William Gibson v. USA
2016 U.S. App. LEXIS 30
5th Cir.2016Background
- Gibson fell while exiting a FEMA-owned mobile home at a FEMA storage/auction site in Baton Rouge and suffered serious leg injuries. He was using a stepladder to enter/exit a trailer that lacked attached stairs.
- FEMA employee Joan Johnson accompanied Gibson during inspections; testimony conflicted about whether Johnson provided, positioned, or assisted with the ladder and whether she was attending Gibson when he descended.
- The Gibsons sued the United States under the FTCA for multiple negligence theories (failure to provide stairs/handrails, improper maintenance/surface, providing an unsafe ladder, inadequate training/supervision, and permitting employee cellphone use), seeking over $9 million.
- The district court granted summary judgment for the Government, holding the FTCA discretionary function exception (28 U.S.C. § 2680(a)) barred the claim for lack of subject matter jurisdiction.
- The Fifth Circuit reviewed de novo and focused on the two-step Gaubert discretionary-function test: (1) whether the challenged conduct involved discretion, and (2) whether the conduct was susceptible to policy analysis.
- The Court found step one unresolved but held at step two that FEMA’s decisions about how customers accessed trailers were not the kind of policy-driven judgments protected by the discretionary-function exception, reversed, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEMA’s conduct falls within FTCA discretionary-function exception | FEMA’s unwritten "no assistance" policy (and its violation) creates a nondiscretionary duty; injury arose from negligent, nonpolicy acts (providing/positioning an unsafe ladder) | Decisions about how to provide access to trailers are discretionary, implicate cost, safety, and operational policies, so exception bars suit | Exception inapplicable: Court reversed district court—agency conduct here not the type shielded by the exception |
| Whether any alleged FEMA "no assistance" policy supplied specific, nondiscretionary direction | Gibson argued policy forbade assistance and thus any violation is nondiscretionary | Government argued policy left room for employee judgment (e.g., allow ladder on request) so no binding nondiscretionary duty | Court left step one unresolved as plausible that policy lacked specific directives; resolved case on policy-analysis prong instead |
| Whether the challenged conduct was "susceptible to policy analysis" (Gaubert step two) | Entry/egress assistance and ladder placement are routine maintenance/housekeeping decisions, akin to private landowner duties, not policy-laden | FEMA’s approach reduced costs and employee risk; those budgetary/operational concerns are policy considerations protected by the exception | Court held these were garden-variety, commercial/maintenance decisions (not grounded in regulatory policy) and thus not protected by the exception |
| Proper disposition when discretionary-function question arises at summary judgment | Gibson sought merits review; FTCA immunity/wavier is jurisdictional | Government relied on summary-judgment dismissal for lack of jurisdiction | Court treated the ruling as jurisdictional, reversed dismissal, and remanded for further proceedings on the merits under state law if appropriate |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (Sup. Ct.) (establishes two-part test for discretionary-function exception)
- Berkovitz by Berkovitz v. United States, 486 U.S. 531 (Sup. Ct.) (government actions shielded only when based on public policy purposes)
- In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (La. Plaintiffs), 713 F.3d 807 (5th Cir.) (FEMA housing decisions susceptible to policy analysis in different context)
- Spotts v. United States, 613 F.3d 559 (5th Cir.) (discretionary-function exception does not apply where action violates specific nondiscretionary statute/regulation)
- Gotha v. United States, 115 F.3d 176 (3d Cir.) (discretionary-function exception inapplicable to garden-variety maintenance choices)
- O'Toole v. United States, 295 F.3d 1029 (9th Cir.) (routine property maintenance choices for fiscal reasons not protected by exception)
- MS Tabea Schiffahrtsgesellschaft MBH & Co. KG v. Bd. of Comm'rs of Port of New Orleans, 636 F.3d 161 (5th Cir.) (contrasts high-level, policy-laden decisions like dredging with ordinary maintenance)
- Salim v. United States, 382 F.2d 240 (5th Cir.) (government liable for negligent maintenance leading to slip-and-fall)