Daniel Kim v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL KIM; GRACE KIM; HANNAH No. 17-17432
KIM, a minor through her guardian
Grace Kim; FRANCIS S. LEE; VIVIAN D.C. No.
LEE, 1:16-cv-01656-
Plaintiffs-Appellants, LJO-SKO
v.
OPINION
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief District Judge, Presiding
Argued and Submitted February 13, 2019
San Francisco, California
Filed October 10, 2019
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by
Judge Rawlinson
2 KIM V. UNITED STATES
SUMMARY *
Federal Tort Claims Act
The panel affirmed the district court’s dismissal of the
plaintiffs’ claim for fraudulent concealment, and reversed
the dismissal of the negligence-based claims, in a Federal
Tort Claims Act (“FTCA”) suit against federal officials for
their failure to prevent the deaths of two boys who were
killed when a tree limb fell onto their tent in Yosemite
National Park.
The FTCA’s discretionary function exception bars
claims based upon the federal officials’ “exercise or
performance or the failure to exercise or perform a
discretionary function or duty.” 28 U.S.C. § 2680(a).
The plaintiff families first argued that the district court
erred in finding their negligence-based causes of action to be
barred by the discretionary function exception to the FTCA.
The panel held that regardless of whether the discretionary
function exception might apply to some hypothetical
decision not to inspect the campground, the panel had to
decide whether Park officials were shielded from liability for
their conduct in actually inspecting that area once they
undertook to do so. The panel further held that once Park
officials undertook to evaluate the danger of the trees in the
campground, they were required to do so according to the
technical criteria set forth in the Park’s official policies.
Yosemite Park Directive No. 25 set forth the Park’s “Hazard
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KIM V. UNITED STATES 3
Tree Management” program that specified how park
officials were to evaluate the risk imposed by trees they
inspected. An appendix to the directive detailed a Seven-
Point system for rating tree dangers. The panel held that the
officials in evaluating the tree under their Seven-Point
system were not exempt from the scope of the FTCA.
The government contended that the even if it knew or
should have known about the danger posed by the tree, the
plaintiffs’ negligence-based claims were still barred because
Park officials had significant discretion regarding what to do
in response to that danger. The panel held that as with the
Park’s duty to take some action to abate a high-risk tree,
fulfilling the Park’s duty to inform visitors somehow about
that risk did not involve considerations of public policy.
Accordingly, the discretionary function exception to the
FTCA did not bar the plaintiffs’ claim that the government
negligently failed to give Park visitors any warning about the
tree.
Plaintiffs argued that the district court erred in
dismissing their claim that Park officials fraudulently
concealed information about the dangers posed by the tree in
“order to continue charging camping fees” to visitors. The
district court found that this fraudulent concealment claim
was barred by the FTCA’s exception for claims “arising out
of . . . misrepresentation [or] deceit.” 28 U.S.C. § 2680(h).
The panel held that the fraudulent concealment claim here
was not one that involved misrepresentations only
collaterally. The panel concluded that the district court did
not err in dismissing the claim under the FTCA’s
misrepresentation exception.
Judge Rawlinson concurred in part and dissented in part.
Judge Rawlinson agreed with the majority that the district
4 KIM V. UNITED STATES
court properly dismissed the fraudulent concealment claim,
but disagreed with the majority’s conclusion that the district
court erred in dismissing the negligence-based claims under
the discretionary function exception to the FTCA. Judge
Rawlinson wrote that the majority erred in concluding that
the Hazard Tree Management program created a mandatory
duty on the part of officials responsible for managing
Yosemite National Park.
COUNSEL
Martin N. Buchanan (argued), Law Office of Martin N.
Buchanan APC, San Diego, California; Thomas V. Girardi
and Kelly Winter, Girardi Keese, Los Angeles, California;
for Plaintiff-Appellants.
Philip A. Scarborough (argued), Assistant United States
Attorney; McGregor Scott, United States Attorney; United
States Attorney’s Office, Sacramento, California; for
Defendant-Appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the Federal Tort Claims Act
bars a suit against federal officials for their failure to prevent
the deaths of two boys who were killed when a tree limb fell
onto their tent in Yosemite National Park.
KIM V. UNITED STATES 5
I
On August 14, 2015, Daniel and Grace Kim, their
daughter Hannah, their teenaged son Dragon, and their son’s
friend Justin Lee were camping in Campsite 29 of the Upper
Pines Campground in Yosemite National Park (“Yosemite”
or the “Park”). Around 5:00 in the morning, a limb from a
large oak tree overhanging the campsite broke and fell on the
tent where the two boys were sleeping, killing them. The
Kims and Justin Lee’s parents (collectively, “the families”)
sued the United States under the Federal Tort Claims Act
(“FTCA”), alleging that National Park Service (“NPS”)
officials were responsible for the accident.
The families’ original complaint raised two negligence-
based causes of action: wrongful death and negligent
infliction of emotional distress. The complaint alleged that
NPS officials knew or should have known of the danger
posed by the tree, but negligently failed to abate that danger
and to warn campers about it. The United States
successfully moved to dismiss the complaint under the
FTCA’s discretionary function exception, which bars tort
claims against the United States that are “based upon the
[government’s] exercise or performance or the failure to
exercise or perform a discretionary function or duty.”
28 U.S.C. § 2680(a). After reviewing Yosemite’s policies
regarding tree maintenance, the district court found that
decisions regarding “how to evaluate and respond to tree
hazards” were subject to the discretion of Park officials. The
court dismissed the complaint but “in an abundance of
caution” granted the families leave to amend.
The families filed an amended complaint that repeated
the two original causes of action and added a third: that Park
officials knew and fraudulently concealed information about
the danger posed by the tree so that campers would continue
6 KIM V. UNITED STATES
to patronize the campground. The district court again
dismissed the complaint. First, the court adopted its analysis
from its previous order dismissing the original complaint and
concluded that the two negligence-based causes of action
remained barred by the discretionary function exception.
Second, the court concluded that, although the new
fraudulent-concealment claim was not barred by the
discretionary function exception, it was barred by the
FTCA’s separate exception for “[a]ny claim arising out of
. . . misrepresentation [or] deceit” by the government. 28
U.S.C. § 2680(h). The court did not afford the families an
opportunity to amend the complaint a second time.
The families timely appealed, and they argue that the
district court erred in dismissing each of their causes of
action.
II
The families first argue that the district court erred in
finding their negligence-based causes of action to be barred
by the discretionary function exception to the FTCA.
The FTCA generally authorizes private parties to sue the
United States for the tortious conduct of federal officials, but
the discretionary function exception bars suit under the
FTCA for “[a]ny claim . . . based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty . . . whether or not the
discretion involved be abused.” 28 U.S.C. § 2680(a). The
point of the exception is to “prevent judicial second-guessing
of legislative and administrative decisions grounded in
social, economic, and political policy.” Berkovitz v. United
States, 486 U.S. 531, 536–37 (1988) (internal quotation
marks omitted). The government bears the burden of
KIM V. UNITED STATES 7
showing that the exception applies. See Terbush v. United
States, 516 F.3d 1125, 1128 (9th Cir. 2008).
We evaluate the exception in two steps. First, “we must
determine whether the challenged actions involve an
element of judgment or choice.” Id. at 1129 (internal
quotation marks omitted). If “a statute or policy direct[s]
mandatory and specific action, the inquiry comes to an end
because there can be no element of discretion when an
employee has no rightful option but to adhere to the
directive.” Id. (internal quotation marks omitted). Second,
if the actions do involve an element of judgment, we must
determine “whether that judgment is of the kind that the
discretionary function exception was designed to shield,
namely, only governmental actions and decisions based on
considerations of public policy.” Id. (internal quotation
marks omitted). The relevant choice must be susceptible to
some consideration of “social, economic, [or] political
policy.” Chadd v. United States, 794 F.3d 1104, 1109 (9th
Cir. 2015) (internal quotation marks omitted).
The actions relevant to the families’ claims are (1) Park
officials’ alleged failure to identify the danger presented by
the tree that collapsed and (2) their alleged failure to abate
and to provide warnings about such danger. The families
urge that such actions are not subject to policy-based
discretion of the sort covered by the exception.
A
The government contends, and the district court found,
that the families’ claims fail at the outset because the
discretionary function exception bars any claim based upon
Park officials’ alleged failure to discover a specific tree
hazard in the Park. The government asserts that Park
officials maintain significant discretion over how best to
8 KIM V. UNITED STATES
inspect trees in Yosemite, and thus they cannot be held liable
for failing to identify the danger posed by the tree in
question.
1
The government first argues that Park officials exercised
considerable discretion over even whether to inspect the tree
in question for hazards. Applicable Park policies do not
require any particular trees to be inspected but state only that
surveys of trees should occur in developed areas of the Park
“on a regular periodic basis.” But we need not—and we do
not—decide whether the government is right about the
nature of its supposed discretion over which areas to inspect,
because any such discretion is beside the point in this case.
The government admits that in each of the two years prior to
the accident the “the Upper Pines Campground was
inspected and hundreds of hazard trees were identified and
abated, [though] [t]hose inspections did not identify the
subject tree as hazardous.” Regardless of whether the
discretionary function exception might apply to some
hypothetical decision not to inspect the campground, here
we must decide whether Park officials are shielded from
liability for their conduct in actually inspecting that area
once they undertook to do so. See Myers v. United States,
652 F.3d 1021, 1032–33 (9th Cir. 2011) (holding that once
the choice to pursue a project is made the court “look[s] at
the nature of the actions in conducting the . . . project, not
the decision to undertake” it (emphasis added)).
2
The government next argues that, even when Park
officials do inspect a tree, their determination of the extent
of the hazard posed by such tree is shielded by the
discretionary function exception.
KIM V. UNITED STATES 9
Once they undertook to inspect trees in the campground,
Park officials were required to do so in accordance with their
established policies. See id. Yosemite Park Directive No.
25 sets forth the Park’s “Hazard Tree Management” program
and, among other things, it specifies how Park officials are
to evaluate the risk posed by trees they inspect. Directive
No. 25 states that Yosemite “implement[s] the ‘Seven-Point’
(Mills and Russel 1980) system, a professionally recognized,
documented and quantified hazard tree rating system.” An
appendix to the directive details the Seven-Point system,
under which each tree is assigned a “Total Hazard Rating”
(ranging from two to seven) that combines a “Defect Rating”
based on the tree’s potential for physical failure and a
“Target Rating” based on the potential impact in the event
of a failure. The system provides specific criteria for how to
rate each component based on the tree’s visible features and
the nature of the surrounding area. Trees with a total
rating of five or higher are considered “high” risks and,
according to directive, “will require some type of
abatement/mitigation.”
Park officials certainly had substantial discretion in
choosing whether to adopt the Seven-Point system instead of
some other method for evaluating trees. But that decision
was made in Directive No. 25, which must now be
followed. 1 Regardless of the policy considerations that went
into the choice to adopt the system, the implementation of
such system cannot be said to turn on those same
considerations. See Whisnant v. United States, 400 F.3d
1177, 1181 (9th Cir. 2005) (“[W]e have generally held that
the design of a course of governmental action is shielded by
1
None of the dissent’s many references to the general discretion
otherwise granted to Park officials suggest that the officials were free to
ignore Directive No. 25’s explicit requirement to rate trees according to
the Seven-Point system when inspecting them.
10 KIM V. UNITED STATES
the discretionary function exception, whereas the
implementation of that course of action is not.”); Marlys
Bear Med. v. United States, 241 F.3d 1208, 1215 (9th Cir.
2001) (same).
The government insists, however, that even its
implementation of the rating system is shielded by the
discretionary function exception because the system itself
requires officials to consider questions of public policy. See
Whisnant, 400 F.3d at 1182 n.3 (“The implementation of a
government policy is shielded where the implementation
itself implicates policy concerns . . . .”). The government
appears to conflate policy considerations with technical
considerations. “[M]atters of scientific and professional
judgment—particularly judgments concerning safety—are
rarely considered to be susceptible to social, economic, or
political policy.” Id. at 1181; see also Kennewick Irrigation
Dist. v. United States, 880 F.2d 1018, 1031 (9th Cir. 1989)
(“[D]eciding whether to remove unsuitable materials during
construction [of a canal] was based not on policy judgments
but on technical, scientific, engineering considerations.”).
Yet scientific and professional judgment is all the Park’s
rating-system requires. The system directs officials to assign
certain hazard ratings based on a tree’s structural defects and
its likelihood of damaging various Park features. 2 The only
flexibility built into the rating system is to allow officials to
modify the standards to “reflect variations in [tree] species
2
The criteria for determining the Defect Rating relate to the nature
of the tree’s visible decay and damage, such as the presence of dead
limbs, rot, or fungus. The criteria for the Target Rating are even “more
standardized,” and relate to the tree’s proximity to features such as
campgrounds, lodges, residences, trails, roads, and picnic areas.
KIM V. UNITED STATES 11
and environmental factors”—i.e., to accommodate
additional technical considerations.
Certainly, the system requires the careful—perhaps even
difficult—application of specialized knowledge. As the
government points out, the parties have presented competing
experts with opposing views as to what rating should have
been assigned to the tree. So the appropriate evaluation of a
tree under the system is not free from debate. But
technicians, like anyone else, can disagree about their craft.
The mere fact that experts might reach different conclusions
when conducting a technical analysis does not mean that the
analysis somehow turns on questions of public policy. Even
if the Seven-Point system requires officials to make difficult
choices, it still does not ask them to make policy choices and
it does not afford them an opportunity to rate a tree based on
their social, economic, or political views. Indeed, neither the
government nor the dissent has identified even a single
policy-based consideration that might influence the rating
assigned to a tree. 3
In sum, once Park officials undertook to evaluate the
danger of the trees in the campground, they were required to
do so according to the technical criteria set forth in the Park’s
official policies. While it is unclear whether the families will
succeed in showing that officials were actually negligent in
evaluating the tree under the Seven-Point system, such
evaluation is not exempt from the scope of the FTCA. Cf.
3
The dissent essentially ignores the requirement that, to be shielded
by the discretionary function exception, the relevant government action
must be subject to considerations of social, economic, or political policy.
It argues that the hazard rating assigned to a tree is discretionary rather
than mandatory, but it fails to explain how that rating is a choice rooted
in public policy rather than in technical considerations of a tree’s
structural health and its likelihood of causing damage to nearby Park
facilities. See Dissent at 27–28.
12 KIM V. UNITED STATES
Whisnant, 400 F.3d at 1181–83 (“professional and scientific
judgment” regarding how to remediate mold not protected
by the exception); Kennewick Irrigation Dist., 880 F.2d
at 1031 (decision whether to remove hazardous materials
from a construction site based on “sound engineering
practices” not protected by the exception).
3
A final error undermines the district court’s conclusion
that the government cannot be sued for its failure to discover
the danger presented by the tree: the families have separately
alleged that Park officials in fact knew of such danger,
because the tree had similarly broken in the past and had
begun to bow noticeably above the campsite in question.
Even if the district court were correct that the government
could not be held liable for failing to discover the threat of
the tree, that conclusion has no bearing if the government
actually knew of the threat.
The government suggests that this question has already
been answered in its favor. It asserts that the “only evidence
concerning the Park’s actual knowledge shows that it did not
know the tree presented a hazard,” citing records that
indicate the tree in question was not selected for abatement
during 2014 and 2015 surveys of the campground. In its
order dismissing the first complaint, the district court
similarly observed that the families “ha[d] not offered any
evidence that Defendant in fact rated . . . the Subject Tree as
a high or very high hazard.” But, at this point in litigation,
this should hardly be surprising. Although they were
allowed to submit evidence addressing issues raised in the
government’s motion to dismiss, the parties have not yet
conducted discovery. Indeed, the district court denied the
families’ request for limited discovery to unearth evidence
regarding what Park officials knew about the tree.
KIM V. UNITED STATES 13
At this stage, the court “must accept as true the factual
allegations in the complaint,” including the allegation that
the government knew about the risks posed by the tree.
Terbush, 516 F.3d at 1128. Curiously, in its order dismissing
the second complaint, the district court appears to have
assumed that (as alleged) the government knew about the
danger posed by the tree. In fact, the court found that the
families’ fraudulent concealment was not barred by the
discretionary function exception based largely on this
assumption. The court found that the exception did not
apply because, if the government knew of the danger, then
its alleged decision to conceal such information from
campers could not have been based in considerations of
public policy. This same assumption should have applied
with respect to the families’ negligence-based claims, as
well. 4
B
Even if it knew or should have known about the danger
posed by the tree, the government contends that the families’
negligence-based claims are still barred because Park
officials had significant discretion regarding what to do in
response to that danger. The families counter by arguing
that, while Park officials had discretion regarding what to do
4
Contrary to the dissent’s suggestion, we may not simply disregard
the complaint’s allegation that the government knew of the danger posed
by the tree. See Dissent at 28–29. Certainly, we need not credit “legal
conclusions” asserted in a complaint, but we must “assume [the]
veracity” of the complaint’s “well-pleaded factual allegations.” Ashcroft
v. Iqbal, 556 U.S. 662, 678–79 (2009) (emphasis added). The
complaint’s allegations that Park officials were actually aware of the
danger posed by the tree because they knew that it had broken in the past
and because the tree’s remaining limb had begun to bow visibly are not
the sort of “[t]hreadbare recitals of the elements of a cause of action” that
we may disregard at this stage of litigation. Id. at 678.
14 KIM V. UNITED STATES
in response to the danger, applicable policies required
officials to do something, including at least to warn campers.
They argue that the government’s failure to do anything at
all to mitigate the risk was not subject to the sort of policy
choices protected by the discretionary function exception.
1
Once again, the extent and nature of Park officials’
discretion over how to address hazardous trees is defined by
Yosemite Directive No. 25. As mentioned, the families
allege that the tree should have been rated a five or a six
under the Park’s Seven-Point system—a “high” risk
according to Directive No. 25. According to the directive,
trees rated “high or above require a management action,”
and “will require some type of abatement/mitigation.”
Though “some type of” mitigation is required, the directive
lists a wide range of specific mitigation efforts that NPS
officials may undertake—from pruning or repairing the tree
to removing it or closing the surrounding area. Accordingly,
the government insists that its officials maintained
significant policy-based discretion in deciding how best to
abate the hazard posed by the tree. This is likely true, and
the families may not be able to pursue a claim challenging
the government’s choice of one mitigation approach over
some other. See, e.g., Chadd, 794 F.3d at 1113–14 (holding
that discretionary function exception shielded NPS officials’
decision to implement “non-lethal management options” for
an aggressive goat, rather than to kill the goat).
But the government’s argument ignores the families’
contention that Park officials failed to satisfy their baseline
duty to do something about the tree. Even if the directive
gives officials broad leeway in deciding how to abate the
danger posed by a high-risk tree, the directive still instructs
that they do something toward that goal. But the families
KIM V. UNITED STATES 15
contend—and at this point we assume—the government did
nothing at all. Given the requirements of Yosemite Directive
No. 25, this fundamental decision of whether to act in any
way to abate the hazard remains subject to challenge under
the FTCA. See Navarette v. United States, 500 F.3d 914,
917–18 (9th Cir. 2007) (“[T]he Army Corps certainly
retained discretion as to how to mark fence drop offs, but that
does not mean it retained discretion whether to do so.”).
2
The families further claim that Park officials were
negligent in failing to warn visitors that the tree was
dangerous. Once again, Directive No. 25 makes clear that
officials’ duty to warn visitors of known dangers is
mandatory:
The park will provide reasonable public
information . . . about the known potential for
risk of exposure in the park to hazard tree
conditions. The intent is to make the public
aware of potential tree hazards that are
known to exist in developed areas within the
park or sections of the park. This
information/public outreach should be on a
level commensurate with other public safety
information . . . .
As for the families’ failure-to-warn claim, the
government has not identified even a single policy-based
consideration that might stop Park officials from notifying
visitors about known tree hazards. In its brief, the
government simply asserts, without elaboration, that the
decision “whether to post a warning” is “subject to policy
considerations.” The only source cited in support is a
provision in Directive No. 25, which states that, prior to
16 KIM V. UNITED STATES
taking any action to abate tree hazards, “a review of resource
issues should be made considering the various
environmental laws and the resources potentially impacted.”
But this statement has nothing to do with posting warnings.
It specifically applies to the government’s consideration of
how best to abate the hazard itself, for example by pruning
or repairing trees or closing endangered areas of the Park.
No similar statement appears following the Directive’s
separate instruction to “provide reasonable public
information” about hazardous tree conditions. Indeed, it
makes little sense (and the government does not attempt to
explain) how the decision simply to inform Park visitors
about known dangers could similarly impact environmental
resources. Cf. Sutton v. Earles, 26 F.3d 903, 910 (9th Cir.
1994) (“A decision not to warn of a specific, known hazard
for which the acting agency is responsible is not the kind of
broader social, economic, or political policy decision that the
discretionary function exception is intended to protect.”). 5
As with the Park’s duty to take some action to abate a
high-risk tree, fulfilling the Park’s duty to inform visitors
somehow about that risk does not involve considerations of
public policy. See Faber v. United States, 56 F.3d 1122,
1125 (9th Cir. 1995) (“[A] failure to warn involves
considerations of safety, not public policy.”); Sutton, 26 F.3d
at 910 (same). Accordingly, the discretionary function
exception does not bar the families’ claim that the
5
When considering whether to dismiss the families’ fraudulent
concealment claim, the district court made a similar observation:
“Defendant has not advanced any argument that the failure to warn, set
apart from the decision not to abate the Subject Tree, involved an
exercise of discretion.” For this very reason, the district court rejected
the government’s argument that the discretionary function exception
barred the fraudulent concealment claim. The same analysis prevents
the exception from applying to the families’ negligence-based failure to
warn claims, as well.
KIM V. UNITED STATES 17
government negligently failed to give Park visitors any
warning about the tree.
III
The families argue that the district court also erred in
dismissing their claim that Park officials fraudulently
concealed information about the dangers posed by the tree
“in order to continue charging camping fees” to visitors.
They allege that if they had been informed of such dangers
during the campsite reservation process, they never would
have camped there.
The district court found that this fraudulent concealment
claim was barred by the FTCA’s exception for claims
“arising out of . . . misrepresentation [or] deceit.” 28 U.S.C.
§ 2680(h). Under such exception, “claims against the United
States for fraud or misrepresentation by a federal officer are
absolutely barred.” Owyhee Grazing Ass’n, Inc. v. Field,
637 F.2d 694, 697 (9th Cir. 1981). It goes without saying
that the families’ fraudulent concealment claim sounds in
fraud or misrepresentation. See Robinson v. Helicopter Co.
v. Dana Corp., 102 P.3d 268, 274 (Cal. 2004) (describing
claim as a species of “fraud and misrepresentation”). The
families contend, however, that the exception does not apply
because their claim seeks damages for personal injury. They
insist that, decades ago, our court limited the exception only
to cases where the “plaintiff is seeking to recover for
economic loss suffered as a result of a commercial decision
the plaintiff made in reliance on a government
misrepresentation.”
Our cases impose no such limitation. The families are
correct that some cases have observed that the exception
primarily applies to claims of economic loss flowing from
commercial transactions. See, e.g., United States v.
18 KIM V. UNITED STATES
Neustadt, 366 U.S. 696, 711 n.26 (1961) (observing that the
torts covered by the exception are “confined very largely to
the invasion of interests of a financial or commercial
character, in the course of business dealings” (internal
quotation marks omitted)); Green v. United States, 629 F.2d
581, 584 (9th Cir. 1980) (“[T]he misrepresentation
exception precludes liability where the plaintiff suffers
economic loss as a result of a commercial decision which
was based on a misrepresentation by [the] government
. . . .”). But such cases do not hold that the exception cannot
apply in other contexts. Indeed, in Green—the principal
case on which the families rely—we explicitly rejected the
notion that the exception applies only to claims for economic
loss. See Green, 629 F.2d at 584 (“[T]he test is not whether
the injury was economic but whether it resulted from a
commercial decision based on a government
misrepresentation.” (quoting Preston v. United States,
596 F.2d 232, 239 (7th Cir. 1979))). More recently, we have
applied the exception even to claims of personal injury
resulting from non-fraudulent failures to warn. See Doe v.
Holy See, 557 F.3d 1066, 1084 n.10 (9th Cir. 2009) (per
curiam); Lawrence v. United States, 340 F.3d 952, 958 (9th
Cir. 2003).
The only case the families cite in which our court refused
to apply the exception to a claim for personal injury is
Ramirez v. United States, 567 F.2d 854 (9th Cir. 1977) (en
banc). In that case, we held that the exception did not bar a
claim of medical malpractice based upon a surgeon’s
negligent failure to warn his patient of certain surgical risks.
Id. at 856. We explained that the exception was reserved for
torts representing a “distinct cause of action” for
misrepresentation or deceit, rather than for claims of
ordinary negligence that might involve “misrepresentation”
in some colloquial sense. See id. (internal quotation marks
KIM V. UNITED STATES 19
omitted). We opined that the exception must not be
interpreted so broadly as to swallow claims by “the victim of
negligent conduct [and] not of an esoteric form of
misrepresentation.” Id. at 857.
The families argue that Ramirez is in tension with later
cases like Doe and Lawrence which applied the exception to
bar claims of ordinary negligence. But no such tension
arises here, because the families’ fraudulent concealment
claim is not one of ordinary negligence (or any negligence at
all). Rather, their claim of fraudulent concealment is indeed
a “distinct cause of action” for deceit and an “esoteric form
of misrepresentation.” Id. at 856–57 (internal quotation
marks omitted). Such claim—that the families detrimentally
relied on the government’s fraudulent misrepresentation in a
commercial transaction—bears the hallmarks of traditional
misrepresentation claims described in Ramirez. And shortly
after Ramirez, in Green, our court relied on a case in which
the Seventh Circuit held that the exception might apply
where a governmental misrepresentation in a commercial
transaction led to personal or property damages. See
Preston, 596 F.2d at 238–39. In that case, the Seventh
Circuit explained that the critical distinction is not the type
of harm but rather whether the cause of action is
“fundamentally grounded on the common law tort of
misrepresentation” or instead “only collaterally involve[s]
misrepresentations.” Id. at 238. The fraudulent concealment
claim here is not one that involves misrepresentations only
collaterally. Even if the families are right that a tension
between Ramirez and later cases like Doe and Lawrence will
need to be resolved at some point, we need not do so now.
The district court did not err in dismissing the fraudulent
concealment claim under the misrepresentation exception.
20 KIM V. UNITED STATES
IV
The district court’s dismissal of the families’ claim for
fraudulent concealment is AFFIRMED, the court’s
dismissal of the negligence-based claims is REVERSED,
and the case is REMANDED for further proceedings. Each
party shall bear its own costs on appeal.
RAWLINSON, Circuit Judge, concurring in part and
dissenting in part:
I agree with the majority that the district court properly
dismissed the fraudulent concealment claim. However, I
disagree with the majority’s conclusion that the district court
erred in dismissing the negligence-based claims under the
discretionary function exception to the Federal Tort Claims
Act.
In my view, the majority goes astray by concluding that
the Hazard Tree Management program created a mandatory
duty on the part of officials responsible for managing
Yosemite National Park. Specifically, the majority relies on
Park Directive # 25 as setting forth the mandated duty. See
Majority Opinion, p.9. But Directive # 25 is replete with
references to the exercise of discretion, which by definition
negates the concept of a mandated duty. See Gonzalez v.
United States, 814 F.3d 1022, 1027 (9th Cir. 2016)
(referencing a “discretionary act” as falling within the
exception); see also Marlys Bear Medicine v. United States,
241 F.3d 1208, 1214 (9th Cir. 2001) (noting that even
limited discretion fits within the discretionary function
exception); Sabow v. United States, 93 F.3d 1445, 1453 (9th
Cir. 1996) (same).
KIM V. UNITED STATES 21
In 2006, the National Park Service (Park Service)
published its Management Policies for management of the
national park system, including Yosemite. In addressing
visitor safety, that policy provides:
The saving of human life will take
precedence over all other management
actions as the Park Service strives to protect
human life and provide for injury-free visits.
The [Park] Service will do this within the
constraints of the 1916 Organic Act. The
primary—and very substantial—constraint
imposed by the Organic Act is that
discretionary management activities may be
undertaken only to the extent that they will
not impair park resources and values.
...
The means by which public safety concerns
are to be addressed is left to the discretion of
superintendents and other decision-makers at
the park level who must work within the
limits of funding and staffing. . . .
The language in this policy is explicitly discretionary. See
Merando v. United States, 517 F.3d 160, 169 (3rd Cir. 2008)
(addressing a prior version of this policy and concluding that
nothing in the policy “mandate[d] how the Government
should locate or deal with hazardous trees.”)
Directive # 25 was promulgated under the auspices of
the Pacific West Region Directive for hazard tree
management (PW-062). That directive contains similar
language of discretion.
22 KIM V. UNITED STATES
The introduction to this regional directive begins with
the acknowledgment that natural hazards, including tree
hazards, are among the potential dangers inherent in the
environment. The directive explains that it “provides
guidance in the management of tree hazards.” (emphasis
added).
The directive encompasses the following additional
discretionary passages (discretionary language emphasized):
• The primary purpose of this Directive is
safety of the visiting public and park
employees, along with conservation of
park resources;
• The management activities identified in
this Directive are to be undertaken to the
fullest extent feasible and consistent with
available resources while still providing
for the safety of park operations;
• The program should address developed
areas as identified by local park
managers;
• The Park Superintendent retains
discretion to administer the program with
available park staff and financial
resources in the context of other legal
requirements and other considerations;
• Surveys/inspections of tree hazards
should be made on a regular periodic
basis; the frequency of surveys in each
developed area should be documented in
the hazard tree plan. Surveys/inspections
KIM V. UNITED STATES 23
should also be made following storms,
fires, or other environmental events;
• A park may consider the knowledge,
experience and judgment of the park’s
field staff in conjunction with the
numerical hazard tree rating system to
determine the appropriate management
response for a species- and target-specific
hazard.
Against this backdrop of national and regional directives
granting discretion to Park Superintendents, the Park
Superintendent for Yosemite promulgated Directive # 25 to
address hazard tree management in Yosemite National Park.
As with the national and regional directives Directive # 25
contains express discretionary provisions, including the
following (discretionary language emphasized):
• This directive provides guidance in the
management of tree hazards and any
other potentially hazardous vegetation;
• The management activities identified in
this directive are undertaken to the fullest
extent feasible and consistent with
available resources while still providing
for the safety of park operations;
• The objective of this directive is to
provide Yosemite with a framework for a
hazard tree program that will minimize
threats to life and property from the
failure of hazard trees within developed
areas, consistent with the [National Park
24 KIM V. UNITED STATES
Service] mission of conserving the park’s
natural and cultural resources;
• The park superintendent retains
discretion to administer the [hazard tree
management] program with available
park staff and financial resources in the
context of other legal requirements and
other considerations;
• A rating system [for hazard tree
assessment] should consider the
following [factors];
• A park may consider the knowledge,
experience and judgment of the park’s
field staff in conjunction with the
numerical hazard tree rating system to
determine the appropriate management
response for a species- and target-specific
hazard;
• The park will provide reasonable public
information . . . about the known potential
for risk of exposure in the park to hazard
tree conditions. The intent is to make the
public aware of potential tree hazards that
are known to exist . . . This
information/public outreach should be on
a level commensurate with other public
safety information;
• Where wilderness or backcountry
campsites or other developments are
designated and assigned by the [National
Park Service], e.g. permitted campsites,
KIM V. UNITED STATES 25
these areas should be identified for
inclusion in the hazard tree management
program, and such sites should be
surveyed and hazards abated/mitigated;
• It is the responsibility of each park
superintendent to determine the need for
and, as appropriate, to develop,
implement, and keep up-to-date a hazard
tree management program;
• The regional director should ensure that
each park has an adequate hazard tree
management program.
Comparable discretionary language is present in the
corollary Vegetation Management Plan for Yosemite:
“Reasonable and prudent measures should be taken to
protect safety and property. Hazardous tree and limb
conditions should be rated and abated to provide a balance
between preservation of park resources and protection of
people and property.” (Emphasis added).
We have consistently held that language of the type used
in these park directives confers discretion, rather than
imposing a mandatory obligation. In Marlys Bear Medicine,
241 F.3d at 1213, we explained that, in determining whether
the discretionary function exception applies we “consider
whether the action is a matter of choice.” (citation omitted).
In other words, if the “ultimate choice is left to the [agency],”
discretion is conferred. Id. at 1214. We clarified that
“[d]iscretion may be either affirmatively conferred or tacitly
implied.” Id. at 1213 (citation omitted). We, therefore, “ask
whether the applicable federal standards either explicitly or
implicitly gave the [National Park Service] discretion.” Id.
26 KIM V. UNITED STATES
In this case, discretion was conferred upon the Park
Service both explicitly and implicitly. Discretion was
conferred explicitly through copious use of the universally
permissive terms “may” and “should.” See Kingdomware
Technologies, Inc. v. United States, 136 S. Ct. 1969, 1977
(2016) (“[T]he word ‘may’ . . . implies discretion . . .”); see
also Marshall v. Anaconda Co., 596 F.2d 370, 375 (9th Cir.
1979) (noting that the “‘[s]hould . . . unless’ language is
clearly [m]ore advisory”); Sabow, 93 F.3d at 1452
(describing “should” as “suggestive, not mandatory”)
(citation omitted). Discretion was conferred implicitly
through the embedding of discretionary choices throughout
the policies. See Gonzalez v. United States, 814 F.3d 1022,
1029 (9th Cir. 2016) (“Courts have consistently held that
where, as here, a government agent’s performance of an
obligation requires that agent to make judgment calls, the
discretionary function exception applies.”). (citation
omitted).
As previously discussed, Directive # 25, which is relied
upon by the majority as imposing a mandatory duty upon
park officials actually provides quite the opposite, including
describing the directive as “guidance” and explicitly
retaining discretion in the Park Superintendent to administer
the hazard tree management program “in the context of other
legal requirements and other considerations.” We have
concluded that similar language falls within the
discretionary function exception. In Chadd v. United States,
794 F.3d 1104, 1110 (9th Cir. 2015), we held that the
discretionary function exception applied despite the
existence of a “mandatory” policy, because the policy
contained qualifying language that circumscribed the park’s
obligation to “what is practicable and consistent with
designated purposes and mandates.” We also described
KIM V. UNITED STATES 27
“guidance” as “impos[ing] no particular, mandatory course
of action.” Id.
Similarly, in Miller v. United States, 163 F.3d 591, 594
(9th Cir. 1998), despite the existence of “mandatory
requirements,” we held that the discretionary function
exception applied. The plaintiffs relied on the language in
the Forest Plan requiring forest employees to:
(1) monitor current and recent fire reports to
target specific risks; (2) apply aggressive
suppression action to wildfires that threaten
assets, including private property, by initial
attack; (3) provide equipment outside of the
fire management organization to assist in the
initial attack; and (4) meet the goal of
controlling the fire by directly addressing the
fire on the ground and preparing an escaped
fire analysis where appropriate.
Id. We rejected the plaintiffs’ reliance on these standards,
holding that “[t]he existence of some mandatory language
does not eliminate discretion when the broader goals sought
to be achieved necessarily involve an element of discretion.”
Id. at 595 (citations omitted); see also Sabow, 93 F.3d
at 1453 (“[T]he presence of a few, isolated provisions cast in
mandatory language does not transform an otherwise
suggestive set of guidelines into binding agency
regulations.”) (citation omitted).
A similar conclusion is warranted in this case in light of
the discretionary framework of which Directive # 25 is a
part, and the discretionary nature of Directive # 25 itself. As
in Miller, Directive # 25 “confers discretion as a part of its
general procedure” vesting discretion in the Park
Superintendent. See id. at 594.
28 KIM V. UNITED STATES
The majority opinion specifically relies upon the Rating
System used in Yosemite National Park under Directive # 25
to evaluate “(1) tree failure potential; (2) target damage
potential; (3) target impact potential; and (4) target value.”
However, not only is Directive # 25 itself couched in
discretionary terms, the rating system expressly states that
the “[d]efect ratings . . . are usually assigned and/or modified
on a local/regional basis and reflect variations in species
and environmental factors.” (emphases added). In addition,
the very factors relied upon by the majority are identified as
“example[s]” that “may need to be revised for local
conditions.” The ratings are listed as examples only, and
because no instructions are included regarding revisions for
local conditions, or how to account for “variations in species
and environmental factors,” our analysis of similar directives
in Miller militates toward a similar conclusion—that
Directive # 25 did not “eliminate discretion” on the part of
forest officials. Id. at 595 (noting that although the standards
and procedures outlined certain requirements, they did not
eliminate discretion because they did not mandate a specific
method of complying with those standards).
Finally, and importantly, the majority relies on a
conclusory allegation from the plaintiffs that forest officials
knew the failed tree was hazardous. This is an important
point because Directive # 25 addresses providing
information to the public regarding “hazards that are known
to exist.” (emphasis added). Contrary to the majority’s
assertion, see Majority Opinion, p.12, we are not required to
accept as true conclusory allegations. See Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009) (“Rule 8 . . . does not unlock
the door of discovery for a plaintiff armed with nothing more
than conclusions . . .”); 679 (“[P]leadings that . . . are no
more than conclusions[] are not entitled to the assumption of
truth”). The only evidence in the record on this issue is the
KIM V. UNITED STATES 29
declaration of Yosemite Park Forester Brian Mattos that he
was not aware of any “prior failure incident involving the
subject tree,” and that it had not been identified as a hazard.
I am persuaded that no meaningful distinction can be
made between the facts of this case and our precedent
concluding that the discretionary function exception applies
to directives that are remarkably similar to Directive # 25.
On that basis, I would affirm the district court’s judgment in
its entirety.