Rosebush v. United States

HILL J., delivered the opinion of the court, in which RYAN, J., joined.

MERRITT, J. (pp. 44A447), delivered a separate dissenting opinion.

*440OPINION

HILL, Circuit Judge.

Plaintiffs David and Valerie Rosebush brought this action against the United States and the United States Forest Service under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), claiming damages for injuries suffered by their sixteen-month old daughter when she fell into a fire pit at a government campground. The district court dismissed plaintiffs’ complaint, holding that the federal government’s operation and maintenance of the campground is a “discretionary function,” for which it has not waived immunity under the Federal Tort Claims Act. This appeal followed.

I.

According to the complaint,1 David and Valerie Rosebush went camping with their sixteen-month old daughter Natasha at the Camp 7 Lake Recreation Campground in the Hiawatha National Forest in the Upper Peninsula of Michigan. Each campsite is provided with a fire ring and pit, consisting of a large steel ring in the ground surrounded by a ring of concrete.

On the morning of June 26, 1994, Mr. Rosebush was at the campsite to get his fishing poles when Natasha wandered to the pit and fell in. She was badly burned by the hot coals smoldering in the pit.

Plaintiffs brought this action against the United States and the United States Forest Service under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) alleging that the fire pit was an unreasonable hazard and that defendants were negligent in failing to place a grating over the fire pit and/or failing to place protective railings around the pit. Plaintiffs further claim that the Forest Service was negligent in assigning a campsite known to be unfit for occupancy because of the fire pit’s dangerous condition. Finally, plaintiffs claim that the failure to warn of the dangers associated with the fire pit was a proximate cause of the third degree burns suffered by Natasha Rosebush.

The United States filed a motion to dismiss on two grounds: first, the action is barred because the management and maintenance of the campsite is a discretionary function, and discretionary functions are not actionable under the FTCA; and second, plaintiffs fail to state a claim upon which relief can be granted because the United States did not breach an actionable duty under Michigan law.

The district court dismissed plaintiffs’ claims, holding that the action was barred by the discretionary function exception to the FTCA. We review the district court’s application of the discretionary function exception and dismissal of this action de novo.2 United States v. Yannott, 42 F.3d 999, 1003 (6th Cir.1994) (citations omitted), cert. denied, 513 U.S. 1182, 115 S.Ct. 1172, 130 L.Ed.2d 1125 (1995).

II.

Congress has waived the sovereign immunity of the United States by giving district courts jurisdiction over certain tort actions against the United States. FTCA § 1346(b). Congress, however, excepted from this limited waiver “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” FTCA § 2680(a). If a case falls within this statutory exception to FTCA § 1346(b), the court lacks subject matter jurisdiction. Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

*441In a series of cases, the Supreme Court has articulated and refined a two-part test to be applied in determining whether a particular claim falls under this discretionary function exception to the waiver of sovereign immunity. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The first part of the test requires a determination of whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice. Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273-74; see also Graves v. United States, 872 F.2d 133, 137 (6th Cir.1989). If so, the discretionary function exception does not apply because there was no element of judgment or choice in the complained of conduct. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. “The requirement of judgment or choice is not satisfied if a ‘federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee had no rightful option but to adhere to the directive.’ ” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59).

If the challenged conduct is determined to be discretionary, the second part of the Gaubert test looks to see whether the conduct is “of the kind that the discretionary function exception was designed to shield.” Id. at 322-23, 111 S.Ct. at 1273. In enacting FTCA § 2680(a), “Congress wished to prevent judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.” Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765; Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1958-59. Thus, where there is room for policy judgment and decision, there is discretion of the sort protected by Section 2680(a). Dalehite, 346 U.S. at 36, 73 S.Ct. at 968.

III.

In deciding whether the complained of conduct was grounded in judgment or choice, the crucial first step is to determine exactly what conduct is at issue. Autery v. United States, 992 F.2d 1523, 1527-28 (11th Cir.1993). Plaintiffs sub judice contend that the United States is liable because the Forest Service failed to make the fire pit safe for unsupervised toddlers, and to warn of the dangers of the fire pit. They also argue that the Forest Service failed to “eliminate[ ] safety hazards from recreation sites and immediately correct high priority hazards.” They contend that the Forest Service was required to perform these functions based on the following two sections of the United States Forest Service Manual:

2332 — Operation and Maintenance. Prepare and annually update an operation and maintenance plan for recreation sites. A separate plan may be prepared for a single site or group of sites or the plan may cover an entire range or district.
Give health and safety related items highest priority.
2332.1 — Public Safety. To the extent practicable, eliminate safety hazards from recreation sites. To accomplish this, inspect each public recreation site annually before the beginning of the managed-use season. Maintain a record of the inspections and corrective actions taken with a copy of the operation and maintenance plan.
Immediately correct high-priority hazards that develop or are identified during the season or close the site.

Forest Service Manual, §§ 2332 and 2332.1 (1993) (FSM).3

The government, on the other hand, contends that the relevant conduct of the Forest Service is the management and operation of the Camp 7 Lake Recreation Campground. The fire pit is “but a small part of a campground that was administered pursuant to a comprehensive manual, a safety handbook, and an operations plan.” 4

*442Neither of these formulations is satisfactory. Plaintiffs’ formulation of the issue collapses the discretionary function inquiry into a question of whether the Forest Service was negligent. Cf. Autery, 992 F.2d at 1527-28. Negligence, however, is irrelevant to our inquiry at this point. Id. It is the governing administrative policy, not the Forest Service’s knowledge of danger, that determines whether certain conduct is mandatory for purposes of the discretionary function exception. Id. The FTCA expressly provides that the exception “applies to policy judgments, even to those constituting abuse of discretion.” Dalehite, 346 U.S. at 33, 73 S.Ct. at 967 (“The exercise of discretion could not be abused without negligence or a wrongful act.”). The government, however, has too broad a view of the conduct they describe as discretionary. The decision to have a campground is itself, of course, discretionary.

The relevant inquiry is whether the controlling statutes, regulations and administrative policies mandated that the Forest Service maintain its campsites and fire pits in any specific manner. See Autery, 992 F.2d at 1527. If not, the Forest Service’s decisions as to the precise manner in which to do so would clearly fall within the discretionary function exemption to the government’s tort liability. See Childers v. United States, 40 F.3d 973, 976 (9th Cir.1994), cert. denied, 514 U.S. 1095, 115 S.Ct. 1821, 131 L.Ed.2d 744 (1995)

None of the guidelines plaintiffs cite requires that a fire pit be maintained or designed in any particular way. There are no regulations that specify that families with children should not be assigned to campsites with fire pits. There are no regulations requiring the Forest Service to warn of the dangers of a fire pit, nor that classify the pit as a “high priority hazard” requiring correction.

On the contrary, Section 2332 requires only that the Forest Service prepare and annually update an “operation and maintenance” plan which gives health and safety related items the “highest priority.” Additionally, “[t]he plan shall provide the information needed by District Ranger, recreation assistants, technicians or aides to effectively administer, operate and maintain recreation sites and areas. ” FSM § 2332. Such directives vest complete discretion in the Forest Service as to the development and implementation of operations plans for the management of the Camp 7 Lake Recreation Campground.

Nonetheless, plaintiffs contend that Section 2332.1 mandates a specific course of conduct, i.e., the “immediate correction of high-priority hazards.” The plain language of the section, however, is to the contrary. The Forest Service is instructed to eliminate safety hazards from recreation sites “to the extent practicable”. Decisions concerning what constitutes “practicable” require the exercise of discretion which is protected by FTCA § 2680(a). See Varig Airlines, 467 U.S. at 797, 104 S.Ct. at 2755.

Furthermore, this discretion is not lessened by Forest Service knowledge of earlier accidents involving fire pits. This argument echoes plaintiffs’ negligence theory of what conduct has been de-immunized. “It is the governing administrative policy, not the [Forest Service’s] knowledge of danger, however, that determines whether certain conduct is mandatory for purposes of the discretionary function exception.” Autery, 992 F.2d at 1528 (Park Service knowledge of danger from falling black locust trees and plan for removal of hazardous trees did not mandate that it perform the function of tree removal in any specific way).

The controlling statutes, regulations and administrative policies did not mandate that the Forest Service maintain its campsites and fire pits in any specific manner. Accordingly, the conduct of the Forest Service in making these decisions was within the discretionary function exception to the FTCA’s waiver of immunity.

IV.

The allegedly tortious conduct of the United States in this case involved a disere*443tionary function. Therefore, we turn to the second part of the Gaubert test to determine whether the Forest Service’s conduct — including the decisions to have fire pits and to make them open, without gratings or railings, and not to warn of the dangers of campfires — is the sort of conduct which the discretionary function exception was designed to shield? See Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273-74. We hold that it is.

Decisions concerning the proper response to hazards are protected from tort liability by the discretionary function exception. Lockett v. United States, 938 F.2d 630, 639 (6th Cir.1991) (proper response to the discovery of PCBs in a residential area, including not making any response at all, is within the discretionary function exception to the FTCA); Myslakowski v. United States, 806 F.2d 94, 97 (6th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987) (decision how or whether to warn the public that government jeeps for sale to the public might be susceptible to rollover is a discretionary function); Feyers, 749 F.2d at 1227 (decisions concerning proper manner of conducting railyard safety investigations a discretionary function).

Furthermore, decisions whether and how to make federal lands safe for visitors require making policy judgments protected by the discretionary function exception. Autery, 992 F.2d at 1527 (claims for injuries sustained when a tree fell on car as plaintiffs were driving through Great Smokey Mountain National Park barred by discretionary function exception because Park Service decisions concerning safeguarding visitors constitutes protected discretionary conduct); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987) (design and use of Park Service facilities on the Blue Ridge Parkway a discretionary function because it requires balancing safety, aesthetics, environmental impact, and available financial resources); Wright v. United States, 868 F.Supp. 930 (E.D.Tenn.1994), aff'd, 82 F.3d 419 (6th Cir.1996) (exception protects decisions concerning how and whether to warn the public that trees might fall on a hiking trail).

Finally, the decision whether to warn of potential danger is a protected discretionary function. Graves, 872 F.2d at 137 (failure to warn of danger on dam over which motorboat plunged was within discretionary function exception); Childers, 40 F.3d at 976 (decisions concerning the manner and types of warnings to be placed on hiking trails in Yellowstone National Park were discretionary barring suit by family of eleven-year old boy who slipped on ice and fell to his death in Grand Canyon); Kiehn v. United States, 984 F.2d 1100, 1106 (10th Cir.1993) (decision whether to warn of dangers of rock climbing a discretionary function); Layton v. United States, 984 F.2d 1496, 1502-03 (8th Cir.1993) (Forest Service’s failure to warn tree-cutting contractor regarding hazards in cutting trees protected by discretionary function exception). See also Buffington v. U.S., 820 F.Supp. 333 (W.D.Mich.1992); Fahl v. United States, 792 F.Supp. 80 (D.Ariz.1992).

Plaintiffs’ reliance on Summers v. United States, 905 F.2d 1212 (9th Cir.1990) does not persuade us to a different result. In Summers, the Ninth Circuit held that the discretionary function exception did not immunize the Park Service from liability for failure to warn beachgoers of the dangers of fire rings. Id. at 1215. The court reasoned that the exception does not apply unless the evidence shows that the decision not to warn “was the result of a decision reflecting the competing considerations of the [Park] Service’s sign policy.” Id. at 1215. Under this reasoning, no discretionary function exception may be found unless the challenged conduct was the result of a reasoned policy decision.

This approach, however, was rejected a year later in Gaubert when the Supreme Court held:

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.... The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the *444actions taken and on whether they are susceptible to policy analysis.

499 U.S. at 324-25, 111 S.Ct. at 1274-75. Thus, the requirement for a policy nexus is an objective not a subjective one. The proper inquiry is whether the challenged actions are “susceptible to policy analysis,” not whether they were the result of a policy analysis. Id. See also Hughes v. United States, 110 F.3d 765 (11th Cir.1997).

Furthermore, Summers is inconsistent with the law in this Circuit. In Myslakowski, we held that even if there is no evidence that policy concerns were the basis of a challenged decision, the discretionary function exception applies if the decision is susceptible to policy analysis. Myslakowski, 806 F.2d at 97. We wrote:

The critical error in the trial court’s analysis is in its conclusion that because the evidence does not show that the departmental policymakers evaluated the pros and cons of requiring that a warning be given concerning the rollover propensity of the jeep and then made a discretionary decision not to give such warnings, it therefore follows that no discretionary decision, of the kind contemplated by § 2689(a), was made concerning the terms, conditions, and “manner” of sale of the jeep. Thus, the statutory exception to the waiver of immunity for such decisions is inapplicable. We respectfully disagree.
The fact that, in making the discretionary policy judgment to sell the jeeps “as-is-where-is,” the government officials may not have evaluated some or all of the dangers associated with the use of jeeps ... and given no thought to the need for warnings even in view of the [knowledge of their propensity to rollover] is not to say the considerations unaddressed are therefore outside the ambit of the discretionary judgment exception to the statute and a basis for establishing tort liability.

Id.

The law in this circuit is that “even the negligent failure of a discretionary government policymaker to consider all relevant aspects of a subject matter under consideration does not vitiate the discretionary character of the decision that is made.” Id. See also Graves, 872 F.2d at 137-38 (citing Myslakowski ).

V.

The management and maintenance decisions of the Forest Service at the Camp 7 Lake Recreation Campground including the decision to have open fire pits, the design of the pits, whether to enclose them within railings, and whether to warn of their dangers involves balancing the needs of the campground users, the effectiveness of various types of warnings, aesthetic concerns, financial considerations, and the impact on the environment, as well as other considerations. These decisions, therefore, are within the discretionary function exception to the FTCA’s waiver of sovereign immunity.

The district court correctly ruled that the FTCA does not, in view of the discretionary function exception, waive sovereign immunity for plaintiffs’ claims, and, therefore, dismissed them. That judgment is AFFIRMED.

. In reviewing the district court's dismissal of plaintiffs' complaint, we accept the factual allegations in the complaint as true. See United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 1960-61, 100 L.Ed.2d 531 (1988).

. We address the issue of the applicability of the "discretionary function” exception under the FTCA first because it is one of federal court jurisdiction. Holding that federal jurisdiction does not exist, we do not reach the merits of the challenge under Michigan law. See Autery v. United States, 992 F.2d 1523, 1524 n. 2 (11th Cir.1993).

. This is the only regulation plaintiffs contend the Forest Service violated.

. Recreation Operation and Maintenance Plan Manistique Ranger District DY 94 (Operation *442Plan), Forest Service Manual, Title 2300; the Forest Service Safety and Health Administration Handbook; and the Operation Plan, FSM Title 2300.