Walen v. United States of America
246 F. Supp. 3d 449
D.D.C.2017Background
- On Oct. 29, 2012 Mary Lou Walen was struck and severely injured by a falling tree limb while walking on the Connecticut Avenue (Klingle) Bridge in Rock Creek Park.
- Walen filed an administrative FTCA claim with the DOI; after no action she sued the United States, DOI, NPS, the NPS National Capital Region, and D.C., alleging negligent inspection, maintenance, and recordkeeping of Park trees.
- The government moved to dismiss under Fed. R. Civ. P. 12(b)(1), asserting the FTCA discretionary-function exception and that agencies are improper defendants (the United States is the exclusive defendant under the FTCA).
- The NPS submitted a Draft Tree Plan and other NPS guidance documents; the Draft Tree Plan contained mandatory language requiring scheduled inspections, storm inspections, documentation of inspections/corrective actions, and compliance with ANSI industry standards.
- The district court concluded the FTCA bars suits against agencies (so DOI, NPS, and the NPS National Capital Region were dismissed) but denied dismissal as to the United States because the discretionary-function exception did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the proper defendant is the United States or the agencies | Walen sued the United States and agencies; FTCA waiver permits suit against the United States for torts | FTCA provides the exclusive remedy against the United States so agencies should be dismissed | Agencies (DOI, NPS, NPS Natl. Capital Region) dismissed; United States remains defendant |
| Whether tree-inspection/maintenance/recordkeeping are discretionary (Berkovitz prong 1) | Draft Tree Plan and incorporated industry standards create mandatory duties (schedules, documentation) — not discretionary | NPS guidance and management policies generally delegate tree decisions to park superintendents, so inspections/management are discretionary | Court: Draft Tree Plan contains mandatory prescriptions; prong 1 not satisfied — conduct is not discretionary |
| Whether, even if discretionary, the acts are protected because they involve policy balancing (Berkovitz prong 2) | Actions required by the Plan involve application of scientific/technical standards (ANSI) and operational judgment, not policy balancing; thus not within the exception | Tree management implicates policy tradeoffs (safety, aesthetics, ecology, resources) and falls within NPS mission and policy judgment | Court: prong 2 not met — decisions are technical/scientific/operational and not the kind of policy judgments the exception protects |
| Whether recordkeeping decisions are barred by discretionary-function exception | Recordkeeping is mandated by the Draft Tree Plan and, if discretionary, not the sort of policy judgment immune from suit | Government did not meaningfully contest that recordkeeping is non-policy or subject to policy analysis | Court: recordkeeping mandates remove immunity shield; discretionary-function exception does not bar these claims |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (1991) (articulated two-part test for FTCA discretionary-function exception)
- Berkovitz v. United States, 486 U.S. 531 (1988) (first/prong analysis: mandatory directives remove discretion)
- United States v. Varig Airlines, 467 U.S. 797 (1984) (discretionary-function can protect both policy decisions and implementation when directives confer discretion)
- Dalehite v. United States, 346 U.S. 15 (1953) (discretionary-function protects programmatic policy decisions and implementation involving policy judgment)
- Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (discretionary-function requires conduct to be fraught with public-policy considerations; operational/technical acts are not protected)
- Loumiet v. United States, 828 F.3d 935 (D.C. Cir. 2016) (treatment of FTCA exceptions as jurisdictional and analysis guidance)
- Loughlin v. United States, 393 F.3d 155 (D.C. Cir. 2004) (if a binding directive exists, employee has no rightful option to deviate)
- Husovsky v. United States, 590 F.2d 944 (D.C. Cir. 1978) (recognizing landowner duty to protect passers-by from hazardous trees in urban park context)