 2013

Completion Date: May 2014

Cost: $2800 (volunteer labor value - $22,320)
 LAM V. UNITED STATES 23

Description: Removal of approximately 40 hazard trees

Manpower Requirements: 1 COE Ranger plus CDC
labor

Equipment Requirements: chainsaws, protective gear,
splitter

Therefore, although the Corps is required to remove dead
trees and dead limbs, no mandatory criteria exist for
identifying hazardous trees. Here, the tree that harmed Lam
was not dead. In addition, the OMP contains no specific
mandate for what constitutes a weak, damaged, diseased, or
undesirable tree. Although the OMP implements a time
frame for removing trees, a budget, an approximation of how
many trees to remove, and even the equipment and man-
power requirements for cutting trees, it mentions no specific
criteria for identifying dangerous trees. See Valdez, 56 F.3d
at 1180 (finding that while the “policy guidelines certainly
outline general policy goals regarding visitor safety, the
means by which NPS employees meet these goals
necessarily involves an exercise of discretion”). In other
words, the very nature of these general requirements allows
the exercise of Corps employees’ judgment and discretion.

Indeed, implementing the general OMP requirements is
left to the Park Ranger. The Ranger is to “consult the OMP
Five Year Program to prepare annual work plans and
reappraise wildlife habitat conditions.” And for
maintenance, the OMP states, “the need for maintenance of
constructed habitat will be determined through program
monitoring and observation. Priority of maintenance will be
determined by Senior Park Ranger, depending on available
manpower and funds.” In other words, it is up to the Senior
Park Ranger to use his judgment in carrying out the OMP
24 LAM V. UNITED STATES

requirements while weighing policy choices, such as costs
and available volunteers.

And because the OMP contains no criteria or mandates
for identifying and removing hazardous trees, it implies that
employees like Shull will exercise discretion and make
policy judgments. The absence of mandatory language about
safety risks gives much discretion to Corps employees.
Berkovitz, 486 U.S. at 546 (noting that where policies “allow
room for implementing officials to make independent policy
judgments, the discretionary function exception protects the
acts taken by those officials in the exercise of this
discretion”). So, because the policies in the OMP are
discretionary, they fall squarely within the DFE.

But Lam does not rely solely on the policy language in
the OMP. He argues that the ANSI A300, Part 9 standard
imposes specific mandates for identifying and removing
hazardous trees that defeat the DFE. This argument fails
because a straightforward reading of policies does not
support it. Yes, the ANSI standards are mentioned twice in
the policies. But they are listed as a “reference” in EM 385-
1-1 and as a general requirement in EM 1100-400-1. Neither
of these manuals specifies how to identify or assess unsafe
trees.

EM 385-1-1, Section 31, as the district court rightly
determined, deals exclusively with mandatory safety
requirements applicable to Corps employees who engage in
the process of removing trees, as well as the proper safety
methods for pruning, felling, and chipping trees. These
requirements apply to the safety of Corps employees, not the
safety of the general public. EM385-1-1, Section 31 has
nothing to do with methods for maintaining or identifying
dangerous trees. Moreover, the ANSI A300 standards are
listed as a “reference” in this manual, and a reference is not
 LAM V. UNITED STATES 25

a requirement. Likewise, EM 1110-1-400 does not deal with
tree maintenance or hazard assessment or specify methods
required to perform those tasks. In fact, Lam does not even
address, or rely on EM 1110-1-400 in his brief. Thus, the
ANSI standards do not preclude sovereign immunity under
the DFE.

Even if the ANSI standards applied, they are inherently
discretionary. They are guidelines for devising a tree
assessment plan in which “[o]bjectives shall be based on the
context of the situation and client expectations.” They do not
impose a tree assessment plan, and “they are not intended to
be adopted in their entirety into laws and regulations or as
work specifications without additional information and
clarification.” See Valdez, 56 F.3d at 1180; see also
Gonzalez, 814 F.3d at 1030 (finding the existence of some
mandatory provisions “does not transform an otherwise
suggestive set of guidelines into binding agency
regulations”) (citation omitted). To the extent in which the
ANSI standards are used, they allow for judgment and
discretion on the part of the tree professionals to use them
for their specific context and needs. Thus, Lam’s arguments
that the ANSI standards, specifically A300, Part 9, are
mandatory, fail.

Because the Lake Mendocino policies have no specific
mandatory requirements for maintaining, identifying, or
removing dangerous trees, Shull had discretion to act
according to his judgment in assessing trees. This discretion
satisfies the first part of the Berkovitz/Gaubert test. Now we
will turn to the second part of the test.
26 LAM V. UNITED STATES

ii. The Rangers Decisions as to Tree Maintenance
Were Susceptible to Policy Considerations

As an initial matter, and as noted above, there is a
presumption that where the express or implied government
policy “allows a government agent to exercise discretion, it
must be presumed that the agent’s acts are grounded in
policy when exercising that discretion.” Gaubert, 499 U.S.
at 324 (emphasis added); see also Chadd, 794 F.3d at 1104
(same). Although we accept this presumption, our analysis
need not rest on the presumption because here, the OMP
specifies various park policy considerations to be weighed,
considered, and balanced in making decisions for Lake
Mendocino, including:

• The objective to provide “the highest possible
recreational experience for the least amount of
expenditure.”

• The objective to provide “quality recreational
experiences to a wide spectrum of the public while
ensuring maximum sustained use of park resources
consistent with their carrying capacity and aesthetic
and biological values.”

• Safe and healthful recreation opportunities for
visitors.”

• “Protection of resources.”

• “Preservation & [e]nhancement of aesthetic integrity
of park resources[.]”

The OMP also notes specific policy considerations as to the
removal of trees:
 LAM V. UNITED STATES 27

• “Since cutting of trees is [a]esthetically undesirable
and conflicts with recreational usage, it’s done
during non-peak recreation seasons whenever
possible.”

• “[A] mature tree, if destroyed, will leave a void that
will take years to replace. Therefore, it is extremely
important that all operation and maintenance
activities be conducted in a manner that will
minimize negative impacts on desirable vegetation.”

So, according to the terms of the OMP, the decision of
whether to cut down a tree is susceptible to competing policy
considerations. One goal is to maximize recreation
opportunities while another goal is to protect resources. One
cannot maximize both. These goals also include preserving
and enhancing park resources and aesthetics. Keeping the
Lake beautiful will eventually compete with maximizing
play. And aesthetics is a policy issue. See ARA Leisure
Services v. U.S., 831 F.2d 193, 195 (9th Cir. 1987) (finding
that deciding not to put up guardrails was grounded in social
and political policy because NPS policies required that roads
be designed to be “aesthetically pleasing” and to go “lightly
upon the land utilizing natural support wherever possible.”).
Not to mention that live oaks “provide food and cover for the
acorn woodpecker, red-shafted flicker, titmouse, nuthatch
and scrub jay” among other wildlife. Indeed, both Shull and
Schooley reiterated in their affidavits that the OMP
“provide[s] guidance to balance competing policy
considerations that impact tree management decisions,
including: public safety, employee safety, ecology, wildlife
preservation, staffing and budgetary constraints, and park
aesthetics.”
28 LAM V. UNITED STATES

These competing policy considerations, such as safety,
budget, staffing, wildlife and habitat preservation, impact on
the natural vegetation, and aesthetics are all the type of
policy decisions that are protected under the DFE. See, e.g.,
Valdez, 56 F.3d at 1180 (“Here, the challenged conduct
clearly implicates a choice between the competing policy
considerations of maximizing access to and preservation of
natural resources versus the need to minimize potential
safety hazards.”); Childers, 40 F.3d at 976 (noting DFE
applied where policy considerations included the need to
“balance access with safety, and take into account
conservation and resources”). It is sufficient that Shull’s
decisions would be susceptible to these policy
considerations; he need not have actually weighed them.
Gonzalez, 814 F.3d at 1034 (“The discretionary function
exception applies so long as the challenged decision is one
to which a policy analysis could apply.”).

Moreover, this is not a case where no evidence exists in
the record indicating policy considerations. For example, in
Summers v. United States, the plaintiffs alleged that the
government had failed to warn visitors at Rodeo Beach of
the hazards of stepping on hot coals at the beach’s fire pits.
905 F.2d 1212, 1214 (9th Cir. 1990). In that case, the
government offered “no evidence . . . that NPS's failure to
post warnings of the sort that would have prevented [the
plaintiff’s] injury was the result of a decision reflecting the
competing considerations of the Service's sign policy.” Id.
at 1215.

Here, social and political policy questions, maximizing
aesthetics, and conserving natural resources inevitably
become competing interests, especially when you add the
public’s full enjoyment of the Lake. Competing interests and
policy concerns require balancing and weighing; balancing
 LAM V. UNITED STATES 29

and weighing involve discretion; and policy discretion
invokes the DFE. As noted above, in Childers, the plaintiffs
argued that failure to warn of known dangers on an icy
mountain trail was not discretionary. But the panel
disagreed, and in affirming the DFE defense, the panel said:
“Park rangers used their discretion to balance, within the
constraints of the resources available to them, a statutory
mandate to provide access with the goal of public safety.
This decision was precisely the kind the discretionary
function exception was intended to immunize from suit.”
Childers, 40 F.3d at 976. Lam’s case is in line with Childers,
Valdez, Morales, and Gonzalez, and as such, Lam’s
argument that these are not the type of policy considerations
protected under the DFE fails, and the DFE applies in this
case.

III. Conclusion

Lam has not shown any specific mandatory duties, he has
not defeated the Gaubert presumption, and he has not
negated the evidence of discretion for policy judgments. The
DFE applies. The district court properly dismissed Lam’s
case, and we affirm.

AFFIRMED.

ROYAL, District Judge, concurring:

I write separately to address the dissent.

First, the dissent contends that Kim should control this
court’s analysis, in part, because this case does not involve a
policy question. Rather, it turns on technical questions about
inspecting and removing a dangerous tree. But as explained
30 LAM V. UNITED STATES

above, although factually very similar, the policies are very
different. In Kim, the technical requirements were written
into the policies, but here they are not. The Lake Mendocino
policies allow broad discretion; the Yosemite National Park
polices were technical and tight, which left the park rangers
with technical considerations alone. This is the decisive
difference in the two cases and the reason Kim does not
control our ruling.

Second, the dissent cites Oberson v. U.S. Department of
Agriculture, Forest Service, 514 F.3d 989 (9th Cir. 2008), to
support reversal. But in that case, unlike Lam’s case, the
government offered no evidence “that its failure to post a
warning was the result of a policy decision.” Id. at 997. As
the court explained: “In the absence of any evidence that the
failure to post a warning or remedy the hazard was the
product of a policy choice, we conclude that the
discretionary function exception did not shield the Forest
Service from liability.” Id. 998. But, to the contrary, here the
government offers substantial evidence of policy discretion.

Third, the dissent cites Nanouk v. United States, No. 19-
35116, —F.3d —, slip op. at 20 (9th Cir. Sept. 2020). In that
case the plaintiff asserted three negligence theories against
the government for failing to clean up toxic PCBs that leaked
into her property from an abandoned radio relay station in
Alaska. This court affirmed the district court’s ruling in the
government’s favor on Nanouk’s first two claims because
the DFE applied. Id. at 4.

Plaintiff’s first claim involved negligent supervision of
government contractors who dumped PCBs on the ground.
Plaintiff’s second cause of action claimed that the
government was too slow in remediating the polluted
worksite, which caused PCBs to leech into her property. Id.
Note that both theories involved the implementation stage.
 LAM V. UNITED STATES 31

The district court did not find against the government on
Nanouk’s third claim, in which Nanouk alleged that the
government failed to discover and remediate a PCB hot spot
sooner, which damaged her property and her health.

This court reversed the district court’s ruling on the third
issue but only to remand it for further consideration. The
panel explained that “we are unable to determine whether the
government’s decisions were ‘grounded in social, economic,
and political policy.’” Id. at 7 (quoting Varig Airlines,
467 U.S. at 814). Unlike in Lam’s case, the government
offered no factual showing to defeat Nanouk’s third claim.
And as this court noted in Nanouk, “[t]he key factor in
identifying judgments that are protected by the discretionary
function exception is the presence of ‘competing policy
considerations’ that must be weighed.” Id. at 7. Here, the
government shows these policy considerations. Likewise,
the government showed these considerations for the
plaintiff’s first two claims in Nanouk but failed to do so for
Nanouk’s third claim. Hence, Nanouk does not support the
implementation exception. In fact, it supports the majority’s
opinion.

Fourth, the dissent further contends that deciding to
remove a dangerous tree arises at the implementation stage,
and the DFE does not protect acts of implementation, only
design stage actions. This “implementation exception,”
sometimes called the undertaking-a-duty exception, is a
sticky strand in the tangled web of Ninth Circuit DFE law
found in cases the dissent cites like Kim, Whisnant, and Bear
Medicine. These opinions are not in harmony with
countervailing cases like Childers, Valdez, Morales,
Gonzales, and Chadd, which all involved some element of
implementing or failing to implement safety precautions, but
in which the courts applied the DFE and dismissed the
32 LAM V. UNITED STATES

plaintiffs’ claims. The same applies in Dalehite, Varig
Airlines, and Gaubert, which all involve implementation
issues.

In addition, the implementation exception contradicts
Supreme Court cases and the Berkovitz/Gaubert analysis.
Under the implementation exception, there can be no policy
judgments at the implementation stage. This, in turn, often
ends with the unstated premise that once government
workers move to the jobsite, nothing they do can involve
policy decisions, so everything they do on jobsites lacks
DFE protection. This contradicts the plain language in
Dalehite that the “acts of subordinates in carrying out the
operation of government in accordance with official
directions cannot be actionable.” 346 U.S. at 36. This is a
broad and sweeping rule. Consequently, policy
“implementing” employees do not lose the DFE defense
simply because they are implementing or because they are
on the jobsite or because they are dealing with safety issues.
There is no time/place exemption for DFE policy decisions.

Furthermore, the dissent cites the Restatement (Second)
of Torts §324A (Am. Law Inst. 1965) for the undertaking a
service rule. The undertaking a service rule states the same
legal proposition as undertaking a duty. The Restatement,
however, is not state law unless a state adopts it, and then it
is no longer the Restatement. Only state law theories work
for FTCA claims, not Restatement theories. And when the
theory becomes a state law cause of action, it is subject to
the DFE. But there are more problems with the
implementation exception.

Importantly, a close reading of the cases that Kim,
Whisnant, and other decisions rely on for the implementation
exception shows a misreading of those cases. For example,
Whisnant cites several decisions for the implementation
 LAM V. UNITED STATES 33

exception that close scrutiny shows were decided against the
government for other reasons consistent with the
Berkovitz/Gaubert analysis. For example, in ARA Leisure
Servs. v. United States, 831 F.2d 193 (9th Cir. 1987), the
panel followed the Berkovitz/Gaubert analysis, not an
implementation theory. In ARA Leisure a tour bus veered off
a dangerous road in the Denali National Park. Plaintiffs
alleged negligent design, construction, and maintenance of
the road. Construction and maintenance involve
“implementation.” Plaintiffs specifically claimed that the
National Park Service should have put up guard rails to
protect travelers. This is a safety issue case like almost all
the other cases cited in this opinion.

The panel held that the decision to design and construct
the road without guard rails was grounded in social and
political policy. Id. at 195. Hence, those decisions had DFE
immunity. But improperly maintaining the road allowed no
immunity because the duty to maintain the road arose from
the design contract. It was not a science or technical issue
that controlled the court’s decision nor the fact that the
negligence occurred at the implementation stage. Rather,
evidence in the record showed that Park Service standards
explicitly required that park roads “conform to the original
grade and alignments” and that “graded roads be firm, [and]
of uniform cross section.” Id. In other words, properly
maintaining the roads was mandatory according to the
contract, so the DFE did not apply.

Next, Kennewick v. United States, 880 F.2d 1018 (9th
Cir. 1989), is an important Ninth Circuit case that Whisnant
misconstrued for both the scientific-technical exception and
the implementation exception to the DFE. In that case,
Plaintiff’s damages occurred when an irrigation canal that
the United States Bureau of Reclamation (“USBR”) had
34 LAM V. UNITED STATES

designed and constructed broke in two places. In Kennewick,
the panel followed Berkovitz and found that the safety and
engineering standards were mandatory and specific, so the
DFE did not apply to building the canal. Id. at 1033.

In Kennewick, the safety standards arose out of the
construction contract. Although designing the canal
involved many technical, economic, and social
considerations that had DFE immunity, the construction
failures did not. Id. at 1029. The contract specified how the
USBR should build the canal’s embankments. It mandated
that the entire surface of the foundation be scarified or
plowed to a depth of not less than six inches. Id. at 1030. The
USBR did not comply with the contract because it did not
prepare the foundation, and the canal failed. On plaintiff’s
negligent construction claim, the DFE did not apply because
there was no element of policy judgment in face of a contract
requirement. Obviously, Kennewick involved scientific and
technical questions at the implementation stage—canal
building. But the case turned on the government’s failure to
comply with the contract, and the government’s failure to
comply with a contract allowed no room for policy
judgments. Id. at 1026.

Importantly, the court further explained that the DFE
does not stop at the planning stage. Indeed, as this court said
in Kennewick, “[a] matter does not fall outside the
discretionary function exception merely because the
decision to embark on an activity has already been made.
Were that the case, Dalehite and Varig would be
eviscerated.” Id. at 1024–25. Indeed, one of the most
important protections required by the Supreme Court’s
analysis is eviscerated—the Gaubert presumption. The
implementation cases treat this presumption as though it
does not exist. That matters in Lam’s case because the
 LAM V. UNITED STATES 35

dissent concedes that the Lake Mendocino policies allow its
employees discretion in removing trees.

The Whisnant panel also relied on Marlys Bear Medicine
v. United States, 241 F.3d 1208 (9th Cir. 2001). In Bear
Medicine the panel said that “[t]he [g]overnment cannot
claim that both the decision to take safety measures and the
negligent implementation of those measures are protected
policy decisions.” Id. at 1215. But the Supreme Court’s
ruling in Varig Airlines directly contradicts this statement.

In that case a fire started in the towel disposal area below
the sink in one of the lavatories on a Boeing 707 that
destroyed the airliner and killed 124 people. The Civil
Aeronautics Agency (“CAA”) had certified that the Boeing
707’s design and specifications satisfied minimum safety
standards. 1 Varig Airlines, 467 U.S. at 800. Plaintiffs’ chief
claim was that the CAA had negligently inspected the
Boeing 707. Id. at 801. In other words, at the implementation
stage of certifying the aircraft, the CAA failed in undertaking
the technical task, an engineering task, of inspecting the
aircraft. The CAA had devised and implemented a spot-
check plan for such inspections.

About this spot-check plan and its implementation, the
Supreme Court explained that the plaintiffs’ negligent
inspection claim challenged both the decision to implement
the plan and applying the plan to a particular aircraft. Id.
at 819. The court then held that “both components of
respondents’ claim are barred by the discretionary function

1
The Civil Aeronautics Agency later became the Federal Aviation
Administration (“FAA”). The court uses both names in the opinion.
36 LAM V. UNITED STATES

exception to the Act.” Id. Applying the plan to the plane is
classic implementation.

The court further specifically noted that “[i]t follows that
the acts of FAA employees in executing the ‘spot-check’
program in accordance with agency directives are protected
by the discretionary function exception as well.” Id. at 820.
Thus, contrary to Bear Medicine, the Supreme Court held
that both deciding to undertake safety measures and
negligently implementing those measures enjoy DFE
protection. Indeed, the Supreme Court described the Ninth
Circuit’s failure in ruling on this case. “The Court of Appeals
viewed the inspection of aircraft for compliance with air
safety regulations as a function not entailing the sort of
policymaking discretion contemplated by the discretionary
function exception.” Id. at 802. But the Supreme Court said
it did. Id. Inspecting is implementing, and the essence of
Lam’s claim arises out of the alleged failure to properly
inspect this tree to identify it as dangerous. This is like the
FAA’s failure in Varig Airlines: the failure to properly
inspect the Boeing 707 and identify the hazard.

But there is another problem with Bear Medicine. The
panel said that “[t]he government cannot claim that both the
decision to take safety measures and the negligent
implementation of those measures are protected by policy
decisions. This argument would essentially allow the
government to administratively immunize itself from tort
liability under applicable state law as a matter of policy.”
Bear Medicine, 241 F.3d at 1215. The first problem with this
idea is obvious. Negligence does not play a role in the DFE
analysis. The second problem is also obvious. Congress did
intend to immunize FTCA claims for negligence if the
negligence arose from policy judgments. Indeed, as the
Supreme Court explained in Dalehite, the DFE covers all
 LAM V. UNITED STATES 37

employees exercising discretion for both negligence and
wrongful acts. Id. at 967.

Next, on the undertaking-a-duty exception, one further
step of analysis helps. The argument for this exception
arises, not completely, but significantly from another
Supreme Court case—Indian Towing Co., Inc. v. United
States, 350 U.S. 61 (1955)—and Whisnant cites it as
authority. Whisnant v. United States, 400 F.3d 1177, 1182
(9th Cir. 2005).

Indian Towing is a simple case. The U.S. Coast Guard
operated a lighthouse on the Mississippi coast.
Unfortunately, the light that guided mariners sailing up the
coast burned out, the Coast Guard did not replace it, and a
tug hauling a cargo of fertilizer crashed into an island and
lost the cargo. Indian Towing, 350 U.S. at 62–63. The
plaintiff filed an FTCA claim against the Coast Guard. In
finding against the government, the court explained that
once it undertook the duty to operate the lighthouse, it had
to exercise due care to keep it working. Id. at 126–27.

The problem with using Indian Towing to set up this
exception to the DFE is that the government did not raise
that defense in this case. Because, as the Supreme Court
noted in Varig Airlines, “[s]ignificantly, the Government
conceded that the discretionary function exception was not
implicated in Indian Towing . . . .” Id. at 812. But although
the undertaking-a-duty theory may offer a tort theory for an
FTCA claim, Indian Towing does not say that the DFE does
not apply in undertaking-a-duty claim. In fact, as this court
stated in Kennewick, Indian Towing “was devoted to
explaining why the government’s argument failed; it did not
explicate the scope of the discretionary function exception.”
880 F.2d 1018, 1023 (9th Cir. 1989). In summary, the
implementation exception, as it has developed in many cases
38 LAM V. UNITED STATES

in this Circuit, conflicts with the Supreme Court rulings,
even though many other cases in this Circuit follow those
rulings.

Finally, on the implementation issue, it is an easy sleight
of hand to say that Berkovitz, Kennewick, ARA Leisure
Services, and other similar cases were all decided on the
design-implementation analysis. For no particular legal
reason, it turned out that in these cases the last step in the
process when the damage or injury occurred was the
implementation stage and that mandatory requirements, like
contract requirements, covered the last stage, but not the
policy/design stage. In other words, it was a coincidence in
most of these cases that spawned and has perpetuated a false
understanding of the law grounded in the blanket
implementation stage denial of the discretionary function
exception.

Courts should not mistake this coincidence as a basis for
sidestepping the required Supreme Court analysis by using
the design-implementation reasoning. Indeed, if anything is
being swallowed in the FTCA cases, the implementation
exception swallows the DFE because, as the cases show,
most claims arise out of the action that follows a plan. In
other words, a jobsite or a national park is where accidents
happen and injuries occur. For the most part, plans do not
injure people or destroy property; workers do. And workers
work as implementors. This is true in every case cited in this
opinion. So the question is not did the injury occur at the
implementation stage. The question is whether policy
discretion applied at the implementation stage, and that is
what we have in Lam’s case. Now back to Whisnant and the
dissent’s contention that cutting down the tree involved no
policy issues, just a technical issue.
 LAM V. UNITED STATES 39

The dissent contends that “we should not ‘conflate policy
considerations with technical considerations.’” This
exception is sometimes called the scientific-professional
exception. But Gaubert’s presumption does conflate policy
considerations with technical considerations when those
considerations involve policy discretion. Cutting down a tree
involves technical questions, but in Lam’s case, the policies
authorize discretion, and therefore, the DFE applies.

Moreover, Whisnant incorrectly states that “matters of
scientific and professional judgment—particularly
judgments concerning safety—are rarely considered to be
susceptible to social, economic, or political policy.”
400 F.3d at 1181. Many of the cases cited in this opinion
involve scientific or professional issues that the DFE
protected. Just to name few: Varig Airlines involved an
engineering question about safety; Delhite involved science
and professional questions about the process of turning
explosive ammonium nitrate into fertilizer; 2 Chadd involved
professional questions about how to deal with a deadly
mountain goat; and Morales involved technical questions
about applying the United States Geological Survey
standards. And as these cases show, just because an act
involves technical or professional questions, does not
automatically cut off the DFE.

Finally, in response to the dissent, we turn to the decision
in Whisnant, which ended with the correct result but for the
wrong reasons. Nothing about the facts of that case required
the court to apply the implementation analysis or the

2
The plaintiffs in Delhite alleged that the government’s multiple
failures caused an explosion that destroyed two cargo ships, killed many
people, and leveled much of the town of Texas City, Texas. 346 U.S.
at 22–23.
40 LAM V. UNITED STATES

technical analysis. The court correctly held that “the
government’s alleged failure to maintain safe and healthy
premises was not a decision susceptible to considerations of
social, economic or political policy.” Id. at 1179. Simply
stated: There was mold in the commissary, and it needed to
come down. There are no policy considerations that justify
leaving mold in a store frequented by customers, suppliers,
and commissary workers. Mold has no aesthetic value,
unlike an interior live oak. There were aesthetic questions
and other policy questions about the tree that fell on Lam’s
tent. The Lake Mendocino policies guided Shull’s work and
gave him discretion.

HURWITZ, Circuit Judge, dissenting:

The Federal Tort Claims Act (“FTCA”) makes the
government liable for the torts of its agents “in the same
manner and to the same extent as a private individual under
like circumstances.” 28 U.S.C. § 2674. But that liability
does not extend to

Any claim based upon an act or omission of
an employee of the Government, exercising
due care, in the execution of a statute or
regulation, whether or not such statute or
regulation be valid, or 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 purpose of this “discretionary
function exception” is to “prevent judicial ‘second-guessing’
 LAM V. UNITED STATES 41

of legislative and administrative decisions grounded in
social, economic, and political policy through the medium of
an action in tort.” United States v. S.A. Empresa de Viaco
Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814
(1984).

It is sometimes difficult to determine whether a
particular claim falls within the discretionary function
exception, and as the majority correctly notes, our case law
limning the exception spins something of a tangled web. But
this case does not require us to untangle that web. This is a
straightforward personal injury case, involving a plaintiff
injured by a falling tree while camping on federal property.
That tree was inspected, pursuant to agency policy, by a
government employee to see whether it posed a danger to
campers; he concluded it did not, and the plaintiff alleges
that the inspection was negligently performed. This case
does not call on us 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.

We have already held that governmental immunity does
not apply to precisely such a decision. Kim v. United States,
940 F.3d 484, 487–90 (9th Cir. 2019). That is because
although the “design of a course of governmental action is
shielded by the discretionary function exception . . . the
implementation of that course of action is not.” Whisnant v.
United States, 400 F.3d 1177, 1181 (9th Cir. 2005). Today’s
decision not only conflicts with our precedent, but also
illustrates what Judge Silverman once aptly called the
“danger that the discretionary function exception will
swallow the FTCA.” O’Toole v. United States, 295 F.3d
1029, 1037 (9th Cir. 2002). Because we should not allow
the government to “shortchange” liability for a negligent
42 LAM V. UNITED STATES

undertaking “in the name of policy,” Marlys Bear Med. v.
United States ex rel. Sec’y of Dep’t of Interior, 241 F.3d
1208, 1216–17 (9th Cir. 2001) (cleaned up), I respectfully
dissent.

I

I do not dispute that the relevant Army Corps of
Engineers policies allow government workers to exercise
professional judgment in deciding which trees to remove at
Lake Mendocino. But I depart from the majority’s
conclusion that this is a “policy judgment” covered by the
discretionary function exception.

In arriving at a contrary conclusion, the majority gives
short shrift to Kim, which involved a virtually identical
claim. In Kim, we held that a government worker’s decision
not to remove a tree from Yosemite National Park, pursuant
to an agency policy about removal of hazards, did not trigger
the discretionary function exception. 940 F.3d at 489–90.
We acknowledged that determining whether a tree meets
standards for removal surely requires the “careful—perhaps
even difficult—application of specialized knowledge.” Id.
at 489. We also recognized that in applying that specialized
knowledge technicians could exercise some discretion and
well hold opposing views, for “technicians, like anyone else,
can disagree about their craft.” Id.

But, we nonetheless stressed in Kim that park workers
inspecting trees under the agency’s instructions were not
making “policy choices.” Id. Recognizing the central
purpose of the discretionary function exception, we observed
that immunity was not necessary to “prevent judicial second-
guessing” of a policy scheme. Id. at 487 (quoting Berkovitz
v. United States, 486 U.S. 531, 536–37 (1988)). Kim should
control our analysis today. Even assuming the decision not
 LAM V. UNITED STATES 43

to remove the tree was based on the considered technical
judgment of the inspector, we should not “conflate policy
considerations with technical considerations.” Id. at 489.
Deciding whether a tree is diseased and poses a danger to
campers, like deciding when mold should be removed,
“involves professional and scientific judgment, not decisions
of social, economic, or political policy.” Whisnant, 400 F.3d
at 1183; see Oberson v. United States Dep’t of Agric., Forest
Serv., 514 F.3d 989, 997 (9th Cir. 2008) (finding exception
inapplicable where park rangers failed to place a warning
sign along a hazardous snowmobile trail).

II

The majority distinguishes Kim because the tree
maintenance policies in that case were more specific than the
Corps’ policy here. But this is a distinction without a
difference. While designing Lake Mendocino’s tree safety
scheme, the Corps might well have balanced the sort of
competing objectives—limited budgets, aesthetics, and the
busy camping season among them—that concern the
majority. Indeed, for present purposes, we can assume that
the Corps was not required to have any policy about tree
maintenance, leaving campers entirely at the risk of natural
hazards. See Kim, 940 F.3d at 488 (declining to answer this
“hypothetical” question). But, once the government
undertook the inspection of trees near the campground, we
focus on implementation, “the nature of the actions in
conducting” the project. Myers v. United States, 652 F.3d
1021, 1031–32 (9th Cir. 2011); see also O’Toole, 295 F.3d
at 1036–37 (“[T]he BIA was under no obligation to acquire
Bowler Ranch, but once it did, it also acquired the obligation
to keep its irrigation from causing harm to others to the same
extent that a private landowner must.”).
44 LAM V. UNITED STATES

Having voluntarily undertaken the task of inspecting
trees on its property to keep campers on its property safe, the
government should not today escape liability for its alleged
negligence by casting a camper’s injury as the result of a
policy decision. The injury was “not the result of a policy
choice,” but “simply a failure to effectuate policy choices
already made.” Nanouk v. United States, 974 F.3d 941, 950
(9th Cir. 2020) (rejecting application of the discretionary
function exception when the government undertook to clean
up hazardous chemicals, then failed to discover a “hot spot”)
(quoting Camozzi v. Roland/Miller & Hope Consulting Grp.,
866 F.2d 287, 290 (9th Cir. 1989)); see also Marlys Bear
Med., 241 F.3d at 1216–17 (holding that “safety measures,
once undertaken, cannot be shortchanged in the name of
policy”); see also Restatement (Third) of Torts § 42 (Am.
Law Inst. 2013) (“An actor who undertakes to render
services to another and who knows or should know that the
services will reduce the risk of physical harm to the other has
a duty of reasonable care to the other in conducting the
undertaking . . . .”); Restatement (Second) of Torts § 324A
(Am. Law Inst. 1965) (same).

The majority’s invocation of Chadd v. United States,
794 F.3d 1104 (9th Cir. 2015), also fails. In Chadd, National
Park Service officials knew that wild goats were dangerous
and decided to post signs and deter the goats with paintballs,
rather than remove or kill them. Id. at 1107, 1113–14. We
termed that choice of options a policy decision. Id. But, we
did not thereby suggest that the discretionary function
exception would apply if government agents had carelessly
placed the signs where no one could see them. That is the
kind of alleged negligence the majority immunizes from suit
today.
 LAM V. UNITED STATES 45

III

With its narrow focus on whether the policy at issue was
sufficiently prescriptive, the majority today incorrectly
broadens the government’s immunity from tort suit. I
respectfully dissent.