742 F.3d 11
1st Cir.2014Background
- FTCA waives sovereign immunity for certain torts but includes the discretionary-function exception at 28 U.S.C. § 2680(a).
- Mahon alleged injuries from a Portico railing at the Commandant's House in Charlestown Navy Yard and sued the government under FTCA.
- The government moved to dismiss under the discretionary-function exception; Mahon later added Eastern National and Amelia Occasions, which the court dismissed.
- Mahon argued the contracts were concession contracts requiring risk-management plans; the Service policy manual supposedly dictated adoption of concessioner risk-management recommendations.
- The district court dismissed; on appeal the First Circuit affirms, holding the discretionary-function exception bars suit, regardless of concession contract status or risk-management plans.
- The decision emphasizes strict construction of the FTCA waiver in the government's favor and that policy judgments under park management are discretionary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discretionary-function exception bars the FTCA claims | Mahon asserts decision to manage risk implicates non-discretionary duty. | Government argues discretion is inherent in park management decisions. | Yes; the claims are barred by the discretionary-function exception. |
| Whether concession contracts create a mandatory duty to implement risk-management plans | Contracts require risk-management plans and adherence by the park. | No mandatory duty to adopt concessioner plans; discretion remains. | Even if concession contracts exist and plans were prepared, the exception applies. |
| Whether the Service policy manual imposes park-specific safety prescriptions overriding discretion | Manual sections mandate risk-management proportional to OSHA and acceptance by the superintendent. | Manual does not impose park-specific safety prescriptions or compel changes. | Manual does not override discretion; decisions remain policy-driven. |
Key Cases Cited
- Fothergill v. United States, 566 F.3d 248 (1st Cir. 2009) (discretionary-function focus on nature of harm-creating conduct; policy judgments apply)
- Bolduc v. United States, 402 F.3d 50 (1st Cir. 2005) (presumption that discretion involves policy judgments; burden on claimant to rebut)
- Shansky v. United States, 164 F.3d 688 (1st Cir. 1999) (policy-driven discretion; involves evaluating whether decisions were protected by the discretionary function)
- United States v. Gaubert, 499 U.S. 315 (1991) (recognizes that discretionary functions involve policy judgments)
- Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (distinguishes policy-based safety decisions from ministerial actions; a caution against overstating safety obligations in discretionary contexts)
- Medina-Rivera v. MVM, Inc., 713 F.3d 132 (1st Cir. 2013) (reinforces duty to balance sympathy with legal standards when applying discretionary function)