Steven Morales v. United States, 895 F.3d 708

Background

In June 2012 a helicopter piloted by Raymond Perry struck an unmarked USGS cableway 40 feet above the Verde River in Prescott National Forest, killing Perry and three passengers.
The cableway was installed by the U.S. Geological Survey (USGS) to access a streamgage site; it stretched 286 feet across the canyon and was largely invisible to low-flying aircraft.
USGS policies since 1984 adopted the FAA obstruction-marking criteria (14 C.F.R. pt. 77), which generally require marking only for structures exceeding 200 feet or within specific proximities to airports/heliports.
USGS considered site-specific factors (past accidents, aircraft activity, installation risk, cost, vandalism, and Forest Service scenic objectives) and decided not to mark the Verde River cableway because it did not meet FAA criteria and other policy considerations weighed against marking.
Perry’s estate sued under the Federal Tort Claims Act (FTCA) alleging negligence for failing to mark the cable; the district court dismissed for lack of subject-matter jurisdiction under the FTCA’s discretionary function exception.
The Ninth Circuit affirmed, holding USGS’s decision was discretionary and grounded in policy considerations protected by the discretionary function exception.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether USGS’s decision to not mark the cable was discretionary under the FTCA	Perry: USGS policy (1984 Memorandum) required review and marking of hazardous cableways, so decision was not discretionary	USGS: No statute or policy mandated marking; policy adopted FAA criteria which left site-specific judgment	Held: Decision was discretionary; no mandatory, specific directive to mark
Whether the discretionary decision was grounded in public policy (thus exempting suit)	Perry: Safety consideration alone means the exception shouldn't apply	USGS: Decision deferred to FAA standards and balanced competing policy concerns (safety, cost, scenic integrity, employee risk)	Held: Decision implicated social, economic, and political policy and is covered by the discretionary function exception
Whether Young v. United States controls to preclude the exception here	Perry: Young limited discretionary-function protection where record shows decision divorced from asserted policies	USGS: USGS’s record shows the decision was actually susceptible to policy analysis and deference to FAA	Held: Young is fact-specific and distinguishable; record supports policy-based decision here
Whether the court has subject-matter jurisdiction under the FTCA	Perry: FTCA waives immunity for negligent acts of government employees	USGS: Discretionary function exception preserves sovereign immunity for this decision	Held: No jurisdiction; dismissal affirmed under the FTCA discretionary function exception

Key Cases Cited

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (Sup. Ct. 1984) (discretionary function exception protects policy-grounded decisions)
Berkovitz v. United States, 486 U.S. 531 (Sup. Ct. 1988) (two-step test for discretionary function analysis)
United States v. Gaubert, 499 U.S. 315 (Sup. Ct. 1991) (discretionary-function exception covers policy-driven agency actions)
Mitchell v. United States, 787 F.2d 466 (9th Cir. 1986) (agency’s adoption of FAA marking standards held discretionary and policy-based)
Terbush v. United States, 516 F.3d 1125 (9th Cir. 2008) (discretionary-function applied where hazard-response decisions implicate policy balancing)
Young v. United States, 769 F.3d 1047 (9th Cir. 2014) (discretionary-function exception did not apply where decision was divorced from asserted policies)
Miller v. United States, 163 F.3d 591 (9th Cir. 1998) (policy analysis focus for discretionary-function inquiry)
Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996) (balancing safety against preservation and visitor-enjoyment policies under exception)