Duke Ex Rel. Duke v. Department of Agriculture

Accordingly, we conclude the district guidelines by equating

misapplied the scope activity Mr. Melton of the criminal

agreed scope to undertake no contains conspiracy. record entire crim- agreed that Mr. Melton to the evidence arrest, or activity inal undertaken after his reasonably Mr. foreseeable to it was amount of million was Melton the $30 object original counterfeiting scheme. VACATE the sentence therefore light of this resentencing

REMAND for opinion. DUKE, by Ray his father and next

Joel Danny Duke; Danny Duke, friend Plaintiffs-Appellants, AGRICULTURE, OF For DEPARTMENT Mexico, Service, USA; State of New est Department of and Fish and State Game Defendants-Ap Department,

Highway pellees.

No. 95-2281. Appeals, States Court of Tenth Circuit.

Dec.

LOGAN, Judge. Circuit Duke, Danny individually

Plaintiff and Duke, Ray ap- plaintiff friend Joel next of grant summary peals the district defendants, in favor of United Plain- States the State New Mexico. six-year-old Duke tiffs suf- asserted Joel injury a boulder fered serious brain when down into his rolled a hillside smashed family camping tent while he was with his claim the Gila Forest. Plaintiffs’ National damages against for the United States Act on the Federal Tort founded Claims (FTCA). The district court found that subject jurisdiction lacked matter to the appeal FTCA. The central issue whether the immunity furnishes for the States. United appeal Plaintiffs court’s dis- also district against missal of claims the State of their New as barred from federal court Mexico

the Eleventh Amendment.1

I argu plaintiffs’ We first address ment that the district court erred in dismiss Clear, Colleen M. & Albu- Clear Clear ing against their New claims State NM, querque, Plaintiffs-Appellants. for expressly waives Mexico.2 a state Unless immunity Eleventh it cannot be Amendment Hutton, Marilyn U.S. Attor- S. Assistant damages sued for federal court. See Edel (John ney Kelly, Attorney, J. States Jordan, 651, 678, v. man 415 U.S. brief), NM, Albuquerque, her with (1974). L.Ed.2d 662 Plaintiffs’ Defendant-Appellee United States of Amer- the state Eleventh assertion waived ica. immunity engaging in activi Amendment Wells, NM, Albuquerque, John M. for De- subject entering ties and contracts to federal fendant-Appellee Mexico. State New See, regulation e.g., v. is incorrect. Faust Dep’t, Highway South Carolina (4th Cir.1983) (acknowl HENRY, BRISCOE, Before LOGAN edging overruling Chesapeake Bay Bridge Judges. Circuit argue plaintiffs ap- also 1. also the district 2. The district court determined Plaintiffs standard, plied improper legal allegations an abused its dis- to assert a failed "make sufficient finding plaintiffs trespassers cretion were un- against under the claim the State defendants Statute, Use der the New Mexico Recreational New Tort Claims Act and that there is no Mexico (1988 Pamp.), Repl. 17-4-7 N.M.S.A.1978 plaintiffs a claim basis can assert findings disputed made of fact on factual issues against the Federal State defendants under the directing campers. sign including placement of a Appellants' App. Be- Tort Act.” 441-42. Claims express opinion concerning application no cause the Eleventh Amendment bars Statute, the New Mexico Recreational Use but of New claims federal court the State leave that to the district court on remand. Plain- Mexico, reach bases for we need not the other argued tiffs the district court abused its that dismissal. finding placed that a had been discretion in telling camp. question people where to That fact, relevant, if remains for determination on remand. Lauritzen, statute, regulation, policy [that] v. federal & Tunnel Dist. (4th Cir.1968), by plaintiffs), specifically prescribes a course of action relied on denied, 1226, 104 follow,” employee 467 U.S. which case cert. Berkovitz, (1984); apply. Tribe does not see also Seminole L.Ed.2d 874 Florida, 609, -, S.Ct. at 486 U.S. Florida (1996) 1114, 1125, 134 L.Ed.2d S.Ct. If the conduct involves unilaterally power abro (Congress had no Berkovitz, judgment step under the first sovereign gate Eleventh Amendment state’s apply the step, then we must second which act immunity question when the in was requires this court “determine whether provision pursuant to a constitutional “passed judgment the kind that the discre power abrogate”). the granting Congress tionary was of New Plaintiffs’ claims the State only protects Id. The shield.” Amend Mexico are barred the Eleventh those actions or decisions ment. pub on which “based considerations policy.” lic Id. at 108 S.Ct.

II “prevent purpose judicial The is to ‘second- claim next turn to FTCA guessing’ legislative and administrative pro- against the United States. The FTCA social, economic, in immunity sovereign a broad waiver vides policy through an the medium of negligent wrongful act or omis- “the in Id. at tort.” 108 S.Ct. acting in any government employee sion” of (quoting Varig [United v.] 1959-60 States scope of his or her employment to the Airlines, ^[797] [104 private person liable [1984]). extent that a would be 2755, 2764, L.Ed.2d 660] state law. in similar circumstances under Kiehn v. United 984 F.2d 1346(b). § This waiver of See 28 U.S.C. Cir.1993) omitted). (parallel citations limited, however, immunity is because deter We review district court’s government is not liable for applicability of the discretion mination of upon [a]ny act or omission claim based an novo, ary doing function de and in so consid Government, employee an exer- only allegations complaint er not in the care, a stat- cising execution of due affidavits, depositions, evi and other but the regulation, whether or not such ute or in the record. Gotha v. United dence valid, regulation or based statute (3d Cir.1997). Because performance exercise or or the upon the having no trial —the district court there was perform a discretion- failure to exercise summary judgment determine entered —we duty part of a ary function or on the jurisdic has only the district court whether agency employee or an Gov- federal tion; merits of make no on the ernment, or not the discretion the case. be abused. involved 2680(a). § The clause of the stat- Id. step of test the Berkovitz The first “discretionary function ex- ute contains to determine whether there requires us here. ception” at issue camped Plaintiffs decision. v. United Supreme Court Berkovitz spill The Quemado emergency Lake Dam Forest, 486 U.S. administered way in Gila National (1988), two-step set out a test Service, L.Ed.2d 531 Depart Forest the United States discretionary function when the determine The Mex Agriculture. of New ment of applies. spillway the dam constructed ico Con agreement with the Forest Service. step of the test re- an first Berkovitz cutting part of entailed out a struction quires this court determine whether mountain; an road then built on a state an element conduct “involves choice,” spillway. one side through the On ease it is easement judgment or which designated spots parking language road were falls within vehicles; the other plaintiffs camped “a exception, or whether it involves safety, enjoyment, and conve- cut- mation for “the side of the road at the bottom of the users). away slope. Forest Service admitted nience” of forest although camping that it allowed that area emphasize these manuals safe While sign designated camping area. no ty they are appropriate warnings fact, plaintiffs, camp who came to with two specific enough to the Forest Ser eliminate families, up camp other there around set employees’ regarding vice choice how to act existing fire ring. particular circumstances. As District alleged Plaintiffs that the Forest Service noted, per “[d]espite the of Columbia Circuit Mexico, jointly oper- and State New policies regulation, government vasiveness of area, Quemado Lake ated the knew always leave room for indi will almost some pre- large falling rocks from mountain But actions vidual choice.... not all people camping there. sented are, require choice—actions that one presented and deposition Plaintiffs affidavits sense, ‘discretionary’ protected as ‘dis —are testimony that maintenance crews removed Cope cretionary functions’ the FT'CA.” 133, area, Appellants’ App. rocks from the (D.C.Cir.1995). Scott, 445, v. F.3d 448 45 135, 137-38, 222, 421, 176, and thus defen- danger, had see id. at dants notice of brings step That us the second of to that 397-98. Plaintiffs asserted the Forest test, requires the court Berkovitz warning duty put up sign had to Service to is of “determine that rocks, danger falling pro- install function ex kind that the fence, prohibit camping in area. tective or Berkovitz, emption designed to was shield.” we, parties agree, as do that under the 536, 108 “Deci 486 at S.Ct. at 1958. U.S. step of test was no first the Berkovitz there require exempt from sions that choice are statute, regulation, policy or [that] “federal only they if suit under the FTCA ‘sus prescribe^] specifically a course of action” ceptible policy judgment’ involve to and employees for the Forest to follow.3 Service social, ‘political, [or] exercise of economic Gaubert, 315, 499 See United States U.S. ” judgment.’ Cope, (quoting 45 F.3d 1267, 1273, 113 111 S.Ct. L.Ed.2d 335 1274). Gaubert, 499 at 111 at U.S. S.Ct. Berkovitz, (1991) (quoting 486 at U.S. Gaubert, Scalia, concurring in Justice noted 1958). at The relevant Forest Ser- difficulty applying that have the courts had (FSM) policy was vice Manual states aspect of 499 “policy” the test. See U.S. “provide healthful facilities for safe and at 111 336). visitors,” 6703(3) § (Appellants’ App. Supplement The Gila to the Forest Service problems, Cope recognized, One of the as provides: Manual every governmental is, nearly is that objec- signing Forest The Gila National extent, subject analysis policy to some —to safely guide, regulate, tives shall be to argument that it influenced some and public provide warn advise difficulty like. economics or the An added is uniformity continuity signing proce- decision; policy to act can a failure be including Forest throughout dures acting may and a failure to think about still posters signs and erected individuals “susceptible policy analysis” as contem- Special organizations under Use Permits. plated by Gaubert. Further, FSM, applying (Appellants’ App. § S.Ct. at 1274-75. Supp. Gila 7160.2 343) added); do (emphasis see not also FSM 340) (Appellants’ App. (objectives § consider whether decision or nondecision 7160.2 provide poster negligent wrong. are to infor- was See U.S.C. program forest, long range sign Supervisor responsible Quemado 3. Dam was in national recreation, range, programs the Forest." Forest Service Manu- tim- established “outdoor 343); (FSM) ber, watershed, (Appellants' App. purposes.” § al wildlife and fish 7160.43 see 342). App. (Appellants' § § also FSM 7160.42b U.S.C. The Forest Service has broad 528. provided signs Supplement “will preserve the forests The Gila discretion to administer appropriate Appellants' present genera- and future allowed locations.” natural resources for 1600(6). App. § tions. See 16 U.S.C. “The Forest

14H 2680(a) § (exception applies place signs or not not to warning “whether on unstable rock abused”). petroglyph the discretion involved be formations at part site was policy protect scenery); natural Johnson permits This to ar Interior, Dep’t v. United States here, gue, appears do that decisions— (10th Cir.1991) (Park Service deci- any or nondecisions —that involve choice and post warnings concerning dangers sion not to policy hint of concerns are climbing of mountain in Grand Tetons was exception. agree within the policy leaving experience based on as wil- approach ... “[t]his D.C. Circuit derness); Zumwalt v. United only step eviscerate Cir.1991) (decision analysis set out in Berkovitz and warn of of eaves Pinnacles Nation- but would allow to swallow pamphlet al Monument in but not to erect sweeping sovereign the FTCA’s waiver of warning signs part to maintain immunity.” Cope, 45 F.3d at 449. We must state). trail wilderness In these situations if implicates ask the decision or nondecision signs the decision not to erect or eliminate a social, policy judgment the exercise of a of a justified by hazardous condition is Gotha, economic or nature. See preserving pristine the area in its condi- (disavowal F.3d at “decision fact” protect experience tion to the wilderness determinative; test is whether nature of the visitors. type susceptible action taken or not taken is analysis). recog The Gaubert circuits, however, This court and other nized that held involving have decisions or nondecisions

[tjhere obviously discretionary discretionary are acts choice were not within the See, performed by agent a exemption. e.g., Boyd Government that are function v. Unit States, (10th ) 895, scope employment within the of his but not ed 881 F.2d Cir.1989 (Army Corp Engineers’ within the function “failure to warn dangerous popu because these acts cannot be said to be swimmers of conditions a purposes regulatory swimming implicate any based on the lar area does not social, economic, regime accomplish. If political policy judgments seeks to one of the officials involved in this an au- excep case drove with which the function concerned”); properly tomobile on a mission connected with his tion is Smith v. Unit (10th 872, negligently official duties and collided with ed 546 F.2d 876-77 Cir. 1976) (failure car, apply. another would not warn hazards ther Gotha, Although driving requires pool park); the constant ex- mal in national 115 F.3d (failure discretion, provide safeguards ercise of the official’s decisions at 181-82 on a hardly exercising footpath Navy tracking that discretion can on a underwater (failure regulatory policy. range); Cope, said to be 45 F.3d at 451-52 post adequate warning signs on road main n. n. 7. 499 U.S. Service). Park In tained the National holding The bulk of the cases that per each of these cases the court could not exception applied in- any significant ceive the record before readily public policy volved identifiable deci- social, political policy economic or in the ac See, Co., e.g., Daigle sions. v. Shell Oil allegedly tion or inaction that contributed Cir.1992) (decision (10th injury giving to the lawsuit. rise on how to contain environmental contami- existed, specific hazard distinct these eases protecting public nants while health involved might from the multitude of hazards that protected by essence of choices discre- in, example, exist a wilderness trail tionary exception). a national forest, through park a national where forest, area, park, wilderness or national warnings might the area’s char detract from there situations which both known might costly. safety structures acter or unknown hazards exist and in which a delib- against argument inquired whether the erate decision is made not to warn At oral See, inaction in the in- e.g., the hazard. Kiehn v. defended its eliminate (decision bud- on the basis of economics—a 984 F.2d stant ease Cope, the D.C. Cir- response 115 F.3d at 181-82. In getary crunch or the like. rejected “engineering judg- cuit claims of no economic influenced deci- that factors considerations,” holding and “aesthetic or nondecision. Domme v. United ment” sion Cf. Cir.1995) (Hen- having manage road “chosen to 61 F.3d (“insufficient J., [through park] in manner more amenable concurring) ry, commuting commun- through nature than alone do func- resources make”). us, steps ... ing having taken record before with tion Based on the use, in that dangers inherent specific was a hazard distinct from warn users here there argue that its failure generic forest. A the Park Service cannot other hazards to a national in- steps are effective result- to ensure those through cut was made a mountainside ‘discretionary’ protected decisions.” slope boulders rolled volves ing from which time to The boulders down from time. land- near the road that had been made ed stage government has not At specific purpose through the cut for the protect failure from how to warn or shown ingress from a near- providing egress to and rolling of a down the boulder encouraged ve- lake. Forest Service social, slope “political, implicated man-made park by providing- along hicles to this road of the sort or economic decisions lines, parking Appellants’ App. marked see protect.” Id. Appellees’ improvements, various Thus, we REVERSE the district dis- discourage Supp.App. 19. It individ- did not plaintiffs’ against the claims federal missal selecting plaintiffs

uals from the area chose government. We AFFIRM its dismissal of and, indeed, campers camping, had used against claims the State New many years. No literature or the area for proceed- for further Mexico. REMAND of the roll- signs warned the hazard opinion. ings in accordance with this ing boulders. camp- warning sign prohibiting A or a BRISCOE, concurring Judge, Circuit danger ing at the site of the because dissenting: protective might be little. A fence cost- cost part part. I dissent I concur government not defend the ly, but the does against the agree that claims on an economic decision. The case based by are the Eleventh New Mexico barred court found that the decision to district However, contrary to the ma- Amendment. policy that furthered the warn was a decision jority, I would affirm the district dis- objective of “resource alloca- Forest Service the claim the United States missal of tion, management, preserving forest discretionary exception the function to the appearance natural state of Gila Na- Act, Federal Tort 28 U.S.C. the Claims App. Appellants’ 442. But tional Forest.” 2680(a). § the no evidence our review of record reveals by government any the social or Six-year- tragic. The facts of this case are pre- on the justification. simply It relies injured Ray severely Duke was old Joel policy reason sumption that some there was when a boulder rolled down an embankment at the site. anything failure to do for the camping crushed his skull while he was Gotha, Third that the rou- the Circuit stated family spillway emergency the with his safeguard footpath on a at issue there tine heavy Quemado during Lake rain- Dam notes, majority it As the would have storm. mundane, administrative, warning sign or a little to erect a garden-variety, cost However, application camping. problem prohibiting housekeeping that is about far discretionary function does applicable to the of the policies removed from the injury magnitude the get.... depend on Navy’s possible to mission as it is pre- been with which it could have a case more the ease It is difficult to conceive of applies, ap- contempla- the vented. When likely to have the been within regard whether the discre- abrogated plies sover- without Congress tion of when 2680(a). § involved is abused. 28 U.S.C. immunity the one before us. tion eign than

1413 analysis two-prong prong We use the of Berko first of the Berkovitz test —when the States, 531, government agent vitz v. 486 108 permitted United S.Ct. is to exercise 1954, (1988), presumed 100 L.Ed.2d 531 to determine discretion —“it must be exception agent’s grounded whether the function acts policy are when applies brought pursuant exercising complaint eases that discretion. For a dismiss, first determine the ac allege FTCA. We “whether survive motion to it must gov tion at support finding issue was one choice for the facts which would agency. Tippett employee” ernment are actions not the kind of con- (10th States, 108 F.3d duct that can be said to be in the Cir.1997). agree majority policy regulatory I regime.” step this first is satisfied in this case. 499 U.S. at at 1274-75. In S.Ct. prong requires relying government’s pres- of the Berkovitz test failure to inquiry proof, majority ignores an into whether the at ent presump- type issue is of the is tion to which the is entitled un- addition, analysis to shield. Id. The focus of our is the der concentrating Gaubert. nature of the action taken and whether it particular is whether failure to warn of a subject policy analysis. Only actually reasons, policy based on susceptible policy analysis protected majority ignores inquiry are that our is exception. type question function Id. whether the is “susceptible analysis,” 1197-98. and not policy analysis is the actual reason Where the record shows consider question. the decision in “The focus implicitly explicitly weigh in ations inquiry agent’s subjective is not on the warnings, decision not to erect the discretion in exercising intent ... discretion but on ary exception applies regard without the nature of the actions taken and on wheth- specific danger to whether the involved was they susceptible policy analysis. er known. See Zumwalt v. United Id. at Consequently, 1275. (10th Cir.1991); see lack describing “[t]he of record evidence Kiehn v. United 984 F.2d analysis public policy factors in the ... Cir.1993). (10th Thus, where the decision post warnings,” decision not to place warning signs part not to of some on, Kiehn, majority relies “is immaterial.” policy,” “overall F.2d at Kiehn, exception applies. E.g., 984 F.2d at 1104; Zumwalt, 955; broadly F.2d at see Child asserts its regarding “warning ers v. United decision Cir.1994) (failure fences, place signs part signs, require[s] to over other closures park plan; discretionary public policy Ap- all service function consideration of factors.” exception applies). pellees’ at 17. br. Childers v. United Cf. States, 1001, 1016(D.Mont.1993), F.Supp. 841 majority rejects government’s The the ar- (9th Cir.1994) (decisions 40 F.3d 973 aff'd “inherently require” prong gument that the second of the Berko- poli balancing public satisfied, finding stage vitz test is this “[a]t cy). government policy-specif The offers no government the has not shown how failure to in ic considerations involved the danger protect warn or from of a boulder Rather, the forest service. rolling slope implicated down the man-made government presumption poli rests on the social, ‘political, or economic decisions of the cy-based reasoning as described in Gaubert exception pro- sort that the was to ” applied by this court in Kiehn and Dai Thus, Majority op. tect.’ the ma- (10th Co., gle 972 v. Shell Oil F.2d jority places establishing the burden of the Cir.1992). they argue Plaintiffs do not have prong discretionary the function presented evidence sufficient to overcome government. majority on the presumption. this particular injury looks to whether the actually implicated policy particular in stand involved concerns. Two cases this circuit arguably giving respectfully disagree majority’s I out as inconsistent with the First, approach government presumption in instances. when the benefit of a both the reasoning failing challenged government passes policy-based the to erect policy signs. v. decision linked to the decision of what warning In Smith United (10th Cir.1976), in the area. This plaintiff fell activities would allowed F.2d warnings pool regarding found the super-heated thermal at Yellow- decision into a claim, regarding independent of the decision National Park. He filed FTCA stone Boyd, govern- permissible failed activities. the alleging park provide the to service policy directly guard- apparently to ment identified no adequate warnings and failed erect to a failure to warn swimmers of precautions. Despite other related rails and Smith, dangers. we con- that the not known Like have government’s contention decision distinguished implemented poli- sistently Boyd subsequent provide warning signs cases, simultaneously finding scenery good while cy and leave the area to conserve the proposition policy law that when no undeveloped, held the discretion- this court could identified connec- ary apply. function did not Id. considerations warn, discretionary jurispruden- tion with a failure to Although our current 876-77. See, e.g., inapplicable. approach tial function function Zumwalt, However, F.2d n. 6. exception would follow the same reason- not Boyd Boyd have the rule extracted from ing, we not overruled criticized now Smith, integrate presumption policy- for the do not but instead have said stands explained by reasoning subsequently proposition that failure warn re- based limited po- applied sulting only recognize Supreme from failure to Court in Gaubert tentially dangerous impli- this court in Kiehn. condition does not not policy analysis cate a and does invoke of this on whether Resolution case turns See, exception. e.g., am, willing, permit presump- as I we are Zumwalt, 5; n. 928 F.2d at 955 see also government’s inaction tion that v. F.2d Summers required by Supreme as based Cir.1990) (failure (9th to warn on fail- based willing Court in whether we danger, rather ure to consider than direct instead, is, majority as the to hold absence of not to erect reasons not choice policy reasoning affirmative evidence of function). protected the record defeats the within the rule present case does not come in this earlier exception as case of Smith, rule extract from which we have law, Boyd. Boyd good if Even remains after yet apply. See Weiss United readily distinguished Gaubert it can be from Cir.1989) (fact n. 2 Boyd, government not case. did failure to warn was result failure to consid- proffer and the court could not find policy- er issue was no moment where policy-based reasoning could be involved precluded warning). implicitly based decision warning sign the decision not to erect the premised case on the alle- Plaintiffs’ here is Here, prof- does issue. knowledge gation had specific policy-based fer a reason for the dangerous in which condition area decision at issue but rather relies on the camped negligently plaintiffs but failed general regulations concerning statutes and maintain, They do as the rule act. Smith management argue forest its decisions re- require, government simply signage safety are within garding regard to detect the without failed by these realm of discretion bounded statutes ruling gov- In considerations. regulations. summary judg- initial ernment’s motion language Guided ment, the court ruled the evidence district 324-25, 111 at at 1274-75 that U.S. government knew established of the dan- complaint a “[f]or a to survive motion to gerous condition. dismiss, which allege it must facts Boyd finding v. United 881 F.2d 895 support a that the actions (10th Cir.1989), injured by are that can swimmer not the kind conduct be said duty government grounded” policy, claimed I would affirm. boat and had be premised theory liability is on since the Plaintiffs’ to warn danger. swimming government’s knowledge permitted boating in known areas. concerning rejected say how var- government’s argu- We cannot This court public are dangers ious lands ameliorated that a whether to warn was ment decision type of that cannot be said to are the actions social, economic, enough poli It that forest service

policy. is signage safety sufficiently cies on permit service to take the forest broad policy goals into account. See public Gau bert, 324-25, 1274-75; 499 U.S. at

Childers, (citing n. 1 Gaubert required proposition that is is “[a]ll applicable regulation gave statute or agent poli to take discretion account”). applying

cy goals into test, prong of the Berkovitz keep purpose “pre mind its critical legislative judicial guessing’ of vent ‘second grounded in so and administrative decisions cial, economic, policy through and political of an in tort.” 486 the medium Considering 108 S.Ct. at 1958-59. potential dangers public manifold lands, processes arising by natural here,

or, natural as combination intervention, and human there is processes judicial second-guessing an element of judicial decision in a determi administrative concerning dangers re limited nation to addressed. sources should used affirm district court’s dismissal I would this case. COMPANY, Plaintiff-Appellant, V-1 OIL OF DEPARTMENT PUB UTAH STATE SAFETY; Douglas Bodrero, D. LIC capacity as of Public Commissioner his Safety; Fire Marshal Divi Utah State capacity sion, Lynn Borg, B. in his Marshal; Liquefied Fire Utah Board; and the State Of Petroleum Gas Utah, Defendants-Appellees.

No. 96-4090. Appeals, States Court of Tenth Circuit.

Dec.

Case Details

Case Name: Duke Ex Rel. Duke v. Department of Agriculture

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 17, 1997

Citation: 131 F.3d 1407

Docket Number: 95-2281

Court Abbreviation: 10th Cir.