785 F.3d 1227
8th Cir.2015Background
- On Oct. 9, 2011, Edward Metter was killed when a parked pickup rolled down an unprotected river bank at Gavins Point Dam, a recreation area managed by the U.S. Army Corps of Engineers (Corps).
- Prior flooding prompted the Corps to remove two sections of guardrail in June 2011 for repair work; remaining guardrail posts were found deteriorated and the Corps contracted C.B.M.C. to replace them by Sept. 30, 2011.
- Corps personnel removed the remaining guardrails on Sept. 28 to reduce contract costs and meet the deadline; the Corps reopened the area without posting parking restrictions or warnings, believing it was not dangerous.
- C.B.M.C. failed to perform; the Corps repeatedly tried to contact and then terminated C.B.M.C., re-awarding the job to a new contractor who completed replacement after Nov. 30. The fatality occurred on Oct. 9 before replacement was complete.
- Metter’s widow and others sued under the Federal Tort Claims Act (FTCA) alleging negligent maintenance, inspection, and failure to warn. The Corps moved to dismiss for lack of jurisdiction, invoking the FTCA discretionary function exception (DFE); the district court granted dismissal and the plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Corps’ removal of guardrails and decision not to post warnings are covered by the FTCA discretionary function exception | Appellants: once Corps decided to replace guardrails, subsequent failures to replace timely or warn are operational negligence, not discretionary policy acts | Corps: decisions to remove guardrails, hire/replace contractors, and whether to post warnings involve judgment and policy balancing (safety, cost, repairs) and are protected by DFE | Court: Held DFE applies—the decisions involved choice and were susceptible to policy analysis, so FTCA jurisdiction is barred |
| Whether an alleged established policy to maintain guardrails removes DFE protection for follow-through/implementation failures | Appellants: long-standing presence of guardrails and Becker’s determination to replace created an established safety policy, so failure to follow through is actionable negligence | Corps: no binding mandatory policy existed; manual provisions are permissive guidelines and Corps retained discretion on timing and methods | Court: Held no binding policy existed; Corps’ operational decisions remained discretionary and DFE applies |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (1991) (establishes two-part test for discretionary function exception and focuses on whether conduct is susceptible to policy analysis)
- Berkovitz v. United States, 486 U.S. 531 (1988) (frames first-step inquiry: element of judgment or choice)
- Varig Airlines v. United States, 467 U.S. 797 (1984) (DFE protects actions based on public policy considerations)
- Layton v. United States, 984 F.2d 1496 (8th Cir. 1993) (decision whether to warn is susceptible to policy analysis balancing safety and cost)
- Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668 (8th Cir. 2008) (FTCA waiver and DFE framework discussion)
- Demery v. U.S. Dep’t of Interior, 357 F.3d 830 (8th Cir. 2004) (warning decisions susceptible to policy analysis)
- Aslakson v. United States, 790 F.2d 688 (8th Cir. 1986) (distinguishes fixed mandatory safety policies from discretionary decisions)
- Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791 (8th Cir. 1998) (standard of review for DFE dismissal)
- Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (contrasting case where warning decision was not susceptible to policy analysis)
- Shansky v. United States, 164 F.3d 688 (1st Cir. 1999) (agency’s operational adjustments remain protected when overall policy decision is discretionary)