Valdez v. United States , 657 F. App'x 3 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1524
JOSÉ E. VALDEZ, MARÍA A. VALDEZ,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]
Before
Howard, Chief Judge, and
Torruella and Lipez, Circuit Judges.
Benjamín Morales del Valle, with whom Morales-Morales Law
Offices was on brief, for appellants.
John S. Koppel, Attorney, Appellate Staff, Civil Division,
U.S. Department of Justice, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez,
United States Attorney, and Mark B. Stern, Attorney, Appellate
Staff, Civil Division, were on brief, for appellee.
August 16, 2016
LIPEZ, Circuit Judge. This case requires a
straightforward application of the discretionary function
exception to the Federal Tort Claims Act (FTCA). Plaintiffs sued
the United States for negligence after a slip-and-fall in a
national forest, claiming that the FTCA waives sovereign immunity
for their suit. They concede that the relevant government conduct
was discretionary, but attempt to avoid the discretionary function
exception on the ground that the conduct was not an exercise of
policy judgment. Because their argument is foreclosed by the
precedents of this court, we affirm.
I.
The relevant facts are undisputed. On September 29,
2012, plaintiffs Maria and Jose Valdez visited El Yunque National
Forest, a tropical rain forest in Puerto Rico administered by the
United States Forest Service. They walked on one of the park's
trails on their way to La Coca Falls. Roughly a mile into their
walk, Maria slipped and fell, injuring her right hand and wrist.
Plaintiffs claim that the fall -- and, hence, Maria's resulting
injuries, her subsequent surgery, and the couple's emotional
distress -- were caused by the slippery trail conditions and the
lack of handrails and posted warnings on the trail. After their
administrative complaint to the Forest Service went unanswered,
plaintiffs brought this action against the United States pursuant
to Puerto Rico's general negligence statute, i.e., Article 1802 of
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the Civil Code, see P.R. Laws Ann. tit. 31, § 5141, and the FTCA,
see 28 U.S.C. §§ 1346(b), 2671-80. The parties consented to
proceed before a magistrate judge. See 28 U.S.C. § 636(c). The
government then moved to dismiss, claiming that the discretionary
function exception applied, and therefore sovereign immunity
prevented the district court from hearing plaintiffs' suit. The
district court agreed and dismissed the case. Plaintiffs appeal,
and we review the judgment de novo. See Murphy v. United States,
45 F.3d 520, 522 (1st Cir. 1995).
II.
The FTCA waives the government's sovereign immunity for
certain tort claims, but the statute contains exceptions. See,
e.g., Mahon v. United States, 742 F.3d 11, 12 (1st Cir. 2014).
One exception applies where a claim is "based upon the exercise or
performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency." Id. (quoting
28 U.S.C. § 2680(a)). A "well-established framework" governs the
application of the discretionary function exception. Carroll v.
United States, 661 F.3d 87, 99 (1st Cir. 2011). To determine
whether the exception applies, we first identify the government
conduct that allegedly harmed the plaintiffs. Mahon, 742 F.3d at
14.
We then ask two questions: first, whether that conduct
is discretionary, meaning that it "involve[s] choice," id., and is
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not dictated by a "statute, regulation, or policy," id. (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Second, if
it is discretionary, we then "must ask 'whether the exercise or
non-exercise of the granted discretion is actually or potentially'
affected by policy-related judgments." Id. (quoting Fothergill v.
United States, 566 F.3d 248, 252 (1st Cir. 2009)). We presume
that the answer to the second question is "yes," though that
presumption may be rebutted. See id. ("[T]he law presumes that
discretionary acts involve policy judgments."); see also United
States v. Gaubert, 499 U.S. 315, 324 (1991) ("[I]f a regulation
allows the employee discretion, the very existence of the
regulation creates a strong presumption that a discretionary act
authorized by the regulation involves consideration of the same
policies which led to the promulgation of the regulations.").
"'[Y]es' answers to both questions mean the discretionary-function
exception holds sway and sovereign immunity blocks the litigation.
But a 'no' answer to either question means the exception does not
apply and the suit may continue." Mahon, 742 F.3d at 14.
The magistrate judge described the relevant conduct as
follows. "The conduct of which Plaintiffs complain is the United
States Forest Service's decisions (1) not to warn of slippery rock
on the La Coca trail, (2) not to eliminate the cause of that
slipperiness, and/or (3) not install handrails on the trail."
Valdez v. United States, No. 3:13-cv-01606-SCC, slip op. at 3-4
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(D.P.R. Mar. 12, 2015). The parties find no fault with this
characterization.
As to the first question, the magistrate judge noted
that the manuals and policies governing the maintenance of trails
in national forests "suggest that the Forest Service had no
specific mandate regarding the posting of signs, maintenance of
trails, or installation of safety devices," id. at 4 n.3, and
"conclude[d] that the Forest Service's conduct was discretionary
in all relevant respects," id. at 5. On appeal, plaintiffs waive
any contention that the Forest Service's actions were not
discretionary, stating that the district court "correctly
established that . . . the United States Forest Service didn't
have a prescribed course of action for the employee to follow in
terms of maintenance, notice and/or lack of security equipment."
Moving to the second step of the analysis, the question
is whether plaintiffs have rebutted the presumption that the
government's exercise of discretion was "policy-driven -- that is,
. . . fueled by 'variables about which reasonable persons can
differ.'" Mahon, 742 F.3d at 16 (quoting Fothergill, 566 F.3d at
253). Unfortunately for plaintiffs, they labor under the
misapprehension that it is an open question who should bear the
burden of showing that the government's discretionary conduct is
policy-driven. Proceeding on this erroneous understanding, they
do not attempt to rebut the presumption that the government's
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conduct was grounded in policy, and instead ask us to hold that
"the burden of establishing the regulatory policy should rest on
the government," and that "the government has failed to articulate
how" the Forest Service's conduct "involved a judgment grounded in
regulatory policy."* But, as noted above, this argument runs
contrary to established precedent. See, e.g., Bolduc v. United
States, 402 F.3d 50, 62 (1st Cir. 2005) ("[T]he government benefits
from the presumption that a supervisor's discretionary acts are
grounded in policy. It is the plaintiff's burden to rebut this
presumption and demonstrate that particular discretionary conduct
is not susceptible to policy-related judgments." (citations
omitted)).
Even if plaintiffs had properly recognized that it was
their burden to show that the Forest Service's discretionary
decisions were not grounded in policy, it is unlikely that they
could have done so. Our opinions in Mahon and Shansky v. United
States, 164 F.3d 688 (1st Cir. 1999), leave little doubt that such
decisions involve policy tradeoffs. In Mahon, we considered the
National Park Service's choice of whether to raise the height of
the railings on the second-story portico of a 19th-century mansion
*The government contends that plaintiffs may not make this
argument because they failed to raise it below. See Rivera-Díaz
v. Humana Ins. of P.R., Inc., 748 F.3d 387, 391 (1st Cir. 2014).
We need not address this contention because the argument fails in
any event.
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preserved as a national historic site, and held that the balance
of "'efficiency, safety, aesthetics, and cost'" inherent in that
choice was "the stuff of policy analysis." 742 F.3d at 16 (quoting
Fothergill, 566 F.3d at 253). In Shansky, we considered the lack
of handrails and warning signs at a historic building and held
that "the government's ultimate policy justification is that
forgoing handrails and warning signs at the Northern Exit was the
product of a broader judgment call that favored aesthetics over
safety. Aesthetic considerations, including decisions to preserve
the historical accuracy of national landmarks, constitute
legitimate policy concerns." 164 F.3d at 693.
Cases from our sister circuits reinforce our conclusion
that the tradeoffs between safety and aesthetics involved in
placing guardrails or signs in scenic wilderness areas are matters
of policy. See Zumwalt v. United States, 928 F.2d 951, 955 (10th
Cir. 1991) ("[T]he absence of warning signs was part of the overall
policy decision to maintain the [Balconies Cave] Trail in its
wilderness state."); Bowman v. United States, 820 F.2d 1393, 1393,
1395 (4th Cir. 1987) (holding that the decision not to install a
guardrail on the Blue Ridge Parkway, a highway "intended" for
"driving and sight-seeing" on the way to "scenic recreational and
wilderness areas," was "the result of a policy judgment").
Affirmed.
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