[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 27, 2009
No. 07-11827
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-20861 CV-PCH
DWIGHT JOHANNES DOWNS,
Plaintiff-Appellant,
versus
UNITED STATES ARMY CORPS OF ENGINEERS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
(May 27, 2009)
ON PETITION FOR REHEARING
Before DUBINA, BLACK and FAY, Circuit Judges.
PER CURIAM:
We grant the government’s petition for rehearing, withdraw our previous
opinion dated March 4, 2009, and substitute the following opinion in its place:
Plaintiff-Appellant, Dwight Johannes Downs (“Downs”), seeks review of
the district court’s grant of summary judgment to Defendant-Appellee, the United
States, and dismissal of Downs’s claim for negligence under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346, 2671–80 (2006). See Downs v. United States, No.
06-20861, 2007 U.S. Dist. LEXIS 19023, 2007 WL 842136 (S.D. Fla. Mar. 20,
2007). Downs asserts that the United States Army Corps of Engineers (“Corps”)
negligently undertook its duty to ensure the quality of fill material used in the
Miami Beach re-nourishment project in the 1970s and 1980s and negligently
failed to warn about known potential dangers that resulted from its actions,
thereby proximately causing Downs’s injuries when he dove into the Miami Beach
surf and struck his head on a “basketball-sized” rock, rendering him a
quadriplegic. Downs sued under the Federal Tort Claims Act (“FTCA”). The
district court dismissed the case as, inter alia, falling under the discretionary
function exception to the FTCA. The issue before us is whether the Local
Cooperation Agreement with Dade County (“LCA”) under which the Corps acted
established a mandatory duty that precludes application of the discretionary
function exception, thus subjecting the United States to suit under the FTCA for
2
the alleged negligence. Because we conclude from the record that the district
court improperly construed the Corps’ contractual duties, we reverse and remand
for reconsideration in light of this opinion.
I. BACKGROUND
On a motion for summary judgment, all facts are read in the light most
favorable to the non-moving party. Fed. R. Civ. P. 56; see also Powers v. United
States, 996 F.2d 1121, 1125 (11th Cir. 1993) (“Because we review here the district
court’s dismissal of the plaintiffs’ complaints for lack of subject matter
jurisdiction, we accept the plaintiffs’ factual allegations as true.”). The facts here
are therefore presented in that light.
On April 8, 2003, Downs dove headfirst into the ocean in the area of Miami
Beach, Miami-Dade County, Florida, between 70th and 73rd Streets. He struck
his head on a rock in the water, which he approximates to be the size of a
basketball. Downs broke his neck and was rendered a quadriplegic.
The area of the beach where the incident occurred was part of a large re-
nourishment project in the 1970s and 1980s that was designed to curb erosion of
the beach, The Dade County Beach Nourishment and Hurricane Surge Protection
Project (“Dade Project”). The Dade Project was authorized by Congress and
3
executed by the Corps through an agreement with the county. The LCA between
Dade County and the Corps set forth the respective responsibilities of each party.
The district court opinion outlines details of the project. See Downs, 2007
U.S. Dist. LEXIS 19023, at *4–7, 2007 WL 842136, at *2–3. We describe the
project in brief, here. The Dade Project involved dredging fill material from other
areas and filling the beach area, including the surf zone, with approximately nine
vertical feet of material. The LCA contained the following clause regarding the
fill material to be used: “The parties mutually agree that only suitable material
will be used for project beach fill, such suitable material being defined as non-
rocky, sandy material similar to that of the existing beach.” (R. 1 at 8.)
The Corps contracted with private companies to complete the work. For the
section of beach at issue in this case, the Corps contracted with Construction
Aggregates Corporation (“CAC”). Under the terms of the contract, including
modifications made during the project, approximately five percent of rock by
volume, ranging in size from two to ten inches in diameter, would be interspersed
in the material deposited on the beach. The contract required CAC to remove all
such rock to a depth of twelve inches. CAC was to design the method of removal.
After further negotiation, the Corps allowed CAC to bury the rock instead of
removing it.
4
Downs brought suit against the United States for negligence pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671–80, alleging that the Corps
violated the LCA when it negligently filled the beach area with rocks and that the
agreement with CAC was insufficient because it did not require removal of all of
the potential rocks, including those under two inches in diameter and those below
the top twelve inches of the fill.1 In addition, Downs alleged that despite the
Corps’ knowledge of the danger of the rocks, it failed to take action to correct the
known danger and failed to warn the public of the dangers presented by the rocks.
He also alleged that the Corps violated the Clean Water Act, 33 U.S.C. § 1251, et
seq. (2006), because rocks are considered pollutants within the meaning of the
Act.
In its motion for summary judgment, the government asserted that it was
entitled to summary judgment because (1) it is immune from suit under the Flood
Control Act of 1968; (2) it is immune from suit under the independent contractor
exception to the FTCA; and (3) it is immune from suit under the discretionary
function exception to the FTCA.
1
Downs originally filed this action against the Corps. The parties later stipulated that the
United States should be substituted as the properly named party. (R. 17 at 1.)
5
The district court first found that the Flood Control Act does not apply to
the waters where Downs was injured and also concluded that the Clean Water Act
does not prevent the government from availing itself of the discretionary function
exception in this case. The district court then concluded that the independent
contractor exception and the discretionary function exception to the FTCA
preclude Downs’s claims. In doing so, the district court concluded that the LCA is
a contract and that, as such, duties enumerated in it can establish mandatory duties
the negligent performance of which subject the United States to suit under the
FTCA. The district court found, however, that the duty at issue in this case—to
ensure that the fill material used was made of “suitable material being defined as
non-rocky, sandy material similar to that of the existing beach”—was “an
impossible goal” that made an interpretation of the agreement to mean the Corps
was required “to ensure the absence of all rocks” “absurd” and that, as a “one-line
prohibition . . . contradicted by numerous other documents in a complex
governmental project,” it “[did] not prescribe a fixed and ascertainable standard”
sufficient to “deprive the government of discretion in dealing with the rock
problem.” Downs, 2007 U.S. Dist. LEXIS 19023, at *28, 2007 WL 842136, at
*9–10. Having found that the LCA left decisions about what rock could remain in
6
the fill material to the discretion of Corps employees,2 the district court went on to
conclude that this discretion was of the type that the discretionary function
exception is designed to protect. The district court granted the government’s
motion for summary judgment based on sovereign immunity and entered final
judgment for the government.
Downs only appeals the district court’s decision regarding the discretionary
function exception of the FTCA. To the extent Downs attempted to sue the Corps
on the ground that it negligently contracted for services or negligently supervised
the work of CAC, the district court’s dismissal stands. Downs claims that the suit
arises under the duties created by the terms of the LCA and retained by the Corps.
The district court found that these duties met the discretionary function exception.
In this appeal, the government challenges the district court’s conclusion that
the LCA is a contract that establishes duties of the type implicated by the FTCA.
Downs argues that the contract establishes such duties and that the contract term in
question is sufficiently clear to create a mandatory duty.
2
The district court also concluded that the Corps’ General Design Memorandum for the
Miami Beach re-nourishment projects and its addenda and the State of Florida’s permit for the Dade
Project did not mandate the absence of rocks in the fill material. These conclusions were not
appealed.
7
The ultimate question on appeal is whether the discretionary function
exception to the FTCA bars Downs’s suit against the United States for the alleged
failure of the Corps to ensure that a basketball-sized rock was removed from beach
fill material used in the Dade Project. We conclude that voluntarily-entered
contracts can establish binding duties that subject the government to suit under the
FTCA, and that the LCA is the type of contract that can create a mandatory duty
under the FTCA. However, because we also conclude that the district court erred
in its construction of the contract, we reverse the grant of summary judgment and
remand this case for the district court to appropriately apply these principles,
construe the contract term in question, and determine if the Corps retained any
discretionary duty the exercise of which the government would have expected to
include policy considerations within the meaning of the discretionary function
exception. We do not consider the merits of Downs’s underlying tort claim
because that issue is not before us on appeal. The only issue properly before us is
the district court’s jurisdictional analysis regarding the discretionary function
exception.
II. STANDARDS OF REVIEW
This court reviews a district court’s interpretation and application of the
discretionary function exception to the Federal Tort Claims Act de novo. Ochran
8
v. United States, 117 F.3d 495, 499–500 (11th Cir. 1997); Powers, 996 F.2d at
1123; see also Burlison v. McDonald’s Corp., 455 F.3d 1242, 1245 (11th Cir.
2006) (district court’s interpretation of a federal statute is reviewed de novo);
Wexler v. Anderson, 452 F.3d 1226, 1230 (11th Cir. 2006) (district court
conclusions of law are reviewed de novo). Interpretation of contract language is a
question of law that we review de novo. Bragg v. Bill Heard Chevrolet, Inc., 374
F.3d 1060, 1065 (11th Cir. 2004). A district court’s interpretation of a state statute
also is reviewed de novo. Blasland, Bouck & Lee, Inc. v. City of N. Miami, 283
F.3d 1286, 1294 (11th Cir. 2002).
III. ANALYSIS
A. The Discretionary Function Exception, 28 U.S.C. § 2680(a)
The FTCA waives the U.S. government’s sovereign immunity from suit in
federal courts for the negligent actions of its employees. See 28 U.S.C. §1346(b)
(2006). It subjects the United States to liability for torts in generally the same
manner and to the same extent as private individuals under like circumstances. 28
U.S.C. § 2674. The waiver is limited by several explicit exceptions, including the
discretionary function exception at issue in this case. The discretionary function
exception precludes government liability for “[a]ny claim based upon . . . the
exercise or performance or the failure to exercise or perform a discretionary
9
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 Supreme Court has enunciated a two-part test for determining whether a
government employee’s action or omission falls within the discretionary function
exception. United States v. Gaubert, 499 U.S. 315, 322–23, 111 S. Ct. 1267,
1273–74, 113 L. Ed. 2d 335 (1991); Autery v. United States, 992 F.2d 1523, 1526
(11th Cir. 1993). First, the court is to consider the nature of the conduct and
determine whether it involves “an element of judgment or choice.” Gaubert, 499
U.S. at 322, 111 S. Ct. at 1273 (quoting Berkovitz v. United States, 486 U.S. 531,
536, 108 S. Ct. 1954, 1958, 100 L. Ed. 2d 531 (1988)); Powers, 996 F.2d at 1124.
Second, if the conduct at issue involves the exercise of judgment, the court must
determine whether that judgment is grounded in considerations of public policy.
Gaubert, 499 U.S. at 322–23, 111 S. Ct. at 1273–74. Only then does the
discretionary function exception apply. Id.
Government conduct does not involve an element of judgment or choice,
and thus is not discretionary, if “a ‘federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow,’ because ‘the
employee has no rightful option but to adhere to the directive.’” Id. at 322, 111 S.
10
Ct. at 1273 (quoting Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958–59); see also
Powers, 996 F.2d at 1124 (providing examples of cases in which the relevant
statute or policy was found to prescribe a specific course of action).
Contracts voluntarily entered into by the federal government can establish
duties the breach of which are actionable under the FTCA. The district court
outlined cases from numerous circuits where courts “have recognized that the
government’s voluntarily assumed contractual obligations can impose
nondiscretionary duties on government employees.” Downs, 2007 U.S. Dist.
LEXIS 19023, at *17, 2007 WL 842136, at *6. We agree with these courts and
find that this conclusion comports with our precedent.
In Andrews v. United States, 121 F.3d 1430 (11th Cir. 1997), we suggested
that contractual obligations may impose mandatory duties upon an agency or its
employees. See Andrews, 121 F.3d at 1439–41. There, we approved of the district
court’s finding that pursuant to waste management contracts, the Navy had
mandatory duties that rendered the discretionary function exception inapplicable.
Id. at 1440–41. Similarly, in Ochran v. United States, 117 F.3d 495 (11th Cir.
1997), we agreed that where the government enters into a special relationship by
voluntarily undertaking a state-law duty, a claim under the FTCA can be pursued.
Ochran, 117 F.3d at 505. We went on to say that the discretionary function
11
exception still applies and bars suit against the United States “if the discharge of
this state-law duty involves judgments grounded in considerations of public
policy.” Id.
“‘The purpose of the [discretionary function] exception is 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
499 (internal quotation marks omitted) (quoting Gaubert, 499 U.S. at 323, 111 S.
Ct. at 1273). Decisions that involve these considerations fall within the exception.
Id. The court is not to “focus on the subjective intent of the government employee
or inquire whether the employee actually weighed social, economic, and political
policy considerations before acting. [Instead, the court is to] ‘focus on the nature
of the actions taken and on whether they are susceptible to policy analysis.’” Id. at
500 (quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275). “[I]t is not relevant
whether the government employee in fact made a policy judgment . . . .” Id. at
501. “[T]he burden of production of the policy considerations that might
influence the challenged conduct [is] on the Government.” Id. at 504 n.4.
A policy, statute, regulation, or contract that indicates an employee “shall”
do something may leave room for policy-based judgments that fall within the
discretionary function exception. Id. at 500–01. For example, in Ochran we
12
explained that although an Assistant United States Attorney (“AUSA”) “shall
make the necessary and appropriate arrangements to enable victims and witnesses
to receive reasonable protection against threat, harm and intimidation from a
suspected offender,” the discretionary function exception applies because the
AUSA retains the authority to determine if any action is “necessary and
appropriate,” not only which action is reasonable and when it should take place.
Id. at 500 (quoting AUSA guidelines (emphasis added)). On the other hand, a
provision may leave room for the exercise of “choice or judgment” in the
discharge of duties but not fall within the discretionary function exception. Id. at
501. By example, AUSA guidelines state that “information on the prohibition
against intimidation and harassment and the remedies therefore shall routinely be
made available to victims and witnesses”; the duty to inform a victim or witness is
not protected by the discretionary function exception because the AUSA does not
retain discretion over whether to inform, and there are no policy considerations
that might influence when and how to inform. Id. at 500, 504 (quoting AUSA
guidelines (emphasis added)). Therefore, “if a government official in performing
his . . . duties must act without reliance upon a fixed or readily ascertainable
standard, the decision he makes is discretionary and within the discretionary
function exception.” Powers, 996 F.2d at 1124 (citations and internal quotation
13
marks omitted). If the standard, however, is clear, the government official may
maintain discretion over how to meet that standard, without retaining discretion
over whether or not to do so.
“[W]hether decisions . . . fall within the discretionary function exception
turns . . . on whether the judgments involved are grounded in policy
considerations.” Ochran, 117 F.3d at 501. Policy judgments can include, for
example, considering the strength of the federal interest in undertaking the action
and budgetary considerations. Id. at 501–02. “[B]ecause budgetary constraints
are almost always important to government decisions, [however, ]not ‘every
choice [that implicates such constraints] is a policy judgment shielded from
liability through the operation of the discretionary function exception.’” Id. at
502. Thus, “[t]he relevant inquiry in these cases is whether the government
expects the employee who is making the choice in question to consider the policy
implications of that choice.” Id.
B. The LCA
The government asserts that the LCA is not the type of contract that can
establish mandatory duties actionable under the FTCA. The government argues
that local entities may be required to give assurances to the federal government
before certain projects are undertaken, that cooperative agreements such as the
14
LCA are not “typical government contract[s],” and that the Contracts Dispute Act
does not govern cooperative agreements, so “this Court would be hard-pressed to
hold that the Corps ‘has no rightful option but to adhere to the [LCA].’” (Br. of
Appellee 31.)
The district court found:
Both the Corps and Dade County voluntarily, and in consideration for the
other’s actions, entered into the local cooperation agreement. Indeed, the
government even acknowledges that, while local cooperation agreements
are not governed by federal acquisition regulations, their enforceability has
been recognized by Congress. . . . As an enforceable agreement . . . the
[LCA] was therefore a contract capable of mandating specific action, as
contemplated in the discretionary function exception.
See Downs, 2007 U.S. Dist. LEXIS 19023, at *21–22, 2007 WL 842136, at *7.
We find the district court’s analysis that the LCA created a binding contract
implicated by the FTCA persuasive and on that basis need not further consider the
government’s argument that there are different types of contracts or agreements
that, by definition, have varying weight under the FTCA.
C. The Corps’ Duties Under the LCA
15
The district court concluded that the duty at issue—to ensure that the fill
material used was made of “suitable material being defined as non-rocky, sandy
material similar to that of the existing beach”—“[did] not prescribe a fixed and
ascertainable standard” that “deprive[d] the government of discretion in dealing
with the rock problem.” Id., 2007 U.S. Dist. LEXIS 19023, at *29, 2007 WL
842136, at *10. The court determined that the Corps retained full discretion about
what type of rocks and how many could remain in the fill material. The district
court reached this conclusion by first looking at the plain language of the contract
and stating: “On the one hand, this appears to be straightforward language
requiring that the government only use non-rocky materials. To the extent the
government did in fact permit the inclusion of rocks within the fill, it ran afoul of
this mandatory language. On the other hand, the contract does not specifically
prescribe a method for ensuring the absence of rocks in the fill.” See id., 2007
U.S. Dist. LEXIS 19023, at *23, 2007 WL 842136, at *7. The district court then
analyzed parol evidence to conclude that the terms of the LCA could not mean that
all rocks had to be removed from the fill.
Instead of strictly interpreting the meaning of “non-rocky, sandy material,”
the district court analyzed the contract term only to determine if it required the
removal of all rocks, the interpretation suggested by Downs. At the government’s
16
urging, the district court “read [the LCA] in the context of the entire Dade
Project,” id., 2007 U.S. Dist. LEXIS 19023, at *26, 2007 WL 842136, at *9, and
concluded that “[w]ith these facts in mind, the local cooperation agreement cannot
be read in a way that would require the Corps to eliminate any and all rocks,” id.,
2007 U.S. Dist. LEXIS 19023, at *29, 2007 WL 842136, at *10. The court
considered the following evidence relevant to its decision:
• The Corps told Congress when initially requesting funds for the re-
nourishment project that it would use all the material dredged, including
rocks.
• The volume of fill material required makes it unreasonable or hard to
imagine that all rocks were to be removed.
• Dade County worked with the Corps to remove rocks and “did not allege
any failure on the part of the Corps to observe the terms” of the agreement.
• According to Downs’s expert, it was not possible to remove all rocks four
inches or smaller.
Id., 2007 U.S. Dist. LEXIS 19023, at *26–29, 2007 WL 842136, at *9–10.
Ultimately, the district court concluded that
17
the one-line prohibition of rocky materials included in the local cooperation
agreement cannot alone serve to mandate action when it is contradicted by
numerous other documents in a complex governmental project. Viewing the
language of the [LCA] in that context, it does not prescribe a fixed and
ascertainable standard by stating that the beach fill would contain only non-
rocky material. Thus, the [LCA] did not deprive the government of
discretion in dealing with the rock problem.
Id., 2007 U.S. Dist. LEXIS 19023, at *29, 2007 WL 842136, at *10.
The government correctly asserts that the United States’ interest in this case
is such that federal common law applies to determine the government’s duties
relevant to the FTCA. See United States v. Seckinger, 397 U.S. 203, 209–10
(1970); Begner v. United States, 428 F.3d 998, 1004 (11th Cir. 2005). Under
federal common law, however, we “look to general common law on contracts,”
Belize Telecom, Ltd. v. Gov’t of Belize, 528 F.3d 1298, 1307 (11th Cir. 2008), and
may use principles of state common law to guide our analysis, see, e.g., Wheeler
v. Dynamic Eng’g, Inc., 62 F.3d 634, 638 (4th Cir. 1995) (stating that when
interpreting an ERISA plan under federal common law, the court “may use
principles of state common law to guide [the court’s] analysis”). We previously
have stated that in such circumstances, “when determining what particular
18
doctrine to apply in a particular suit, the court will often select a rule of state law.”
Begner, 428 F.3d at 1004–05 (internal quotation marks omitted) (relying in part on
Georgia contract law where federal common law governed interpretation); see also
United States ex rel. Garrett v. Midwest Constr. Co., 619 F.2d 349, 352 (5th Cir.
1980)3 (asserting that federal common law applies, but borrowing principles from
Texas law). Accordingly, we look primarily to the law of Florida, where most of
the events took place. Cf. Begner, 428 F.3d at 1004–05 (relying in part on
Georgia contract law to interpret a contract between private citizens and the
Internal Revenue Service to which federal common law applied “because most of
the events occurred in Georgia”).
We conclude from the record that the district court’s analysis does not
comport with general principles of contract law; the court should not have turned
to parol evidence before finding the contract term ambiguous, and had the court
found the term ambiguous, it should have limited itself to defining the term instead
of effectively removing it. Additionally, the court erred when it found that a
contractually defined duty that must be elucidated with parol evidence equates to
the absence of any mandatory duty at all.
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), this court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
19
1. Misuse of parol evidence
The district court first erred by using parol evidence to determine that the
term “non-rocky, sandy material similar to that of the existing beach” is
ambiguous (or, as the court indicated, an impossible goal and therefore not a duty
at all). A contract term must be ambiguous on its face before a court can resort to
parol evidence to define that term. J.M. Montgomery Roofing Co. v. Fred
Howland, Inc., 98 So. 2d 484, 485–86 (Fla. 1957) (“The rule inhibits the use of
parol evidence to contradict, vary, defeat, or modify a complete and unambiguous
written instrument, or to change, add to, or subtract from it, or affect its
construction.” (internal quotation marks omitted)); accord Begner, 428 F.3d at
1004–05 (using Georgia contract law to guide federal common law analysis and
stating that parol evidence is admissible only to prove the meaning of ambiguities
in the contract); Midwest Constr. Co., 619 F.2d at 352 (“Under federal common
law, as under the law of most states, . . . parol evidence is admissible to prove the
meaning of ambiguities in contract language.”); Funeral Fin. Sys. v. United States,
234 F.3d 1015, 1018 (7th Cir. 2000) (stating that under federal common law
extrinsic evidence is only considered where the language of the contract is
ambiguous, otherwise “the written words of the contract . . . dictate the
disposition”). The district court never made this facial determination.
20
Nevertheless, we conclude that the term is facially ambiguous because it is
subject to varying interpretations.4 See Friedman v. Va. Metal Prods. Corp., 56
So. 2d 515, 517 (Fla. 1952) (“The term ‘ambiguous’ means susceptible of more
than one meaning.”); accord Tanadgusix Corp. v. Huber, 404 F.3d 1201, 1205
(9th Cir. 2005) (“A contract is ambiguous if reasonable people could find its terms
susceptible to more than one interpretation.” (internal quotation marks omitted)).
Parol evidence thus was needed to elucidate the term.
Once the district court undertook to define the term using extrinsic
evidence, it erred when it started with the presumption that the term was to mean
that there were no rocks at all in the fill material. The court essentially defined the
term and then used parol evidence to find that the definition was unreasonable and
therefore created no duty at all. Instead, the court should have analyzed only what
the term meant.
4
Downs asserts that the phrase “non-rocky, sandy material similar to that of the existing
beach” unambiguously means the elimination of all rocks from the fill material. Neither this entire
phrase nor terms within it are defined further in the LCA and the words used are not subject to clear
and plain meaning. For example, turning to but one source for the common meaning of “rocky,” we
note The American Heritage Dictionary definition of the word: “Consisting of, containing, or
abounding in rock or rocks.” The American Heritage Dictionary of the English Language 1124
(New College ed. 1976). Even this definition contains terms that are not clearly defined, including
“containing,” “consisting of,” and “abounding.” We find that all such terms are insufficiently
concrete to clearly define a quantity, particularly “zero.” Furthermore, the record itself demonstrates
the ambiguity of “non-rocky”; it is rife with references to different sized rocks, from those smaller
than one inch in diameter to those “basketball sized” or larger.
21
Ultimately, the district court said that there was no “non-rocky, sandy
material” requirement at all because, among other things, the dredging equipment
used at the time made removal of all rocks equal to or smaller than four inches in
diameter impossible. Downs, 2007 U.S. Dist. LEXIS 19023, at *27, 2007 WL
842136, at *9. We think it appropriate for the district court to have considered
professional standards of the time when construing the contract term, see
Underwood v. Underwood, 64 So. 2d 281, 288 (Fla. 1953) (“In the construction of
written contracts it is the duty of the court, as near as may be, to place itself in the
situation of the parties, and from a consideration of the surrounding circumstances,
the occasion, and apparent object of the parties, to determine the meaning and
intent of the language employed.” (emphasis and internal quotation marks
omitted)), but such evidence should not have been used to read out the term
altogether. Without weighing the evidence, we also note that the record reflects
that rocks could have been removed from the fill material by means other than
through the dredging process, such as by passing the material through screens,
grating the sand, or crushing the rock, and that on summary judgment the district
court must view all permissible evidence in the light most favorable to the non-
moving party. Finally, upon remand, the district court should consider all words
in the disputed contract term, including “similar to that of the existing beach,”
22
which, subject to examination of parol evidence, may provide a measurable
standard for the Corps’ duty. See Excelsior Ins. Co. v. Pomona Park Bar &
Package Store, 369 So. 2d 938, 941 (Fla. 1979) (“Every provision in [the] contract
should be given meaning and effect . . . .” (internal quotation marks omitted)); see
also Tanadgusix, 404 F.3d at 1205 (indicating that when interpreting a contract
under federal common law, the court should “construe the contract by reading it as
a whole and interpreting each part with reference to the entire contract. The terms
of the contract control, regardless of the parties’ subjective intentions shown by
extrinsic evidence.” (citation omitted)).5
2. Contract ambiguity does not mean the absence of a duty
Second, the district court erred by conflating ambiguity of the terms creating
the Corps’ duty with whether or not the Corps had a duty at all. Ambiguous
5
The district court also concluded that because “the contract does not specifically prescribe
a method for ensuring the absence of rocks in the fill,” it fails to meet the specificity requirement for
liability under the FTCA. Downs, 2007 U.S. Dist. LEXIS 19023, at *23, 2007 WL 842136, at *7.
We disagree. A defined safety or other construction standard can create a mandatory duty to meet
that standard, by whatever means. This reasoning is consistent with our decision in Ochran, cited
above, wherein we said that a government policy to provide information to witnesses and victims
created a sufficiently mandatory duty to establish liability under the FTCA even though when and
how to provide that information was left to government employee discretion. Ochran, 117 F.3d at
500, 504. Similarly, in ARA Leisure Services v. United States, 831 F.2d 193 (9th Cir. 1987), the
Ninth Circuit held that a National Park Service standard that required that park roads “conform to
the original grades and alignments” and be “firm, [and] of uniform cross section” was sufficiently
specific to create a mandatory duty, even without delineating the means by which the roads were to
be maintained. ARA Leisure Servs., 831 F.2d at 195.
23
contract terms do not obviate contract duties. By the terms of the contract, the
Corps had a duty to ensure that all fill used for the project was “non-rocky, sandy
material similar to that of the existing beach.” The definition of “non-rocky, sandy
material similar to that of the existing beach,” as an ambiguous term, is subject to
the court’s review of parol evidence. The duty to ensure that the beach fill was of
this sort, however, is clear. A contractual duty does not cease to exist because the
terms of that duty are ambiguous and require elucidation by parol evidence. See
Excelsior Ins. Co., 369 So. 2d at 941 (“Every provision in [the] contract should be
given meaning and effect . . . .” (internal quotation marks omitted)). Nor is an
ambiguous term by definition insufficiently specific to establish a mandatory duty
that subjects the government to suit under the FTCA.6 Rather than reading-out the
Corps’ contractual duty, the district court should have determined the exact
parameters of the duty; if the duty was sufficiently specific, “embodying a fixed or
readily ascertainable standard,” see Autery v. United States, 992 F. 2d 1523, 1529
(11th Cir. 1993) (emphasis and internal quotation marks omitted), to subject the
6
To the extent parol evidence evidences a clear, quantifiable standard for the fill material,
the contract establishes a mandatory duty. Hypothetically, for example, if on remand parol evidence
shows that the parties agreed that the term “non-rocky, sandy material, similar to that of the existing
beach” means that the fill material was to be no more than 5% rock by volume with no individual
rocks larger than 4 inches in diameter, then the standard is sufficiently specific to establish a
mandatory duty.
24
government to suit; and whether exercise of the contractual duty involved policy-
based discretion of the type implicated by the discretionary function exception.7
IV. CONCLUSION
For the reasons set forth above, we conclude that the district court’s grant of
summary judgment and dismissal of the plaintiff’s case for lack of subject matter
jurisdiction merits reversal. The district court correctly determined that the LCA
is a contract between the Corps and Dade County and that such contracts can
establish mandatory duties that implicate liability under the FTCA. The district
court erred, however, when it concluded that ambiguity in a contract term equates
to government discretion to decide whether or not to adhere to that term. The
district court also erred when it construed the contract term in question using parol
evidence without first determining the term was ambiguous, and further erred
when it failed to follow general contract law principles in applying parol evidence
7
We note that the policy analysis previously conducted by the district court is not applicable
to this particular inquiry because it is based on the district court’s determination that the Corps
retained discretion to determine what type of fill material could be used. In addition, the district
court’s policy conclusions relevant to the independent contractor exception to the FTCA do not
implicate the matters appealed. Finally, the district court’s analysis does not indicate what specific
policies may have been implicated in the Corps’ decisionmaking, which limits this court’s ability
to review its conclusions. Although the district court noted that “[c]ourts have consistently
recognized that the policy decisions in beach erosion projects warranted protection under the
discretionary function exception,” the cases cited are limited to those where the design plans were
left entirely in the hands of the Corps, not in situations like this one where relevant elements of the
design were described by statute, regulation, policy, or contract. See Nat’l Union Fire Ins. v. United
States, 115 F.3d 1415, 1422 (9th Cir. 1997).
25
to its analysis. Accordingly, we reverse the grant of summary judgment and
remand this case to the district court. On remand, after appropriately using parol
evidence to construe the contract term, the district court should determine if the
Corps’ duty, so defined, was sufficiently specific to subject the government to suit.
If so, the district court then should determine whether exercise of the contractual
duty involved policy-based discretion of the type implicated by the discretionary
function exception.
REVERSED AND REMANDED.
26