Bolt v. United States ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL BOLT,  No. 06-35993
Plaintiff-Appellant, D.C. No.
v.  CV-02-00021-F-
UNITED STATES OF AMERICA, RRB
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
August 10, 2007—Anchorage, Alaska
Filed December 3, 2007
Before: J. Clifford Wallace, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Concurrence by Judge Wallace
15599
15602 BOLT v. UNITED STATES
COUNSEL
Robert A. Sparks, Law Office of Robert A. Sparks, Fairbanks,
Alaska, for the appellant.
Eric J. Feigin, Department of Justice, Civil Division, Wash-
ington, D.C., for the appellee.
OPINION
PAEZ, Circuit Judge:
After Carol Bolt fell on snow and ice in the common park-
ing area of the U.S. Army apartment complex where she
BOLT v. UNITED STATES 15603
lived, in Fort Wainwright, Alaska, she brought a negligence
claim against the United States pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346. The district court
held that the discretionary function exception to the FTCA’s
grant of jurisdiction, see § 2680(a), did not apply because
Army policies set forth specific and mandatory rules for snow
and ice removal from parking areas. It granted the govern-
ment’s motion for summary judgment, however, concluding
that the Army was similar to a municipality and therefore, in
light of Hale v. City of Anchorage, 389 P.2d 434 (Alaska
1964), not liable for injuries due to natural accumulations of
snow and ice.
We affirm in part and reverse in part and remand for further
proceedings. We affirm the district court’s jurisdictional rul-
ing that the FTCA’s discretionary function exception does not
apply, but we reverse the grant of summary judgment pursu-
ant to Hale because the relevant question here is whether a
private landlord, not a municipality, would be liable for negli-
gence under similar circumstances. Lastly, we deny Bolt’s
request for reassignment to a different district court judge on
remand.
I.
In April 1999, Bolt slipped on snow and ice near a dump-
ster in a public parking area of her apartment complex, which
is located on the Fort Wainwright military base. As a result
of the accident Bolt suffered a broken ankle. Because Bolt
was pregnant at the time of the fall, she underwent necessary
surgery on her ankle without general anesthesia. Despite the
surgery, her ankle never completely healed and poses a per-
manent disability.
Bolt brought a civil suit against the United States in the
United States District Court for the District of Alaska, alleg-
ing negligence under 28 U.S.C. § 1346 and seeking money
damages. The district court concluded that it had jurisdiction
15604 BOLT v. UNITED STATES
over her claim but granted the government’s motion for sum-
mary judgment, relying on a 1964 case by the Alaska
Supreme Court, which held that municipalities are “not liable
for injuries sustained by persons due to ice and snow on side-
walks.” Hale, 389 P.2d at 437. Bolt timely appealed.
II.
As we will explain, the district court correctly exercised
jurisdiction over Bolt’s claim under 28 U.S.C. § 1346(b); we
have jurisdiction over her timely appeal under § 1291. We
review de novo a district court’s grant of summary judgment.
Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th
Cir. 2001).
III.
[1] Section 1346(b) establishes federal jurisdiction over
civil suits for money damages against the United States:
for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or employment,
under circumstances where the United States, if a
private person, would be liable to the claimant in
accordance with the law of the place where the act
or omission occurred.
“Even when the injury occurs on federal property, the finding
of negligence must be based upon state law.” Lutz v. United
States, 685 F.2d 1178, 1184 (9th Cir. 1982). As the party
seeking federal jurisdiction, Bolt must therefore demonstrate
that Alaska law would recognize a cause of action in negli-
gence against a private individual for like conduct.
[2] Alaska imposes a statutory duty on civilian landlords to
“keep all common areas of the premises in a clean and safe
BOLT v. UNITED STATES 15605
condition,” Alaska Stat. § 34.03.100(a)(2), a duty that
includes an obligation to remove snow and ice, see Coburn v.
Burton, 790 P.2d 1355, 1358 (Alaska 1990) (applying Alaska
Stat. § 34.03.100(a)(2)). Pursuant to § 2674, the government
is liable for its employees’ negligence “in the same manner
and to the same extent as a private individual under like cir-
cumstances.” Because an Alaska landlord would be liable to
a private individual under like circumstances, Bolt adequately
alleged a claim under the FTCA based on the Army’s failure
to clear the common parking area of snow and ice.
It is immaterial to this jurisdictional analysis that the
Army’s Snow Removal Policy is more specific than the anal-
ogous state law duty. See Indian Towing Co. v. United States,
350 U.S. 61, 67 (1955) (rejecting argument that FTCA liabil-
ity is predicated on “the presence of identical private activi-
ty”); Lutz, 685 F.2d at 1183-85 (finding “a state law duty
enforceable under the FTCA,” where the federal regulation at
issue was more specific than the state law duty). As we
explained in Lutz: “The federal statute or regulation under
which the employee acted only becomes pertinent when a
state law duty is found to exist. The federal statute or regula-
tion may then provide the standard for reasonable care in
exercising the state law duty.” 685 F.3d at 1184. Here, Alaska
law imposes a duty on private landlords to keep common
areas clear of snow and ice for the safety of tenants. Pursuant
to the Army’s Snow Removal Policy, the standard of reason-
able care in exercising that state law duty was to remove snow
and ice from Family Housing Parking Areas once per year, in
late February or March.
The government argues, however, that Bolt’s claim falls
under the discretionary function exception to § 1346’s waiver
of sovereign immunity and that the district court therefore
improperly exercised jurisdiction.
[3] Section 2680(a) provides that no liability shall lie for
claims “based upon the exercise or performance or the failure
15606 BOLT v. UNITED STATES
to exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government.”
Pursuant to the two-prong test announced in United States v.
Gaubert, 499 U.S. 315 (1991), to determine the applicability
of this exception:
we ask whether the alleged wrongful conduct vio-
lated a specific and mandatory regulation or statute.
If so, the conduct is outside the realm of discretion.
If there is no mandatory regulation or statute
involved, we then ask whether the conduct was sus-
ceptible to being based upon social, economic, or
political policy.
Bibeau v. Pac. Nw. Research Found., Inc., 339 F.3d 942, 945
(9th Cir. 2003) (citations omitted). “The government bears the
burden of proving that the discretionary function applies.”
GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th
Cir. 2002). It has failed to do so here.
A.
The Gaubert test’s first prong asks whether the alleged
conduct “violated a specific and mandatory regulation or stat-
ute.” Bibeau, 339 F.3d at 945.
The Army’s Snow Removal Policy requires snow removal
from family housing parking areas “once per year in late Feb-
ruary or March.” Its 1998-99 Housing Handbook additionally
imposed specific duties on the Senior Occupant, Sergeant
Khan, to “insure all . . . common areas are free of trash, snow
and ice” and to report conditions beyond his capability to han-
dle to the Mayor of the complex.
The district court correctly concluded that these require-
ments were “specific and mandatory” such that the discretion-
ary function exception did not apply. See Gaubert, 499 U.S.
at 322 (rejecting application of the exception when the “fed-
BOLT v. UNITED STATES 15607
eral statute, regulation, or policy specifically prescribes a
course of action for an employee to follow, because the
employee has no rightful option but to adhere to the directive”
(internal quotation marks omitted)); Summers v. United
States, 905 F.2d 1212, 1214 (9th Cir. 1990) (explaining that
a government official’s failure to take a required action
“would not be covered under the FTCA’s discretionary func-
tion exception to liability”).
The fact that clearing snow and ice from Family Housing
Parking Areas ranks fifth in the Snow Removal Policy’s
sequential priority system for snow removal operations does
not render the obligation to perform this removal once a year,
by the end of March, discretionary. While snow and ice
removal from some other areas takes precedence over Family
Housing Parking Areas, nothing in the Snow Removal Policy
authorizes the Army not to meet its yearly deadline to clear
such areas “once per year in late February or March.” At
most, the sequential priority system—including a provision
that this system “is subject to change during emergency
situations”—gives the Army discretion to change dates within
the expressly mandated February to March time-frame. Nor
does the “Special Notice” set forth later in the Policy that
“[a]reas in which vehicles have not been removed will be
bypassed and moved to bottom of the list” give the Army dis-
cretion not to clear snow from these areas until after the dead-
line.1 See Navarette v. United States, 500 F.3d 914, 917-18
(9th Cir. 2007) (concluding that Army’s obligation to “prop-
erly mark[ ] or fence[ ]” dangerous conditions was mandatory
and explaining that it “retained discretion as to how to mark
1
Even if the Snow Removal Policy did give the Army discretion to clear
snow after March under certain circumstances, the Army has not alleged
that it faced any of these circumstances here. Cf. GATX/Airlog Co., 286
F.3d at 1174 (imposing burden of proving the discretionary function
exception on the government); O’Toole v. United States, 295 F.3d 1029,
1032 (9th Cir. 2002) (“All of the factual allegations in the plaintiff’s com-
plaint are to be taken as true in reviewing a discretionary function excep-
tion dismissal under the FTCA.”).
15608 BOLT v. UNITED STATES
or fence drop-offs, but that does not mean it retained discre-
tion whether to do so”); Soldano v. United States, 453 F.3d
1140, 1150 (9th Cir. 2006) (holding that flexibility in Park
Service’s standards for establishing speed limits did not mean
that “the Standards’ basic, scientific safety specifications may
be disregarded”).
[4] In sum, the Snow Removal Policy expressly imposes a
specific and mandatory duty to clear Family Housing Parking
Areas of snow and ice once a year, before the end of March.
The Army has therefore failed its burden under the first Gau-
bert prong.
B.
Even if we were to conclude that the Snow Removal Policy
allowed the Army some discretion in deciding when to
remove snow from Family Housing Parking Areas and how
to prioritize that duty, under the second Gaubert prong we
would nonetheless conclude that such discretion “is [not] the
type of decision-making that the discretionary function was
designed to protect.” Conrad v. United States, 447 F.3d 760,
765 (9th Cir. 2006).
“The purpose of the [discretionary function] exception is
‘to prevent judicial “second-guessing” of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.’ ”
ARA Leisure Servs. v. United States, 831 F.2d 193, 194 (9th
Cir. 1987) (quoting United States v. S.A. Empresa de Viacao
Aerea Rio Grandense, 467 U.S. 797, 814 (1984)); see also
Kennewick Irrigation Dist. v. United States, 880 F.2d 1018,
1023 (9th Cir. 1989) (“[T]he discretionary function exception
was aimed particularly at the government’s actions in its role
as a regulator.” (internal quotation marks omitted)). At this
second step, it is therefore “insufficient for the government to
show merely that some choice was involved in the decision-
making process. The balancing of policy considerations is a
BOLT v. UNITED STATES 15609
necessary prerequisite.” ARA Leisure Servs., 831 F.2d at 195(alterations and internal quotation marks omitted).
[5] The government proffers two policy considerations, nei-
ther of which supports application of the exception. It first
argues that the Army considers its limited financial resources
in making snow removal decisions. In enacting § 2680, how-
ever, Congress did not intend to protect decision-making
based on budgetary constraints. See O’Toole, 295 F.3d at
1035-36; ARA Leisure Servs., 831 F.3d at 196.
[6] The government’s second policy rationale—that the
Army considers its policy of promoting self-help and respon-
sibility among resident homeowners in making snow removal
decisions—likewise fails. The Army chose, in drafting the
Snow Removal Policy, to assign significant responsibility for
snow and ice removal to residents. It did not, however,
include the promotion of self-help among residents as a factor
warranting the exercise of discretion in deciding when to con-
duct snow and ice removal from Family Housing Parking
Areas. Assuming that the Snow Removal Policy allows the
Army some discretion in deciding when to clear snow and ice
from these areas, under the Policy’s express terms the Army
may consider only weather, emergency situations, and
whether parked cars would block removal in exercising this
discretion. Whereas it also could have included the promotion
of self-help and responsibility as an additional factor authoriz-
ing a discretionary decision to postpone snow and ice
removal, it did not do so. “[T]he design of a course of govern-
mental action is shielded by the discretionary function excep-
tion, whereas the implementation of that course of action is
not.” Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir.
2005). Because the Army did not design its Snow Removal
Policy so as to allow for consideration of resident self-help in
deciding when to conduct the yearly snow and ice removal,
it cannot shield its failure to implement its own requirement
under this rationale.
15610 BOLT v. UNITED STATES
[7] We have also previously explained that “maintenance
work is not the kind of regulatory activity” to which the
Supreme Court envisioned the discretionary function excep-
tion applying. ARA Leisure Servs., 831 F.2d at 195 (rejecting
government’s characterization of its failure to maintain a seg-
ment of a road in a national park as a policy-grounded deci-
sion); see also id. (noting an absence of any “clear link
between Park Service road policies and the condition of Thor-
oughfare Pass”); O’Toole, 295 F.3d at 1036 (holding that
Bureau of Indian Affairs’ failure to repair an irrigation system
“involve[d] a mundane question of routine ditch mainte-
nance” and was “not the sort of public policy issue that the
discretionary function exception is designed to protect”).
“The danger that the discretionary function exception will
swallow the FTCA is especially great where the government
takes on the role of a private landowner,” O’Toole, 295 F.3d
at 1037, and we are mindful of our duty “to effectuate Con-
gress’s intent to compensate individuals harmed by govern-
ment negligence[ by liberally construing] the FTCA, as a
remedial statute” and by reading “its exceptions . . . narrow-
ly,” id.[8] Not only does clearing snow and ice from parking lots
constitute a matter of routine maintenance beyond the scope
of the discretionary function exception, but the maintenance
at issue here “involves safety considerations under an estab-
lished policy” rather than “the balancing of competing public
policy considerations.” ARA Leisure Servs., 831 F.2d at 195(alteration and internal quotation marks omitted). The Army’s
failure to remove snow and ice from the Family Housing
Parking Area where Bolt slipped obviously implicated resi-
dents’ safety—indeed, Bolt presented evidence that several
other residents had slipped on “black ice” in the same area
during the spring of 1999—rendering inapplicable any public
policy consideration to which the Army might now point. In
these circumstances “[i]mposing tort liability will not lead to
judicial second-guessing of [the Army’s] policy decisions.”
ARA Leisure Servs., 831 F.2d at 196; see also Seyler v. United
BOLT v. UNITED STATES 15611
States, 832 F.2d 120, 123 (9th Cir. 1987) (“[W]e doubt that
any decision not to provide adequate [warning] signs would
be of the nature and quality that Congress intended to shield
from tort liability.”). Here, as in ARA Leisure Services, “the
rationale for the [discretionary function] exception falls
away.” 831 F.3d at 195.
IV.
Having concluded that the district court properly exercised
jurisdiction over Bolt’s claim, we next consider whether it
erred in granting summary judgment to the government based
on its conclusion that the Army did not owe her a duty to
remove snow and ice from the area where she slipped.
[9] As discussed above, Alaska Statute section
34.03.100(a)(2) imposes a duty on private landlords to “keep
all common areas of the premises in a clean and safe condi-
tion,” including an obligation to remove snow and ice. See
Coburn, 790 P.2d at 1358. Because it is undisputed that the
Army failed to meet this duty, summary judgment in the gov-
ernment’s favor was inappropriate.
[10] In concluding to the contrary, the district court incor-
rectly relied on Hale, which holds that municipalities are not
liable for “injuries sustained by persons due to ice and snow
on sidewalks.” 389 P.3d at 437. The FTCA creates no excep-
tions for government conduct similar to that undertaken by
municipalities. The relevant question for purposes of Bolt’s
claim is whether a private landlord would owe tenants a duty
to keep common areas free of snow and ice. 28 U.S.C.
§ 2674; Lutz, 685 F.2d at 1184. Under Alaska law the Army
owed Bolt a duty to remove snow and ice from common areas
such as the Parking Area where she slipped, and Bolt has
alleged that the Army breached this duty in failing to meet the
standard of care prescribed by the Snow Removal policy.
Whether the Army did in fact breach its duty is a question of
fact to be determined on remand, along with the elements of
15612 BOLT v. UNITED STATES
causation and harm. See Lyons v. Midnight Sun Transp.
Servs., Inc., 928 P.2d 1202, 1204 (Alaska 1996) (enumerating
elements of negligence claim under Alaska law).
V.
[11] Finally, we deny Bolt’s request for reassignment to a
different district judge on remand, pursuant to § 2106. In gen-
eral, when presented with such a request we consider:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously-
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.
Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431
F.3d 353, 372-73 (9th Cir. 2005) (internal quotation marks
omitted). Although the district judge incorrectly applied Hale,
we have no reason to think that on remand he will have diffi-
culty applying the correct law to Bolt’s negligence claim. Nor
do these circumstances suggest that reassignment is “advis-
able to preserve the appearance of justice.”
VI.
Bolt properly alleged a claim for negligence under the
FTCA based on the Army’s failure to meet its duty to conduct
its yearly snow and ice removal from the parking area where
she slipped prior to April 1999. This omission does not fall
with the discretionary function exception to the Act. Because
a similarly situated private landlord would be liable under
similar circumstances, we must reverse the summary judg-
BOLT v. UNITED STATES 15613
ment and remand for further proceedings consistent with this
opinion.
AFFIRMED in part; REVERSED in part;
REMANDED.
WALLACE, Circuit Judge, concurring:
I concur in the result reached by the majority. Section
2680(a) of the FTCA provides an exception for claims based
on the “exercise or performance or . . . failure to exercise or
perform a discretionary function or duty.” Under United
States v. Gaubert, 499 U.S. 315 (1991), we first ask “whether
the alleged wrongful conduct violated a specific and manda-
tory regulation or statute.” Bibeau v. Pac. Nw. Research
Found., Inc., 339 F.3d 942, 945 (9th Cir. 2003) (citing Gau-
bert, 499 U.S. at 324-25). If the answer is yes, our analysis
ends, and the discretionary exception does not apply. Id.Bolt alleges that Sergeant Khan breached his duty to ensure
that the residents removed the snow from the lot as well as his
duty to report the lot’s hazardous conditions to the appropriate
authorities.
The Residents’ Handbook charges Sergeant Khan, as
Senior Occupant, with responsibility “for the supervision, as
necessary, of resident policing and appearance.” This includes
“timely removal of snow and ice from steps, porches, drive-
ways and sidewalks.” Although the Handbook makes resi-
dents responsible “for the removal (within 24 hours) of snow
and ice from steps, porches, driveways, mailboxes, and side-
walks,” the Senior Occupant must ensure “all residents com-
ply with th[is] instruction[ ].” According to the Handbook,
such “[c]oordination of building residents is necessary to
[e]nsure all adjoining and common areas are free of trash,
snow and ice.” This shows a “specific and mandatory” duty,
15614 BOLT v. UNITED STATES
not a discretionary one. See Kennewick Irrigation Dist. v.
United States, 880 F.2d 1018, 1027 (9th Cir. 1989) (as
amended).
Similarly, Sergeant Khan had a non-discretionary duty to
report hazardous conditions in the lot to the appropriate
authorities to the extent he was unable to remedy them. The
Handbook directs that the Senior Occupant “need[s] to report”
when “deficiencies occur or conditions exist that are beyond
[his] authority or capability to handle.”
Under the test outlined in Bibeau, this is all we must do to
decide the issue of jurisdiction. Once we determine that the
alleged conduct violated a specific or mandatory regulation,
that conduct automatically falls outside the realm of the dis-
cretionary exception and we need not proceed with any other
analysis. Thus, I conclude the majority’s remaining jurisdic-
tion analysis is unnecessary.
As there is jurisdiction, I agree with the majority that under
Alaska law, the landlord (government) had a duty to “keep all
common areas of the premises in a clean and safe condition,”
Alaska Stat. § 34.03.100(a)(2), a duty that included removing
snow and ice. See Coburn v. Burton, 790 P.2d 1355, 1358
(Alaska 1990).
Thus the summary judgment of the district court should be
reversed.