979 F.3d 665
9th Cir.2020Background
- Lam was camping at Lake Mendocino when a live oak fell onto his tent and crushed his foot; he sued the United States under the FTCA alleging the Army Corps negligently failed to remove the hazardous tree.
- Corps maintenance employee Wayne Shull inspected park trees routinely and testified he saw no outward signs of hazard; Lam’s arborist (Dr. Julin) disagreed and pointed to long‑standing trunk cavities and rot.
- Relevant Corps guidance: the Operational Management Plan (OMP), EM 385‑1‑1 (safety procedures), and EM 1110‑1‑400; ANSI A300 Part 9 is referenced but not incorporated as a binding standard.
- District court granted the Government’s Rule 12(b)(1) motion, holding the FTCA’s Discretionary Function Exception (DFE) barred Lam’s claim; Lam appealed.
- Ninth Circuit affirmed: it concluded Corps policies left implementation discretion to park staff and those choices were susceptible to policy analysis, so the DFE applied; the Court rejected Lam’s argument that ANSI A300 Part 9 created a mandatory duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Discretionary Function Exception bars Lam’s FTCA claim | Lam: decision not to remove the tree was negligent implementation, not a protected policy choice | US: OMP and manuals are guidance that leave rangers discretion to balance safety, aesthetics, budget and habitat concerns; such choices are policy‑based | Held: DFE applies — policies permit discretion and decisions are susceptible to policy analysis, so immunity bars the claim |
| Whether ANSI A300 Part 9 imposes a mandatory duty to identify/remove hazardous trees and defeats DFE | Lam: ANSI A300 Part 9 imposes mandatory technical criteria requiring abatement/mitigation | US: ANSI is cited as a reference only; EM 385‑1‑1 governs employee safety procedures, not mandatory public‑safety tree‑removal requirements; ANSI guidance itself is permissive | Held: ANSI not a mandatory, binding rule here; it does not overcome the discretionary nature of Corps policies |
Key Cases Cited
- United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (explains DFE purpose of avoiding judicial second‑guessing of policy decisions)
- Berkovitz v. United States, 486 U.S. 531 (establishes two‑part test for DFE: judgment/choice and policy grounding)
- United States v. Gaubert, 499 U.S. 315 (presumes discretionary acts authorized by policy are grounded in policy; focus on whether actions are susceptible to policy analysis)
- Dalehite v. United States, 346 U.S. 15 (clarifies negligence is irrelevant to DFE and discretion protects implementing acts grounded in policy)
- Kim v. United States, 940 F.3d 484 (9th Cir. 2019) (tree‑safety case where DFE did not apply because a detailed mandatory directive governed hazard inspections)
- Chadd v. United States, 794 F.3d 1104 (9th Cir. 2015) (DFE applied to park responses to wildlife hazards where policy choices governed responses)
- Childers v. United States, 40 F.3d 973 (9th Cir. 1994) (DFE applied where park guidelines left trail‑safety warnings to rangers’ discretion)
- Valdez v. United States, 56 F.3d 1177 (9th Cir. 1995) (DFE applied where NPS guidelines set broad safety goals that required discretionary implementation)
- Morales v. United States, 895 F.3d 708 (9th Cir. 2018) (DFE applied; public‑safety decisions can involve policy tradeoffs like cost, aesthetics, and maintenance risks)
- Gonzalez v. United States, 814 F.3d 1022 (9th Cir. 2016) (guidelines using mandatory language like “shall” do not automatically negate DFE when read in context)