concurring:
I concur in the result reached by the majority. Section 2680(a) of the FTCA provides an exception for claims based on the “exercise or performance or ... failure to exercise or perform a discretionary function or duty.” Under United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), we first ask “whether the alleged wrongful conduct violated a specific and mandatory regulation or statute.” Bibeau v. Pac. Nw. Research Found., Inc., 339 F.3d 942, 945 (9th Cir.2003) (citing Gaubert, 499 U.S. at 324-25, 111 S.Ct. 1267). If the answer is yes, our analysis ends, and the discretionary exception does not apply. Id.
Bolt alleges that Sergeant Khan breached his duty to ensure that the residents removed the snow from the lot as well as his duty to report the lot’s hazardous conditions to the appropriate authorities.
The Residents’ Handbook charges Sergeant Khan, as Senior Occupant, with responsibility “for the supervision, as necessary, of resident policing and appearance.” This includes “timely removal of snow and ice from steps, porches, driveways and sidewalks.” Although the Handbook makes residents responsible “for the removal (within 24 hours) of snow and ice from steps, porches, driveways, mailboxes, and sidewalks,” the Senior Occupant must ensure “all residents comply with th[is] instruction[ ].” According to the Handbook, such “[cjoordination of building residents is necessary to [ejnsure all adjoining and common areas are free of trash, snow and ice.” This shows a “specific and mandatory” duty, not a discretionary one. See Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1027 (9th Cir.1989) (as amended).
Similarly, Sergeant Khan had a non-discretionary duty to report hazardous conditions in the lot to the appropriate authorities to the extent he was unable to remedy them. The Handbook directs that the Senior Occupant “need[s] to report” when “deficiencies occur or conditions exist that are beyond [his] authority or capability to handle.”
Under the test outlined in Bibeau, this is all we must do to decide the issue of jurisdiction. Once we determine that the alleged conduct violated a specific or mandatory regulation, that conduct automatically falls outside the realm of the discretionary exception and we need not proceed with any other analysis. Thus, I conclude the majority’s remaining jurisdiction analysis is unnecessary.
As there is jurisdiction, I agree with the majority that under Alaska law, the landlord (government) had a duty to “keep all common areas of the premises in a clean and safe condition,” Alaska Stat. § 34.03.100(a)(2), a duty that included removing snow and ice. See Coburn v. Burton, 790 P.2d 1355, 1358 (Alaska 1990).
Thus the summary judgment of the district court should be reversed.